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[ { "docid": "22198992", "title": "", "text": "because it failed to find that the victims were unusually vulnerable to the offense as required under § 3Al.l(b)(l), cmt. n.2. In granting the enhancement, the court made scant, generalized findings; it merely stated for the record that aliens coming from Mexico and other countries from the south seek to come under “... economic and physical stress, seeking work, seeking food, seeking to support their families, and for someone or more people to take advantage of that mind-set, holding them, in effect, hostage .... ” This misses the mark for a qualifying vulnerability under § 3A1.1, which we have previously required to be an “unusual vulnerability which is present in only some victims of that type of crime.” The guidelines represent Congress’s determination, through the Sentencing Commission, of how much punishment a particular crime deserves, taking into account the inherent nature of the type of offense. The district court only noted general characteristics commonly held by aliens seeking to be illegally smuggled and failed to mention a characteristic the defendant knowingly took advantage of, such that the offense demonstrated the “extra measure of criminal depravity which § 3A1.1 intends to more severely punish.” Although the court may have been correct in noting the inherent vulnerability of smuggled aliens, we assume that such a characteristic was adequately taken into account in establishing the base offense level in U.S.S.G. § 2L1.1. The government argues that the level of vulnerability “exceeded the type of vulnerability that might ordinarily accompany smuggling and harboring aliens” based on the fact that they were physically restrained until payment for their transport was received. As we have noted, however, the holding of aliens pending payment is not an unusual practice where they have not paid in advance for their transport. Although the physical restraint of the smuggled aliens during the commission of the offense may have been appropriately used to grant an upward enhancement under U.S.S.G. § 3A1.3 — the guidelines provision dealing specifically with physical restraint of victims — there is no evidence that the aliens in this case were more unusually vulnerable to being held captive" } ]

[ { "docid": "14507880", "title": "", "text": "(5th Cir.1999). We note that, while there is little authority on the issue, both the Second and Ninth Circuits have upheld a district court's vulnerability finding based, at least in part, on vulnerability created by the defendant during the course of the crime. United States v. Veera-pol, 312 F.3d 1128 (9th Cir.2002); United States v. Altman, 901 F.2d 1161 (2d Cir.1990); cf. United States v. Zats, 298 F.3d 182, 189-90 (3d Cir.2002) (stating that the knowledge or notice requirement of § 3Al.l(b) can be satisfied by knowledge that arises during the course of an ongoing crime). In Veerapol, the defendant was convicted of holding another to involuntary servitude after she brought a young woman to the United States from Thailand and forced the woman to work for her. The court affirmed the district court's vulnerable victims enhancement based on the vie- tim's immigrant status, her lack of sophistication, education, and knowledge of U.S. law, and \"the treatment of [the victim] while [she was] here.\" Veerapol, 312 F.3d at 1133-34 (emphasis added). In Altman, the defendant had posed as a modeling agency owner and induced women to become his models, then \"plied them with [an] amphetamine diet pill and had sex with them.” He was convicted of sexual exploitation of a minor. The court affirmed the district court's sentence enhancement based on vulnerable victims because the defendant \"drugged his victims, making them physically and mentally more vulnerable.” Altman, 901 F.2d at 1165. Dock did argue in his appellate brief that the district court impermissibly based the enhancement on the aliens’ class status as illegal immigrants. As discussed above, however, this contention is without merit. At oral argument, Dock’s counsel additionally argued that the district court based the enhancement on the aliens’ class status as poor illegal immigrants desperate for work in the United States. Although we decline to decide whether the enhancement may be based on a victim’s membership in a large class of potential victims defined by a shared characteristic that makes the entire class particularly vulnerable because it was not adequately presented in Dock's brief, we note that courts" }, { "docid": "22109701", "title": "", "text": "did not make allegations that would give rise to a Cuyler conflict (and she makes none now), the trial court did not abuse its discretion in declining to hold a sua sponte evidentiary hearing. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.2003) (stating that courts should hold evidentiary hearings “when the defendant alleges sufficient facts which, if proven, would justify relief’). IV. Vulnerable Victims Sentencing Enhancement Garza also claims that the district court’s finding that the victims of her mail fraud scheme were unusually vulnerable was clearly erroneous. See United States v. Angeles-Mendoza, 407 F.3d 742, 747 (5th Cir.2005) (reviewing a “finding of unusual vulnerability for clear error”). The Sentencing Guidelines provide a two-level sentencing enhancement where the victims of the crime are “unusually vulnerable due to age, physical or mental condition, or ... otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1, cmt. 2, n. 1. The district court explained its finding at sentencing, stating that (1) Garza specifically targeted illegal aliens; (2) her victims “did not have much money, were unable to read, write or speak English well, if at all;” (3) her victims “lived with constant fear of deportation and permanent separation from their loved ones;” and (4) this fear of deportation and inability to communicate with the authorities made the individuals particularly vulnerable to Garza’s scheme. Garza claims that the section 3A1.1 enhancement was improper under Angeles-Mendoza, which held that a finding of unusual vulnerability could not be based solely on the inherent vulnerabilities of “smuggled aliens” where the offense at issue necessarily involved smuggled aliens. 407 F.3d at 747-48. Garza’s Angeles-Mendoza argument fails for two reasons. First, the finding of unusual vulnerability in the instant case was not based on the inherent vulnerabilities of undocumented aliens but rather the specific vulnerabilities of the individual victims. The district court in Angeles-Mendoza merely found that in general “aliens coming from Mexico” have certain vulnerabilities. Id. at 747. The court in Garza’s case observed several of her victims at trial and properly relied on these specific victims’ poverty, language problems, and fears of deportation." }, { "docid": "16614421", "title": "", "text": "find unusual vulnerability based on that status.” Medina-Argueta, 454 F.3d at 482; see also United States v. Angeles-Mendoza, 407 F.3d 742, 747-48 (5th Cir.2005); United States v. Dock, 426 F.3d 269, 273 (5th Cir.2005). These cases are inapposite because Luis Cedillo was convicted of conspiracy to hostage taking, not alien smuggling. An alien’s illegal sta tus is not a prerequisite to the offense at issue here, and that characteristic is not already accounted for in the base offense level. Compare 8 U.S.C. § 1324(a)(1)(A), with 18 U.S.C. § 1203(a); compare U.S.S.G. § 2L1.1 with U.S.S.G. § 2A4.1. In Angeles-Mendoza, we acknowledged that an undocumented alien’s illegal status could be the basis for a “vulnerable victim” finding for offenses that do not necessarily involve illegal aliens: This is not to say that the inherent vulnerability of smuggled aliens may never be used as a qualifying vulnerability for purposes of a § 3A1.1 upward adjustment; other crimes that do not necessarily involve smuggled aliens might involve more depravity and thus might render the defendant eligible for the adjustment where the crime is directed toward aliens to take advantage of their inherent vulnerabilities. 407 F.3d at 748 n. 7; see also United States v. Garza, 429 F.3d 165, 173 (5th Cir.2005) (“[N]one of the offenses at issue here ... necessarily involve undocumented aliens. The status of Garza’s victims as undocumented aliens was not taken into account by the base-level offense and consequently would not be an improper consideration under Angeles-Mendoza.”); United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir.2002)(noting that “the crime of hostage taking is not limited to taking aliens as hostages”). Because the status of the hostages was not included in the base offense level, we conclude that the district court did not plainly err in determining that the undocumented aliens were “vulnerable victims” under § 3Al.l(b)(l) based on their illegal status. c. Minor Victim Enhancement Luis Cedillo further argues that the district court erred in applying the Minor Victim Enhancement because that enhancement does not apply “when a fellow conspirator in the hostage taking has retained the taken child" }, { "docid": "1394628", "title": "", "text": "Id. at 948, 108 S.Ct. 2751. In light of the evidence presented at trial of Veerapol’s threats of physical and legal harm to and her physical abuse of Saeieo, and the district court’s proper instruction of the jury under Kozminski, we find no error, and hence no plain error. We therefore deny Veerapol’s sufficiency challenge. See Matsumaru, 244 F.3d at 1102. B. Vulnerable victim enhancement Veerapol next argues that the district court erred at sentencing by adjusting her base offense level upward by two points under U.S.S.G. § 3A1.1(b)—the “vulnerable victim” enhancement. Veera-pol contends that application of § 3A1.1(b) improperly double-counted Saeieo’s vulnerability both in convicting and in sentencing her because to convict Veerapol the jury must already have considered Saeieo’s vulnerability to determine that she reasonably believed that she could not avoid continued service. Section 3A1.1(b)(1) provides for a two-level adjustment when “the defendant knew or should have known that a victim of the offense was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). Application Note 2 defines “vulnerable victim” as one who is “unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” Id. (emphasis added). Application Note 2 cautions, however, that the adjustment is not appropriately applied when the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age. Id. The Specific Offense Characteristics for a § 1584 conviction do not provide an adjustment for victim characteristics such as Saeieo’s immigrant status and the linguistic, educational, and cultural barriers that contributed to her remaining in involuntary servitude. See U.S.S.G. § 2H4.1(b) (providing adjustments for (1) permanent, life-threatening, or serious bodily injury to the victim; (2) use, brand-ishment, or threat of use of a dangerous weapon; (3) certain terms of involuntary servitude; and (4) commission of a related felony). Indeed, at sentencing, the district court cited none of the Specific Offense Characteristics named in §" }, { "docid": "22199009", "title": "", "text": "inherent vulnerability of smuggled aliens may never be used as a qualifying vulnerability for purposes of a § 3A1.1 upward adjustment; other crimes that do not necessarily involve smuggled aliens might involve more depravity and thus might render the defendant eligible for the adjustment where the crime is directed toward aliens to take advantage of their inherent vulnerabilities. Cf. United States v. Amedeo, 370 F.3d 1305, 1317 n. 10 (11th Cir.2004) (applying § 3A1.1 enhancement where defendant raped victim after giving her drugs, where defendant knew that the victim was a drug addict from his former legal representation of her; noting that not every drug addict is a vulnerable victim under § 3A1.1). . See United States v. Patino-Cardenas, 85 F.3d 1133, 1134-35 (5th Cir.1996); United States v. Briones-Garza, 680 F.2d 417, 419 (5th Cir.1982). . The district court also may have made its decision to grant the upward enhancement based on the fact that some of the aliens were minors. There is no evidence, however, that the youth of some of them made them especially vulnerable to being victimized. . The government presented evidence that confusion was created over the fact that a different probation officer was assigned to Daniel Angeles-Mendoza and Carron-Espino-za than was assigned to Erik Angeles-Men-doza. According to the government, the probation officer assigned to Daniel Angeles-Mendoza and Carron-Espinoza did not have an opportunity to review the ledger before drafting their PSR, which is the source of the discrepancy. . Although “good cause” is not specifically defined by rule 32 and would seem to suggest that the inquiry only concerns the grounds for the defaulting party’s omission, \"in practice 'good cause’ inquiries typically range more broadly, addressing (for instance) adverse effects — direct or systemic — on opposing parties or the judiciary.” United States v. McCoy, 313 F.3d 561 (D.C.Cir.2002) (considering prejudice in determining whether good cause existed to allow a new objection to be presented at sentencing pursuant to rule 32(i)(l)(D)); cf. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.2003) (stating the test for considering whether \"good cause”" }, { "docid": "16614419", "title": "", "text": "1203(a). Conspiracy to commit that offense “requires direct or indirect agreement to commit hostage taking, knowledge that the purpose of the agreement was unlawful and joinder in the agreement to further its unlawful purpose.” De Jesus-Batres, 410 F.3d at 160. Luis Cedillo asserts that the third element of the offense of hostage taking under 18 U.S.C. § 1203 is equivalent to a ransom demand, but we have previously rejected that argument, and concluded that “[a] ransom demand is not an element of the offense under 18 U.S.C. § 1203.” United States v. Rivera- Benito, 136 Fed.Appx. 690, 691 (5th Cir.2005) (unpublished). We are persuaded by our holding in Rivera-Benito: “Because the fact of a ransom demand is not taken into account by the base offense level set forth for that offense at § 2A4.1(b)(l), there was no impermissible double counting.” Id. b. Vulnerable Victim Enhancement Luis Cedillo also contends that the district court erred in applying the Vulnerable Victim Enhancement because the illegal status of the undocumented aliens in this case was already “incorporated in the offense guideline.” U.S.S.G. § 3A1.1 cmt. n. 2. We conclude that the district court did not plainly err in applying the Vulnerable Victim Enhancement. Section 3Al.l(b)(l) of the Sentencing Guidelines provides: “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.” “Vulnerable victim” is defined as a victim of the offense of conviction “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n. 2. This enhancement should not be applied “if the factor that makes the person a vulnerable victim is incorporated in the offense guideline.” Id. Luis Cedillo argues that the district court plainly erred in applying the Vulnerable Victim Enhancement based on the illegal status of the undocumented aliens. He cites a series of cases in which this court has held that, “[b]eeause an alien’s illegal status is a prerequisite to the crime of alien smuggling, it is error for a district court to" }, { "docid": "23004654", "title": "", "text": "meaning controls, we reject Solis’ reliance on the use of the term “smuggling” in other guidelines. Sections 2L1.1(b)(1), (2) impose enhancements “[i]f the offense involved the smuggling, transporting, or harboring of ... aliens”. Solis contends that this section, immediately preceding the one at issue, § 2L1.2, demonstrates that “transporting” is not “smuggling”. As noted, we disagree. First, § 2L1.1 does not speak of “an alien smuggling” offense, or of an “alien transporting” offense; it speaks of “smuggling, transporting, or harboring ... aliens”. See U.S.S.G. § 2Ll.l(b)(2). Second, the Guideline at issue, § 2L1.2, does not even mention “transporting” or “harboring” aliens, although such conduct equates with “smuggling” aliens; instead, it speaks only in general of “an alien smuggling offense”, not the “offense of alien smuggling”. See U.S.S.G. § 2L1.2 (b)(1)(A)(vii). This is the point brought home by our court’s decision in Monjams-Castaneda. Notwithstanding our holding that the plain meaning of the Guideline controls, we note that Solis cites 8 U.S.C. § 1227(a)(1)(E)(i) for the contention that “transporting” is not a smuggling offense. Section 1227(a)(1) establishes classes of aliens removable upon order of the Attorney General. One of these classes is defined in subsection (E), “smuggling”. The statute allows the deportation of aliens who “knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law”. 8 U.S.C. § 1227(a)(1)(E) (2002) (emphasis added). See also 8 U.S.C. § 1182(a)(6)(E)(i) (defining alien “smugglers” who are not eligible for visas). Concerning Solis’ references to other guidelines and statutes, the Government responds that those references are not as persuasive as the language in the earlier-referenced 8 U.S.C. § 1324(a)(1)(A). As discussed, the pre-amendment § 2L1.2, through the definition in 8 U.S.C. § 1101(a)(43)(N), referenced § 1324(a)(1)(A) when describing offenses “related to alien smuggling”. (Again, Solis’ prior “transporting” conviction was pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii).) Section 1824(a)(1)(A) proscribes bringing aliens into the United States, as well as transporting them once here. The Government notes that the word “smuggling” is not used in § 1324(a)(1)(A). Therefore, it contends, each of the various offenses" }, { "docid": "1394621", "title": "", "text": "OPINION WARDLAW, Circuit Judge: On August 12, 1999, Supawan Veerapol was convicted by a jury of one count of holding another to involuntary servitude in violation of 18 U.S.C. § 1584, three counts of mail fraud in violation of 18 U.S.C. § 1341, and three counts of harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Veerapol challenges for the first time the sufficiency of the evidence supporting her conviction on the count of involuntary servitude. She also appeals the district court’s application of the vulnerable victim enhancement, U.S.S.G. § 3A1.1 (b)(1), to adjust her base offense level upward by two levels, contending that the vulnerability of the victim was taken into account in the offense of conviction. She further challenges the district court’s order of restitution to the victim held to involuntary servitude. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the conviction, sentence, and order of restitution. I. Background Veerapol, a native of Thailand and the common-law wife of a Thai ambassador, operated a Thai restaurant in Los Angeles for which she recruited Thai nationals as workers. While in Thailand in the summer of 1989, Veerapol approached Nobi Saeieo, a non-English-speaking Thai villager with a second-grade education, offering her transportation to and two years of employment in the United States at a substantially higher wage than Saeieo could earn in Thailand. Through her contacts at the Thai embassy, Veerapol obtained a passport and a six-month visitor visa for Saeieo and bought tickets for the two of them to fly together to Los Angeles. Veerapol held Saeieo’s passport throughout the journey, except as they passed through immigration. Once through immigration, however, Veerapol reclaimed Saeieo’s passport. Saeieo joined two other Thai workers at Veerapol’s Los Angeles home and restaurant, where she was required to work long hours cooking, cleaning, and performing additional chores, such as washing Veera-pol’s car, giving Veerapol manicures and pedicures, and cleaning her nine-year-old son after he went to the bathroom. Saeieo was required to wait upon Veerapol’s hous-eguests on one knee. Veerapol also used her Thai workers’ identities to open bank and" }, { "docid": "22109702", "title": "", "text": "were unable to read, write or speak English well, if at all;” (3) her victims “lived with constant fear of deportation and permanent separation from their loved ones;” and (4) this fear of deportation and inability to communicate with the authorities made the individuals particularly vulnerable to Garza’s scheme. Garza claims that the section 3A1.1 enhancement was improper under Angeles-Mendoza, which held that a finding of unusual vulnerability could not be based solely on the inherent vulnerabilities of “smuggled aliens” where the offense at issue necessarily involved smuggled aliens. 407 F.3d at 747-48. Garza’s Angeles-Mendoza argument fails for two reasons. First, the finding of unusual vulnerability in the instant case was not based on the inherent vulnerabilities of undocumented aliens but rather the specific vulnerabilities of the individual victims. The district court in Angeles-Mendoza merely found that in general “aliens coming from Mexico” have certain vulnerabilities. Id. at 747. The court in Garza’s case observed several of her victims at trial and properly relied on these specific victims’ poverty, language problems, and fears of deportation. Second, the defendant in Angeles-Men-doza had been convicted of conspiring to smuggle, transport, and harbor illegal aliens. Id. at 745. Accordingly, the Angeles-Mendoza Court determined that the victims’ “smuggled alien” status was adequately taken into account by the sentence for the base-level offense. Id. at 748. By contrast, none of the offenses at issue here — mail fraud, conspiracy, and impersonating a federal employee — necessarily involve undocumented aliens. The status of Garza’s victims as undocumented aliens was not taken into account by the base-level offense and consequently would not be an improper consideration under Angeles-Mendoza. See id. at 748 n. 7; see also United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir.2002). Garza also relies on United States v. Moree, 897 F.2d 1329, 1335-36 (5th Cir. 1990), and United States v. Box, 50 F.3d 345, 358-59 (5th Cir.1995). She argues that these decisions hold that a section 3A1.1 enhancement is improper where the vulnerability at issue was indispensable to the defendant’s crime as it was committed. She contends that her victims’ vulnerability could" }, { "docid": "22109703", "title": "", "text": "Second, the defendant in Angeles-Men-doza had been convicted of conspiring to smuggle, transport, and harbor illegal aliens. Id. at 745. Accordingly, the Angeles-Mendoza Court determined that the victims’ “smuggled alien” status was adequately taken into account by the sentence for the base-level offense. Id. at 748. By contrast, none of the offenses at issue here — mail fraud, conspiracy, and impersonating a federal employee — necessarily involve undocumented aliens. The status of Garza’s victims as undocumented aliens was not taken into account by the base-level offense and consequently would not be an improper consideration under Angeles-Mendoza. See id. at 748 n. 7; see also United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir.2002). Garza also relies on United States v. Moree, 897 F.2d 1329, 1335-36 (5th Cir. 1990), and United States v. Box, 50 F.3d 345, 358-59 (5th Cir.1995). She argues that these decisions hold that a section 3A1.1 enhancement is improper where the vulnerability at issue was indispensable to the defendant’s crime as it was committed. She contends that her victims’ vulnerability could not properly be used to enhance her sentence because their particular vulnerabilities were essential to her particular scheme. Garza misreads Moree and Box. Those cases stand for the proposition that susceptibility to the defendant’s scheme alone is not enough to qualify victims as unusually vulnerable. The victims must also be “vulnerable ... members of society” and “fall in the same category” as “the elderly, the young, or the sick.” United States v. Gieger, 190 F.3d 661, 665 (5th Cir.1999) (citing Moree). Thus, neither the wealthy businessmen victims in Box nor the government official victim in Moree could qualify as vulnerable victims under section 3A1.1, even though they were particularly susceptible to the crimes at issue in those cases, because they did not qualify as vulnerable members of society. Because Garza’s victims’ poverty, language problems, and fears of deportation did make them vulnerable members of society, Moree and Box are inapposite, and the district court’s finding of unusual vulnerability was not clearly erroneous. V. Conclusion Accordingly, we AFFIRM Elizondo’s conviction for conspiracy to commit mail fraud" }, { "docid": "14507879", "title": "", "text": "allegations of state felony murder, one allegation of money laundering, and one allegation of conspiring to launder money. He admitted to four underlying offenses for the ITAR count: one allegation of alien smuggling, two allegations of state felony murder, and one allegation of conspiring to launder money. . At oral argument, Dock’s counsel also argued that the district court erred by considering factors created by the defendant during the course of the crime in its vulnerability determination (i.e., the vulnerability created when Dock and Sprague placed the lock on the trailer door). Counsel also argued that the district court impermissibly based the vulnerable victims enhancement on a characteristic shared by a large group of potential victims — the economic desperation of poor Mexicans seeking work in the United States to increase their standard of living. However, Dock did not raise these arguments in his appellate brief. They are therefore waived, and we need not decide them. United States v. Thames, 214 F.3d 608, 611 n. 3 (5th Cir.2000); Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir.1999). We note that, while there is little authority on the issue, both the Second and Ninth Circuits have upheld a district court's vulnerability finding based, at least in part, on vulnerability created by the defendant during the course of the crime. United States v. Veera-pol, 312 F.3d 1128 (9th Cir.2002); United States v. Altman, 901 F.2d 1161 (2d Cir.1990); cf. United States v. Zats, 298 F.3d 182, 189-90 (3d Cir.2002) (stating that the knowledge or notice requirement of § 3Al.l(b) can be satisfied by knowledge that arises during the course of an ongoing crime). In Veerapol, the defendant was convicted of holding another to involuntary servitude after she brought a young woman to the United States from Thailand and forced the woman to work for her. The court affirmed the district court's vulnerable victims enhancement based on the vie- tim's immigrant status, her lack of sophistication, education, and knowledge of U.S. law, and \"the treatment of [the victim] while [she was] here.\" Veerapol, 312 F.3d at 1133-34 (emphasis added). In Altman, the defendant" }, { "docid": "1364724", "title": "", "text": "recognizes that preying on the elderly is more culpable than many other instances of mail fraud. Even though Martinez may not have been especially vulnerable among the population of illegal aliens, she was among the most vulnerable of the broader group who are forced into labor.The Calimlims victimized her by targeting her special vulnerability. In Veerapol, on facts very similar to those before us, the Ninth Circuit upheld the use of the vulnerable-victim enhancement. See 312 F.3d at 1133. The approach to the enhancement taken by other circuits is consistent with that in the Ninth. See generally, e.g., United States v. Zats, 298 F.3d 182 (3d Cir.2002) (fraudulent debt collection scheme); United States v. McCall, 174 F.3d 47 (2d Cir.1998) (embezzlement). We have described the key concern behind the vulnerable-victim enhancement as the desire to deter criminals from targeting certain groups by increasing the penalties for doing so. See, e.g., United States v. Newsom, 402 F.3d 780, 785 (7th Cir.2005); United States v. Grimes, 173 F.3d 634, 637 (7th Cir.1999); United States v. Lallemand, 989 F.2d 936, 940 (7th Cir.1993). Lest there be any doubt about our position on the question raised by the Calimlims, we clarify today that where vulnerability is not already accounted for in the Guidelines, we will apply the vulnerable-victim enhancement when the victim is a member of a group typically vulnerable to the particular manifestation of the general offense committed by the defendant, whether or not the victim is otherwise unusually vulnerable. In this case, Martinez was a member of a group typically targeted by those desiring forced labor, but her group (illegal aliens) is only part of the broader set of possible victims. She was therefore a vulnerable victim for the purposes of U.S.S.G. § 3A1.1(b)(1). The district court erred when it denied this enhancement. C. “Use of Minor Children” Enhancement Finally, U.S.S.G. § 3B1.4 requires a two-level enhancement for using a minor to commit a crime. “Use” includes “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4, appl. n. 1. The district court thought that the Calimlims’ minor children" }, { "docid": "4540218", "title": "", "text": "another job.” Meanwhile, Peña Canal met with a lawyer from La Raza Centro Legal, the immigration advocacy group with whom Oz had spoken on her behalf. She had told Oz that she wanted to stay in the United States. La Raza contacted ICE and reported Peña Canal’s situation. Upon ICE’s recommendation, Peña Canal was granted a T-Visa pursuant to 8 U.S.C. § 1101(a)(15)(T)(i)(I) (requiring that the victim cooperate in the prosecution of the trafficker). Peña Canal also filed a civil suit against Dann and her mother, Vittett, seeking civil, punitive and other damages. Peña Canal was granted a default judgment and $612,812.82 in compensatory and punitive damages. Canal v. Dann, No. 09-03366CW, 2010 WL 3491136, at *4 (ND.Cal. Sept. 2, 2010). 4. Passport and Identification Papers Dann never returned Peña Canal’s passport or Peruvian identification. A police officer testified that he went to the apartment on Peña Canal’s behalf to ask for these papers. Dann was not present but called him back later. She denied having any documents, denied knowing what he was talking about, and denied having any property that belonged to Peña Canal. In June of 2008, ICE agents searched Dann’s apartment. They found Peña Canal’s passport, her Peruvian identification card, and checks for a bank account in her name, along with the agreement that Dann had forced her to sign about minimum wage, all buried under clothing in a drawer in Dann’s room. II. Procedural Background On June 5, 2008, Dann was charged in a one-count indictment with harboring an illegal alien for purpose of private financial gain, in violation of 8 U.S.C. § 1324(a)(l)(A)(iii) and (B)(i). On February 4, 2009, the government filed a superceding indictment, charging Dann with five counts: (i) conspiracy to commit visa fraud in violation of 18 U.S.C. §§ 371 and 1546(a); (ii) visa fraud in violation of 18 U.S.C. § 1546(a); (iii) forced labor and attempted forced labor in violation of 18 U.S.C. §§ 1589 and 1594; (iv) document servitude in violation of 18 U.S.C. § 1592; and (v) harboring an illegal alien for private financial gain in violation of 8" }, { "docid": "1364725", "title": "", "text": "F.2d 936, 940 (7th Cir.1993). Lest there be any doubt about our position on the question raised by the Calimlims, we clarify today that where vulnerability is not already accounted for in the Guidelines, we will apply the vulnerable-victim enhancement when the victim is a member of a group typically vulnerable to the particular manifestation of the general offense committed by the defendant, whether or not the victim is otherwise unusually vulnerable. In this case, Martinez was a member of a group typically targeted by those desiring forced labor, but her group (illegal aliens) is only part of the broader set of possible victims. She was therefore a vulnerable victim for the purposes of U.S.S.G. § 3A1.1(b)(1). The district court erred when it denied this enhancement. C. “Use of Minor Children” Enhancement Finally, U.S.S.G. § 3B1.4 requires a two-level enhancement for using a minor to commit a crime. “Use” includes “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4, appl. n. 1. The district court thought that the Calimlims’ minor children were not active and knowing cooperators in the scheme, but were rather innocent dupes of their parents. A legal error lies behind this finding. Whether the minor understands what is going on is irrelevant: “The enhancement in section 3B1.4 focuses on whether the defendant used a minor in the commission of a crime, not whether the minor knew that he was being used to commit a crime.” United States v. Ramsey, 237 F.3d 853, 861 (7th Cir.2001). The district court erred when it relied on the children’s (lack of) knowledge as the reason not to apply this enhancement. The Calimlims’ discussion of United States v. Acosta, 474 F.3d 999 (7th Cir.2007), is wide of the mark. In Acosta, this court vacated the application of the enhancement because the defendant did not personally use a minor in committing the crime, even though he was aware of the minor’s participation. Id. at 1003. The emphasis there was on the fact that the defendant did not personally solicit, encourage, or otherwise facilitate the crime; someone else in the" }, { "docid": "16614422", "title": "", "text": "adjustment where the crime is directed toward aliens to take advantage of their inherent vulnerabilities. 407 F.3d at 748 n. 7; see also United States v. Garza, 429 F.3d 165, 173 (5th Cir.2005) (“[N]one of the offenses at issue here ... necessarily involve undocumented aliens. The status of Garza’s victims as undocumented aliens was not taken into account by the base-level offense and consequently would not be an improper consideration under Angeles-Mendoza.”); United States v. Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir.2002)(noting that “the crime of hostage taking is not limited to taking aliens as hostages”). Because the status of the hostages was not included in the base offense level, we conclude that the district court did not plainly err in determining that the undocumented aliens were “vulnerable victims” under § 3Al.l(b)(l) based on their illegal status. c. Minor Victim Enhancement Luis Cedillo further argues that the district court erred in applying the Minor Victim Enhancement because that enhancement does not apply “when a fellow conspirator in the hostage taking has retained the taken child in his or her custody and the consideration received is no more than the conspirator’s expected share of the ransom.” United States v. Alvarez-Cuevas, 415 F.3d 121, 122 (1st Cir.2005)(emphasis added). The parties dispute the standard of review for this enhancement. Although the district court in passing stated that “this might be an appellate point to pursue,” it is undisputed that Luis Cedillo never objected to the application of this enhancement. He did not provide the analysis and cases now presented to our court to the district court. Luis Cedillo’s argument that the earlier presentation of this issue at the separate sentencing hearing of his brother preserved the issue is unavailing as such an objection by a different defendant in a prior proceeding “is not relevant nor is it an acceptable method of preserving an issue for appellate review.” United States v. Triplett, 922 F.2d 1174, 1183 (5th Cir.1991). The purpose of the plain error rule is “to enforce the requirement that parties object to errors at trial in a timely manner so as to" }, { "docid": "1394630", "title": "", "text": "2H4.1 to justify its application of the vulnerable victim adjustment: The victim here was, I think, vulnerable based on her immigrant status and the circumstances in which the immigrant status was exploited by your client from the initial recruitment, and the treatment of the individuals while they were here — or the way Miss Nobi Saeieo was treated. She was relatively isolated from her community, and I think the defendant exploited that. The victim was basically a poor uneducated woman, lacking in sophistication, in the knowledge of the United States laws, and I think that was also exploited, and that was supported by the expert testimony, as well. We have forbidden the general application of § 3A1.1 in rare circumstances where, unlike involuntary servitude cases, the victim’s vulnerability is typically incorporated into the offense. See United States v. Williams, 291 F.3d 1180, 1195-96 (9th Cir.2002); United States v. Castaneda, 239 F.3d 978, 981 (9th Cir.2001). In Williams and Castaneda, we determined that the victims under the Mann Act were typically economically deprived, and thus application of the adjustment would be inappropriate except under special circumstances. See Williams, 291 F.3d at 1196 (upholding adjustment for one Mann Act victim for whom the district court made specific findings of particular vulnerability). Our limitation on the § 3A1.1 enhancement in Mann Act cases does not apply in cases where the specific manner in which the defendant committed the offense is a “scheme ... [that] typically targets people like the victims [in that case.]” United States v. Mendoza, 262 F.3d 957 (9th Cir.2001). Thus, Veerapol’s argument that the district court erred in applying the vulnerable victim enhancement is not advanced by her assertion that Saeieo was not unusually vulnerable any more than any other poor, unsophisticated, non-English-speaking, illegal alien whose reasonable feelings of coercion the jury must take into account to convict. The appropriateness of the adjustment in Veerapol’s case is also apparent from our recent explanation that a sentencing judge must make two determinations in applying the vulnerable victim enhancement: First, the judge must determine whether one or more of the victims belong" }, { "docid": "1364720", "title": "", "text": "U.S.S.G. § 2H4.1(b)(4), appl. n. 2. The harboring conviction falls within the terms of § 2H4.1(b)(4) and should have triggered its application. “The bar on double counting comes into play only if the offense itself necessarily includes the same conduct as the enhancement.” United States v. Senn, 129 F.3d 886, 897 (7th Cir.1997) (emphasis in original). There is nothing artificial about treating forced labor and harboring as two separate offenses. They are based on different conduct, and neither necessarily encompasses the other. See, e.g., Bradley, 390 F.3d at 148-50 (listing charges of forced labor but not harboring of Jamaican nationals). To state the obvious, even today, long after the passage of the Thirteenth Amendment, it is possible to violate the law by forcing an American into servitude just as one can force an alien into servitude. In no sense does forced labor necessarily imply that the victim is an alien. Similarly, it is possible to harbor an alien for private financial gain without forcing that person to work; the gain might come from the use of valuable property that the alien has, or even from a ransom. The enhancement called for by § 2H4.1(b)(4) should have been applied here. B. “Vulnerable Victim” Enhancement U.S.S.G. § 3A1.1(b)(1) requires a two-level increase if the defendant “knew or should have known that a victim of the offense was a vulnerable victim.” The commentary accompanying this section defines a “vulnerable victim” as one “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1, appl. n. 2. The question here is whether the vulnerability of the victim is to be measured against the general population or against the group comprised of the likely victims of this crime. If the former, Martinez is vulnerable, but if the latter (as the district court thought), then she is no worse off than any other victim of these crimes. In the latter case, the vulnerability of the victim would already have been built into the offense Guideline, and it would be double-counting to apply the" }, { "docid": "16614420", "title": "", "text": "the offense guideline.” U.S.S.G. § 3A1.1 cmt. n. 2. We conclude that the district court did not plainly err in applying the Vulnerable Victim Enhancement. Section 3Al.l(b)(l) of the Sentencing Guidelines provides: “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.” “Vulnerable victim” is defined as a victim of the offense of conviction “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n. 2. This enhancement should not be applied “if the factor that makes the person a vulnerable victim is incorporated in the offense guideline.” Id. Luis Cedillo argues that the district court plainly erred in applying the Vulnerable Victim Enhancement based on the illegal status of the undocumented aliens. He cites a series of cases in which this court has held that, “[b]eeause an alien’s illegal status is a prerequisite to the crime of alien smuggling, it is error for a district court to find unusual vulnerability based on that status.” Medina-Argueta, 454 F.3d at 482; see also United States v. Angeles-Mendoza, 407 F.3d 742, 747-48 (5th Cir.2005); United States v. Dock, 426 F.3d 269, 273 (5th Cir.2005). These cases are inapposite because Luis Cedillo was convicted of conspiracy to hostage taking, not alien smuggling. An alien’s illegal sta tus is not a prerequisite to the offense at issue here, and that characteristic is not already accounted for in the base offense level. Compare 8 U.S.C. § 1324(a)(1)(A), with 18 U.S.C. § 1203(a); compare U.S.S.G. § 2L1.1 with U.S.S.G. § 2A4.1. In Angeles-Mendoza, we acknowledged that an undocumented alien’s illegal status could be the basis for a “vulnerable victim” finding for offenses that do not necessarily involve illegal aliens: This is not to say that the inherent vulnerability of smuggled aliens may never be used as a qualifying vulnerability for purposes of a § 3A1.1 upward adjustment; other crimes that do not necessarily involve smuggled aliens might involve more depravity and thus might render the defendant eligible for the" }, { "docid": "7122524", "title": "", "text": "and another two-level enhancement under USSG § 3Al.l(b)(2) based on the large number of vulnerable victims. The Caballeros contend that the trial court' erred in applying the enhancements because the court did not make an adequate finding that the victims in this case were “unusually vulnerable.” We review the district court’s identification of unusually vulnerable victims for clear error. United States v. Creech, 913 F.2d 780, 781-82 (10th Cir.1990). A vulnerable victim is “a person (A) who is a victim of the offense of conviction and any [relevant] conduct ... and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” USSG § 3A1.1, n. 2. We have found application of this enhancement appropriate when “some characteristic renders a victim ‘particularly susceptible’ to the criminal conduct ... [and the victim] is unable to protect himself or herself from criminal conduct ...” United States v. Shumway, 112 F.3d 1413, 1423 (10th Cir.1997). The Caballeros claim that the district court looked only to the victims’ status as immigrants and applied the enhancements without making the required particularized findings of vulnerability pertaining to individual victims. United States v. Smith, 133 F.3d 737, 749 (10th Cir.1997). The Caballeros rely primarily on United States v. Creech, 913 F.2d 780, 781-82 (10th Cir.1990), a case in which this court reversed a vulnerable-victim enhancement after finding that it had been applied only because of the victim’s status as a newlywed. Notably, the defendant in Creech pled guilty, and the district court therefore heard no evidence from the victim, nor any evidence regarding the victim’s susceptibility to the criminal conduct. Creech, 913 F.2d at 781. By contrast, the government presented evidence from sixteen victim-witnesses at the Caballeros’ trial. In observing the victim-witnesses’ testimony, the court gathered facts about their demeanor, language, culture, illegal immigrant status, and uneasiness with the legal system. In its ruling, the court specifically discounted class-based application of the enhancements, saying that “aliens in the United States are not as a class always vulnerable victims within the meaning of the enhancement,” but that" }, { "docid": "22198991", "title": "", "text": "include the commentary, added in 1997, that clarified the meaning of “victim” in applying the enhancement: “For purposes of subsection (b), ‘victim’ includes any person who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.S.” U.S.S.G. § 3A1.1, cmt. n.2 (1997) (emphasis added). This court has determined that a person can be held captive, and thus victimized, under a different federal criminal statute — the Hostage Taking Act — even where the seizure or detention was not against the hostage’s will at its inception. See United States v. Garrion-Caliz, 944 F.2d 220, 226 (5th Cir.1991). Because the smuggled aliens were detained against their will after being transported, they are “victims” with regard to conduct relevant to the offenses for which defendants pleaded guilty, and thus a § 3A1.1 adjustment would be appropriate if they have a qualifying vulnerability about which defendants knew or should have known. On the other hand, the district court did commit clear error in finding that an enhancement was appropriate, because it failed to find that the victims were unusually vulnerable to the offense as required under § 3Al.l(b)(l), cmt. n.2. In granting the enhancement, the court made scant, generalized findings; it merely stated for the record that aliens coming from Mexico and other countries from the south seek to come under “... economic and physical stress, seeking work, seeking food, seeking to support their families, and for someone or more people to take advantage of that mind-set, holding them, in effect, hostage .... ” This misses the mark for a qualifying vulnerability under § 3A1.1, which we have previously required to be an “unusual vulnerability which is present in only some victims of that type of crime.” The guidelines represent Congress’s determination, through the Sentencing Commission, of how much punishment a particular crime deserves, taking into account the inherent nature of the type of offense. The district court only noted general characteristics commonly held by aliens seeking to be illegally smuggled and failed to mention a characteristic the defendant knowingly took advantage of, such" } ]

[ { "docid": "23193329", "title": "", "text": "have any connection with the matters in controversy with the complainant in the original bill. Nor is it perceived that he has any interest or concern in that controversy.- These two complainants in the cross-bill set up a title to the lands in dispute, which, they insist, is paramount to that of their co-defendants, and seek to obtain, a decree to that effect, and to. have the possession delivered to them. This is a litigation exclusively between these parties, and with which the complain ant in the original bill should not be embarrassed, or the record incumbered. The same matter has been set up in their answer to the original bill, against the equitable title claimed by-the complainant, presenting the only issue in which he is interested, and upon which the questions between them can be heard and determined. A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the' matters in question in the original bül. It is brought either to obtain a discovery of facts, in aid of the defence to the original bill, or to obtain full and complete relief to all parties, as to the matters charged in the original\" bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. It is said by Lord Hardwicke, that both the original and cross-bill constitute but one suit, so intimately are they connected together. Field v. Schieffelin, 7 J. Ch. R. 252. The office of a cross-bill has been very fully discussed at- this term, by Mr. Justice Curtis, in the casé of Victoire Shields et al. v. Barrow; and I need not, therefore, pursue it, but- refer only to that opinion for the true doctrine on the subject. It is- manifest, from this brief reference to the doctrine, that" } ]

[ { "docid": "5310857", "title": "", "text": "of such resale tax deed and his title thereunder, as against Maceo Raines and his codefendants. In her original bill of complaint, Maeeo Raines tendered, as an issue, the question of the validity of such tax deed and the title of Mathis thereunder. A cross-bill is a pleading filed by a defendant in a suit against the plaintiff in the same suit or against the other defendants in the same suit, or against both, touching the matters in question in the original bill. It must be either in aid of a defense to the original bill or to obtain full relief to all parties touching the matters of the original bill. Morgan’s Co. v. Texas Cent. Ry., 137 U. S. 171, 200, 201, 11 S. Ct. 61, 34 L. Ed. 625; Landon v. Public Utilities Co. (D. C.) 234 F. 152, 167; 21 C. J., p. 498, § 597. Such a cross-bill is ancillary to the original suit and, if the court has jurisdiction of the ease made by the original bill, it has jurisdiction of a dependent cross-bill. Rickey L. & Co. v. Miller & Lux, 218 U. S. 258, 263, 31 S. Ct. 11, 54 L. Ed. 1032; Railroad Co. v. Chamberlain, 6 Wall. 748, 18 L. Ed. 859; Osborne & Co. v. Barge (C. C.) 30 F. 805; First Nat. Bank of Salem v. Salem Capital Flour Mills (C. C.) 31 F. 580; Freeman v. Howe, 24 How. 450, 460, 16 L. Ed. 749; Brooks v. Laurent (C. C. A. 5) 98 F. 647, 652. Since the court had jurisdiction of the case made by the original bill in the instant ease • it had jurisdiction of the cross-bill, which was a germane, ancillary proceeding. For the reasons stated, the petition for rehearing is denied." }, { "docid": "16901546", "title": "", "text": "Court did not acquire jurisdiction to enforce the personal liability \"of the Rock Island asserted in the cross-bill of the Toledo Company; but, applying the rule stated above, that question should not be decided in this proceeding. The most that can be said against the District Court’s jurisdiction is that it is in doubt. And the return recites that the order which declared that the Rock Island became a party rests upon evidence which has not been embodied in the record. The immunity of the Rock Island from suit in the Northern District of Ohio, conferred by §51 of the Judicial. Code, could be waived; In re Moore, 209 U. S. 490; and ordinarily a general appearance operates as a waiver. Gracie v. Palmer, 8 Wheat. 699. The District Court obviously had jurisdiction to determine, in the first, instance, whether the Rock Island had entered a general appearance. Jones v. Andrews, 10 Wall. 327. It had jurisdiction also to determine whether the relief sought in the Toledo Company’s cross-bill was in its nature germane tó the proceedings theretofore, instituted in the suit by the bondholders’ committee or by the Central Trust Company, so that the rights asserted, in the cross-bill could be properly litigated in that suit. Chicago, Milwaukee & St. Paul Ry. Co. v. Third National Bank of Chicago, 134 U. S. 276, 287. . And finally, it had jurisdiction to determine whether the fact that such earlier proceeding had been instituted on behalf of the Rock Island, that it had actively participated in the conduct thereof, and to that end had entered a general appearance, made it subject to further proceedings thereon by way of cross-bill, as fully as if the earlier action had been taken in its name as well as on its behalf. Compare also Ex parte Gordon, 104 U. S. 515; Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540; In re Pollitz, 206 U. S. 323. If in the judgment of the Rock Island the District Court erred in the decision of any one or all of these questions it will" }, { "docid": "7473778", "title": "", "text": "might set up to the several tracts of land claimed by them in the cross bill might be set aside and annulled. Of this pleading the court says: “As it respects tlie cross bill, it may be proper to observe that the matters sought to be brought into the controversy between the complainants in that and the eodefendants do not seem to have any connection with the matters in controversy with the complainant in the original bill. Nor is it perceived that he has any interest or concern in that controversy. These two complainants in the cross bill set up a title to the lands in dispute which they insist is paramount to that of their codefendants, and seek to obtain a decree to that effect, and to have the possession delivered to them. This is a litigation exclusively between these parties, and with which the complainant in, .the original bill should not be embarrassed or the record incumbered. * * * It [the cross bill] should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit,, but constitute the subject matter of an original and independent suit.” In the light of this authority, the so-called “cross bill” in this cause 'is an original bill brought by Tillotson, a citizen of Ohio, against Oarrothers and the railway company, also citizens of Ohio, and appellant and Warner, citizens of Hew York. Of this suit the federal court has no jurisdiction, because of the citizenship of the parties. Its plain puipose was to enable Tillotson to litigate in that court his differences with some- of h'is codefendants, which no more affected the litigation of the principal suit than would any other controversy between them as to lands, stocks, or other property. It was therefore an original, and not a cross, cause. Rubber Co. v. Goodyear, 9 Wall. 809, 810. That this was its object is evidenced not only by the undisputed affidavit of Terry that Richardson procured complainant to file its bill in the federal court, and informed him that the" }, { "docid": "22724142", "title": "", "text": "in all suits in equity it would only be necessary that a citizen of one State should be found on one side, and a citizen of another State on the other, to enable the court to force into the cause all other persons,.either citizens or aliens. No such power exists; and it is only necessary to consider the nature of a cross-bill, to see that it cannot be made an instrument for any such end. “ A cross-bill, ex vi terminorum, implies a bill brought by a defendant against the plaintiff in the, same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill.” Story’s Eq. Pl. § 389; 3 Dan Ch. Pr. 1742. New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties, he amends his bill, and makes them. If the interest of the defendant requires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend, cr his bill is dismissed. If, at the hearing, the court finds that an indispensable party is' not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irregular, but wholly unnecessary. . When the defendants, Mrs. Shields and Bisland, had complied with this order of the court, and filed their cross-bill, as it was called, against the other indorsers and Thomas R. Shields, and they had come in, as they did, what was their relation to the cause? They surely were not plaintiffs in if. If they were defendants the court had not jurisdiction, for they, as well as the complainant, were citizens of Louisiana. In truth, they were not parties to the original bill; they were merely defendants to the cross-bill. They had no right to answer the original bill, or make defence against it, and of course no decree could be made against them upon that bill. We do not find it necessary to pursue further an examination in" }, { "docid": "3858575", "title": "", "text": "suits to the extent necessary to permit such appraisement under the’ rules so fixed by the court. The considerations to which we have referred are not overcome by the facts that diversity of citizenship conferred jurisdiction for an original bill, that there was prayer for process (which accorded with proper practice under cross-bills — see Washington Railroad v. Bradley, 10 Wall. 299, 302, 19 L. Ed. 894), or that the bill was filed under a separate number. Indeed, such method of filing would not unnaturally be had. in view of the fact that when the cross-bill was filed appellants’ petition for a consolidation of the two original suits and for repleading therein had not been granted. Appellants cite a number of authorities which recognize a distinction between a pure cross-bill, filed simply as matter of defense, and' one seeking affirmative relief as to other matters than those brought: in suit by the bill. Some of these authorities hold (and this illustrates the independent nature of the latter class of cases) that a dismissal of the original bill would not, in such cases, operate to dismiss the cross-bill. We find nothing in the principle so announced opposed to the conception of the bill in question as a mere cross-bill, because we think the additional matter introduced by the cross-bill cannot properly be said to be matter collateral to that presented by the original bills, or that the affirmative relief sought is (to quote the language of appellants’ counsel) “so far severable from and independent of the suit brought by the original bills that the cross-cause is not to be considered as being the same 'cause as that in which the stay was to operate.” The character of cross-bill is not taken away by the mere statement therein of facts not contained in the original bill, so long as such additional facts are germane to the matters embraced in the original suit. The rule is that: “If the plaintiff in the original bill does not fully state all the facts and circumstances connected with • the subject-matter in controversy, but omits facts" }, { "docid": "16786116", "title": "", "text": "decrees entered at the sametime; but a decision in the cross-suit adverse to the libellant, even if'the decree is entered before the original suit is heard, will not • impair the right of the respondent in the original suit to avail himself of every legal and just defence to the charge there made which is regularly set up in the answer, for the plain reason that the adverse decree in the cross-suit does not dispose of the answer in the original;suit. . . . Whether the controversy pending is a suit, in equity or in admiralty, a cross-bill or libel is a bill or libel brought by a defendant in the shit against the plaintiff in the same suit, or' against other defendants in the original suit or against both, touching the matters in question in the original bill or libél. It is brought in the admiralty to obtain full and complete relief to all parties as to the matters charged in the original libel; and in equity the cross-bill is sometimes used to obtain a discovery of facts.' New and distinct matters, not included in the original bill or libel, should not be embraced in the cross-suit as they cannot be properly examined in such a suit, for the reason that they constitute the proper subject-matter of a new original bill or libel. Matters auxiliary to the pause, of action set- forth in the original libel or bill may be included in\" the cross-suit, and no others, as the cross-suit is, in general, incidental to, and dependent upon, the original suit. Ayres v. Carver, 17 How. 595; Field v. Schieffelin, 7 Johns. Ch. 252; Shields v. Barrow, 17 How. 145.” 'In this case the cross-libel was, as stated therein, “across-' libel brought under admiralty rule 53 of the Supreme Court of the United States, being a counterclaim arising out of the same cause .of action as the suit brought by the United States against' the said schooner William H. Davenport in a cause of collision, by a libel filed November 3, 1899, in said court.” The 53d admiralty rule" }, { "docid": "11345415", "title": "", "text": "facts of the incorporation of the Rickey Land & Cattle Company, covering the whole field of its objection to the proceedings herein instituted by the several parties. The affidavits are quite lengthy. It is not deemed necessary to quote them in haác verba, but a reference thereto will be made in order to illustrate the points upon which the corporation relies for a full and complete defense to all the suits and proceedings instituted by the respective complainants. The demurrers in all the cases are based upon the proposition that the bills of complaint or cross-bills show that the complainants are not entitled to the relief prayed for against the defendant; that the bills are without equity; and that the said bills are uncertain in this: that it cannot be ascertained therefrom what issues are tendered, showing, or tending to' show, that the suits brought by defendant in Mono county, Cal., present the same issues which were tendered in the bill of complaint of Miller & Lux v. Rickey et al. in this court. In addition to these propositions, in some of the other classes of cases the demurrer to the cross-bill is based upon the ground that it does not appear that this court has any jurisdiction over the subject-matter of the controversy in said cross-bill; that the facts set forth in said cross-bill are independent of, distinct and different from, any controversy set out in the original bill, and is an attempt to interpose a new controversy between cross-complainant and this defendant, both of whom are co-defendants in the original bill; that said cross-bill is multifarious, in that it is brought in regard to matters having no connection with the subject-matter of the original bill, and not proper to be investigated in this suit; that several defendants in the original suit are not made parties to this cross-bill; that there is a misjoinder of parties plaintiff, in that several parties have been joined as parties plaintiff who have no common interest or community of interest or joint interest in the water, the subject-matter of the cross-complaints, and that" }, { "docid": "2593097", "title": "", "text": "WOLVERTON, District Judge (after stating the facts). The single question urged here, in addition to those determined in the case of Rickey Land & Cattle Company v. Miller & Lux, 152 Fed. 11, is whether the appellees have a standing in court whereby to maintain their cross-bills as against the appellant. The appellant and the appel-lees are all codefendants in the cause of Miller & Lux v. Rickey et al., and all citizens of the state of Nevada; and in their cross-bills, it will be seen, the appellees do not dispute the right of diversion by Miller & Lux, nor claim that its diversions are in any way subordinate to theirs, but they do allege that the appropriations of Rickey, whatever they may be, are subject and subordinate to theirs, and pray that the Rickey I and & Cattle Company may be enjoined from diverting the waters of Walker river in any manner to their detriment or injury. The nature and purpose of a cross-bill in equity have been clearly determined. Says Mr. Justice Nelson, in Ayres v. Carver, 17 How. 591, 395, 15 L. Ed. 179: “A. cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to 'obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. It is said by Lord ÍTardwicke that both the original and cross-hill constitute but one suit, so intimately are they connected together.” ’ To the same purpose is Ex parte Railroad Co., 95 U. S. 221, 225, 24 L- Ed." }, { "docid": "11955964", "title": "", "text": "up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final decree in the same suit on both the original and the cross-claims.” Referring to rule 30, the Supreme Court of the United States, in American Mills Co. v. American Surety Co. of New York, 260 U. S. 360, 365, 43 S. Ct. 149, 151, 67 L. Ed. 306, said: “The counterclaim referred to in the first part of the paragraph must therefore be an equitable counterclaim, one which like the set-off or counterclaim referred to in the next clause could be made the subject of an independent bill in equity. The counterclaim and the set-off and counterclaim in the two clauses are in pari materia, except that the first grows out of the subject-matter of the bill and the other does not. That which grows out of the subject-matter of the bill must be set up in the interest of an end of litigation. That which does not may be set up if the defendant wishes in one proceeding in equity quickly to settle all equitable issues capable of trial between them in such a proceeding, even though they are not related.” The subject-matter of the suit of the trustee was the ownership of the deposit. The claim which the bank now seeks to offset is upon the note of the bankrupt. This note did not arise out of the same transaction as the deposit. The bank elected not to assert its right of set-off against the trustee in the original suit. It permitted that suit to be finally determined. A decree is final when it terminates the litigation on the merits of the cáse and leaves nothing to be done but to enforce, by execution, what has been determined. St. Louis, I. M. & S. R. R. Co. v. Southern Express Co., 108 U. S. 24, 28, 2 S. Ct. 6, 27 L. Ed. 638; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 S. Ct. 15, 27 L. Ed. 73; Grant v. Phœnix Mut. Life Insurance Co., 106 U. S." }, { "docid": "22058065", "title": "", "text": "an adequate remedy at law. The cases of Insurance Co. v. Bailey, 13 Wall. 616, 622, and Cable v. United States Life Insurance Co., 191 U. S. 288, 306, 307, settle that. Respondent therefore relies solely on the waiver of this defect by the Mills Company in doing what it did in the District Court. A defendant in a bill of equity may waive such a defect. McGowan v. Parish, 237 U. S. 285, 295; Re Metropolitan Railway Receivership, 208 U. S. 90, 109, 110; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 380; Reynes v. Dumont, 130 U. S. 354, 395; 1 Daniell’s Ch. Pr. (4th Amer. ed.) 555. Did petitioner waive it? It made the objection seasonably both by answer and by motions to dismiss. The motions were denied without prejudice to their renewal when the cause should come-on for hearing before the trial court. The defendant instead\" of renewing its motion to dismiss or insisting on the sufficiency of the first defense of its answer, introduced proof of its right to an affirmative judgment for the full amount of the guaranty, putting the written instrument in evidence. This certainly constituted a waiver unless the contention of the defendant, the petitioner here, that Equity Rule 30 required it to put in proof of its claim on penalty of being barred from prosecuting it at law, is sound. The relevant part of Rule 30 is as follows: “ The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might' be the subject of an independent suit in equity against him, and such set-off or counter-claim so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in. the same suit both on the original and cross-claims.” (Italics ours.) ’ The petitioner argues that must and may. are here set over against one another for the purpose of" }, { "docid": "7473776", "title": "", "text": "railroad as an entirety, and that, is the theory of the bill. The premises and property against which it is asserted is the railroad, its motive and lighting apparatus and appliances, poles, ties, track, and other structure, including that, part thereof located in the power house, the cost of which is not stated. The language of the section, and the considerations stated in Rutherfoord v. Railroad Go., cited supra, forbid the application of this statute. It results, therefore, from the concession of the complainant limiting its claim to the sum of $861.04, that the circuit court had no jurisdiction of the subject-matter, and should have dismissed the hill. This conclusion equally disposes of Tillotson’s “cross hill,” so called. If it he a cross bill, it is a mere auxiliary and a dependency of the original, and the dissolution of the original hill necessitates the same disposition of its incident. Cross v. De Valle, 1 Wall. 1, 14; Dows v. City of Chicago, 11 Wall. 108, 112. But it would be a misnomer to call this bill a cross bill. Beyond the fact that it names the complainant as a party, it has but a nominal relation to the subject-matter of the original bill. It tenders no defense to its aver-ments, and makes no issue with complainant respecting the matters charged therein,' but seeks to introduce a new controversy, not at; all necessary to be decided in order to have a final decree on the 'case presented by the bill. In Ayres v. Carver, 17 How. 591, the original bill of complaint sought to enforce an alleged title to several tracts of land claimed by different defendants. Two of the defendants, after answering, filed a cross bill against complainant and the other defendants, setting forth the substance of the original bill, and 'then charging that they had obtained a title to the several tracts in controversy, or portions of them, long prior to the title claimed by their codefendants, prayed that their cross bill might be heard at the same time with the original bill, and that any claim that complainant" }, { "docid": "22928160", "title": "", "text": "the parties interesxecl in it before it, that court was bound to do complete justice between all the parties, on the footing of these rights, and give to the plaintiff in error the priority over all other creditors to which, by virtue of his proceedings, and as prayed for in his petition of intervention, he was entitled.” The case most like the ease at bar is that of Morgan’s L. & T. Railroad & Steamship Co. v. Texas Cent. Ry. Co., 137 U. S. 171, 11 Sup. Ct. 61. In this suit the complainant company, a citizen of Louisiana, filed a bill in a circuit court of the United States silting in Texas against the Texas Central Railway Company, a citizen of Texas, against the Farmers’ Loan & Trust Company, a citizen of New York, and the Metropolitan Trust Company, a citizen of Yew York, seeking to have certain debts owing by the Texas Central Railway Company to it declared a lien on the railroad of the railway company, prior* in right to mortgages upon the same road held by the other defendants the two trust companies. A receiver had been appointed in the original suit. Subsequently the Farmers’ Loan & Trust Company hied its cfoss bill against the complainant and its codefend-ants, including the Metropolitan Trust Company. As the two trust companies were citizens of the same state,- — -New York, — the jurisdiction of the court could not be maintained to give relief on the cross bill, if it depended on diverse citizenship. Objection was taken to the action of the court in granting foreclosure upon the cross bill, but the objection was not sustained in the supreme court of the .United States. Said the chief justice, on page 201, 137 U. S., and page 61, 11 Sup. Ct.: “It may be that, so far as it sought the further aid of the court beyond the purposes of defense to the original bill, it was not a pure cross bill, but that is immaterial. The subject-matter was the same, although the complainant in the cross bill asserted rights," }, { "docid": "16786117", "title": "", "text": "a discovery of facts.' New and distinct matters, not included in the original bill or libel, should not be embraced in the cross-suit as they cannot be properly examined in such a suit, for the reason that they constitute the proper subject-matter of a new original bill or libel. Matters auxiliary to the pause, of action set- forth in the original libel or bill may be included in\" the cross-suit, and no others, as the cross-suit is, in general, incidental to, and dependent upon, the original suit. Ayres v. Carver, 17 How. 595; Field v. Schieffelin, 7 Johns. Ch. 252; Shields v. Barrow, 17 How. 145.” 'In this case the cross-libel was, as stated therein, “across-' libel brought under admiralty rule 53 of the Supreme Court of the United States, being a counterclaim arising out of the same cause .of action as the suit brought by the United States against' the said schooner William H. Davenport in a cause of collision, by a libel filed November 3, 1899, in said court.” The 53d admiralty rule provides .that the respondents in a cross-libel shall give security to respond in damages, unless otherwise directed, and that all proceedings on the original libel shall be stayed until such security shall be given. The cross-libel and the.answer to the libel were consistent, the subject-matter of the libel and the cross libel was the same, and the latter, in no proper sense, introduced new and distinct matters. The cross-libel occupied the same position as a cross-bill in equity, and .the general rule is that the original bill and the cross-bill should be heard together and disposed of by one decree, although, where the cross-bill asks affirmative relief, and is therefore not a pure cross-bill, the dismissal of the original bill may not dispose of the cross-bill, which may be retained for a complete determination of the cause. Holgate v. Eaton, 116 U. S. 33, illustrates this. There the bill and. cross-bill were heard together, and it was held that the original bill must be dismissed, but that relief might be accorded on the cross-bill. The" }, { "docid": "7473783", "title": "", "text": "of replevin and of the suit in equity in the state courts, iu the hitter of which, as the record shows, Tillotson was still under injunction from interfering with the operation of the railroad, to the control of which he asserted substantially the same rights as those pleaded in his cross hill here. That litigation appears to be still pending, and constitutes an insuperable obstacle to \"the jurisdiction of the circuit court of the 1’nited States to appoint a receiver of the railroad, or otherwise interfere with the possession required by the action of replevin, or with the effect of the injunction, or in any manner to nullify its action in the equitable suit. Every issue presented by the cross bill as to the respective rights of Tillotson, appellant, Carrothers, and Warner, was open to contest, in either the action of replevin or the suit in .equity in the state court, if not in \"both. Taylor v. Carryl, 20 How. 594; Buck v. Colbath, 8 Wall. 341; Society v. Hinman, 13 Fed. Rep. 161. For these reasons it is obvious that the circuit court had no jurisdiction of this suit or its dependency, the cross bill, and its orders awarding the injunction, and its refusal to dissolve the same, were erroneous, and must be vacated and set aside, and the original and cross bills should be dismissed without prejudice, and with costs of the circuit court and of this court to appellant, against Tillotson on the cross bill, and against complainant on the original bill. While it is the general rule that, where a cause is dismissed for want of jurisdiction, costs are not awarded to the prevailing party, nevertheless, by section 5 of the act of March 3, 1875, (18 Stat. 472,) the circuit court is required, in cases coming within that section improperly brought in or removed to that court, “to make such order as to costs as shall be just.” This was manifestly designed 'to avoid the application of the general rule above referred to. Railroad Co. v. Swan, 111 U. S. 387, 388, 4 Sup. Ct." }, { "docid": "3603708", "title": "", "text": "nothing, be refunded to them by Craig, who does not deny having received it as alleged. The second position is that the diverse citizenship having been eliminated by the consent decree, Dorr and Craig both being citizens of West Virginia, the United States Circuit Court had no jurisdiction; the court has been devested of jurisdiction of the cross-bill. The same question was raised in Morgan Co. v. Texas Central R. R. Co., 137 U. S. 200, 11 Sup. Ct. 61, 34 L. Ed. 625, and decided adversely to appellant's contention, in 5th Syl. and opinion of the Chief Justice. Jurisdiction of a cross-bill is not dependent on diverse citizenship, and, having once acquired jurisdiction, a court of equity will administer the estate, do complete equity between the parties. A cross-bill is ancillary to the original bill. Morgan v. R. R., ut supra; In re Tyler, 149 U. S. 181, 13 Sup. Ct. 785, 37 L. Ed. 689; Rouse v. Letcher, 156 U. S. 49, 15 Sup. Ct. 266, 39 L. Ed. 341; Carey v. Houston & Texas Ry., 161 U. S. 133, 16 Sup. Ct. 537, 40 L. Ed. 638. Appellant in his argument seeks to treat, the cross-bill as an original bill, ignoring all the authorities on the subject. He contends there was no proper service of the subpoena. We are of a different opinion, but, admitting for the sake of the argument the service was defective, Craig appeared, filed a general demurrer, a plea in abatement, and an answer, and took depositions on a general appearance, without any notice or note that he was appearing under protest, and entering a special appearance for a special purpose. This would amount to a waiver of any irregularity in such service. This about answers all the questions raised in 12 exceptions found in the record, all of which are to the cross-bill, service of subpoena thereunder. The only other exception is thus slated: “Thirteenth. The court erred in rendering its decree of January 20, 1905, because the same is contrary to the law and the evidence adduced in the cause.” There" }, { "docid": "2593098", "title": "", "text": "in Ayres v. Carver, 17 How. 591, 395, 15 L. Ed. 179: “A. cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to 'obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. It is said by Lord ÍTardwicke that both the original and cross-hill constitute but one suit, so intimately are they connected together.” ’ To the same purpose is Ex parte Railroad Co., 95 U. S. 221, 225, 24 L- Ed. 355, where it is said: “A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the action.” So Sanborn, Circuit Judge, says in Stuart v. Hayden, 72 Fed. 402, 410, 18 C. C. A. 618: “A cross-bill is brought either to aid in the defense of the original suit, or to obtain a complete determination of the controversies between the original complainant and the cross-complainant over the subject-matter of the original bill. If its purpose is different from this, it is not a cross-bill, although it may have a connection with the general subject of the original bill. It may not interpose new controversies between codefendants to the original bill, the decision of which is unnecessary to a complete determination of the controversies between the complainant and the defendants over the subject-matter of the original bill. If it does so, it becomes an original bill, and must be dismissed," }, { "docid": "11345421", "title": "", "text": "has already been said, it is unnecessary to take up seriatum the other cross-bills filed against the Rickey Rand & Cattle Company. The truth is that the principles already announced show that, although there may be a difference in some of the facts, there is none in the application of the principles of law to all the cross-bills. They stand virtually upon the same plane, and are governed by the same rules. The suggestion is made that this court has no jurisdiction of certain cross-bills because the parties thereto are citizens of the same state. This is without merit. The cross-bills are all ancillary to the original suit of Miller & Lux v. Rickey et al. (No. 731). The principle is well settled that a cross-bill of this character is not an original suit, but is ancillary and dependent, supplementary, merely, to the original suit out of which it arises, and is maintained without reference to the citizenship or residence of the parties. It does not depend upon the citizenship of the parties, but on the subject-matter of the litigation. Krippendorf v. Hyde; 110 U. S. 870, 281, 4 Sup. Ct. 27, 28 L. Ed. 145; Morgan’s Co. v. Texas Central Ry., 137 U. S. 171, 201, 11 Sup. Ct. 61, 34 L. Ed. 625; In re Tyler, 149 U. S. 164, 181, 13 Sup. Ct. 785, 37 L. Ed. 689; Root v. Woolworth, 150 U. S. 401, 413, 14 Sup. Ct. 136, 37 L. Ed. 1123; Broadis v. Broadis (C. C.) 86 Fed. 951, 954; Home Ins. Co. v. Virginia C. C. Co. (C. C.) 109. Fed. 681, 687. The fact that some of the cross-hills were not filed until after the service of process was made upon the parties in the Mono county suits is wholly immaterial. The jurisdiction of this court does not in any manner depend upon the question as to the service of process in the Mono county suits. The only jurisdiction which this court is called upon to assert was obtained in the proceedings had in 'the suit of Miller & Rux v. Rickey" }, { "docid": "3604632", "title": "", "text": "by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other. Neither can one take property from the custody of the other by replev-in or any other process, for this would produce a conflict extremely embarrassing to the administration of justice.” So in Root v. Woolworth, 150 U. S. 401, 410, 14 Sup. Ct. 136, 138, 37 L. Ed. 1123: “It is well settled that a court of equity has Jurisdiction to carry into effect its own orders, decrees, and judgments, which remain unreversed, when the subject-matter and the parties are the same in both proceedings. The general rule upon the subject is thus stated in Story’s Equity Pleading (9th Ed.) § 338: ‘A supplemental bill may also be liled, as well aider as before a decree; and the bill, if after a decree, may be either in aid of the decree, that it may be carried fully into execution; or that proper directions may be given upon some matter omitted in the original bill, or not put in issue by it, or by the defense made to it; or to bring forward parties before the court; or it may be used to impeach the decree, which is the peculiar case of a supplemental bill in the nature of a bill of review, of which we shall treat hereafter. But where a supplemental bill is brought in aid of a decree, it is merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind on a different principle; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.’ ” And again, in French, Trustee, v. Hay, 22 Wall. 250, 22 L. Ed. 857, Mr. Justice Swayne, speaking for the court: “It (the bill then pending) is auxiliary and dependent in its character, as much so as if it were a bill of review. The court having jurisdiction in" }, { "docid": "5310856", "title": "", "text": "Pav. Co. v. Morris (C. C. A. 8) 132 F. 945, 948, 67 L. R. A. 761; Boatmen’s Bank of St. Louis v. Fritzlen (C. C. A. 8) 135 F. 650, 667; Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294, 304, 5 S. Ct. 135, 28 L. Ed. 729. Under the present record, we must assume that, when the district court proceeded to trial in the instant case, the action in the district court of Seminole county was no longer pending and that no decree had been entered therein, with which the deeree in the instant ease would constitute an undue interference. The second proposition is predicated upon the contention that the court was without jurisdiction over the counterclaim filed by Mathis against his codefendants and against Maceo Raines. The counterclaim, constituted what was formerly known, in the equity practice, as a cross-hill. It involved the validity of the resale tax deed and the title, if any, which passed to Mathis by virtue thereof, and by it Mathis sought to establish affirmatively the validity of such resale tax deed and his title thereunder, as against Maceo Raines and his codefendants. In her original bill of complaint, Maeeo Raines tendered, as an issue, the question of the validity of such tax deed and the title of Mathis thereunder. A cross-bill is a pleading filed by a defendant in a suit against the plaintiff in the same suit or against the other defendants in the same suit, or against both, touching the matters in question in the original bill. It must be either in aid of a defense to the original bill or to obtain full relief to all parties touching the matters of the original bill. Morgan’s Co. v. Texas Cent. Ry., 137 U. S. 171, 200, 201, 11 S. Ct. 61, 34 L. Ed. 625; Landon v. Public Utilities Co. (D. C.) 234 F. 152, 167; 21 C. J., p. 498, § 597. Such a cross-bill is ancillary to the original suit and, if the court has jurisdiction of the ease made by the original bill, it has jurisdiction" }, { "docid": "2593099", "title": "", "text": "355, where it is said: “A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the action.” So Sanborn, Circuit Judge, says in Stuart v. Hayden, 72 Fed. 402, 410, 18 C. C. A. 618: “A cross-bill is brought either to aid in the defense of the original suit, or to obtain a complete determination of the controversies between the original complainant and the cross-complainant over the subject-matter of the original bill. If its purpose is different from this, it is not a cross-bill, although it may have a connection with the general subject of the original bill. It may not interpose new controversies between codefendants to the original bill, the decision of which is unnecessary to a complete determination of the controversies between the complainant and the defendants over the subject-matter of the original bill. If it does so, it becomes an original bill, and must be dismissed, because there cannot be tw.o original bills in the same case.” Cross v. De Valle, 1 Wall. 1, 17 L. Ed. 515; Rubber Co. v. Goodyear, 9 Wall. 807, 19 L. Ed. 587; Young v. Colt, 2 Blatchf. 373, Fed. Cas. No. 18,155; Stonemetz Printers’ Mach. Co. v. Brown Folding-Mach. Co. (C. C.) 46 Fed. 851. Counsel for appellant expressly admit that, if the cross-hills are ancillary in purpose and character, they should be entertained regardless of the citizenship of the parties defendant. This reduces the inquiry simply to whether such cross-bills are, in legal contemplation, ancillary to the original bill, or whether they introduce matter foreign to, and disconnected with, the subject-matter of the original suit. In the light of the foregoing authorities, it may well be premised that, if the cross-bills operate defensively in behalf of the appellees in some substantial way; then they are pertinent, and afford appellees a standing whereby to assert such rights as will protect them against the suit of complainant in such cause, and this although they might" } ]

[ { "docid": "9878418", "title": "", "text": "be drunk on the premises where sold. 76 Cong.Rec. 4138 (1933). Section Three was deleted because of Congressional concern that its grant of concurrent power to regulate liquor to Congress would be construed to support the supremacy of federal regulation of liquor sales. As Senator Wagner pointed out, “We have expelled the system of national control through the front door . . . and readmitted it forthwith through the back door of Section 3.” 76 Cong.Rec. 4145 (1933). This would have been the “ironical result of an amendment designed to restore to the states control of their liquor problem.” Id. With these concerns in mind, Section Three was deleted in the final version of the amendment. Thus, any analysis of the validity of a state statute regulating liquor does not proceed via the traditional route for testing the constitutionality of state statutes. We must proceed from a vantage point of presumed state power and then ask whether there are any limitations to that power, always keeping in mind that where intoxicating liquors are concerned, great deference must be accorded a comprehensive state regulatory scheme. This unique constitutional structure has created problems for the courts, giving rise to seemingly conflicting analyses. The frontiers of this state power are unclear. While the Supreme Court has stated that “a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders,” Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293,1297, 12 L.Ed.2d 350 (1964), it has also indicated that the “second section of the Twenty-first Amendment has not operated totally to repeal the Commerce Clause in the area of the regulation of traffic in liquor.” Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966). And so, while the Twenty-first Amendment “has not given the states plenary and exclusive power to regulate the conduct of persons doing an interstate liquor business outside their boundaries,” United States v. Frankfort Distilleries, 324 U.S. 293, 299, 65 S.Ct. 661, 89 L.Ed. 951" } ]

[ { "docid": "6827111", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before THORNBERRY, GODBOLD and FAY, Circuit Judges. PER CURIAM: On May 19, 1980, - U.S. -, 100 S.Ct. 2914, 66 L.Ed.2d 806 the Supreme Court of the United States vacated our opinion, 596 F.2d 638 (5th Cir. 1979), and remanded this case to us for further consideration in light of California Retail Liquor Dealers Assn. v. Midcal Aluminum Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). In discussing the difficulty involved in balancing federal and state powers and interests, the Supreme Court stated in Midcal, These decisions demonstrate that there is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situ ations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a “concrete case.” Hostetter v. Idlewild Liquor Corp., 377 U.S. at 332, 84 S.Ct. at 1298, 12 L.Ed.2d 350. -U.S. at-, 100 S.Ct. at 946. In accord with the directions of the Supreme Court, we have reviewed this matter again. We conclude that no federal interests of sufficient magnitude exist in support of ATF Ruling 74-6 to outweigh the state interests as reflected in Florida Statute § 561.42(6). In other words, in balancing the conflicting state and federal interests under Midcal, we find the balance in favor of the state. The panel opinion is reinstated and the holding of the district court REVERSED." }, { "docid": "1161367", "title": "", "text": "410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973); Sandbach v. City of Valdosta, 526 F.2d 1259 (5th Cir.1976); Block v. Thompson, 472 F.2d 587 (5th Cir.1973). The Twenty-first Amendment to the United States Constitution augments the broad powers of the states to regulate liquor distribution within their boundaries. United States v. Frankfurt Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945). As observed by the Court in Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), “[t]he Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” 100 S.Ct. at 946. Commensurate with the heightened powers of the states to regulate the sale and distribution of intoxicating liquor, the state legislatures are empowered to delegate to local authorities control over distribution of intoxicating liquor. Rohrbacher v. Mayor and Aldermen of the City of Jackson, 51 Miss. 735 (1875); Ford v. Easterling, 183 Miss. 575, 184 So. 153 (Miss.1938); Miller v. Board of Supervisors of Forest County, 230 Miss. 849, 94 So.2d 604 (1957). The Mississippi Legislature has granted the municipalities of this state the power to regulate the sale of alcoholic beverages with the passage of Miss.Code Ann. § 67-3-65 (1972) which provides: Municipalities may enforce such proper rules and regulations for fixing zones and territories, prescribing hours of opening and of closing, and for such other measures as will promote public health, morals, and safety, as they may by ordinance provide. The board of supervisors of any county may make such rules and regulations as to territory outside of municipalities as are herein provided for municipalities. Nothing in this chapter shall prohibit the governing body of any municipality from designating what territory surrounding churches and schools in said municipalities, and the board of supervisors of any county from designating what territory surrounding churches and schools outside of any municipality, in which light wines and beer shall not be sold or consumed. Pursuant to this broad grant of power over the" }, { "docid": "6034236", "title": "", "text": "81 L.Ed. 38 (1936). The Court also posed, as a rhetorical question, “Can it be doubted that a state might establish a state monopoly of the manufacture and sale of beer ...,” id. at 63, 57 S.Ct. at 79, something as antithetical to the Sherman Act as could be imagined. Discussion continued in this vein until Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). Although Justice Stewart there made the frequently cited declaration quoted in the margin , id. at 332, 84 S.Ct. at 1298, and also said that a contention that the Twenty-First Amendment had somehow operated to “repeal” the Commerce Clause “would be patently bizarre and is demonstrably incorrect”, id. at 331-32, 84 S.Ct. at 1297-98, the actual decision was the unsurprising one — although it did surprise two Justices — that the Amendment did not empower New York to prohibit the sale at John F. Kennedy International Airport of tax-free liquor for “ultimate delivery and use ... in a foreign country”, id. at 333, 84 S.Ct. at 1299. Justice Stewart’s remarks in Idlewild must also be read along with his observation, only two terms later, that in a case concerning liquor destined for use, distribution or consumption exclusively in New York — indeed another section of the very statute here at issue — “the Twenty-First Amendment demands wide latitude for regulation by the State.” Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966). However, in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 106-10, 100 S.Ct. 937, 943-46, 63 L.Ed.2d 233 (1980), the Court gave further attention to the relation of state powers under the Twenty-First Amendment and the commerce power and, after noting that the Amendment gave the states “virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system”, id. at 110, 100 S.Ct. at 946, concluded that: Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to" }, { "docid": "8958778", "title": "", "text": "retains authority under the commerce clause to regulate even interstate commerce in liquor); McBeath, 11 F.3d at 555. See generally Susan E. Brownlee, Economic Protection for Retail Liquor Dealers: Residency Requirements and the Twenty-First Amendment, 1990 Columbia Business L.Rev. 317 (1990); Sidney J. Spaeth, The Twenty-First Amendment and State Control Over Intoxicating Liquor: Accommodating the Federal Interest, 79 California L.Rev. 161 (Jan.1991);- Susan M Johnson, From Bacchus to Our House: Taxation of the Oregon Wine Industry under Current Twenty-First Amendment and Commerce Clause Jurisprudence, 73 Or. L.Rev. 711 (1994); and Vijay Shanker, Note, Alcohol Direct Shipment Laws, The Commerce Clause, and the Twenty-First Amendment, 85 Va. L.Rev. 353 (March 1999). In Hostetter v. Idlewild, the Supreme Court observed, “Like other provisions of the Constitution, each must be considered in light of the other and in the context of the interests at stake in any concrete case.” 377 U.S. at 332, 84 S.Ct. 1293. In restricting the scope of power provided to the states by the twenty-first amendment, even under the traditional “core” powers of transporting and importing for use within a state’s borders expressly stated in the twenty-first amendment, the Supreme Court increasingly considered the relationship between and effect on each other of federal and state interests. See, e.g., California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980)(California statutory wine-pricing scheme not shielded by the twenty-first amendment from Sherman Act proscriptions against such anticompetitive pricing arrangements); Department of Revenue v. James B. Distilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964) (expressly rejecting idea that the twenty-first amendment overrode the import-export clause). “Stress[ing] that important federal interests in liquor matters survived the ratification of the Twenty-first Amendment,” the Supreme Court stated in Midcal Aluminum,- [T]here is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to" }, { "docid": "8958779", "title": "", "text": "and importing for use within a state’s borders expressly stated in the twenty-first amendment, the Supreme Court increasingly considered the relationship between and effect on each other of federal and state interests. See, e.g., California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980)(California statutory wine-pricing scheme not shielded by the twenty-first amendment from Sherman Act proscriptions against such anticompetitive pricing arrangements); Department of Revenue v. James B. Distilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964) (expressly rejecting idea that the twenty-first amendment overrode the import-export clause). “Stress[ing] that important federal interests in liquor matters survived the ratification of the Twenty-first Amendment,” the Supreme Court stated in Midcal Aluminum,- [T]here is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a “concrete case.” Midcal Aluminum, 445 U.S. at 108, 110,' 100 S.Ct. 937 citing Hostetter v. Idlewild, 377 U.S. at 332, 84 S.Ct. 1293. Indeed, the Supreme Court observed, “ ‘Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in light of the other and in the context of the issues and interests at stake in any concrete case.’ ” Id. at 109, 100 S.Ct. 937 citing Hostetter, 377 U.S. at 332, 84 S.Ct. 1293. Characterizing the new approach as a “pragmatic effort to harmonize state and federal powers,” 445 U.S. at 109, 100 S.Ct. 937 the Court observed, “The federal interest in. enforcing the national policy in favor of competition is both familiar and substantial.” Id. at 110, 100 S.Ct. 937. In Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81" }, { "docid": "19384543", "title": "", "text": "In California Retail Liquor Dealers v. Midcal Aluminum, 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), the Supreme Court stated that “[t]he Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor an how to structure the liquor distribution system.” Midcal, 445 U.S. at 110, 100 S.Ct. 937; see also North Dakota v. United States, 495 U.S. 423, 431, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990). However, in Midcal itself, as well as in a number of other cases, the Supreme Court made clear that the states’ authority in the matter of liquor-related regulation is not absolute. In Midcal, the Supreme Court held that California’s resale price maintenance system, by which wine suppliers were required to establish resale prices below which merchants were not permitted to sell, violated the Sherman Act and could not be enforced. The Court found that the asserted state interest in promoting temperance and protecting the economic survival of small retailers was less substantial (at least in part because not supported by evidence that resale price maintenance schemes effectively promote such interests) than the national policy in favor of competition. Midcal makes clear that even with respect to state regulation intended to strengthen state liquor distribution systems, the Twenty-first Amendment does not entirely displace federal commerce power. The conflict between state and federal authority at issue in Midcal involved the Sherman Act, and the Sherman Act is an exercise of Congress’ power under the Commerce Clause, the source of federal power which the Twenty-first Amendment most significantly displaces. In dealing with sources of federal power other than the Commerce Clause, the reach of the Twenty-first Amendment is far more limited. In Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984), for instance, the Court found that Oklahoma’s attempt to regulate liquor advertising appearing on cable television broadcasts originating out-of-state was preempted by FCC regulations and violated the Supremacy Clause. The Court held that when “a state regulation squarely conflicts with the accomplishment and execution of the full purposes of federal" }, { "docid": "3286145", "title": "", "text": "by reasonable nondiscriminatory alternatives.” New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 278, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988). However, the Supreme Court has made clear that the Twenty-first Amendment alters dormant Commerce Clause analysis of state laws governing the importation of alcoholic beverages. E.g., Granholm v. Heald, 544 U.S. 460, 488-89, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005). Ratified in 1933, the Twenty-first Amendment repealed the Eighteenth Amendment and ended Prohibition. Section 2 of the Amendment provides: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The purpose of section 2 was to protect certain core interests of the states in “promoting temperance, ensuring orderly market conditions, and raising revenue” through regulation of the production and distribution of alcoholic beverages. North Dakota v. United States, 495 U.S. 423, 432, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990) (plurality opinion). The Twenty-first Amendment is thus in tension with the Commerce Clause, as section 2 “grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” Granholm, 544 U.S. at 488, 125 S.Ct. 1885 (quoting Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980)) (internal quotation marks omitted). But state powers under the Twenty-first Amendment are not without limitation; the Amendment does not immunize all regulation of alcoholic beverages from Commerce Clause scrutiny. Id. State policies are only “protected under the Twenty-first Amendment when they treat liquor produced out of state the same as its domestic equivalent.” Id. at 489, 125 S.Ct. 1885. Most recently, in Granholm v. Heald, the Supreme Court addressed the difficulties inherent in the intersection of these two constitutional provisions. Analyzing the Wilson Act and the Webb-Kenyon Act — two pre-Prohibition statutes that influenced the drafting of section 2 of the Twenty-first Amendment — the Court concluded that section 2’s purpose was to return to the states only the Commerce" }, { "docid": "3178263", "title": "", "text": "state alcohol regulations. To the contrary, there the Court explicitly “declined” the invitation to overrule or limit Bacchus, because “Bacchus does not stand alone in recognizing that the Twenty-first Amendment did not give the States complete freedom to regulate where other constitutional principles are at stake.” Heald, 544 U.S. at 488, 125 S.Ct. 1885. “A retreat from Bacchus would also undermine Brown-Forman and Healy [v. The Beer Institute, 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) ].” Id. The Court was thus unwilling to undermine those precedents. Notwithstanding the Supreme Court’s express refusal to question its precedent on the interaction between the Commerce Clause and the Twenty-first Amendment, TPSA opines that Heald implicitly changed the standard for analyzing Commerce Clause challenges to state alcohol regulations. In the course of addressing the constitutionality of residency requirements on out-of-state producers, the Court addressed the objection “that any decision invalidating the [states’] direct-shipment laws would call into question the constitutionality of the three-tier system.” Id. at 489, 125 S.Ct. 1885. The Court rejected that idea: This does not follow from our holding. “The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” [California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980)]. A State which chooses to ban the sale and consumption of alcohol altogether could bar its importation; and, as our history shows, it would have to do so to make its laws effective. States may also assume direct control of liquor distribution through state-run outlets or funnel sales through the three-tier system. We have previously recognized that the three-tier system itself is “unquestionably legitimate.” North Dakota v. United States, 495 U.S. [423,] 432, 110 S.Ct. 1986, 109 L.Ed.2d 420 ... [ (1990) (plurality opinion)]. See also id., at 447 [110 S.Ct. 1986] (Scalia, J., concurring in judgment) (“The Twenty-first Amendment ... empowers North Dakota to require that all liquor sold for use in the State be purchased' from a licensed in-state wholesaler”). State" }, { "docid": "6173454", "title": "", "text": "authorize a wall prohibiting equal competition of non-Texans in the retail liquor business. 2. The Twenty-first Amendment The Defendants posit an alternative argument: even if the statutes violate traditional Commerce Clause principles, the Twenty-first Amendment imbues the States with carte blanche authority to manage the flow of alcohol within their borders. Section 2 of that Amendment provides: “The transportation or importation into any State ... for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const.Amend. XXI, § 2. The assertion that § 2 of the Twenty-first Amendment automatically trumps the rigors of the Commerce Clause cannot stand: To draw a conclusion ... that the Twenty-first Amendment has somehow operated to “repeal” the Commerce Clause wherever regulation of intoxicating liquors is concerned would ... be an absurd oversimplification. If the Commerce Clause had been pro tanto “repealed,” then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331-332, 84 S.Ct. 1293, 1298, 12 L.Ed.2d 350 (1964). Older caselaw embraced the broad proposition that the Amendment had granted the States almost unfettered authority to regulate commerce in intoxicating liquors unconstrained by negative Commerce Clause restrictions. See, for example, State Board of Equalization v. Young’s Market Co., 299 U.S. 59, 62-63, 57 S.Ct. 77, 78-79, 81 L.Ed. 38 (1936) and its progeny. This is no longer the end of the matter. While subsequent Supreme Court opinions have at times alluded back to the Young’s Market view that the Amendment confers “virtually complete control over ... how to structure the liquor distribution system,” Cal. Retail Liquor Dealers Ass’n v. Midcal Alum., 445 U.S. 97, 110, 100 S.Ct. 937, 946, 63 L.Ed.2d 233 (1980), this unique power is not absolute and must coexist with Congress’ power to regulate commerce. In Bacchus, which shared the instant ease’s focus on states’ authority to regulate liquor unconstrained by the negative Commerce Clause, the Supreme Court put it succinctly: “It is by" }, { "docid": "3960008", "title": "", "text": "need not rest on a holding that go-go dancing is not protected speech, for Walker intended to establish such dancing in a bar. This zoning ordinance “come[s] to us, not in the context of censoring a dramatic performance in a theater,” but rather in a context of regulating the activities that may be conducted at the Last Chance Lounge, a bar licensed to sell liquor by the drink. California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972). States have authority under the Twenty-first Amendment to impose an almost limitless variety of restrictions on drinking establishments such as the Last Chance Lounge. The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a “concrete case.” California Retail Liquor Dealers Ass’n. v. Midcal Aluminum, 445 U.S. 97, 110, 100 S.Ct. 937, 945-46, 63 L.Ed.2d 233 (1980). Faced with “concrete ease[s]” remarkably similar to the present one, the Supreme Court has deferred to the State’s power to regulate. Thus, for example, in California v. LaRue, the Court sustained California liquor regulations that prohibited, among other things, the exposure of any portion of a person’s genitals or anus, whether live or depicted in films or pictures, in any establishment licensed to sell liquor by the drink. 409 U.S. 109, 111-12, 118-19, 93 S.Ct. 390, 393-94, 397-98, 34 L.Ed.2d 342 (1972). Although the California regulations concerned slightly more explicit displays of human body parts than those that call the Kansas City zoning ordinance into play — go-go girls in Kansas City must at least cover their genitals and areolas — the LaRue Court’s reasoning extends well beyond the facts of that case. The Court explained: While the States, vested as they are with general police power, require no specific grant of authority in" }, { "docid": "9123471", "title": "", "text": "the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.\" Granholm , 544 U.S. at 488, 125 S.Ct. 1885 (emphasis added) (quoting Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc. , 445 U.S. 97, 110, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980) ). By using the word \"virtually,\" the Supreme Court noted that there are limits to a state's power. Additionally, immediately after making this statement, the Supreme Court qualified the type of control that is acceptable: \"A State which chooses to ban the sale and consumption of alcohol altogether could bar its importation; and, as our history shows, it would have to do so to make its laws effective. States may also assume direct control of liquor distribution through state-run outlets or funnel sales through the three-tier system.\" Id. at 488-89, 125 S.Ct. 1885. After noting the types of restrictions that are valid, the Supreme Court declared that other \"discrimination is contrary to the Commerce Clause and is not saved by the Twenty-first Amendment.\" Id. at 489, 125 S.Ct. 1885. In the preceding paragraph, the Supreme Court noted that \"the Twenty-first Amendment did not give the States complete freedom to regulate where other constitutional principles are at stake. ... [T]he Twenty-first Amendment does not immunize all laws from Commerce Clause challenge.\" Id. at 488, 125 S.Ct. 1885 (discussing Bacchus , Brown-Forman , and Healy ). Thus, contrary to the dissent's argument, the Fifth Circuit's reasoning is in line with the Supreme Court's determinations in Granholm -the Twenty-first Amendment does not validate a state legislature's discriminatory laws. Even after the Supreme Court decided Granholm , we have continued to rely on Bacchus . See Jelovsek , 545 F.3d at 437 (\"The parties, as well as the district court, spent a great deal of effort examining whether, and to what extent, Granholm applies to the cases before us. We believe Bacchus is also instructive in this case.\"). The dissent seems to argue that the Commerce Clause limits only state actions regarding alcohol distribution that regulate interstate activity, not" }, { "docid": "3286146", "title": "", "text": "as section 2 “grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” Granholm, 544 U.S. at 488, 125 S.Ct. 1885 (quoting Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980)) (internal quotation marks omitted). But state powers under the Twenty-first Amendment are not without limitation; the Amendment does not immunize all regulation of alcoholic beverages from Commerce Clause scrutiny. Id. State policies are only “protected under the Twenty-first Amendment when they treat liquor produced out of state the same as its domestic equivalent.” Id. at 489, 125 S.Ct. 1885. Most recently, in Granholm v. Heald, the Supreme Court addressed the difficulties inherent in the intersection of these two constitutional provisions. Analyzing the Wilson Act and the Webb-Kenyon Act — two pre-Prohibition statutes that influenced the drafting of section 2 of the Twenty-first Amendment — the Court concluded that section 2’s purpose was to return to the states only the Commerce Clause immunity provided by those two Acts. Id. at 483, 125 S.Ct. 1885. The Twenty-first Amendment was intended “to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods.” Id. at 484-85, 125 S.Ct. 1885. The Granholm Court set forth the test for determining the constitutionality of state liquor regulations. If the state measure discriminates in favor of in-state producers or products, the regulatory regime is not automatically saved by the Twenty-first Amendment simply by virtue of the special nature of the product regulated. See id. at 484-87, 125 S.Ct. 1885. Rather, if the court finds the law discriminatory, it will only be upheld if it reasonably advances legitimate state interests “that cannot be adequately served by reasonable nondiscriminatory alternatives.” Id. at 489, 125 S.Ct. 1885 (quoting Limbach, 486 U.S. at 278, 108 S.Ct. 1803) (internal quotation marks omitted). Applying this framework, the Granholm Court struck down" }, { "docid": "14877405", "title": "", "text": "after Hostetler, the Court continued what it described as a “pragmatic effort to harmonize state and federal powers.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 109, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). On one side of this balance, the Twenty-first Amendment granted the States “virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” Id. at 110, 100 S.Ct. 937. This virtually complete control over the structure of the liquor distribution system includes the States’ prerogative to establish the so-called “three-tier system.” Granholm, 544 U.S. at 466-67, 488-89, 125 S.Ct. 1885. In other words, a State may, at a minimum, require separation among the various levels of the distribution chain to control the importation and sale of liquor within its borders. See North Dakota v. United States, 495 U.S. 423, 428, 432, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990) (plurality opinion). On the other side, “when a State has not attempted directly to regulate the sale or use of liquor within its borders — the core § 2 power — a conflicting exercise of federal authority may prevail.” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 713, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984); see also Midcal, 445 U.S. at 110, 100 S.Ct. 937 (“Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations.”) (emphases added). In a decision involving a State’s resale pricing system for alcohol, the Court remarked that “[t]he question in each case is whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies.” 324 Liquor Corp. v. Duffy, 479 U.S. 335, 347, 107 S.Ct. 720, 93 L.Ed.2d 667 (1987) (internal quotation omitted). Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), established that “mere economic protectionism” is not a “clear concern” of the Twenty-first Amendment." }, { "docid": "14877404", "title": "", "text": "internal commerce of the State.” Id. at 333, 84 S.Ct. 1293. The Court said it would be “an absurd oversimplification” to describe the ratification of the Twenty-first Amendment as “somehow operating] to ‘repeal’ the Commerce Clause wherever regulation of intoxicating liquors is concerned.” Id. at 331-32, 84 S.Ct. 1293. The conclusion that the Twenty-first Amendment left Congress “with no regulatory power over interstate or foreign commerce in intoxicating liquor,” the Court continued, “would be patently bizarre and is demonstrably incorrect.” Id. at 332, 84 S.Ct. 1293. Instead, the Court reasoned that “[b]oth the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.” Id. Although the Court later observed that Hostetter’s language “may have come uncommonly close to hyperbole,” it affirmed that “the basic point was sound.” Granholm v. Heald, 544 U.S. 460, 487, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005). So after Hostetler, the Court continued what it described as a “pragmatic effort to harmonize state and federal powers.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 109, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). On one side of this balance, the Twenty-first Amendment granted the States “virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” Id. at 110, 100 S.Ct. 937. This virtually complete control over the structure of the liquor distribution system includes the States’ prerogative to establish the so-called “three-tier system.” Granholm, 544 U.S. at 466-67, 488-89, 125 S.Ct. 1885. In other words, a State may, at a minimum, require separation among the various levels of the distribution chain to control the importation and sale of liquor within its borders. See North Dakota v. United States, 495 U.S. 423, 428, 432, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990) (plurality opinion). On the other side, “when a State has not attempted directly to regulate the sale or use of" }, { "docid": "1161366", "title": "", "text": "the new authority. City of Jackson v. Holliday, 246 Miss. 412, 149 So.2d 525 (1963); Highland Village Land Co. v. City of Jackson, 243 Miss. 34, 137 So.2d 549 (1962). This is so because the jurisdiction of the new zoning authority attaches and that of the former zoning authority ceases when the territory is annexed. The ordinance here involved is one regulating the sale of beer, wine, and alcoholic beverages. Such an ordinance may be promulgated under the municipal police power or by virtue of specific power to regulate the sale of intoxicating liquors. Herbert v. Board of Supervisors of Carroll County, 241 Miss. 223, 130 So.2d 250 (1961). The police power confers upon the states and local governmental units broad regulatory authority over public health, welfare, and morals. Harper v. Lindsay, 616 F.2d 849 (5th Cir.1980). Pursuant to the police power, the discretionary right of the states to regulate liquor sales, a dimension of the police power, is extensive. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), reh. den. 410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973); Sandbach v. City of Valdosta, 526 F.2d 1259 (5th Cir.1976); Block v. Thompson, 472 F.2d 587 (5th Cir.1973). The Twenty-first Amendment to the United States Constitution augments the broad powers of the states to regulate liquor distribution within their boundaries. United States v. Frankfurt Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945). As observed by the Court in Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), “[t]he Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” 100 S.Ct. at 946. Commensurate with the heightened powers of the states to regulate the sale and distribution of intoxicating liquor, the state legislatures are empowered to delegate to local authorities control over distribution of intoxicating liquor. Rohrbacher v. Mayor and Aldermen of the City of Jackson, 51 Miss. 735 (1875); Ford v. Easterling, 183 Miss. 575, 184 So." }, { "docid": "19384542", "title": "", "text": "in the marketplace. Predictably, where termination of a distribution contract is not within the manufacturer’s sole discretion but instead must be justified to a court or administrative agency, the parties at the time of contracting would be far more inclined to articulate rights, duties and expectations, than where termination is entirely discretionary and need not be justified. For this reason, a limitation on the manufacturer’s right to terminate its distributor at will can be presumed to constitute a significant abridgment of the parties’ legitimate expectations at the time of contracting. Further, plaintiffs will likely be able to establish that retroactive implementation was not foreseeable. Although the wine and spirits industry is highly regulated, the Illinois Liquor Control Act of 1934 says nothing about the termination of at-will distribution agreements. Moreover, in a related industry, when Illinois enacted legislation regulating distributor termination rights, such regulations were not retroactive. See Beer Industry Fair Dealing Act, 815 ILCS 720/1 et seq. Moreover, the court rejects the argument that the Twenty-first Amendment puts this retroactive impairment beyond judicial scrutiny. In California Retail Liquor Dealers v. Midcal Aluminum, 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), the Supreme Court stated that “[t]he Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor an how to structure the liquor distribution system.” Midcal, 445 U.S. at 110, 100 S.Ct. 937; see also North Dakota v. United States, 495 U.S. 423, 431, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990). However, in Midcal itself, as well as in a number of other cases, the Supreme Court made clear that the states’ authority in the matter of liquor-related regulation is not absolute. In Midcal, the Supreme Court held that California’s resale price maintenance system, by which wine suppliers were required to establish resale prices below which merchants were not permitted to sell, violated the Sherman Act and could not be enforced. The Court found that the asserted state interest in promoting temperance and protecting the economic survival of small retailers was less substantial (at least in part because not supported by" }, { "docid": "6173455", "title": "", "text": "Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331-332, 84 S.Ct. 1293, 1298, 12 L.Ed.2d 350 (1964). Older caselaw embraced the broad proposition that the Amendment had granted the States almost unfettered authority to regulate commerce in intoxicating liquors unconstrained by negative Commerce Clause restrictions. See, for example, State Board of Equalization v. Young’s Market Co., 299 U.S. 59, 62-63, 57 S.Ct. 77, 78-79, 81 L.Ed. 38 (1936) and its progeny. This is no longer the end of the matter. While subsequent Supreme Court opinions have at times alluded back to the Young’s Market view that the Amendment confers “virtually complete control over ... how to structure the liquor distribution system,” Cal. Retail Liquor Dealers Ass’n v. Midcal Alum., 445 U.S. 97, 110, 100 S.Ct. 937, 946, 63 L.Ed.2d 233 (1980), this unique power is not absolute and must coexist with Congress’ power to regulate commerce. In Bacchus, which shared the instant ease’s focus on states’ authority to regulate liquor unconstrained by the negative Commerce Clause, the Supreme Court put it succinctly: “It is by now clear that the Amendment did not entirely remove state regulation of alcoholic beverages from the ambit of the Commerce Clause.” Bacchus, 468 U.S. at 275, 104 S.Ct. at 3057. The Twenty-first Amendment does not necessarily immunize state laws from invalidation under the Commerce Clause, and the chief question is whether the interests implicated by a State’s regulation “are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies.” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714, 104 S.Ct. 2694, 2708, 81 L.Ed.2d 580 (1984). “[T]he central purpose of the Amendment was not to empower States to favor local liquor industries by erecting barriers to competition. It is also beyond doubt that the Commerce Clause itself furthers strong federal interests in preventing economic Balkanization.” Bacchus, 468 U.S. at 276, 104 S.Ct. at 3058 (citations omitted). While courts have recognized generally the need “to combat the perceived evils of an unrestricted traffic in alcoholic beverages” as a permissible," }, { "docid": "4303162", "title": "", "text": "See id. at 712-14, 104 S.Ct. 2694. As the district court concluded that federal law does not preempt the NMLCA, the district court did not conduct a balancing of state and federal interests. As this is a fact-intensive inquiry, we remand to the district court to conduct this balancing in the first instance. 1. Section 2 of the Twenty-first Amendment provides: “The transportation or importation into any State, ... for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const, amend. XXI, § 2. “Notwithstanding the [Twenty-first] Amendment’s broad grant of power to the States, ... the Federal Government plainly retains authority under the Commerce Clause to regulate even interstate commerce in liquor.” Crisp, 467 U.S. at 713, 104 S.Ct. 2694. The Supreme Court has recognized that “there is no bright line between federal and state powers over liquor.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). Instead, “[b]oth the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in light of the other, and in the context of the issues and interests at stake in any concrete case.” Id. at 109, 100 S.Ct. 937 (internal quotation marks omitted). When resolving conflicts between different provisions of the Constitution, courts must undertake a “pragmatic effort to harmonize state and federal powers.” Id. Thus, as Congress enacted the FAA pursuant to the Commerce Clause, the state interests protected under the Twenty-first Amendment must be balanced against the federal interests. New Mexico contends that Twenty-first Amendment balancing is inapplicable in this case. Specifically, New Mexico argues that cases “involving core powers of licensing do not require balancing under the Twenty-first Amendment.” Aplee. Br. at 41. While NMLCA represents an exercise of a state’s core powers reserved by the Twenty-first Amendment, see Crisp, 467 U.S. at 715, 104 S.Ct. 2694 (describing core powers as “control over whether to permit importation or sale of liquor and how to structure the liquor distribution" }, { "docid": "4303161", "title": "", "text": "recurrent training requirements for crew members and dispatchers), 121.433 (describing the mandatory crew member training requirements). Thus, NMLCA’s regulatory scheme implicates the field occupied by federal law. Based on the pervasive federal regulations concerning flight attendant and crew member training and the aviation safety concerns involved when regulating an airline’s alcoholic beverage service, we conclude that NMLCA’s application to an airline implicates the field of airline safety that Congress intended federal law to regulate exclusively. Thus, New Mexico’s regulatory efforts are impliedly preempted. B. Twenty-first Amendment While we conclude that federal law preempts NMLCA’s regulation of the alcoholic beverage service on aircraft, our analysis does not end there. We must next evaluate whether § 2 of the Twenty-first Amendment permits New Mexico’s regulatory scheme, as applied to an airline’s alcoholic beverage service, to override federal policy. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). In this regard, the Twenty-first Amendment requires a balancing of New Mexico’s core powers and the federal interests underlying the FAA. See id. at 712-14, 104 S.Ct. 2694. As the district court concluded that federal law does not preempt the NMLCA, the district court did not conduct a balancing of state and federal interests. As this is a fact-intensive inquiry, we remand to the district court to conduct this balancing in the first instance. 1. Section 2 of the Twenty-first Amendment provides: “The transportation or importation into any State, ... for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const, amend. XXI, § 2. “Notwithstanding the [Twenty-first] Amendment’s broad grant of power to the States, ... the Federal Government plainly retains authority under the Commerce Clause to regulate even interstate commerce in liquor.” Crisp, 467 U.S. at 713, 104 S.Ct. 2694. The Supreme Court has recognized that “there is no bright line between federal and state powers over liquor.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). Instead, “[b]oth the Twenty-first Amendment and the Commerce" }, { "docid": "6034237", "title": "", "text": "333, 84 S.Ct. at 1299. Justice Stewart’s remarks in Idlewild must also be read along with his observation, only two terms later, that in a case concerning liquor destined for use, distribution or consumption exclusively in New York — indeed another section of the very statute here at issue — “the Twenty-First Amendment demands wide latitude for regulation by the State.” Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966). However, in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 106-10, 100 S.Ct. 937, 943-46, 63 L.Ed.2d 233 (1980), the Court gave further attention to the relation of state powers under the Twenty-First Amendment and the commerce power and, after noting that the Amendment gave the states “virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system”, id. at 110, 100 S.Ct. at 946, concluded that: Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a “concrete case”. Hostetter v. Idlew-ild Liquor Corp., 377 U.S., at 332, 84 S.Ct., at 1298. Id. Since this appeal was argued, the Court has again stated that “[i]t is by now clear that the Amendment did not entirely remove state regulation of alcoholic beverages from the ambit of the Commerce Clause,” Bacchus Imports, Ltd. v. Dias, — U.S. —,— —, 104 S.Ct. 3049, 3058, 82 L.Ed.2d 200 (1984). Still this is not at all to say, as plaintiffs assume, that attacks on state reg- ' ulation of the liquor business as conflicting with the antitrust laws are to be decided as if § 2 of the Twenty-First Amendment did not exist. In Bacchus Imports, the Court referred to the language in Midcal that a “pragmatic effort [must be made] to harmonize state and federal powers,” 445 U.S. at 109, 100 S.Ct. at 945, and also to the statement in Capital" } ]

[ { "docid": "22610462", "title": "", "text": "conduct of other agents of the union. In this state of the record, the union has not made out its case for a stay. For the foregoing reasons, the lower courts properly denied the union’s motion to dismiss Count I or stay it pending arbitration of the employer’s damage claim. II. We turn now to Count II of the complaint, which charged 24 individual officers and agents of the union with breach of the collective bargaining contract and tortious interference with contractual relations. The District Court held that under § 301 union officers or members cannot be held personally liable for union actions, and that therefore “suits of the nature alleged in Count II are no longer cognizable in state or federal courts.” The Court of Appeals reversed, however, ruling that “Count II stated a cause of action cognizable in the courts of Indiana and, by diversity, maintainable in the District Court.” We are unable to agree with the Court of Appeals, for we are convinced that Count II is controlled by federal law and that it must be dismissed on the merits for failure to state a claim upon which relief can be granted. Under § 301 a suit for violation of the collective bargaining contract in either a federal or state court is governed by federal law (Local 174 v. Lucas Flour Co., 369 U. S. 95, 102-104; Textile Workers Union v. Lincoln Mills, 353 U. S. 448), and Count II on its face charges the individual defendants with a violation of the no-strike clause. After quoting verbatim the no-strike clause, Count II alleges that the 24 individual defendants “contrary to their duty to plaintiff to abide by” the contract fomented and participated in a work stoppage in violation of the no-strike clause. The union itself does not quarrel with the proposition that the relationship of the members of the bargaining unit to the employer is “governed by” the bargaining agreement entered into on their behalf by the union. It is universally accepted that the no-strike clause in a collective agreement at, the very least establishes a rule" } ]

[ { "docid": "23298924", "title": "", "text": "by negative implication that employees should be held liable where their union is not liable for the strike. See Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F. 2d 49, 52 (CA7 1971). Although lengthy and complex, the legislative history of § 301 clearly reveals Congress’ intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a collective-bargaining agreement, whether or not the union participated in or authorized the illegality. Indeed, Congress intended this result even though it might leave the employer unable to recover for his losses. See Atkinson v. Sinclair Refining Co., supra, at 248. The legislative history of § 301 begins with a review of congressional efforts in the year prior to adoption of the Labor Management Relations Act. Section 10 of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress, but vetoed by the President in 1946, was “the direct antecedent of § 301.” Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 509 (1962). Since § 10 “contained provisions substantially the same ... as the provisions of § 301,” ibid., its legislative history is highly relevant in ascertaining congressional intent with respect to § 301, see id., at 511-512. The purpose of § 10 was “to establish a mutual responsibility when the collective-bargaining process has resulted in a contract.” 92 Cong. Rec. 838 (1946) (remarks of Rep. Case). As introduced in the House, § 10 provided for collective-bargaining agreements to be enforceable “against each of the parties thereto.” The Senate adopted a bill which encompassed the purposes of § 10 of the House version and which, in addition, explicitly permitted an employer to discharge an employee who participated in a strike which was not authorized by the union. Senator Taft, principal proponent of the provision, explained: “If the union violates its collective bargaining-agreement, it is responsible, but no individual member is responsible, and he can in no way be deprived of his rights. But if the union tries to keep its contract and, in violation of" }, { "docid": "2953703", "title": "", "text": "78 S.Ct. 932. But the conflict is obvious in the case before us where on the same facts count 2 could not be upheld under federal law and count 3 could be upheld under state law. In view of this conflict the incompatible doctrines of state law must give way to principles of federal labor law. Local 20, Teamsters, etc. v. Morton, supra, 377 U.S. at 258, 84 S.Ct. 1253. We hold that the district court erred in denying defendants’ motion to dismiss count 3. The judgment is affirmed to the extent that it dismissed count 2 of Sinclair’s complaint; the judgment is reversed so far as it sustained count 3; and the cause is remanded with directions for the sole purpose of dismissing count 3. . Oil, Chemical and Atomic Workers International AFL-CIO. . We ordered that the appeals be briefed and argued together as if they were cross-appeals. . “In reaching this conclusion [that Count II must be dismissed because it alleges union liability for breach of a no-strike clause but prays for damages from the union agents], we have not ignored the argument that Count II was drafted in order to anticipate the possible union defense under Count I that the work stoppage was unauthorized by the union and was a wildcat strike led by, the 24 individual defendants acting not on behalf of the union but in their personal and nonunion capacity. The language of Count II contradicts the argument, however, and we therefore do not reach the question of whether the count would state a proper § 301(a) claim if it charged unauthorized, individual action.” . Several decisions have been cited by defendants to support their statement that “every case since Atkinson [Atkinson v. Sinclair Refining Co., 370 U.S. 238 [82 S.Ct. 1318, 8 L.Ed.2d 462] (1962)] wherein an attempt was made to hold individual union members personally liable under Section 301 has been dismissed.” See, e. g., Williams v. Pacific Maritime Association, 421 F.2d 1287 (9th Cir. 1970) ; Hall v. Pacific Maritime Association, 281 F.Supp. 54 (N.D.Cal., 1968) ; Navajo Freight Lines, Inc." }, { "docid": "23358775", "title": "", "text": "L.Ed.2d 274 (1978); Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978). See also Kerry Coal Co. v. UMW, 637 F.2d 957 (3d Cir. 1981). The Employer contends that a suit for tortious interference with a labor contract is a suit for violation of such a contract within the meaning of section 301 of the Labor Management Relations Act, actionable as a matter of the federal common law of labor contracts. Thus we must decide whether such a claim is one within the subject matter of the district court. A. The Individual Defendants The starting point for our analysis must be the Supreme Court’s decision in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). In that case the Court held that a diversity action against members of a union with which the plaintiff had a collective bargaining agreement, for tortious interference with that contractual relationship, must be dismissed for failure to state a claim upon which relief can be granted. The issue was held to be one of “govern[ment] by the national labor relations law which Congress commanded this Court to fashion under § 301(a).” 370 U.S. at 247, 82 S.Ct. at 1324. However, in determining whether federal law permitted recovery, the Court found in section 301(b) an intention to insulate individual union members from liability for breach of contract by the union of which they were members. Justice White wrote: The national labor policy requires and we hold that when a union is liable for damages for violation of the no-strike clause, its officers and members are not liable for these damages. Here, Count II, as we have said, necessarily alleges union liability but prays for damages from the union agents. Where the union has inflicted the injury it alone must pay. 370 U.S. at 249, 82 S.Ct. at 1325. Atkinson is directly controlling with respect to defendant John J. Wallace, the president of the Local Guild," }, { "docid": "8196142", "title": "", "text": "to compel arbitration of individual grievances pertaining to rates of pay, hours of work and wrongful discharge, to obtain specific enforcement of an arbitrator’s award ordering reinstatement and back pay to individual employees, to recover wage increases in a contest over the validity of the collective bargaining contract, and to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement. Smith v. Evening News Assn., 371 U.S. 195, 199, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). In support of the last proposition, namely, that § 301(a) has been applied to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement, the Court in Smith, supra, cites Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462. In Atkinson, supra, the Supreme Court had before it a question somewhat comparable, but different than that presented here. In Atkinson, supra, Count II of the complaint charged 24 individual officers and agents of the union with breach of a collective bargaining contract and tortious interference with contractual relations. The District Court held that under § 301 union officers or employees cannot be held personally liable for union actions and that therefore suits of the nature alleged in Count II are no longer cognizable in state or federal courts. The Court of Appeals reversed and the Supreme Court held that no cause of action was stated in that when a union is liable for damages for violation of the no-strike clause, its officers and members are not liable for these damages. In Atkinson the individual members were charged, in Count II with acting as agents and on behalf of the union. (Emphasis supplied). The Court stated that: “Whatever individual liability Count II alleges for the 24 individual defendants, it necessarily restates the liability of the union which is charged under Count I, since under § 301(b) the union is liable for the acts of its agents, under familiar principles of the law of agency * * *. Proof of the allegations of Count II in" }, { "docid": "23363217", "title": "", "text": "damages from the breach. Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 249, 82 S.Ct. 1318, 8 L.Ed.2d 462. Further, it has been held that the employer is in any event without a remedy for damages for breach of contract against individual union members who have engaged in a wildcat strike. Sinclair Oil Corp. v. Oil, Chemical and Atomic Workers International Union, 7 Cir. 1971, 452 F.2d 49. . That such discipline has been successfully used by a Teamsters local and that its use might well have been successful here is indicated by the case of an unauthorized strike by members of Local 241 of the Teamsters International Union against Eazor at Sharon, Pennsylvania in April 1968 where the strike was ended when a steward who refused to cross the illegal picket line was removed by the officers of the local union and another put in his place who led most of the strikers back to work across the picket line. . While the ordinary rules of contract law apply to collective bargaining agreements, their application is necessarily limited in some respects. NLRB v. C & C Plywood Corp., 1967, 385 U.S. 421, 430, 87 S.Ct. 559, 17 L.Ed.2d 486; Transportation-Communication Employees Union v. Union Pacific R. R., 1966, 385 U.S. 157, 160-161, 87 S.Ct. 369, 17 L.Ed.2d 264. . The court in this finding used the name “Eazor” in referring to the Daniels operation since Eazor was then operating Daniels. We use the name “Daniels” when referring to the Daniels operation by Eazor. . This was the suit begun in the Court of Common Pleas of Trumbull County, Ohio which is one of the two suits now before us on these appeals. . The district court computed the portion of the aggregate loss suffered by the two plaintiffs which was allocable to the first two days of the strike and subtracted that amount from the aggregate loss before determining the portion of that loss which was sustained by each plaintiff. We have reversed this process in order to arrive at an apportionment of the damages which we believe" }, { "docid": "23363216", "title": "", "text": "the judgment will be affirmed. Each appellant shall bear its own costs on appeal. . In the Central States Area Over-the-Road Motor Freight Supplement the word “Unions” at this point appears as “Union”, apparently as the result of a typographical error. . The bracketed clause appears only in the two supplemental agreements to which Local 377 was a party. . The injunction was issued by the state court on a complaint filed by Eazor in that court. . The injunction was issued in that one of these consolidated suits which was originally brought in the Court of Common Pleas of Trumbull County, Ohio and removed to the United States District Court at Cleveland. As we have stated, that suit then sought injunctive relief as well as the damages which are the subject of the judgment here appealed from. . Although such an agreement is binding on the individual union members, the employer has no action for damages against them individually for their breach of the agreement where the union has been adjudged liable for the damages from the breach. Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 249, 82 S.Ct. 1318, 8 L.Ed.2d 462. Further, it has been held that the employer is in any event without a remedy for damages for breach of contract against individual union members who have engaged in a wildcat strike. Sinclair Oil Corp. v. Oil, Chemical and Atomic Workers International Union, 7 Cir. 1971, 452 F.2d 49. . That such discipline has been successfully used by a Teamsters local and that its use might well have been successful here is indicated by the case of an unauthorized strike by members of Local 241 of the Teamsters International Union against Eazor at Sharon, Pennsylvania in April 1968 where the strike was ended when a steward who refused to cross the illegal picket line was removed by the officers of the local union and another put in his place who led most of the strikers back to work across the picket line. . While the ordinary rules of contract law apply to collective bargaining agreements," }, { "docid": "2953692", "title": "", "text": "Maddox, 379 U.S. 650, 658-659, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). And employees have been held to have standing to sue an employer under Section 301 for breach of the collective bargaining agreement. Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Individual employees, however, are not liable in damages for breach of a no-strike clause if the union is liable. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). In NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953), the Court decided that absent a provision in the collective bargaining agreement that no member should be required to cross a picket line, the refusal of an employee to cross the picket line of another union amounts to breach of the no-strike clause justifying discharge. However, it is conceded by Sinclair that no case has decided that a union member may be liable under Section 301 for damages for refusing to cross a picket line in violation of a no-strike clause. Sinclair argues that the language and legislative history of Section 301 clearly evidence a Congressional intention to provide a damage remedy for individual unauthorized breaches of a no-strike clause. We reject the argument as invalid. It is true that the language of Section 301 does not expressly prohibit employer damage suits against employee union members who engage in a wildcat strike. But Section 301 does not expressly authorize suits between an employee union member and his employer arising from bargaining contracts. And Section 301 (b) prohibits enforcement against employees or their assets of employer judgments against unions. We do not see how, in view of subparagraph (b) and the “Danbury Hatters” notion discussed hereinafter, an implication can reasonably arise from the terms of Section 301 that Sinclair may recover damage against the individual defendants. The legislative history of Section" }, { "docid": "12691567", "title": "", "text": "of Local 753, move to dismiss as to them on the ground that individuals cannot be sued under § 301. In support of this argument, Local 753 points out that the language of the statute and its legislative history suggest that the primary focus of Congress was on suits involving labor organizations, not individuals. The legislative history is conveniently reviewed in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). The language of the statute was the basis for a holding by the Seventh Cir cuit that an individual could not sue under § 301. United Protective Workers of America v. Ford Motor Co., 194 F.2d 997 (7th Cir. 1952). In Red Ball Motor Freight, Inc. v. General Drivers Local 961, 202 F.Supp. 904 (D.Colo.1962), an employer’s suit to enforce an arbitration clause, the District Court said: “This legislative background shows plainly that Congress intended to create a remedy applicable to unions. It dispels any possible doubt as to whether it can be read so as to authorize a remedy by or against an individual.” Id. at 906. The conclusions of both United Protective Workers and Red Ball were undermined by the Supreme Court in Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). The Court held that individuals could sue under § 301 to enforce “individual” rights derived from collective bargaining agreements. However, Smith says nothing about suits against individuals. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) does. Defendants cite Atkinson in support of their motion; the effect of the case is quite the opposite. Atkinson was a suit by an employer against a union and some individual union members for damages for breach of a “no-strike” clause. The Court held that the individual defendants could not be held liable: “When Congress passed § 301, it declared its view that only the union was to be made to respond for union wrongs, and that the union members were not to be subject to levy.” Id. at" }, { "docid": "2953702", "title": "", "text": "light of federal labor policy, legislative history and Congressional intention, was enacted in part to prevent the assessment of damages against individual union members for the alleged misconduct stated in count 2. A state court’s grant of such an award would conflict with this policy and therefore must give way to the federal principle. Local 174 Teamsters, etc., v. Lucas Flour Co., supra. Congress was concerned to have uniformity in 301 decisions. The additional remedy in state court sought by Sinclair would contravene this policy of uniformity. True, federal law has not preempted state law with respect to awarding compensation damages to an employee in a tort action against a union based on violence. International Union, United Automobile, etc. Workers v. Russell, 356 U.S. 634, 646, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958). But the Court there decided there was no conflict in the Labor Board’s finding a back pay award unnecessary to effectuate the purposes of the National Labor Relations Act, and a state award of damages, including loss of wages. Id. at 645, 78 S.Ct. 932. But the conflict is obvious in the case before us where on the same facts count 2 could not be upheld under federal law and count 3 could be upheld under state law. In view of this conflict the incompatible doctrines of state law must give way to principles of federal labor law. Local 20, Teamsters, etc. v. Morton, supra, 377 U.S. at 258, 84 S.Ct. 1253. We hold that the district court erred in denying defendants’ motion to dismiss count 3. The judgment is affirmed to the extent that it dismissed count 2 of Sinclair’s complaint; the judgment is reversed so far as it sustained count 3; and the cause is remanded with directions for the sole purpose of dismissing count 3. . Oil, Chemical and Atomic Workers International AFL-CIO. . We ordered that the appeals be briefed and argued together as if they were cross-appeals. . “In reaching this conclusion [that Count II must be dismissed because it alleges union liability for breach of a no-strike clause but prays for" }, { "docid": "4486943", "title": "", "text": "bargaining suggests the necessity for more testimony and evidence than that adduced in the summary judgment proceedings below. Without attempting to plot the extreme boundaries of proof, we think that Republic should at least be required to prove that the stranger picketing was conduct that would be enjoinable under the Boys Markets rule. That is, Republic should be required to prove that the dispute stranger UMWA pickets had with their employer or employers was one that was subject to the grievance and arbitration clause contained in the Agreement. And, of course, Republic must prove that the UMWA knew or should have known of the action of the stranger pickets, and nevertheless failed to exhaust all reasonable means to bring that unlawful action to an end. Ill Having determined that liability may exist, we are left with the thorny question of who may be held liable. We note initially that the individual officers and members of local unions cannot be held liable, for in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court declared that an injured employer could not properly look to union officers and members in their individual capacities for damages suffered as a consequence of allegedly unlawful concerted activity: “When Congress passed § 301, it declared its view that only the union was to be made to respond for union wrongs, and that the union members were not to be subject to levy.” Id. at 247-48, 82 S.Ct. at 1324. See also Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers International Union, 452 F.2d 49, 52-54 (7th Cir. 1971). We are not provided with similarly clear guidance in delineating international, district, sub-district and local liability. However, in the sympathy strike context there is an important factual distinction between the international on the one hand, and the district, sub-district, and local unions on the other. This is their ability to communicate with, and to the greatest lawful extent control, the concerted activities of their members in both the underlying and the resulting strikes. An implied obligation to take reasonable" }, { "docid": "2476099", "title": "", "text": "be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.” 29 U.S.C. § 185(b) (1988). Notwithstanding the literal language of this section which merely exempts union agents and members from personal liability for judgments against the union, in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court gave the statute a broader reading. The purpose of section 301(b), the Court explained, was to ensure that “only the union was to be made to respond for union wrongs, and that the union members were not to be subject to levy.” Id. at 247-48, 82 S.Ct. at 1324. Therefore, the Court held that it would discharge the duty imposed on it by Congress to formulate the federal law to govern section 301(a) suits by holding that even when the claim is only against individual union members, “[t]he national labor policy requires ... that when a union is liable for damages for violation of the no-strike clause, its officers and members are not liable for these damages.” Id. at 249, 82 S.Ct. at 1325. Thereafter, in Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 417, 101 S.Ct. 1836, 1845, 68 L.Ed.2d 248 (1981), the Court considered the issue reserved in Atkinson, 370 U.S. at 249 n. 7, 82 S.Ct. at 1325 n. 7, i.e., whether an employer may bring a claim for damages under section 301(a) against individual union members acting in their personal and nonunion capacity for breaching the no-strike clause in a collective bargaining agreement by participating in a wildcat strike that was not authorized by the union. The Court reasoned that the “penumbra” of section 301(b) immunity, in light of the legislative history, “establishes that Congress meant to exclude individual strikers from damages liability, whether or not they were authorized by their union to strike.” Reis, 451 U.S. at 415, 101 S.Ct. at 1844. The Court so held notwithstanding its recognition that the employer would not have a claim against the union, and thus would" }, { "docid": "2953688", "title": "", "text": "KILEY, Circuit Judge. Sinclair’s appeal presents the issue whether union members bound by a no-strike clause are liable individually, under Section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, for damages resulting from their refusal, in defiance of express directions of the union, to cross a picket line maintained by members of the same union who are in a different bargaining unit. The issue is of first impression. We hold that the individual members are not liable. Defendants’ motion to dimiss admits relevant well-pleaded facts: The International Union and Sinclair in January, 1969, were negotiating a new contract for both the production and maintenance employee unit and the clerical employee unit at Sinclair’s East Chicago, Indiana plant. Employees in both units were members of the defendant International Union and Local 7-210 (Union). Pending agreement, all employees in both units struck the plant. An agreement was eventually reached as to the production and maintenance unit, but not as to the clerical unit. The agreement reached contained a no-strike clause. The clerks remained on strike and picketed the plant. The production and maintenance employees refused to cross the picket line. This suit followed. The complaint is in three counts. Count 1, brought under Section 301, charges the Union with violation of the no-strike clause and seeks damages for causing the work stoppage. That count is not before us on appeal. Count 2, also under Section 301, is against six named individual members of the Union and seeks damages also for breach of the no-strike clause. Count 3, a state law diversity action, seeks damages for the same alleged breach against the six individuals named in count 2. On defendants’ motion the district court dismissed count 2 as stating no claim on which relief could be granted. Sinclair has appealed from the judgment of dismissal. The court denied defendants’ motion with respect to counts 1 and 3. Defendants have appealed — with leave given by us under 28 U.S.C. § 1292 (b) — only from the denial of their motion to dismiss count 3. SINCLAIR’S APPEAL The substance of Sinclair’s complaint is" }, { "docid": "23298947", "title": "", "text": "allowed to return were rehired as new employees). Third, the union itself may discipline its members. See Carbon Fuel Co. v. Mine Workers, supra, at 220; Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F. 2d 49, 54 (CA7 1971); see 92 Cong. Rec. 5706 (1946) (Sen. Capehart) (debate on Case bill). Finally, an employer may seek injunctive relief against unions for breach of a no-strike provision in a collective-bargaining agreement where the underlying dispute giving rise to the breach is subject to binding arbitration. See Buffalo Forge Co. v. Steelworkers, 428 U. S., at 407; Gateway Coal Co. v. Mine Workers, supra, at 380-387; Boys Markets, Inc. v. Retail Clerks, supra. Whether a Boys Markets-Buffalo Forge injunction could have issued against individual union members engaged in the wildcat strike at issue here is not before us. It may be that an injunction would not issue against a participating or authorizing union in circumstances otherwise the same: in the instant case the District Judge found that the strike commenced over a nonarbitrable labor dispute, and that ruling was not disturbed by the Court of Appeals. Justice Powell, concurring in part and concurring in the judgment. The Court’s opinion makes clear that Congress, in enacting the Taft-Hartley amendments to the National Labor Relations Act, did not intend to hold individuals liable in damages for wildcat strikes. I therefore join the Court’s judgment and most of its opinion. I do not, however, share the Court’s view that there remains to management a “significant array of other remedies,” ante, at 416, n. 18, with which to deter or obtain compensation for illegal strikes. In fact, the “remedies” said to be available are largely chimerical. I Collective-bargaining agreements typically contain a promise by the union not to strike during the agreement’s term. Unions agree to these no-strike clauses in exchange for the employer’s promise to arbitrate disputes arising in contract administration. Textile Workers v. Lincoln Mills, 353 U. S. 448, 449, 455 (1957). Each promise is the “quid pro quo” for the other, Steelworkers v. American Mfg. Co., 363 U. S. 564," }, { "docid": "22339792", "title": "", "text": "from other independent agents is his direct role as the attorney for a particular union member. . United Steelworkers v. Lorain, 616 F.2d 919, 924 (6th Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981); Williams v. Pacific Maritime Association, 421 F.2d 1287 (9th Cir.1970); Balestreri v. Western Carloading, 530 F.Supp. 825, 831 (N.D.Cal.1980); Suwanchai v. International Broth. of Electrical Workers, 528 F.Supp. 851, 852 (D.N.H.1981); Henry v. Radio Station KSAN, 374 F.Supp. 260, 267 (N.D. Cal.1974). . Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 402, 101 S.Ct. 1836, 1838, 68 L.Ed.2d 248 (1981) (involved union members; stated that \"In Atkinson ... the Court held that § 301(a) [sz'c ] ... does not authorize a damages action against individual union officers and members when their union is liable for violating a no-strike clause in a collective bargaining agreement” (emphasis added)); Hardline Electric, Inc. v. International Brotherhood of Electrical Workers Local 1547, 680 F.2d 622, 624 n. 1 (9th Cir.1982); Universal Communications Corp. v. Burns, 449 F.2d 691, 693-94 (5th Cir.1971) (per curiam). . See, e.g., Republic Steel Corp. v. United Mine Workers of America, 570 F.2d 467, 478 (3rd Cir.1978) (officers and members); Sinclair Oil Corp. v. Oil, Chemical and Atomic Workers Int. Union, 452 F.2d 49, 52 (7th Civ. 1971) (members). . The union may be responsible under the applicable restrictive standard for referring its members to incompetent attorneys." }, { "docid": "16698001", "title": "", "text": "question. It provides that a labor organization is bound by the acts of its agents, but states specifically that a money judgment against a labor organization “shall not be enforceable against any individual member or his assets.” § 301(b). There is no reference to money judgments against individual union members. In Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court held that a complaint which necessarily alleges union liability but seeks damages only from union agents does not state a claim for relief under § 301. The Court did not “reach the question of whether the count would state a proper § 301(a) claim if it charged unauthorized, individual action.” Id. at 249, n. 7, 82 S.Ct. at 1325, n. 7. In the present case the plaintiffs pled that the strikes were without union authorization or approval. In Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F.2d 49 (7th Cir. 1971), the court dealt directly with the question before us. It concluded that § 301 does not permit an employer to recover damages from individual union members for violation of an agreement not to strike. This conclusion was based on a careful consideration of the legislative history of § 301. Though one purpose of the 1947 Labor Act was to promote labor peace by making unions responsible for their actions, there appears to be no corresponding purpose to make individual members liable in money damages for unauthorized breaches of a no-strike agreement. The remedy against individual members is discipline, or even discharge. But the specter of the “Dan-bury Hatters” decisions still haunted the minds of the lawmakers. See statement of Senator Taft, “We do not want to perpetuate such a condition,” 92 Cong.Rec. 5705(1946); statement of Senator Ball, also a sponsor of the Act, “by providing that the union may sue and be sued as a legal entity for a violation of contract, and that liability for damages will lie against union assets only, [§ 301] will prevent a repetition of the Danbury Hatters case in which many members" }, { "docid": "23298923", "title": "", "text": "do not give a niggardly reading to § 301 (b).” Ibid. Accordingly, we consulted and relied on the legislative history of § 301 (b) which made it “clear that th[e] third clause [of §301 (b) ] was a deeply felt congressional reaction against the Danbury Hatters case . . . and an expression of legislative determination that the aftermath ... of that decision was not to be permitted to recur.” Id., at 248. Similarly, in deciding the question presented in this case, we “discharg [e] the duty Congress imposed on us to formulate the federal law to govern § 301 (a) suits,” id., at 248-249, by looking to the “penumbra” of § 301 (b), 353 U. S., at 457, as informed by its legislative history. See Howard Johnson Co. v. Hotel & Restaurant Employees, supra, at 255. Section 301 (b) by its terms prohibits a money judgment entered against a union from being enforced against individual union members. See Atkinson v. Sinclair Refining Co., supra. It is a mistake to suppose that Congress thereby suggested by negative implication that employees should be held liable where their union is not liable for the strike. See Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F. 2d 49, 52 (CA7 1971). Although lengthy and complex, the legislative history of § 301 clearly reveals Congress’ intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a collective-bargaining agreement, whether or not the union participated in or authorized the illegality. Indeed, Congress intended this result even though it might leave the employer unable to recover for his losses. See Atkinson v. Sinclair Refining Co., supra, at 248. The legislative history of § 301 begins with a review of congressional efforts in the year prior to adoption of the Labor Management Relations Act. Section 10 of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress, but vetoed by the President in 1946, was “the direct antecedent of § 301.” Charles Dowd Box Co. v. Courtney, 368 U. S." }, { "docid": "23363190", "title": "", "text": "held, the individual union members are not answerable in damages for illegal strike activity. Sinclair Oil Corp. v. Oil, Chemical and Atomic Workers International Union, 7 Cir. 1971, 452 F.2d 49. If the unions had made a showing of the use of strong and punitive measures without result it would have been for the district court to determine whether they had relieved themselves from liability by fulfilling their obligation to exhaust all reasonable measures available to them to end the strikes. In determining whether available measures were reasonable the sole test would be whether they were within the power of the unions to employ and might be likely to be effective to end the strikes. Any possible negative effect upon the unions themselves and their internal organization, although much stressed by the defendants here, would not have been relevant. For it was the restoration of industrial peace with the plaintiffs, not their own well being, which the defendant unions were obligated by their no-strike pledges to seek. Here, as we have seen, the record fully supports the court’s finding that the unions used only rhetoric and wholly abstained from the use of any more powerful measures, thus, in practical effect, acquiescing in the strike situation. Under these circumstances we are clear that they cannot now be heard to urge that the measures to which they did not resort would not have proved successful. It was the possibility of loss from a continuing strike, and not of some theoretical aleatory loss, which must reasonably be supposed to have been in the contemplation of the parties to these collective bargaining agreements. Moreover, the defendant unions were answerable in damages for the loss where, as here, their breach was a substantial factor in causing the plaintiffs’ injury, Krauss v. Greenbarg, 3d Cir., 137 F.2d 569, 572, cert. denied, 1943, 320 U.S. 791, 64 S.Ct. 207, 88 L.Ed. 477, even though the acts of others were contributing factors also, as, for example, the actions of the strikers in this case. Southern National Bank v. Crateo, Inc., 5 Cir. 1972, 458 F.2d 688, 697; Krauss" }, { "docid": "8634718", "title": "", "text": "CASTLE, Circuit Judge. Sinclair Refining Company, plaintiff-appellant, hereinafter referred to as plaintiff, commenced this action in the District Court. It seeks damages for alleged breach of a no-strike clause of a collective bargaining agreement; a declaration of rights; and a permanent injunction. Count I of the complaint invokes jurisdiction under Section 301 of the Labor-Management Relations Act (29 U.S.C.A. § 185); names Oil, Chemical and Atomic Workers International Union, AFL-CIO, and Local No. 7-210 of Oil, Chemical and Atomic Workers International Union, AFL-CIO, as defendants; alleges in substance that the International and Local constitute the recognized collective bargaining agent for approximately 1700 production and maintenance employees in a bargaining unit confined to plaintiff’s East Chicago, Indiana, refinery, and that said Unions by their officers, committeemen and other agents caused a strike or work stoppage by approximately 999 of the employees within the bargaining unit on February 13 and 14, 1959 over asserted pay claims of three members, aggregating $2.19, and which were arbitrable under the grievance procedure of the current collective bargaining agreement, and that the work stoppage was in violation of the no-strike clause of the agreement and caused damages to plaintiff by way of out-of-pocket expenses in the amount of $12,500.00 for which recovery is sought. Count II is based on diversity. It names as defendants 24 individuals, employees of plaintiff at the East Chicago refinery, who are committeemen of the Local and agents of the International. It incorporates the allegations of Count I concerning the collective agreement and it seeks damages from the individual defendants in the same amount and for the same work stoppage. It alleges that the individual defendants “contrary to their duty to plaintiff to abide by said contract, and maliciously confederating and conspiring together to cause the plaintiff expense and damage, and to induce breaches of the said contract, and to interfere with performance thereof by said labor organizations and the affected employees, and to cause breaches thereof, individually and as officers, committeemen and agents of the said labor organizations, fomented, assisted and participated” in the strike or work stoppage. Count III is" }, { "docid": "2953689", "title": "", "text": "picketed the plant. The production and maintenance employees refused to cross the picket line. This suit followed. The complaint is in three counts. Count 1, brought under Section 301, charges the Union with violation of the no-strike clause and seeks damages for causing the work stoppage. That count is not before us on appeal. Count 2, also under Section 301, is against six named individual members of the Union and seeks damages also for breach of the no-strike clause. Count 3, a state law diversity action, seeks damages for the same alleged breach against the six individuals named in count 2. On defendants’ motion the district court dismissed count 2 as stating no claim on which relief could be granted. Sinclair has appealed from the judgment of dismissal. The court denied defendants’ motion with respect to counts 1 and 3. Defendants have appealed — with leave given by us under 28 U.S.C. § 1292 (b) — only from the denial of their motion to dismiss count 3. SINCLAIR’S APPEAL The substance of Sinclair’s complaint is an assertion of Union liability because the Union authorized the work stoppage resulting from its members refusing to cross the picket line (count 1), and the alternative assertion of individual liability on the part of the members because of their refusal to cross the picket line “despite, and contrary to, the express instructions” of the Union (counts 2 and 3). The complaint is framed, so far as counts 2 and 3 are concerned, to cover the question expressly reserved by the Supreme Court in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 249, n. 7, 82 S.Ct. 1318, 1325, 8 L.Ed.2d 462 (1962). The complaint indicates the difficulty which faced Sinclair and the Union where the Union represents two separate units, one of which had agreed on a contract with Sinclair, the other of which was still on strike. Sinclair is deprived of the work force settled in the bargaining agreement as well as being plagued with the clerks picket line while negotiating for an agreement to obtain their employment. The Union, having made an" }, { "docid": "16698000", "title": "", "text": "(3d Cir.), cert. denied, 419 U.S. 1049, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974) (Hunter, J., dissenting). This construction is logical because in such a case the strikers are seeking to avoid the agreement for arbitration, and to deny an injunction would deprive the employer of its most expeditious and effective remedy. Boys Markets, supra, 398 U.S. at 248-49, 90 S.Ct. at 1591. III. Included in the prayer for relief in the amended complaint filed by each plaintiff was the following demand: 5. That the Court award damages against the Defendants, in their individual capacity, for all losses arising out of the unlawful work stoppage and for attorney fees. Damages were not sought from Local 332. Thus the question for decision is whether individual members of a union may be sued for damages under § 301 of the Labor Management Relations Act for violation of the no-strike provision of a collective bargaining agreement where there is no attempt to recover from the union. Section 301 of the Labor Act does not deal directly with this question. It provides that a labor organization is bound by the acts of its agents, but states specifically that a money judgment against a labor organization “shall not be enforceable against any individual member or his assets.” § 301(b). There is no reference to money judgments against individual union members. In Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court held that a complaint which necessarily alleges union liability but seeks damages only from union agents does not state a claim for relief under § 301. The Court did not “reach the question of whether the count would state a proper § 301(a) claim if it charged unauthorized, individual action.” Id. at 249, n. 7, 82 S.Ct. at 1325, n. 7. In the present case the plaintiffs pled that the strikes were without union authorization or approval. In Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F.2d 49 (7th Cir. 1971), the court dealt directly with the question before us. It concluded that §" } ]

[ { "docid": "14841666", "title": "", "text": "873-74 (10th Cir. 1982); Gower v. Cohn, 643 F.2d 1146, 1151-52 (5th Cir.1981); Spilker v. Shayne Laboratories, Inc., 520 F.2d 523, 524-25 (9th Cir.1975). True enough, a dictum by this Court’s colleague Judge Aspen has expressed his disinclination to find the jurisdictional requirement satisfied where the only connection with interstate commerce was an intrastate letter and an intrastate telephone call, both occurring before the negotiations giving rise to the fraud began. Barsy v. Venn, 508 F.Supp. 952, 955 & n. 4 (N.D.Ill.1981). Here by contrast at least one of Stephen’s telephone conversations with Wayne (on December 19) occurred in the midst of negotiations over the Agreement (Complaint Count I, ¶¶ 25-26); indeed it was the vehicle for crucial misrepresentations. In light of the clear weight of precedent treating intrastate telephone calls as jurisdictionally sufficient, together with the equally clear connection between Stephen’s telephone communication and the alleged fraud, defendants’ argument fails. As to their second position, defendants correctly state plaintiffs cannot prevail in a Section 10(b) action without showing a causal connection between (1) the use of an instrumentality of interstate commerce or the use of the mails and (2) the alleged fraud. But as Trecker v. Scag, 481 F.Supp. 861, 864 (E.D.Wis.1979) said: It is not required that the manipulative or deceptive device be communicated in the mailed materials, as long as such a device is employed in connection with the use of the mails or of the instruments of interstate commerce. Stephen’s letters to Wayne described in the Complaint (Count II ¶ 49) — two invoices, a letter authorizing the sale/leaseback arrangement and a letter concerning the substitution of rents for the farm equipment as Wayne’s capital contribution to the Partnership — satisfy that standard. While none of those documents is a self-contained misrepresentation or other fraudulent communication, they all implement the continuing course of dealings between the parties that constituted the fraudulent scheme. In other words, the letters represent a use of the mails in connection with a transaction alleged to constitute a securities fraud. That is enough to satisfy the Section 10(b) jurisdictional requirement. Count II" } ]

[ { "docid": "7349638", "title": "", "text": "§ 77q(a). Counts IV and IVA allege violations of Section 12 of the Illinois Securities Law of 1953 (“Illinois Securities Law”), Ill.Rev.Stat. ch. 121V2, § 137.12 (1985). Counts V and VA allege the defendants engaged in “churning” in violation of Sections 10(b) and 15(c)(1) of the 1934 Act, 15 U.S.C. § 78o(c)(l). Counts VI and VIA allege common law fraud and Counts VII and VIIA are based on breach of contract. Count VII alleges Paine Webber recklessly breached its duty to supervise Gallagher’s handling of plaintiffs’ accounts. The court will consider the arguments presented by Paine Webber in support of their motion in the order in which they are presented in its supportive memorandum. Rule 9(b) — Fraud Allegations in General Paine Webber seeks dismissal of those counts of the complaint based on fraud (all counts except VII, VIIA, and VIII) for failure to plead with the specificity required under Rule 9(b). See Fed.R. Civ.P. 9(b). Defendants point to a number of deficiencies which the court finds do not require dismissal. Rule 9(b)’s requirement that “the circumstances constituting fraud ... be stated with particularity” must be read together with the general requirements of Rule 8(a) that plaintiff need only plead a “short and plain statement of the claim” showing their entitlement to relief. Id.; Fed.R.Civ.P. 8(a). Read together, the rules require the time, place, and contents of the fraud to be plead, but do not require the plaintiff to plead evidence. Tomera v. Galt, 511 F.2d 504, 508 (7th Cir.1975); Coca-Cola Co. Foods Div. v. Olmarc Packaging Co., 620 F.Supp. 966, 973 (N.D.Ill.1985). Generally, a complaint is considered sufficient if it sets forth the time, place, particular contents of the false representations, the identity of the party making the misrepresentations, and the consequences of the misrepresentations. Onesti v. Thomson McKinnon Securities, Inc., 619 F.Supp. 1262 (N.D.Ill.1985). In the present case, plaintiffs have sufficiently set forth the time period during which the misrepresentations and omissions are alleged to have been made. See Dunham v. Independence Bank of Chicago, 629 F.Supp. 983, 987 (N.D.Ill.1986) (“range of dates” sufficient); Trak Microcomputer Corp. v." }, { "docid": "9999568", "title": "", "text": "not named. Only the month, not the date, of each communication was given, and no location is mentioned. The content of each communication is given only in vague and general terms. There is no excuse for such vagueness, since, with the exception of the representations to non-party Multibank, these representations were made to the Plaintiffs themselves. If liability is to be predicated upon these communications the Plaintiffs will have to replead them. Plaintiffs cite Capalbo v. Paine Webber, Inc., 672 F.Supp. 1048, 1050 (N.D.Ill.1987) (Norgle, J.), which stated in a seeuritiesfraud claim having several plaintiffs that the plaintiffs did not need to identify which particular misrepresentation was made to each plaintiff. The court stated that a complaint was sufficient if it sets forth (1) when the misrepresentations were made; (2) where they were made; (3) the particular contents of the misrepresentations;- (4) the identity of the party making them; and (5) the consequences of the misrepresentations. Even if Capalbo is correct and the plaintiffs did not need to plead to whom the misrepresentations were made, element (3) is doubtful here and element (2) is missing. But we also respectfully disagree with Capalbo on the basis of later authority. In Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989), the Ninth Circuit affirmed the district court’s refusal to accept an amended complaint in a securities fraud suit, noting that the proposed complaint did not specify which plaintiffs received which prospectus. The court stated that “Rule 9(b) requires that the pleader state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Id. at 541. See also Graue Mill, 927 F.2d at 992-93 (citing with approval Ninth Circuit’s requirement in Moore that complaint state the identities of the parties to the misrepresentations); QO Acquisition Corp. v. The Julien Co., No. 88 C 6050, 1990 WL 16459, 1990 U.S. Dist. LEXIS 1467 (N.D.Ill. 1990) (Plunkett, J.). We also agree with Graffia and Hartford that the complaint does not adequately charge either of them with fraud in connection with the" }, { "docid": "514196", "title": "", "text": "with their own cross motion for summary judgment, filed April 17, 1995. Based upon these motions and the accompanying briefs, Plaintiffs have only shown genuine questions of material fact with respect to one issue: whether any of the Rally Defendants sold unregistered securities in violation of Section 12(1) of the 1933 Securities Act. 15 U.S.C. § 111 (1) (1988). Accordingly, summary judgment is granted in favor of the Rally Defendants on all other issues. 1. FRAUDULENT INDUCEMENT TO INVEST In Count I of the Complaint, Plaintiffs allege that the Rally Defendants fraudulently induced them to invest. Under Indiana law, fraud may be actual or constructive. Coffey v. Wininger, 156 Ind.App. 233, 296 N.E.2d 154, 159 (1973). It is unclear from Plaintiffs’ Complaint and briefs whether they claim the Rally Defendants committed actual or constructive fraud; however, the Plaintiffs have failed to raise a genuine issue of material fact under either theory. Therefore, summary judgment in Defendants’ favor on this issue is appropriate. To prevail in an actual fraud claim under Indiana law, the plaintiff must prove the following elements: “(1) a material misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused the injury or damage complained of.” Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind.1992); see also Schwartz v. Oberweis, 826 F.Supp. 280, 288 (N.D.Ind.1993). Indiana courts require an actionable misrepresentation to be “of past or existing fact.” Schwartz, 826 F.Supp. at 288 (quoting Smith v. Colgate-Palmolive Co., 752 F.Supp. 273, 278 (S.D.Ind.1990), aff'd 943 F.2d 764 (7th Cir.1991)). Indiana law is well-settled that actual fraud may not be based on representations regarding future conduct, or on broken promises, unfulfilled predictions or statements of existing intent which are not executed. Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1315 (Ind.Ct.App.1993). Also, to have the force and effect of a fraudulent misrepresentation, a representation must be unqualified. Bischoff Realty, Inc. v." }, { "docid": "18414160", "title": "", "text": "material fact. This argument rests on the general rule that a promise to perform a future act, even if not an accurate reflection of present intention, is not sufficient to constitute fraud in Illinois. It is true as a general rule in Illinois that a promise to perform a future act, even if accompanied at the time with an intention not to perform that act, is not a false representation as will constitute fraud. Roda v. Berko, 401 Ill. 335, 340, 81 N.E.2d 912 (1948). However, a false representation of intent to perform an act in the future is actionable in Illinois when that representation is the scheme used to accomplish the fraud. Carroll v. First National Bank of Lincolnwood, 413 F.2d 353, 358-59 (7th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970); Wilhoite v. Fastenware, Inc., 354 F.Supp. 856, 858 (N.D.Ill. 1973); Steinberg v. Chicago Medical School, 69 Ill.2d 320, 334, 13 Ill.Dec. 699, 371 N.E.2d 634 (1977); Willis v. Atkins, 412 Ill. 245, 260, 106 N.E.2d 370 (1952). In some respects, this exception appears to “engulf and devour much of the general rule.” Vance Pearson, Inc. v. Alexander, 86 Ill. App.3d 1105, 1112, 42 Ill.Dec. 204, 408 N.E.2d 782 (4th Dist. 1980). In any event, the Court is persuaded that the misrepresentation alleged here can. be characterized fairly as part of a scheme to defraud and does state a claim for which relief can be granted. According to plaintiff’s allegations, G.E.’s misrepresentation was a deliberate device to induce plaintiff to enter this agreement to his detriment. The misrepresentation was an integral step in achieving the agreement. Moreover, the misrepresentation alleged here related to the binding character of the agreement reached between the parties as well as G.E.’s intention to engage in particular future conduct. In this respect, therefore, the misrepresentation involved an allegedly untrue statement of present fact as well as future intention. Accordingly, defendant’s motion to dismiss Count II is denied. COUNT III Count III of plaintiff’s complaint alleges that his discharge from employment was in retaliation for his resistance to" }, { "docid": "7349647", "title": "", "text": "Peabody & Co., 617 F.Supp. 1065 (S.D.N.Y.1985) (fraudulent inducements to open and retain accounts not actionable). Because the alleged misrepresentations and omissions were not made in connection with the purchase or sale of securities, Counts I and IA are dismissed. Rule 12(b)(6) — Section 17 Claims Defendants contend no private cause of action exists under Section 17(a) of the 1933 Act. 15 U.S.C. § 77q(a). Although the Seventh Circuit has not ruled on the issue, the court finds the reasoning of the court in Preston v. Kruezer, 641 F.Supp. 1163 (N.D.Ill.1986), and the cases cited therein, persuasive and dispositive. No private cause of action exists under Section 17(a). Counts III and IIIA are, therefore, dismissed. Jurisdiction The only counts remaining are based on violations of Illinois law. Plaintiffs’ jurisdictional allegations refer to those claims as pendent state law claims. However, the allegations are sufficient to establish the basis for the court’s exercise of diversity jurisdiction. See 28 U.S.C. § 1332. The court will, therefore, exercise jurisdiction over those claims and rule on Paine Webber’s arguments in support of their dismissal. Common Law Fraud The court agrees with Paine Webber that many of the misrepresentations which plaintiffs allege form the basis for a claim of common law fraud are insufficient. Under Illinois law, an action for fraud can only be based upon representations regarding present conditions or past acts, not future promises or intentions. Hurley v. Frontier Motors, Inc., 12 Ill.App.3d 905, 299 N.E.2d 387 (1973). Illinois does not recognize an exception to this rule where the one who makes the future promise has no present intention to perform. Id. Similarly, mere opinions as to future events are not actionable. Ziskin v. Thrall Car Mfg. Co., 106 Ill.App.3d 482, 62 Ill.Dec. 255, 435 N.E.2d 1227 (1982). The allegations contained in paragraphs 15(c)-(f) relate to Gallagher’s intentions to follow a certain system in the handling of plaintiffs’ accounts and, therefore, constitute promises of future acts. The allegation in paragraph 16 referring to the certainty of success of the system constitutes an opinion as to future events. Likewise, paragraph 20(a) refers to the" }, { "docid": "14913800", "title": "", "text": "state a claim under the Deceptive Trade Practices Act, defendants’ motion to dismiss Count V is granted. E. Count VI (Fraud and Equitable Estoppel) Finally, defendants move to dismiss Count VI brought under the common law of fraud and equitable estoppel. Defendants first argue that the statements of intent alleged in the complaint cannot, as a matter of law, provide the basis for a fraud claim. We agree. “The requisite elements of a common law fraud cause of action are: (1) a false statement of material fact, intentionally made; (2) the party to whom the statement was made had the right to rely on it; (3) the statement was made for the purpose of inducing reliance thereon; and (4) the reliance by the person to whom the statement was made led to his injury.” Mitchell v. Skubiak, 248 Ill.App.3d 1000, 188 Ill.Dec. 443, 447, 618 N.E.2d 1013, 1017 (1993). Although a misrepresentation of intention to perform future conduct usually does not constitute fraud, an action for fraud will lie if the false promise of future conduct was made as part of a scheme to defraud. HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 137 Ill.Dec. 19, 29, 545 N.E.2d 672, 682 (1989); Louis Glunz Beer, Inc. v. Martlet Importing Co., Inc., 864 F.Supp. 810, 815 (N.D.Ill.1994). In order to avail oneself of this exception, however, a plaintiff must show at the pleading stage some “specific, objective manifestations of fraudulent intent—a scheme or device. If he cannot, it is in effect presumed that he cannot prove facts at trial entitling him to relief.” Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir.1992) (quoting Hollymatic Corp. v. Holly Systems, Inc., 620 F.Supp. 1366, 1369 (N.D.Ill.1985)). For example, in Bower the Seventh Circuit affirmed a grant of summary judgment for the defendant because, aside from the broken promise itself, the plaintiff had failed to introduce sufficient evidence indicating that the defendant never intended to keep its word. 978 F.2d at 1012. In this case, ISC alleges that defendants repeatedly represented that if ISC developed new products and formulations" }, { "docid": "10354899", "title": "", "text": "As was stated in Lincoln National Bank v. Lampe, 414 F.Supp. 1270, 1279 (N.D.Ill.1976), “a plaintiff alleging fraud must specify the time, place and contents of any alleged false representations, and the full nature of the transaction.” Therefore, that part of Count II alleging willful misrepresentations and omissions is dismissed. As to the allegations of negligent misrepresentations and omissions, this court is well aware that under New York state common law, an employer’s obligations under a pension plan are limited to that plan’s terms and are solely contractual in nature. See Schneider v. McKesson & Robbins, Inc., 254 F.2d 827, 829-30 (2d Cir. 1958); Gitelson v. DuPont, 17 N.Y.2d 46, 49, 268 N.Y.S.2d 11, 13, 215 N.E.2d 336, 337 (1966); Stanley v. Caltex Petroleum Corp., 63 Misc.2d 780, 782-83, 313 N.Y.S.2d 836, 838 (Sup.Ct. Queens County 1970); Bailey v. Rockwell Spring and Axle Co., 13 Misc.2d 29, 33, 175 N.Y.S.2d 104, 108 (Sup.Ct.N.Y. County 1958). However, it is elementary tort law that where no duty exists, a “voluntary assumption of a duty by affirmative conduct” may arise. See W. Prosser, Handbook of the Law of Torts, § 56 at 338-48 (4th ed. 1971). In the case at hand, although defendant would not have been neg ligent in remaining silent as to the terms of the pension plan, once a voluntary representation based on the plan’s terms was uttered, a duty of care arose as to the accuracy and truth of those representations along with a concomitant obligation to avoid negligent omissions following thereafter. See Gediman v. Anheuser Busch, Inc., 299 F.2d 537, 546 (2d Cir. 1962). For these reasons, the motion to dismiss Count II for failure to state a claim based upon negligent misrepresentations and omissions is denied. COUNT III Count III of plaintiff’s complaint alleges a class action for damages resulting from violations of Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) and Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. 240.10b-5, promulgated thereunder. The alleged misrepresentations and omissions are those embodied in paragraph" }, { "docid": "7349643", "title": "", "text": "Rule 9(b) and are, therefore, dismissed. Rule 9(b) and Notice — Illinois Securities Law Claims In its initial brief, Paine Webber argued plaintiffs’ Illinois Securities Law claims failed to allege fraud with the specificity required by Rule 9(b) because the specific subsections of Section 12 which defendants allegedly violated were not identified. Paine Webber has apparently decided not to pursue that argument in light of plaintiffs’ response which points out that the specific subsections are, in fact, identified in the complaint. Paine Webber now asserts the claims are barred by the notice requirements contained in the Illinois Securities Law. See Ill.Rev.Stat. ch. 121V2, § 137.13 (1985). However, plaintiffs have not had an opportunity to respond to that argument and the court will not rule without the benefit of that response. Plaintiffs shall respond solely to that argument within 14 days from the date of this order. Plaintiffs should keep in mind in formulating their response that the only remedy available under the Illinois Securities Law is rescission and that remedy is expressly conditioned upon purchasers giving notice of their election to rescind to the person from whom a recovery is sought. Peoria Union Stock Yards Co. Retirement Plan v. Penn Mutual Life Insurance Co., 698 F.2d 320 (7th Cir.1983); Renovitch v. Stewardship Concepts, Inc., 654 F.Supp. 353 (N.D.Ill.1987). Rule 12(b)(6) — Section 10(b) and Rule 10b-5 Claims Defendants contend plaintiffs Section 10(b) and Rule 10b-5 claims should be dismissed for failure to allege fraud “in connection with the purchase or sale of a security.” See 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. The court agrees. In O’Brien v. Continental Illinois National Bank and Trust, 593 F.2d 54 (7th Cir.1979), the Seventh Circuit concluded that the relevant inquiry in determining wheth er a claim falls within the fundamental purpose of Section 10(b) “is whether plaintiffs were denied information that would or might have been useful to them in deciding whether to purchase or sell securities which they actually did purchase or sell.” O’Brien, 593 F.2d at 60. The important point in the analysis is whether the misrepresentations or omissions relate" }, { "docid": "12852076", "title": "", "text": "consequences of the misrepresentation. Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982); Segal v. Gordon, 467 F.2d 602, 606 (2d Cir.1972). However, plaintiffs are not expected to specify the exact time and particular place of each factual omission or misrepresentation. Onesti, supra, 619 F.Supp. at 1265. In addition, Rule 9(b) must be read in conjunction with Rule 8, which requires a short and plain statement of the claim. Rudolph v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 100 F.R.D. 807, 809 (N.D.Ill.1984) citing Tomera v. Galt, 511 F.2d 504, 508 (7th Cir.1975). In the instant case, plaintiffs’ plain statement of their claim outlines the fraud with adequate particularity. The complaint sets forth the nature of the fraud in relative detail. The allegations assert that the securities were not registered under the provisions of Section 5 of the Securities Act and were not exempt from such registration. No prospectus, financial statement, or any information typically included in a registration statement was ever delivered or made available to plaintiffs in connection with plaintiffs’ purchases of the securities. The complaint also asserts that each defendant knew or should have known that the sales of these securities were being made in violation of the securities laws and that each defendant knew or should have known of the precarious financial positions of West Alloy and K-35, yet failed to disclose this material information to plaintiffs in violation of their respective duties to do so. Further, the complaint indicates the respective purchase dates of the allegedly fraudulent transactions, each defendant’s role in participating in the fraud, and the resulting adverse consequences of the fraud to plaintiffs. These allegations adequately set out the alleged fraud by defendants and are certainly sufficient to permit adequate responsive pleadings. Therefore, this court finds plaintiffs’ complaint sufficient to meet the requirements of Rule 9(b). Next, defendants argue that Counts I and III, in which plaintiff alleges violations of § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), should be dismissed because there is no private right of action under § 17(a). However, this court sees no compelling" }, { "docid": "9999567", "title": "", "text": "of the claims against them and to enable them to form an adequate defense; (2) to eliminate the filing of a conelusory complaint as a pretext for using discovery to uncover wrongs; and (3) to protect defendants from unfounded charges of fraud which may injure their reputations. Fujisawa, 814 F.Supp. at 726; Reshal Assoc., Inc. v. Long Grove Trading Co., 754 F.Supp. 1226, 1230 (N.D.Ill.1990) (citations omitted). See also Bankers Trust Co. v. Old Republic Ins. Co., 697 F.Supp. 1483, 1484-85 (N.D.Ill.1988) (Moran, J.) (citations omitted). Rule- 9(b) applies both to common law fraud and allegations of federal mail fraud as predicate acts for a civil RICO claim. Graue Mill, 927 F.2d at 992. We agree with Graffia that the Complaint’s account of Graffia’s statements on behalf of Hartford to the four lenders does not meet this test. The Complaint recites only that Hartford and Graffia represented to each lender that Dreamstreet and Marine were borrowers with strong financial positions that met the lender’s creditworthiness standards. The representatives of the lenders receiving these communications were not named. Only the month, not the date, of each communication was given, and no location is mentioned. The content of each communication is given only in vague and general terms. There is no excuse for such vagueness, since, with the exception of the representations to non-party Multibank, these representations were made to the Plaintiffs themselves. If liability is to be predicated upon these communications the Plaintiffs will have to replead them. Plaintiffs cite Capalbo v. Paine Webber, Inc., 672 F.Supp. 1048, 1050 (N.D.Ill.1987) (Norgle, J.), which stated in a seeuritiesfraud claim having several plaintiffs that the plaintiffs did not need to identify which particular misrepresentation was made to each plaintiff. The court stated that a complaint was sufficient if it sets forth (1) when the misrepresentations were made; (2) where they were made; (3) the particular contents of the misrepresentations;- (4) the identity of the party making them; and (5) the consequences of the misrepresentations. Even if Capalbo is correct and the plaintiffs did not need to plead to whom the misrepresentations were made," }, { "docid": "3562538", "title": "", "text": "predicated on promissory fraud concerning a contractual representation. However, as numerous courts have noted, Illinois law \"bars [promissory] fraud claims only when the sole breach relates to a promise to do something in the future. Where the defendant misrepresented an existing or past fact, a fraud claim arises.” Midland Mgmt. Corp. v. Computer Consoles, Inc., No. 87 C 0971, 1992 WL 281354, *3 (N.D.Ill. Oct. 8, 1992) (Posner, L, sitting by designation) (internal quotation marks and citation omitted). In addition, as Judge Posner explained, \"even with respect to 'misrepresentations of intention to perform future conduct,’ Illinois recognizes an exception where the misrepresentation is 'the scheme employed to accomplish the fraud.' \" Id. (quoting HPI Health Care Servs. v. Mt. Vernon Hospital, 131 Ill.2d 145, 137 Ill.Dec. 19, 545 N.E.2d 672, 682 (1989)). \"That exception is so broad that it probably swallows the rule.” Id. (citing Lovejoy Elecs. v. O’Berto, 873 F.2d 1001, 1004 (7th Cir.1989)); accord, e.g., Stamatakis Indus., Inc. v. King, 165 Ill.App.3d 879, 117 Ill.Dec. 419, 520 N.E.2d 770, 772-73 (1987) (collecting cases); see also Speakers of Sport, Inc. v. ProServ., Inc., 178 F.3d 862, 866 (7th Cir.1999) (explaining that exception also applies where the promissory fraud \"is part of a scheme to defraud, that is, ... is one element of a pattern of fraudulent acts.”) (collecting cases); Desnick v. Am. Broadcasting Cos., 44 F.3d 1345, 1354 (7th Cir.1995) (\"[P]romissory fraud is actionable ... [if] it is embedded in a larger pattern of deceptions or enticements....”). In this case, even if Illinois law applied with respect to Count III, Plaintiff almost surely has sufficiently invoked the exception in Illinois law described above. In this regard, Plaintiff has alleged multiple fraudulent statements, in-eluding the alleged false non-circumvention representation in the Agreement, and Mr. Hong’s alleged false statements that the deal was not going to occur and that he did not have any faith in the deal (both of which might be seen as statements of present fact and not future intention), when at that time Mr. Warner believed he had a deal and the Warner Defendants were having attorneys" }, { "docid": "7349649", "title": "", "text": "future success of plaintiffs’ investments and constitutes an opinion as to future events. Paragaphs 20(b), (f), (g), (h), and (i) refer to the expected rate of return on plaintiffs’ investments and the acts which would be taken to monitor the accounts. Those alleged misrepresentations constitute either opinions as to future events or promises to perform future acts. The aforementioned allegations are insufficient to form the basis for a fraud claim under Illinois law and are, therefore, stricken. See Fed.R.Civ.P. 12(f). The remaining alleged misrepresentations relate to Gallagher’s experience as an investment advisor (paragraphs 15(a), (b), 20(e)), the nature of the investment system (paragraph 16), the present status of the accounts (paragraphs 18, 19), Paine Webber’s capability to monitor the accounts (paragraphs 20(c), (d)), and the importance of certain forms plaintiffs would be required to sign (paragraph 20(k)). Those misrepresentations refer to existing facts and may be actionable. Paine Webber’s motion to strike those allegations is, therefore, denied. Paragraphs 20(lHo) allege omissions which plaintiffs claim were material and, in light of the circumstances, misleading. Paine Webber correctly points out that under Illinois law silence cannot constitute fraud in the absence of a duty to speak. See, e.g., Manning v. Ashland Chemical Co., 498 F.Supp. 1382 (N.D.Ill. 1980). However, given plaintiffs’ allegations that they were unsophisticated investors relying upon defendants’ expertise in handling investments, the court cannot conclude, as a matter of law, defendants had no duty to reveal the matters which they are alleged to have omitted. Paine Webber’s motion to strike those paragraphs is, therefore, denied. Illinois Securities Law Claims The parties have not separately briefed the issue of whether the alleged misrepresentations are sufficient to state a claim for violation of the Illinois Securities Law. The court notes the Illinois law has been interpreted in conformity with federal law. See Hidell v. International Diversified Investments, 520 F.2d 529 (7th Cir.1975). Nevertheless, the parties should submit their arguments on this issue along with their briefs regarding plaintiffs’ entitlement to rescissionary relief. Breach of Contract The court agrees with Paine Webber that Counts VII and VILA fail to state a claim" }, { "docid": "14913801", "title": "", "text": "conduct was made as part of a scheme to defraud. HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 137 Ill.Dec. 19, 29, 545 N.E.2d 672, 682 (1989); Louis Glunz Beer, Inc. v. Martlet Importing Co., Inc., 864 F.Supp. 810, 815 (N.D.Ill.1994). In order to avail oneself of this exception, however, a plaintiff must show at the pleading stage some “specific, objective manifestations of fraudulent intent—a scheme or device. If he cannot, it is in effect presumed that he cannot prove facts at trial entitling him to relief.” Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir.1992) (quoting Hollymatic Corp. v. Holly Systems, Inc., 620 F.Supp. 1366, 1369 (N.D.Ill.1985)). For example, in Bower the Seventh Circuit affirmed a grant of summary judgment for the defendant because, aside from the broken promise itself, the plaintiff had failed to introduce sufficient evidence indicating that the defendant never intended to keep its word. 978 F.2d at 1012. In this case, ISC alleges that defendants repeatedly represented that if ISC developed new products and formulations at their direction, they would make plaintiff a major supplier of such chemicals. Although plaintiff alleges that such promises and representations were false and misleading at the time they were made, Complaint ¶ 15 (Count VI), ISC fails “to point to specific, objective manifestations of fraudulent intent” on the part of defendants. Instead, plaintiff bases its fraud claim solely on the ground that defendants’ alleged promise of future purchases never came to fruition. Because a claim of fraud for an alleged misrepresentation of future conduct cannot be grounded solely on the broken promise itself, Bower, 978 F.2d at 1012, we must grant defendants’ motion to dismiss this part of Count VI. Defendants also move to dismiss ISC’s equitable estoppel claim, arguing that the alleged promise was too indefinite to support a claim. “Equitable estoppel arises when a party, by his words or conduct, reasonably induces another to rely on his representation and, as a result of that reliance, the other changes his position to his injury.” Estate of Besinger v. Village of Carpentersville, 258 Ill.App.3d" }, { "docid": "8282517", "title": "", "text": "the mails.” (Emphasis added.) Plaintiff does not contend that the alleged fraudulent misrepresentations were made by the use of mails or any other instrumentality of commerce. However he contends that four intrastate phone calls were made by Guedry, an officer of Belle Meade to him as a part of the sales transaction, and that this gave the court jurisdiction. Since Congress’ power under the commerce clause to regulate local phone communications has been established this court need decide only a question of statutory construction: does the “interstate commerce” phrase in the jurisdictional clauses mean that these statutes require that the misrepresentation occur in interstate commerce? Or does this phrase simply define the kind of “transportation or communication” that is prerequisite and hence make the statute apply to a misrepresentation made by use of an interstate communication facility even though the particular use may itself be intrastate. If the use must be in interstate commerce, the plaintiff’s jurisdictional allegations are obviously inadequate. If any use of the telephone, which is undoubtedly an instrument of interstate commerce, is sufficient, jurisdiction would exist. The difference in the prepositions used in the two statutes may, of course, indicate that Congress intended them to be interpreted differently. Or it may be without substantive significance.' Section 10(b) of the Exchange Act requires use of an instrumentality of interstate commerce. Of the two possible constructions, it seems more natural to view “of interstate commerce” as a modifier of “instrumentality.” Four different courts have considered the problem and all but the one that first confronted the issue have so concluded. Myzel v. Fields, 8 Cir.1967, 386 F.2d 718; Bredehoeft v. Cornell, D.Or.1966, 260 F.Supp. 557; Nemitz v. Cunny, N.D.Ill.1963, 221 F.Supp. 571. Contra: Rosen v. Albern Color Research, Inc. E.D.Pa.1963, 218 F.Supp. 473. Defendant has failed to suggest a persuasive reason for rejecting what I believe to be the more natural construction. Thus plaintiff’s allegations of telephone communications are sufficient to make out jurisdiction under the Exchange Act and, as to that statute, summary judgment is denied. Sections 12(1), 12(2) and 17(a) of the Securities Act require use" }, { "docid": "21932690", "title": "", "text": "VI should be dismissed because Muehlbauer has failed to allege actual damages, causation, and any affirmative misrepresentation made by defendant. Defendant further argues that Count VI is not pled with particularity. Count VI is not subject to the infirmities that defendant identifies. In order to state a claim under the ICFA, a plaintiff must allege “(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 776 N.E.2d 151, 160, 267 Ill.Dec. 14 (Ill.2002); Geschke v. Air Force Ass’n, 425 F.3d 337, 345 (7th Cir.2005); Eromon v. Grand Auto Sales, Inc., 351 F.Supp.2d 825, 827 (N.D.Ill.2004). Consumers raising ICFA claims are afforded “far broader” protection than those who bring common law fraud claims. Celex Group, Inc. v. Executive Gallery, Inc., 877 F.Supp. 1114, 1128-29 (N.D.Ill.1995). Moreover, courts are to liberally construe the ICFA. Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 675 N.E.2d 584, 594, 221 Ill.Dec. 389 (Ill.1996). Similar to Count V, the deceptive acts complained of in Count VI are defendant’s non-disclosure and concealment of the alleged defect. Muehlbauer explains that reference to defendant’s public statements is made to evidence defendant’s knowledge of the defect. The concealment or omission of a material fact in the conduct of commerce constitutes consumer fraud. Connick, 221 Ill.Dec. 389, 675 N.E.2d at 595; Pappas v. Pella Corp., 363 Ill.App.3d 795, 300 Ill.Dec. 552, 844 N.E.2d 995, 998 (Ill.App. 1st Dist.2006). A fact is material if “the plaintiff would have acted differently had she been aware of it, or if it concerned the type of information upon which she would be expected to rely in making her decision to act.” Mackinac v. Arcadia Nat’l Life Ins. Co., 271 Ill.App.3d 138, 648 N.E.2d 237, 239, 207 Ill.Dec. 781 (Ill.App. 1st Dist.1995). Common law fraudulent concealment claims must allege that the defendant had a duty to disclose the" }, { "docid": "20811907", "title": "", "text": "Generally, a complaint is considered sufficient when it sets forth the time, place, particular contents of the false representation, the identity of the party making the misrepresentation, and the consequences of the misrepresentation. Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir. 1982); Baselski v. Paine, Webber, Jackson & Curtis, 514 F.Supp. 535, 540 (N.D.Ill. 1981). The specificity requirements of Rule 9(b) have been imposed to ensure that defendants have been apprised of the claimed fraud in a manner sufficient to permit adequate responsive pleadings. Felton v. Walston, 508 F.2d 577, 581 (2d Cir.1974). Nevertheless, Rule 9(b)’s more stringent requirements must be read in conjunction with Rule 8, which requires a short and plain statement of the claim. Tornera v. Galt, 511 F.2d 504, 508 (7th Cir.1975). The sufficiency of a pleading under these rules varies with the complexity of the transaction. When the transactions are numerous and take place over an extended period of time, less specificity is required. Baselski v. Paine, Webber, Jackson & Curtis, 514 F.Supp. 535, 540 (N.D.Ill.1981). Defendants argue that the complaint is insufficient for a variety of reasons. First, they assert Counts I through III fail to allege the specific time and place where the representations were made. Second, they argue Counts II and III do not specify the content of the misrepresentation. Third, defendants maintain all counts fail to list the specific dollar amount of plaintiffs’ investment. Finally, defendants allege Count V fails to include any facts establishing a fiduciary relationship. Counts I through V and Count VII sufficiently comport with the requirements of Rule 9(b). Plaintiffs cannot be expected to specify the exact time and particular place of each factual omission and misrepresentation. The complaint adequately specifies the transactions and the approximate time frame, the contents of the alleged misrepresentations and the essence of omitted information, and the identities of those involved. In addition, there is little purpose in requiring plaintiffs to expand the complaint by including the specific dollar amount of plaintiffs’ investments. Finally, a close review of paragraphs 5 through 23 of the complaint reveals that a fiduciary relationship is" }, { "docid": "7349650", "title": "", "text": "correctly points out that under Illinois law silence cannot constitute fraud in the absence of a duty to speak. See, e.g., Manning v. Ashland Chemical Co., 498 F.Supp. 1382 (N.D.Ill. 1980). However, given plaintiffs’ allegations that they were unsophisticated investors relying upon defendants’ expertise in handling investments, the court cannot conclude, as a matter of law, defendants had no duty to reveal the matters which they are alleged to have omitted. Paine Webber’s motion to strike those paragraphs is, therefore, denied. Illinois Securities Law Claims The parties have not separately briefed the issue of whether the alleged misrepresentations are sufficient to state a claim for violation of the Illinois Securities Law. The court notes the Illinois law has been interpreted in conformity with federal law. See Hidell v. International Diversified Investments, 520 F.2d 529 (7th Cir.1975). Nevertheless, the parties should submit their arguments on this issue along with their briefs regarding plaintiffs’ entitlement to rescissionary relief. Breach of Contract The court agrees with Paine Webber that Counts VII and VILA fail to state a claim for breach of contract. The complaint merely states “Plaintiffs and Defendants entered into an investment contract whereby they promised to do, or refrain from doing, certain things.” In the very least, a breach of contract claim must identify those contractual obligations which the defendant has allegedly failed to perform. The complaint does not allege the nature of Paine Webber’s contractual obligations or how they were breached. The incorporation of the previous paragraphs of the complaint cannot cure this deficiency. For example, plaintiffs allege Gallagher represented that he would provide accurate client reports. Nowhere in the complaint is it alleged that the reports which were provided pursuant to that undertaking were inaccurate or that such reports were not provided. The same is true of the other misrepresentations and omissions alleged. All of the previous paragraphs refer to misrepresentations and omissions, not contractual obligations. Counts VII and VIIA are, therefore, stricken. ' Reckless Failure to Supervise The court cannot discern the legal basis for Count VIII either from the allegations or from plaintiffs’ responsive brief. Plaintiffs assert" }, { "docid": "7349648", "title": "", "text": "in support of their dismissal. Common Law Fraud The court agrees with Paine Webber that many of the misrepresentations which plaintiffs allege form the basis for a claim of common law fraud are insufficient. Under Illinois law, an action for fraud can only be based upon representations regarding present conditions or past acts, not future promises or intentions. Hurley v. Frontier Motors, Inc., 12 Ill.App.3d 905, 299 N.E.2d 387 (1973). Illinois does not recognize an exception to this rule where the one who makes the future promise has no present intention to perform. Id. Similarly, mere opinions as to future events are not actionable. Ziskin v. Thrall Car Mfg. Co., 106 Ill.App.3d 482, 62 Ill.Dec. 255, 435 N.E.2d 1227 (1982). The allegations contained in paragraphs 15(c)-(f) relate to Gallagher’s intentions to follow a certain system in the handling of plaintiffs’ accounts and, therefore, constitute promises of future acts. The allegation in paragraph 16 referring to the certainty of success of the system constitutes an opinion as to future events. Likewise, paragraph 20(a) refers to the future success of plaintiffs’ investments and constitutes an opinion as to future events. Paragaphs 20(b), (f), (g), (h), and (i) refer to the expected rate of return on plaintiffs’ investments and the acts which would be taken to monitor the accounts. Those alleged misrepresentations constitute either opinions as to future events or promises to perform future acts. The aforementioned allegations are insufficient to form the basis for a fraud claim under Illinois law and are, therefore, stricken. See Fed.R.Civ.P. 12(f). The remaining alleged misrepresentations relate to Gallagher’s experience as an investment advisor (paragraphs 15(a), (b), 20(e)), the nature of the investment system (paragraph 16), the present status of the accounts (paragraphs 18, 19), Paine Webber’s capability to monitor the accounts (paragraphs 20(c), (d)), and the importance of certain forms plaintiffs would be required to sign (paragraph 20(k)). Those misrepresentations refer to existing facts and may be actionable. Paine Webber’s motion to strike those allegations is, therefore, denied. Paragraphs 20(lHo) allege omissions which plaintiffs claim were material and, in light of the circumstances, misleading. Paine Webber" }, { "docid": "7349646", "title": "", "text": "not to the sale or purchase of any particular securities. The alleged misrepresentations and omissions listed in paragraph 20 are similarly flawed. They all refer to inducements to permit defendants to invest funds on plaintiffs’ behalf and to allow the funds already invested to remain invested. In sum, all of the misrepresentations and omissions identified in the complaint relate to the establishment, functioning, and status of the brokerage accounts, not to the sale or purchase of any particular securities. It is the nature of the misrepresentations and omissions alleged which renders plaintiffs Section 10(b) claims defective, not the nature of the accounts. The exception which plaintiffs attempt to place themselves within applies only where the fraudulent conduct can affect the plaintiff-investor’s decision to invest in particular securities. See, e.g., Lewelling v. First California Co., 564 F.2d 1277 (9th Cir.1977). In the present case, the very nature of the alleged fraudulent conduct relates to the decision as to whether to retain an investment account, not the decision to purchase or sell securities. See Moran v. Kidder Peabody & Co., 617 F.Supp. 1065 (S.D.N.Y.1985) (fraudulent inducements to open and retain accounts not actionable). Because the alleged misrepresentations and omissions were not made in connection with the purchase or sale of securities, Counts I and IA are dismissed. Rule 12(b)(6) — Section 17 Claims Defendants contend no private cause of action exists under Section 17(a) of the 1933 Act. 15 U.S.C. § 77q(a). Although the Seventh Circuit has not ruled on the issue, the court finds the reasoning of the court in Preston v. Kruezer, 641 F.Supp. 1163 (N.D.Ill.1986), and the cases cited therein, persuasive and dispositive. No private cause of action exists under Section 17(a). Counts III and IIIA are, therefore, dismissed. Jurisdiction The only counts remaining are based on violations of Illinois law. Plaintiffs’ jurisdictional allegations refer to those claims as pendent state law claims. However, the allegations are sufficient to establish the basis for the court’s exercise of diversity jurisdiction. See 28 U.S.C. § 1332. The court will, therefore, exercise jurisdiction over those claims and rule on Paine Webber’s arguments" }, { "docid": "2504345", "title": "", "text": "and Phelps McLaury could not have been damaged by the defendants’ alleged failure to inform him of an acquisition which never took place. The Seventh Circuit recently rejected this argument by Duff and Phelps in one of the other three cases brought by former Duff and Phelps shareholders. See Jordan v. Duff and Phelps, Inc., 815 F.2d 429, 440-42 (7th Cir.1987). Accord Guy v. Duff and Phelps, Inc., 672 F.Supp. 1086, 1092 (N.D.Ill.1987) (Shadur, J.). C. The Board of Directors Resolution As for Hansen’s statement to McLaury that the Board of Directors resolution made it “necessary” for McLaury to sell his shares back to Duff and Phelps, the defendants argue that Hansen did not make a misrepresentation because the Board’s resolution in fact did require that McLaury sell back his shares. The text of the resolution, however, belies the defendants’ factual claim. The resolution states that Duff and Phelps “shall buy” McLaury’s shares, not that McLaury shall sell his shares. See PX 15; DX F. The resolution can be interpreted as an agreement to convince McLaury just as well as an agreement to order McLaury. After all, Duff and Phelps’ use of “shall sell” in the Agreement indicates that the corporation knew precisely what to say in cases where it would be necessary for an employee to sell his shares back. See DX E. II State Law Claims The defendants also seek summary judgment on Counts II through IV, the state law counts. But in this regard the defendants rely on the same arguments this court has rejected for dismissal of the federal securities claims. Those arguments do not sound any better here. III Rescission In his prayer for relief at the end of each of Counts I through IV, McLaury seeks damages or, in the alternative, a rescission. By phrasing his prayer in such a way, McLaury has clearly expressed a preference for the remedy of damages over rescission. In Jordan v. Duff and Phelps, Inc., 815 F.2d 429 (7th Cir.1987), the Seventh Circuit discussed the unfairness inherent in allowing the plaintiff “to shift all of the ordinary investment" } ]

[ { "docid": "20515902", "title": "", "text": "the standard of objective reasonableness and that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This he cannot do. A. It is important at the outset to emphasize the basic lesson of Strickland v. Washington: “judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. It is “all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. Thus, an evaluation of attorney performance requires that “every effort be' made to eliminate the distorting effects of hindsight.” Id. Further, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. Attorneys need not raise every possible claim to meet the constitutional standard of effectiveness. They are permitted to set priorities, determine trial strategy, and press those claims with the greatest chances of success. See Evans v. Thompson, 881 F.2d 117, 124 (4th Cir.1989). In fact, there are “countless ways to provide effective assistance in any given case.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id. The “right to effective assistance of counsel extends to require such assistance on direct appeal” as well as at trial. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir.2000) (en banc) (applying the Strickland standard to claims of ineffective assistance of counsel during appellate proceeding). We likewise presume that appellate counsel “decided which issues were most likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir.1993). Effective assistance of appellate counsel “does not require the presentation of all issues on appeal that may have merit.” Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir.2008). As a general matter, “ ‘only when ignored issues are clearly stronger than those presented’ ” should" } ]

[ { "docid": "20472099", "title": "", "text": "must, in other words, demonstrate that “a hearing could enable [him] to prove ... factual allegations” that, “if true, would entitle [him] to federal habeas relief.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). Because Stokley’s claim is premised on the alleged ineffective assistance of counsel, he must satisfy the two-pronged test in Strickland. Specifically, Stokley must present a colorable claim “that (1) ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” West, 608 F.3d at 485-86 (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). “ ‘Surmounting [this] high bar is never an easy task.’ ” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Padilla v. Kentucky, 599 U.S. -, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)). Stokley cannot overcome the first hurdle— that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. C. Ineffective Assistance In assessing counsel’s performance, we “must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance.” Harrington, 131 S.Ct. at 787 (internal quotation marks omitted). We take “every effort to eliminate the distorting effects of hindsight,” Earp, 431 F.3d at 1174 (internal quotation marks omitted), “give the attorneys the benefit of the doubt,” and “entertain the range of possible reasons ... counsel may have had for proceeding as they did,” Pin-holster, 131 S.Ct. at 1407 (internal quotation marks and alteration omitted). Thus, “[e]ven under de novo review,” the standard we apply “is a most deferential one.” Harrington, 131 S.Ct. at 788. “The question is whether [counsel’s] representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Id. (internal quotation marks omitted). Stokley’s trial counsel undertook an extensive investigation into mitigating factors before sentencing. Most significant to this appeal, counsel secured two medical opinions regarding Stokley’s mental health. Morris examined Stokley at counsel’s" }, { "docid": "10340112", "title": "", "text": "standard “must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052). “To satisfy Strickland’s deficiency component, the convicted defendant must show that counsel’s performance fell below an objective standard of reasonableness. This means identifying acts or omissions of counsel that could not be the result of professional judgment.” United States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th Cir.1988) (internal citations omitted). “The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Har rington, 131 S.Ct. at 788 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Our review of counsel’s performance is “highly deferential,” and the defendant is required to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks and citations omitted). As the Supreme Court recently emphasized in Harrington, 131 S.Ct. at 788, when a habeas petitioner raises an ineffective assistance claim, “[t]he bar for establishing that a state court’s application of the Strickland standard was ‘unreasonable’ is a high one, and only a clear error in applying Strickland will support a writ of habeas corpus.” Allen, 555 F.3d at 600. “This principle applies because ‘Strickland builds in an element of deference to counsel’s choices in conducting the litigation [and] § 2254(d)(1) adds a layer of respect for a state court’s application of the legal standard.’ ” Ouska v. Cahill-Masching, 246 F.3d 1036, 1053 (7th Cir.2001) (alteration in original) (quoting Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir.1997)). “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 131 S.Ct. at 788. However, if a state court does not reach either the issue of" }, { "docid": "8222492", "title": "", "text": "from substituting our own judgment for that of the state court.” Id. at 1166 (citations omitted). “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). AEDPA provides that “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103, 131 S.Ct. 770. Under this standard, “[e]ven a strong case for relief does not make the state court’s contrary conclusion unreasonable.” Id. at 102, 131 S.Ct. 770. As for the substantive standards applicable here, to prevail on a claim of ineffective assistance, “[fjirst, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Byrd, 645 F.3d at 1167 (noting that a defendant “must show both that his counsel’s performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense’ ” (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052)). Under the first Strickland prong, performance, “the standard for judging counsel’s representation is a most deferential one” under which “[t]he question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Harrington, 562 U.S. at 105, 131 S.Ct. 770 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). The Supreme Court has recognized that there are “countless ways to provide effective assistance in any given case,” “the best criminal defense attorneys would not defend a particular client in the same way,” and “[r]are are the situations in which the ‘wide latitude counsel must have in making tactical decisions’ will be limited to any one technique or approach.” Id. at 106, 131 S.Ct. 770 (quoting" }, { "docid": "12870250", "title": "", "text": "104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir.2009). This right is “firmly established” not only for trial but also for a first appeal as of right. Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986), citing Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Under the familiar two-pronged test of Strickland, Vinyard must show both that his attorney’s performance was deficient and that he was prejudiced as a result. E.g., Carter v. Douma, 796 F.3d 726, 735 (7th Cir.2015), citing Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). To satisfy the deficient performance prong, a petitioner must show that the representation his attorney provided fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Rodriguez v. United States, 286 F.3d 972, 983 (7th Cir.2002). A court’s scrutiny of an attorney’s performance is “highly deferential” to eliminate as much as possible the distorting effects of hindsight, and we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Groves v. United States, 755 F.3d 588, 591 (7th Cir.2014). Under these standards, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see also, e.g., United States v. Berg, 714 F.3d 490, 499 (7th Cir.2013) (decision not to call a particular witness); Harris v. United States, 366 F.3d 593, 596 (7th Cir.2004) (decision not to advocate for guideline “safety valve” at sentencing). A strategic choice based on a misunderstanding of law or fact, however, can amount to ineffective assistance. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, 571 U.S.-, -, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014); see also, e.g., Thomas v. Clements, 789 F.3d" }, { "docid": "17082955", "title": "", "text": "Under Strickland, the defense counsel’s performance will be found constitutionally ineffective only if the defendant can show (a) that his counsel’s performance was deficient; and (b) that he was prejudiced as a result of the deficient performance. 466 U.S. at 687, 104 S.Ct. 2052. The prejudice prong here is the same as the prejudice requirement of the cause and prejudice standard. Even if the prejudice requirement were satisfied (a question we do not decide), a showing of deficient performance would still be necessary. To establish deficient performance under Strickland, the defendant must show that his counsel’s actions “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. The question is whether the counsel’s performance fell “within the wide range of reasonable professional assistance” that a competent criminal defense counsel could provide under “prevailing professional norms.” Id. at 688-89, 104 S.Ct. 2052. “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). Judicial scrutiny of the defense counsel’s performance is “highly deferential,” and the defendant must overcome a “strong presumption ... that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The inquiry focuses on “the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 790, 178 L.Ed.2d 624 (2011); see also Dugas v. Coplan, 428 F.3d 317, 328 n. 10 (1st Cir.2005); Cofske v. United States, 290 F.3d 437, 444-45 (1st Cir.2002). The reviewing court is therefore “required not simply to give [the] attorneys the benefit of the doubt, but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as they did.” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011) (first alteration in original) (citation omitted) (internal quotation marks omitted). Important interests are served by requiring contemporaneous objections to courtroom closures. As the Supreme Court has recognized, objecting to a procedural error at trial “can often correct or avoid" }, { "docid": "8222494", "title": "", "text": "Strickland, 466 U.S. at 689, 104 S.Ct. 2052). As a result, the Court has held that “[c]ounsel [i]s entitled to formulate a strategy that [i]s reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” Id. at 107, 131 S.Ct. 770. When a petitioner raises a claim of ineffective assistance in a habeas petition, our “highly deferential” assessment of counsel’s performance under Strickland’s first prong, [Danny] Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010), is “doubly” so, Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), because we deferen tially evaluate counsel’s performance through the prism of AEDPA’s deference to the state court’s assessment of counsel’s performance. See Byrd, 645 F.3d at 1168 (noting that “[w]e defer to the state court’s determination that counsel’s performance was not deficient and, further, defer to the attorney’s decision in how to best represent a client” (alteration in original) (quoting Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009))). Put another way, applying the first layer of deference, we review only “whether the state court’s ap plication of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101, 131 S.Ct. 770 (emphasis added). Applying the second layer, we “apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Id. at 104, 131 S.Ct. 770 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). As the Court cautioned in Harrington, “Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. (emphasis added); accord [Victor] Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012). As for the prejudice prong (i.e., the second prong), the Strickland Court opined: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a" }, { "docid": "1468687", "title": "", "text": "by her alcoholism and other factors. The State responds that Parker’s attorneys’ performance was objectively reasonable and that, to the extent their performance was deficient, Parker cannot show prejudice. We must review Parker’s claim for ineffective assistance of counsel under the two-prong standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, Parker must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. To prove deficiency, Parker must show that his counsel’s performance “fell below an objective standard of reasonableness” as measured by prevailing professional norms. Id. at 688, 104 S.Ct. 2052. Under the prejudice prong, Parker “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The Strickland standard contemplates courts’ indulgence in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” See id. at 689, 104 S.Ct. 2052; see also Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-40, 178 L.Ed.2d 649 (2011) (citations omitted) (internal quotation marks omitted) (“Surmounting Strickland’s high bar is never an easy task.... The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.”). It is “all the more difficult” to prevail on a Strickland claim under § 2254(d). Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). As the standards that Strickland and § 2254(d) create are both “ ‘highly deferential,’ ” review is “ ‘doubly ” so when the two apply in tandem. Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)). Thus, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. The Michigan Court of Appeals rejected Parker’s claim" }, { "docid": "10340111", "title": "", "text": "Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Williams v. Bartow, 481 F.3d 492, 498 (7th Cir.2007). We evaluate the substance of Mr. Sussman’s ineffective assistance of counsel claims according to the familiar standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The law governing ineffective assistance claims, announced in Strickland, requires that [the defendant] must demonstrate that (1) counsel’s performance fell “outside the wide range of professionally competent assistance” and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 690, 694, 104 S.Ct. 2052. Allen v. Chandler, 555 F.3d 596, 600 (7th Cir.2009) (parallel citations omitted). Because “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial,” the Strickland standard “must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052). “To satisfy Strickland’s deficiency component, the convicted defendant must show that counsel’s performance fell below an objective standard of reasonableness. This means identifying acts or omissions of counsel that could not be the result of professional judgment.” United States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th Cir.1988) (internal citations omitted). “The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Har rington, 131 S.Ct. at 788 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Our review of counsel’s performance is “highly deferential,” and the defendant is required to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland 466" }, { "docid": "7216005", "title": "", "text": "was so lacking in justification [under Supreme Court precedent] that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). “[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations.” Id. at 786 (alteration in original) (citation and internal quotation marks omitted). “[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme Court].” Id. (citation and internal quotation marks omitted). In the end, “[i]f this standard is difficult to meet, that is because it was meant to be.” Id. B. Strickland and AEDPA McBride specifically asserts that the state courts unreasonably applied Strickland v. Washington to the facts of his ease. In Strickland, the Supreme Court held that every criminal defendant has a Sixth Amendment right to “reasonably effective [legal] assistance.” 466 U.S. at 687, 104 S.Ct. 2052. To succeed on an ineffective assistance of counsel claim, McBride must show that his “counsel’s performance was deficient,” id., that is, he must prove that “counsel’s representation fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052. In scrutinizing counsel’s performance, we “must be highly deferential,” and refrain from “seeond-guess[ing] counsel’s assistance after conviction or adverse sentence, [as] it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689, 104 S.Ct. 2052. We must “eliminate the distorting effects of hindsight,” and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. Deficient performance can only be found when “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Id. at 687,104 S.Ct. 2052. The Supreme Court in Richter discussed how to" }, { "docid": "2520637", "title": "", "text": "there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105, 131 S.Ct. 770. “However, if a state court does not reach either the issue of performance or prejudice on the merits, then ‘federal review of [that prong] ... is de novo.’ ” Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir.2011), quoting Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir.2008); see also Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam); Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. B. Performance To establish deficient performance under Strickland, Campbell must identify acts or omissions by counsel that fell below an objective standard of reasonableness and could not have been the result of professional judgment. Strickland, 466 U.S. at 688, 690, 104 S.Ct. 2052. “The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Harrington, 562 U.S. at 105, 131 S.Ct. 770, quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fan-assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. 1. Leroy Hunter and Toni Leonard We begin with the failure to present testimony by Leroy Hunter and Toni Leonard. On direct appeal, the state appellate court rejected this claim on the merits, holding that the defense lawyer’s decision not to call Mr. Hunter or Ms. Leonard was not deficient performance. Because this was a merits adjudication, AEDPA deference applies and we ask “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105, 131 S.Ct. 770. The state court’s analysis of defense counsel’s performance was an unreasonable application of Strickland. On the record before the state court, it was unreasonable to conclude that counsel made a reasonable decision not to call Mr. Hunter and Ms. Leonard as a matter of" }, { "docid": "15560153", "title": "", "text": "the contemporary records indicated that such theories were unsupportable.” Id. Petitioner claims that the Porter II court’s disposition of his claim was “contrary to, and an unreasonable application of, Strickland.” (Pet’s AEDPA Mem. Law at 49). 2.) Strickland v. Washington a.) Ineffective Assistance of Counsel Standard Under Strickland, in order to establish a claim of ineffective assistance of counsel at trial or at a death penalty sentencing proceeding, a convicted defendant must satisfy a two-part test. Strickland, 466 U.S. at 687-89, 104 S.Ct. 2052. First, Petitioner must show that counsel’s performance was deficient. Id. Second, Petitioner is obligated to show that counsel’s “deficient performance prejudiced the defense.” Id. “[T]he burden of proof and persuasion rests with the Petitioner to establish ineffective assistance of counsel at trial.” U.S. v. Lively, 817 F.Supp. 453, 459 (D.Del.1993) (citations omitted). In order to satisfy the first prong of the Strickland test, Petitioner must establish that counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requirement consists of “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Thus, Petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688-90, 104 S.Ct. 2052. The objective standard of reasonableness is measured under “prevailing professional norms.” Id. In determining the reasonableness of counsel’s actions, courts must be highly deferential to counsel’s decisions because there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Jermyn, 266 F.3d at 282 (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir.1996); Strickland, 466 U.S. at 689, 104 S.Ct. 2052)(internal quotation marks omitted). When assess ing counsel’s performance, a court must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689," }, { "docid": "12169282", "title": "", "text": "Amendment claim of ineffective assistance of counsel, Delatorre had to demonstrate both elements of the test announced in Strickland, 466 U.S. 668, 104 S.Ct. 2052. First, he had to show that his counsel’s performance was constitutionally deficient, meaning that it “fell below an objective standard of reasonableness” measured “under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. Second, he had to show that he suffered prejudice because of this deficiency, meaning that there was “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The district court concluded that Delatorre had failed to establish either element. We agree. We begin our discussion with deficient performance and then move to prejudice. 1. Deficient Performance Delatorre has failed to establish that Morelli’s representation was constitutionally deficient. When analyzing deficient performance, we apply a “‘strong presumption’ that counsel’s representation was \"within the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The central question in this analysis is not whether counsel’s conduct “deviated from best practices or most common custom,” but instead, “whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms.’ ” Sussman v. Jenkins, 636 F.3d 329, 349-50 (7th Cir. 2011) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. 770). In other words, a counsel’s representation “need not be perfect, indeed not even very good, to be constitutionally adequate.” McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (quoting Dean v. Young, 777 F.2d 1239, 1245 (7th Cir. 1985)). It must merely be reasonably competent. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Delatorre is correct that his Sixth Amendment right to effective counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); see also Missouri v. Frye, 566 U.S. 133, 144, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (“In today’s criminal justice system ... the negotiation of a plea bargain, rather than the" }, { "docid": "5896354", "title": "", "text": "' “second-guess counsel’s assistance after conviction or adverse sentence,” but rather must make “every effort ... to eliminate the distorting effects of hindsight” and “evaluate the conduct from counsel’s perspective at the time,” “indulging], a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and strategy. Id. at 689, 104 S.Ct. 2052. As the majority notes, because Caudill is a habeas petitioner, AEDPA provides that we may not grant her petition with regard to any state-court adjudication on the merits “unless the adjudication resulted in ' a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts.” Hodges v. Colson, 727 F.3d 517, 525 (6th Cir. 2013) (citing 28 U.S.C. § 2254(d)). Because the Kentucky Supreme Court found that Caudill’s trial counsel’s performance was constitutionally adequate but did not address prejudice, we give AEDPA deference to its performance determination but consider the prejudice prong de novo. Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Hodges, 727 F.3d at 537. Because AEDPA itself requires a deferential look at the determinations of state courts, when AEDPA applies to constrain a federal court’s review of a state court’s judgment on an ineffective-assistanee-of-counsel claim, review “is thus ‘doubly deferential.’ ” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). “The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). “Even in the context of federal habeas,” however, “deference does not imply abandonment or abdication of judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A. Performance As indicated above, Strickland affords attorneys “wide latitude” to make strategic decisions in representing their clients. Strickland, 466" }, { "docid": "13377531", "title": "", "text": "(2) “based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). “For purposes of reasonableness review, ‘a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir.2012) (quoting Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)). To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel was deficient in his performance and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the petitioner must demonstrate that his counsel’s performance fell below an objective standard of reasonableness. See id. at 688, 104 S.Ct. 2052. Second, he must demonstrate that he was prejudiced by the deficient performance. Id. at 694, 104 S.Ct. 2052. “When a state collateral review system issues multiple decisions, we typically consider the last reasoned opinion on the claim ... [ujnless [that] state-court opinion adopts or incorporates the reasoning of a prior opinion.... ” Woolley, 702 F.3d at 422 (quotation marks and citations omitted). As a preliminary matter, we clarify that the principal Strickland issue on appeal is not whether trial counsel’s decision not to raise an alibi defense at trial — in isolation from the rest of trial counsel’s conduct — was reasonable. The state court decision as well as the State’s brief repeatedly emphasizes that an attorney’s decision not to raise an alibi defense is generally considered a strategic decision entitled to substantial deference, a fundamental proposition we do not dispute. See Mosley, 689 F.3d at 848 (“To avoid the inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight, Strickland establishes a deferential presumption that strategic judgments made by defense counsel are reasonable.”). However, the main issue in this case is whether trial counsel’s investigation of" }, { "docid": "7377595", "title": "", "text": "466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To prevail on an ineffective assistance claim, a petitioner must establish that his “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Whether trial counsel provided constitutionally inadequate assistance is a mixed question of law and fact that we review de novo. Recendiz, 557 F.3d at 531; see also Strickland, 466 U.S. at 698, 104 S.Ct. 2052. To demonstrate deficient performance, the petitioner must show “that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “This means identifying acts or omissions of counsel that could not be the result of professional judgment. The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir.2011) (internal quotation marks and citations omitted). “Our review of the attorney’s performance is ‘highly deferential’ and reflects ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ ” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); see also Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (“A court considering a claim of ineffective assistance must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance. The challenger’s burden is to show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” (internal quotation marks and citation omitted)). To establish prejudice in the plea context, the defendant must demonstrate through objective evidence that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Lockhart, 474 U.S. at 59, 106 S.Ct. 366; see" }, { "docid": "8292923", "title": "", "text": "claims of ineffective assistance of counsel under the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.1988). To satisfy this test, a petitioner “[f]irst ... must show that [his] counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Second, the petitioner “must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. “This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Id. To do so, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Importantly, “judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. When evaluating the first Strickland criterion, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.; accord Bridge, 838 F.2d at 773. Further, we must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We have explained that the objective standard of reasonableness to which counsel are held requires that they “ ‘research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.’ ” Conley, 349 F.3d at 841 (quoting United States v. Phillips, 210 F.3d 345, 348 (5th Cir.2000)). Thus, “[s]olid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court’s attention.” Id. Although “a failure of counsel to be aware of prior controlling precedents in even a single prejudicial" }, { "docid": "11190476", "title": "", "text": "of the United States.” 28 U.S.C. § 2254(d). Section 2254 creates a “highly deferential standard for evaluating state court rulings, which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). The petitioner has the burden of showing that “there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). III. • The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the two-step process for assessing a Sixth Amendment claim of ineffective assistance of counsel: 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. Id. at 687, 104 S.Ct. 2052. To establish deficiency, the defendant “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted). However, the deference afforded counsel’s informed, strategic choices, does not eliminate counsel’s duty to “make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Under Strickland’s second prong, a petitioner must establish “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.” 466 U.S. at 687, 104 S.Ct. 2052; Day v. Quarterman, 566 F.3d 527, 536 (5th Cir.2009). Specifically, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been" }, { "docid": "23311528", "title": "", "text": "466 U.S. at 665, 104 S.Ct. 2039 (“The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation.”). Because we find that counsel for Mr. Hooks actively and zealously participated in all phases of the trial proceedings, we will not presume prejudice under Cronic. Strickland, therefore, remains the appropriate standard for evaluating counsel’s performance. See Hooks, 606 F.3d at 725. Mr. Hooks “must show both that his counsel’s performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’ ” Byrd, 645 F.3d at 1167 (emphasis omitted) (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). These two prongs may be addressed in any order, and failure to satisfy either is dispositive. Id. “[0]ur review of counsel’s performance under the first prong of Strickland is a ‘highly deferential’ one.” Id. at 1168 (quoting Hooks, 606 F.3d at 723). “Every effort must be made to evaluate the conduct from counsel’s perspective at the time.... ” United States v. Challoner, 583 F.3d 745, 749 (10th Cir.2009) (quoting Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1537 (10th Cir.1994)) (internal quotation marks omitted). Furthermore, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Byrd, 645 F.3d at 1168 (alteration omitted) (quoting Dever, 36. F.3d at 1537) (internal quotation marks omitted). Surmounting this “high bar” is not an “easy task.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)) (internal quotation marks omitted); see Fox, 200 F.3d at 1295 (“[Petitioner] bears a heavy burden in that he must overcome the presumption that his counsel’s actions were sound trial strategy....”). A state prisoner in the § 2254 context faces an even greater challenge. Byrd, 645 F.3d at 1168. “[W]hen assessing a state prisoner’s ineffeetive-assistance-of-counsel claims on habeas review, ‘[w]e defer to the state court’s determination that" }, { "docid": "10810479", "title": "", "text": "the evidence already adduced was sufficient to resolve the factual question.” Id. As always, the “ultimate question is whether an appellate court would be unreasonable in holding that an evidentiary hearing was not necessary in light of the state court record.” Id. (emphasis in original). B The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, which held that the Sixth Amendment guarantees effective assistance of counsel at trial and at capital sentencing proceedings resembling trials. Id. at 687-88, 104 S.Ct. 2052. To succeed on a Strickland claim, a defendant must show that (1) his counsel’s performance was deficient and that (2) the “deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. Counsel is constitutionally deficient if the representation “fell below an objective standard of reasonableness” such that it was outside “the range' of competence demanded of attorneys in criminal cases.” Id. at 687-88, 104 S.Ct. 2052 (internal quotation marks omitted). “Judicial scrutiny of counsel’s performance must be- highly deferential,” and we must guard against the temptation “to second-guess counsel’s assistance after conviction or adverse sentence.” Id. at 689, 104 S.Ct. 2052. Instead, we must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the- circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.; see also Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 789, 178 L.Ed.2d 624 (2011). Because of the difficulties inherent in fairly evaluating counsel’s performance, courts must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. This presumption of reasonableness means that not only do we “give the attorneys the benefit of the doubt,” we must also “affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did.” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011) (internal quotation marks and alterations omitted). To establish prejudice, the defendant must show “a reasonable probability that, but" }, { "docid": "220493", "title": "", "text": "Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As the Supreme Court recently explained in Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), however, when a habeas court reviews an ineffective assistance of counsel claim under the AEDPA, the “state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id. at 785. “The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard.” Id. at 786. Accordingly, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported ... the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. At the second step, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87. A. Deficient Performance We first consider whether the state court unreasonably applied Strickland when it concluded that Detrich’s counsel did not perform deficiently by failing to investigate and present mitigating evidence at sentencing. Under Strickland, counsel’s performance is deficient if, considering all the circumstances, it “fell below an objective standard of reasonableness ... under prevailing professional norms.” Id. at 788. In evaluating counsel’s performance as compared to these “prevailing professional norms,” we may refer to American Bar Association (“ABA”) guidelines in effect at the time of the representation “as evidence of what reasonably diligent attorneys would do.” Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009); see also Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Our review of counsel’s representation is “highly deferential,” as we apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and that" } ]

[ { "docid": "11781808", "title": "", "text": "L.Ed.2d 461 (1995). Under 28 U.S.C. § 1447(d), which governs the review of remand orders, orders made pursuant to one of the bases set forth in 28 U.S.C. § 1447(c) are not reviewable on appeal. Section 1447(d) provides in pertinent part: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” 28 U.S.C. § 1447(d). Under this rule, if a district court’s order is based upon a lack of subject matter jurisdiction under 28 U.S.C. § 1447(c), the order “must stand ‘whether erroneous or not and whether review is sought by appeal or by extraordinary writ.’ ” Vincent v. Dakota, Minnesota & Eastern R.R., 200 F.3d 580, 581 (8th Cir.2000) (quoting Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)). The district court in the instant case cited 28 U.S.C. § 1447(c)—lack of subject matter jurisdiction—as its basis for remand. Such a statement by the district court, while influential to our analysis, is not dispositive. See Vincent, 200 F.3d at 581. This court reviews a lower court’s reasoning for remand independently and determines from the record the district court’s basis for remand. See id. (“We are required to determine by independent review the actual grounds for the district court’s remand order.”); see also Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623-24 (8th Cir.1997) (citing Mangold v. Analytic Servs., Lie., 77 F.3d 1442, 1450 (4th Cir.1996)). Lindsey’s claims were removed to federal court based upon federal question jurisdiction under allegations of an ADA claim. Under 28 U.S.C. § 1367(a), the pendent state claims in Lindsey’s amended petition were closely enough related to the ADA claim that they formed part of the same case or controversy. As such, the district court had supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367 and they were removed pursuant to 28 U.S.C. § 1441(c). Under 28 U.S.C. § 1367, a district court may decline jurisdiction over supplemental claims if it “has dismissed all claims over which it" } ]

[ { "docid": "23600259", "title": "", "text": "basis for remand. A remand order based upon lack of subject-matter jurisdiction is not reviewable on appeal. 28 U.S.C. § 1447(d). The language of section 1447(c) mandates a remand of the case (to the state court from which it was removed) whenever the district court concludes that subject-matter jurisdiction is nonexistent. In re Atlas Van Lines, Inc. v. Poplar Bluff Transfer Co., 209 F.3d 1064, 1066-67 (8th Cir.2000); 28 U.S.C. § 1447(c). If a district court’s order is based upon a lack of subject-matter jurisdiction, the order-whether erroneous or not and whether review is sought by appeal or by extraordinary writ-must stand. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); Lindsey v. Dillard’s, Inc., 306 F.3d 596, 598 (8th Cir.2002); 28 U.S.C. § 1447(d). Here, the district court did not explicitly cite 28 U.S.C. § 1447(c)-lack of subject-matter jurisdiction-as its basis for remand. However, such a statement by the district court is not required. See Lindsey, 306 F.3d at 598. “This court reviews a lower court’s reasoning for remand independently and determines from the record the district court’s basis for remand.” Id. We note that on its face petitioners’ removal complaint lacks complete diversity-the basis for federal subject-matter jurisdiction. When, as here, the respondent has joined a non-diverse party as a defendant in its state case, the petitioner may avoid remand-in the absence of a substantial-federal question-only by demonstrating that the non-diverse party was fraudulently joined. Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir.2002). Therefore, the petitioners were required to show fraudulent joinder to eliminate the non-diverse parties. While fraudulent joinder-the filing of a frivolous or otherwise illegitimate claim against a non-diverse defendant solely to prevent removal-is rather easily defined, it is much more difficulty applied. As the Fifth Circuit recently noted, “Neither our circuit nor other circuits have been clear in describing the fraudulent joinder standard.” Within our own circuit the fraudulent-joinder standard has been stated in varying ways. In Wiles, we looked for a “reasonable basis in fact and law” in the claim alleged. 280 F.3d" }, { "docid": "14803392", "title": "", "text": "rather than modifying its opinion and remanding the case. Appel-lees move to strike or dismiss the appeal, arguing that because the district court remanded the case for lack of subject matter jurisdiction, this court cannot review the district court’s remand order. II. DISCUSSION Under 28 U.S.C. § 1447(c) and (d) and our case law precedent, we cannot review the district court’s remand order. Because Appellees lacked standing, the district court lacked subject matter jurisdiction. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir.2002) (holding “if a plaintiff lacks standing, the district court has no subject matter jurisdiction” (citation omitted)). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). When a district court remands a case based on a lack of subject matter jurisdiction under section 1447(c), “a court of appeals lacks jurisdiction to entertain an appeal of the remand order.” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); see also 28 U.S.C. § 1447(d). Thus, when a case is remanded under section 1447(c), the remand order must stand “whether erroneous or not and whether review is sought by appeal or by extraordinary writ.” Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), overruled on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623 (8th Cir.1997). Finally, we note that although arising in a different context than the case before us, the Supreme Court applied similar reasoning in its recent decision in Kircher v. Putnam Funds Trust, — U.S. -, 126 S.Ct. 2145, 2157-58, 165 L.Ed.2d 92 (2006) (holding where the district court remanded the removed action to state court for lack of subject matter jurisdiction under the Securities Litigation Uniform Standards Act of 1998, the district court’s remand order is unreviewable under 28 U.S.C. § 1447(d)). We recognize our holding" }, { "docid": "20635078", "title": "", "text": "it turns to the merits of other legal arguments. Krein v. Norris, 309 F.3d 487, 490 (8th Cir.2002); Carney v. BIG Corp., 88 F.3d 629, 631 (8th Cir.1996). Arrowhead asserts that this court has jurisdiction over its appeal under 28 U.S.C. § 1291 which grants appellate jurisdiction over appeals from a final order. Alternatively, it argues that the district court’s order is appealable under the collateral order exception to the finality rule. Carlson responds that under 28 U.S.C. § 1447(d) this court lacks jurisdiction over an appeal from a remand order and that Arrowhead’s appeal is not from a final order or reviewable under the collateral order exception. Appellant Arrowhead bears the burden to prove that appellate jurisdiction exists. Reinholdson v. Minnesota, 346 F.3d 847, 849 (8th Cir.2003). Congress addressed appellate jurisdiction over remand orders in 28 U.S.C. § 1447(d), which provides that except in civil rights cases, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” (emphasis added). The Supreme Court has instructed that § 1447(d) “must be read in pari materia with § 1447(c).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Section 1447(c) provides that motions to remand based on a procedural defect must be made within thirty days of removal and requires that a case be remanded to state court “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” The district court explicitly based its remand order in this case on § 1447(c). Under the statutory scheme remand orders based on a procedural defect or lack of subject matter jurisdiction are unreviewable. Things Remembered, 516 U.S. at 127, 116 S.Ct. 494; Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). So long as the district court’s remand order is based on one of these two grounds, “a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d).” Things Remembered, 516 U.S. at 127-28, 116 S.Ct." }, { "docid": "23600258", "title": "", "text": "the setting was rural. It is not for this Court to speculate how the Missouri courts would decide such an issue. The burden is upon the removing party to demonstrate that the facts pled by Plaintiff cannot possibly create liability to March or Skyline. Norfolk has not met this burden. The Court finds that Skyline and March were not fraudulently joined to defeat diversity. This appeal asserts that the existence of diversity jurisdiction should have prevented the district court from remanding the remaining state-court claims. Specifically, petitioners argue that the district court failed to reach the question of its own jurisdiction and in so doing failed to perform one of its essential functions. II. Discussion As an initial matter, we must determine whether we have jurisdiction to review the district court’s remand order. Congress has limited our power to review district-court remand orders. 28 U.S.C. § 1447(d); See Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Our ability to review the order depends on the district court’s basis for remand. A remand order based upon lack of subject-matter jurisdiction is not reviewable on appeal. 28 U.S.C. § 1447(d). The language of section 1447(c) mandates a remand of the case (to the state court from which it was removed) whenever the district court concludes that subject-matter jurisdiction is nonexistent. In re Atlas Van Lines, Inc. v. Poplar Bluff Transfer Co., 209 F.3d 1064, 1066-67 (8th Cir.2000); 28 U.S.C. § 1447(c). If a district court’s order is based upon a lack of subject-matter jurisdiction, the order-whether erroneous or not and whether review is sought by appeal or by extraordinary writ-must stand. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); Lindsey v. Dillard’s, Inc., 306 F.3d 596, 598 (8th Cir.2002); 28 U.S.C. § 1447(d). Here, the district court did not explicitly cite 28 U.S.C. § 1447(c)-lack of subject-matter jurisdiction-as its basis for remand. However, such a statement by the district court is not required. See Lindsey, 306 F.3d at 598. “This court reviews a lower court’s" }, { "docid": "11781809", "title": "", "text": "Vincent, 200 F.3d at 581. This court reviews a lower court’s reasoning for remand independently and determines from the record the district court’s basis for remand. See id. (“We are required to determine by independent review the actual grounds for the district court’s remand order.”); see also Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623-24 (8th Cir.1997) (citing Mangold v. Analytic Servs., Lie., 77 F.3d 1442, 1450 (4th Cir.1996)). Lindsey’s claims were removed to federal court based upon federal question jurisdiction under allegations of an ADA claim. Under 28 U.S.C. § 1367(a), the pendent state claims in Lindsey’s amended petition were closely enough related to the ADA claim that they formed part of the same case or controversy. As such, the district court had supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367 and they were removed pursuant to 28 U.S.C. § 1441(c). Under 28 U.S.C. § 1367, a district court may decline jurisdiction over supplemental claims if it “has dismissed all claims over which it has original jurisdiction ....”28 U.S.C. § 1367(c)(3). Decisions of this court have found that remand orders made under § 1367(c) are renewable. Green v. Ameritrade, Inc., 279 F.3d 590, 595 (8th Cir.2002) (citing Things Remembered, 516 U.S. at 127, 116 S.Ct. 494); St. John v. Int’l Ass’n of Machinists & Aerospace Workers, 139 F.3d 1214, 1216-17 (8th Cir.1998). These eases have noted that such a remand falls outside the bounds of §§ 1447(c) and (d). A district court that remands supplemental claims is not remanding them for lack of subject matter jurisdiction — a basis that would place the remand beyond review under §§ 1447(c) and (d). Under §§ 1367(c) and 1441(c), a court is not required to remand state law claims when the only federal claim has been dismissed. Instead, the district court maintains discretion to either remand the state law claims or keep them in federal court. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (“We conclude that a district court has discretion to remand" }, { "docid": "20635083", "title": "", "text": "does not address employee recall, and the recall rights Carlson asserts are only found in the CBA. Although adjudication of Carlson’s claims could require more than reference to the CBA, it has not been shown that it would involve interpretation of the CBA. The district court opinion shows that its decision was based on lack of subject matter jurisdiction and it explicitly remanded the case pursuant to § 1447(c), making the remand unreviewable under § 1447(d). The jurisdictional situation is even clearer here than in our Vincent decision where we reasoned that the remand order must have been based on § 1447(c) because the “only basis for remand discussed by the district court was whether it had subject matter jurisdiction.” Vincent, 200 F.3d at 582; see also Transit Cas. Co., 119 F.3d at 625; Whitman v. Raley’s Inc., 886 F.2d 1177, 1181 (9th Cir.1989); Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.1991). Arrowhead nonetheless urges that we retain appellate jurisdiction over this case under 28 U.S.C. § 1291. Section 1291 vests the circuit courts with jurisdiction over appeals from “all final decisions of the district courts of the United States,” and it has also been interpreted to permit appeals from collateral orders which would otherwise not be reviewable. See Quackenbush v. Allstate Insur. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Arrowhead argues that the remand order in this case was a final order, but alternatively that it should be considered a collateral order subject to appeal. A decision is considered “final and appealable under § 1291 only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Quackenbush, 517 U.S. at 712, 116 S.Ct. 1712; Reinholdson, 346 F.3d at 849. Arrowhead’s finality argument relies primarily on Hill v. BellSouth Telecommunications, Inc., 364 F.3d 1308 (11th Cir.2004), an easily distinguishable case since it did not consider the reviewability of a remand order issued under § 1447(c). Hill turned instead on the appealability of an order remanding state law claims where" }, { "docid": "9387790", "title": "", "text": "§ 1447(c) for lack of jurisdiction is removed. Id. citing Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1295 (9th Cir.1987); See also, Lee v. City of Beaumont, 12 F.3d 933, 935 (9th Cir.1993) (holding that a district court’s “discretionary remand of pendant state claims is a reviewable order”); Hansen, 891 F.2d at 1387 (citing Thermtron, 423 U.S. at 351-52, 96 S.Ct. 584 and Pelleport, 741 F.2d at 276-77). On appeal, the remand order was reviewed because it was clear that the remand was not based on lack of jurisdiction, thus the bar to appellate review found in § 1447(d) was inappli cable. Meadows v. Employers HealthInsurance, 47 F.3d 1006 (9th Cir.1995). In the case now before us, there is no ambiguity surrounding the basis of the district court’s remand order. The district court framed its entire discussion of ERISA preemption in terms of jurisdiction and ultimately found jurisdiction lacking. Because we conclude that the remand in this case was based on lack of jurisdiction under § 1447(c), our decision in Meadows does not control. III. Conclusion Because the district court’s ultimate decision was that it lacked jurisdiction, and any substantive preemption analysis was part of the jurisdictional determination, this court lacks jurisdiction to review the remand order pursuant to 28 U.S.C. § 1447(d). In dismissing this case, we express no opinion on the merits of ATESC’s preemption defense. As we recognized in Whitman, that is a question for the court with jurisdiction over Lyons’ claims. 886 F.2d at 1181. Accordingly, the appeal is DISMISSED. . See also 14 B Wright and Miller § 3722.1 at 516 noting that \"several circuits have held that a determination that a particular claim has not been completely preempted by ERISA for subject matter jurisdiction purposes, which leads to a remand of the action to state court, has no preclusive effect on the state court’s consideration of the merits of a substantive preemption defense based on ERISA.” Citing Gonzalez-Garcia v. Williamson Dickie Mfg., Co., 99 F.3d 490, 492 (1st Cir.1996); Nutter v. Monongahela Power Co., 4 F.3d 319, 321-22 (4th Cir.1993); See" }, { "docid": "20635079", "title": "", "text": "instructed that § 1447(d) “must be read in pari materia with § 1447(c).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Section 1447(c) provides that motions to remand based on a procedural defect must be made within thirty days of removal and requires that a case be remanded to state court “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” The district court explicitly based its remand order in this case on § 1447(c). Under the statutory scheme remand orders based on a procedural defect or lack of subject matter jurisdiction are unreviewable. Things Remembered, 516 U.S. at 127, 116 S.Ct. 494; Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). So long as the district court’s remand order is based on one of these two grounds, “a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d).” Things Remembered, 516 U.S. at 127-28, 116 S.Ct. 494; see also Horton v. Conklin, 431 F.3d 602, 604 (8th Cir.2005). This jurisdictional bar applies even if the district court’s remand decision was in error. Thermtron, 423 U.S. at 343, 96 S.Ct. 584 (“this section prohibits review of all remand orders.. .whether erroneous or not”); see also Vincent v. Dakota, Minnesota & Eastern R.R. Corp., 200 F.3d 580, 581 (8th Cir.2000); Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623 (8th Cir.1997). Where the district court has remanded under § 1447(c), the scope of our review is limited to verifying that the actual basis for remand was lack of subject matter jurisdiction. Lindsey v. Dillard’s, Inc., 306 F.3d 596, 598 (8th Cir.2002); Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir.2001); Transit Cas. Co., 119 F.3d at 624; Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir.1996). The doctrine of complete preemption “converts an ordinary state.. .law complaint into one stating a federal claim” providing a basis for removal of the state court action to federal court." }, { "docid": "14803391", "title": "", "text": "Appellees. After removing the action to federal court, Appellants moved to dismiss, claiming Appellees lacked standing because Appellees did not allege they actually paid for any of the medical procedures. Appellees moved to remand the case back to the Missouri state court, contending ERISA did not preempt their claims. The district court concluded Appellees lacked standing because they had not sustained an injury in fact, and accordingly, the court lacked subject matter jurisdiction. Based on this conclusion, the district court dismissed the case without prejudice and denied Appellees’ motion to remand as moot. Upon Appellees’ motion to amend the court’s order and judgment, the district court (1) clarified it never made a determination regarding whether ERISA preempted Appellees’ claims, and (2) vacated its previous order and remanded the case back to state court for lack of federal question subject matter jurisdiction. Appellants appeal the district court’s remand order, arguing that after the district court determined Appellees lacked standing, the court should have dismissed the case without prejudice, as the court did in its first order, rather than modifying its opinion and remanding the case. Appel-lees move to strike or dismiss the appeal, arguing that because the district court remanded the case for lack of subject matter jurisdiction, this court cannot review the district court’s remand order. II. DISCUSSION Under 28 U.S.C. § 1447(c) and (d) and our case law precedent, we cannot review the district court’s remand order. Because Appellees lacked standing, the district court lacked subject matter jurisdiction. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir.2002) (holding “if a plaintiff lacks standing, the district court has no subject matter jurisdiction” (citation omitted)). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). When a district court remands a case based on a lack of subject matter jurisdiction under section 1447(c), “a court of appeals lacks jurisdiction to entertain an appeal of the remand order.” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995);" }, { "docid": "2108656", "title": "", "text": "other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). When a district court’s remand order is based on a factor enumerated in § 1447(c), this court lacks jurisdiction to review the remand order either through appeal or by writ of mandamus, even if the district court’s order is erroneous. See Transit Cas. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623 (8th Cir.1997). Hence, we must decide whether the district court’s remand order falls within the ambit of § 1447(c). In this case, the district court sua sponte reevaluated its denial of Karnes’s remand motion and determined that this case should be remanded to state court. The petitioners argue that the district court decided to remand this case because it perceived the existence of a defect in the removal process. The petitioners contend that such sua sponte action is not permitted under § 1447(c). We disagree with the petitioners’ assessment. Upon reviewing the district court’s remand order, it becomes apparent that the district court was not addressing a defect in the removal process but was reevaluating the issue of subject matter jurisdiction. The plain language of § 1447(e) specifically contemplates and permits such a reevaluation. See 28 U.S.C. § 1447(c). The district court reexamined the preemptive force of the Carmack Amendment and concluded that it did not preempt Karnes’s state court claims. The district court also found that the parties failed to meet the requirements for diversity jurisdiction. See 28 U.S.C. § 1332. Finding an absence of subject matter jurisdiction, the district court remanded the ease to state court. Such action is directly countenanced by the language of § 1447(c), which mandates a remand anytime that the district court concludes that subject matter jurisdiction is nonexistent. As one of the § 1447(c) criteria served as the basis for the district court’s remand order, § 1447(d) proscribes us" }, { "docid": "9706764", "title": "", "text": "the timeliness of removal. On January 28, 2003, the District Court granted ALO’s motion, remanding the case to state court. Ariel Land Owners, Inc. v. Dring, 245 F.Supp.2d 589 (M.D.Pa.2003). The District Court concluded that, pursuant to 28 U.S.C. § 1446(b), it lacked jurisdiction over the case because removal had occurred more than one year after the commencement of the case. The District Court further held that, because the one-year time limit in § 1446(b) is jurisdictional, remand was appropriate despite the fact that ALO did not move to remand within 30 days after the notice of removal, as required by § 1447(c). Appellants filed a timely appeal of the District Court’s remand order. II. A remand order terminating all proceedings in federal court is final and appealable under 28 U.S.C. § 1291. In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 449 (3d Cir.2000). Our jurisdiction to review the District Court’s remand order is nevertheless limited by 28 U.S.C. § 1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-43, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976); Cook v. Wikler, 320 F.3d 431, 434-35 (3d Cir.2003). Section 1447(d), however, does not bar review of “remand orders issued outside the authority granted to District Courts under section 1447(c).” FMC, 208 F.3d at 448; accord Cook, 320 F.3d at 435 n. 5, 438-39 n. 9. Section 1447(c) states, in pertinent part: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the fifing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. The statute is clear that, if based on a defect other than jurisdiction, remand may only be effected by a timely motion. FMC, 208 F.3d at 450 (“[I]t is clear under section 1447(c) that [the procedural] irregularity" }, { "docid": "20635090", "title": "", "text": "98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Arrowhead argues that all three parts of this test are met in this case: the district court’s order conclusively determined whether § 301 of the LMRA completely preempts state law; its resolution of the jurisdictional issue was a question separate from the merits; and any state court determination upon remand will be effectively unreviewable in federal court. Arrowhead cites no case, and we have found none, which has treated a district court remand order under § 1447(c) as a reviewable collateral order. See Excimer Assocs., Inc. v. LCA Vision, Inc., 292 F.3d 134, 138 (2d Cir.2002) (noting that “[w]e have not found a single case in which this Court has invoked the collateral order doctrine to confer appellate jurisdiction where the district court’s remand order was based on a determination that it lacked subject matter jurisdiction”). To the contrary, courts of appeal have consistently held that § 1447(d) bars review of remand orders by the district court when they are based on the lack of complete preemption under § 301 of the LMRA. See Dahl v. Rosenfeld, 316 F.3d 1074 (9th Cir.2003) (dismissing for lack of jurisdiction based on district court’s finding that § 301 of the LMRA did not preempt state law); Kennedy, 273 F.3d at 1297 (same); Nutter, 4 F.3d 319 (same); Soley, 923 F.2d 406 (same); Whitman, 886 F.2d at 1182 (same). And while our court has not previously had occasion to address appellate jurisdiction over a remand order based on the lack of complete preemption, we have determined that a § 1447(c) remand order in analogous circumstances was unreviewable. See Vincent, 200 F.3d at 581-82 (jurisdiction lacking over § 1447(c) remand order holding state law claims not completely preempted by the Railway Labor Act). Arrowhead’s invocation of the collateral order rule in these circumstances would virtually eviscerate § 1447(d) by allowing review of essentially any remand order if it were framed by the appealing party as a collateral order. See In re" }, { "docid": "8025884", "title": "", "text": "must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d). Id., at 345-46, 96 S.Ct. 584.... As long as a district court’s remand is based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction the grounds for remand recognized by § 1447(c)a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d). Things Remembered v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Section 1447(c) reads: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The state court may thereupon proceed with such case. A court is “without jurisdiction to review a remand order grounded in Section 1447(c) even if based on erroneous principles or analysis.” Van Meter v. State Farm Fire & Cas. Co., 1 F.3d 445, 448 (6th Cir.1993) (citation omitted). To determine whether a district court is precluded from reviewing a magistrate-issued remand order, we must first determine whether that order constitutes a § 1447(c) remand order. We agree with the Third Circuit’s determination that a magistrate-issued remand order is not a § 1447(c) remand order: [i]t seems evident that if an order of a district judge remanding a case is not insulated from review unless issued for a reason set forth in section 1447(c), i.e., a defect in removal procedure or a lack of subject matter jurisdiction, then an order of a magistrate judge that could not be issued" }, { "docid": "18045058", "title": "", "text": "issues of federal law;” and (3) 28 U.S.C. § 1442(a)(1), the federal officer removal statute. Jacks moved to remand the matter to state court, and the district court granted the motion. BCBS-KC appealed. The bases for Jacks’ motion and the district court’s remand are discussed in turn below, as appropriate, in juxtaposition with our analyses. The sole question on appeal concerns where this action will be adjudicated as between the available state and federal courts. II. DISCUSSION A. Jurisdiction on Appeal The parties first dispute whether this court has jurisdiction to hear all of the issues presented by this appeal. Jacks concedes that jurisdiction lies to review the district court’s remand under the local controversy exception of CAFA, but without citation to supporting authority, claims that this panel lacks jurisdiction to address the remainder of the district court’s order. The basis on which Jacks grounds this latter argument is wholly unclear. BCBSKC simply counters that because this is an appeal from a final order under § 1291, this court has jurisdiction over the entire order. Neither argument carries the day but jurisdiction lies nonetheless. Section 1447(d) generally provides that “[a]n order remanding a case to the State court from which it 'was removed is not reviewable on appeal or otherwise.” Despite this broadly worded prohibition, the Supreme Court has held that § 1447(d) only bars appellate review of a district court’s remand order that is “based on a ground specified in [28 U.S.C.] § 1447(c).” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009). This means that “remand orders based on a procedural defect or lack of subject matter jurisdiction are unreviewable.” Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir.2006). A remand order that is based on some other, non-section 1447(c) ground is a final decision appealable under 28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713, 715, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). The district court remanded this matter, in part, based upon its interpretation of the local controversy exception" }, { "docid": "18045059", "title": "", "text": "Neither argument carries the day but jurisdiction lies nonetheless. Section 1447(d) generally provides that “[a]n order remanding a case to the State court from which it 'was removed is not reviewable on appeal or otherwise.” Despite this broadly worded prohibition, the Supreme Court has held that § 1447(d) only bars appellate review of a district court’s remand order that is “based on a ground specified in [28 U.S.C.] § 1447(c).” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009). This means that “remand orders based on a procedural defect or lack of subject matter jurisdiction are unreviewable.” Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir.2006). A remand order that is based on some other, non-section 1447(c) ground is a final decision appealable under 28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713, 715, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). The district court remanded this matter, in part, based upon its interpretation of the local controversy exception in CAFA, which operates as an abstention doctrine and does not divest the district court- of subject matter jurisdiction. Graphic Commc’ns Local 1B v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir.2011). “The local controversy provision, which is set apart from the ... jurisdictional requirements in the statute, inherently recognizes the district court has subject matter jurisdiction by directing the court to ‘decline to exercise’ such jurisdiction when certain requirements are met.” Id. Accordingly, § 1447(d) interposes no bar to appellate review and the order is final and appealable as a collateral order under § 1291 on that issue. Quackenbush, 517 U.S. at 711-14, 116 S.Ct. 1712. In light of this § 1447(d) jurisprudence, however, we do lack jurisdiction to review the district court’s determination concerning the availability of federal common law to resolve this suit, given the above analysis regarding § 1447(d), as it is a remand based upon the court’s determination that it lacked subject matter jurisdiction. Nonetheless, we retain jurisdiction to review the district court’s remand on the issue of whether" }, { "docid": "23301795", "title": "", "text": "Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., preempts the claims. Giles then amended, dropping the breach of contract, misrepresentation, and breach of warranty claims that she admitted were preempted, and moved for remand. Relying primarily on Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.1995), the district court, noting that ERISA did not preempt Giles’s remaining vicarious liability and negligence claims, granted the motion, stating that “this is an appealable order because the basis of my ruling is an exercise of discretion to remand pendent state law claims.” II. Before reaching the merits, we must examine the basis of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary. See Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir.1999); Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir.1998). We begin with 28 U.S.C. § 1447(d), which provides, “An order remanding a case to State court from which it was removed is not reviewable on appeal or otherwise....” Interpreted in pari materia with § 1447(c), this indicates that an appellate court lacks jurisdiction to review a remand under § 1447(c); conversely, remands on other grounds may be reviewed. A § 1447(c) remand may not be reviewed even if the district court’s order was erroneous. See Thermtron, 423 U.S. at 351, 96 S.Ct. 584; Angelides, 117 F.3d at 836. Reviewable non-§ 1447(c) remands are a narrow class of cases, meaning we review a remand order only if the district court “clearly and affirmatively” relies on a non-§ 1447(c) basis. See Soley, 923 F.2d at 409; see also Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1027 (5th Cir.1991). The record plainly demonstrates that the district court did not remand under § 1447(c). The court specifically noted that “this is an appealable order because the basis of my ruling is an exercise of discretion to remand pendent state law claims.” Thus, the court affirmatively stated a non-§ 1447(c) reason for remanding and gave no indication that it believed it lacked subject matter jurisdiction. In these circumstances, § 1447(d) does not" }, { "docid": "20635077", "title": "", "text": "the seniority provisions of the CBA. Arrowhead removed the case to the federal district court on December 16, 2004, contending that Carlson’s claims were completely preempted by § 301 of the LMRA, 29 U.S.C. § 185. After the case had been removed Arrowhead moved to dismiss, alleging that Carlson’s claims were completely preempted because they required interpretation of the CBA. It also alleged in the alternative that his claims grew out of conduct arguably protected by the National Labor Relations Act (NLRA) and were thus preempted under the Garmon doctrine. Carlson responded that his case had been improperly removed to federal court which lacked jurisdiction over it. The district court determined that Carlson’s state law claims were not completely preempted by LMRA § 301 because neither required interpretation of the CBA and that subject matter jurisdiction was therefore lacking. It denied Arrowhead’s motion to dismiss and remanded the case to state court pursuant to 28 U.S.C. § 1447(c). Arrowhead appeals. II. In every federal case the court must be satisfied that it has jurisdiction before it turns to the merits of other legal arguments. Krein v. Norris, 309 F.3d 487, 490 (8th Cir.2002); Carney v. BIG Corp., 88 F.3d 629, 631 (8th Cir.1996). Arrowhead asserts that this court has jurisdiction over its appeal under 28 U.S.C. § 1291 which grants appellate jurisdiction over appeals from a final order. Alternatively, it argues that the district court’s order is appealable under the collateral order exception to the finality rule. Carlson responds that under 28 U.S.C. § 1447(d) this court lacks jurisdiction over an appeal from a remand order and that Arrowhead’s appeal is not from a final order or reviewable under the collateral order exception. Appellant Arrowhead bears the burden to prove that appellate jurisdiction exists. Reinholdson v. Minnesota, 346 F.3d 847, 849 (8th Cir.2003). Congress addressed appellate jurisdiction over remand orders in 28 U.S.C. § 1447(d), which provides that except in civil rights cases, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” (emphasis added). The Supreme Court has" }, { "docid": "20635091", "title": "", "text": "remand orders by the district court when they are based on the lack of complete preemption under § 301 of the LMRA. See Dahl v. Rosenfeld, 316 F.3d 1074 (9th Cir.2003) (dismissing for lack of jurisdiction based on district court’s finding that § 301 of the LMRA did not preempt state law); Kennedy, 273 F.3d at 1297 (same); Nutter, 4 F.3d 319 (same); Soley, 923 F.2d 406 (same); Whitman, 886 F.2d at 1182 (same). And while our court has not previously had occasion to address appellate jurisdiction over a remand order based on the lack of complete preemption, we have determined that a § 1447(c) remand order in analogous circumstances was unreviewable. See Vincent, 200 F.3d at 581-82 (jurisdiction lacking over § 1447(c) remand order holding state law claims not completely preempted by the Railway Labor Act). Arrowhead’s invocation of the collateral order rule in these circumstances would virtually eviscerate § 1447(d) by allowing review of essentially any remand order if it were framed by the appealing party as a collateral order. See In re WTC Disaster Site, 414 F.3d 352, 368 (2d Cir.2005); Good v. Voest-Alpine Indus., Inc., 398 F.3d 918, 926 (7th Cir.2005) (“If every remand decision could be relabeled as a collateral order, there would be nothing left of... § 1447(d).”). Moreover, such a holding would directly contradict the rationale and purpose of § 1447(d) which is to prevent the delay of state court proceedings by the federal appeals process. See Thermtron, 423 U.S. at 351, 96 S.Ct. 584. We therefore conclude that the remand order in this case is not a collateral order reviewable under 28 U.S.C. § 1291. Because the district court’s remand order was issued pursuant to § 1447(c) for lack of subject matter jurisdiction and does not qualify as an a final order or collateral order appealable under § 1291, we lack jurisdiction under § 1447(d) to review the merits of the case. Accordingly, the appeal is dismissed. . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota. . Complete preemption permits a party to remove a case" }, { "docid": "20635082", "title": "", "text": "asserting a breach of the CBA have been found not preempted by federal law. See Deneen v. Northwest Airlines, Inc., 132 F.3d 431 (8th Cir.1998); Welch v. Gen. Motors Corp., Buick Motor Div., 922 F.2d 287 (6th Cir.1990). It is the plaintiff who controls the wording of the complaint, and reliance on the terms of a CBA to establish a state law claim can lead to complete preemption. See Fant v. New England Power Serv. Co., 239 F.3d 8, 14-16 (1st Cir.2001) (affirming district court decision that state law claim for failure to recall was preempted by the LMRA because it was based on seniority provisions of the CBA); Anderson v. Gen. Motors Corp., 35 Fed.Appx. 175, 179 (6th Cir.2002) (same); Pandil v. Illinois Cent. Gulf R.R., 312 N.W.2d 139, 143 (Iowa App.1981). In this case Carlson’s complaint does refer to the seniority provision of the CBA, directly quote language from this provision, and cite the alleged breach of the CBA as proof of his whistleblower claim. See Complaint, ¶¶ 29-30, 38. The whistleblower statute does not address employee recall, and the recall rights Carlson asserts are only found in the CBA. Although adjudication of Carlson’s claims could require more than reference to the CBA, it has not been shown that it would involve interpretation of the CBA. The district court opinion shows that its decision was based on lack of subject matter jurisdiction and it explicitly remanded the case pursuant to § 1447(c), making the remand unreviewable under § 1447(d). The jurisdictional situation is even clearer here than in our Vincent decision where we reasoned that the remand order must have been based on § 1447(c) because the “only basis for remand discussed by the district court was whether it had subject matter jurisdiction.” Vincent, 200 F.3d at 582; see also Transit Cas. Co., 119 F.3d at 625; Whitman v. Raley’s Inc., 886 F.2d 1177, 1181 (9th Cir.1989); Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.1991). Arrowhead nonetheless urges that we retain appellate jurisdiction over this case under 28 U.S.C. § 1291. Section 1291" }, { "docid": "20635080", "title": "", "text": "494; see also Horton v. Conklin, 431 F.3d 602, 604 (8th Cir.2005). This jurisdictional bar applies even if the district court’s remand decision was in error. Thermtron, 423 U.S. at 343, 96 S.Ct. 584 (“this section prohibits review of all remand orders.. .whether erroneous or not”); see also Vincent v. Dakota, Minnesota & Eastern R.R. Corp., 200 F.3d 580, 581 (8th Cir.2000); Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623 (8th Cir.1997). Where the district court has remanded under § 1447(c), the scope of our review is limited to verifying that the actual basis for remand was lack of subject matter jurisdiction. Lindsey v. Dillard’s, Inc., 306 F.3d 596, 598 (8th Cir.2002); Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir.2001); Transit Cas. Co., 119 F.3d at 624; Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir.1996). The doctrine of complete preemption “converts an ordinary state.. .law complaint into one stating a federal claim” providing a basis for removal of the state court action to federal court. Caterpillar v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Section 301 of the LMRA preempts state law claims “where the resolution of the state claim substantially depends on the interpretation of terms or provisions of a collective bargaining agreement,” Hanks v. General Motors Corp., 906 F.2d 341, 343 (8th Cir. 1990) (internal quotations omitted), or where it is “inextricably intertwined” with consideration of the CBA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). On the other hand, “[m]ere reference to a collective bargaining agreement is not sufficient to result in preemption,” Thomas v. Union Pac. R.R. Co., 308 F.3d 891, 893 (8th Cir.2002), and “when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). Complaints alleging a violation of state law without" } ]

[ { "docid": "22679117", "title": "", "text": "currently § 10304, is presumptively for the arbitrator); Smith Barney Shearson, Inc. v. Boone, 47 F. 3d 750 (CA5 1995) (same). We granted Howsam’s petition for certiorari to resolve this disagreement. And we now hold that the matter is for the arbitrator. II This Court has determined that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960); see also First Options, supra, at 942-943. Although the Court has also long recognized and enforced a “liberal federal policy favoring arbitration agreements,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983), it has made dear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i. e., the “question of arbitrability,” is “an issue for judicial determination [ujnless the parties clearly and unmistakably provide otherwise.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986) (emphasis added); First Options, supra, at 944. We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule. Linguistically speaking, one might call any potentially dispositive gateway question a “question of arbitrability,” for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court’s case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase “question of arbitrability” has a far more limited scope. See 514 U. S., at 942. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate. Thus, a gateway" } ]

[ { "docid": "22467842", "title": "", "text": "between Remote Solution and Con-tec L.P. Remote Solution argues that it cannot be compelled to arbitrate with a stranger to the 1999 Agreement because the contractual language is effective only between the contracting parties. It contends that the 1999 Agreement included both a prohibition on the assignment of rights under the Agreement and an exclusion of third party rights, and that, therefore, there is no contractual evidence of Remote Solution’s intent to grant third parties the right to seek arbitration. According to Remote Solution, Contec Corporation’s rights under the 1999 Agreement; if any, fall outside the arbitration clause and thus cannot be an issue pertaining to the “existence, scope or validity of the arbitration agreement.” As an initial ■ matter, we recognize that just because a signatory has agreed to arbitrate issues of arbitrability with another party does not mean that it must arbitrate with any non-signatory. In order to decide whether arbitration of arbitrability is appropriate, a court must first determine whether the parties have a sufficient relationship to each other and to the rights created under the agreement. See First Options, 514 U.S. at 944-45, 115 S.Ct. 1920 (discussing the necessity of threshold determination by courts before referring issues of arbitrability to arbitrators). A useful benchmark for relational sufficiency can be found in our estoppel decision in Choctaw Generation Ltd. P’ship v. Am. Home Assurance Co., where we held that the signatory to an arbitration agreement “is estopped from avoiding arbitration with a non-signatory ‘when the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.’ ” 271 F.3d 403, 404 (2d Cir.2001)(quoting Smith/Enron Cogeneration Ltd. P’ship v. Smith Cogeneration Int’l Inc., 198 F.3d 88, 98 (2d Cir.1999)). In Choctaw, we summarized the factors laid out in Smith/Enron as “the relationship among the parties, the contracts they signed (or did not), and the issues that ha[ve] arisen.” Id. at 406. In the present case, neither we nor the district court must reach the question whether Remote Solution is estopped from avoiding arbitration with Contec Corporation because, under the" }, { "docid": "11947352", "title": "", "text": "of class action, collective action, and representative claims. The 2014 Agreement clearly and unmistakably delegated the question of ar-bitrability to the- arbitrator under all circumstances. Neither delegation provision was unconscionable. Thus, all of Plaintiffs’ challenges to the enforceability of the arbitration agreement, save Gillette’s challenge to the enforceability of the PAGA waiver in the 2013 Agreement, should have been adjudicated in the first instance by an arbitrator and not in court. A. Delegation of the issue of arbitrability “[U]nlike the arbitrability of claims in general, whether the court or the arbitrator decides arbitrability is ‘an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.’ ” Oracle Am., 724 F.3d at 1072 (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002)). “In other words, there is a presumption that courts will decide which issues are arbitrable; the federal policy in favor of arbitration does not extend to deciding questions of arbitrability.” Id. Clear and unmistakable evidence of an agreement to arbitrate arbitrability “might include ... a course of conduct demonstrating assent ... or ... an express agreement to do so.” Momot v. Mastro, 652 F.3d 982, 988 (9th Cir. 2011) (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 79-80, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) (Stevens, J., dissenting)). In Momot, we held that language “delegating to the arbitrators the authority to determine the validity or application of any of the provisions of the arbitration clause[ ] constitutes an agreement to arbitrate threshold issues concerning the arbitration agreement.” Id. (quoting Rent-A-Ctr., 561 U.S. at 68, 130 S.Ct. 2772) (internal quotation marks omitted). Here, both the 2013 and the 2014 Agreements delegated to the arbitrators the authority to decide issues relating to the “enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision.” This language is similár to but more expansive than the language at issue in Momot, and thus also “clearly and unmistakably indicates [the parties’] intent for the arbitrators to decide the threshold question of arbitrability.” Id. The district court determined that" }, { "docid": "3532660", "title": "", "text": "Supreme Production Services, Inc. for analyzing arbitration agreements that contain a delegation clause. 830 F.3d 199, 201-02 (5th Cir. 2016). Under this framework, if a party asserts that an arbitration agreement contains a delegation clause, this court only asks (1) whether the parties entered into a valid arbitration agreement and, if so, (2) whether the agreement contains a valid delegation clause. Id. “If there is a delegation clause, the motion to compel arbitration should be granted in almost all cases.” Id. First, it is undisputed that Reyna and IBC entered into a valid arbitration agreement. Reyna has not denied signing the Policy nor has he raised any challenges to the validity of the Policy either before the district court or on appeal. And we have long recognized that FLSA claims are subject to arbitration. Carter, 362 F.3d at 298. Second, the arbitration agreement between IBC and Reyna contains a valid delegation clause. A delegation clause is a provision in an arbitration agreement that “transfer[s] the power to decide threshold questions of arbitrability to the arbitrator.” Kubala, 830 F.3d at 201. The Supreme Court “ha[s] recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether them agreement covers a particular controversy.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). The delegation clause in the Policy provides: “The arbitrator(s) shall have the exclusive authority to determine the arbitrability of any dispute which the employee or the employer asserts is subject to the [Policy].” It also grants the arbitrator “the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the [Policy].” This language is strikingly similar to the delegation clause in the arbitration agreement at issue in Rent-A-Center, which provided: “The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this [arbitration] Agreement....” Id. at 66, 130 S.Ct. 2772. In that case, the Supreme Court concluded that the" }, { "docid": "3677178", "title": "", "text": "accounts with us and is irrevocable.” Finally, the Agreement provides that arbitration “will be administered according to this agreement and the rules of the American Arbitration Association (‘AAA’) in effect at the time of filing.” Douglas asserts, and the majority agrees, that her negligence and conversion claims against Regions are not within the scope of the arbitration clause because they do not relate to the Agreement’s arbitration provision. Regardless of the merit of her argument, however, the issue is not for us to decide. The Agreement contains a delegation clause, or, stated differently, an “agree[ment] to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as ... whether [the parties’] agreement covers a particular controversy.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 2777, 177 L.Ed.2d 403 (2010). Consequently, Douglas’s argument that her claims do not relate to the Agreement’s arbitration provision — in essence, a seope-of-coverage dispute — must be decided in the first instance by the arbitrator, not a court. I. Ordinarily, whether a claim is subject to arbitration must be decided in the first instance by a court, not an arbitrator. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Parties may agree, however, to arbitrate whether a particular claim is subject to arbitration so long as they clearly and unmistakably do so in their agreement. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943-44, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In this case, that standard is satisfied. First, the Agreement, by defining the claims subject to arbitration to include “the validity, enforceability, or scope of th[e] Arbitration provision,” includes what the Supreme Court has described as a delegation clause. See Rent-A-Center, 130 S.Ct. at 2777. The Court explained that a delegation clause “is an agreement to arbitrate threshold issues concerning the arbitration agreement.” Id. The Court “ha[s] recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” Id. The Supreme Court has also" }, { "docid": "1353809", "title": "", "text": "F.3d at 665; Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987). There is no dispute about the existence of an arbitration clause in both plaintiffs Ruga and Ross!s cardholder agreements, and that both plaintiffs agreed to it. However, there is a dispute as to who can compel arbitration. Defendants Bank One and BOA Corp. argue that plaintiffs Ruga and Ross’s claims against Bank One and BOA Corp. should be referred to arbitration, despite the fact that neither of them are signatories to the arbitration agreements. Since “whether an entity is a party to the arbitration agreement also is included within the broader issue of whether the parties agreed to arbitrate,” the Court will address the non-signatories issue first. Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int’l, 198 F.3d 88, 95 (2d Cir.1999). A. Non-Signatories The First USA and BOA arbitration agreements are agreements between the cardholders and First USA and BOA, respectively. Plaintiffs however, allege claims against First USA and BOA, as well as Bank One and BOA Corp., the parent companies of First USA and BOA, respectively. Defendants argue that plaintiffs should be compelled to arbitrate the claims against the parent companies as well as those against First USA and BOA. Although “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” Howsam, 123 S.Ct. at 591 (quoting United Steelworkers, 363 U.S. at 582, 80 S.Ct. 1347), an obligation to arbitrate may not be limited to signatories to the agreement containing the arbitration provision. A non-signatory may be. bound to an arbitration agreement under ordinary principles of contract and agency. See Thomson-CSF, S:A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995); Orange Chicken, L.L.C. v. Nambe Mills, Inc., No. 00 Civ. 4730(AGS), 2000 WL 1858556, at *4-5 (S.D.N.Y. Dec:19, 2000); Fluor Daniel Intercontinental, Inc. v. Gen. Elec. Co., No. 98 Civ. 7181(WHP), 1999 WL 637236, at *6 (S.D.N.Y. Aug.20, 1999). The Second Circuit has recognized five theories for binding non-signatories to arbitration agreements: 1) incorporation" }, { "docid": "23118340", "title": "", "text": "novo. Cf. Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int'l, Inc., 198 F.3d 88, 95 (2d Cir.1999) (“[Whether an entity is a party to the arbitration agreement ... is included within the broader issue of whether the parties agreed to arbitrate.”). The FAA provides that a “written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. It is well settled that a court may not compel arbitration until it has resolved “the question of the very existence” of the contract embodying the arbitration clause. Interocean Shipping Co. v. Nat'l Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir.1972). “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quotation marks omitted). Unless the parties clearly provide otherwise, “the question of arbitrability-—whether a[n] ... agreement creates a duty for the parties to arbitrate the particular grievance—is undeniably an issue for judicial determination.” Id. at 649, 106 S.Ct. 1415. The district court properly concluded that in deciding whether parties agreed to arbitrate a certain matter, a court should generally apply state-law principles to the issue of contract formation. Mehler v. Terminix Int’l Co., 205 F.3d 44, 48 (2d Cir.2000); see also Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) (“[Sjtate law, whether of legislative or judicial origin, is applicable [to the determination of whether the parties agreed to arbitrate] if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.”). Therefore, state law governs the question of whether the parties in the present case entered into an agreement to arbitrate disputes relating to the Smart-Download license agreement." }, { "docid": "11972124", "title": "", "text": "Regardless of whether he previously opted out of arbitration, Martinez agreed to the subsequent December 2015 Agreement and did not opt out of its Arbitration Provision. (Ortega Colman Decl. ¶ 13.) The relevant inquiry before the court then is whether “there is clear and unmistakable evidence from the [operative] arbitration agreement ... that the parties intended that the question of arbitrability shall be decided by the arbitrator.” Shaw Grp. Inc., 322 F.3d at 121 (citations and internal quotation marks omitted, emphasis added). As discussed earlier, the Arbitration Provision’s language clearly and unmistakably states that disputes as to arbitrability are to be decided by an arbitrator. Martinez’s arguments that he expressed his intent to opt out of a prior arbitral clause before agreeing to the December 2015 Agreement is irrelevant. Under New York law, “where the language is clear and unambiguous, the court is required to ascertain the intent of the parties from within the four comers of the instrument, and not from extrinsic evidence.” Alliance Bernstein Inv. Research & Mgmt., Inc. v. Schaffran, 445 F.3d 121, 127 (2d Cir. 2006) (quoting Von Buren v. Von Buren, 252 A.D.2d 950, 675 N.Y,S.2d 739, 739-40 (1998)). The court finds that Uber, Plaintiff Mallh, and Plaintiff Martinez intended to delegate questions of arbitrability to an arbitrator, and therefore any challenge to the scope, enforceability, or applicability of the Arbitration Provision .is for an arbitrator to resolve in the first instance. 4. Validity of Delegation of Arbitrability Where a court finds clear and unmistakable evidence - that contractual parties agreed to arbitrate arbitrability, a party may nonetheless challenge the delegation of arbitrability itself as invalid for unconscionability. See Rent-A-Center, West, Inc. v, Jackson, 561 U.S. 63, 69-70, 130 S.Ct. 2772, 177 L.Ed.2d 408 (2010). Because an agreement to arbitrate threshold issues such as interpretation and applicability of an arbitration clause is simply “an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce,” this antecedent agreement itself must be valid and enforceable. Id. at 70, 130 S.Ct. 2772. As the Supreme Court explained, the “ ‘clear and unmistakable’ requirement ... pertains" }, { "docid": "20514199", "title": "", "text": "clearly and unmistakably delegates arbitrability questions to the arbitrator, the only remaining question is whether the particular agreement to delegate arbitrability — the Delegation Provision — is itself unconscionable. See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Brennan argues that the district court erred in holding that Rent-A-Center required him to challenge the specific Delegation Provision inside of the Arbitration Clause in order for the court— rather than the arbitrator — to determine the validity of the Arbitration Clause. According to Brennan, Rent-A-Center did not alter the general rule that as long as a party challenges the enforceability of an arbitration clause specifically — rather than the entire contract generally — the enforceability of the arbitration clause is for the court, not the arbitrator, to decide. But the facts in Rent-A-Center required the Supreme Court to take this principle a step further. Until Rent-A-Center, the cases following this “specific challenge” principle dealt primarily with contracts of a general subject matter (like employment), which contained a single arbitration clause. See, e.g., Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). Rent-A-Center, however, involved a contract whose exclusive subject matter was arbitration, and embedded within that contract were “multiple written provision^] to settle by arbitration a controversy.” 561 U.S. at 68, 130 S.Ct. 2772 (internal quotation marks omitted). Two provisions were relevant to the Court’s analysis. The first was an agreement to arbitrate all disputes “arising out of Jackson’s employment with Renb-A-Center.” Id. The second was an agreement to delegate to an arbitrator resolution of “any dispute relating to the ... enforceability ... of the [Arbitration] Agreement.” Id. Jackson, an employee of Rent-A-Center, challenged the entire Arbitration Agreement as unconscionable. Id. In turn, Rent-A-Center sought to enforce the specific delegation provision inside that contract to send the question to an arbitrator. Id. The Supreme Court concluded that this delegation provision was “simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as" }, { "docid": "4533105", "title": "", "text": "the court, the parties may agree to delegate them to the arbitrator. See, e.g., Howsam, 537 U.S. at 83-85, 123 S.Ct. 588; Green Tree Fin. Corp., 539 U.S. at 452, 123 S.Ct. 2402. The Supreme Court recently reaffirmed this principle in Renh-A-Center, West, Inc. v. Jackson, holding that courts must enforce the parties’ “agreement to arbitrate threshold issues” regarding the arbitrability of their dispute, and may do so by staying federal litigation under section 3 of the FAA or compelling arbitration under section 4. - U.S.-, 130 S.Ct. 2772, 2777-78, 177 L.Ed.2d 403 (2010). Because such issues would otherwise fall within the province of judicial review, we apply a more rigorous standard in determining whether the parties have agreed to arbitrate the question of arbitrability. Rather than applying “ordinary state-law principles that govern the formation of contracts” as we would when determining, for example, the scope of a concededly binding contract, the Supreme Court has cautioned that “[cjourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakable’ evidence that they did so.” First Options of Chicago, Inc., 514 U.S. at 944, 115 S.Ct. 1920 (quoting AT & T Techs., Inc. v. Commc’ns Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (alterations omitted)). Accordingly, the question of arbitrability is left to the court unless the parties clearly and unmistakably provide otherwise. Such “[c]lear and unmistakable ‘evidence’ of agreement to arbitrate arbitrability might include ... a course of conduct demonstrating assent ... or ... an express agreement to do so.” Rent-A-Center, 130 S.Ct. at 2783 (Stevens, J., dissenting) (citing First Options of Chicago, Inc., 514 U.S. at 946, 115 S.Ct. 1920). Here, there is no evidence that the parties engaged in conduct demonstrating assent, so we turn to the terms of their agreement. As previously noted, the arbitration clause in the Allocation Agreement provides, in relevant part: 4. Resolution of Disputes. (a) Arbitration. If a dispute arises out of or relates to this Agreement, the relationships that result from this Agreement, the breach of this Agreement or the validity" }, { "docid": "973687", "title": "", "text": "on the Supreme Court’s opinion in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). There, the arbitration agreement between the defendant, Rent-A-Center, and the plaintiff, Jackson, provided that “[t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement.” 561 U.S. at 66, 130 S.Ct. 2772 (alteration in original) (internal quotation marks omitted). Jackson sought to avoid the arbitration agreement on grounds of unconscionability, arguing that the mandatory arbitration provision was one-sided and involved unfair procedures limiting discovery and requiring fee-splitting. Id. at 73-74, 130 S.Ct. 2772. Below, the Ninth Circuit concluded that the agreement unambiguously gave the arbitrator exclusive authority to resolve questions of arbitrability. Jackson v. Rent-A-Center West, Inc., 581 F.3d 912, 917 (9th Cir. 2009), rev’d, 561 U.S. 63, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Nonetheless, the Ninth Circuit held that when “a party challenges an arbitration agreement as unconscionable, and thus asserts that he could not meaningfully assent to the agreement, the threshold question of unconscionability is for the court.” Id. The Supreme Court reversed, holding that the Ninth Circuit’s analysis improperly focused on the unconscionability of the arbitration agreement and not the delegation provision, which provided the arbitra tor exclusive authority to resolve questions of arbitrability. See Rent-A-Center, 561 U.S. at 72-74, 130 S.Ct. 2772. “An agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other,” the Court explained. Id. at 70, 130 S.Ct. 2772. Because Jackson’s uneonscionability arguments focused on “the entire arbitration agreement”—and not the delegation provision, in particular—the unchallenged delegation provision granted the arbitrator exclusive authority to determine whether the arbitration agreement was unconscionable. Id. at 72-74, 130 S.Ct. 2772. Rent-A-Center makes clear, however, that “[i]f a party challenges the validity under § 2 of the precise agreement to arbitrate at issue, the federal court must" }, { "docid": "12144689", "title": "", "text": "to decide gateway arbitrability issues. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Thus, if the party seeking arbitration points to a purported delegation clause, the court’s analysis is limited. It performs the first step — an analysis of contract formation — as it always does. But the only question, after finding that there is in fact a valid agreement, is whether the purported delegation clause is in fact a delegation clause — that is, if it evinces an intent to have the arbitrator decide whether a given claim must be arbitrated.- Id. If there is a delegation clause, the motion to compel arbitration should be granted in almost all cases. Supreme contends that the agreement contains a valid and enforceable delegation clause. Thus, this appeal presents two issues: first, whether the parties entered into a valid agreement to arbitrate some set of claims; and second, whether that agreement actually does contain a delegation clause that requires that this claim go to arbitration for gateway rulings on threshold arbitrability issues. III. The district court erroneously held that there is no arbitration agreement. The court appears to have thought that the question at the first step of the analysis is whether there is an agreement to arbitrate the claim currently before the court. But as we have explained, the only issue at the first step is whether there is any agreement to arbitrate any set of claims. Determining whether that agreement covers the claim at bar is the second step. Thus, the district court erred by engaging in close contract interpretation at the first step, which focuses only on contract formation. The proper course is to examine only the formation issue, and it is obvious that these parties validly formed an agreement to arbitrate some set of claims. Whether they entered a valid arbitration contract turns on state contract law. Carey, 669 F.3d at 205. They agree that Texas contract law governs. Arbitration agreements between employers and their employees are broadly enforceable in Texas. In re Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex." }, { "docid": "20514198", "title": "", "text": "submit the arbi-trability dispute to arbitration. But we need not decide nor do we decide here “the effect [if any] of incorporating [AAA] arbitration rules into consumer contracts” or into contracts of any nature between “unsophisticated” parties. Oracle America, 724 F.3d at 1075 & n. 2. Brennan contends that despite the Delegation Provision, the Arbitration Clause itself removes the unconscionability question from its scope because it carves out “any claim for equitable relief’ and “un-conscionability is an equitable matter under California law.” We disagree for two reasons. First, although courts have held that a defendant’s reliance on an arbitration clause to avoid litigation is an equitable defense, see, e.g., Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1462 (9th Cir.1983), it is not a claim for equitable relief. Second, accepting Brennan’s argument would directly contradict the fact that Brennan and Opus Bank “clearly and unmistakably” delegated the unconscionability determination to the arbitrator in the Delegation Provision located in that very same Arbitration Clause. C. Because a court must enforce an agreement that, as here, clearly and unmistakably delegates arbitrability questions to the arbitrator, the only remaining question is whether the particular agreement to delegate arbitrability — the Delegation Provision — is itself unconscionable. See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Brennan argues that the district court erred in holding that Rent-A-Center required him to challenge the specific Delegation Provision inside of the Arbitration Clause in order for the court— rather than the arbitrator — to determine the validity of the Arbitration Clause. According to Brennan, Rent-A-Center did not alter the general rule that as long as a party challenges the enforceability of an arbitration clause specifically — rather than the entire contract generally — the enforceability of the arbitration clause is for the court, not the arbitrator, to decide. But the facts in Rent-A-Center required the Supreme Court to take this principle a step further. Until Rent-A-Center, the cases following this “specific challenge” principle dealt primarily with contracts of a general subject matter (like employment), which contained a single arbitration" }, { "docid": "9056572", "title": "", "text": "\" Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 229 (2d Cir. 2016) (quoting Bensadoun v. Jobe-Riat , 316 F.3d 171, 175 (2d Cir. 2003) ); see also Lakah v. UBS AG , 996 F.Supp.2d 250, 255 (S.D.N.Y. 2014) (quoting Bensadoun , 316 F.3d at 175 ) (deciding motion to stay arbitration). Courts must therefore \"consider all relevant, admissible evidence submitted by the parties\" and \"draw all reasonable inferences in favor of the non-moving party.\" Nicosia , 834 F.3d at 229 (citations omitted). IV. Discussion A. Judicial Determination of Arbitrability \"The question whether the parties have submitted a particular dispute to arbitration, i.e. , the 'question of arbitrability ,' is 'an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.' \" Schneider v. Kingdom of Thailand , 688 F.3d 68, 71 (2d Cir. 2012) (quoting Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) ). \"[B]efore an agreement to arbitrate can be enforced, the district court must first determine whether such agreement exists between the parties.\" Meyer v. Uber Techs., Inc. , 868 F.3d 66, 73 (2d Cir. 2017) ; see also Schneider , 688 F.3d at 71 (noting that there must exist \"clear and unmistakable evidence that the parties agreed to arbitrate\"). Thus, in cases where a party disputes whether \"it is bound to an arbitration agreement, the issue of arbitrability is for the Court in the first instance.\" Di Martino v. Dooley , No. 8 Civ. 4606(DC), 2009 WL 27438, at *4 (S.D.N.Y. Jan. 6, 2009) ; see also Sarhank Grp. v. Oracle Corp. , 404 F.3d 657, 661 (2d Cir. 2005) (\"[A]rbitrability is not arbitrable in the absence of the parties' agreement.\"). Here, neither party has identified \"clear and unmistakable evidence\" of an agreement to arbitrate arbitrability. Schneider , 688 F.3d at 71. In addition, Petitioners dispute that they are individually bound to the Agreement and thus similarly not bound to its arbitration provision. See Di Martino , 2009 WL 27438, at *4. Accordingly, the issue of whether this dispute is arbitrable and whether Petitioners" }, { "docid": "3677167", "title": "", "text": "some number of years before the subject chain of events. The question is whether the arbitration agreement and its delegation provision have anything to do with the claim at issue here — that is, whether there is an arbitration agreement relevant to the dispute at hand. A delegation provision is an “agree[ment] to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as ... whether [the parties’] agreement covers a particular controversy.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 2777, 177 L.Ed.2d 403 (2010). Parties may agree to arbitrate whether a particular claim is subject to arbitration so long as they clearly and unmistakably do so in their agreement. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Delegation provisions thus normally require an arbitrator to decide in the first instance whether a dispute falls within the scope of the arbitration provision. There is doubt that Douglas unmistakably intended to arbitrate gateway questions of arbitrability. The mere existence of a delegation provision in the checking account’s arbitration agreement, however, cannot possibly bind Douglas to arbitrate gateway questions of arbitrability in all future disputes with the other party, no matter their origin. Suppose the driver who injured Douglas was an employee of Regions who was conducting bank business. Douglas would not have to arbitrate the underlying tort, which is unrelated to her checking account and its accompanying contract, just because she happens to have a contract with Regions on a completely different matter. It follows that she does not have to send such a claim for “gateway arbitration” merely because there is a delegation provision in the completely unrelated contract. If it were otherwise, then every case involving an arbitration agreement with a delegation provision must, with no exceptions, be submitted for such gateway arbitration; no matter how untenable the argument that there is some connection between the dispute and the agreement, an arbitrator must decide first. Douglas would have to go to the arbitrator, who would flatly tell her that this claim is not within the scope of the completely" }, { "docid": "12144688", "title": "", "text": "this claim is covered by the arbitration agreement. Ordinarily both steps are questions for the court. Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003). But where the arbitration agreement contains a delegation clause giving the arbitrator the primary power to rule on the arbitrability of a specific claim, the analysis changes. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Ordinarily this type of dispute involves two layers of arguments — the merits (does Kubala have a right to back pay?) and arbitrability of the merits (must Kubala bring his claim for back pay in arbitration rather than in court?). Id. The pres ence of a delegation clause adds a third: “Who should have the primary power to decide” whether the claim is arbitrable. Id. Delegation clauses are enforceable and transfer the court’s power to decide arbi-trability questions to the arbitrator. Thus, a valid delegation clause requires the court to refer a claim to arbitration to allow the arbitrator to decide gateway arbitrability issues. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Thus, if the party seeking arbitration points to a purported delegation clause, the court’s analysis is limited. It performs the first step — an analysis of contract formation — as it always does. But the only question, after finding that there is in fact a valid agreement, is whether the purported delegation clause is in fact a delegation clause — that is, if it evinces an intent to have the arbitrator decide whether a given claim must be arbitrated.- Id. If there is a delegation clause, the motion to compel arbitration should be granted in almost all cases. Supreme contends that the agreement contains a valid and enforceable delegation clause. Thus, this appeal presents two issues: first, whether the parties entered into a valid agreement to arbitrate some set of claims; and second, whether that agreement actually does contain a delegation clause that requires that this claim go to arbitration for gateway rulings on" }, { "docid": "22467843", "title": "", "text": "rights created under the agreement. See First Options, 514 U.S. at 944-45, 115 S.Ct. 1920 (discussing the necessity of threshold determination by courts before referring issues of arbitrability to arbitrators). A useful benchmark for relational sufficiency can be found in our estoppel decision in Choctaw Generation Ltd. P’ship v. Am. Home Assurance Co., where we held that the signatory to an arbitration agreement “is estopped from avoiding arbitration with a non-signatory ‘when the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.’ ” 271 F.3d 403, 404 (2d Cir.2001)(quoting Smith/Enron Cogeneration Ltd. P’ship v. Smith Cogeneration Int’l Inc., 198 F.3d 88, 98 (2d Cir.1999)). In Choctaw, we summarized the factors laid out in Smith/Enron as “the relationship among the parties, the contracts they signed (or did not), and the issues that ha[ve] arisen.” Id. at 406. In the present case, neither we nor the district court must reach the question whether Remote Solution is estopped from avoiding arbitration with Contec Corporation because, under the 1999 Agreement, the circumstances indicate that arbitration of the issue of arbitrability is appropriate. First, there is or was an undisputed relationship between each corporate form of Contec and Remote Solution. Secondly, Remote Solution signed the 1999 Agreement. Finally, the dispute at issue arose because the parties apparently continued to conduct themselves as subject to the 1999 Agreement regardless of change in corporate form. These factors demonstrate that a sufficient relationship existed between Contec Corporation and Remote Solution to permit Contec Corporation to compel arbitration even if, in the end, an arbitrator were to determine that the dispute itself is not arbitrable because Contec Corporation cannot claim rights under the 1999 Agreement. Having determined that a sufficient relationship exists between the parties, we must now address the more precise question presented here: whether a non-signatory can compel a signatory to arbitrate under an agreement where the question of arbitrability is itself subject to arbitration. Although our circuit has not previously considered this question, we are not without guidance in federal law. In Apollo Computer, Inc." }, { "docid": "3677166", "title": "", "text": "delegation provision in the arbitration agreement Douglas had entered into with Union Planters, Regions’ predecessor-in-interest. The district court denied the motion, and Regions appealed. Although the district court applied the incorrect law, we affirm because the claim that this dispute is within the scope of the arbitration provision is groundless. I. The district court denied Regions’ motion to compel arbitration on the ground that no arbitration agreement existed between Douglas and Regions because under Mississippi law, Union Planters’ successor-in-interest (Regions) was not a party to the arbitration agreement. Significantly, Douglas does not defend the district court’s reasoning on appeal. She admits that Regions was a party to the original arbitration agreement under Mississippi law, and indeed it appears that she never argued in response to the motion to compel that Regions’ status as a successor did not bind it to the agreement. The district court apparently did not consider the applicable state law. An agreement did, in other words, exist. Douglas signed a signature card with an arbitration agreement when she opened a checking account some number of years before the subject chain of events. The question is whether the arbitration agreement and its delegation provision have anything to do with the claim at issue here — that is, whether there is an arbitration agreement relevant to the dispute at hand. A delegation provision is an “agree[ment] to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as ... whether [the parties’] agreement covers a particular controversy.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 2777, 177 L.Ed.2d 403 (2010). Parties may agree to arbitrate whether a particular claim is subject to arbitration so long as they clearly and unmistakably do so in their agreement. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Delegation provisions thus normally require an arbitrator to decide in the first instance whether a dispute falls within the scope of the arbitration provision. There is doubt that Douglas unmistakably intended to arbitrate gateway questions of arbitrability. The mere existence of a delegation provision in the checking" }, { "docid": "11947353", "title": "", "text": "... a course of conduct demonstrating assent ... or ... an express agreement to do so.” Momot v. Mastro, 652 F.3d 982, 988 (9th Cir. 2011) (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 79-80, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) (Stevens, J., dissenting)). In Momot, we held that language “delegating to the arbitrators the authority to determine the validity or application of any of the provisions of the arbitration clause[ ] constitutes an agreement to arbitrate threshold issues concerning the arbitration agreement.” Id. (quoting Rent-A-Ctr., 561 U.S. at 68, 130 S.Ct. 2772) (internal quotation marks omitted). Here, both the 2013 and the 2014 Agreements delegated to the arbitrators the authority to decide issues relating to the “enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision.” This language is similár to but more expansive than the language at issue in Momot, and thus also “clearly and unmistakably indicates [the parties’] intent for the arbitrators to decide the threshold question of arbitrability.” Id. The district court determined that the delegation provisions themselves were “unambiguous,” but it nonetheless held that they conflicted with venue provisions elsewhere in the 2013 and 2014 Agreements. Mohamed, 109 F.Supp.3d at 1199. Both venue provisions stated that “any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Uber Service or Software shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco.” The district court concluded that the language in the venue provisions granting state or federal courts in San Francisco “exclusive jurisdiction” over “any disputes, actions, claims or causes of action arising out of or in connection with this Agreement” was “inconsistent and in considerable tension with the language of the delegation clauses, which provide[d] that ‘without limitation’ arbitrability will be decided by an arbitrator.” Id. at 1201. The court also identified an inconsistency between the “without limitation” language and the carve-out provision in the 2013 Agreement granting courts jurisdiction over challenges to the PAGA waiver. Id. at" }, { "docid": "3532661", "title": "", "text": "Kubala, 830 F.3d at 201. The Supreme Court “ha[s] recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether them agreement covers a particular controversy.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). The delegation clause in the Policy provides: “The arbitrator(s) shall have the exclusive authority to determine the arbitrability of any dispute which the employee or the employer asserts is subject to the [Policy].” It also grants the arbitrator “the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the [Policy].” This language is strikingly similar to the delegation clause in the arbitration agreement at issue in Rent-A-Center, which provided: “The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this [arbitration] Agreement....” Id. at 66, 130 S.Ct. 2772. In that case, the Supreme Court concluded that the clause clearly evinced an intent by the parties to delegate the authority to decide arbitrability issues to the arbitrator. Id. at 69-70, 130 S.Ct. 2772. Similarly here the Policy contains a valid delegation clause that delegates the authority to resolve arbitrability disputes to the arbitrator. See Kubala, 830 F.3d at 204 (relying on similarity between the language of the clause in Rentr-A-Center and the clause at issue in that case to conclude that clause was a valid delegation clause). Because the arbitration agreement contains a delegation clause, any disputes about the arbitra-bility of Reyna’s claim or the scope of the arbitration agreement must be decided by the arbitrator, not the courts. Accordingly, the district court erred in denying IBC’s motion to compel arbitration. III. CONCLUSION We REVERSE the judgment of the district court and REMAND the case to the district court with instructions to refer the dispute to arbitration. The stay pending appeal issued by this court on September 1, 2016 is VACATED when this court’s mandate issues. . The FLSA permits an individual to" }, { "docid": "1353808", "title": "", "text": "158 (1985); McMahan Secs. Co. L.P. v. Forum Capital Mkts., L.P., 35 F.3d 82, 85 (2d Cir.1994). The FAA “leaves no place for the exercise of discretion by a district court but instead mandates that district courts shall direct the parties to proceed to arbitration on issues [on] which an arbitration agreement has been signed.” E.G.L. Gem Lab, Ltd. v. Gem Quality Inst., Inc., No. 97-7102(LAK), 1998 WL 314767, at *2 (S.D.N.Y. Jun.15, 1998) (quoting Byrd, 470 U.S. at 218, 105 S.Ct. 1238). This Court must analyze four factors in considering a motion to compel arbitration: first, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then decide whether to stay the balance of the proceedings pending arbitration. Oldroyd, 134 F.3d at 75-76; accord Campaniello Imports, 117 F.3d at 665; Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987). There is no dispute about the existence of an arbitration clause in both plaintiffs Ruga and Ross!s cardholder agreements, and that both plaintiffs agreed to it. However, there is a dispute as to who can compel arbitration. Defendants Bank One and BOA Corp. argue that plaintiffs Ruga and Ross’s claims against Bank One and BOA Corp. should be referred to arbitration, despite the fact that neither of them are signatories to the arbitration agreements. Since “whether an entity is a party to the arbitration agreement also is included within the broader issue of whether the parties agreed to arbitrate,” the Court will address the non-signatories issue first. Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int’l, 198 F.3d 88, 95 (2d Cir.1999). A. Non-Signatories The First USA and BOA arbitration agreements are agreements between the cardholders and First USA and BOA, respectively. Plaintiffs however, allege claims against First USA and BOA, as well as Bank One and BOA Corp.," } ]

[ { "docid": "3340396", "title": "", "text": "impose a threshold requirement whereby the moving party must demonstrate good cause for the requested discovery; and (2) this requirement is based on policy considerations partially applicable to discovery directed at counsel involved in prior litigation. Discovery from opposing litigation counsel has been recognized as permissible under limited circumstances. The burden is on the party seeking the discovery to demonstrate its propriety and need. Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986); see also, N.F.A. Corp. v. Riverview Fabrics, Inc., 117 F.R.D. 83, 85 (M.D.N.C.1987); Advance Systems, Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200, 201 (E.D.Wis.1989); Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 593 (N.D.N.Y.1989). The Eighth Circuit Court of Appeals concluded, in what has become a frequently cited test, that discovery of opposing trial counsel is appropriate only when: “(1) [n]o other means exist to obtain the information than to depose opposing counsel [citation]; (2) the information sought is relevant and nonprivi-leged; and (3) the information is crucial to the preparation of the case.” Shelton v. American Motors Corp., 805 F.2d at 1327. The Shelton court noted the long history of discouraging “the practice of forcing trial counsel to testify as a witness,” citing Hick man v. Taylor, 329 U.S. 495, 513, 67 S.Ct. 385, 394 (1947). The court identified several policy reasons for imposing this threshold inquiry. These include the potential for disruption to the adversarial system, an increase in the time and costs of litigation, lowered standards of the legal profession, detraction from the quality of legal representation, and a chilling effect on attorney-client communications. Shelton, 805 F.2d at 1327. Additional reasons to limit discovery of opposing counsel include its potential for harassment and disqualification of counsel. N.F.A. Corp. v. Riverview Fabrics, Inc., supra, 117 F.R.D. at 85. Thus, this court will apply the Shelton criteria to the discovery sought from the deputy district attorneys. The court first examines whether there exists other means to obtain the requested information. As noted earlier, disclosure of the prosecutorial file is not only a good alternate" } ]

[ { "docid": "796714", "title": "", "text": "Palm Beach Plat No. 3.” Mr. Capito informed the plaintiff that the County will maintain an easement over the parcel. DISCUSSION Protective orders totally prohibiting a deposition are rarely granted absent extraordinary circumstances. Salter v. Upjohn Co., 593 F.2d 649, 653 (5th Cir.1979); N.F.A. Corp. v. Riverview Narrow Fabrics, 117 F.R.D. 83 (M.D.N.C.1987). The deposition of a party’s attorney, however, calls for a special scrutiny of this general rule. Ifhe Federal Rules of Civil Procedure do not explicitly prohibit the deposition of a party’s attorney. Fed.R.Civ.P. 26-32. N.F.A. Corp., 117 F.R.D. at 84; Dowd v. Calabrese, 101 F.R.D. 427, 439 (D.C.D.C.1984); In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. 429, 437 (E.D.Pa.1981). Federal courts, however, have held that depositions of attorneys inherently constitute an invitation to harass the attorney and parties, and to disrupt and delay the case. N.F.A. Corp., 117 F.R.D. at 85; In re Arthur Treacher’s, 92 F.R.D. at 437-439. Moreover, costs are added to litigation, burdens are placed upon attorneys, and the attorney client relationship is threatened. N.F.A. Corp., 117 F.R.D. at 85; Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986). These presumptions may constitute good cause for obtaining a protective order under Rule 26(a). The party seeking the deposition, therefore, has the burden of overcoming these presumptions. The party seeking the deposition must show the propriety and need for the deposition. N.F.A. Corp., 117 F.R.D. at 85. “Courts should exercise great care before permitting the deposition of an attorney.” Id. The party seeking a deposition must demonstrate that the deposition is the only practical means available of obtaining the information. Id. Other methods, such as written interrogatories, should be employed. Id.; In re Arthur Treacher’s, 92 F.R.D. at 439. The party seeking an attorney’s deposition should show that the information sought will not invade the realm of the attorney’s work product, or any attorney-client privilege. N.F.A. Corp., 117 F.R.D. at 85. This information must be relevant and its need must outweigh the dangers of deposing a party’s attorney. Shelton v. American Motors Corp., 805 F.2d at 1327. As this Court is well aware," }, { "docid": "12924879", "title": "", "text": "resolve work-product and attorney-client objections, as well as delays to resolve collateral issues raised by the attorney’s testimony. Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client’s case without fear of being interrogated by his or her opponent. Moreover, the “chilling effect” that such practice will have on the truthful communications from the client to the attorney is obvious. 805 F.2d 1323, 1327 (8th Cir.1986). See N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 84-86 (M.D.N.C. 1987); In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. 429, 437-39 (E.D.Pa.1981); Walker v. United Parcel Services, 87 F.R.D. 360, 361-62 (E.D.Pa. 1980). Moreover, the deposition of counsel increases the likelihood that the attorney will be called as a witness at trial. Under such circumstances the attorney would normally be disqualified from providing further services. “N.Y.Jud.Law, Disciplinary Rule 5-102(A) (McKinney 1975) of the Code of Professional Responsibility requires that when ‘it is obvious that [a lawyer] ... ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial.’ ” United States v. McKeon, 738 F.2d 26, 29 (2nd Cir.1984). This school of thought also asserts that the act of choosing which documents to review and which persons to interview is itself a reflection of a lawyer’s thought process and, as such, is protected work product. For example in Shelton the court held that where “the deponent is opposing counsel and has engaged in a selective process of compiling documents from among voluminous files in preparation for litigation, the mere acknowledgment of the existence of those documents would reveal counsel’s mental impressions which are protected as work product.” Id. at 1326. To protect attorney work product, as well as for other prudential reasons, the Shelton court limited the deposition of opposing counsel to situations where “the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel ...; (2) the" }, { "docid": "1848702", "title": "", "text": "also asserts that the deposition of its attorney in this matter would be burdensome and disruptive, and would add to the costs and time spent in this litigation. Further, since any knowledge Mr. Allahut has about the case is claimed to have been obtained in his professional capacity as the Navy’s attorney, the government argues that even seemingly innocuous questions would intrude upon the protections of the attorney-client privilege and the attorney work product doctrine. The government urges this Court to follow the holdings of those jurisdictions which have held that an opposing attorney’s deposition should be allowed only under limited circumstances. Specifically, the government asks the Court to require Spar-ton, as the party seeking to depose another party’s attorney to demonstrate the propriety and need for the deposition. Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986); see Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir.1995) (utilizing Shelton test to preclude deposition of counsel); Dunkin’ Donuts, Inc. v. Mandorico, Inc., 181 F.R.D. 208, 210 (D.Puerto Rico 1998); American Cas. Co. of Reading, Pennsylvania v. Krieger, 160 F.R.D. 582, 589-90 (S.D.Cal.1995); West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301, 302-03 (S.D.Fla.1990); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85-86 (M.D.N.C.1987). Further, the government urges the Court to find that Sparton has failed to establish that the deposition of Mr. Allahut is both appropriate and necessary. In opposition, Sparton contends that it is the government which has failed to demonstrate “good cause” for the requested protective order pursuant to RCFC 26(c), following the rule enunciated by those Courts which have held that under a strict interpretation of the Rules governing discovery, the deposition of an attorney is no different than any other deposition. See Rainbow Investors Group, Inc. v. Fuji Trucolor Missouri, Inc., 168 F.R.D. 34, 36 (W.D.La.1996); United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 247-49 (D.Kan.1995); Frazier v. Southeastern Pennsylvania Transp. Auth., 161 F.R.D. 309, 313 (E.D.Pa.1995); Kaiser v. Mutual Life Ins. Co. of New York, 161 F.R.D. 378, 382 (S.D.Ind.1994); Johnston Dev. Group, Inc. v. Carpenters" }, { "docid": "796715", "title": "", "text": "85; Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986). These presumptions may constitute good cause for obtaining a protective order under Rule 26(a). The party seeking the deposition, therefore, has the burden of overcoming these presumptions. The party seeking the deposition must show the propriety and need for the deposition. N.F.A. Corp., 117 F.R.D. at 85. “Courts should exercise great care before permitting the deposition of an attorney.” Id. The party seeking a deposition must demonstrate that the deposition is the only practical means available of obtaining the information. Id. Other methods, such as written interrogatories, should be employed. Id.; In re Arthur Treacher’s, 92 F.R.D. at 439. The party seeking an attorney’s deposition should show that the information sought will not invade the realm of the attorney’s work product, or any attorney-client privilege. N.F.A. Corp., 117 F.R.D. at 85. This information must be relevant and its need must outweigh the dangers of deposing a party’s attorney. Shelton v. American Motors Corp., 805 F.2d at 1327. As this Court is well aware, innocent inquiries at deposition often implicate work product or attorney-client privileges. Rule 26(b)(3) protects an attorney’s work product. N.F.A. Corp., 117 F.R.D. at 85; In re Alexander Grant & Co. Litigation, 110 F.R.D. 545, 548 (S.D.Fla.1986) (Gonzalez, J.). The work product rule applies to items prepared in anticipation of litigation by a party’s attorney. In re Alexander Grant, 110 F.R.D. at 548. “[U]pon a proper showing that (items) were prepared ... in anticipation of litigation ... (a party) may invoke the work product privilege.” Id. It is obvious to this Court that the correspondence from the defendants’ attorneys in the plaintiffs' possession was not prepared in anticipation of litigation. It is equally as obvious, however, that a deposition question may cause the defendants’ attorney to discuss an area of his involvement in preparing for this case. The deposition plaintiffs seek to compel, therefore, may impinge upon the defendant’ attorneys’ work product. The party seeking an attorney’s deposition must also show that the information sought will not pursue any attorney-client privilege. N.F.A. Corp., 117 F.R.D. at" }, { "docid": "639982", "title": "", "text": "unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Id. In cases where the attorney’s conduct itself is the basis of a claim or defense, there is little doubt that the attorney may be examined as any other witness, see Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560 (3d Cir.1976); Kalmanovitz v. G. Heileman Brewing Co., Inc., 610 F.Supp. 1319 (D.Del.), aff'd, 769 F.2d 152 (3d Cir.1985); Scovill Manufacturing Co. v. Sunbeam, 61 F.R.D. 598 (D.Del.1973). In the present case, the meetings at issue are each highly relevant to plaintiffs’ claims in the case, but no claim or defense appears to be predicated specifically upon an attorney’s conduct or alleged misconduct. Similarly, caution in permitting the deposition of litigation counsel is indicated where the subject matter of the deposition would be likely to be heavily intertwined with privileged or confidential information, see In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. 429 (E.D.Pa.1981) [limiting deposition of defendant’s attorney to written questions under Rule 31 where plaintiff sought discovery concerning confidential meetings attended by defendants and their attorneys]. In the present case, plaintiffs’ concerns of privilege or confidentiality are unwarranted because third parties were present at each conversation for which deposition testimony is sought, and the presence of adverse third parties destroys the confidentiality otherwise attaching to lawyer-client conversations. International Paper Co. v. Fibre Board Corp., 63 F.R.D. 88, 93 (D.Del.1974); Bird v. Penn Central Co., 61 F.R.D. 43, 46 (E.D.Pa.1973). The deposition of the attorney may be “both necessary and appropriate” where the attorney may be a fact witness, such as an “actor or viewer,” N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 n. 2 (M.D.N.C.1987), rather than one who “was not a party to any of the underlying transactions giving rise to the action,” Advance Systems, Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200, 201 (E.D.Wis.1989), or whose role in a transaction was speculative and not central to the dispute, Walker v. United Parcel Services, 87 F.R.D. 360, 362 (E.D.Pa.1980). For example, in Shelton v. American Motors" }, { "docid": "17294809", "title": "", "text": "Lawyers who are admitted to practice in this court, and those admitted pro hac vice, see N.D. Tex. Civ. R. 83.9(b), are obligated to read and comply with Dondi. It would have been consonant with the Dondi standards for Williams’ counsel and Babcock and Carter's counsel to have conferred in an attempt to narrow the intended scope of the subpoena. Cf. Ln re Exxon Valdez, 142 F.R.D. 380, 381 (D.D.C.1992) (noting that opposing counsel attempted to negotiate scope and costs of production). In no event is such a proposition “absurd.” . See Shelton v. American Motors Corp., 805 F.2d 1323, 1325, 1326-27 (8th Cir.1986) (addressing deposition of in-house litigation department supervising attorney assigned to case, and criticizing \"increasing practice of taking opposing counsel's deposition\" in context of opposing trial counsel in case in which deposition was noticed); Harriston v. Chicago Tribune Co., 134 F.R.D. 232, 233 (N.D.Ill.1990); Advance Sys., Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200, 200-01 (E.D.Wis.1989). Babcock and Carter also cite this court’s December 11, 1997 order, in which it denied defendants’ request to take the deposition of Williams’ counsel. See Williams v. City of Dallas, Civil Action No. 3:97-CV-0296-D, Order at 1-2 (N.D.Tex. Dec. 11, 1997) (Fitzwater, J.). This order is also distinguishable, however, because it relates to an attempt to depose opposing counsel in the case in which the deposition was sought. . The argument also appears to be somewhat disingenuous. When Babcock filed his affidavit quantifying the undue burden that would be imposed in responding to the subpoenas, he several times used the term “documents” in a manner that reflects a clear understanding of the term in everyday use in the legal profession. See, e.g., Babcock Aff. at H 4. . Rule 45(c)(2)(A): A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. . Rule 34(a): Any party may serve on any other party a request (1)" }, { "docid": "13966686", "title": "", "text": "disclosed to gain advantage. Expanding the scope of the waiver to other attorney-client communications is therefore inappropriate. Parkway Gallery, 116 F.R.D. at 52 (citing cases in accord); Bank of New England v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (D.Va.1991); See also Developments in the Law, Privileged Communications, 98 Harv.L.Rev. 1450, 1664 (1985) (implied waiver of undisclosed matter never appropriate by inadvertent disclosure). Sause Brothers’ contention that Canada’s counsel has manipulated the discovery process with regard to the damage reports is nonetheless serious. The November 24 Wruck letter lends some, but only very little, support. Under the circumstances, Canada should disclose each of the early drafts of the environmental damage reports. I therefore grant the motion as to those reports. C. Canada’s Motion for a Protective Order Prohibiting Sause Brothers’ Deposition of Wruck Canada moves for a protective order prohibiting Sause Brothers’ planned deposition of its attorney Wruck. Sause Brothers plans to depose Wruck on “the limited issue of his involvement in the drafting or changing of the scientific reports supporting Canada’s claim for environmental damage.” Sause Brothers’ Memorandum in Support of Motion to Compel at 4, n. 1. Courts look with disfavor on attempts to depose opposing counsel. Harriston v. Chicago Tribune Co., 134 F.R.D. 232, 233 (N.D.Ill.1990) (citing Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986) and other cases). Depositions of opposing counsel are disruptive of the adversarial process and harmful to the standards of the legal profession, Id., and entail a high risk of implicating opinion work product. N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85-86 (M.D.N.C.1987). The Harriston court found that counsel depositions should be limited to situations where: (1) no other means exists to obtain the information sought; (2) the information is both relevant and nonprivileged; and (3) the information is crucial to the preparation of the case. 134 F.R.D. at 233. In this context, some courts place the burden of showing that a deposition will not invade the attorney-client privilege or the attorney’s work product on the party seeking the deposition. E.g. N.F.A., 117 F.R.D. at 86. Here," }, { "docid": "15949696", "title": "", "text": "That reference prompted defendant to move to take the deposition of M & R’s attorney, Nicholas Esposito. The motion also sought production of any notes Mr. Esposito had of the conversations between Misters Smith and Esposito. M & R objected claiming that defendant failed to prove a need for the documents and deposition because he had not sought to question Mr. Smith. Defendant responded, maintaining a need for the documents and deposition testimony and agreeing to produce Mr. Smith for a deposition. DISCUSSION Deposing an opponent’s attorney is a drastic measure. It not only creates a side-show and diverts attention from the merits of the case, its use also has a strong potential for abuse. Thus, a motion to depose an opponent’s attorney is viewed with a jaundiced eye and is infrequently proper. Hay & Forage Indus, v. Ford New Holland, Inc., 132 F.R.D. 687, 689 (D.Kan.1990). In some very rare cases, however, deposing the attorney for an opposing party might be permitted. See, e.g., Cooper v. Welch Foods, Inc., 105 F.R.D. 4, 6 (W.D.N.Y.1984); Hunt International Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D.Ill.1983); Brown v. Hart Schaffner & Marx, 96 F.R.D. 64, 67 (N.D.Ill.1982). A review of the cases discussing this topic reveals that courts generally employ four criteria to determine whether to allow the deposition: 1) whether the information sought is relevant to a major issue in the case (MacKnight v. Leonard Morse Hosp., 828 F.2d 48, 51 (1st Cir.1987)); 2) no other means for obtaining the relevant information exists (Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 86 (M.D.N.C. 1987) ); 3) the need for the information outweighs the inherent risks of deposing opposition counsel (Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J.1990)); and 4) the information sought is not privileged (West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301, 302-02 (S.D.Fla.1990)). Defendant concentrates his efforts on the first factor. He claims that the two-year time limitation on suits is crucial to" }, { "docid": "13352248", "title": "", "text": "ORDER NORGLE, District Judge. Before the court is the motion of defendant, Chicago Tribune Company (“Tribune”), for a protective order, pursuant to Fed.R.Civ.P. 26(c), to prohibit the deposition of its attorney, John W. Powers. For the following reasons, the court grants the motion. On October 16, 1987, Octavia 0. Harriston filed this suit, alleging racial discrimination in her termination from employment by the Tribune. Currently before the court is plaintiff’s fourth amended complaint. As previously noted by the court, the proceedings in this action have been protracted and, to say the least, contentious. See Order of March 19, 1990. The course of the discovery process in this litigation reflects the tenor of the underlying suit. For example, plaintiff had previously filed numerous requests for document production objected to by defendant as overbroad and irrelevant. The court allowed this discovery conditioned on the posting of a cost bond by plaintiff. See Order of October 4, 1988. Defendant produced the requested material and eventually brought a motion to forfeit the cost bond. The court found that the discovery request was indeed over-broad and irrelevant and ordered the forfeiture of the cost bond, and payment of costs by plaintiff in the amount of $9,098.63. See Order of April 2, 1990. Undaunted by this and similar rulings, plaintiff’s counsel has served a notice of deposition which seeks to take the deposition of opposing counsel, John W. Powers. In response, defendant Tribune has filed the instant motion, seeking a protective order, pursuant to Fed.R.Civ.P. 26(c), prohibiting the taking of that deposition. The courts have not looked with favor upon attempts to depose opposing counsel. The practice is disruptive of the adversarial process and “lowers the standards of the legal profession.” Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986); see also Advance Systems, Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200 (E.D.Wis.1989); Joslyn Corp. v. RTE Corp., No. 86 C 2319, 1988 WL 102104 (N.D.Ill.1988); Marco Island Partners v. Oak Development Corp., 117 F.R.D. 418 (N.D.Ill.1987). Deposition of opposing counsel should be limited to situations where it is shown that:" }, { "docid": "1848707", "title": "", "text": "Group, Inc., 130 F.R.D. at 352-53 (suggesting factors for determining “good cause”). Some federal Courts in other jurisdictions have decided that a presumption of “good cause” is implicit when a party seeks to preclude its own attorney’s deposition testimony. Dunkin’ Donuts, Inc., 181 F.R.D. at 210; Niagara Mohawk Power Corp. v. Stone & Webster Eng’g Corp., 125 F.R.D. 578, 594 (N.D.N.Y.1989); West Peninsular Title Co., 132 F.R.D. at 302; N.FA Corp., 117 F.R.D. at 85. This presumption may be overcome if “the party seeking the deposition can show both the propriety and need for the deposition.” West Peninsular Title Co., 132 F.R.D. at 302; N.F.A. Corp., 117 F.R.D. at 85. Even those Courts which have not gone so far as to find “good cause” to be implicit, have required “the party seeking an attorney’s deposition [to] make at least a modest showing that the deposition is of significant utility or practical necessity.” 7 James Wm. Moore, Moore’s Federal Practice, § 30.03[5] at 30-24 (3d ed.1997). For example, in many of the cases cited by plaintiff in support of utilizing a strict interpretation of Rule 26(c) to determine whether the deposition of opposing counsel should be permitted, it was first determined that the attorney had independent knowledge of the facts underlying the litigated cause of action before depositions of opposing counsel were permitted. See, e.g., Rainbow Investors Group, Inc., 168 F.R.D. at 38 (permitting deposition of attorney due to his involvement as a negotiator in business activity prior to litigation); United Phosphorus, Ltd., 164 F.R.D. at 250 (permitting attorney to be deposed because he was involved in underlying facts which led to litigation); Frazier, 161 F.R.D. at 313-18 (allowing deposition of opposing counsel concerning his own involvement in surveillance of his client in light of allegations that such surveillance was illegal); Kaiser, 161 F.R.D. at 382 (finding deposition of attorney appropriate after determining that he was involved in underlying facts as either an actor or a witness); Bogan v. Northwestern Mut. Life Ins. Co., 152 F.R.D. 9, 14 (S.D.N.Y.1993) (permitting deposition of opposing counsel because that attorney had concededly participated in" }, { "docid": "4501119", "title": "", "text": "a unique opportunity for harassment; it disrupts the opposing attorney’s preparation for trial, and could ultimately lead to disqualification of opposing counsel if the attorney is called as a trial witness.” Id. (quoting Marco Island Partners v. Oak Develop. Corp., 117 F.R.D. 418, 420 (N.D.ll.1987)). As a result, “courts historically have looked with disfavor on attempts to [dejpose opposing counsel.” Id. Courts have adopted two approaches to resolving disputes regarding attorney depositions. One requires the attorney to attend the deposition and raise objections in response to specific questions. See Hunt Int’l Resources Corp., 98 F.R.D. at 690. The other approach limits depositions “to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, ...; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Shelton v. American Motors Corp., 805 F.2d 1323,1327 (8th Cir.1986). The Seventh Circuit has not expressly adopted either method, but numerous courts in this district have followed the Shelton approach. See Stalling v. Union Pacific R.R. Co., No. 01 C 1056, 2004 WL 783056, at *2 (N.D.Ill. Jan.23, 2004) (collecting cases). Applying the Shelton factors here, the court first agrees with Defendants that information regarding the factual bases for Mr. Kobayashi’s declarations, including that MMU is using the trademarks at issue, are relevant and not privileged. This does not mean, however, that the information must come directly from Mr. Kobayashi. In MMU’s view, Defendants have already received this information from other sources, namely, written interrogatories. (MFEM Mot. ¶ 16.) See also Stalling, 2004 WL 783056, at *2. MMU argues that it has provided “substantial evidence” regarding the use of the Triangle Winged M mark in the Complaint, in the Affidavit and Memorandum in Support of Summary Judgment, and in its 124-page response to Defendants’ interrogatories. MMU also notes that it has produced invoices and service reports purporting to show the use of the Triangle Winged M mark. (PI. Resp. ¶ 31.) Defendants claim that Mr. Kobayashi’s deposition is nonetheless warranted here" }, { "docid": "13966687", "title": "", "text": "environmental damage.” Sause Brothers’ Memorandum in Support of Motion to Compel at 4, n. 1. Courts look with disfavor on attempts to depose opposing counsel. Harriston v. Chicago Tribune Co., 134 F.R.D. 232, 233 (N.D.Ill.1990) (citing Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986) and other cases). Depositions of opposing counsel are disruptive of the adversarial process and harmful to the standards of the legal profession, Id., and entail a high risk of implicating opinion work product. N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85-86 (M.D.N.C.1987). The Harriston court found that counsel depositions should be limited to situations where: (1) no other means exists to obtain the information sought; (2) the information is both relevant and nonprivileged; and (3) the information is crucial to the preparation of the case. 134 F.R.D. at 233. In this context, some courts place the burden of showing that a deposition will not invade the attorney-client privilege or the attorney’s work product on the party seeking the deposition. E.g. N.F.A., 117 F.R.D. at 86. Here, Sause Brothers has not shown that deposing Canada’s counsel is the only means to discover the information it seeks, nor that the proposed deposition would not, as appears certain, invade areas protected by privilege. Disclosure by Canada of the early draft environmental damage reports should inform Sause Brothers of the relevant facts. Absent a greater showing, a deposition of opposing counsel is inappropriate. I grant Canada’s motion for a protective order prohibiting the deposition. CONCLUSION I deny claimant Canada’s motion for a protective order concerning privileged documents. I grant plaintiff Sause Brothers’ motion to compel with respect to all draft environmental damage reports, but deny the motion insofar as it seeks production of privileged attorney-client correspondence or work product. I grant Canada’s motion for a protective order prohibiting Sause Brothers from deposing its counsel. . See 46 U.S.C.App. § 183, and Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. . At oral argument, Canada’s counsel stated that it has now discovered that a total" }, { "docid": "639983", "title": "", "text": "meetings attended by defendants and their attorneys]. In the present case, plaintiffs’ concerns of privilege or confidentiality are unwarranted because third parties were present at each conversation for which deposition testimony is sought, and the presence of adverse third parties destroys the confidentiality otherwise attaching to lawyer-client conversations. International Paper Co. v. Fibre Board Corp., 63 F.R.D. 88, 93 (D.Del.1974); Bird v. Penn Central Co., 61 F.R.D. 43, 46 (E.D.Pa.1973). The deposition of the attorney may be “both necessary and appropriate” where the attorney may be a fact witness, such as an “actor or viewer,” N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 n. 2 (M.D.N.C.1987), rather than one who “was not a party to any of the underlying transactions giving rise to the action,” Advance Systems, Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200, 201 (E.D.Wis.1989), or whose role in a transaction was speculative and not central to the dispute, Walker v. United Parcel Services, 87 F.R.D. 360, 362 (E.D.Pa.1980). For example, in Shelton v. American Motors Corp., 805 F.2d 1323, 1330 (8th Cir. 1986), an attorney who was not a fact witness to the underlying accident could not be deposed concerning her after-the-fact compilation of litigation documents; the deposition was precluded because the facts could be obtained by other means and because counsel’s knowledge was not “crucial and unique.” The preclusion of attorney depositions is to be analyzed with the same standards as any other protective order motion, with the movant bearing the burden of persuasion under Rule 26(c), above. The party seeking to block its attorney’s deposition concerning relevant information will succeed if it establishes undue burden or oppression measured by (1) the relative quality of information in the attorney’s knowledge, that is, whether the deposition would be disproportional to the discovering party’s needs; (2) the availability of the information from other sources that are less intrusive into the adversarial process; and (3) the harm to the party’s representational rights of its attorney if called upon to give deposition testimony. First, any discovery must pass the proportionality test of Rule" }, { "docid": "13352249", "title": "", "text": "discovery request was indeed over-broad and irrelevant and ordered the forfeiture of the cost bond, and payment of costs by plaintiff in the amount of $9,098.63. See Order of April 2, 1990. Undaunted by this and similar rulings, plaintiff’s counsel has served a notice of deposition which seeks to take the deposition of opposing counsel, John W. Powers. In response, defendant Tribune has filed the instant motion, seeking a protective order, pursuant to Fed.R.Civ.P. 26(c), prohibiting the taking of that deposition. The courts have not looked with favor upon attempts to depose opposing counsel. The practice is disruptive of the adversarial process and “lowers the standards of the legal profession.” Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986); see also Advance Systems, Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200 (E.D.Wis.1989); Joslyn Corp. v. RTE Corp., No. 86 C 2319, 1988 WL 102104 (N.D.Ill.1988); Marco Island Partners v. Oak Development Corp., 117 F.R.D. 418 (N.D.Ill.1987). Deposition of opposing counsel should be limited to situations where it is shown that: 1) no other means exists to obtain the information than to depose opposing counsel; 2) the information sought is relevant and non-privileged; and 3) the information is crucial to the preparation of the case. Shelton, 805 F.2d at 1327; Advance Systems, 124 F.R.D. at 201; Joslyn Corp., No. 86 C 2319, slip op. at p. 2. In this case, the plaintiff has not shown that the information is relevant to her case. Plaintiff states that the deposition is necessary as Mr. Powers, as counsel for the Tribune, gave advice to Ms. Harriston during her employment at the Tribune. Plaintiff’s Response, p. 3. Plaintiff claims that conversations between her and Mr. Powers are relevant to her discharge from the Tribune. Plaintiff’s Response, p. 3. However, other than the bald assertion that these conversations are relevant, plaintiff has made no showing that her discharge was influenced by the conversations between her and Mr. Powers . Moreover, plaintiff has wholly failed to show that any information Mr. Powers may have is crucial to the preparation of her case." }, { "docid": "12924878", "title": "", "text": "the potential for impeachment of the statements contained therein can be ascertained. Defendants claim that there is no better person than Agresta for locating the sources of information relevant to this suit. Defendants claim that they would not inquire into Agresta’s mental impressions and legal conclusions with respect to these documents. The law on this issue seems to be moving toward a position where courts generally will permit the deposition of opposing counsel only upon a showing of substantial need and only after alternate discovery avenues have been exhausted or proven impractical. That is so despite the fact that Fed.R. Civ.P. 30(a) does not afford attorneys any special protection from being deposed. Courts have become critical of the increasing use of depositions against opposing counsel. As stated in Shelton v. American Motors Corp.: Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and cost of litigation. It is not hard to imagine additional pretrial delays to resolve work-product and attorney-client objections, as well as delays to resolve collateral issues raised by the attorney’s testimony. Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client’s case without fear of being interrogated by his or her opponent. Moreover, the “chilling effect” that such practice will have on the truthful communications from the client to the attorney is obvious. 805 F.2d 1323, 1327 (8th Cir.1986). See N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 84-86 (M.D.N.C. 1987); In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. 429, 437-39 (E.D.Pa.1981); Walker v. United Parcel Services, 87 F.R.D. 360, 361-62 (E.D.Pa. 1980). Moreover, the deposition of counsel increases the likelihood that the attorney will be called as a witness at trial. Under such circumstances the attorney would normally be disqualified from providing further services. “N.Y.Jud.Law, Disciplinary Rule 5-102(A) (McKinney 1975) of the Code of Professional Responsibility requires that when ‘it is obvious that [a lawyer]" }, { "docid": "1848706", "title": "", "text": "not to find out if it has any basis for a claim.” Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1327 (Fed.Cir.1990) (citations omitted). The Court has discretion to limit or preclude pre-trial discovery if it is determined that “justice requires ... [the] protection of] a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...” RCFC 26(e). Nevertheless, orders totally quashing an entire deposition in advance of an appearance by the proposed deponent are rarely granted. Micro Motion, Inc., 894 F.2d at 1328; Dunkin’ Donuts Inc., 181 F.R.D. at 210; West Peninsular Title Co., 132 F.R.D. at 302. Pursuant to RCFC 26(c), the party seeking to shield itself from discovery bears the burden of demonstrating that “good cause” exists for a protective order. “Good cause” requires a showing that the discovery request is considered likely to oppress an adversary or might otherwise impose an undue burden. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.1995) (defining “good cause” for purposes of FRCP 26(c)); Johnston Dev. Group, Inc., 130 F.R.D. at 352-53 (suggesting factors for determining “good cause”). Some federal Courts in other jurisdictions have decided that a presumption of “good cause” is implicit when a party seeks to preclude its own attorney’s deposition testimony. Dunkin’ Donuts, Inc., 181 F.R.D. at 210; Niagara Mohawk Power Corp. v. Stone & Webster Eng’g Corp., 125 F.R.D. 578, 594 (N.D.N.Y.1989); West Peninsular Title Co., 132 F.R.D. at 302; N.FA Corp., 117 F.R.D. at 85. This presumption may be overcome if “the party seeking the deposition can show both the propriety and need for the deposition.” West Peninsular Title Co., 132 F.R.D. at 302; N.F.A. Corp., 117 F.R.D. at 85. Even those Courts which have not gone so far as to find “good cause” to be implicit, have required “the party seeking an attorney’s deposition [to] make at least a modest showing that the deposition is of significant utility or practical necessity.” 7 James Wm. Moore, Moore’s Federal Practice, § 30.03[5] at 30-24 (3d ed.1997). For example, in many of the cases cited by plaintiff" }, { "docid": "15949697", "title": "", "text": "Hunt International Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D.Ill.1983); Brown v. Hart Schaffner & Marx, 96 F.R.D. 64, 67 (N.D.Ill.1982). A review of the cases discussing this topic reveals that courts generally employ four criteria to determine whether to allow the deposition: 1) whether the information sought is relevant to a major issue in the case (MacKnight v. Leonard Morse Hosp., 828 F.2d 48, 51 (1st Cir.1987)); 2) no other means for obtaining the relevant information exists (Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 86 (M.D.N.C. 1987) ); 3) the need for the information outweighs the inherent risks of deposing opposition counsel (Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J.1990)); and 4) the information sought is not privileged (West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301, 302-02 (S.D.Fla.1990)). Defendant concentrates his efforts on the first factor. He claims that the two-year time limitation on suits is crucial to his case. Both losses, according to defendant, occurred during the tenure of the second of the two one-year contracts. This same contract was not specifically named in the original complaint. Therefore, defendant argues, if he can show that Lloyd’s-representative Smith never gave any indication that Smith was waiving the time limitation, M & R’s suit is finished. Even assuming defendant is correct that the information sought is relevant to a major issue of the case, defendant has failed to demonstrate how any of the other factors are fulfilled. Most significantly, defendant has not shown that there are no other means available to obtain the information he needs. There were two parties to the conversation at issue here. Defendant admits that he has not questioned Lloyd’s counsel Mr. Smith. The rule requires exhaustion of all other reasonable alternatives before a party should seek to depose his opponent’s attorney. Thus, it would be improper for the court to allow defendant to depose Mr. Esposito. Accord Shelton, 805 F.2d at 1327 (denying motion to depose counsel). CONCLUSION Defendant's" }, { "docid": "17294808", "title": "", "text": "of undue burden is fact specific. Cf. Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 187 (1st Cir.1989) (\"For the most part, there are no barbed-wire fences marking the precise boundaries of pretrial discovery. Management of discovery is a largely empirical exercise, requiring judges to balance the inquirer’s right to know against the responder’s right to be free from unwarranted intrusions, and then to factor in systemic concerns. Limits can best be set case by case.”). . Williams points out that Babcock and Carter never sought clarification or discussion of the breadth of the request prior to moving to quash the subpoenas. Opp. Br. at 6-7. Babcock and Carter respond that it would be \"absurd\" to require that they confer with Williams’ counsel to decipher the intended scope of the subpoena. Rep. Br. at 4. The court disagrees. Nearly ten years ago, in Dondi Properties Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284 (N.D.Tex. 1988) (en banc), this court adopted standards of litigation conduct to be observed in civil actions. Lawyers who are admitted to practice in this court, and those admitted pro hac vice, see N.D. Tex. Civ. R. 83.9(b), are obligated to read and comply with Dondi. It would have been consonant with the Dondi standards for Williams’ counsel and Babcock and Carter's counsel to have conferred in an attempt to narrow the intended scope of the subpoena. Cf. Ln re Exxon Valdez, 142 F.R.D. 380, 381 (D.D.C.1992) (noting that opposing counsel attempted to negotiate scope and costs of production). In no event is such a proposition “absurd.” . See Shelton v. American Motors Corp., 805 F.2d 1323, 1325, 1326-27 (8th Cir.1986) (addressing deposition of in-house litigation department supervising attorney assigned to case, and criticizing \"increasing practice of taking opposing counsel's deposition\" in context of opposing trial counsel in case in which deposition was noticed); Harriston v. Chicago Tribune Co., 134 F.R.D. 232, 233 (N.D.Ill.1990); Advance Sys., Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200, 200-01 (E.D.Wis.1989). Babcock and Carter also cite this court’s December 11, 1997 order, in" }, { "docid": "4501118", "title": "", "text": "stresses that its findings with respect to piercing the attorney-client privilege are separate and distinct from any future determination regarding the validity of Defendants’ affirmative defenses and counterclaims charging MMU with fraud. Defendants are ordered to return the original CD-ROM containing Exhibit L to MMU. MMU, in turn, will produce to Defendants a revised version of the disk without the privileged document. Defendants are ordered to destroy all copies of Exhibit L in its possession, whether in paper or electronic format, and they may not use or disseminate the document in any manner. B. Mr. Kobayashi’s Deposition Defendants next seek to obtain the factual information they want by deposing Mr. Kobayashi. Federal Rule 30(a)(1) does not exempt attorneys from being deposed, “even if he or she represents a party to the litigation in issue.” Taylor Mach. Works, Inc. v. Pioneer Distrib. Inc., No. 06-1126, 2006 WL 1686140, at *1 (C.D.Ill. June 19, 2006) (quoting Hunt Int’l Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D.I11.1983)). That said, courts have recognized that deposing opposing counsel “provides a unique opportunity for harassment; it disrupts the opposing attorney’s preparation for trial, and could ultimately lead to disqualification of opposing counsel if the attorney is called as a trial witness.” Id. (quoting Marco Island Partners v. Oak Develop. Corp., 117 F.R.D. 418, 420 (N.D.ll.1987)). As a result, “courts historically have looked with disfavor on attempts to [dejpose opposing counsel.” Id. Courts have adopted two approaches to resolving disputes regarding attorney depositions. One requires the attorney to attend the deposition and raise objections in response to specific questions. See Hunt Int’l Resources Corp., 98 F.R.D. at 690. The other approach limits depositions “to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, ...; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Shelton v. American Motors Corp., 805 F.2d 1323,1327 (8th Cir.1986). The Seventh Circuit has not expressly adopted either method, but numerous courts in this district have" }, { "docid": "18284404", "title": "", "text": "near complete protection arises when a party, affirmatively raises an issue which involves reliance upon the attorney’s advice. Duplan Corp., 509 F.2d at 735; Coleco Industries, Inc. v. Universal City Studios, 110 F.R.D. 688, 690-91 (S.D.N.Y.1986) (collecting cases); Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 447 (S.D.Fla.1980) (factors); and Kockums Industries v. Salem Equipment, 561 F.Supp. 168, 172-73 (D.Ore.1983) (the advice need only be an issue in the case—collecting cases). However, absent an attorney’s advice being made an issue in the case, courts should exercise great care before permitting the deposition of an attorney inasmuch as even seemingly innocent questions, such as the existence or nonexistence of documents or queries concerning which documents counsel has se lected in preparing a witness for deposition, may implicate opinion work product. Shelton v. American Motors Corp., 805 F.2d at 1327; Sporck v. Peil, 759 F.2d 312 (3d Cir.), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985). Because the subtleties of what constitutes work product may not be readily perceived at first glance, the Court is justified in discouraging attorney depositions and placing the burden on those who request the deposition. In seeking to depose a party’s attorney, the movant must demonstrate that the deposition is the only practical means available of obtaining the information. If there are other persons available who have the information, they should be deposed first. Also, other methods, such as written interrogatories which do not involve the same dangers as an oral deposition, should be employed. In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. at 439; and Jack Winter, Inc. v. Koratron Company, 50 F.R.D. 225, 227-28 (N.D.Cal.1970). Second, the movant should show that the information sought will not invade the attorney-client privilege or the attorney’s work product. Finally, the information must be relevant and the need for it outweighed by the disadvantages inherent in deposing a party’s attorney. See generally Shelton v. American Motors Corp., 805 F.2d at 1327. In the instant case, defendant fails to meet the above standard. First, to the extent defendant seeks to explore matters beyond the “Make Special” declarations" } ]

[ { "docid": "22295868", "title": "", "text": "manageable standards to adjudicate the merits of the claims, (2) the prospect that the parties would not be able to gather the information necessary to adjudicate the claims, (3) the danger that adjudication of the merits could lead to interference with the conduct of foreign policy by the political branches of the United States government. Standard of Review Because this is an appeal from the granting of a motion to dismiss, the amended complaint’s allegations must be taken as true and read in the light most favorable to the plaintiffs. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). A complaint may not be dismissed unless the plaintiff can prove no set of facts which would entitle him to relief. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)); Conley v. Gibson, 355 U.S. 41, 45-48, 78 S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957). Errors of law in evaluating the dismissal of the complaint are subject to plenary review by this court. Taffet v. Southern Co., 930 F.2d 847, 851 (11th Cir.1991). District Court’s Reasons for Dismissal The district court concluded first that 28 U.S.C. § 1331 does not confer federal jurisdiction over claims for relief by an individual predicated upon an alleged breach of customary international law. Second, even if this were not so, it would fail because of the non-governmental status of the defendants. Third, the Geneva Conventions are not self-executing. Fourth, even if suit would otherwise lie under 28 U.S.C. § 1332(a)(3), there can be no judicial redress for injuries occurring outside of the United States during conflicts between belligerents. The district court found that: [the amended complaint] is based on the underlying torts of battery and intentional infliction of emotional distress. There are however no applicable standards which would readily permit the fact-finder to thoroughly assess the defendants’ liability in this case. As a federal court sitting in" } ]

[ { "docid": "21448510", "title": "", "text": "ORDER G. KENDALL SHARP, District Judge. In this action, which was removed from state court, plaintiff Betty Haskin (Haskin) is suing three cigarette manufacturers, two cigarette lobbying groups, and one cigarette retailer for a host of bodily injuries she allegedly suffered due to her use of cigarettes. She states her claims in a six-count amended complaint. The three cigarette-manufacturer defendants have jointly moved to dismiss Counts V and VI of that amended complaint which purportedly state claims for fraud and conspiracy to commit fraud, respectively. That motion is presently before the court, along with Haskin’s response in opposition thereto. After setting forth the legal standard against which defendants’ motion will be tested, the court will address defendants’ substantive arguments and Haskin’s opposition. When evaluating a motion to dismiss, the court accepts allegations in the complaint as true and otherwise views the allegations in the light most favorable to the plaintiff. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992) (citing Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A, 711 F.2d 989, 994-95 (11th Cir.1983)). However, the court is not permitted to assume that the plaintiff “can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). Accordingly, every plaintiff has a duty to allege sufficient facts and legal grounds to affirmatively show that she is entitled to relief. Fullman v. Graddick, 739 F.2d 553, 556 (11th Cir.1984); accord Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974); Eidson v. Arenas, 155 F.R.D. 215, 219 (M.D.Fla.1994). Applying these rules, the court may dismiss a claim for failure to state a claim upon which relief can be granted only if the defendant demonstrates that the plaintiff can prove no set of facts which would entitle him to relief under the applicable substantive law. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d" }, { "docid": "4517513", "title": "", "text": "Court granted Defendants’ motion. The Court allowed Plaintiffs leave to amend the Complaint within 30 days. Plaintiffs did so, and Defendants have now filed a Motion to Dismiss the Second Amended Complaint for failure to remedy the defects identified in the earlier Order as well as grounds asserted in the earlier Motion to Dismiss. II. MOTION TO DISMISS STANDARD In general, a complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiffs claims for relief. Fed.R.Civ.P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Notice pleading is all that is required for a valid complaint. Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiffs claim and the grounds upon which it rests. Id. III. DISCUSSION Section 10(b) of the Securities Exchange Act of 1934 [hereinafter “Section 10(b)”] prohibits any person from using, in connection with the sale of any security, any deceptive device in contravention of such rules and regulations as the Securities and Exchange Commission (“SEC”) may prescribe. 15 U.S.C. § 78j(b). Based on this statute, the SEC has promulgated 17 C.F.R. § 240.10b-5 [hereinafter “Rule 10b-5”] to prohibit the making of any untrue statement or omission of material fact that would render statements misleading in connection with the purchase or sale of any security. To state a securities fraud claim under Rule 10b-5, a plaintiff must allege that the defendant (a) made a misstatement or omission, (b) of material fact, (c) with scienter, (d) in connection with the purchase or sale of securities, (e) upon which the plaintiff relied, (f) that proximately caused" }, { "docid": "1459795", "title": "", "text": "Court on February 3, 2012. (Id.) DISCUSSION I. Standard of Review Under Federal Rule of Civil Procedure 12(c), a party may make a motion for judgment on the pleadings after the pleadings are closed, but not early enough to delay trial where a complaint “fail[s] to state a claim upon which relief can be granted.” “Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Palmer & Cay, Inc. v. Marsh McLennan Cos., Inc., 404 F.3d 1297, 1303 (11th Cir.2005). The standard of review for a motion for judgment on the pleadings “is almost identical to that used to decide motions to dismiss.” Doe v. Bd. of Cnty. Comm’rs, 815 F.Supp. 1448, 1449 (S.D.Fla.1992). Fed.R.Civ.P. 12(b)(6) motions- to dismiss standards therefore apply to Fed. R.Civ.P. 12(c) motions for judgment on the pleadings. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n. 8 (11th Cir.2002) (explaining that standard under both Rule 12(b)(6) and 12(c) is “whether the count statefs] a claim for relief’). When ruling on a motion to dismiss for failure to state a claim, the court must view the allegations of the complaint in the light most favorable to the plaintiff and consider the well pleaded allegations of the complaint as true. Quality Foods de Centro Am., S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). A court’s review on a motion to dismiss is “limited to the four corners of the complaint.” St.- George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.2002). However, a court may consider the complaint itself along any documents referred to in the complaint that are central to the claims. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997) (per curiam). Where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiffs claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal," }, { "docid": "2084892", "title": "", "text": "20 at 9-14.) Plaintiff seeks a myriad of compensatory, punitive, statutory, and nominal damages as well as declaratory and injunctive relief. (See id. at 15.) II. Motions Defendants move to dismiss Plaintiffs claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). (See Motions, D.E. 30, 37, 41, 64.) Defendants assert numerous grounds for dismissal which are discussed below. In his Responses to Defendants’ Motions to Dismiss, Plaintiff requests leave to amend his First Amended Complaint. (See D.E. 38, 46, 65.) Plaintiffs requests to amend are detailed below as well. III. Applicable Standards a. Rule 12(b)(6) Dismissal Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6), a court must accept all factual allegations contained in the complaint as true and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). “The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is ... ‘exceedingly low.’ ” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (quoting Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev., 711 F.2d 989, 995 (11th Cir.1983)). To dismiss, it must “appear [ ] to a certainty, ‘that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984)). b. Rule 12(b)(1) Dismissal A challenge to the court’s subject-matter jurisdiction is brought under Federal Rule of Civil Procedure 12(b)(1). See Fed.R.Civ.P. 12(b)(1); Newman v. William L. Gunlicks Irrevocable Trust, 897 F.Supp.2d 1270, 1272-73 (M.D.Fla. 2012). Attacks on subject-matter jurisdiction come in two varieties, facial attacks and factual attacks. Godiciu v. J.P. Morgan Chase Bank, N.A., 2012 WL 4370263, at *1 (S.D.Fla.2012). Facial attacks assert that the plaintiffs allegations, taken as true, fail to establish the court’s" }, { "docid": "1459796", "title": "", "text": "12(c) is “whether the count statefs] a claim for relief’). When ruling on a motion to dismiss for failure to state a claim, the court must view the allegations of the complaint in the light most favorable to the plaintiff and consider the well pleaded allegations of the complaint as true. Quality Foods de Centro Am., S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). A court’s review on a motion to dismiss is “limited to the four corners of the complaint.” St.- George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.2002). However, a court may consider the complaint itself along any documents referred to in the complaint that are central to the claims. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997) (per curiam). Where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiffs claim, then the Court may consider the documents part of the pleadings for purposes 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. Corp. 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.”). II. Choice of Law In a diversity action, a federal court must apply the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Because the court has jurisdiction in this case based on diversity of citizenship, the court must apply the substantive law of the forum state — in this instance, Georgia. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). il/. Analysis A. Waiver: The Court must first address Plaintiffs argument that Defendant “has waived the right to assert all defenses not explicitly" }, { "docid": "12321396", "title": "", "text": "Sun-dance’s breach of contract claim because it is barred by Florida’s voluntary payment doctrine. The undersigned considers each of these arguments in turn. II. ANALYSIS A. Legal Standard A motion to dismiss a complaint for failure to state a claim requires that a court accept the facts pleaded as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests....’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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)). Nevertheless, “[w]hile a complaint at tacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 127 S.Ct. at 1964-65 (internal citations omitted). “[A] complaint’s ‘[factual allegations must be enough to raise a right to relief above the speculative level.’ ” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir.2008) (quoting Twombly, 127 S.Ct. at 1965). B. FDUTPA Claim 1. Whether Sundance has Adequately Plead a Claim Under the FDUTPA The FDUTPA provides a cause of action for “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce....” Fla. Stat. § 501.204(1) (2001). “Pursuant to § 501.211, any person who has suffered losses as a result of a violation may commence a private action to recover actual damages, attorney’s fees, and costs.” Zlotnick v. Premier Sales Group, Inc., 480 F.3d 1281, 1284 (11th Cir.2007) (citing Fla. Stat. § 501.211(2))." }, { "docid": "11262865", "title": "", "text": "the court has already dismissed for the reasons noted above.” Id. We review a district court’s dismissal of a complaint de novo. In particular, “[w]hether specific conduct is anti-competitive is a question of law reviewed de novo.” SmileCare Dental Group v. Delta Dental Plan of Cal, Inc., 88 F.3d 780, 783 (9th Cir.1996). “‘[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.’ ” St Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir.1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). This Court “must accept the facts pleaded as true and construe them in a light favorable to plaintiffs.” Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Rule 12(b)(6) dismissals are particularly disfavored in fact-intensive antitrust cases. In Quality Foods, which involved claims under sections 1 and 2 of the Sherman Act, this Court stated that “the threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low.” 711 F.2d at 994. “Although authorized by the Federal Rules of Civil Procedure, the liberal rules as to the sufficiency of a complaint make it a rare case in which a motion [to dismiss] should be granted.” St. Joseph’s Hosp., 795 F.2d at 953 (footnote omitted). DISCUSSION I. Sherman Act Claims We turn first to the question of whether the litany of facts pleaded in Covad’s complaint, if taken as true, state a cause of action for the violation of the Sherman Act. Answering this question requires a two-tiered inquiry. First, we must determine whether the 1996 Act’s regulation of local telecommunications markets precludes application of the Sherman Act so that a claim based on facts “inextricably linked” to an alleged violation of the 1996 Act can never, as a matter of law, form the basis of an independent" }, { "docid": "13112973", "title": "", "text": "labor costs exceeded those represented during the franchise negotiations, resulting in substantial monthly losses at its three locations. (Compl.lffl 74-78.) American Casual asserts a number of claims arising out of the Franchise Agreement and related documents. Specifically, American Casual asserts a claim for violation of the Georgia Sale of Business Opportunities Act, O.C.G.A. § 10-1^417; fraud; negligent misrepresentation; breach of contract; breach of the duty of good faith and fair dealing, O.C.G.A. § 11-1-203; promissory estoppel; and unjust enrichment. Moe’s moves to dismiss these claims. American Casual also asserted a claim under the Texas Deceptive Trade Practices Act, Tex. Bus. & Com.Code § 17.46. However, the parties jointly stipulated to dismissal of that claim with prejudice [Doc.17]. II. MOTION TO DISMISS STANDARD A complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiffs claims for relief. Fed.R.Civ.P. 12(b)(6); see Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Generally, notice pleading is all that is required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiffs claim and the grounds upon which it rests. Id. III. DISCUSSION A. Georgia Sale of Business Opportunities Act The Georgia Sale of Business Opportunities Act (“GSBOA”), O.C.G.A. § 10-1-410 et seq., prohibits a “business opportunity seller or multilevel distribution company” from using untrue or misleading statements in connection with a business opportunity. O.C.G.A. § 10 — 1— 417(a). Moe’s argues that the GSBOA does not apply in this case because the sale of a franchise" }, { "docid": "13294381", "title": "", "text": "moved to dismiss for failure to state a claim under Rule 12(b)(6) and under the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C. § 78u-4(b). The defendants con tend that the consolidated complaint is subject to dismissal because (1) the alleged misrepresentations are not actionable misstatements of fact; (2) the alleged misrepresentations are immunized by the PSLRA’s safe harbor provisions and the bespeaks caution doctrine; (3) the complaint fails to properly plead scienter; (4) allegations of mismanagement are not actionable under the PSLRA; and (5) the individual defendants cannot be personally liable under the facts alleged. The court first turns to the applicable standards and substantive law. In general, a complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiffs claims for relief. Fed.R.Civ.P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Notice pleading is all that is required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiffs claim and the grounds upon which it rests. See id. “Nonetheless, courts do not hesitate to dismiss securities claims pursuant to Rule 12(b)(6) where the alleged misstatements or omissions are plainly immaterial, or where the plaintiff has failed to allege with particularity circumstances that could justify an inference of fraud under Rule 9(b).” Grossman v. Novell, Inc., 120 F.3d 1112, 1118 (10th Cir.1997); see also San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Co., 75 F.3d 801, 808-12 (2d Cir.1996) (hereinafter “San Leandro ”); In re Worlds of Wonder Sec. Litig., 35 F.3d 1407, 1413 (9th Cir.1994); In" }, { "docid": "4010312", "title": "", "text": "in compliance with Title IX. Therefore, the OCR investigation was closed. In the context of a motion to dismiss, we accept as true facts alleged in a complaint and construe them in a light favorable to the plaintiff. E.G., Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 994-95 (11th Cir.1983). The parties agree and cases have held that Title VI of Civil Rights Act of 1964 (codified as amended at 42 U.S.C. §§ 2000d to d-4 (1988)) (“Title VI”), served as the legislative antecedent for Title IX, and that consequently, the jurisprudential analysis of the Justices’ opinions in Guardians Association v. Civil Service Commission, 463 U.S. 582, 103 5.Ct. 3221, 77 L.Ed.2d 866 (1983), which construed Title VI (and upon which both parties rely), as well as the analysis of other Title VI cases, is applicable in a Title IX context. See Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Title IX was patterned after Title VI of the Civil Rights Act of 1964. Except for the substitution of the word “sex” in Title IX to replace the words “race, color, or national origin” in Title VI, the two statutes use identical language to describe the benefitted class. Both statutes provide the same administrative mechanism for terminating federal financial support for institutions engaged in prohibited discrimination. Id. at 694-96, 99 S.Ct. at 1956-57. Hereinafter we discuss Title VI and Title IX cases somewhat interchangeably, because we believe it is settled that analysis of the two statutes is substantially the same. For purposes of this case, it is undisputed that an implied private right of action exists under Title IX. See Cannon, 441 U.S. 677, 99 S.Ct. 1946. However, it is clear that the question \"whether a litigant has a ‘cause of action’ is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.” Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979). Consequently, the existence of a cause of action by" }, { "docid": "12321395", "title": "", "text": "at 1f 38). Finally, Sundance alleges that it suffered actual damages when it paid the required prepayment amount under the Windfall Interpretation (see id. at ¶¶ 21-22, 39), and that, as a result, it is entitled to actual damages, calculated as the difference between the alleged correct yield maintenance prepayment amount and the Windfall Interpretation as wells as costs, attorney’s fees, and other relief. (See id. at ¶ 39). Defendants now move to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). GECC moves to dismiss the second cause of action of the Amended Complaint alleging a violation of the FDUTPA on the grounds that Sun-dance has failed to allege sufficient facts regarding GECC’s involvement to sustain a cause of action, and because the claim is barred by Section 501.212, Florida Statutes, and by the applicable statute of limitations. GEMSA also moves to dismiss the FDUTPA claim against it, on the ground that Sundance has failed to allege sufficient facts regarding GEMSA’s involvement in a FDUTPA violation. Finally, Wells Fargo moves to dismiss Sun-dance’s breach of contract claim because it is barred by Florida’s voluntary payment doctrine. The undersigned considers each of these arguments in turn. II. ANALYSIS A. Legal Standard A motion to dismiss a complaint for failure to state a claim requires that a court accept the facts pleaded as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests....’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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)). Nevertheless, “[w]hile a complaint at tacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual" }, { "docid": "4517512", "title": "", "text": "¶ 43.) [Doc.24] (10) The Company’s January 11, 1999, press release regarding its disappointing fourth quarter 1998 earnings and a conference call Defendants Jacobs and Smith held later that day with securities analysts. In both the press release and the conference call, Theragenics blamed the disappointing earnings on misallocation of resources by Indigo and stated that Indigo was adjusting its marketing and sales focus. (Plaintiffs’ Second Amended Complaint, at ¶ 45, 46.) [Doc.24] According to Plaintiffs, these allegedly false statements and omissions inflated the value of Theragenics stock in violation of the Securities Exchange Act of 1934 and injured Plaintiffs as purchasers of Thera-genics stock at the artificially inflated prices. Defendants moved to dismiss the case in its entirety for failure to staté a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Defendants contended that Plaintiffs’ Amended Complaint failed to comply with the heightened pleading standards of the Private Securities Litigation Reform Act of 1995, Pub.L. No. 104-67, 109 Stat. 743 (1995) (codified at 15 U.S.C. § 78u-4(b)). After careful review, the Court granted Defendants’ motion. The Court allowed Plaintiffs leave to amend the Complaint within 30 days. Plaintiffs did so, and Defendants have now filed a Motion to Dismiss the Second Amended Complaint for failure to remedy the defects identified in the earlier Order as well as grounds asserted in the earlier Motion to Dismiss. II. MOTION TO DISMISS STANDARD In general, a complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiffs claims for relief. Fed.R.Civ.P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Notice pleading is all that is required for a valid complaint. Lombard’s, Inc. v." }, { "docid": "13906694", "title": "", "text": "the Defendants violated various federal antitrust laws. See Sherman Antitrust Act §§ 1-2, 15 U.S.C. §§ 1-2; Federal Trade Commission Act § 5(a), 15 U.S.C. § 45(a). The Indirect Purchasers also allege that the Defendants violated the common law and antitrust laws of about forty states. All of the Plaintiffs assert antitrust claims based on the settlements. They say that Solvay paid Watson, Par, and Paddock millions of dollars for agreeing not to sell generic AndroGel before August 31, 2015. The Direct Purchasers, but not the other Plaintiffs, also assert antitrust claims based on the Defendants’ conduct before the settlements. They say that Solvay filed sham infringement actions against Watson and Paddock; Solvay improperly listed the '894 patent in the Orange Book; all of the Defendants participated in a scheme to monopolize the market for generic AndroGel; and Watson, Par, and Paddock agreed not to compete with each other in the market for generic AndroGel. The Defendants now move to dismiss all of the Plaintiffs’ claims for failure to state a claim upon which relief can be granted. II. Motion to Dismiss Standard A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, —- U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Fed.R.Civ.P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely “remote and unlikely.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and quotations omitted). In ruling on a motion to dismiss, the court must accept factual allegations as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Generally, notice pleading is all that is required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753" }, { "docid": "3131794", "title": "", "text": "Plaintiff alleges that Defendant Tate unlawfully accessed and taped private telephone and voice mail communications between Plaintiff and Michael Tate, Defendant Tate’s former husband. She further contends that Defendant Tate gave the recorded communications to the other individual Defendants (“Henry County Defendants”) who disseminated the illegally obtained information throughout the Henry County police department. Defendant Henry County has filed a Motion to Dismiss and the Henry County Defendants have filed a Motion for Partial Judgment on the Pleadings. II.STANDARD OF REVIEW A. MOTION TO DISMISS A complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiff’s claims for relief. Fed.R.Civ.P. 12(b)(6); see Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 968 F.2d 332 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construes them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A, 711 F.2d 989, 994-95 (11th Cir.1983). Generally, notice pleading is all that is required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, plaintiff need only give the defendant fair notice of the plaintiffs claim and the grounds upon which it rests. Id. B. MOTION FOR JUDGMENT ON THE PLEADINGS A party may file a motion for judgment on the pleadings after the pleadings are closed but within such time as not to delay trial. Fed.R.Civ.P. 12(c). Judgment on the pleadings is appropriate when no issues of material fact exist and the movant is entitled to judgment as a matter of law. Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir.1996). In rendering a judgment on the pleadings, a court considers only the substance of the pleadings and any judicially noticed facts. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.1998). The court accepts" }, { "docid": "3224277", "title": "", "text": "and a loss of natural motion in Plaintiffs lumbar spine. (Id. at 5) Plaintiff sues Defendant for negligence and strict liability. Defendant again moves to dismiss citing preemption of a claim challenging a medical device regulated by the FDA. II. STANDARD The threshold for surviving a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6) is a low one. Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., et al., 711 F.2d 989, 995 (11th Cir.1983). A plaintiff must plead only sufficient facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-62, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the “no set of facts” standard for evaluating a motion to dismiss established in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff is obligated to provide the “grounds” for his entitlement to relief. Berry v. Budget Rent A Car Sys., Inc., 497 F.Supp.2d 1361, 1364 (S.D.Fla.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In evaluating the sufficiency of a complaint in light of a motion to dismiss, the well pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff. Quality Foods, 711 F.2d at 994-95. The Court’s consideration must be limited to the pleadings and any exhibits attached thereto. Ahem v. Fidelity Nat. Title Ins. Co., 664 F.Supp.2d 1224, 1226 (M.D.Fla.2009) (internal citations omitted) (citing GSW, Inc. v. Long Cnty. Ga., 999 F.2d 1508, 1510 (11th Cir.1993)); see also Quality Foods, 711 F.2d at 994-95. III. DISCUSSION Defendant argues Plaintiffs amended complaint fails to state a claim upon which relief can be granted because (1) the preemption provision of the Medical Device Amendments of 1976 (“MDA”) expressly bars state law claims approved through the PMA process, (2) Plaintiff fails to allege a parallel claim premised upon a violation of FDA regulations or specific PMA" }, { "docid": "4010311", "title": "", "text": "activity between Hill and Franklin. Franklin alleged that after she reported the above circumstances to school authorities Prescott tried to discourage her from pursuing the matter by talking to her about the negative publicity which could result. Prescott also spoke to Kreeft in an effort to enlist his assistance to discourage Franklin from pursuing the matter. Sometime between March 2 and March 14, 1988, Gwinnett began an investigation. At the termination of the 1987-88 school year, Hill resigned and Prescott retired. At this point, Gwinnett closed its investigation. In August of 1988, Franklin filed a complaint against Gwinnett with the Office of Civil Rights (“OCR”), United States Department of Education, alleging that she had been subjected to sexual discrimination in violation of Title IX. Following a six-month investigation, OCR found Gwinnett in violation of Title IX. However in a December 14, 1988 letter signed by its regional director and addressed to Franklin's counsel OCR stated that due to assurances of affirmative actions designed to prevent any future violations it considered Gwin-nett as of that date in compliance with Title IX. Therefore, the OCR investigation was closed. In the context of a motion to dismiss, we accept as true facts alleged in a complaint and construe them in a light favorable to the plaintiff. E.G., Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 994-95 (11th Cir.1983). The parties agree and cases have held that Title VI of Civil Rights Act of 1964 (codified as amended at 42 U.S.C. §§ 2000d to d-4 (1988)) (“Title VI”), served as the legislative antecedent for Title IX, and that consequently, the jurisprudential analysis of the Justices’ opinions in Guardians Association v. Civil Service Commission, 463 U.S. 582, 103 5.Ct. 3221, 77 L.Ed.2d 866 (1983), which construed Title VI (and upon which both parties rely), as well as the analysis of other Title VI cases, is applicable in a Title IX context. See Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Title IX was patterned after Title VI of the Civil Rights" }, { "docid": "3411945", "title": "", "text": "was required to do, plaintiffs would have sold their stock shortly after learning the truth and at a much higher price than its subsequent value.” Cisco now moves to dismiss the complaint for failure to state a claim. II. MOTION TO DISMISS A. Standard A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is designed to eliminate counts or complaints that fail to state a claim upon which relief can be granted. As such, this Court must accept all allegations of the complaint as true and construe those allegations in the light most favorable to Plaintiffs. See Lopez v. First Union Nat’l Bank of Fla., 129 F.3d 1186, 1189 (11th Cir.1997); Webb v. Town Council of Town of Hilliard, 766 So.2d 1241, 1243 (Fla. 1st DCA 2000); Rohatynsky v. Kalogiannis, 763 So.2d 1270, 1272 (Fla. 4th DCA 2000). A count may not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. See Lopez v. First Union Nat’l Bank of Fla., 129 F.3d 1186, 1189 (11th Cir.1997). “The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low.” Quality Foods de Centro Am. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir.1983). B. Discussion 1. Pleading with Particularity under Rule 9(b) Cisco contends that the Plaintiffs have failed to sufficiently plead their claims of fraud, negligent misrepresentation, and breach of fiduciary duty as required by Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) states that, “In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity.” “The particularity rule serves an important purpose in fraud actions by alerting defendants to the ‘precise misconduct with which they are charged’ and protecting defendants ‘against spurious charges of immoral and fraudulent behavior.’ ” Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir.1988)(quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786," }, { "docid": "2084893", "title": "", "text": "threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is ... ‘exceedingly low.’ ” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (quoting Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev., 711 F.2d 989, 995 (11th Cir.1983)). To dismiss, it must “appear [ ] to a certainty, ‘that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984)). b. Rule 12(b)(1) Dismissal A challenge to the court’s subject-matter jurisdiction is brought under Federal Rule of Civil Procedure 12(b)(1). See Fed.R.Civ.P. 12(b)(1); Newman v. William L. Gunlicks Irrevocable Trust, 897 F.Supp.2d 1270, 1272-73 (M.D.Fla. 2012). Attacks on subject-matter jurisdiction come in two varieties, facial attacks and factual attacks. Godiciu v. J.P. Morgan Chase Bank, N.A., 2012 WL 4370263, at *1 (S.D.Fla.2012). Facial attacks assert that the plaintiffs allegations, taken as true, fail to establish the court’s jurisdiction. Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir.2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)). Factual attacks, on the other hand, “challenge the court’s jurisdiction in fact, irrespective of the pleadings.” Id. In resolving factual challenges, the court may look outside the four corners of the complaint to determine if jurisdiction exists. See id. c. Amendment of Pleadings Apart from initial amendments permissible as a matter of course, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. However, “[a] district court need not ... allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.2001). Leave to amend a complaint is futile when the complaint" }, { "docid": "4017721", "title": "", "text": "trade in violation of Section One of the Sherman Act as well as attempted monopolization by both CC and HBC of the major Spanish-language radio markets in violation of Section Two of the Act. In addition to federal antitrust violations, SBS claimed causes of action under Florida and California statutes and under various common law theories. The district court dismissed SBS’s complaint with prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6), after concluding that SBS could not meet the requirements necessary to maintain a Sherman antitrust suit. On appeal, SBS argues that the district court erred as a matter of law in dismissing the complaint, abused its discretion in failing to grant leave to amend the complaint, and erred in dismissing the complaint with prejudice. We review de novo a district court decision to dismiss an antitrust complaint under Rule 12(b)(6) for failure to state a claim. Lowell v. Am. Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.1999). We accept the factual allegations in the complaint as true and make all reasonable inferences in favor of the non-moving party. The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low, and Rule 12(b)(6) dismissals are particularly disfavored in fact-intensive antitrust cases. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). The complaint should only be dismissed with prejudice if it appears beyond doubt that SBS can prove no set of facts which would entitle it to relief. St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir.1986). In this case, neither the complaint nor the appellate briefs are models of clarity in defining the precise claims brought under the antitrust laws or describing how the factual allegations in the complaint satisfy the necessary elements of each specific claim. Nonetheless, we will attempt to categorize the claims in terms of existing antitrust case law. I. Sherman Act Section One Section One of the Sherman Act provides: Every contract, combination in the form of trust or otherwise, or conspiracy," }, { "docid": "13906695", "title": "", "text": "can be granted. II. Motion to Dismiss Standard A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, —- U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Fed.R.Civ.P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely “remote and unlikely.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and quotations omitted). In ruling on a motion to dismiss, the court must accept factual allegations as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Generally, notice pleading is all that is required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiffs claim and the grounds upon which it rests. See Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). III. Discussion A. Patent Infringement Settlements All of the Plaintiffs assert antitrust claims based on the settlements. They say that the business promotion agreements were really just a way for Solvay to pay Watson, Par, and Paddock for agreeing not to sell generic AndroGel before August 31, 2015. They say that this was an antitrust violation because, without these “reverse payments,” Solvay would have either lost its infringement actions or settled on a date for sale of generic AndroGel earlier than August 31, 2015. In either situation, Watson, Par, and Paddock would have sold generic AndroGel before August 31, 2015, and market competition would have substantially reduced the price of AndroGel." } ]

[ { "docid": "22072405", "title": "", "text": "effort to “segregate] . . . voters” on the basis of race. Gomillion, supra, at 341. Gomillion, in which a tortured municipal boundary line was drawn to exclude black voters, was such a case. So, too, would be a case in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions. We emphasize that these criteria are important not because they are constitutionally required — they are not, cf. Gaffney v. Cummings, 412 U. S. 735, 752, n. 18 (1973) — but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. Cf. Karcher v. Daggett, 462 U. S. 725, 755 (1983) (Stevens, J., concurring) (“One need not use Justice Stewart’s classic definition of obscenity — ‘I know it when I see it’ — as an ultimate standard for judging the constitutionality of a gerrymander to recognize that dramatically irregular shapes may have sufficient probative force to call for an explanation” (footnotes omitted)). Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. See, e.g., Holland v. Illinois, 493 U. S. 474, 484, n. 2 (1990) (“[A] prosecutor’s assumption that a black juror may be presumed to be partial simply because he is black ... violates the Equal Protection Clause” (internal quotation marks omitted)); see also Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630-631 (1991)" } ]

[ { "docid": "491519", "title": "", "text": "because that particular \"deviation” appears to have been addressed in HB 5005 itself. See Ints.’ Ex. 7 at 2-3. BARBARA MILANO KEENAN, Circuit Judge, dissenting: Today, despite the Supreme Court’s clear warning against the mechanical use of racial targets in redistricting, this court upholds the Virginia General Assembly’s application of a one-size-fits-all racial quota to twelve highly dissimilar legislative districts. This quota was used to assign voters to districts based on the color of their skin without the constitutional protection afforded by strict scrutiny. I recognize that the legislature in this case did not have the benefit of the Supreme Court’s decision in Alabama, and I do not doubt that ■ individual legislators acted in good faith in the redistricting process. Nevertheless, the resulting legislative enactment has affected Virginia citizens’.fundamental right to vote, in violation of the Equal Protection Clause. Accordingly, I would invalidate Virginia’s 2011 redistricting plan. I. Redistricting decisions are almost always made with a “consciousness of race,” Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (principal opinion of O’Connor, J.), and such awareness does not necessarily result in a violation of the Equal Protection Clause, see Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). However, when a legislature is “motivated” by racial considerations, this inherently suspect system of racial classification must satisfy the rigorous requirements of strict scrutiny. Miller, 515 U.S. at 916, 115 S.Ct. 2475. A plaintiff asserting a race-based equal protection claim in a redistricting case has the burden of proving “that race was the predominant, factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Id. (emphasis added). Under this predominance test, a plaintiff must show that “the legislature subordinated traditional race-neutral districting principles ... to racial considerations.” Id.; see also Ala. Legislative Black Caucus v. Alabama, — U.S. -, 135 S.Ct. 1257, 1271, 191 L.Ed.2d 314 (2015) (“[.T]he ‘predominance’ question concerns which voters the legislature decides to choose, and specifically whether the legislature predominantly uses race as opposed to other, ‘traditional’ factors when" }, { "docid": "22200732", "title": "", "text": "suggest that the municipal boundaries of the City of Belle Glade are so bizarre as to raise an inference of racially discriminatory intent under the racial gerrymandering case of Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). Appellants assert that the City’s decision to annex State Road Number 80 in 1965 and its deliberate decision not to annex the black population centers on either side of the highway rendered the boundaries of Belle Glade bizarre. They argue, therefore, that this annexation is facially suspect and triggers strict scrutiny under the Fourteenth Amendment, and that the district court again erred in failing to shift the burden to Appellees to produce evidence that the municipal boundary was shaped by decisions that were narrowly tailored to achieve a compelling governmental interest. We find this argument similarly unpersuasive. To establish that a districting scheme amounts to impermissible racial gerrymandering, a plaintiff bears the burden of proving that race was the predominant factor in the legislature’s decision either through “ ‘circumstantial evidence of a district’s shape and demographics’ or through ‘more direct evidence going to legislative purpose.’ ” Shaw v. Hunt, 517 .U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) [hereinafter Shaw II ] (quoting Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). As the Supreme Court explained in Miller: Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines. 515 U.S. at 913,115 S.Ct. 2475. A plaintiff will not prevail, however, simply by pointing to the bizarre shape of a legislative district where the district lines are facially race neutral. Under those circumstances, “a more searching inquiry is necessary before strict scrutiny can be found applicable.” Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion) (quotations omitted). Moreover, a state may defeat an" }, { "docid": "19792014", "title": "", "text": "115 S.Ct. 2475. As for shape, in Shaw I, Miller, and Vera, the Court attached maps of the extraordinarily bizarrely shaped 12th Congressional District in North Carolina, 18th, 29th, and 80th Congressional Districts in Texas, and 11th Congressional District in Georgia. See Vera, 517 U.S. at 987-89, 116 S.Ct. 1941: Miller, 515 U.S. at 928, 115 S.Ct. 2475: Shaw v. Reno, 509 U.S. 630, 658, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (“Shaw I”); see also Shaw II, 517 U.S. at 902-07, 116 S.Ct. 1894 (describing evidence concerning shape and demographics of the 12th Congressional District). As for demographics, in Miller, the three-judge court found that, in order to create a third majority-minority congressional district, the Georgia Legislature used “narrow land bridges to incorporate within the district outlying appendages containing nearly 80% of the district’s total black population.” Miller, 515 U.S. at 917, 115 S.Ct. 2475. The three-judge court in Miller also noted that the Georgia Legislature only created the third majority-minority congressional district after the Department of Justice had twice denied preclearance to redistricting plans that did not have three majority-minority congressional districts. Id. at 907-11, 917-20, 115 S.Ct. 2475. Furthermore, in Miller, the three-judge court found that the third majority-minority congressional district connected “the black neighborhoods of metropolitan Atlanta and the poor black populace” of Augusta and Savannah, covered 6,784.2 square miles, encompassed “four discrete, widely spaced urban centers” that are hundreds of miles apart, and attached communities of people that have nothing to do with each other. Id. at 907-08, 911-21, 115 S.Ct. 2475 (quotation omitted); see Vera, 517 U.S. at 959-76, 116 S.Ct. 1941 (describing evidence concerning shape and demographics of Texas Congressional Districts 18, 29, and 30). More generally, in evaluating circumstantial evidence, the Supreme Court has reminded courts to focus on whether a plaintiff has proven that the “legislature subordinated traditional race-neutral dis-tricting principles ... to racial considerations.” Ala. Legislative Black Caucus, 135 S.Ct. at 1270 (emphasis and quotation omitted). Such traditional race-neutral districting principles include “compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, incumbency protection, and political affiliation.”" }, { "docid": "19650458", "title": "", "text": "(2009); League of United Latin American Citizens v. Perry,548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); Georgia v. Ashcroft,539 U.S. 461, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003); Reno v. Bossier Parish School Bd.,528 U.S. 320, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000)(Bossier II ); Hunt v. Cromartie,526 U.S. 541, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Reno v. Bossier Parish School Bd.,520 U.S. 471, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997)(Bossier I ); Bush v. Vera,517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); Shaw v. Hunt,517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996)(Shaw II ); Miller v. Johnson,515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); United States v. Hays,515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); Holder, supra; Johnson v. De Grandy,512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994); Growe v. Emison,507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993); Shaw v. Reno,509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993)(Shaw I ); Voinovich v. Quilter,507 U.S. 146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). The consequences have been as predictable and as they are unfortunate. In pursuing \"undiluted\" or maximized minority voting power, \"we have devised a remedial mechanism that encourages federal courts to segregate voters into racially designated districts to ensure minority electoral success.\" Holder, supra,at 892, 114 S.Ct. 2581(THOMAS, J., concurring in judgment). Section 5, the provision at issue here, has been applied to require States that redistrict to maintain the number of pre-existing majority-minority districts, in which minority voters make up a large enough portion of the population to be able to elect their candidate of choice. See, e.g., Miller, supra,at 923-927, 115 S.Ct. 2475(rejecting the DOJ's policy of requiring States to increase the number of majority-black districts because maintaining the same number of majority-black districts would not violate § 5). In order to maintain these \"racially 'safe burroughs,' \" States or courts must perpetually \"divid[e] the country into electoral districts along racial lines-an enterprise of segregating the races into political homelands.\" Holder, supra,at 905, 114 S.Ct. 2581(opinion of THOMAS, J.)" }, { "docid": "491520", "title": "", "text": "opinion of O’Connor, J.), and such awareness does not necessarily result in a violation of the Equal Protection Clause, see Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). However, when a legislature is “motivated” by racial considerations, this inherently suspect system of racial classification must satisfy the rigorous requirements of strict scrutiny. Miller, 515 U.S. at 916, 115 S.Ct. 2475. A plaintiff asserting a race-based equal protection claim in a redistricting case has the burden of proving “that race was the predominant, factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Id. (emphasis added). Under this predominance test, a plaintiff must show that “the legislature subordinated traditional race-neutral districting principles ... to racial considerations.” Id.; see also Ala. Legislative Black Caucus v. Alabama, — U.S. -, 135 S.Ct. 1257, 1271, 191 L.Ed.2d 314 (2015) (“[.T]he ‘predominance’ question concerns which voters the legislature decides to choose, and specifically whether the legislature predominantly uses race as opposed to other, ‘traditional’ factors when doing so.” (emphasis in original)). When a legislature has “relied on race in substantial disregard of customary and traditional districting principles,” such traditional principles have been subordinated to race. Miller, 515 U.S. at 928, 115 S.Ct. 2475 (O’Connor, J., concurring). Strict scrutiny is required when race was the predominant factor that categorically was accorded priority over race-neutral districting factors. As the Supreme Court has' explained, traditional factors have been subordinated to race when “[r]ace was the criterion that, in the State’s view, could not be' compromised,” and when traditional, race-neutral criteria were considered “only after the race-based decision had been made.” Shaw v. Hunt, 517 U.S. 899, 907, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II); see also Page v. Va. Bd. of Elections, No. 3:13cv678, 2015 WL 3604029, at *7 (E.D.Va. June 5, 2015). Thus, while a redistricting plan may reflect certain traditional districting criteria, that plan nevertheless remains subject to strict scrutiny when those criteria have been subordinated to á process that has sorted voters primarily by race. Contrary to the majority’s" }, { "docid": "19539704", "title": "", "text": "that \"race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.\" Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). That entails demonstrating that the legislature \"subordinated\" other factors-compactness, respect for political subdivisions, partisan advantage, what have you-to \"racial considerations.\" Ibid. The plaintiff may make the required showing through \"direct evidence\" of legislative intent, \"circumstantial evidence of a district's shape and demographics,\" or a mix of both. Ibid. Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny. See Bethune-Hill, 580 U.S., at ----, 137 S.Ct., at 800. The burden thus shifts to the State to prove that its race-based sorting of voters serves a \"compelling interest\" and is \"narrowly tailored\" to that end. Ibid . This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965 (VRA or Act), 79 Stat. 437, as amended, 52 U.S.C. § 10301 et seq . See, e.g., Shaw v. Hunt, 517 U.S. 899, 915, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II ). Two provisions of the VRA-§ 2 and § 5-are involved in this case. §§ 10301, 10304. Section 2 prohibits any \"standard, practice, or procedure\" that \"results in a denial or abridgement of the right ... to vote on account of race.\" § 10301(a). We have construed that ban to extend to \"vote dilution\"-brought about, most relevantly here, by the \"dispersal of [a group's members] into districts in which they constitute an ineffective minority of voters.\" Thornburg v. Gingles, 478 U.S. 30, 46, n. 11, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Section 5, at the time of the districting in dispute, worked through a different mechanism. Before this Court invalidated its coverage formula, see Shelby County v. Holder, 570 U.S. ----, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), that section required certain jurisdictions (including various North Carolina counties) to pre-clear voting changes with the Department of Justice, so as to forestall \"retrogression\" in the ability of" }, { "docid": "19792007", "title": "", "text": "Constitution fail, so too do plaintiffs’ one person one vote claims fail under the North Carolina Constitution. VIL A. The RWCA plaintiffs contend that the 2015 General Assembly racially gerrymandered District 4 in the 2015 Wake County Commissioners Plan. Plaintiffs’ burden of proof concerning racial gerrymandering is “demanding.” Cromartie II, 532 U.S. at 241, 121 S.Ct. 1452. A legislature must have discretion “to balance competing interests” when redistricting; therefore, courts must “exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.” id. at 242, 121 S.Ct. 1452 (emphasis and quotations omitted); Miller, 515 U.S. at 915-16, 115 S.Ct. 2475. Moreover, simply because a legislature creates a majority-minority district does not trigger strict scrutiny. See Vera, 517 U.S. at 958, 962, 116 S.Ct. 1941. A plaintiff asserting a racial gerrymandering claim must prove that race was the “predominant factor” motivating the legislature to place certain voters within the challenged district. Ala. Legislative Black Caucus, 135 S.Ct. at 1265 (quotation omitted); Miller, 515 U.S. at 916, 115 S.Ct. 2475. “The legislature’s motivation is itself a factual question.” Cromartie I, 526 U.S. at 549, 119 S.Ct. 1545. “Race must not simply have been a motivation for the drawing of a majority-minority district, but the predominant factor motivating the legislature’s districting decision. Plaintiffs must show that a facially neutral law is unexplainable on grounds other than race.” Cromartie II, 532 U.S. at 241-42, 121 S.Ct. 1452 (quotations and citations omitted). To make this showing, a plaintiff must prove that the legislature subordinated “traditional race-neutral districting principles” to race in creating the district. See Ala. Legislative Black Caucus, 135 S.Ct. at 1270 (quotation omitted). Such traditional “race-neutral districting principles” include (but are not limited to) “compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, incumbency protection, and political affiliation.” Id. (quotation and citation omitted); see Cromartie I, 526 U.S. at 549, 551-52, 119 S.Ct. 1545 (suggesting that traditional race-neutral districting principles sufficient to defeat a racial gerrymandering claim include incumbency protection, creating a strong Democratic district, and preserving partisan balance in a legislative" }, { "docid": "19537368", "title": "", "text": "(1999) ; Bush v. Vera, 517 U.S. 952, 962, 966, 974, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion); Shaw II, supra, at 905-906, 116 S.Ct. 1894 ; Miller, supra, at 917, 115 S.Ct. 2475 ; Shaw I, supra, at 635-636, 113 S.Ct. 2816. Yet the law responds to proper evidence and valid inferences in ever-changing circumstances, as it learns more about ways in which its commands are circumvented. So there may be cases where challengers will be able to establish racial predominance in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. B The challengers submit that the District Court erred further when it considered the legislature's racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria that were attributable to race and not to some other factor. In the challengers' view, this approach foreclosed a holistic analysis of each district and led the District Court to give insufficient weight to the 55% BVAP target and other relevant evidence that race predominated. Again, this Court agrees. As explained, showing a deviation from, or conflict with, traditional redistricting principles is not a necessary prerequisite to establishing racial predominance. Supra, at 799. But even where a challenger alleges a conflict, or succeeds in showing one, the court should not confine its analysis to the conflicting portions of the lines. That is because the basic unit of analysis for racial gerrymandering claims in general, and for the racial predominance inquiry in particular, is the district. Racial gerrymandering claims proceed \"district-by-district.\" Alabama, 575 U.S., at ----, 135 S.Ct., at 1265. \"We have consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more specific electoral districts .\" Ibid. And Miller 's basic predominance test scrutinizes the legislature's motivation for placing \"a significant number of voters within or without a particular district.\" 515 U.S., at 916, 115 S.Ct. 2475. Courts evaluating racial predominance therefore should not divorce any portion of the lines-whatever" }, { "docid": "15933515", "title": "", "text": "neutral on its face.” Hunt v. Cromartie, 526 U.S. 541, 547, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). In addition, the Supreme Court has consistently recognized that redistricting is a complex process, and that legislatures will nearly always be “aware” of racial demographics. Miller, 515 U.S. at 916, 115 S.Ct. 2475. Such awareness of race is never enough to trigger strict scrutiny. Instead, the Court has required that a Shaw plaintiff show “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller, 515 U.S. at 916, 115 S.Ct. 2475. More specifically, a plaintiff must establish that “the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations.” Id. The plaintiff in such a case may carry this burden in a number of ways. In some instances, circumstantial evidence, including the shape of the district and the demographic splits created by its borders, is sufficient to establish that the boundaries are “unexplainable on grounds other than race.” Hunt, 526 U.S. at 546, 119 S.Ct. 1545 (citing Shaw, 509 U.S. 630, 113 S.Ct. 2816). In other cases, there is direct evidence that race was the predominant factor in the legislature’s decision-making. See, e.g., Miller, 515 U.S. at 917-8, 115 S.Ct. 2475. But, in any event, the rule is clear: if race was the predominant factor, strict scrutiny applies. To survive strict scrutiny, a racial classification must be narrowly tailored to achieve a compelling state interest. Id. at 904, 115 S.Ct. 2475. While such scrutiny is not “strict in theory, but fatal in fact,” Johnson v. California, 543 U.S. 499, 514, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (internal quotation marks omitted), the State is required to establish the “most exact connection between justification and classification.” . Parents Involved, 551 U.S. at 720, 127 S.Ct. 2738 (majority opinion of Roberts, C.J.) (quotation marks omitted). B. Race Predominated Race was the predominant factor in the drafters’ decisions to draw the majority-black districts" }, { "docid": "7018563", "title": "", "text": "race as a basis for separating voters into districts.” Id. . Dkt. 272, p. 4. . Id. (emphasis removed). . See Dkt. 207. . Shaw v. Hunt, 517 U.S. 899, 904, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) [hereinafter Shaw II]; see also Shaw I, 509 U.S. 630, 649, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (first recognizing that \"a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification”); Sanchez v. State of Colo., 97 F.3d 1303, 1328 (10th Cir.1996). . Miller, 515 U.S. at 905, 115 S.Ct. 2475. . Shaw II, 517 U.S. at 905, 116 S.Ct. 1894. . Shaw I, 509 U.S. at 646, 113 S.Ct. 2816 (observing that \"the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors”). . Shaw II, 517 U.S. at 904-05, 116 S.Ct. 1894 (internal quotation marks omitted). . Miller, 515 U.S. at 916, 115 S.Ct. 2475. . Ala. Legislative Black Caucus v. Alabama, - U.S. -, 135 S.Ct. 1257, 1265, 191 L.Ed.2d 314 (2015); see Bush v. Vera, 517 U.S. 952, 965-76, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). . See Shaw I, 509 U.S. at 646, 113 S.Ct. 2816. . Shaw II, 517 U.S. at 905, 116 S.Ct. 1894 (quoting Miller, 515 U.S. at 916, 115 S.Ct. 2475). . See Sanchez, 97 F.3d at 1328. . Dkt. 272, p. 13. . Shaw II, 517 U.S. at 905, 116 S.Ct. 1894. . Id. . Dkt. 237-1, pp. 5-6. . Sanchez, 97 F.3d at 1328; but see Bush, 517 U.S. at 1000, 116 S.Ct. 1941 (Thomas, J., concurring) (concluding that when a government admits that it has intentionally created majority-minority districts this is “sufficient to show that race was a predominant, motivating factor in its redistricting'’). . Shaw" }, { "docid": "22056885", "title": "", "text": "900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). Appellants may rely upon circumstantial evidence of the district’s shape and demographics or more direct evidence bearing upon legislative purpose. See id. The district court found that “traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual and shared interests,” see id. at 916, 115 S.Ct. 2475, were not subordinated to race in drawing District 3. We review the district court’s determination that race did not predominate for clear error. See Miller, 515 U.S. at 917, 115 S.Ct. 2475, see also Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II). It is well settled that “[a] finding is ‘clearly erroneous’ when[,] although there is evidence to support it, the reviewing court on the entire record 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, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). In an effort to manufacture clear error, Appellants challenge every aspect of the district court’s opinion. They contend that testimony regarding the drawing of the current districts, the documentary evidence in the record, the shape of District 3, and the racial geography within the Parish provides direct and circumstantial evidence of an impermissible racial classification. We disagree. The record reveals no clear error inasmuch as incumbency protection, maintaining communities of interest, addressing one-person, one-vote concerns and natural geographic conditions predominated in drawing District 3. 1. In Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion), the Supreme Court recognized, “[i]n some circumstances, incumbency protection might explain as well as, or better than, race a State’s decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines.” Id. at 967, 116 S.Ct. 1941. Much of the discussion among the Parish Council members during the 1991 redistricting" }, { "docid": "491369", "title": "", "text": "and the Fifteenth Amendment’s Enforcement Clause. After this journey, we thus arrive back where we started: Miller’s predominance test. In Miller, the Court, described the Plaintiffs’ burden as follows: The plaintiffs burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. 515 U.S. at 916, 115 S.Ct. 2475 (emphasis added). Plaintiffs would prefer we stop reading Miller at this exact punctuation mark.- And, under that formulation, they could plausibly argue that they have proved racial predominance merely upon proof that legislators used' a 55% BVAP floor. But the very next sentence in Miller leads where this Court must, follow: “Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can ‘defeat a claim that a district has been gerrymandered on racial lines.’ ” Id. (quoting Shaw I, 509 U.S. at 647, 113 S.Ct. 2816) (emphasis added). The Court’s quotation of Shaw in this instance rather clearly reflects its intention: [Traditional districting principles such as compactness, contiguity, and respect for political subdivisions ... are important ... because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines .... Put differently, we believe that reapportionment is one area in which appearances do matter. Shaw I, 509 U.S. at 647, 113 S.Ct. 2816 (emphasis.added),. Therefore, we rely on the principal opinion in Bush, which stated that the “neglect of traditional districting criteria” is “necessary, [but] not sufficient” for strict scrutiny to apply. Bush, 517 U.S. at 962, 116 S.Ct. 1941 (principal opinion) (emphasis added); accord Miller, 515 U.S; at 928, 115 S.Ct. 2475 (O’Connor, J., concurring) (“To invoke strict scrutiny," }, { "docid": "22056884", "title": "", "text": "it did, District 3 is narrowly tailored to meet a compelling State interest. The district court denied Appellants’ subsequent motions for a new trial or otherwise alter the judgment of the district court. On July 15, 1997, Appellants timely appealed the district court’s judgment. II Appellants raise six issues on appeal. We seek to determine whether the district court erred in (1) ruling that race did not predominate in the creation of the current District 3; (2) declining to apply strict scrutiny to the legislative act creating District 3; (3) ruling that a 52.3% black-voting age population was required in order to avoid a section 5 retrogression violation; (4) admitting and relying upon evidence pertaining to community-of-interest testi mony and data assembled after the actual drawing of the districts; (5) making certain factual findings predicated on its assessment of witness credibility; and (6) granting defendants’ motion to quash the depositions of counsel, Harry Rosenberg and M. Nan Alessandra. A Appellants bear the burden of proving an impermissible racial classification. See Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). Appellants may rely upon circumstantial evidence of the district’s shape and demographics or more direct evidence bearing upon legislative purpose. See id. The district court found that “traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual and shared interests,” see id. at 916, 115 S.Ct. 2475, were not subordinated to race in drawing District 3. We review the district court’s determination that race did not predominate for clear error. See Miller, 515 U.S. at 917, 115 S.Ct. 2475, see also Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II). It is well settled that “[a] finding is ‘clearly erroneous’ when[,] although there is evidence to support it, the reviewing court on the entire record 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, 84 L.Ed.2d 518 (1985) (quoting United" }, { "docid": "19537363", "title": "", "text": "recognized a claim of racial gerrymandering for the first time. See 509 U.S., at 652, 113 S.Ct. 2816. Certain language in Shaw I can be read to support requiring a challenger who alleges racial gerrymandering to show an actual conflict with traditional principles. The opinion stated, for example, that strict scrutiny applies to \"redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race.\" Id., at 644, 113 S.Ct. 2816 (internal quotation marks omitted). The opinion also stated that \"reapportionment is one area in which appearances do matter.\" Id., at 647, 113 S.Ct. 2816. The Court's opinion in Miller, however, clarified the racial predominance inquiry. In particular, it rejected the argument that, \"regardless of the legislature's purposes, a plaintiff must demonstrate that a district's shape is so bizarre that it is unexplainable other than on the basis of race.\" 515 U.S., at 910-911, 115 S.Ct. 2475. The Court held to the contrary in language central to the instant case: \"Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale.\" Id., at 913, 115 S.Ct. 2475. Parties therefore \"may rely on evidence other than bizarreness to establish race-based districting,\" and may show predominance \"either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose.\" Id., at 913, 916, 115 S.Ct. 2475. The Court addressed racial gerrymandering and traditional redistricting factors again in Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II ). The Court there rejected the view of one of the dissents that \"strict scrutiny does not apply where a State 'respects' or 'complies with traditional districting principles.' \" Id., at 906, 116 S.Ct. 1894 (quoting id., at 931-932, 116 S.Ct. 1894 (Stevens, J., dissenting); alteration omitted). Race may predominate even when a reapportionment plan respects traditional principles, the Court explained, if \"[r]ace was" }, { "docid": "19539755", "title": "", "text": "we further uphold the District Court's decision that § 2 of the VRA gave North Carolina no good reason to reshuffle voters because of their race. We accordingly affirm the judgment of the District Court. It is so ordered . Justice GORSUCH took no part in the consideration or decision of this case. APPENDIX ? ? ? A plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones. See Bush v. Vera, 517 U.S. 952, 968-970, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion) (holding that race predominated when a legislature deliberately \"spread[ ] the Black population\" among several districts in an effort to \"protect[ ] Democratic incumbents\"); Miller v. Johnson, 515 U.S. 900, 914, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (stating that the \"use of race as a proxy\" for \"political interest[s]\" is \"prohibit[ed]\"). Challenges to the constitutionality of congressional districts are heard by three-judge district courts, with a right of direct appeal to this Court. See 28 U.S.C. §§ 2284(a), 1253. The State's argument to the contrary rests on a legal proposition that was foreclosed almost as soon as it was raised in this Court. According to the State, racial considerations cannot predominate in drawing district lines unless there is an \"actual conflict\" between those lines and \"traditional districting principles.\" Brief for Appellants 45. But we rejected that view earlier this Term, holding that when (as here) race furnished \"the overriding reason for choosing one map over others,\" a further showing of \"inconsistency between the enacted plan and traditional redistricting criteria\" is unnecessary to a finding of racial predominance. Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. ----, ----, 137 S.Ct. 788, 799, 197 L.Ed.2d 85 (2017). And in any event, the evidence recounted in the text indicates that District 1's boundaries did conflict with traditional districting principles-for example, by splitting numerous counties and precincts. See supra, at 1469. So we would uphold the District Court's finding of racial predominance even under the (incorrect) legal standard the" }, { "docid": "19650417", "title": "", "text": "factorfor the changes to [Senate] District 22\" (emphasis added)); id., at 1297(the \"constitutional requirement of one person, one vote trumped every other districting principle\"); id., at 1296(the \"record establishes that the drafters of the new districts, above all, had to correct [for] severe malapportionment ...\"); id., at 1306(the \"inclusion of additional precincts [in Senate District 26] is a reasonable response to the underpopulation of the District\"). In our view, however, an equal population goal is not one factor among others to be weighed against the use of race to determine whether race \"predominates.\" Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objectives will be met. To understand this conclusion, recall what \"predominance\" is about: A plaintiff pursuing a racial gerrymandering claim must show that \"race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.\" Miller,515 U.S., at 916, 115 S.Ct. 2475. To do so, the \"plaintiff must prove that the legislature subordinated traditional race-neutral districting principles... to racial considerations.\" Ibid. (emphasis added). Now consider the nature of those offsetting \"traditional race-neutral districting principles.\" We have listed several, including \"compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests,\" ibid., incumbency protection, and political affiliation, Vera,517 U.S., at 964, 968, 116 S.Ct. 1941(principal opinion). But we have not listed equal population objectives. And there is a reason for that omission. The reason that equal population objectives do not appear on this list of \"traditional\" criteria is that equal population objectives play a different role in a State's redistricting process. That role is not a minor one. Indeed, in light of the Constitution's demands, that role may often prove \"predominant\" in the ordinary sense of that word. But, as the United States points out, \"predominance\" in the context of a racial gerrymandering claim is special. It is not about whether a legislature believes that the need for equal population takes ultimate priority. Rather, it is, as" }, { "docid": "22200733", "title": "", "text": "shape and demographics’ or through ‘more direct evidence going to legislative purpose.’ ” Shaw v. Hunt, 517 .U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) [hereinafter Shaw II ] (quoting Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). As the Supreme Court explained in Miller: Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines. 515 U.S. at 913,115 S.Ct. 2475. A plaintiff will not prevail, however, simply by pointing to the bizarre shape of a legislative district where the district lines are facially race neutral. Under those circumstances, “a more searching inquiry is necessary before strict scrutiny can be found applicable.” Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion) (quotations omitted). Moreover, a state may defeat an allegation of racial gerrymandering by establishing that race-neutral considerations motivated the redistricting legislation and that those considerations were not “subordinated” to race. Miller, 515 U.S. at 916, 115 S.Ct. 2475. Once a plaintiff proves that race was the predominant factor, however, the redistricting decision then becomes subject to strict scrutiny: it must be justified by a compelhng state interest and be narrowly tailored to achieve that interest. See Shaw II, 517 U.S. at 908, 116 S.Ct. 1894 (citing Miller, 515 U.S. at 920, 115 S.Ct. 2475). Appellants’ Shaw argument faces multiple infirmities. To begin with, as far as we can discern, no court has ever applied Shaw outside the racial gerrymandering context. Moreover, Shaw and other racial gerrymandering cases are legally distinguishable from the instant case. In racial gerrymandering cases, plaintiffs typically challenge laws affirmatively enacted to alter the boundaries of voting districts. These jurisdictions are under an affirmative legal duty to alter their boundaries to reflect shifts or alterations in population. In sharp contrast, however, is a city’s right to determine if and when" }, { "docid": "491521", "title": "", "text": "doing so.” (emphasis in original)). When a legislature has “relied on race in substantial disregard of customary and traditional districting principles,” such traditional principles have been subordinated to race. Miller, 515 U.S. at 928, 115 S.Ct. 2475 (O’Connor, J., concurring). Strict scrutiny is required when race was the predominant factor that categorically was accorded priority over race-neutral districting factors. As the Supreme Court has' explained, traditional factors have been subordinated to race when “[r]ace was the criterion that, in the State’s view, could not be' compromised,” and when traditional, race-neutral criteria were considered “only after the race-based decision had been made.” Shaw v. Hunt, 517 U.S. 899, 907, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II); see also Page v. Va. Bd. of Elections, No. 3:13cv678, 2015 WL 3604029, at *7 (E.D.Va. June 5, 2015). Thus, while a redistricting plan may reflect certain traditional districting criteria, that plan nevertheless remains subject to strict scrutiny when those criteria have been subordinated to á process that has sorted voters primarily by race. Contrary to the majority’s view, this predominance inquiry does not require that the usé of race in drawing district boundaries be in “conflict” with traditional districting criteria. Maj. Op. at 524. In fact, the race of a voter often correlates with other districting considerations, including partisan preference, incumbency protection, and communities of interest. See Bush, 517 U.S. at 964, 116 S.Ct. 1941 (principal opinion). The conclusion logically follows, therefore, that racial sorting frequently 'will not be in “conflict” with these and other districting criteria. Because such districting criteria can be used to mask racial sorting, courts must carefully examine the evidence under the test for predominance articulated in Miller and Shaw II. Under that test, race necessarily predominates when the legislature has subordinated traditional districting criteria to racial goals, such as when race is the single immutable criterion and other factors are 'considered only when consistent with the racial objective. Shaw II, 517 U.S. at 907, 116 S.Ct. 1894. H. . This case presents a textbook example of racial predominance, in which a uniform racial quota was the only" }, { "docid": "19792008", "title": "", "text": "“The legislature’s motivation is itself a factual question.” Cromartie I, 526 U.S. at 549, 119 S.Ct. 1545. “Race must not simply have been a motivation for the drawing of a majority-minority district, but the predominant factor motivating the legislature’s districting decision. Plaintiffs must show that a facially neutral law is unexplainable on grounds other than race.” Cromartie II, 532 U.S. at 241-42, 121 S.Ct. 1452 (quotations and citations omitted). To make this showing, a plaintiff must prove that the legislature subordinated “traditional race-neutral districting principles” to race in creating the district. See Ala. Legislative Black Caucus, 135 S.Ct. at 1270 (quotation omitted). Such traditional “race-neutral districting principles” include (but are not limited to) “compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, incumbency protection, and political affiliation.” Id. (quotation and citation omitted); see Cromartie I, 526 U.S. at 549, 551-52, 119 S.Ct. 1545 (suggesting that traditional race-neutral districting principles sufficient to defeat a racial gerrymandering claim include incumbency protection, creating a strong Democratic district, and preserving partisan balance in a legislative delegation); Miller, 515 U.S. at 916, 115 S.Ct. 2475. A plaintiff may seek to prove a racial gerrymandering claim with direct evidence of legislative purpose, circumstantial evidence of legislative purpose, or a combination of both direct and circumstantial evidence. See, e.g., Cromartie I, 526 U.S. at 547, 119 S.Ct. 1545; Shaw v. Runt, 517 U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (“Shaw II”). Direct evidence of legislative purpose may include a state’s express admission that it placed a majority of minorities within a district to “enhanc[e] the opportunity of minority voters to elect minority representatives.” Vera, 517 U.S. at 960-61, 116 S.Ct. 1941 (quotation omitted). Direct evidence of legislative purpose also may include a state’s express admission in a pre-clearance submission under the Voting Rights Act to the Department of Justice that the “overriding purpose” in creating a majority-minority district was the Voting Rights Act. See Shaw II, 517 U.S. at 906, 116 S.Ct. 1894 (quotation and emphasis omitted); see also Miller, 515 U.S. at 907-09, 917, 115 S.Ct. 2475 (upholding the" }, { "docid": "19537364", "title": "", "text": "element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale.\" Id., at 913, 115 S.Ct. 2475. Parties therefore \"may rely on evidence other than bizarreness to establish race-based districting,\" and may show predominance \"either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose.\" Id., at 913, 916, 115 S.Ct. 2475. The Court addressed racial gerrymandering and traditional redistricting factors again in Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II ). The Court there rejected the view of one of the dissents that \"strict scrutiny does not apply where a State 'respects' or 'complies with traditional districting principles.' \" Id., at 906, 116 S.Ct. 1894 (quoting id., at 931-932, 116 S.Ct. 1894 (Stevens, J., dissenting); alteration omitted). Race may predominate even when a reapportionment plan respects traditional principles, the Court explained, if \"[r]ace was the criterion that, in the State's view, could not be compromised,\" and race-neutral considerations \"came into play only after the race-based decision had been made.\" Id., at 907, 116 S.Ct. 1894. The State's theory in this case is irreconcilable with Miller and Shaw II . The State insists, for example, that the harm from racial gerrymandering lies not in racial line-drawing per se but in grouping voters of the same race together when they otherwise lack shared interests. But \"the constitutional violation\" in racial gerrymandering cases stems from the \"racial purpose of state action, not its stark manifestation.\" Miller, supra, at 913, 115 S.Ct. 2475. The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications. The State contends further that race does not have a prohibited effect on a district's lines if the legislature could have drawn the same lines in accordance with traditional criteria. That argument parallels the District Court's reasoning that a reapportionment plan is not an express racial classification unless a racial purpose is apparent from the face" } ]

[ { "docid": "6238106", "title": "", "text": "three-fourths Indian blood or more, and less than full blood whether adult or minor, and whether said lands are owned by the original allottee or his or her heirs, for the reason that said lands are alienable and taxable, and the complainant is not entitled to any relief thereon.” For the reasons given in the opinion above referred to, the question as to whether, on March 1, 1909, the lands referred to by the demurrer were taxable, depends upon whether they were alienable without restriction. By section 19 of the act of April 26, 1906, c. 1876, 34 Stat. 144, all lands from which restrictions were removed were made subject to taxation. By the same act, section 22, the adult heirs of any deceased Indian of either of the Five Civilized Tribes, were permitted to sell lands inherited from such decedent. Full blood heirs were permitted to sell with the approval of the Secretary of the Interior. This amounted to a removal of restrictions from land inherited by adult and minor heirs, less than full blood, and such lands thereby became taxable without regard to the degree of blood of the Indian ancestor. Section 4 of the Act of May 27, 1908, c. 199, 35 Stat. 313, again provided: “That all lands from which restrictions have been or shall be removed, shall be subject to taxation and all other civil burdens, as though it were the property of other persons than allottees of the Five Civilized Tribes.” Section 9 of the same act provided, in terms, “that the death of any allottee of the Five Civilized Tribes shall operate to remove all the restrictions upon the alienation of said allottee’s land”; and to section 9 was this proviso: “That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die, leaving issue surviving, born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against the alienation are removed therefrom by the Secretary of the Interior in the manner provided under section 1 hereof, for the use and support of" } ]

[ { "docid": "15199765", "title": "", "text": "312, 315) it is provided: “That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator.” (Italics mine.) Congress thus extended and made more comprehensive said act so as to protect the fiill-blood Indian in land acquired not only by inheritance but also by devise. In some instances through designing manipulation the full-blood allottee was induced by will to devise his allotment to his full-blood children or next of kin and to secure its approval by the proper federal agency and then after the death of such testator or testatrix and the' probating of the will restrictions thereon having ceased as to such inherited land, opportunity for its dissipation was afforded. By this provision such practice was circumvented and supervision of the government through its federal agency continued. The purpose of Act of May 10, 1928, was to extend the period of restrictions on lands of said members of the Five Civilized Tribes for an additional period of 25 years from and including April 26, 1931. Section 3 of said act relates not only to restricted allotted lands of members of the Five Civilized Tribes, but also to inherited restricted lands of full-blood Indian heirs or devisees of such land. Section 5 thereof declares that said act does not have the effect of reimposing restrictions theretofore or hereafter removed by the Secretary of the Interior or by operation of law, nor to exempt from taxation any lands which are subject to taxation under existing law, and shall not be so construed. Act of January 27, 1933, contains no such precautions or legislative declaration. Its context clearly indicates that it was the purpose of Congress to tighten up and extend restrictions for the protection of full-blood heirs and restricted Indians. It is not essential to determine whether Acts of May 27, 1908, April" }, { "docid": "5664134", "title": "", "text": "incumbrance prior to April twenty-six, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” And the material part of section 9, as amended by the Act of April 12, 1926, 44 Stat. 239, provides: “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction oi the settlement of the estate of the deceased allottee or testator: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions; if this be not done, or in the event the issue hereinabove provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions: * sfc * ” Frances Bessie Jim, daughter of the allottee, was born after March 4, 1906, and she is still living. Therefore, on the death of the allottee the land constituting his homestead remained inalienable for her use and support until April 26, 1931. Parker v. Riley, 250 U.S. 66, 39 S.Ct. 405, 63 L.Ed. 847; Holmes v. United States, 10 Cir., 53 F.2d 960;" }, { "docid": "15199764", "title": "", "text": "as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law: Provided further, That such restricted and tax-exempt land held by anyone, acquired as herein provided, shall not exceed one hundred and sixty acres: And provided further, That all minerals including oil and gas, produced from said land so acquired shall be subject to all State and Federal taxes as provided in section 3 of the Act approved May 10, 1928 (45 Stat. L. 495).” See King v. Ickes, 62 App.D.C. 83, 64 F.(2d) 979; Holmes v. United States (C.C.A.) 53 F.(2d) 960; Kiker v. United States (C.C.A.) 63 F.(2d) 957. The first proviso of Act of May 27, 1908, covered only interests of full-blood Indian heirs acquired by descent and not by devise. United States v. Fooshee et al. (C.C.A.8) 225 F. 521. By section 1 of Act approved April 12, 1926 (44 Stat. 239), amending section 9 of Act of May 27, 1908, 35 Stat. 312, 315) it is provided: “That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator.” (Italics mine.) Congress thus extended and made more comprehensive said act so as to protect the fiill-blood Indian in land acquired not only by inheritance but also by devise. In some instances through designing manipulation the full-blood allottee was induced by will to devise his allotment to his full-blood children or next of kin and to secure its approval by the proper federal agency and then after the death of such testator or testatrix and the' probating of the will restrictions thereon having ceased as to such inherited land, opportunity for its dissipation was afforded. By this provision such practice was circumvented and supervision of the government through its federal agency" }, { "docid": "15199766", "title": "", "text": "continued. The purpose of Act of May 10, 1928, was to extend the period of restrictions on lands of said members of the Five Civilized Tribes for an additional period of 25 years from and including April 26, 1931. Section 3 of said act relates not only to restricted allotted lands of members of the Five Civilized Tribes, but also to inherited restricted lands of full-blood Indian heirs or devisees of such land. Section 5 thereof declares that said act does not have the effect of reimposing restrictions theretofore or hereafter removed by the Secretary of the Interior or by operation of law, nor to exempt from taxation any lands which are subject to taxation under existing law, and shall not be so construed. Act of January 27, 1933, contains no such precautions or legislative declaration. Its context clearly indicates that it was the purpose of Congress to tighten up and extend restrictions for the protection of full-blood heirs and restricted Indians. It is not essential to determine whether Acts of May 27, 1908, April 12, 1926, and May 10, 1928, confined the restriction to the immediate heir of the allottee. The language in said section 8 of Act of January 27, 1933 (47 Stat. 779), in comprehensive, mandatory, and prohibitory terms provided: “That it shall be the duty of the attorneys provided for under the Act of May 27, 1908 (35 Stat.L. 312), to appear and represent any restricted member of the Five Civilized Tribes before the county courts of any county in the State of Oklahoma, or before any appellate court thereof, in any matter in which said restricted Indians may have an interest, and no conveyance of any interest in land of any full-blood Indian heir shall be valid unless approved in open court [italics mine] after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June of 1914, and said attorneys shall have the right to appeal from the decision of any county court approving the sale of any interest in land, to the district court" }, { "docid": "5693939", "title": "", "text": "or dispose of any of the land allotted to him for a period of twenty-five years from and after the passage of the act, unless such restriction shall pri- or to the expiration of that period be removed by Act of Congress; and section 22 provides that the adult heirs of any deceased Indian of the Five Civilized Tribes whose selection has been made, or to whom a deed or patest has been issued for his share of the land of the tribe to which he belongs, may sell and convey the land inherited from such decedent, but that all conveyances made under the provision by heirs who are full-blood Indians shall be subject to the approval of the Secretary of the Interior, under such rules and regulations as may be prescribed by him. Section 1 of the Act of May 27, 1908, 35 Stat. 312, provides among other things that all allotted lands of enrolled, full-blood members of the Five Civilized Tribes shall not be subject to alienation prior to April 26, 1931, except that the Secretary may remove such restrictions in whole or in part, under such rules and regulations as he may prescribe; and section 9, as amended by section 1 of the Act of April 12, 1926, supra, provides that the death of an allottee shall operate to remove all restrictions upon the alienation of such allottee’s land, provided that no conveyance by any full-blood Indian of such Tribes of any lands restricted by section 1 acquired by inheritance or devise from the allottee shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of such deceased allottee or testator. And section 1 of the Act of January 27, 1933, 47 Stat. 777, provides that where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase with restricted funds, by or for restricted Indians, such land shall remain restricted and tax-exempt during the life of and as long as it is held" }, { "docid": "21344432", "title": "", "text": "of the act became effective sixty days from its date. The -period of restriction was extended 2C> years from April 26, 1931, by the Act of May 10,1928 (45 Stat. 495). Pitman, Jr., being a half-blood, it follows-that section 1, supra, removed all restrictions on that portion of his allotment other than the homestead. On -the removal of such restrictions, sueh lands and the income therefrom became subject to taxation under the-provisions of section 4 of such act. Section 9, supra, deals with lands restricted at the-time of the allottee’s death, and not with lands from which restrictions had been theretofore-removed. It did not on the death of Pitman, Jr., reimpose restrictions upon the surplus lands from which restrictions had theretofore been removed. The homestead portion of the allotment, however, remained subject to the restrictions provided by section 1, supra, until the death of Pitman, Jr., the original allottee. Upon his death it passed by inheritance to the petitioner, a full-blood Indian heir, and became subject to the qualified restrictions imposed by section 9, supra, and remained exempt from taxation. Parker v. Richard, 250 U. S. 235, 238, 39 S. Ct. 442, 63 L. Ed. 954; Marcy v. Board of Commissioners, 45 Okl. 1, 144 P. 611; United States v. Shock (C. C. Okl.) 187 F. 870. We conclude, therefore, that the homestead remained restricted and exempt from taxation, and that the surplus allotment-became freed of restrictions and subject to taxation from and after sixty days from May 27, 1908. The income received hy the lessor from an oil and gas lease, whether by way of an initial bonus or as royalties on the oil and gas subsequently produced by the lessee, is taxable not as gain from the sale of capital assets, but as ordinary income. Burnet v. Harmel, 287 U. S. 103, 53 S. Ct. 74, 77 L. Ed. -; Alexander v. King (C. C. A. 10) 46 F.(2d) 235, 74 A. L. R. 174. The contracts entered into between the petitioner and the oil companies in March, 1922, were leases, not sales of oil and gas rights," }, { "docid": "15199756", "title": "", "text": "allottee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise [italics mine] from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: Provided further, That if ' any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and, support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions; if this be not done, or in the event the issue hereinabove provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws 'of descent and distribution of the State of Oklahoma, free from all restrictions: Provided, That the word ‘issue’ as used in this section shall be construed to mean child or children: Provided further, That the provisions of section 23 of the Act of April 26, 1906, as amended by this Act, are hereby made applicable to all wills executed under this section.” In Parker v. Richard, 250 U.S. 235, 238, 39 S.Ct. 442, 444, 63 L.Ed. 954, it is said: “In exact words it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court’s approval. Conveyances without its approval fall within the ban of the restrictions.” In the second proviso, homestead allotments of deceased" }, { "docid": "5664135", "title": "", "text": "since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions; if this be not done, or in the event the issue hereinabove provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions: * sfc * ” Frances Bessie Jim, daughter of the allottee, was born after March 4, 1906, and she is still living. Therefore, on the death of the allottee the land constituting his homestead remained inalienable for her use and support until April 26, 1931. Parker v. Riley, 250 U.S. 66, 39 S.Ct. 405, 63 L.Ed. 847; Holmes v. United States, 10 Cir., 53 F.2d 960; United States v. Lee, 10 Cir., 108 F.2d 936. Section 1 of the Act of May 10, 1928, 45 Stat. 495, continues for an additional period of twenty-five years commencing April 26, 1931, restrictions against alienation of lands allotted to members of the Tribes, enrolled as one-half or more Indian blood; and section 2 extends in like manner section 9, as amended, supra, but repeals, effective April 26, 1931, the language constituting the second proviso therein. The legislative purpose of this act was twofold. The first was to continue in force for an additional period of twenty-five years restrictions against the alienation of lands allotted to enrolled Indians of half or more Indian blood; and the second was to subject to the same restrictions allotted lands, both homestead and surplus, inherited by full-blood Indians, regardless of the dates of births of the heirs. The language indicates such dual purpose, and the legislative history of the act makes it clear. The special estate of the issue of the allottee, born after March 4, 1906, expired April" }, { "docid": "5664137", "title": "", "text": "26, 1931, and thereupon the entire estate vested in the Indian heirs of the allottee and those of Germain Jim in their respective interests. Parker v. Riley, supra; Holmes v. United States, supra,; United States v. Lee, supra. But since they were full-blood Choctaws, the qualified restriction imposed by the first proviso in section 9, as amended, supra, became effective; and they could not execute a valid conveyance without the approval of the county court having jurisdiction of the settlement of the estate, of the deceased allottee. It is urged that after section 9 was amended by the Act of April 12, 1926, supra, approval of a conveyance was necessary only where the inheritance came directly from the allottee; that Barnett Simpson and Pearl Fisher did not inherit from the allottee; that they inherited from an heir of the allottee; and that therefore the deeds executed by them respectively were valid without approval; Prior to the amendment, neither section 9 as originally enacted nor any other statute required the approval of a conveyance of land acquired by devise from the allottee. Allotted land inherited by full-blood Indian heirs could be conveyed only with approval, but there were no restrictions against the alienation of like land by full-blood Indian devisees. The statute, as amended, provides that no conveyance by a full-blood member of the Tribes of any interest in lands restricted by section 1 of the act “acquired by inheritance or devise from an allottee of such lands” shall be valid unless approved by the county court. The manifest purpose of the amendment was to place restrictions upon conveyances by full-blood Indian devisees. When ■ the language, the background, and the purpose of the amendment are taken into consideration, it seems fairly clear that the words “from an allottee” have application only where the land was acquired by devise. No interest in this land was acquired in that manner. In every instance, it was acquired by inheritance. Appellant relies upon the judgment in the action for partition and the conveyance executed pursuant to it. It is argued that even though the" }, { "docid": "16828146", "title": "", "text": "disposal of the proceeds for the benefit of the respective Indians as he” might “prescribe.” Pursuant to such statutory authority, the Secretary of the Interior prescribed a rule reading, in part, as follows: “Where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes, of the restricted class, payment for which is made from proceeds arising from the sale of restricted allotted lands * * * the superintendent * * * shall cause a conveyance of such lands to be made on a form of conveyance containing an habendum clause against'alienation or encumbrance until April 26, 1931.” Section 9 of the Act of May 27, 1908, as amended by the Act of April 12, 1926, 44 Stat. 239, reads, in part, as follows : “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: * * *” Section 9 contained a second proviso which continued the , restrictions imposed by § 1 of the Act with respect to homesteads of deceased allottees, where such allottees left issue surviving, born after March 4, 1906, during the life or lives of such issue, but not longer than April 26, 1931. The first proviso of § 9, supra, continued qualified restrictions as to full-blood Indian heirs and devisees. Section 1 of the Act of May 10, 1928, 45 Stat. 495, extended the restrictions against alienation of the lands allotted to members of the Five Civilized Tribes of one-half or more Indian blood for an additional period of 25 years from April 26, 1931. Section 2 of such Act extended the provisions of § 9 of the Act of May 27, 1908, as amended by" }, { "docid": "16828147", "title": "", "text": "1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: * * *” Section 9 contained a second proviso which continued the , restrictions imposed by § 1 of the Act with respect to homesteads of deceased allottees, where such allottees left issue surviving, born after March 4, 1906, during the life or lives of such issue, but not longer than April 26, 1931. The first proviso of § 9, supra, continued qualified restrictions as to full-blood Indian heirs and devisees. Section 1 of the Act of May 10, 1928, 45 Stat. 495, extended the restrictions against alienation of the lands allotted to members of the Five Civilized Tribes of one-half or more Indian blood for an additional period of 25 years from April 26, 1931. Section 2 of such Act extended the provisions of § 9 of the Act of May 27, 1908, as amended by the Act of April 12, 1926, except the second proviso thereof, for a period of 25 years from April 26, 1931. It repealed the second pro.viso effective April 26, 1931. The funds derived from the sale of the restricted allotment of Johnny Cooper while in the hands of the Secretary continued to be restricted and the land purchased with such funds continued to be restricted during the lifetime of Johnny Cooper. In Sunderland v. United States, 266 U.S. 226, 235, 45 S.Ct. 64, 65, 69 L.Ed. 259, the court said: “Since the allotted lands could not be sold or encumbered without his consent, and since the proceeds of any sale thereof were subject to his control and could only be disposed of with his approval and under such rules as he might prescribe for the benefit of the respective Indians, the extension of such control to the property in which the proceeds were directly invested would seem to be within the statute fairly construed.” In substance, there was a mere conversion of trust property. The" }, { "docid": "5664133", "title": "", "text": "inherited from the decedent, but that all conveyances made under the provision by heirs of the full-blood shall be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe. Section 1 of the Act of May 27, 1908, 35 Stat. 312, provides in part: “All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said al-lottees enrolled as mixed-blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions. All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-six, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” And the material part of section 9, as amended by the Act of April 12, 1926, 44 Stat. 239, provides: “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction oi the settlement of the estate of the deceased allottee or testator: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born" }, { "docid": "22455145", "title": "", "text": "presented by the situation the Act was intended to cure, and the sole purpose, in my opinion, was to make sure the preexisting exemptions would extend to the lands specified in the Act. Accordingly, whether grantees were exempted and, if so, for how long is to be determined not by implication or construction from the terms of the 1936 Act alone, but by reference to the law as it existed in respect of grantees of original allottees prior to 1936. There is no need to go back of 1928, except to say that, for our purposes, the effect of prior legislation was that grantees of original allottees were not within the existing tax exemptions, which were, for the most part, to expire at the latest in 1931. In some instances, restrictions extended to lands held by heirs of allottees, but for the limited period. In 1928, Congress extended existing restrictions on some lands — both allotted and inherited — to 1956, but at the same time removed existing restrictions on others. 45 Stat. 495. The existing tax exemption was cut down in scope to one hundred sixty acres of each Indian’s holding, but was also extended more clearly to cover the land in the hands of “any full blood Indian heir or devisee,” though not beyond 1956. 45 Stat. 495, as amended by 45 Stat. 733-4. In 1933, probably by reason of the discovery of oil on Indian lands, consequent sale or lease of original allotments under the direction of the Secretary of the Interior, and numerous suits by Indians claiming the proceeds free from his restrictive power, Congress enacted another statute, 47 Stat. 777, which made all Indian funds then in or later coming to the Secretary’s hands restricted. It contained the following proviso, which is the last word, for our purposes, on exemption of Eive Civilized Tribe Indian lands prior to 1936: “Provided, That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Eive Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for" }, { "docid": "15199755", "title": "", "text": "deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions.” As amended by Act of April 12, 1926 (44 Stat. 239), said section was extended so that the first proviso relating to conveyances by full-blood heirs included con veyances by full-blood devisees. As amended it provided as follows: “The death of any allottee of the Five Civilized Tribes shall operate to remove, all restrictions upon the alienation of said allottee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise [italics mine] from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: Provided further, That if ' any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and, support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions; if this be not done, or in the event the issue hereinabove provided for die before April 26, 1931, the land shall" }, { "docid": "15199763", "title": "", "text": "of January 27, 1933 (H. R. 8750), entitled “An Act Relative to restrictions applicable to Indians of the Five Civilized Tribes in Oklahoma,” provides: “That all funds and other' securities now held by or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until April 26, 1956, subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe: Provided, That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law: Provided further, That such restricted and tax-exempt land held by anyone, acquired as herein provided, shall not exceed one hundred and sixty acres: And provided further, That all minerals including oil and gas, produced from said land so acquired shall be subject to all State and Federal taxes as provided in section 3 of the Act approved May 10, 1928 (45 Stat. L. 495).” See King v. Ickes, 62 App.D.C. 83, 64 F.(2d) 979; Holmes v. United States (C.C.A.) 53 F.(2d) 960; Kiker v. United States (C.C.A.) 63 F.(2d) 957. The first proviso of Act of May 27, 1908, covered only interests of full-blood Indian heirs acquired by descent and not by devise. United States v. Fooshee et al. (C.C.A.8) 225 F. 521. By section 1 of Act approved April 12, 1926 (44 Stat. 239), amending section 9 of Act of May 27, 1908, 35 Stat." }, { "docid": "4173174", "title": "", "text": "59 S.Ct. 292, 83 L.Ed. 235, and United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327, are not contrary to the conclusions herein reached. The judgment is affirmed. “Sec. 4. That on and after April 26, 1931, the allotted, inherited, and devised restricted lands of each Indian of the Five Civilized Tribes in excess of one hundred and sixty acres shall be subject to taxation by the State of Oklahoma under and in accordance with the laws of that State, and in all respects as unrestricted and other lands: Provided, That the Indian owner of restricted land, if an adult and not legally incompetent, shall select from his restricted land a tract or tracts, not exceeding in the aggregate one hundred and sixty acres, to remain exempt from taxation and shall file with the superintendent for the Five Civilized Tribes a certificate designating and describing the tract or tracts so selected: And provided further, That in cases where such Indian fails, within two years . from date hereof, to file such certificate, and in eases where the Indian owner is a minor or otherwise legally incompetent, the selection shall be made and certificate prepared by the superintendent for the Five Civilized Tribes; * * * and, when approved by the Secretary of the Interior, shall be recorded in the office of the superintendent for the Five Civilized Tribes and in the county records of the county in which the land is situated; and said lands, designated and described in the approved certificates so recorded, shall remain exempt from taxation while the title remains in the Indian designated in such approved and recorded certificate, or in any full-blood Indian heir of devisee of the land: Provided, That the tax exemption shall not extend beyond the period of restrictions provided for in this Act: And provided further, That the tax-exempt land of any such Indian allottee, heir, or devisee shall not at any time exceed one hundred and sixty acres. “Sec. 5. That this Act shall not be construed to reimpose restrictions heretofore or hereafter removed by the" }, { "docid": "13498884", "title": "", "text": "315, in part reads as follows: “That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: * * *.” As amended by the Act of April 12, 1926, 44 Stat.- 239, it reads in part as follows : “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said qllottee’s land: Provided, That hereafter no conveyance of any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an állottée of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: * t- * y’ Lucy Poloke died testate in the year 1925 and her allotment and the funds in the custody of the Secretary of the Interior derived from royalties under the lease of said allotment passed by devise and bequest to her daughter, Suma Burgess. Since Suma Burgess took by devise and bequest and not by inheritance, the property passed to her freed of restrictions. Cf. Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954; Whitchurch v. Section 6 of the Act of January 27, 1933, 47 Stat. 777, 778, in part reads: Crawford, 10 Cir., 92 F.2d 249. Whether the effect of the Act of April 12, 1926, was to reimpose restrictions upon such property we deem it unnecessary to determine. Even if such restrictions were reimposed, the declaration of trust was valid, having been approved by the county court having jurisdiction of the. settlement of the estate of Lucy Poloke, and by the Secretary of the Interior. Section 1 of the Act of May 27, 1908, 35 Stat. 312, authorized the Secretary of the" }, { "docid": "5664136", "title": "", "text": "United States v. Lee, 10 Cir., 108 F.2d 936. Section 1 of the Act of May 10, 1928, 45 Stat. 495, continues for an additional period of twenty-five years commencing April 26, 1931, restrictions against alienation of lands allotted to members of the Tribes, enrolled as one-half or more Indian blood; and section 2 extends in like manner section 9, as amended, supra, but repeals, effective April 26, 1931, the language constituting the second proviso therein. The legislative purpose of this act was twofold. The first was to continue in force for an additional period of twenty-five years restrictions against the alienation of lands allotted to enrolled Indians of half or more Indian blood; and the second was to subject to the same restrictions allotted lands, both homestead and surplus, inherited by full-blood Indians, regardless of the dates of births of the heirs. The language indicates such dual purpose, and the legislative history of the act makes it clear. The special estate of the issue of the allottee, born after March 4, 1906, expired April 26, 1931, and thereupon the entire estate vested in the Indian heirs of the allottee and those of Germain Jim in their respective interests. Parker v. Riley, supra; Holmes v. United States, supra,; United States v. Lee, supra. But since they were full-blood Choctaws, the qualified restriction imposed by the first proviso in section 9, as amended, supra, became effective; and they could not execute a valid conveyance without the approval of the county court having jurisdiction of the settlement of the estate, of the deceased allottee. It is urged that after section 9 was amended by the Act of April 12, 1926, supra, approval of a conveyance was necessary only where the inheritance came directly from the allottee; that Barnett Simpson and Pearl Fisher did not inherit from the allottee; that they inherited from an heir of the allottee; and that therefore the deeds executed by them respectively were valid without approval; Prior to the amendment, neither section 9 as originally enacted nor any other statute required the approval of a conveyance of land" }, { "docid": "22455146", "title": "", "text": "existing tax exemption was cut down in scope to one hundred sixty acres of each Indian’s holding, but was also extended more clearly to cover the land in the hands of “any full blood Indian heir or devisee,” though not beyond 1956. 45 Stat. 495, as amended by 45 Stat. 733-4. In 1933, probably by reason of the discovery of oil on Indian lands, consequent sale or lease of original allotments under the direction of the Secretary of the Interior, and numerous suits by Indians claiming the proceeds free from his restrictive power, Congress enacted another statute, 47 Stat. 777, which made all Indian funds then in or later coming to the Secretary’s hands restricted. It contained the following proviso, which is the last word, for our purposes, on exemption of Eive Civilized Tribe Indian lands prior to 1936: “Provided, That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Eive Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such land shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956. . . . Provided further, That such restricted and tax-exempt land held by anyone, acquired as herein provided, shall not exceed one hundred and sixty acres.” In a number of respects, the meaning of the provision is unclear. But, without attempt to clarify them, the general purpose seems to have been to exempt lands belonging to members of the Eive Civilized Tribes during their lives, but not beyond 1956 and not exceeding 160 acres, if “acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for such restricted Indians.” The proviso is awkwardly drawn, and some of the language could be taken to limit the exemption to the Indian with whose restricted funds the lands are acquired. But-other language contradicts this and the legislative history shows it was contemplated the exemption would extend to heirs, devisees, donees and purchasers with restricted funds. In short," }, { "docid": "15199757", "title": "", "text": "then descend to the heirs, according to the laws 'of descent and distribution of the State of Oklahoma, free from all restrictions: Provided, That the word ‘issue’ as used in this section shall be construed to mean child or children: Provided further, That the provisions of section 23 of the Act of April 26, 1906, as amended by this Act, are hereby made applicable to all wills executed under this section.” In Parker v. Richard, 250 U.S. 235, 238, 39 S.Ct. 442, 444, 63 L.Ed. 954, it is said: “In exact words it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court’s approval. Conveyances without its approval fall within the ban of the restrictions.” In the second proviso, homestead allotments of deceased allottees of one-half or more Indian blood, where such allottee leaves issue born after March 4, 1906, remain restricted and inalienable for the use and support of such issue during his, her, or their lifetime but not beyond April 26, 1931. Section 1 of Act of May 10, 1928 (45 Stat. 495),.extends restrictions against alienation, lease, mortgage, or other encumbrance of the lands allotted to members of the Five Civilized Tribes in Oklahoma, enrolled as of one-half or more Indian blood, for an additional period of twenty-five years from and including April 26, 1931; with the proviso that the Secretary of the Interior shall have the authority to remove the restrictions, upon the applications of the Indian owners of the land, and may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. In section 2 thereof the provisions of section 9 of Act of May 27, 1908 (35 Stat. 312), entitled: “An" } ]

[ { "docid": "22147700", "title": "", "text": "series 5810 handheld devices only), 309, 313, and 317 of the ’451 patent; and claims 40, 278, 287, and 654 of the ’592 patent. A verdict was rendered on November 21, 2002. On every issue presented, the jury found in favor of the plaintiff, NTP. The jury found direct, induced, and contributory infringement by RIM on all asserted claims of the patents-in-suit. The jury also found that the infringement was willful. It rejected every defense proposed by RIM. Adopting a reasonable royalty rate of 5.7%, the jury awarded damages to NTP in the amount of approximately $23 million. Following the jury verdict, RIM moved the court for JMOL or, in the alternative, for a new trial. The court denied these motions. NTP, Inc. v. Research in Mo tion, Ltd., 270 F.Supp.2d 751 (E.D.Va. 2003) (“JMOL Order”). On August 5, 2003, the district court entered final judgment in favor of NTP. The court awarded monetary damages totaling $53,704,322.69, with the following approximate division: (1) compensatory damages of $33 million; (2) attorneys’ fees of $4 million; (3) prejudgment interest of $2 million; and (4) enhanced damages of $14 million. Final Judgment, slip op. at 1. The court also entered a permanent injunction against RIM, enjoining it from further manufacture, use, importation, and/or sale of all accused BlackBerry systems, software, and handhelds. Id. at 2-3. The injunction has been stayed pending this appeal. RIM timely appealed from the district court’s final judgment and injunction. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II. ANALYSIS A. Claim Construction In the district court, NTP ultimately asserted against RIM, and RIM was found to have infringed, sixteen system and method claims of five different patents owned by NTP. This includes both the claims resolved by the court in NTP’s favor on summary judgment and the claims submitted to the jury for a determination of infringement. These claims are: claims 15, 32, and 34 of the ’960 patent; claim 8 of the ’670 patent; claim 199 of the ’172 patent; claims 28, 248, 309, 313, and 317 of the ’451 patent; and claims 40, 150, 278," } ]

[ { "docid": "22147698", "title": "", "text": "judgment motions remain relevant on appeal: RIM argued (1) that the asserted claims, properly construed, did not read on the accused RIM systems, see NTP, Inc. v. Research in Motion, Ltd., No. 3:01CV767, 2003 WL 23325540 (E.D.Va. Aug.5, 2003) (nunc pro tunc Oct. 23, 2002) (“Non-infringement Order ”), and (2) that the physical location of the “Relay” component of the BlackBerry system put RIM’s allegedly infringing conduct outside the reach of 35 U.S.C. § 271, see NTP, Inc. v. Research in Motion, Ltd., No. 3:01CV767, 2003 WL 23325540 (E.D.Va. Aug.5, 2002) (nunc pro tunc Oct. 23, 2002) (“Section 271 Order ”). The district court denied all of RIM’s summary judgment motions. For its part, NTP asked the district court to grant partial summary judgment of infringement on four claims of the patents-in-suit. In its motion, NTP argued: (1) that the 800 and 900 series BlackBerry handheld units infringed claim 248 of the ’451 patent and claim 150 of the ’592 patent; (2) that the BES software infringed claim 653 of the ’592 patent; and (3) that the BlackBerry system, software, and handhelds infringed claim 15 of the ’960 patent. See NTP, Inc. v. Research in Motion, Ltd., 261 F.Supp.2d 423 (E.D.Va. 2002) (“Order Granting Summary Judgment of Infringement”). RIM cross-moved for summary judgment of non-infringement, arguing that its products lacked certain limitations required by the asserted claims. Id., at 425. The district court agreed with NTP, holding that “no genuine issue of material fact” existed as to infringement of the four claims. Id. at 427. Accordingly, the district court granted summary judgment, except as to the issue of infringement of claim 15 of the ’960 patent or claim 248 of the ’451 patent by the BlackBerry series 5810 han-dheld device. That issue was reserved for the jury. The case proceeded to trial on fourteen claims. The fourteen claims submitted to the jury were: claims 15 (with respect to the series 5810 handheld devices only), 32, and 34 of the ’960 patent; claim 8 of the ’670 patent; claim 199 of the 172 patent; claims 28, 248 (with respect to the" }, { "docid": "21155060", "title": "", "text": "of the copyrighted work. 17 U.S.C. § 107. Upon due consideration of these aspects, the Court is of the opinion that the litigation-related conduct giving rise to the opportunities for which the code was copied was a fair use. At issue in BlackBerry was the security of NTP’s patents; the adjudication of that dispute required the reproduction and dissemination of the patent applications, which necessarily set forth the code that Tavory claims to have authored. In addition, and despite the Plaintiffs suggestions to the contrary, the character of the use was not commercial, nor was the potential market for or value of the software source code impaired. To the extent that the code was reproduced in anticipation of or preparation for litigation, that use was a fair use and there can be no liability for infringement. It is further alleged that acts of infringement were committed separate and apart from the context of litigation. In the three years spanning 2003 to 2006, the source code for the Push Software was copied and distributed with regard to matters wholly unrelated to any pending litigation, but only as a constituent part of the patents that it serviced. The issue with respect to this claim is not as to liability, but as to damages. Summary judgment is appropriate as to damages for infringement if the complainant offers only speculation as to the existence of a causal connection between the alleged infringement and any consequent revenues. Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522-23 (4th Cir.2003). Pursuant to an Order from this Court, NTP examined its files for the three-year period in question to determine whether any revenue could be attributed to its licensing of the patents-in-suit. None was identified. (Def.’s Memo, in Support of Mot. for Summ. Judg., Docket Entry 86, 13.) In opposition, the Plaintiff has offered certain expert testimony in order to show that there is some attributable revenue. After having considered the character of the testimony to be offered, though, the Court is convinced that it would be tremendously speculative and therefore wholly unhelpful. Ultimately, of course," }, { "docid": "21155065", "title": "", "text": "device was a prototype of the technology that Telefind wanted to cultivate for use with laptops, that he wrote the source code for this device, and that it was this code which evolved to become the Push Software. It should be noted that Tavory’s device was technologically distinct from the wireless email systems that Mr. Campana and his associates patented, the most significant difference being that Tavory’s device was not capable of receiving wireless email transmissions. And just as the Plaintiff did not retain any copies of the source code he had written in conjunction with the Telefind project, he did not retain any information pertaining to the authorship of the code he wrote for his prototype device. In short, there is no credible evidence that can be offered establishing that Tavory participated in the conception of the wireless email systems, nor is there credible evidence that can be offered to corroborate his claim. No reasonable jury could find in the Plaintiffs favor given this evidentiary dearth. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). y. For the foregoing reasons, summary judgment shall be entered for the Defendant as to each remaining count of the Complaint. An appropriate Order shall issue. . These patents are referred to in passing as the patents-in-suit, and they are: (1) U.S. Patent No. 5,436,960 (\"the '960 patent”); (2) U.S. Patent No. 5,438,611 (“the '611 patent”); (3) U.S. Patent No. 5,625,670 (\"the '670 patent”); (4) U.S. Patent No. 5,631,946 (\"the '946 patent”); (5) U.S. Patent No. 5,819,172 (\"the '172 patent”); and (6) U.S. Patent No. 6,067,451 (\"the '451 patent”). The first six counts of the Complaint request that the Plaintiff be joined as an inventor as to each corresponding patent. . This was the '960 patent. . NTP settled all infringement claims against Research In Motion for $612.5 million. . The Push Software was conceived in 1990. Tavory was deposed in connection with BlackBerry in 2002. At no time during that 12-year period did the Plaintiff assert his authorship. Nor was the issue of authorship raised" }, { "docid": "21155057", "title": "", "text": "did the Plaintiff wait until after the death of Mr. Campana, who would surely have been a material witness, to stake his claim, the copyright registration was not filed until after NTP had entered into a nine-figure settlement with respect to the patents Tavory says infringe his rights. Despite these serious infirmities, the most damning evidence has been rendered by the Plaintiff himself. He has been deposed twice. On the first occasion, in 2002, Tavory testified that he could not remember whether he wrote the Push Software at Mr. Campana’s direction, or to what extent he was involved in the authorship of the source code. (Pl.’s 2002 Dep. passim.) Four years later, the Plaintiff sat for another deposition, this time in connection with the present matter. In spite of the fact that it was then 2006, and that he was testifying about events that had happened 16 years previously, Tavo-ry’s memory was much clearer. (Pl.’s 2006 Dep. passim.) It is said that “[ejquitable estoppel may deprive a plaintiff of an otherwise meritorious copyright infringement claim.” Ser vice & Training, 963 F.2d at 689. The force of equity is no less potent against claims that have no merit. Were this claim legally competent, equity would compel dismissal with all due haste. The Defendant’s remaining arguments as to copyright infringement address portions of the claim that should be dismissed, rather than the claim as a whole. The first argument is fair use. It is alleged that NTP committed infringement “by licensing rights in the Push Software and/or in the Patents, inviting others to copy the Push Software, reproducing the Push Software, ... making electronic copies of the Push Software[,] asserting ownership of the Push Software!,] and purporting to authorize others to exercise the exclusive rights in the Push Software.” (Comply 41.) Tavory is not seeking damages for all acts of infringement that may have occurred since 1990; indeed, he cannot. Such a claim is expressly precluded by statute. We are therefore concerned only with acts that may have occurred on September 20, 2006, the date on which this action was filed, or" }, { "docid": "21155046", "title": "", "text": "filed a joint application with the United States Patent & Trademark Office for what is described as an “electronic mail system.” It is the Court’s understanding that this system and its associated technology were developed in the course of the laptop project. Eventually, the PTO approved the application and a patent was issued. Over the coming years, these men would apply for and be granted at least five more patents, each involving electronic mail systems or related technology. Together, these six are the patents-in-suit. In 1992, Mr. Campana co-founded NTP, a Virginia-based corporation that is principally engaged in the business of holding telecom patents for licensing to third-party manufacturers. It is estimated that NTP’s portfolio contains fifty or more active patents. The patents-in-suit are among NTP’s holdings. In 2001, NTP brought an action for infringement against Research In Motion, the manufacturer of the wireless handheld device BlackBerry, with respect to a number of patents that included the patents-in-suit in the instant proceedings. That case was litigated before this Court, and Tavory was deposed in connection with his work at Telefind. In the course of his deposition, the Plaintiff identified portions of source code in the patents-in-suit that he had allegedly authored. At no time, however, did he assert the existence of a copyright in the code, nor did he offer any proof of authorship or ownership. BlackBerry lingered in the courts for nearly five full years. It was not until the early months of 2006 that a settlement between the parties was reached. Mr. Campana never lived to see that day, though; he had passed away two years earlier. Soon after BladcBerry’s settlement, Ta-vory submitted an application for copyright registration as to the portions of the source code he had claimed to author. Then on September 20, 2006, this action for co-inventorship was filed. The Plaintiffs allegations in this matter are twofold. First, that he is the author of the source code that was used to “push” an item of email onto the paging network for delivery. This is referred to periodically as the Push Software. His second allegation is" }, { "docid": "22147699", "title": "", "text": "that the BlackBerry system, software, and handhelds infringed claim 15 of the ’960 patent. See NTP, Inc. v. Research in Motion, Ltd., 261 F.Supp.2d 423 (E.D.Va. 2002) (“Order Granting Summary Judgment of Infringement”). RIM cross-moved for summary judgment of non-infringement, arguing that its products lacked certain limitations required by the asserted claims. Id., at 425. The district court agreed with NTP, holding that “no genuine issue of material fact” existed as to infringement of the four claims. Id. at 427. Accordingly, the district court granted summary judgment, except as to the issue of infringement of claim 15 of the ’960 patent or claim 248 of the ’451 patent by the BlackBerry series 5810 han-dheld device. That issue was reserved for the jury. The case proceeded to trial on fourteen claims. The fourteen claims submitted to the jury were: claims 15 (with respect to the series 5810 handheld devices only), 32, and 34 of the ’960 patent; claim 8 of the ’670 patent; claim 199 of the 172 patent; claims 28, 248 (with respect to the series 5810 handheld devices only), 309, 313, and 317 of the ’451 patent; and claims 40, 278, 287, and 654 of the ’592 patent. A verdict was rendered on November 21, 2002. On every issue presented, the jury found in favor of the plaintiff, NTP. The jury found direct, induced, and contributory infringement by RIM on all asserted claims of the patents-in-suit. The jury also found that the infringement was willful. It rejected every defense proposed by RIM. Adopting a reasonable royalty rate of 5.7%, the jury awarded damages to NTP in the amount of approximately $23 million. Following the jury verdict, RIM moved the court for JMOL or, in the alternative, for a new trial. The court denied these motions. NTP, Inc. v. Research in Mo tion, Ltd., 270 F.Supp.2d 751 (E.D.Va. 2003) (“JMOL Order”). On August 5, 2003, the district court entered final judgment in favor of NTP. The court awarded monetary damages totaling $53,704,322.69, with the following approximate division: (1) compensatory damages of $33 million; (2) attorneys’ fees of $4 million; (3)" }, { "docid": "21155044", "title": "", "text": "MEMORANDUM OPINION JAMES R. SPENCER, Chief Judge. This matter comes before the Court on Defendant NTP’s Motion for Summary Judgment, filed as Docket Entry No. 85, pursuant to Federal Rule of Civil Procedure 56. On September 20, 2006, and in the wake of the notorious and protracted BlackBerry litigation, NTP, Inc. v. Research In Motion, 3:01-CV-767, Plaintiff Oren Tavory brought this civil action to be joined as an inventor with respect to six certain patents. Additionally, Counts VII and VIII of the Complaint sought damages for copyright infringement and unjust enrichment, respectively. By Memorandum Opinion & Order dated December 26, 2006, Count VIII was dismissed. (Docket Entry No. 42.) NTP then moved for summary judgment as to the remaining counts, and by Order dated May 16, 2007, that Motion was granted. (Docket Entry No. 105.) This Opinion has been issued to explain that disposition. I. In the latter years of the 1980s, Oren Tavory became employed as an independent technical consultant with Telefind, a telecom concern that was then engaged in the operation of a nation-wide paging network. While affiliated with Telefind, the Plaintiff was assigned to a project that purposed to merge portable computing with emerging pager technology. The objective of that project was to create the first commercially viable, wireless-enabled laptop computer. Telefind subcontracted with ESA, a manufacturer of electronic hardware components, to assist with con struction. The President of ESA was Tom Campana, a gentleman who moonlighted with Telefind as an executive officer. Mr. Campana was involved extensively in the laptop project, as were two of ESA’s programmers, Mike Ponschke and Gary The-len. The Plaintiff came to know these men through that association. Initially, their work met with some success. Email was effectively sent through Telefind’s pager network to destination processors — the pagers, which then transmitted those messages to laptop computers to which they were connected. For reasons that are not relevant to these proceedings, however, the laptop project was abandoned. By early 1991, Telefind had discontinued funding, and Tavory had sought other employment. At about the same time, Mr. Campana, Mr. Ponschke, and Mr. Thelen" }, { "docid": "16294497", "title": "", "text": "the decision of the Board. AFFIRMED Costs No costs. . The Parent Application claims descendancy by continuation from U.S. Patent Application No. 08/844,957, filed on April 23, 1997, which is a continuation of U.S. Patent Application No. 08/443,430, filed on May 18, 1995, which is a continuation of U.S. Patent Application No. 07/702,939, filed on May 20, 1991. '592 patent at [63]. . Research in Motion, Ltd. (\"RIM”), after being sued by NTP for infringing the '592 patent (among other NTP patents), initiated reexamination proceedings concerning the '592 patent on May 29, 2003. On August 9, 2004, RIM's inter partes reexamination proceedings were merged with the proceedings initiated by the PTO. RIM agreed to forego further participation in the reexamination proceedings as a condition of a settlement agreement with NTP. . Four of the seven references are prior art under 35 U.S.C. § 102(b): Gary E. Ford, Beginner’s Guide to TCP/IP on the Amateur Packet Radio Network Using the KA9Q Internet Software, (May 9, 1990); Stig Kaspersen et ah, Norwegian Telecommunication Administration, Mobile Data Network Description, (1989) (Volumes 1-4, 6-8); Richard D. Verjinski, PHASE, A Portable Host Access System Environment, 3 IEEE Military Communications Conference 1989, 0806-09 (1989); and Bdale Garbee, The KA9Q Intemset Software Package, (1989). The remaining three references are prior art under 35 U.S.C. § 102(e): U.S. Patent No. 5,159,592 (\"Perkins”), filed on October 29, 1990; U.S. Patent No. 5,917,-629 (\"Hortensius”), filed on October 29, 1990; and U.S. Patent No. 4,972,457 (\"O'Sullivan”), filed on January 19, 1989. .The Board also found that various other claims of the '592 patent were anticipated or obvious but no single reference or combination of references invalidated all claims. . NTP also argues that the '592 patent was reduced to practice prior to October 29, 1990, thus antedating Lazaridis under 37 C.F.R. § 1.131. The companion opinion in this case disposes of this argument, finding that substantial evidence supported the Board's determination that NTP presented insufficient evidence to satisfy 37 C.F.R. § 1.131. NTP Seven Appeal Op. at 1276-79. . Section 112 can be used to evaluate claims that were added during" }, { "docid": "21155066", "title": "", "text": "242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). y. For the foregoing reasons, summary judgment shall be entered for the Defendant as to each remaining count of the Complaint. An appropriate Order shall issue. . These patents are referred to in passing as the patents-in-suit, and they are: (1) U.S. Patent No. 5,436,960 (\"the '960 patent”); (2) U.S. Patent No. 5,438,611 (“the '611 patent”); (3) U.S. Patent No. 5,625,670 (\"the '670 patent”); (4) U.S. Patent No. 5,631,946 (\"the '946 patent”); (5) U.S. Patent No. 5,819,172 (\"the '172 patent”); and (6) U.S. Patent No. 6,067,451 (\"the '451 patent”). The first six counts of the Complaint request that the Plaintiff be joined as an inventor as to each corresponding patent. . This was the '960 patent. . NTP settled all infringement claims against Research In Motion for $612.5 million. . The Push Software was conceived in 1990. Tavory was deposed in connection with BlackBerry in 2002. At no time during that 12-year period did the Plaintiff assert his authorship. Nor was the issue of authorship raised in 2002 when Tavory was confronted with a copyright claim that was inconsistent with his own (Pl.'s 2002 Dep., 26), or in the four years that followed. In fact, the first time that Tavory claimed to be the author of the source code was in 2006, after Mr. Cam-pana had passed away, and after a healthy settlement between NTP and Research In Motion had been reached. . The Defendant alleges that \"if Tavory had timely asserted a claim that reproduction of the published [patents-in-suit] during the course of the patent litigation constituted infringement, NTP could and would have taken a number of steps that would have eliminated all such allegations,” (Def.'s Br. in Support of Mot. for Summ. Judg., Docket Entry No. 86, 24), thereby obviating the need for the instant litigation. . It should be noted, for the sake of thoroughness, that the doctrines of laches and judicial estoppel would also have led to the same disposition. . “The fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting," }, { "docid": "21155059", "title": "", "text": "during the preceding three years. Between 2003 and 2006, the Defendant was engaged in an action for patent infringement against Research In Motion. In the course of that litigation, copies of the patents-then-in-suit were made and distributed to the parties, to their experts, and to the Court. Those patents are alleged to have contained the source code for the Push Software, and it is the reproduction of that code during litigation for which Tavory seeks damages, at least in part. There is some debate as to whether the reproduction of copyrighted material for the purposes of litigating an infringement action is a fair use. In order to determine whether the use made of a work is a fair use, the Court defers to the statutory guidelines and examines: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. Upon due consideration of these aspects, the Court is of the opinion that the litigation-related conduct giving rise to the opportunities for which the code was copied was a fair use. At issue in BlackBerry was the security of NTP’s patents; the adjudication of that dispute required the reproduction and dissemination of the patent applications, which necessarily set forth the code that Tavory claims to have authored. In addition, and despite the Plaintiffs suggestions to the contrary, the character of the use was not commercial, nor was the potential market for or value of the software source code impaired. To the extent that the code was reproduced in anticipation of or preparation for litigation, that use was a fair use and there can be no liability for infringement. It is further alleged that acts of infringement were committed separate and apart from the context of litigation. In the three years spanning 2003 to 2006, the source code for the Push Software was copied and distributed with regard" }, { "docid": "22147685", "title": "", "text": "ORDER A combined petition for panel rehearing and rehearing en banc was filed by Research In Motion, Ltd. (“RIM”). A re sponse thereto was invited by the court and filed by NTP, Inc. (“NTP”). Briefs of amicus curiae were filed by Earthlink, Inc.; The Canadian Chamber of Commerce; Information Technology Association of Canada; and The Government of Canada. Thereafter, these filings were referred to the merits panel that heard the appeal. Upon consideration thereof, IT IS ORDERED THAT: (1) the petition for panel rehearing is granted for the limited purpose of revising portions of the opinion treating Section 271, and (2) the previous opinion of the court in this appeal, issued on December 14, 2004 and reported at 392 F.3d 1336, is withdrawn. The new opinion accompanies this order. LINN, Circuit Judge. Research In Motion, Ltd. (“RIM”) appeals from a judgment of the U.S. District Court for the Eastern District of Virginia (“district court”) entered in favor of NTP, Inc. (“NTP”) following a jury verdict that RIM’s BlackBerry™ system infringed NTP’s U.S. Patents Nos. 5,436,960 (“the ’960 patent”); 5,625,670 (“the ’670 patent”); 5,819,172 (“the T72 patent”); 6,067,451 (“the ’451 patent”); and 6,317,592 (“the ’592 patent”) (collectively, “the patents-in-suit”) and awarding damages to NTP in the amount of $53,704,322.69. NTP, Inc. v. Research in Motion, Ltd., No. 3:01CV767, 2003 WL 23325540 (E.D.Va. Aug.5, 2003) {“Final Judgment”). The court, in a final order also appealed by RIM, permanently enjoined any further infringement by RIM, but stayed the injunction pending this appeal. We conclude that the district court erred in construing the claim term “originating processor,” but did not err in construing any of the other claim terms on appeal. We also conclude that the district court correctly denied RIM’s motion for judgment as a matter of law (“JMOL”), and did not abuse its discretion in denying eviden-tiary motions. Finally, we conclude that the district court was correct in sending the question of infringement of the system and apparatus claims to the jury, but erred as a matter of law in entering judgment of infringement of the method claims. Thus, we affirm-in-part, reverse-in-part," }, { "docid": "21155056", "title": "", "text": "he misrepresented or concealed material facts to the defendant; (3) that he intended or expected the defendant to rely upon those misrepresentations or conceal-ments; (4) that the defendant did so act; and (5) that his reliance was both reasonable and detrimental. See Elmore v. Cone Mills Corp., 187 F.3d 442, 446-47 (4th Cir.1999) (citations omitted); Serv. & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 689 (4th Cir.1992) (citation omitted). The truth of the matter at issue in the instant proceedings is, of course, the authorship of the Push Software; the concealment, Tavory’s long-standing silence as to his role in that authorship; and the reliance, the frustration of NTP’s ability to resolve attacks against the integrity of the patents-in-suit in one fell swoop, principally through BlackBerry. The Plaintiffs delay in asserting his authorship has been excessive and unreasonable, and no satisfactory explanation has been offered. The Court is deeply troubled by these circumstances. There are few coincidences in life, and the timing of Tavory’s assertions is far too convenient to avoid suspicion. Not only did the Plaintiff wait until after the death of Mr. Campana, who would surely have been a material witness, to stake his claim, the copyright registration was not filed until after NTP had entered into a nine-figure settlement with respect to the patents Tavory says infringe his rights. Despite these serious infirmities, the most damning evidence has been rendered by the Plaintiff himself. He has been deposed twice. On the first occasion, in 2002, Tavory testified that he could not remember whether he wrote the Push Software at Mr. Campana’s direction, or to what extent he was involved in the authorship of the source code. (Pl.’s 2002 Dep. passim.) Four years later, the Plaintiff sat for another deposition, this time in connection with the present matter. In spite of the fact that it was then 2006, and that he was testifying about events that had happened 16 years previously, Tavo-ry’s memory was much clearer. (Pl.’s 2006 Dep. passim.) It is said that “[ejquitable estoppel may deprive a plaintiff of an otherwise meritorious copyright infringement claim.”" }, { "docid": "21155045", "title": "", "text": "nation-wide paging network. While affiliated with Telefind, the Plaintiff was assigned to a project that purposed to merge portable computing with emerging pager technology. The objective of that project was to create the first commercially viable, wireless-enabled laptop computer. Telefind subcontracted with ESA, a manufacturer of electronic hardware components, to assist with con struction. The President of ESA was Tom Campana, a gentleman who moonlighted with Telefind as an executive officer. Mr. Campana was involved extensively in the laptop project, as were two of ESA’s programmers, Mike Ponschke and Gary The-len. The Plaintiff came to know these men through that association. Initially, their work met with some success. Email was effectively sent through Telefind’s pager network to destination processors — the pagers, which then transmitted those messages to laptop computers to which they were connected. For reasons that are not relevant to these proceedings, however, the laptop project was abandoned. By early 1991, Telefind had discontinued funding, and Tavory had sought other employment. At about the same time, Mr. Campana, Mr. Ponschke, and Mr. Thelen filed a joint application with the United States Patent & Trademark Office for what is described as an “electronic mail system.” It is the Court’s understanding that this system and its associated technology were developed in the course of the laptop project. Eventually, the PTO approved the application and a patent was issued. Over the coming years, these men would apply for and be granted at least five more patents, each involving electronic mail systems or related technology. Together, these six are the patents-in-suit. In 1992, Mr. Campana co-founded NTP, a Virginia-based corporation that is principally engaged in the business of holding telecom patents for licensing to third-party manufacturers. It is estimated that NTP’s portfolio contains fifty or more active patents. The patents-in-suit are among NTP’s holdings. In 2001, NTP brought an action for infringement against Research In Motion, the manufacturer of the wireless handheld device BlackBerry, with respect to a number of patents that included the patents-in-suit in the instant proceedings. That case was litigated before this Court, and Tavory was deposed in connection" }, { "docid": "22147697", "title": "", "text": "against RIM in the U.S. District Court for the Eastern District of Virginia. NTP alleged that over forty system and method claims from its several patents-in-suit had been infringed by various configurations of the BlaekBerry system (comprised of the numerous handheld units; the BES, the Desktop Redirector, and the ISP Redirector software; and the associated wireless networks). In an Order dated August 14, 2002, the district court construed thirty-one disputed claim terms. NTP, Inc. v. Research in Motion, Ltd., No. 3:01CV767 (E.D.Va. Aug.14, 2002) (“Claim Construction Order”). In that Order, the district court “construed the disputed terms according to their plain and ordinary meaning, as supported by the specification and prosecution history.” Id., slip op. at 3. The Order listed the claim terms in contention and their corresponding constructions without additional reasoning or analysis. See id., slip op. at 4-9. A series of sum mary judgment motions followed the court’s Markman decision. Setting forth several alternate theories, RIM asked for summary judgment of both non-infringement and invalidity. The issues raised in two of RIM’s summary judgment motions remain relevant on appeal: RIM argued (1) that the asserted claims, properly construed, did not read on the accused RIM systems, see NTP, Inc. v. Research in Motion, Ltd., No. 3:01CV767, 2003 WL 23325540 (E.D.Va. Aug.5, 2003) (nunc pro tunc Oct. 23, 2002) (“Non-infringement Order ”), and (2) that the physical location of the “Relay” component of the BlackBerry system put RIM’s allegedly infringing conduct outside the reach of 35 U.S.C. § 271, see NTP, Inc. v. Research in Motion, Ltd., No. 3:01CV767, 2003 WL 23325540 (E.D.Va. Aug.5, 2002) (nunc pro tunc Oct. 23, 2002) (“Section 271 Order ”). The district court denied all of RIM’s summary judgment motions. For its part, NTP asked the district court to grant partial summary judgment of infringement on four claims of the patents-in-suit. In its motion, NTP argued: (1) that the 800 and 900 series BlackBerry handheld units infringed claim 248 of the ’451 patent and claim 150 of the ’592 patent; (2) that the BES software infringed claim 653 of the ’592 patent; and (3)" }, { "docid": "21155055", "title": "", "text": "bona fide copy is made ..., subsequent copies can be made by directly referring to that copy.” Kodadek, 152 F.3d at 1212. But there must first be a bona fide copy from which to effect reproduction, and that is noticeably absent. Instead, Tavory created a reconstruction that relied in substantial part on his memory and submitted that reconstruction in connection with his application. His at tempt at registration is therefore invalid, and this Court has no choice but to dismiss the action for infringement for lack of subject matter jurisdiction. Xoom, Inc. v. Imageline, Inc., 323 F.3d 279 (4th Cir. 2003); see also Coles, 283 F.3d 798 (6th Cir.2002); Seiler, 808 F.2d 1316 (9th Cir.1987). Even if this Court were to have jurisdiction in the action for infringement, the Defendant has raised additional arguments that militate toward granting summary judgment. The first of these is equitable estoppel. To avail oneself of the estoppel defense, it must be shown: (1) that the plaintiff had actual or constructive knowledge of the truth of a matter; (2) that he misrepresented or concealed material facts to the defendant; (3) that he intended or expected the defendant to rely upon those misrepresentations or conceal-ments; (4) that the defendant did so act; and (5) that his reliance was both reasonable and detrimental. See Elmore v. Cone Mills Corp., 187 F.3d 442, 446-47 (4th Cir.1999) (citations omitted); Serv. & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 689 (4th Cir.1992) (citation omitted). The truth of the matter at issue in the instant proceedings is, of course, the authorship of the Push Software; the concealment, Tavory’s long-standing silence as to his role in that authorship; and the reliance, the frustration of NTP’s ability to resolve attacks against the integrity of the patents-in-suit in one fell swoop, principally through BlackBerry. The Plaintiffs delay in asserting his authorship has been excessive and unreasonable, and no satisfactory explanation has been offered. The Court is deeply troubled by these circumstances. There are few coincidences in life, and the timing of Tavory’s assertions is far too convenient to avoid suspicion. Not only" }, { "docid": "16294496", "title": "", "text": "its grant.” (footnote omitted)). Allowing any statement made by an applicant during prosecution to suffice for “consideration” of an issue would reintroduce the error of Portola Packaging. Based on the evidence provided by NTP, the examiner did not consider either the priority claim of the '592 patent based upon the Parent Application or whether its claims satisfied the requirements of § 112. III. We hold that the Board’s claim construction of destination processor was correct; and that priority can be considered and determined during reexamination proceedings, and that here, such a determination was proper because the examiner did not consider priority during the original prosecution. Therefore, the '592 patent was not entitled to claim the priority date of the Parent Application, and as a result, Lazaridis is prior art under § 102(e). As NTP does not dispute that the claims of the '592 patent are anticipated by Lazaridis under § 102, this court affirms the Board’s decision invalidating all claims of the '592 patent as anticipated by Lazaridis. Conclusion For the foregoing reasons, we affirm the decision of the Board. AFFIRMED Costs No costs. . The Parent Application claims descendancy by continuation from U.S. Patent Application No. 08/844,957, filed on April 23, 1997, which is a continuation of U.S. Patent Application No. 08/443,430, filed on May 18, 1995, which is a continuation of U.S. Patent Application No. 07/702,939, filed on May 20, 1991. '592 patent at [63]. . Research in Motion, Ltd. (\"RIM”), after being sued by NTP for infringing the '592 patent (among other NTP patents), initiated reexamination proceedings concerning the '592 patent on May 29, 2003. On August 9, 2004, RIM's inter partes reexamination proceedings were merged with the proceedings initiated by the PTO. RIM agreed to forego further participation in the reexamination proceedings as a condition of a settlement agreement with NTP. . Four of the seven references are prior art under 35 U.S.C. § 102(b): Gary E. Ford, Beginner’s Guide to TCP/IP on the Amateur Packet Radio Network Using the KA9Q Internet Software, (May 9, 1990); Stig Kaspersen et ah, Norwegian Telecommunication Administration, Mobile Data Network" }, { "docid": "22147690", "title": "", "text": "4, 1. 12. RIM’s technical documentation for its BlackBerry products echoes the undesirability of these constraints: Typically, mobile professionals use a laptop when traveling and dial-in to the corporate email server from a hotel room to manage an inbox full of email. The more adventurous use special software to send email notification to a pager or cell phone so they know what is in their inbox before spending the time and effort to dial-in. Focus groups and market research on mobile email revealed common complaints with dialing-in — the inconvenience of lugging a laptop around just for email; the trouble of finding a connection and dialing-out of the hotel; the difficulty of negotiating corporate dial-in security; and the cost of phone charges when dialing-in to the corporate server. Research in Motion Ltd., Technical White Paper BlackBerry Enterprise Edition ™ 3 (2001) (“White Paper”). C. The Patents-in-Suit Inventors Thomas J. Campana, Jr.; Michael P. Ponschke; and Gary F. Thelen (collectively “Campana”) developed an electronic mail system that was claimed in the ’960, ’670, 172, ’451, and ’592 patents. The ’960 patent, filed on May 20, 1991, is the parent of a string of continuation applications. The most recent patent, the ’592 patent, filed December 6, 1999, is a contin uation of the ’451 patent, filed September 28, 1998. The ’451 patent, in turn, is a continuation of the T72 patent, which itself originates from the ’670 patent, a direct continuation of the parent ’960 patent. As continuations of that single parent application, these patents contain the same written descriptions as the ’960 patent. NTP now owns these five patents-in-suit. Campana’s particular innovation was to integrate existing electronic mail systems with RF wireless communications networks. See ’960 patent, col. 18, ll. 32-39. In simplified terms, the Campana invention operates in the following manner: A message originating in an electronic mail system may be transmitted not only by wireline but also via RF, in which case it is received by the user and stored on his or her mobile RF receiver. The user can view the message on the RF receiver and, at" }, { "docid": "21155064", "title": "", "text": "who is skilled in the art. Fina Oil, 123 F.3d at 1473. During BlackBerry, Mr. Campana testified that the Plaintiff was among a pool of computer programmers employed in the course of the research and development of the Telefind laptop project. (Blackberry Trial Tr. 14(M3.) These programmers wrote code at Mr. Campana’s direction, and at the direction of Mr. The-len and Mr. Ponschke. The Plaintiff did not attempt to rebut these assertions. He testified under oath in 2002 that he could not “remember one way or the other” as to whether he worked under the direction of Mr. Campana in 1990 (PL’s 2002 Dep. 45), and the Court is unaware of any position taken by the Plaintiff as to his membership in a pool of Telefind programmers in which all may have participated, to some degree, in writing code. Corroboration has been equally problematic. Tavory has offered a number of statements from individuals who claim to have seen him using a wireless data device in the early months of 1990. The Plaintiff contends that this device was a prototype of the technology that Telefind wanted to cultivate for use with laptops, that he wrote the source code for this device, and that it was this code which evolved to become the Push Software. It should be noted that Tavory’s device was technologically distinct from the wireless email systems that Mr. Campana and his associates patented, the most significant difference being that Tavory’s device was not capable of receiving wireless email transmissions. And just as the Plaintiff did not retain any copies of the source code he had written in conjunction with the Telefind project, he did not retain any information pertaining to the authorship of the code he wrote for his prototype device. In short, there is no credible evidence that can be offered establishing that Tavory participated in the conception of the wireless email systems, nor is there credible evidence that can be offered to corroborate his claim. No reasonable jury could find in the Plaintiffs favor given this evidentiary dearth. See Anderson v. Liberty Lobby, Inc., 477 U.S." }, { "docid": "21155058", "title": "", "text": "Ser vice & Training, 963 F.2d at 689. The force of equity is no less potent against claims that have no merit. Were this claim legally competent, equity would compel dismissal with all due haste. The Defendant’s remaining arguments as to copyright infringement address portions of the claim that should be dismissed, rather than the claim as a whole. The first argument is fair use. It is alleged that NTP committed infringement “by licensing rights in the Push Software and/or in the Patents, inviting others to copy the Push Software, reproducing the Push Software, ... making electronic copies of the Push Software[,] asserting ownership of the Push Software!,] and purporting to authorize others to exercise the exclusive rights in the Push Software.” (Comply 41.) Tavory is not seeking damages for all acts of infringement that may have occurred since 1990; indeed, he cannot. Such a claim is expressly precluded by statute. We are therefore concerned only with acts that may have occurred on September 20, 2006, the date on which this action was filed, or during the preceding three years. Between 2003 and 2006, the Defendant was engaged in an action for patent infringement against Research In Motion. In the course of that litigation, copies of the patents-then-in-suit were made and distributed to the parties, to their experts, and to the Court. Those patents are alleged to have contained the source code for the Push Software, and it is the reproduction of that code during litigation for which Tavory seeks damages, at least in part. There is some debate as to whether the reproduction of copyrighted material for the purposes of litigating an infringement action is a fair use. In order to determine whether the use made of a work is a fair use, the Court defers to the statutory guidelines and examines: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value" }, { "docid": "21155067", "title": "", "text": "in 2002 when Tavory was confronted with a copyright claim that was inconsistent with his own (Pl.'s 2002 Dep., 26), or in the four years that followed. In fact, the first time that Tavory claimed to be the author of the source code was in 2006, after Mr. Cam-pana had passed away, and after a healthy settlement between NTP and Research In Motion had been reached. . The Defendant alleges that \"if Tavory had timely asserted a claim that reproduction of the published [patents-in-suit] during the course of the patent litigation constituted infringement, NTP could and would have taken a number of steps that would have eliminated all such allegations,” (Def.'s Br. in Support of Mot. for Summ. Judg., Docket Entry No. 86, 24), thereby obviating the need for the instant litigation. . It should be noted, for the sake of thoroughness, that the doctrines of laches and judicial estoppel would also have led to the same disposition. . “The fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. Fair use exists as an affirmative defense to copyright infringement. See, e.g., Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 464 F.Supp.2d 495 (E.D.Va.2006). It is argued that NTP waived this defense by neglecting its mention in the answer. However, the Court has been fully briefed by both parties on the matter, and it was addressed at the hearing on the Motion for Summary Judgment. . \"No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). . “NTP has transformed the courtroom into its boardroom.” (PL's Br. in Opp. to NTP’s Mot. for Protective Order, Docket Entry No. 76, 2.) . The Plaintiff has cited authority for the proposition that the use of copyrighted material in the course of litigation may fall outside the ambit of fair use, and thus expose the party who uses the copyrighted material to liability for infringement." } ]

[ { "docid": "15469676", "title": "", "text": "was obtained. If he had read the above-quoted provisions of the contract, as he was in duty bound to do, he would have known that the application for such insurance must have been accepted by- the County Committee, and further that he should have received a copy of the accepted application. It has long been settled that to make a contract there must be an offer and an acceptance shown. Acceptance by the County Committee was necessary in order to create a binding contract. Beaty v. Southland Life Insurance Co., Tex.Civ.App., 28 S.W. 2d 895; Braman v. Mutual Life Ins. Co., 8 Cir., 73 F.2d 391; Steinle v. New York Life Ins. Co., 5 Cir.. 81 F. 489; Paine v. Pacific Mutual Life Ins. Co., 8 Cir., 51 F. 689. Plaintiff cannot make for himself a crop insurance contract by relying on Wil-' son, who was in charge of the Agricultural Committee office. It was his duty, not that of Wilson; to know whether or not he had such crop insurance. However much one would like to see plaintiff receive remuneration for the loss of his crop, the Government has set certain standards by which individuals shall conduct themselves in procuring the benefits of the crop insurance program. They are in all respects just and fair. We cannot abandon them in favor of the plaintiff, who has shown a lack of diligence. The judgment appealed from is affirmed." } ]

[ { "docid": "3613430", "title": "", "text": "to the proper reading of an FCIC issued insurance policy in that case. Plaintiffs assert that the dispute in that case shows that the policy is ambiguous. The court, however, does not agree with Plaintiffs’ argument. Like Joe Todd Farms, Butler Farms has no prece-dential affect on this court and, it is interesting to note, that the result in that case supports Defendants’ construction of the policy — that all marketed production must be counted as an offset against indemnity. Furthermore, the policy in this action is clearer than the FCIC issued policy, in that its punctuation clearly indicates that marketed production is not qualified by any grading standard. The plain language of the policy at issue must prevail. IV. CONCLUSION Summary judgment is proper under Fed.R.Civ.P. 66 where there remains no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. 317, 106 S.Ct. at 2549. Summary judgment is appropriate in the ease at bar. The plain language of the policy provides that all Plaintiffs’ marketed tomatoes, regardless of grade or the date of picking, must be counted as production to offset against indemnity due. Any instructions or representations made by Defendants, if any were made, cannot vary the clear terms of the policy. Plaintiffs are entitled to their guaranty level, less all marketed production They have already been indemnified to that extent. It is therefore, ORDERED, that?Defendants’ Motion for Summary Judgment be GRANTED. AND IT IS SO ORDERED. .There are two types of crop insurance policies authorized and governed by the Federal Crop Insurance Act. The first is a policy issued directly by the FCIC. The second type is issued by private insurance companies, with language approved by the FCIC, and reinsured by the FCIC. Although their provisions are similar, the two policies need not be, and are not, identical. Plaintiffs in the case at bar purchased a policy of the latter type. The policy at issue is a guaranteed production plan policy. . Because the rights of the parties under the policy are determined by the" }, { "docid": "7854280", "title": "", "text": "of the Act. And the FCIC’s regulations simply clarify that federal law only preempts state suits contrary to the FCIA’s purpose. Therefore, Mr. Meyer’s state law causes of action, which are not contrary to the purpose of the FCIA, are not preempted by the FCIA or the FCIC’s regulations. C. Breach of Contract 1. Mr. Meyer’s Failure to Pay His Premium We agree with the district court that Mr. Meyer’s failure to pay his premium is not fatal to his breach of contract claim. The district court held that Mr. Meyer had a right to setoff the amount of any premium against any damage payment that might be made because his alleged loss. Meyer, 957 F.Supp. at 1499-1500. According to the district court, the right to setoff occurred before the premium was due, and therefore, nonpayment of the premium did not bar the action. Id. at 1500. The crop insurance policy states, “You cannot bring suit or action against us unless you have complied with all of the policy provisions.” Aplt’s App. vol. II, at 433. See also 7 C.F.R. § 401.7 (“No indemnity shall be paid unless the insured complies with all terms and conditions of the contract.”). Listed under “General Provisions” at “a.” is the “Agreement to Insure,” id. at 423, that reads, “We will provide the insurance described in this policy in return for the premium.” Id. at 426. Listed under “Special Provisions-Dry Beans” at “7.” is the “Annual Premium” provision that states that “[t]he annual premium is earned and payable at the time of planting” and that “[a]ny unpaid premium due us may be deducted from any indemnity payable to you.” Id. at 431. See also 7 C.F.R. § 401.8, General Crop Insurance Policy Terms and Conditions, 5 a. (“The annual premium is earned and payable at the time insurance attaches.”). The acreage reports provide that the premium due date was October 1, 1994. Aplt’s App. vol. I, at 224, 288. We agree with Rain and Hail that the insurer’s right to deduct any unpaid premium from any indemnity should not be confused with the clear" }, { "docid": "11879066", "title": "", "text": "in devising and establishing such insurance,” id. § 1502(a). To administer the Act, Congress created the Federal Crop Insurance Corporation (“FCIC”), a government-owned corporation which acts as an “agency of and within the Department” of Agriculture (“USDA”). Id. § 1503; see also Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 381, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The FCIC is, in turn, regulated by the USDA’s Risk Management Agency (“RMA”). See Barnhill v. Veneman (In re Peanut Crop Ins. Litig.), 524 F.3d 458, 462 (4th Cir.2008); Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1372 (Fed.Cir.2005); 7 C.F.R. § 400.701. The RMA’s function is to supervise the FCIC and administer all pro grams authorized under the FCIA. 7 U.S.C. § 6933(a), (b)(l)-(3); Acceptance Ins. Cos. Inc. v. United States, 503 F.3d 1328, 1330 (Fed.Cir.2007). The FCIA empowers the FCIC to provide crop insurance directly to farmers or provide reinsurance to private insurance providers who then provide crop insurance to farmers. See 7 U.S.C. § 1508(a)(1); Alliance Ins. Co. v. Wilson, 384 F.3d 547, 549-50 (8th Cir.2004). Indeed, Congress has directed the FCIC to provide reinsurance to insurers “to the maximum extent practicable.” 7 U.S.C. § 150800. One of the types of federal crop insurance is adjusted gross revenue (“AGR”) insurance, which “insures the revenue of the entire farm, not just the revenue derived from individual crops, by guaranteeing a percentage of the farm’s average gross revenue.” Christopher R. Kelley, The Agricultural Risk Protection Act of 2000: Federal Crop Insurance, the Non-insured Crop Disaster Assistance Program, and the Domestic Commodity and Other Farm Programs, 6 Drake J. Agric. L. 141, 144 (2001); see also 7 U.S.C. § 1523(e). See generally U.S. Gen. Accounting Office, GAO-04-517, Crop Insurance: USDA Needs to Improve Oversight of Insurance Companies and Develop a Policy to Address Any Future Insolvencies 7 (2004) (“Revenue insurance, a newer crop insurance product, provides protection against losses in revenue associated with low crop market prices in addition to protecting against crop loss.”). Under the AGR pilot program, AGR insurance is offered through reinsurance arrangements with private insurances companies," }, { "docid": "9989831", "title": "", "text": "ORDER KENT, District Judge. Before the Court is the Plaintiff's Motion to Remand, to which the Defendants have filed an appropriate response. For the reasons set forth below, the Court DENIES the Plaintiff’s motion. Factual and Procedural History In 1990, the Plaintiff purchased a MultiPeril Crop Insurance policy from Defendants Crop Insurance Services and Laverne Stratton. The policy was issued by Defendant Landmark America (“Landmark”) through that company’s general agent, Defendant Crop Hail Management, Inc. (“Crop Hail”), under the auspices of a reinsurance contract that Landmark maintained with the Federal Crop Insurance Corporation (“FCIC”). By the terms of this contract, the FCIC agreed to reimburse Landmark and Crop Hail for claims covered by the reinsurance contract, so long as Landmark and Crop Hail paid these claims in accordance with applicable FCIC regulations, practices, and procedures. In the spring of 1990, the Plaintiff planted approximately 200 acres of rice. The crop was lost and the Plaintiff made a demand for coverage under his Multi-Peril Crop Insurance policy for $26,922.38. The Defendants denied the Plaintiff’s claim, allegedly on the basis of the FCIC’s regulations. The Plaintiff subsequently filed suit against the Defendants in the 334th Judicial District Court of Chambers County, Texas. The Plaintiff claimed that the Defendants’ refusal to honor his demand for coverage constituted a breach of contract, negligence, a breach of the duty of good faith and fair dealing, conspiracy, and a violation of various provisions of the Texas Deceptive Trade Practices-Consumer Protection Act and the Texas Insurance Code. Asserting that this case contains a federal question, the Defendants removed the state action to this Court pursuant to 28 U.S.C. § 1441. While the Defendants readily acknowledge that the Plaintiff’s complaint, on its face, alleges no federal cause of action, they maintain that a federal question nonetheless exists because federal law preempts all suits against the FCIC or a FCIC reinsured entity. In response, the Plaintiff filed a Motion to Remand on the ground that this Court lacks jurisdiction over the matter. The Plaintiff properly notes that if federal law arises in a suit only as a defense to" }, { "docid": "2560049", "title": "", "text": "insurance” (7 U.S.C. § 1502). A crop insurance contract arises when the FCIC accepts an application for insurance on a crop grown in an area that the FCIC has classified as insurable. The contract continues in effect from year to year, but after the first year it may be canceled by either party upon notice duly given on or before August 31 preceding the crop year for which the cancellation is effective (7 C.F.R. § 409.25(11)). Citrus crop years commence on November 1 and end on October 31 the following year; they are designated by the calendar year in which they originate. Citrus insurance was first offered in the Rainbow Valley area for the crop year 1968, limited to losses caused by frost. Plaintiffs applied for and received crop insurance. Freezes occurred in Rainbow Valley in both the 1968 and 1969 crop years, requiring the FCIC to pay large indemnities to the insureds in that area. On August 12, 1970, the FCIC sent a letter to plaintiffs advising them that Rainbow Valley was being reclassified as an uninsurable area based on the severe losses experienced during the previous two crop years and on the prediction that similar losses were likely to occur in the future. Plaintiffs were not given prior notice nor an opportunity to be heard with respect to the reclassification. I. Section 4 of the Administrative Procedure Act (5 U.S.C. § 553) requires, in general, that notice of proposed rule-making be published in the Federal Register and that interested parties be given an opportunity to be heard. Plaintiffs contend and defendant concedes that the decision to reclassify Rainbow Valley was a “rule” within the méaning of section 4. Assuming arguendo that this is so, we nonetheless conclude that the decision was exempted from any rule-making requirements by subsection 4(a)(2), which provides that section 4 shall not apply to “a matter relating to . public property, loans, grants, benefits, or contracts.” The FCIC’s decision to reclassify Rainbow Valley relates directly to its crop insurance contracts and thus falls squarely within the public contracts exception. This conclusion is supported not" }, { "docid": "1419455", "title": "", "text": "policy issued by the FCIC guarantees the farmer he will get a certain dollar amount from his crop. The amount is the “applicable pounds of peanuts per acre multiplied by the average quota support price per pound for the insured type of peanuts for the crop year .... ” 7 C.F.R. § 425.-7(d)(4)(a) (1980). For the Manns, this dollar amount was $553 per acre, or $189,291.90 total insurance. The dispute in this case, however, is not over the total amount of insurance; it is over the valuation of the peanuts actually sold. That is because the value of the peanuts produced is charged against the amount of insurance to be paid. 7 C.F.R. § 425.7(d)(8)(b) (1980). The plaintiffs argue, and the FCIC admits, that in years past the Corporation has not counted in its computation of loss a “seed and drayage bonus.” This bonus has always consisted of a payment of two to six cents above support price for seed peanuts. The reason the “bonus” was not figured in the calculations was because it was a payment for the process of culling, cleaning, storing and hauling the seed peanuts. The Corporation also admits that if the Manns had claimed the normal two to six cent bonus, it would not have been charged this amount against their insurance payment. However, the Manns have claimed that the forty cent payment they received above the support price is a “seed and drayage bonus”, and should not be used to reduce the amount paid them under the crop insurance. The FCIC submits that the forty cent payment is not the usual bonus, rather it represents the fair market value of the peanuts in an abnormal market. It is the Corporation’s position that the Manns have attempted to take advantage of the unusual market to secure a large profit; the evidence bears out the FCIC’s argument. This case turns on the proper method of valuation of the harvested peanut crop under a federal crop insurance policy. Under the regulations, there are two methods of valuation, 7 C.F.R. § 425.7(d)(8)(c)(l) and (c)(2). Subsection (c)(1) provides that" }, { "docid": "2560048", "title": "", "text": "OPINION HUFSTEDLER, Circuit Judge: Plaintiffs, who are three citrus growers in the Rainbow Valley area of Maricopa County, Arizona, filed an action challenging a decision by the Federal Crop Insurance Corporation (FCIC) to discontinue citrus insurance in the Rainbow Valley area. The district court granted summary judgment in favor of the defendant. On appeal plaintiffs contend that in discontinuing insurance in Rainbow Valley without giving plaintiffs prior notice or an opportunity to be heard, the FCIC violated (1) the rule-making requirements of the Administrative Procedure Act (5 U.S.C. § 553), or (2) the due process clause of the Fifth Amendment. For the reasons set forth below, we affirm. The Federal Crop Insurance Act (7 U.S.C. § 1501 et seq.) authorizes the FCIC to enter into contracts for crop insurance and to “limit or refuse insurance in any county or area ... on the basis of the insurance risk involved” (7 U.S.C. § 1508(a)). Cancellation authority is granted to fulfill the Act’s purpose of “improving the economic stability of agriculture through a sound system of crop insurance” (7 U.S.C. § 1502). A crop insurance contract arises when the FCIC accepts an application for insurance on a crop grown in an area that the FCIC has classified as insurable. The contract continues in effect from year to year, but after the first year it may be canceled by either party upon notice duly given on or before August 31 preceding the crop year for which the cancellation is effective (7 C.F.R. § 409.25(11)). Citrus crop years commence on November 1 and end on October 31 the following year; they are designated by the calendar year in which they originate. Citrus insurance was first offered in the Rainbow Valley area for the crop year 1968, limited to losses caused by frost. Plaintiffs applied for and received crop insurance. Freezes occurred in Rainbow Valley in both the 1968 and 1969 crop years, requiring the FCIC to pay large indemnities to the insureds in that area. On August 12, 1970, the FCIC sent a letter to plaintiffs advising them that Rainbow Valley was being reclassified" }, { "docid": "21608453", "title": "", "text": "ARNOLD, Circuit Judge. Dennis L. Land, a farmer in Marquette, Nebraska, appeals pro se from his conviction on three counts of making false statements in violation of 18 U.S.C. § 1001. On appeal, Land argues that the United States did not have jurisdiction over the “property” where the alleged crimes were committed. Amicus argues that the evidence was insufficient to support Land’s convictions, as the criminal-intent and material-statement elements required by the statute were lacking, and that the District Court erred by allowing individual jurors to question witnesses during trial. I. Land’s convictions arise out of his application for crop-insurance coverage and claims for indemnity from the Federal Crop Insurance Corporation (FCIC), a branch of the Department of Agriculture, in 1983 and 1984. An application for crop insurance requires the applicant to list the number of acres to be insured and whether these crops were planted by a deadline determined by FCIC each planting season. Count One of the indictment alleged that Land falsely stated that planting had been completed on a particular tract on June 3, 1983, two days before the planting deadline. Counts Two and Three alleged that Land underreported the total amount of production from his 1984 com crop in his claims for indemnity under his 1984 FCIC insurance policy. At trial it was undisputed that Land planted a portion of his 1983 com crop after the deadline and that no late-planting agreement was in effect between Land and FCIC. Land testified that all of his dealings with FCIC were with Melvin Sperling (deceased at the time of trial), an FCIC adjuster. Tr. 688. Land also testified that he executed the acreage report for his 1983 insurance in blank and that he told Sperling that part of his planting was not completed by the deadline, but that Sperling told him not to worry and that he would take care of it. Tr. 698-99. Sperling’s wife, Lola, an FCIC agent, testified that she was Land’s crop-insurance agent in 1983 and 1984, and that Land had come to her office in June 1983 and provided her with all of" }, { "docid": "1419454", "title": "", "text": "this practice of not reducing insurance proceeds by the bonus would continue in 1980. The trial court found that plaintiffs incurred the expense of storage, additional insurance and labor costs, and assumed the risk of loss from damage to the peanuts during storage. Further, the court found that to allow the FCIC to count the “bonus” against the fair market value of the crop would be to allow the corporation to act inconsistently with its previous practices and rulings, thereby allowing the FCIC to be unjustly enriched while the farmer bore the risk of loss. The court awarded plaintiffs $84,062.80 plus interest from January 29, 1981. The FCIC has appealed this judgment making the argument that: (a) the amount received by plaintiffs over the support price is not a “bonus” in keeping with its past practices, rather it is a profit, and (b) the purpose of the FCIC is to create a stable marketplace by insuring at the support price, thereby the FCIC insures against loss. It does not insure a farmer’s profits. II The policy issued by the FCIC guarantees the farmer he will get a certain dollar amount from his crop. The amount is the “applicable pounds of peanuts per acre multiplied by the average quota support price per pound for the insured type of peanuts for the crop year .... ” 7 C.F.R. § 425.-7(d)(4)(a) (1980). For the Manns, this dollar amount was $553 per acre, or $189,291.90 total insurance. The dispute in this case, however, is not over the total amount of insurance; it is over the valuation of the peanuts actually sold. That is because the value of the peanuts produced is charged against the amount of insurance to be paid. 7 C.F.R. § 425.7(d)(8)(b) (1980). The plaintiffs argue, and the FCIC admits, that in years past the Corporation has not counted in its computation of loss a “seed and drayage bonus.” This bonus has always consisted of a payment of two to six cents above support price for seed peanuts. The reason the “bonus” was not figured in the calculations was because it was" }, { "docid": "1419460", "title": "", "text": "at trial, however, that their statements were made before the surge in the market price and that they both were referring to the “seed and drayage bonus” for services that had not been counted in the past, not a forty cent profit due to abnormal market conditions. An agent of the FCIC could not extend crop insurance where there was none because the doctrine of estoppel cannot extend the coverage beyond that authorized by Congress and the rules promulgated by the FCIC. FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The regulations and the policy stated that the threshed and sold crop is to be valued at gross receipt or fair market value. The FCIC valued the crop according to the explicit language of the regulations and policy and the valuation was not contrary to past practices and policies of the agency. The farmer is charged with knowledge of the regulation and the policy; the doctrine of estoppel cannot be used to expand the coverage. 332 U.S. at 384-385, 68 S.Ct. at 3-4. IV The Manns received the $29,123.52 they were entitled to under the terms of their policy and the regulations. Because the policy coverage could not be extended by estoppel and because the FCIC used the proper method of valuation, we find that the plaintiffs have received all that is due them; accordingly, we reverse the judgment of the district court. REVERSED. . The Manns failed to deduct an amount of $76,797.58. There is a discrepancy of $7,265.22 between the amount received and awarded, $84,062.80, and the amount in dispute, $76,-797.58. This discrepancy arises because the peanuts are insured, and the insurance computed against, separate units, not the entire acreage. 7 C.F.R. § 425.7(d)(8)(b) (1980). On one unit, Unit 7, the Manns actually received $7,265.22 more than the insurance coverage on the unit. This amount is recognized by both parties as profit, but because the insurance is computed on each unit separately, it is not charged against the coverage on other units where losses were sustained. . Crop insurance does not cover the" }, { "docid": "3613434", "title": "", "text": "$3.00 per box because they were sold, even though they were sold as post-destruction \"salvage.” The policy in the Joe Todd Farms case was a dollar plan policy which is different from the Guaranteed Production Plan in the case at bar; however, for the issues being discussed, Defendants argue, and this court agrees, that the policies are similar. . Defendants calculated the gross indemnity due Plaintiffs to be $156,000.00, less unpaid premiums, with a net indemnity due of $108,000.00. Defendants have paid Plaintiffs this net sum of $108,000.00. . See also Black's Law Dictionary 500 (5th Ed.1983) (includes the phrase “purchase and sale” in its definition of \"market\"). . Plaintiffs' counsel agreed with this statement at the hearing before this court held on February 4, 1994. . See Dennis Strickland Affidavit (explains the method of calculating the indemnity due in this claim, pursuant to what this court finds to be clear, unambiguous policy provisions). . This court notes that Defendants’ agents’ comment that \"they would be back with the checkbook” was apparently not a misleading statement. Defendants have paid Plaintiffs $108,000.00, presumably by check. . In FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), plaintiffs reseeded 400 of their 460 acre wheat crop and advised agents of the FCIC of that fact. The agents informed them the entire crop was insurable. After most of the crop was destroyed, their claim was denied, based on the reseeding. (The agents had not mentioned the reseeding on the application). The Court noted the hardship of the case, but held that where federal crop insurance is involved and the FCIC will pay the loss, the representations of the agents cannot expand the coverage and estop the insurer. The Court noted that federal crop insurance is not just another form of insurance but a government remedial program whose costs are borne by the federal treasury. For that reason, the insured must be charged with notice of the regulations and policy provisions, which will not be disregarded. The court finds that the Merrill and Mann holdings are equally applicable to FCIC" }, { "docid": "11322409", "title": "", "text": "heavy rains, resulting in a gross loss to the three plaintiffs in excess of $35,000. The plaintiffs harvested and sold the depleted crop and timely filed notice and proof of loss with FCIC, but, prior to inspection by the adjuster for FCIC, the Howards had either plowed or disked under the tobacco fields in question to prepare the same for sowing a cover crop of rye to preserve the soil. When the FCIC adjuster later inspected the fields, he found the stalks had been largely obscured or obliterated by plowing or disking and denied the claims, apparently on the ground that the plaintiffs had violated a portion of the policy which provides that the stalks on any acreage with respect to which a loss is claimed shall not be destroyed until the corporation makes an inspection. The holding of the district court is best capsuled in its own words: “The inquiry here is whether compliance by the insureds with this provision of the policy was a condition precedent to the recovery. The court concludes that it was and that the failure of the insureds to comply worked a forfeiture of benefits for the alleged loss.” There is no question but that apparently after notice of loss was given to defendant, but before inspection by the adjuster, plaintiffs plowed under the tobacco stalks and sowed some of the land with a cover crop, rye. The question is whether, under paragraph 5(f) of the tobacco endorsement to the policy of insurance, the act of plowing under the tobacco stalks forfeits the coverage of the policy. Paragraph 5 of the tobacco endorsement is entitled Claims. Pertinent to this case are subparagraphs 5(b) and 5(f), which are as follows: “5(b) It shall be a condition precedent to the payment of any loss that the insured establish the production of the insured crop on a unit and that such loss has been directly caused by one or more of the hazards insured against during the insurance period for the crop year for which the loss is claimed, and furnish any other information regarding the manner" }, { "docid": "3613431", "title": "", "text": "all Plaintiffs’ marketed tomatoes, regardless of grade or the date of picking, must be counted as production to offset against indemnity due. Any instructions or representations made by Defendants, if any were made, cannot vary the clear terms of the policy. Plaintiffs are entitled to their guaranty level, less all marketed production They have already been indemnified to that extent. It is therefore, ORDERED, that?Defendants’ Motion for Summary Judgment be GRANTED. AND IT IS SO ORDERED. .There are two types of crop insurance policies authorized and governed by the Federal Crop Insurance Act. The first is a policy issued directly by the FCIC. The second type is issued by private insurance companies, with language approved by the FCIC, and reinsured by the FCIC. Although their provisions are similar, the two policies need not be, and are not, identical. Plaintiffs in the case at bar purchased a policy of the latter type. The policy at issue is a guaranteed production plan policy. . Because the rights of the parties under the policy are determined by the policy rather than their opinions about the policy, the content of this discussion is irrelevant to the question of coverage. . This case only involves tomatoes that were picked and sold or, in the words of the policy language, harvested production that was marketed. This declaratory judgment action is therefore concerned with the construction of the language that appears in the Special Provisions of the insurance policy at para. 6.c.(2)(a). . Plaintiffs apparently take the position that if they determine the crop to be destroyed, the policy terminates. Plaintiffs fail to acknowledge the clear language of para. l.f. — -\"as determined by us.” Pursuant to the policy, Defendants determine when a crop is destroyed. . See infra pp. 1288-1291 (discussion on the construction of the insurance policy). In its pri- or order, this court stated: [S]hould Defendants be found correct in their assertions as to which policy provisions apply, the court ... believes that it will be difficult to conclude that the ... policy provision defining ‘‘harvested production” is ambiguous. Order, p. 8 n. 7." }, { "docid": "5069563", "title": "", "text": "intentional or not, the regulations are precise; the agent or broker is the insured’s agent except where the regulations expressly provide otherwise. As shown, there are specific instances wherein the regulations clearly allow for the agent or broker to act on behalf of the FCIP. Acceptance of the proof of loss from the insured, however, is not such an instance. The Court concludes, therefore, that the FCIP’s interpretation of its regulations is reasonable and correct as a matter of law. See Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983) (great deference should be given to an agency’s construction of its own regulations.) EFFECT OF REGULATIONS The remaining question becomes the effect of the regulations on the parties’ contract of insurance. The contract is unambiguous. Like the abstract, it provides that it is subject to the applicable regulations. The Court finds the case of Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947) particularly instructive. There, respondents applied for insurance under the Federal Crop Insurance Act to insure their wheat crop. In so doing, they informed the Bonneville County Agricultural Conservation Committee, which was acting as the Federal Crop Insurance Corporation’s (“FCIC”) agent. The Committee erroneously advised the respondents that the entire crop was insurable. Unbeknownst to the Committee and respondents, however, was that the Wheat Crop Insurance Regulations, which were applicable to the contract, excluded part of respondent’s crop from coverage. Subsequently, most of respondent’s crop was destroyed. The FCIC refused to pay the loss stating that the Wheat-Crop Insurance Regulations barred recovery as a matter of law. The Supreme Court, after first pointing out that FCIC must be differentiated from a private insurance company, stated that: “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is" }, { "docid": "5069564", "title": "", "text": "their wheat crop. In so doing, they informed the Bonneville County Agricultural Conservation Committee, which was acting as the Federal Crop Insurance Corporation’s (“FCIC”) agent. The Committee erroneously advised the respondents that the entire crop was insurable. Unbeknownst to the Committee and respondents, however, was that the Wheat Crop Insurance Regulations, which were applicable to the contract, excluded part of respondent’s crop from coverage. Subsequently, most of respondent’s crop was destroyed. The FCIC refused to pay the loss stating that the Wheat-Crop Insurance Regulations barred recovery as a matter of law. The Supreme Court, after first pointing out that FCIC must be differentiated from a private insurance company, stated that: “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.” Id. at 384, 68 S.Ct. at 3. The Court continued: “[T]he Wheat Crop Insurance Regulations were binding on all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what is in the Regulations or of the hardship resulting from innocent ignorance.” Id. Indeed, pointed out the Court, the wheat regulations were incorporated by reference in the application. Thus, the FCIC did not err in refusing to pay the respondents’ claims. See, also, Mock v. United States, 183 F.2d 174 (10th Cir.1950); Felder v. Federal Crop Ins. Corp., 146 F.2d 638 (4th Cir.1944); Byrne v. Federal Crop Ins. Corp., 289 F.Supp. 873 (D.Minn.1968); United States v. Blackburn, 109 F.Supp. 319 (E.D.Mo.1952). In the instant action, the Federal Crime Insurance Regulations explicitly limited defendant Brodie’s authority to act as the FCIP’s authorized agent. Clearly, that authority did not encompass receiving proof of loss claims. Under the reasoning of Federal Crop Ins. Corp., plaintiff" }, { "docid": "11879065", "title": "", "text": "TASHIMA, Circuit Judge: We consider whether the standard Adjusted Gross Revenue Insurance Policy, a policy which provides crop revenue insurance pursuant to the Federal Crop Insurance Act, incorporates and mandates the claim adjustment procedures set forth in the Federal Crop Insurance Corporation’s Adjusted Gross Revenue Standards Handbook. We hold that it does. JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1332(a) based on the complete diversity of citizenship between defendants, Ace Property & Casualty Insurance Co., a Pennsylvania corporation, and Rain & Hail, LLC, an Iowa limited liability corporation, both of whose principal places of business are outside of the State of Washington, and Richard Conrad, a citizen of Washington. We have jurisdiction on appeal from the final judgment under 28 U.S.C. § 1291. BACKGROUND Enacted in 1938, the Federal Crop Insurance Act (“Act” or “FCIA”), 7 U.S.C. § 1501 et seq., is designed to “promote the national welfare by improving the economic stability of agriculture through a sound system of crop insurance and providing the means for the research and experience helpful in devising and establishing such insurance,” id. § 1502(a). To administer the Act, Congress created the Federal Crop Insurance Corporation (“FCIC”), a government-owned corporation which acts as an “agency of and within the Department” of Agriculture (“USDA”). Id. § 1503; see also Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 381, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The FCIC is, in turn, regulated by the USDA’s Risk Management Agency (“RMA”). See Barnhill v. Veneman (In re Peanut Crop Ins. Litig.), 524 F.3d 458, 462 (4th Cir.2008); Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1372 (Fed.Cir.2005); 7 C.F.R. § 400.701. The RMA’s function is to supervise the FCIC and administer all pro grams authorized under the FCIA. 7 U.S.C. § 6933(a), (b)(l)-(3); Acceptance Ins. Cos. Inc. v. United States, 503 F.3d 1328, 1330 (Fed.Cir.2007). The FCIA empowers the FCIC to provide crop insurance directly to farmers or provide reinsurance to private insurance providers who then provide crop insurance to farmers. See 7 U.S.C. § 1508(a)(1); Alliance Ins. Co. v. Wilson, 384 F.3d" }, { "docid": "16549252", "title": "", "text": "MAYER, Circuit Judge. Appellants appeal the orders of the United States Court of Federal Claims dismissing their claims for breach of government-reinsured crop policy ' contracts for lack of subject matter jurisdiction, Texas Peanut Farmers v. United States, 59 Fed.Cl. 70 (2003) (“Dismissal Order”), and denying their motion to transfer to various federal district courts contained in their motion to reconsider, Texas Peanut Farmers v. United States, No. 03-445C (Fed.Cl. Mar.2, 2004) (“Order Denying Reconsideration”). Although we concur in the trial court’s dismissal for lack of subject matter jurisdiction, we vacate the Dismissal Order and remand with instructions to transfer. The appeal of the court’s denial of the motion to transfer is dismissed. Background Appellants are Texas, Georgia, Alabama, Florida, and South Carolina peanut farmers who insured their 2001-2002 peanut crops under Multiple Peril Crop Insurance (“MPCI”) policies. MPCI is issued by pri vate insurers and reinsured by the Federal Crop Insurance Corporation (“FCIC”) for coverage of weather-related crop loss. The FCIC was created to regulate the crop insurance industry and is a wholly-owned government corporation within the United States Department of Agriculture (“USDA”). Under the Federal Crop Insurance Act, 7 U.S.C. §§ 1501 et. seq, Congress directed that crop insurance be offered through private insurance providers and reinsured (and regulated) by the FCIC which, in turn, is regulated by the USDA’s Risk Management Agency (“RMA”). Prior to 2002, MPCI coverage varied depending on whether lost crops were “quota” or “non-quota”; quota peanuts were covered at $0.31 per pound, and non-quota peanuts were covered at $0.16 per pound. In May 2002, Congress passed the Farm Security and Rural Investment Act, Pub.L. 107-171, 116 Stat. 182, which repealed the peanut quota and caused all peanuts to become non-quota with a per-pound-coverage rate of $0.1775. As a result, all of appellants’ peanuts became insured at $0.1775 per pound. Appellants’ crops suffered weather-related damage in 2002. Upon filing claims for their losses, they were informed of the insurance policy modification under which losses would be covered at $0.1775 per pound. Appellants sued the United States in the Court of Federal Claims, alleging breach" }, { "docid": "3613435", "title": "", "text": "statement. Defendants have paid Plaintiffs $108,000.00, presumably by check. . In FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), plaintiffs reseeded 400 of their 460 acre wheat crop and advised agents of the FCIC of that fact. The agents informed them the entire crop was insurable. After most of the crop was destroyed, their claim was denied, based on the reseeding. (The agents had not mentioned the reseeding on the application). The Court noted the hardship of the case, but held that where federal crop insurance is involved and the FCIC will pay the loss, the representations of the agents cannot expand the coverage and estop the insurer. The Court noted that federal crop insurance is not just another form of insurance but a government remedial program whose costs are borne by the federal treasury. For that reason, the insured must be charged with notice of the regulations and policy provisions, which will not be disregarded. The court finds that the Merrill and Mann holdings are equally applicable to FCIC rein-sured policies, as well as FCIC directly issued policies. . This rule is consistent with United States District Judge Traxler’s order in Knight v. American Nat’l Fire Ins. Co., 831 F.Supp. 1284 (D.S.C.1993) (unpublished order). . The FCIC policy is not punctuated like the policy issued to Plaintiffs. In Plaintiffs’ policy, the semicolon [;] between subsections (a) and (b) of the definition of \"harvested production” indicates a clear intention to separate the two phrases. Special Provisions, p. 2 of 4 (para. 6.c.(2)). This separation by the semicolon supports this court's finding that the language is unambiguous and that only subsection (b) is qualified by the grading standards. Id." }, { "docid": "16549256", "title": "", "text": "insurance was reduced after the crop year had begun, in violation of section 4 of the MPCI. The MPCI itself plainly states that appellants are the contracting parties and the FCIC is the rein-surer. The clause states: “This insurance policy is reinsured by the Federal Grop Insurance Corporation (FCIC) .... All provisions of the policy and rights and responsibilities of the parties are specifically subject to [the Federal Crop Insurance Act].” Appellants’ strategic decision not to name the FCIC as a defendant is merely an attempt to avoid the strictures of the MPCI and sections 1508(j) and 1506(d). We similarly reject appellants’ argument that the Tucker Act endows the Court of Federal Claims with jurisdiction concurrent with the federal district courts. They argue that: (1) their contracts with the government provide for lawsuits to be filed in federal district courts but do not prohibit filing in the Court of Federal Claims; (2) the Tucker Act provides jurisdiction in the Court of Federal Claims over their contract claim against the United States; therefore (3) the Tucker Act allows concurrent jurisdiction. Appellants further cite the Little Tucker Act because of its explicit grant of concurrent jurisdiction in certain instances. Appellants’ assertions are unavailing. Congress may withdraw any grant of Tucker Act jurisdiction. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-17, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984); Wilson v. United States, 405 F.3d 1002 (Fed.Cir.2005) (affirming the Court of Federal Claims’s holding that 42 U.S.C. § 405(g)’s directive that claims arising under the Medicare Act “shall be brought in the district court of the United States” constituted a Congressional withdrawal of Tucker Act jurisdiction); Massie v. United States, 166 F.3d 1184, 1188 (Fed.Cir.1999) (“[A] contract will not fall within the purview of the Tucker Act if Congress has placed jurisdiction over it elsewhere.”). Because appellants are suing the FCIC for breach, sections 1508(j) and 1506(d), by which Congress has granted district courts exclusive jurisdiction over claims against the FCIC, govern. Section 1508(j) specifically governs claims for indemnity by producers of covered crops, and provides in relevant part: (j) Claims for losses." }, { "docid": "11322408", "title": "", "text": "WIDENER, Circuit Judge: Plaintiff-appellants sued to recover for losses to their 1973 tobacco crop due to alleged rain damage. The crops were insured by defendant-appellee, Federal Crop Insurance Corporation (FCIC). Suits were brought in a state court in North Carolina and removed to the United States District Court. The three suits are not distinguishable factually so far as we are concerned here and involve identical questions of law. They were combined for disposition in the district court and for appeal. The district court granted summary judgment for the defendant and dismissed all three actions. We remand for further proceedings. Since we find for the plaintiffs as to the construction of the policy, we express no opinion on the procedural questions. Federal Crop Insurance Corporation, an agency of the United States, in 1973, issued three policies to the Howards, insuring their tobacco crops, to be grown on six farms, against weather damage and other hazards. The Howards (plaintiffs) established production of tobacco on their acreage, and have alleged that their 1973 crop was extensively damaged by heavy rains, resulting in a gross loss to the three plaintiffs in excess of $35,000. The plaintiffs harvested and sold the depleted crop and timely filed notice and proof of loss with FCIC, but, prior to inspection by the adjuster for FCIC, the Howards had either plowed or disked under the tobacco fields in question to prepare the same for sowing a cover crop of rye to preserve the soil. When the FCIC adjuster later inspected the fields, he found the stalks had been largely obscured or obliterated by plowing or disking and denied the claims, apparently on the ground that the plaintiffs had violated a portion of the policy which provides that the stalks on any acreage with respect to which a loss is claimed shall not be destroyed until the corporation makes an inspection. The holding of the district court is best capsuled in its own words: “The inquiry here is whether compliance by the insureds with this provision of the policy was a condition precedent to the recovery. The court concludes that" } ]

[ { "docid": "20638875", "title": "", "text": "been ignored, by-passed, and violated. In my opinion, the decision should not stand. I would reverse the decision of the Commission and enter judgment for the defendant. A judgment in this case -will doubtless reach into the millions, as did the judgments in 19S0. The current population of the Southern ute Tribe is around 660. (Dept, of Interior, Bureau of Ind. Aft.; “Estimate of the Indian Population Served by the Bureau of Indian Affairs; 1968”.) Tie sum of $2,800,000 was allowed. 17 Ind. Cl. Comm. 28, 52. Cowen, Chief Judge, dissenting: Although I cannot join in a number of the observations made in his dissenting opinion, I am persuaded that Judge Skelton has accurately analyzed the purpose and effect of the Act of 1880 and subsequent acts involved in this appeal and has correctly concluded that appellees’ right to recover is precluded by the judgments entered by this court in 1950 in the four cases (Nos. 45585, 46640, 47564, and 47566), Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433 (1950). I also agree with Judge Skelton that this court erred in remanding the case to the Indian Claims Commission to determine the intention of the parties in executing the stipulation on which the judgment in Case No. 46640 was based. If such a collateral attack on the judgment entered in that case were permissible, I would readily concur with the court’s holding that the proceedings before and the additional findings made by the Indian Claims Commission on remand, support the conclusion that the parties never intended that the stipulation included Noyce Area 617. However, as clearly established by the authorities cited by Judge Skelton, the stipulation was the basis for the entry of a final judg- meat which may not be re-opened or examined in such a collateral proceeding to ascertain the intent of the stipulating parties. Although our error — an error in which I participated — in remanding the case for that purpose is regrettable, it is not too late to acknowledge the error and to correct it. I think it is much too" } ]

[ { "docid": "17434822", "title": "", "text": "distinctness of a claim for the taking of Indian lands without compensation and a claim for damages to Indian lands prior to the taking. This distinction went to the heart of the Government’s claim that the five dockets involved only one claim. In affirming the order of the Commission denying the “* * * Motion to Consolidate * * we do not pass upon the merits of the Washoe decision and merely hold that the Commission did not abuse its discretion in relying upon one of its own decisions on point. The correctness of the Washoe decision is not an issue here. SECOND ISSUE The Commission, referring to appellees collectively as the “Chiricah.ua Apaches”, found in consolidated Dockets 30-A and 48-A that: “September 4, 1886, the date of the final surrender of the Chiricah.ua Apaches under Gerónimo and the time of the removal of the members of the tribe from their homelands, marks the date on which the United States took from the Chiricahua Apache tribe its Indian title to its lands hi New Mexico and Arizona. * * *” 19 Ind. Cl. Comm. 212, 245 (1968). In Dockets 30 and 48 the Commission concluded: “The Fort Sill record [Dockets 30-A ana 48-A] is the record in this proceeding, with the addition of that evidence offered by the Navajos in Docket No. 229. In like manner, the date of taking in the Fort Sill case, September 4,1886, applies herein with respect to the extinguishment by the United States of whatever interest the Apaches may have enjoyed in the overlap area.” 22 Ind. Cl. Comm. 527, 529 (1970). Were we to rule upon the merits of appellant’s claim that the date of taking is not supported by substantial evidence, we anight agree on the present record. The record could be said to establish that Indian title was extinguished before September 4, 1886, when the Act of August 15, 1876, 19 Stat. 176, 195, was passed. Congress may extinguish Indian title by a “clear and plain indication” in the public records that the sovereign “intended to extinguish all of the [claimants’] rights”" }, { "docid": "7925276", "title": "", "text": "CoweN, Ghief Judge, delivered the opinion of the court: The appeals and cross-appeals in this case require us to review eight interlocutory orders of the Indian Claims Com mission. The appellants are eight groups of Sioux Indians. Their claims against the 'United States are filed under Docket No. 74 of the Indian Claims Commission and are based on certain wrongs alleged to have been committed by the United States against their ancestral tribes, i.e., the Teton Sioux Tribe, the Yanktonais Sioux Tribe, and the Sioux of the Santee Reservation in Nebraska. For convenience, the appellants will be referred to as the Docket 74 Sioux, since they are also appellees in certain of the cross-appeals. The Yank-ton Sioux Tribe, whose claims are filed under Docket No. 332-C of the Indian Claims Commission, is a present-day tribe. Its suits are based on wrongs allegedly committed by the United States against the ancestral Yankton Sioux Tribe. The tribe is a party to this appeal, both as an appellee and as a cross-appellant. The United States is a party to this appeal as an appellee and also as a cross-appellant. Appeal From, 24 Ind. Cl. Comm. 147 In its decision in Sioux Tribe of Indians v. United States, 15 Ind. Cl. Comm. 577 (1965), the Indian Claims Commission ruled that the 1851 Treaty of Fort Laramie (11 Stat. 749, 2 Kapp. 594) recognized the title of the “Sioux or Dahcotah Nation” to approximately 60 million acres of land situated west of the Missouri River in what are now the States of North and South Dakota, Nebraska, Wyoming, and Montana. At that time, the Indian Claims Commission did not express an opinion as to what bands or groups constituted the “Sioux or Dahcotah Nation” in Article 5 of the treaty. That question remained unresolved until 1970 when the Commission reached the following decision which is the subject of this appeal: (1) the phrase “Sioux or Dahcotah Nation” in the Fort 'Laramie Treaty included only the Teton and Yankton divisions of the Sioux (and not the Yanktonais); (2) the Teton and Yankton divisions of the Sioux" }, { "docid": "11567863", "title": "", "text": "sale of that part of the said reservation embracing 256,152 acres . . . amounted to $1,268,156.84, which amount was the reasonable and actual value of said lands on the effective date of said act of February 20, 1904. 80 Ct. Cl. at 454. The finding was based upon a stipulation signed by all the parties. The Commission dismissed the claim, 29 Ind. Cl. Comm. 211, 235 (1972), and denied the plaintiffs motion for leave to amend the complaint to reassert the claim. 35 Ind. Cl. Comm. 98, 112 (1974). Following transfer of the case to this court, the plaintiff moved the trial judge to reconsider the Commission’s ruling and to hold that the dismissed claim was not barred by collateral estoppel. The trial judge denied reconsideration of the Commission’s decision, and certified his decision to the court. On May 11, 1979, the court affirmed the trial judge’s denial of reconsideration as a valid exercise of discretion in the absence of an express referral from this court. We concluded, however, that, in the interest of judicial economy, review of the dismissal on the merits would be proper at this time. Red Lake Band v. United States, No. 189-C (order entered May 11, 1979). Pursuant to our order of May 11, the parties filed supplemental briefs on the merits of the Commission’s decision. Upon consideration of the arguments contained therein and the circumstances surrounding the prior litigation upon which the Commission relied, but without oral argument, we conclude that the Commission’s application of the doctrine of collateral estoppel was erroneous. II. The plaintiffs in the prior litigation, 80 Ct. Cl. 410, supra, were Chippewa Indians who were not members of the Red Lake Band of Chippewas. The petition, brought under a special jurisdictional statute, alleged that the United States unlawfully took part of the lands originally held by the government in trust for the entire Chippewa tribe, and placed those lands, totaling 666,434.64 acres, in a new trust for the exclusive benefit of the Red Lake Band (referred to herein as the Red Lake Reservation). Id. at 460. The government previously" }, { "docid": "7740456", "title": "", "text": "Mr. Justice Brennan delivered the opinion of the Court. In 1951 the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indian Claims Commission. The claim asserted that the United States had violated its fiduciary-duty to respondent by (1) disposing of 220,000 acres of land as “free homesteads” although obligated by 21 Stat. 203-204 (1880) and 28 Stat. 678 (1895) to sell the acreage for the respondent’s benefit; and (2) by failing to account for the proceeds of 82,000 acres of land, which proceeds were, under the same Acts, to be held for the respondent’s benefit. The Government’s basic defense was res judicata by reason of Court of Claims consent judgments entered in 1950 between the United States and the Confederated Bands of Utes, including the respondent. Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433 (1950). The Indian Claims Commission rejected the defense, 17 Ind. Cl. Comm. 28 (1966); but the Court of Claims, in an unpublished order, App. 57-58, remanded for the taking of additional evidence. On remand the Commission again rejected the defense, 21 Ind. Cl. Comm. 268 (1969), and the Court of Claims affirmed, two judges dissenting. 191 Ct. Cl. 1, 423 F. 2d 346 (1970). We granted certiorari. 400 U. S. 915 (1970). We reverse. The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that: “[A] judgment . . . shall be entered in this cause as full settlement and payment for the complete ex-tinguishment of plaintiffs’ right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold for cash . . . (b) disposed of as free homesteads . . . and (c) set aside for public purposes [between 1910 and 1938]. . . . There is filed herewith and made a part of this stipulation Schedule" }, { "docid": "17434817", "title": "", "text": "Indian title and the taking date had been filed in consolidated Dockets 30 and 48, the Commission, on motion of appellees and without objection by the United States, entered an order in January 1968, severing from the consolidated cases the portion of the area which was claimed solely by appellees. This severed claim was assigned consolidated Docket Nos. 30-A and 48-A. This left in Docket Nos. 30 and 48 the claim to the tract to which the Navajo Tribe was asserting a conflicting claim. In June 1968, the Commission issued its findings, opinion and interlocutory order in Docket Nos. 30-A and 48-A. The Commission determined the boundaries of the land there involved to which appellees held aboriginal title and held that the land had been taken by the United States on September 4, 1886, without payment of compensation. 19 Ind. Cl. Comm. 212-268. In April 1970, the Commission issued its findings, opinion and interlocutory order in Dockets 30 and 48, segregating the land to which appellees held aboriginal title from the Navajo lands and likewise determining the date of taking to be September 4, 1886. 22 Ind. Cl. Comm. 527-545. After Docket Nos. 30-A and 48-A had proceeded to trial in January 1970 on the valuation of the land as of the 1886 taking date and the matter was pending determination by the Commission, the Government on June 4, 1970 filed a motion for rehearing the determination made in June 1968 that September 4, 1886 was the date of taking. In August 1970, the Commission issued an “Order Denying Defendant’s ‘‘Motion for Behearing and Keconsideration of Date of Taking’ ” on three grounds, ruling that the motion was not timely filed, that defendant had failed to state any valid grounds for rehearing under the Commission’s Buies of Procedure or applicable decisions, and that the Commission’s findings with respect to tbe 1886 date of taking were supported by substantial evidence. 23 Ind. Cl. Comm. 411-418. After both parties bad filed their requested findings and briefs on the valuation issues in Dockets 30-A and 48-A and the matter was still awaiting the" }, { "docid": "22473362", "title": "", "text": "appeal in this case, the Court, on April 6, 1954, issued its decision in The Quapaw Tribe of Indians et al. v. United States, 128 C. Cls. 45, in which the Commission’s decision (Docket 14, 1 Ind. Cl. Com. 469) concerning offsets was remanded for further proceedings in accordance with that opinion. In view of the fact that the Commission in the instant case has followed the same general pattern used by it in its decision in the Quapaw case, we believe the interests of justice would best be served by remanding to the Commission its findings and decision on offsets herein for further consideration and whatever proceedings may be necessary in accordance with the principles set forth in this court’s decision in the Quapaw case, supra. Accordingly, the Commission’s findings and decision on offsets are remanded for further proceedings. It is so ordered. Laeamoee, Judge; MaddeN, Judge; Whitaker, Judge; and JoNes, Chief Judge, concur. Findings and decision on liability and damages, dated March 31, 1953. Findings and decision on offsets, dated December 11,1953. The eighth and ninth causes of action requested an accounting of all financial transactions between the parties. These matters were dealt with in a separate hearing on offsets. Claims arising subsequent to the passage of the Act in 1946 are provided for in section 24 (see Tee-Hit-Ton Indians v. United States, 348 U. S. 272) and are subject to all the usual defenses. It would seem that such claims could hare been brought under clause (2). Otoe and Missouria Indians v. United States, 52 C. Cls. 424; Osage Tribe of Indians v. United States, 66 C. Cls. 64. We shall discuss clause (4) later In this opinion. 128 C. Cls. 82, affirmed February 7, 1955, 348 U. S. 272. Section 24 of the Indian Claims Commission Act (60 Stat. 1049 ) provides in part as follows: “The jurisdiction of the Court of Claims is hereby extended to any claim against the united States accruing after the date of the approval of this Act in favor of any Indian tribe, band, or other identifiable group of American" }, { "docid": "14490731", "title": "", "text": "value of the land at the time of taking, which was agreed upon at oral argument by the parties before the court to have occurred in 1848 on the date of the Treaty of Guadelupe Hidalgo with Mexico. In support of this motion, the appellants assert that counsel had no intention or authority from its clients to argue that the time of taking of the lands involved in this action took place in the year 1848. Appellants now urge that they should not suffer considerable loss in damages because of an erroneous impression apparently made by counsel of the parties “during the heat of oral argument” that the date of taking was the year 1848. The court is unimpressed by this argument and does not accept it as a reason for amending the order. We do not expect precise regulation of the temperature of oral argument, but we do expect and require precision in statements of fact made by counsel to the court, whether oral or written. However, it does appear from the record that the issue on the date of taking of appellants’ lands by the Government was not introduced 'before the Indian Claims Commission or determined by its decision. Neither the appellants, the appellee, nor Amici Curiae in this case now contend that the Treaty of Guadelupe Hidalgo with Mexico in 1848 extinguished the “Indian title” of the Indian tribes involved. Accordingly, IT IS ORDERED this 22nd day of January, 1965, that petitioner-appellants’ motion be and the same is granted in that the case is remanded to the Indian Claims Commission in order for it to receive evidence as to the time of taking of the acreage in question by the United States from petitioners and for determining the value of the lands as of the time it fixes as the date of taking. Appeal is from Docket 137. See findings of fact and opinion of the Commission 11 Ind. Cl. Comm. 131 (1962). This appeal is limited to Count 4 of appellants’ petition. Appellants accept the Commission’s determination that the additional 221,360 acres claimed had been the" }, { "docid": "6086124", "title": "", "text": "Per Curiam: After our decision in United States v. Seminole Indians, 180 Ct. Cl. 315 (1961), upholding the Indians’ aboriginal title to large parts of Florida, the Indian Claims Commission made a further determination as to the extent of the area properly claimed by the Seminóles (19 Ind. Cl. Comm. 179 (1968)), and, later, a determination that they were entitled to recover $12,347,500, less allowable offsets (23 Ind. Cl. Comm. 108 (1970)). One offset of $84,719.37 was thereafter allowed (24 Ind. Cl. Comm. 1 (1970)) ; and a final award was entered for $12,262,780.63. The Seminóles have appealed, primarily directing their challenge to the amount of tbe award, but also raising certain other points. The United States cross-appeals on one newly-raised issue relating to the extent of the area to be valued. After hearing oral argument and considering the extensive briefs and the record, we are constrained to take the same course, on the Indians’ appeal, as in United States v. Nez Perce Tribe, 194 Ct. Cl. 490, 502-03 (1911), cert. denied, 404 U.S. 872, and Sac and Fox Tribe of Indians of Oklahoma v. United States, 196 Ct. Cl. 548 (1971)—a remand to the Commission to supply more specific findings and reasoning as to the valuation of the tracts involved in this case, i.e. Docket Nos. 73 and 151. See, also, The Snake or Piute Indians v. United States, 125 Ct. Cl. 241, 112 F. Supp. 543 (1953). 'Our reasons are similar to those we gave recently in Nez Perce Tribe and Sac and Fox Tribe. The Commission’s opinion and findings on valuation (23 Ind. Cl. Comm. 108) are so summary, conelusory, unexplained, sparse, and unspecific that the court is unable to say whether the ultimate conclusions on valuation are adequately supported by substantial evidence and untainted by legal error. The Seminóles’ expert on valuation suggested a total figure of $47,960,000 for all the lands involved; the Government’s expert gave the figure of $5,500,000. The Commission’s total for the same tracts was $14,550,000. The spread between the parties’ figures is obviously very great, but except for rejecting the extremes" }, { "docid": "21341005", "title": "", "text": "band known by that name. After two unsuccessful attempts to negotiate a cession, Congress established the McCumber Commission to acquire this Pembina North Dakota region. This agency negotiated with the Chippewas until Little 'Shell, the hereditary chief, withdrew along with several others from the negotiations in protest. The local Indian agent selected a “Committee of 32” to represent the Indians, and the negotiations continued, concluding with a pact on October 22, 1892. After a long delay, Congress amended and approved the agreement on April 21,1904, 33 Stat. 189, 193, and the Indians approved on February 15,1905. The present claim is for fair compensation for the area covered by the McCumber Agreement, which the Commission found to have been acquired in February 1905 (when the Indians confirmed the arrangement). Three Chippewa plaintiffs, the Turtle Mountain Band (Indian Claims Commission Docket 113), the Pembina Band (Docket 246), and the Little Shell Band (Dockets 191 and 221), brought suit on this claim, asserting a cause of action under clauses 3, 4, and 5 of section 2 of the Indian Claims Commission Act, 25 TTSC § 70a (1946). All three urge their case on behalf of the same general ancestral Indian group, although they dispute the name to be given it. The Commission determined that this ancestral group (which it called “Plains-Ojibwa”) held Indian title to most of the area given over under the Agreement. 23 Ind. Cl. Comm. 315 (1970). The Chippewa claim before the Commission conflicted to some degree with that of the Three Affiliated Tribes of the Fort Berthold Reservation (Docket 850) . The trial of the two demands was consolidated to the extent of the overlap. After hearing evidence, the Commission divided the overlap area between the Fort Berthold and Chippewa claimants, 25 Ind. Cl. Comm. 179 (1971), but partially modified this decision, in favor of the Chippewas, after rehearing. 26 Ind. Cl. Comm. 836 (1971). The Turtle Mountain Band, the Pembina Band, and the Government are each dissatisfied with one or another aspect of the Commission’s rulings. The Fort Berthold Tribes and the Little Shell Band are content to" }, { "docid": "7925330", "title": "", "text": "1954 (2 Ind. Cl. Comm. 646). An appeal was taken to the Court of Claims, and in its decision of November 7,1956, which was limited to the Black TTills claim, the court unanimously affirmed the decision of the Commission. The decision was never reported in the official reports of the court but was reported in 146 F. Supp. 229. On July 12, 1957, the attorney who had represented the Sioux died, and on October 4,1957, the substituted attorney of record for the Indians filed with the court a motion to vacate the judgment of affirmance and to remand the case to the Commission “for a full and complete hearing and disposition on the merits of the claims set forth in the petition.” In the motion, it was alleged that because of grossly incompetent legal representation, the tribal claims of the Sioux had been determined on the basis of a distorted and empty record; that the former attorney had agreed with the Government not to press two of the claims; that he made concessions which were contrary to fact; that he failed to conduct significant research; and that the Commission itself erred, as a matter of law, in failing to conduct an independent investigation into the facts of the case. In the supporting statement attached to the motion, the following was stated: Critical to this case are two major questions: first, what was the value of the property surrendered to the United States under the 1868 treaty and the Sioux agreement; and, second, what was the value of the consideration received by the Indians for their property? We agree the property should be valued as of the dates of acquisition. The motion was opposed by the Government, but on November 5, 1958, the court entered an order reading in pertinent part as follows: IT IS ORDERED this fifth day of November 1958, that said motions for new trial and to vacate the judgment are granted to the extent that this case is remanded to the Indian Claims Commission pursuant to section 20(b) of the Indian Claims Commission Act, 60 Stat. 1054," }, { "docid": "11120254", "title": "", "text": "new evidence of record, and, since the plaintiff has had its day in court on the question of the defendant’s 1832 treaty obligations to the 'Creek Indians with respect to the reserve lands, I would let the case go forward for determination of the fair market value of the 3,012,800 acres of land actually ceded by the Creek Nation under the 1832 treaty. 1 would deny any recovery by the Creek Nation of the value of the 2,187,200 acres involved in the case, and to that extent would reverse the decision of the Indian Claims Commission. Cowen, OMef Judge, and Bennett, Judge, join in the foregoing dissenting opinion. Citizen Band of Potawatomi Indians, 179 Ct. Cl. 473, 391 F. 2d 614 (1967) aff’g in part, rev’g in part, Docket No. 217, 16 Ind. Cl. Comm. 232 (1965). “* * * As to the ‘grants’ not located within the community, it has been the practice oí the Indian Claims Commission not to include in the area for which compensation Is to be allowed, lands which, though ceded to the united States under one provision of a treaty, were by subsequent treaty provisions to be granted by the united States to third parties. [Citations omitted.) With this practice we concur.” Id. at 490-91. 165 Ct. Cl. 510 (1964) (aff’g, Docket 334-A, 12 Ind. Cl. Comm. 161 (1963), aff’g in part, rev’g in part, Docket 334-B, 12 Ind. Cl. Comm. 180 (1963)). 4 Stat. 411. 190 Ct. Cl. 790, 802 (1970) (ajj’g. Docket Nos. 236-K, et al„ 20 Ind. Cl. Comm. 131 (1968)). Commission’s Finding 5. PI. Ex. 1, Printed record, Court of Claims, Creek Nation v. United States, 77 Ct. Cl. 226. 1d. at 251. Creek Nation v. United States, supra, 77 Ct. Cl. 226 (1933)." }, { "docid": "17434820", "title": "", "text": "* Motion to Consolidate * * 25 Ind. Cl. Comm. 382-83 (1971), the Commission viewed the motion in part as a second motion for rehearing to “determine a new date of taking applicable to all five cases.” As grounds for rejecting the “ * * * Motion to Consolidate * * *” the Commission separately cited its “Order Denying Defendant’s Motion for (Rehearing and Reconsideration of Date of Taking’ ” in Dockets 30-A and 48-A and the Commission’s decision in the case of Washoe Tribe v. United States, 21 Ind. Cl. Comm. 447 (1969). In Washoe the Commission held the Government liable on two claims, essentially recognizing as separate one claim under Section 2, Clause 4, of the Indian Claims Commission Act (60 Stat. 1049) for the taking of aboriginal title lands and another claim under Section 2, Clause 5, of the Act for “trespass damages” prior to the time of extinguishment of title. The Commission’s Eules of Procedure provided that leave of the Commission was required before the same party could file a second motion for rehearing. The United States failed to comply with this rule. The Commission did not abuse its discretion in treating the “* * * Motion to Consolidate * * *” in part as a motion for rehearing. The United States sought “further litigation” in its motion to consolidate on the identical issue, i.e., the date of taking, as it sought in its first motion for rehearing. Although the “* * * Motion to Consolidate * * *” cannot be said to have been filed too late since neither the June 28, 1968 opinion and order (in Dockets 30-A and 48-A) nor the April 1, 1970 opinion and order (in Dockets 30 and 48) were a “final determination” commencing the period for filing, we do not read the Commission’s order denying the “* * * Motion to Consolidate * * *” as being grounded on untimeliness. Moreover, the Commission did not abuse its discretion in denying the “* * * Motion to Consolidate * * *” based upon its Washoe decision. That decision recognized the" }, { "docid": "17434816", "title": "", "text": "of capitalized hypothetical royalty payments. We affirm. FIRST ISSUE The first petition, Docket No. 30, in these cases was filed by the Fort Sill Apache Tribe of Oklahoma claiming to be composed of descendants of the “Warm 'Springs and Chiricahua Bands of Apache Indians.” The second petition, Docket No. 48, was filed by individuals on the Mescalero Beservation in New Mexico, alleging to represent the “Chiricahua and Warm Springs Tribes of Apache Indians.” By order of July 1962, the Commission consolidated Dockets 30 and 48 for trial because it appeared that the sub ject matter and real parties in interest were the same. Trial in these consolidated cases was held in December 1962 on the issues of the extent and boundaries of the Indian title and •the date of the taking. In another case not here involved the Navajo Tribe had made a claim of aboriginal title to an area which in part overlapped the northern portion of the area claimed in Dockets 30 and 48. After requested findings and briefs on the issues of Indian title and the taking date had been filed in consolidated Dockets 30 and 48, the Commission, on motion of appellees and without objection by the United States, entered an order in January 1968, severing from the consolidated cases the portion of the area which was claimed solely by appellees. This severed claim was assigned consolidated Docket Nos. 30-A and 48-A. This left in Docket Nos. 30 and 48 the claim to the tract to which the Navajo Tribe was asserting a conflicting claim. In June 1968, the Commission issued its findings, opinion and interlocutory order in Docket Nos. 30-A and 48-A. The Commission determined the boundaries of the land there involved to which appellees held aboriginal title and held that the land had been taken by the United States on September 4, 1886, without payment of compensation. 19 Ind. Cl. Comm. 212-268. In April 1970, the Commission issued its findings, opinion and interlocutory order in Dockets 30 and 48, segregating the land to which appellees held aboriginal title from the Navajo lands and likewise" }, { "docid": "9726270", "title": "", "text": "1505. See Part II, infra, for fuller texts. We postponed oral argument for some time until at least five active judges were available to hear the cases. (Judge Kashiwa is disqualified and Judge Smith was not a member of the court when the cases were argued and submitted.) This was Indian Claims Commission Docket No. 69. Comparable, though more specific, accounting claims were stated in Dockets No. 299 and 353. The Government’s accounting purported to cover all three dockets. In the course of the proceedings before the Commission, the latter two dockets were consolidated with No. 69, in order to put all of the Navajos’ accounting claims into one case. See 31 Ind. Cl. Comm. 40, 40-42 (1973). These decisions are not now before us. The trial judge’s order was in terms limited to the issue of the \"miscellaneous agency expenses,” but we consider that, if permission was needed, defendant was also granted authority to include the problem of the 35 IIM accounts. Plaintiff Nez Perce Tribe of Idaho was given the right to prosecute these post-June 1951 claims. See 23 Ind. Cl. Comm. 39, 68-69 (1970). The types of post-1951 tribal wrongs alleged by the Indians had to do with (1) use of tribal funds for defraying the cost of government functions, (2) \"reverse spending” by defendant out of tribal funds, e.g., payments out of interest-bearing principal when accumulated interest accounts (non-interest-bearing) could have been used instead, (3) failure to make certain non-interest-bearing funds productive, (4) management of the tribe’s timber, mineral and range assets, and (5) management of plaintiffs funds not deposited in the Treasury. See Plaintiffs Motion for Partial Summary Judgment and Supplemental Accounting, Nez Perce Tribe of Idaho v. United States, No. 179-A (Ind. Cl. Comm. Nov. 22, 1976). 28 U.S.C. § 1505 (1970), based on § 24 of the Claims Commission Act, provides: \"The Court of 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" }, { "docid": "13475155", "title": "", "text": "to the amount that was actually agreed upon and gives no warrant for reading in a requirement that any sum determined in the future to be the fair market value should bear interest. Accordingly, the decision of the Indian Claims Commission is reversed, and the case is remanded for further proceedings in conformity with this opinion. Reversed and remanded. 13 Ind. Cl. Comm. 184 (April 7, 1964). 60 Stat. 1049, 1050 (1946). Clauses (S) and (5) of section 2 provide: “The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe * * *: (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, [orj unconscionable consideration * * *; (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity.” In a treaty dated June 11, 1855 and ratified on March 8, 1859, a reservation of roughly seven million acres was set aside for the Nez Perce Tribe. 12 Stat. 957-962. The lands in controversy are part of that original reservation. 13 Ind. Cl. Comm., at 264. E.g., Otoe and Missouria Tribe of Indians v. United States, 131 Ct. Cl. 593, 131 F. Supp. 265, cert. denied, 350 U.S. 848 (1955) ; Osage Nation of Indians v. United States, 119 Ct. Cl. 592, 97 F. Supp. 381, cert. denied, 342 U.S. 896 (1951). When the decision was appealed, this court found that the Commission had erred in determining the amount of the consideration which the Miami Tribe received for its lands and that this figure amounted to only 38 percent of the true value. 150 Ct Cl. 725 (1960), cert. denied, 366 U.S. 924 (1961). Thus, the court did not reach the question whether payment of 63 percent of value was adequate per se. No mention was made of interest in the petition before the Indian Claims Commission. Appellant says, however, that it did assert the claim at the beginning of trial, and all parties have" }, { "docid": "7925325", "title": "", "text": "and the appeal of the Docket 74 Sioux from the order entered in 24 Ind. Cl. Comm. 208 are denied and that the Commission’s order is in all respects affirmed. The Government's Statute of Limitations Defense to 23 Ind. Cl. Comm. 419 and 24 Ind. Cl. Comm. 147 As previously stated in this opinion, the Commission in the first of the two orders cited above (decided August 26,1970) held that the Teton and the Yanktonais Sioux, by reason of exclusive use and occupancy for a long time prior to 1869, had aboriginal title to a tract of land lying east of the Missouri Eiver and between the James and Missouri Eivers. The decision resulted from a trial upon the Indians’ amended petition in Docket 74-A which asserted claims for land ceded to the United States in the Treaty of April 29, 1868, ratified February 16, 1869 (15 Stat. 635). The claims were made on the grounds provided for in Clauses 3,4 and 5 of Section 2 of the Indian Claims Commission Act. The Commission denied the Government’s plea that the claims in the amended petition were barred by the statute of limitations (25 U.S.C. § 70k (1970)). On August 12, 1965, the Commission decided that the Treaty of Fort Laramie of September 17,1851 (11 Stat. 749, 2 Kapp. 594) recognized the title of the “Sioux or Dahcotah Nation” to a described territory of land lying west of the Missouri River (15 Ind. Cl. Comm. 577). The Commission’s subsequent decision of December 2,1970 (24 Ind. Cl. Comm. 147), held that the Teton and Yankton divisions of the Sioux owned an undivided 83 and 17 percent interest respectively in the Sioux portion of the Fort Laramie land. The Government has attacked these decisions on the ground that any claim of the Sioux based on the Fort Laramie Treaty was also barred by the statute of limitations. The Government’s statute of limitations defense to all of these orders of the Commission was finally denied in the Commission’s Order of June 23, 1972 (28 Ind. Cl. Comm. 204). In its cross-appeal here, the Government" }, { "docid": "6086129", "title": "", "text": "now before us, we have no position at all as to the merits. On remand, the Commission may supply the more specific findings and reasoning which we require as to valuation on the basis of the present record, or if it considers more information desirable, and in its discretion, it may open the record for further evidence or materials on that question. We leave the extent of the further proceedings to the Commission. The minor points raised by the Seminóles, not relating to valuation, are now ripe for decision by us, but we think it best to by-pass them for the time being since the issue of valuation dominates the case, and it will be better to dispose of the whole matter all at once if it comes here again. The remand will therefore be without prejudice to the right of the Indians to raise those issues again on any further appeal to this court. The Government’s cross-appeal revolves around a portion of the land awarded to the Seminóles by the Commission in the determination of liability which we affirmed in 180 Ct. Cl. 375. That particular area is claimed under the Indian Claims Commission Act by both the Seminóles and the Creeks. The history of these overlapping claims, which have not up to now been consolidated, is set forth in McGhee v. Uni6ted States, 194 Ct. Cl. 86, 437 F. 2d 995 (1971) (Ind. Cl. Comm. Docket No. 280), in which we held that the Creeks were not precluded by the prior determination in favor of the Semi-nóles from pursuing their own claim to the overlapping territory. We said: “In order to protect itself, the Government, here a potential double payor, should have taken the initiative to consolidate. Had the cases been consolidated at the proper time all parties would have been bound by the ultimate judgment and needless litigation could have been averted.” 194 Ct. Cl. at 94,437 F. '2d at 1000. Subsequently, the Government moved to remand the present Seminole case, before consideration or decision 'by the court of the instant appeals, so that the conflicting claims" }, { "docid": "23330864", "title": "", "text": "pattern used by it in its decision in the Quapaw case, we believe the interests of justice would best be served by remanding to the Commission its findings and decision on offsets herein for further consideration and whatever proceedings may be necessary in accordance with the principles set forth in this court’s decision in the Qua-paw case, supra. Accordingly, the Commission’s findings and decision on offsets are remanded for further proceedings. It is so ordered. JONES, Chief Judge, and LARA-MORE, MADDEN, and WHITAKER, Judges, concur. . Findings and decision on liability and damages, dated March 31, 1953. . Findings and decision on offsets, dated December 11, 1953. . The eighth and ninth causes of action requested an accounting of all financial transactions between the parties. These matters were dealt with in a separate hearing on offsets. . Claims arising subsequent to the passage of the Act in 1946 are provided for in section 24 [now 28 U.S.C.A. § 1505], see Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, and are subject to all the usual defenses. . It would seem that such claims could have been brought under clause (2). . Otoe and Missouria Tribes of Indians v. United States, 52 Ct.Cl. 424; Osage Tribe of Indians v. United States, 66 Ct. Cl. 64. . We shall discuss clause (4) later in this opinion. . 120 F.Supp. 202, 128 Ct.Cl. 82, affirmed February 7, 1955, 348 U.S. 272, 75 S.Ct. 313. . Section 24 of the Indian Claims Commission Act, 60 Stat. 1049, provides in part as follows: “The jurisdiction of the Court of Claims is hereby extended to any claim against the United States accruing after the date of the approval of this Act in favor of any Indian tribe, band, or other identifiable group of American Indians * * * whenever such claim is one arising under the Constitution, laws, treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band, or group." }, { "docid": "17434818", "title": "", "text": "determining the date of taking to be September 4, 1886. 22 Ind. Cl. Comm. 527-545. After Docket Nos. 30-A and 48-A had proceeded to trial in January 1970 on the valuation of the land as of the 1886 taking date and the matter was pending determination by the Commission, the Government on June 4, 1970 filed a motion for rehearing the determination made in June 1968 that September 4, 1886 was the date of taking. In August 1970, the Commission issued an “Order Denying Defendant’s ‘‘Motion for Behearing and Keconsideration of Date of Taking’ ” on three grounds, ruling that the motion was not timely filed, that defendant had failed to state any valid grounds for rehearing under the Commission’s Buies of Procedure or applicable decisions, and that the Commission’s findings with respect to tbe 1886 date of taking were supported by substantial evidence. 23 Ind. Cl. Comm. 411-418. After both parties bad filed their requested findings and briefs on the valuation issues in Dockets 30-A and 48-A and the matter was still awaiting the Commission’s decision, on March 10, 1971 the'Government filed a “* * * Motion to Consolidate * * *” the two groups of dockets (:30-A, 48-A and 30, 48) with a fifth case, Docket No. 182. The Fort Sill Apaches and individual associated Indians had filed the petition in Docket No. 182. Alleging the same aboriginal title boundaries as in Docket No. 30, those petitioners sought inter alia to hold the United States liable for alleged “trespass damages” prior to the date of extinguishment of aboriginal title. 'In its “* * * Motion To Consolidate * * *” the Government reasoned that all five dockets constituted essentially one claim, arguing that the Indians involved were entitled to be compensated only once for the extinguishment of their aboriginal title. In its motion to consolidate the Government concluded: “Accordingly, the cases alleging the extinguishment of aboriginal title and Docket No. 182 should be consolidated in order that, if necessary, the date of extinguishment should be moved back. * * *” In its order denying the Government’s “* *" }, { "docid": "22473361", "title": "", "text": "Commission that no unfair or dishonorable motives or conduct can be imputed to the Government, in relation to the compromise settlement agreed to by the Indians and the settlers and ratified by Congress for the best interest of the Indians as the best means of bringing to an end the long controversy over the sale of the reservation lands. On the whole record we find that the Commission’s findings and conclusions are supported by substantial evidence and they are affirmed. Government Appeal from the Decision on Offsets On December 11, 1953, the Commission made findings of fact and rendered a decision regarding offsets. It concluded that the Government was entitled to offset $28,024.05 from the award made to Indian appellants. The Government has appealed on the ground that the Commission erred in concluding as a matter of law that the United States was not entitled to all offsets claimed by it in its amended answer filed May 29,1953. The United States claimed offsets in the total amount of $139,038.29. Subsequent to the filing of the appeal in this case, the Court, on April 6, 1954, issued its decision in The Quapaw Tribe of Indians et al. v. United States, 128 C. Cls. 45, in which the Commission’s decision (Docket 14, 1 Ind. Cl. Com. 469) concerning offsets was remanded for further proceedings in accordance with that opinion. In view of the fact that the Commission in the instant case has followed the same general pattern used by it in its decision in the Quapaw case, we believe the interests of justice would best be served by remanding to the Commission its findings and decision on offsets herein for further consideration and whatever proceedings may be necessary in accordance with the principles set forth in this court’s decision in the Quapaw case, supra. Accordingly, the Commission’s findings and decision on offsets are remanded for further proceedings. It is so ordered. Laeamoee, Judge; MaddeN, Judge; Whitaker, Judge; and JoNes, Chief Judge, concur. Findings and decision on liability and damages, dated March 31, 1953. Findings and decision on offsets, dated December 11,1953. The" } ]

[ { "docid": "20528996", "title": "", "text": "familiarity with another individual over time, repeated transactions.” Id. As a task force officer experienced in the drug trade, Clark helped the jury interpret the standardized drug language used by the defendants. And as the lead agent on the case who had “listen[ed] to over 10,000” intercepted phone calls among the defendants, Clark’s testimony helped the jury .interpret the non-standardized drug language specific to these defendants. We have condoned such testimony as helpful to the jury. In United States v. Ceballos, 302 F.3d 679, 687-88 (7th Cir.2002), we found DEA agents’ interpretations of the pronouns “it,” “them,” and “both” as referring to methamphetamine shipments “helpful to the jurors because [a]s a result of [the agents’ expert] testimony, the jury was able to apply to the evidence alternative theories of which they ordinarily would not have been aware” (alteration in original) (internal quotation marks and citation omitted). In York, we concluded that an FBI agent’s expert testimony about the meaning of the words “six,” “nine,” “five dollar,” and “fifty-five” within a conversation “would assist the jury” since the meaning of these words were otherwise ambiguous. 572 F.3d at 423. And in Christian, we found that an FBI agent’s expert testimony about a defendant’s arm movements helpful, explaining; “Although at first glance, expert testimony that Christian’s arm movements were consistent with tossing an object may appear to be a matter of common sense, a more deliberate consideration of the testimony suggests otherwise. What might seem like innocuous conduct to an untrained jury, might, to the trained eye, be indicative of criminal activity.” 673 F.3d at 711. Drake also challenges whether Detective Clark’s opinions were based on reliable principles and methods. Although not a model of expert analysis, there is no evidence that Clark used unreliable principles and methods. Throughout the expert portion of his testimony, Clark stated that he drew his conclusions from his “training and experience applied to this case, [and] listening to over 10,000 or so intercepts.” App. Dkt. 70-3, 81. He also said that in “identifying and interpreting code language in this ease,” he “conducted] some form of peer" } ]

[ { "docid": "23673652", "title": "", "text": "participated in over fifty investigations, and had testified as an expert witness on drug code language in several drug-trafficking cases. Thus, like in Allen, the district court properly qualified the agents as experts and did not abuse its discretion in admitting their testimony. The defendants argue that Agents Kress and Styron did not qualify as experts because the agents based their testimony on English translations of Spanish conversations and neither spoke fluent Spanish. We can find no legal authority for the proposition that the agents’ lack of fluency in the Spanish language should prohibit them from interpreting drug code language obtained from English translations of Spanish conversations. Instead, this court and other circuits have previously permitted agents to rely upon English translations to interpret drug code language, see, e.g., United States v. Hughes, 970 F.2d 227, 236 (7th Cir.1992); United States v. Nersesian, 824 F.2d 1294, 1307 (2d Cir.1987), and we see no reason to forbid this practice in the present case. Next, the defendants assert that the district court improperly allowed Agent Kress and Agent Styron to testify regarding the defendants’ use of simple pronouns during the intercepted phone conversations. We have previously held that expert testimony concerning narcotics code words is permissible because this language is not within the common understanding of most jurors. See United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir.1988). The government responds, therefore, that the pronouns that the agents interpreted constituted drug code language because of their ambiguity and were the proper subjects of expert testimony. For example, during one intercepted conversation that was played for the jury, Ceballos called Miguel Quintanilla, and the following conversation took place: Ceballos: Oh, man, one more thing ... that guy owes me, man. Quintanilla: How’s that? Ceballos: Yeah, man. I don’t know how, man, there was some missing from both. Quintanilla: But I, I prepared them here, man. Ceballos: It really bugs me, the same as the one before, you know, like the other time. I told you it had come up short, and I didn’t deduct anything from you, man. The other time there" }, { "docid": "3476782", "title": "", "text": "crack cocaine served the same purpose. Understanding the drug’s characteristics would help the jury determine whether the substances presented at trial as belonging to Garrett were indeed illegal drugs, while testimony regarding the drug’s wholesale quantities and prices would assist the jury in deciding whether Garrett’s activities involved the distribution of drugs or simply drug possession. Whether Agent Labno was the proper person to offer this expert testimony is a separate question. As we have said, “Testimony runs the risk of being overly prejudicial when, as here, the expert witness was a law enforcement officer who was also involved in the investigation at issue.” Morris, 576 F.3d at 675. Our concern is that “the jury may attach undue weight to the officer’s testimony,” United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir.1994), and “unduly credit the witness’s fact testimony given his status as an expert,” Upton, 512 F.3d at 401 (overruled in part on other, unrelated grounds). The heightened reliability that jurors often attach to expert testimony could easily lead a juror to believe that the officer’s fact testimony must be reliable as well, and thereby elevate that testimony to a level of credibility that it would not otherwise enjoy. Avoiding that danger is precisely why “it is a better route not to use an investigating officer as an expert in the first place.” Id. While we caution against this practice, the district court did not abuse its discretion in allowing the testimony in this case. We find most persuasive the fact that the court never referred to Agent Labno as an expert in the jury’s presence and did not allow the parties to so refer to him. And the parties only used the term “opinion testimony” in referring to his experience and testimony regarding terminology and practices of the drug trade. The judge also used the term “opinion” testimony in each instance that he referred to Agent Labno’s “expert” testimony before the jury. After the proper foundation had been laid for his “expert” testimony, the judge told the jury: [Agent Labno] has already testified as a fact witness," }, { "docid": "19787254", "title": "", "text": "sound of money being counted over the audio transmitter. This testimony, according to York, exceeded the proper scope of expert testimony under Rule 702. We see two different claims growing out of this single challenge. First, York contends that, by interpreting words already within the jury’s understanding, Brown’s testimony did not meet Rule 702’s requirement that expert testimony “assist” the jury. Second, because these words and sounds were not “code,” in York’s view, Brown’s testimony was not based on sufficient facts and reliable methods as Rule 702 requires. Because York’s trial objection arguably encompasses these claims, we review them for an abuse of discretion. Farmer, 543 F.3d at 370. Turning to that first claim, we have discussed that the Rules of Evidence allow expert law enforcement witnesses to translate drug jargon and code words that might seem entirely innocuous to an untrained jury. United States v. Ceballos, 302 F.3d 679, 687-88 (7th Cir.2002); Foster, 939 F.2d at 451-52 (“Despite our country’s “war on drugs’ and its accompanying media coverage, it is still a reasonable assumption that jurors are not well versed in the behavior of drug dealers.”). But this presupposes that the terms to be interpreted are in fact drug code and not words “that the jury can evaluate for itself.” United States v. de Soto, 885 F.2d 354, 361 (7th Cir.1989). “Interpretations” of unambiguous words or phrases that are plainly within the jury’s understanding are unlikely to be admissible under Rule 702; they would not “assist the trier of fact to understand the evidence or to determine a fact in issue.” See United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir.1988). Instead, they would merely put an expert gloss on a conclusion the jury should draw. In Ceballos, 302 F.3d at 687-88, we upheld agents’ interpretations of simple pronouns such as “it,” “them,” and “both” as referring to methamphetamine shipments, in part, because defendants used those pronouns ambiguously in their conversation (they mentioned no other nouns to which the pronouns could refer). Given this ambiguity, we concluded that the agents’ experience interpreting drug code language would be helpful" }, { "docid": "23688572", "title": "", "text": "reach,” and that “[a] witness, lay or expert, may not form conclusions for a jury that they are competent to reach on their own.” Id. at 597. “[A] case agent testifying as a lay witness may not explain to the jury what inferences to draw from recorded conversations involving ordinary language.” Id. at 598. The court held that the agent’s testimony was improper because it “effectively spoon-fed his interpretations of the phone calls and the government’s theory of the case to the jury, interpreting even ordinary English language.” Id. at 597 (citing United States v. Peoples, 250 F.3d 630, 640 (8th Cir.2001) (finding that the agent’s “testimony was not limited to coded, oblique language, but included plain English words and phrases” and was therefore inadmissible under Rule 701)). But see United States v. Ceballos, 302 F.3d 679, 688 (7th Cir.2002) (“[W]e hold that the district court did not abuse its discretion in permitting [special agents] to offer expert testimony on the meaning of pronouns such as ‘it’ and ‘them’ because the pronouns were used in an ambiguous manner and because of the agents’ vast experience with drug code language.”); United States v. Gadson, 763 F.3d 1189, 1210 (9th Cir.2014) (“Because a jury may become confused by vague pronouns such as ‘who,’ ‘him,’ and ‘that,’ [an officer’s] testimony would provide helpful context” and district court did not plainly err by admitting it). Similarly, in United States v. Grinage, 390 F.3d 746, 748-49 (2d Cir.2004), a DEA agent testified that several intercepted phone calls using the phrases “I need something bad, bad, bad,” and “I need about nearly four,” were drug-related “based on [his] knowledge of the entire investigation” and “because of -his knowledge of [the defendant’s] activities.” The court held that this testimony was improp er as lay opinion because it “usurped the function of the jury to decide what to infer from the content of the calls.” Id. at 750. The court warned that under this approach “there would be no need for the trial jury to review personally any evidence at all. The jurors could be ‘helped’ by a" }, { "docid": "3041129", "title": "", "text": "Cir.2009) (citing Fed.R.Evid. 702). In other words, a witness should not be allowed to put an “expert gloss” on a conclusion that the jurors should draw themselves. See York, 572 F.3d at 423 (“‘Interpretations’ of unambiguous words or phrases that are plainly within the jury’s understanding are unlikely to be admissible under Rule 702.”) (quotations omitted). “[Ejxpert testimony does not assist where the jury has no need for an opinion because it easily can be derived from common sense, common experience, the jury’s own perceptions, or simple logic.” 29 Charles Alan Wright & Victor James Gold, Federal Practice & Proce dure § 6264 (1997); see also Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 602-03 (7th Cir.2011). Although at first glance, Agent Manns’ expert testimony that Christian’s arm movements were consistent with tossing an object may appear to be a matter of common sense, a more deliberate consideration of the testimony suggests otherwise. What might seem like innocuous conduct to an untrained jury, might, to the trained eye, be indicative of criminal activity. See Winbush, 580 F.3d at 511; compare York, 572 F.3d at 423 (finding that law enforcement officers’ explanation of drug jargon and code words that might seem entirely innocuous to an untrained jury is proper expert testimony), with United States v. Cruz, 363 F.3d 187, 196-97 (2d Cir.2004) (agent gave impermissible expert opinion on phrase, “to watch someone’s back”; phrase was ambiguous and outside ambit of agent’s “drug jargon” expertise). For example, in United States v. Parra, 402 F.3d 752, 759 (7th Cir.2005), we allowed expert testimony of seemingly innocent-looking conduct consistent with drug trafficking countersurveillance. . The agent in Parra testified that the defendant was “looking up and down the street around and then looking back towards [the suspected drug car],” and explained “why, in his expert opinion, this seemingly innocuous conduct indicated that the defendant was engaged in counter-surveillance.” Id. We allowed the expert testimony even though the jury had access to the surveillance tapes. Id. Jurors are presumably not well versed in the concealment or disposal of weapons. Agent Manns had specialized training" }, { "docid": "19787253", "title": "", "text": "code words he defined at the second trial. Moreover, York’s lawyer was the same for both trials. So defense counsel could not claim that he suffered some unfair surprise and was caught unaware of Brown’s qualifications and opinions, and the bases and reasons for those opinions, going into the second trial. This is not to say that every time a defendant is retried the government need not disclose the experts from the prior trial whom the government intends to call again. But here, where Brown’s testimony was nearly identical in both trials, and where York does not allege any disadvantage in preparing for the second trial or cross-examining Brown, we cannot see any prejudice that would justify exclusion nor any plain error that would justify reversal. 3. Helpfulness of Agent Brown’s Testimony York next argues that Brown interpreted some words and sounds that were not drug code and therefore needed no interpretation. Specifically, York challenges Brown’s interpretation of the numbers “six,” “nine,” “five dollar,” and “fifty-five,” as well as Brown’s comment that he heard the sound of money being counted over the audio transmitter. This testimony, according to York, exceeded the proper scope of expert testimony under Rule 702. We see two different claims growing out of this single challenge. First, York contends that, by interpreting words already within the jury’s understanding, Brown’s testimony did not meet Rule 702’s requirement that expert testimony “assist” the jury. Second, because these words and sounds were not “code,” in York’s view, Brown’s testimony was not based on sufficient facts and reliable methods as Rule 702 requires. Because York’s trial objection arguably encompasses these claims, we review them for an abuse of discretion. Farmer, 543 F.3d at 370. Turning to that first claim, we have discussed that the Rules of Evidence allow expert law enforcement witnesses to translate drug jargon and code words that might seem entirely innocuous to an untrained jury. United States v. Ceballos, 302 F.3d 679, 687-88 (7th Cir.2002); Foster, 939 F.2d at 451-52 (“Despite our country’s “war on drugs’ and its accompanying media coverage, it is still a reasonable assumption" }, { "docid": "23688552", "title": "", "text": "52 (2d Cir.2003); see also, e.g. United States v. Freeman, 498 F.3d 893, 901-02 (9th Cir.2007) (holding that expert’s testimony on “interpretation of encoded drug jargon was admissible”); United States v. Ceballos, 302 F.3d 679, 686 (7th Cir.2002) (holding that DEA agents with extensive drug investigation experience were properly qualified as experts in drug code). Because “drug dealers often camouflage their discussions” with code words, “expert testimony explaining the meanings of code words may ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” Dukagjini, 326 F.3d at 52 (citing Fed.R.Evid. 702). The district court properly qualified Lockhart as an expert under Rule 702 based on his extensive experience as a drug investigator. Under Rule 702, a witness may be qualified as an expert based upon “knowledge, skill, experience, training, or education.” We have never required formal educational credentials to qualify a witness as an expert, and even “the advisory committee notes to Rule 702 state that experience in the field can be the predominant, if not the sole, basis for expert testimony in some cases.” Ceballos, 302 F.3d at 686. Defendants engaged in extensive voir dire of Lockhart before the district court, and they do not argue that they were not given adequate opportunity to challenge his credentials. Lock-hart had been a drug investigator for over eleven years. During that time, he authored over fifty Title III (wiretap) affidavits and was the lead investigator in seven or eight investigations. He also testified that he has listened to “well over 100,000” wiretapped phone calls in his career. Cf. Griffith, 118 F.3d at 322-23 (holding that law-enforcement witness was qualified to give expert testimony about drug dealers based on her “eight-and-one-half years as a DEA agent” and participation in 50 investigations). Lockhart explained that while he had never published papers or taught formal classes on drug code, these types of formal educational opportunities are not common in the field because formal rules of interpretation would lead conspirators to change their tactics and undermine investigators’ ability to interpret their conversations. Lockhart did, however, have experience" }, { "docid": "22828664", "title": "", "text": "— exceeded its proper bounds and therefore should have been excluded. Biggs became the case agent for the investigation in February 1997, after the wiretaps were concluded and the defendants had been arrested and arraigned. Biggs had monitored the wiretap interceptions in the case for about two months and prepared draft transcripts of those intercepts. As is common in drug conspiracy cases, most of the conversations on tape were disguised and ambiguous. The government called Biggs as an expert to testify about the meanings of the various code words used in the recorded conversations. The district court found that Biggs was qualified as an expert on the basis of his extensive experience in the area of narcotics trafficking as a police officer and a DEA agent, monitoring thousands of phone calls between suspected drug dealers. The court cautioned the prosecutor to limit Biggs’s testimony to “words of the trade, jargon,” and general practices of drug dealers, rather than testimony offering “sweeping conclusions” and interpretations about the general meaning of conversations. Biggs testified at some length about the meanings of words used in the recorded conversations. He recited as the basis for his conclusions both his prior law enforcement experience and his “knowledge of the investigation” from the wiretapped conversations and his personal conversations with the other agents, witnesses, and co-conspirators. Biggs testified about intercepted co-conspirator statements characterizing the quality or condition of the heroin and the significance that those statements would have within the drug trade. For example, Biggs explained that when Miller asked Griffin “is it dry,” he was asking whether the heroin was too wet to sell. Prior to Biggs’s testimony, the trial court had assumed that “dry” would refer to being out of drugs. At other points, Biggs testified that “cooked” and “tasted a little funny” were descriptions of crack cocaine. Biggs also testified that when McGee said “he definitely goin’ to come through today, get all his B licks today,” “B-licks” referred to heroin. In addition to interpreting drug jargon, Biggs’s testimony included explanations of numerous statements in intercepted conversations between the appellants and Leonard Miller," }, { "docid": "3476781", "title": "", "text": "the testimony on relevance grounds is without merit. We have consistently upheld prosecutors’ practice of calling expert witnesses to discuss common practices of the drug trade in cases of drug dealing. See, e.g., United States v. Morris, 576 F.3d 661, 673-74 (7th Cir.2009); Upton, 512 F.3d at 401 (discussing various cases related to the drug trade). During his expert testimony, Agent Labno described the characteristics of crack cocaine, the quantities of drugs that dealers typically possess for purposes of distribution, common prices for wholesale quantities of crack cocaine, and the meaning of certain industry code words. The topics he discussed were relevant to points at issue in Garrett’s trial. In a case, like this one, where the government was attempting to prove that the intercepted calls between Garrett and Hicks concerned the coordination of a drug deal, deciphering code words commonly used in the drug trade would undoubtedly “help the trier of fact to understand, the evidence or to determine a fact in issue.” Fed. R.Evid. 702. Information on the quantities, prices, and characteristics of crack cocaine served the same purpose. Understanding the drug’s characteristics would help the jury determine whether the substances presented at trial as belonging to Garrett were indeed illegal drugs, while testimony regarding the drug’s wholesale quantities and prices would assist the jury in deciding whether Garrett’s activities involved the distribution of drugs or simply drug possession. Whether Agent Labno was the proper person to offer this expert testimony is a separate question. As we have said, “Testimony runs the risk of being overly prejudicial when, as here, the expert witness was a law enforcement officer who was also involved in the investigation at issue.” Morris, 576 F.3d at 675. Our concern is that “the jury may attach undue weight to the officer’s testimony,” United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir.1994), and “unduly credit the witness’s fact testimony given his status as an expert,” Upton, 512 F.3d at 401 (overruled in part on other, unrelated grounds). The heightened reliability that jurors often attach to expert testimony could easily lead a juror to believe" }, { "docid": "22070919", "title": "", "text": "words in recorded calls FBI Special Agent Amado VegaIrizarry (“Vega”) testified at trial that he had been involved in the investigation of the conspiracy and in translating intercepted phone calls from Spanish to English. Vega identified various code words that callers had used and the English drug terms to which the words referred. On the third day of Vega’s testimony, Hector Espinoza objected on the grounds that Vega was testifying as an expert. The district court overruled Hector Espinoza’s objections, holding that Vega was not testifying as an expert, but stated that if he were, he nonetheless had “the necessary expertise to be able to give this testimony in light of his experience in the law enforcement area.” On appeal, Hector Espinoza maintains that the district court abused its discretion because Vega’s testimony “crossed the line” from lay to expert opinion testimony, citing United States v. Griffith, 118 F.3d 318, 321 (5th Cir.1997) (stating that “[djrug traffickers’ jargon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony”), and that Vega was not qualified to testify as an expert on the subject of drug dealers’ jargon or code words. The government replies that Vega’s testimony was admissible pursuant to Federal Rule of Evidence 701, which provides: [i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. We agree. Vega’s extensive participation in the investigation of this conspiracy, including surveillance, undercover purchases of drugs, debriefings of cooperating witnesses familiar with the drug negotiations of the defendants, and the monitoring and translating of intercepted telephone conversations, allowed him to form opinions concerning the meaning of certain code words used in this drug ring based on his personal perceptions. We therefore hold that Vega’s testimony was admissible pursuant to Rule 701" }, { "docid": "3041128", "title": "", "text": "that specialized knowledge.” Oriedo, 498 F.3d at 603 (holding that different agent in Oriedo, who had found plastic baggies with the corners cut in defendant’s hotel room, testified in expert capacity when informing the jury that this is how crack cocaine is packaged for distribution); see also Tribble v. Evangelides, 670 F.3d 753, 758-59 (7th Cir.2012) (explaining that witness, who summarized her experiences and used her specialized knowledge to guide the jury to a conclusion, testified in an expert capacity); United States v. York, 572 F.3d 415, 420 (7th Cir.2009) (interpreting drug jargon requires expert testimony where the witness is relying on his prior experience in drug investigations to explain the hidden meaning of words). Christian contends on appeal that Agent Manns’ expert testimony was not helpful in assisting the jury because a layperson needs no expert assistance to understand how one would have to move his arms to pull something out of his waistband. Expert testimony must be helpful to the jury to be admissible. United States v. Winbush, 580 F.3d 503, 510-11 (7th Cir.2009) (citing Fed.R.Evid. 702). In other words, a witness should not be allowed to put an “expert gloss” on a conclusion that the jurors should draw themselves. See York, 572 F.3d at 423 (“‘Interpretations’ of unambiguous words or phrases that are plainly within the jury’s understanding are unlikely to be admissible under Rule 702.”) (quotations omitted). “[Ejxpert testimony does not assist where the jury has no need for an opinion because it easily can be derived from common sense, common experience, the jury’s own perceptions, or simple logic.” 29 Charles Alan Wright & Victor James Gold, Federal Practice & Proce dure § 6264 (1997); see also Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 602-03 (7th Cir.2011). Although at first glance, Agent Manns’ expert testimony that Christian’s arm movements were consistent with tossing an object may appear to be a matter of common sense, a more deliberate consideration of the testimony suggests otherwise. What might seem like innocuous conduct to an untrained jury, might, to the trained eye, be indicative of criminal activity. See" }, { "docid": "23179924", "title": "", "text": "bar, there was reliable evidence that Hoffman and Gassiraro spoke in a code, for example, using terms such as “six cases of wine” to connote “six. kilograms of cocaine.” The district court found that Assarian possessed “specialized knowledge” anent the drug trade such as would assist the jury in deciphering the intercepted conversations, both as to the coded terminology and as to the more conventional argot of narcotics traffic (e.g., defining words such as “rock” and “fluff”). Therefore, Assarian was allowed to state his opinion as to the meaning of these otherwise obscure phrases. We cannot say that this was error. Expertise is not necessarily synonymous with a string of academic degrees or multiple memberships in learned societies. Assari-an was a veteran DEA agent who had worked in law enforcement for some twelve years, much of it as a narcotics agent. He had participated in hundreds of investigations. He had specialized police training and extensive practical experience in the field. To be sure, he had written no texts and had no formal schooling in the cocaine trade. But, hard-core drug trafficking scarcely lends itself to ivied halls. In a rough-and-ready field such as this, experience is likely the best teacher. Cf. Grain Dealers Mutual Insurance Co. v. Farmers Union Cooperative Elevator and Skipping Ass’n, 377 F.2d 672, 679 (10th Cir.1967) (construction man familiar with grain elevators allowed to testify as to cause of damage to elevator; court stated that “[practical experience may be the basis of qualification”). Under these circumstances, permitting a street-wise savant such as Assarian to voice his opinions did not amount to an abuse of discretion. We find, too, that the subject matter lent itself sufficiently well to expert testimony. Lay jurors cannot be expected to be familiar with the lexicon of the cocaine community. Several courts have held that, in the trial judge’s discretion in an appropriate case, interpretation of codes and jargon used in the drug trade can be supplied through one experienced in the field. See, e.g., United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct." }, { "docid": "3476780", "title": "", "text": "implicating other individuals in criminal activity in the hopes that his cooperation with law enforcement officials will result in a more favorable prosecution for him. Agent Labno testified that Garrett consented to a search of his phone as an act of cooperation. Garrett’s testimony that he was not cooperating does not transform Agent Labno’s reasonable account into an improbable one. It simply forced the district court to decide which party’s testimony to credit. Since Agent Labno’s version of events was not improbable, the district court did not clearly err in crediting Agent Labno’s testimony over Garrett’s and we leave the district court’s findings undisturbed. B. No Error in Allowing Agent Lab-no to Testify as Fact and Opinion Witness Garrett next argues that the district court should not have admitted expert testimony from Agent Labno at trial because it was irrelevant and improperly bolstered the government’s case. Our review of the district court’s decision to admit expert testimony is for abuse of discretion. United States v. Upton, 512 F.3d 394, 401 (7th Cir.2008). Garrett’s objection to the testimony on relevance grounds is without merit. We have consistently upheld prosecutors’ practice of calling expert witnesses to discuss common practices of the drug trade in cases of drug dealing. See, e.g., United States v. Morris, 576 F.3d 661, 673-74 (7th Cir.2009); Upton, 512 F.3d at 401 (discussing various cases related to the drug trade). During his expert testimony, Agent Labno described the characteristics of crack cocaine, the quantities of drugs that dealers typically possess for purposes of distribution, common prices for wholesale quantities of crack cocaine, and the meaning of certain industry code words. The topics he discussed were relevant to points at issue in Garrett’s trial. In a case, like this one, where the government was attempting to prove that the intercepted calls between Garrett and Hicks concerned the coordination of a drug deal, deciphering code words commonly used in the drug trade would undoubtedly “help the trier of fact to understand, the evidence or to determine a fact in issue.” Fed. R.Evid. 702. Information on the quantities, prices, and characteristics of" }, { "docid": "23688551", "title": "", "text": "expert has reliably applied the principles and methods to the facts of the case.” Id. If a “witness testifies as both a fact witness and an expert witness in the same trip to the witness stand ... the government and the court must take some special precautions to make clear for the jury when the witness is relying on his expertise and when he is relying only on his personal knowledge of the case.” United States v. York, 572 F.3d 415, 421 (7th Cir.2009). We have “recognized that in the context of drug conspiracies, ‘[d]rug traffickers’ jargon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony.’ ” Akins, 746 F.3d at 599 (quoting United States v. Griffith, 118 F.3d 318, 321 (5th Cir.1997)). Our sister circuits have also “consistently upheld the use of expert testimony to explain both the operations of drug dealers and the meaning of coded conversations about drugs.” United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir.2003); see also, e.g. United States v. Freeman, 498 F.3d 893, 901-02 (9th Cir.2007) (holding that expert’s testimony on “interpretation of encoded drug jargon was admissible”); United States v. Ceballos, 302 F.3d 679, 686 (7th Cir.2002) (holding that DEA agents with extensive drug investigation experience were properly qualified as experts in drug code). Because “drug dealers often camouflage their discussions” with code words, “expert testimony explaining the meanings of code words may ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” Dukagjini, 326 F.3d at 52 (citing Fed.R.Evid. 702). The district court properly qualified Lockhart as an expert under Rule 702 based on his extensive experience as a drug investigator. Under Rule 702, a witness may be qualified as an expert based upon “knowledge, skill, experience, training, or education.” We have never required formal educational credentials to qualify a witness as an expert, and even “the advisory committee notes to Rule 702 state that experience in the field can be the predominant, if not the" }, { "docid": "23673655", "title": "", "text": "the fact that there were no other nouns to which the pronouns “it” and “them” referred and therefore the pronouns were ambiguous. In Rollins, a DEA agent testified about his interpretation of intercepted phone conversations between two alleged drug dealers. See id. In several instances, the drug dealers used the word “it” and other words, which the agent testified referred to cocaine. See id. We held that the use of the word “it” constituted drug code language in that case and as such was the proper subject of expert testimony. See id. Here, as in Rollins, we hold that the district court did not abuse its discretion in permitting Agent Kress and Agent Styron to offer expert testimony on the meaning of pronouns such as “it” and “them” because the pronouns were used in an ambiguous manner and because of the agents’ vast experience with drug code language. Further, this testimony was helpful to the jurors because “[a]s a result of [the agents’ expert] testimony, the jury was able to apply to the evidence alternative theories of which they ordinarily would not have been aware.” United States v. Sanchez-Galvez, 33 F.3d 829, 832 (7th Cir.1994). Finally, our conclusion regarding the admissibility of the agents’ testimony is bolstered by the holding in Nersesian, whereby the court affirmed the district court’s acceptance of a DEA agent’s testimony that “the excessive use of pronouns” signaled a drug-related conversation. See 824 F.2d at 1307-08. S. Apprendi The defendants’ next argument is that their sentences should be reversed because § 841 unconstitutionally treats drug quantity as a sentencing factor, rather than as an element of the offense, in violation of the Fifth and Fourteenth Amendments as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We rejected an identical argument in United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir.), cert. denied, — U.S. —, 122 S.Ct. 203, 151 L.Ed.2d 144 (2001) and held that the sentencing provisions of § 841 were constitutional and we decline the defendants’ invitation to reconsider our position on that issue." }, { "docid": "20529003", "title": "", "text": "witness testimony. It provides evidence of the case-specific meaning of the code words used by members of Mockabee’s cocaine-distribution organization. That testimony would have convinced the jury that Drake was involved in the conspiracy even if Detective Clark’s expert testimony had been excluded. Drake also argues that Detective Clark rendered inadmissible opinions as to her state of mind. Federal Rule of Evidence 704(b) prohibits an expert from testifying about the defendant’s “mental state or condition that constitutes an element of the crime.” “Although an expert may not testify or opine that the defendant actually possessed the requisite mental state, he may testify in general terms about facts or circumstances from which a jury might infer that the defendant intended to distribute drugs.” United States v. Winbush, 580 F.3d 503, 512 (7th Cir.2009). “An important factor in determining whether an expert violated Rule 704(b) is the degree to which the expert refers to the specific defendant’s intent, and expert testimony is proper as long as it leaves for the jury the ultimate conclusion that the defendant intended to distribute controlled substances.” Id. (citations omitted). Although Detective Clark appears to have been simultaneously testifying as both an expert and a lead case agent, he never directly testified that Drake intentionally joined the drug conspiracy—-which is all that our precedent prohibits. See, e.g., Collins, 715 F.3d at 1038 (expert testimony properly admitted where officer’s testimony was not based on “some special familiarity with the workings of [the defendant’s] mind”) (internal quotation marks omitted); United States v. Are, 590 F.3d 499, 513 (7th Cir.2009) (“We affirmed the district court’s decision to allow the expert testimony because the officers testified that their opinions were based on their knowledge of ‘common practices in the drug trade’ and not on ‘some special familiarity with the workings of [the defendant’s] mind.’ ”) (citations omitted); United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir.1994) (concluding there was no Rule 704(b) violation where an expert testified “that a certain pattern of conduct evinces a particular kind of criminal activity. On the contrary, such testimony is considered quite helpful in" }, { "docid": "19787255", "title": "", "text": "that jurors are not well versed in the behavior of drug dealers.”). But this presupposes that the terms to be interpreted are in fact drug code and not words “that the jury can evaluate for itself.” United States v. de Soto, 885 F.2d 354, 361 (7th Cir.1989). “Interpretations” of unambiguous words or phrases that are plainly within the jury’s understanding are unlikely to be admissible under Rule 702; they would not “assist the trier of fact to understand the evidence or to determine a fact in issue.” See United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir.1988). Instead, they would merely put an expert gloss on a conclusion the jury should draw. In Ceballos, 302 F.3d at 687-88, we upheld agents’ interpretations of simple pronouns such as “it,” “them,” and “both” as referring to methamphetamine shipments, in part, because defendants used those pronouns ambiguously in their conversation (they mentioned no other nouns to which the pronouns could refer). Given this ambiguity, we concluded that the agents’ experience interpreting drug code language would be helpful to the jury. Id. at 688; see also Rollins, 862 F.2d at 1292 (upholding agent’s interpretation of “t-shirts,” “stuff,” and “it” as code words referring to cocaine). Here, the terms “six,” “nine,” “five dollar,” and “fifty-five” were facially ambiguous. York told Mitchell, “That shit costs ... six ... ”, and then later said, “That’s nine right, that’s nine like that, you wait on it.” The question is, six and nine of what? Though York’s reference to “cost” gives the jury some indication that “six” refers to payment, the term “six” was still sufficiently ambiguous (does it mean money or something else and how much?). The references to “five dollar” and “fifty-five” were equally unclear. Given our decisions in Ceballos and Rollins, we have no qualms concluding that Brown’s interpretation of these vague terms would assist the jury. 4. Foundation for Agent Brown’s Interpretations But that alone doesn’t mean Brown’s testimony was admissible — Rule 702 requires more than a qualified expert and helpful testimony. Brown must have had a reliable basis for opining that words" }, { "docid": "9790436", "title": "", "text": "Rubbermaid Inc., 20 F.3d 15, 21 (1st Cir.1994) (quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988)) (internal quotation omitted). We have admitted expert testimony regarding the operation of criminal schemes and activities in a variety of contexts, finding such testimony helpful to juries in understanding some obscure or complex aspect of the crime. See Echeverri, 982 F.2d at 680 (expert may “identify an otherwise inscrutable document as a drug ledger and explain its contents”); Castiello, 915 F.2d at 3 (statement phrased in drug world jargon “was not so readily comprehensible to the layman that it could not bear elucidation by a law enforcement agent knowledgeable in the ways of the drug world”); United States v. Angiulo, 897 F.2d 1169, 1189 (1st Cir.1990) (expert testimony that defendants played certain roles in criminal activities is helpful to jury because of the crime family’s “extensive criminal organization ..., the complexity of the interrelationships within the organization, and the use of criminal jargon by defendants in their conversations”); Lamabtina, 889 F.2d at 1194 (expert may translate the meaning of jargon used in conversation related to a loansharking transaction that jury “would probably have been at a loss to understand”); United States v. Ladd, 885 F.2d 954, 959-60 (1st Cir.1989) (expert may testify that type of packaging and number of packages of drugs is consistent with distributive intent, not personal use, because “jurors are not expected to be familiar with the ... workings of the heroin community”); United States v. Angiulo, 847 F.2d 956, 973-75 (1st Cir.1988) (expert testimony that defendants were close associates of organized crime family assisted jury in light of family’s complex structure); United States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir.1986) (to help jurors understand the significance of an instrument called a “sifter-grinder” found in defendant’s possession, expert may testify that it is used to adulterate cocaine); Hensel, 699 F.2d at 38 (since “smuggling tons of marijuana is a com plex matter,” expert testimony about drug smugglers’ methods would help the jury understand the evidence). This case is distinguishable. Unlike those cases, here the" }, { "docid": "20511089", "title": "", "text": "v. Hermanek, 289 F.3d 1076, 1093 (9th Cir.2002). Rather, Rule 702 requires district courts to assure that an expert’s methods for interpreting the new terminology are both reliable and adequately explained. See id. at 1094. “[Vjague and generalized” explanations are not sufficient; rather, the officer must explain how he applies his “knowledge to interpret particular words and phrases used in particular conversations.” Id. at 1094-95. For example, an agent may permissibly apply his knowledge of the drug manufacturing process to interpret words referring to that process or apply his familiarity with a particular method for generating code words to decode their meaning. See, e.g., United States v. Reed, 575 F.3d 900, 923 (9th Cir.2009) (approving expert testimony interpreting terms the agent “knew to refer to the reagent used in the POP manufacturing process”); United States v. Decoud, 456 F.3d 996, 1013-14 & n. 6 (9th Cir.2006) (approving the agent’s explanation that he interpreted “diznerty” as slang for “dirty” based on his familiarity with a common speaking style that creates slang versions of specific words by adding “e” or “ez”). A law enforcement officer testifying as an expert in drug jargon may also testify as a lay witness if he was involved in the investigation. See United States v. Freeman, 498 F.3d 893, 904 (9th Cir.2007). Such dual capacity testimony raises additional concerns, however: an agent’s status as an expert could lend him unmerited credibility when testifying as a percipient witness, cross-examination might be inhibited, jurors could be confused and the agent might be more likely to stray from reliable methodology and rely on hearsay. See id. at 902-03 (citing United States v. Dukagjini, 326 F.3d 45 (2d Cir.2003)); see also United States v. York, 572 F.3d 415, 425 (7th Cir.2009); United States v. Flores-De-Jesus, 569 F.3d 8, 21 (1st Cir. 2009); United States v. Conner, 537 F.3d 480, 488 (5th Cir.2008). Because these risks are reduced “[i]f jurors are aware of the witness’s dual roles,” the jury must be instructed about “what the attendant circumstances are in allowing a government ease agent to testify as an expert.” Freeman, 498 F.3d" }, { "docid": "3041127", "title": "", "text": "arm movements. Although Agent Manns was testifying as a fact witness — he was simply describing what he had observed — the next question crossed the line into eliciting testimony wrapped in the aura of special reliability that surrounds expert testimony: “Based upon your experience encountering armed subjects in your approximate 20-year career, the significance of those arms going up and not being able to see the hands, was what?” Agent Manns answered, “That is a movement I have seen before in my career on occasions wherein the defendant had a gun in his waistband. It was the same movement....” Agent Manns had earlier testified on direct that in light of his 20 years of law enforcement experience, he had never found a firearm laying in a field unattended, supporting his belief that the gun found belonged to Christian. When eliciting this testimony, the government wasn’t merely seeking lay opinion testimony; the government was asking Agent Manns to bring his experience to bear on his personal observations and “ma[k]e connections for the jury based on that specialized knowledge.” Oriedo, 498 F.3d at 603 (holding that different agent in Oriedo, who had found plastic baggies with the corners cut in defendant’s hotel room, testified in expert capacity when informing the jury that this is how crack cocaine is packaged for distribution); see also Tribble v. Evangelides, 670 F.3d 753, 758-59 (7th Cir.2012) (explaining that witness, who summarized her experiences and used her specialized knowledge to guide the jury to a conclusion, testified in an expert capacity); United States v. York, 572 F.3d 415, 420 (7th Cir.2009) (interpreting drug jargon requires expert testimony where the witness is relying on his prior experience in drug investigations to explain the hidden meaning of words). Christian contends on appeal that Agent Manns’ expert testimony was not helpful in assisting the jury because a layperson needs no expert assistance to understand how one would have to move his arms to pull something out of his waistband. Expert testimony must be helpful to the jury to be admissible. United States v. Winbush, 580 F.3d 503, 510-11 (7th" } ]

[ { "docid": "2783812", "title": "", "text": "LEVENTHAL, Circuit Judge: This is an appeal from judgments entered on the conviction of appellant on one count of assault with a dangerous weapon and three counts of assaulting a member of the police force with a dangerous weapon. The question raised is whether and to what extent the be havior of appellant in resisting arrest permitted the imposition of consecutive sentences. 1. Limitation of Single Punishment for Single Act of Assault We first consider appellant’s complaint that consecutive sentences, two to six years on each count, were imposed following defendant’s conviction for assault on Otis Fiekling (Count 2), and Edward F. Davis (Count 4) with a dangerous weapon knowing them to be members of the Police Department. The fact situation is that these police officers, having been informed that one Whittington had been shot by appellant an hour earlier, went to a certain two-family dwelling where appellant sought refuge, identified themselves and announced they had come to arrest appellant. One Lawrence Lewis emerged from the second-floor apartment and said only he and his girl friend were in the apartment. Detective Fiekling remained in the first-floor hallway and continued to call for appellant to come down. Moments later appellant, who had announced he was coming out of the apartment and started down the stairs, fired a gun in the direction of Fiekling and Sergeant Davis as they were standing in the first-floor hallway. Appellant ran back inside the apartment and the officers sought cover. Under the doctrine of Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), the imposition of these consecutive sentences is invalid and the case must be remanded for resentencing. This was conceded by the Government, and we conclude that the concession was required. Ladner, like the case at bar, involved a single discharge of a weapon, but in that case Ladner, who used a shotgun, actually wounded two federal officers. The circuit court of appeals had held that there was an assault on each officer, and hence separate offenses. Ladner v. United States, 230 F.2d 726 (5th Cir. 1956). The Government" } ]

[ { "docid": "21029848", "title": "", "text": "in a car crash caused by the defendant’s single act of striking the steering wheel. This court rejected an almost identical argument based on Ladner and Theriault in United States v. Kazenbach, 824 F.2d 649 (8th Cir.1987). In Kazenbach the defendant, a federal prison inmate, scuffled with three prison guards. He swung at one, bit the, other, scratched the third, and attempted to bite and spit at all three (the inmate had AIDS). Id. at 650. Katzenbach was convicted of three counts of assault. He appealed the trial court’s denial of his motion to dismiss two of the three counts for multiplicity, “argu[ing] that his struggle with - the three guards was a single altercation which constituted a single assault offense instead of three.” Id. at 651. Thus, he contended, like the defendants in Ladner and Theriault, he should have been charged only with a single assault. We rejected this line of reasoning, finding Katzenbach’s case analogous to United States v. Wesley, 798 F.2d 1155 (8th Cir.1986) and United States v. Hodges, 436 F.2d 676 (10th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2214,29 L.Ed.2d 684 (1971). In Wesley and Hodges, the defendants, while involved in struggles with federal prison guards, struck each of them separately, and were charged and convicted of several violations of 18 U.S.C. § 111. The defendants in both cases contended that they should have each been charged with only one assault, because they were engaged in one continuous course of conduct toward the officers. In each case, the court disagreed, holding that the assaults were separate acts rather than multiple injuries caused by one act, and that the indictment, therefore, was not multiplieitous. As the Tenth Circuit stated in Hodges: The present case is certainly not an instance of a single blow by Hodges, for example, resulting in an “assault” on five different penal officers. Rather, Hodges gave each one of the five individual attention, and in succession he did forcibly assault and resist each of the five, all of which constitutes five violations of 18 U.S.C. § 111, not one. Hodges, 436.F.2d at" }, { "docid": "17154720", "title": "", "text": "are based on the same conduct, a single, continuing episode of resistance, and are therefore multiplicious. He asserts Count III, the count producing the lesser punishment, should be vacated. “Claims of multiplicity are subject to de novo review.” United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir.), cert. denied, — U.S. -, 116 S.Ct. 2502, 135 L.Ed.2d 193 (1996). “ ‘[M]ultiplieity refers to multiple counts of an indictment which cover the same criminal behavior.’ ” United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir.) (quoting United States v. Dashney, 937 F.2d 532, 540 n. 7 (10th Cir.1991)), cert. denied, 513 U.S. 826, 115 S.Ct. 93, 130 L.Ed.2d 44 (1994). “Multiplicious counts are improper because they allow multiple punishments for a single criminal offense.” United States v. Wood, 57 F.3d 913, 919 (10th Cir.1995). In evaluating multiple § 111 charges for multiplicity, we look to the “number of distinguishable acts of assault rather than the number of federal officers assaulted.” United States v. Rivera Ramos, 856 F.2d 420, 422 (1st. Cir.1988), cert. denied, 493 U.S. 837, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989). The evidence must show “the actions and intent of [the] defendant constitute distinct successive criminal episodes, rather than two phases of a single assault.” Smith v. United States, 418 F.2d 1120, 1121 (D.C.Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235 (1969). It appears from the record the charges are based on two different events, separated in both time and location. Count II is premised on Mr. Segien’s initial struggle with Mr. Purdue. After this scuffle, prison officers placed Mr. Segien under control and walked him to the Lieutenant’s office, approximately fifty yards away. Then, when they arrived at the Lieutenant’s office, Mr. Segien committed the actions upon which Count III rests. Though, admittedly, Mr. Segien’s fight with Mr. Purdue and his later threat and expectoration were certainly related, other circuits have upheld multiple § 111 charges premised on actions involving a single officer where the underlying conduct was equally connected, if not more so. See United States v. Moreno, 630 F.2d 338" }, { "docid": "14560342", "title": "", "text": "charge and will not be reversed unless the charge fails accurately to reflect the law.’ ” United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988) (per curiam) (citation omitted). Accordingly, we review the trial court’s jury instruction for an abuse of discretion. Id. Raising a mixed question of law and fact, we review de novo the district court’s application of U.S.S.G. § 2A2.2. A. Duplicitous indictments implicate the protections of the Sixth Amendment guarantee of jury unanimity. An indictment is duplicitous if “it joins in a single count two or more distinct and separate offenses.” United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.1981). “The vice of duplicity is that a jury may find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense.\" Id. (citation omitted); see also United States v. Washington, 127 F.3d 510, 513 (6th Cir.1997). By collapsing separate offenses into a single count, duplicitous indictments thereby prevent the jury from convicting on one offense and acquitting on another. See id. Duplicitous charges, however, are not necessarily fatal to an indictment. See Robinson, 651 F.2d at 1194. A defendant may move, as did Hood, to require the government to \"elect either the count or the charge within the count upon which it will rely,\" or the court may \"particulariz[e] the distinct offense charged in each count\" in its jury instruction. Id. Moreover, a specific unanimity instruction is generally not required unless: \"1) a count is extremely complex; 2) there is variance between the indictment and the proof at trial; or 3) there is a tangible risk of jury confusion.\" United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992). Additionally, a single act of assault against multiple officers constitutes one offense, and therefore does not implicate Six±h Amendment prohibitions on duplicity. See Ladner v. United States, 358 U.S. 169, 176, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (holding, under the predecessor of § 111, that two federal officers wounded by a single shot constituted a single assault); United States v. Beckner, 983 F.2d 1380, 1386 n." }, { "docid": "6125923", "title": "", "text": "F.3d 1014, 1022 (10th Cir.1997), abrogation on other grounds recognized by United States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir.2003); see also United States v. Shumpert Hood, 210 F.3d 660, 663 (6th Cir.2000); Smith v. United States, 418 F.2d 1120, 1121 (D.C.Cir.1969). Courts look to a variety of factors to determine if a series of acts constitute more than mere phases of a single assault and so can support multiple assault charges. See, e.g., Segien, 114 F.3d at 1022 (evidence of “different events, separated in both time and location”); United States v. Hodges, 436 F.2d 676, 678 (10th Cir.1971) (assailant gave each officer “individual attention, and in succession”). Here, in sharp contrast to Ladner, the district court determined that Thomas committed multiple acts — both verbally threatening Officer Richards and punching her in the face. Moreover, the Government offered evidence that established significant intervening acts between the verbal threat and the physical assault. After the verbal threat, Officer Richards radioed Officer Wassick for assistance. Then, after Thomas pushed her, Officer Richards sounded a general assistance alarm. Thomas testified that he understood the significance of both of these assistance calls. After both of these calls for assistance, Thomas physically assaulted Officer Richards. Thus between the times of Thomas’s two assaults of Officer Richards (one verbal and one physical), three events intervened — (1) Officer Richards radioed Officer Wassick for assistance, (2) Thomas pushed Officer Richards, and (3) Officer Richards then put out a general assistance alarm. These three intervening events provide sound support for the conclusion that Thomas’s assaults were distinct. While Thomas verbally assaulted Officer Richards in reaction to her search of his cell, he physically assaulted her in reaction to her refusal to be deterred by his push and her two calls for assistance. Thomas’s deliberate decision to escalate the confrontation in the face of new factual circumstances substantiates the propriety of charging two distinct assaults. For this reason, the indictment was not multiplicitous. III. Next, Thomas argues that the district court improperly sustained hearsay objections to his testimony, thereby deny ing him the ability to adequately present" }, { "docid": "22299846", "title": "", "text": "not even refer to assaulting officials. The casual remark of the Congressman cannot be taken as definitive of the scope and content of section 113. Because section 113(a) does not include a separate enhancement provision, the district court’s consecutive sentence under Count Five was proper. Shaw also claims that Count Four, charging him with assault with intent to murder, is multiplicitous to Count Two which charged him with first degree murder, because one discharge of a firearm should result in one punishment, even if two people are hit by the bullet. The authority relied upon by Shaw, Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) does not lead to the result he urges. Ladner held that a single discharge of a shotgun which injured two persons constituted only a single violation of 18 U.S.C. § 111. The statute, however, penalized only assaults on federal officers, and there is an established, specific congressional intent making one episode of interference with federal officers a single offense, regardless of the number of injuries. There is no similar congressional directive here. A single act may cause more than a single consequence; therefore, a defendant may be convicted of two separate offenses arising from a single act so long as each requires proof of a fact not essential to the other. United States v. Chrane, 529 F.2d 1236, 1238 (5th Cir.1976). It is enough if there is one element required to prove the offense charged in one count which is not required to prove the other. United States v. Cantu, 557 F.2d 1173, 1176 (5th Cir.), cert. denied, 434 U.S. 1063, 98 S.Ct. 1236, 55 L.Ed.2d 763 (1977). A conviction for murder under 18 U.S.C. § 1111 requires a killing of a human being with premeditation and malice aforethought. Obviously, there is no requirement of a killing or premeditation to support a conviction for assault. Here Shaw is charged under two discrete federal statutes with causing two distinct types of harm to two different persons. As we stated in United States v. Rodriguez, 585 F.2d 1234, 1249 (5th Cir.1978)," }, { "docid": "2646207", "title": "", "text": "defendant explicitly request this very instruction, but “he did so as a matter of sound trial strategy.” Id. at 76. And, as in Herrera, any error in the instruction did not taint “the integrity of the judicial process” so as to require a new trial on the basis of an instruction that defendant himself requested. Id. (internal citation omitted). In fact, conviction for the lesser included felony offense was not error at all. The Federal Rules of Criminal Procedure expressly anticipate that a “defendant may be found guilty of an offense necessarily included in the offense charged.” Fed. R.Crim.P. 31(c); see also Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Here, each and every element of § 111(a), forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with an officer, is incorporated within § 111(b), forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with an officer using a deadly or dangerous weapon. Because each element of § 111(a) was necessarily charged in the indictment under § 111(b), Hopkins’ Fifth Amendment claim is without merit. V. Next, Hopkins argues that his two 18 U.S.C. § 111(a) convictions are duplicative and that one of them should therefore be set aside. Hopkins correctly notes that a single act may only give rise to a single conviction. United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.1993). However, the Supreme Court has specifically held that while a single shot fired at multiple federal officers constitutes only a single offense, multiple shots may support multiple convictions. Ladner v. United States, 358 U.S. 169, 178 & n. 6, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). The evidence presented by the government shows that Hopkins waved his gun at the officers at several points during the chase and shot at them on at least two occasions, both as he drove and as he was stopped in Montgomery County. Witness Nadia Richards testified specifically that after Hopkins hit the school bus, he “fired more than twice” at the officers. Thus, Hopkins engaged in more than one act of forcibly assaulting and resisting a" }, { "docid": "6103588", "title": "", "text": "correct in asserting that the appropriate unit or units of prosecution under 18 U.S.C. § 111 must be determined by the number of distinguishable acts of assault rather than the number of federal officers assaulted. In Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), the petitioner, Ladner, had fired a shotgun into a car containing two federal officers. He was convicted of two violations of the statutory predecessor to section 111, and he was sentenced to the maximum punishment of ten years imprisonment on each conviction, the two sentences to run consecutively. After serving his first ten-year prison term, Ladner moved the district court under 28 U.S.C. § 2255 (1971) to correct the second, consecutive sentence. According to Ladner, he had fired only one shotgun blast into the car and it was the pellets from this single discharge that had wounded both officers. Ladner argued that under these circumstances he was guilty of but one assault and subject to only one punishment. Finding the legislative intent behind section 111 to be ambiguous and applying the rule of lenity, the Supreme Court agreed with Lad-ner, holding that a single discharge of a shotgun would constitute only one violation of section 111 no matter how many federal officers were affected. Ladner, 358 U.S. at 178, 79 S.Ct. at 214. See United States v. Hodges, 436 F.2d 676, 678 (10th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). Given the Court’s interpretation of section 111, the question in evaluating defendant’s claim of multiplicity is “whether there is more than one act causing injury, not whether more than one officer is injured by the same act.” United States v. Wesley, 798 F.2d 1155, 1156-57 (8th Cir.1986). See also United States v. Theriault, 531 F.2d 281, 285 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). This Circuit has ruled that a defendant who pleads guilty may not later contest the factual and theoretical foundations of the indictment to which he has pled. Kerrigan v. United States, 644 F.2d" }, { "docid": "14135183", "title": "", "text": "944, 91 S.Ct. 955, 28 L.Ed.2d 226 (1971). In all future criminal cases of this nature, when unusual visible security measures are utilized before a jury, we will require that the district judge state for the record, outside the jury’s presence, the reasons for such action. Counsel, or the defendant himself in appropriate cases, should be given an opportunity both to respond to the reasons presented and to persuade the judge that such measures are unnecessary. A formal evidentiary hearing may not be required, but if the factual basis for the extraordinary security is controverted, the taking of evidence and finding of facts may be necessary. Our reason for promulgating this procedure is to ensure that this court can readily determine whether an abuse of discretion is shown. United States v. Samuel, 431 F.2d 610, 615 (4th Cir.), district court affirmed after remand, 433 F.2d 663 (4th Cir. 1970). V. Sentencing Appellant was sentenced to two consecutive three year terms of imprisonment, one for assaulting Schlonga, the other for assaulting Herberger. Both of the alleged assaults arose out of a single act by appellant: hurling himself over the front seat of the vehicle and into the steering wheel, thereby causing the accident and injuries to the two officers. It is well settled that in such circumstances a defendant can be convicted for only one assault under 18 U.S.C. § 111. Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (involving statutory predecessor to § 111). The test is whether there is more than one act resulting in the assaults, not whether more than one federal officer is injured by the same act. See United States v. Williams, 446 F.2d 1115 (5th Cir. 1971). In the instant case the injuries to Schlonga and Herberger were the result of one act by appellant. Accordingly, it was error to sentence him for two separate offenses under section 111. Cf. United States v. Sahley, 526 F.2d 913, 918-19 (5th Cir. 1976). Therefore, appellant’s conviction is affirmed as to the merits of the appeal and as to the sentence pursuant" }, { "docid": "14560344", "title": "", "text": "1 (6th Cir.1993) (asserting that we cannot separately sentence defendants for injuring multiple federal officers when injuries are caused by single act); United States v. Theriault, 531 F.2d 281, 285 (5th Cir.1976) (\"The test is whether there is more than one act resulting in the assaults, not whether more than one federal officer is injured by the same act.\"). In differentiating whether an attack against multiple officials is a single assault or multiple assaults, federal courts have inquired whether officers were injured by \"distinct successive criminal episodes, rather than two phases of a single assault.\" United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997) (internal quotations and citation omitted); accord United States v. Lewis, 435 F.2d 417, 420 (D.C.Cir.1970) (citation omitted). Appellant Hood contends that her alleged conduct coiistituted \"two separate and distinct offenses under is U.S.C. § 111.\" It is on this presupposition that she asserts that in instructing the jury it could convict if she assaulted Swinson or Bolz, the district court allowed the jury to convict without the unanimity required by the Sixth Amendment. We conclude, however, that the district court did not abuse its discretion in instructing the jury it could convict on the basis of a single as-saultive event. In Ladner, the Supreme court held that a defendant committed a single act of assault, as opposed to multiple separate assaults, when he fired a single shot from a shotgun and wounded two officers. See 358 U.S. at 176, 79 S.Ct. 209. Even more similar to this case is the D.C. circuit's holding in Lewis. While both officials were actually wounded in Ladner, in Lewis, the defendant fired one shot at two officers, and missed both of them. See 435 F.2d at 419. The court held that this conduct constituted a single assaultive act, rather than individual assaults against each officer. See id. Similarly, here, there was only one as-saultive event. Bols conceded that Hood did not lunge at him or Swinson, and there is no evidence that she made any aggressive or threatening statements toward either of them. Moreover, Hood has not pointed the" }, { "docid": "9350597", "title": "", "text": "risk of jury confusion.” United States v. Sand-erson, 966 F.2d 184, 187 (6th Cir.1992) (citing United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir.1988)). A defendant charged with violating § 111 is not entitled to a specific unanimity instruction unless the defendant’s conduct constituted “two separate and distinct offenses,” not merely “two phases of a single assault.” United States v. Hood, 210 F.3d 660, 663 (6th Cir.2000), quoting United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997). None of these conditions was met in the case at bar; there was no instructional error and, obviously, no error in not requiring a special verdict. (As to the latter point, we note also that this court has observed that “[i]n general, special verdict forms are not favored and ‘may in fact be more productive of confusion than clarity.’ ” United States v. Wilson, 629 F.2d 439, 444 (6th Cir.1980) (quoting 8A Moore’s Federal Practice and Procedure § 31.02(3) at 31-9).) AFFIRMED. . \"While this Court has not yet addressed the question,” our Farrow opinion observed, \"other courts have concluded that § 111(a)(1) sets forth a 'general intent’ rather than a 'specific intent crime.' To establish general intent, the Government need not show that the defendant intended to injure a federal officer, but only 'the knowing commission of an act that the law makes a crime.' ” Id. at 187 n. 7 (citations omitted). . 18 U.S.C. § 17. provides: “(a) Affirmative defense. — It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. (b) Burden of proof. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence.” . See also United States v. Boone, 738 F.2d 763 (6th Cir.1984), a decision affirming the conviction of a man accused of violating 18 U.S.C." }, { "docid": "21029847", "title": "", "text": "“‘Multiplicity’ is the charging of a single offense in several counts.... ‘The vice of multiplicity is that it may lead to multiple sentences for the same offense.’” United States v. Kazenbach, 824 F.2d 649, 651 (8th Cir.1987) (quoting 1 Charles A. Wright, Fed. Pract. & Proc. § 142 at 469, 475 (1982)). Street contends that the indictment is mul-tiplieitous because his confrontation with Rangers Coe and Bisehoff was a single event that constituted one assault rather than two. He analogizes his case to Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) and United States v. Theriault, 531 F.2d 281 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). In Ladner the Court held an indictment multi-plicitous where the defendant was convicted under two counts of assaulting a federal officer by injuring two officers with a single shotgun blast. In Theriault the Fifth Circuit held an indictment multiplieitous where the defendant was convicted under two counts of assaulting a federal officer by injuring two officers in a car crash caused by the defendant’s single act of striking the steering wheel. This court rejected an almost identical argument based on Ladner and Theriault in United States v. Kazenbach, 824 F.2d 649 (8th Cir.1987). In Kazenbach the defendant, a federal prison inmate, scuffled with three prison guards. He swung at one, bit the, other, scratched the third, and attempted to bite and spit at all three (the inmate had AIDS). Id. at 650. Katzenbach was convicted of three counts of assault. He appealed the trial court’s denial of his motion to dismiss two of the three counts for multiplicity, “argu[ing] that his struggle with - the three guards was a single altercation which constituted a single assault offense instead of three.” Id. at 651. Thus, he contended, like the defendants in Ladner and Theriault, he should have been charged only with a single assault. We rejected this line of reasoning, finding Katzenbach’s case analogous to United States v. Wesley, 798 F.2d 1155 (8th Cir.1986) and United States v. Hodges, 436 F.2d 676" }, { "docid": "6125921", "title": "", "text": "“fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544. B. Thomas also argues that the district court plainly erred in failing to find the indictment was “ ‘multiplicitous,’ [in] that a single offense was charged in multiple — here, two — counts.” United States v. Goodine, 400 F.3d 202, 207 (4th Cir.2005). Multiplicitous indictments are invalid because they risk assigning “multiple punishments for the same crime.” Id. Thomas argues that because the events at issue lasted only thirty-three seconds and involved a single location and victim, they can support only a single assault. Thomas heavily relies on Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), in which the Supreme Court interpreted the statutory predecessor to 18 U.S.C. § 111. In Ladner, the Court rejected the view that “the wounding of ... two officers resulting] from a single discharge of the gun” constituted “two assaults.” Id. at 178, 79 S.Ct. 209. Rather, the Court held that a single shot fired at multiple officers constituted a single offense. Id.; see also United States v. Feola, 420 U.S. 671, 677-78, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (discussing Ladner ). Ladner remains good law. Courts have consistently applied Ladner to determine if a course of conduct warrants multiple assault charges by determining “whether there is more than one act resulting in the assaults, not whether more than one federal officer is injured by the same act.” United States v. Theriault, 531 F.2d 281, 285 (5th Cir.1976); see also United States v. Hopkins, 310 F.3d 145, 152 (4th Cir.2002) (because defendant “engaged in more than one act of forcibly assaulting ... a federal officer,” the indictment was not “duplicative”); United States v. Rivera Ramos, 856 F.2d 420, 422 (1st Cir.1988) (looking to “the number of distinguishable acts of assault”). An indictment may divide a course of conduct into separate assaults only when the Government demonstrates that “the actions and intent of [the] defendant constitute distinct successive criminal episodes, rather than two phases of a single assault.” United States v. Segien, 114" }, { "docid": "2646208", "title": "", "text": "claim is without merit. V. Next, Hopkins argues that his two 18 U.S.C. § 111(a) convictions are duplicative and that one of them should therefore be set aside. Hopkins correctly notes that a single act may only give rise to a single conviction. United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.1993). However, the Supreme Court has specifically held that while a single shot fired at multiple federal officers constitutes only a single offense, multiple shots may support multiple convictions. Ladner v. United States, 358 U.S. 169, 178 & n. 6, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). The evidence presented by the government shows that Hopkins waved his gun at the officers at several points during the chase and shot at them on at least two occasions, both as he drove and as he was stopped in Montgomery County. Witness Nadia Richards testified specifically that after Hopkins hit the school bus, he “fired more than twice” at the officers. Thus, Hopkins engaged in more than one act of forcibly assaulting and resisting a federal officer, and the district court properly found that Counts One and Two were not duplicative. VI. Hopkins further alleges that the district court erred in denying his post-trial motion for judgment of acquittal on his § 924(c) offense because the government failed to prove all of the elements of the charged offense. A. Hopkins first asserts that when the predicate offense to § 924(c) is separately charged in the indictment, it must be proven beyond a reasonable doubt for the § 924(c) conviction to stand. The indictment returned by the grand jury on Count III charged that Hopkins had used a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c), and alleged that this crime of violence was an 18 U.S.C. § 111(b) offense as set out in Counts One and Two of the indictment. Defendant therefore asserts that in order to convict him under 18 U.S.C. § 924(c), the jury was required to find that Hopkins had violated 18 U.S.C. § 111(b), and not merely the lesser" }, { "docid": "14560343", "title": "", "text": "Duplicitous charges, however, are not necessarily fatal to an indictment. See Robinson, 651 F.2d at 1194. A defendant may move, as did Hood, to require the government to \"elect either the count or the charge within the count upon which it will rely,\" or the court may \"particulariz[e] the distinct offense charged in each count\" in its jury instruction. Id. Moreover, a specific unanimity instruction is generally not required unless: \"1) a count is extremely complex; 2) there is variance between the indictment and the proof at trial; or 3) there is a tangible risk of jury confusion.\" United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992). Additionally, a single act of assault against multiple officers constitutes one offense, and therefore does not implicate Six±h Amendment prohibitions on duplicity. See Ladner v. United States, 358 U.S. 169, 176, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (holding, under the predecessor of § 111, that two federal officers wounded by a single shot constituted a single assault); United States v. Beckner, 983 F.2d 1380, 1386 n. 1 (6th Cir.1993) (asserting that we cannot separately sentence defendants for injuring multiple federal officers when injuries are caused by single act); United States v. Theriault, 531 F.2d 281, 285 (5th Cir.1976) (\"The test is whether there is more than one act resulting in the assaults, not whether more than one federal officer is injured by the same act.\"). In differentiating whether an attack against multiple officials is a single assault or multiple assaults, federal courts have inquired whether officers were injured by \"distinct successive criminal episodes, rather than two phases of a single assault.\" United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997) (internal quotations and citation omitted); accord United States v. Lewis, 435 F.2d 417, 420 (D.C.Cir.1970) (citation omitted). Appellant Hood contends that her alleged conduct coiistituted \"two separate and distinct offenses under is U.S.C. § 111.\" It is on this presupposition that she asserts that in instructing the jury it could convict if she assaulted Swinson or Bolz, the district court allowed the jury to convict without the unanimity required by" }, { "docid": "14560340", "title": "", "text": "the Collinwood post office. Mrs. Hood called the station to register a complaint, and, later in the day, personally went to the station to complain about the incident. On February 10, 1999, a federal grand jury returned a three count indictment against Appellant Hood, alleging three separate individual assaults against Bolz, Swinson, and Wacker in violation of 18 U.S.C. § 111(a) & (b). The Bolz and Swin-son counts alleged that Hood committed the assault through the use of a deadly weapon in violation of § 111(b). On March 30, 1999, Appellant moved to compel election between multiplicitous counts, asserting that the separate Bolz and Swinson charges actually constituted a single act of assault. J.A. at 23. The Government did not object to this motion, and a superseding two count indictment was subsequently issued on April 14. . Count one of the superseding indictment collapsed the charges against Bolz and Swinson into one collective charge, while count two, the Wacker charge, remained unchanged from the initial indictment. During the two-day trial, Mrs. Hood requested a specific unanimity instruction, requiring the jury to unanimously find that she assaulted both Swinson and Bolz to convict. The Court denied this request, and instructed the jury that it could convict if it found that Mrs. Hood “forcibly assaulted or resisted or opposed or impeded or intimidated or interfered with J.C. Swinson or Steven D. Bolz.” J.A. at 227 (emphasis added). The jury subsequently convicted Hood of count one, and acquitted her on count two. The probation officer’s pre-sentencing report provided that Hood never “lung[ed] forward” with the knife, but that she “did advance toward [Bolz and Swinson] on the porch.” The district court applied the guideline provision for “aggravated assault,” increased the base offense level by three for brandishing or threatening the use of a deadly weapon, and sentenced Appellant to 27 months imprisonment. Hood filed this timely appeal, contending that the district court erred both in failing to cure a purportedly duplicitous indictment and in sentencing her under the “aggravated assault” guideline. II. “The trial court is Vested with broad discretion in formulating its" }, { "docid": "21029846", "title": "", "text": "federal officials engaged in the performance of official duties. The statute lists all of the acts of violation in one sentence, and imposes a single penalty for all of them, “a construction which indicates that Congress did not mean to create more than one offense.” United States v. Mal, 942 F.2d 682, 688 (9th Cir.1991). In enacting § 111, Congress intended broadly to prohibit harm or threats thereof to certain federal officials as well as interference with their law enforcement activities. See United States v. Feola, 420 U.S. 671, 678-84, 95 S.Ct. 1255, 1260-64, 43 L.Ed.2d 541 (1975). “In order to protect the law enforcement function itself, the statute must be read as prohibiting any acts or threats of bodily harm that might reasonably deter a federal official from the performance of his or her duties.” United States v. Walker, 835 F.2d 988, 987 (2nd Cir.1987). Congress created the single crime of harming or threatening a federal official, and specified six ways by which the crime could be committed. The indictment was not duplicitous. B. “‘Multiplicity’ is the charging of a single offense in several counts.... ‘The vice of multiplicity is that it may lead to multiple sentences for the same offense.’” United States v. Kazenbach, 824 F.2d 649, 651 (8th Cir.1987) (quoting 1 Charles A. Wright, Fed. Pract. & Proc. § 142 at 469, 475 (1982)). Street contends that the indictment is mul-tiplieitous because his confrontation with Rangers Coe and Bisehoff was a single event that constituted one assault rather than two. He analogizes his case to Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) and United States v. Theriault, 531 F.2d 281 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). In Ladner the Court held an indictment multi-plicitous where the defendant was convicted under two counts of assaulting a federal officer by injuring two officers with a single shotgun blast. In Theriault the Fifth Circuit held an indictment multiplieitous where the defendant was convicted under two counts of assaulting a federal officer by injuring two officers" }, { "docid": "14560341", "title": "", "text": "unanimity instruction, requiring the jury to unanimously find that she assaulted both Swinson and Bolz to convict. The Court denied this request, and instructed the jury that it could convict if it found that Mrs. Hood “forcibly assaulted or resisted or opposed or impeded or intimidated or interfered with J.C. Swinson or Steven D. Bolz.” J.A. at 227 (emphasis added). The jury subsequently convicted Hood of count one, and acquitted her on count two. The probation officer’s pre-sentencing report provided that Hood never “lung[ed] forward” with the knife, but that she “did advance toward [Bolz and Swinson] on the porch.” The district court applied the guideline provision for “aggravated assault,” increased the base offense level by three for brandishing or threatening the use of a deadly weapon, and sentenced Appellant to 27 months imprisonment. Hood filed this timely appeal, contending that the district court erred both in failing to cure a purportedly duplicitous indictment and in sentencing her under the “aggravated assault” guideline. II. “The trial court is Vested with broad discretion in formulating its charge and will not be reversed unless the charge fails accurately to reflect the law.’ ” United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988) (per curiam) (citation omitted). Accordingly, we review the trial court’s jury instruction for an abuse of discretion. Id. Raising a mixed question of law and fact, we review de novo the district court’s application of U.S.S.G. § 2A2.2. A. Duplicitous indictments implicate the protections of the Sixth Amendment guarantee of jury unanimity. An indictment is duplicitous if “it joins in a single count two or more distinct and separate offenses.” United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.1981). “The vice of duplicity is that a jury may find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense.\" Id. (citation omitted); see also United States v. Washington, 127 F.3d 510, 513 (6th Cir.1997). By collapsing separate offenses into a single count, duplicitous indictments thereby prevent the jury from convicting on one offense and acquitting on another. See id." }, { "docid": "6125922", "title": "", "text": "constituted a single offense. Id.; see also United States v. Feola, 420 U.S. 671, 677-78, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (discussing Ladner ). Ladner remains good law. Courts have consistently applied Ladner to determine if a course of conduct warrants multiple assault charges by determining “whether there is more than one act resulting in the assaults, not whether more than one federal officer is injured by the same act.” United States v. Theriault, 531 F.2d 281, 285 (5th Cir.1976); see also United States v. Hopkins, 310 F.3d 145, 152 (4th Cir.2002) (because defendant “engaged in more than one act of forcibly assaulting ... a federal officer,” the indictment was not “duplicative”); United States v. Rivera Ramos, 856 F.2d 420, 422 (1st Cir.1988) (looking to “the number of distinguishable acts of assault”). An indictment may divide a course of conduct into separate assaults only when the Government demonstrates that “the actions and intent of [the] defendant constitute distinct successive criminal episodes, rather than two phases of a single assault.” United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997), abrogation on other grounds recognized by United States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir.2003); see also United States v. Shumpert Hood, 210 F.3d 660, 663 (6th Cir.2000); Smith v. United States, 418 F.2d 1120, 1121 (D.C.Cir.1969). Courts look to a variety of factors to determine if a series of acts constitute more than mere phases of a single assault and so can support multiple assault charges. See, e.g., Segien, 114 F.3d at 1022 (evidence of “different events, separated in both time and location”); United States v. Hodges, 436 F.2d 676, 678 (10th Cir.1971) (assailant gave each officer “individual attention, and in succession”). Here, in sharp contrast to Ladner, the district court determined that Thomas committed multiple acts — both verbally threatening Officer Richards and punching her in the face. Moreover, the Government offered evidence that established significant intervening acts between the verbal threat and the physical assault. After the verbal threat, Officer Richards radioed Officer Wassick for assistance. Then, after Thomas pushed her, Officer Richards sounded a general" }, { "docid": "14560345", "title": "", "text": "the Sixth Amendment. We conclude, however, that the district court did not abuse its discretion in instructing the jury it could convict on the basis of a single as-saultive event. In Ladner, the Supreme court held that a defendant committed a single act of assault, as opposed to multiple separate assaults, when he fired a single shot from a shotgun and wounded two officers. See 358 U.S. at 176, 79 S.Ct. 209. Even more similar to this case is the D.C. circuit's holding in Lewis. While both officials were actually wounded in Ladner, in Lewis, the defendant fired one shot at two officers, and missed both of them. See 435 F.2d at 419. The court held that this conduct constituted a single assaultive act, rather than individual assaults against each officer. See id. Similarly, here, there was only one as-saultive event. Bols conceded that Hood did not lunge at him or Swinson, and there is no evidence that she made any aggressive or threatening statements toward either of them. Moreover, Hood has not pointed the court to any separate acts that could plausibly imply two \"distinct successive criminal episodes .\" B. The first step in applying the guidelines is to \"[d]etermine the applicable offense guideline sectid~a\" found in \"Statutory Index (Appendix A),\" which is designed to \"assist\" in determining the guideline provision applicable to particular criminal conduct. U.S.S.G. § 1B1.1(a); see United States v. Winters, No. 94-4269, 1995 WL 462415 (6th Cir.1995) (unpublished per cu-riam). The index provides the guideline section “ordinarily applicable” to the convicting statute; however: [i]f, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted. U.S.S.G., app. A. The guidelines indicate that §§ 2A2.2 and 2A2.4 are the provisions “ordinarily applicable” to convictions under 18 U.S.C. § 111. Even though the presentence investigation report concluded that § 2A2.2, covering aggravated assaults, might be “excessive for the circumstances of this case,” the district" }, { "docid": "6103589", "title": "", "text": "to be ambiguous and applying the rule of lenity, the Supreme Court agreed with Lad-ner, holding that a single discharge of a shotgun would constitute only one violation of section 111 no matter how many federal officers were affected. Ladner, 358 U.S. at 178, 79 S.Ct. at 214. See United States v. Hodges, 436 F.2d 676, 678 (10th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). Given the Court’s interpretation of section 111, the question in evaluating defendant’s claim of multiplicity is “whether there is more than one act causing injury, not whether more than one officer is injured by the same act.” United States v. Wesley, 798 F.2d 1155, 1156-57 (8th Cir.1986). See also United States v. Theriault, 531 F.2d 281, 285 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). This Circuit has ruled that a defendant who pleads guilty may not later contest the factual and theoretical foundations of the indictment to which he has pled. Kerrigan v. United States, 644 F.2d 47, 49 (1st Cir.1981) (indictments sufficiently described two separate and distinct conspiracies for which defendant could constitutionally be sentenced to two separate terms of imprisonment). Given this, we might decide for the government on the face of the indictment if the indictment had clearly alleged that the defendant engaged in three separate acts of assault rather than simply one act of assault that affected three federal officers. However, the only indication from the face of the indictment that more than one act was involved is that each of the three counts named a separate victim. While this suggests that more than a single act was involved, we cannot say that it rules out all possibility that such was not the case. We think it necessary, therefore, to look behind the indictment and to determine from the information placed before the court when the plea was accepted, and, later, when sentence was pronounced, whether three separate acts rather than one only was committed. We are satisfied from our review of the record that such was the" } ]

[ { "docid": "9494665", "title": "", "text": "recently noted as much in a similar situation: ... if one making representations had a present intention not to perform them, the aggrieved party’s claim would properly and logically be one for intentional misrepresentation ... not one based on negligence. Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 628 n. 7 (7th Cir.1993). Accordingly, Eckholt’s claim for negligent promise must fail, and defendants’ motion for summary judgment on that claim must be sustained. TV. Tortious Interference Eckholt alleges that ABI tortiously interfered with the employment agreement between Eckholt and ABCI. ABCI and ABI claim that ABI cannot be held liable for any interference because, as the 80% shareholder of ABCI, ABI was privileged to intervene in its subsidiary’s business relations. Kansas law recognizes that a party who, without legal justification to do so, induces or otherwise causes another not to perform a contract may be liable for the resulting damages. V.C. Video, Inc. v. Nat’l Video, Inc., 755 F.Supp. 962, 970 (D.Kan. 1990); Turner v. Halliburton Co., 240 Kan. 1, 722 P.2d 1106, 1115 (1986). However, not all interference with contractual relations is tortious; the inducement to breach a contract must be wrongful and not privileged in order for an action to lie for tortious interfer ence. Brown Mackie College v. Graham, 768 F.Supp. 1457, 1461 (D.Kan.1991). Several factors are considered in determining whether an actor’s conduct in intentionally interfering with a contract is improper: (a) the nature of the conduct; (b) the actor’s motive; (e) the interests of the other with which the actor’s conduct interferes; (d) the actor’s interests; (e) the social interests in protecting the actor’s freedom to act and the other’s contractual interests; (f) the proximity of the actor’s conduct to the interference; and (g) the relations among the parties affected. Turner, 722 P.2d at 1116— 17 (citing Restatement (Second) of Torts § 767 (1977)). Whether the interference was improper should be determined by evaluating these and other relevant factors on a case-by-case basis: ... [t]he issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration" } ]

[ { "docid": "14078092", "title": "", "text": "100-101, 738 N.E.2d 64 (citing Restatement of Torts (Second) § 766B). In determining whether an entity has acted improperly in intentionally interfering with the prospective contract of another, Ohio considers the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 178-79, 707 N.E.2d 853 (adopting Restatement of Torts (Second) § 767). Moreover, Ohio has also adopted the “privilege of fair competition” as set forth in Section 768 of the Restatement. Fred Siegel, 85 Ohio St.3d at 179-80, 707 N.E.2d 853. This privilege will defeat a claim of tortious interference with prospective contractual relationship if: (a) the relation concerns a matter involved in the competition between the actor and the other and (b) the actor does not employ wrongful means and (c) his action does not create or continue an unlawful restraint of trade and (d) his purpose is at least in part to advance his interest in competing with the other. Restatement of Torts (Second) § 768(1) and cmt. a. Alliance claims that Rosteck tortiously interfered with Alliance’s prospective contract with St. Elizabeth when he and Advanced Perfusion obtained a contract with St. Elizabeth. In September 2002, Alliance made one proposal to St. Elizabeth to obtain a new perfusion services contract and held one meeting regarding that pro posal. When Advanced Perfusion was formed on 27 March 2003 and negotiations between it and St. Elizabeth began, it had been six months since any actual discussions had taken place regarding Alliance’s proposal. Even if Alliance had a prospective contractual relationship with St. Elizabeth, it has not demonstrated that, based on the factors outlined above, defendants interference was improper. Given the uncertain applicability of Mr." }, { "docid": "1097651", "title": "", "text": "elements for tortious interference with existing contractual relations. United States Healthcare Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 925 (3d Cir.1990). 40. In order for Temp-Way to prevail on its claim for intentional interference with contractual relations, Temp-Way must prove that it had a contract or an expectation to contract with a third party, Continental’s communications with the third parties were intended to induce or cause the third party to break its contract with Temp-Way and Continental acted improperly. Temp-Way bears the burden of proving all three elements. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1388 (3d Cir.1991). 41. In determining whether or not an actor’s conduct is proper, the Restatement (Second) of Torts § 767 (1979) considers the following factors: a) the nature of the actor’s conduct, b) the actor’s motive, c) the interest of the other with which the actor’s conduct interferes, d) the interest sought to be advanced by the actor, e) the social interest in protecting the freedom of action of the actor and the other contractual interests of the other, f) the proximity or remoteness of the actor’s conduct to the interference and g) the relations between the parties. Id. 42. As a threshold matter, Temp-Way failed to establish that Continental induced Temp-Way to increase the number of contracts upon which it bid. The record reveals that Denis Spellman originated the idea that Temp-Way increase the size and volume of the company’s contracts. Specifically, Denis Spellman prepared loan proposals in which he took credit for and en thusiastically endorsed the concept of Temp-Way increasing its volume of contracts. For example, in a letter to Vicari dated February 15, 1984 signed by Denis Spellman, Temp-Way set a goal of $3,000,-000 in gross sales, a dramatic increase from the previous year. Similarly, in a May, 1986 loan proposal, Denis Spellman acknowledged that in 1985, “Temp-Way developed its marketing effort to make further penetration into commercial projects,” and predicted that “the increase in sales and the improvement of the gross profit percentages will provide the necessary funds to earn the investors a good" }, { "docid": "5223046", "title": "", "text": "and reverse that judgment. 1. Tortious Interference by DuPont Judge Brieant held that DuPont’s approach to BOMC and subsequent communications with P-H were protected by the First Amendment. We affirm, but on the narrower grounds that these activities are not tortious under New York law. The parties agree that New York law applies and that New York courts would follow the Restatement (Second) of Torts (1977). Guard-Life Corp. v. S. Parker Hardware Manufacturing Corp., 50 N.Y.2d 183, 406 N.E.2d 445, 428 N.Y.S.2d 628 (1980). The Restatement visits tort liability upon an actor who “intentionally and improperly” interferes with contractual relations between others by causing a party to those relations not to perform. Restatement (Second) of Torts § 766 (1977). We will assume that DuPont’s actions were a cause in fact of BOMC’s decision not to offer the book as a Fortune Book Club selection and of P-H’s alleged breach of contract. We now turn to the propriety of DuPont’s conduct. Section 767 of the Restatement cata-logues the factors considered in evaluating the propriety of interference with contractual relations. The section reads: In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties. As to section 767(a), the nature of the DuPont Company’s conduct, Judge Brieant found that it did not entail threats of economic coercion or baseless litigation but was limited to a good faith expression of views about the merits, objectivity and accuracy of the book. We agree. The length and breadth of the evidence of economic coercion is a conversation between two parties without firsthand knowledge, which" }, { "docid": "14245497", "title": "", "text": "a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties.” Robert’s, 91 Hawai’i at 259, 982 P.2d at 888 (quoting Restatement (Second) of Torts § 767, at 25-26) (brackets omitted); see also Hawaii Med. Ass’n, 113 Hawai’i at 116, 148 P.3d at 1218 (“‘[T]he plaintiff must prove that the defendant either pursued an improper objective of harming the plaintiff or used wrongful means that caused injury in fact. Asserting one’s rights to maximize economic interests does not create an interference of ill will or improper purpose.’ ” (quoting Omega Envtl., 127 F.3d at 1166)). B. Whether a Breach of Contract Can Constitute Improper Interference In this case, Shell’s argument is in effect that a breach of contract cannot, without more, constitute “improper interference” for purposes of the tort of tortious interference with a prospective business advantage. See Def.’s Mem. 24-25. This presents an interesting question. On the one hand, comment c to the Restatemént (Second) of Torts § 767 (1979) explains that “economic pressure” may constitute “improper conduct,” and the Reporter’s Notes illustrate the comment by citing a Washington case, Cherberg v. Peoples Nat’l Bank of Washington, 88 Wash.2d 595, 564 P.2d 1137 (1977), in which the improper conduct was found where the “defendant’s acts breached [a] separate contract with [the] plaintiff.” Restatement (Second) of Torts § 767 cmt. c & Report’s Note to clause (a). Under this line of authority, where “a party breaches a contract with the immediate purpose of injuring or destroying prospective business relationships the means may be considered improper.” Harsha v. State Sav. Bank, 346 N.W.2d 791, 799 (Iowa 1984); accord Leigh Furniture & Carpet Co. v." }, { "docid": "8400598", "title": "", "text": "element of “improper interference” set forth in § 766B: § 767. Factors In Determining Whether Interference Is Improper In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties. Id. § 767. Summarizing these factors, the Kentucky Supreme Court has held that “improper interference” under § 766B requires the plaintiff to “ ‘show malice or some significantly wrongful conduct.’ ” Leo J. Brielmaier Co. v. Newport Hous. Auth., 173 F.3d 855 (6th Cir.1999) (table) (quoting Hornung, 754 S.W.2d at 859); Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 487 (Ky.1991) (defining “unlawful means” as including fraud, deceit, and coercion). In the case of a tortious interference claim between competitors, § 768 holds plaintiffs to a more exacting standard. Section 768 makes clear that “competition is not an improper basis for interference,” Restatement (Second) of Torts § 768, cmt. (a), and provides, in pertinent part: § 768. Competition As Proper or Improper Interference (1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor ... does not interfere improperly with the other’s relation if (a) the relation concerns a matter involved in the competition between the actor and the other and (b) the actor does not employ wrongful means and (c) his action does not create or continue an unlawful restraint of trade and (d) his purpose is at least in part to advance his interest in competing with the other. Restatement (Second) of Torts § 768 (emphasis added). It is unclear whether the Kentucky Supreme Court" }, { "docid": "12471943", "title": "", "text": "the requirement of an additional injury-before recovering punitive damages on a contract-based claim. The elements of tortious interference with prospective business advantage are found in Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986): (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate result of defendant’s misconduct. (citing Maxwell v. Southwest Nat. Bank, Wichita, Kan., 593 F.Supp. 250, 253 (D.Kan.1984)). This tort is predicated on improper or malicious conduct by the defendant. Turner, 240 Kan. at 12, 722 P.2d 1106. Malice is intentional interference without justification. Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 663 F.Supp. 1360, 1492 (D.Kan.1987), aff'd, 899 F.2d 951 (10th Cir.1990). The Kansas Supreme Court in Turner also adopted the factors listed in the Restatement (Second) of Torts 767 for evaluating whether a defendant’s conduct in interfering with the prospective business advantage was improper or not: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) The interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the otherj (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Id. 240 Kan. at 14, 722 P.2d 1106. This tort is actionable when there has been interference with a party’s prospective business relationship with a third person. A defendants’ “interference” with the prospective business relationship between it and the plaintiff is not actionable under this tort theory. See Noller v. General Motors Corp., 244 Kan. 612, 620, 772 P.2d 271 (1989). The first issue here is whether a party’s breach of a contract can also" }, { "docid": "5700169", "title": "", "text": "do not rise to the level of “actual malice” under Kansas law. See Batt, 13 Kan.App.2d at 506-08 (plaintiff must do more than present evidence inferring malice). In addition, plaintiff has failed to show sufficient evidence of improper means to overcome defendant’s qualified privilege. Kansas courts often look to the following factors to determine whether a defendant employed improper means: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interest in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Restatement (Second) of Torts § 767; see Turner, 240 Kan. at 14, 722 P.2d at 1116-17. Applying the above factors to this case, the court finds that plaintiff has presented insufficient evidence for a jury to conclude that defendant employed “improper means.” Ms. Banks was plaintiffs supervisor and her actions appear to be consistent with her duties as a high school principal. Ms. Banks’ recommendation of a two-day suspension without pay cannot be considered wrongful given the number of student complaints, plaintiffs response to those complaints, and the authority of a high school principal. The evidence before the court suggests that Ms. Banks sought to protect the students and ensure that only high quality teachers remained in the classroom. There is certainly a strong social interest to promote such conduct. Plaintiff has presented no evidence of evil motive or malice. Indeed, plaintiff has not offered any evidence that Ms. Banks intended that the District give plaintiff the choice between retirement and termination or that she knew such a result was probable. See supra note 6. Further, the remoteness of Ms. Banks’ recommendation of a two-day suspension from the District’s decision favors defendant. In sum, plaintiff has not\" presented sufficient evidence to establish that Ms. Banks employed improper means or acted with actual malice. For all of the above" }, { "docid": "4640932", "title": "", "text": "that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.” 240 Kan. at 13, 722 P.2d 1106 (quoting 45 Am.Jur.2d Interference § 27). Tortious interference does require improper conduct, and the court relied on the Restatement (Second) of Torts § 767, as setting forth the proper factors to be considered in making this determination: . “In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: “(a) the nature of the actor’s conduct, “(b) the actor’s motive, “(c) the interests of the other with which the actor’s conduct interferes, “(d) the interests sought to be advanced by the actor, “(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, “(f) the proximity or remoteness of the actor’s conduct to the interference, and “(g) the relations between the parties.” Turner, 240 Kan. at 14, 722 P.2d 1106. The court concluded that under the terms of the Restatement, if the actions complained of were not improper, there is no ground for recovery. Id. Applying this law to the facts of that case, the court held there could be no recovery for tortious interference because Halliburton had a qualified privilege to exchange with prospective employers the reasons for Turner’s termination, which privilege required plaintiff to prove actual malice by the defendant in making such communications. Actual malice was not proven; the verdict was reversed and judgment entered in defendant’s favor. Id., at 14-15, 722 P.2d 1106. Reading as a whole the instructions on tortious interference, the jury in this case properly understood it was looking for misconduct by defendant. See Instruction No. 85 (“Plaintiffs contend that at the time of Blue Cross’ conduct there existed the business relationships I have enumerat-ed_”); No. 87 (“... you must find that the alleged interference was both wrongful and intentional...." }, { "docid": "23064975", "title": "", "text": "with Blue Cross subscribers. . The jury found that one of the elements of plaintiff HCP’s tortious interference claim was not established. That element was the requirement that Blue Cross have undertaken its allegedly unlawful conduct \"with the wrongful intent of injuring or destroying the business of’ HCP. . The Kansas Supreme Court referred to the Restatement (Second) of Torts § 767 (1979), which discusses whether conduct is proper or improper: \" ‘In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relations of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor's motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties.' ” Turner, 722 P.2d at 1116-17. . \"An Allen charge derives its name from jury instructions approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157-58, 41 L.Ed. 528 (1896).” United States v. Porter, 881 F.2d 878, 888 n. 9 (10th Cir.), cert. denied, - U.S. -, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). . Some three-and-one-half months after the verdict was returned, a juror submitted a letter to the court in which the juror claimed her verdict was coerced. See Reazin II, 663 F.Supp. at 1443 n. 20. The court denied Blue Cross’ motion for a hearing into the letter. Blue Cross argues that denial was error. We disagree. We regard this as a classic example of a juror attempting to impeach her own verdict, which we will not permit in this case. See Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); United States v. Miller, 806 F.2d 223, 225 n. 2 (10th Cir.1986); Holden v. Porter, 405 F.2d 878, 879" }, { "docid": "19881998", "title": "", "text": ". The complaint also included claims for (1) negligent interference with contractual relationship; (2) negligent interference with prospective economic advantage; (3) breach of implied contract; and (4) account stated. Both negligent interference claims were dismissed with prejudice prior to trial. . With respect to intentional interference with prospective economic advantage, Nevada law requires a plaintiff to prove the absence of privilege or justification by the defendant, among other elements. Wichinsky v. Mosa, 109 Nev. 84, 847 P.2d 727, 729-730 (1993). However, Nevada has not yet held that a plaintiff alleging intentional interference with contractual relationship must also prove the absence of privilege or justification. See Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287, 1290 (1989) (setting forth the elements of intentional interference with contractual relationship under Nevada law). Nevertheless, Nationwide argued that this element should be included in the interference with contract tort because it is part of the Restatement approach to contractual interference, and Nevada state courts often follow the Restatement approach to the interference torts. See, e.g., Las Vegas-Tonopah-Reno Stage Lines v. Gray Line Tours, 106 Nev. 283, 792 P.2d 386, 388 n. 1 (1990) (\"[W]e favor the Restatement view that where the interference is improper it is not privileged.” (citing Restatement (Second) of Torts §§ 766B, 767 cmt. b (1979))); Crockett v. Sahara Realty Corp., 95 Nev. 197, 591 P.2d 1135, 1136-37 (1979) (citing Restatement of Torts § 768 & cmt. e (1939)). On appeal, neither party challenges the district court’s decision to adopt Nationwide’s proposed jury instruction, which required Nationwide to prove that Cass acted \"improperly” or “without justification” for both torts. .Restatement (Second) of Torts § 767 states: In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor" }, { "docid": "4640931", "title": "", "text": "12, 722 P.2d 1106 (citing Maxwell v. Southwest Nat’l Bank of Wichita, 593 F.Supp. 250, 253 (D.Kan.1984)). The Maxwell decision is the same authority I relied on in drafting the instructions for the jury in the present case. The Turner court went on to say that this tort is predicated on malicious conduct by the defendant, but that a person may be privileged or justified to interfere with contractual relations in certain situations. 240 Kan. at 12, 722 P.2d 1106. “The issue raised on a plea of justification [or privilege] has been said to depend on the circumstances of the particular case, bearing in mind such factors as the nature of the interferer’s conduct, the character of the expectancy with which the conduct interfered, the relationship between the various parties, the interest sought to be advanced by the interferer, and the social desirability of protecting the expectancy or the interferer’s freedom of action. Generally, a circumstance is effective as a justification if the defendant acts in the exercise of a right equal or superior to that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.” 240 Kan. at 13, 722 P.2d 1106 (quoting 45 Am.Jur.2d Interference § 27). Tortious interference does require improper conduct, and the court relied on the Restatement (Second) of Torts § 767, as setting forth the proper factors to be considered in making this determination: . “In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: “(a) the nature of the actor’s conduct, “(b) the actor’s motive, “(c) the interests of the other with which the actor’s conduct interferes, “(d) the interests sought to be advanced by the actor, “(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, “(f) the proximity or remoteness of the actor’s conduct" }, { "docid": "19881999", "title": "", "text": "Gray Line Tours, 106 Nev. 283, 792 P.2d 386, 388 n. 1 (1990) (\"[W]e favor the Restatement view that where the interference is improper it is not privileged.” (citing Restatement (Second) of Torts §§ 766B, 767 cmt. b (1979))); Crockett v. Sahara Realty Corp., 95 Nev. 197, 591 P.2d 1135, 1136-37 (1979) (citing Restatement of Torts § 768 & cmt. e (1939)). On appeal, neither party challenges the district court’s decision to adopt Nationwide’s proposed jury instruction, which required Nationwide to prove that Cass acted \"improperly” or “without justification” for both torts. .Restatement (Second) of Torts § 767 states: In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties. . Nationwide states in its opening brief that Cass’s alleged violation of UCC § 9-406 was also essential to Nationwide’s claims for breach of implied contract and account stated. . Rule 702 slates: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. . See Nev.Rev.Stat. §§ 104.1201(2)(gg) (\" 'Representative' means a person empowered to act for another, including an agent....”); 104.2201(1) (\"[A] contract for the sale of goods for the price" }, { "docid": "6271966", "title": "", "text": "(1993) (citing Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 151 N.Y.S.2d 1, 134 N.E.2d 97 (1956)). The New York Court of Appeals has described this cause of action in the following manner: The American Law Institute in the Restatement of the Law of Torts 2d, adopted May, 1977, has stated the fundamental principle: “One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” (§ 766.) The keystone of the statement is the adverb “improperly” ... the definition of which is inconstant and mutable, drawing its substance from the circumstances of the particular situation at hand. Section 767 of the Restatement sets out several factors for consideration in determining whether an intentional interference with a contract is “improper”, accompanied by the observation that “[the] issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation” (Comment b). Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 631-32, 406 N.E.2d 445, 447-49 (1980). The factors set out in Section 767, to which the Guard-Life court refers are: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Restatement of the Law of Torts (second) § 767. For" }, { "docid": "3368912", "title": "", "text": "amount to tortious interference, while the second is framed more in the language of the Restatement (First) Torts §§ 767-68. The Restatement (First) of Torts § 766 formulation of the general rule was that one who “without a privilege to do so” induces another not to perform a contract is liable for the harm caused thereby. Section 768 recognized the “privilege” of a competitor, and section 767 listed factors determining the existence of a privilege in general. The Restatement of Torts (Second) abandons the “privilege” formulation. In section 766 it refers to “intentionally and improperly” interfering with the performance of a contract, and in section 766B to “intentionally and improperly” interfering with a prospective contractual relationship. Restatement (Second) of Torts §§ 766, 766B (1977). In place of the listing of factors determining the existence of a privilege, section 767 of the Restatement Second lists factors determining whether the interference is “improper.” These factors include: (a) the nature of the actor’s conduct; (b) the actor’s motive; (c) the interests of the other with which the actor’s conduct interferes; (d) the interests sought to be advanced by the actor; (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference; and (g) the relations between the parties. Id. § 767. These general rules for determining the propriety of interferences are refined in section 768(1) which deals specifically with competition as a proper or improper interference with existing or prospective contractual relations. That section provides: One who intentionally causes a third person . . . not to continue an existing contract terminable at will does not interfere improperly with the other’s relation if (a) the relation concerns a matter involved in the competition between the actor and the other and (b) the actor does not employ wrongful means and (c) his action does not create or continue an unlawful restraint of trade and (d) his purpose is at least in part to advance his interest in competing with the other. Id. §" }, { "docid": "5700168", "title": "", "text": "induce her employer to breach a contract with another employee. May, 189 Kan. at 424-25, 370 P.2d at 395; Brown Mackie College, 768 F.Supp. at 1461. After the defendant presents evidence of a qualified privilege, plaintiff has the burden to prove that defendant acted with “actual malice” or employed “improper means.” See Turner, 240 Kan. at 13-14, 722 P.2d at 1116-17 (citing Restatement (Second) of Torts § 767); Batt v. Globe Eng’g Co., Inc., 13 Kan.App.2d 500, 507-08, 774 P.2d 371, 377 (1989). Here, Ms. Banks, a principal and employee of the District, was privileged to advise or induce the District to terminate plaintiffs contract. Plaintiff has failed to offer sufficient evidence of actual malice or improper means to overcome defendant’s qualified privilege. Plaintiffs evidence of malice amounts only to his belief that Ms. Banks tended to side with the students, took the student, complaints as true with very little investigation, and did not fully consider the context of plaintiffs comments. Although these actions, if true, may imply that Ms. Banks was unfair, these actions do not rise to the level of “actual malice” under Kansas law. See Batt, 13 Kan.App.2d at 506-08 (plaintiff must do more than present evidence inferring malice). In addition, plaintiff has failed to show sufficient evidence of improper means to overcome defendant’s qualified privilege. Kansas courts often look to the following factors to determine whether a defendant employed improper means: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interest in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Restatement (Second) of Torts § 767; see Turner, 240 Kan. at 14, 722 P.2d at 1116-17. Applying the above factors to this case, the court finds that plaintiff has presented insufficient evidence for a jury to conclude that defendant employed “improper means.” Ms." }, { "docid": "16713173", "title": "", "text": ".... In addition to the five elements, “[a]n action for tortious interference with a contract is predicated on malicious conduct by the defendant.” Dickens, 255 Kan. 164, Syl. ¶ 1, 872 P.2d 252. In DP-Tek, Inc. v. AT & T Global Inform. Solutions, 100 F.3d 828, 831-32 (10th Cir.1996), the Tenth Circuit concluded that the Kansas Supreme Court would adopt the business competitor’s privilege identified in Restatement (Second) of Torts § 768. The court noted that: Kansas recognizes that “not all interference in present or future contractual relations is tortious. A person may be privileged or justified to interfere with contractual relations in certain situations.” [Turner v. Halliburton Co., 240 Kan. 1, 722 P.2d 1106, 1115 (1986)]; see also Noller v. GMC Truck & Coach Div., 13 Kan.App.2d 13, 760 P.2d 688, 699 (1988) (“Intertwined in this problem are the actions of [the defendant], which may be justified or privileged—that is, proper rather than improper.”), rev’d on other grounds, 244 Kan. 612, 772 P.2d 271 (1989). The court will deny plaintiffs motion for summary judgment on their claim of tortious interference. Even assuming the business competitor’s privilege contained in Restatement (Second) § 768 was not applicable, the plaintiffs have still failed to demonstrate that they are entitled to a determination of liability on the part of the defendants. Liability for tortious interference with contractual relations requires more than simply invoking a noncompetition clause to defeat a defense of competitor’s privilege; the underlying merits of the claim must still be established. In Turner v. Halliburton, 240 Kan. 1, 12, 722 P.2d 1106 (1986), the court explicitly cited with approval the standard set forth in Restatement (Second) of Torts § 767. Section 767 is “the general balancing test applicable in tortious interference claims.” DP-Tek, 100 F.3d at 832. It provides: In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive (c) the interests of the other with which the actor’s conduct" }, { "docid": "7614967", "title": "", "text": "the impropriety of an actor’s conduct: (a) the nature of the actor’s conduct, (b) the actor’s motive, (e)the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Id. at § 767. The Supreme Court of Pennsylvania has adopted both §§ 766 and 767 of the Restatement (Second) of Torts. See Small v. Juniata College, 452 Pa.Super. 410, 682 A.2d 350, 354 & n. 1 (1996) (citing Restatement (Second) of Torts § 767); Daniel Adams Assoc., Inc. v. Rimbach Publ’g, Inc., 360 Pa.Super. 72, 519 A.2d 997, 1000 (remarking that the Pennsylvania Supreme Court has adopted Restatement (Second) of Torts § 766), appeal denied, 517 Pa. 597, 535 A.2d 1056 (1987). The significance of the conversion grants varies depending on the legal context in which the Court examines them.- Under § 2 of the Sherman Act, the Court determined that the parties’ submissions raise genuine fact issues regarding the possible predatory nature of such grants. The Court nonetheless found that the conversion grants fail under both § 1 of the Sherman Act and § 3 of the Clayton Act because they neither eliminated significant competition nor foreclosed a substantial share of the relevant market. The Court’s conclusions regarding § 1 of the Sherman Act and § 3 of the Clayton Act do not, however, preclude a jury from finding that PP & L offered the conversion grants for an improper purpose and thereby -tortiously interfered with Plaintiffs’ contractual relations. PP & L’s actions need not be unlawful under federal antitrust statutes to be- tortious.. A jury must evaluate whether PP & L either (1) simply extolled the virtues of its products through promotional incentives or (2) interfered with Plaintiffs’ contractual relations with existing homeowners. See Restatement (Second) of Torts § 766 cmt. m (remarking that A may induce B to sever" }, { "docid": "9544502", "title": "", "text": "person intentionally causes that person not to enter into a prospective contractual relation with another, does not interfere improperly with the other’s relation if he (a) does not employ wrongful means and (b) acts to protect his interest from being prejudiced by the relation. By its terms, however, § 769 applies only to prospective contractual relations. Comment b to § 769 confirms that § 769 \"does not apply to the causing of a breach of contract,” but further states that \"[t]his does not imply, however, that the actor’s interference is necessarily improper in such a case under the general principle stated in § 767.” Despite the explicit language in Comment b, several courts have relied upon § 769 to support their conclusion that a parent corporation may be privileged to interfere with its wholly-owned subsidiary’s contracts. See e.g., Phil Crowley Steel Corp, 702 F.2d at 722; Geib v. Alan Wood Steel Co., 419 F.Supp. 1205, 1209 (E.D.Pa.1976) (The privilege under § 769 is available to a defendant when the contract at issue is terminable at-will, since termination of an at-will contract does not constitute a breach of that contract). Other courts, however, have heeded the explicit language of Comment b and have held that, under a balancing of the factors listed in § 767, the privilege still is available. See e.g., Bendix, 610 P.2d at 30-31. Restatement (Second) of Torts § 767 (1977) provides: In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct (b) the actor’s motive (c) the interests of the other with which the actor’s conduct interferes (d) the interests sought to be advanced by the actor (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other (f) the proximity of remoteness of the actor’s conduct to the interference and (g) the relations between the parties. Generally, each of these factors must be balanced in each case, unless judicial decisions" }, { "docid": "16713174", "title": "", "text": "on their claim of tortious interference. Even assuming the business competitor’s privilege contained in Restatement (Second) § 768 was not applicable, the plaintiffs have still failed to demonstrate that they are entitled to a determination of liability on the part of the defendants. Liability for tortious interference with contractual relations requires more than simply invoking a noncompetition clause to defeat a defense of competitor’s privilege; the underlying merits of the claim must still be established. In Turner v. Halliburton, 240 Kan. 1, 12, 722 P.2d 1106 (1986), the court explicitly cited with approval the standard set forth in Restatement (Second) of Torts § 767. Section 767 is “the general balancing test applicable in tortious interference claims.” DP-Tek, 100 F.3d at 832. It provides: In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties. The balancing required under Section 767 and the general elements of a claim for tortious interference with contract under Kansas law preclude an award of summary judgment in favor of plaintiffs. The defendants’ motives and actions are not so clearly established that the court could determine beyond a reasonable doubt that the tort had been committed. The uncontroverted facts do not establish that, in obtaining the services of the thirteen physicians, the defendants acted maliciously, with an intent to injure Wichita Clinic or IHS. Moreover, Section 767 explicitly states that consideration should be given to the nature of the defendant’s conduct, the relations between the parties, and the interests which the plaintiff seeks to protect. Here, the uncontroverted facts establish that, following the collapse of" }, { "docid": "12471944", "title": "", "text": "adopted the factors listed in the Restatement (Second) of Torts 767 for evaluating whether a defendant’s conduct in interfering with the prospective business advantage was improper or not: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) The interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the otherj (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties. Id. 240 Kan. at 14, 722 P.2d 1106. This tort is actionable when there has been interference with a party’s prospective business relationship with a third person. A defendants’ “interference” with the prospective business relationship between it and the plaintiff is not actionable under this tort theory. See Noller v. General Motors Corp., 244 Kan. 612, 620, 772 P.2d 271 (1989). The first issue here is whether a party’s breach of a contract can also serve as the predicate of intentional misconduct for purposes of the tort of interference with prospective business advantage. In defendants’ view, if it is sufficient under this tort to allege that, as a consequence of the contract breach, certain other business relationships have been tortiously interfered with, then it is difficult to imagine a breach of contract case that would not also have a companion tort claim. This prediction is flawed because the mere allegation of a contract breach is not enough to assert a tortious interference claim. Interference with the prospective business advantage must be intentional, that is, the defendant must desire the resulting interference or knows it is substantially certain to occur. Restatement (Second) of Torts § 766B comment d (1977). The interference must also be improper under the factors outlined in Restatement (Second) of Tort § 767. The purpose or motive of the alleged tortfeasor is significant. Turner, 240 Kan. at 14, 722 P.2d 1106. If the interference is an expected incidental effect of certain actions taken for another reason, then the" } ]

[ { "docid": "10046276", "title": "", "text": "post-petition and therefore was not barred by the automatic stay provision of § 362(a)(1). Mrs. Grady argues that her cause of action against Robins did not accrue until after Robins had filed its reorganization petition and therefore the stay provision is inapplicable. Under California law, she argues that she could not have sued Robins until she knew the nature of her injuries. The argument goes that because she had no right to payment from Robins under state law until she was injured, and since that injury occurred after the reorganization petition was filed, the stay provision of § 362 should not bar her case from its prosecution. While not agreeing that state law necessarily controls, the Future Tort Claimants agree that Mrs. Grady had no pre-petition right of payment from Robins and therefore no claim under the Bankruptcy Code. Robins argues that the district court was correct in declining to apply the reasoning of Frenville and in its conclusion that Mrs. Grady’s claim falls within the definition set out in § 101(4)(A) because the tortious conduct occurred prior to the filing of the petition. Robins relies primarily upon In re Black, 70 B.R. 645 (Bkrtcy.D.Utah, 1986); In re Edge, supra; In re Baldwin-United Corp., 57 B.R. 759 (S.D.Ohio 1985); and In re Johns-Manville Corp., supra. These cases decline to apply the reasoning in Frenville and conclude that claim accrual for bankruptcy purposes must be determined in light of bankruptcy law and not state law. We have found no court outside the Third Circuit which has followed the reasoning and holding of Frenville. All of the cases coming to our attention which have considered the issue have declined to follow Frenville’s limiting definition of claim. In re Black, supra; Acevedo v. Van Dorn Plastic Machinery Co., 68 B.R. 495 (Bkrtcy.E.D.N.Y.1986); In re Edge, supra; In re Johns-Manville, supra; In re Baldwin-United Corp., supra; In re Yanks, 49 B.R. 56 (Bkrtcy.S.D.Fla.1985); In re Baldwin-United Corp., 48 B.R. 901 (Bkrtcy.S.D.Ohio 1985). See also In re Baldwin-United Corp. Litigation, 765 F.2d 343, 348 n. 4 (2d Cir.1985) (in which the court declines to routinely" } ]

[ { "docid": "1150058", "title": "", "text": "formulation of a second test, often called the “conduct” 'test, because it looks to the conduct which gave rise to the claim to determine whether a bankruptcy claim has arisen. Id. See also Waterman S.S. Corp. v. Aguiar (In re S.S. Waterman Corp.), 141 B.R. 552 (Bankr.S.D.N.Y.1992), vacated on other grounds, 157 B.R. 220 (S.D.N.Y.1993); Edge v. Roach (In re Edge), 60 B.R. 690 (Bankr.M.D.Tenn.1986). Under this test, a claim will arise for bankruptcy purposes when the conduct which gave rise to the liability occurs, even though the injury resulting from that conduct may not occur or be manifested until after the commencement of the bankruptcy proceeding. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994) (summarizing eases describing the “conduct” test). Concerned about the broad sweep of the “conduct” test and its adverse impact on notions of fundamental fairness, several courts have devised yet a third approach, characterized as the “relationship” or “conduct plus” test. See United States v. LTV Corp. (In re Chateaugay Corp.), 944 F.2d 997, 1004-1006 (2d Cir.1991); Lemelle, 18 F.3d at 1277; Piper, 162 B.R. at 627. The “relationship” test looks not merely to the conduct of the debtor, but to whether the purported claimant had a specific and identifiable relationship with the debtor prepetition. Beeter v. Tri-City Property Management Services, Inc. (In re Beeter), 173 B.R. 108, 118 (Bankr.W.D.Tex.1994). It is not enough that the claimant’s injury can be traced to the debtor’s prebankruptcy conduct. The court must also inquire into the relationship of the debtor and the alleged claimant. Id. A claim for bankruptcy purposes will exist only where “some prepetition relationship, such as contact, exposure, impact, or privity, between the debtor’s prepetition conduct and the claimant” is established. Piper, 162 B.R. at 627. Principally relying upon Piper, the Fifth Circuit recently adopted a version of the “relationship” test in Lemelle v. Universal Mfg. Corp., 18 F.3d 1268 (5th Cir.1994). In Lemelle, the plaintiff brought a wrongful death suit against Universal Manufacturing Corporation, an entity ultimately determined to be a successor to Winston Industries, Inc., the debtor. The suit was" }, { "docid": "15443291", "title": "", "text": "individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a 'right to payment' under the Bankruptcy Code.” Grossman’s, 607 F.3d at 125. This is essentially the same test adopted in Piper and discussed in the succeeding text. . Under the conduct test, \"a right to payment arises when the conduct giving rise to the alleged liability occurred.” Piper Aircraft, 162 B.R. at 624; accord Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994); In re Huffy Corp., 424 B.R. 295, 304 (Bankr.S.D.Ohio 2010). In other words, \"all of the acts constituting the tort other than the manifestation of injury had occurred prior to the petition date.” Piper Aircraft, 162 B.R. at 624. Under the pre-petition relationship test, only individuals with \"some type of prepetition relationship with the Debtor” hold claims. Id. at 626; Lemelle, 18 F.3d at 1276; Huffy, 424 B.R. at 304. . I am not suggesting that someone who buys a defective product pre-petition but is not injured until after the bankruptcy has a pre-petition claim for his or her personal injury. For example, there are many GM cars currently on the road that were manufactured and sold prior to GM’s 2009 bankruptcy sale. Statistically, some will be involved in future accidents resulting in serious personal injury or death to the owner. The owners do not have \"claims” in the GM case for injury or death that may or may not occur years from now. See Fogel v. Zell, 221 F.3d 955, 960 (7th Cir.2000) (Posner, C.J.). A fortiori, the injured pedestrians who never dealt with GM do not hold claims. See id. . Douglas v. Stamco presents a fact pattern much closer to the Fredericos' situation. There, the affiliated debtors sold their assets to Genesis Worldwide II, Inc. (“Genesis”), free and clear of all liens and claims, other than permitted liens and assumed liabilities. (Order (A) Authorizing Sale of Substantially All of the Debtor's Assets Free and Clear [etc.], dated Nov. 16, 2001 (\"Genesis Order ”), at ¶ 6) (Douglas v. Stamco, 6:08 Cv. 747 (N.D.N.Y.), ECF" }, { "docid": "8525968", "title": "", "text": "Circuit has adopted the ‘pre-petition relationship’ test, which attempts to strike a middle ground between the accrual and conduct tests. Id. Under this test, in order for a future claimant to have a pre-petition claim under the Code, “there must be some prepetition relationship, such as contact, exposure, impact, or privity, between the debtor’s pre-petition conduct and the claimant.” Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1277 (5th Cir.1994) (quoting In re Piper Aircraft Corp., 162 B.R. 619, 627 (Bankr.S.D.Fla.1994)). “[T]he debtor’s conduct must take place pre-petition, but the future claimant must also have some pre-petition relationship with the debtor.” Superior Air Parts, 486 B.R. at 739 (emphasis omitted). In order for a claim to arise under the Code, it must have been within the “fair contemplation of the parties” at the time of bankruptcy. Cal. Dep’t of Health Serv. v. Jensen (In re Jensen), 995 F.2d 925, 930 (9th Cir.1993). Courts applying the pre-petition relationship test to an indemnification claim have found that the operative date for a bankruptcy claim is when the agreement was executed, not when the facts giving rise to actual liability occurred. For example, in Colonial Sur. Co. v. Weizman, Weizman and Colonial had entered into an indemnification agreement in 1998. 564 F.3d 526, 528 (1st Cir.2009). Weizman filed bankruptcy in 2005 and received a discharge in 2006. Id. In 2007, Colonial sued Weizman on the indemnification contract relating to a construction project which began in September 2006, after Weizman had received a discharge. Id. Weizman objected to the judgment against him, arguing that his obligation under the indemnification agreement had been discharged in bankruptcy. The court held that “Weizman’s position is correct and that Colonial’s claims rested on an earlier obligation that comprised a contingent claim capable of being discharged by his later bankruptcy.” Id. at 530. Even though the project which gave rise to the indemnification claim did not occur until after Weizman had obtained a discharge, the signing of the indemnification agreement itself gave rise to a contingent claim. Id. Similarly, in Superior Air Parts, Superi- or and Lycoming Engines entered" }, { "docid": "8525966", "title": "", "text": "to the property on that date. Tex. Tax Code § 32.01. Neither argument applies the correct standard for when a claim accrues as articulated by the Fifth Circuit. Although the Court rejects the Trevino’s assertion that the claim arose as soon as the tax lien arose on January 1, 2010, they are nevertheless correct that the claim arose pre-petition. Section 101(5)(A) of- the Bankruptcy Code defines claim as a “right to payment, whether or not such right is reduced to judgment, unliquidated, fixed, contingent, matured,-unmatured, disputed, undisputed, legal equitable, secured, or unsecured.” 11 U.S.C. § 101(5)(A). The definition of claim is as broad as possible. Penn. Dept, of Pub. Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990). The question of just how broad that definition is with regards to unaccrued claims is, however, a “complex one.” Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994). Courts have adopted three different tests for determining when a claim for tort or breach of contract accrues under the Bankruptcy Code. Lycoming Engines v. Superior Air Parts, Inc. (In re Superior Air Parts, Inc., 486 B.R. 728, 739 (Bankr. N.D.Tex.2012). The “accrual test” holds that a cause of action does not accrue until it accrues under state law, meaning that no claim exists until a right to payment accrues under state law. In re M. Frenville Co., 744 F.2d 332, 337 (3d Cir.1984). Due to the accrual’s approach inequitable results with regards to indemnification claims, it has been ‘universally rejected.’ (Grossman’s Inc. v. Van Brunt (In re Grossman’s Inc.), 607 F.3d 114, 120 (3d Cir.2010) (overturning Frenville). The ‘conduct test’ instead holds that a bankruptcy claim arises when the debtor’s conduct giving rise to the alleged liability occurred. Grady v. A.H. Robins Co. (In re AH. Robins Co.), 839 F.2d 198, 203 (4th Cir.1988). This test has been criticized as being too broad, because claimants who have had no prepetition contact with the debtor would be subject to the bankruptcy discharge potentially before their injury even manifested. Superior Air Parts, 486 B.R. at 739. The Fifth" }, { "docid": "11025076", "title": "", "text": "and selling the allegedly defective or dangerous product. The debtor’s prepetition conduct gives rise to a claim to be administered in a case only if there is a relationship established before confirmation between an identifiable claimant or group of claimants and that prepetition conduct. In the instant case, it is clear that the Future Claimants fail the minimum requirements of the Piper test. There is no preconfirmation exposure to a specific identifiable defective product or any other preeonfirmation relationship between Piper and the broadly defined class of Future Claimants. As there is no preconfirmation connection established between Piper and the Future Claimants, the Future Claimants do not hold a § 101(5) claim arising out of Piper’s prepetition design, manufacture, sale, and distribution of allegedly defective aircraft. III. CONCLUSION For the foregoing reasons, we hold that the Future Claimants do not meet the threshold requirements of the Piper test and, as a result, do not hold claims as defined in § 101(5) of the Bankruptcy Code. AFFIRMED. . Piper made a decision in 1987 to self-insure and therefore does not have any product liability insurance covering events or occurrences taking place after that year. .The accrued state law claim theory states that there is no claim for bankruptcy purposes until a claim has accrued under state law. The most notable case adopting this approach is the Third Circuit’s decision in In re: M. Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). This test since has been rejected by a majority of courts as imposing too narrow an interpretation on the term claim. See e.g., Grady v. A.H. Robins Co., 839 F.2d 198, 201 (4th Cir.), cert. denied, 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); In re: Black, 70 B.R. 645 (Bankr.D.Utah 1986); Acevedo v. Van Dorn Plastic Machinery Co., 68 B.R. 495 (Bankr.E.D.N.Y.1986); In re: Edge, 60 B.R. 690 (Bankr.M.D.Tenn.1986); In re: Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986); In re: Yanks, 49 B.R. 56 (Bankr.S.D.Fla.1985). We agree with these courts and decline to employ the state law" }, { "docid": "15443290", "title": "", "text": "clear of any interest in such property of an entity other than the estate, only if— (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5)such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. . Section 1141(c) states: . The order appointing Epstein made no determination whether the future claimants held claims. Piper, 58 F.3d at 1575. . The accrued state law claim or right to payment test was adopted by the Third Circuit in Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332 (3d Cir.1985). Following twenty-five years of uniform criticism that Frenville defined \"claim” too narrowly, the Third Circuit overruled Frenville and held that \"a ‘claim’ arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a 'right to payment' under the Bankruptcy Code.” Grossman’s, 607 F.3d at 125. This is essentially the same test adopted in Piper and discussed in the succeeding text. . Under the conduct test, \"a right to payment arises when the conduct giving rise to the alleged liability occurred.” Piper Aircraft, 162 B.R. at 624; accord Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994); In re Huffy Corp., 424 B.R. 295, 304 (Bankr.S.D.Ohio 2010). In other words, \"all of the acts constituting the tort other than the manifestation of injury had occurred prior to the petition date.” Piper Aircraft, 162 B.R. at 624. Under the pre-petition relationship test, only individuals with \"some type of prepetition relationship with the Debtor” hold claims. Id. at 626; Lemelle, 18 F.3d at 1276; Huffy, 424 B.R. at 304. . I am not suggesting that someone who buys a defective product pre-petition but is not injured until after the bankruptcy has" }, { "docid": "4392631", "title": "", "text": "Court has held that “[t]he plain meaning of a ‘right to payment’ is nothing more nor less than an enforceable obligation, regardless of the objectives the State seeks to serve in imposing the obligation.” Pa. Dep’t of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2131, 109 L.Ed.2d 588 (1990). “A claim exists only if before the filing of the bankruptcy petition, the relationship between the debtor and the creditor contained all the elements necessary to give rise to a legal obligation — ‘a right to payment’ — under the relevant non-bankruptcy law.” In re Nat’l Gypsum Co., 139 B.R. 397, 405 (N.D.Tex.1992). Nevertheless, “it is well settled that federal law governs when a claim arises.” In re Parks, 281 B.R. 899, 902 (Bankr.E.D.Mich.2002). Courts have generally utilized three approaches when making this determination: (1) the accrued state law claim approach; (2) the conduct approach; and (3) pre-petition relationship approach. Epstein v. Official Comm. of Unsecured Creditors of Piper Aircraft Corp., 58 F.3d 1573, 1576 (11th Cir.1995). Generally, the accrued state law claim test focuses upon the notion that “while federal law controls which claims are cognizable under the Code, the threshold question of when a right to payment arises, absent overriding federal law, ‘is to be determined by reference to state law.’ ” Avellino v. M. Frenville Co., Inc. (In re M. Frenville Co., Inc.), 744 F.2d 332, 337 (3d Cir.1984) (quoting Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946)). Also known as the “right to payment” approach, courts following it have held that “a ‘claim’ does not arise in bankruptcy until a cause of action has accrued under non-bankruptcy law.” Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994) (citing M. Frenville Co., 744 F.2d at 337). This approach has been rejected “as inconsistent with the broad statutory definition of a ‘claim’ and with ‘the overriding goal of the Bankruptcy Code to provide a “fresh start” for the debtor.’ ” Cal. Dep’t of Health Servs. v. Jensen (In re Jensen), 995 F.2d 925, 928 (9th" }, { "docid": "18804839", "title": "", "text": "it does as an incident to the debtor’s interest in property, it takes on the quality of other kinds of equitable servi-tudes, such as prohibitions on making changes to the exterior of the unit for example, servitudes that are typically enforced by injunction and are not normally thought of as dischargeable claims. Too, the same obligation extends both to annual assessments for routine maintenance and to special assessments for whatever extraordinary items might need to be addressed, such as the need for a new roof for example. Can it really be that such a speculative and uncertain event as a leaking roof is something for which homeowners’ associations are expected to file a proof of claim should a condominium owner file bankruptcy? Testing the limits of what may be defined as a claim for bankruptcy purposes most often has occurred in the context of tort liability, be it in the nature of environmental liability, mass tort or products liability. Indeed, in those arenas courts continue to struggle with the application of the “plain meaning” of section 101(5). See, e.g., United States v. The LTV Corp. (In re Chateaugay Corp.), 944 F.2d 997, 1003 (2d Cir.1991); Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994) (noting, “[t]he question how broad the term ‘claim’ is under the Code, especially as that terms relates to unaccrued tort liability is a complex one”); Gull Indus., Inc. v. John Mitchell, Inc. (In re Hanna), 168 B.R. 386 (9th Cir.Bankr.1994); Epstein v. The Official Committee of Unsecured Creditors of the Estate of Piper Aircraft Corp. (In re Piper Aircraft Corp.), 168 B.R. 434 (S.D.Fla.1994), aff'g 162 B.R. 619 (Bankr.S.D.Fla.1994). These courts have recognized that no single inquiry or factor resolves the issue. Several “tests” have been formulated to assist with the determination whether and which unaccrued torts rise to the level of “claims” for bankruptcy purposes. One, much criticized, test looks to when a cause of action accrues under state or other nonbankruptcy law. See Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332, 337 (3d Cir.1984), cert." }, { "docid": "11025077", "title": "", "text": "and therefore does not have any product liability insurance covering events or occurrences taking place after that year. .The accrued state law claim theory states that there is no claim for bankruptcy purposes until a claim has accrued under state law. The most notable case adopting this approach is the Third Circuit’s decision in In re: M. Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). This test since has been rejected by a majority of courts as imposing too narrow an interpretation on the term claim. See e.g., Grady v. A.H. Robins Co., 839 F.2d 198, 201 (4th Cir.), cert. denied, 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); In re: Black, 70 B.R. 645 (Bankr.D.Utah 1986); Acevedo v. Van Dorn Plastic Machinery Co., 68 B.R. 495 (Bankr.E.D.N.Y.1986); In re: Edge, 60 B.R. 690 (Bankr.M.D.Tenn.1986); In re: Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986); In re: Yanks, 49 B.R. 56 (Bankr.S.D.Fla.1985). We agree with these courts and decline to employ the state law claim theory. . See, e.g., A.H. Robins Co., 839 F.2d at 203 (Daikon Shield); In re: Waterman Steamship Corp., 141 B.R. 552, 556 (Bankr.S.D.N.Y.1992) (asbestos), vacated on other grounds, 157 B.R. 220 (Bankr.S.D.N.Y.1993); In re: Johns-Manville Corp., 36 B.R. 743, 750 (Bankr.S.D.N.Y.1984) (asbestos). . Epstein claims that the prepetition relationship test, by requiring identifiability of claimants, eliminates the words “contingent,” “unma-tured,” \"unliquidated,” and \"disputed\" from the statute. He further argues that requiring a pre-petition relationship is contrary to the Congressional objective that bankruptcy permit a com- píete settlement of the affairs of the debtor and a complete discharge and fresh start, as the claims of those persons whose injuries become manifest after the petition is filed could prove a drain on the reorganized debtor's assets for years to come. . This modified test was set forth by the bankruptcy court in a related case, In re: Piper Aircraft Corp., 169 B.R. 766 (Bankr.S.D.Fla.1994). By changing the focal point of the relationship from the petition date to the confirmation date, the test now encompasses those with" }, { "docid": "12234068", "title": "", "text": "stemming from the use of an intrauterine device known as the Daikon Shield. Grady, 839 F.2d at 199. The court addressed the nature of the claim of an individual who bought and used the device prepetition but did not know it caused a serious injury until after the manufacturer filed its bankruptcy petition. Id. Rejecting Frenville and adopting the conduct approach, the Fourth Circuit concluded that because the acts of the debtor giving rise to liability occurred prepetition, the claim was a pre-petition contingent claim under the broad definition provided in the Bankruptcy Code. Id. at 202-03. Huffy urges the court to adopt this approach noting that it has been more widely accepted than the right to payment approach especially when a creditor is aware of its claim and its due process rights have been observed during the case. Eagle-Picher Indus., Inc. v. Blue Tee Corp. (In re Eagle-Picher Indus., Inc.), 2005 WL 4057842, at *4 (Bankr.S.D.Ohio Oct.6, 2005); In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986). However, outside of this context, the approach has also been the subject of criticism for failing to address the due process rights of creditors whose claims may be discharged before they receive any notice of the bankruptcy case or even have reason to know that their claims exist. Jensen, 995 F.2d at 930; Signature Combs, 253 F.Supp.2d at 1035; Cleveland, 349 B.R. at 529. C. Relationship/Fair Contemplation Approach In an attempt to better address the due process concerns of creditors, courts modified the prior approaches in two ways. Pursuant to the “relationship” test, a pre-petition claim exists if: 1) the debtor’s conduct giving rise to the claim occurred prepetition; and 2) some form of prepetition (or preconfirmation) relationship existed between the debtor and the creditor such as “contact, exposure, impact or privity.” Piper Aircraft, 58 F.3d at 1577. Consequently, a class of future claimants identified as individuals likely to suffer an injury caused by a debtor’s prepetition manufacture of a defective product (in this case, an aircraft) did not hold prepetition claims if they had no known prepetition contact with the debtor." }, { "docid": "7242773", "title": "", "text": "“which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor.’ ” In re Fostvedt, 823 F.2d 305, 306 (9th Cir.1987) (cita tions omitted). The broad language used to define “claim” “points us in a direction, but provides little indication of how far we should travel.” In re Chateaugay Corp., 944 F.2d 997, 1003 (2nd Cir.1991). In other words, courts must decide at what point a contingency is too remote to be called a claim. Bankruptcy courts have applied different tests to determine if a claim arose prepetition. In this ease, the bankruptcy court’s legal conclusion was that the debt was not discharged to the extent it was a postpetition cause of action under state law. Under the “right to payment” or “accrued state law claim” test, which the bankruptcy court applied, a claim does not arise in bankruptcy until an action has accrued under relevant substantive nonbankruptcy law. See United States v. Union Scrap Iron & Metal, 123 B.R. 831, 835 (D.Minn.1990); In re M. Frenville Co., Inc., 744 F.2d 332, 335-37 (3rd Cir.1984), cert. denied sub nom. M. Frenville Co., Inc. v. Avellino & Bienes, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). The Ninth Circuit and other circuits have rejected this test, under a variety of fact patterns, on the grounds that it interprets the term claim more narrowly than Congress intended. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275-1277 (5th Cir.1994) (discussing cases); In re Chicago, Milwaukee, St. Paul & Pacific R. Co., 6 F.3d 1184, 1192-93 (7th Cir.1993); Jensen, 995 F.2d at 929 (“[t]o hold that a claim for contribution arises only when there is an enforceable right to payment appears to ignore the breadth of the statutory definition of ‘claim’ ”); Chateaugay, 944 F.2d at 1004; In re A.H. Robins Co., Inc., 63 B.R. 986, 989-92 (Bankr.E.D.Va.1986), aff'd sub nom. Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir.), cert. dismissed sub nom. Joynes v. A.H. Robins Co., Inc.," }, { "docid": "7242777", "title": "", "text": "parties occurred prepetition. Jensen, 995 F.2d at 931. Jensen concluded that the fair contemplation analysis was the only approach giving “adequate consideration to the policy goals of the environmental laws and the bankruptcy code”: The only meaningful distinction that can be made regarding CERCLA claims in bankruptcy is one that distinguishes between costs associated with prepetition conduct resulting in a release or threat of release that could have been “fairly” contemplated by the parties; and those that could not have been “fairly” contemplated by the parties. Jensen, 995 F.2d at 930 (quoting In re Nat’l Gypsum Co., 139 B.R. 397, 407-08 (N.D.Tex. 1992)). Jensen also made a broader criticism of the conduct test: The debtor’s conduct approach adopted by the BAP in this case is not immune from criticism, either. One commentator has noted that “fflespite Congress’s repeal of the ‘provability’ requirement and its broad definition of ‘claim,’ nothing in the legislative history or the Code suggests that Congress intended to discharge a creditor’s rights before the creditor knew or should have known that its rights existed.” Discharging CERCLA Liability in Bankruptcy, 76 Minn.L.Rev. at 348. Jensen, 995 F.2d at 930 (emphasis added). Most authorities consider the Jensen fair contemplation test equivalent to the “conduct plus,” “prepetition relationship” or Piper test. See In re Piper Aircraft Corp., 162 B.R. 619, 627 (Bankr.S.D.Fla.), aff'd, 168 B.R. 434 (S.D.Fla.1994), aff'd sub nom. Epstein v. Official Committee of Unsecured Creditors of Estate of Piper Aircraft Corp., 58 F.3d 1573 (11th Cir.1995). See also Lemelle, 18 F.3d at 1277; Ames et al., Texaco II, supra. The Piper test provides: [A]n individual has a § 101(5) claim against a debtor manufacturer if (i) events occurring before confirmation create a relationship, such as contact, exposure, impact, or privity, between the claimant and the debt- or’s product; and (ii) the basis for liability is the debtor’s prepetition conduct in designing, manufacturing and selling the allegedly defective or dangerous product. The debtor’s prepetition conduct gives rise to a claim to be administered in a case only if there is a relationship established before confirmation between an identifiable claimant" }, { "docid": "10800213", "title": "", "text": "and likely disputed. But, no matter, it literally is a “claim” under § 101(5). Our recent analysis of § 101(5) in JELD-WEN, Inc. v. Van Brunt (In re Grossman’s), 607 F.3d 114 (3d Cir.2010), supports this view. There we dealt with whether an asbestos-related tort action against a home improvement retailer arose as a “claim” before the retailer’s bankruptcy filing. If so, bankruptcy may discharge that claim even though the injury arose (and thus the tort action accrued) after the bankruptcy filing. Id. at 117. We noted that both Congress and the Supreme Court have instructed that a “claim” under the Bankruptcy Code be given the broadest possible definition. Id. at 121 (citing H.R.Rep. No. 95-595, at 309 (1977), 1978 U.S.C.C.A.N. 5963 and FCC v. NextWave Pers. Commc’ns Inc., 537 U.S 293, 302, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003)). In the specific tort action at issue in Grossman’s, we held that “a ‘claim’ arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a ‘right to payment’ under [§ 101(5) ].” Id. at 125. In other words, a lawsuit based on conduct (or exposure) that occurred before the bankruptcy filing yields a pre-petition claim even though the cause of action did not accrue until the injury manifested sometime after the bankruptcy filing. In Grossman’s we overruled an earlier test — known as the “accrual test” — set out in Avellino & Bienes v. M. Frenville Co. (In re Frenville), 744 F.2d 332 (3d Cir.1984). Under that test, a claim would not exist until a right to payment arose (or accrued) under state law. Grossman’s, 607 F.3d at 119. After weighing criticisms of the test by our sister circuits and commentators, we concluded that the accrual test interpreted § 101(5)’s definition too narrowly because “a ‘claim’ can exist under the Code before a right to payment exists under state law.” Id. at 121. Specifically, the accrual test “fail[ed] to give sufficient weight to the words modifying [the ‘right to payment’]: ‘contingent,’ ‘unmatured,’ and ‘unliquidated.’” Id. Thus our holding in Chessman’s" }, { "docid": "16627660", "title": "", "text": "Gen. Sens. Admin., Office of Supply & Sens. (In re Remington Rand Corp.), 836 F.2d 825, 830 (3d Cir.1988) (citing Frenville, 744 F.2d at 336). The Frenville test for determining when a claim arises has been referred to as the “accrual test.” In the case before us, the District Court and Bankruptcy Court correctly applied the accrual test in holding that the Van Brunts’ tort claims were not discharged by the Plan of Reorganization. According to Frenville, the claims arose for bankruptcy purposes when the underlying state' law cause of action accrued. See Frenville, 744 F.2d at 337. The New York tort cause of action accrued in 2006 when Ms. Van Brunt manifested symptoms of mesothelioma. The claims were therefore post-petition under Frenville. The question remains, however, whether we should continue to follow Frenville and its accrual test. We have recognized that “[significant authority [contrary to Frenville] exists in other circuits.... ” Jones v. Chemetron Corp., 212 F.3d 199, 205-06 (3d Cir.2000). A sister circuit has described our approach in Frenville as “universally rejected.” Cadleway Props., Inc. v. Andrews (In re Andrews), 239 F.3d 708, 710 n. 7 (5th Cir.2001). The courts of appeals that have considered Frenville have uniformly declined to follow it. See Watson v. Parker (In re Parker), 313 F.3d 1267, 1269-70 (10th Cir.2002); In re Andrews, 239 F.3d at 710 n. 7; Am. Law Ctr. PC v. Stanley (In re Jastrem), 253 F.3d 438, 442 (9th Cir.2001); Epstein v. Official Comm, of Unsecured Creditors of the Estate of Piper Aircraft Corp. (In re Piper Aircraft, Corp.), 58 F.3d 1573, 1576 n. 2 (11th Cir.1995); Woburn Assocs. v. Kahn (In re Hemingway Transp., Inc.), 954 F.2d 1, 8 n. 9 (1st Cir.1992); Grady v. A.H. Robins Co., 839 F.2d 198, 200-02 (4th Cir.1988); see also Official Comm. of Asbestos Pers. Injury Claimants v. Sealed Air. Corp. (In re W.R. Grace & Co.), 281 B.R. 852, 860 (Bankr.D.Del.2002) (“Frenville has proved a remarkably unpopular decision and no other Circuit Court of Appeals has followed it.”). At least one bankruptcy court has stated that Frenville “may be fairly characterized" }, { "docid": "17445915", "title": "", "text": "the opinions of three physicians, including Dr. Incavo, stating that Warren was totally disabled. Though the Movants insist that their third-party actions against Agway based on Warren’s grave injury did not accrue under state law until after the Bar Date, they fail to realize that, in bankruptcy cases, state law does not determine when a claim arises. The United States Bankruptcy Court of the Southern District of New York in In re Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986), has stated that “a prepetition ‘claim’ may well encompass a cause of action that, under state law, was not cognizable until after the bankruptcy petition was filed.” Id. at 690; see In re Caldor, Inc., 240 B.R. 180, 191 (Bankr.S.D.N.Y.1999) (“A claim is ‘contingent’ when the debtor’s legal duty to pay it does not come into existence until triggered by the occurrence of a future event.”). Three tests are most often cited as governing claim accrual: the conduct test, the prepetition relationship test, and the fair contemplation test. The conduct test provides that a claim exists at “the time when the acts giving rise to the alleged liability were performed.” Johns-Manville, 57 B.R. at 690. However, many courts have taken the view that the conduct test may be overly broad, tending to include the claims of parties such as classes of future mass tort claimants who cannot know prepetition that they may have a claim in the future. See, e.g., In re Chateaugay Corp., 944 F.2d 997, 1004 (2d Cir.1991). The prepetition relationship test finds a claim when there is “contact, exposure, impact, or privity between the debtor’s prepetition conduct and the claimant.” In re Piper Aircraft Corp., 162 B.R. 619, 627 (Bankr.S.D.Fla.1994). The Piper court fashioned the test to apply to product liability claims for which the debtor would be directly liable. The requirement of contact or exposure is less relevant here as to the Movants’ claim against the Debtors for contribution and indemnity. A con-' tributor may be indirectly liable without contact or privity with the injured party. Hence, the Court will not apply the pre-petition relationship test. Rather, the" }, { "docid": "13248196", "title": "", "text": "its emergence from bankruptcy; and the rights of individuals who may be damaged by that conduct but are unaware of the potential harm at the time of the debtor’s bankruptcy. In overruling Frenville’s “accrual test,” we recognized that it had been “universally rejected” based on its conflict with the Code’s broad definition of the term “claim.” Grossman’s, 607 F.3d at 120-21 (quoting Cadleway Props., Inc. v. Andrews (In re Andrews), 239 F.3d 708, 710 n. 7 (5th Cir.2001)). To repeat, in its place we adopted the rule that a “ ‘claim’ arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a ‘right to payment’ under the Bankruptcy Code.” Id. at 125. This rule reflects the Code’s expansive treatment of claims even if, as we acknowledged, that treatment is to the “disadvantage [of] potential claimants, such as tort claimants, whose injuries were allegedly caused by the debtor but which have not yet manifested and who therefore had no reason to file claims in the bankruptcy.” Id. at 122. The rule is an amalgam of the two tests that other Courts of Appeals generally follow — the conduct test and the pre-petition relationship test. Under the former, a claim arises “when the acts giving rise to [the] liability were performed, not when the harm caused by those acts was manifested.” Id. See Watson v. Parker (In re Parker), 313 F.3d 1267 (10th Cir.2002); Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir.1988). Under the pre-petition relationship test, “a claim arises from a debt- or’s pre-petition tortious conduct where there is also some pre-petition relationship between the debtor and the claimant, such as a purchase, use, operation of, or exposure to the debtor’s product.” Grossman’s, 607 F.3d at 123. See Epstein v. Official Comm. of Unsecured Creditors (In re Piper Aircraft Corp.), 58 F.3d 1573, 1576 (11th Cir.1995); Lemelle v. Universal Mfg. Corp., 18 F.3d 1268 (5th Cir.1994); United States v. LTV Corp. (In re Chateaugay Corp.), 944 F.2d 997 (2d Cir.1991). Cf. ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.)," }, { "docid": "18804840", "title": "", "text": "section 101(5). See, e.g., United States v. The LTV Corp. (In re Chateaugay Corp.), 944 F.2d 997, 1003 (2d Cir.1991); Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1275 (5th Cir.1994) (noting, “[t]he question how broad the term ‘claim’ is under the Code, especially as that terms relates to unaccrued tort liability is a complex one”); Gull Indus., Inc. v. John Mitchell, Inc. (In re Hanna), 168 B.R. 386 (9th Cir.Bankr.1994); Epstein v. The Official Committee of Unsecured Creditors of the Estate of Piper Aircraft Corp. (In re Piper Aircraft Corp.), 168 B.R. 434 (S.D.Fla.1994), aff'g 162 B.R. 619 (Bankr.S.D.Fla.1994). These courts have recognized that no single inquiry or factor resolves the issue. Several “tests” have been formulated to assist with the determination whether and which unaccrued torts rise to the level of “claims” for bankruptcy purposes. One, much criticized, test looks to when a cause of action accrues under state or other nonbankruptcy law. See Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332, 337 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). A second line of thought, and indeed that referenced in Ros-tech, looks to when the conduct that gave rise to the claim occurred. See, e.g., Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir.), cert. dismissed, 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); Waterman S.S. Corp. v. Aquilar (In re S.S. Waterman Corp.), 141 B.R. 552 (Bankr.S.D.N.Y.1992), vacated on other grounds, 157 B.R. 220 (S.D.N.Y.1993); Edge v. Roach (In re Edge), 60 B.R. 690, 696-75 (Bankr.M.D.Tenn.1986). As summarized by the Fifth Circuit: These courts have concluded that if a debt- or’s conduct forming the basis of liability occurred pre-petition, a ‘claim’ arises under the Code when that conduct occurs, even though the injury resulting from this conduct is not manifest,at the commencement of the bankruptcy proceedings. Lemelle v. Universal Mfg. Corp., 18 F.3d at 1275 (citation omitted). A third approach looks not merely to the conduct of the debtor, but to whether the purported claimant had a specific and identifiable" }, { "docid": "19116716", "title": "", "text": "1994. He therefore urges this court to conclude that his malpractice claim against Magdovitz did not arise pre-petition. Courts have taken several approaches to the question of how the term “claim,” as used in the Bankruptcy Code, relates to unacerued tort liability. Some courts have agreed with Wheeler’s position in this case that a “claim” does not arise in bankruptcy until a cause of action has accrued under non-bankruptcy law. See, e.g., Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332, 337 (3rd Cir.1984). Other courts have rejected the accrual theory and have determined that a claim arises at the moment the conduct giving rise to the alleged liability occurred. See, e.g., Grady v. A.H. Robins Co., 839 F.2d 198, 202-03 (4th Cir.1988). Still other courts have determined that a claim arises at the time of the negligent conduct forming the basis for liability only if the negligent actor had some type of specific relationship with the debtor at that time. See, e.g., In re Piper Aircraft Corp., 162 B.R. 619 (Bankr.S.D.Fla.1994). In Lemelle v. Universal Mfg. Corp., 18 F.3d 1268 (5th Cir.1994), after reviewing these various approaches to the problem, this court held that, at a minimum there must be evidence of prepetition contact, privity or other relationship between the tort-feasor and the injured claimant, thereby adopting the Piper middle ground approach to the question. However, the court added the caveat that: We do not here decide whether, if evidence of some pre-petition relationship between [the tort-feasor and the victims] had been adduced, we might nonetheless conclude that neither [of the parties] had a “claim”____ We need not reach that question on this record. Lemelle, 18 F.3d at 1277-78. It is clear in this case that Wheeler and Magdovitz had a pre-petition relationship sufficient to meet the Piper and Lemelle requirement. Further, under Miss.Code Ann. § 15-1-49, a claim accrues when a plaintiff “discovers], or by reasonable diligence should have discovered, the injury.” Both the bankruptcy court and the district court invoked In re Tomaiolo, 205 B.R. 10 (Bankr.D.Mass.1997), as authority for their" }, { "docid": "8525967", "title": "", "text": "Lycoming Engines v. Superior Air Parts, Inc. (In re Superior Air Parts, Inc., 486 B.R. 728, 739 (Bankr. N.D.Tex.2012). The “accrual test” holds that a cause of action does not accrue until it accrues under state law, meaning that no claim exists until a right to payment accrues under state law. In re M. Frenville Co., 744 F.2d 332, 337 (3d Cir.1984). Due to the accrual’s approach inequitable results with regards to indemnification claims, it has been ‘universally rejected.’ (Grossman’s Inc. v. Van Brunt (In re Grossman’s Inc.), 607 F.3d 114, 120 (3d Cir.2010) (overturning Frenville). The ‘conduct test’ instead holds that a bankruptcy claim arises when the debtor’s conduct giving rise to the alleged liability occurred. Grady v. A.H. Robins Co. (In re AH. Robins Co.), 839 F.2d 198, 203 (4th Cir.1988). This test has been criticized as being too broad, because claimants who have had no prepetition contact with the debtor would be subject to the bankruptcy discharge potentially before their injury even manifested. Superior Air Parts, 486 B.R. at 739. The Fifth Circuit has adopted the ‘pre-petition relationship’ test, which attempts to strike a middle ground between the accrual and conduct tests. Id. Under this test, in order for a future claimant to have a pre-petition claim under the Code, “there must be some prepetition relationship, such as contact, exposure, impact, or privity, between the debtor’s pre-petition conduct and the claimant.” Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1277 (5th Cir.1994) (quoting In re Piper Aircraft Corp., 162 B.R. 619, 627 (Bankr.S.D.Fla.1994)). “[T]he debtor’s conduct must take place pre-petition, but the future claimant must also have some pre-petition relationship with the debtor.” Superior Air Parts, 486 B.R. at 739 (emphasis omitted). In order for a claim to arise under the Code, it must have been within the “fair contemplation of the parties” at the time of bankruptcy. Cal. Dep’t of Health Serv. v. Jensen (In re Jensen), 995 F.2d 925, 930 (9th Cir.1993). Courts applying the pre-petition relationship test to an indemnification claim have found that the operative date for a bankruptcy claim is when the" }, { "docid": "1858841", "title": "", "text": ". The Court does not intend to suggest that for there to be a \"claim,” the tortious consequence must be such as would be required to sustain a cause of action under state law. That position would be a return to the accrued state law theory under Frenville, supra, which this Court rejects. Rather, it seems that some prepetition tortious consequence is essential for a \"claim” to exist under the Code. . The Court's independent research has not revealed a case wherein a “right to payment” under § 101(5) was found to exist based solely on the mere possibility that harm or injuries may occur postpetition as a result of the debtor's prepetition wrongful conduct. . See also, In re Correct Manufacturing Corp., 167 B.R. 458 (Bankr.S.D.Ohio 1994) (\"Even if the earliest point of contact ... is adopted as the analytical framework for determining when a claim arises, some prepetition connection between the debtor and the 'claimant' is essential”). . See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1277 (5th Cir.1994) (following Piper); In re Jensen, 995 F.2d 925, 930-32 (9th Cir.1993) (a prepetition relationship between the claimant and the debtor must exist for a “claim” to arise under the Code); Chateaugay, 944 F.2d at 1005 (the \"relationship between environmental regulating agencies and those subject to regulation provides sufficient 'contemplation' of contingencies to bring most ultimately maturing payment obligations based on pre-petition conduct within the definition of 'claims' ”); Pettibone, 90 B.R. at 931-33 (plaintiff did not have a \"claim” as of the petition date for his post-petition injury resulting from operating a forklift where there was no prepetition relationship or exposure to tie the claimant to the debtor). . The Bankruptcy Court clarified that not every prepetition relationship will give rise to a claim, but that a prepetition relationship is a threshold requirement for a claim. Piper, 162 B.R. at 627. This Court agrees. The determination of whether a certain prepetition relationship (once it is deemed to exist) is sufficient to sustain a § 101(5) claim would depend on the particular facts surrounding the relationship. . The Court" } ]

[ { "docid": "1693023", "title": "", "text": "of Hanover Insurance Company v. Victor, 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459 (1967), stating only “The direct appeal is dismissed on the ground that the order appealed from is not final.” Apparently no appeal was taken to the Supreme Court by Lyon Associates, Inc. Nor do we find any inconsistency between the Hospital’s defense of lack of personal jurisdiction and its removal of the case to the federal courts followed by its efforts to have the case dismissed on other grounds. “No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion,” Rule 12(b), F.R.Civ.P. Pursuit of inconsistent defenses prior to trial is permissible. Friedr. Zoellner Corp. v. Tex. Metals Co., 396 F.2d 300 (2d Cir. 1968); American Fire and Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In any event a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made, especially when it does raise the objections as soon as their cognizability is made apparent. As the Supreme Court observed in Curtis Publishing Co. v. Butts, 388 U.S. 130, 143, 145, 87 S.Ct. 1975, 1985, 1986, 18 L.Ed.2d 1094 (1967), where defendants raised a constitutional defense only after trial had finished and the Court had handed down an intervening new decision indicating that such a defense might exist, “the mere failure to interpose such a defense prior to the announcement of a decision which might support it cannot prevent a litigant from later invoking such a ground.... [A]n effective waiver must, as was said in Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] [1938], be one of a ‘known right or privilege....’ We would not hold that Curtis waived a ‘known right’ before it was aware of the New York Times decision. It is agreed that Curtis’ presentation of the constitutional issue after our New York Times decision was prompt.” The clairvoyance demanded by plaintiff" } ]

[ { "docid": "22146040", "title": "", "text": "49 L.Ed.2d 826 (1976); Muth v. United States, 1 F.3d 246, 250 (4th Cir.1993) (explaining that issues not raised in district court will not be considered, on appeal unless the “refusal to consider the newly-raised issue would be plain error or would result in a fundamental miscarriage of justice”); United States v. One 1971 Mercedes Benz 2-Door Coupe, 542 F.2d 912, 915 (4th Cir.1976) (explaining that the failure to raise and preserve issue in district court waives consideration of that issue on appeal absent exceptional circumstances); see also United States v. Dickerson, 166 F.3d at 667, 683 (4th Cir.1999) (recognizing that this court may address issue not raised below in exceptional circumstances). And, an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for appellate review unless the district court exercises its discretion to excuse the party’s lack of timeliness and consider the issue. See Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1087 (5th Cir.1996) (noting that although courts generally look with disfavor on arguments presented for first time post-trial, district court possesses the discretion to entertain such arguments and if it excuses the default and addresses the merits, the issue is properly preserved for appellate review); see also Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co., 124 F.3d 508, 519 n.12 (3d Cir.1997) (declining to consider on appeal issue raised for first time in party’s Rule 59(e) motion); Jorge Rivera Surillo & Co. v. Falconer Glass Indus., 37 F.3d 25, 29 (1st Cir.1994) (dismissing arguments raised for first time in Rule 59(e) motion and not addressed on merits by district court as not properly before the appellate court); Havoco of Am., Ltd. v. Sumitomo Corp. of Am., 971 F.2d 1332, 1336 (7th Cir.1992) (stating that arguments that could and should have been made prior to judgment may not be raised for first time in Rule 59(e) motion); cf. 389 Orange St. Partners v. Arnold, 170 F.3d 1200, 1207 (9th Cir.1999) (explaining that a district court does not" }, { "docid": "4551459", "title": "", "text": "day and was, therefore, timely. Whether to grant or deny a Rule 59(e) motion is a decision which falls soundly within the discretion of the court. Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982). “A motion to alter or reconsider a judgment is an extraordinary remedy and should be granted sparingly because of the interests in finality and conservation of scarce judicial resources.” U.S. ex rel. American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 179 F.R.D. 541, 547 (S.D.Ohio 1998). Motions to alter or amend judgments may be granted in three instances: (1) if the court has committed a clear error of law, (2) if there is newly discovered evidence, i.e. an intervening change in controlling law, or (3) “to prevent manifest injustice.” Gen-Corp, Inc. v. American Intern. Underwriters, 178 F.3d 804, 834 (6th Cir.1999). The party seeking reconsideration of a decision bears the burden of proving the existence of sufficient grounds entitling them to Rule 59(e) relief. In re J & M Salupo Development Co., 388 B.R. 795, 805 (6th Cir. BAP 2008); In re Redman Oil Co., Inc., 100 B.R. 945, 948 (Bankr.S.D.Ohio 1989). In addition to demonstrating one of the grounds for relief under Rule 59(e), the movant must also be able to show that correcting the defect by altering or amending the judgment “will result in a different disposition of the case.” Shepard v. U.S., 2009 WL 3106554, *1 (E.D.Mich.2009). Rule 59(e) relief is only to be granted in limited circumstances and should not be invoked in an attempt to “relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 2617, n. 5, 171 L.Ed.2d 570 (2008); Aull v. Osborne, 2009 WL 722605, *1 (W.D.Ky.2009); Vanguard Transp. Sys., Inc. v. Volvo Trucks North America, Inc., 2006 WL 3097189, *2 (S.D.Ohio 2006). Numerous courts in the Sixth Circuit have recognized that “parties should not use [Rule 59(e) motions] to raise arguments which could, and should, have been made before judgment" }, { "docid": "13268330", "title": "", "text": "judge’s refusal to grant declaratory and injunctive relief. We do not spend any time on these protests, however. We can and do dispatch his injunction argument as waived, since appellate arguments debuted in a reply brief are not preserved. See, e.g., Liberty Mut. Ins. Co. v. Nippon Sanso K.K., 331 F.3d 153, 162 (1st Cir.2003). Another problem dooms both the injunction and the declaratory-judgment arguments, actually: because the judge (as we have said already) correctly tossed the political-discrimination and due-process claims on summary judgment, Soto-Padró has no basis for any relief at all against the defendants, let alone declaratory and injunctive relief. See Lopez v. Garriga, 917 F.2d 63, 70 (1st Cir.1990) (holding that once “plaintiffs constitutional claim” failed, “he was left without any sound basis for” injunctive or declaratory relief); see also Redondo-Borges v. U.S. Dep’t of HUD, 421 F.3d 1, 5, 11 (1st Cir.2005) (affirming a district-court ruling rejecting an equitable-relief claim because “plaintiffs had failed to state any claim cognizable under section 1983”). Enough said. (B) Reconsideration With the summary-judgment issues out of the way, we take up Soto-Padró’s protest that the judge botched the reconsideration ruling — a ruling that we review only for abuse of discretion, keeping in mind that judges enjoy “considerable” discretion in this area. See, e.g., Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 190 (1st Cir.2004). Our cases generally offer three grounds for a valid Rule 59(e) motion: an “intervening change” in the controlling law, a clear legal error, or newly-discovered evidence. See, e.g., Morán Vega v. Cruz Burgos, 537 F.3d 14, 18 (1st Cir.2008); Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n. 2 (1st Cir.2005). And our cases tell us that a party cannot use a Rule 59(e) motion to rehash arguments previously rejected or to raise ones that “could, and should, have been made before judgment issued.” See, e.g., Morán Vega, 537 F.3d at 18 n. 2 (internal quotation marks omitted); see also Nat’l Metal Finishing Co. v. BarclaysAmerican/Comm., Inc., 899 F.2d 119, 123 (1st Cir.1990). Given all this, it is exceedingly difficult for a litigant to" }, { "docid": "3951605", "title": "", "text": "for Rule 60(b) motions). Nevertheless, district courts in the Fourth Circuit generally look to Rule 59(e)’s standards for guidance. E.g., Joe Hand Promotions, Inc., 2012 WL 6210334, at *2; Ruffin v. Entm’t of E. Panhandle, 3:11-CV-19, 2012 WL 1435674, at *3 (N.D.W.Va. Apr. 25, 2012). Therefore, a motion to reconsider an interlocutory or-, der may be granted for the following reasons: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not [previously] available ...; or (3) to correct a clear error of law or prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). A motion for reconsideration is not, however, an opportunity to relitigate issues already ruled upon simply because a party is dissatisfied with the outcome. Joe Hand Promotions, 2012 WL 6210334, at *2 (citing R.E. Goodson Constr. Co, 2006 WL 1677136, at *1). Further, such a motion may not be used to raise arguments or introduce evidence that could have been addressed or presented previously. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008); City of Charleston, S.C. v. Hotels.com, LP, 586 F.Supp.2d 538, 541 (D.S.C.2008) (citing Pac. Ins. Co., 148 F.3d at 403). DISCUSSION I. Motion to Reconsider Plaintiffs maintain that reconsideration of the Prior Order is warranted to account for new evidence previously unavailable 'and to prevent manifest injustice. Specifically, Plaintiffs argue that because Plaintiffs’ counsel’s “recently discovered” that the City “created and does in fact maintain email accounts for the firefighters,” Pis.’ Mot. to Recons. 3, ECF No. 78, the Court should reconsider its Prior Order and require the City to produce the email addresses. In support of their position, Plaintiffs principally rely on the affidavit of Plaintiff James Regan (“Regan Affidavit”), the veracity of which the City vehemently disputes. For the reasons detailed below, the Court denies Plaintiffs’ Motion to Reconsider. As an initial matter, the Court notes that Plaintiffs’ failure to address in their Reply the City’s response to, and interpretation or characterization of, Plaintiffs’ request as pertaining" }, { "docid": "20130664", "title": "", "text": "apparent.”) (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 143, 145, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)). The Circuits have recognized that “[a]n exception to normal law of the case and waiver rules is recognized when an intervening decision from a superior court changes the controlling law.” Beazer E. v. Mead Corp., 525 F.3d 255, 263 (3d Cir.2008). In such contexts, the Circuits will allow parties, for example, to raise arguments that they did not raise in their opening briefs. E.g., West v. Ortiz, — Fed.Appx. -, -, 2007 WL 706924, at *5 (10th Cir. Mar. 9, 2007) (allowing an appellant to raise an issue made viable by intervening Supreme Court case law for the first time on reply); DSC Comme’ns Corp. v. Next Level Comme’ns, 107 F.3d 322, 326 n. 2 (5th Cir.1997) (party that waived an issue by failing to include it in its opening brief could raise the issue in a supplemental brief based on an intervening change of law). It would be curious indeed if Vivendi would be allowed to raise an argument on appeal that it could not assert before this Court. While the language of Rule 12(h)(2) provides that a failure to state a claim defense may be raised “in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c) [for judgment on the pleadings]; or (C) at trial,” and does not expressly contemplate motions made after trial but before entry of judgment, the Court concludes that under the circumstances here — in which judgment has yet to be entered and will not be entered for quite some time since the damages phase of this case has yet to occur — it is appropriate to permit Vivendi to bring a motion pursuant to Rule 12(h)(2). Turning to the substance of the issue, the Court finds that American ordinary share purchasers cannot bring Section 10(b) in the wake of Morrison. In reaching this conclusion, the Court joins other lower courts that have rejected the argument that a transaction qualifies as a “domestic transaction” under Morrison whenever the purchaser" }, { "docid": "22153390", "title": "", "text": "respecting those factors.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 402-03 (4th Cir.1998) (internal quotation marks omitted). Rule 59(e), unlike Rule 60(b), includes no itemized list of potential bases for relief. We have consistently recognized, however, three bases for amending a judgment under Rule 59(e): “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Pac. Ins., 148 F.3d at 403; see also EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th Cir.1997) (same); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993) (same). It is the second aspect of the third factor — to “prevent manifest injustice” — that is implicated by this appeal. In its Order of Denial, the district court recognized that Robinson “contends that there are genuine issues of material fact which should preclude the granting of summary judgment in this matter.” J.A. 185. The court nonetheless disregarded this “meritorious opposition” contention, ruling — absent any supporting authority— that “[t]he fact that [Robinson] may have a meritorious opposition to [Wix’s] Motion for Summary Judgment ... does not constitute a proper basis for reconsideration of the Court’s Judgment.” Id. To justify its refusal to consider Robinson’s contention — namely, that he possessed a meritorious defense to the summary judgment motion — the district court latched on to the unremarkable proposition that Rule 59(e) should not be used merely to pursue a contention that could have been raised prior to judgment. See id. This maxim, however, is entirely inapt in these circumstances, for Robinson was not seeking to “relitigate old matters” or “complete presenting his case after the court ... ruled against him.” Pac. Ins., 148 F.3d at 403 (internal quotation marks omitted). Rather, Robinson was asserting a failure of notice with respect to the summary judgment motion itself. Thus, this is not a situation where a party, having lost on his first theory, sought in post-judgment proceedings to present an alternate contention on the merits." }, { "docid": "22795422", "title": "", "text": "We do not perceive such a requirement to impose any more of a burden than our well-established rule that district courts must advise pro se prisoners that the failure to file responsive material when a defendant moves for summary judgment exposes them to the possible entry of summary judgment in favor of the defendant. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) (per curiam). We also disagree that Rule 59(e) affords a pro se petitioner such as Hill an adequate opportunity to respond. Rule 59(e) permits a party to file a motion to alter or amend a judgment “no later than 10 days after entry of the judgment.” A district court has the discretion to grant a Rule 59(e) motion only in very narrow circumstances: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Collison v. International Chemical Workers Union, 34 F.3d 233, 236 (4th Cir.1994) (internal quotation marks omitted). Moreover, Rule 59(e) motions may not be used to make arguments that could have been made before the judgment was entered, see Pacific Ins. Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998), which, if we adopted the Commonwealth’s view that the pro se petitioner bears the burden of anticipating exceptions to the statute of limitations, would prevent the petitioner from raising a tolling argument for the first time under Rule 59(e). And, even if a pro se petitioner is not required to anticipate the statute of limitations issue, we still believe that Rule 59(e) is not an adequate avenue for the petitioner to pursue a tolling argument because it affords a narrower basis for relief than is available prior to entry of a judgment. Thus, the better course is for the district court to provide a chance to respond before judgment is entered against the petitioner, not afterwards. See Herbst, 260 F.3d at 1043-44 (holding that Rule 59(e) is not sufficient to permit a pro se petitioner to respond to the" }, { "docid": "1941727", "title": "", "text": "reconsideration is not supported by controlling-precedent. And last but not least, reconsideration of dispositive decisions ... hinders the court’s ability to decide mo tions awaiting resolution that have yet to be reviewed once, let alone twice. Williams v. City of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D.Pa.1998). Thus, in interest of finality, át least at the district court level, motions for reconsideration should be granted sparingly because parties should not be free to relitigate issues a court has already decided. Id. (citing New Chemic (U.S), Inc. v. Fine Grinding Corp., 948 F.Supp. 17, 18-19 (E.D.Pa.1996)). “Stated another way, a motion for reconsideration is not properly grounded in a request for a district court to rethink a decision it has already made, rightly or wrongly”. Williams v. City of Pittsburgh, 32 F.Supp.2d at 238. A district court may, however, grant a party’s motion for reconsideration in any of three situations: (1) the availability of new evidence not previously available, (2) an intervening change in controlling law, or (3) the need to correct a clear error of law or to prevent manifest injustice. Dodge v. Susquehanna University, 796 F.Supp. 829, 830 (M.D.Pa., 1992) “A motion for reconsideration of an order to grant [or deny] summary judgment is treated as a motion under Rule 59(e) of the Federal Rules of Civil Procedure”. Trabal-Hernandez v. Sealand Services, Inc., 230 F.Supp.2d 258, 259 (D.P.R., 2002); Rosario Rivera v. PS Group of P.R., Inc., 186 F.Supp.2d 63, 65 (D.P.R., 2002). “These motions should be granted to correct ‘manifest errors of law’ or to present newly discovered evidence”. Trabal Hernandez v. Sealand Services, Inc., 230 F.Supp.2d at 259; F.D.I.C v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.,1992); Nat’l Metal Finishing Co. v. Barclays-American/Commercial, Inc., 899 F.2d at 123. Rule 59(e) motions cannot be used “to raise arguments which could have been raised prior to the issuance of the judgment”. Pacific Insurance Company v. Am. Nat’l. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir., 1998) “Neither are Rule 59(e) motions appropriate ‘to repeat old arguments previously considered and rejected’.” Trabal Hernandez v. Sealand Services, Inc. 230" }, { "docid": "3951604", "title": "", "text": "than all the claims ... may be revised at any time before the entry of judgment adjudicating all the claims.”). Accordingly, the Court construes the present Motion as brought pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. “An interlocutory order is subject to reconsideration at any time prior to the entry of a final judgment.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir.1991); see Fed.R.Civ.P. 54(b). While the precise standard governing motions to reconsider an interlocutory order is unclear, the Fourth Circuit has stated that Rule 54(b) motions are “not subject to the strict standards applicable to motions for reconsideration of a final judgment.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir.2003); see also R.E. Goodson Constr. Co. v. Int’l Paper Co., CIV.A. 4:02-4184 RBH, 2006 WL 1677136, at *1 (D.S.C. June 14, 2006) (noting that the Fourth Circuit has offered little guidance as to the appropriate standard for evaluating Rule 54(b) motions other than admonishing district courts not to apply the standard for Rule 60(b) motions). Nevertheless, district courts in the Fourth Circuit generally look to Rule 59(e)’s standards for guidance. E.g., Joe Hand Promotions, Inc., 2012 WL 6210334, at *2; Ruffin v. Entm’t of E. Panhandle, 3:11-CV-19, 2012 WL 1435674, at *3 (N.D.W.Va. Apr. 25, 2012). Therefore, a motion to reconsider an interlocutory or-, der may be granted for the following reasons: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not [previously] available ...; or (3) to correct a clear error of law or prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). A motion for reconsideration is not, however, an opportunity to relitigate issues already ruled upon simply because a party is dissatisfied with the outcome. Joe Hand Promotions, 2012 WL 6210334, at *2 (citing R.E. Goodson Constr. Co, 2006 WL 1677136, at *1). Further, such a motion may not be used to raise arguments or introduce evidence that could have been addressed or presented previously. See Exxon Shipping" }, { "docid": "22146043", "title": "", "text": "148 F.3d 396, 403(4th Cir.1998) (explaining that although a Rule 59(e) motion may be granted based on, inter alia, “an intervening change in controlling law,” such “motions may not be used ... to raise arguments which could have been raised prior to the issuance of the judgment ... [or] to argue a case under a novel legal theory that the party had the ability to address in the first instance”), cert. denied, — U.S. -, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999). The intervening law exception to the general rule that the failure to raise an issue timely in the district court waives review of that issue on appeal applies when “there was strong precedent” prior to the change, Curtis Publ’g Co., 388 U.S. at 143, 87 S.Ct. 1975 (plurality opinion), such that the failure to raise the issue was not unreasonable and the'opposing party was not prejudiced by the failure to raise the issue sooner, id. at 145, 87 S.Ct. 1975. Pea Ridge and Oxide maintain that prior to the Supreme Court decision in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131,, 141 L.Ed.2d 451(1998), this court had rejected constitutional challenges to the Coal Act and that Eastern Enterprises changed the law, permitting them to raise the constitutional issue at this juncture. We disagree. First, Eastern Enterprises cannot be viewed as effecting a change in the law of Fifth Amendment takings jurisprudence sufficient to excuse the failure to raise a takings challenge earlier. Eastern Enterprises, decided by a 4-1-4 vote, involved a challenge to the constitutionality of 26 U.S.C.A. § 9706, a provision of the Coal Act different from the one at issue here; that provision imposed retroactive liability for funding the Combined Fund on pre-1978 NBCWA signatories. Four Justices concluded that § 9706 effected an unconstitutional taking. See id. at 2146-53. The remaining five justices rejected the conclusion that an unconstitutional taking was effected, reasoning that the constitutionality of the financial burden on the company imposed by the Coal Act must be considered as a question of substantive due process rather than as a takings question" }, { "docid": "5399440", "title": "", "text": "raised her current waiver-by-removal claim. Normally, we will entertain legal issues raised for the first time on appeal only “in extraordinary instances ... to avoid a miscarriage of justice”. Doleac v. Michalson, 264 F.3d 470, 492 (5th Cir.2001) (quoting Bayou Liberty Ass’n, Inc. v. United States Army Corps of Eng’rs, 217 F.3d 393, 398 (5th Cir.2000)); see also Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n. 19 (5th Cir.2000). While this appeal was pending, however, the Supreme Court held in Lapides, 122 S.Ct. at 1640, that a State’s removal to federal court waived Eleventh Amendment immunity. We have reviewed for plain error issues raised for the first time on appeal in criminal cases when an intervening Supreme Court decision addressed the issue being raised. See, e.g., United States v. Rios-Quintero, 204 F.3d 214, 215-16 (5th Cir.2000). Our circuit, however, does not appear to have addressed this situation in the civil context. Several circuits will consider waived or forfeited (collectively, “waived”) issues when there is an intervening Supreme Court decision. In Holland v. Big River Minerals Corp., 181 F.3d 597, 605-06 (4th Cir.1999), the Fourth Circuit noted an intervening change in the law, recognizing an issue not previously available, can be an exception to the rule that the failure to timely raise an issue in district court waives that issue on appeal. This exception only “applies [, however,] when ‘there was strong precedent’ prior to the change, ... such that the failure to raise the issue was not unreasonable and the opposing party was not prejudiced by the failure to raise the issue sooner”. Id. (quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130, 143, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion)). In applying the exception, the Fourth Circuit concluded an intervening Supreme Court opinion was not a sufficient change in the law and no strong precedent prevented the party from earlier raising the issue. Id. at 606. The supervening decision doctrine of the District of Columbia Circuit allows consideration of waived issues when the “supervening decision has changed the law in appellant’s favor and the law" }, { "docid": "22153389", "title": "", "text": "Wix itself understood this contention to have been raised on appeal, see Br. of Appellees 22-27, and the lawyers came to oral argument prepared to answer meritorious opposition inquiries, which consumed a substantial portion of their time. Put simply, the majority’s position — that the meritorious opposition as sertion was not raised on appeal — is unfounded. Turning to the merits of Robinson’s contention, we have heretofore explained, in reversing the denial of Rule 59(e) relief, that “ ‘[a]buse of discretion’ is a legal term of art; it is not a wooden term but one of flexibility, dependent on the type of case in which it is to be applied and the posture of the case when it arises.” Collison v. Int’l Chem. Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir.1994) (internal quotation marks omitted). Nevertheless, it is beyond peradventure that “[a] district court abuses its discretion when it fails to take relevant factors intended to guide its discretion into account or when it acts on the basis of legal or factual misapprehensions respecting those factors.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 402-03 (4th Cir.1998) (internal quotation marks omitted). Rule 59(e), unlike Rule 60(b), includes no itemized list of potential bases for relief. We have consistently recognized, however, three bases for amending a judgment under Rule 59(e): “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Pac. Ins., 148 F.3d at 403; see also EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th Cir.1997) (same); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993) (same). It is the second aspect of the third factor — to “prevent manifest injustice” — that is implicated by this appeal. In its Order of Denial, the district court recognized that Robinson “contends that there are genuine issues of material fact which should preclude the granting of summary judgment in this matter.” J.A. 185. The court nonetheless disregarded this" }, { "docid": "14965168", "title": "", "text": "either standard, the Plaintiffs must prove that a product defect in MoistureLoc caused their injuries. At the Daubert hearing, the district court essentially rejected that claim for non-Fusarium plaintiffs. See In re Bausch & Lomb Inc., Contact Lens Solution Prods. Liab. Litig., No. 2:06-MN77777-DCN, 2009 WL 2750462 (D.S.C. Aug. 26, 2009). In addition, Fed.R.Evid. 702 allows expert testimony only to the extent that it is reliable. Summary Judgment Appellants adduced no reliable expert testimony prior to summary judgment showing that MoistureLoc caused their injuries. Accordingly, we decline to disturb the district court’s grant of summary judgment. II. Rule 59(e) Motion (No. 10-1634) Cortés-Irizarry appeals the district court’s order denying her Fed.R.Civ.P. 59(e) motion to alter or amend the order granting summary judgment. “This court reviews the denial of a Rule 59(e) motion under the deferential abuse of discretion standard.” Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir.2010). To demonstrate entitlement to relief under Rule 59(e), a movant has to demonstrate (1) an intervening change in controlling law; (2) new evidence not available at trial; or (3) that there has been a clear error of law or a manifest injustice. Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). Measured against these requirements, the district court’s denial of Cortés-Irizarry’s Rule 59(e) motion easily survives appellate scrutiny. While Rule 59 “permits a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings,” motions under that rule may not be used “to raise arguments which could have been raised prior to the issuance of the judgment!)]” Id. (citing cases). The record reveals that Cortés-Irizarry’s medical expert report was dated September 2009; nearly four months before the hearing on Bausch & Lomb’s summary judgment motion. Cortés-Irizarry did not file a separate response to the motion for summary judgment. Rather, she relied on the general response from the Plaintiffs Steering Committee. In her brief on appeal, Cortés-Irizarry states that she relied on the general response because she deemed it to be “a legally comprehensive document.” This" }, { "docid": "22146042", "title": "", "text": "abuse its discretion in “declining to address an issue raised for the first timé in a motion for reconsideration”). But cf. Lawson v. Singletary, 85 F.3d 502, 507 (11th Cir.1996) (per curiam) (concluding that district court abused its discretion in failing to consider issue raised for first time in Rule 59(e) motion). Pea Ridge and Oxide recognize that they failed to raise their constitutional arguments until their Rule 59(e) motion for reconsideration following the final decision in district court. Nevertheless, they assert that their failure to pursue the issue timely does not constitute a waiver of the constitutional argument because they satisfy an exception -to the general rule of waiver. Such an exception exists, they correctly explain, when there has been an intervening change in the law recognizing an issue that was not previously available. See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 142-45, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion); Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir.1981); see also Pacific Ins. Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 403(4th Cir.1998) (explaining that although a Rule 59(e) motion may be granted based on, inter alia, “an intervening change in controlling law,” such “motions may not be used ... to raise arguments which could have been raised prior to the issuance of the judgment ... [or] to argue a case under a novel legal theory that the party had the ability to address in the first instance”), cert. denied, — U.S. -, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999). The intervening law exception to the general rule that the failure to raise an issue timely in the district court waives review of that issue on appeal applies when “there was strong precedent” prior to the change, Curtis Publ’g Co., 388 U.S. at 143, 87 S.Ct. 1975 (plurality opinion), such that the failure to raise the issue was not unreasonable and the'opposing party was not prejudiced by the failure to raise the issue sooner, id. at 145, 87 S.Ct. 1975. Pea Ridge and Oxide maintain that prior to the Supreme Court decision in" }, { "docid": "20130663", "title": "", "text": "ordinary share purchasers for lack of subject matter jurisdiction. However, one reason for that failure was that until the Supreme Court’s recent decision in Morrison, it was well-settled under Second Circuit precedent that American purchasers of a foreign company’s shares could bring Section 10(b) claims. Indeed, Morrison repudiated the Second Circuit’s longstanding jurisprudence to a degree “that would surprise ... generations of American investors — and ... the Congress that passed the Exchange Act.” Id. 130 S.Ct. at 2895 (Stevens’ concurrence.) In this context, Vivendi did not waive its right to seek dismissal of the claims of American purchasers of ordinary shares for failure to state a claim under Rule 12(h)(2), a defense that arose from intervening Supreme Court authority. See Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir.1981) (“In any event a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made, especially when it does raise the objections as soon as their cognizability is made apparent.”) (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 143, 145, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)). The Circuits have recognized that “[a]n exception to normal law of the case and waiver rules is recognized when an intervening decision from a superior court changes the controlling law.” Beazer E. v. Mead Corp., 525 F.3d 255, 263 (3d Cir.2008). In such contexts, the Circuits will allow parties, for example, to raise arguments that they did not raise in their opening briefs. E.g., West v. Ortiz, — Fed.Appx. -, -, 2007 WL 706924, at *5 (10th Cir. Mar. 9, 2007) (allowing an appellant to raise an issue made viable by intervening Supreme Court case law for the first time on reply); DSC Comme’ns Corp. v. Next Level Comme’ns, 107 F.3d 322, 326 n. 2 (5th Cir.1997) (party that waived an issue by failing to include it in its opening brief could raise the issue in a supplemental brief based on an intervening change of law). It would be curious indeed if Vivendi would be allowed" }, { "docid": "22146041", "title": "", "text": "Cir.1996) (noting that although courts generally look with disfavor on arguments presented for first time post-trial, district court possesses the discretion to entertain such arguments and if it excuses the default and addresses the merits, the issue is properly preserved for appellate review); see also Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co., 124 F.3d 508, 519 n.12 (3d Cir.1997) (declining to consider on appeal issue raised for first time in party’s Rule 59(e) motion); Jorge Rivera Surillo & Co. v. Falconer Glass Indus., 37 F.3d 25, 29 (1st Cir.1994) (dismissing arguments raised for first time in Rule 59(e) motion and not addressed on merits by district court as not properly before the appellate court); Havoco of Am., Ltd. v. Sumitomo Corp. of Am., 971 F.2d 1332, 1336 (7th Cir.1992) (stating that arguments that could and should have been made prior to judgment may not be raised for first time in Rule 59(e) motion); cf. 389 Orange St. Partners v. Arnold, 170 F.3d 1200, 1207 (9th Cir.1999) (explaining that a district court does not abuse its discretion in “declining to address an issue raised for the first timé in a motion for reconsideration”). But cf. Lawson v. Singletary, 85 F.3d 502, 507 (11th Cir.1996) (per curiam) (concluding that district court abused its discretion in failing to consider issue raised for first time in Rule 59(e) motion). Pea Ridge and Oxide recognize that they failed to raise their constitutional arguments until their Rule 59(e) motion for reconsideration following the final decision in district court. Nevertheless, they assert that their failure to pursue the issue timely does not constitute a waiver of the constitutional argument because they satisfy an exception -to the general rule of waiver. Such an exception exists, they correctly explain, when there has been an intervening change in the law recognizing an issue that was not previously available. See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 142-45, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion); Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir.1981); see also Pacific Ins. Co. v. American Nat’l Fire Ins. Co.," }, { "docid": "3447922", "title": "", "text": "new trial as a Rule 59(e) motion to alter or amend judgment. See Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir.1994) (Rule 59(e) allows a losing party to “seek the trial court’s reconsideration of its order granting summary judgment if served within 10 days of the rendition of judgment.”). A district court enjoys considerable discretion in granting or denying a motion under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir.1993). Courts typically consider four factors in exercising their discretion: (1) whether the judgment was based upon a manifest error of fact or law; (2) whether the movant presents newly discovered or previously unavailable evidence; (3) whether amendment is necessary to prevent manifest injustice; and (4) whether an intervening change in controlling law has occurred. See Franco v. Maraldo, 2000 WL 288378, at *2 (E.D.La. March 16, 2000); Campbell v. St. Tammany Parish Sch. Bd., 1999 WL 777720, at *2 (E.D.La. Sept.29, 1999); Fields v. Pool Offshore, Inc., 1998 WL 43217, at *2 (E.D.La. Feb.3, 1998). In addition, Courts must attempt to strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts. See Edward H. Bohlin, 6 F.3d at 355. In general, “reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly Pacific Ins. Co. v. American Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998), cert. denied 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999) (quoting 11 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §. 2810.1, at 124 (2d ed.1995)), since “courts and litigants cannot be repeatedly called upon to backtrack through the paths of litigation which are often laced with close questions.” Sussman v. Salem, Saxon & Nielsen, 153 F.R.D. 689, 694 (M.D.Fla.1994). See also Pennsylvania Ins. Guar. Ass’n v. Trabosh, 812 F.Supp. 522, 524 (E.D.Pa.1992) (“Motions for reconsideration should be granted sparingly because of the interests in finality and conservation of scarce judicial resources.”). Ms." }, { "docid": "2420203", "title": "", "text": "statement made in the course of the October 9, 2009 hearing regarding a note holder’s power to expressly create or reserve an easement; and (iii) that, with regard to the existence of an easement by implication, the Reamy house was built in 1925. In a reply memorandum, plaintiff withdrew the motion as to the issue of the Reamy house’s existence in 1925. The parties have now fully briefed and argued these issues. In the course of the November 20, 2009 hearing, the parties agreed that the Memorandum Opinion should be corrected as to the factual description and depiction of the parties’ respective properties. In addition, the parties’ counsel represented that plaintiffs pending objections to the U.S. Magistrate Judge’s order, dated September 25, 2009, is now moot. Accordingly, this Order memorializes and further elucidates the Bench rulings as to plaintiffs Rule 59(e) motion. A motion under Rule 59(e), Fed.R.Civ.P., is considered to be “an ex traordinary remedy that should be used sparingly.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998) (citation omitted). Importantly, the rule should not be used to “relitigate old matters, or to raise arguments or present evidence that could have been raised prior to entry of judgment,” or “if it would serve no useful purpose.” 11 Charles Allen Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 127-28 (2d ed.1995). In this circuit, it is well established that a Rule 59(e) motion may only be granted: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.2002) (citation omitted). Plaintiffs Rule 59(e) motion does not identify an intervening change in controlling law, present evidence not available at the time of disposition, or request clarification of a clear error of law or the prevention of manifest injustice. Nonetheless, in the circumstances, plaintiffs request for clarification of the record is" }, { "docid": "5399441", "title": "", "text": "River Minerals Corp., 181 F.3d 597, 605-06 (4th Cir.1999), the Fourth Circuit noted an intervening change in the law, recognizing an issue not previously available, can be an exception to the rule that the failure to timely raise an issue in district court waives that issue on appeal. This exception only “applies [, however,] when ‘there was strong precedent’ prior to the change, ... such that the failure to raise the issue was not unreasonable and the opposing party was not prejudiced by the failure to raise the issue sooner”. Id. (quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130, 143, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion)). In applying the exception, the Fourth Circuit concluded an intervening Supreme Court opinion was not a sufficient change in the law and no strong precedent prevented the party from earlier raising the issue. Id. at 606. The supervening decision doctrine of the District of Columbia Circuit allows consideration of waived issues when the “supervening decision has changed the law in appellant’s favor and the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless” prior to the intervening decision. United States v. Washington, 12 F.3d 1128, 1139 (D.C.Cir.1994); see also Brown v. M&M/Mars, 883 F.2d 505, 512-13 (7th Cir.1989). The Federal Circuit follows a similar approach when there is an intervening decision. See Forshey v. Principi 284 F.3d 1335, 1355-58 (Fed.Cir.2002) (en banc) (allowing consideration of waived legal issues in appeals from the Court of Appeals for Veteran Claims when: retroactive legislation is passed; there is an intervening Supreme Court or Federal Circuit decision; the correct law or standard of review is not argued by either party; or a pro se litigant appeals). The Tenth Circuit utilizes a much more lenient approach. When there is an intervening change in the law, appellate review of waived legal issues is allowed, particularly when the issues “are questions of law, the proper resolution of which are beyond reasonable doubt, and the failure to address the issues would result in a miscarriage of justice”. Petrini" }, { "docid": "22795423", "title": "", "text": "Rule 59(e) motions may not be used to make arguments that could have been made before the judgment was entered, see Pacific Ins. Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998), which, if we adopted the Commonwealth’s view that the pro se petitioner bears the burden of anticipating exceptions to the statute of limitations, would prevent the petitioner from raising a tolling argument for the first time under Rule 59(e). And, even if a pro se petitioner is not required to anticipate the statute of limitations issue, we still believe that Rule 59(e) is not an adequate avenue for the petitioner to pursue a tolling argument because it affords a narrower basis for relief than is available prior to entry of a judgment. Thus, the better course is for the district court to provide a chance to respond before judgment is entered against the petitioner, not afterwards. See Herbst, 260 F.3d at 1043-44 (holding that Rule 59(e) is not sufficient to permit a pro se petitioner to respond to the sua sponte dismissal of a § 2254 petition for untimeliness). D. Finally, the Commonwealth argues that Hill failed to allege, and that the record does not contain, sufficient facts to support the application of equitable tolling principles or a finding that one of the special circumstances listed in § 2244(d)(1)(B) applies. The only facts alleged by Hill or contained in the summary record are set forth in Hill’s three-sentence Notice of Appeal. We are not in a position to say, based on the insufficient record before us, that Hill cannot, as a matter of law, allege any facts that would entitle him to relief from the effect of the one-year limitations period. The district court is better suited to develop the record in this regard in the first instance. III. For the forgoing reasons, we vacate the decision of the district court and remand for farther proceedings consistent with this opinion. VACATED AND REMANDED. . We have drawn the facts about Hill's state convictions, the length of his sentence, the date on which his appeal" } ]

[ { "docid": "23137365", "title": "", "text": "We consider each defendant and each method of proof in turn. A. The City 1. The Direct Method Tomanovieh argues on appeal that he presented sufficient evidence under the direct method that the City retaliated against him so as to avoid summary judgment. As noted, under the direct method, Tomanovieh must prove that he (1) engaged in a statutorily protected activity; (2) suffered an adverse employment action; and (3) that a causal connection exists between the two. Id. at 903. As to the first element, Tomanovieh points to the three charges of discrimination he filed with the EEOC, noting “[o]b-viously, the filing of a charge of discrimination satisfies the first element .... ” Of course, he is right. See Ajayi v. Aramark Bus. Serv., Inc., 336 F.3d 520, 533 (7th Cir.2003) (holding that there is “no dispute that [the plaintiff] satisfied the first element by filing her EEOC charge”). Therefore, Tomanovieh presented sufficient evidence to satisfy the first prong of the direct method. However, in his brief, in arguing that he presented sufficient direct evidence of retaliation, Tomanovieh also focused on the internal grievance he filed with the City on March 26, 2002, claiming “discriminatory treatment with respect to his pay,” and a “second grievance regarding sexual harassment” on April 25, 2002. Although filing an official complaint with an employer may constitute statutorily protected activity under Title VII, the complaint must indicate the discrimination occurred because of sex, race, national origin, or some other protected class. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir.1997). Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient. Id. (holding that the plaintiffs general complaint about management style without raising the subject of sexual harassment fails to constitute protected activity); Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir.2003) (affirming the district court’s grant of summary judgment to the employer on the plaintiffs retaliation claim because the plaintiffs complaint to his employer “did not invoke any action protected by Title" } ]

[ { "docid": "22765562", "title": "", "text": "conceded that all of its damages were delay damages by failing to clearly argue otherwise in its briefs. Id. at 195. On appeal the construction company attempted to demonstrate that it had preserved its claim by pointing to an affidavit that made the conclusory claim — without identifying any specific instances of damages — that some of its damages were unrelated to delay. Id. at 196. This claim failed, not because the affidavit was self-serving, but because the Federal Rules of Civil procedure require the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Conclusory allegations, unsupported by specific facts, will not suffice. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In addition to lacking personal knowledge, the Weeks and Filippo affidavits failed on the Rule 56(e) specificity requirement as well. Weeks’ testimony failed to set forth any specific representations made by his employer from which a promise of lifetime employment could be inferred, and instead he referred only to the general idea that Asian tradition embraces lifetime employment. Weeks, 126 F.3d at 939. Filippo claimed that her union refused to represent her in her grievances, but she failed to allege with any specificity that she actually filed the necessary form to initiate union representation. Filippo, 141 F.3d at 749. In this case in contrast, Payne’s account is not based on speculation, intuition, or rumor. She has submitted a very detailed factual account of the incident based upon her first-hand experience with Officer Pauley. Those facts conflict with the facts presented by Officer Pauley. Where the material facts specifically averred by one party contradict the facts averred by a party moving for summary judgment, the motion must be denied. Lujan, 497 U.S. at 888, 110 S.Ct. 3177. Pauley also asserts that, because the factual context renders Payne’s claims implausible, she must come forward with more persuasive evidence to support her claim than would otherwise be necessary. See McDonnell v. Cournia, 990 F.2d 963, 967 (7th Cir.1993). There is nothing inherently implausible, however," }, { "docid": "22955889", "title": "", "text": "402 F.3d 729, 735 (7th Cir.2005) (“We have repeatedly stated that the record may include a so-called ‘self-serving’ affidavit provided that it is based on personal knowledge.”); Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir.2003). Sworn affidavits, particularly those that are detailed, specific, and based on personal knowledge are “competent evidence to rebut [a] motion for summary judgment.” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004) (per curiam). II With the standard of review in mind, we turn to the particulars of Kaba’s case. Kaba was incarcerated in the federal prison in Marion, Illinois, from November 2000 through March 2001, when he was transferred. The Marion facility, like all federal prisons, has a multi-step administrative grievance- process for inmate complaints. First, an inmate must attempt to resolve his complaint informally, although that step may be waived at the warden’s discretion if the “inmate demonstrates an acceptable reason for bypassing such informal resolution.” 28 C.F.R. § 542.13(a), (b). If the informal route fails, the inmate has 20 days from the complained-of event to file a written Administrative Remedy Request on the appropriate form to the warden. 28 C.F.R. § 542.14(a). Where the inmate can demonstrate a “valid reason for delay,” an extension of time may be warranted. 28 C.F.R. § 542.14(b). To file the grievance, the inmate must first obtain the appropriate grievance form from the institution staff, “ordinarily, the correctional counsel- or.” 28 C.F.R. § 542.14(c)(1). “If the inmate reasonably believes the issue is sensitive and the inmate’s safety or well-being would be placed in danger if the Request became known at the institution, the inmate may submit the Request directly to the appropriate Regional Director.” 28 C.F.R. § 542.14(d)(1). Finally, if not satisfied with the resolution of the grievance, the inmate may file a written appeal to the Bureau of Prisons’ Regional Director and, if still not satisfied, then to its General Counsel. 28 C.F.R. § 542.15(a). Each of these steps has a prescribed deadline and a particular grievance form outlined in the Code of Federal Regulations, but we need not get into these details because Kaba" }, { "docid": "23040192", "title": "", "text": "affidavits without factual support in the record do not create an issue of material fact”). In contrast, a self-serving affidavit supported by facts in the record could defeat summary judgment. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003). The record, moreover, may include the self-serving affidavit itself, provided that the affidavit “meets the usual requirements for evidence on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there was a genuine issue for trial.” Id. See generally 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738 (3d ed.1998). We apply that standard to the three instances Buie specifies, in which the district court disregarded his affidavit. First is the district court’s refusal to consider Buie’s affidavit as evidence that Connell told Buie “not to come back to work at all until October 21,1999,” after Buie told him on October 15 that he had AIDS. Next is the district court’s refusal to consider Buie’s affidavit as evidence that the version of the altercation between Buie and Bridges as recounted by Bridges and several other employees was incorrect. Last is the district court’s refusal to consider Buie’s affidavit as evidence that he did not confront and threaten Grignon on December 1. As to the latter two instances, both involved parts of the affidavit concerning events that occurred after Buie’s suspension and the imposition of the last chance agreement. Neither, therefore, was relevant to proving that Quad/Graphics made those decisions for an impermissible reason. See Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 513, 515 (7th Cir.2003) (reasoning that a decision cannot be motivated by what the decisionmaker does not yet know). Even if Buie’s brief could be construed as arguing that those parts of the affidavit would have proven that Quad/ Graphics fired Buie not for its professed reasons (his absenteeism and altercation with Grignon), but because he had AIDS and requested FMLA leave, there would still be no ground for relief. The points that Buie was trying to" }, { "docid": "12816018", "title": "", "text": "conclusions he or she infers from the underlying facts. See Fed.R.Evid. 701, 704(a). A summary judgment affidavit may include inferences and opinions as long as they are based on underlying facts of which the affiant has personal knowledge. Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.2003); Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir.1998). And the Rule 56.1 statement itself certainly may include the ultimate factual determinations to be made by the trier of fact. Those statements, though, must be sufficiently supported by the cited evidence or related evidence upon which it relies. In any event, it is a factual statement, not a legal conclusion, that a person decided to withdraw an offer. See Def. 56.1(a)(3) ¶¶ 29, 34. Cf. Taylor v. Canteen Corp., 69 F.3d 773, 784 (7th Cir.1995) (factual issues as to whether contract offer was accepted); R & B Group, Inc. v. BCI Burke Co., 982 F.Supp. 549, 555 (N.D.Ill.1997). The legal effect of such action is the legal issue. It is also a factual statement when a person states his reasons for taking a particular action. See Def. 56.1(a)(3) ¶¶ 32-34. Cf. Eastridge v. Rhode Island College, 996 F.Supp. 161, 167 (D.R.I.1998). II. Objection 9 Plaintiff objects to certain statements in affidavits as being self-serving without adequate factual support. Seventh Circuit case law supports “the proposition that self-serving, uncorroborated, and conclusory statements in testimony are insufficient to defeat a motion for summary judgment.” Payne, 337 F.3d at 773 (collecting cases). “It is not the self-serving nature of the affidavits, however, that sealed their fate in these cases. After all, most affidavits submitted for these purposes are self-serving.” Id. Instead, the affidavits failed to defeat summary judgment because they were not based on personal knowledge, contained speculative conclusions, or were conclusory. Id. at 772-73. Characterizing the evidentiary support as self-serving adds nothing to the objection. The evidentiary support will only be found to be deficient to the extent it is not based on personal knowledge or lacks support for the underlying facts, see App. § G supra, or because it is" }, { "docid": "22955888", "title": "", "text": "exhaustion is an affirmative defense, and consequently the burden of proof is on the prison officials. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). Furthermore, review of a district court’s exhaustion finding is de novo. Id. As with any review of a case upon summary judgment, we draw all reasonable inferences in the light most favorable to the non-moving party. See Jenkins v. Yager, 444 F.3d 916, 921 (7th Cir.2006). Furthermore, as a pro se litigant, Kaba is entitled to have his complaint be liberally construed. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir.2006). Finally, though we have warned against this practice repeatedly in our opinions, the respondents in this case fall into the trap of trying to discredit Kaba’s affidavits as “self-serving.” As we have said before, “[m]ost affidavits are self-serving, as is most testimony, and this does not permit a district judge to denigrate a plaintiffs evidence when deciding whether a material dispute requires trial.” Wilson v. McRae’s, Inc., 413 F.3d 692, 694 (7th Cir.2005). See Dalton v. Battaglia, 402 F.3d 729, 735 (7th Cir.2005) (“We have repeatedly stated that the record may include a so-called ‘self-serving’ affidavit provided that it is based on personal knowledge.”); Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir.2003). Sworn affidavits, particularly those that are detailed, specific, and based on personal knowledge are “competent evidence to rebut [a] motion for summary judgment.” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004) (per curiam). II With the standard of review in mind, we turn to the particulars of Kaba’s case. Kaba was incarcerated in the federal prison in Marion, Illinois, from November 2000 through March 2001, when he was transferred. The Marion facility, like all federal prisons, has a multi-step administrative grievance- process for inmate complaints. First, an inmate must attempt to resolve his complaint informally, although that step may be waived at the warden’s discretion if the “inmate demonstrates an acceptable reason for bypassing such informal resolution.” 28 C.F.R. § 542.13(a), (b). If the informal route fails, the inmate has 20 days from the complained-of event to file" }, { "docid": "7841956", "title": "", "text": "absence of counsel likely prejudiced Navejar because the district court’s ruling on summary judgment reveals two substantive errors. First, the court adopted the erroneous legal argument raised by the defendants in moving for summary judgment that Navejar could not rely on “self-serving evidence” to create a material factual dispute. This is wrong. “[W]e long ago buried — or at least tried to bury — the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); see also Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504-06 (7th Cir.2004); Payne v. Pauley, 337 F.3d 767, 770-73 (7th Cir.2003). Here, Navejar attempted to present his side of the story at summary judgment through his affidavits and specific references to his deposition testimony. He contended that after he was subdued and handcuffed, Iyiola kicked him in the face, a prison guard stomped his head, guards dragged him across the floor, Grant and Iyiola pepper-sprayed him, and then left him alone for 30 minutes screaming in pain. With Navejar lacking counsel to reply to the defendants’ erroneous contention that the district court may safely disregard his “self-serving” evidence, the district court accepted that contention and thereby prejudiced Navejar. Second, the defendants argued that Navejar’s excessive-force claim was Heck-barred because the prison board found Navejar guilty of disobeying orders and assaulting Iyiola. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court again agreed with the guards, ruling that Heck bars the excessive-force claim. We disagree, observing as we have before that pro se prisoners are often tripped up by Heck’s complexities. See Evans v. Poskon, 603 F.3d 362, 364 (7th Cir.2010); Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008). Navejar cannot deny that he disobeyed orders or assaulted Iyiola because those denials would “necessarily imply” the invalidity of his discipline." }, { "docid": "22765559", "title": "", "text": "that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge, 24 F.3d at 921. The defendant points to a number of cases from this Circuit for the proposition that self-serving, uncorroborated, and con-clusory statements in testimony are insufficient to defeat a motion for summary judgment. (Response Brief of Defendant-Appellant at 15) (citing Weeks, 126 F.3d at 939; Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 446 (7th Cir.1997); Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744, 749 (7th Cir.1998); Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir.1993)). It is not the self-serving nature of the affidavits, however, that sealed their fate in these cases. After all, most affidavits submitted for these purposes are self-serving. Instead, these affidavits fail to thwart summary judgment because they are not based on personal knowledge as required by both the Federal Rule of Civil Procedure on summary judgment, Rule 56(e) (“[supporting and opposing affidavits shall be made on personal knowledge”), and by Federal Rule of Evidence 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Furthermore, although personal knowledge may include reasonable inferences, those inferences must be “grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.” Visser v. Packer Eng’g Assoc., 924 F.2d 655, 659 (7th Cir.1991) (en banc). In the cases that the defendant cites— and in many employment discrimination cases for that matter — the plaintiff unsuccessfully attempts to thwart summary judgment by speculating as to the defen-danVemployer’s state of mind. See Filippo, 141 F.3d at 750 (employee’s speculation that union retaliated against her for running for local union president not sufficient to create genuine issue of material fact to defeat summary judgment motion); Cowan, 123 F.3d at 444 (perpetually tardy employee could not defeat motion for summary judgment with mere inference that termination" }, { "docid": "11676939", "title": "", "text": "were treated more favorably. It was undisputed that all of the candidates had more relevant experience than Butts. Butts contends that Aurora did not submit any documentary evidence to corroborate the self-serving affidavits of Butschli and Tuszkiewicz, both of whom attested that they did not promote Butts because she had less computer experience. It is true that self-serving statements in affidavits without factual support in the record carry no weight on summary judgment. Buie v. Quad/Chuphics, Inc., 366 F.3d 496, 504 (7th Cir.2004) (internal quotation omitted). But here, the supervisors’ conclusory statement that Butts was less qualified had additional support in the record. Butts acknowledged in her deposition that four of the six candidates who beat her out had more experience and that their promotions were good decisions. And Butschli and Tuszkiewicz described in great detail the specific work experience of the other two candidates, establishing that they were more qualified than Butts. See id. (court may consider self-serving statements in affidavits if they are based on personal knowledge and set forth specific facts); Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003) (same). Thus, contrary to Butts’ argument, additional documentary evidence was not required. Butts also assails the judge’s refusal to allow her to amend her complaint under Fed.R.Civ.P. 15. Although leave to file an amended complaint should be granted liberally, a request to amend may be denied on several grounds, including undue delay. E.g., Guise v. BWM Mortgage, L.L.C., 377 F.3d 795, 801 (7th Cir. 2004). We review a denial of a motion to amend only for an abuse of discretion. E.g., Dubicz v. Commomvealth Edison Co., 377 F.3d 787, 792 (7th Cir.2004). We cannot conclude, under the circumstances here, that Judge Goodstein abused his discretion. Butts complains that it was unreasonable for the judge to deny her leave to amend shortly after helping her secure counsel. We are sympathetic to her position. She argues that she originally believed her abandoned claims were untimely but, after getting counsel, came to a different view and reasonably asked the judge for another shot. Why not give her the opportunity to" }, { "docid": "23324961", "title": "", "text": "racial and gender animus motivated GSA’s decision as reflected by its minimal investigation and the decision not to interview or warn him before firing him. We begin by noting that the district court discredited Hill’s testimony about his interactions with coworkers because of its “self-serving” nature. Hill v. Johnson, No. 11 C 2144, 2012 WL 4488442, at *2 n. 6 (N.D.Ill. Sept. 27, 2012). This was error. Deposition testimony, affidavits, responses to interrogatories, and other written statements by their nature are self-serving. Payne v. Pauley, 337 F.3d 767, 771 (7th Cir.2003). As we have repeatedly emphasized over the past decade, the term “selfserving” must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment. See Navejar v. Iyiola, No. 12-1182, 2013 WL 2321349, at *4 (7th Cir. May 29, 2013); Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Paz v. Wauconda Healthcare & Rehabilitation Centre, LLC, 464 F.3d 659, 664-65 (7th Cir.2006); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir.2004). Hill described the three encounters in his deposition based on his personal knowledge and set forth specific facts and the district court should have considered his statements as evidence. See Fed.R.Civ.P. 56(c); Kellar v. Summit Seating Inc., 664 F.3d 169, 175 (7th Cir. 2011); Whitlock v. Brown, 596 F.3d 406, 411-12 (7th Cir.2010). But summary judgment in favor of GSA was still proper because Hill cannot show pretext, which is relevant to the prima facie case where, as here, an employer cites failure to meet legitimate expectations as the reason for discharge. See Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477-78 (7th Cir.2010); O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.2011); Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006). An inquiry into pretext requires that we evaluate the honesty of the employer’s explanation, rather than its validity or reasonableness, see O’Leary, 657 F.3d at 636-37; Montgomery v. Am. Airlines, Inc.," }, { "docid": "3484956", "title": "", "text": "support in the record; (4) inferences or opinions not grounded in observation or other firsthand experience; and (5) mere speculation or conjecture. Smith v. Hydro Aluminum N. Am., Inc., No. 3:08-CV-153, 2010 WL 1382113, at *1 (N.D.Ind. Mar. 30, 2010); Heltzel v. Dutchmen Mfg., Inc., No. 3:06-CV-227, 2007 WL 4556735, at *4 (N.D.Ind. Dec. 20, 2007) (quotation marks and citations omitted). Although “self-serving statements in affidavits without factual support in the record carry no weight,” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir.2004) (emphasis omitted), “a self-serving affidavit supported by facts in the record [can] defeat summary judgment,” and the record “may include the self-serving affidavit itself, provided that the affidavit meets the usual requirements for evidence on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there was a genuine issue for trial,” Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir.2004) (quotation marks and citations omitted). The Defendants argue that the Affidavit of Philip Rodenbeck and the Affidavit of J. Maxine Melching are replete with inadmissible hearsay, unsupported assertions, and “beliefs” that are not admissible evidence. They request that the statements be stricken or, in the alternative, ignored by the Court in ruling on the various motions for summary judgment. As to the Rodenbeck Affidavit, they identify Paragraphs 2, 4, and 8 through 11. As to the Melching Affidavit, they identify Paragraphs 3, 4, 6, 8 through 15, and 17 through 20. The Plaintiffs respond that the affidavits should not be stricken because each, when read as a whole and in the context of the matters at issue, demonstrates the personal knowledge of the affiant, shows the affiant is competent, and sets forth facts as would be admissible at trial. In this Section of this Opinion and Order, the Court will evaluate the statements challenged by the Defendants in their Motion to Strike. In the next Section, as the Court addresses the legal issues presented by the Defendants’ Motion for Partial Summary Judgment and analyzes the facts under the governing" }, { "docid": "9948008", "title": "", "text": "be given an innocent construction. Tuite v. Corbitt, 224 Ill.2d 490, 502, 310 Ill.Dec. 303, 866 N.E.2d 114 (Ill.2006). Stating that Widmar “had made a change that screwed things up for the company” says nothing about his ability to perform in his position in general — only that he had made a particular error at Sun Chemical. This type of comment is not defamation per se. See Green, 334 Ill.Dec. 624, 917 N.E.2d at 465. For all of these reasons, the judgment of the district court granting summary judgment to Sun Chemical is AFFIRMED. . We remind district courts of our attempts to rid our circuit’s opinions of language critical of the \"self-serving affidavit:” We hope this discussion lays to rest the misconception that evidence presented in a \"self-serving” affidavit is never sufficient to thwart a summary judgment motion. Provided that the evidence meets the usual requirements for evidence presented on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial — a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts. Id. at 773. See also Hill v. Tangherlini, 724 F.3d 965, 967-68 & n. 1 (7th Cir.2013) (noting that the term \" 'self serving’ must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment” and overruling all Seventh Circuit cases that suggest that a plaintiff may not rely on \"self-serving” evidence to defeat summary judgment); Rooni v. Biser, 742 F.3d 737, 740 (7th Cir.2014); Navejar v. Iyiola, 718 F.3d 692, 697 (7th Cir.2013); Beny v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 664-65 (7th Cir.2006); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir.2004)." }, { "docid": "22955902", "title": "", "text": "permitted it. Given the timing of his transfer, he was unable to file a grievance within the appropriate period. Id. at 655. The district court rejected Dale’s evidence, discounting his affidavit as “bald assertions” even though Dale had provided detailed information about the specific form he had requested, the prison employees from whom he requested forms, and the receipt of blank paper instead of forms. Id. at 655-56. This court observed: If prison employees refuse to provide inmates with those forms when requested, it is difficult to understand how the inmate has any available remedies. Just as prison employees cannot exploit the exhaustion requirement by not responding to grievances, see Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002), they should not be rewarded for preventing an inmate access to an administrative remedy, see Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.2003) (holding that district court erred in failing to consider prisoner’s claim that he was unable to submit a grievance, and therefore lacked available administrative remedies, because prison employees refused to provide him with the necessary forms); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001) (“[A] remedy that prison officials prevent a prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a).” (alteration in original)). The defendants in this case have yet to give any reason why Dale was refused the forms he requested, or to explain how he could use the administrative grievance system without the forms mandated for that purpose. Id. at 656. The prison officials in Kaba’s case argue that no reasonable factfinder could find that administrative remedies were not available to him, because he filed three grievances while at Marion prior to the attack, including the one several days before the beating, and he filed both an FTCA claim and this lawsuit within days of the attack. Kaba counters that he attempted to file grievances up to and through the attack, but that he was denied forms, intimidated into not pursuing formal grievances, and retaliated against for attempting to pursue administrative relief. The attack in his cell, he points out, is exactly" }, { "docid": "867599", "title": "", "text": "First Amendment retaliation claims by prisoners, we apply the same test whether the expressive activity is in the nature of a petition or some other form of speech, E.g., Bridges v. Gilbert, 557 F.3d 541, 551-52 (7th Cir. 2009) (inmate stated First Amendment claim for retaliation in response to his submission of an affidavit in a separate suit filed by fellow inmate’s mother); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (inmate may state valid First Amendment claim for retaliation in response to grievance regardless whether inmate reduced his complaints \"to writing on an official grievance form” or expressed them orally). In the prison context, \"we examine whether the prisoner engaged in speech in a manner consistent with legitimate penological interests,” though we do not require the prisoner to show that he spoke on a matter of public concern (even if the prisoner was employed by the prison, as many inmates are), and in that respect prisoner claims are analyzed somewhat differently than public-employee claims. See Watkins v. Kasper, 599 F.3d 791, 795 (7th Cir. 2010). Compare Herron v. Meyer, 820 F.3d 860, 864 (7th Cir. 2016) (observing that \"decisions in the prison-grievance line do not explain why the First Amendment offers greater protection to prisoners than to public employees”), with Ogurek v. Gabor, 827 F.3d 567, 569 (7th Cir. 2016) (citing Watkins, 599 F.3d at 795, for proposition that “the dynamics of the government’s relationships with prisoner-employees and with public employees are too dissimilar to transfer the public concern test to the prison context”). . Many of these statutory provisions were in effect even prior to enactment of House Bill 1698. . In their brief -in opposition to the defendants’ motion to dismiss (but not in their appellate brief), plaintiffs urged that if the district court should \"conclude that the complaint is factually lacking,” the court should afford them an \"opportunity to file an amended complaint.” However, plaintiffs offered no explanation as to any revisions they might include in such an amended complaint, nor did they submit a proposed amended complaint or file a motion for leave" }, { "docid": "4171266", "title": "", "text": "According to Owens, he gave this grievance to his counselor but never received a reply, and so he forwarded copies to the grievance officer in February 2005 and to the Administrative Review Board in June 2005. The district court acknowledged the significance of this grievance but concluded that, since Owens had not discussed it in an affidavit or deposition, he lacked admissible evidence that he gave the grievance to prison officials. In this respect, the court erred. Owens verified his response in opposition to the defendants’ motion for summary judgment, and that was enough to make his allegations admissible. See 28 U.S.C. § 1746. As the district court noted, Owens’s submission was not literally an “affidavit” because he did not swear to the content in the presence of someone authorized to administer oaths. See Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.2006); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985); Black’s Law Dictionary 66 (9th ed. 2009). Nevertheless, a declaration under § 1746 is equivalent to an affidavit for purposes of summary judgment. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 749 n. 5 (11th Cir.2010); El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.2008); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004); Ford v. Wilson, 90 F.3d 245, 246 (7th Cir.1996). Yet even taking Owens at his word, we conclude that he failed to exhaust. When an informal resolution is not achieved by talking to a counselor, an inmate in Illinois has 60 days from the date of the underlying incident to submit a written grievance to the facility’s designated grievance officer. 20 III. Admin. Code § 504.810; Dole, 438 F.3d at 809; Dixon v. Page, 291 F.3d 485, 489 (7th Cir.2002). Owens ended his second hunger strike three days before he drafted the August 8 grievance, and so he had until early October 2004 to give it to the grievance officer. By his own admission, Owens inexplicably waited until February 2005. By then it was too late. In the alternative the defendants argue that a lack of evidence provided an" }, { "docid": "14717099", "title": "", "text": "‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir.2008)). Gomez easily satisfies all three prongs at the pleading stage. First, Gomez alleges that he used the prison’s grievance system to address his injury and the lack of treatment he received following his injury. “A prisoner has a First Amendment right to make grievances about conditions of confinement.” Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir.2010). In addition, Gomez suffered a deprivation when he was transferred from Stateville to Menard, where he had known enemies. “[A]n act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for different reasons, would have been proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.1987). Moreover, it can be inferred that this punishment would likely deter future First Amendment activity. Finally, Gomez alleges that the IA investigator, sent to intimidate him by IDOC Director Randle, threatened Gomez with a transfer to Menard. Even after Gomez indicated that he would no longer pursue his grievance or file a lawsuit if he could stay at Stateville, he was told it was “too late.” No other explanation for Gomez’s transfer is available at this early stage in the proceedings. Thus, we conclude from Gomez’s complaint that his grievance was a motivating factor in the defendants’ decision to transfer him to Menard. Because Gomez properly asserted a claim for retaliation, his complaint was prematurely dismissed. III. Conclusion For the foregoing reasons, we Affirm in part, Reverse in part, and Remand this matter to the district court for proceedings consistent with this opinion. Circuit Rule 36 shall apply. . A plaintiff's lack of knowledge about a defendant’s identity is not a \"mistake” within the meaning of Federal Rule of Civil Procedure 15(c) such that the plaintiff could amend his complaint outside the statute of limitations period upon learning the defendant’s identity. See Baskin v. City of Des Plaines, 138 F.3d 701, 704" }, { "docid": "23322947", "title": "", "text": "(7th Cir.1995) (citation omitted). To be personally responsible, an official “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Id. (citation and internal quotation omitted). The magistrate judge granted summary-judgment to defendant Snyder because Snyder was not personally involved or responsible for the conditions about which Johnson complains. Johnson claims that there is a genuine issue of material fact as to Snyder’s knowledge and involvement. To this end, Johnson submits a self-serving affidavit stating that he informed Snyder and the other defendants of his condition, requested his crutch, and informed them of his fall. Cf. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001) (holding that “self-serving affidavits without factual support in the record will not defeat a motion for summary judgment.” (internal quotation and citations omitted)). Even crediting this generalized affidavit, its contents do not overcome the affidavit of Nancy S. Tucker, the Manager of IDOC’s Office of Inmate Issues, which describes the grievance process. Tucker explicitly states that “Director Snyder did not personally receive, review or decide appeals of inmate grievances,” and explains how such tasks were delegated to others in the department. To survive summary judgment, Johnson “needed to offer some record evidence that because of the purported letters, the defendant officials knew of a constitutional deprivation and approved it, turned a blind eye to it, failed to remedy it, or in some way personally participated.” Vance v. Peters, 97 F.3d 987, 994 (7th Cir.1996) (citing Genti-y, 65 F.3d at 561). The fact that Johnson sent a letter or letters to Director Snyder is insufficient to create a genuine issue of material fact regarding defendant Snyder. See Vance, 97 F.3d at 993 (in addition to alleging correspondence with a prison official, a “plaintiff still has the burden of demonstrating that the communication, in its content and manner of transmission, gave the prison official sufficient notice to alert him or her to ‘an excessive risk to inmate health or safety.’ ” (citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994))). Critically, there" }, { "docid": "23040191", "title": "", "text": "Last Chance Agreement was because Mr. Buie disclosed that he had AIDS.” We review for an abuse of discretion the district court’s decision to disregard parts of a plaintiffs affidavit. Patterson v. Chicago Ass’n for Retarded Citizens, 150 F.3d 719, 723 (7th Cir.1998). For Buie to be entitled to relief, he must show both that the district court erred and that the exclusion of this evidence prejudiced his “substantial rights” under Federal Rule of Civil Procedure 61. Rogers, 320 F.3d at 751. The district court excluded several parts of Buie’s affidavit, citing Al-biero v. City of Kankakee, 246 F.3d 927 (7th Cir.2001), for the proposition that “self-serving affidavits are insufficient to defeat summary judgment.” In Albiero, however, we held merely that self-serving statements contained in an affidavit will not defeat a motion for summary judgment when those statements are “without factual support in the record.” Id. at 933 (emphasis added) (quoting Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993)); see also Rogers, 320 F.3d at 751 (construing Albiero as holding that “self-serving affidavits without factual support in the record do not create an issue of material fact”). In contrast, a self-serving affidavit supported by facts in the record could defeat summary judgment. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003). The record, moreover, may include the self-serving affidavit itself, provided that the affidavit “meets the usual requirements for evidence on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there was a genuine issue for trial.” Id. See generally 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738 (3d ed.1998). We apply that standard to the three instances Buie specifies, in which the district court disregarded his affidavit. First is the district court’s refusal to consider Buie’s affidavit as evidence that Connell told Buie “not to come back to work at all until October 21,1999,” after Buie told him on October 15 that he had AIDS. Next is the district court’s refusal to consider Buie’s" }, { "docid": "3484955", "title": "", "text": "facts, but rather merely use[s] them to determine whether the ease can be resolved as a matter of law.” Id. at 762 (citation omitted). A court may rely on all admissible evidence, even if the evidence is not presented in admissible form. Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.2002). Affidavit testimony must concern matters within the affiant’s personal knowledge. Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.2003); see also Fed.R.Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Personal knowledge is not a rigid requirement; it also “includes opinions and inferences grounded in observations or other firsthand experience.” United States v. Joy, 192 F.3d 761, 767 (7th Cir.1999) (citing Visser v. Packer Eng’g Assoc., Inc., 924 F.2d 655, 659 (7th Cir.1991)). The following statements do not comply with the rule and should be disregarded: (1) conclusory allegations lacking supporting evidence; (2) legal argument; (3) self-serving statements without factual support in the record; (4) inferences or opinions not grounded in observation or other firsthand experience; and (5) mere speculation or conjecture. Smith v. Hydro Aluminum N. Am., Inc., No. 3:08-CV-153, 2010 WL 1382113, at *1 (N.D.Ind. Mar. 30, 2010); Heltzel v. Dutchmen Mfg., Inc., No. 3:06-CV-227, 2007 WL 4556735, at *4 (N.D.Ind. Dec. 20, 2007) (quotation marks and citations omitted). Although “self-serving statements in affidavits without factual support in the record carry no weight,” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir.2004) (emphasis omitted), “a self-serving affidavit supported by facts in the record [can] defeat summary judgment,” and the record “may include the self-serving affidavit itself, provided that the affidavit meets the usual requirements for evidence on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there was a genuine issue for trial,” Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir.2004) (quotation marks and citations omitted). The Defendants argue that the Affidavit of Philip Rodenbeck" }, { "docid": "14717098", "title": "", "text": "lockdown. The medical technician, in Dunlap’s presence, assured Gomez that she would bring medical supplies to his cell. Dunlap and the medical technician then left the area together. These allegations do not establish that Dunlap acted or failed to act in disregard to Gomez’s injury. Everything in Gomez’s complaint indicates that Dunlap was not deliberately indifferent to Gomez’s serious medical needs. Thus, the deliberate indifference claim against Dunlap was properly dismissed and Dunlap should no longer be a party to this case. C. Retaliation Finally, Gomez asserts a claim of retaliation in violation of his First Amendment right to use the prison grievance system. The district court failed to address this claim entirely in its opinion dismissing Gomez’s complaint. Again, we find that Gomez’s complaint properly states a claim for relief. To prevail on his First Amendment retaliation claim, Gomez must show that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir.2008)). Gomez easily satisfies all three prongs at the pleading stage. First, Gomez alleges that he used the prison’s grievance system to address his injury and the lack of treatment he received following his injury. “A prisoner has a First Amendment right to make grievances about conditions of confinement.” Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir.2010). In addition, Gomez suffered a deprivation when he was transferred from Stateville to Menard, where he had known enemies. “[A]n act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for different reasons, would have been proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.1987). Moreover, it can be inferred that this punishment would likely deter future First Amendment activity. Finally, Gomez alleges that the IA investigator, sent to intimidate him by" }, { "docid": "7841955", "title": "", "text": "law. See, e.g., Hutcherson v. Cook Cnty., No. 10C6215, 2010 WL 3951897, at *2 (N.D.Ill. Oct. 6, 2010); Banks v. Mills, No. 10C1486, 2010 WL 3307356, at *1 (N.D.Ill. Aug. 19, 2010); Logan v. Godinez, No. 10C4418, 2010 WL 2836957, at *3 (N.D.Ill. July 19, 2010). And these are only the rulings searchable through public databases; doubtless district judges have also used this obsolete language in orders not captured in these databases. We therefore take this opportunity to remind district courts about the individualized analysis that Pruitt requires, see 503 F.3d at 655-56, and caution against using boilerplate language that we criticized en banc. Even though the district court applied the wrong standard, we will not reverse without a showing of prejudice — a “reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis removed). Prejudice (unlike abuse of discretion) may be established by an after-the-fact review “of a litigant’s poor performance before or during trial.” Id. at 659-60. In this case, the absence of counsel likely prejudiced Navejar because the district court’s ruling on summary judgment reveals two substantive errors. First, the court adopted the erroneous legal argument raised by the defendants in moving for summary judgment that Navejar could not rely on “self-serving evidence” to create a material factual dispute. This is wrong. “[W]e long ago buried — or at least tried to bury — the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); see also Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504-06 (7th Cir.2004); Payne v. Pauley, 337 F.3d 767, 770-73 (7th Cir.2003). Here, Navejar attempted to present his side of the story at summary judgment through his affidavits and specific references to his deposition testimony. He contended that after he was subdued and handcuffed, Iyiola kicked him in the face, a prison guard stomped his head, guards dragged him across" } ]

[ { "docid": "4320872", "title": "", "text": "was formed at a previous date to obtain and sell drugs. . See United States v. Infante, 404 F.3d 376, 387 (5th Cir.2005); see also United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir.1997). . See United States v. Sinclair, 438 F.2d 50, 51 n. 1 (5th Cir.1971) (\"[T]he power to grant a new trial ... should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.”). . United States v. Tarango, 396 F.3d 666, 672 (5th Cir.2005) (\"In our capacity as an appellate court, we must not revisit evidence, reevaluate witness credibility, or attempt to reconcile seemingly contradictory evidence”) (citing United States v. Dula, 989 F.2d 772, 778-79 (5th Cir.1993)). This rule is sensible: The jury in the first instance, and the district court on rule 33 review, were in superior positions to evaluate the credibility of the witnesses, because they were able to observe their demeanors. See United States v. Valentine, 401 F.3d 609, 614 (5th Cir.2005), cert. denied, — U.S. —, 125 S.Ct. 2905, 162 L.Ed.2d 298 (2005). . See Guidry, 406 F.3d at 322 (reviewing Booker error under plain error standard where defendant failed to object on Appren-di/Blakely Sixth Amendment grounds at sentencing). . The guidelines, U.S.S.G. § 2D1.1(c)(5), authorize a base offense level of 30 where the amount of methamphetamine is \"[a]t least 350 G but less than 500 G.” . See, e.g., United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005) (finding Booker error, although not plain, where \"[the defendant's] sentence was enhanced based on findings made by the judge that went beyond the facts admitted by the defendant or found by the jury. The jury found that [the defendant], a felon, possessed ammunition. The judge enhanced the sentence based on a finding that his finding that [the defendant] was involved in a felony when he committed the offense. [The defendant] has therefore established Booker error”), petition for cert. filed (March 31, 2005) (No. 04-9517); see also Guidry, 406 F.3d at 323. .A showing of prejudice is required, because we have determined that Booker error is not" } ]

[ { "docid": "22647393", "title": "", "text": "See 18 U.S.C. § 201(b)(2). The district court considered the 18 U.S.C. § 3553(a) factors and concluded that a guidelines sentence satisfied those factors. The district court sentenced Ruiz to 168 months of imprisonment and three years of supervised release. Ruiz timely appealed. II. Because Ruiz was sentenced after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220,125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews his sentence for reasonableness in light of the factors set forth in § 3553(a). See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). A district court must consider all facts relevant to sentencing in the same manner as before Booker in determining the advisory guidelines range. United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.2006). This court must determine whether the sentence imposed is procedurally sound and substantively reasonable. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence is procedurally sound if “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. This court reviews a district court’s application 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). A presumption of reasonableness applies to sentences that fall within the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). Any challenge to that presumption is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357, 367 & n. 7 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). A. Ruiz argues that the district court procedurally erred when it applied the cross-reference provision in § 2Cl.l(c) to determine his" }, { "docid": "16168503", "title": "", "text": "in exiting the vehicle with Peralta at Church’s Chicken, speaking on the phone with King, wiring money to King, referring to himself as the person who would “receive” the vehicle, and entering the vehicle with King all indicate that he was actively participating in the venture. See Pando Franco, 503 F.3d at 394. Ceballos’s story reasonably could have been rejected by the jury as implausible. See United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.1995) (resolving credibility determinations in favor of the verdict). There was sufficient evidence that Ceballos participated in the offense and shared in the intent to possess marijuana with the intent to distribute it. See Pando Franco, 503 F.3d at 393-94. Thus, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found Ceballos guilty beyond a reasonable doubt. See Percel, 553 F.3d at 910. B. Enhancement for Leadership Role (Ceballos only) Ceballos argues that the district court erred in applying a two-level leadership enhancement under § 3Bl.l(c). He contends that the district court, in making the determination to apply the enhancement, relied on evidence in the PSR that was not presented at trial. He further asserts that the evidence in the record shows only that he acted at the direction of Peralta. Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentences are reviewed for reasonableness in light of the sentencing 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), we must determine whether the sentence imposed is procedurally sound, including whether the calculation of the advisory guidelines range is correct, and whether the sentence imposed is substantively reasonable. Review of the sentence’s reasonableness is for an abuse of discretion. Id. We review the district court’s interpretation and application of the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). Section 3Bl.l(c) provides for" }, { "docid": "22452099", "title": "", "text": "Fed.Appx. 971, 971 (5th Cir.2004) (the defendant was not entitled to a mitigating role instruction because he constructed a hidden compartment in which he concealed the large amount of drugs for which he was charged); United States v. Turincio, 78 Fed.Appx. 344, 347-48 (5th Cir.2003) (the defendant was not entitled to a mitigating role reduction because he was not charged with participating in a larger conspiracy but was sentenced based only on use of his residence to store drugs). . United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006) (quoting United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), pet. for cert. filed (U.S. May 18, 2006) (No. 05-11144). . United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006). . Id. . United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006) (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, - U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . 402 F.3d at 511. . United States v. Reasor, 418 F.3d 466, 478 (5th Cir.2005). . United States v. Guerra, 94 F.3d 989, 995 (5th Cir.1996). . Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.2000) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)) (internal quotation marks omitted). . Id. at 364-65. . Id. at 365. . Fed. R.Crim. P. 11(b)(2). . Cf. United States v. Rodriguez, 197 F.3d 156, 158 (5th Cir.1999) (noting that Federal Rule of Criminal Procedure 11 prohibits courts from participating in plea negotiations, in part to lessen the likelihood of judicial coercion of a guilty plea, regardless of whether the coercion would actually render the plea involuntary); Fed. R.Crim. P. 11(c)(1) (\"An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions.”). . Cf. United States v. Woolley, 123 F.3d 627, 632-34 (7th Cir.1997) (holding that the defendant voluntarily entered into a" }, { "docid": "22452098", "title": "", "text": "142, 144 (4th Cir.2004); United States v. Gilliam, 127 Fed.Appx. 820, 823 (6th Cir.), cert. denied, - U.S. -, 126 S.Ct. 203, 163 L.Ed.2d 199 (2005); United States v. Martinez, 301 F.3d 860, 866 (7th Cir.2002); United States v. Trepagnier, 168 F.3d 496 (8th Cir.1998) (unpublished); United States v. Carrizales, 102 Fed.Appx. 628, 629-30 (9th Cir.2004); United States v. Mancinni-Cantu, 61 Fed.Appx. 533, 534-35 (10th Cir.2003). . Tang, 214 F.3d at 371 (citing U.S.S.G. § 5K1.1(a)(4)). . United States v. Montanez, 82 F.3d 520, 523 (1st Cir.1996). . See, e.g., Tang, 214 F.3d at 371. . See United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir.2003). . See United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir.2001) (the defendant was not entitled to a mitigating role reduction because he was sentenced based only on his direct involvement, which was storing drugs on his property); United States v. Moya, 108 Fed. Appx. 930, 931 (5th Cir.2004) (same), cert. denied, 543 U.S. 1080, 125 S.Ct. 942, 160 L.Ed.2d 824 (2005); United States v. Cazares-Alvarado, 101 Fed.Appx. 971, 971 (5th Cir.2004) (the defendant was not entitled to a mitigating role instruction because he constructed a hidden compartment in which he concealed the large amount of drugs for which he was charged); United States v. Turincio, 78 Fed.Appx. 344, 347-48 (5th Cir.2003) (the defendant was not entitled to a mitigating role reduction because he was not charged with participating in a larger conspiracy but was sentenced based only on use of his residence to store drugs). . United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006) (quoting United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), pet. for cert. filed (U.S. May 18, 2006) (No. 05-11144). . United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006). . Id. . United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006) (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, - U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). ." }, { "docid": "22606490", "title": "", "text": "as interpreted by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, at sentencing for the instant conviction, Alonzo did admit to the court his involvement in the May 14, 2003, delivery and seizure of eighty-eight kilograms of marijuana, the relevant conduct at issue. Under these circumstances, even if Alonzo had been sentenced under the mandatory regime, there would not have been a Sixth Amendment violation. See Booker, 125 S.Ct. at 756 (“Any fact ... which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”) (emphasis added). Moreover, regardless of whether Alonzo admitted his involvement in the relevant conduct, he was sentenced after the Supreme Court decided Booker and therefore sentenced under a discretionary regime. Contrary to Alonzo’s argument, “Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005) (citing Booker, 125 S.Ct. at 750, 764); see also United States v. Malveaux, 411 F.3d 558, 560 n. 9 (5th Cir.2005) (recognizing that it is a direct contradiction of Mares to contend that “Booker prohibits a judge from finding any facts used to enhance a sentence”). It is apparent that facts relevant to sentencing include relevant conduct under U.S.S.G. § 1B1.3. See United States v. Duncan, 400 F.3d 1297, 1305 (11th Cir.2005) (holding that Booker allows a sentence to be calculated based upon relevant conduct of which the defendant was acquitted). Because the district court properly included Alonzo’s relevant conduct in determining the Guideline range, Alonzo has not shown a Sixth Amendment violation. II. Reasonableness of Post-Booker Guidelines Sentence Alonzo’s reasonableness challenge to his post-Booker Guidelines sentence is also based upon the district court’s use of his relevant conduct to calculate his Guideline" }, { "docid": "22645820", "title": "", "text": "merit. D. Reasonableness of the Sentence We review the district court’s application of the sentencing guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). Findings of fact are accepted unless clearly erroneous. United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006) (citations omitted). Ultimately, under United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we are reviewing the sentence to ensure that it is reasonable. Smith, 440 F.3d at 706. If the district court imposes a sentence within a properly calculated guideline range, we presume that the district court considered all the necessary factors, and that the sentence is reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Because we have already determined that the district court properly calculated the sentencing guideline range, and Juarez-Duarte’s eighty-seven month sentence is within that range, Juarez-Duarte must rebut the presumption of reasonableness. See Mares, 402 F.3d at 519-20. His only argument is based on the nature of his crime. Specifically, he asserts that the sentence is unreasonably long because illegal reentry into the United States after removal is no more than simple trespass. We were not impressed with that argument in United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.2006), nor are we persuaded by it in this case. Congress considers illegal reentry into the United States subsequent to a conviction for an aggravated felony an extremely serious offense punishable by up to twenty years in prison. In light of the presumption of reasonableness afforded sentences within the Guidelines range and this congressional judgment, Juarez-Duarte’s eighty-seven month sentence is not unreasonable. III. CONCLUSION For the foregoing reasons, we AFFIRM Juarez-Duarte’s sentence. . All references are to the 2004 edition of the U.S. Sentencing Guidelines Manual (2004) (the \"Guidelines” or the \"Sentencing Guidelines”), which was used in preparing the pre-sentencing report (the \"PSR”). . While Juarez-Duarte initially requested the interpreter at the September 30, 2005, sentencing hearing to better understand the proceeding, his motion for an interpreter at his third" }, { "docid": "22553651", "title": "", "text": "163 L.Ed.2d 602 (2005)). The district court’s sentence is reviewed for reasonableness. Id. (citing Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). “In determining an appropriate sentence, a district court must consider as guideposts a properly calculated guideline range and the sentencing factors in 18 U.S.C. § 3553(a).” Id. (citing Mares, 402 F.3d at 518-19; United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006)). “If\" a district court sentences a defendant within a properly calculated guideline range, that sentence enjoys a presumption of reasonableness.” Id. (citing United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006)). In this case, the district court sentenced Aguirre-Villa within the applicable guideline range. In fact, it sentenced him to the shortest sentence in that range, 77 months. Accordingly, his sentence is entitled to a presumption of reasonableness. Aguirre-Villa has not overcome that presumption. Aguirre-Villa’s only challenge to the reasonableness of his sentence is that it does not fully account for the factors contained in 18 U.S.C. § 3553(a), specifically § 3553(a)(2)(A), “the need for the sentence imposed to reflect the seriousness of the offense,” and § 3553(a)(6), “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” According to Aguirre-Villa, his sentence failed to reflect that his illegal reentry was, “at bottom,” an international trespass, not a crime of violence or a crime that posed a danger to others. Further, Aguirre-Villa argues that his sentence failed to reflect the need to avoid. a sentence disparity among defendants convicted in districts with early disposition programs and defendants convicted in districts without such programs. The district court resentenced Aguirre-Villa post-Booker pursuant to an advisory application of the Sentencing Guidelines. The court considered and ultimately rejected Aguirre-Villa’s sentencing disparity argument. Further, the court considered all of § 3553(a)’s factors, including Aguirre-Villa’s extensive criminal history and history of recidivism, before deciding on an appropriate sentence. The refusal to factor in, when sentencing a defendant, the" }, { "docid": "22086046", "title": "", "text": "right to pursue the claim in collateral review. IV. SENTENCING The district court imposed enhancements to Raul Stevens’s sentence for obstruction of justice, his role in the offense, and for committing the offense while on supervised release. Relying on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Raul Stevens objected to these enhancements below and now re-urges that the district court violated the Sixth Amendment by enhancing his sentence based on facts not found by the jury beyond a reasonable doubt. Booker error occurs when the sentencing judge bound by mandatory United States Sentencing Guidelines (“Guidelines”) increases the defendant’s sentencing range based on facts not found by the jury or admitted by the defendant. United States v. Mares, 402 F.3d 511, 518 (5th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). But under Booker, “with the mandatory use of the Guidelines excised, ... [t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline[s] sentencing range.” Id. at 519. Raul Stevens was sentenced under the post-Booker advisory Guidelines system, and the record indicates that the district judge was aware of the Guidelines’ advisory nature. There was therefore no Booker error in Raul Stevens’s sentencing. V. CONCLUSION For the foregoing reasons, Alejandro Stevens’s and Raul Stevens’s convictions and sentences are AFFIRMED. . Raul Stevens’s argument mentions in passing that he claimed ownership of the cocaine found in the bedroom before being given his Miranda rights. However, he develops no argument for the exclusion of this statement, and in particular, advances no argument that the admission of the statement affected his substantial rights under the Olano framework. Inadequately briefed issues are deemed abandoned. United States v. Charles, 469 F.3d 402, 408 (5th Cir.2006) (citing Dardar v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir.1993)). . Raul Stevens does not argue that his consent was not valid under a Fourth Amendment voluntariness standard. Rather, he narrowly argues that his statement of consent is inadmissible under the Fifth Amendment because he" }, { "docid": "22452096", "title": "", "text": "competent rebuttal evidence that the information is materially untrue, inaccurate or unreliable.” Daniels does not assert that information in the PSR was incorrect or unreliable. Therefore, his objection fails. E Post Booker,IFcmfan, a district court’s sentencing discretion must be guided by the considerations set forth in 18 U.S.C. § 3553(a). Daniels contends that even though he was sentenced post Booker/Fanfan, the district court erroneously treated the Sentencing Guidelines as mandatory. The evidence suggests otherwise. During the sentencing proceeding, the district court discussed Booker and its implications and considered the factors in 18 U.S.C. § 3553(a). Among other things, the district court discussed the circumstances surrounding Daniels’ offense, noting the “very large quantity of marijuana involved,” Daniels’ “heck of a big narcotics racket,” and Daniels’ “role in this as the leader.” The district court concluded that Daniels “deserves a lengthy sentence” and imposed imprisonment for 235 months, the high end of the advisory Guidelines range. The district court chose a sentence within the advisory Sentencing Guidelines range. In doing so, the district court did not treat the Guidelines as mandatory. Instead, the district court implicitly recognized that it could deviate from the Guidelines, but based on the facts before it, decided not to do so. The district court did not commit Fanfan error, and no other basis has been asserted for finding Daniels’ sentence unreasonable. Therefore, the sentence is affirmed. The district court’s judgments are AFFIRMED. . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006), pet. for cert. filed (U.S. May 18, 2006) (No. 05-11144). . United States Sentencing Guidelines Manual (U.S.S.G.) § 5C1.2(a)(2), (5) (2004). . Cf. United States v. Stewart, 93 F.3d 189, 195-96 (5th Cir.1996) (rejecting the defendant’s argument that U.S.S.G. § 5C1.2 was unconstitutional as applied to her because she could only meet the requirement by \"subject[ing] herself and her family to violent retaliation”). . See United States v. Tang, 214 F.3d 365, 370-71 (2d Cir.2000); United States v. Warren, 338 F.3d 258, 263 n. 3 (3d Cir.2003); United States v. Salgado, 94 Fed.Appx." }, { "docid": "22645819", "title": "", "text": "3E1.1 cmt. n.4. In this case the PSR, expressly adopted by the district court, stated that notwithstanding Juarez-Duarte’s “reasoning as to why an interpreter was used at his last two hearings, this case does not rise to the level of being an ‘extraordinary case’ in which both adjustments should apply.” We cannot say that this finding is without foundation. C. Constitutional Challenge to 8 U.S.C. § 1326(b)(2) Juarez-Duarte also argues that 8 U.S.C. § 1326(b)(2) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Juarez-Duarte concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435; United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.2005). Therefore, “we are required to follow it ‘unless and until the Supreme Court itself determines to overrule it.’ ” Izaguirre-Flores, 405 F.3d at 277-78 (citation omitted). Consequently, this argument has no merit. D. Reasonableness of the Sentence We review the district court’s application of the sentencing guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). Findings of fact are accepted unless clearly erroneous. United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006) (citations omitted). Ultimately, under United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we are reviewing the sentence to ensure that it is reasonable. Smith, 440 F.3d at 706. If the district court imposes a sentence within a properly calculated guideline range, we presume that the district court considered all the necessary factors, and that the sentence is reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Because we have already determined that the district court properly calculated the sentencing guideline range, and Juarez-Duarte’s eighty-seven month sentence is within that range, Juarez-Duarte must rebut the presumption of reasonableness. See Mares, 402 F.3d at 519-20. His only argument is based on the" }, { "docid": "22391900", "title": "", "text": "denied, — U.S.-, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). See Booker, 543 U.S. at 261, 125 S.Ct. 738. In determining an appropriate sentence, a district court must consider as guideposts a properly calculated guideline range and the sentencing factors in 18 U.S.C. § 3553(a). Mares, 402 F.3d at 518-19; United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006). If a district court sentences a defendant within a properly calculated guideline range, that sentence enjoys a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006). In regard to guideline enhancements, the district court may adopt facts contained in a PSR without inquiry, so long as the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.1990). To prevail on appeal, the defendant must prove that the district court’s fact-finding was clearly erroneous, see Creech, 408 F.3d at 270 & n. 2, which may include showing the material untruth of the PSR information relied upon by the district court, see United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Furthermore, in determining whether an enhancement applies, a district court is permitted to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error as well. Rodriguez, 897 F.2d at 1326. We will uphold a district court’s factual finding on clear error review so long as the enhancement is plausible in light of the record as a whole. United States v. Gonzales, 436 F.3d 560, 584 (5th Cir.), petition for cert. filed (U.S. Apr. 17, 2006) (No. 05-10509). III. DISCUSSION A. Caldwell and Blakemore’s U.S.S.G. § 2K2.1 (b)(5) Enhancement Both Caldwell and Blakemore contend that the district court erred in applying U.S.S.G. § 2K2.1 (b)(5). The defendants argue that no evidence shows that the firearms they acquired, transported, and sold were used in another felonious activity. This argument is not only meritless on its face, it also falsely limits § 2K2.1(b)(5). (1) Caldwell Caldwell pleaded guilty to conspiracy to illegally acquire multiple firearms through the use of straw" }, { "docid": "22086045", "title": "", "text": "rule of non-review is typically satisfied only where the actual claim was raised and developed in a post-trial motion to the district court. Compare Gibson, 55 F.3d at 179 (granting an exception to the general rule of non-review on direct appeal because the defendant’s post-trial motions in the district court raised allegations of trial counsel’s deficiencies), with United States v. Wallace, 32 F.3d 921, 930 (5th Cir.1994) (dismissing ineffective assistance of counsel claim on direct appeal even where the claim was mentioned at trial because the record was not sufficiently developed), and United States v. Gonzales, 436 F.3d 560, 581 (5th Cir.2006) (dismissing ineffective assistance of counsel claim on direct appeal even where record showed counsel’s failure to object because actual claim had not been raised and developed below). In this case, the record is not sufficiently developed with respect to Raul Stevens’s ineffective assistance of counsel claim to justify an exception to our general rule of non-review. Accordingly, we deny relief on Raul Stevens’s present ineffective assistance of counsel claim without prejudice to his right to pursue the claim in collateral review. IV. SENTENCING The district court imposed enhancements to Raul Stevens’s sentence for obstruction of justice, his role in the offense, and for committing the offense while on supervised release. Relying on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Raul Stevens objected to these enhancements below and now re-urges that the district court violated the Sixth Amendment by enhancing his sentence based on facts not found by the jury beyond a reasonable doubt. Booker error occurs when the sentencing judge bound by mandatory United States Sentencing Guidelines (“Guidelines”) increases the defendant’s sentencing range based on facts not found by the jury or admitted by the defendant. United States v. Mares, 402 F.3d 511, 518 (5th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). But under Booker, “with the mandatory use of the Guidelines excised, ... [t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a" }, { "docid": "22391899", "title": "", "text": "also enhanced Caldwell’s offense level based on his role as a leader or organizer of a criminal activity involving five or more participants, pursuant to U.S.S.G. § 3B1.1(a). On appeal, Caldwell alleges the district court erred in applying the two enhancements and in determining his sentencing range using facts not proven beyond a reasonable doubt. Blakemore alleges that the district court erred in applying the § 2K2.1(b)(5) enhancement and otherwise in giving him an unreasonable sentence. II. STANDARD OF REVIEW After Booker, this court continues to review a district court’s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Creech, 408 F.3d 264, 270 & n. 2 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 777, 163 L.Ed.2d 602 (2005). Additionally, though Booker gave the district courts the ability to exercise discretion in sentencing, a district court’s ultimate sentencing decision is reviewed for reasonableness. United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). See Booker, 543 U.S. at 261, 125 S.Ct. 738. In determining an appropriate sentence, a district court must consider as guideposts a properly calculated guideline range and the sentencing factors in 18 U.S.C. § 3553(a). Mares, 402 F.3d at 518-19; United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006). If a district court sentences a defendant within a properly calculated guideline range, that sentence enjoys a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006). In regard to guideline enhancements, the district court may adopt facts contained in a PSR without inquiry, so long as the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.1990). To prevail on appeal, the defendant must prove that the district court’s fact-finding was clearly erroneous, see Creech, 408 F.3d at 270 & n. 2, which may include showing the material untruth of the PSR information relied upon by the" }, { "docid": "22553650", "title": "", "text": "Western District of Texas lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would have permitted a downward departure of up to four levels in a district with such a program. Prior to his initial sentencing, Aguirre-Villa had also challenged (under Apprendi) the sixteen-level enhancement imposed by the court for a prior aggravated felony conviction. The district court rejected Aguirre-Villa’s Apprendi challenge and decided that although the guideline range would have been lower (52 to 78 months instead of 77 to 96 months) had Aguirre-Villa been arrested in an adjacent district (the District of New Mexico), it would reimpose a 77-month sentence. Aguirre-Villa timely appealed. II. A. Booker Challenge Post-Booker, we continue to review a district court’s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.2006) (citing United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Creech, 408 F.3d 264, 270 & n. 2 (5th Cir.), cert. denied, — U.S. ——, 126 S.Ct. 777, 163 L.Ed.2d 602 (2005)). The district court’s sentence is reviewed for reasonableness. Id. (citing Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). “In determining an appropriate sentence, a district court must consider as guideposts a properly calculated guideline range and the sentencing factors in 18 U.S.C. § 3553(a).” Id. (citing Mares, 402 F.3d at 518-19; United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006)). “If\" a district court sentences a defendant within a properly calculated guideline range, that sentence enjoys a presumption of reasonableness.” Id. (citing United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006)). In this case, the district court sentenced Aguirre-Villa within the applicable guideline range. In fact, it sentenced him to the shortest sentence in that range, 77 months. Accordingly, his sentence is entitled to a presumption of reasonableness. Aguirre-Villa has not overcome that presumption. Aguirre-Villa’s only challenge to the reasonableness of his sentence is that it does" }, { "docid": "1060434", "title": "", "text": "in prison, the top of the applicable guideline range including the enhancements. The court also ordered Woods’ sentence to run consecutively to any sentence imposed by the state court in an unrelated criminal proceeding then pending against Woods’, ordered Woods to pay $129,324 in restitution, and ordered Woods to serve three years of supervised release. Woods now appeals his sentence, arguing that the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), confirms that the sentence imposed upon him by the district court violated the 6th Amendment. The Government concedes, as it must, that the district court erred by enhancing Woods’ offense level under the pre-Booker mandatory guidelines system based on facts to which Woods did not admit and not found beyond a reasonable doubt by a jury. The Government argues, however, that such an error was harmless, based principally on the district court’s decision to impose a sentence at the top of the applicable guidelines range. II. When a Sixth Amendment claim under Booker “is preserved in the district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under rule 52(a) of the Federal Rules of Criminal Procedure.” United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005); see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that harmless error standard applies when defendant makes timely objection to error). “Harmless error is ‘[a]ny defect, irregularity, or variance that does not affect substantial rights’ of the defendant, and ‘arises when the mistake fails to prejudice the defendant.’ ” United States v. Akpan, 407 F.3d 360, 376 (5th Cir.2005) (quoting Fed.R.Crim.P. 52(a)). “[T]he government must bear the burden of demonstrating that the error was harmless by demonstrating beyond a reasonable doubt that the federal constitutional error of which the defendant complains did not contribute to the sentence that he received.” Id. at 377 (citations omitted); see also Olano," }, { "docid": "22606491", "title": "", "text": "a sentencing judge from finding all facts relevant to sentencing.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005) (citing Booker, 125 S.Ct. at 750, 764); see also United States v. Malveaux, 411 F.3d 558, 560 n. 9 (5th Cir.2005) (recognizing that it is a direct contradiction of Mares to contend that “Booker prohibits a judge from finding any facts used to enhance a sentence”). It is apparent that facts relevant to sentencing include relevant conduct under U.S.S.G. § 1B1.3. See United States v. Duncan, 400 F.3d 1297, 1305 (11th Cir.2005) (holding that Booker allows a sentence to be calculated based upon relevant conduct of which the defendant was acquitted). Because the district court properly included Alonzo’s relevant conduct in determining the Guideline range, Alonzo has not shown a Sixth Amendment violation. II. Reasonableness of Post-Booker Guidelines Sentence Alonzo’s reasonableness challenge to his post-Booker Guidelines sentence is also based upon the district court’s use of his relevant conduct to calculate his Guideline range. Specifically, Alonzo contends that his guidelines sentence is unreasonable “due to the fact that he was sentenced not for what he pled guilty to, but solely for relevant conduct.” In Mares, this Court recognized that “[t]he Guideline range should be determined in the same manner as before Booker/Fanfan.” 402 F.3d at 519. As previously set forth, Booker contemplates that a sentencing judge will determine facts relevant to sentencing, including relevant conduct. This is Alonzo’s sole basis for arguing that his sentence is unreasonable. Alonzo has failed to argue, much less demonstrate, that his sentence was improperly calculated under the Guide lines. “If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.” Mares, 402 F.3d at 519. Here, we need not make such an inference because the district court explicitly stated that it had considered the Guidelines and the factors in 18 U.S.C. §" }, { "docid": "10642138", "title": "", "text": "court denied. The defense then rested without presenting any evidence. The jury convicted Zheng on all six counts of the indictment. The jury also made supplemental findings that the infringed goods had a retail value of $304,812 and that the offenses related to the goods in Counts Four and Five, bearing the UL symbol, involved a “conscious or reckless risk of bodily injury.” In February 2005, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court adopted the recommendations of the Pre-Sentence Report (“PSR”) and sentenced Zheng to 63 months imprisonment, the top of the applicable guideline range. II. DISCUSSION Zheng appeals his convictions, arguing that the evidence was insufficient to support the jury’s verdict and that the district court erroneously admitted various testimony. He also appeals his sentence, arguing that the district court erred in its interpretation and application of United States Sentencing Guideline (“U.S.S.G.”) § 2B5.3. A. Sufficiency of the Evidence (1) Standard of Review Since Zheng timely moved for a judgment of acquittal, he preserved his sufficiency argument for appeal. See United States v. Gonzales, 436 F.3d 560, 571 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 2363, 165 L.Ed.2d 280 (2006). Therefore, so long as a rational jury could have found the elements proven beyond a reasonable doubt, this court must uphold the jury’s verdict. Id.; United States v. Adair, 436 F.3d 520, 525 (5th Cir.2006). This court views “the evidence in the light most favorable to the government with all reasonable inferences and credibility choices made in support of the jury verdict.” Gonzales, 436 F.3d at 571. “The intent necessary to support a conviction can be demonstrated by direct or circumstantial evidence that allows an inference of an unlawful intent, and not every hypothesis of innocence need be excluded.” United States v. Aggarwal, 17 F.3d 737, 740 (5th Cir.1994). (2) Analysis Zheng was convicted on six counts of violating 18 U.S.C. § 2320(a), which punishes “[w]hoever intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit" }, { "docid": "22067212", "title": "", "text": "appears to be confused about what Booker requires. As we stated in United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005), “[i]t was the mandatory aspect of th[e] sentencing regime [under the Guidelines] that the Court concluded violated the Sixth Amendment’s requirement of a jury trial.” Accordingly, Justice Breyer’s remedial opinion “severed and excised” the sections of the Sentencing Reform Act of 1984 that made the Guidelines mandatory and set forth standards of review on appeal. Booker, 543 U.S. at 258-60, 125 S.Ct. 738. Post-Booker, we continue to review a district court’s interpretation and application of the guidelines de novo, see United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005), and ultimately review sentences for “unreasonableness,” Booker, 543 U.S. at 261, 125 S.Ct. 738. Johnson was convicted and sentenced after Booker was decided and therefore was not subjected to a mandatory sentencing regime. The court’s use of the guidelines as advisory in sentencing Johnson was entirely appropriate because, under Booker, to reach a reasonable sentence “the ... court remains under a duty pursuant to [18 U.S.C.] § 3553(a) to ‘consider’ numerous factors including” the guidelines. Mares, 402 F.3d at 519. This duty to “consider” the Guidelines will ordinarily require the sentencing judge to determine the applicable Guidelines range even though the judge is not required to sentence within that range. The Guideline range should be determined in the same manner as before Booker/Fanfan. Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing. The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence. Id. (internal citations omitted). The court’s consideration of the recommended guidelines range was not in error, because such consideration is mandated by Booker and Mares, even where calculation of the appropriate range requires the court to take into account" }, { "docid": "22391898", "title": "", "text": "EDITH BROWN CLEMENT, Circuit Judge: In this consolidated appeal, the two defendants challenge their sentences on various grounds. For the following reasons, we affirm. I. FACTS AND PROCEEDINGS Jamel Caldwell and Thomas Blakemore were indicted on multiple counts related to a scheme of making false statements in connection with the acquisition of firearms from licensed dealers. Pursuant to written plea agreements, the defendants pleaded guilty to one count of conspiracy to perpetrate the indicted overt acts, in violation of 18 U.S.C. §§ 371 and 922(a)(6). Both defendants were sentenced on February 14, 2005, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that the United States Sentencing Guidelines (“U.S.S.G.”) were advisory. For purposes of calculating a guideline range, the district court enhanced both Caldwell’s and Blakemore’s offense levels pursuant to U.S.S.G. § 2K2.1(b)(5), for possessing or transferring a firearm “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” The district court also enhanced Caldwell’s offense level based on his role as a leader or organizer of a criminal activity involving five or more participants, pursuant to U.S.S.G. § 3B1.1(a). On appeal, Caldwell alleges the district court erred in applying the two enhancements and in determining his sentencing range using facts not proven beyond a reasonable doubt. Blakemore alleges that the district court erred in applying the § 2K2.1(b)(5) enhancement and otherwise in giving him an unreasonable sentence. II. STANDARD OF REVIEW After Booker, this court continues to review a district court’s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Creech, 408 F.3d 264, 270 & n. 2 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 777, 163 L.Ed.2d 602 (2005). Additionally, though Booker gave the district courts the ability to exercise discretion in sentencing, a district court’s ultimate sentencing decision is reviewed for reasonableness. United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert." }, { "docid": "22093601", "title": "", "text": "resolve this issue, because Nikonova’s sentence is reasonable even if the sadistic-images enhancement should not have applied. Without the four-level enhancement for sadistic images, her guideline range would have been 27-33 months. See U.S.S.G. ch. 5 pt. A. Because her sentence of 31 months falls within that range, it is entitled to a presumption of reasonableness. The relevant question is not whether the enhancement should have applied, but whether Nikonova has rebutted the presumption of reasonableness that attaches to the sentence even if application of the enhancement was incorrect. Nikonova has not rebutted the presumption of reasonableness. To assess reasonableness, we look to the factors set forth in § 3553(a). See Booker, 543 U.S. at 259-60, 125 S.Ct. 738; Medina-Argueta, 454 F.3d at 484. Although Nikonova argues that the district court should have departed downward, we lack jurisdiction to review a discretionary decision not to depart downward from the guideline range. See United States v. Hernandez, 457 F.3d 416, 424 (5th Cir.2006). Instead, we review to determine whether the district court’s imposition of a guideline sentence instead of a non-guideline sentence was reasonable. This court has not articulated the standard by which a defendant may rebut the presumption of reasonableness that attaches to a guideline sentence. We have, however, stated that, where a court has imposed a sentence within a properly calculated guideline range, “we will infer that the Judge has considered all the factors set forth for a fair sentence in the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Furthermore, in light of our deference to a sentencing judge’s discretion under Booker, we will rarely declare that such a sentence is unreasonable. Id. A non-guideline sentence is unreasonable in light of the statutory sentencing factors where it “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor; or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir.2006)." } ]

[ { "docid": "2260635", "title": "", "text": "to warrant allowance of an appeal in forma pauperis until an opportunity has been afforded to the trial court to decide whether they are pressed in good faith. Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807, certiorari denied 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599, rehearing denied 323 U.S. 812, 65 S.Ct. 30, 89 L.Ed. 647; Gerringer v. United States, 93 U.S.App.D.C. 403, 213 F.2d 346; Kyle v. United States, 9 Cir., 199 F.2d 756. Accordingly we now deny the pending motion, but with leave to the appellant within thirty days to renew his application below enlarged to include these specified claims of error. If, on such a renewed application below, the judge shall again deny the application without a certificate of bad faith, the appellant may renew his application here. At this stage, we will also observe that the claim of error, now made before us, of “refusing to charge the jury as the defendant requested” is so lacking in particularity as to preclude consideration. This claim of error seems not to have been expressly dealt with in the judge’s memorandum below, perhaps because there not presented with the requisite particularity. This claim also, in addition to all others on which the appellant relies, may be included in any renewal of the application made below. Meanwhile, the appellant’s time to docket the record on appeal may be extended to January 2, 1957. Ordered accordingly. FRANK, Circuit Judge (dissenting in part). Although I think we need not do so, I see no good reason why, before deciding the motion, we should not obtain the views of the trial judge. Consequently, I concur in allowing the defendant to renew his application, for leave to appeal in forma pauperis, to the trial judge. However, my colleagues’ disposition of the matter is fraught with difficulties for the defendant. My colleagues say that the trial judge should certify that the appeal is not taken in good faith unless the defendant (in addition to showing his indigence and that he is a citizen) in his renewed application “identifies with reasonable particularity the" } ]

[ { "docid": "21886191", "title": "", "text": "any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious. (e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States. . Section 1915(d) authorizes dismissal “if the allegation of poverty is untrue, or if [the court is] satisfied that the action is frivolous or malicious.” . Section 1915(a) states that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” Defining the “good faith” standard applicable in this context, the Supreme Court has instructed: In the absence of some evident improper motive, the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous. Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. The good-faith test must not be converted into a requirement of a preliminary showing of any particular degree of merit. Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindi-gent litigant, Fed.Rules Crim.Proc. 39(a), the request of an indigent for leave to appeal in forma pauperis must be allowed. Ellis v. United States, 356 U.S. 674, 674-75, 78 S.Ct. 974, 974-75, 2 L.Ed.2d 1060 (1958). . The original statute was enacted in 1892. Act of July 20, 1892, ch. 209, 27 Stat. 252. . Rule 24(a), Fed.R.App.P., provides: Leave to Proceed on Appeal in Forma Pau-peris from District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail" }, { "docid": "18177345", "title": "", "text": "in forma pauperis from the order of October 13. On December 24, 1952, that motion was returned by the Clerk to Gerringer for the reasons, as stated in an accompanying letter from the Clerk, that an insufficient number of copies of the motion had been submitted in view of the requirements of the General Rules of this Court and that the form of proof of service of the motion was not in conformity with Rule 31(h) of those Rules. On January 16, 1953, the Clerk, again through the mail, received the motion with the required copies and a proper affidavit of service. Authority to file the motion without prepayment of costs was given to the Clerk by the Chief Judge on February 11, 1953. On February 13, 1953, the Government filed with the court an opposition to Gerringer’s motion for permission to appeal in forma pauperis, contending therein that the motion should be denied for the reason that Gerringer had failed to show (1) that a request for leave to appeal in forma pauperis had been made in the District Court and (2) the action of the District Court on such a request, if any. In support of its opposition, the Government cited Waterman v. McMillan, 1943, 77 U.S.App.D.C. 310, 135 F.2d 807. certiorari denied, 1944, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599. In that case, in interpreting the then applicable statute and outlining the procedures to be followed under it, the court stated: On February 19, 1953, this court appointed counsel to represent Gerringer. On March 24, 1953, Gerringer, by his appointed attorney, filed with this court his motion for leave to apply to the District Court for permission to appeal in forma pauperis. In an appended statement of points and authorities, Ger-ringer admitted that he had not followed the procedure for seeking leave to appeal in forma pauperis required by 28 U.S.C. § 1915 (Supp.1952) and described in Waterman v. McMillan, supra. He contended, however, that extenuating circumstances existed which were sufficient to warrant thé granting by this cofirt of his motion for leave to apply" }, { "docid": "13654636", "title": "", "text": "PER CURIAM. R. Milo Gilbert has appealed to this court from a judgment convicting him on twenty counts alleging violations of 26 U.S.C.A. § 7206(2), eight counts alleging violations of 18 U.S.C.A. § 495, and three counts alleging violations of 18 U.S.C.A. § 1001. Gilbert gave notice of appeal, and pursuant to 28 U.S.C.A. § 1915 applied to the district court for leave to prosecute his appeal in forma pauperis. The district court denied the application and certified that the appeal is not taken in good faith. Gilbert, aided by counsel, has now applied to this court for leave to appeal in forma pauperis, and has filed here a copy of the affidavit which he filed in the district court in support of his 28 U.S.C.A. § 1915 application. The district court did not find this affidavit deficient with respect to the allegations as to poverty, and under the circumstances of this case we find it sufficient for our purposes on the question of poverty. Section 1915 provides that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. But while such a certificate carries great weight with this court it is not final in the sense that a convicted defendant is barred from showing in this court that the certificate was unwarranted and that an appeal should be allowed. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. In the absence of some evident improper motive, such a showing is made and the applicant’s “good faith” is established by the presentation of any issue which is not plainly frivolous. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060. In an effort to make such a showing, Gilbert has here submitted a lengthy memorandum in support of his application, in which several issues which he desires to raise on appeal are discussed at length. The fact is, however, that Gilbert made no such showing in the district court when he applied to that court for leave to proceed" }, { "docid": "4378513", "title": "", "text": "93 in this Court. Although referring to the file number in the District Court of his original action against his wife (C.A. 17442), the present petition (Misc. No. 93) is captioned “Vergil D. McMillan, Ola-May McMillan, Leon V. McMillan (the latter two being the minor children he took to Indiana) vs. Mary Lois McMillan, Appellee, Edward Curran, Co-Appellee.” Upon what theory the United States Attorney is made a party is not apparent. But petitioner makes the two children appellants on the theory that the motion for “Redocket and Allow a Defense to Minor Children” and “Childrens Plea” filed December 14, 1945, started another action against his wife. Be this as it may, the petition for leave to appeal in forma pauperis was filed in this court May 21, 1946 after the District Court (Bailey, J.) had denied his application for leave to appeal in forma pauperis. The record does not show upon what ground the District Court denied the application but we assume that it was on the ground of lack of good faith. Since nothing is shown to contradict such a finding, the pending petition, Misc. No. 93, must be denied. Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807. In any event, the entire cause appears so frivolous as to require the petition to be denied. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457. C.A. 31684: Not content with these efforts, petitioner filed suit for damages in November, 1945, against Taylor (Mrs. McMillan’s attorney), Jean Hailing (case worker for Family Service Association), and the Family Service Association. The theory of this complaint is that the defendants conspired to entice his wife away and into “em-moral” life, destroyed his home, and alienated his wife’s affections. Motion to strike was made by the defendant Taylor and granted (Schweinhaut, J.) December 13, 1945, but motions by the Family Service Association to quash service and strike the complaint were denied (Holtzoff, J.) on January 7, 1946. Thereafter petitioner sought to appeal from the order of December 13, 1945, and filed a “Notice of Appeal” with" }, { "docid": "18177368", "title": "", "text": "is not taken in good faith, without being required to prepay fees or costs. . . . ” (Emphasis supplied) The presently applicable statute is 28 U.S.C. § 1915 (Supp.1952). It provides in part as follows: “Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a citizen who makes affidavit that he is unable to pay such costs or give security -therefor. . . . An appeal may not he taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. . . , ” (Emphasis supplied) Due to the substantial similarity of the two statutes, 'the procedure under the one presently in effect is identical with that outlined in Waterman v. McMillan. The courts have so announced. Cf. Higgins v. Steele, 8 Cir., 1952, 195 F.2d 366, 369; Bernstein v. United States, 4 Cir., 195 F.2d 517, certiorari denied, 1952, 843 U.S. 980, 72 S.Ct. 1081, 96 L.Ed. 1371; Newman v. United States, 1950, 87 U.S.App.D.C. 419, 184 F.2d 275, certiorari denied 1951, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665; Wheeler v. Reid, 1948, 84 U.S.App.D.C. 180, 175 F.2d 829. * * * The purpose of the statute is that the application to proceed in forma pauperis, accompanied by the affidavit, should promptly be made to the District Court, in the first instance, to enable that court, with its full and immediate knowledge of the facts, to determine whether the appeal has been taken in good faith, and if it reaches a contrary conclusion, to make its certificate accordingly. . . . If the District Court fails to act within a reasonable time, or if it denies the application to proceed in forma pauperis, and fails to certify that the appeal is not taken in good faith, then an application to proceed in forma pauperis may be made directly to this court. In any event, the applicant must show that the District Court" }, { "docid": "18177346", "title": "", "text": "been made in the District Court and (2) the action of the District Court on such a request, if any. In support of its opposition, the Government cited Waterman v. McMillan, 1943, 77 U.S.App.D.C. 310, 135 F.2d 807. certiorari denied, 1944, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599. In that case, in interpreting the then applicable statute and outlining the procedures to be followed under it, the court stated: On February 19, 1953, this court appointed counsel to represent Gerringer. On March 24, 1953, Gerringer, by his appointed attorney, filed with this court his motion for leave to apply to the District Court for permission to appeal in forma pauperis. In an appended statement of points and authorities, Ger-ringer admitted that he had not followed the procedure for seeking leave to appeal in forma pauperis required by 28 U.S.C. § 1915 (Supp.1952) and described in Waterman v. McMillan, supra. He contended, however, that extenuating circumstances existed which were sufficient to warrant thé granting by this cofirt of his motion for leave to apply to the District Court for permission to appeal in forma pauperis, to wit: at the time he mailed to this court his motion for permission to appeal in forma pauperis, he had no counsel and was personally unfamiliar with the proper procedure; also, the delay by the Clerk of this court in returning to him, Gerringer, his motion for permission to appeal in forma pauperis had “prevented him from learning the proper procedure until the time for making use of it had lapsed.” On March 31, 1953, the Government filed an opposition to the motion for leave to apply to the District Court for permission to appeal in forma pauperis. The Government urged that the Court of Appeals lacked jurisdiction to entertain the motion because Gerringer had not, within the time prescribed by law, “in any wise indicated to the District Court his intention to appeal.” In support of that contention the Government cited Spengler v. Hughes Tool Co., 10 Cir., 1948, 169 F.2d 166, Lamb v. Shasta Oil Co., 5 Cir., 1945, 149 F.2d" }, { "docid": "22353831", "title": "", "text": "perfection, i. the completion of the appeal, just as effectively as if following the taking of an appeal — not in forma pauperis — an appellant failed to pay the necessary fee or to perform any other requirement of the .statute. Even making the improbable assumption that the Supreme Court meant to suggest that the appellate court has power to review the record, independently of the trial judge’s certification, and thus to permit perfection or completion of an appeal so taken, such power should be most circumspectly exercised. All the reasons which argue against appellate interference with verdicts and findings of trial courts are doubly persuasive here. All the reasons which argue in favor of finality in litigation and of statutes of repose are equally persuasive. We conclude that our action in permitting appellant to proceed in forma pauperis was improvident and that the certificate of the trial judge should have been respected. For all these reasons the appeal must fail. Appeal dismissed. Act of July 20, 1832, 27 Stat 252, as amended 36 Stat. 8(K> (1910), 42 Stat. 666 (1.923), 45 Stat. 54 (1928), 28 U.S.C.A. § 882. See Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. 746; Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807; Spruill v. Temple Baptist Church, 78 U.S.App.D.C. 324, 141 F.2d 137. See, generally, In re Rosier, 76 U.S.App.D.C. 214, 220-222, 133 F.2d 316, 322-324, and authorities there cited; Ex parte Yerger, 8 Wall. 85, 95, 75 U.S. 85, 95, 19 L.Ed. 332: “The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom.” ; 1 Iloldsworth, History of English Law (1938) 227: “This writ has a great place in the history of our constitutional law because it has come to be the most efficient protection ever invented for the liberty of the subject.”; see 4 The Lawyer and Banker 361, 377: “The Greatest and Most Important Remedy Known to the Law,” and “the Bulwark of Human Liberty.”; Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83" }, { "docid": "1400321", "title": "", "text": "of the petitioner’s response to the answer to the order to show cause, it is “Ordered by the Court that the Clerk of the United States District Court be, and he is hereby, directed to enter forthwith upon the docket of that Court the order of the District Court of July 30, 1954, denying petitioner’s motion for relief under Section 2255 of the Judicial Code. “It is Further Ordered by the Court that the petition for a writ of mandamus filed herein shall bo regarded as a notice of appeal from said order of July 30, 3954, and that petitioner be, and lie is hereby, allowed to proceed on appeal from said order without prepayment of costs. “It is Further Ordered by the Court that the record before the District Court upon which said Court based its order of July 30, 3954, be transmitted to this Court, and said record, together with the record heretofore filed in Case No. 12,044, Jordan v. United States, be considered as the record on appeal from the order entered July 30, 1954.” . Ordinarily, of course, petitions for leave to appeal in forma pauperis must be initially addressed to and considered by the District Court. Gerringer v. United States, supra; West v. United States, supra. If the trial court certifies that the appeal is not taken in good faith, the appeal may not be taken, 28 U.S.C. § 1935 (1952), unless the certificate itself is erroneous because a substantial question is in fact presented by appellant. Waterman v. McMillan, 1943, 77 U.S.App.D.C. 310, 135 F.2d 807, certiorari denied 1944, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599. Under all the circumstances here, including our finding that “at least one substantial question is presented,” we consider that the usual rule does not apply, and that this court can and should act without further delay. . The indictment reads: “The Grand Jurors of the United States of America, in and for the District of Oolumbia aforesaid, upon their oath, do present: “That one George T. Jordan, on, to wit, the twenty-sixth day of May, 1944," }, { "docid": "4378514", "title": "", "text": "nothing is shown to contradict such a finding, the pending petition, Misc. No. 93, must be denied. Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807. In any event, the entire cause appears so frivolous as to require the petition to be denied. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457. C.A. 31684: Not content with these efforts, petitioner filed suit for damages in November, 1945, against Taylor (Mrs. McMillan’s attorney), Jean Hailing (case worker for Family Service Association), and the Family Service Association. The theory of this complaint is that the defendants conspired to entice his wife away and into “em-moral” life, destroyed his home, and alienated his wife’s affections. Motion to strike was made by the defendant Taylor and granted (Schweinhaut, J.) December 13, 1945, but motions by the Family Service Association to quash service and strike the complaint were denied (Holtzoff, J.) on January 7, 1946. Thereafter petitioner sought to appeal from the order of December 13, 1945, and filed a “Notice of Appeal” with the District Court. The Court (Schweinhaut, J.) on March 19, 1946, denied petitioner leave to proceed without prepayment of costs — no affidavit of poverty having been filed. Nevertheless, petitioner filed in this Court on March 29, 1946, a petition for leave to appeal in forma pauperis. This petition, Misc. No. 102, should be denied since it is clear that petitioner has not complied with the statute authorizing appeals in forma pauperis which requires an affidavit and proper application to be made to the District Court. See: 28 U.S. C.A. § 832, Waterman v. McMillan, supra. C.A. 32497: To confuse matters still further a suit was brought by petitioner, as “next friend and father” of the two children he had taken to Indiana against Taylor, Hailing and the Family Service Association. The complaint in this case also stated that it was a “Complaint & Application To;-The United States Government Justice Department and the District of Columbia ;-Public Welfare Department, Mr. Ray Fluff, Director.” As a consequence the United States Marshal served the District of Columbia" }, { "docid": "22724299", "title": "", "text": "Court of Appeals in which the District Court had initially denied leave to appeal in forma pauperis. In 11 of those 24 cases, reversals were ordered, and in 6 more, one of the three judges of the court’s panel dissented from the judgment affirming the conviction. During those same 18 months, the court granted 31 of 47 petitions for leave to take a direct appeal in forma pauperis from a conviction, and this Court subsequently reversed the denials of leave to appeal ordered in the cases of 6 of the 16 unsuccessful applicants in the court below. The instant case is not unique in this regard. See, e. g., Johnson: Indicted (March 1956), tried (May 1956), appeal in forma pauperis denied, 238 F. 2d 565 (C. A. 2d Cir. 1956), vacated, 352 U. S. 565 (1957), conviction affirmed on the merits, 254 F. 2d 175, petition for certiorari dismissed per stipulation of parties, 357 U. S. 933 (June 1958); Farley: Indicted (December 1955), tried (May 1956), application for leave to appeal in forma pauperis remanded to District Court, 238 F. 2d 575 (C. A. 2d Cir. 1956), appeal in forma pauperis denied, 242 F. 2d 338, vacated, 354 U. S. 521 (1957), remanded to District Court for settling transcript (December 1960), appeal in forma pauperis granted by District Court (May 1961), conviction affirmed on the merits, 292 F. 2d 789 (1961), cert. denied, 369 U. S. 857 (April 1962); Ellis: Indicted (April 1956), tried (September 1956), appeal in forma pauperis denied, 101 U. S. App. D. C. 386, 249 F. 2d 478 (1957), vacated, 356 U. S. 674 (1958), conviction affirmed on the merits, 105 U. S. App. D. C. 86, 264 F. 2d 372, cert. denied, 359 U. S. 998 (May 1959), motion for leave to file petition for rehearing denied, 361 U. S. 945 (January 1960). This argument was also presented by the Government, and then rejected by us, in Lurk v. United States, 366 U. S. 712. See, e. g., Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399-400; De Binder v. United States," }, { "docid": "13120009", "title": "", "text": "Judge Becker’s decision in Barfield v. Settle, D.C., 209 F.Supp. 143 (1962). For the reasons stated, petitioner is given leave to proceed in forma pauperis but his petition and application for writ of habeas corpus and his motion to dismiss charges will be denied and overruled, respectively. IT IS SO ORDERED. ON APPLICATION TO APPEAL IN FORMA PAUPERIS Since our Memorandum and Order of September 6, 1962, petitioner has filed two additional documents, the first is entitled “In Rebuttal to Respondent’s Answer to Petitioner’s Application for Writ of Habeas Corpus and Response to Order to Show Cause”. We have considered the points' there reiterated and find nothing that alters our judgment as stated in our order of September 6,1962. Petitioner’s newly expressed desire to now plead guilty (page 6) does not affect the determination of the legal questions presented by his application for habeas corpus. Even if such a desire were made known to the committing court, that court could not accept such a plea under Rule 11 of the Rules of Criminal Procedure, 18 U.S.C. One in petitioner’s presently adjudicated condition can not “voluntarily” make such a plea within the meaning of that Rule. The second document, entitled “Notice of Appeal”, includes a prayer for permission to appeal in forma pauperis and for the appointment of counsel. We are authorized and required by § 1915 of Title 28 of the United States Code to permit an appeal in forma pauperis if we are able to certify that the appeal is taken in good faith. Undér familiar authority, “the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous”. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (1958). See also, Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957) and Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957). Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), does not change the rule of decision announced in those cases. Nor does that case" }, { "docid": "13120010", "title": "", "text": "U.S.C. One in petitioner’s presently adjudicated condition can not “voluntarily” make such a plea within the meaning of that Rule. The second document, entitled “Notice of Appeal”, includes a prayer for permission to appeal in forma pauperis and for the appointment of counsel. We are authorized and required by § 1915 of Title 28 of the United States Code to permit an appeal in forma pauperis if we are able to certify that the appeal is taken in good faith. Undér familiar authority, “the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous”. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (1958). See also, Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957) and Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957). Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), does not change the rule of decision announced in those cases. Nor does that case change the rule that “if there are those who insist in pursuing frivolous litigation, the courts are not powerless to dismiss or otherwise discourage it” (369 U.S., l. c. 450, 82 S.Ct., l. c. 924). Cf. United States v. Johnson, 327 U.S. 106, 113, 66 S.Ct. 464, 90 L.Ed. 562 (1946), and John v. Gibson, (9th Cir.) 270 F.2d 36, 39 (1959). Congress, by its passage of § 1915, has indicated that only some, but not all, appeals may be taken at Government expense. It placed the duty on the District Courts to determine in the first instance which appeals are to proceed free and which are not. That initial determination, while entitled to weight, is not controlling. A District Court’s determination that a particular appeal is “so lacking in merit as to be plainly frivolous”, to use Mr. Justice Frankfurter’s language in his concurring pinion in Lurk v. United States, 366 U.S. 712, 713, 81 S.Ct. 1229, 6 L.Ed.2d 845 (1961), or that it is “without any colorable basis of substance”, to use Chief" }, { "docid": "21886192", "title": "", "text": "by the presentation of any issue that is not plainly frivolous. Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. The good-faith test must not be converted into a requirement of a preliminary showing of any particular degree of merit. Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindi-gent litigant, Fed.Rules Crim.Proc. 39(a), the request of an indigent for leave to appeal in forma pauperis must be allowed. Ellis v. United States, 356 U.S. 674, 674-75, 78 S.Ct. 974, 974-75, 2 L.Ed.2d 1060 (1958). . The original statute was enacted in 1892. Act of July 20, 1892, ch. 209, 27 Stat. 252. . Rule 24(a), Fed.R.App.P., provides: Leave to Proceed on Appeal in Forma Pau-peris from District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which he intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial. Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall" }, { "docid": "22724292", "title": "", "text": "and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.” The salutary purpose of this provision may, however, not be achieved when the defendant appears at sentencing with counsel. If neither counsel, whether retained or court appointed, nor the district judge imposing sentence, notifies the defendant of the requirement for filing a prompt notice of appeal, the right of appeal may irrevocably be lost. Cf. Hodges v. United States, 108 U. S. App. D. C. 375, 282 F. 2d 858, cert. granted, 365 U. S. 810, cert. dismissed as improvidently granted, 368 U. S. 139, 140-141 (dissent); Lewis and Simms v. United States, 107 U. S. App. D. C. 353, 278 F. 2d 33, 111 U. S. App. D. C. 13, 294 F. 2d 209. The fee for docketing an appeal in the Court of Appeals is $25. Stenographic transcripts in the federal courts cost $0.65 per page for the first copy, and $0.30 per page for additional copies. Transcripts in excess of 100 pages are not uncommon. The cost of printing briefs, records, and appendices, as illustrated by the present charge for printing records in this Court, may be $3.80 per page or more. The printing requirements are generally waived in appeals proceeding in forma pauperis. Cf. Fed. Rules Civ. Proc. 75 (m). But if, in such cases, printing is required by the Court of Appeals, the expense is borne by the United States. 28 U. S. C. § 1915 (b). The statute appears to contemplate an initial application to the District Court by providing “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U. S. C. § 1915 (a). And this is the manner in which the statute has been interpreted. See, e. g., West v. United States, 94 U. S. App. D. C. 46, 222 F. 2d 774; Waterman v. McMillan, 77 U. S. App. D. C. 310, 135 F. 2d 807; Murrey v. United States, 134 F. 2d 956" }, { "docid": "22353876", "title": "", "text": "88 L.Ed. 1140. 28 U.S.O.A. § 835: “The court may •request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, and may dismiss any such cause so brought if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious.” Hodge v. Huff, 78 U.S.App.D.C. 329, 332, 140 F.2d 686, 689. Hodge v. Huff, 78 U.S.App.D.C. 329, 332, 140 F.2d 686, 689; Brown v. Johnston, 9 Cir., 91 F.2d 370, 372, certiorari denied 302 U.S. 728, 58 S.Ct. 58, 82 L.Ed. 563. Ex parte Tom Tong, 108 U.S. 556, 559, 2 S.Ct. 871, 27 L.Ed. 826; Farnsworth v. Montana, 329 U.S. 104, 113, 9 S.Ct. 253, 32 L.Ed. 616; Cross v. Burke, 146 U.S. 82, 88, 13 S.Ct. 22, 36 L.Ed. 896; Fisher v. Baker, 203 U.S. 174, 181, 27 S.Ct. 135, 51 L.Ed. 142, 7 Ann.Cas. 1018; Kabadian v. Doak, 62 App.D.C. 114, 117, 65 F.2d 202, 205, certiorari denied, Kowal v. Perkins, 290 U.S. 661, 54 S.Ct. 76, 78 L.Ed. 572; Goldsmith v. Valentine, 36 App.D.C. 63, 66; Brown v. Johnston, 9 Cir., 91 F.2d 370, 372, certiorari denied, 302 U.S. 728, 58 S.Ct. 58, 82 L.Ed. 563. 28 U.S.O.A. § 832. United States ex rel. Dilling v. McDonnell, 7 Cir., 130 F.2d 1012; see Baltimore & Potomac R. R. v. Grant, 98 U.S. 398, 401, 25 L.Ed. 231. Rule 6, Rules-Criminal Procedure After Plea, etc., 18 U.S.O.A. following Section 688: “Bail shall not be allowed pending appeal unless it appears that 1he appeal involves a substantial question which should he determined by the appellate court.” 28 U.S.O.A. § 466. 28 U.S.O.A. § 832. House v. Mayo, 65 S.Ct. 517. Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. 746. Wells v. United States, 318 U.S. 257, 259, 63 S.Ct. 582, 584, 87 L.Ed. 746; see, also, Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807; Spruill v. Temple Baptist Church, 78 U.S.App.D.C. 324, 141 F.2d 137; Boykin" }, { "docid": "3722943", "title": "", "text": "S.Ct. 236, 59 L.Ed. 457. An appeal from a final decision of District Court is a matter of right, but the right to appeal in forma pauperis is regulated by special statute, 28 U.S.C.A. § 832 Holiday v. Johnston, Warden, 9 Cir., 123 F.2d 867, certiorari denied Ex parte Holiday, 316 U.S. 660, 62 S.Ct. 940, 86 L.Ed. 1737. It may be assumed for the purposes of this case that 28 U.S.C.A. § 832 does not foreclose all appellate review in forma pauperis when the trial court has certified its opinion that the appeal is not taken in good faith. However, the certi ficate of the trial court in such cases will be given effect at least to the extent of being accepted here as controlling in the absence of some showing that the certificate is made without warrant or not in good faith. Cf. Waterman v. McMillan et al., 77 U.S.App.D.C. 310, 135 F.2d 807; Spruill v. Temple Baptist Church, 78 U.S.App.D.C. 324, 141 F.2d 137; Wells v. United States, 318 U.S. 257 63 S.Ct. 582, 87 L.Ed. 746. An examination of the papers attached to the Petition for Leave to Appeal in Forma Pauperis discloses that the certificate of the trial court was not made without warrant and that it was made in good faith. According to the Petition for Writ of Habeas Corpus filed in the District Court the petitioner was convicted by a jury composed of eleven white men and one negro in the United States District Court for the Western District of Kentucky and sentenced on the 24th day of November, 1942, to a term of five years on a charge of violation of the Mann Act, Title 18, Section 398, U.S.C.A. Of the eleven separate paragraphs contained in the original Petition for Writ of Habeas Corpus, only three deserve consideration. In the third paragraph it is alleged that “the petitioner’s defense witnesses were threatened and intimidated and not permitted to appear at petitioner’s trial.” In the fourth paragraph it is alleged that “one defense witness was ordered to leave town (Morganfield, Kentucky), and was" }, { "docid": "18371944", "title": "", "text": "STEWART, Circuit Judge. This is an application for leave to appeal in forma pauperis from an order of the District Court for the Western District of Tennessee, denying a motion to correct sentence, filed under the provisions of 28 U.S.C.A. § 2255. There is also before the court a motion to remand the case to the district court for findings of fact and conclusions of law. The district court has certified in writing that the appeal is not taken in good faith, and an independent examination fails to disclose that this certification was unwarranted. 28 U.S.C.A. § 1915, Johnson v. United States, 1957, 352 U.S. 565, 77 S. Ct. 550, 1 L.Ed.2d 593. The petitioner was indicted, convicted, and sentenced to two consecutive five year terms of imprisonment for violations of the provisions of 18 U.S.C.A. §§ 2312 and 2313. The motor vehicle which he was convicted of transporting in violation of Section 2312 was the identical motor vehicle which he was convicted of receiving and concealing in violation of Section 2313, and the petitioner contends, that his conduct constituted but one offense, punishable by a maximum total of five years imprisonment. The law in this circuit has long since been settled contrary to the petitioner’s contention. United States v. Spradley, D.C., 65 F. Supp. 136, affirmed, 6 Cir., 1947, 162 F. 2d 203; York v. United States, 6 Cir., 1924, 299 F. 778; Crawford v. United States, 6 Cir., 1954, 214 F.2d 313; Austin v. United States, 6 Cir., 1955, 224 F. 2d 273, certiorari denied 350 U.S. 865, 76 S.Ct. 108, 100 L.Ed. 766. This is also the conclusion that has been unanimously reached in every federal court where the precise question has arisen. Chrysler v. Zerbst, 10 Cir., 1936, 81 F.2d 975; Jackson v. Hudspeth, 10 Cir., 1940, 111 F.2d 128; Record v. Hudspeth, 10 Cir., 1942, 126 F.2d 215, certiorari denied 316 U.S. 703, 62 S.Ct. 1310, 86 L.Ed. 1771; Lindsay v. United States, 10 Cir., 1943, 134 F.2d 960, certiorari denied 319 U.S. 763, 63 S.Ct. 1316, 87 L.Ed. 1714; Doll v. Johnson, 9 Cir.," }, { "docid": "1400322", "title": "", "text": "July 30, 1954.” . Ordinarily, of course, petitions for leave to appeal in forma pauperis must be initially addressed to and considered by the District Court. Gerringer v. United States, supra; West v. United States, supra. If the trial court certifies that the appeal is not taken in good faith, the appeal may not be taken, 28 U.S.C. § 1935 (1952), unless the certificate itself is erroneous because a substantial question is in fact presented by appellant. Waterman v. McMillan, 1943, 77 U.S.App.D.C. 310, 135 F.2d 807, certiorari denied 1944, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599. Under all the circumstances here, including our finding that “at least one substantial question is presented,” we consider that the usual rule does not apply, and that this court can and should act without further delay. . The indictment reads: “The Grand Jurors of the United States of America, in and for the District of Oolumbia aforesaid, upon their oath, do present: “That one George T. Jordan, on, to wit, the twenty-sixth day of May, 1944, and at the District of Oolumhia aforesaid, with force and arms, in and upon one Sophie Chyatte, then and there being, feloniously and wilfully did make an assault, with intent, then and there, by force and violence, and by sudden and stealthy seizure and snatching, and against resistance, and by putting in fear, feloniously to steal, take and carry away from and off the person and from and out of the immediate, actual possession of the said Sophie Chyatte, valuable goods, money, chattels and property, which were then and there on the person and in the immediate, actual possession of the said Sophie Chyatte; against the form of the statute in such case made and provided, and against the peace and! government of the said United States.” . Chapter 304, § 2, 48 Stat. 783, as amended, c. 747, GO Stat. 749, c. 455, 54 Stat.. 695, now replaced without substantial! changes in regard to the matter here involved, by 18 U.S.C. § 2113 (1952). . The Fifth Circuit had in other cases; demonstrated that" }, { "docid": "3722942", "title": "", "text": "in Forma Pauperis. The District Court, after reviewing the files, denied the application and certified that the proposed appeal “is not taken in good faith, is frivolous, and is without merit.” Attached to the Petition for Leave to Appeal filed herein is a copy of the original Petition for Writ of Habeas Corpus and copies of the orders entered by the District Court. Both orders were based by the District Court solely upon the proposition that the Petition for Writ of Habeas Corpus fails to disclose that petitioner has a meritorious cause and that it presented no issue of fact upon which the petitioner is entitled to a hearing under the rule announced in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. A District Court is not required to permit a poor person to file a petition without payment of costs unless there is a showing of merit. Whittle v. St. Louis & San Francisco R. Co., C.C., 104 F. 286; Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457. An appeal from a final decision of District Court is a matter of right, but the right to appeal in forma pauperis is regulated by special statute, 28 U.S.C.A. § 832 Holiday v. Johnston, Warden, 9 Cir., 123 F.2d 867, certiorari denied Ex parte Holiday, 316 U.S. 660, 62 S.Ct. 940, 86 L.Ed. 1737. It may be assumed for the purposes of this case that 28 U.S.C.A. § 832 does not foreclose all appellate review in forma pauperis when the trial court has certified its opinion that the appeal is not taken in good faith. However, the certi ficate of the trial court in such cases will be given effect at least to the extent of being accepted here as controlling in the absence of some showing that the certificate is made without warrant or not in good faith. Cf. Waterman v. McMillan et al., 77 U.S.App.D.C. 310, 135 F.2d 807; Spruill v. Temple Baptist Church, 78 U.S.App.D.C. 324, 141 F.2d 137; Wells v. United States, 318 U.S. 257 63" }, { "docid": "18177369", "title": "", "text": "843 U.S. 980, 72 S.Ct. 1081, 96 L.Ed. 1371; Newman v. United States, 1950, 87 U.S.App.D.C. 419, 184 F.2d 275, certiorari denied 1951, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665; Wheeler v. Reid, 1948, 84 U.S.App.D.C. 180, 175 F.2d 829. * * * The purpose of the statute is that the application to proceed in forma pauperis, accompanied by the affidavit, should promptly be made to the District Court, in the first instance, to enable that court, with its full and immediate knowledge of the facts, to determine whether the appeal has been taken in good faith, and if it reaches a contrary conclusion, to make its certificate accordingly. . . . If the District Court fails to act within a reasonable time, or if it denies the application to proceed in forma pauperis, and fails to certify that the appeal is not taken in good faith, then an application to proceed in forma pauperis may be made directly to this court. In any event, the applicant must show that the District Court has been given an opportunity to certify upon the question of good faith, and the action, if any, which it took. It is obvious that if anything less were required it would be possible for an applicant, by failing to give such opportunity, or by disregarding an adverse certificate of the District Court, to circumvent the requirement of the statute, and perhaps to defeat its salutary purpose. [135 F.2d at page 808] . In his motion for permission to appeal in forma pauperis Gerringer requested the appointment of counsel to represent him in this court. . An appeal from an order denying a motion under 28 U.S.C. § 2255 (Supp.1952) is governed by the civil rules applicable to appeals from final judgments in habeas corpus actions and is therefore timely when taken within 60 days after the date of entry of the order. United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Mercado v. United States, 1 Cir., 1950, 183 F.2d 486. . Mr. Justice Reed and Mr. Justice Roberts" } ]

[ { "docid": "1410001", "title": "", "text": "of the United States ... 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.” 28 U.S.C. § 2201(a) (emphasis added). Courts have consistently interpreted this permissive language as a broad grant of discretion to district courts to refuse to exercise jurisdiction over a declaratory action that they would otherwise be empowered to hear. See Wilton v. Seven Falls Co., 515 U.S. 277, 282-83, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); Public Serv. Comm’n of Utah v. Wycoff, 344 U.S. 237, 241, 73 S.Ct. 236, 97 L.Ed. 291 (1952); see also 10b Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure: Civil § 2759 (3d ed.1998) (“Wright & Miller”). The Supreme Court has also made it clear that this broad discretion is reviewed deferentially, for abuse of discretion. See Wilton, 515 U.S. at 289, 115 S.Ct. 2137; Brillhart v. Excess Ins. Co., 316 U.S. 491, 494-95, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942); see also Wright & Miller, § 2759, at 555-58. As we have explained, “A district court abuses its discretion if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact.” United States v. Couto, 311 F.3d 179, 185 (2d Cir.2002) (quoting Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001)). In the opinion below, the district court looked to a set of factors that this and other circuits have developed to guide the exercise of discretion in Declaratory Judgment Act cases. See Dow Jones, 237 F.Supp.2d at 432-37. Many years ago, this Court articulated a simple test that asks (1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty. See Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969). Other circuits have built upon this test, to ask also: (1) whether the proposed remedy is being used merely for “procedural fencing” or a “race" } ]

[ { "docid": "1037227", "title": "", "text": "See Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 307 (3d Cir. 2009). B. The Kellys seek a declaratory judgment, a remedy made available to the federal courts by the DJA. That statute provides that federal 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.” 28 U.S.G. § 2201(a) (emphasis added). Granting a declaratory judgment is therefore discretionary and a court may abstain from entertaining an action seeking only declaratory relief. Reifer, 751 F.3d at 134 (citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942)); Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (“[District courts possess discretion in determining whether and when to entertain an action under the [D JA], even when the suit otherwise satisfies subject matter jurisdictional prerequisites.”); see also Rarick v. Federated Serv. Ins. Co., 852 F.3d 223, 229 (3d Cir. 2017) (clarifying the extent of a court’s discretion where a litigant seeks both declaratory and non-declaratory relief). The discretion courts exercise in actions seeking only declaratory relief is “substantial” but nonetheless “bounded and reviewable.” Reifer, 751 F.3d at 140. On the one hand, courts may abstain based on “considerations of practicality and wise judicial administration.” Wilton, 515 U.S. at 288, 115 S.Ct. 2137. On the other hand, the “wholesale” dismissal of certain types of cases brought under the DJA is improper, as. litigants should not be unjustifiably denied the right to obtain an authorized remedy in federal court. See Reifer, 751 F.3d at 147. We have directed courts deciding whether to entertain a declaratory action to weigh certain enumerated and other factors “bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for [federal] resolution.” Id. at 138 (quoting Wilton, 515 U.S. at 289, 115 S.Ct. 2137). This type of “uniform approach” is intended to “clarify for parties and district courts the relevant considerations to sound and reasoned discretion, as well" }, { "docid": "2683170", "title": "", "text": "disabled and eligible for long term disability benefits during the Own Occupation phase of the plan. Lijoi has demonstrated that he is entitled to a summary judgment award of benefits for the period of time between September 1996 and the expiration of the “Own Occupation” period on December 16,1999. VII. Declaratory Judgment A. Legal standards The Declaratory Judgment Act provides that this Court “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.\" 28 U.S.C. § 2201(a) (emphasis added). Declaratory judgment “afford[s] a speedy and inexpensive method of adjudicating legal disputes without invoking the coercive remedies of the old procedure, and to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships.” Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321 (4th Cir.1937). “A declaratory judgment action should be entertained when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and ... when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556 (2d Cir.1991) (citing Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 790 (2d Cir. 1986)). The decision to grant declaratory relief rests in the sound discretion of the district court. Wilton v. Seven Falls Co., 515 U.S. 277, 289-290, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). As a threshold matter, “[a] party seeking a declaratory judgment bears the burden of proving that the district court has jurisdiction. Jurisdiction exists only if there is an actual controversy, which has been defined as one that is real and substantial admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” E.R. Squibb & Sons, Inc. v. Lloyd’s & Companies, 241 F.3d 154, 177 (2d Cir.2001). B. Lijoi’s prayer for declaratory relief In" }, { "docid": "12173088", "title": "", "text": "liabilities arising under CERCLA. However, that RPC assumed various contractual obligations from Federal says nothing about whether the parties intended for RPC to assume liabilities under later-enacted legislation. Whether or not RPC can be said to have contemplated that the transaction would result in its assumption of various duties and liabilities touching on the environment is not at issue in the case. B. A Declaration Clarifying International Paper’s Indemnity Rights Is Not Premature International Paper argues in the alternative that because it has not yet discharged any CERCLA liabilities, Georgia-Pacific’s request for a declaration clarifying International Paper’s right to indemnification is premature. A request for declaratory judgment is ripe if “there is a substantial controversy, ... of sufficient immediacy and reality.” Olin, 5 F.3d at 17 (citing Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)); see also 28 U.S.C. § 2201(a) (“In a case of actual controversy ... any court of the United States ... may declare the rights and other legal relations of any interested party.”). Whether a matter is sufficiently immediate and real requires a case-by-case analysis. Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.1991). In this analysis, relief should only be granted where it can be “of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” E.R. Squibb & Sons, Inc. v. Lloyd’s & Companies, 241 F.3d 154, 177 (2d Cir.2001) (internal citations omitted). Here, EPA has determined that environmental contamination is present on certain of the properties constituting the New Jersey Operations and has taken concrete enforcement actions against both parties. (General Notice Letter from EPA to John Faraci, Chairman & CEO, International Paper Co. dated Apr. 12, 2005, Ex. G to First Sprie Deck; Administrative Settlement Agreement and Order on Consent for Remedial Investigation and Feasibility Study between Georgia-Pacific Consumer Products and EPA, Ex. H to First Sprie Deck; Letter from EPA to Brian Heim, Senior Counsel, Environment, Health and Safety, International Paper Co. dated Dec." }, { "docid": "20958645", "title": "", "text": "or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Here, the Court finds that there is no genuine issue as to the material facts, as most — if not all — of the material facts were stipulated as being uncontested by the parties (See ECF AP No. 14, Statement of Undisputed Facts; ECF AP No. 15, Statement of Undisputed Facts; ECF AP No. 18, Statement of Undisputed Facts). Because there are no genuine issues of material fact, the Court can determine whether judgment should be granted as a matter of law. B. Declaratory Judgment Standard The Trustee, ESB, and CPC— and in a roundabout way First Citizens— all seek a declax-atory judgment in their favor. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that, in a case of actual controversy within its jurisdiction, a court, upon the filing of an appropriate pleading, 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. 28 U.S.C. § 2201; Rule 57 FRCP. Declaratory judgment may be granted where the facts establish “a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” State Farm Mut. Auto. Ins. Co. v. Rabiner, 749 F.Supp.2d 94, 102 (E.D.N.Y.2010) (citing Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir.1996)); see also Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 17 (2d Cir.1993) (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1991)). Where the case presents an “actual controversy,” courts have broad discretion to grant or deny declaratory relief. Dow Jones & Co. v. Harrods, Ltd., 237 F.Supp.2d 394, 431 (S.D.N.Y.2002) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995)). In determining whether to issue a declaratory judgment, courts consider whether the judgment would serve a useful" }, { "docid": "7964103", "title": "", "text": "having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ”) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)); U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443 F.Supp.2d 348, 352 (E.D.N.Y.2006) (“A court cannot adjudicate conjectural or hypothetical cases or controversies. A controversy cannot be a mere possibility or probability that a person may be adversely affected in the future.”) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (additional citation omitted); Georgia-Pacific Consumer Products, LP v. Int’l Paper Co., 566 F.Supp.2d 246, 256 (S.D.N.Y.2008) (stating that relief should only be granted where it can be “of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”) (citing E.R. Squibb & Sons, Inc., 241 F.3d at 177). “Whether a real and immediate controversy exists in a particular case is a matter of degree and must be determined on a case-by-case basis.” Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.1991). “Several courts have acknowledged the difficulty of line-drawing between those cases in which a controversy is of a hypothetical or speculative nature, and those that present issues of ‘sufficient immediacy and reality’ to warrant declaratory relief.” M.V.B. Collision, Inc. v. Allstate Ins. Co., No. 07 Civ. 0187(JFB)(JO), 2007 WL 2288046, at *7 (E.D.N.Y. Aug. 8, 2007) (quoting Duane Reade, Inc., 411 F.3d at 388); see also Reichhold Chem., Inc. v. Travelers Ins. Co., 544 F.Supp. 645, 650 (E.D.Mich.1982) (“The difference between an abstract question and a controversy contemplated by the Declaratory Judgment Act is necessarily one of degree and, as such, it is extremely difficult to fashion a precise test for determining the existence, or non-existence, of an actual controversy in every fact situation.”). Even if a matter satisfies the “actual controversy” requirement, “[t]he decision to grant declaratory relief rests in the sound discretion of the district court.” M.V.B. Collision, Inc., 2007 WL 2288046, at" }, { "docid": "20958646", "title": "", "text": "not further relief is or could be sought. 28 U.S.C. § 2201; Rule 57 FRCP. Declaratory judgment may be granted where the facts establish “a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” State Farm Mut. Auto. Ins. Co. v. Rabiner, 749 F.Supp.2d 94, 102 (E.D.N.Y.2010) (citing Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir.1996)); see also Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 17 (2d Cir.1993) (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1991)). Where the case presents an “actual controversy,” courts have broad discretion to grant or deny declaratory relief. Dow Jones & Co. v. Harrods, Ltd., 237 F.Supp.2d 394, 431 (S.D.N.Y.2002) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995)). In determining whether to issue a declaratory judgment, courts consider whether the judgment would serve a useful purpose in clarifying or settling the legal issues involved, and whether a judgment would finalize the controversy and offer relief from uncertainty. Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir.2005) (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969)). Here, the issuance of a declaratory judgment concerning the status of Defendants’ mortgages — as either valid or invalid — would finalize the controversy at the heart of the Trustee’s adversary proceeding. There is no question that a substantial controversy exists between the parties — with mortgages totaling over $13,000,000 hanging in the balance. The dispute before the Court is particularly well-suited to resolution by the issuance of a declaratory judgment, to resolve the question concerning the status of the Defendants’ mortgages. C. Standing to Enforce a Note Can Be Established by Written Assignment of the Note by an Assignor with Legal Rights Under the Note. The issue for the Court to resolve, stated most simply, is whether the Defendants have standing to" }, { "docid": "15281691", "title": "", "text": "Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3d Cir.1990)); see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). I. Standing The Declaratory Judgment Act— not state declaratory judgment law — provides the procedural mechanism for granting declaratory relief in federal diversity cases. See Haagen-Dazs Shoppe Co. v. Born, 897 F.Supp. 122, 126 & n. 2 (S.D.N.Y.1995) (gathering cases). The Declaratory Judgment Act provides in relevant part: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of the appropriate pleading, 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. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201(a). The requirement in the Declaratory Judgment Act that the action present an “actual controversy” between the parties is consistent with the “cases” and “controversies” requirement of Article III. See Emory v. Peeler, 756 F.2d 1547, 1551—52 (11th Cir.1985). “The question ... is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); see also Archie Comic Publ’ns, Inc. v. DeCarlo, No. 00 Civ. 5686(LAK), 2001 WL 1543526, at *1, 2001 U.S. Dist. LEXIS 19692 (S.D.N.Y. Dec. 3, 2001) (“[T]he indispensable prerequisites for declaratory relief are the existence of a live, definite and concrete controversy between adverse parties and circumstances making a binding judicial declaration useful in establishing their rights.” (citing E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 177 (2d Cir.2001))); Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir.1985) (“[T]he continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than" }, { "docid": "17418199", "title": "", "text": "Coyle’s suit and to secure EFI’s own choice of forum instead. Id. at 6-7. Ultimately, the court granted Coyle’s motion to dismiss the complaint for failure to comport with the objectives of the Act and did not reach the remaining issues {e.g., motion to dismiss or transfer for improper venue and motion to transfer for convenience). Id. at 1. EFI timely appealed; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION The sole issue now before us is whether the district court properly dismissed EFI’s lawsuit under the Declaratory Judgment Act. The decision to stay or dismiss a declaratory action is reviewed for an abuse of discretion, Wilton v. Seven Falls Co., 515 U.S. 277, 289, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), which occurs when: “(1) the court’s decision was clearly unreasonable, arbitrary, or fanciful; (2) the decision was based on an erroneous conclusion of law; (3) the court’s findings were clearly erroneous; or (4) the record contains no evidence upon which the codrt rationally could have based its decisiofi,” Minn. Mining & Mfg. Co. v. Norton Co., 929 F.2d 670, 673 (Fed.Cir.1991). A 'declaratory action allows ■ a party “who is reasonably at legal risk because of an unresolved dispute, to obtain judicial resolution of that dispute without-having to await the commencement of legal action by the other side.” BP Chems. Ltd. v. Union Carbide Corp., 4 F.3d 975, 977 (Fed.Cir.1993). The Declaratory Judgment Act provides that: In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the.filing of an appropriate pleading, 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. Any such declaration shall have the force-and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201(a) (2000). The district court is not required to exercise declaratory judgment jurisdiction, but has “unique and substantial discretion” to decline that jurisdiction. Wilton, 515 U.S. at 286, 115 S.Ct. 2137; EMC Corp. v. Norand Corp., 89 F.3d 807, 810" }, { "docid": "5113070", "title": "", "text": "a more significant relationship to the lawsuit. Therefore, in case of a conflict of law, Ohio law will also apply to Plaintiffs’ tort claims. 2. Claims Duplicative of Breach of Contract Claims Having determined the choice-of-law issue, the Court now turns to the substance of Defendant’s alternative arguments for dismissal. Defendant first urges the Court to dismiss many of Plaintiffs’ claims as duplicative of the breach of contract claims. a. Declaratory Judgment Claim In their First Claim for Relief, Plaintiffs seek a declaration that the 1989 License Agreement and other related agreements attached to the Complaint remain valid and enforceable. Compl. ¶¶ 57-58. The Declaratory Judgment Act provides that a district court “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.” 28 U.S.C. § 2201(a). Federal law governs this claim. The Court has discretion to decide whether to entertain a declaratory judgment action. Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). The following factors should be considered: (1) whether the judgment would settle the controversy; (2) whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata”; (4) whether the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction; and (5) whether there is an alternative remedy that is better or more effective. Bituminous Cas. Corp. v. J & L Lumber Co., Inc., 373 F.3d 807, 813 (6th Cir.2004). Defendant argues that Plaintiffs’ claim for declaratory relief should be dismissed because the relief sought in connection with that claim is duplicative of Plaintiffs’ breach of contract claims, and because Plaintiffs have an adequate remedy at law. According to Defendant, the first, second and fifth factors weigh against entertaining this claim. Plaintiffs concede that a declaration that the various agreements are enforceable would" }, { "docid": "17191845", "title": "", "text": "the case-or-controversy requirement is incorporated into the language of the very statute that authorizes federal courts to issue declaratory relief.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir.2005). As the Supreme Court held in MedImmune Inc. v. Genentech Inc.: Aetna [Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937)] and the cases following it do not draw the brightest of lines between those declaratory-judgment actions that satisfy the case-or-controversy requirement and those that do not. Our decisions have required that the dispute be “definite and concrete, touching the legal relations of parties having adverse legal interests”; and that it be “real and substantial” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Id., at 240-241, 57 S.Ct. 461. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941), we summarized as follows: “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). The Supreme Court has emphasized the district court’s “unique and substantial” discretion as to whether to issue declaratory judgments. Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). The Court underscored “[i]f a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before staying or dismissing the action.” Id. at 288, 115 S.Ct. 2137. “When there is no actual controversy, the court has no discretion to decide the case. When there is an actual controversy and thus jurisdiction, the exercise of that jurisdiction is discretionary.” Spectronics Corp. v." }, { "docid": "12625057", "title": "", "text": "jurisdiction ... any court of the United States ... 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.” 28 U.S.C. § 2201(a); MedImmune, Inc. v. Genentech, Inc., — U.S. -, -, 127 S.Ct. 764, 771, 166 L.Ed.2d 604 (2007). It is well established that “district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). “The fact that a court can enter a declaratory judgment does not mean that it should.” Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). So, for example, a declaratory judgment should be declined when it would serve only as a statement of law without any practical enforcement effect. S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch., Inc., 24 F.3d 427, 431 (2d Cir.1994). Furthermore, to establish standing that satisfies the case-or-controversy requirement under Article III of the Constitution, the dispute that is the subject of the request for a declaratory judgment must “be ‘definite and concrete, touching the legal relations of parties having adverse legal interests’; and that it be ‘real and substantial’ and ‘admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” MedImmune, 127 S.Ct. at 771. Thus, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The plaintiffs’ argue that they have standing to pursue a declaratory judgment based on their allegations that they are at risk of being re-arrested and injured again, several of the plaintiffs were arrested based on alleged false accusations by third parties that place them at risk for" }, { "docid": "7964102", "title": "", "text": "Constitution, and hence goes, in a fundamental way, to the existence of jurisdiction.” Simmonds v. I.N.S., 326 F.3d 351, 357 (2d Cir.2003). “A party seeking a declaratory judgment bears the burden of proving that the district court has jurisdiction.” E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 177 (2d Cir.2001) (citing Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 95, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993)). Jurisdiction exists only if there is an “actual controversy,” id., defined as one that is “real and substantial ... admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Olin Corp. v. Consol. Aluminum, Corp., 5 F.3d 10, 17 (2d Cir.1993) (internal citation and quotation marks omitted); see also Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005) (“The standard for ripeness in a declaratory judgment action is that ‘there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ”) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)); U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443 F.Supp.2d 348, 352 (E.D.N.Y.2006) (“A court cannot adjudicate conjectural or hypothetical cases or controversies. A controversy cannot be a mere possibility or probability that a person may be adversely affected in the future.”) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (additional citation omitted); Georgia-Pacific Consumer Products, LP v. Int’l Paper Co., 566 F.Supp.2d 246, 256 (S.D.N.Y.2008) (stating that relief should only be granted where it can be “of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”) (citing E.R. Squibb & Sons, Inc., 241 F.3d at 177). “Whether a real and immediate controversy exists in a particular case is a matter of degree and must be" }, { "docid": "23523345", "title": "", "text": "whether to exercise jurisdiction over a declaratory judgment action deferentially, for abuse of discretion. See Wilton v. Seven Falls Co., 515 U.S. 277, 289, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); see also Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir.2003) (per curiam) (district courts have “a broad grant of discretion to ... refuse to exercise jurisdiction over a declaratory action that they would otherwise be empowered to hear”). Such abuse will be found only if the district court “ ‘bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact.’ ” United States v. Couto, 311 F.3d 179, 185 (2d Cir.2002) (quoting Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001)). The standard for ripeness in a declaratory judgment action is that “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941). The district court’s decision on the merits of the parties’ insurance dispute pres ents pure questions of law — construction of the St. Paul policy to determine the contractual rights and responsibilities of the parties — that we review de novo. See Comm'l Union Ins. Co. v. Flagship. Marine Servs., Inc., 190 F.3d 26, 30 (2d Cir. 1999). II. Case or Controversy As an initial matter, St. Paul asserts that the district court lacked jurisdiction to issue any ruling because there was no certainty that the case presented an actual “case or controversy.” This argument is easily rejected. The Declaratory Judgment Act, by its express terms, vests a district court with discretion to exercise jurisdiction over a declaratory action: “In a case' of actual controversy within its jurisdiction ... any court of the United States ... 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.” 28 U.S.C. § 2201(a) (emphasis added). In order to decide" }, { "docid": "14591892", "title": "", "text": "by one Susan Gar-ber, also a nonparty. Such documents fall outside the proper scope of Rule 12(b)(6) review. III. Analysis A. Declaratory Relief The Declaratory Judgment Act (“DJA”) provides that a federal court may—in a case of actual controversy and upon the filing of an appropriate pleading—“declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). Declaratory relief may be appropriate where a dispute is (1) definite and concrete, i.e., affecting the legal relations of parties with adverse interests; and (2) real and substantial, i.e., amenable to specific, conclusive relief, as opposed to an advisory opinion based' on a .hypothetical state of facts. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); see also Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941) (“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”). It is settled that “past injury, without mores cannot form the basis for either injunctive or declaratory relief.” Peter B. v. Buscemi, C/A No. 6:10-767-TMC, 2013 WL 869607, at *7 (D.S.C. Mar. 7, 2013) (citing O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Green v. Mansour, 474 U.S. 64, 74, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)), aff'd sub nom. Chip E. v. Buscemi, No. 15-1039, 647 Fed.Appx. 219, 2016 WL 1720593 (4th Cir. Apr. 29, 2016) (per curiam). Even where a genuine, current controversy exists, relief under the DJA is not guaranteed: the statute has “long been understood ‘to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.’ ” MedImmune, Inc., 549 U.S. at 136, 127 S.Ct. 764 (citing Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995))." }, { "docid": "2683171", "title": "", "text": "in issue, and ... when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556 (2d Cir.1991) (citing Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 790 (2d Cir. 1986)). The decision to grant declaratory relief rests in the sound discretion of the district court. Wilton v. Seven Falls Co., 515 U.S. 277, 289-290, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). As a threshold matter, “[a] party seeking a declaratory judgment bears the burden of proving that the district court has jurisdiction. Jurisdiction exists only if there is an actual controversy, which has been defined as one that is real and substantial admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” E.R. Squibb & Sons, Inc. v. Lloyd’s & Companies, 241 F.3d 154, 177 (2d Cir.2001). B. Lijoi’s prayer for declaratory relief In addition to an award of benefits under the Own Occupation phase of his disability policy, Lijoi seeks a declaratory judgment that he is qualified for disability benefits under the Any Occupation phase of the Policy. During the Own Occupation phase, plaintiff must show that he is unable to perform his own occupation because of his disability. When the Own Occupation period expires after thirty-six months, the claimant must make an additional showing to collect benefits during the Any Occupation period. Essentially, he must show that not only is he disabled and unable to perform his own occupation, but that he is unable to perform any occupation. See Plan at 5. Lijoi would have been entitled to an administrative determination of his entitlement to Any Occupation benefits as of December 16, 1999. Because Continental arbitrarily terminated his benefits in August 1998, however, he was never afforded that opportunity. Such a review is now more than six years overdue, and in the meantime, Lijoi’s physical condition has continued to deteriorate. Lijoi has made a satisfactory showing for" }, { "docid": "6880675", "title": "", "text": "v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), which held that district courts have a “unique breadth of ... discretion to decline to enter a declaratory judgment,” id. at 287, 115 S.Ct. 2137. See Certain Underwriters at Lloyd's, London v. St. Joe Minerals Corp., 90 F.3d 671, 675 (2d Cir.1996) (citing a line of cases applying de novo review to a district court’s conclusion that a declaratory judgment action presents an actual case or controversy, but suggesting that Wilton casts doubt on the vitality of these cases). The fact that the high level excess insurers challenge the district corut’s subject matter jurisdiction to hear this action rather than its discretionary decision to exercise jurisdiction under the Declaratory Judgment Act would seem to suggest that de novo review is appropriate. See American States Ins. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir.1998) (applying de novo review to a district court’s determination that a declaratory judgment action presented an actual case or controversy, while reviewing the district court’s decision to exercise its declaratory judgment jurisdiction for abuse of discretion under Wilton). However, we need not resolve this question because, for the reasons that follow, we would affirm the district court’s rulings under either standard. The legal principles governing the high level excess insurers’ challenge are well-established. A party seeking a declaratory judgment bears the burden of proving that the district court has jurisdiction. See Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 95, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993). Jurisdiction exists only if there is an “actual controversy,” 28 U.S.C. § 2201(a); see also Jefferson v. Abrams, 747 F.2d 94, 96 (2d Cir.1984) (“Article III, Section 2 of the United States Constitution limits federal court jurisdiction to actual cases and controversies.”), which has been defined as one that is “ ‘real and substantial ... admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10," }, { "docid": "2310092", "title": "", "text": "a result of the actions of the District Court [of the Southern District of Georgia] and the [Eleventh Circuit] Court of Appeals, plaintiff has been deprived by defendant of his constitutional rights to petition for habeas corpus relief and to appeal. The complaint alleges that § 2253(c) is unconstitutional on its face, and that §§ 2253(c) and 2254(d) are unconstitutional as applied to Jenkins by the courts of the Eleventh Circuit. The district court dismissed on the ground that “[a]n actual controversy does not exist ... because it is not likely that a decision in plaintiffs favor will provide him with the rélief he seeks.” This appeal followed. DISCUSSION Jenkins’ cause of action arises (if at all) under the Declaratory Judgment Act, which provides that: In a case of actual controversy within its jurisdiction .any court of the United States, upon the filing of an appropriate pleading, 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. 28 U.S.C. § 2201(a). The appropriateness of declaratory relief is “peculiarly within the[ ] grasp” of the district courts, and the reach of that grasp is normally reviewed for abuse of discretion. Wilton v. Seven Falls, Co., 515 U.S. 277, 289, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). Both Jenkins and the government acknowledge, however, that our standard of review is unsettled when a declaratory judgment action is dismissed for lack of standing. We have suggested that de novo review may be appropriate in such cases, E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 177 (2d Cir.2001), and the parties accept that standard. Although it is possible that the standard of review may depend upon the analysis employed to decide the issue, we need not resolve this question, as Jenkins’ claim fails whether we accord the district court maximum deference, or none. We have recently reviewed the parameters of Article Ill’s standing requirement: Article III, § 2 of the United States Constitution restricts federal courts to deciding “Cases” and “Controversies” and thus imposes" }, { "docid": "19565563", "title": "", "text": "525, 148 L.Ed.2d 388 (2000) (per curiam). Thus, an injunction barring Defendants from including a citizenship question on the 2020 census questionnaire altogether is appropriate. 3. Declaratory Relief Finally, the Court denies Plaintiffs' request for declaratory relief as unnecessary. See Pls.' Proposed Conclusions ¶ 615; SAC 57; NGO Compl. 67. The Declaratory Judgment Act vests federal courts with discretion, in a proper case, to \"declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.\" 28 U.S.C. § 2201(a) ; see Wilton v. Seven Falls Co. , 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). In exercising that discretion, courts must consider \"(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; ... (2) whether a judgment would finalize the controversy and offer relief from uncertainty[;] ... [3] whether the proposed remedy is being used merely for procedural fencing or a race to res judicata; [4] whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and [5] whether there is a better or more effective remedy.\" Dow Jones & Co. v. Harrods Ltd. , 346 F.3d 357, 359-60 (2d Cir. 2003) (citations and internal quotation marks omitted). Applying those standards here, the Court concludes that a declaratory judgment would serve little \"useful purpose\" beyond what has already been said and ordered here. More to the point, there is a \"better\" remedy available to Plaintiffs in these cases - and they now have it. The relief awarded, combined with the preclusive effect (at least as between these parties) of the Court's factual findings and legal conclusions, is as good and as \"effective\" - and, for that matter, as \"declaratory\" - a remedy as Plaintiffs require. CONCLUSION There is no dispute that the Constitution, the Census Act, and the APA allow the Secretary of Commerce broad discretion over the design and administration of the decennial census. See Wisconsin , 517 U.S. at" }, { "docid": "7964101", "title": "", "text": "to disqualify the County Attorney based upon, among other things, a conflict of interest theory — is not “ripe” for adjudication. (County Def. Mem., at 9.) As a threshold matter, the Court finds that Buonora’s motion for the County Attorney’s disqualification does present an “actual case or controversy” within the meaning of Article III and, therefore, is ripe for adjudication before this Court. Pursuant to the Declaratory Judgment Act, Section 2201 of Title 28: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, 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. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201. The ripeness doctrine relates to whether the “actual controversy” requirement is met, and it “has as its source the Case or Controversy Clause of Article III of the Constitution, and hence goes, in a fundamental way, to the existence of jurisdiction.” Simmonds v. I.N.S., 326 F.3d 351, 357 (2d Cir.2003). “A party seeking a declaratory judgment bears the burden of proving that the district court has jurisdiction.” E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 177 (2d Cir.2001) (citing Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 95, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993)). Jurisdiction exists only if there is an “actual controversy,” id., defined as one that is “real and substantial ... admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Olin Corp. v. Consol. Aluminum, Corp., 5 F.3d 10, 17 (2d Cir.1993) (internal citation and quotation marks omitted); see also Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005) (“The standard for ripeness in a declaratory judgment action is that ‘there is a substantial controversy, between parties" }, { "docid": "591813", "title": "", "text": "According to The Times, “a district court is required to entertain a declaratory judgment action ‘(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, or (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ” Starter, 84 F.3d at 597 (quoting Continental Cas., 977 F.2d at 737). The government contends that, pursuant to Supreme Court and Second Circuit cases decided after Starter, even where there is jurisdiction and an actual controversy, a district court retains discretion as to whether it will entertain a declaratory judgment action. The Supreme Court has explained: Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants. On its face, the statute provides that a court “may declare the rights and other legal relations of any interested party seeking such declaration,” [28 U.S.C. § 2201(a) ].... The statute’s textual commitment to discretion, and the breadth of leeway we have always understood it to suggest, distinguish the declaratory judgment context from other areas of the law in which concepts of discretion surface. Wilton v. Seven Falls Co., 515 U.S. 277, 286-87, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (emphasis in original and citations omitted). The Second Circuit has subsequently affirmed a district court’s refusal to entertain a declaratory judgment action based on a “detailed analysis” of the following five factors: (1) “whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved”; (2) “whether a judgment would finalize the controversy and offer relief from uncertainty”; (3) “whether the proposed remedy is being used merely for ‘procedural fencing’ or a ‘race to res judicata’ ”; (4) “whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court”; and (5) “whether there is a better or more effective remedy.” Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d" } ]

[ { "docid": "4146628", "title": "", "text": "relief can be granted. A. Plaintiff’s initial cause of action alleges that the defendants’ acts constituted a taking of property without just compensation in violation of the United States Constitution. Defendants contend that the city ordinances designating plaintiff’s property to be in an interim study zone which restricts its use to agricultural endeavors unless otherwise authorized by a special permit was “an attempt to meet the requirements of proper community planning.” A similar police power justification for rezoning was put forth by the defendant City of Palo Alto in Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal.1974). In that case, plaintiff alleged that she was induced by agents of the city to allow annexation of her unimproved real property in exchange for a promise that she would be permitted to develop her property under a residential zoning classification allowing a one-acre minimum lot size. Subsequent to annexation, and after plaintiff had been assessed for the installation of sewer and water facilities calculated on the basis of one dwelling per acre, the property was reclassified with residential uses restricted to a ten-acre minimum lot size. In denying the defendant city’s motion to dismiss, the District Court in Dahl stated that deciding where regulation ends and taking begins is essentially a question of reasonableness, citing Goldblatt v. Hempstead, 369 U.S. 590, 594-95, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The Court went on to note: The determination of reasonableness is a factual one encompassing the interests of the public, the appropriateness of the means, and the oppressiveness of the action. Such a determination is inappropriate in a motion to dismiss. Dahl v. City of Palo Alto, supra at 648. For the purposes of a motion to dismiss, the material allegations are taken as admitted, and the complaint should not be dismissed unless it appears that the claimant could prove no set of facts in support of his claim which would entitle him to relief. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1968). The question, then, is whether plaintiff has stated facts which, if proved," } ]

[ { "docid": "440728", "title": "", "text": "was merely to diminish the value of the parcel as a whole. This diminution in value was not an unconstitutional taking. The appellant maintained that the validity of the ordinance must be judged by the effect of a given zoning designation on a particular parcel. Because the Spit and the Point were zoned differently, the effect of the ordinance must be judged differently. Appellant contended that the Spit’s zoning deprived it of any substantial beneficial use of the Spit and so was a taking. Summary judgment for the County was orally granted, holding: “[Wjhere a single party has a single contiguous parcel of property affected by a community zoning program, and where that program permits a reasonable profitable use of the property taken as a whole, that no claim has been made for a [sic] unlawful taking ...” The trial judge did not consider whether the Spit itself would have a substantial beneficial use under its current zoning classification. Appellant appeals. We note jurisdiction under 28 U.S.C. § 1291. DISCUSSION The district court held as a matter of law that the Spit and Point constitute a single parcel for taking purposes. Single Parcel Theory We begin by discussing the relationship between the taking issue and the severance damage issue in eminent domain proceedings. Government regulation can “be so onerous as to constitute a taking which constitutionally requires compensation”. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962). There is no set formula for determining when an economic injury occasioned by regulation must be compensated by government. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). A police power regulation is not invalid simply because it prevents the highest and best use of the land. Id. at 125, 98 S.Ct. at 2659-2660; Haas v. City & County of San Francisco, 605 F.2d 1117, 1120 (9th Cir. 1979). Nor is a regulation invalid merely because it dramatically reduces the value of property. E. g., Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143," }, { "docid": "9449373", "title": "", "text": "in Galbraith v. Planning Department of the City of Anderson, 627 N.E.2d 850 (Ind.Ct.App.1994), was a zoning ordinance that restricted the plaintiff's use of his property. In determining whether the zoning ordinance constituted a taking, the court stated that \"a zoning regulation 'goes too far,’ that is, is confiscatory, when it denies the property owner 'all economically beneficial or productive use of the land.' ” Id. at 853 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). Thus, the statements that an owner must show that all economically beneficial use of property has been lost before instituting a state inverse condemnation action arose in the context of regulations on the use of property, not in the context of a physical invasion of property. . See also River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994) (noting that \"[ljabels do not matter\" and holding that a plaintiff could not avoid Williamson County 's exhaustion requirement simply by adopting the label of \"procedural due process”); Forseth, 199 F.3d at 370 (explaining that a \"substantive due process claim [that] falls within the framework for takings claims” is \"subject to Williamson's requirement that [the plaintiffs] seek a final decision and pursue state court remedies before federal courts have jurisdiction to hear their case”). . Additionally, because we find that plaintiffs have failed to exhaust their administrative remedies, we need not and do not address the issue of whether the draw-down of the pond was a random, unauthorized act or whether the DNR employees possessed the requisite intent to establish a due process violation." }, { "docid": "18893113", "title": "", "text": "wait for another denial before seeking redress in this Court. Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal.1974). With the County’s denial of their claim for inverse condemnation, plaintiffs exhausted their available administrative remedies. The motion to dismiss on this ground is therefore denied. Sufficiency of the Claims Stated Defendants urge the Court to hold that zoning regulations enacted pursuant to a comprehensive plan for community development are proper exercises of the police power and therefore not actionable as a matter of law. In essence, defendants are requesting the Court to apply in the area of land use regulation the “any reasonable basis” test that the United States Supreme Court has applied in evaluating legislative discretion in the areas of economic and social regulation. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). This Court is unwilling to so hold. The constitutional test in “takings” cases requires an independent judicial analysis of the facts of the case and not merely a finding that the legislative body acted on substantial evidence or was not unreasonable or arbitrary in enacting the ordinance in question. Of course the Court will give considerable weight to the well-considered planning decisions of state and local legislative bodies, but this is only one of several factors to be considered. As the United States Supreme Court stated in Goldblatt v. Hempsted, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), there is no set formula for determining where regulation ends and taking begins. It is essentially a question of reasonableness, the determination of which is a factual matter. In this determination the Court will weigh such factors as the relationship of the regulation to comprehensive plans and community goals, the physical characteristics of the property and the surround ing property, the relationship of the regulation of the public health, safety and welfare, the degree to which the use of the property is restricted, and whether any reasonable beneficial use of the property is in fact permitted. Such a factual determination would be inappropriate on a motion" }, { "docid": "4146627", "title": "", "text": "The complaint also contained pendent state claims for breach of contract and inverse condemnation. The District Court abstained, finding that the federal courts ought not to intervene in California land use planning unless faced with no alternative and that the federal issues might be avoided by a definitive ruling on the state issues. The Rancho decision does not explain the nature of plaintiff’s Fifth Amendment claim in much detail. Exactly why the Court thought the federal claims would be resolved by a determination of the state claims is not clear; consequently, the opinion is of little help. As noted above, the question of whether there has been an unconstitutional taking under the Fifth Amendment in the instant action would not be answered by a resolution of the state claims; therefore, abstention is inappropriate here because the controversy would not be terminated. Accordingly, the motion to abstain is denied. III. MOTION TO DISMISS The defendants have brought a motion to dismiss each cause of action alleged by plaintiff for failure to state a claim upon which relief can be granted. A. Plaintiff’s initial cause of action alleges that the defendants’ acts constituted a taking of property without just compensation in violation of the United States Constitution. Defendants contend that the city ordinances designating plaintiff’s property to be in an interim study zone which restricts its use to agricultural endeavors unless otherwise authorized by a special permit was “an attempt to meet the requirements of proper community planning.” A similar police power justification for rezoning was put forth by the defendant City of Palo Alto in Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal.1974). In that case, plaintiff alleged that she was induced by agents of the city to allow annexation of her unimproved real property in exchange for a promise that she would be permitted to develop her property under a residential zoning classification allowing a one-acre minimum lot size. Subsequent to annexation, and after plaintiff had been assessed for the installation of sewer and water facilities calculated on the basis of one dwelling per acre, the property was" }, { "docid": "18893114", "title": "", "text": "legislative body acted on substantial evidence or was not unreasonable or arbitrary in enacting the ordinance in question. Of course the Court will give considerable weight to the well-considered planning decisions of state and local legislative bodies, but this is only one of several factors to be considered. As the United States Supreme Court stated in Goldblatt v. Hempsted, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), there is no set formula for determining where regulation ends and taking begins. It is essentially a question of reasonableness, the determination of which is a factual matter. In this determination the Court will weigh such factors as the relationship of the regulation to comprehensive plans and community goals, the physical characteristics of the property and the surround ing property, the relationship of the regulation of the public health, safety and welfare, the degree to which the use of the property is restricted, and whether any reasonable beneficial use of the property is in fact permitted. Such a factual determination would be inappropriate on a motion to dismiss. M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354 (N.D.Cal.1975); Dahl v. City of Palo Alto, supra. Assuming the truth of plaintiffs’ allegations, as we must on this motion, the Court finds that the facts as stated, if proved, would entitle them to relief. The motion to dismiss is therefore denied. It is so ordered. . Although we find that there is no blanket immunity for the County from inverse condemnation actions for monetary damages, the Court notes that monetary damages are not judicially favored in land regulation cases absent actual physical damage or invasion, regulations which allow no reasonable use of the complainant’s property or are exceptionally restrictive, or confiscatory intent or bad faith on the part of the government. Because court-ordered acquisition is likely to be extremely burdensome for the community, and because the burden on the plaintiff can be remedied by removal of the offending land-use restriction, courts have found it appropriate to limit relief in inverse condemnation cases to a declaration that the regulation in" }, { "docid": "18893115", "title": "", "text": "to dismiss. M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354 (N.D.Cal.1975); Dahl v. City of Palo Alto, supra. Assuming the truth of plaintiffs’ allegations, as we must on this motion, the Court finds that the facts as stated, if proved, would entitle them to relief. The motion to dismiss is therefore denied. It is so ordered. . Although we find that there is no blanket immunity for the County from inverse condemnation actions for monetary damages, the Court notes that monetary damages are not judicially favored in land regulation cases absent actual physical damage or invasion, regulations which allow no reasonable use of the complainant’s property or are exceptionally restrictive, or confiscatory intent or bad faith on the part of the government. Because court-ordered acquisition is likely to be extremely burdensome for the community, and because the burden on the plaintiff can be remedied by removal of the offending land-use restriction, courts have found it appropriate to limit relief in inverse condemnation cases to a declaration that the regulation in question is invalid. See, e. g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928); HFH, Ltd. v. Superior Court, 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237 (1975). This Court is in accord with the California policy disfavoring findings of compensable inverse condemnation in the application of otherwise valid land-use regulations, plaintiffs wh! therefore have a heavy burden of proving entitlement to monetary relief on the basis of excessive restriction, bad faith or confiscatory intent by the County of Santa Cruz. Klopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972); Arastra Limited Partnership v. City of Palo Alto, 401 F.Supp. 962 (N.D.Cal.1975); Eldridge v. City of Palo Alto, 57 Cal.App.3d 613, 129 Cal.Rptr. 575 (1976)." }, { "docid": "6144500", "title": "", "text": "“be so onerous as to constitute a taking which constitutionally requires compensation.” (Goldblatt v. Hempstead (1962) 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130.) Moreover, the Supreme Court has acknowledged that it “has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the Government, rather than remain disproportionately concentrated on a few persons. See Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).” (Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631.) Land use restrictions, reasonably related to the promotion of the health, safety, morals, or general welfare, have been repeatedly upheld even though the challenged regulations destroyed or adversely affected recognized real property interests or flatly prohibited the most beneficial use of the property. (Penn Central Transportation Co. v. New York City, supra, 438 U.S. at 125, 98 S.Ct. 2646.) Haas necessarily agrees that the zoning and land use restrictions applied to its property did promote the general welfare by decreasing population density in the Russian Hill area, preserved light and air available to the neighbors, and served the aesthetic values enjoyed by the City as a whole. Haas also recognizes that diminution of the value of its property by destroying its highest and best use by land use restrictions reasonably related to the general welfare cannot be the basis for a successful constitutional attack. Thus, accepting as true the valuation evidence most favorable to Haas, the value of its property was reduced from about $2,000,000 to about $100,000. Diminution of value on a similar scale was upheld in Hadacheck v. Sebastian (1915) 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (regulations reduced land value from $800,000 to $60,000). Haas has attempted to avoid the impact of Hadacheck by arguing that the nature, quality, and amount of benefit to the general welfare is inadequate constitutionally to offset the individual economic burden that the restrictions forced Haas to endure. We disagree. “[Decisions sustaining other land" }, { "docid": "10286264", "title": "", "text": "can be said to a legal certainty that plaintiffs can prove no set of facts in support of their claims. Ricciotti, supra, and Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In the light of the comments by counsel for TRPA, the express declarations of purpose of the Land Use Ordinance, the experience of Western Hotels, and the discretion vested in a court of equity to relax the exhaustion requirement where the facts of the case so dictate (Natural Gas Co. v. Slattery, 302 U.S. 300, 311, 58 S.Ct. 199, 82 L.Ed. 276 (1937)), we cannot say to a legal certainty that plaintiffs cannot prove that the administrative remedies of the Ordinance are futile. Failure to State a Claim. The motions to dismiss attack the complaints for. their purported failure to state a claim upon which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. The complaints allege that the regulation of plaintiffs’ lands embodied in the Land Use Ordinance is so restrictive as to constitute a “taking” of those properties. The Ordinance is thus said to violate the constitutional guarantees that property will not be taken without compensation (Fifth Amendment) and that it will not be taken without due process of law (Fourteenth Amendment). Defendants justify the regulation by reliance on the police power doctrine. The police power has been broadly defined as the “time-tested conceptional limit of public encroachment upon private interests” (Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962)); and “the power to regulate human activity in order to promote public health, safety, welfare and morals” (Van Alstyne, “Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria,” 44 So. Cal.L.Rev. 1 (1971)). Justice Holmes recognized that limitation of private rights may be justified where the police power is properly invoked: “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and" }, { "docid": "22244576", "title": "", "text": "overly restrictive regulations on the free use of the property. See, e. g., Pennsylvania Coal Co. v. Mahon, 1922, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (“The general rule * * * is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”); Pete v. United States, 1976, 531 F.2d 1018, 1030--36, 209 Ct.Cl. 270; Maher v. City of New Orleans, 5 Cir., 1976, 516 F.2d 1051, 1065. (It is also clear that the Government may not regulate for the purpose of depressing value in eminent domain proceedings. E. g., Washington Metropolitan Area Transit Auth. v. One Parcel of Land, D.Md., 1976, 413 F.Supp. 102, 106, aff'd, 4 Cir., 1977, 548 F.2d 1130, and cases cited therein.) Usually a landowner’s remedy for such “confiscatory” regulations which deprive him of any reasonable use whatsoever is an injunction against enforcement of the regulations, but occasionally landowners have brought “inverse condemnation” actions and recovered damages (just compensation) instead. See generally Note, Inverse Condemnation: Its Availability in Challenging the Validity of a Zoning Ordinance, 26 Stan.L.Rev. 1439 (1974). In this case, the owners are in effect seeking to introduce an inverse condemnation claim into this conventional eminent .domain proceeding, for they contend that to value their land as undevelopable because governmental regulations preclude development is tantamount to a regulatory taking. Their argument is not a frivolous one, but we decline to address its merits. So far there has not even been a proper determination of what restrictions these properties were subject to, much less any consideration of whether these restrictions so substantially deprived the owners of the reasonable free use of their lands as to amount to a regulatory taking. Until these factual and legal issues have been properly presented and considered, we defer consideration of the extremely complex questions of law and procedure raised by the landowners’ argument, questions which would be complicated further where the regulatory taking, if there has in fact been one, was effected by the combined force of federal and state regulatory restrictions (such" }, { "docid": "9449372", "title": "", "text": "789 N.E.2d 467, 472-73 (Ind.2003). . In Mendenhall v. City of Indianapolis, 717 N.E.2d 1218 (Ind.Ct.App.1999), the state twice had seized the plaintiff’s property and later had allowed him use of it if he signed a covenant that the property would not be used for \"any adult use in the future.” Id. at 1228. However, the court did not consider whether the physical seizures constituted takings because the plaintiff had failed to challenge the seizures in a timely manner in state court. Id. (\"Mendenhall passed up his opportunity to argue the validity of the order and the subsequent seizure of his property.”). The plaintiff also had argued that the restrictive covenant was a taking; with respect to this argument, the court stated that \"Mendenhall has not shown that the covenant deprived his property of 'all economically beneficial or productive use.' Mendenhall has failed to show that a 'taking' of his property for public use without compensation to him has occurred.” Id. (quoting Galbraith v. Planning Dep’t of Anderson, 627 N.E.2d 850, 854 (Ind.Ct.App.1994)). At issue in Galbraith v. Planning Department of the City of Anderson, 627 N.E.2d 850 (Ind.Ct.App.1994), was a zoning ordinance that restricted the plaintiff's use of his property. In determining whether the zoning ordinance constituted a taking, the court stated that \"a zoning regulation 'goes too far,’ that is, is confiscatory, when it denies the property owner 'all economically beneficial or productive use of the land.' ” Id. at 853 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). Thus, the statements that an owner must show that all economically beneficial use of property has been lost before instituting a state inverse condemnation action arose in the context of regulations on the use of property, not in the context of a physical invasion of property. . See also River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994) (noting that \"[ljabels do not matter\" and holding that a plaintiff could not avoid Williamson County 's exhaustion requirement simply by adopting the label of \"procedural" }, { "docid": "6144499", "title": "", "text": "purchased the property and incurred contractual obliga tions to architects and construction companies in good faith reliance on the validity of the permit. We have no occasion to decide the correct measure of damages in an inverse condemnation action. Finally, we need not discuss California’s interpretation of the doctrine of “taking” in an inverse condemnation context because controlling federal authority dooms Haas’s action. We do not separate Haas’ attack on the constitutional validity of the zoning ordinance and the planned use regulations as applied to its property and its claim that the combination of the ordinance and regulations constituted a taking because both contentions rest upon the same premise: The rezoning and land use restrictions imposed on Haas are so grossly disproportionate to the benefits conceivably inuring to the public in promoting the general welfare that the regulatory scheme, as applied to Haas constitutes an uncompensated taking, or, at the minimum, the record creates a triable issue of fact on the constitutional question. As the City recognizes, governmental action in the form of regulation can “be so onerous as to constitute a taking which constitutionally requires compensation.” (Goldblatt v. Hempstead (1962) 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130.) Moreover, the Supreme Court has acknowledged that it “has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the Government, rather than remain disproportionately concentrated on a few persons. See Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).” (Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631.) Land use restrictions, reasonably related to the promotion of the health, safety, morals, or general welfare, have been repeatedly upheld even though the challenged regulations destroyed or adversely affected recognized real property interests or flatly prohibited the most beneficial use of the property. (Penn Central Transportation Co. v. New York City, supra, 438 U.S. at 125, 98 S.Ct. 2646.) Haas necessarily agrees that the zoning and land use restrictions" }, { "docid": "6294692", "title": "", "text": "a formal condemnation proceeding, may also be a taking. See, e.g., Loretto v. Teleprompter Manhattan CATV. Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (installation of cable television equipment on private property pursuant to state authorization). Where the government condemns a leasehold interest for temporary use, the “taking” includes the value of fixtures and permanent improvements as well as the lessee’s cost of moving. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed.2d 311 (1945). Finally, police power regulations restricting the use of property may in some limited circumstances amount to a taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed.2d 322 (1922) (State regulation prohibiting an owner from mining coal it owned beneath the house of an owner who bought only an interest in the surface). In this case, in order for there to have been a taking, plaintiffs must allege they have been denied any viable economic use of their property. See Hernandez v. City of Lafayette, 643 F.2d 1188, 1200 (5th Cir.1981); York v. City of Cedartown, 648 F.2d 231, 232 n. 2 (5th Cir.1981). A reduction in value alone arising from regulation of landfills does not constitute a taking. Dirt, Inc. v. Mobile County Commission, 739 F.2d 1562, 1566 (11th Cir.1984); see also Pennsylvania Central Transporta tion Co. v. New York, 438 U.S. 104, 131, 98 S.Ct. 2646, 2663, 57 L.Ed.2d 631, 653 (1978). Additionally, an otherwise valid exercise of the police power is not a taking simply because the regulation deprives the owner of the most beneficial use of his or her property. Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 989, 8 L.Ed.2d 130 (1962); see also Nasser v. City of Homewood, 671 F.2d 432, 438 (11th Cir. 1982) (neither deprivation of most beneficial use of land nor severe decrease in property value is a taking). There is no set formula for making the determination of whether a regulation is so onerous as to be confiscatory. Goldblatt, supra, 369 U.S. at 594, 82" }, { "docid": "3952150", "title": "", "text": "admitted its inability ‘to develop any “set formula” ’ for determining when compensation should be paid, Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978), resorting instead to ‘essentially ad hoc, factual inquiries’ to resolve this difficult question. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, [350-51], 106 S.Ct. 2561, 2566-67, 91 L.Ed.2d 285 (1986); Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979). While dismissal of a complaint for inverse condemnation is not always inappropriate, such a dismissal must be reviewed with particular skepticism to assure that plaintiffs are not denied a full and fair opportunity to present their claims. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir.1986), cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988); see also Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990). In addition to having their charge of total deprivation disregarded, dismissal in this case prevents the McDougals from adducing evidence of illegitimate purpose and from showing that the regulatory burdens imposed on their property bear no reasonable relationship to the County’s legitimate concern for flood control. See Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631 (1978) (“a use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose”). These allegations must be taken as true, and we believe the McDougals are entitled to try to prove them. A. The Takings “Test” After First English In First English, as here, the landowner sought compensation for a taking wrought by a flood control ordinance which allegedly deprived it of all use of its property. The only question before the Court was whether the fifth amendment requires compensation for a regulatory taking, no matter how temporary, or whether non-monetary relief is constitutionally sufficient. The municipality nevertheless argued that the Court should" }, { "docid": "1576460", "title": "", "text": "with three other members of the Court, dissented and addressed the merits. Justice Rehnquist concurred specifically in the majority opinion, but also expressly accepted the dissent’s position on the merits. San Diego Gas, 450 U.S. at 633-34, 101 S.Ct. at 1294-95 (Rehnquist, J., concurring). Thus, on the Taking Clause question, the dissent in San Diego Gas reflects the view of a majority of the Court. See Devines v. Maier, 665 F.2d 138, 142 (7th Cir.1981). . The government need not invoke the formal power of eminent domain to confiscate property for public use. United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127-1130, 63 L.Ed.2d 373 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 178 n. 8, 100 S.Ct. 383, 392 n. 8, 62 L.Ed.2d 332 (1979). The government may deny an owner dominion over his property simply by restricting its use. Police power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property. From the property owner’s point of view, it may matter little whether his land is condemned ... or whether it is restricted by regulation to use in its natural state, if the effect in both cases is to deprive him of all beneficial use of it. From the government’s point of view, the benefits flowing to the public from preservation of open space through regulations may be equally great as from creating a wildlife refuge through formal condemnation.... San Diego Gas, 450 U.S. at 652, 101 S.Ct. at 1304 (Brennan, J., dissenting). Thus, because the City of Milwaukee had allegedly taken their property by regulation rather than through condemnation proceedings, the plaintiffs filed this action to recover damages for the “inverse condemnation” of their property. As defined by one land use planning expert, “fijnverse condemnation is ‘a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of" }, { "docid": "9449341", "title": "", "text": "Indiana courts explicitly had held that the State did not recognize equitable relief for the alleged taking that occurred in Daniels, and the plaintiffs in Daniels had not suffered any compensable injury. Thus, in Daniels, we held that “with no monetary loss and injunctive relief not an available option under [Indiana law], the inverse condemnation procedure is inadequate to address the [plaintiffs’] injury,” and, consequently, “this futility exempts them from the exhaustion requirement.” Daniels, 306 F.3d at 457. However, Indiana courts have not constructed an absolute bar to state actions for physical-invasion takings such as that alleged in the present case. In spite of the all-encompassing statements made in Men-denhall and Galbraith, other Indiana cases indicate that Indiana in fact does recognize an inverse condemnation claim for a physical invasion of property, no matter how small that invasion. A brief overview of Indiana inverse condemnation law is instructive. Under Indiana state law, there are two stages in any action for inverse condemnation. First, “the landowner must show that he has an interest in land which has been taken for a public use without having been appropriated under eminent domain laws.” If the state “court finds that a taking has occurred, then the matter proceeds to the second stage where the court appoints appraisers and damages are assessed.” Jenkins v. Bd. of County Comm’rs of Madison County, 698 N.E.2d 1268, 1270 (Ind.Ct.App.1998). In determining the first step, the Supreme Court of Indiana and Indiana appellate courts have recognized that there are “two discrete categories of regulations that violate the Takings Clause regardless of the legitimate state interest advanced.” The first category encompasses regulations that require the property owner to suffer a physical “invasion” of his or her property. The second category encompasses regulations that deny all economically beneficial or productive use of land. Georgetown v. Sewell, 786 N.E.2d 1132, 1139 (Ind.Ct.App.2003) (quoting Bd. of Zoning Appeals, Bloomington v. Leisz, 702 N.E.2d 1026, 1028-29 (Ind.1998)); see also Metro. Dev. Comm’n of Marion County v. Schroeder, 727 N.E.2d 742, 753 (Ind.Ct.App.2000) (noting the existence of “two discrete categories” of takings regardless of legitimate" }, { "docid": "5984547", "title": "", "text": "however, for determining where regulation ends and taking begins. It is essentially a question of reasonableness. Goldblatt v. Hempstead, 369 U.S. 590, 594-595, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The determination of reasonableness is a factual one encompassing the interests of the public, the appropriateness of the means, and the oppressiveness of the action. Such a determination is inappropriate in a motion to dismiss. Assuming the truth of the allegations stated above, as the Court must in a motion to dismiss, the question is simply whether the plaintiff has stated facts which, if proved, would entitle her to relief. Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Since plaintiff alleges that the regulation is arbitrary and capricious and that it allows no reasonable use of plaintiff’s property, her burden has been met. Similarly, the plaintiff has alleged sufficient facts to overcome a motion to dismiss her claim that the moratoriums so restricted the use of her land that they amounted to inverse condemnation. See Peacock v. County of Sacramento, 271 Cal.App.2d 845, 859-860, 77 Cal. Rptr. 391, 401-402 (1969). Plaintiff also alleges sufficient facts to support the conditions required for an equitable estoppel against a municipality. See City of San Marino v. Roman Catholic Archbishop of L.A., 180 Cal.App.2d 657, 676-677, 4 Cal.Rptr. 547, 559-560, cert. denied, 364 U.S. 909, 81 S.Ct. 272, 5 L.Ed.2d 224 (1960). As to the lack of subject matter jurisdiction in this Court, defendant makes two arguments. First, it urges the Court to refuse to exercise jurisdiction because of plaintiff’s failure to exhaust available administrative remedies. Plaintiff has, however, made a claim for inverse condemnation in accordance with California Government Code § 905. The only other remedy referred to by defendant is plaintiff’s failure to apply for a variance. It is highly improbable that a variance would, or legally could, be granted where as much land as here is involved (291 acres) and where development would be completely contrary to the goal of preserving the land in its natural or near natural state. The Court will not require" }, { "docid": "22785331", "title": "", "text": "Sustaining Demurrers and Granting Leave to Amend,” the California Superior Court contended that “the property had obvious other uses than agriculture under the Yolo County Code,” id., at 115, and referenced sections permitting such uses, among others, as ranch and farm dwellings and agricultural storage facilities, see Yolo County Code §§8-2.502, 8-2.503. The court rejected appellant’s “attemp[t] to overcome that defect by alleging as conclusion-ary fact that each and every principal use and each and every multiple accessory use is no longer possible so that the property does have no value as zoned.” App. 115. It concluded that, irrespective of the insufficiency of appellant’s factual allegations, monetary damages for inverse condemnation are foreclosed by the California Supreme Court’s decision in Agins v. City of Tiburon, 24 Cal. 3d 266, 274-277, 598 P. 2d 25, 29-31 (1979), aff’d, 447 U. S. 255 (1980). App. 116, 118. The California Court of Appeal affirmed. It “accepted] as true all the properly pled factual allegations of the complaint,” id., at 126, and did “not consider whether the complaint was barred by the failure to exhaust administrative remedies or by res judicata,” id., at 125-126. But it “f[ou]nd the decision in Agins to be controlling herein,” id., at 130: “In that case the [California] Supreme Court specifically and clearly established, for policy reasons, a rule of law which precludes a landowner from recovering in inverse condemnation based upon land use regulation. We emphasize that the Court did not hold that regulation cannot amount to a taking without compensation, it simply held that in such event the remedy is not inverse condemnation. The remedy instead is an action to have the regulation set aside as unconstitutional. Plaintiff has filed a mandate action in the trial court which is currently pending. That is its proper remedy. The claim for inverse condemnation cannot be maintained.” Id., at 130-131 (citation and footnote omitted). In the alternative, the California Court of Appeal determined that appellant would not be entitled to monetary relief even if California law provided for this remedy: “In any event, even if an inverse condemnation action were" }, { "docid": "5984546", "title": "", "text": "that it is arbitrary, capricious and unreasonable; and that it thus constitutes a taking of her property without payment of just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff also contends that the moratoriums which preceded the rezoning constituted a taking in that they were intended to prevent development of the land, thus reducing its market value in the event of condemnation. Finally, plaintiff pleads pendent state claims of breach of contract and misrepresentation by the City. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331(a), and plaintiff alleges an amount in controversy in excess of $15,000. Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. Defendant’s principal argument as to the failure to state a claim is that the zoning regulations were enacted pursuant to a comprehensive plan of community development and are therefore a proper exercise of the police power. There is no set formula, however, for determining where regulation ends and taking begins. It is essentially a question of reasonableness. Goldblatt v. Hempstead, 369 U.S. 590, 594-595, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The determination of reasonableness is a factual one encompassing the interests of the public, the appropriateness of the means, and the oppressiveness of the action. Such a determination is inappropriate in a motion to dismiss. Assuming the truth of the allegations stated above, as the Court must in a motion to dismiss, the question is simply whether the plaintiff has stated facts which, if proved, would entitle her to relief. Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Since plaintiff alleges that the regulation is arbitrary and capricious and that it allows no reasonable use of plaintiff’s property, her burden has been met. Similarly, the plaintiff has alleged sufficient facts to overcome a motion to dismiss her claim that the moratoriums so restricted the use of her land that they amounted to inverse condemnation. See Peacock v. County of" }, { "docid": "21296442", "title": "", "text": "the recognition that a claim that a governmental regulation took private property for public úse has generally required ad hoc factual inquiries into the circumstances of each case, there being no set formula for deciding that the action effected an inverse condemnation. Id. at-, 112 S.Ct. at 2893. In Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25, 106 S.Ct. 1018,1026, 89 L.Ed.2d 166 (1986) (citing Penn Central Transportation Co., 438 U.S. at 124, 98 S.Ct. at 2659), the Court had provided the following guidance: To aid in this determination, however, we have identified three factors which have “particular significance”: (1) “the economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the character of the governmental action.” In Lucas, two discrete categories of regulatory action were delineated as compensable without case-specific inquiry namely, (1) regulation allowing physical “invasion” of private property and (2) regulation denying all economically beneficial or productive use of land. — U.S. at-, 112 S.Ct. at 2893. Thus, where less than all economically beneficial or productive use of land is lost by reason of governmental regulation, one reverts to an ad hoc inquiry to determine whether the property in issue, here the fee, was taken. In contrast, the majority divides the “ad hoc” inquiry into two types of takings, total and partial. After finding there is no categorical taking by physical invasion or prevention of all economic use of land, the two situations recognized in Lucas, the majority concludes that, under the ad hoc inquiry, the claimant may recover proportional compensation for the impairment of economic use if it passes a threshold beyond “diminution in value.” Contrary to the majority, in an ad hoc inquiry, the reduction in value resulting from use restriction pertains to whether a “taking” occurred. In making the “taking” determination, such loss is a factor. Id., at -n. 8, 112 S.Ct. at 2895 n. 8 (95 percent loss may not get “benefit of categorical formulation” but “keenly relevant to takings analysis”). The loss in value, however, is not" }, { "docid": "12163982", "title": "", "text": "court has ordered a state or local government unit to pay for a diminution of the value of a piece of property caused by a zoning regulation. As Chief Judge Breitel pointed out in Fred F. French, supra, confusion about this issue has been sown by loose language about excessive land use regulations effectuating a “taking”. A zoning regulation that exceeds the permissible bounds of the police power does not in reality confiscate the property, but regulates with oppressive or arbitrary severity. “Absent factors of government displacement of private ownership, occupation or management, there [is] no ‘taking’ within the meaning of the constitutional limitations.” Fred F. French Inv. Co., Inc. v. City of New York, supra, 39 N.Y.2d at 595, 385 N.Y.S.2d at 10, 350 N.E.2d at 386 (citation omitted). A court does not declare that an offensive zoning regulation has taken the property, but that the government cannot impose the restriction without formally paying for it. Federal enforcement of the inverse condemnation remedy would be a singularly inappropriate intrusion into the states’ traditional domains of property law and land use policy. The federal constitutional right can be secured to the individual without forcing the state to purchase his property. Voiding the offending restriction will make the owner whole. See Note, Inverse Condemnation: Its Availability in Challenging the Validity of a Zoning Ordinance, 26 Stan. L.Rev. 1439, 1452 (1974). Moreover, once the constitutional line has been drawn, the state or local authority administering the complex structure of land use controls should be free to decide whether the expected benefits from the restriction are worth the cost of the required compensation. Id. at 1450-51. The district court erroneously concluded that plaintiff could recover the lost value of his property as damages and therefore addressed the question whether the Eleventh Amendment barred the suit. We do not reach this immunity issue because we hold that plaintiff cannot recover damages by means of the inverse condemnation remedy. A complaint, however, should not be dismissed merely because the remedy it seeks cannot be obtained; plaintiff may still win declaratory or injunctive relief if it" } ]

[ { "docid": "22035210", "title": "", "text": "the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress * * Stark v. Wickard, 321 U.S. 288, 310, 64 S.Ct. 559, 571, 88 L.Ed. 733 (1944). The determination to debar a contractor does not fall within the scope of the second exception, “agency action * * * by law committed to agency discretion.” The language, relied upon by appellees, relating to “final and conclusive” determinations of the Secretary has as its primary thrust the removal from judicial scrutiny of the operational policy decisions and programs of the agency, not standards of procedure for debarment. Compare Pauling v. McNamara, 118 U.S.App.D.C. —, 331 F.2d 796 (1963), pet. for cert. filed, 32 U.S. L. WEEK 3352 (U. S. April 2, 1964) (No. 965). Appellants here do not challenge broad policy decisions, as in the Lukens Steel and Pauling cases, supra, but narrowly attack as beyond agency authority a debarment or “blacklisting” which the complaint alleges inflicted a special injury on appellants and was accomplished in a procedurally unfair and unauthorized manner. Nothing in the statute confers unreviewable finality on determinations of the Secretary as to questions of the scope of his congressional authority or of the requisite procedural safeguards. Cf. Harmon v. Brucker, 355 U.S. 579, 582, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) (per curiam). The invasion of a legally protected right also constitutes a legal wrong under the meaning of “legal wrong” as used in Section 10(a) of the Administrative Procedure Act. We have already demonstrated that appellants have a right not to be debarred except in an authorized and proeedurally fair manner; appellants’ allegations of the means by which debarment was imposed in this ease set forth a claim of invasion of that right and give them standing under Section 10(a). See Copper Plumbing & Heating Co. v. Campbell, supra. We read Section 10(b) of the Administrative Procedure Act, 60 Stat. 243 (1946), 5 U.S.C. § 1009(b) (1958), as providing that whenever judicial review is not “specified by statute” or is inadequate “any applicable form of legal action" } ]

[ { "docid": "11875207", "title": "", "text": "been the rule, at least since the Chicago Junction Case, 264 U.S. 258 [44 S.Ct. 317, 68 L.Ed. 667] (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U.S. 15, 19 [62 S.Ct. 432, 435, 86 L.Ed. 586] (1942) ; [City of] Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 83 [78 S. Ct. 1063, 1066, 2 L.Ed.2d 1174] (1958). “Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TVA competition.” Hardin v. Kentucky Util. Co., 390 U.S. at 5-6, 88 S.Ct. at 654. . We do not share confidence in the alternative holding in Saxon v. Georgia Ass’n of Ind. Ins. Agents, Inc., 399 F.2d 1010 (5 Cir. 1968), that outside the “statutory aid to standing” plaintiffs had “a legal right to protect themselves from, unlawful competition.” Id. at 1018. The emphasis that plaintiff’s standing arises out of the allegation of “unlawful competition” as contrasted to “lawful competition” seemingly relates standing to the merits of the claim to be adjudicated rather than the status of a party to complain. For a similar critique, see Judge Thornberry’s concurring opinion 399 F.2d at 1020 n. 3. . This is explained by Mr. Justice Matthews in Railroad Co. v. Ellerman, 105 U.S. at 173-174, 26 L.Ed. 1015: “The sole remaining question then, is, whether Ellerman, as assignee of the city, has any legal interest which entitled him to enjoin the company from using its wharf as a public wharf beyond the limits of such use, as defined by that construction, of the joint resolution. If he has such interest, it can only consist in preventing competition with himself as a wharfinger, which such more extensive use of the railroad property would create. And if the right to assert it exists, it must rest, not upon the claim that the premises" }, { "docid": "13445319", "title": "", "text": "This is but to say that if the commodity used by a competitor was not lawfully obtained by it the corporation with which it competes may render it liable in damages or enjoin it from further competition because of the illegal derivation of that which it sells. If the thesis were sound, appellants could enjoin a competing corporation or agency on the ground that its injurious competition is ultra vires, that there is a defect in the grant of powers to it, or that the means of competition were acquired by some violation of the Constitution. The contention is foreclosed by prior decisions that the damage consequent on competition, otherwise lawful, is in such circumstances damnum absque injuria, and will not support a cause of action or a right to sue.” Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 139-140, 59 S.Ct. 366, 370 (1939). . “ * * * When Congress has not given them any such standing by express or implied provision of statute * * *, mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue in the courts to restrain such action. * * * For purposes of standing in this case, the sufficiency of appellants’ allegations of ‘legal wrong’ thus depend upon congressional intent to bestow upon them a legal right to protection from such competition.” Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, 294-295 (1964). . In Whitney Nat'l Bank in Jefferson Parish v. Bank of New Orleans, 379 U.S. 411, 427, 85 S.Ct. 551, 561, 13 L.Ed.2d 386 (1965),the dissenting justice (quoted in Webster Groves Trust Co. v. Saxon, supra) stated: “ * * * absent a congressional design to bar all judicial review * * * in- * junctive relief is available where administrative remedies are either inapplicable or inadequate. This rule keeps the Comptroller from being a free-wheeling agency dispensing federal favors; and it gives some assurance that he-will render principled decisions within the rule of law laid down by Congress.”'" }, { "docid": "11875206", "title": "", "text": "legislative enactment, be it an existing ordinance or statute, valid or not. Cf. Alton R. R. Co. v. United States, 315 U.S. 15, 19, 62 S.Ct. 432, 86 L.Ed. 586 (1942). . The Supreme Court said: “This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U.S. 166 [26 L.Ed. 1015] (1882) ; Alabama Power Co. v. Ickes, 302 U.S. 464 [58 S.Ct. 300, 82 L.Ed. 374] (1938) ; Tennessee [Electric] Power Co. v. TVA, 306 U.S. 118 [59 S.Ct. 366, 83 L.Ed. 543] (1939) ; Perkins v. Lukens Steel Co., 310 U.S. 113 [60 S. Ct. 869, 84 L.Ed. 1108] (1940). But competitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U.S. 258 [44 S.Ct. 317, 68 L.Ed. 667] (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U.S. 15, 19 [62 S.Ct. 432, 435, 86 L.Ed. 586] (1942) ; [City of] Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 83 [78 S. Ct. 1063, 1066, 2 L.Ed.2d 1174] (1958). “Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TVA competition.” Hardin v. Kentucky Util. Co., 390 U.S. at 5-6, 88 S.Ct. at 654. . We do not share confidence in the alternative holding in Saxon v. Georgia Ass’n of Ind. Ins. Agents, Inc., 399 F.2d 1010 (5 Cir. 1968), that outside the “statutory aid to standing” plaintiffs had “a legal right to" }, { "docid": "2163352", "title": "", "text": "not necessarily what Congress meant when it enacted this provision in 1954. At the time, judicial notions of standing were considerably more restrictive than they are now. The Supreme Court had put it this way: a private party could challenge federal government action in federal court only if the party had a legally protected interest, 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.” Tennessee Elec. Power Co. v. TVA 306 U.S. 118, 137-38, 59 S.Ct. 366, 83 L.Ed. 543 (1939); see also Stephen G. BreyeR & Richard B. Stewart, Administrative Law and Regulatory Policy: Problems, Text, and Cases 1195-96 (2d ed.1985). Thus, traders in one market were not “parties in interest” entitled to sue for an injunction against a railroad’s extending its track to a competitive market. L. Singer & Sons v. Union Pac. R.R., 311 U.S. 295, 61 S.Ct. 254, 85 L.Ed. 198 (1940). On the other hand, some Supreme Court opinions pointed in the opposite direction, recognizing judicial standing for competitors who would suffer economic injury from agency action. An example is FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940). Another is The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924). How agencies were then treating standing questions is unclear. According to one report, they were limiting the right to a hearing “to those directly subject to administrative controls, exactions or sanctions,” Breyer & Stewart, supra, at 1186. Even after Sanders Brothers, the FCC did not recognize “economic injury” as “sufficient to secure a hearing or to intervene in a hearing on a competitor’s license application.” Ronald A. Cass & Colin S. Diver, Administrative Law: Cases and Materials 714 (1987) (citing Voice of Cullman, 14 F.C.C. 770 (1950)). It was not until the late 1950s that some decisions of this court began expanding the category of persons entitled to participate in agency proceedings on the theory that anyone who had standing to seek judicial review should have adminis" }, { "docid": "6957132", "title": "", "text": "out verbatim in an appendix to this opinion. I Under Section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1009, it seems to be settled in a ease of this kind that if Congress has failed to give an appellant standing to sue by express or implied provisions of statute * * * mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue to restrain such action. Pennsylvania Railroad Company v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292, citing Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Alabama Power Company v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power and Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); and Texas State AFL-CIO v. Kennedy, 117 U.S. App.D.C. 343, 330 F.2d 217 (1964). On December 14, 1964, the Supreme Court denied certiorari in the Pennsylvania Railroad case sub. nom. American-Hawaiian Steamship Company v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543. This was two weeks after the granting of the preliminary injunction in the instant case, which issued on December 1, 1964. From the foregoing, we are of the opinion that the correct decision of this appeal is to be found in the answers to the following questions: 1. Does this case raise anything more than “mere economic competition made possible by governmental action” ? 2. If not, has Congress, expressly or by implication, given appellees standing to sue under the terms of the Rural Electrification Act of 1936, 49 Stat. 1363, 7 U.S.C.A. § 901 et seq.? 3. Has Congress, expressly or by implication, conferred jurisdiction on the Courts to review the granting or denial of a proposed REA loan ? In view of the effort to invoke Amendment 5 of the Constitution, we add a fourth question: Have appellees shown any legally protected property right to be free of competition from the prospective borrower? In answering these" }, { "docid": "23583784", "title": "", "text": "protection.” See Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255, 263, 266 (1961). In Hardin the Court also noted that protection of private utilities from TVA competition was “one of the primary purposes” of an area limitation provision, see 390 U.S. at 6, 88 S.Ct. 651. . E. g., Pennsylvania R. R. C. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, cert. denied sub nom. American-Hawaiian S.S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964). . National Assoc. of Securities Dealers v. SEC, 136 U.S.App.D.C.-, 420 F.2d 83 (July 1, 1969) ; Wingate Corp. v. Industrial National Bank, 408 F.2d 1147 (1st Cir. 1969) (standing of data processors) ; Saxon v. Georgia Assn. of Ins. Agents, 399 F.2d 1010 (5th Cir. 1968) (insurance agents). A decision contrary to Wingate was rendered in Assn. of Data Processing Services Organizations, Inc. v. Camp, 406 F.2d 837 (8th Cir. 1969), cert. granted, 395 U.S. 976, 89 S.Ct. 2128, 23 L.Ed.2d 764 (June 23, 1969). In Arnold Tours, Inc. v. Camp, 408 F.2d 1147 (1st Cir. 1969), decided jointly with Wingate, standing was denied as to the travel agents. . See H.R.Rep. No. 1893, 58th Cong., 2d Sess. (1904) at 5: It is never safe or wise to depend on foreigners for the defense of our own country. Our dependence must always be on our own men and ships to uphold the honor and dignity of our flag in the time of extremity. This can not be unless such men and ships are at hand, ready and accustomed to service on the sea. $ sje )}: To offset the disadvantage of our ships in competing with those of foreign nations the United States Government can afford at least the assistance of employing its own vessels and its own citizens for its own freightage. This would insure part cargoes at least to keep the ships moving across the ocean. The employment of American ships instead of foreign ships would greatly aid our vessels now out of employment, continue officers, engineers and seamen on the ocean instead of" }, { "docid": "15292600", "title": "", "text": "in court to show that the protection afforded them by 12 U.S.C.A. § 92 has been violated.” 260 F.Supp. at 804. Subsequent to its finding of standing, the District Court ruled on the merits of the issues and granted the declaratory judgment and injunction which was sought by the plaintiffs. 268 F.Supp. 236 (N.D.Ga.1967). Defendant places great reliance in his brief on the recent case of Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292 (1964), cert. denied sub nom. American Hawaiian Steamship Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964). In that case plaintiffs alleged not only that defendant Dillon had exceeded his statutory authority but also that the competitive activity which had been allowed was in and of itself illegal. The competing carriers challenged the authority of the Secretary of the Treasury to enroll certain vessels in the coastwise trade, allegedly in violation of the Merchant Marine Act of 1920, as amended, 46 U.S.C. § 883. That section prohibited the enrollment and documentation of vessels “jumboized” by installation of foreign-made mid-bodies. The Court of Appeals for the District of Columbia Circuit found that the carriers lacked standing even though they alleged the competition was illegal and in violation of the specific provision of the statute. The Court pointed out the dichotomy of Section 10 (a) of the A.P.A., namely the “legal wrong” aspect and the “adversely affected or aggrieved” aspect, as it related to the issue of standing and it concluded that: “Under either leg of Section 10(a), therefore, since appellants only complain of government enhancement of economic competition, they must demonstrate ‘statutory aid to standing’.” 335 F.2d at 295. After analyzing the enabling statute the Court concluded that “Congress did not intend to insulate coastwise carriers from other domestic competition or to give them any legally protected right to be free of such competition.” 335 F.2d at 295. A close analysis of the holding in the Pennsylvania Railroad, supra, case does not require a determination of the standing issue adverse to the plaintiffs. In that case the Court of Appeals" }, { "docid": "14718587", "title": "", "text": "economic harm to an appellant “made possible by government action (even if allegedly illegal) does not give standing to sue to restrain such action.” REA v. Central La. Elec. Co., supra, 354 F.2d at 863, and authorities cited therein. A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. When the Fifth Amendment is invoked, as it is here, it must be determined whether appellants have established “any legally protected property right,” Id., i. e., any legal right to be restrained from assigning their diversion payments to their landlord. See Braude v. Wirtz, 9 Cir. 1965, 350 F.2d 702, 707; Pennsylvania R. R. v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292, 294, cert. denied sub nom., American-Hawaiian S.S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543. Appellants contend that they have such a right because the statute in question was enacted for their benefit. However, a policy of protecting a class of persons does not, without more, grant a legal right to those persons to enforce the policy. REA v. Northern States Power Co., 8 Cir. 1967, 373 F.2d 686, 695. Furthermore, “allegation of a legally protected right is a constitutional predicate of standing to attack governmental action.” Pennsylvania R. R. v. Dillon, supra, 335 F.2d at 294. (Emphasis added.) We have found no such allegation in appellants’ complaint. Here, as in REA v. Central La. Elec. Co., a long standing administrative policy has been reversed. However, there is nothing in this record to show a statute or contract between the government and appellants granting them a property right in being restrained from assigning their payments to their landlord. Appellants attempt to show that the statutory phrase “making a crop” precludes assignment for land rent because it is a technical phrase meaning “to prepare a crop for use or storage at the last stage of development.” Appellants’ Brief, p. 24 (citing Oxford English Dictionary M-64 (1908)). We are unwilling to accept such technical niceties, especially" }, { "docid": "23583783", "title": "", "text": "U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) ; Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) with NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). . Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955) ; Arnold Tours, Inc. v. Camp, 408 F.2d 1147 (1st Cir. 1969) ; Jaffe, Judicial Control of Administrative Action, 528-530 (1965). . 5 U.S.C. § 702 (1964) : “Right of review. A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” . See Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1149 (1st Cir. 1969). . See Arnold Tours, Inc v. Camp, 408 F.2d 1147, 1150 (1969). . Professor Jaffe concludes that all that is required is that “an interest intended by the statute to be protected has been denied that protection.” See Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255, 263, 266 (1961). In Hardin the Court also noted that protection of private utilities from TVA competition was “one of the primary purposes” of an area limitation provision, see 390 U.S. at 6, 88 S.Ct. 651. . E. g., Pennsylvania R. R. C. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, cert. denied sub nom. American-Hawaiian S.S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964). . National Assoc. of Securities Dealers v. SEC, 136 U.S.App.D.C.-, 420 F.2d 83 (July 1, 1969) ; Wingate Corp. v. Industrial National Bank, 408 F.2d 1147 (1st Cir. 1969) (standing of data processors) ; Saxon v. Georgia Assn. of Ins. Agents, 399 F.2d 1010 (5th Cir. 1968) (insurance agents). A decision contrary to Wingate was rendered in Assn. of Data Processing Services Organizations, Inc. v. Camp, 406 F.2d 837 (8th Cir. 1969), cert. granted, 395 U.S. 976, 89 S.Ct. 2128, 23 L.Ed.2d 764 (June 23, 1969). In Arnold Tours, Inc. v. Camp," }, { "docid": "15292601", "title": "", "text": "by installation of foreign-made mid-bodies. The Court of Appeals for the District of Columbia Circuit found that the carriers lacked standing even though they alleged the competition was illegal and in violation of the specific provision of the statute. The Court pointed out the dichotomy of Section 10 (a) of the A.P.A., namely the “legal wrong” aspect and the “adversely affected or aggrieved” aspect, as it related to the issue of standing and it concluded that: “Under either leg of Section 10(a), therefore, since appellants only complain of government enhancement of economic competition, they must demonstrate ‘statutory aid to standing’.” 335 F.2d at 295. After analyzing the enabling statute the Court concluded that “Congress did not intend to insulate coastwise carriers from other domestic competition or to give them any legally protected right to be free of such competition.” 335 F.2d at 295. A close analysis of the holding in the Pennsylvania Railroad, supra, case does not require a determination of the standing issue adverse to the plaintiffs. In that case the Court of Appeals found that the underlying purpose of the statute under which the regulation was promulgated was to stimulate and encourage resort to domestic shipyards and thus to ensure them sufficient business so that their facilities would be adequate at times of national emergencies. 335 F.2d 292, at 295. The statutes, under which the regulation in issue was promulgated, were enacted to establish a clear Congressional policy which sought to separate national commercial banking from the securities business. The primary intent of Congress was to segregate these functions and to allow separate entities to engage in these business areas. This clarity of purpose is garnered not only from the Congressional hearings reports of the Glass-Steagall Act, but also from the exactitude with which Congress has delineated the areas of common interest in. this financial structure. This strong general policy against the invasion of either field of endeavor by either entity is sufficient to postulate an interest upon which standing to challenge the regulation may be premised, cf. American Trucking Ass’ns, Inc. v. United States, 364 U.S. 1," }, { "docid": "23583754", "title": "", "text": "showing of “clear and convincing evidence” of a contrary legislative intent should the courts restrict access to judicial review. See also Jaffe, Judicial Control of Administrative Action 336-359 (1965). [Footnote omitted.] The area where the judicial liberalization of standing has made least headway relates to actions by one competitor complaining of another’s lack of authority. In this context the courts have been reluctant to find standing “because of the policy encouraging free and open competition — a policy that favors competition in the market place, not in the courts.” Yet even here there have been decisions upholding standing in a competitor upon “an indication of Congressional intent, explicit or implicit, in the relevant substantive acts to grant protection to the competitive interest * * In the recent case of Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968), the Court upheld the standing of a private utility to challenge the legality of TYA’s activities in expanding its area of sales. The Court restated the general rule “that the economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor’s operations.” But the Court stressed that another rule, established at least since the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924), made it plain that even a competitor had standing to complain of non-observance of a statutory provision that reflected “a legislative purpose to protect a competitive interest.” (390 U. S. at 6, 88 S.Ct. at 654.) The reference to “a legislative purpose” is not a requirement that this be the principal purpose of the legislature. This is also the analysis of the Chicago Junction Case presented by Professor Jaffe, whose approach, it will be noted, was cited with approval by Justice Harlan in Abbott Laboraories. A number of precedents have been cited to us. The Government relies especially on Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100" }, { "docid": "13445306", "title": "", "text": "any statutory right to judicial review. That is to say, the National Bank Act does not have within itself any provisions for court review, such for instance as the Internal Revenue Code or the Interstate Commerce Act, and it is clear that the Administrative Procedure Act does not and did not append such in effect to this Act so as to create a specific provision for judicial review. There is a long and well established line of judicial authority holding that plaintiffs whose only injury is loss due to competition lack standing to maintain legal action to redress their economic injury. These decisions hold that mere competitive injury even though resulting from governmental action does not give standing to a person so injured to seek relief in the courts. Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L.Ed. 374 (1938); Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (1955), cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 330 F.2d 217 (1964); Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956), cert. denied 352 U.S. 976, 77 S.Ct. 363, 1 L.Ed.2d 324; United Milk Producers of New Jersey v. Benson, 96 U.S.App.D.C. 227, 225 F.2d 527 (1955); Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292 (1964); Rural Electrification Admin. v. Central Louisiana Elec. Co., 354 F.2d 859 (5th Cir. 1966). So in Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), the court laid down the rule that one threatened with injury by governmental action may not contest such in the courts “unless the right invaded is a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers" }, { "docid": "15292599", "title": "", "text": "were able to illegally compete with the plaintiffs. The district court, in reaching its conclusion, observed that: “In Tennessee Electric Power Co., supra, and in Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1937), the plaintiffs alleged that they were suffering economic loss from the government-created competition. In both.cases the Supreme Court held that such economic loss alone did not confer standing on the aspiring plaintiffs. It is important to. note that such competition was authorized by Congress and was based upon statutory grounds. “In the instant case, the competition complained of is not explictly authorized by statute, but rather is impliedly prohibited by the congressional grant of the power * * 260 F.Supp. at 803. The district judge, in denying the Comptroller’s motion to dismiss, further stated: “The Court is of the opinion that the defendant’s attack on the plaintiffs’ standing is without merit. Title 12 U.S.C.A. § 92 has the effect of protecting insurance agents from certain comp'etition. Surely, the plaintiffs have the right to their day in court to show that the protection afforded them by 12 U.S.C.A. § 92 has been violated.” 260 F.Supp. at 804. Subsequent to its finding of standing, the District Court ruled on the merits of the issues and granted the declaratory judgment and injunction which was sought by the plaintiffs. 268 F.Supp. 236 (N.D.Ga.1967). Defendant places great reliance in his brief on the recent case of Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292 (1964), cert. denied sub nom. American Hawaiian Steamship Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964). In that case plaintiffs alleged not only that defendant Dillon had exceeded his statutory authority but also that the competitive activity which had been allowed was in and of itself illegal. The competing carriers challenged the authority of the Secretary of the Treasury to enroll certain vessels in the coastwise trade, allegedly in violation of the Merchant Marine Act of 1920, as amended, 46 U.S.C. § 883. That section prohibited the enrollment and documentation of vessels “jumboized”" }, { "docid": "23583755", "title": "", "text": "injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor’s operations.” But the Court stressed that another rule, established at least since the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924), made it plain that even a competitor had standing to complain of non-observance of a statutory provision that reflected “a legislative purpose to protect a competitive interest.” (390 U. S. at 6, 88 S.Ct. at 654.) The reference to “a legislative purpose” is not a requirement that this be the principal purpose of the legislature. This is also the analysis of the Chicago Junction Case presented by Professor Jaffe, whose approach, it will be noted, was cited with approval by Justice Harlan in Abbott Laboraories. A number of precedents have been cited to us. The Government relies especially on Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955), and other igre-Hardin precedents of this court denying standing. In Hardin the Supreme Court limited the significance of our McKay decision. Our view, that the “long established doctrine” concerning actions by competitors meant that an explicit statutory provision was necessary to confer standing on a competitor, was held wholly inapplicable to actions by competitors to enforce statutory requirements concerned with protecting competitive interests. See 390 U.S. at 7, 88 S.Ct. 651. The post -Hardin opinions have appeared for the most part in cases involving competitors protesting broadened activities of national banks. While the results are by no means uniform, there seems to be a trend toward recognition of standing accompanied by avowals of difficulty. There is little to be gained from examination of the precedents in detail. Obviously no simple touchstone can be provided for determination of standing questions. Each case turns on the nature of the parties, the grievances and the statutory provisions involved. However, it is clear that with the approach charted in Abbott Laboratories, a person aggrieved in fact" }, { "docid": "22067189", "title": "", "text": "rather than of the procedures followed by HUD in making the determination\" sought to be reviewed. . We have discussed other aspects of the Green Street decision in part I of this opinion. . Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Berry v. Housing and Home Finance Agency, 340 F.2d 939 (2 Cir. 1965); Taft Hotel Corp. v. Housing and Home Finance Agency, 262 F.2d 307 (2 Cir. 1958), cert. denied 359 U.S. 967, 79 S.Ct. 880, 3 L.Ed.2d 835 (1959); Pennsylvania Railroad Company v. Dillon, 335 F.2d 292 (D.C.Cir.), cert. denied American-Hawaiian S. S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964); Allied-City Wide v. Cole, 97 U.S.App. D.C. 277, 230 F.2d 827 (1956); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); Pittsburgh Hotels Association, Inc. v. Urban Redevelopment Authority of Pittsburgh, 309 F.2d 186 (3 Cir. 1962), cert. denied Hilton Hotels Corp. v. Urban Redevelopment Authority of Pittsburgh, 372 U.S. 916, 83 S.Ct. 730, 9 L.Ed.2d 723 (1963). Defendants have relied upon some of these cases in their briefs, pointing to language suggesting that the availability of judicial review turns upon the presence of Congressional intent to bestow a “legal right” to protection, or, in other cases, upon the invasion of a “legally protected right.” The results reached in these cases are entirely consistent with the result reached here. . Hardin v. Kentucky Utilities Company, supra; OMcaffo Junction Case, supra. . Note, 73 Yale L.J. 1080 (1964). . The opinion in Johnson makes reference to Hunter v. City of New York, 121 N.Y.S.2d 841 (Sup.Ct.1953). We read that case as holding that state courts have no jurisdiction to review the actions of agencies of the federal government. . Cf. Merge v. Sharott, 341 F.2d 989 (3 Cir. 1965). . The plaintiffs contend that section 601 of the Civil Rights Act of 1964, 42 U.S. C. § 2000d, is an independent basis on which they have standing to" }, { "docid": "6957131", "title": "", "text": "consent of the state authority having jurisdiction had not been obtained; (12) . the super cooperative had not obtained a certificate of public convenience and necessity from either Louisiana and Arkansas, and the REA Administrator had certified that none was necessary, thus subjecting the complainant to illegal competition; (13) . that the consent of the Federal Power Commission had not been obtained, which, again would result in illegal competition ; (14) . that the super cooperative will require a thirty-five year contract with its members, which will deny to complainant a substantial portion of its market for wholesale power; (15) . that compliance with the Administrator’s requirements would result in combination and conspiracy in restraint of trade; and (16) . that granting the loan would cause a violation of the anti-trust laws of the United States and the State of Louisiana, and amounts to a conspiracy to do such. Then followed the customary prayer for injunctions, preliminary and permanent. The district court made findings of fact substantially supporting these allegations. These findings will be set out verbatim in an appendix to this opinion. I Under Section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1009, it seems to be settled in a ease of this kind that if Congress has failed to give an appellant standing to sue by express or implied provisions of statute * * * mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue to restrain such action. Pennsylvania Railroad Company v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292, citing Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Alabama Power Company v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power and Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); and Texas State AFL-CIO v. Kennedy, 117 U.S. App.D.C. 343, 330 F.2d 217 (1964). On December 14, 1964, the Supreme Court denied certiorari in the Pennsylvania Railroad" }, { "docid": "22199968", "title": "", "text": "county. TVA, as the primary power source within this area, could therefore properly make its low-cost power available to consumers in this entire county area including the two villages. I. Before discussing the merits, we shall briefly consider petitioners’ contention that the Kentucky Utilities Company lacks standing to challenge the legality of TVA’s activities. We agree with both the courts below that this contention is without merit. This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, ■confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U. S. 166 (1882); Alabama Power Co. v. Ickes, 302 U. S. 464 (1938); Tennessee Power Co. v. TVA, 306 U. S. 118 (1939); Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). But competitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U. S. 258 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U. S. 15, 19 (1942); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83 (1958). Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TYA competition. This is evident from the provision itself and is amply supported by its legislative history. The provision grew out of TVA’s efforts to find some way to meet the cost of new facilities without dependence upon annual appropriations from Congress. In 1955 TVA began to seek authority to issue bonds to finance these expenditures. Although TVA spokesmen assured Congress that the objective was not" }, { "docid": "14718586", "title": "", "text": "to assign his payments to secure rent for his farm. 31 Fed.Reg. 2815 (Feb. 17, 1966). Appellants’ complaint asserts that they “are suffering irreparable injury” because, under the amended regulation, they “were each year required [by their landlord] to execute a rent note as security for the cash rent of this land” and thus were deprived of the bargaining power the payment had given with various merchants and suppliers in previous years. They argue that the regulation in its present form violates the intent of Congress and constitutes illegal action by the Secretary. In the case of REA v. Central La. Elec. Co., 5 Cir. 1966, 354 F.2d 859, cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54, this Court set forth specific criteria for determining whether appellants have standing to challenge an administrative regulation. These criteria are based upon and designed to implement the basic premise of section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. § 702 Thus, in the absence of an express or implied statutory grant of standing, mere economic harm to an appellant “made possible by government action (even if allegedly illegal) does not give standing to sue to restrain such action.” REA v. Central La. Elec. Co., supra, 354 F.2d at 863, and authorities cited therein. A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. When the Fifth Amendment is invoked, as it is here, it must be determined whether appellants have established “any legally protected property right,” Id., i. e., any legal right to be restrained from assigning their diversion payments to their landlord. See Braude v. Wirtz, 9 Cir. 1965, 350 F.2d 702, 707; Pennsylvania R. R. v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292, 294, cert. denied sub nom., American-Hawaiian S.S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543. Appellants contend that they have such a right because the statute in question was enacted for their benefit. However, a policy of protecting a" }, { "docid": "13659712", "title": "", "text": "enforcement of the immigration laws have illegally permitted them to enter and to work here — this is not enough to give the plaintiffs-appellants standing to sue ■ the defendant officials for declaratory and injunctive relief. Congress has not given them any such standing by express or implied provision of statute — either in the immigration laws or in any other act. Absent such a congressional grant, mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue in the courts to restrain such action.” (Citations omitted.) In Kansas City Power and Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (1955), certain private utility companies brought suit under the Declaratory Judgments Act to enjoin federal officers and agencies from carrying out a federally supported power program. It was there alleged that said program was in violation of law and that severe competition would result in economic injury to the companies. The companies based their right to bring the action, in part, on Section 10(a) of the Administrative Procedure Act, [5 U.S.C.A. § 1009 (a)]. The Court reviewed the legislative history of the Act, rejected contentions that the companies had suffered “legal wrong” or were “adversely affected or aggrieved” within the meaning of the statute, and ordered the complaint dismissed. See, Duba v. Schuetzle, 303 F.2d 570 (8th Cir. 1962); Harrison-Halsted Community Group v. Housing & Home Finance Agency, 310 F.2d 99 (7th Cir. 1962). In our view, appellants have shown neither a legal wrong nor a legal right to be free of the effects they attribute the determinations complained of will have upon their businesses. To support standing to sue under Sec. 10 (a) of the Act it is not enough for appellants to show that they have been “adversely affected or aggrieved”. In addition, there must be a showing of adverse effect or aggrievement “within the meaning of an^ relevant statute.” Kansas City Power and Light Co. v. McKay, supra. The assertion by appellants in their closing brief that the administrative determinations constitute “a violation of the due process and" }, { "docid": "13659710", "title": "", "text": "the meaning of the Administrative Procedure Act, supra. They argue that the practical effect of the determination will “force appellant growers to raise their wage scale and change the working conditions” and will prevent them “from effectively competing with other businessmen in this labor force”. The phrase “legal wrong” .under the Act means the invasion of a legally protected right. Pennsylvania R.R. Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, 294 (1964). Our inquiry, then, must be to determine if appellants have a legally protected right to be free of the effects ascribed to the administrative determinations. Allegations of similar and as serious economic injury have previously been held insufficient to support standing to sue. Perkins v. Lukins Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); United Milk Producers of New Jersey v. Benson, 96 U.S.App.D.C. 227, 225 F.2d 527 (1955); Ferrer v. Fronton Exhibition Co., 188 F.2d 954 (5th Cir. 1951); Young Americans for Freedom, Inc. v. Rusk, 205 F.Supp. 603 (D.C.D.C.1962), affirmed, 113 U.S.App.D.C. 6, 303 F.2d 771 (1962). In Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 330 F.2d 217 (1964), a labor union and others sought declaratory and injunctive relief against the Commissioner of the Immigration and Naturalization Service concerning aliens permitted by the Service to commute from their homes in Mexico to established places of employment in the United States. The court there said at pp. 218, 219: “Assuming the truth of the crucial allegations of the complaint brought by plaintiffs-appellants — namely, that expulsion or exclusion of the alien commuters would result in many jobs becoming available to the individual plaintiffs, or would at least reduce the competition faced by them in seeking employment, that the union is handicapped in its activities by the presence of the alien commuters, and that the latter are employed in this country only because the Government officials charged with the" } ]

[ { "docid": "22722559", "title": "", "text": "of these commands to eliminate the taint of racial discrimination in the administration of justice, allegations of bias in the jury selection process persist. In this case, petitioner alleges race discrimination in the prosecution’s use of peremptory challenges. Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race. HH Petitioner Larry Joe Powers, a white man, was indicted in Franklin County, Ohio, on two counts of aggravated murder and one count of attempted aggravated murder. Each count also included a separate allegation that petitioner had a firearm while committing the offense. Powers pleaded not guilty and invoked his right to a jury trial. In the jury selection process, Powers objected when the prosecutor exercised his first peremptory challenge to remove a black venireperson. Powers requested the trial court to compel the prosecutor to explain, on the record, his reasons for excluding a black person. The trial court denied the request and excused the juror. The State proceeded to use nine more peremptory challenges, six of which removed black venirepersons from the jury. Each time the prosecution challenged a black prospective juror, Powers renewed his objections, citing our decision in Batson v. Kentucky, 476 U. S. 79 (1986). His objections were overruled. The record does not indicate that race was somehow implicated in the crime or the trial; nor does it reveal whether any black persons sat on petitioner’s petit jury or if any of the nine jurors petitioner excused by peremptory challenges were black persons. The empaneled jury convicted Powers on counts of murder, aggravated murder, and attempted aggravated murder, each with the firearm specifications, and the trial court sentenced him to a term of imprisonment of 53 years to life. Powers appealed his conviction to the Ohio Court of Appeals, contending that the prosecutor’s discriminatory use of pe-remptories violated the Sixth Amendment’s guarantee of a fair cross section in his petit jury, the" } ]

[ { "docid": "23310973", "title": "", "text": "that Montgomery was sentenced improperly. We therefore remand Montgomery’s case for resentencing under the provisions of section 1202(a) applicable to persons not having three previous convictions. See 18 U.S.C. § 1202(a). We need not consider Montgomery’s remaining sentencing claims. B. Discriminatory Use of Peremptory Challenges. Montgomery, who is black, contends the district court erred in denying his motion, made prior to the swearing in of the jury, to dismiss the jury panel. He argues that the government used a disproportionate number of its peremptory challenges to substantially reduce the number of black jurors, in violation of his fifth and sixth amendment rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson). There were a total of four black persons available for selection as jurors, making up 14% of the venire. The government used two of its six strikes (33%) to eliminate two of the four black members of the venire. The defendant then used one peremptory challenge to strike one of the two potential remaining black jurors, so that the actual jury consisted of eleven whites and one black. Although the jury accepted by the government included two blacks, Montgomery asserts that these percentages indicate that black members of the jury panel were peremptorially struck at a rate in excess of double of that which a proportionate striking of blacks would have resulted in. He requests that his case be remanded pursuant to Batson for the district court to determine whether he has a prima fade case of purposeful discrimination and whether the government had permissible reasons for the strikes. Based on the Supreme Court’s holding in Griffith v. Kentucky, — U.S. -, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), this court may apply Batson retroactively to cases in which the conviction had not yet become final on direct appeal by April 30, 1986, when the Court decided Batson. To make an equal protection claim under Bat-son, a defendant must establish a prima facie case of purposeful discrimination. To establish such a case, the defendant must show, among other things, that the government's use" }, { "docid": "7397370", "title": "", "text": "97, 102 L.Ed.2d 73 (1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir.1988) (exclusion upheld of young, unemployed prospective juror); United States v. Harrell, 847 F.2d 138, 139 (4th Cir.) (challenge to unemployed juror upheld), cert. denied, 488 U.S. 944, 109 S.Ct. 371, 102 L.Ed.2d 360 (1988). In light of the deference accorded the district court’s determinations in jury selection challenges, Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 27, we find that the trial judge’s conclusion that the strikes were not exercised for any “improper racial reason” does not violate the principles of Batson. In so holding we are not, how ever, announcing a general rule that young or unemployed people are unfit for jury service, as in some circumstances they may substantially contribute to a balanced and fair jury for all parties. However, the district judges are able and qualified to pass on the good faith and credibility of the government’s exercise of peremptory challenges under Batson. The record does not disclose the ages of the persons challenged for their youth, which would have been helpful, but the impartial trial judge was there and observed the prospective jurors, their maturity and their demeanor. Under the circumstances of this particular record, although the government’s reasons are not strong, we cannot say that the district court’s findings were clearly erroneous. Ferguson also challenges the enhancement of his sentence under the “career criminal” provisions of 18 U.S.C. § 924(e) which mandate a minimum sentence of fifteen years for violations of § 922(g) by persons with three or more convictions for violent felonies. Ferguson argues that two of the three prior convictions relied upon by the district court to enhance his sentence were based on guilty pleas that were obtained unconstitutionally. He also contends that the government should bear the burden of proving the validity of his guilty pleas. In August 1977, Ferguson pleaded guilty in the Circuit Court of Cook County to an information charging him with burglary and armed robbery and he also pleaded guilty on a separate charge of armed robbery. He asserts" }, { "docid": "18225018", "title": "", "text": "an objection by the defense nor a proffer of reasons by the prosecutor for striking the nine black jurors. The jury convicted Mr. Adkins of capital murder and sentenced him to death. See Adkins I, 600 So.2d at 1056. On August 24, 1990, the Alabama Court of Criminal Appeals affirmed his convictions and sentence on direct appeal. Id. at 1067. Before Mr. Adkins sought review in the Alabama Supreme Court, see Adkins II, 600 So.2d 1067, the United States Supreme Court delivered its ruling in Powers v. Ohio, holding “that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races.” 499 U.S. 400, 402, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991). Following Powers, Mr. Adkins raised a Batson claim in his petition for writ of certiorari to the Alabama Supreme Court. Adkins II, 600 So.2d at 1069. The Alabama Supreme Court granted Mr. Adkins’s petition and remanded his case to the Alabama Court of Criminal Appeals for further proceedings. Id. (citing Ex parte Bankhead, 585 So.2d 112, 117 (Ala.1991), aff'd on remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev’d on other grounds, 625 So.2d 1146 (Ala. 1993)). The Alabama Court of Criminal Appeals then remanded Mr. Adkins’s case to the trial court for a Batson hearing on June 12, 1992, with the direction, “[d]ue return should be filed with this court within 90 days from the date of this opinion.” Adkins v. State, 600 So.2d 1072, 1073 (Ala. Crim.App.1992) (Adkins III). The return was thus due on September 10,1992. The state trial court held the Batson hearing on July 29, 1992. During that hearing, the prosecutor proffered reasons for striking each of the nine black jurors, which the Alabama Court of Criminal Appeals summarized as follows: Prospective juror number 59 ... was struck because he came forward and asked that he be excused from serving on the jury. He was 61 years old and had ulcers. Prospective juror number 39 [Billy Morris] ... was struck because he answered during the voir dire that he" }, { "docid": "7397367", "title": "", "text": "in “import and export world trade, as well as income tax and business consulting.” He also testified that he had been falsely accused of a crime, but was acquitted. In addition, his brother had recently been murdered in Miami. In light of King’s experience with the criminal justice system and his ambiguous employment status, the government exercised a peremptory challenge against him. Patricia Miller, a black female, was stricken because of her youth. The gravamen of Ferguson’s argument is that a prospective juror’s youth and unemployment are not credible criteria for exercising peremptory challenges, but are merely pretexts for purposeful discrimination. Ferguson’s brief does not reveal the specific peremptory strikes he finds objectionable. Although a pattern of strikes against black jurors may be a factor in determining whether a defendant has established the initial prima facie case of discrimination, once the burden shifts to the government the strikes are evaluated on an individual basis and the prosecutor is required to give “clear and reasonably specific” racially neutral explanations for the challenges. Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20. It is the striking of a single black juror for racial reasons that invokes the shelter of the Equal Protection Clause, even though other black jurors are impanelled. Briscoe, 896 F.2d at 1489; United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987); United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986). We will therefore examine each peremptory strike to determine whether the district court correctly found that the government did not engage in purposeful discrimination. It is not clear whether Ferguson challenges the peremptory strikes exercised against prospective jurors Villanueva and King. Nevertheless, the government’s reservations concerning both Villanueva and King were well-founded in light of their previous experience with the criminal justice system — both men had been the subject of criminal prosecution. Prior encounters with the criminal justice system which might cause a juror to be hostile toward the government have been upheld as racially neutral explanations. Briscoe, 896 F.2d at 1488; United States v. Roan Eagle, 867 F.2d 436, 442 (8th" }, { "docid": "7397371", "title": "", "text": "challenged for their youth, which would have been helpful, but the impartial trial judge was there and observed the prospective jurors, their maturity and their demeanor. Under the circumstances of this particular record, although the government’s reasons are not strong, we cannot say that the district court’s findings were clearly erroneous. Ferguson also challenges the enhancement of his sentence under the “career criminal” provisions of 18 U.S.C. § 924(e) which mandate a minimum sentence of fifteen years for violations of § 922(g) by persons with three or more convictions for violent felonies. Ferguson argues that two of the three prior convictions relied upon by the district court to enhance his sentence were based on guilty pleas that were obtained unconstitutionally. He also contends that the government should bear the burden of proving the validity of his guilty pleas. In August 1977, Ferguson pleaded guilty in the Circuit Court of Cook County to an information charging him with burglary and armed robbery and he also pleaded guilty on a separate charge of armed robbery. He asserts that a sentence enhancement under § 924(e) cannot be based upon these convictions because the underlying guilty pleas were not made voluntarily and intelligently. The only evidence supporting this contention is Ferguson’s own affidavit. Ferguson alleges in his affidavit that he conferred with his court-appointed attorney only briefly regarding both cases. The hearing to enter his guilty pleas lasted only four to five minutes, according to Ferguson’s affidavit, and the judge failed to explain his rights to him. Ferguson also alleges that he was unaware that he was being convicted of two armed robberies and one burglary. He believed he was being convicted of only one burglary and one armed robbery. No transcript of the 1977 plea proceedings exists because the court reporter died before transcribing his notes and Ferguson was unable to find someone who could transcribe them. Ferguson contends that because the record of the plea proceedings in Illinois state court was inadequate, the guilty pleas are invalid and cannot be used for purposes of sentence enhancement. He relies on Boykin v. Alabama," }, { "docid": "7397375", "title": "", "text": "pleas challenged by Ferguson, provides: The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands ... that the defendant has a right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty[,] and ... that if he pleads guilty there will not be a trial of any kind so that by pleading guilty he waives the right to trial by jury and the right to be confronted with the witnesses against him. Dickerson recognizes a “strong presumption” of constitutional validity in state judicial proceedings. 901 F.2d at 583. The judgment of conviction may be used as additional evidence of the voluntary and intelligent nature of a defendant’s guilty plea. Polk, 908 F.2d at 214; Dickerson, 901 F.2d at 583. Each of the certified statements of Ferguson’s two challenged convictions state that “[t]he defendant, after having been fully advised of his rights and while represented by counsel, withdrew his plea of not guilty and entered a plea of guilty....” A guilty plea and the resulting conviction will be constitutionally sound if the defendant’s awareness of his rights can be reasonably inferred from the custom and practice of the court. Gallman, 907 F.2d at 644. Ferguson’s only evidence, to refute the presumption of regularity accorded state judicial proceedings consisted of his own affidavit claiming that although he was represented by counsel and discussed his pleas with his attorney, the judge failed to explain his rights to him. Although Ferguson received fairly substantial sentences as a result of these convictions, he has never attacked them, either on direct or collateral appeal. In light of the paucity of evidence presented by Ferguson, we find that he has failed to meet his burden of demonstrating the invalidity of his 1977 convictions. Therefore, we hold that the district court properly concluded that Ferguson’s convictions satisfied the conditions for sentence enhancement under § 924(e). Affirmed. . The \"same race” requirement of Batson was recently abolished in Powers v. Ohio, —" }, { "docid": "18813790", "title": "", "text": "In Lucas, the defendant was sentenced to consecutive terms based upon the two separate stashes of weapons. In Freisinger, by contrast, concur- ' rent sentences were appropriate because the defendant had been convicted separately for each of the four weapons found in a single stash. Moreover, the Supreme Court’s recent opinion in Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), confirms that the district court may sentence a defendant to a consecutive twenty-year term under 18 U.S.C. § 924(c) for “a second or subsequent conviction” where both the first and any subsequent convictions arise in the same proceeding. Accordingly, the district court properly sentenced Pruitt to five years on the first section 924(e) conviction, and to consecutive twenty-year terms for his second and third section 924(c) convictions. III. A number of the appellants argue the following two issues on appeal: (1) that the government improperly used a peremptory challenge to strike the only black juror from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) that the district court erroneously admitted the hearsay testimony of four witnesses as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E). A. Batson Issue Appellants Santana, Ortiz, Ramirez, Fuen-tez, and Pruitt argue that the government’s exercise of one of its peremptory strikes against juror # 1 was racially discriminatory and violated their equal protection rights under Batson. In Batson, the Supreme Court held that the Equal Protection clause' forbids the government from challenging potential jurors solely on account of their race. Id. at 89, 106 S.Ct. at 1719. See United States v. Thomas, 914 F.2d 139, 142 (8th Cir.1990). Under Batson, once a defendant makes a prima facie case of the prosecution’s purposefully discriminatory use of peremptory challenges, the burden shifts to the government to come forward with a neutral explanation, particular to the case, for striking jurors of the defendant’s race. Thomas, 914 F.2d at 142. We review a district court’s finding that the government has exercised its peremptory challenges in a nondiscriminatory manner under the" }, { "docid": "3176681", "title": "", "text": "Rodriquez with Mr. Concha on August 22, 1988, the day that Mr. Concha sold one kilogram of cocaine to Mr. Olave. While such evidence may suggest that Mr. Rodriquez was acquainted with Mr. Concha before September 1988, there is no evidence that Mr. Rodriquez entered into an agreement to become part of the conspiracy prior to September 1988. Likewise, there is no evidence to suggest that Mr. Rodriquez was aware of the prior activities of his co-conspirators or that, despite his late entrance, he embraced the earlier conduct. In the absence of any evidence linking Mr. Rodriquez to the activities of the conspiracy prior to September 1988, Mr. Rodriquez’s base offense level must be recalculated to reflect the lesser quantity of cocaine that was reasonably foreseeable to him. IV. JURY SELECTION In their joint brief, the appellants, each of whom are Hispanic, (Mr. Bermudez is a black Hispanic) contend that they are entitled to a new trial because the government exercised its peremptory challenges to exclude seven prospective jurors—six blacks and one Hispanic—in violation of the mandate in Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the state from exercising its peremptory challenges to exclude members of the defendant’s race from the petit jury. Batson, 476 U.S. at 85, 106 S.Ct. at 1716-17. The Due Process Clause of the Fifth Amendment extends this prohibition to the federal government. United States v. Williams, 934 F.2d 847, 849 n. 1 (7th Cir.1991). The Supreme Court abolished the “same race” requirement of Batson in Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in which it held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers, at -, 111 S.Ct. at 1366. The defendant ultimately bears the burden of demonstrating a discriminatory animus on behalf of the prosecution. Hernandez v. New York, — U.S." }, { "docid": "7397364", "title": "", "text": "§ 924(e) in the event of Ferguson’s conviction. The jury found Ferguson guilty of felonious possession of a firearm and the trial judge imposed the minimum mandatory fifteen-year sentence prescribed by § 924(e). We first address Ferguson’s argument that the government’s use of peremptory strikes constituted a violation of Batson. The Supreme Court held in Batson that the Equal Protection Clause grants defendants the right to be tried by a jury selected in a nondiscriminatory manner. 476 U.S. at 85-86, 106 S.Ct. at 1716-17. Under Batson, a defendant may establish a prima facie case of purposeful discrimination by showing that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory strikes to remove venire members of the defendant’s race, and that “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. at 96, 106 S.Ct. at 1723. Once the defendant establishes a prima facie case, the burden shifts to the government to provide a neutral explanation for its challenge to black jurors. Id. at 97, 106 S.Ct. at 1723. Although the prosecutor’s explanation must be “clear and reasonably specific” and set forth “legitimate reasons,” it need not “rise to the level justifying exercise of a challenge for cause.” Id. at 97-98, 106 S.Ct. at 1723-24. The Supreme Court also recognized that the trial judge's findings in this context will involve questions of credibility and those findings should be given “great deference.” Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21. This circuit will therefore uphold a district court’s findings that the government’s challenges were based on nondiscriminatory criteria unless those findings are clearly erroneous. United States v. Briscoe, 896 F.2d 1476, 1487 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 173, 112 L.Ed.2d 137. The government used four out of six potential challenges to strike black jurors, one to strike a hispanic, and left one strike unused. One alternate strike was used by the government to strike a white juror. Citing Batson," }, { "docid": "23156094", "title": "", "text": "his conspiracy conviction exceeds the statutory maximum. Section 841(b)(1)(B), 21 U.S.C., sets forth the penalty for a conspiracy to distribute over 500 grams of cocaine, requiring at least four However, the years of supervised release, court’s sentencing power is constrained by 18 U.S.C. § 3583(b)(1) which does not permit supervised release longer than five years for this offense. We remand for resentencing. V. Conclusion We reject all grounds for defendants’ appeal except Anthony Esparsen’s sentencing complaint. Defendants have failed to present a record which establishes a prima facie case of discriminatory use of peremptory challenges under Batson. The evidence sufficiently supports the jury’s conviction of Mr. McFadden for aiding and abetting, and its conviction of all three defendants for conspiracy to distribute over 500 grams of cocaine. The trial court’s only evidentiary error was refusing to give a limiting instruction for testimony of threats by Anthony Esparsen, but the error was harmless. Therefore, we AFFIRM the judgment of the United States District Court for the District of New Mexico. We REMAND for resentencing of Anthony Esparsen. . Although Batson originally referred to the removal of “members of defendant's race,\" 476 U.S. at 96, 106 S.Ct. at 1722, the Supreme Court has recently declared \"a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers v. Ohio, - U.S. -, 111 S.Ct. 1364, 1366, 112 L.Ed.2d 411, 1991 WL 41528, *2. Therefore, Robert McFadden has standing to challenge the exclusion of Hispanic jurors even though he is Caucasian. The standing of the Esparsens is not disputed on appeal, although the trial judge initially stated they did not appear obviously Hispanic. . The other three alternates were Sharon B. Wallace, Charles M. Peterson, and Dino Bernar-done. . The Chalan venire originally had four American Indians. Two were removed for cause and the government used its peremptory challenges to remove the other two. Since one of the last two could have been removed for cause because of language problems, the court treated the case as if" }, { "docid": "7397365", "title": "", "text": "government to provide a neutral explanation for its challenge to black jurors. Id. at 97, 106 S.Ct. at 1723. Although the prosecutor’s explanation must be “clear and reasonably specific” and set forth “legitimate reasons,” it need not “rise to the level justifying exercise of a challenge for cause.” Id. at 97-98, 106 S.Ct. at 1723-24. The Supreme Court also recognized that the trial judge's findings in this context will involve questions of credibility and those findings should be given “great deference.” Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21. This circuit will therefore uphold a district court’s findings that the government’s challenges were based on nondiscriminatory criteria unless those findings are clearly erroneous. United States v. Briscoe, 896 F.2d 1476, 1487 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 173, 112 L.Ed.2d 137. The government used four out of six potential challenges to strike black jurors, one to strike a hispanic, and left one strike unused. One alternate strike was used by the government to strike a white juror. Citing Batson, defense counsel objected to the strikes and argued that the government was using its peremptories to remove the prospective jurors because of their race. Finding that Ferguson had established a prima facie case of discrimination, the district court required the government to explain its reasons for exercising the challenges. Although the government does not concede on appeal that Ferguson established a prima facie case of discrimination, we need not dwell on this issue since the district court was correct in its conclusion that the government’s reasons for challenging the hispanic and black jurors were not racially motivated. The government explained that the reason for striking Wyatt Kirk, a black male, was his youth and unemployment. Elizabeth Armstrong, a black female, was challenged due to her unemployment. Jose Villanueva, a hispanic male, testified during voir dire that he had been arrested for DUI and his license was suspended for one year. The government cited Villanueva’s unemployment and arrest as reasons for striking him from the jury. Ernest King, a black male, testified that his employment was" }, { "docid": "1340517", "title": "", "text": "BOWMAN, Circuit Judge. John Fuller was convicted of two federal firearm violations and received concurrent fifteen and ten year sentences. In challenging these convictions, Fuller alleges three trial errors: the government used its peremptory strikes unconstitutionally, the trial court improperly allowed the admission of evidence of other crimes, and the prosecution’s closing argument violated Fuller’s right to a fair trial. Fuller also appeals his sentence, questioning the constitutionality of the Federal Sentencing Guidelines and the applicability of an enhancement provision to his sentence. We affirm. A jury found Fuller guilty on both counts charged: Count I, possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Supp. V 1987), and Count II, possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1982). The District Court sentenced Fuller to fifteen years and ten years imprisonment on Counts I and II, respectively, the terms to run concurrently, plus a special assessment of $50 per count. On Count I, Fuller was sentenced under 18 U.S.C. § 924(e) (Supp. V 1987), which mandates a minimum fifteen year sentence upon the conviction of a defendant who has three or more previous convictions for violent felonies or serious drug offenses. A “violent felony” includes, among others, a crime that is punishable by more than one year in prison and involves force or threatened force or “is burglary.” 18 U.S.C. § 924(e)(2)(B). Because of Fuller’s 1975 conviction for robbery and his 1975 and 1980 burglary convictions, he was sentenced under this enhancement provision. I. Fuller, who is black, maintains that the government used its peremptory strikes systematically to exclude members of Fuller’s race from his jury in violation of his equal protection rights. Fuller used none of his ten peremptory strikes against members of his own race. The government used two of its six peremptory strikes against black venire members, leaving three black jurors. The District Court ruled that Fuller had not shown a prima facie case of purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Fuller argues that the District" }, { "docid": "18225017", "title": "", "text": "a real estate agent who was Caucasian, was discovered in St. Clair County, Alabama, on January 18, 1988. See Adkins v. State, 600 So.2d 1054, 1057, 1059, 1060-61 (Ala. Crim.App.1990) (Adkins I); Ex parte Adkins, 600 So.2d 1067, 1069 (Ala.1992) (Adkins II). Right away, Mr. Adkins, also white, was arrested and charged with capital murder for Hamilton’s death. Id. Jury selection began on October 24, 1988. During that process, the state exercised nine of its twenty-four peremptory strikes to remove nine of eleven black veniremembers. Adkins II, 600 So.2d at 1069. Mr. Adkins struck one of the two remaining black jurors, and ultimately, only one black juror served on the jury. Id. At the time of Mr. Adkins’s trial, the rule in Alabama was that a white defendant, like Mr. Adkins, lacked standing to challenge the state’s exercise of peremptory strikes to remove black jurors from the panel. See, e.g., Owen v. State, 586 So.2d 958, 959 (Ala.Crim.App.1990), rev’d sub. nom. Ex parte Owen, 586 So.2d 963 (Ala. 1991). For this reason, there was neither an objection by the defense nor a proffer of reasons by the prosecutor for striking the nine black jurors. The jury convicted Mr. Adkins of capital murder and sentenced him to death. See Adkins I, 600 So.2d at 1056. On August 24, 1990, the Alabama Court of Criminal Appeals affirmed his convictions and sentence on direct appeal. Id. at 1067. Before Mr. Adkins sought review in the Alabama Supreme Court, see Adkins II, 600 So.2d 1067, the United States Supreme Court delivered its ruling in Powers v. Ohio, holding “that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races.” 499 U.S. 400, 402, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991). Following Powers, Mr. Adkins raised a Batson claim in his petition for writ of certiorari to the Alabama Supreme Court. Adkins II, 600 So.2d at 1069. The Alabama Supreme Court granted Mr. Adkins’s petition and remanded his case to the Alabama Court of Criminal Appeals for" }, { "docid": "7397363", "title": "", "text": "HARLINGTON WOOD, Jr., Circuit Judge. Defendant Ronald D. Ferguson was convicted of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He alleges that the prosecutor’s use of peremptory strikes to remove blacks from the jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Ferguson also appeals the enhancement of his sentence under 18 U.S.C. § 924(e). We affirm. During the afternoon of April 28, 1988, two Chicago police officers responded to a call involving a disturbance outside a game room. When the officers arrived on the scene they observed Ferguson placing something under the seat of the car in which he was sitting. A search of the car revealed a revolver under the passenger seat where Ferguson had been sitting and another revolver under the driver’s seat. Ferguson was then indicted for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and the government filed a timely notice that it would seek an enhanced sentence under 18 U.S.C. § 924(e) in the event of Ferguson’s conviction. The jury found Ferguson guilty of felonious possession of a firearm and the trial judge imposed the minimum mandatory fifteen-year sentence prescribed by § 924(e). We first address Ferguson’s argument that the government’s use of peremptory strikes constituted a violation of Batson. The Supreme Court held in Batson that the Equal Protection Clause grants defendants the right to be tried by a jury selected in a nondiscriminatory manner. 476 U.S. at 85-86, 106 S.Ct. at 1716-17. Under Batson, a defendant may establish a prima facie case of purposeful discrimination by showing that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory strikes to remove venire members of the defendant’s race, and that “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. at 96, 106 S.Ct. at 1723. Once the defendant establishes a prima facie case, the burden shifts to the" }, { "docid": "7397377", "title": "", "text": "U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in which the Supreme Court held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.\" Id. Ill S.Ct. at 1366. Ferguson is a black man and he challenges the strikes against four hlack jurors and one hispanic juror. We evaluated the peremptory strike of the hispanic juror under the Batson criteria and therefore we need not address the applicability of Powers to this appeal. . The jury ultimately impanelled at Ferguson’s trial included five black jurors. . 18 U.S.C. § 924(e)(1) provides: In the case of a person who violates § 922(g) of this title and has three previous convictions by any court referred to in § 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such a person shall be fined not more than $25,000 and imprisoned not less than 15 years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant probationary sentence to, such person with respect to the conviction under § 922(g) and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. . The third conviction upon which Ferguson’s sentence enhancement was based involved a 1982 guilty plea to attempted murder. Ferguson does not contest the constitutional validity of that guilty plea and it is therefore not at issue in this appeal. CUDAHY, Circuit Judge, concurring. Although I defer to the view of the district judge who observed the three challenged jurors in serious question here (Kirk, Armstrong and Miller), I write separately to note what may be a significant deficiency in the statement of reasons for these- three peremptory strikes. Unless we are to assume that youth and unemployment are universally plausible reasons for jury strikes, there should be some indication of a nexus between the crime charged and the characteristics of the challenged jurors. Peremptory strikes can still" }, { "docid": "7397366", "title": "", "text": "defense counsel objected to the strikes and argued that the government was using its peremptories to remove the prospective jurors because of their race. Finding that Ferguson had established a prima facie case of discrimination, the district court required the government to explain its reasons for exercising the challenges. Although the government does not concede on appeal that Ferguson established a prima facie case of discrimination, we need not dwell on this issue since the district court was correct in its conclusion that the government’s reasons for challenging the hispanic and black jurors were not racially motivated. The government explained that the reason for striking Wyatt Kirk, a black male, was his youth and unemployment. Elizabeth Armstrong, a black female, was challenged due to her unemployment. Jose Villanueva, a hispanic male, testified during voir dire that he had been arrested for DUI and his license was suspended for one year. The government cited Villanueva’s unemployment and arrest as reasons for striking him from the jury. Ernest King, a black male, testified that his employment was in “import and export world trade, as well as income tax and business consulting.” He also testified that he had been falsely accused of a crime, but was acquitted. In addition, his brother had recently been murdered in Miami. In light of King’s experience with the criminal justice system and his ambiguous employment status, the government exercised a peremptory challenge against him. Patricia Miller, a black female, was stricken because of her youth. The gravamen of Ferguson’s argument is that a prospective juror’s youth and unemployment are not credible criteria for exercising peremptory challenges, but are merely pretexts for purposeful discrimination. Ferguson’s brief does not reveal the specific peremptory strikes he finds objectionable. Although a pattern of strikes against black jurors may be a factor in determining whether a defendant has established the initial prima facie case of discrimination, once the burden shifts to the government the strikes are evaluated on an individual basis and the prosecutor is required to give “clear and reasonably specific” racially neutral explanations for the challenges. Batson, 476 U.S. at" }, { "docid": "9278658", "title": "", "text": "were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' race.\" Id., at 97-98, 106 S.Ct. 1712. In his concurrence, Justice Thurgood Marshall drove the point home: \"Exclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State's case against a black defendant than it can be justified by the notion that blacks lack the intelligence, experience, or moral integrity to be entrusted with that role.\" Id., at 104-105, 106 S.Ct. 1712 (internal quotation marks and citations omitted). Third , the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all \"equally\" subject to race-based discrimination. The Court stated that each removal of an individual juror because of his or her race is a constitutional violation. Discrimination against one defendant or juror on account of race is not remedied or cured by discrimination against other defendants or jurors on account of race. As the Court later explained: Some say that there is no equal protection violation if individuals \"of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors. The suggestion that racial classifications may survive when visited upon all persons is no more authoritative today than the case which advanced the theorem, Plessy v. Ferguson , 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). This idea has no place in our modern equal protection jurisprudence. It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree.\" Powers , 499 U.S. at 410, 111 S.Ct. 1364 (citing Loving v. Virginia , 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ). Fourth , the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and" }, { "docid": "21081894", "title": "", "text": "the district court in December 1990. The district court denied the petition and Jones appeals. DISCUSSION 1. Racial discrimination during jury selection. Jones contends that his conviction must be set aside because the prosecutor exercised peremptory strikes against potential jurors, including one African American and three Hispanics, in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Batson held that an African American defendant stated an Equal Protection claim based on allegations that the prosecutor at his trial had exercised peremptory strikes in a manner allegedly intended to prevent any African Americans from serving on the petit jury. 476 U.S. at 96-98, 106 S.Ct. at 1722-24. Five years later, Powers held that a Batson-based Equal Protection claim did not require racial identity between the defendant and the veni-repersons allegedly discriminated against by the prosecutor’s used of peremptory challenges. 499 U.S. at 406, 111 S.Ct. at 1368. (a) African American venireperson Jones, who is African American, can challenge the removal of the African American venireperson under Batson itself, which involved same-race challenges. Batson was decided by the Supreme Court on April 30, 1986, approximately five months before Jones’s conviction became final on direct appeal. We therefore apply Batson retroactively on collateral review to Jones’s claim regarding the African American potential juror. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) (plurality opinion). Under Batson and its progeny, courts apply a three-step analysis to claims of racial discrimination in the exercise of peremptory challenges: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114" }, { "docid": "1340518", "title": "", "text": "which mandates a minimum fifteen year sentence upon the conviction of a defendant who has three or more previous convictions for violent felonies or serious drug offenses. A “violent felony” includes, among others, a crime that is punishable by more than one year in prison and involves force or threatened force or “is burglary.” 18 U.S.C. § 924(e)(2)(B). Because of Fuller’s 1975 conviction for robbery and his 1975 and 1980 burglary convictions, he was sentenced under this enhancement provision. I. Fuller, who is black, maintains that the government used its peremptory strikes systematically to exclude members of Fuller’s race from his jury in violation of his equal protection rights. Fuller used none of his ten peremptory strikes against members of his own race. The government used two of its six peremptory strikes against black venire members, leaving three black jurors. The District Court ruled that Fuller had not shown a prima facie case of purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Fuller argues that the District Court erred in failing to find a prima facie case, and that the court should have compelled the government to come forward with a racially neutral explanation for its exclusion of two black jurors. We disagree. While Fuller is a member of a cognizable racial group and the government did use peremptory challenges to remove two of five potential jurors who were members of that group, we are unconvinced that Fuller has made out a prima facie case. It is clear that this Court reviews a district court’s finding on the government’s neutral explanation and the ultimate finding of purposeful discrimination vel non as questions of fact, giving great deference to the district court. United States v. Ross, 872 F.2d 249, 250 (8th Cir.1989) (“Under these circumstances, the district court’s finding that the government's reasons for striking the two blacks were permissible under Batson is not clearly erroneous.”); United States v. Davis, 871 F.2d 71, 73 (8th Cir.1989) (“Because a district court’s finding of purposeful discrimination with regard to the use of peremptory strikes involves" }, { "docid": "7397376", "title": "", "text": "plea of not guilty and entered a plea of guilty....” A guilty plea and the resulting conviction will be constitutionally sound if the defendant’s awareness of his rights can be reasonably inferred from the custom and practice of the court. Gallman, 907 F.2d at 644. Ferguson’s only evidence, to refute the presumption of regularity accorded state judicial proceedings consisted of his own affidavit claiming that although he was represented by counsel and discussed his pleas with his attorney, the judge failed to explain his rights to him. Although Ferguson received fairly substantial sentences as a result of these convictions, he has never attacked them, either on direct or collateral appeal. In light of the paucity of evidence presented by Ferguson, we find that he has failed to meet his burden of demonstrating the invalidity of his 1977 convictions. Therefore, we hold that the district court properly concluded that Ferguson’s convictions satisfied the conditions for sentence enhancement under § 924(e). Affirmed. . The \"same race” requirement of Batson was recently abolished in Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in which the Supreme Court held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.\" Id. Ill S.Ct. at 1366. Ferguson is a black man and he challenges the strikes against four hlack jurors and one hispanic juror. We evaluated the peremptory strike of the hispanic juror under the Batson criteria and therefore we need not address the applicability of Powers to this appeal. . The jury ultimately impanelled at Ferguson’s trial included five black jurors. . 18 U.S.C. § 924(e)(1) provides: In the case of a person who violates § 922(g) of this title and has three previous convictions by any court referred to in § 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such a person shall be fined not more than $25,000 and imprisoned not less than 15 years, and," } ]

[ { "docid": "22639911", "title": "", "text": "engage in specified network practices (a basis for choice which we hold is comprehended within the statutory criterion of “public interest”), is thereby denying such persons the constitutional right of free speech. The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the “public interest, convenience, or necessity.” Denial of a station license on that ground, if valid under the Act, is not a denial of free speech. A procedural point calls for just a word. The District Court, by granting the Government’s motion for summary judgment, disposed of the case upon the pleadings and upon the record made before the Commission. The court below correctly held that its inquiry was limited to review of the evidence before the Commission. Trial de novo of the matters heard by the Commission and dealt with in its Report would have been ihiproper. See Tagg Bros. v. United States, 280 U. S. 420; Acker v. United States, 298 U. S. 426. Affirmed. Mr. Justice Black and Mr. Justice Rutledge took no part in the consideration or decision of these cases. Chain broadcasting is defined in §3 (p) of the Communications Act of 1934 as the “simultaneous broadcasting of an identical program by two or more connected stations.” In actual practice, programs are transmitted by wire, usually leased telephone lines, from their point of origination to each station in the network for simultaneous broadcast over the air. Station licenses issued by the Commission normally last two years. Section 3.34 of the Commission’s Rules and Regulations governing Standard and High-Frequency Broadcast Stations, as amended October 14,1941. The history of federal regulation of radio communication is summarized in Herring and Gross, Telecommunications (1936) 239-86; Administrative Procedure in Government Agencies, Monograph of the Attorney General’s Committee on Administrative Procedure, Sen. Doc. No. 186, 76th Cong., 3d Sess., Part 3, dealing with the Federal Communications Commission, pp." } ]

[ { "docid": "8458852", "title": "", "text": "to the sureties. After lengthy hearings before a trial examiner, in which evidence was taken and briefs presented, the Examiner filed his report on February 15, 1946, making findings of fact and stating his conclusions of law, the result of which was to adjudge all of the defendants in violation of the representations and stipulations of the contracts and statute, and to assess therefor liquidated damages, equal to the underpayments of the overtime, in the sum of $3,-664.68 against Hudgins-Dize Company, Inc. and Hudgins, of which $1,414.96 was also awarded against Miles and Finley, the latter amount representing damages for breaches of the last two contracts during the period from June 10, 1942 to August 10, 1943. On exceptions the Examiner’s report was confirmed by the Administrator in his decision of August 29, 1946. Finley and Miles sought a review of the Administrator’s decision by the Secretary of Labor, and the Secretary on September 2, 1947, affirmed the orders of the Administrator. The present action was commenced June 28, 1948. With the exception later noted in respect to Finley and Miles, the findings made in the administrative proceedings are supported by a preponderance of the evidence, and they are accepted. They are presumptively correct, and the burden was upon the defendants to show that they were not supported by the evidence. No such showing has been made save as to Miles and Finley. United States v. Chemical Foundation, 272 U.S. 1, 14, 47 S.Ct. 1, 71 L.Ed. 131; Proctor & Gamble v. Coe, 68 App.D.C. 246, 96 F.2d 518, 520; State Corp. Comm. v. Wall, 10 Cir., 113 F.2d 877, 880; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 443, 50 S.Ct. 220, 74 L.Ed. 524; Acker v. United States, 298 U.S. 426, 434, 56 S.Ct. 824, 80 L.Ed. 1257; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115. The Court is of the opinion, too, that the conditions of the performance and payment bonds embrace the violations, if any, committed by the contractor against the representations and stipulations of the statute and contracts relating to hours" }, { "docid": "11497477", "title": "", "text": "are multiplied when what is involved is the kind of broad ratemaking now conducted by the FPC, an approach approved in Permian Basin, and now used with rulemaking procedures. Of course, the Rule of Administrative Law restrains agencies from “arbitrarily” or “capriciously” reopening earlier determinations and reaching new results. An agency changing its course must be able to explain its departure from prior policy. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (1970), cert, denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Some comparable doctrine may be fashioned to prevent ‘ arbitrariness even when a second agency is involved. Whether a determination has been arbitrary is an entirely different question, however, from whether inquiry has been precluded by a prior determination that is binding. The FTC, in the exercise of its functions and responsibilities, has only begun to seek out the relevant facts. One cannot possibly say that it is acting unreasonably in beginning its examination. The opinion of Chief Judge Bazelon effectively establishes that conclusion. . Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908); Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 445, 50 S.Ct. 220, 74 L.Ed. 524 (1930); State Corporation Commission v. Wichita Gas Co., 290 U.S. 561, 569, 54 S.Ct. 321, 78 L.Ed. 500 (1934); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 64, 56 S.Ct. 720, 80 L.Ed. 1033 (1936). . See Shell Oil Company v. FPC, 520 F.2d 1061 (5th Cir. 1975). WILKEY, Circuit Judge, with whom joined MacKINNON, Circuit Judge, dissenting: This litigation is an outgrowth of a Federal Trade Commission (FTC) investigation into the reporting of natural gas reserves by natural gas producers in Southern Louisiana: The issues concern the District Court’s action in modifying and enforcing the Trade Commission’s subpoenas. We see the issues in this case quite differently from the majority. Fundamentally, our colleagues state the issues and write as if the court were reviewing directly the action of the Trade Commission in issuing these subpoenas. We are" }, { "docid": "8672681", "title": "", "text": "either by statute or by due process. Garvey knew, through his attorney, that the applicable regulations provided for an informal de novo hearing before the State Committee to review the County Committee de terminations and an informal de novo hearing before the Deputy Administrator to review the State Committee determinations. He appeared before both the State Committee and the Deputy Administrator with counsel and presented his case without objecting to these informal procedures or suggesting that the Administrative Procedure Act was applicable to require more formal proceedings. He must, therefore, rest his case on the original proposition that the “informal hearings” prescribed by the regulations to insure due process were perverted to deny it. In determining this question we must bear in mind that “due process is not necessarily judicial due process”. See Brandeis concurring in St. Joseph Stock Yards Co. v. United States, supra, 298 U.S. 77, 56 S.Ct. 720. Due process is elusive, undefinable, and varies to embody the “differing rules of fair play, which through the years have become associated with differing types of proceedings.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307; and see Market Street R. Co. v. Railroad Comm’n, 324 U.S. 548, 562, 65 S.Ct. 770, 89 L.Ed. 1171. Indeed, administrative determinations are usually made in furtherance of a legislative scheme to achieve what has been legislatively determined to be socially desirable, and they are often more legislative in nature than judicial, i. e., see Opp Cotton Mills v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624. And, so it is in our case. These farmer-commissioners do not sit as a judicial or even a quasi-judicial tribunal where witnesses are sworn and evidence taken. They sit informally to appraise and assess relative rights of their neighbors and themselves in the administration of a program by and for farmers. Their judgment in the first instance is essentially based upon observations and considerations within their peculiar knowledge unaided and unimpeded by traditional notions of evidence. Rules of procedure and evidence are inapplicable and inappropriate. But, the “basic concepts" }, { "docid": "23193545", "title": "", "text": "is evidential or procedural, not jurisdictional, is also indicated by the two cases cited by the Supreme Court in Bianehi as showing that a court of original jurisdiction can perform the function of reviewing an administrative decision on the record made before the agency—Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930), and National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). The opinion in the former characterizes as “a question of practice” the issue of whether de novo evidence should be introduced in the course of judicial review (see 280 U.S. at 442, 50 S.Ct. 220); the opinion in the latter calls this issue “a procedural point” (319 U.S. at 227, 63 S.Ct. 997). In both cases the Government had made timely objection against admission of new evidence (see D.C., 29 F.2d 750, 757; 319 U.S. at 227, 63 S.Ct. 997); in deciding that de novo evidence should not be considered by the reviewing court, the Supreme Court was thus passing upon a point which had been duly raised during the proceedings in the reviewing court. On principle, there is no more reason to consider the limitations of the Wunderlich Act to be non-waivable than in the case of other rules of procedure, practice, evidence — or even rules of substantive law — which are normally inapplicable if not properly invoked by the party benefitting from them. The important defense of failure to exhaust an administrative remedy, for example, must be raised if reliance is to be placed on it. There are many similar rules in this and other courts. The rule precluding de novo evidence under the Wunderlich Act seems to us to stand on the same footing. It is not of such importance or character that it must be held to limit the court’s basic power as a court. The statute of limitations is not analogous. For this court the bar of limitations is jurisdictional because Congress has thus limited' its consent to sue the United States (Soriano v. United States, 352" }, { "docid": "8672677", "title": "", "text": "open to judicial inquiry, the affidavit facts are, in any event, merely superfluous. But, we cannot dispose of the charge with such facility. Discrepancies between the administrative record facts and the affidavit addenda on judicial review, if indeed there be such, may very well support the contention that the administrative determinations were not made in conformity with the regulations erected for the purpose of insuring due process. Moreover, factual determinations are not final and conclusive unless relevantly supported by the record — an administrative order without factual support is without due process. See Justice Brandeis concurring in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 74, 56 S.Ct. 720, 80 L.Ed. 1033; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L. Ed. 524. This is not a de novo review. The integrity of the administrative process must be judged by what took place in the administrative proceedings as reflected on the administrative record unaided by affidavit proof in the reviewing court. See Tagg Bros. & Moorhead v. United States, supra; United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652; National Broadcasting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997, 87 L.Ed. 1344; Acker v. United States, 298 U.S. 426, 56 S.Ct. 824, 80 L.Ed. 1257; Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260. Administrative due process must be found in the administrative record. The trial judge decided the procedural due process issue upon “the entire record, including the transcripts of the hearings before the State Committee and the Deputy Administrator * * * ” Garvey v. Freeman, 263 F.Supp. 573, 578. But, a comparison of the factual contents of the administrative record with the affidavit facts does not reveal any substantial discrepancies or variances. Both set forth in detail the basic facts of the controversy. The transcript of the hearing before the State Committee discloses that the admitted differences between the farming methods employed by Garvey and those of the smaller" }, { "docid": "6903644", "title": "", "text": "U.S. at 141-143, 93 S.Ct. at 1244, 36 L.Ed.2d at 112— 113; Citizens to Preserve Overton Park v. Volpe, supra note 39, 401 U.S. at 415, 420, 91 S.Ct. at 825-826, 28 L.Ed.2d at 155; National Broadcasting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997, 1014, 87 L.Ed. 1344, 1368 (1943); Acker v. United States, 298 U.S. 426, 433-434, 56 S.Ct. 824, 828-829, 80 L.Ed. 1257, 1263 (1936); Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 443-445, 50 S.Ct. 220, 226-227, 74 L.Ed. 524, 536-537 (1930). See also Rodway v. United States Dep’t of Agriculture, 168 U.S.App.D.C. 387, 394, 514 F.2d 809, 816 (1975). Compare Cincinnati N. O. & T. P. Ry. v. ICC, 162 U.S. 184, 196, 16 S.Ct. 700, 705, 40 L.Ed. 935, 939 (1896). . Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974); Citizens to Preserve Overton Park v. Volpe, supra note 39, 401 U.S. at 416, 91 S.Ct. at 824, 28 L.Ed.2d at 153. . See B. Schwartz, Administrative Law §§ 211, 215 (1966). . SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626, 633 (1943). . Gulf States Utils. Co. v. FPC, 411 U.S. 747, 764, 93 S.Ct. 1870, 1880, 36 L.Ed.2d 635, 647 (1973), quoting SEC v. Chenery Corp., supra note 43, 318 U.S. at 88, 63 S.Ct. at 459, 87 L.Ed. at 633. See also Citizens to Preserve Overton Park v. Volpe, supra note 39, 401 U.S. at 418, 419, 91 S.Ct. at 824-825, 28 L.Ed.2d at 155; Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207, 216 (1962); Rodway v. United States Dep’t of Agriculture, supra note 40, 168 U.S.App.D.C. at 394, 514 F.2d at 816. . Tagg Bros. & Moorhead v. United States, supra note 40, 280 U.S. at 444, 50 S.Ct. at 220, 74 L.Ed. at 537. . Supra note 39. . Under the statutory scheme, the Secretary could not allocate federal funds to any project —there, construction" }, { "docid": "11497478", "title": "", "text": ". Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908); Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 445, 50 S.Ct. 220, 74 L.Ed. 524 (1930); State Corporation Commission v. Wichita Gas Co., 290 U.S. 561, 569, 54 S.Ct. 321, 78 L.Ed. 500 (1934); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 64, 56 S.Ct. 720, 80 L.Ed. 1033 (1936). . See Shell Oil Company v. FPC, 520 F.2d 1061 (5th Cir. 1975). WILKEY, Circuit Judge, with whom joined MacKINNON, Circuit Judge, dissenting: This litigation is an outgrowth of a Federal Trade Commission (FTC) investigation into the reporting of natural gas reserves by natural gas producers in Southern Louisiana: The issues concern the District Court’s action in modifying and enforcing the Trade Commission’s subpoenas. We see the issues in this case quite differently from the majority. Fundamentally, our colleagues state the issues and write as if the court were reviewing directly the action of the Trade Commission in issuing these subpoenas. We are not. We are reviewing the action of a District Court in modifying and enforcing those subpoenas. It is the validity and reasonableness of the District Court’s action which we judge. What we review and the standards we employ are determined by that? The District Court modified the subpoenas in two principal ways: (A) limiting the material to be produced to any and all material containing data on proved reserves and their reporting; and (B) limiting the use of the data to purposes other than establishing the accuracy of the proved reserve figures, such estimates having been established for the same time period by three separate investigations of the Federal Power Commission. In so modifying and enforcing the subpoenas the District Court acted on three separate and independent grounds: (1) relevance of the data sought to the purpose of the Trade Commission investigation, the reporting of proved gas reserves (applicable to the content or production limitation); (2) burdensomeness of producing material already twice or thrice furnished before (applicable to both the content and use limitations); (3)" }, { "docid": "23193544", "title": "", "text": "the Government was voluntarily foregone and relinquished— unless the requirement stated in the Bianchi decision is a jurisdictional one which cannot be waived while the case is pending in this court. We do not regard the Bianchi requirement as jurisdictional in that sense. The Wunderlich Act, itself, is not phrased in jurisdictional terms, and its legislative history does not suggest that Congress considered its provision for limited review so compelling that the Government could not waive it, wholly or partially. In Bianchi, the Supreme Court took pains to point out twice that the Government had affirmatively objected to the admission or consideration of new evidence in that case. There is nothing in the opinion to suggest that these objections were unnecessary or that the Court’s holding is a jurisdictional one. The opinions in the earlier cases in which the Supreme Court upheld finality clauses in Government contracts were likewise free from any suggestion that such clauses deprived this court of power; those decisions applied rules of contract law, not of judicial jurisdiction. That the problem is evidential or procedural, not jurisdictional, is also indicated by the two cases cited by the Supreme Court in Bianehi as showing that a court of original jurisdiction can perform the function of reviewing an administrative decision on the record made before the agency—Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930), and National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). The opinion in the former characterizes as “a question of practice” the issue of whether de novo evidence should be introduced in the course of judicial review (see 280 U.S. at 442, 50 S.Ct. 220); the opinion in the latter calls this issue “a procedural point” (319 U.S. at 227, 63 S.Ct. 997). In both cases the Government had made timely objection against admission of new evidence (see D.C., 29 F.2d 750, 757; 319 U.S. at 227, 63 S.Ct. 997); in deciding that de novo evidence should not be considered by the reviewing court, the Supreme Court was" }, { "docid": "14324227", "title": "", "text": "652 (1963), gives some guidance. That case, as I understand it, strongly suggests that in the absence of statutory standards the test is either “arbitrary and capricious” or “not substantial evidence,” and, more importantly, that review should be limited to the administrative record. The Bianchi Court stated that the “substantial evidence” standard goes to the reasonableness of the agency action on the basis of the record before it: Indeed, in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, this Court has held that consideration is to be confined to the administrative record and that no de novo proceeding may be held. Tagg Bros. & Moorhead v. United States, 280 U.S. 420 [50 S.Ct. 220, 74 L.Ed. 524]; National Broadcasting Co. v. United States, 319 U.S. 190, 227 [63 S.Ct. 997, 1014, 87 L.Ed. 1344]. And of course, as shown by the Tagg Bros, and NBC cases themselves, the function of reviewing an administrative decision can be and frequently is performed by a court of original jurisdiction as well as by an appellate tribunal. Moreover, the standards of review adopted in the Wunderlich Act — “arbitrary,” “capricious,” and “not supported by substantial evidence” — have frequently been used by Congress and have consistently been associated with a review limited to the administrative record. The term “substantial evidence” in particular has become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court. This standard goes to the reasonableness of what the agency did on the basis of the evidence before it, for a decision may be supported by substantial evidence even though it could be refuted by other evidence that was not presented to the decision-making body. Id. at 715, 83 S.Ct. at 1413 (emphasis in original) (footnote omitted). Many, if not most cases, that have been confronted with a choice between applying an “arbitrary and capricious” and a “substantial evidence” standard of review of agency action have neatly side-stepped the issue by ruling that the same" }, { "docid": "4033733", "title": "", "text": "Utah, and Preston, Idaho, and being ninety-five miles in length, with two short branches. The Interstate Commerce Commission found that it was subject to the Act. It went into the District Court and that court reviewed the evidence that had been offered before the Commission and allowed some additional testimony, though, the testimony in court and before the Commission seems to be about the same. The District Court held that it was not subject to the Act and its decision was af firmed, by the Circuit Court of Appeals. 95 F.2d 911. In the opinion of the majority of the court there is a mention of the Commission’s determination being controlling unless made arbitrarily, but there is nothing in the opinion to point out any arbitrary or unreasonable action. In the dissenting opinion it is stated that the finding of the Commission was neither arbitrary nor capricious, nor was it made without any substantial evidence to support it. That case went to the Supreme Court and was reversed, 59 S.Ct. 160, 83 L.Ed-, December 5, 1938. Under an autonomy such as is -set up by the Act and the controlling decisions prior and after, the scope of a judicial review of a finding by the Commission is simply whether the Commission acted within its authority. Shields v. Utah Idaho Central Railroad Company, 59 S.Ct. 160, 83 L.Ed. -, December 5, 1938; Interstate Commerce Commission v. Union Pacific, 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; Interstate Commerce Commission v. L. & N. R. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; Virginian Ry. Co. v. United States, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524; Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. 1077; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033. In the first case cited, it is stated [page 165], “The condition which Congress imposed was that the Commission should make its determination after" }, { "docid": "7798531", "title": "", "text": "of final agency determinations. The most generally applicable standard of review is found at 5 U.S.C. § 706(2)(A), which states that the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In applying that standard, the reviewing court must determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,” as well as whether the agency followed the necessary procedural requirements in reaching its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-17, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The reviewing court is prohibited from substituting its own judgment for that of the agency, and the agency’s decisions are “entitled to a presumption of regularity.” Id. at 415, 91 S.Ct. at 823. Furthermore, the agency’s action may not be “attacked or supported in court by new evidence.” Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 444, 50 S.Ct. 220, 226, 74 L.Ed. 524 (1930). “The grounds upon which an administrative order must be judged are those upon which the record discloses that [the] action was based.” Securities and Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). Although an exception to the rule limiting review to the administrative record exists, 5 U.S.C. § 706(2)(F), it involves the rare and unusual situation where “agency factfinding procedures are inadequate.” Volpe, 401 U.S. at 415, 91 S.Ct. at 823; see also Camp v. Pitts, 411 U.S. 138, 141-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106 (1973). Defendants have made no showing of coming within the exception and thus are not entitled to a trial de novo. On September 11, 1995, the government served upon defendants a demand to vacate the property it had purchased at the foreclosure sale on August 18, 1987, because defendants had been in possession of, and living rent free on, its property without a lease since September 22, 1992, and were" }, { "docid": "20146357", "title": "", "text": "was August 10, 1940 but such effective date, at the request of plaintiff, was continued from time to time to January 10, 1941. The Commission shortly before January 10, 1941 advised that it would be willing, at the request of the Court, to further extend the effective date of the order, which upon such Court request it has extended until june 15, 1941, so as to permit the hearing before this three-judge Court prior to the final effective date. Such consideration by the Commission is substantial evidence that it has not been arbitrary towards plaintiff, as plaintiff contends. The evidence presented to the Commission consisted of both oral testimony and a large quantity of exhibits. Plaintiff has introduced before us a transcript of the oral testimony but such transcript failed to include the exhibits. Such exhibits are an important part of the evidence. The plaintiff acknowledges that the failure to produce all of the evidence before the Court has heretofore been held a bar to the Court’s passing upon any contention that the findings of the Commission arc contrary to the evidence. Unquestionably without bringing before the Court all the evidence considered by the Commission the plaintiff cannot question the facts found by the Commission. Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 443, 444, 50 S.Ct. 220, 74 L. Ed. 524; Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 285, 286, 54 S.Ct. 692, 78 L.Ed. 1260. In connection, therefore, with plaintiff’s attempt to set aside the order denying plaintiff the “grandfather” certificate as a common carrier, the Court is only entitled to consider whether or not the ruling of the Commission was supported by the findings as made by it. The plaintiff chiefly relies upon this phase of the case upon the decision in N. E. Rosenblum Truck Lines v. United States, D.C.Mo., 36 F.Supp. 467, in which a similar Court to this one held that that plaintiff was entitled to a “grandfather” permit as a contract carrier. Plaintiff’s complaint and supplemental complaint are based entirely upon the contention that the Commission was" }, { "docid": "8672676", "title": "", "text": "Normal Yields Lower Than [Garvey’s]”. This memorandum was apparently intended to correct the data on which the Deputy Administrator based his decisional finding of “reasonable spread of yields” to now state that, of 267 farms with yields lower than 17 bushels, only seven were eligible to participate in the program. The net effect of this was to concede that of comparable farms seven had yields below Garvey’s farms, fifty-five above. After summary judgment, Garvey, having examined the minutes received before oral argument, made pertinent items discovered therein the basis for his motion for new trial, including the minutes of the County Committee meeting with the farmer-fieldman and the minutes of the “special session” of the County Committee with the State Committeeman. The motion was denied. Garvey now says that the minutes and the supportive affidavits disclosed new facts dehors the administrative record; that they are an implied recognition of procedural and factual deficiencies in the administrative process which cannot be supplied on judicial review. The Secretary’s footnote answer is that since factual determinations are not open to judicial inquiry, the affidavit facts are, in any event, merely superfluous. But, we cannot dispose of the charge with such facility. Discrepancies between the administrative record facts and the affidavit addenda on judicial review, if indeed there be such, may very well support the contention that the administrative determinations were not made in conformity with the regulations erected for the purpose of insuring due process. Moreover, factual determinations are not final and conclusive unless relevantly supported by the record — an administrative order without factual support is without due process. See Justice Brandeis concurring in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 74, 56 S.Ct. 720, 80 L.Ed. 1033; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L. Ed. 524. This is not a de novo review. The integrity of the administrative process must be judged by what took place in the administrative proceedings as reflected on the administrative record unaided by affidavit proof in the reviewing court. See Tagg Bros. & Moorhead" }, { "docid": "15625460", "title": "", "text": "Coal & Coke Co. v. Norfolk & W. R. Co., 33 I.C.C. 276 (1914). In the present case, the Commission rested its conclusion that the circumstances justified allowance of the unloading charge upon two findings of fact: (1) that the produce was sent to the pier stations and unloaded there primarily to allow use of the special sale and auction facilities existing there, rather than merely to effect delivery to the consignees; and (2) that plaintiff had the option of taking railroad team-track delivery without payment of any charge beyond the line haul rate, instead of requesting pier station delivery, as it did. These findings of fact were amply supported by the record before the Commission, as Judge Ryan’s opinion demonstrates, and furnish a reasonable basis for the Commission’s decision. See Alabama Great Southern R.R. Co. v. United States, 340 U.S. 216, 227-228, 71 S.Ct. 264, 95 L.Ed. 225 (1951). We find no reason to substitute our judgment for the expertise and experience of the Commission when it is as clear as it is here that the Commission has performed its required duties within the permissible bounds of the law. Second, plaintiff contends that the decision of the Commission should be set aside as arbitrary and capricious because of its alleged. inconsistency with the Commission’s earlier decision at 298 I.C.C. 637 (1956). This contention is not sustainable; the mere fact of inconsistency with a prior decision, even assuming such inconsistency had been demonstrated, is not a valid basis for setting aside the later decision of an administrative agency. Cf. Federal Communications Commission v. W.O.K.O. Inc., 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946). In proceedings of this kind, a court reviews no more than the particular administrative order which the plaintiff has challenged and seeks to determine only whether the record in the case before it contains substantial evidence to support the findings upon which the order is based. Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930). Because the record in a given prior proceeding is not before the" }, { "docid": "8672680", "title": "", "text": "hearing” within the meaning of the Administrative Procedure Act, i. e. see 5 U.S. C. § 554, the latter Act nonetheless is made applicable in our case by compulsion of due process, i. e. see Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; and that the hearings pursuant to which the determinations were made were not in compliance with the procedural standards prescribed by the Act. We need not decide whether the Administrative Procedure Act is applicable at any stage of the de novo administrative proceedings, for in any event, compliance is not prerequisite to the exercise of agency authority and is waived by failure to invoke it at the administrative level. See United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54; United States v. Elof Hansson, Inc., 296 F.2d 779, 48 CCPA 91. We think it was clearly waived in this ease. At no stage of the administrative proceedings was it suggested that the Administrative Procedure Act hearing is required either by statute or by due process. Garvey knew, through his attorney, that the applicable regulations provided for an informal de novo hearing before the State Committee to review the County Committee de terminations and an informal de novo hearing before the Deputy Administrator to review the State Committee determinations. He appeared before both the State Committee and the Deputy Administrator with counsel and presented his case without objecting to these informal procedures or suggesting that the Administrative Procedure Act was applicable to require more formal proceedings. He must, therefore, rest his case on the original proposition that the “informal hearings” prescribed by the regulations to insure due process were perverted to deny it. In determining this question we must bear in mind that “due process is not necessarily judicial due process”. See Brandeis concurring in St. Joseph Stock Yards Co. v. United States, supra, 298 U.S. 77, 56 S.Ct. 720. Due process is elusive, undefinable, and varies to embody the “differing rules of fair play, which through the years have become associated with differing" }, { "docid": "8672678", "title": "", "text": "v. United States, supra; United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652; National Broadcasting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997, 87 L.Ed. 1344; Acker v. United States, 298 U.S. 426, 56 S.Ct. 824, 80 L.Ed. 1257; Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260. Administrative due process must be found in the administrative record. The trial judge decided the procedural due process issue upon “the entire record, including the transcripts of the hearings before the State Committee and the Deputy Administrator * * * ” Garvey v. Freeman, 263 F.Supp. 573, 578. But, a comparison of the factual contents of the administrative record with the affidavit facts does not reveal any substantial discrepancies or variances. Both set forth in detail the basic facts of the controversy. The transcript of the hearing before the State Committee discloses that the admitted differences between the farming methods employed by Garvey and those of the smaller farmers actuated the County Committee to conclude that Garvey’s methods were inferior with consequent lower normal per acre crop yields. True, the affidavits for the first time described in detail the observations of the State Committeemen on the inspection tours and the reasons for their concurrence in the County Committee’s appraisals. But, the inspection tours were conducted in the presence of Garvey’s representatives, and it is not fatal to due process that the State Committeemen failed to set forth with particularity the reasons for their concurrence in the County Committee appraisals. Though the affidavits were argumentative summarizations which tended to amplify the administrative proceedings, they added nothing materially new or different to the administrative record. In any event, it was not prejudicial to refuse to strike them from the review record. The Administrative Procedure Act was invoked for the first time on judicial review. The contention seems to be that although no relevant part of the Agricultural Adjustment-Act requires “adjudication [thereunder] * * * to be determined on the record after opportunity for an agency" }, { "docid": "4033734", "title": "", "text": "1938. Under an autonomy such as is -set up by the Act and the controlling decisions prior and after, the scope of a judicial review of a finding by the Commission is simply whether the Commission acted within its authority. Shields v. Utah Idaho Central Railroad Company, 59 S.Ct. 160, 83 L.Ed. -, December 5, 1938; Interstate Commerce Commission v. Union Pacific, 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; Interstate Commerce Commission v. L. & N. R. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; Virginian Ry. Co. v. United States, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524; Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. 1077; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033. In the first case cited, it is stated [page 165], “The condition which Congress imposed was that the Commission should make its determination after hearing. There is no question that the Commission did give a hearing. Respondent appeared and the evidence which it offered was received and considered. The sole remaining question would be whether the Commission in arriving at its determination departed from the applicable rules of law and whether its finding had a basis in substantial evidence or was arbitrary and capricious. That question must be determined upon the evidence produced before the Commission.” The opinion of the Commission in the instant case, which was offered in evidence, shows a careful analysis of the testimony, a thoughtful weighing of the same, and an accurate application of the law to such facts. It was acting within the field committed to it by the Congress, and in the absence of an “arbitrary or capricious” conclusion, its determination is binding. In 1934, the Act was so amended as to prescribe that the Interstate Commerce Commission is authorized and directed, upon the request of the Mediation Board, or upon the complaint of any party interested, to determine, after hearing, whether any" }, { "docid": "14324226", "title": "", "text": "otherwise not in accordance with law.” Despite the limited nature of such a review, it does require the Court to engage in a substantial inquiry. There should be a “thorough, probing, in-depth review.” Overton Park, supra at 415, 91 S.Ct. at 823. First, there should be inquiry as to whether the agency (in this case DRBC) acted within the scope of its authority. Plaintiffs do not contend that the § 3.8 approvals were beyond the scope of DRBC’s authority. The court must further consider whether the decision of the agency “was based on a consideration of the relevant factors and whether there has been a clear error of judgment, bearing in mind that the court is not empowered to substitute its judgment for that of the agency. Finally, the court must determine if necessary procedural requirements were followed. Since the Compact gives no hint of the scope of review and the APA is expressly not applicable, the case of United States v. Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963), gives some guidance. That case, as I understand it, strongly suggests that in the absence of statutory standards the test is either “arbitrary and capricious” or “not substantial evidence,” and, more importantly, that review should be limited to the administrative record. The Bianchi Court stated that the “substantial evidence” standard goes to the reasonableness of the agency action on the basis of the record before it: Indeed, in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, this Court has held that consideration is to be confined to the administrative record and that no de novo proceeding may be held. Tagg Bros. & Moorhead v. United States, 280 U.S. 420 [50 S.Ct. 220, 74 L.Ed. 524]; National Broadcasting Co. v. United States, 319 U.S. 190, 227 [63 S.Ct. 997, 1014, 87 L.Ed. 1344]. And of course, as shown by the Tagg Bros, and NBC cases themselves, the function of reviewing an administrative decision can be and frequently is performed by" }, { "docid": "22694854", "title": "", "text": ".the entire record in this proceeding,” findings of fact and conclusions, and an order prescribing rates, were signed by the Secretary of Agriculture. First.—The Packers and Stockyards Act makes the provisions of all laws relating to the “suspending or restraining the enforcement”, or the “setting aside” of the orders of the Interstate Commerce Commission applicable to the “jurisdiction, powers and duties of the Secretary” in enforcing the provisions of the Act. § 316; 7 U. S. C. 217. These suits for the review of the administrative action were thus directly authorized and appeal lies under the Urgent Deficiencies Act of October 22, 1913. 38 Stat. 219, 220; 28 U. S. C. 47. Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443; Acker v. United States, ante, p. 426. All questions touching the regularity and validity of the proceeding before the Secretary are open to review. United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 286-290; Florida v. United States, 282 U. S. 194, 212-215. When the Secretary acts within the authority conferred by the statute, his findings of fact are conclusive. Tagg Bros. & Moorhead v. United States, supra; St. Joseph Stock Yards Co. v. United States, ante, p. 38; Acker v. United States, supra. But, in determining whether in conducting an administrative proceeding of this sort the Secretary has complied with the statutory prerequisites, the recitals of his procedure cannot be regarded as conclusive. Otherwise the statutory conditions could be set at naught by mere assertion. If upon the facts alleged, the “full hearing” required by the statute was not given, plaintiffs were entitled to prove the facts and have the Secretary’s order set aside. Nor is it necessary to go beyond-the terms of the-statute in order to consider the constitutional requirement of due process as to notice and hearing. For the statute itself demands a full hearing and the order is void if such a .hearing was denied. Interstate Commerce Comm’n v. Louisville & Nashville R. Co., 227 U. S. 88, 91; United States v. Abilene & Southern Ry. Co., supra; Florida" }, { "docid": "6903643", "title": "", "text": "unlawful and set aside agency action . . . found to be . . . unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” De novo review is authorized only in two instances: “when the action is adjudicatory in nature and the agency factfinding procedures are inadequate,” or “when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136, 153 (1971). See also Camp v. Pitts, 411 U.S. 138, 141, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106, 111 (1973). Neither situation is presented here. No infirmity in the Secretary’s factfinding procedures is claimed; the contention in both cases, rather, is that the Secretary applied erroneous legal standards and reached erroneous conclusions. And it goes without saying that appellants did not come into the District Court for enforcement of the Secretary’s decision. . Camp v. Pitts, supra note 39, 411 U.S. at 141-143, 93 S.Ct. at 1244, 36 L.Ed.2d at 112— 113; Citizens to Preserve Overton Park v. Volpe, supra note 39, 401 U.S. at 415, 420, 91 S.Ct. at 825-826, 28 L.Ed.2d at 155; National Broadcasting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997, 1014, 87 L.Ed. 1344, 1368 (1943); Acker v. United States, 298 U.S. 426, 433-434, 56 S.Ct. 824, 828-829, 80 L.Ed. 1257, 1263 (1936); Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 443-445, 50 S.Ct. 220, 226-227, 74 L.Ed. 524, 536-537 (1930). See also Rodway v. United States Dep’t of Agriculture, 168 U.S.App.D.C. 387, 394, 514 F.2d 809, 816 (1975). Compare Cincinnati N. O. & T. P. Ry. v. ICC, 162 U.S. 184, 196, 16 S.Ct. 700, 705, 40 L.Ed. 935, 939 (1896). . Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974); Citizens to Preserve Overton Park v. Volpe, supra note 39, 401 U.S. at 416, 91 S.Ct. at 824, 28 L.Ed.2d at" } ]

[ { "docid": "23432372", "title": "", "text": "the indirect method, because, once again, her deposition testimony did not establish the existence of a similarly situated employee who was treated more favorably. Ms. Winsley filed a timely appeal of the district court’s decision. II DISCUSSION We review a district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in the non-moving party’s favor. Perez v. Illinois, 488 F.3d 773, 776 (7th Cir.2007). Sum mary judgment is proper if the pleadings, discovery and disclosure materials on file, as well as any affidavits, demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). A. Americans With Disabilities Act To establish a violation of the ADA, an employee must show: “1) that she is disabled; 2) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) that the employer took an adverse job action against her because of her disability or failed to make a reasonable accommodation.” Stevens v. Ill. Dep’t of Transp., 210 F.3d 732, 736 (7th Cir.2000) (citations omitted). The district court concluded that Ms. Winsley had failed to establish genuine issues of material fact as to the first and second required elements of an ADA claim. Ms. Winsley submits that the court’s determination was erroneous. The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(2). The only potential impairment supported by the evidence is Ms. Winsley’s claim that she had difficulty driving. Although this court has reserved judgment on whether driving is a major life activity, Sinkler v. Midwest Property Mgmt. Ltd. P’ship, 209 F.3d 678, 685 (7th Cir.2000), three other circuits have held that it is not. See Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 1126 (10th Cir.2008); Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329-30 (11th Cir.2001); Colwell v. Suffolk County Police Dep’t., 158 F.3d 635, 643 (2d Cir.1998). Today we agree with our sister circuits and hold" } ]

[ { "docid": "17912259", "title": "", "text": "granting Vigilant’s motion for summary judgment. Specifically, Harper claims that summary judgment was improper because: (a) Vigilant “failed to establish beyond dispute that [John] was not an insured person under the lake house policy because he ‘never resided’ at the vacation property” and (b) whether or not John infected Jane with the HIV virus at the vacation property was a disputed question of material fact. III. Discussion We review the district court’s grant of summary judgment de novo, and in doing so view the record in the light most favorable to Harper, the nonmoving party. See Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir.2004). Summary judgment is warranted only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). “An issue of fact is ‘material’ if it is outcome determinative ... [h]owever, ‘bare allegations not supported by specific facts are not sufficient in opposing a motion for summary judgment.’” Hottenroth, 388 F.3d at 1027 (quoting Hildebrandt v. III. Dept. of Natural Res., 347 F.3d 1014, 1036 (7th Cir. 2003)). As a federal court sitting in diversity by virtue of jurisdiction pursuant to 28 U.S.C. § 1332, we apply state law “to resolve substantive questions and federal law to resolve procedural and evidentiary issues.” Colip v. Clare, 26 F.3d 712, 714 (7th Cir. 1994) (citing Mercado v. Ahmed, 974 F.2d 863, 866 (7th Cir.1992)). In the district court proceedings, both parties “agree[d] that ... the substantive law of the State of Missouri” would govern interpretation of the insurance contract at issue. Harper v. Vigilant Ins. Co., No. 01-CV-554-MJR, at *7 (S.D.Ill. Nov. 3, 2003). Also, because the trial court proceeded to conduct an independent choice-of-law analysis and determined that Missouri law should apply to the interpretation of the insurance contract and because neither party has challenged that" }, { "docid": "23489567", "title": "", "text": "to the St. Paul policy because that provision acts as an independent basis for coverage only when other coverage is lacking; (6) accordingly, no coverage existed under the underlying St. Paul policy, and, therefore, none existed under the Great American excess policy; and (7) there being no coverage under the Great American policy, Minter’s extra-contractual tort claims failed as a matter of law. Minter v. Great Am. Ins. Co., No. 3:02-CV-2040-K, 2004 WL 515615 (N.D.Tex. 27 Feb. 2004) (unpublished). II. Reviewed de novo, e.g., Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.2001), a summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”. Fed.R.CivP. 56(c). “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.2000) (citation omitted). A fact-issue is material only if its resolution could affect the action’s outcome. E.g., St. David’s Health Care Sys. v. United States, 349 F.3d 232, 234 (5th Cir.2003). The evidence and inferences from the summary judgment record are viewed in the light most favorable to the nonmovant. E.g., Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir.1994). (Along that line, portions of the state trial transcript are in the summary judgment record.) Interpretation of an unambiguous insurance contract is a question of law. E.g., Am. States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir.1998). It is undisputed that Texas law applies. A. Section II.B of the Great American excess policy defines an “Insured” as, inter alia: (1) Your [JTM’s] employees, other than your executive officers, but only for acts within the scope of their employment. ... (5) Any other person or organization who is insured under any policy of “Underlying Insurance. ” The coverage afforded such “Insureds” under this policy will be no broader than" }, { "docid": "23320384", "title": "", "text": "to this court. We granted State Farm leave to appeal, and have jurisdiction under 28 U.S.C. § 1292(b). B. The sole question presented in this appeal is whether Act 43, which extended the applicable prescription period in this case, applies retroactively to Holt’s cause of action. Act 43 amended the prescriptive periods in two Louisiana insurance statutes: La.Rev.Stat. §§ 22:629(B) and 691(F). The previous version of § 22:629(B) provided that for specified types of insurance, including fire, an insurance policy could not limit a right of action against an insurer to less than 12 months after the inception of the loss. Similarly, the previous version of § 22:691(F) provided that a suit for recovery under the standard fire insurance policy in Louisiana had to commence within 12 months after the inception of the loss. Act 43 changed the prescriptive periods in both statutes from 12 months to 24 months. It went into effect on August 15, 2007. Finally, Holt’s homeowners policy, which provided fire insurance to his property at all relevant times, specified that with respect to lawsuits against the insurer, “[t]he action must be started within one year after the date of loss or damage.” The policy also stated that when a policy provision conflicted with the applicable state law, the state law would govern. II. We review a district court’s grant or denial of summary judgment de novo, applying the same standard as the district court. Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 259-60 (5th Cir.2003). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The facts and evidence must be taken in the light most favorable to the non-movant. Am. Int’l Specialty, 352 F.3d at 260. When, as here, jurisdiction is based on diversity, we apply the substantive law of the forum state. Erie R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To determine Louisiana law, we look to the final decisions" }, { "docid": "8576322", "title": "", "text": "application of any deductible, by the figure determined in step (2) $255,677.28 x .49 = $126,292.53; and (4) subtract the deductible from the figure determined in step (3) $126,292.53 — -$1,000 = $125,292.53. Pursuant to these calculations, Prime sent Melson two checks totaling $125,292.53 on April 4, 2001. Melson filed an action in federal district court, alleging that Prime’s refusal to pay the full $185,000 was a violation of both the terms of the contract and Michigan state law. The district court granted Prime’s motion for summary judgment. Melson appealed, alleging that Prime misrepresented the nature of the policy, that the policy was ambiguous, and that the Coinsurance Provision was contrary to Michigan public policy. Although we affirmed the district court’s order on Melson’s first two claims, we were unable to determine whether coinsurance clauses violated Michigan public policy. We certified two questions to the Michigan Supreme Court, which declined to provide guidance after determining that it did not have jurisdiction. Our opinion addresses only whether coinsurance clauses violate Michigan public policy.. II. DISCUSSION A. Standard of Review We review the district court’s grant of summary judgment de novo. Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826 (6th Cir.2003). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the facts, and any inferences drawn therefrom, must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing summary judgment, however, must present more than a “mere scintilla” of evidence; the evidence must be such that a reasonable jury could find in favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. The Public Policy Claim Melson" }, { "docid": "18081239", "title": "", "text": "claim for restitution, but a claim for loss of share value as the consequential damages of defendant’s breach.” Id. Following the Hansen II decision, the plaintiffs withdrew all claims for reliance damages to expedite entry of a final judgment and this appeal. In due course, the court entered final judgment pursuant to its Rule 58, and this appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). ANALYSIS I. We review a grant of summary judgment by the Court of Federal Claims de novo to determine whether the summary judgment standard has been correctly applied. Summary judgment can only be entered if there remains no genuine issue of material fact. Fed. Cl. R. 56(c); Castle, 301 F.3d at 1336. A court must draw all reasonable inferences in favor of the non-moving party and then determine whether the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On appeal, the Hansens argue that the Court of Federal Claims erred in rejecting their claim in restitution for the value of the Raritan stock they exchanged for Hansen Savings stock pursuant to the Stock Exchange Agreement. For its part, the government cross-appeals. In so doing, it challenges the Court of Federal Claims’ ruling that there was a total breach, the predicate for an award of damages based on restitution. The government further argues, however, that assuming the Court of Federal Claims correctly decided that there was a total breach of contract, the court properly rejected the Hansens’ claim for the value of the Raritan stock, but erred in ruling that the government was not entitled to have offset against the award of the Hansens’ $1 million capital contribution the $1.2 million dividend the Hansens received from Hansen Savings. For the reasons that follow, we conclude that the Court of Federal Claims erred in ruling on summary judgment that the government’s breach of contract was total. Accordingly, we vacate and remand. II. A review of the basic principles relating to remedies for breach of contract" }, { "docid": "5971821", "title": "", "text": "a section designated “Defense, Settlement; Supplementary Payments,” the AHA policy provides primary coverage “to occurrences' covered under this policy but not covered by any underlying policies .... ” The primary coverage aspect of the AHA policy therefore only exists where there is a hole in the coverage of. the underlying insurance. Notwithstanding the policy language that seems to address insolvency of underlying insurers, Premcor argued in its declaratory judgment action that AHA was required to pay all defense costs because Reliance was insolvent. Premcor maintained that the amount recoverable language in the AHA policy meant that AHA was responsible for all amounts above that which was actually recovered from the underlying insurance. As the underlying insurance paid nothing in this case, Premcor argued that AHA should be responsible for the entire two million dollars. The parties filed cross-motions for summary judgment and the district court decided in favor of AHA. The district court found that the amount recoverable language in the AHA policy was ambiguous as a matter of Illinois law, but that Endorsement 10 expressly forbade increased liability because of the insolvency of underlying insurance. This appeal followed. II We review de novo the district court’s decision involving cross-motions for summary judgment. See Huntzinger v. Hastings Mut. Ins. Co., 143 F.3d 302, 307 (7th Cir.1998). Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as matter of law.” Fed.R.Civ.P. 56(c). With cross-motions, we construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made. See Metrop. Life Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir.2002). The law of Illinois applies to the interpretation of these contracts. The construction of the provisions of an insurance policy is a question of law, subject to de novo review. See Am. States Ins. Co. v. Koloms, 177 Ill.2d 473, 227 Ill.Dec. 149, 687 N.E.2d 72, 75 (1997). “In" }, { "docid": "15547040", "title": "", "text": "termination violated the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA); the Americans with Disabilities Act, 42 U.S.C. § 1210HADA); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Thirteenth Amendment; and the Wisconsin Fair Employment Act, Wis. Stat. §§ 111.31-111.395 (WFEA). The district court had proper jurisdiction over the WFEA claims under 28 U.S.C. § 1367. On June 23, 2005, the court granted summary judgment for Waste Management. Pursuant to Fed. R. Civ. P. 59(e), 60(b), Anders made a “Motion to Alter and Amend Judgment and Relief from Judgement and Order.” The district court denied his motion on August 29, 2005. This appeal followed. Anders argues now that there were genuine issues of material fact as to each of his claims. II. Analysis We review the district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the nonmoving party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir.2006). Summary judgment is appropriate if the moving party demonstrates “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are facts that “might affect the outcome of the suit” under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party opposing summary judgment may not rest upon mere allegations or denials contained in their pleadings; instead, it is incumbent upon them to introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial. See, e.g., Williams v. Seniff, 342 F.3d 774, 785 (7th Cir.2003); see also Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). A. Race Discrimination We examine first Anders’s claim that Waste Management fired him on the basis of race. This portion of our review includes his arguments for relief under Title VII, § 1981, and the WFEA. At the" }, { "docid": "21509223", "title": "", "text": "to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (quotations and citations omitted). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celo-tex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir.1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994); Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir.1992). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Doe, 42 F.3d at 443. In deciding to what insurance coverage, if any, the Plaintiff is entitled, the Court must apply Indiana law for contract interpretation. Allstate Ins. Co. v. Keca, 368 F.3d 793, 796 (7th Cir.2004) (“A federal court sitting in diversity has the obligation to apply the law of the state as it believes the highest court of the state would apply it if presented with the issue.”). “Generally, the interpretation of an insurance policy presents a question of law and is thus appropriate for summary judgment.” Morris v. Econ. Fire & Cas. Co., 848 N.E.2d 663, 665-66 (Ind.2006) (citing Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997)). An insurance contract" }, { "docid": "3052828", "title": "", "text": "court, on March 30, 2007, granted Avanade’s motion for summary judgment on both counts. Fischer appeals the district court’s decision on the claims of sex discrimination and retaliation in the form of constructive discharge. II. Analysis A. Standard of Review This court reviews a grant of summary judgment de novo, examining the record in the light most favorable to the non-moving party. Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir.2001). A grant of summary judgment is to be affirmed where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). All facts and reasonable inferences aré to be construed in favor of the nonmoving party, South v. Ill. EPA 495 F.3d 747, 751 (7th Cir.2007), however, “[ijnfererices that are supported by only speculation or conjecture will not defeat a summary judgment motion.” McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004). B. Sex Discrimination Claim for Failure to Promote Fischer first appeals the district court’s grant of summary judgment with respect to her failure to promote sex discrimination claim. Fischer argues that sex discrimination was at the root of her failure to obtain promotions to the Strategic Accounts Region Director position in October 2003 and May 2004, as well as to the same position in the Central Region in May 2004 and October 2004. The district court found however, and Fischer concedes on appeal, that Title VIPs 300-day limitation period for filing a charge with the EEOC bars Fischer from holding Defendant liable for any discrete discriminatory acts occurring before September 24, 2004. See 42 U.S.C. § 2000e-5(e)(1); see also AMTRAK v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“discrete discriminatory, acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges”). Thus, Fischer’s only timely failure to promote claim concerns Sieverding’s permanent appointment to the role of Central Region" }, { "docid": "21509224", "title": "", "text": "Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir.1992). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Doe, 42 F.3d at 443. In deciding to what insurance coverage, if any, the Plaintiff is entitled, the Court must apply Indiana law for contract interpretation. Allstate Ins. Co. v. Keca, 368 F.3d 793, 796 (7th Cir.2004) (“A federal court sitting in diversity has the obligation to apply the law of the state as it believes the highest court of the state would apply it if presented with the issue.”). “Generally, the interpretation of an insurance policy presents a question of law and is thus appropriate for summary judgment.” Morris v. Econ. Fire & Cas. Co., 848 N.E.2d 663, 665-66 (Ind.2006) (citing Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997)). An insurance contract “is subject to the same rules of interpretation as are other contracts.” Id. at 666 (citing USA Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 537-38 (Ind. 1997)). “If the language in the insurance policy is clear and unambiguous, then it should be given its plain and ordinary meaning, but if the language is ambiguous, the insurance contract should be strictly construed against the insurance company.” Id. MATERIAL FACTS Construing all facts in a light most favorable to the Plaintiff, and drawing all legitimate inferences in favor of the Plaintiff, the following facts are assumed true for the purposes of summary judgment. A. Chronology of Events The Plaintiff, National Athletic Sportswear, Inc., (“NAS”), is an Indiana corporation with its principal place of business in Allen County. It is engaged in the business of making designs and embroidering them onto apparel for universities, colleges, stores, and manufacturers of clothing. On August 11 or 12, 2005, someone broke into the Plaintiffs premises through the rear door and stole computer equipment and other items, including" }, { "docid": "8239734", "title": "", "text": "Barrett’s refund claim, and Barrett filed his complaint in the district court in September 2006, seeking review of the IRS’ denial of his refund claim. On cross-motions for summary judgment, the district court denied Barrett’s motion and granted the motion of the United States. In its order, the district court rejected Barrett’s argument that the compensation paid by the Tribe was exempt from income tax because it fell within the 1983 Plan’s definition of “development” or that the compensation paid to Barrett was a “programming expenditure” under the 1983 Plan. The district court also found that the penalty should be sustained because, while there might be a factual question as to Barrett’s subjective good faith, Barrett had not presented sufficient evidence to create a triable issue of fact as to the objective reasonableness of his position regarding the taxability of his salary. II A. Standard of Review We review the district court’s summary judgment decision de novo, applying the same legal standard used by the district court. ClearOne Commc’ns, Inc. v. Nat’l Union Fire Ins. Co., 494 F.3d 1238, 1243 (10th Cir.2007). Under this standard, summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue of fact is ‘genuine’ if the evidence allows a reasonable jury to resolve the issue either way and is ‘material’ when it is essential to the proper disposition of the claim.” Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir.2006) (internal quotation omitted). When reviewing a grant of summary judgment on appeal, we construe all factual inferences in favor of the party against whom summary judgment was entered. NISH v. Rumsfeld, 348 F.3d 1263, 1266 (10th Cir.2003). B. Exemption from Federal Income Tax Barrett acknowledges that American Indians, as United States citizens, generally are subject to the federal income tax. See Squire v. Capoeman, 351 U.S. 1, 6, 76 S.Ct. 611, 100 L.Ed. 883 (1956) (“Indians" }, { "docid": "15432125", "title": "", "text": "claims. Id. at 1177. The district court also found that the City qualified for the § 207(k) partial overtime exemption and thus limited the City’s liability for overtime to hours worked in excess of eighty-six in a fourteen-day work period. Id. at 1177-79. After receiving supplemental briefing, the district court denied the Plaintiffs’ motion for partial summary judgment on the issue of liquidated damages and sua sponte entered summary judgment in favor of the City on that issue. Flores v. City of San Gabriel, No. CV 12-04884-JDB (JCGx), 2013 WL 5817507, at *1 (C.D. Cal. Oct. 29, 2013) (“Flores II”). The City timely appealed the district court’s rulings concerning the exclusion of the cash-in-lieu of benefits payments from the regular rate of pay. The Plaintiffs cross-appealed, challenging the district court’s rulings that the payments qualified for exclusion under the Act if made to a trustee or a third party, that the City qualified for a § 207(k) partial overtime exemption, that the applicable statute of limitations was two years, and that the Plaintiffs were not entitled to liquidated damages. II. STANDARD OF REVIEW We review a grant of summary judgment or partial summary judgment de novo, applying the same standard of review as the district court under Federal Rule of Civil Procedure 56. Adair, 185 F.3d at 1059; Local 216 Utility Workers Union of Am. v. S. Cal. Edison Co., 83 F.3d 292, 294 n.1 (9th Cir. 1996). Under Rule 56, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When the parties file cross-motions for summary judgment, we review each separately, giving the non-movant for each motion the benefit of all reasonable inferences. Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008) (citation omitted). III. ANALYSIS “The FLSA is construed liberally in favor of employees; exemptions ‘are to be narrowly construed against the employers seeking to assert them....’” Cleveland, 420 F.3d at" }, { "docid": "5211935", "title": "", "text": "deprived him of his liberty interest in employment, by disseminating false information related to his termination without providing a name clearing hearing, and because of these stigmatizing disclosures, he suffered a tangible loss of other employment. Specifically, Covell alleges that the Defendants disclosed that he was terminated for viewing pornographic material on a state-issued laptop computer while on state time and altering his own time sheets. In entering summary judgment for the Defendants, the district court concluded that Covell did not have a property interest in his position as Director of IDHHC and, based on the language of the Act and in the bylaws, Covell did not have an objectively reasonable basis for believing that he had such an interest. In the alternative, the district court held that even if Illinois law did give Covell a property interest in his position under Illinois law, that law was not clearly established, and accordingly, the Defendants were entitled to qualified immunity. Further, the district court held that Covell could not prevail on his liberty interest claim because he could not show that any individual Defendant publicly disseminated any stigmatizing information regarding his termination. Covell timely filed this appeal. II. DISCUSSION We review the district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in Covell’s favor. Winsley v. Cook County, 563 F.3d 598, 602 (7th Cir.2009). Summary judgment is proper if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that the Defendants are entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). A. Property Interest In order to make his due process claim, Covell must first demonstrate that he had a constitutionally protected property interest. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir.2009) (citing Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir.1996)); Moss v. Martin, 473 F.3d 694, 700 (7th Cir.2007). A person’s interest in a benefit, such as continued employment, constitutes “property” for due process purposes only if “there are such rules or mutually explicit understandings that support his claim of" }, { "docid": "5649658", "title": "", "text": "truck traffic and found it unnecessary to address Aux Sable’s estoppel claim or argument that Defendants had violated the Illinois Vehicle Code. Defendants then brought a motion to amend the judgment under Fed.R.Civ.P. 59(e), arguing that the district court’s ruling made the State of Illinois a necessary party to the suit. The district court denied this motion, after which Defendants appealed the district court’s summary judgment decision to this Court. II. Analysis On appeal, Defendants challenge the district court’s grant of summary judgment for Aux Sable on the preemption issue, as well as the district court’s denial of summary judgment in Defendants’ favor with respect to Aux Sable’s claim under the Illinois Vehicle Code and Aux Sable’s estoppel argument. This Court reviews a district court’s ruling on cross-motions for summary judgment de novo. Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561 (7th Cir.2002). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “With cross-motions, our review of the record requires that we construe all inferences in favor of the party against whom the motion under consideration is made.” Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th Cir.2005) (quoting Tegtmeier v. Midwest Operating Eng’rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir.2004)). Thus, with respect to the preemption claim, all inferences will be construed in favor of Defendants, while for the other two claims, all inferences will be drawn in favor of Aux Sable. We first turn to the question of whether the local weight restriction on Ridgeland Avenue is preempted by the STAA pursuant to the Supremacy Clause of Article VI of the Constitution. Under the Supremacy Clause, “state laws that ‘interfere with, or are contrary to the laws of congress, made in pursuance of the constitution’ are invalid.” Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) (quoting Gibbons v. Ogden," }, { "docid": "15635614", "title": "", "text": "the Confirmation Order the court made fifty findings, including the following, AW. Preservation of Causes of Action. It is in the best interests of the creditors and interestholders that the causes of action that are not expressly released under the Plan be retained by the Reorganized Debtors pursuant to Article 7.14 of the Plan in order to maximize the value of the Debtors’ Estates. It is also in the best interests of creditors and interestholders that Avoidance Actions be waived pursuant to Article 7.14 of the Plan. Although “Avoidance Actions” is not defined in the Plan, Disclosure Statement or Confirmation Order, it is clear from the context of the language, that the Avoidance Actions referred to in finding AW. of the Confirmation Order are the same as the Avoidance Claims referred to in Article 7.14 of the Plan. III. DISCUSSION A. Summary Judgment Standards The well-established standard on a motion under Fed.R.Civ.P. 56(c) and Fed. R. Bankr.P. 7056 is that summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” E.g., Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th Cir.2000); Feldman v. American Memorial Fife Ins. Co., 196 F.3d 783, 789 (7th Cir.1999). In ruling on the motion, the court reviews the record in the light most favorable to the nonmoving party and it draws all reasonable inferences therefrom in the nonmov-ant’s favor. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir.2000); Filipovic v. K & R Express Systems, Inc., 176 F.3d 390, 395 (7th Cir.1999). “[E]ven where many or all of the material facts are undisputed, the court still must ascertain that judgment is proper as a matter of governing law.” Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir.1994) (citations omitted). B. Law of the Case The doctrine of law of the case establishes a presumption that a ruling made at one stage of a" }, { "docid": "15941272", "title": "", "text": "deposited by Central States, and (2) the children pay JoAnn the difference, each child being responsible for his or her k share. Both JoAnn and the children sought reconsideration of the district court’s decision as to their respective rights to the insurance proceeds. In addition, the children sought to have the district court credit them with having paid for the decedent’s burial expenses and to reduce the sum payable to JoAnn by that amount. The district court agreed with the children and adjusted its order on July 27, 1998. All other claims for reconsideration were denied. A timely notice of appeal was filed on August 24,1998. ANALYSIS We review a district court’s grant of summary judgment de novo. See Allen v. Michigan Dep’t of Corrections, 165 F.3d 405, 409 (6th Cir.1999). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When reviewing a motion for summary judgment, the evidence, all facts, and any inferences that may be drawn from the facts must be. viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)). I. The Non-ERISA Policies At the time Kenneth Howell designated his children as his beneficiaries to the non-ERISA life insurance policies, he was subject to an order from the state domestic relations court that precluded him from disposing of any marital asset while his divorce was pending. We must therefore consider whether Kenneth’s change in beneficiary on those non-ERISA policies violated state^ law and what effect such violation would have under applicable state law. The Howell’s divorce was being adjudicated in the Michigan state courts. Thus, the effect of Kenneth’s failure to comply with the state court" }, { "docid": "8240317", "title": "", "text": "proceeds on November 27, 1998. Richard did not become aware of Wal-Mart’s COLI program until some time in June 2005. She filed suit against Wal-Mart on August 24, 2006 seeking the insurance benefits obtained by the company, claiming that Wal-Mart violated Louisiana’s insurable interest statute by obtaining a life insurance policy on an individual in whom it had no insurable interest. La.Rev.Stat. § 22:613(A)-(B). Richard also sued for unjust enrichment and sought class action certification under Rule 23. Fed.R.CivP. 23(b)(3). On May 21, 2007, the district court granted summary judgment in favor of Wal-Mart, dismissing Richard’s unjust enrichment claim. On October 9, 2007, the district court granted a second summary judgment in favor of Wal-Mart. The district court determined that Richard’s claim was a tort action subject to the one-year statute of limitations and dismissed Richard’s claim as time-barred. Richard timely appealed. II. STANDARD OF REVIEW This court reviews a district court’s grant of summary judgment de novo. See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir.2005). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “We consider the evidence in a light most favorable to [Richard], the non-mov-ant, but she must point to evidence showing that there is a genuine fact issue for trial” to survive summary judgment. Richardson, 434 F.3d at 332. III. APPLICABLE LAW Richard’s claim arises under Louisiana’s insurable interest statute. La.Rev. Stat. § 22:613(B). Thus, Louisiana law governs. See Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir.1999) (holding that a federal court sitting in diversity applies state substantive law). The Louisiana statute provides a cause of action to recover benefits from anyone who procures and re- ceives benefits under a life insurance policy without an insurable interest. La.Rev. Stat. § 22:613(A)-(B). Section 22:613 does not specify a prescription period and does not define the cause of action as either tort or contract. The" }, { "docid": "5881875", "title": "", "text": "the Eastern District of Louisiana. Specifically, Jefferson Block alleged that Underwriters wrongfully refused to indemnify it for oil pollution removal costs. The parties thereafter filed cross-motions for summary judgment, and the district court, after concluding that the OPA Policy did not cover the costs Jefferson Block sustained as a result of the leak in the 16-inch pipeline, granted Underwriters’ motion, denied Jefferson Block’s motion, and entered judgment in favor of Underwriters. This appeal followed. II We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. DePree v. Saunders, 588 F.3d 282, 286 (5th Cir.2009). “The district court’s interpretation of an insurance contract is a question of law that we also review de novo.” Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir.2010) (internal quotation marks and citation omitted). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th Cir.2009) (internal quotation marks and citations omitted). “When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir.2008). “In reviewing the entire record, we consider all evidence in a light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party.” Frakes v. Crete Carrier Corp., 579 F.3d 426, 429-30 (5th Cir.2009) (internal quotation marks and citation omitted). III This case presents an insurance coverage dispute governed by New York law. “It is well established under New York law that a policyholder bears the burden of showing that the" }, { "docid": "11883333", "title": "", "text": "on the “outside service” exclusion. The court granted the motion for reconsideration, but affirmed its denial of Twin City’s motion for summary judgment on that ground. On appeal, Twin City argues that the district court, erred in rejecting all of its arguments. However, because we find that the Policy’s “prior litigation” exclusion applies and that Twin City’s motion for summary judgment should have been granted on that basis, we need not review the district court’s other grounds for denying Twin City’s motion. II. STANDARD OF REVIEW “We review the trial court’s grant or denial of a motion for summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002) (citation omitted). Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[A] party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548 (internal quotations omitted). If the movant succeeds in demonstrating the absence of a material issue of fact, the burden shifts to the non-movant to show the existence of a genuine issue of fact. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993). Further, “[i]n a diversity case, a federal court applies the substantive law of the forum state, unless federal constitutional or statutory law is contrary.” Ins. Co. of N. Am. v. Lexow, 937 F.2d 569, 571 (11th Cir.1991) (citation omitted). In this case the forum state is" }, { "docid": "22121351", "title": "", "text": "must “exercise [our] discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy Burford, 319 U.S. at 318, 63 S.Ct. 1098 (internal quotation marks omitted). B. The Town raises two arguments in favor of its contention that the district court abused its discretion in abstaining. First, the Town argues that no issues of state law are presented because, even if Leith does have vested rights in the Property, it still cannot establish a violation of its substantive due process rights. The Town notes that, had the district court simply granted summary judgment as to the substantive due process claim, the vested rights claim still would be resolved in state court. Second, the Town contends that, even if a federal court had to weigh Leith’s vested rights claim, that claim does not involve difficult questions of state law bearing upon important public policy. We address each in turn. i. The Town first argues that summary judgment was appropriate regardless of the resolution of Leith’s vested rights claim. Because an error of law amounts to an abuse of discretion, see Martin, 499 F.3d at 363, we agree with the Town that, if summary judgment was appropriate on Leith’s substantive due process claim, Burford abstention would not be. We review de novo a district court’s grant of summary judgment. Wilmington Shipping Co. v. New England Life Ins. Co., 496 F.3d 326, 331 (4th Cir.2007). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As noted above, we construe the facts in the light most favorable to Leith and draw all reasonable inferences in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. To establish a violation of substantive due process, Leith must “demonstrate (1) that they had property or a property interest;" } ]

[ { "docid": "23279892", "title": "", "text": "for search warrants and their use. The confusion arises generally, in my opinion, because they are not willing to be bound by the limitations of the Constitution or the law. In pursuing liquor, recently made an outlaw by the Eighteenth Amendment to the Constitution, they are, in their zeal, inclined to disregard other provisions of the same document equally sacred and far more important to the rights of the people. The language of the Fourth Amendment to the Constitution is as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The protection thus afforded to the people can only be insured by the courts. It is far more important that the right to be secure in their persons, houses, and effects be zealously guarded than that a few individuals be convicted of violating the prohibition or any other law. It is one of the most sacred rights that the Constitution guarantees, and officers sworn to defend the Constitution should be the first to recognize and defend it. There is nothing obscure about it; the language is plain, and means what it says. Following the Constitution, Congress has provided for the issuance of search warrants (Act June 15, 1917, title 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496J4a-10496i4v): (1) “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.” Section 10496%c. (2) “The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.” Section T0'49614d- (3) “The affidavits or depositions must set forth the facts tending to establish the grounds of the application" } ]

[ { "docid": "17689082", "title": "", "text": "Act are regulated by statutes that are to be strictly construed, not only because in derogation of fundamental principles of individual liberty, but also because of the constitutional inhibition. By sections 2 and 25 of title 2 of the National Prohibition Act search warrants may issue under the limitations provided in title 11 of the Act of June 15, 1917 (40 Stat. 228 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496%a-10496%v]). This requires probable cause to be shown and the place to be searched and property to be seized to be described with reasonable certainty. Probable cause cannot be shown by evidence of mere suspicion nor by illegal evidence. Section 25 of the National Prohibition Act prohibits the issuance of a search warrant to search any private dwelling occupied as such, unless it is being used for the unlawful sale of intoxi eating liquor or for some business purpose. Section 6 of the amendment to the National Prohibition Act (approved November 23, 1921) makes it a misdemeanor punishable by fine and imprisonment for any officer of the United States engaged in the enforcement of the National Prohibition Act to search any private dwelling without a warrant directing such search. The Act of June 15,1917, the provisions of which relating to search warrants are interpolated into the National Prohibition Act by section 19 of title 11 of said act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496J4s), specifically makes the provisions of sections 125 and 126 of the Criminal Code (Comp. St. §§ 10295, 10296), relative to perjury and subornation of perjury, applicable to all persons falsely swearing in support of applications for search warrants. Section 20 of the same title (section 10496J4t) makes it an offense punishable by a fine of $1,000 or imprisonment for one year to maliciously and without probable cause procure a search warrant to foe issued or executed. Section 21 of the same title (section 10496:|4u) inflicts the same penalties on an officer who in executing a search warrant willfully exceeds his authority or exercises it with unnecessary severity. Applying the law" }, { "docid": "16448070", "title": "", "text": "of life, liberty, or property, without due process of law.” See particularly Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. The sacredness of the home and the other constitutional rights so-secured to the citizen are, as I read and construe the national prohibition legislation, both original and supplemental, observed and respected. I am unable to see any evidence, direct or by implication, in section 6 of the act supplemental to the National Prohibition Act (42 Stat. 222, 223 [Comp. St. Ann. Supp. 1923, § 10184a]), changing the person or persons to whom a warrant of search and seizure was by the original act authorized to be issued. Section 6 of the supplemental act reads as follows: “That any officer, agent, or employee of the United States engaged in the-enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not more than $1,000, and for a subsequent of- \" fense not more than $1,000 or imprisoned not more than one year, or both such fine and imprisonment. “Whoever not being an officer, agent, or employee of the United States shall falsely represent himself to be such officer, agent or employee and in such assumed character shall arrest or detain" }, { "docid": "6226571", "title": "", "text": "Can it be contended that the commissioner, after the information had thus been filed, had the power to suppress the proof on which it was based, and on which the court acted? If the commissioner has such power, when does the right to exercise it cease? Can he thus act during or after the trial on the information in the District Court? These questions, answer themselves. A person from whose possession property is taken in execution of a search warrant has the undoubted right to avail himself of the remedies provided in sections 15 and 16, title 11, of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496¼o, 10496¼p), in so far as they are not modified or withdrawn by section 25, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m), provided he acts with reasonable diligence, and before the court takes jurisdiction. The objection that the officers designated in and to whom the search warrant was addressed were not authorized under the law to execute it is not well taken. Raine v. United States (C. C. A.) 299 Fed. 407; United States v. American Brewing Co. (D. C.) 296 Fed. 772-776; United States v. Montalbano (D. C ) 298 Fed. 667; United States v. Keller (D. C.) 288 Fed. 204; United States v. Daison (D. C.) 288 Fed. 199; United States v. Syrek (D. C.) 290 Fed. 820. According to the affidavit for search warrant, the sale of intoxicating liquor occurred December 2d; but the affidavit was not sworn to until December 14th, 12 days later. It is argued that the sale on the 2d is not evidence of possession 12 days later. In section 11, title 11, of the Espionage Act (section 10496¼k), it is provided that “a search warrant must be executed and returned to the judge or commissioner who issued it within 10 days after its date; after the expiration of this time the warrant, unless executed, is void.” The absence of such a limitation as to the lapse of time between the purchase of liquor and" }, { "docid": "23563566", "title": "", "text": "be seized.” Title 11 of the Espionage Act (40 Stat. 228 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 1049614a et seq.]), by section 25, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814m), is made a part of the latter act, and section 3 of title 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 1049614c) provides: “Sec. 3. A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched.” The contention of the defendant is that, by reason of the provisions of section 3, it is essential that a search warrant, in addition to particularly describing the place to be searched and the property to bé seized, should also name or describe the owner or occupant of the premises to be searched or state that his name is unknown. We, however, are of the opinion that Congress, in the enactment of section 3, simply restated the requirements for a search warrant made essential by the provisions of the Fourth Amendment to the. Constitution for the searching of persons or places, namely: That a search warrant should not issue (1) but upon probable cause; (2) supported by affidavit; (3) that if a person is to .be searched and property on his person seized, the person to be searched shall be named or described and the thing to be searched for and seized particularly described; and (4) that, if a place is to be searched, the place shall be particularly described as well as the thing there to be searched for and seized. Neither the statute nor the provisions of the Constitution un dertake to state how or in what manner the place to be searched shall be particularly described, but it is evident that the description must be such as to enable the officer readily to find it. Sections 6 and 10, title 11, of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496%f, 1049614D give support to this construction." }, { "docid": "16471381", "title": "", "text": "BRYAN, Circuit Judge. The plaintiff in error filed a petition, praying that a search warrant under which his home was searched be quashed, and that a quantity of intoxicating liquor which was seized thereunder be returned to him. The search warrant was defective, in that it was not supported by a charge that the dwelling was being used for the unlawful sale of liquor. Section 25, National Prohibition Act (Comp. St. Ann. Supp. 1923, §■ lOlSSi/om). The District Court quashed the warrant, but refused to order the return of the liquor, which is described in the petition as 9 cases and 35 bottles of “home brew” beer, 333 sacks, 18 cases, and 169 quarts of assorted liquors, and 129 gallons of alcohol, besides a half pint of caramel coloring, 2 glass funnels, and a patent corker. The plaintiff in error does not allege that he was the owner of the liquor; but nevertheless he assigns error upon the refusal of the court to order that it be returned to him, and contends that his rights under the Fourth and Fifth Amendments to the Constitution have been violated. The government moves to dismiss the writ of error on the ground that the judgment of the District Court is not final. So far as the record before us discloses, this is an independent action, and is not incidental to a criminal prosecution or other original proceeding. The motion to dismiss is therefore denied. The cases relied, on by the plaintiff in error are Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, and Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. We are of opinion that none of" }, { "docid": "23553639", "title": "", "text": "particularly describing the property and the place to be searched.” Comp. St. 1918, Comp. St. Ann. Supp.-1919, § 10496%e. “The affidavits or depositions must set forth! the facts tending to establish the grounds of the application or probable cause for believing that they exist.” Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 104961/46. The probable cause, indispensable to the lawful issue of a search warrant under these sections of the act of Congress, is the legal conclusion of the magistrate from the facts stated in the affidavits, depositions, or testimony. Without a statement in those affidavits, depositions, or testimony of facts sufficient to sustain such a conclusion, the search warrant may not lawfully issue. Tho statement of the sustaining facts showing probable cause is as indispensable to the lawful issue of a search warrant as the legal conclusion that such cause exists. When the facts on which the magistrate’s conclusion of probable cause is based are not stated in the affidavits, depositions, or testimony on w'hich that conclusion rests, the warrant cannot be sustained, because there is no criterion by which a court can determine whether or not there were facts showing probable cause, and the unavoidable legal conclusion is that there were not. United States v. Kaplan (D. C.) 286 F. 963, 969; United States v. Harnich (D. C.) 289 F. 256, 258, 259; United States v. Kelih (D. C.) 272 F. 484, 488; Ripper v. United States, 178 F. 24, 26, 101 C. C. A. 152; United States v. Pitotto (D. C.) 267 F. 603, 604; Veeder v. United States, 252 P. 414, 416, 418, 420, 164 C. C. A. 338; Central Consumers’ Co. v. Jamos (D. C.) 278 P. 249, 253; United States v. Ray & Schultz (D. C.) 275 F. 3004, 1005, 1006. The facts stated in the verified complaint of Mr. Benson, on which this search warrant was issued, were: “That he has good reason to believe, and does believe, that intoxicating liquor is being sold, and the National Prohibition Act is being violated,” by the defendant at the clothing store located at 705" }, { "docid": "16463734", "title": "", "text": "complaint was made. The Act of June 15, 1917 (40 Stat. p. 228), pursuant to the provisions of which search warrants are to be issued in this character of cases, provides (title 11, § 6 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496%f]): “If the judge * * * is thereupon satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office,” etc. There is no requirement that the satisfaction of the officer shall be either preserved or expressed in writing or in the warrant. His satisfaction may be presumed from the fact of the issuance of the warrant. We are of opinion that the objection to the search warrant is not well taken. The court was not obligated to stop the trial for the purpose of inquiring into the method of obtaining the evidence. Adams v. N. Y., 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Haywood v. U. S. (C. C. A.) 268 Fed., 795, and cases cited on page 803; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647. The question as to the validity of the search warrant does not arise as to the sale count. Judgment is affirmed. <@=5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes" }, { "docid": "7995800", "title": "", "text": "BREWSTER, District Judge. In this case the defendant was indicted for the possession of intoxicating liquors in violation of the National Prohibition Act. 41 Stat. 305, tit. 2 (Comp. St. Ann. Supp. 1923, §§ 10138%-10138%z). There was a search of the defendant’s premises, and a seizure of a quantity of liquor found thereon, by virtue of a search warrant issued by a United States commissioner. The ground on which the search warrant was issued was controverted, and in accord- . anee with the provisions of section 15 of the Act of June 15, 1917 (40 Stat. 228; Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496%o) the commissioner proceeded to take testimony in relation thereto, and, after consideration thereof, he found that there was no probable cause for believing the existence of the ground on which the warrant was issued and therefore quashed it. The commissioner has certified up to this court the testimony taken by him and reduced to writing and signed by the witnesses, as required by the provisions of said section 15. In view of Francis Drug Co. v. Potter (D. C.) 275 Fed. 615, this course would seem to be a proper one to be pursued by one who desires to controvert the ground upon which the warrant was issued and to enforce his rights in a case where the warrant has been found to have been issued without probable cause. The defendant now moves in this court that all evidence obtained by the federal prohibition agents, acting under and by virtue of said warrant, be excluded at the trial upon said indictment, and for a return of the liquor seized. The warrant could not have been issued but upon probable cause. The proposition that evidence must be excluded which has been obtained upon a search warrant issued without probable cause has been so recently, and so frequently, stated that citations are unnecessary. It is equally well settled that the property seized on an unlawful warrant must be returned. U. S. v. Vigneaux (D. C.) 288 Fed. 977, and cases cited. The defendant contends that" }, { "docid": "6226570", "title": "", "text": "after its date and execution, and until after an information had been filed in the United States District Court, raises a serious question as to the power of the commissioner to act further in the matter. Defendants had certainly been afforded ample time within which to notify the commissioner and the district attorney that the grounds on which the search warrant was based were disputed. It is wholly inconsistent with recognized rules of legal procedure that a commissioner, after a ease has been removed from his jurisdiction, can determine what evidence may and what maj not be presented in court. The information charging defendants- with a violation of the National Prohibition Act had been filed in court. The filing of that document was directed by the court after reading the affidavit of Prohibition Agent Smith, in which it was stated that in company with Agents Robb, Gloss, and Charlton he had searched said premises December 16, 1923, and had found therein whisky, wine, and beer. This affidavit was the evidence on which the court acted. Can it be contended that the commissioner, after the information had thus been filed, had the power to suppress the proof on which it was based, and on which the court acted? If the commissioner has such power, when does the right to exercise it cease? Can he thus act during or after the trial on the information in the District Court? These questions, answer themselves. A person from whose possession property is taken in execution of a search warrant has the undoubted right to avail himself of the remedies provided in sections 15 and 16, title 11, of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496¼o, 10496¼p), in so far as they are not modified or withdrawn by section 25, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m), provided he acts with reasonable diligence, and before the court takes jurisdiction. The objection that the officers designated in and to whom the search warrant was addressed were not authorized under the law to execute" }, { "docid": "2223805", "title": "", "text": "of our Constitution and this court (Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, in Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights-guaranteed under the Constitution by these two amendments. The effect, of the decisions cited is: That such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property’; that they are to be regarded as of the very essence of con-, stitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these-amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.” Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647. Congress has, of course, never attempted to enlarge these constitutional limitations. It has, however, from time to time, prescribed the methods by which search alone, or both search and seizure, may he made—doubtless influenced by its conception of what would be justifiable and proper means of enforcing the particular statute then being enacted. Search and seizure warrants in prohibition cases are thus authorized, and the method of their issuance, their execution, and their return, is plainly set out in section 25, title 2, National Prohibition Act (41 Stat. 315) together with title 11, Act of June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496J4a-10496J4v). The warrant at bar" }, { "docid": "22821646", "title": "", "text": "therein were founded on evidence obtained by unlawful search and seizure, and asking a return of the property. The court refused to quash the information, and refused to order the return of the property. Beliance for evidence as to the intoxicating liquor was the seized liquor. There was no warrant to search the person of plaintiff in error, nor was there a warrant for his arrest. No question is raised as to the authority of the prohibition agents to make the arrest, and the only question presented is the alleged violation of the Fourth Amendment to the Constitution by the seizure of property in the possession of plaintiff in error, and the subsequent use thereof as evidence in claimed violation of the Fifth Amendment to the Constitution. The proposition is not open to argument that evidence obtained by an unconstitutional use of search warrants is not admissible, and convictions of crime so obtained must be reversed. Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654; Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. It is argued by plaintiff in error that the search and seizure were not made pursuant to, or in compliance with, any provision of the National Prohibition Act; that section 26 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%mm), providing, “When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or aircraft, or.other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law,” does not apply to transportation by one on his person, citing in support thereof United States v. Crossen (D. C.) 264 Fed. 459. Said section 26 applies apparently only to liquor being transported in “any wagon, buggy, automobile, water or aircraft, or other vehicle.” No" }, { "docid": "16471382", "title": "", "text": "under the Fourth and Fifth Amendments to the Constitution have been violated. The government moves to dismiss the writ of error on the ground that the judgment of the District Court is not final. So far as the record before us discloses, this is an independent action, and is not incidental to a criminal prosecution or other original proceeding. The motion to dismiss is therefore denied. The cases relied, on by the plaintiff in error are Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, and Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. We are of opinion that none of these cases sustains the assignment of error. All except the one last cited deal with the seizure of private books and papers. In the Boyd Case a clear distinction is made between such a seizure and the seizure of stolen or forfeited goods, or things which it is unlawful for a person to have in his possession, such’ as counterfeit coins, lottery tickets, and gambling implements. Eiquor illegally possessed is not to be treated as are articles which may be lawfully possessed. It is true that there may be lawful possession of liquor, but the burden is upon him who claims that his possession is lawful. Section 33, National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%t). The petition in this case is almost a confession that plaintiff in error’s possession was unlawful. The Amos Case has to do with removing and concealing whisky on which the internal revenue tax had not been paid, apparently in violation of R. S. § 3296 (Comp. St. § 6038), at a time when distilled spirits, were recognized" }, { "docid": "15082715", "title": "", "text": "they were illegally used, and that no provision of law permitted the seizure of the records;- that such seizure as was made was in violation of the Fourth and Fifth Amendments of the Constitution; that it was not issued in accordance with the provisions of Espionage Act, tit. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212Í, 10496i/4a-10496%v). On hearing this motion, the commissioner took testimony and rendered a decision sustaining the motion. An application was then made to the District Judge'for an order directing a return of the books, papers, and memoranda, and all other documents thus seized, and to suppress any information received therefrom. The defendant\" in error opposed upon the ground that it desired the records as evidence upon the trial of a conspiracy charge. The court reversed the order of the commissioner, reinstated the search warrant, and ordered the government to retain the property seized as evidence against the alleged conspirators. It is the order thereon that the plaintiff in error' seeks to review by this writ. It is now sought to obtain a release of the records thus seized,, but not the liquor. The National Prohibition Act (Comp. St. Ann. Supp. 1923, § ÍOISS^ et seq.) provides for the issuance of a search warrant under the Espionage Act of June 15, 1917 (40 Stat. 228 et seq.), in so far as it is applicable to the National Prohibition Act, by a judge of the United States District Court or by a United States commissioner wherein the property sought is' located. Section 3 provides that “a search warrant cannot be issued but upon probable cause, supported -by affidavit, naming or describing the person and particularly describing the property and the place to be searched.” Provision is made by section 15 for the examination of witnesses under oath, and requiring their affidavits or depositions to be reduced to writing and subscribed by the persons making them. It provides for the issuance of the warrant and its delivery to a person to execute the same, and the delivery of a copy and receipt when the property" }, { "docid": "3286449", "title": "", "text": "dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, .rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever.” It means “the gain derived from capital, from labor, or from both combined.” Eisner v. Macomber, 40 S. Ct. 189, 252 U. S. 189, 64 L. Ed. 521, 9 A. L. R. 1570. Did Congress intend anything other than legitimate labor, as opposed to criminal effort in labor, in imposing a tax from which it was to secure revenue to pay the obligations of the government? No property right exists in whisky that might be termed capital. Title 2, § 25 (Comp. St. Ann. Supp. 1923, § 10138%m). Reasonable doubt as to what constitutes income must be resolved against the government. United States v. Merriam, 44 S. Ct. 69, 263 U. S. 179, 68 L. Ed. 240, 29 A. L. R. 1547. The law requires a return under oath by the taxpayer. Section 223, 42 Stat. 250' (Comp. St. Ann. Supp. 1923, § 6336%kk). The taxpayer must keep a record, and render under oath his statement and return and comply with such regulations as the Commissioner, with the approval of the Secretary of the Treasury, may from time to time prescribe. Act 1921, § 1300,42 Stat. 308 (Comp. St. Ann.' Supp. 1923, § 6371%b). The Commissioner may examine under oath any person rendering a return. Aet 1918, § 1305, 40 Stat. 1142 (Comp. St. Ann. Supp. 1919, § 6371%e).' In the ease of criminal gains, a taxpayer may refuse to incriminate himself, ¿nd the government is powerless in securing the detailed information of his return; for the Fifth Amendment of the Constitution means' that a person shall not be compelled, when acting as a witness in any investigation, to give testimony that might tend to show ■-that he had committed a crime. Counselman v. Hitchcock, 12 S. Ct. 195, 142 U. S. 547, 39 L. Ed. 1110. The protection of the" }, { "docid": "2223806", "title": "", "text": "and to due process of law. It has been repeatedly decided that these-amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.” Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647. Congress has, of course, never attempted to enlarge these constitutional limitations. It has, however, from time to time, prescribed the methods by which search alone, or both search and seizure, may he made—doubtless influenced by its conception of what would be justifiable and proper means of enforcing the particular statute then being enacted. Search and seizure warrants in prohibition cases are thus authorized, and the method of their issuance, their execution, and their return, is plainly set out in section 25, title 2, National Prohibition Act (41 Stat. 315) together with title 11, Act of June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496J4a-10496J4v). The warrant at bar must comply with all the provisions of these congressional directions, or it must be held invalid, and the evidence secured thereunder held inadmissible, against the petitioner. Let us read the law: “A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. * 15 * No search warrant shall issue to search _ any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house.”. Section 25, title! 2, National Prohibition Act. “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the. person and particularly describing the property and the place to be searched. “The judge or commissioner must, before issuing the warrant, examine on" }, { "docid": "21520384", "title": "", "text": "affidavit. It is thus apparent from the record that the only foundation for the search warrant was the affidavit of Beazell, and that, instead of stating facts, it stated merely hearsay and conclusions. Section 25 of title 2 of the National Prohibition Act (Comp. St. Ann. Snpp. 1923, § 10138%m) provides amongst other things: “A search warrant may issue as provided in title XI of Public Law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917.” This is commonly known as the Esrpionago Act (40 Stat. 228). Section 3 of that title reads: “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched.” Comp, St. 1918, Comp. St. Ann. Supp. 1919, § 10496]4e. Section 4 reads: “The judge* or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in WTitmg and cause them to be subscribed by the parties making them.” Section 1049f>%<i Section 5 reads: “The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.” Section 10496%e. These statutory provisions have been frequently eonstrued. The evidence before tho judge or commissioner who issues the search warrant must be such as would bo admissible on trial. Giles v. United States (C. C. A.) 284 F. 208, 214. Tho commissioner must he furnished with facts — not suspicions, beliefs, or surmises. Veeder v. United States, 252 F. 414, 164 C. C. A. 338. A mere eonelusion is insufficient either in tho affidavit or the complaint. United States v. Kaplan (D. C.) 286 F. 963, 969. Applying the foregoing principles to the facts in the instant case, we are led to the conclusion that the search warrant was issued without any showing of facts tending to .establish probable cause. This conclusion seems to bé conceded by defendant in error, if the search warrant and affidavit are to be tested by the" }, { "docid": "16448069", "title": "", "text": "Digests & Indexes ROSS, Circuit Judge (dissenting). I respectfully dissent. The home of every person in this country, whether it be a hut or a palace, and whether it embraces only a few feet of ground, or as many acres, is secure against invasion without his consent, unless made under and by virtue of a legal warrant of search and seizure. And this because of the Fourth and Fifth Amendments of the Constitution of the United States and of numerous decisions of the Supreme Court, the first of which amendments declares that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” and the second of which declares, ■ among other things, that no person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” See particularly Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. The sacredness of the home and the other constitutional rights so-secured to the citizen are, as I read and construe the national prohibition legislation, both original and supplemental, observed and respected. I am unable to see any evidence, direct or by implication, in section 6 of the act supplemental to the National Prohibition Act (42 Stat. 222, 223 [Comp. St. Ann. Supp. 1923, § 10184a]), changing the person or persons to whom" }, { "docid": "13304602", "title": "", "text": "as to probable cause or in respect to the property to be seized. The Fourth Amendment provides that “no war-, rants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In Byars v. United States, 47 S. Ct. 248, 71 L. Ed.-, Mr. Justice Sutherland said:' “The information upon which the search warrant was issued states only that affiant ‘has good reason to believe and does believe the defendant has in his possession’ such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States. Chapter 30, title 11, §§ 3-6, 40 Stat. 217, 228, 229 (Comp. St. §§ 10496%c-10496]/4f); chapter 85, title 2, § 2, 41 Stat. 305, 308 (Comp. St. § 10138%a). See Ripper v. United States (C. C. A.) 178 F. 24, 26; United States v. Borkowski (D. C.) 268 F. 408, 410, 411; United States v. Kelly (D. C.) 277 F. 485, 486-489. * * * Nor is it material that the search was successful in revealing evidence of a violation of a federal statute. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed. Weeks v. United States, 232 U. S. 383, 393, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U. S. 298, 306, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391, 40 S. Ct. 182, 64 L. Ed. 319; Agnello v. United" }, { "docid": "6794806", "title": "", "text": "rights are declared-to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property’; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or. ‘gradual depreciation’ of the rights secured by. them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.” • Counsel for the United States argue that the search and seizure in this ease were reasonable and the rulings of the court below right, and they cite in support of their contention, and seem to rely chiefly upon, Lambert v. United States (C. C. A.) 282 F. 413, 417; Elrod v. Moss (C. C. A.) 278 F. 123, 130; Garske v. United States (C. C. A.) 1 F.(2d) 620; Park v. United States (C. C. A.) 294 F. 776, 784; Gouled v. United States, 255 U. S. 298, 310, 312, 41 S. Ct. 261, 65 L. Ed. 647; O’Connor v. United States (D. C.) 281 F. 396; United States v. Borkowski (D. C.) 268 F. 408. We- have read the opinions in these cases, and, with one or two exceptions which we cannot follow, they do not in Our opinion support the positions of counsel. Lambert v. United States, Elrod v. Moss, and Park v. United States were eases in which intoxicating liquor was seized in and taken by the officers from automobiles and their searches and seizures were sustained under section 26 of title 2 of the National Prohibition Act, 41 Stat. 305, 315 (Comp. St. Ann. Supp. 1923, § 10138%mm), to the effect that “when the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law," }, { "docid": "6794807", "title": "", "text": "123, 130; Garske v. United States (C. C. A.) 1 F.(2d) 620; Park v. United States (C. C. A.) 294 F. 776, 784; Gouled v. United States, 255 U. S. 298, 310, 312, 41 S. Ct. 261, 65 L. Ed. 647; O’Connor v. United States (D. C.) 281 F. 396; United States v. Borkowski (D. C.) 268 F. 408. We- have read the opinions in these cases, and, with one or two exceptions which we cannot follow, they do not in Our opinion support the positions of counsel. Lambert v. United States, Elrod v. Moss, and Park v. United States were eases in which intoxicating liquor was seized in and taken by the officers from automobiles and their searches and seizures were sustained under section 26 of title 2 of the National Prohibition Act, 41 Stat. 305, 315 (Comp. St. Ann. Supp. 1923, § 10138%mm), to the effect that “when the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.” In Carroll et al. v. United States, 267 U. S. 132, 149, 45 S. Ct. 280, 283 (69 L. Ed. 543, 39 A. L. R. .790), the Supreme Court held that under this statute, “if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” That court then proceeded through four pages of the opinion to demonstrate the fact that this ruling, applicable to search and seizure by government officers of automobiles, and other moving vehicles transporting contraband liquor, is not the ruling applicable to the search of a store, dwelling house or other structure, or the seizure of articles therein. Closing" } ]

[ { "docid": "1434114", "title": "", "text": "of June 1981 from J. P. Mirabella to W. T. Hogan. Thirty-nine of forty-one state agencies responding to a law review survey reached the same conclusion. Note, AFDC Work-Incentive Anomaly, 65 Cornell L.Rev. 934, 935 n. 9 (1980). We must respect Health and Human Services’ interpretation of its own governing statute — assuming such to be Congress’s intent where the legal issue is minor, interstitial, and imbued with administrative history and complexity. Social Security Board v. Nierotko, 327 U.S. 358, 368-69, 66 S.Ct. 637, 642-643, 90 L.Ed. 718 (1946); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Constance v. Secretary of Health and Human Services, 672 F.2d at 995. The Secretary’s interpretation (and that of the majority of the state agencies) is consistent with longstanding administrative practice and congressional use of the relevant terms. The statute is highly technical. Congress gave no explicit indication of its views on this problem. Under these circumstances, to give weight to the agencies’ interpretation of the statute promotes its coherent and consistent administration; to hold to the contrary would risk disruption, not only here but elsewhere in the program where similar words are used in other rules and regulations. The existence of good policy reasons for extending the EID to the income of nonneedy caretakers does not provide a “compelling indication” that the agencies’ interpretation of the statute is wrong. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). See also Schweiker v. Hogan, - U.S. -,-, 102 S.Ct. 2597, 2608, 73 L.Ed.2d 227 (1982). Ill The sole remaining question is whether the amendment of the Social Security Act in July 1981, Omnibus Budget and Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 842, requires a different result. Congress reenacted the subsections at issue here without significant change in their language. While Congress changed surrounding sections, we do not believe those changes showed an intent to change the law here. To be more specific, in 1981 Congress changed two other “disregards.” It sought to standardize a “disregard”" } ]

[ { "docid": "1921989", "title": "", "text": "and must therefore be reviewed judicially under prior law, which did not permit review in a Court of Appeals. II. The Board’s interpretation is consistent with the language of the savings clause: “Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.” Pub.L. No. 95-454, § 902(b), 92 Stat. 1111 (5 U.S.C.A. § 1101 note (Supp.1979)) (emphasis added). Moreover, the interpretation reaches a logical result. If prior law is to govern the administrative stage of a proceeding, it should govern judicial review as well. To conclude otherwise may produce incongruous results or even preclude judicial review entirely for some employees. For example, the Act’s thirty-day statute of limitation, 5 U.S.C.A. § 7703(b)(1) (Supp.1979), may foreclose review for employees whose personnel actions could have been reviewed under the six-year limitation period of prior law, 28 U.S.C. §§ 2401, 2501 (1976). The Board’s interpretation of the savings clause should be respected, in accordance with the judicial deference usually accorded to the interpretation made by the agency charged with a statute’s administration. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The Supreme Court recently reaffirmed this principle with its reminder that courts “are bound by the ‘principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.’ ” Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 969 n.25, 59 L.Ed.2d 194 (1979), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). When an agency regulation is reasonably related to the purposes of the enabling legislation, its validity is to be sustained. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652,1660, 36 L.Ed.2d 318 (1973). The Board’s regulation accomplishes the purpose of the savings clause: to ensure that all personnel actions initiated prior to January 11, 1979 are decided under prior law. It is therefore valid. Accordingly, the personnel actions in these cases are to be reviewed under prior" }, { "docid": "355387", "title": "", "text": "45-6, 70 L.Ed.2d 23 (1981) (inquiry is “whether the Commission’s construction was ‘sufficiently reasonable’ to be accepted by a reviewing court”); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980) (Federal Reserve Board’s interpretation of its statute will control unless “demonstrably irrational”); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979) (if Labor Board’s construction of its statute is “reasonably defensible,” it should not be rejected); Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (agency’s construction should be followed “unless there are compelling indications that it is wrong”). See also Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). A different line of Supreme Court cases, however, cautions us that “deference” is not complete; sometimes a different, and more independent judicial attitude is appropriate. Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, — U.S. -, -, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (court reviewing agency interpretation of law should not “slip into judicial inertia” or “rubberstamp” the agency); American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1964) (deference owed to agency “cannot be allowed to slip into a judicial inertia”); NLRB v. Brown Food Store, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1964) (reviewing courts “are not obliged to stand aside and rubber stamp” the agency); NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 499-500, 80 S.Ct. 419, 432-33, 4 L.Ed.2d 454 (1960) (recognition of administrative power “cannot exclude all judicial review” of agency’s actions); see also NLRB v. Highland Park Manufacturing Co., 341 U.S. 322, 325-26, 71 S.Ct. 758, 760-61, 95 L.Ed. 969 (1951); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 481, 88 L.Ed. 635 (1944). Moreover, the Administrative Procedure Act states that “the reviewing court,” not the agency, “shall decide all relevant questions of law.” 5 U.S.C. § 706. In" }, { "docid": "15459", "title": "", "text": "Safety Report], . The 1978 IAEA Mission concluded that the danger of earthquakes to PNPP-1 merited further investigation and analysis. IAEA 1978 Safety Report, supra note 11, n.l at 3-6, 4. . 42 U.S.C. § 2133(d) (1976). . See, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 433-134, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165 (1971); United States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27 L.Ed.2d 9, 12-13 (1970); Udali v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616, 619 (1965). . Power Reactor Dev. Co. v. Electrical Workers Int’l Union, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, 932 (1961), quoting Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796, 807 (1933), in turn quoted in Udali v. Tallman, supra note 17, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625. . Unemployment Compensation Comm’n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136, 145 (1946), quoted in Udali v. Tallman, supra note 17, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625. . Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, 384 (1969) (footnote omitted). Accord, New York Dep’t of Social Serv. v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516-2517, 37 L.Ed.2d 688, 699 (1973); Columbia Broadcasting Sys. v. Democratic Nat’l Comm., 412 U.S. 94, 121, 93 S.Ct. 2080, 2096, 36 L.Ed.2d 772, 794 (1973). This is a canon of statutory construction commanded by the Supreme Court; it is not “simple deference to the agency’s interpretation.” Wilkey Op., note 63. An additional reason for deference to NRC here is that the agency is required to keep Congress fully informed of its policies. 22 U.S.C. § 3282 (Supp. II 1978), and NRC’s decision in the instant licensing proceeding is based on consistent policies developed over the last several years that Congress has not seen fit to alter. See Kay v. FCC, 143 U.S.App.D.C." }, { "docid": "13466437", "title": "", "text": "Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)); Blum v. Bacon, 457 U.S. 132, 142, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982) (“In light of the strong support in the legislative history for the Secretary’s conclusion ... we find such deference particularly appropriate in this case.”); Schweiker v. Hogan, 457 U.S. 569, 586, 102 S.Ct. 2597, 2607, 73 L.Ed.2d 227 (1982) (The legislative history did not justify a departure from the literal language of the Social Security Act.). In light of the repeated and longstanding pronouncements on the issue of deference when an agency’s decision is at odds with the language, purpose, and history of a statute, we must conclude that in the instant case, deference should not be accorded to the Secretary’s interpretation. The language, purpose, and history of the AFDC statute, as well as the inconsistent regulations, proposals, and statements by the agency, all counsel against deferring to the agency in this case. Deference is not appropriate when an agency’s interpretation has radically and repeatedly alternated between polar extremes and which in the time frame of the instant lawsuit had settled on a particular interpretation which defies common sense. The agency has abused its discretion in promulgating a regulation which is directly contrary to the congressional mandate of the statute. Under the guise of interpretation, the Secretary has effected a fundamental change in the purpose of the statute. VI. MULTIPLE DISREGARDS Once it is acknowledged that § 657(b)(1) permits multiple pass-through payments, there can be no question that it also requires disregarding each of those multiple pass-throughs in calculating an AFDC family’s benefits. The only way to make sense of the statute as a whole, is that multiple payments and multiple disregards must be seen as inextricably intertwined. Any other interpretation would defeat the very purpose of the statute and be nonsensical. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982) (“[Interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose" }, { "docid": "3559261", "title": "", "text": "is strengthened by the long-standing interpretation both the Postal Service and the Commission have given the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984) (Marshall and Rehnquist, JJ., not participating in the consideration or decision, and O’Connor, J., not participating in the decision). In Chevron, the Supreme Court stated: We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer ... “whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting [the] matters [at issue].” Id. at 844, 104 S.Ct. at 2782 (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). The Supreme Court has also held that an agency’s view of its own statutory jurisdiction may be entitled to deference under Chevron. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844, 106 S.Ct. 3245, 3253, 92 L.Ed.2d 675 (1986) (citing Chevron, 467 U.S. at 844-45, 104 S.Ct. at 2782-83; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801-02, 23 L.Ed.2d 371 (1969)). The deference we are instructed to give to an agency’s view of the scope of the statute that governs its activities is heightened when the interpretation is made contemporaneously with the statute’s implementation. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). The Postal Service’s construction of section 407(a) to grant itself the power to establish international postage rates is analogous to the Commodity Futures Trading Commission’s assertion of jurisdiction over state-law counterclaims made in the course of reparations proceedings under the Commodity Exchange Act. Cf. Schor, 478 U.S. at 841-47, 106 S.Ct. at 3251-55. In Schor, the regulatory body was construing the provisions of the act that controlled its administrative powers. Compare id. at 836, 106 S.Ct." }, { "docid": "3712150", "title": "", "text": "such ends. If the Secretary’s understanding of the statute is correct, then this is not a case of a recipient’s need being “artificially depreciated,” as the availability principle forbids. Rather, it is a case of Congress exercising its power to redirect the focus of AFDC need determinations. Cf Davis v. Lukhard, 788 F.2d 973, 979-80 (4th Cir.), cert. denied sub nom. Staton v. Lukhard, — U.S.-, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986). Thus, the central issue remains whether the Secretary’s approach is consistent with the statutory language and legislative history of section 602(a)(38). The statute and its legislative history indicate that Congress intended that all coresident siblings of a dependent child applying for AFDC and their income, including Title II Social Security benefits and child support, should be counted in determining need and thus eligibility for AFDC assistance. An agency’s construction of a statute under its enforcement jurisdiction is generally accorded deference if the construction “has a reasonable basis in law and is consistent with the congressional policy behind the statute.” International Nutrition, Inc. v. United States Dep’t of Health & Human Seros. 676 F.2d 338, 342 (8th Cir.1982); see Connecticut Dep’t of Income Maintenance v. Heckler, 471 U.S. 524, 532, 105 S.Ct. 2210, 2215, 85 L.Ed.2d 577 (1985) (agency’s construction need not be the only reasonable one); Volkswagenwerk Aktiengesellschaft v. Federal Maritime Comm’n, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 499-500 (8th Cir.), cert. denied, — U.S.-, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986). Although it is persuasive that the Secretary had at least some hand in the genesis of this statute, see International Nutrition, 676 F.2d at 342 (citing Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969)), the mere fact that he takes a position on its interpretation does not make the interpretation unassailable. Phillips v. Noot, 728 F.2d 1175, 1178 (8th Cir.1984). The Secretary argues that Congress, by passing section 602(a)(38), intended to create a legislative presumption of availability of income as to the individual" }, { "docid": "11121504", "title": "", "text": "a method of cost allocation without conforming to the prescribed procedures; and (4) that power sales contract general provision 42(c) is void and unenforceable as it binds BPA to ignore future congressional modification of federal law governing priorities in access to BPA power. Section 9(e)(5) of the Regional Act provides that “[s]uits to challenge ... final actions ... taken pursuant to [the Act] ... shall be filed in the United States court of appeals for the region.” 16 U.S.C. § 839f(e)(5). The contract offers challenged here constitute “final actions” within the meaning of section 9(e)(5). Central Lincoln Peoples’ Utility District v. Johnson, 686 F.2d 708, 710 (9th Cir.1982), rev’d on other grounds, sub nom. Aluminum Company of America v. Central Lincoln People’s Utility District, 467 U.S. 380, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984). BPA’s interpretation of the Regional Act “is to be given great weight.” Aluminum Company, 104 S.Ct. at 2479-80. The regulated subject is technical and complex. BPA has longstanding expertise in the area and participated in drafting the Regional Act. See Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969). The BPA construction of the Regional Act thus constitutes “a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are untried and new.” Udall v. Tailman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). To uphold the challenged contract provisions, we need not find that BPA’s construction of the relevant provisions of the Regional Act is the only reasonable construction of said provisions or even that said construction is the one we would have adopted had construction been committed to the judiciary in the first instance. Aluminum Company, 104 S.Ct. at 2480; American Paper Institute, Inc. v. American Electric Power Corp., 461 U.S. 402, 422-23, 103 S.Ct. 1921, 1933, 76 L.Ed.2d 22 (1983). We need only conclude that BPA’s interpretation of the Regional Act, as reflected in the challenged contract provisions, is reasonable. Aluminum Company, 104 S.Ct. at" }, { "docid": "14826711", "title": "", "text": "made pursuant to statutory authority, the reviewing court is guided by the • venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong .... Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). See also First Multifund for Daily Income, Inc. v. United States, 602 F.2d 332, 336 (Ct.Cl.1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980). A similar standard has been established for the review of an agency’s interpretation of its own regulations, that is, to sustain an administrative interpretation of a regulation issued by it, it is not necessary to find that the agency construction is the only reasonable one, or even that it is the result a court would have reached had the question arisen in the first instance in judicial proceedings. * * * Where administrative control has been authorized by Congress, the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body. Nabisco, Inc. v. United States, 599 F.2d 415, 419 (Ct.Cl.1979). See also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). And, when the Secretary’s determination involves the exercise of administrative discretion, the review court must defer to his judgment as to where to draw the lines. The Court of Claims has previously observed in Nabisco, supra, at 422, that [a]ny such line would be open to criticism. This line-drawing, however, is precisely the task for which administrative agencies, with their special expertise and experience, are peculiarly suited to perform effectively; and it is in deference to that experience and judgment that courts refuse to disturb such determinations except when they are shown to be arbitrary. Here, the indicia chosen by the Secretary seem rational and appropriate, and afford a reasonable basis for the difference in treatment. * * * Even if the court itself might have drawn a different line had the matter been left to" }, { "docid": "22695001", "title": "", "text": "affirmative preliminary determination, and (assuming an ITA preliminary LTFV determination) a subsequent full investigation, whenever information accompanying a petition raises the mere “possibility” of material injury, regardless of any contrary evidence. The difficulty is two-fold: (1) the statutory standard, as the court recognized, is “reasonable indication”, not “possibility”; and (2) the court’s order that ITC must not weigh the evidence in conducting a preliminary injury investigation is not in accord with the intent of Congress. III. Standard of Review A reviewing court must accord substantial weight to an agency’s interpretation of a statute it administers. Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51, 98 S.Ct. 2441, 2445-46, 57 L.Ed.2d 337 (1978); Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Though a court may reject an agency interpretation that contravenes clearly discernible legislative intent, its role when that intent is not contravened is to determine whether the agency’s interpretation is “sufficiently reasonable”. Federal Election Committee v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981); see Melamine Chemicals, Inc. v. United States, 732 F.2d 924, 928 (Fed.Cir.1984). The agency’s interpretation need not be the only reasonable construction or the one the court would adopt had the question initially arisen in a judicial proceeding. Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984); see Consumer Products Division, SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039 (Fed.Cir.1985). Applying those guidelines, we reject the court’s imposition of the mere possibility standard. One writing on a clean slate might find the court’s reasoning fully acceptable, but a “court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Chevron, U.S.A., supra, 467 U.S. at 843, 104 S.Ct. at 2782. Since the enactment of the 1974 Act, ITC has consistently viewed the statutory “reasonable indication” standard as one requiring that it issue a negative determination, as above indicated, only when (1)" }, { "docid": "12121060", "title": "", "text": "that tries to chart a true course to the Act’s purpose embarks on a voyage without a compass when it disregards the agency’s views.” Ford Motor Co. v. Milhollin, 444 U.S. 555, 568, 100 S.Ct. 790, 798, 63 L.Ed.2d 22 (1980). The Supreme Court has consistently advised that courts must adhere to the “venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong....” Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). Furthermore, we only must determine whether the agency’s interpretation is reasonable. In making this determination, we “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding ... [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 11 and 844, 104 S.Ct. 2778, 2782 n. 11 and 2782, 81 L.Ed.2d 694 (1984). Finally, we must defer not only to the regulations promulgated by administrative agencies charged with the enforcement and interpretation of ERISA and the Internal Revenue Code but also, when a regulation can be interpreted in more than one plausible way, we must recognize and defer to the agencies’ interpretation of the regulation. Ford Motor Co., 444 U.S. at 560, 100 S.Ct. at 794 (where statute and regulations in consumer credit area were susceptible to divergent interpretations, the court deferred to opinion letters and consumer advice publications which set forth the interpretation of the regulation by the appropriate administrative agency); Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S.Ct. 2266, 2274, 68 L.Ed.2d 783 (1981) (“absent some obvious repugnance to the statute, the [agencies’] regulation implementing this legislation should be accepted by the courts, as should the [agencies’] interpretation of its own regulation.”)." }, { "docid": "5498678", "title": "", "text": "§ 315(a) but made no change whatsoever in the “equal opportunities” provisions. Such action under such circumstances while not conclusive, carries some persuasion that Congress adopted the rules, regulations and rulings of the FCC on this point as being, in its opinion, a satisfactory interpretation of the statute. . Jones v. Liberty Glass Co., 332 U.S. 524, 533-534, 68 S.Ct. 229, 92 L.Ed. 142 (1947). . Boys Market, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241-242, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Thompson v. Clifford, 132 U.S.App.D.C. 351, 361-362, 408 F.2d 154, 164-165 (1968); Fleming v. Moberly Milk Prod. Co., 82 U.S.App.D.C. 16, 27, 160 F.2d 259, 270, cert. dismissed, 331 U.S. 786, 67 S.Ct. 1304, 91 L.Ed. 1816 (1947); see Zuber v. Allen, 396 U.S. 168, 192-194, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969). . Udall v. Tallman, 380 U.S. 1, 17-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Power Reactor Development Co. v. I.U.E., 367 U.S. 396, 413-414, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961); Scharfeld v. Richardson, 76 U.S.App.D.C. 378, 380, 133 F.2d 340, 342 (1942); see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Snyder v. Harris, 394 U.S. 332, 338-340, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). . On February 4, 1970, Henry Benhase filed a declaration of intent to be a write-in candidate in the primary for nomination of the AIP Party for the U.S. Senate. He paid the $50 filing fee on April 1, 1970 and hence is considered to be a “write-in candidate” from April 1st. That petitioner was unopposed was generally considered to be the case; he so described himself in his letter of April 21st to a number of broadcast stations and five of the six stations that replied referred to his running unopposed in the AIP primary. The record here does not indicate that petitioner ever corrected their misunderstanding, if having write-in opposition makes one opposed. . 47 U.S.O. §§ 307(a), 309(a) (1964); Red Lion Broadcasting Co. v. FCC, supra note 32. . Report on Editorializing" }, { "docid": "3712151", "title": "", "text": "v. United States Dep’t of Health & Human Seros. 676 F.2d 338, 342 (8th Cir.1982); see Connecticut Dep’t of Income Maintenance v. Heckler, 471 U.S. 524, 532, 105 S.Ct. 2210, 2215, 85 L.Ed.2d 577 (1985) (agency’s construction need not be the only reasonable one); Volkswagenwerk Aktiengesellschaft v. Federal Maritime Comm’n, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 499-500 (8th Cir.), cert. denied, — U.S.-, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986). Although it is persuasive that the Secretary had at least some hand in the genesis of this statute, see International Nutrition, 676 F.2d at 342 (citing Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969)), the mere fact that he takes a position on its interpretation does not make the interpretation unassailable. Phillips v. Noot, 728 F.2d 1175, 1178 (8th Cir.1984). The Secretary argues that Congress, by passing section 602(a)(38), intended to create a legislative presumption of availability of income as to the individual and as to the family in recognition of the fact that family members who live together most likely share expenses. Consistent with this understanding of the statute, the Secretary’s regulation requires that siblings of the dependent child be included in the application for AFDC. Although the statute and legislative history do not say in so many words that siblings must be included in an application, our review of the language and the legislative history of the statute persuades us that the Secretary’s regulation is a reasonable interpretation of the intent of Congress and is consistent with the statute. IV Appellees argue further that the Secretary’s regulation conflicts with the federal statutes governing Title II Social Security benefits and with state authority concerning child support obligations. A The Heille class argues that the family unit filing regulation, and thus the interpretation of section 602(a)(38) that it embodies, is inconsistent with two provisions governing the Title II program. If the class is correct, then a more conciliatory interpretation of section 602(a)(38) than the Secretary’s would be appropriate," }, { "docid": "13466436", "title": "", "text": "requiring the court to defer to the agency, these cases also counsel that deference is appropriate only if the agency’s interpretation is consistent with the language, purpose, and legislative history of the statute. Lukhard v. Reed, 481 U.S. 368, 107 S.Ct. 1807, 1813-1814, 95 L.Ed.2d 328 (1987) (Virginia’s treatment of personal injury awards is consistent with the administrative and legislative history of the AFDC statute and thus entitled to deference); Connecticut Department of Income Maintenance v. Heckler, 471 U.S. 524, 528, 105 S.Ct. 2210, 2212, 85 L.Ed.2d 577 (1985) (“In our view ... the State’s position is foreclosed by the plain language of the statute, by the Secretary’s reasonable and longstanding interpretation of the Act, and by the Act’s legislative history.”); Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984) (if a statute is ambiguous, an agency’s interpretation should not be disturbed “unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned,” quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)); Blum v. Bacon, 457 U.S. 132, 142, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982) (“In light of the strong support in the legislative history for the Secretary’s conclusion ... we find such deference particularly appropriate in this case.”); Schweiker v. Hogan, 457 U.S. 569, 586, 102 S.Ct. 2597, 2607, 73 L.Ed.2d 227 (1982) (The legislative history did not justify a departure from the literal language of the Social Security Act.). In light of the repeated and longstanding pronouncements on the issue of deference when an agency’s decision is at odds with the language, purpose, and history of a statute, we must conclude that in the instant case, deference should not be accorded to the Secretary’s interpretation. The language, purpose, and history of the AFDC statute, as well as the inconsistent regulations, proposals, and statements by the agency, all counsel against deferring to the agency in this case. Deference is not appropriate when an agency’s interpretation has radically and repeatedly alternated between" }, { "docid": "2619147", "title": "", "text": "plaintiffs thereafter filed the instant action. II. Our standard of review is determined by the nature of plaintiffs’ challenge. In seeking to invalidate the Park Service regu lation regarding trapping, plaintiffs essentially challenge the Park Service’s interpretation of its own organic statute, as well as the agency’s interpretation of the enabling acts for Sleeping Bear and Pictured Rocks. A regulation is invalid if in enacting it “the Secretary has exceeded his statutory authority” or “the regulation is arbitrary and capricious” and therefore fails to fulfill the intent of the statute. Herweg v. Ray, 455 U.S. 265, 275, 102 S.Ct. 1059, 1066, 71 L.Ed.2d 137 (1982). However, “[t]he interpretation put on the statute by the agency charged with administering it is entitled to deference....” Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981); Davis v. Secretary of HHS, 867 F.2d 336, 338 (6th Cir.1989). [T]he court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnotes omitted). Thus, while we “must reject administrative constructions of the statute ... that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement^]” Federal Election Comm’n, 454 U.S. at 32, 102 S.Ct. at 42, we should follow “the construction of a statute by those charged with its execution ... unless there are compelling indications that it is wrong[.]” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). “The question for this court, therefore, is not whose interpretation of the statute we prefer, but whether the Secretary’s interpretation is reasonable, consistent, and persuasive.” Whiteside v. Secretary of HHS, 834 F.2d 1289, 1292 (6th Cir.1987)." }, { "docid": "14820650", "title": "", "text": "Congress’ intent,’ ” Process Gas Consumers Group v. U.S. Dep’t of Agriculture, 694 F.2d 778, 791 (D.C.Cir.1982) (en banc) (quoting Constance v. Sec’y of Health & Human Services, 672 F.2d 990, 995 (1st Cir.1982)). Here, Congress assigned the Secretary the duty “of separating the [quasi-judicial and Executive] functions under this statute.” H.R.Rep. No. 92-1441, supra note 57, at 11. Thus Congress wanted the Secretary to determine, through his experience with the Act’s earlier claims procedures, the appropriate degree of independence for the Board. Courts must give “ ‘great deference to the interpretation given the statute by the officers or agency charged with its administration,’ ” EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 83, 101 S.Ct. 295, 307, 66 L.Ed.2d 268 (1980) (quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)). See also Federal Election Comm’n v. Democratic Senatorial Campaign Committee, supra note 62, 454 U.S. at 37, 102 S.Ct. at 45 (“deference should presumptively be afforded” to rulemaking agency); E.I. duPont de Nemours & Co. v. Collins, supra note 63, 432 U.S. at 54-55, 97 S.Ct. at 2234; Kirkhuff v. Nimmo, 683 F.2d 544, 549 (D.C.Cir.1982). This circuit has previously given deference to the Secretary’s interpretation of the statute. See, e.g., Shahady v. Atlas Tile & Marble Co., supra note 8, 673 F.2d at 483 (where statute ambiguous regarding proper party to judicial review of order, regulation adopted by court as clear, consistent statement of Act’s intent). The same considerations lead us to give deference here. . Legislative history of subsequent legislation is entitled to significant weight in construing earlier, related legislation. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); Federal Housing Admin. v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958). But legislative history of non-enacted subsequent legislative proposals provides a much more “hazardous basis for inferring the meaning of a congressional enactment.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13, 100 S.Ct. 2051, 2061 n.13, 64" }, { "docid": "355386", "title": "", "text": "less that Congress intended to “underwrite” it. Although “acquiescence” is entitled to some weight in interpreting a statute, that weight cannot be conclusive. See SEC v. Sloan, 436 U.S. 103, 119-23, 98 S.Ct. 1702, 1712-14, 56 L.Ed.2d 148 (1977). And, where acquiescence has been deemed significant, there is typically far more evidence of congressional intent than that which is present here. Compare Bob Jones University v. United States, 461 U.S. 574,---, 103 S.Ct. 2017, 2032-34, 76 L.Ed.2d 157 (1983) (finding acquiescence) with Aaron v. SEC, 446 U.S. 680, 694 n. 11, 100 S.Ct. 1945, 1954 n. 11, 64 L.Ed.2d 611 (1980) (finding no acquiescence) and SEC v. Sloan, 436 U.S. at 119—23, 98 S.Ct. at 1712-14 (same). The legislative history does not lead us to change our conclusion. b. The Secretary also argues that this court should simply defer to HHS’s interpretation of the statute. She points to a line of Supreme Court cases that, she argues, compel such deference. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39, 102 S.Ct. 38, 45-6, 70 L.Ed.2d 23 (1981) (inquiry is “whether the Commission’s construction was ‘sufficiently reasonable’ to be accepted by a reviewing court”); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980) (Federal Reserve Board’s interpretation of its statute will control unless “demonstrably irrational”); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979) (if Labor Board’s construction of its statute is “reasonably defensible,” it should not be rejected); Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (agency’s construction should be followed “unless there are compelling indications that it is wrong”). See also Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). A different line of Supreme Court cases, however, cautions us that “deference” is not complete; sometimes a different, and more independent judicial attitude is appropriate. Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, — U.S. -, -, 104 S.Ct." }, { "docid": "23398298", "title": "", "text": "was to clarify the original statute in light of conflicting court decisions. See 130 Cong.Rec. S10644 (daily ed. Aug. 10, 1984) (remarks of Sen. Dole); idi at E3590 (remarks of Rep. Rostenkowski). Although statements as to legislative intent made by legislators subsequent to the enactment of a statute are typically not entitled to great weight, see United States v. United Mine Workers, 330 U.S. 258, 281-82, 67 S.Ct. 677, 690, 91 L.Ed. 884 (1947), such statements are nevertheless “entitled to consideration as an expert opinion concerning [the statute’s] proper interpretation.” 2A Sutherland Statutory Construction, supra, § 49.11, at 266; see also North Haven Board of Education v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 1925, 72 L.Ed.2d 299 (1982) (postenactment developments constitute “authoritative expressions concerning the scope and purpose of [the original statute]”) (quoting Cannon v. University of Chicago, 441 U.S. 677, 687 n. 7, 99 S.Ct. 1946, 1952, n. 7, 60 L.Ed.2d 560 (1979)). Such consideration would appear to tip the scales in favor of finding the amendment to be a “clarification” rather than a “change.” Finally, some weight must be given to the administrative interpretation of the statute. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (the interpretation of a statute by the agency charged with its administration is entitled to deference). The HHS regulation applies the lump-sum rule to the “AFDC assistance unit’s income, after applying applicable disregards.” 45 C.F.R. § 233.20(a)(3)(ii)(D). Thus, the regulation clearly includes all AFDC beneficiaries within its scope. This administrative interpretation is, of course, not conclusive. See Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969); Cleary v. United States Lines, 728 F.2d 607, 610 n. 6 (3d Cir.1984). Nevertheless, it provides solid additional support for the defendants’ position. In sum, we hold that 42 U.S.C. § 602(a)(17) applies to all AFDC families, rather than only to those with earned income. The only other circuits that have addressed this issue have come to the same conclusion. See Walker v. Adams, 741 F.2d 116 (6th Cir.1984); Faught v." }, { "docid": "7831475", "title": "", "text": "emphasizing that the comparison is between “overtime ” calculations, the FPM Letter has taken a reasonable approach to interpreting the two statutes. The letter has been in existence since 1975, virtually contemporaneously with the adoption of the 1974 Amendments. As plaintiffs concede, it is well settled that courts should show “great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Nor is it necessary that the agency’s “construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” Id. (quoting Unemployment Compensation Comm’n v. Aragan, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946)). See also Red Lion Broadcasting Co. v. Federal Communications Comm’n, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). The Federal Circuit has also admonished that “the longstanding interpretation placed on a statute by the agency charged with its administration should be followed unless there are compelling reasons that it is wrong.” Money v. OPM, 811 F.2d 1474, 1477 (Fed. Cir.1987); see also Young v. Community Nutrition Inst., 476 U.S. 974, 980-81, 106 S.Ct. 2360, 2364-65, 90 L.Ed.2d 959 (1986); Horner v. Andrzjewski, 811 F.2d 571, 574 (Fed.Cir.1987), cert. denied, 484 U.S. 912, 108 S.Ct. 257, 98 L.Ed.2d 215 (1987); De-Costa v. United States, 22 Cl.Ct. 165 (Cl. Ct.1990). Defendant’s methodology is not at odds with Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942). Plaintiffs rely on that decision for the proposition that they are entitled to FLSA overtime for each hour of work beyond the statutory maximum at a rate “not less than one and one-half times the regular rate at which he is employed.” Id. at 631, 62 S.Ct. at 1227. From this plaintiffs conclude that each hour of overtime is a separate unit, which can be contrasted to Title 5 compensation for the identical hour regardless of the total amount of" }, { "docid": "5710716", "title": "", "text": "represents a reasonable one.” Atlantic Mut. Ins. Co., v. Commissioner, 523 U.S. 382, 389, 118 S.Ct. 1413, 140 L.Ed.2d 542 (1998). A In conducting the second half of the Chevron analysis, we “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778 (citing FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981); Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 75, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Unemployment Compensation Comm’n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946); McLaren v. Fleischer, 256 U.S. 477, 480-81, 41 S.Ct. 577, 65 L.Ed. 1052 (1921)). Instead, our inquiry is confined to the question of whether the agency’s interpretation of the statute is “inconsistent with [the] statutory mandate or ... frustrate[s] the congressional policy underlying a statute.” Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Auth., 464 U.S. 89, 97, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983). That is, we have refused to defer to an agency interpretation of a statute, as expressed in duly-promulgated regulations, only when such an interpretation was “contrary to the intent of congress, as divined from the statute and its legislative history.” Muwwakkil v. Office of Personnel Management, 18 F.3d 921, 925 (Fed.Cir.1994) (refusing to .grant deference to regulations contrary to statutory intent); see United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961) (“[W]e should not disturb [the agency interpretation] unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”); Oshkosh Truck Corp. v. United States, 123 F.3d 1477, 1481 (Fed.Cir.1997) (refusing to grant" }, { "docid": "8370835", "title": "", "text": "authority to issue SLUPs. Before discussing the administrative history of SLUPs any further, it would be best to state at the outset our general approach to the area of executive interpretation of statutes. We do not question the settled principle that administrative interpretations of statutes are entitled to great weight. See Zuber v. Allen, 396 U.S. 168, 192-193, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969); Volkswagenwerk Aktiengesellschaft v. F. M. C., 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L. Ed.2d 616 (1965). But it is our firm belief that a line must be drawn between according administrative interpretations deference and the proposition that administrative agencies are entitled to violate the law if they do it often enough. Not to draw this line is to make a mockery of the judicial function. “[T]he courts are the final authorities on issues of statutory construction * * * and ‘are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’ * * ‘The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia . . . .’” Volkswagenwerk Aktiengesellschaft v. F. M. C., supra, 390 U.S. at 272, 88 S.Ct. at 935. Administrative construction of a statute “is only one input in the inter-pretational equation.” Zuber v. Allen, supra, 396 U.S. at 192, 90 S.Ct. at 327. A court should not “abdicate its ultimate responsibility to construe the language employed by Congress,” id. at 193, 90 S. Ct. at 328, but rather should defer to an administrative construction only if there are no “compelling indications that it is wrong.” Red Lion Broadcasting Co. v. F. C. C., supra, 395 U.S. at 381, 89 S.Ct. at 1802. It has a duty to ignore that construction should it determine that it is “in conflict with the plain intent of the legislature.” Brhd of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U.S.App.D.C. 59, 90," } ]

[ { "docid": "13235529", "title": "", "text": "section. In the Finn Case, 123 U.S. 227, at page 232, 8 S.Ct. 82, 31 L.Ed. 128, the Supreme Court recognizes the general rule that limitation does not operate by its own force as a bar, but is a defense that must be pleaded. If the general rule applies here, the Government should have pleaded the limitation. Neither in its pleading nor in any manner before or at the trial did it raise the question. If objection had been made while the case was pending in the District court, amendment and proof might have been permitted showing that the action was filed in time. Under such circumstances as between private individuals, it is usually held that the right to make the objection has been waived. However, Government officers may not waive provisions as to War Risk Insurance. Birmingham v. United States, 4 F.(2d) 508 (C.C.A.8); Crawford v. United States, 40 F.(2d) 199 (C.C.A.2) ; Wilber National Bank v. United States, 69 F.(2d) 526 (C.C.A.2). This court also has declared that statutes of limitation must be strictly construed in favor of the sovereign. Board v. Commissioner, 51 F.(2d) 73, 76 (C.C.A.6). We conclude, therefore, that while the question - is not free from difficulty, the statutory requirement as to limitation could not be waived, and that the petition should have pleaded facts showing that the statute was suspended during consideration of the claim in the bureau. The judgment is reversed and the case remanded with permission to appellee to amend his petition in the District Court to allege facts showing that the limitation was suspended for the period elapsing between the filing in the bureau of the claim sued upon and the denial of such claim by the director, and was timely brought, if he may do so; and if when such allegations are made they are not traversed or are shown to be true, appellee may have judgment upon the original verdict. § 516. “Where any person has', prior to June 7, 1924, all,owed his insurance to lapse, or has canceled 'or reduced all or any part of such insurance," } ]

[ { "docid": "17800199", "title": "", "text": "appellant erroneous information; that the appellant having been deceived by it, and so failing to file timely claim or suit, to the injury of his ward and later to the estate, the government is now estopped to question his right, to sue upon the contract on the ground that there was want of jurisdiction in the court 'to entertain the suit. The general rule, of course, is that the United States is neither bound nor es-topped by the acts of its officers and agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit, and that those dealing with an agent of the United States must be held to have notice of the limitation of his authority. Wilber National Bank v. United States, 294 Ú.S. 120, 55 S.Ct. 362, 79 L.Ed. 798, and cases therein cited. Generalizations will, however, be found to the effect that when the United States goes into the business of insurance, issues policies in familiar form, and provides that in case of disagreement it may be sued, it must be assumed to have accepted the ordinary incidents of suits in such business. Standard Oil Co. of New Jersey v. United States, 267 U.S. 76, 45 S.Ct. 211, 69 L.Ed. 519; United States v. Worley, 281 U.S. 339, 344, 50 S.Ct. 291, 74 L.Ed. 887; cf. White v. United States, 270 U.S. 175, 180, 46 S.Ct. 274, 70 L.Ed. 530. We need not, however, inquire into the nature or extent of those incidents of suit on contracts between private persons or corporations which, if any are, may be said to be assumed by the United States when it engages in commercial transactions, for the right which the United States asserts in the present suit and against the assertion of which the appellant interposes his claim of estoppel, is not an incident ordinary or extraordinary of a commercial transaction but an attribute of sovereignty. Lynch v. United States, 292 U.S. 571, 582, 54 S.Ct. 840, 844, 78 L.Ed. 1434: “The rule that the United States may" }, { "docid": "14657857", "title": "", "text": "lands belonging to the United States. Of course, all sections of the Constitution must be construed together. Where the alleged injuries from the “taking” are indirect and consequential and result from the exercise of a lawful power, such as the Congress acting under Article IV, § 3, supra, the Fifth Amendment provision has no application. Veix v. Sixth Ward Building & Loan Ass’n, 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061 (1940); In re Community Power & Light Co., 33 F.Supp. 901 (S.D.N.Y. 1940), legal tender cases Knox v. Lee, 12 Wall. 457, 551, 79 U.S. 457, 551, 20 L.Ed. 287 (1870). Although these cases do not involve a state of facts similar to ours, it is logical to apply the doctrine stated in those cases to a land classification as mentioned in § 7. Certainly, the Secretary was acting pursuant to a power enumerated in the Constitution and properly delegated to him. VI. CLASSIFICATION IN LINN LAND CASE. It is urged that the lands involved in the Linn Land case had actually been classified for disposal. The record discloses that the lands had been withdrawn and reserved for federal power purposes on November 29, 1956, by order of the Department of the Interior and then restored. Clearly, the restoration does not classify the lands or in any way affect the Secretary’s right of disposal or classification under the Taylor Grazing Act. VII. ESTOPPEL. The claims that certain agents of the Bureau of Land Management made certain representations to the plaintiffs, on which they relied, and that the Secretary should be estopped from denying the applications is worthy of little comment. It is well settled that an officer, or even an agency, of the United States, to whom no administrative authority has been delegated, cannot estop the United States even by an affirmative undertaking to waive or surrender a public right. State of Utah v. United States, 284 U.S. 534, 545-546, 52 S.Ct. 232, 76 L.Ed. 469 (1932); Wilber Nat’l Bank v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 79 L.Ed. 798 (1935); United States v. Stewart," }, { "docid": "374440", "title": "", "text": "question of plaintiff’s injuries would be considered, along with other matters involving his compensation; and that as a result of these statements his son failed to file a claim on behalf of plaintiff for the alleged injuries. In his brief filed with the court, plaintiff admits that his family realized he had suffered injury, but was informed by his attending physician that it was of a temporary nature; and that it was only after plaintiff’s mental condition had cleared and he was able to move about, that he first realized that such injury was permanent and disabling. The law is also well established that the United States, as a sovereign, cannot be estopped by unauthorized acts of its agents or employees. In the case of United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40 [1940], the Supreme Court enunciated the rule as follows : “ * * * An officer or agency of the United States to whom no administrative authority has been delegated cannot estop the United States even by an affirmative undertaking to waive or surrender a public right. Utah v. United States, 284 U.S. 534, 545, 546, 52 S.Ct. 232, 235, 76 L.Ed. 469; Wilber National Bank [of Oneonta] v. United States, 294 U.S. 120, 123, 124, 55 S.Ct. 362, 363, 364, 79 L.Ed. 798.” In his brief, plaintiff cited the case of Sox v. United States, 187 F.Supp. 465 [E.D.S.C.1960], decided by Judge Wyche, as holding in favor of a minor child who had sustained prenatal injuries even though more than two years had elapsed since the accident. The record in that case reveals, however, that the accident occurred on September 21, 1957, and that the summons and complaint were served on the Assistant United States Attorney in Charleston, S. C. on August 31, 1959, and on the United States Attorney General on September 1, 1959, clearly within two years from the date of the accident. It is, therefore, Ordered, that defendant’s motion be granted and this action be dismissed with prejudice. Each party shall pay his own costs. . § 2401" }, { "docid": "682399", "title": "", "text": "accept this specific factual allegation as true, the government responds that it raises no material factual issue that would preclude summary judgment. The government’s reasoning is that even if Mr. Lazin made the claimed representations, he had no authority to do so and the United States is not bound by his unauthorized acts. My review of the law reveals that the government’s position is correct. As an Assistant United States Attorney, Mr. Lazin had absolutely no authority to compromise a civil claim of the United States. In United States v. Beebe, 180 U.S. 343, 21 S.Ct. 371, 45 L.Ed. 563 (1901), the Supreme Court held that the United States was not bound by the unauthorized settlement of a claim by a United States Attorney. This principle — that the United States is not bound by the unauthorized acts of its agents — has been repeated again- and again in later cases. See e. g., Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561, 43 S.Ct. 205, 67 L.Ed. 402 (1922); Wilber National Bank v. United States, 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798 (1935); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); Dorl v. C. I. R., 507 F.2d 406 (2d Cir. 1974); United States v. Quickee Food Products, Inc., 396 F.2d 450 (3d Cir. 1968); In re Hooper’s Estate, 359 F.2d 569 (3d Cir.) cert. denied sub. nom., Marine Nat’l Exchange Bank v. Government of the Virgin Islands, 385 U.S. 903, 87 S.Ct. 206, 17 L.Ed.2d 133 (1966); Brubaker v. United States, 342 F.2d 655 (7th Cir. 1965). Thus, whether or not Mr. Lazin made the purported agreement, the government is not estopped from seeking recovery against Benjamin under the False Claims Act. III. Conclusion For the reasons set forth above, I conclude that summary judgment for the government as to the issue of liability must be granted against the convicted defendants, Stanley Salkowitz, Liberty Trucking Company, Hunting Park Moving & Storage Co., Jack Simons, and Leland Lamar on Count I of the complaint and against" }, { "docid": "12369158", "title": "", "text": "regulations despite reliance to their pecuniary detriment upon incorrect information received from Government agents or employees.” and by the Supreme Court in Wilber National Bank of Oneonta, N. Y. v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 364, 79 L.Ed. 798 (1935): “Undoubtedly, the general rule is that the United States are neither bound nor estopped by the acts of their officers and agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit. Also, those dealing with an agent of the United States must be held to have had notice of the limitation of his authority.” Nevertheless, in appropriate circumstances, governed perhaps by a sense of fairness applied to a particular case, some courts have occasionally excepted to this general rule. Thus, in Simmons v. United States, 308 F.2d 938 (5th Cir. 1962), the taxpayer had been orally 'advised in 1950 by the head of the Excise Sales Tax Division at Jackson, Mississippi, that cane fishing poles were not subject to excise taxes; and he then sold many such poles to his customers from 1950 through 1958 without collecting excise taxes on his sales. The Commissioner then issued a Revenue Ruling, for the first time, in 1958 (not at taxpayer’s request) that such poles were subject to excise taxes, and the Government assessed back taxes against this taxpayer for eight years. Reversing the lower court’s directed verdict for the Government, the Court of Appeals for the Fifth Circuit, on remand, intimated that taxpayer’s argument for estoppel against the Government was “persuasive.” Other such cases could be cited. However, it is clear that equitable estoppel against the Government cannot be invoked where the Government has acted to correct a mistake of law, but only where the mistake has been a factual one. Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 183, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957). It is further clear that in most cases the doctrine is only applied when: “ * * * (1) the Government has waived sovereign" }, { "docid": "17800198", "title": "", "text": "by the Veterans’ Bureau that no record had been found of any application for or the issuance of a policy. Some nine and a half months later the veteran died, and the appellant was appointed administrator of his estate. In May of 1932 he learned that there was an application for war risk insurance signed by the veteran on file in the Regional Office of the Veterans’ Administration in Nashville, Tennessee. Tie forthwith filed a claim as administrator of the soldier’s estate, but it was denied on June 3, 1935. Reduced to simple terms, the argument in support of the claim of estoppel is: That when the United States went into the insurance business, issued policies and provided that’ in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits upon private contracts; that the Veterans’ Administration having been authorized by law to disclose information concerning insurance contracts to those entitled to receive it, had acted within the scope of its authority when it gave the appellant erroneous information; that the appellant having been deceived by it, and so failing to file timely claim or suit, to the injury of his ward and later to the estate, the government is now estopped to question his right, to sue upon the contract on the ground that there was want of jurisdiction in the court 'to entertain the suit. The general rule, of course, is that the United States is neither bound nor es-topped by the acts of its officers and agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit, and that those dealing with an agent of the United States must be held to have notice of the limitation of his authority. Wilber National Bank v. United States, 294 Ú.S. 120, 55 S.Ct. 362, 79 L.Ed. 798, and cases therein cited. Generalizations will, however, be found to the effect that when the United States goes into the business of insurance, issues policies in familiar form, and provides that" }, { "docid": "8489213", "title": "", "text": "do so, waived the right to receive these taxes. Assuming the right of the government to waive their collection for and on behalf of its wards, the lessors, the record is significantly silent as to the power of the local Indian agent to bind the guardian. Perhaps this is due to the fundamental rule that the United States is neither bound nor estopped by acts of its officers or agents in entering into an agreement or causing something other to be done which the law does not sanction. See Utah Power & Light Co. v. United States, 243 U.S. 389, 408-409, 37 S.Ct. 387, 61 L.Ed. 791; Wilher National Bank v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 79 L.Ed. 798; Sutton v. United States, 256 U.S. 575, 579, 41 S.Ct. 563, 65 L.Ed. 1099, 19 A.L.R. 403; United States v. Stewart, 311 U.S. 60, 70, 61 S.Ct. 102, 85 L.Ed. 40; Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1. Be that as it may, the burden of proving either waiver or estoppel has not been met, and from the record, the court can not summarily conclude that the right to receive said taxes as rent was waived. The taxes being due therefor as part of the rental and constituting the debt sued for, this action may be maintained without the lessor or its guardian first paying said taxes to Thurston County. Minnesota Loan & Trust Co. v. Medical Arts Bldg. Co., D.C., 8 F.Supp. 907, appealed on other grounds and affirmed 8 Cir., 78 F.2d 937, 101 A.L.R. 770. Even if the court errs in concluding that these taxes are due as part of the rental, they are nevertheless due the lessors as a debt owing their estate. The Brown-Stephans Act gave the Secretary of the Interior the right to pay these taxes out of “any funds belonging to the Indian allottees owning such lands so taxed and arising from the rentals thereof or under his control”. Ostensibly, the covenant of defendants to pay these taxes was entered into so that the" }, { "docid": "14657858", "title": "", "text": "classified for disposal. The record discloses that the lands had been withdrawn and reserved for federal power purposes on November 29, 1956, by order of the Department of the Interior and then restored. Clearly, the restoration does not classify the lands or in any way affect the Secretary’s right of disposal or classification under the Taylor Grazing Act. VII. ESTOPPEL. The claims that certain agents of the Bureau of Land Management made certain representations to the plaintiffs, on which they relied, and that the Secretary should be estopped from denying the applications is worthy of little comment. It is well settled that an officer, or even an agency, of the United States, to whom no administrative authority has been delegated, cannot estop the United States even by an affirmative undertaking to waive or surrender a public right. State of Utah v. United States, 284 U.S. 534, 545-546, 52 S.Ct. 232, 76 L.Ed. 469 (1932); Wilber Nat’l Bank v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 79 L.Ed. 798 (1935); United States v. Stewart, 311 U.S. 60, 70, 61 S.Ct. 102, 85 L.Ed. 40 (1940). VIII. CONCLUSIONS. Summarizing, even if the action of the Secretary in classifying the lands, as he did, under the Taylor Grazing Act, was reviewable, I would, and do, hold that his expertise in the field of classification was such that it should not be disturbed by the courts, and that his action was not arbitrary, capricious nor abusive discretion, nor otherwise not in accordance with law, nor was his action in excess of statutory jurisdiction, authority or limitations nor short of statutory right. Furthermore, I hold that the Secretary observed the procedures required by law and that his decision was supported by substantial evidence. Only those questions which have been properly presented to the Secretary should be reviewed in this Court. Federal Power Comm. v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed. 583 (1955); Unemployment Compensation Comm, of the Territory of Alaska v. Aragon, 329 U.S. 143, 67 S.Ct. 245, 91 L.Ed. 136 (1946). The Court can even refuse" }, { "docid": "20003869", "title": "", "text": "Board, was in part predicated upon the authority of the provisions of Section 652; that the action of the Department of Labor Loyalty Board in suspending him was stated to be taken pursuant to these provisions; that he was informed that in the event of his restoration to employment, he would be paid for the period of suspension without pay in accordance with these provisions ; and that the procedural steps actually afforded him were those set forth in these provisions. Plaintiff insists that the Government, having thus set the terms of his suspension without pay, is now obliged to apply those terms to his case and must make payment to him for the period of suspension, in accordance with subsection (b) (1). In effect, plaintiff is saying that the defendant, through its agents, purported at all times to be acting in this case under the authority of Section 652 and is now estopped to deny its application to him, at least insofar as it would entitle plaintiff to compensation. However, plaintiff’s argument overlooks the fact that Congress is the only body under our Constitution with the authority to consent to the assumption of liability by the United States, or to authorize others to do so. The United States as the sovereign is immune from liability in the absence of congressional action, and neither the President nor any of his executive officers, nor the courts, possess power to impose such liability. The Supreme Court of the United States reached this conclusion in Wilber National Bank v. United States, 294 U. S. 120, 123, where it stated that: Undoubtedly the general rule is that the United States are neither bound nor estopped by the acts of their officers and agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit. Cf. Utah Power and Light Company v. United States, 234 U. S. 389; The Seminole Nation v. United States, 102 C. Cls. 565, 623. As we haye pointed out above, Congress has not consented to liability on the part" }, { "docid": "8447786", "title": "", "text": "promulgation of the terms and conditions of the five year level premium term policy and the printing of such policy, the Administrator may issue a certificate in lieu thereof as evidence that insurance has been granted and the rights and liabilities of the applicant and of the United States shall be those specified by the terms and conditions of the policy when published.” (Emphasis supplied.) Furthermore, I am of the opinion, in any event, that the late delivery of the certificate could not operate to waive the rights of the United States to the premiums. The insurance is granted in consideration of the monthly premiums, and the failure of payment of any premium (after expiration of the grace period) causes the policy to lapse. 38 U.S.C.A. § 802(a); Title 38 Code of Federal Regulations (1941 Supplement) §§ 10.3404, 10.3405, 10.3414 and 10.-3416. Provision is made for waiver of premiums on account of total disability, but that does not appear to be involved here. The law is that no waiver of the right of the United States may be accomplished, except by the proper authority acting under powers granted to him. Wilber Nat. Bank v. United States, 1935, 294 U.S 120, 55 S.Ct. 362, 79 L.Ed. 798; United States v. Valndza, 6 Cir., 1936, 81 F.2d 615, 617; see United States v. Loveland, 3 Cir., 1938, 25 F.2d 447, reversed on other grounds 278 U.S. 665, 49 S.Ct. 184, 73 L.Ed. 571. Accordingly, the late delivery of the cer tificate could not constitute a waiver by the Administrator of Veteran’s Affairs of the premiums required by the statute. Similarly, it is unnecessary to determine whether the late delivery of a policy estops the insurer from asserting the defense of nonpayment of premiums, for the late delivery of the certificate, even if it were considered, by stretching the imagination, a late delivery of the policy, could not estop the United States. Wilber Nat. Bank v. United States, supra; Sternfeld v. United States, D.C.N.D.N.Y.1929, 32 F.2d 789. The substantial issue raised by the instant motion, then, is whether the burden rests upon the" }, { "docid": "12369157", "title": "", "text": "members constituted one of its two main purposes; that the providing of these individual business services constituted not an incidental but a substantial part of its total activity; that it was therefore not a business league; and that, as operated, it was not to any extent entitled to a tax-exempt status. However, plaintiff argues that even if it should have paid the taxes in 1960-62 for which it now seeks a refund, the Government is equitably estopped to retroactively determine that plaintiff should have paid those taxes because of the local Division Chief’s orally rendered opinion of 1942 on which plaintiff subsequently relied. The parties seem to assume, and therefore we assume, that the relevant facts were the same in 1942 as they were in 1960-62. It cannot be questioned that the rule generally applicable to all dealings with Government agents is well stated in Flamm v. Ribicoff, 203 F.Supp. 507, 510 (S.D.N.Y.1961): “ * * * Parties dealing with the Government are charged with knowledge of and are bound by statutes and lawfully promulgated regulations despite reliance to their pecuniary detriment upon incorrect information received from Government agents or employees.” and by the Supreme Court in Wilber National Bank of Oneonta, N. Y. v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 364, 79 L.Ed. 798 (1935): “Undoubtedly, the general rule is that the United States are neither bound nor estopped by the acts of their officers and agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit. Also, those dealing with an agent of the United States must be held to have had notice of the limitation of his authority.” Nevertheless, in appropriate circumstances, governed perhaps by a sense of fairness applied to a particular case, some courts have occasionally excepted to this general rule. Thus, in Simmons v. United States, 308 F.2d 938 (5th Cir. 1962), the taxpayer had been orally 'advised in 1950 by the head of the Excise Sales Tax Division at Jackson, Mississippi, that cane fishing poles were not subject" }, { "docid": "11094217", "title": "", "text": "power of control. In this view it seems to us wholly unwarranted to claim, as is claimed by the corporation, that the United States are bound by their former action or that the President’s finding that the corporation was entitled to the return of the property so forecloses the controversy that it is not now the subject of judicial review. The government is never bound by the unlawful action of its officers; nor is it estopped by the acts of its agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit. Wilber Nat. Bank v. United States, 294 U.S. 120, 123, 55 S.Ct. 362, 79 L.Ed. 798. Here we have a case, if the allegations of the cross-bill be taken as true, as for present purposes they must be, in which the corporation in conspiracy with German enemy owners of seized property, representing itself to be the true owner, by bribery and corruption induces the agent of the United States charged with the administration of the fund to deliver it over, except as to a small unsegregated portion, and then later institutes suit to recover this balance, and insists that the United States are powerless to set up the fraudulent conduct in defense of the claim or to recover the unlawful payment because Congress has not in specific terms authorized any agent in behalf of the United States to sue or to defend in those precise circumstances. We think there can be no merit in this contention. Here the suit is really between the United States and the alleged fraudulent recipient of the fund, and the question is whether the latter shall be allowed to retain the unlawful fruits of a fraud committed against the United States with the connivance of their agent. The insistence that it shall, is based upon a technicality which, even if otherwise sound, no court of equity would ever recognize or enforce. No technical rule of pleading ought ever to be allowed to stand in the way of the power to do" }, { "docid": "20820157", "title": "", "text": "acts in a capacity in which a private party could also act — i. e., in a proprietary rather than in a sovereign capacity. See, e. g., United States v. City and County of San Francisco, 112 F.Supp. 451, 454 (N.D.Cal.1953), aff’d 223 F.2d 737 (9th Cir. 1955), cert. den. 350 U.S. 903, 76 S.Ct. 181, 100 L.Ed. 793 (1955); United States v. County of Lawrence, 173 F.Supp. 307, 314 (W.D.Pa. 1959), rev’d on other grounds 280 F.2d 462 (3d Cir. 1960), aff’d 364 U.S. 628, 81 S.Ct. 357, 5 L.Ed.2d 363 (1961); see also 31 C.J.S. Estoppel § 138, pp. 676-677; K. Davis, Administrative Law Treatise § 17.01, p. 491 (1958). The case law has recognized an additional limitation on the availability of estoppel as a defense against the government: the government is not estopped by the unauthorized act of a government agent, even if the agent misled a private party who was relying on his knowledge. A person dealing with an agent of the government, in short, has been held to know the scope of that agent’s authority. Wilber National Bank v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 364, 79 L.Ed. 798 (1934); United States ex rel. Lapides v. Watkins, 165 F.2d 1017, 1019 (2d Cir. 1948). Finally, there is also authority for the proposition that a government official may not be estopped from correcting a mistake of law. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 183-184, 77 S.Ct. 707, 709-710, 1 L.Ed.2d 746 (1957); cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157, 83 S.Ct. 554, 561, 9 L.Ed.2d 644 (1963). In recent years, however, the doctrine of sovereign immunity has begun to crumble, and so have the rules insulating the government from estoppel. As the government’s activities have extended to more and more facets of our national life, restrictions on the availability of estoppel have begun to give way before the demand to hold the government to the same standards of rectitude and conscientiousness to which the government itself seeks to hold the private parties with whom it deals. Courts of appeals" }, { "docid": "10333946", "title": "", "text": "of the premiums as an informal application for reinstatement, admittedly the supporting proof is lacking. The plaintiff attempts to overcome this deficiency by applying the rule of waiver or estoppel against the Administrator. This, of course, she cannot do for it is an established principle of law that the United States may not be estopped by the unauthorized acts of its agents nor may such agents waive the rights of the United States by their unauthorized acts. Wilber National Bank v. United States, 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798; Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10; Coleman v. United States, 6 Cir., 100 F.2d 903; United States v. Norton, 5 Cir., 77 F.2d 731; United States v. Loveland, 3 Cir., 25 F.2d 447; Bank of Arizona v. United States, 9 Cir., 73 F.2d 811; Birmingham v. United States, 8 Cir., 4 F.2d 508; Sternfeld v. United States, D.C.N.Y., 32 F.2d 789. Whatever right the insured had to reinstate the policy was contained in the statute and regulations promulgated thereunder arid not in the insurance contract. The reinstatement could result only upon compliance with the statute and regulations. The insured having failed to comply with the statutory requirements and the regulations, it was the duty of the administrator to deny reinstatement. As a result; no insurance policy was in force and effect at the date of the death of the insured and no action was maintainable. The United States -may be sued only in cases plainly within the terms of the authorizing statute and the courts cannot go beyond the letter of the consent given. Price v. United States and Osage Indians, 174 U.S. 373, 375, 19 S.Ct. 765, 43 L.Ed. 1011; United States v. Michel, 282 U.S. 656, 659, 51 S.Ct. 284, 75 L.Ed. 598; Munro v. United States, 303 U.S. 36, 41, 58 S.Ct. 421, 82 L.Ed. 633; United States v. Alberty, 10 Cir., 63 F.2d 965, 966; Leyerly v. United States, 10 Cir., 162 F.2d 79, 84. Statutes waiving the immunity to suit are strictly construed and" }, { "docid": "10333945", "title": "", "text": "Veterans Administration had waived the required statement of the health condition of the insured. The court also found that the insured was in better health when the premiums were received than he was when the insurance lapsed for nonpayment of premium. It cannot be doubted but that actions of this nature may be maintained only on an insurance contract or policy which is in force and effect. 38 U.S.C.A. § 445; Meadows v. United States, 281 U.S. 271, 50 S.Ct. 279, 74 L.Ed. 852; Taft v. United States, 2 Cir., 127 F.2d 876. Our question therefore narrows to whether there has been a reinstatement of the policy. Under the statute and regulations in effect at that time, in order to reinstate a lapsed insurance contract it was necessary that the insured file with the Administrator an application accompanied with proof satisfactory to the Administrator that the insured was in as good health at the time of the application as he was on the date the insurance lapsed. Even though we consider the letter of transmittal of the premiums as an informal application for reinstatement, admittedly the supporting proof is lacking. The plaintiff attempts to overcome this deficiency by applying the rule of waiver or estoppel against the Administrator. This, of course, she cannot do for it is an established principle of law that the United States may not be estopped by the unauthorized acts of its agents nor may such agents waive the rights of the United States by their unauthorized acts. Wilber National Bank v. United States, 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798; Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10; Coleman v. United States, 6 Cir., 100 F.2d 903; United States v. Norton, 5 Cir., 77 F.2d 731; United States v. Loveland, 3 Cir., 25 F.2d 447; Bank of Arizona v. United States, 9 Cir., 73 F.2d 811; Birmingham v. United States, 8 Cir., 4 F.2d 508; Sternfeld v. United States, D.C.N.Y., 32 F.2d 789. Whatever right the insured had to reinstate the policy was contained in the" }, { "docid": "8489212", "title": "", "text": "years in question, the taxes on these lands were included in an appraisal value thereof, and prospective lessees to be successful were required to submit bids equal at least to this appraised value. For the years in question, the leases were executed subsequent to advertisement which contained no appraised value including taxes, but did declare that bids would be received for cash, or bushel per acre, plus taxes. That the local Indian agent did not keep a record of delinquent taxes, did not consider them when computing interest on delinquent rentals, and the fact that leases were renewed to the defendant All-baugh without denying him a preference, does not indicate the intent of the parties in respect of whether said taxes were intended as rent. Such smacks more of waiver and estoppel, but there is no claim of this. There is nothing in the record to show that the lessors or the government were ever in a position to deny Allbaugh’s preference right. There is nothing to show that the lessors, assuming their right to do so, waived the right to receive these taxes. Assuming the right of the government to waive their collection for and on behalf of its wards, the lessors, the record is significantly silent as to the power of the local Indian agent to bind the guardian. Perhaps this is due to the fundamental rule that the United States is neither bound nor estopped by acts of its officers or agents in entering into an agreement or causing something other to be done which the law does not sanction. See Utah Power & Light Co. v. United States, 243 U.S. 389, 408-409, 37 S.Ct. 387, 61 L.Ed. 791; Wilher National Bank v. United States, 294 U.S. 120, 123-124, 55 S.Ct. 362, 79 L.Ed. 798; Sutton v. United States, 256 U.S. 575, 579, 41 S.Ct. 563, 65 L.Ed. 1099, 19 A.L.R. 403; United States v. Stewart, 311 U.S. 60, 70, 61 S.Ct. 102, 85 L.Ed. 40; Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1. Be that as it may, the burden of" }, { "docid": "11094216", "title": "", "text": "a claim must be filed under oath which, of course, assumes that the person filing the claim shall be legally entitled to make the claim; second, the claim must be filed within one year (later extended to three years) ; and, third, there must be filed written consent to the retention by this government of 20 per cent, of the property. Except upon compliance with these conditions, no right existed in any enemy alien to a return of the seized property, and in this aspect it is of no practical consequence whether the property then belonged to the United States absolutely or whether it was a fund as to which the United States occupied the position of trustee. Assuming the property was legally seized, the United States had then both the right and power to declare the property their own. And that they never did, but chose rather to regard it as a trust fund for the discharge of an honorable international obligation, does not detract one jot or tittle from either the right or power of control. In this view it seems to us wholly unwarranted to claim, as is claimed by the corporation, that the United States are bound by their former action or that the President’s finding that the corporation was entitled to the return of the property so forecloses the controversy that it is not now the subject of judicial review. The government is never bound by the unlawful action of its officers; nor is it estopped by the acts of its agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit. Wilber Nat. Bank v. United States, 294 U.S. 120, 123, 55 S.Ct. 362, 79 L.Ed. 798. Here we have a case, if the allegations of the cross-bill be taken as true, as for present purposes they must be, in which the corporation in conspiracy with German enemy owners of seized property, representing itself to be the true owner, by bribery and corruption induces the agent of the United States charged with" }, { "docid": "8907093", "title": "", "text": "the bounds of his authority. In providing insurance benefits for its armed forces, the United States does not bear the same relationship to the insured as that of a private insurance company, and the same principles do not apply. Whiteside v. U. S., 93 U.S. 247, 23 L.Ed. 882; Wilber National Bank v. U. S., 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798; Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10; Birmingham v. U. S., 8 Cir., 4 F.2d 508; Sternfeld v. U. S., D.C., 32 F.2d 789; Broughton v. Equitable Life Assurance Society, 5 Cir., 71 F.2d 821; Bank of Arizona v. U. S., 9 Cir., 73 F.2d 811; Coleman v. U. S., 6 Cir., 100 F.2d 903; Niewiadomski v. U. S., 6 Cir., 159 F.2d 683; James v. U. S., 4 Cir., 185 F.2d 115; U. S. v. Fitch, 10 Cir., 185 F.2d 471. The insured having failed to comply with the statutory requirements and the regulations, it was the duty of the Administrator to deny a reinstatement. As a consequence, the insurance policies were not in force and effect at the date of the insured’s death. Reversed and judgment here for the United States. Reversed and rendered." }, { "docid": "4909515", "title": "", "text": "to discuss this doctrine and examine the recent developments in its application against the government. C. Legal Analysis of Equitable Estoppel 1. Perhaps the first pronouncement on the application of equitable estoppel against the government was in Lee v. Munroe and Thornton, 11 U.S. (7 Cranch) 366, 3 L.Ed. 373 (1813). In Lee the Supreme Court refused to estop the government on the basis of the acts of an agent acting outside his authority. To do so, the Court felt, might promote collusions between government agents and private parties against the interests of the United States. See also Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); United States v. City and County of San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940); Wilbur National Bank of Oneonta v. United States, 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798 (1935); Sutton v. United States, 256 U.S. 575, 41 S.Ct. 563, 65 L.Ed. 1099 (1921); Pine River Logging Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902); Hart v. United States, 95 U.S. (5 Otto) 316, 24 L.Ed. 479 (1877). Rather than relying on a fear of collusion from its agents, the Supreme Court in the most recent cases emphasizes that estoppel will not lie where the agent does “what the law does not sanction or permit.” United States v. City and County of San Francisco, 310 U.S. 16, 32, 60 S.Ct. 749, 757, 84 L.Ed. 1050 (1940); Wilbur National Bank v. United States, 294 U.S. 120, 124, 55 S.Ct. 362, 364, 79 L.Ed. 798 (1935); see also Utah Power & Light Co. v. United States, 243 U.S. 389, 408, 37 S.Ct. 387, 391, 61 L.Ed. 791 (1917). Thus, the only clear indication from the Supreme Court on this question is that “unauthorized” conduct will not work as estoppel. See Berger, Estoppel Against the Government, 21 U.Chi.L.Rev. 680, 684 (1954). 2. In our view, the long line of Supreme Court decisions on equitable estoppel does not stand for the proposition that the government can never" }, { "docid": "8907092", "title": "", "text": "of adjustment as a matter of formality. The Veterans Administration’s Technical Bulletin 9-53, released September 25, 1947, prescribed the basis for administra tive adjustments in cases involving missing premiums. Adjustment of the insured’s policies is expressly forbidden under paragraph 5, which provides: “Adjustment of insurance is not authorized under paragraphs 2 and 3, even though the July and August, 1947, premiums are timely paid if in connection with such payments, or prior thereto, application for reinstatement was submitted and rejected because the applicant was unable to meet the health requirements.” The action of the Director of Insurance Service, even though acting in behalf of the Administrator, could not bind the United States, as such conduct was prohibited both by statute and the Administrator’s regulations. Unauthorized and wrongful acts of its agents, and acceptance of the insured’s application, cannot be established by waiver or estoppel. Anyone who enters into an arrangement with the United States assumes the risk of accurately ascertaining that an agent, purporting to act in the name of the Government, is acting within the bounds of his authority. In providing insurance benefits for its armed forces, the United States does not bear the same relationship to the insured as that of a private insurance company, and the same principles do not apply. Whiteside v. U. S., 93 U.S. 247, 23 L.Ed. 882; Wilber National Bank v. U. S., 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798; Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10; Birmingham v. U. S., 8 Cir., 4 F.2d 508; Sternfeld v. U. S., D.C., 32 F.2d 789; Broughton v. Equitable Life Assurance Society, 5 Cir., 71 F.2d 821; Bank of Arizona v. U. S., 9 Cir., 73 F.2d 811; Coleman v. U. S., 6 Cir., 100 F.2d 903; Niewiadomski v. U. S., 6 Cir., 159 F.2d 683; James v. U. S., 4 Cir., 185 F.2d 115; U. S. v. Fitch, 10 Cir., 185 F.2d 471. The insured having failed to comply with the statutory requirements and the regulations, it was the duty of the Administrator to" } ]

[ { "docid": "21470617", "title": "", "text": "improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. The 1983 Amendments to Rule 11 encourage courts to respond to “the need to impose sanctions for pleading and motion abuses”. Fed.R. Civ.P. 11 advisory committee’s note. Sanctions are now mandatory for violations of Rule 11, although courts retain discretion to tailor penalties to particular offenses. The amendments also emphasize that both parties and courts can move to impose sanctions. The increased availability of sanctions has made litigation over sanctions common in federal courts. See, e.g., Eastway Constr. Corp. v. City of New York, 821 F.2d 121, 124 (2d Cir.) (Pratt, J., dissenting) (describing the \"new ‘Era of Sanctions'\"), cert. denied, — U.S. -, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). See also Schwarzer, Rule 11 Revisited, 101 Harv.L.Rev. 1013 (1988). . Thomas v. Capital Security Services, Inc., 836 F.2d 866, 874 (5th Cir.1988) (en banc). . Id. at 874. . Id. at 873. . Thomas v. Capital Security Services, Inc., 812 F.2d 984 (5th Cir.1987), vacated in relevant part, 836 F.2d 866 (5th Cir.1988) (en banc). . 836 F.2d at 874. . Id. at 880-81. This policy follows from the advisory committee’s instruction that parties filing for sanctions should notify the court and opposing party “promptly” after discovering a basis for sanctions. Fed.R.Civ.P. 11 advisory committee’s note. It enhances Rule ll’s educational power by letting judges pinpoint those motions and pleadings that are abusive. It may also increase the rule’s deterrent effect by making the imposition of costs and fees for each infraction more certain. Further, limiting awards under Rule 11 to specific motions or" } ]

[ { "docid": "15707364", "title": "", "text": "against Lulirama pursuant to Rule 11 of the Federal Rules of Civil Procedure. We disagree. Rule 11 imposes the following duties on parties making representations to a federal court: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are -warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Fed.R.Civ.P. 11. The' rule provides that, if the court determines that an attorney has violated the above provisions, “the court may ..: impose an appropriate sanction upon the attorneys, law firms, or parties that have violated [the above provisions] or are responsible for the violation.” Id. (emphasis added). “We review all aspects of a district court’s decision to invoke Rule 11 and accompanying sanctions under an abuse of discretion standard.” Childs v. State Farm, Mut. Auto. Ins. Co., 29 F.3d 1018, 1023 (5th Cir.1994). This standard is necessarily deferential because, based on its “[f]amiliar[ity] with the issues and litigants, the district court is better situated than the court of appeals to marshal the pertinent facts arid apply' the fact-dependent legal standard mandated by Rule 11.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 2459, 110 L.Ed.2d 359 (1990). Axcess contends that the district court abused its discretion in declining to impose Rule" }, { "docid": "16115223", "title": "", "text": "at 146. More specifically, the court stated that Smith’s citation of R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir.1985), for the proposition that a plaintiff need allege only two related acts of racketeering activity to satisfy the RICO pattern requirement, was insufficient, as a plaintiff still must establish underlying criminal activity. The court also stated that only one of the defendants had an economic motive to join the charged conspiracy and that the extent to which the evaluation of Smith’s abilities was reviewed, along with the affidavits of doctors of the Society of Thoracic Surgeons, contradicted any allegations of criminal activity. Further, the court termed the pleadings “impermissible, misleading and half-truths,” Smith, 135 F.R.D. at 141, and asserted that it would not allow Smith to “use hired guns to make allegations of fraud and criminal activity on the basis of speculation and implausible inferences which are not only inconsistent with the facts, but could or should have been discovered from the slightest investigation of the facts.” Id. at 144. We review for abuse of discretion the imposition of rule 11 sanctions. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405-06, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). A district court necessarily would abuse its discretion if it imposed sanctions based upon an erroneous view of the law or a clearly erroneous assessment of the evidence. Id. The courts judge an attorney’s compliance with rule 11 by an objective standard of reasonableness under the circumstances. Thomas v. Capital Sec. Servs., 836 F.2d 866, 873 (5th Cir.1988) (en banc). Reasonableness is reviewed according to the “snapshot” rule, focusing upon the instant the attorney affixes his signature to the document. Id. at 874. See also Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 536 (5th Cir.1990). In determining whether an attorney has made a reasonable factual inquiry, a court may consider factors such as the time available to the signer for investigation; the extent of the attorney’s reliance upon his client for the factual support of the document; the feasibility of a prefiling investigation; whether the signing attorney" }, { "docid": "23337101", "title": "", "text": "Section 21D(c) to the Securities Exchange Act of 1934 (“Exchange Act”), requiring courts, at the conclusion of all private actions arising under the Exchange Act, to make specific findings as to the compliance by all parties and attorneys with Fed.R.Civ.P. 11(b). See 15 U.S.C. § 78u-4(c)(l). Section 21D(c) requires also that the court impose sanctions if it determines the rule has been violated, and adopts a rebuttable presumption that the appropriate sanction for a complaint that substantially fails to comply with Rule 11(b) “is an award to the opposing party of the reasonable attorneys’ fees and other expenses incurred in the action.” 15 U.S.C. § 78u-4(c)(3)(A)(ii). The PSLRA thus does not in any way purport to alter the substantive standards for finding a violation of Rule 11, but functions merely to reduce courts’ discretion in choosing whether to conduct the Rule 11 inquiry at all and whether and how to sanction a party once a violation is found. C. Standard of Review for a Rule 11 Determination In Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), the Supreme Court held that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Id. at 405, 110 S.Ct. 2447. In so holding, the Court purported to reject the practice of some circuits, including ours, see, e.g., McMahon v. Shearson/American Express, Inc., 896 F.2d 17, 21 (2d Cir.1990), of conducting a de novo review of the district court’s legal conclusions, including whether a claim is warranted by existing law or constitutes a good faith argument for changing the law. See Cooter & Gell, 496 U.S. at 399-405,110 S.Ct. 2447. At the same time, however, the Court was careful to qualify the abuse-of-discretion standard as it relates to legal conclusions by stating that this standard would not preclude the appellate court’s correction of a district court’s legal errors, e.g., ... relying on a materially incorrect view of the relevant law in determining that a pleading was not “warranted by existing law or a good faith argument” for" }, { "docid": "14281878", "title": "", "text": "of Evidence 11 reads, in pertinent part: (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law .... Fed.R.Civ.P. 11. We review the district court’s imposition of sanctions under Rule 11 for the abuse of discretion. See Black Hills Inst. of Geological Research v. South Dakota Sch. of Mines & Tech., 12 F.3d 737, 745 (8th Cir.1993). We will only reverse a sanction when the district court based its decision “on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see also Miller v. Bittner, 985 F.2d 935, 938 (8th Cir.1993). We give “[d]eference to the determination of courts on the front lines of litigation” because these courts are “best acquainted with the local bar’s litigation practices and thus best situated to determine when a sanction is warranted.” Cooter & Gell, 496 U.S. at 404, 110 S.Ct. 2447. “Such deference will streamline the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court; it will also discourage litigants from pursuing marginal appeals, thus reducing the amount of satellite litigation.” Id. Reviewing the district court’s imposition of Rule 11 sanctions necessarily requires an examination of the underlying factual and legal claims, as well as the appropriateness of the sanction imposed. See Id. at 399,110 S.Ct. 2447. B. Racom’s Defenses and Counterclaims As stated" }, { "docid": "12875768", "title": "", "text": "If a court finds that a document is frivolous or interposed for an improper purpose, Rule 9011 requires the court to impose an “appropriate sanction,” see Fed. R.Bankr.P. 9011(a), although the court has discretion in determining what the sanction will be. See Cabell v. Petty, 810 F.2d 463, 466 (4th Cir.1987). “What is ‘appropriate’ may be a warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.” Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 878 (5th Cir.1988) (en banc). By providing for sanctions, the drafters envisioned that Rule 11 and Rule 9011 would “discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.” Fed.R.Civ.P. 11 advisory committee’s note. According to the Partnership, three documents filed by Akin Gump violate Rule 9011. The Partnership contends first that the motion for substantive consolidation was interposed for an improper purpose. Additionally, Akin Gump’s employment and fee applications violate Rule 9011 because they are not well grounded in fact. Akin Gump responds that Rule 9011 does not apply to the attor ney-client relationship, so it is not a cause of action available to disgruntled clients. Therefore, Rule 9011 is not available here as a basis for recovering sanctions. Accordingly, we turn to the issue of whether former clients may seek sanctions under Rule 9011. Similar to statutes, “[w]e ... interpret [Rule 9011] according to its plain meaning.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 391, 110 S.Ct. 2447, 2453, 110 L.Ed.2d 359 (1990) (citing Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989)). “[T]he sole function of the courts is to enforce [the statute or rule] according to its terms.” Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917), quoted in Ford Motor Credit Co. v. Reynolds & Reynolds Co. (In re JKJ Chevrolet, Inc.), 26 F.3d 481, 483 (4th Cir.1994). The Court of Appeals for the Fourth Circuit has elaborated" }, { "docid": "14573915", "title": "", "text": "in fact”; 3. that the legal theory behind the claims for relief were objectively “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law”; and 4. that the filing was “not interposed for any improper purpose” such as harassment, delay, or an unnecessary increase in cost. See id. If any of the first three conditions are not met, the filing is considered “frivolous”. If the fourth qualification is violated, the purpose of the filing is deemed “improper”. However, each condition has independent significance. When any one of the four elements of Rule 9011 is violated, the court must impose sanctions. Stuebben v. Gioioso (In re Gioioso), 979 F.2d 956, 960-61 (3d Cir.1992) (“where the court finds a violation of Rule 9011, the court must apply a sanction.... The court’s discretion lies not in its conclusion to sanction but in its determination of what sanction to apply.”) (citing Cinema Svs. Corp. v. Edbee Corp., 774 F.2d 584 (3d Cir.1985); Thomas v. Capital Security Svs., Inc., 836 F.2d 866, 877 (5th Cir.1988); Wise v. Pea Ridge School District No. 109, 675 F.Supp. 1524 (W.D.Ark.1987), aff'd, 855 F.2d 560 (8th Cir.1988); In re Powers, 135 B.R. 980, 998 (Bankr.C.D.Cal.1991)); accord Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 847 F.2d 597, 599 (9th Cir.1988); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 392, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990) (“An attorney who signs the paper [in violation of Rule 9011] ‘shall’ be penalized by ‘an appropriate sanction.’ ”). Rule 9011 of the Federal Rule of Bankruptcy Procedure and Rule 11 of the Federal Rule of Civil Procedure are nearly identical and serve a common goal. Thus, decisions under Rule 11 apply when deciding Rule 9011 motions. See In re Gioioso, 979 F.2d at 960; Caldwell v. Farris (In re Rainbow Magazine, Inc.), 136 B.R. 545, 550 (Bankr. 9th Cir.1992) (citing In re Chisum, 847 F.2d 597, 599 (9th Cir.1988)); Cinema Svs. Corp. v. Edbee Corp., 774 F.2d 584, 585 (3d Cir.1985); Putnam Trust Co. of Greenwich v. Frenz (In re" }, { "docid": "9926099", "title": "", "text": "consider whether sanctions would be appropriate against Bass. On remand, the district court assessed $25,000 in sanctions against Worldwide and $25,000 against Bass. Bass now appeals. An appellate court reviews all aspects of the district court’s Rule 11 determination for an abuse of discretion. Jones v. International Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir.1995) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)). We have previously stated that “Rule 11 stresses the need for some prefiling inquiry.” Mike Ousley Productions, Inc. v. WJBF-TV, 952 F.2d 380, 382 (11th Cir.1992). Rule 11 sanctions are proper “(1) when a party files a pleading that has no reasonable factual basis; (2)when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (3) when the party files a pleading in bad faith for an improper purpose.” Jones, 49 F.3d at 694. Imposition of sanctions on the attorney rather than, or in addition to, the client is sometimes proper “since it may well be more appropriate than a sanction that penalizes the parties for the offenses of their counsel.” See id. In this circuit, a court confronted with a motion for Rule 11 sanctions first determines whether the party’s claims are objectively frivolous—in view of the facts or law— and then, if they are, whether the person who signed the pleadings should have been aware that they were frivolous; that is, whether he would have been aware had he made a reasonable inquiry. Id. If the attorney failed to make a reasonable inquiry, then the court must impose sanctions despite the attorney’s good faith belief that the claims were sound. Id. The reasonableness of the inquiry “may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the [violative document]; ... or whether he depended on forwarding counsel or another" }, { "docid": "11388983", "title": "", "text": "court adopted the suggested amount. DISCUSSION Rule 11, prior to its amendment in 1993, provided in relevant part: The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of. this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it ... an appropriate sanction.... Fed.R.Civ.P. 11 (1992). Under the version of Rule 11 in effect at the time of the district court’s decisions, the imposition of sanctions was mandatory upon finding a violation of the Rule. Where a district court has imposed sanctions pursuant to this version of the Rule, we review for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-405, 110 S.Ct. 2447, 2457-2461, 110 L.Ed.2d 359 (1990); Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir.1993). We first consider whether the district court abused its discretion in ruling that Smith violated Rule 11, and we then consider the relevance of the 1993 amendment to Rule 11. A. ' Knipe v. Skinner In Knipe v. Skinner, 146 F.R.D. at 60-61, the district court concluded that Smith violated Rule 11 by filing a complaint that to the best of Smith’s “knowledge, information, and belief formed after reasonable inquiry” was not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;” Fed. R.Civ.P. 11. An attorney’s good faith belief in his or her argument must be supported by an objectively reasonable inquiry into its viability. As we stated in Eastway Const. Corp. v. City of" }, { "docid": "7328741", "title": "", "text": "offer if a good-faith evaluation of the respective positions of the parties in the case would indicate that such an offer would be appropriate and adequate resources are available. Finally, as an alternative basis for sanctions, the court concluded that they were justified because Hughes and Brown did not attend the settlement conferences with an “open mind” and, therefore, had not made a good-faith effort to settle. ii. The appellants contend, inter alia, (1) that the district court exceeded its authority by imposing sanctions based on its construction of the Local Rule to include, as an essential element of a “good faith effort to settle”, making an offer commensurate with the party’s litigation exposure; and (2) that the court’s finding of bad faith is otherwise clearly erroneous. Although we conclude that the district court’s application of the Local Rule is a sufficient ground for vacating the sanctions, we address, as well, its alternative basis for sanctions — the ultimate finding of bad faith by Hughes and Brown as a result of their conduct. We do so because of the serious cloud on their professional reputations caused, not only by that finding, but also by the findings upon which it was based. Sanctions are reviewed for abuse of discretion. American Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 529 (5th Cir.1992). “[T]he threshold for the use of inherent power sanctions is high”. Elliott v. Tilton, 64 F.3d 213, 217 (5th Cir.1995). Accordingly, “[i]n order to impose sanctions against an attorney under its inherent power, a court must make a specific finding that the attorney acted in ‘bad faith’.” Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir.1995). And, a “district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence”. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). See also Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 444 (5th Cir.1992). “Generally, an abuse of discretion only" }, { "docid": "7181687", "title": "", "text": "the light of Minor’s media-actions, precisely the type of conduct Rule 11 is designed to remedy. Id. at 802. Kmart petitioned for panel rehearing. In September 2002, our court decided sua sponte to review en banc, thereby vacating the panel opinion. 308 F.3d 472 (5th Cir.2002) (en banc). II. Rule 11(b) provides in pertinent part: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; [and] (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.... Fed. R. Civ. P. 11(b) (emphasis added). Each obligation must be satisfied; violation of either justifies sanctions. See, e.g., Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir.1999). And, in determining compliance vel non with each obligation, “the standard under which an attorney is measured is an objective, not subjective, standard of reasonableness under the circumstances”. Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th Cir.1994). Rule 11 sanctions are reviewed only for an abuse of discretion, e.g., Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 884 (5th Cir.1997), including reviewing factual findings only for clear error, e.g., Crowe v. Smith, 261 F.3d 558, 564 (5th Cir.2001). This abuse of discretion standard is necessarily very deferential, for two reasons. First, “based on its ‘[f]amiliar[ity] with the issues and litigants, the district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11’ ”. Lulirama, Ltd., 128 F.3d at 884 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990);" }, { "docid": "12875767", "title": "", "text": "far too much” in negotiating the settlement, we believe, in light of our findings above, that he has not suffered any injury as a result of Akin Gump’s conduct, but rather has benefited substantially thereby. Accordingly, we deny the Partnership’s request for damages. E. We turn now to Federal Rule of Bankruptcy Procedure 9011, which the Partnership cites as additional authority for imposing sanctions. As the bankruptcy counterpart to Federal Rule of Civil Procedure 11, Rule 9011 requires at least one individual attorney or pro se litigant to sign “[e]very petition, pleading, motion and other paper served or filed in a case under the [Bankruptcy] Code_” Fed.R.Bankr.P. 9011(a). Through his or her signature, the attorney effectively certifies that the document is “well grounded in fact,” legally tenable, and “not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation or administration of the ease.” Id.; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990). If a court finds that a document is frivolous or interposed for an improper purpose, Rule 9011 requires the court to impose an “appropriate sanction,” see Fed. R.Bankr.P. 9011(a), although the court has discretion in determining what the sanction will be. See Cabell v. Petty, 810 F.2d 463, 466 (4th Cir.1987). “What is ‘appropriate’ may be a warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.” Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 878 (5th Cir.1988) (en banc). By providing for sanctions, the drafters envisioned that Rule 11 and Rule 9011 would “discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.” Fed.R.Civ.P. 11 advisory committee’s note. According to the Partnership, three documents filed by Akin Gump violate Rule 9011. The Partnership contends first that the motion for substantive consolidation was interposed for an improper purpose. Additionally, Akin Gump’s employment and fee applications violate Rule 9011 because they are not" }, { "docid": "12066965", "title": "", "text": "of the failure to recommend imposition of Rule 11 sanctions. This Court declines to impose sanctions on pro se plaintiff, but emphasizes the caution contained in the Report and Recommendation regarding any future actions filed in forma pauperis. The court did not discuss the Rule 11 motion further, and did not make any finding regarding whether Warren had violated Rule 11 in filing his complaint. Warren has filed no brief in response to appellant’s appeal. II. Standard of Review Rule 11 provides for the imposition of sanctions when a motion is frivolous, legally unreasonable, or without factual foundation, or is brought for an improper purpose. Conn v. Borjorquez, 967 F.2d 1418, 1420 (9th Cir.1992); Operating Engineers Pension Trust v. A-C Company, 859 F.2d 1336, 1344 (9th Cir.1988). This court reviews findings of historical fact under the clearly erroneous standard, the determination that counsel violated Rule 11 under a de novo standard, and the choice of sanction under an abuse of discretion standard. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399, 110 S.Ct. 2447, 2457, 110 L.Ed.2d 359 (1990) (citing Zaldivar v. Los Angeles, 780 F.2d 823, 828 (9th Cir.1986). III. Discussion The new Rule 11 provides: (a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. * H* * * * * (b) Representations to Court. By presenting to the court ... a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— si: ‡ (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further" }, { "docid": "15203951", "title": "", "text": "has held that the district court retains jurisdiction over a sanctions motion presented after a Rule 41(a)(1) dismissal. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Although not specifically stating that the same would apply following a voluntary dismissal under Rule 41(a)(2), a logical interpretation of Cooter would extend the Supreme Court’s reasoning to a Rule 41(a)(2) dismissal, and therefore we believe the district court maintained jurisdiction over the sanctions motion. Id. Our jurisdiction arises pursuant to 28 U.S.C. § 1291. In their motion filed with the district court, defendants sought sanctions pursuant to Federal Rules of Civil Procedure 11 and 37, as well as 28 U.S.C. § 1927. In their brief filed with this court and at oral argument, however, counsel for the defendants claim that sanctions are sought only pursuant to Rule 11. Thus, we consider only the Rule 11 claims. Rule 11 requires attorneys to sign pleadings, motions, and other papers. The attorney’s signature warrants that the documents are well grounded in fact and in law, or presents a good faith argument for extending, modifying, or reversing the existing law. The attorney’s signature also warrants that the document is not interposed for an improper purpose. Cooter, 496 U.S. at 392, 110 S.Ct. at 2454. We have held that Rule 11 sanctions must be imposed if a party has not performed a reasonable inquiry into the facts surrounding a summary judgment motion. Goka v. Bobbitt, 862 F.2d 646, 650 (7th Cir.1988). We review Rule 11 sanctions decisions for an abuse of discretion, reversing only if the district court based its decision on an erroneous view of the law or the facts. Cooter, 496 U.S. at 405, 110 S.Ct. at 2460. The defendants argue that Dunn’s failure to disclose the January notice was fraudulent, and illustrates an inadequate inquiry into the factual basis of the motion. They assert that Dunn wrongfully argued for protectibility of the sign in light of the January notice and that the January notice establishes that the summary judgment motion was legally baseless. Trademark interests are protected" }, { "docid": "16115224", "title": "", "text": "of discretion the imposition of rule 11 sanctions. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405-06, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). A district court necessarily would abuse its discretion if it imposed sanctions based upon an erroneous view of the law or a clearly erroneous assessment of the evidence. Id. The courts judge an attorney’s compliance with rule 11 by an objective standard of reasonableness under the circumstances. Thomas v. Capital Sec. Servs., 836 F.2d 866, 873 (5th Cir.1988) (en banc). Reasonableness is reviewed according to the “snapshot” rule, focusing upon the instant the attorney affixes his signature to the document. Id. at 874. See also Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 536 (5th Cir.1990). In determining whether an attorney has made a reasonable factual inquiry, a court may consider factors such as the time available to the signer for investigation; the extent of the attorney’s reliance upon his client for the factual support of the document; the feasibility of a prefiling investigation; whether the signing attorney accepted the case from another member of the bar; the complexity of the factual and legal issues; and the extent to which development of the factual circumstances underlying the claim requires discovery. In determining the reasonableness of a legal inquiry, a court may consider the time available to the attorney; the plausibility of the legal view contained in the document; the pro se status of a litigant; and the complexity of the legal and factual issues raised. Thomas, 836 F.2d at 875-76. IV. We view the attorney’s duty under rule 11 as particularly important in RICO cases: Given the resulting proliferation of civil RICO claims and the potential for frivolous suits in search of treble damages, greater responsibility will be placed on the bar to inquire into the factual and legal bases of potential claims or defenses prior to bringing such suit or risk sanctions for failing to do so. Chapman & Cole v. Itel Container Int’l B.V., 865 F.2d 676, 685 (5th Cir.) (quoting Black & Magenheim, Using the RICO Act in Civil Cases," }, { "docid": "16231366", "title": "", "text": "under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Fed. R. Bankr.P. 9011(b). A basic purpose of Rule 9011 is to deter baseless filings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Sanctions may be imposed for any violation of Rule 9011(b). Sanctions may be imposed against both an attorney and the party they represent. In re Val W. Poterek & Sons, Inc., 169 B.R. 896, 909 (Bankr.N.D.Ill.1994). The Debtor contends that Plaintiffs violated Rule 9011(b)(1), (b)(2), and (b)(3). Allegations Pleaded in the Second Amended Complaint Did Not Lack some Factual Support Rule 9011(b)(3) requires an attorney to perform a reasonable preliminary investigation of the facts and applicable law before filing a paper. In re American Telecom, 319 B.R. at 868. This subdivision contains an objective component, a paper filed in the best of faith is sanctionable if counsel neglected to make a reasonable inquiry beforehand. Mars Steel Corp., 880 F.2d 928 (7th Cir.1989) (en banc); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1083 (7th Cir.1987) cert. dismissed, 485 U.S. 901, 108 S.Ct. 1101, 99 L.Ed.2d 229(1988) (explaining that the objective component is analogous to the tort of abuse of process); In re Collins, 250 B.R. 645 (Bankr.N.D.Ill.2000). Debtor asserts that Plaintiffs knowingly plead Paragraphs 16, accusing the Debtor of making a misrepresentation of the value of the Office Building and Paragraphs 26-30, accusing the Debtor" }, { "docid": "7181688", "title": "", "text": "either justifies sanctions. See, e.g., Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir.1999). And, in determining compliance vel non with each obligation, “the standard under which an attorney is measured is an objective, not subjective, standard of reasonableness under the circumstances”. Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th Cir.1994). Rule 11 sanctions are reviewed only for an abuse of discretion, e.g., Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 884 (5th Cir.1997), including reviewing factual findings only for clear error, e.g., Crowe v. Smith, 261 F.3d 558, 564 (5th Cir.2001). This abuse of discretion standard is necessarily very deferential, for two reasons. First, “based on its ‘[f]amiliar[ity] with the issues and litigants, the district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11’ ”. Lulirama, Ltd., 128 F.3d at 884 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); emphasis added). See also Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir.2001) (“the imposition of sanctions is often a fact-intensive inquiry, for which the trial court is given wide discretion” (emphasis added)). Second, the district judge is independently responsible for maintaining the integrity of judicial proceedings in his court and, concomitantly, must be accorded the necessary authority. See, e.g., Cooter & Gell, 496 U.S. at 404, 110 S.Ct. 2447; NASCO, Inc. v. Calcasieu Television and Radio, Inc., 894 F.2d 696, 702-03 (5th Cir.1990) (discussing inherent power of court), aff'd sub nom. Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). It was for these reasons that our court, in Thomas v. Capital Security Servs., Inc., 836 F.2d 866, 872 (5th Cir.1988) (en banc), established abuse of discretion, rather than in part de novo, as our standard of review for Rule 11 sanctions. This was confirmed by the Supreme Court in Cooter & Gell, partly with reasoning that rings true here: Rule ll’s policy goals also support" }, { "docid": "23123486", "title": "", "text": "sanctions is entitled to substantial deference. See Fahrenz v. Meadow Farm Partnership, 850 F.2d 207, 210 (4th Cir.1988). A district court “is in the best position to review the factual circumstances and render an informed judgment as [it] is intimately involved with the case, the litigants, and the attorneys on a daily basis.” Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 873 (5th Cir.1988) (en banc). Thus, “assessment of frivolousness and attorneys’ fees are best left to the sound discretion of the trial court after a thorough evaluation of the record and appropriate factfinding.” Arnold v. Burger King Corp., 719 F.2d 63, 66 (4th Cir.1983). The Supreme Court has recently indicated that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., - U.S. -, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). The Court reasoned that. Rule ll’s policy goals ... support adopting an abuse-of-discretion standard. The district court is best acquainted with the local bar’s litigation practices and thus best situated to determine when a sanction is warranted to serve Rule ll’s goal of specific and general deterrence. Deference to the determination of courts on the front lines of litigation will enhance these courts’ ability to control the litigants before them. Such deference will streamline the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court; it will also discourage litigants from pursuing marginal appeals, thus reducing the amount of satellite litigation. Id., 110 S.Ct. at 2460. We think these considerations apply not only to sanctions imposed under Rule 11, but also to those imposed under the other sanctions theories relied upon by the district court. Thus, in accordance with Cooter & Gell, we will reverse the district court’s imposition of sanctions here only if we find an abuse of discretion. B. Our summary of the district court’s factual findings is necessarily an abbreviated one. It is impossible to gain a full appreciation for the manner in which this" }, { "docid": "11414572", "title": "", "text": "review for abuse of discretion the district court’s order imposing sanctions under Fed.R.Civ.P. 11. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990); United, States v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). A district court abuses its discretion in imposing sanctions when it bases its decision “on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell, 496 U.S. at 405, 110 S.Ct. at 2461. Rule 11 requires that an attorney sign a pleading, motion, or other paper, only if, “to the best of [the attorney’s] knowledge, information and belief formed after reasonable inquiry!,] it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and ... is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Fed.R.Civ.P. 11. “The central purpose of Rule 11 is to deter baseless filings.” Borneo, Inc., 971 F.2d at 254 (citing Cooter & Gell, 496 U.S. at 393, 110 S.Ct. at 2454). A court may not impose sanctions where the attorney “conducted a reasonable inquiry and ... determined that any papers filed with the court are well-grounded in fact, legally tenable, and not interposed for some improper purpose.” Id. (reversing sanctions where claim was legally tenable); Greenberg v. Sala, 822 F.2d 882, 886-87 (9th Cir.1987) (reversing sanctions where factual errors did not render plaintiffs complaint factually frivolous); Zaldivar v. City of Los Angeles, 780 F.2d 823, 834-35 (9th Cir.1986) (reversing sanctions where successive filings did not amount to harassment), abrogated on other grounds, 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We conclude that the district court abused its discretion by sanctioning Newton’s attorney Childress in the amount of $10,000 for an “unnecessary and frivolous” choice of venue. In its Order, the district court explained that Childress had no good faith justification for filing the lawsuit in Illinois because, even though venue was proper," }, { "docid": "2464114", "title": "", "text": "did not award the least severe sanction that would serve the purposes of Rule 11, and (4) the district court abused its discretion in awarding Security the fees it incurred answering the meritorious claims as well as the frivolous claims. II We review all aspects of a district court’s award of Rule 11 sanctions for an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 872 (5th Cir.1988) (en banc). A Noteboom first asserts that, in order to comport with the guarantees of due process under the Fifth Amendment, the district court should have provided both a meaningful evidentiary hearing and an opportunity for discovery before awarding such costly sanctions. Although the required procedures may vary according to the interests at stake in a particular context, Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971), the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In the Rule 11 context, due process demands only that the sanctioned party be afforded notice and. an opportunity to be heard. Boddie, 401 U.S. at 379, 91 S.Ct. at 786; Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339, 346-47 (5th Cir.1990). What constitutes sufficient process depends on the circumstances of each case. See Fed. R.Civ.P. 11 advisory committee note (1983 Amendment) (“The procedure obviously must comport with due process requirements. The particular format to be followed should depend on the circumstances of the situation and the severity of the sanction under consideration.”). Therefore the question of whether a sanctioned attorney was given sufficient notice and opportunity to be heard involves a fact-intensive inquiry. The notice required depends on the conduct sanctioned by the court. An attorney who files court papers with no basis in" }, { "docid": "22561054", "title": "", "text": "was enjoined from filing any new actions against Prudential without first obtaining leave of court, and Rasch was ordered to pay Prudential $10,000. Riccard and Rasch challenge both the district court’s decision to impose sanctions against them for filing that motion as well as the nature and extent of the sane- tions imposed. We review a district court’s Rule 11 determinations only for an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). Rule 11 requires district courts to impose “appropriate sanctions,” after notice and a reasonable opportunity to respond, where an attorney or party submits a pleading to the court that: (1) is not well-grounded in fact, i.e., has no reasonable factual basis; (2) is not legally tenable; or (3) is submitted in bad faith for an improper purpose. See Fed.R.Civ.P. 11(b). The objective standard for assessing conduct under Rule 11 is “reasonableness under the circumstances” and “what [it] was reasonable to believe at the time” the pleading was submitted. Baker v. Alderman, 158 F.3d 516, 524 (11th Cir.1998). Sanctions are warranted when a party exhibits a “deliberate indifference to obvious facts,” but not when the party’s evidence to support a claim is “merely weak.” Id. The district court did not abuse its discretion in imposing sanctions against them for filing the motion for sanctions. Their motion was part of a pattern of re-argument and re-litigation that has marked their efforts in this lawsuit, and that is not a proper use of Rule 11. See Advisory Committee Notes, 1993 Amendments (“Rule 11 motions [should not] be prepared [in order to] emphasize the merit’s of a party’s position .... ”); see also Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir.1988) (imposition of sanctions was supported by evidence that litigant brought action based on allegations which had been adversely decided against him previously). And their Rule 11 motion was baseless. When the district court ruled on Prudential’s motion to compel arbitration the court had known, and they knew the court had known, that Prudential was not an" } ]

[ { "docid": "2108840", "title": "", "text": "solely on the volume and the cumbersomeness of the documents involved, we would be presented with a different situation. See United States v. American Optical Co., 39 F.R.D. 580, 587 (N.D.Cal.1966); Miller v. Sun Chemical Corp., 12 F.R.D. 181 (D.N.J.1952). The central question in this appeal therefore revolves on the degree of control required to impose an obligation to produce the documents pursuant to Rule 45 in the southern district of Florida. In In Re North American Acceptance Corp., 21 F.R.Serv.2d 612 (N.D.Ga.1975), the district court addressed the question of “whether the territorial limitations imposed by F.R.Civ.P. 45(d)(2) apply to protect a nonparty corporation, served with a subpoena in a district outside of the state of its principal business, when the subpoena calls for the production in that district of documents located at its principal offices... . ” Id. at 614-615. The court concluded: A corporation may not realistically be considered fungible everywhere it does business. Therefore, even positing that this court has personal jurisdiction , it is unreasonable to assume that these appellants’ local offices “control” all documents kept at their respective corporate headquarters .... In the absence of such control, therefore, even the existence of personal jurisdiction in this court is insufficient to create jurisdiction over the documents which are outside of the district. Id. at 617. Similarly, in the case at bar C.T. Corporation does not “control” the documents sought by Jones. The documents are located at the Olympic Committee’s headquarters in Colorado Springs. In view of the minimal contacts of the Olympic Committee with the southern district of Florida, this lack of control, and Jones’ apparent ability to obtain the documents through another federal district court, we hold that the district court did not abuse its discretion in quashing the subpoena. We therefore, AFFIRM. . A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A" } ]

[ { "docid": "4940714", "title": "", "text": "page 220, 71 S.Ct. 675, 679, 95 L.Ed. 879, the Supreme Court had this to say: “Rule 17 provided for the usual subpoena ad testificandum and dieces tecum, which may be issued by the clerk, with the provision that the court may direct the materials designated in the subpoena duces tecum to be produced at a specified time and place for inspection by the de fendant. Rule 17 (c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.” Paraphrasing what the Supreme Court there stated, applying it to the instant factual situation, and to Rule 45, F.R.C. P., it may be said that Rule 45(d) provides for the usual subpoena duces tecum, which may be issued by the Clerk without any further showing made than “proof of service of a notice to take a deposition”; thereby a party may compel the production at a deposition hearing of designated documents, etc., “which constitute or contain evidence relating to any matters within the scope of the examination permitted by Rule 26(b); * * subject to the provisions of subdivision (b) of Rule 30 and subdivision (b) of * * * Rule 45.” In the Bowman Dairy case, supra, the Court further said, 341 U.S. at page 221, 71 S.Ct. at page 679, “In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena.” Again paraphrasing the Supreme Court, it may be said that in Federal Civil Procedure, under the mandate of Rule 45(d), “any matter, not privileged, which is relevant to the subject matter involved in the pending action”, Rule 26(b), which “constitutes or contains evidence” may be sought by subpoena duces tecum as a matter of right, subject only to the restrictive provisions of Rules 45(b) and 30(b). Therefore, where the deposition of a person, not a party to the action, is sought to be taken, and subpoena duces tecum is issued under" }, { "docid": "2388419", "title": "", "text": "taken for use in any contested ease pending in the Patent Office, shall, upon the application of any party thereto, or of his agent or attoi'ney, issue a subpoena for any witness residing or being within such district or Territory, commanding him to appear and testify before any officer in such district or Territory authorized to take depositions and affidavits at any time and place in the subpoena stated. But no witness shall be required to attend at any place more than forty miles from the place where the subpoena is served upon him; and the provisions of section 647, of Title 28 relating to the issuance of subpoenas duces tecum shall apply to contested cases in the Patent Office.” (Emphasis supplied.) First paragraph of 35 U.S.C. § 24 after July 19,1952 “The clerk of any United States court for the district wherein testimony is to be taken for use in any contested case in the Patent Office, shall, upon the application of any party thereto, issue a subpoena for any witness residing or being within such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses and to the production of documents and things shall apply to contested cases in the Patent Office.” (Emphasis supplied.) The reference to Rule 45 was effectively-contained in the statute prior to the 1952 Act. Not only did the amending language alter this reference, but it also referred for the first time to the “provisions of the . . . Rules relating to . the production of documents and things.” These exact words were used in the title of Rule 34 as it existed in 1952. The title to this Rule, as amended in 1946, read as follows in 1952: “Rule 34. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing.” As opposed to this title, the titles and subtitles of Rule 45 read as follows: “Rule 45." }, { "docid": "11918403", "title": "", "text": "available to the corporation.” 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2102, at 30-31 (2d ed.1994). Essentially, “[i]n a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation.” Sprint Commc’ns. Co. v. Theglobe.com, Inc., 236 F.R.D. 524, 527 (D.Kan.2006). Thus, like any person named in a subpoena to appear as a deponent or witness, a corporation may be named in a subpoena issued under Rule 45, which “command[s] each person to whom it is directed to attend and give testimony” at a trial or deposition. Fed.R.Civ.P. 45(a)(1)(C) (emphasis added); see Fed. R.Civ.P. 30(a)(1) (“A party may take the testimony of any person, including a party, by deposition upon oral examination ....”) (emphasis added). Thus, the word “person” in Rule 45 is not limited merely to “natural persons” but includes juristic persons like corporations and governments as well. Cf. Yousuf v. Samantar, 451 F.3d 248, 257 (D.C.Cir.2006) (explaining that “[t]he term ‘person’ as used in the Federal Rules of Civil Procedure consistently means ... natural persons and business associations ... [as well as] governments” and holding that “the Government is a ‘person’ subject to subpoena under Rule 45”). If a party to an inter partes proceeding wishes to take the trial testimony of an adverse party or an official of an adverse party who is unwilling to appear voluntarily, then the examining party must secure attendance of the deponent by subpoena. See Health-Tex, Inc. v. Okabashi (U.S.) Corp., 18 U.S.P.Q.2d 1409, 1410 (T.T.A.B.1990). As mentioned previously, the TTAB is not vested with the power to subpoena witnesses in inter partes PTO cases. Under 35 U.S.C.A. § 24, Congress instead granted to district courts the power to enforce the rights of litigants to secure the presence of witnesses in contested proceedings in the PTO: “The clerk of any United States court for the district wherein testimony is to be taken for use in any contested case in the Patent and Trademark Office, shall, upon the application of any party thereto, issue a subpoena for any witness residing or" }, { "docid": "1669454", "title": "", "text": "along with co-counsel and a court reporter, must all be brought to Amsterdam if Shelden’s deposition is to be properly taken. Plaintiff points to defendant Shelden’s considerable wealth and asserts that the travel of a single individual, Shelden himself, to a deposition in Michigan would involve considerably less cost, delay and inconvenience. Plaintiff also notes that the deposition of Shelden, referred to by defense counsel, was a de bene esse deposition by Shelden’s own counsel, taken for the benefit of defendant himself. A notice for the taking of a deposition sent to all parties is all that is necessary to require attendance of parties at their depositions. A subpoena is not necessary if the person to be examined is a party. Wright and Miller, Federal Practice and Procedure: Civil, Sec. 2107. Thus, Rule 45(d)(2) is not applicable to depositions of parties. See 4A Moore’s Federal Practice Sec. 30.55[1], at 30-67; 5A Moore’s Federal Practice Sec. 45.08, at 45-81 & Para. 45.07[1], at 45-60. Instead, an “examining party may set the place for the deposition of another party wherever he wishes subject to the power of the court to grant a protective order under Rule 26(c)(2) designating a different place.” Wright and Miller, supra at Sec. 2112. It is within the discretion of the court to designate the location for a taking of depositions, and each application must be considered on its own facts and equities. Terry v. Modem Woodman of America, 57 F.R.D. 141 (W.D.Mo.1972). While a court may order a defendant to appear at any convenient place, case law indicates that “it will be presumed that the defendant will be examined at his residence or place of business or employment.” 4 Moore’s Federal Practice Sec. 26.70[1—3], at 26-514 and cases cited therein. From these principles has evolved the rule that in federal litigation, in the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located. Salter v. Upjohn Co., 593 F.2d 649, 671 (5th Cir.1979), Dunn v. Standard Fire Insurance Co., 92 F.R.D. 31 (E.D.Tenn.1981) General Leasing Co. v. Lawrence Photo-Graphic Supply," }, { "docid": "23486510", "title": "", "text": "each of which stores is identified by the name Payless Drug Stores or by some variant thereof using the name ‘Payless’ or ‘Pay Less’. “Defendant Skaggs Payless Drug Stores has its principal place of business in the County of Alameda, State of California. On information and belief, that said defendant Skaggs Payless Drug Stores has there at all times acted and now acts as the authorized agent for all other defendants in all the matters and conduct heroin complained of, including, but not limited to, the inducing of breaches of contract as hereinafter alleged, and that, accordingly, all other defendants have done and now do business in the County of Alameda, State of California, at least with respect to said matters and conduct.” . The affidavits of Theodore H. Zimmerman and of Glynn E. Tucker state as a fact that neither Tucker nor the Skaggs Payless Drug Stores was or is the agent of defendant Zimmerman. . Rule 45(d) of the Federal Rules of Civil Procedure provides: “(1) Proof of service of a notice to take a deposition as provided in Rules 30(a) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the district court for the district in which the deposition is. to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of subdivision (b) of Rule 30 and subdivision (b) of this Rule 45. “(2) A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is em: ployed on transacts his business in per-, son, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in" }, { "docid": "14278512", "title": "", "text": "York and New Jersey, 100 F.R.D. 810, 812 (S.D.N.Y.1984). Second, personal injury actions such as this are usually tried to a jury. Cascone v. Ortho Pharmaceutical Corp., supra, 702 F.2d at 392; Unger v. Cunard Line, Inc., 100 F.R.D. 472, 474 (S.D.N.Y.1984). Finally, there is no demonstrable prejudice to defendant if the motion is granted. Sherwood Apartments v. Westinghouse Electric Corp., 101 F.R.D. 102, 104 (W.D.N.Y. 1984). Accordingly, plaintiffs’ motion for a jury trial as to all issues in the action is granted. 3. The Discovery Motions Finally, plaintiffs seek an order compelling defendant to produce Toni Buffalino for deposition. Fed.R.Civ.P. 30(b)(6). Defendant claims Ms. Buffalino is no longer an employee, and has cross-moved for a protective order requiring that any deposition of Ms. Buffalino be taken in California, where she resides. Because Ms. Buffalino is no longer an employee of defendant, her attendance at a deposition may be compelled only by subpoena. Sykes International, Ltd. v. Pilch’s Poultry Breeding Farms, Inc., 55 F.R.D. 138, 139 (D.Conn.1972). The subpoena must be issued by the Clerk of the Court for the district in which the deposition is to be taken. Fed.R.Civ.P. 45(d)(1). If Ms. Buffalino resides in the district where the subpoena is served, then the deposition shall take place in the county in which she resides, is employed, or transacts business. If she does not reside in that district, the deposition shall take place in the county in which she is served with the subpoena or within 40 miles of the place of service. Additionally, the Court has the power to fix any other convenient place for taking the deposition. Fed.R.Civ.P. 45(d)(2). The record does not reflect service of a subpoena upon Ms. Buffalino. In the absence of such a subpoena, no Order can be issued compelling the witness’s deposition at any location. Accordingly, there is no need for a protective order. For the foregoing reasons, then, plaintiffs’ motion to amend the complaint is granted, their motion for a jury trial is granted, and their motion to compel discovery is denied. Plaintiffs will serve and file their amended complaint within" }, { "docid": "473819", "title": "", "text": "even hints that any other court may be given the power to quash or enforce them. See Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 227-29 (D.P.R.1992) (quoting Advisory Committee Notes on 1991 amendments). There are other textual difficulties with transfer of motions to quash. Rule 45(c)(3)(A)(ii) directs the issuing court to quash or modify a subpoena that requires a nonparty to travel more than 100 miles from the place where the nonparty “resides, is employed or regularly transacts business in person.” This restriction is obviously hard to square with a principle that allows the issuing court to transfer the motion to quash to another district—in this case, the parties tell us, a district 892 miles away. Perhaps more significant, not only would a transferee court lack statutory authority to quash or enforce another court’s subpoena, it would often lack personal jurisdiction over the non-party. The principle that courts lacking jurisdietion over litigants cannot adjudicate their rights is elementary, and cases have noted the problem this creates for the prospect of transferring nonparty discovery disputes. See Byrnes, 111 F.R.D. at 70 & nn.l & 2; cf. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) (noting requirement of personal jurisdiction in alternative forum for dismissal under the forum non conveniens doctrine); 28 U.S.C. § 1404(a) (allowing transfer to any other district “where [the action] might have been brought”). More generally, the rules governing subpoenas and nonparty discovery have a clearly territorial focus. Applications for orders compelling disclosure from nonparties must be made to the court in the district where the discovery is to be taken; failure to comply with such an order is a contempt of that court. Fed.R.Civ.P. 37(a)(1); 37(b). Subpoenas for attendance at a trial must issue from the court for the district in which the trial is held; for attendance at a deposition, from the court for the district in which the deposition is to be taken. Fed.R.Civ.P. 45(a)(2). (Rule 34(c) explicitly makes the subpoena process of Rule 45 the route to compelling production of documents from nonparties.) It" }, { "docid": "5073183", "title": "", "text": "of deposition and subpoena had been directed to Jordan-Delaware to make Sandvik available for questioning and not to Sandvik individually, Jordan-Delaware could not be held in contempt for failure to comply since Sandvik is not an officer of Jordan-Delaware. Respondents’ second defense is that 35 U.S.C. § 24 only authorizes the court to issue subpoenas for witnesses residing or being within the district. Lindbo, Sandvik, and Holtermann all re side and work outside this district, and so are outside this Court’s subpoena power. Once again, Johnson & Johnson contends that the subpoenas were in reality directed to Jordan-Delaware, which is a “resident” of this district by virtue of its incorporation in Delaware. Conceding Johnson & Johnson’s contention, the result remains the same. 35 U.S.C. § 24 incorporates the Federal Rules of Civil Procedure relating to the attendance of witnesses and the production of documents. The attendance of a non-party witness at a deposition can only be compelled in accordance with Rule 45. Chemical Specialties Co. v. Ciba Pharmaceutical Prod., 10 F.R.D. 500 (D.N.J.1950); 4 J. Moore, Federal Practice ¶ 26.70 [1.1]. It has been held that under Rule 45 a witness who is an officer of a non-party corporation must submit to examination pursuant to a subpoena served on the corporation, but the examination must take place where the officer-witness resides or at the corporation’s principal place of business. Less v. Taber Instrument Corp., 53 F.R. D. 645 (W.D.N.Y.1971). Jordan-Delaware’s principal place of business is in Connecticut. Hence, even if the notices of depositions and the subpoenas had been directed to Jordan-Delaware there would have been no necessity for it to produce its officers for depositions to be taken in Wilmington. Johnson & Johnson suggests that not only were the notices of depositions and the subpoenas directed to Jordan-Delaware, but also that Jordan-Delaware is the alter ego of Jordan-Norway, its foreign parent, so that the notices and subpoenas were directed in fact to a party, and a corporate party can be compelled to make its officers available for depositions in the place of incorporation. Johnson & Johnson has cited no" }, { "docid": "2328290", "title": "", "text": "self-incrimination . . . .” Record in No. 80-1338, at 24. II Fleischacker first raises the issue whether the Fifth Circuit Court of Appeals has jurisdiction to decide his appeal. We agree with him that this court lacks jurisdiction and that the appeal should be heard by the Court of Appeals for the Second Circuit. The District Court for the Southern District of New York issued the subpoena requiring Fleischacker to appear for the March 10 deposition under the authority of Fed.R.Civ.P. 45. Rule 45(d)(2) provides: A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of court. This rule makes it clear that Fleischacker, who was in the vicinity of New York, could have been required to appear for a deposition only in, or near, New York. He certainly could not have been compelled to travel to Houston, in the Southern District of Texas, to be deposed. As a non-party witness, he was not even subject to the jurisdiction of the District Court for the Southern District of Texas. The policy behind the rule is to avoid unnecessary inconvenience and expense to deponents. The same policy concern underlies Fed.R. Civ.P. 37, which governs the imposition of sanctions upon persons unjustifiably resisting discovery. Rule 37(a)(1) provides: “An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.” This provision indicates that the only court that had the power to compel Fleischacker, a non-party deponent, to answer questions at a deposition conducted in the Southern District of New York was the district" }, { "docid": "8428200", "title": "", "text": "this opinion the court will consider the issues as to both groups of subpoenas together. The court has been informed that the United States Patent Office has granted Nobile and Schering Corporation an extension of time within which to take testimony in the pending interference proceedings in the Patent Office, and in view of that fact the court will now turn to the primary questions before it: (1) Are Nobile and Schering Corporation, assignee, legally entitled under the subpoenas issued February 23d to take the testimony of Hogg, Korman, and Allen; and (2) is The Upjohn Company, under the subpoenas duces tecum issued February 23d, legally required to produce the books, papers, and documents listed and enumerated in the subpoenas for examination by Nobile and Schering Corporation? Title 35 U.S.C.A. § 24, provides in part: “The clerk of any United States court for the district wherein testimony is to be taken for use in any contested ease in the Patent Office, shall, upon the application of any party thereto, issue a subpoena for any witness residing or being within such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses and to the production of documents and things shall apply to contested cases in the Patent Office.” Under § 24, which I have just quoted, the applicable rules of civil procedure must be considered in determining the questions before the court relative to the attendance of witnesses and the production of documents. Rules 26, 30, 34, and 45, Fed.Rules Civ.Proc. 28 U.S.C.A. relating to the attendance of witnesses and the production of documents are applicable in the present proceeding. Rule 34 provides in part: “Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection" }, { "docid": "23486511", "title": "", "text": "take a deposition as provided in Rules 30(a) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the district court for the district in which the deposition is. to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of subdivision (b) of Rule 30 and subdivision (b) of this Rule 45. “(2) A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is em: ployed on transacts his business in per-, son, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of court.” . It is not necessary to obtain the subpoena from the district'court in which the action is pending; any district court is authorized to issue such a subpoena • upon proof of service of a notice to take a deposition in that district. . The court in that case held, 314 U.S. at pages 492-494, 62 S.Ct. 405-406, that where the plaintiff’s action is condemned by statute, or is against public policy, and the right sought to be vindicated is inimical to the public welfare, the defense of “unclean hands” is available, even though there is no relation between the plaintiff’s “unclean hands” act and the relief sought." }, { "docid": "16304781", "title": "", "text": "30(b)(6) witness is “ ‘speaking for the corporation,’ and this testimony must be distinguished from that of a ‘mere corporate employee ’ whose deposition is not considered that of the corporation and whose presence must be obtained by subpoena.” Thus, Twentieth Century Fox does not support Ethypharm’s request for testimony pursuant to Fed.R.Civ.P. 30 with regard to Cren, or the other potential witnesses listed in Ethypharm’s briefing. The statement in Twentieth Century Fox that a corporate employee’s “presence must be obtained by subpoena” supports Abbott’s analysis of the issue. Abbott argues that although Fed.R.Civ.P. 30(a)(1) permits litigants to take the deposition of any person or entity, the federal rules do not authorize the court to compel any such deposition. Rather, Rule 30(a)(1) recites that “attendance may be compelled by subpoena under Rule 45.” Rule 45(b)(2) provides for service of a subpoena in the United States. Rule 45(b)(3) provides for service in a foreign country if the subpoena is “directed to a United States national or resident who is in a foreign eoun-try.” Abbott avers that there is no provision for service of a United States deposition subpoena on a foreign national in a foreign country. Abbott contends that the only other relevant provision for compelling a deposition is Rule 37(d)(1)(A)®. Rule 37(d) is titled “Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.” Under this rule, the court may impose sanctions if “a party or a party’s officer, director, or managing agent” does not appear for a deposition “after being served with proper notice.” Abbott argues that none of those rules apply here as none of the foreign nationals at issue is contended to be subject to service of a subpoena or have been served with a subpoena to appear for deposition; none is a party to this litigation; and none is an officer, director, or managing agent of Abbott. The court agrees with Abbott that there is no textual basis in the federal rules for Ethyp-harm’s argument that the “control” test is applicable to the court’s consideration regarding its request" }, { "docid": "7440925", "title": "", "text": "on the production issue, we find it unnecessary to reach the question of privilege. Reversed and remanded for further proceedings not inconsistent herewith. . Rule 30(b)(6) provides that “[a] ‘party’ may in his notice and in a subpoena name as the deponent ... [a] governmental agency and describe with reasonable particularity the matters on which examination is requested. . . . the organization so named shall designate one or more officers ... or other persons who consent to testify on its behalf. The persons so designated shall testify as to matters known or reasonably available to the organization.” . The role of this representative is not in issue on this appeal. . 32 C.F.R. § 720.30(a) provides that litigants seeking unclassified Naval records should send a copy of a court order calling for their production to the Secretary of the Navy or other custodian of the records. 32 C.F.R. § 720.31(a) covering production of Naval records in absence of a court order requires a party to obtain approval of the Secretary of the Navy or the Judge Advocate General be fore findings of fact, opinions, or recommendations are released outside the Navy Department. . Fed.R.Civ.P. 45(d)(2), fixes the territorial limits of a subpoena for taking depositions as follows : “A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of court.” . The restriction of Rule 45(d)(2) as to non-parties is to be distinguished from the use of Rule 34, F.R.Civ.P., to require the production of documents by a party." }, { "docid": "18357846", "title": "", "text": "F.Supp. 145 (D.Md.1982). . The United States Capitol is 37 miles from this Court and approximately four miles from the State of Maryland border. . Rule 45(d)(2), Federal Rules of Civil Procedure reads as follows: A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of court. . In Application of Johnson & Johnson, supra, individuals identified as officers of Jordan-Delaware, a Connecticut corporation, were served with subpoenas demanding their appearance for a deposition in Wilmington, Delaware. They were not served personally but by service on Jordan-Delaware’s resident agent in Wilmington, Delaware. One of the three “officers” worked and resided in Connecticut, another worked and resided in Norway. The third was an officer of Jordan-Norway, Jordan-Delaware’s parent corporation, but had no direct affiliation with Jordan-Delaware. The court ruled the subpoenas were invalid because the respondent “officers” were directed to appear in their individual capacity, not as officers of Jordan-Delaware, and the service was on an agent of the corporation. Under Rule 45(c), Federal Rules of Civil Procedure, personal service is required when an individual is subpoenaed. The only other statements made in that case concerning Rule 45 were restatements of the obvious: (1) “The attendance of a non-party witness can only be compelled in accordance with Rule 45”. Id. at 178; and (2) “[A] witness who is an officer of a non-party corporation must submit to examination pursuant to a subpoena served on a corporation, but the examination must take place where the officer-witness resides or at the corporation’s principal place of business.” Id." }, { "docid": "23711078", "title": "", "text": "Container Antitrust Litigation, 662 F.2d 875 (D.C.Cir.1981), [t]he deposition proceedings remain anchored in the courts of the districts where they are being conducted, but be cause of the obvious policy reasons for allowing a single judge to preside over the disparate activity in a multidistrict case, the multidistrict judge is granted the same powers as a judge of those courts where the depositions are being taken. 662 F.2d at 880-881 (citations omitted) Section 1407(b) does not authorize this Court to “reach out, assert jurisdiction, and compel the non-party disputants to the out-of-district controversy to appear initially in this district.” In re Uranium Antitrust Litigation, 503 F.Supp. 33, 35 (N.D.Ill. 1980). But it does authorize a multidistrict judge to “go to other districts to hear and decide motions to compel discovery from non-parties.” 503 F.Supp. at 35. See also In re IBM Peripheral EDP Devices Antitrust Litigation, 411 F.Supp. 791, 792 (J.P.M.L.1976) (holding that § 1407(b) “plainly and clearly empowers a transferee judge to preside at depositions in any federal district without the specific authorization of the Panel” on Multidistrict Litigation). So, for example, when the Corrugated Container Antitrust Litigation was consolidated for pretrial proceedings in the Southern District of Texas before Judge Singleton, he invoked § 1407(b) to preside over depositions in several other districts by telephone from Texas. Judge Singleton thus exercised “the powers of a district judge of the District Court for the Southern District of New York” to “compel Fleischacker, a non-party deponent, to answer questions at a deposition conducted in the Southern District of New York,” and to hold him in contempt for refusing to answer. In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086, 1090-1091 (5th Cir.1980), reh. denied, 625 F.2d 1016 (5th Cir.1980), cert. denied sub nom. Adams Extract Co. v. Franey, 449 U.S. 1102, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981). Similarly, Judge Singleton exercised “the powers of the District Court for the District of Columbia” to compel a deponent to answer questions at a deposition in Washington, D.C., and to hold that deponent in contempt for refusing to answer. In re Corrugated" }, { "docid": "922883", "title": "", "text": "The problem arises because of the difference in the way the Federal Rules provide for the issuance of subpoenas for depositions and for trial. Under Fed.R.Civ.P. 45(a)(2), a subpoena commanding attendance at trial shall issue from the court for the district in which the trial is to be held, while a subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken. In the instant case, the deposition is to be taken in the Eastern District of Pennsylvania. That court, however, correctly refused to issue a subpoena because under Section VII of the FAA only this court can determine the enforceability of the arbitrator’s subpoena.- KCDC argues that because of the incompatibility of the wording of Section VII of the FAA and Fed.R.Civ.P. 45, it simply is not subject to the subpoena power of the arbitrator at all. In essence, it argues that a gap in the law exists, and that it has slipped through that gap. Thus, under KCDC’s view, only this court can enforce the arbitrator’s subpoena, but this court cannot compel KCDC to attend depositions scheduled in the Eastern District of Pennsylvania. Amgen, on the other hand, argues that the territorial limits of a district court’s subpoena do not apply to an arbitrator’s subpoena. Amgen suggests that a witness who refuses to comply with an arbitrator’s summons or subpoena can and must be brought before the court in the district in which the arbitration is pending, regardless of where the witness resides. Amgen does not explain how this Court can accomplish that feat, however, when its subpoena power is subject to the territorial limits of Fed.R.Civ.P. 45(b)(2), which provides that a subpoena “may be served at any place within the district of the court by which it is issued, or any place without the district that is within 100 miles of the place where the trial ... is to take place.” The court disagrees with both parties’ positions. KCDC’s argument is unavailing because it leaves a gap" }, { "docid": "11918391", "title": "", "text": "party residing in a foreign country may be compelled to appear for an oral testimonial deposition only through the procedures provided in The Hague Convention or the issuance of letters rogatory to the appropriate Portuguese legal authority. See Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) §§ 703.01(a), (f)(3) (2d ed.2003). In January 2006, VEL served Thomas Perkins — one of the lawyers designated by Rosenruist as its representative under § 1051(e) — with a Rule 30(b)(6) deposition subpoena directing the Rosenruist corporation to appear in McLean, Virginia, and produce the “person having [the] most knowledge” regarding, among other topics, “[t]he factual representations made in [Ro-senruist’s trademark] Application.” J.A. 140,142. The subpoena was issued by the district court for the Eastern District of Virginia pursuant to 35 U.S.C.A. § 24, which provides in pertinent part: The clerk of any United States court for the district wherein testimony is to be taken for use in any contested case in the [PTO], shall, upon the application of any party thereto, issue a subpoena for any witness residing or being within such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses ... shall apply to contested cases in the [PTO]. 35 U.S.C.A. § 24 (West 2001). Rosenruist moved pursuant to Rule 45(c)(3)(A) to quash the subpoena, see Fed. R.Civ.P. 45(c)(3)(A), arguing that the district court lacked the authority to subpoena a foreign resident to appear in the United States for a deposition, that VEL was attempting to circumvent the proper procedure for compelling Rosenruist’s testimonial deposition as outlined by the TTAB in its order denying VEL’s initial motion to compel, and that service of the subpoena on counsel for Rosenruist was ineffective even if the subpoena was valid. The magistrate judge concluded that the subpoena was properly issued and valid under 35 U.S.C.A. § 24 and rejected Ro-senruist’s argument that § 24 did not give the district court" }, { "docid": "18357845", "title": "", "text": "Section D which ends at the bottom of page 6; (a) That said documents are to be used by counsel for the plaintiff for the purpose of this litigation only; (b) That this first examination of documents is without prejudice to plaintiff’s right to examine those other documents specified in the plaintiff’s request. . When the subpoena was first issued, the Clerk of the United States House of Representatives was Edmund L. Henshaw, Jr. Upon Mr. Henshaw’s retirement on January 3, 1983, Benjamin J. Guthrie was elected as his successor. 129 Cong. Rec. H5 (daily ed. January 3, 1983). . This decision on the motion sub judice was stayed on July 16, 1982, pending this Court’s consideration of the possible impact of Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), and Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), on certain immunity issues which had been raised. The stay was lifted on December 22, 1982, in Benford v. American Broadcasting Companies, Inc., et al., 554 F.Supp. 145 (D.Md.1982). . The United States Capitol is 37 miles from this Court and approximately four miles from the State of Maryland border. . Rule 45(d)(2), Federal Rules of Civil Procedure reads as follows: A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the district may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of court. . In Application of Johnson & Johnson, supra, individuals identified as officers of Jordan-Delaware, a Connecticut corporation, were served with subpoenas demanding their appearance for a deposition in Wilmington, Delaware. They were not served personally but by service on Jordan-Delaware’s resident agent in Wilmington, Delaware. One" }, { "docid": "23711079", "title": "", "text": "the Panel” on Multidistrict Litigation). So, for example, when the Corrugated Container Antitrust Litigation was consolidated for pretrial proceedings in the Southern District of Texas before Judge Singleton, he invoked § 1407(b) to preside over depositions in several other districts by telephone from Texas. Judge Singleton thus exercised “the powers of a district judge of the District Court for the Southern District of New York” to “compel Fleischacker, a non-party deponent, to answer questions at a deposition conducted in the Southern District of New York,” and to hold him in contempt for refusing to answer. In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086, 1090-1091 (5th Cir.1980), reh. denied, 625 F.2d 1016 (5th Cir.1980), cert. denied sub nom. Adams Extract Co. v. Franey, 449 U.S. 1102, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981). Similarly, Judge Singleton exercised “the powers of the District Court for the District of Columbia” to compel a deponent to answer questions at a deposition in Washington, D.C., and to hold that deponent in contempt for refusing to answer. In re Corrugated Container Antitrust Litigation, 662 F.2d at 878-881. And Judge Singleton exercised his power under § 1407(b) “to sit as a district judge in Illinois” to compel deposition testimony of a third deponent in Chicago, and to hold him in contempt for refusing to answer. In re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1147-1148 (7th Cir.1981), affirmed sub nom. Pillsbury Co. et al. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). Thus, a multidistrict judge may decide a motion to compel a non-party in other districts even if he or she is not physically situated in those districts. Therefore, in this litigation I may, pursuant to § 1407(b), exercise the powers of the U.S. District Courts for the Southern District of Florida and the Northern District of Georgia to enforce the subpoenas issued by those Courts against Beach, AmeriFirst, FADA and FHLB-A. These non-parties are entitled, however, to produce documents in the districts within which they are situated. The moving defendants and the non-parties are encouraged to agree to an appropriate" }, { "docid": "4915876", "title": "", "text": "Mr. Kosow, an officer of the plaintiff, and called for his production of a variety of forms of documents. The defendant specified an address in New York City as the place for examining Mr. Kosow. The notice of examination served by the defendant does not, and never did, mention the address of Mr. Kosow or the county “wherein he resides or is employed or transacts his business in person” (Rule 45(d) (2); but the evidence shows that he resided and did business in Boston. So also, without procuring an order, it does not appear that Mr. Kosow was “required to attend only in the county wherein he is [was] served with a subpoena, or within 40 miles from the place of service” (Rule 45(d) (2). Moreover, it does not appear that there was tendered to the witness a subpoena requiring his attendance at a hearing or trial or that he was served “within the district, or at any place without the district that is within 100 miles of the * * * hearing or trial specified in the subpoena” (Rule 45(e) (1). Finally, so far as appears, no order of court was made which commanded “the production of documentary evidence [such as here called for] on the taking of a deposition” (Rule 45(d) (1). I shall not now discuss the numerous provisions of the rules recited or the ex tent to which those applicable were not ■complied with. I believe it is enough to concentrate on a single feature. There was a plethora of defects in regard to taking the deposition of Mr. Kosow. One fault, however, was incurable and it will be enough to mention its authoritative description of it in 2 Moore’s Federal practice, page 2465. There the learned writer said: “ * * * if the defendant serves an answer which contains a counterclaim against the plaintiff, both parties would have to wait until a reply containing an answer to the counterclaim had been served before they could proceed to take depositions as of right with respect to the counterclaim.” The single error pointed out, as I" } ]

[ { "docid": "22854313", "title": "", "text": "however, appellant’s argument must be rejected. Our prior decisions plainly establish that agreements providing for an aggregation of trade restraints such as those existing in this case are illegal under the Act. Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211, 213; United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 223-224 and note 59; United States v. National Lead Co., 63 F. Supp. 513, affirmed, 332 U. S. 319; United States v. American Tobacco Co., 221 U. S. 106, 180—184; Associated Press v. United States, 326 U. S. 1, 15. See also United States v. Aluminum Co. of America, 148 F. 2d 416, 439-445. The fact that there is common ownership or control of the contracting corporations does not liberate them from the impact of the antitrust laws. E. g., Keifer-Stewart Co. v. Seagram & Sons, supra at 215. Nor do we find any support in reason or authority for the proposition that agreements between legally separate persons and companies to suppress competition among themselves and others can be justified by labeling the project a “joint venture.” Perhaps every agreement and combination to restrain trade could be so labeled. Nor can the restraints of trade be justified as reasonable steps taken to implement a valid trademark licensing system, even if we assume with appellant that it is the owner of the trademark “Timken” in the trade areas allocated to the British and French corporations. Appellant’s premise that the trade restraints are only incidental to the trademark contracts is refuted by the District Court’s finding that the “trade mark provisions [in the agreements] were subsidiary and secondary to the central purpose of allocating trade territories.” Furthermore, while a trademark merely affords protection to a name, the agreements in the present case went far beyond protection of the name “Timken” and provided for control of the manufacture and sale of antifriction bearings whether carrying the mark or not. A trademark cannot be legally used as a device for Sherman Act violation. Indeed, the Trade Mark Act of 1946 itself penalizes use of a mark “to violate the antitrust laws" } ]

[ { "docid": "22063636", "title": "", "text": "industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.” It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act. See generally Van Cise, The Future of Per Se in Antitrust Law, 50 Va. L. Rev. 1165 (1964). One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a .“horizontal” restraint, in contradistinction to combinations of persons at different!' levels of the market structure, e. g,, manufacturers and I distributors, which are termed “vertical” restraints. This i¡ Court has reiterated time and time again that “[h]orizontal territorial limitations . . . are naked restraints off! trade with no purpose except stifling of competition .’’ White Motor Co. v. United States, 372 U. S. 253, 263 (1963). Such limitations are per se violations of the Sherman Act. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899), aff’g 85 F. 271 (CA6 1898) (Taft, J.); United States v. National Lead Co., 332 U. S. 319 (1947); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951); Northern Pacific R. Co. v. United States, supra; Citizen Publishing Co. v. United States, 394 U. S. 131 (1969); United States v. Sealy, Inc., 388 U. S. 350 (1967); United States v. Arnold, Schwinn & Co., 388 U. S. 365, 390 (1967) (Stewart, J., concurring in part and dissenting in part); Serta Associates, Inc. v. United States, 393 U. S. 534 (1969), aff’g 296 F. Supp. 1121, 1128 (ND Ill. 1968). We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1. The District Court failed to make any determination as to whether there were per se horizontal territorial restraints in this case and simply applied a rule of" }, { "docid": "1258722", "title": "", "text": "to preserve the territorial market divisions of Sealy and its licensees by preventing Ohio from competing on the West Coast. Sealy, on the other hand, seeks to pose the issue solely as one involving whether Ohio has a “right” to extend its business operations to the West Coast. Whether or not Ohio possesses such a right is besides the point. The right which Ohio indisputably does possess is the right to conduct its business affairs free from attempts by Sealy to impose upon it restraints that are illegal under antitrust law. And the Court believes it reasonably likely that Ohio will prove on the merits that Sealy’s exercise of its right of first refusal in this case constituted a Section 1 violation. The history of Sealy and its encounters with the antitrust laws bears recounting in some detail. As originally structured, Sealy was jointly owned by a group of independent manufacturers to hold, develop, and license the Sealy trademark and promote the uniform nationwide marketing of the Sealy line of bedding products. Sealy neither manufactured nor marketed bedding itself. Under this scheme, the Supreme Court found that the arrangement of exclusive manufacturing and sales territories held by the licensees constituted horizontal territorial divisions, a per se violation of Section 1. United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967). In the wake of that opinion, Sealy restructured its operations in several ways. First, it eliminated the exclusive licensee territories; in its place, Sealy introduced the concept of APRs, and made licensees responsible for meeting certain performance requirements in their territories. In addition, Sealy imposed two charges on any sales made by a licensee outside of its APR. First, Sealy required pass-over payments ranging from 2.2 percent to 11 percent of gross sales made out of the APR. These payments were made to Sealy, which in turn reimbursed the licensee in the “invaded” APR. Second, Sealy required a warranty repair payment of 1 percent of out-of-APR sales to cover the “invaded” licensee’s purported expenses for product service repairs. The licensee agreements also assigned exclusive manufacturing" }, { "docid": "23643005", "title": "", "text": "PELL, Circuit Judge. Sealy, Incorporated (Sealy) owns trademarks for the “Sealy” brand of mattresses, mattress foundations, and other bedding products. The Sealy brand enjoys substantial national consumer popularity, and Sealy licenses its trademarks to fifteen independent manufacturers, each of which has the primary responsibility to make and sell Sealy products in a defined territory or territories. Sealy receives license royalties, provides uniform product specifications, and also provides for the benefit of its licensees substantial national advertising, product development services, engineering assistance, sales training, and a means of central negotiation for selling to national retail organizations and purchasing certain mattress components. In addition, Sealy itself manufactures and sells mattresses in seven territories, and it also manufactures spring units through three wholly-owned subsidiaries. Over 98% of the stock of Sealy is owned by its licensees, only licensees (or their nominees) are eligible for 11 of the 14 seats on Sealy’s Board of Directors, and the Board’s Executive Committee is composed exclusively of licensees. Ohio-Sealy Mattress Manufacturing Company (Ohio) is a Sealy licensee with primary responsibility for six territories. Ohio is the largest and one of the best of the Sealy licensees, producing a high quality product efficiently, selling it effectively, and compiling an enviable profit record. In United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), the Supreme Court invalidated the system of exclusive manufacturing and sales territories on which Sealy then predicated its licenses. (Sealy at the time was not itself engaged in manufacturing mattresses.) Looking at “substance rather than form,” id. at 352, 87 S.Ct. 1847, the Court thought it clear that the exclusive territories were restraints imposed by a horizontal combination of potential competitors, because Sealy was obviously “a joint venture of, by, and for its stockholder-licensees [who are] themselves directly, without even the semblance of insulation, in charge of Sealy’s opera tions.” Id. at 353, 87 S.Ct. at 1850. Because the exclusive territory system operated to give each licensee an enclave free from the competition of other Sealy licensees, it amounted to an allocation of markets per se violative of Section 1" }, { "docid": "23643019", "title": "", "text": "indisputably clear that any restraints applied to the independent businesses which are licensees result directly from the concerted action of their horizontal potential competitors. Accordingly, as Sealy agreed by accepting the district court’s instructions on market allocation, if Sealy’s license agreement and its conduct thereunder amounted to substantial limitations on manufacturers’ sales territories, a per se violation existed. See Topco, supra; Sealy, supra; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947); Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). We also emphasize that Sealy’s approach to the alleged restraints misses the mark. Repeatedly, Sealy argues that, e. g., areas of primary responsibility, exclusive manufacturing licenses, location clauses, pass-over payments, rights of first refusal, etc., have all been held at one time or another not to violate the antitrust laws. That is certainly true enough, but we know of no authority holding that these devices, alone or in conjunction, do not violate the antitrust laws even though they have effects plainly within the ambit of those laws. On the violation issue, Sealy consistently refuses to address what was obviously Ohio’s case theory, on which the jury was appropriately instructed in agreed language. It is thoroughly established that “[a]cts which may be legal and innocent in themselves, standing alone, lose that character when incorporated into a conspiracy to restrain trade.” Kurek v. Pleasure Driveway and Park District of Peoria, 557 F.2d 580, 587 (7th Cir. 1977), judgment vacated, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), judgment reinstated, 574 F.2d 892 (7th Cir. 1978) (per curiam); see Simpson v. Union Oil Co. of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); Poller v. Columbia Broadcasting System, Inc., supra, 368 U.S. at 468-69, 82 S.Ct. 486. Moreover, in antitrust cases plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after" }, { "docid": "1258724", "title": "", "text": "territories, and forbade licensees to obtain an interest in any competing organization. Finally, Sealy instituted the right of first refusal clause. Ohio, the plaintiff herein, filed suit in 1971 alleging that these changes in the licensing agreements were a transparent attempt by Sealy to continue the same market allocation policies that the Supreme Court had found illegal four years earlier. Ohio received a jury verdict in its favor, collecting $10,222,27s. On appeal, the Seventh Circuit affirmed. At the outset, the court rejected the contention that Sealy’s entrance into the manufacturing and sale of bedding rendered the corporate structure vertical. The Court observed that the licensees still owned 98 percent of Sealy’s shares, and that representatives of the licensees occupied at least 11 of the 14 seats on the board of directors as well as all the positions on the board’s executive committee. Thus, the Court concluded that [wjhatever may be said about the way Sealy conducts its business in those territories, it is indisputably clear that any restraints applied to the independent businesses which are licensees result directly from the concerted action of their horizontal potential competitors. 585 F.2d at 827. ' As for the practices instituted by Sealy after the Supreme Court decision in 1967, the Seventh Circuit observed that none were illegal in and of themselves. However, the Court held that a jury could find that these practices violated Section 1 if they were designed to achieve a division of markets. 585 F.2d at 827. The Court found there was substantial evidence from which a jury could infer such a purpose. There was evidence that the system of passover payments and warranty charges far exceeded the amount necessary to prevent out-of-territory licensees from taking a “free ride” at the expense of a licensee selling within his APR. Id. at 828-829. With respect to the right of first refusal, the Court observed that Sealy had exercised that contractual right only five times — in each instance the would-be purchaser was Ohio, who was the most aggressive out-of-APR seller of all the Sealy licensees. On all three occasions when Sealy" }, { "docid": "6692527", "title": "", "text": "by the court in connection with its discussion of equitable relief related to pre-ver diet activity. Moreover, Judge Parsons characterized Ohio-Sealy’s additional evidence in the second equitable relief proceeding as “principally ... a reiteration by [plaintiff’s] expert, Dr. Mueller, of the positions he had taken in earlier testimony.... ” Id. mem. op. at 29. While there are passages in Judge Parson’s opinion and in the transcripts of the proceedings over which he presided that might support an argument that the question of equitable relief from the exclusive manufacturing territories clause was decided on a record that included some post-verdict conduct stretching through the temporal scope of the instant case, this Court cannot definitively say that such issues were actually litigated or necessarily decided in the context of the second equitable relief proceeding, which was essentially a belated adjunct to the 1975 jury verdict. Defendants also argue that the court of appeals in Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821 (7th Cir. 1978), “expressly acknowledged that the exclusive manufacturing territories clause was not itself objectionable.” Thus, they contend that Ohio-Sealy should be precluded from challenging the clause in the con text of this case. But the court of appeals did not hold that the exclusive manufacturing territories clause was necessarily lawful under all possible circumstances. Rather, the court stated that: Repeatedly, Sealy argues that, e.g., areas of primary responsibility, exclusive manufacturing licenses, location clauses, passover payments, rights of first refusal, etc., have all been held at one time or another not to violate the antitrust laws. That is certainly true enough, but we know of no authority holding that these devices, alone or in conjunction, do not violate the antitrust laws even though they have effects plainly within the ambit of those laws. On the violation issue, Sealy consistently refuses to address what was obviously Ohio’s case theory, on which the jury was appropriately instructed in agreed language. It is thoroughly established that “[a]cts which may be legal and innocent in themselves, standing alone, lose that character when incorporated into a conspiracy to restrain trade.” 585 F.2d at" }, { "docid": "12834056", "title": "", "text": "product. The procedure for approval of new members gave existing members a “veto of sorts” over actual or potential competitors in the area. Topco also prohibited the resale of goods at wholesale prices. Applying the rule of reason the district court upheld these restrictions. However, the Supreme Court struck down the territorial allocation system and the other restriction as per se violations of the Sherman Act. The Court did this in the face of Topco’s arguments that without exclusive territorial allocations no member would have the incentive to ad vertise the Topco brand, and that without this device such chains as A & P would be able to establish a monopoly position in the market. We first note that even under the rule of reason analysis suggested by Topco that its claim was open to serious question. See Supreme Court Review, 1971 Term, 86 Harv.L.Rev. 1, 245 (1972). But in any event, it is clear that the essential restraint in the Topco case involved an agreement between members not to compete with each other and to refuse to sell at wholesale. On this record, these conclusions cannot be drawn in this case. United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), was the touchstone for the Topeo decision. Sealy was the owner of a trademark for Sealy brand mattresses. It licensed manufacturers in various parts of the country to produce and sell the Sealy trademarked mattresses and allocated territories for each licensee. Sealy agreed with each licensee not to license anyone else to manufacture or sell the S.ealy product in a designated area and the licensee agreed not to manufacture or sell the Sealy product outside the area. The licensees owned most of the Sealy stock and controlled the day to day activities of Sealy. Sealy was charged with conspiracy to allocate territories and to fix prices. The district court enjoined the price fixing provisions, but upheld the territorial allocation system. The Court reversed, holding that since Sealy was owned by its licensees the territorial allocation system was a horizontal restraint of trade and" }, { "docid": "23643030", "title": "", "text": "four years before Schwinn, that vertically-imposed territorial limitations must be judged not by a per se rule but by the Rule of Reason. Because the Court in Sylvania expressly reaffirmed the appropriateness of the per se rule for horizontal territorial limits, 433 U.S. at 58, n.28, 97 S.Ct. 2549, it is difficult to see how the decision advances Sealy’s argument. It insists nonetheless that the very premise of the Sylvania decision is that restrictions on intrabrand competition may promote interbrand competition, thus making it impossible to say that such restraints have the requisite “manifestly anticompetitive” nature to justify a per se rule of illegality. Id. at 50, 97 S.Ct. 2549; and see Northern Pacific Railway v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). In United States v. Topco Associates, Inc., supra, however, the Court rejected exactly this argument in the context of horizontal restraints, 405 U.S. at 610-11, 92 S.Ct. 1126, and the Sylvania decision expressly reaffirmed that rejection. 433 U.S. at 57, n.27, 97 S.Ct. 2549. A horizontal agreement among potential competitors to develop a national brand and not to compete with each other in selling it is, we think, considerably more suspect than limitations imposed by a single independent manufacturer on its distributors as a condition of their distributorships, but even if we were inclined to agree with Sealy’s arguments to the contrary, we believe the Supreme Court has foreclosed that approach. Moreover, had we accepted Sealy’s argument that only the Rule of Reason could be applied, we would be unable to agree that Ohio failed to make out a jury case under that rule. Dr. Mueller testified, e. g., that the national mattress industry was heavily concentrated and the market was heavily conditioned to acceptance of major brand names, and that, accordingly, an increase in intrabrand competition — in this industry at least — would also promote increased inter-brand competition. We now turn to Sealy’s contentions that Ohio demonstrated no antitrust injury and no antitrust damages compensable under Section 4 of the Clayton Act, 15 U.S.C. § 15. Section 4 provides" }, { "docid": "1258723", "title": "", "text": "nor marketed bedding itself. Under this scheme, the Supreme Court found that the arrangement of exclusive manufacturing and sales territories held by the licensees constituted horizontal territorial divisions, a per se violation of Section 1. United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967). In the wake of that opinion, Sealy restructured its operations in several ways. First, it eliminated the exclusive licensee territories; in its place, Sealy introduced the concept of APRs, and made licensees responsible for meeting certain performance requirements in their territories. In addition, Sealy imposed two charges on any sales made by a licensee outside of its APR. First, Sealy required pass-over payments ranging from 2.2 percent to 11 percent of gross sales made out of the APR. These payments were made to Sealy, which in turn reimbursed the licensee in the “invaded” APR. Second, Sealy required a warranty repair payment of 1 percent of out-of-APR sales to cover the “invaded” licensee’s purported expenses for product service repairs. The licensee agreements also assigned exclusive manufacturing territories, and forbade licensees to obtain an interest in any competing organization. Finally, Sealy instituted the right of first refusal clause. Ohio, the plaintiff herein, filed suit in 1971 alleging that these changes in the licensing agreements were a transparent attempt by Sealy to continue the same market allocation policies that the Supreme Court had found illegal four years earlier. Ohio received a jury verdict in its favor, collecting $10,222,27s. On appeal, the Seventh Circuit affirmed. At the outset, the court rejected the contention that Sealy’s entrance into the manufacturing and sale of bedding rendered the corporate structure vertical. The Court observed that the licensees still owned 98 percent of Sealy’s shares, and that representatives of the licensees occupied at least 11 of the 14 seats on the board of directors as well as all the positions on the board’s executive committee. Thus, the Court concluded that [wjhatever may be said about the way Sealy conducts its business in those territories, it is indisputably clear that any restraints applied to the independent businesses which are" }, { "docid": "23280196", "title": "", "text": "implies that it intended to limit United States v. Sealy, 388 U. S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), in which it held that otherwise lawful vertical restrictions imposed as part of an unlawful scheme to fix prices are per se unlawful. In Sealy, the Government argued that Sealy’s policy of restricting its licensees to a single manufacturing and resale area was part of a per se unlawful market allocation and price-fixing scheme. Sealy responded that the restriction was a mere incident to its lawful trademark licensing. The Court rejected Sealy’s contention and held that the manufacturing and resale restrictions were unlawful because they were part of a per se unlawful price-fixing scheme. “The territorial restraints were a part of the unlawful price-fixing and policing .... [I]ts connection with the unlawful price-fixing is enough to require that it be condemned as an unlawful restraint.” Id. at 356-57, 87 S.Ct. at 1852. United States v. Sealy rather than Continental T.V. governs this case. Continental T.V. applies only if there is no allegation that the territorial restrictions are part of a conspiracy to fix prices. 433 U.S. at 41 n.9 & 51 n.18, 97 S.Ct. at 2553 n.9 & 2558 n.18. Spray-Rite contended, and the jury was instructed, that Monsanto’s vertical nonprice restrictions were part of an unlawful scheme to fix prices. Thus, Sealy and its progeny prescribe the per se rule. The instruction about which Monsanto complains is similar to an instruction we approved in Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 827 (7th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), later appeal, 669 F.2d 490 (7th Cir. 1982). Sealy’s licensing agreement included a right-of-first-refusal clause granting Sealy the right to buy a franchise if it were put on the market and a clause requiring licensees to pay special charges to Sealy for any sales made outside a licensee’s area of primary responsibility. Ohio-Sealy conceded that these contract terms were lawful in themselves but claimed that they were part of an illegal horizontal scheme to allocate markets and, thus," }, { "docid": "23254631", "title": "", "text": "the allocation of territories by Sealy to its various licensees was unlawful per se because in spite of these other legitimate activities Sealy was actually a “front” created and used by the various manufacturers of Sealy products “to camouflage their own collusive activities . . . .” Plaintiff’s Brief in Opposition to Defendants’ Briefs, October 12, 1961, pp. 12, 15. If such a characterization of Sealy had been proved at trial I would agree that the division of territories is illegal per se. Horizontal agreements among manufacturers to divide territories have long been held to violate the anti trust laws without regard to any asserted justification for them. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; United States v. National Lead Co., 332 U. S. 319; Timken Roller Bearing Co. v. United States, 341 U. S. 593. The reason is that territorial divisions prevent open competition, and where they are effected horizontally by manufacturers or by sellers who in the normal course of things would be competing among themselves, such restraints are immediately suspect. As the Court noted in White Motor Co. v. United States, 372 U. S. 253, 263, they are “naked restraints of trade with no purpose except stifling of competition.” On the other hand, vertical restraints — that is, limitations imposed by a manufacturer on his own dealers, as in White Motor Co., supra, or by a licensor on his licensees — may have independent and valid business justifications. The person imposing the restraint cannot necessarily be said to be acting for anticompetitive purposes. Quite to the contrary, he can be expected to be acting to enhance the competitive position of his product vis-a-vis other brands. With respect to vertical restrictions, it has long been recognized that in order to engage in effective interbrand competition, some limitations on intrabrand competition may be necessary. Restraints of this type “may be allowable protections against aggressive competitors or the only practicable means a small company has for breaking into or staying in business (cf. Brown Shoe [v. United States, 370 U. S. 294], at 330;" }, { "docid": "23643017", "title": "", "text": "made for product service repairs on out-of-APR sales, amounting to 1% at the time of trial. Sealy was to have a right of first refusal should a licensee wish to sell its business. Licensees were forbidden to acquire any interest in any competitive organization, although this provision apparently would not preclude a licensee from manufacturing and selling competitive private brand merchandise through a subsidiary. Ohio’s theory of its case was that although many or all of the provisions to which we have just referred might be legal in and of themselves, they were designed and used by Sealy in per se violation of the Sherman Act to achieve a division of markets. In addition to receiving a Rule of Reason instruction pertaining to all aspects of Ohio’s case, the jury was told that market allocation is per se illegal, and that the above restrictions were not themselves per se illegal unless used to achieve a market allocation, i. e., to limit or restrict “in any substantial way, the geographic areas in which products may be sold.” Because the jury awarded damages vastly in excess of those claimed for the other aspects of Ohio’s case, it necessarily found that Sealy had allocated markets. Deferring for later consideration Sealy’s arguments that the evidence shows no injury and no antitrust damages to Ohio, we think it plain that the district court did not err in allowing the jury to decide whether or not Sealy had illegally divided markets. In assessing the evidence making a jury question of market allocation, we bear in mind the horizontal nature of the restraints involved. As we have pointed out, the Supreme Court’s decision in United States v. Sealy, supra, expressly held that the structure of the Sealy organization mandated the conclusion that its arrangements were horizontal ones. That structure, as pertinent, stands unchanged now. Sealy half-heartedly argues that the fact that it now itself manufactures and sells in certain territories introduces elements of verticality to the picture, but we cannot agree. Whatever may be said about the way Sealy conducts its business in those territories, it is" }, { "docid": "22063637", "title": "", "text": "per se violations of the Sherman Act. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899), aff’g 85 F. 271 (CA6 1898) (Taft, J.); United States v. National Lead Co., 332 U. S. 319 (1947); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951); Northern Pacific R. Co. v. United States, supra; Citizen Publishing Co. v. United States, 394 U. S. 131 (1969); United States v. Sealy, Inc., 388 U. S. 350 (1967); United States v. Arnold, Schwinn & Co., 388 U. S. 365, 390 (1967) (Stewart, J., concurring in part and dissenting in part); Serta Associates, Inc. v. United States, 393 U. S. 534 (1969), aff’g 296 F. Supp. 1121, 1128 (ND Ill. 1968). We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1. The District Court failed to make any determination as to whether there were per se horizontal territorial restraints in this case and simply applied a rule of reason in reaching its conclusions that the restraints were not illegal. See, e. g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L. Rev. 457, 469 (1971). In so doing, the District Court erred. United States v. Sealy, Inc., supra, is, in fact, on all fours with this case. Sealy licensed manufacturers of mattresses and bedding to make and sell products using the Sealy trademark. Like Topeo, Sealy was a corporation owned almost entirely by its licensees, who elected the Board of Directors and controlled the business. Just as in this case, Sealy agreed with the licensees not to license other manufacturers or sellers to sell Sealy-brand products in a designated territory in exchange for the promise of the licensee who sold in that territory not to expand its sales beyond the area demarcated by Sealy. The Court held that this was a horizontal territorial restraint, which was per se violative of the Sherman Act. Whether or not we would decide this case the same way under the rule of" }, { "docid": "23643014", "title": "", "text": "play licensees off against each other to obtain lower prices. In conjunction with antitrust counsel, Sealy began the process of working out alternatives to preserve as much of the perceived benefit of its former system as the Department of Justice and the courts would allow in the light of the Supreme Court decision. The final decree entered in United States v. Sealy, Inc., 1967 Trade Cases ¶ 72,327 at 84,855 (N.D.Ill. Dec. 26,1967), enjoined Sealy and its licensees from any arrangement “to limit or restrict any manufacturer in any substantial way to sales of Sealy products within a prescribed territory.” Id. at 84,856. At the proceeding during which the decree was signed, John Sarbaugh, Chief of the Midwest Office of the Antitrust Division of the Department of Justice, made the following statement about the pertinent language of the decree: We do not interpret this language as prohibiting per se the employment of manufacturing location clauses, areas of primary responsibility clauses, or passover provisions. In so saying, we are in no way implying any view as to the legality of such clauses under the antitrust laws, nor, of course, are we suggesting that such clauses would not violate the decree if they have the effects proscribed by [its] language. With this background, Sealy developed a new license agreement (including each of the provisions mentioned by Mr. Sarbaugh, and more) which was signed by all of Sealy’s licensees, with one exception. The new 1968 license agreement maintained the same territories as had been used before, with Sealy promising not to license anyone else to manufacture Sealy products in a licensee’s territory. The territories, however, were no longer to be exclusive as to sales. While each licensee was assigned primary responsibility to promote Sealy sales in his area, it also had the right to sell Sealy products in the territories of other licensees. Each licensee was to be held accountable for satisfactory performance in its area of primary responsibility (APR), and, as an incentive thereto, the contract provided that once the licensee achieved a certain sales quota in its APR, its royalties on" }, { "docid": "23643006", "title": "", "text": "territories. Ohio is the largest and one of the best of the Sealy licensees, producing a high quality product efficiently, selling it effectively, and compiling an enviable profit record. In United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), the Supreme Court invalidated the system of exclusive manufacturing and sales territories on which Sealy then predicated its licenses. (Sealy at the time was not itself engaged in manufacturing mattresses.) Looking at “substance rather than form,” id. at 352, 87 S.Ct. 1847, the Court thought it clear that the exclusive territories were restraints imposed by a horizontal combination of potential competitors, because Sealy was obviously “a joint venture of, by, and for its stockholder-licensees [who are] themselves directly, without even the semblance of insulation, in charge of Sealy’s opera tions.” Id. at 353, 87 S.Ct. at 1850. Because the exclusive territory system operated to give each licensee an enclave free from the competition of other Sealy licensees, it amounted to an allocation of markets per se violative of Section 1 of the Sherman Act, 15 U.S.C. § 1, without regard to asserted justifications for the system. After the Supreme Court’s decision, Sealy revised its licensing agreement, eliminating exclusive selling territories. In 1971, Ohio initiated this action, complaining that Sealy had continued to effect the evils the Supreme Court condemned, albeit by more subtle means, that Sealy’s methods of dealing with national retail customers also violated the Sherman Act, and that Sealy was engaged in illegal tying and price-fixing arrangements regarding certain mattress components. Damages well in excess of $6,000,000 were claimed, and declaratory and injunctive relief was sought. Sealy counterclaimed, seeking substantial damages and other relief. The damage claims of the parties were tried before a jury over a period of four months in 1974 and 1975. Although both Sealy and Ohio had several objections to the jury’s instructions, no complaint thereof is made on appeal. Ohio’s evidence indicated damages on its complaint of $9,233,563 (before trebling, see Section 4 of the Clayton Act, 15 U.S.C. § 15). Sealy’s counterclaim evidence indicated damages of $14,701,479." }, { "docid": "23254635", "title": "", "text": "the Sealy licensing arrangements were developed in the early 1920’s for entirely legitimate business purposes, including royalty income to Sugar Land Industries, which owned the Sealy name, trademarks and patents, and the benefits to licensees of joint purchasing, research, engineering, advertising and merchandising. These objectives were carried out by successor companies, including defendant, whose activities have been directed not toward market division among licensees but toward obtaining additional licensees and more intensive sales coverage.” The Solicitor General in presenting the appeal to this Court stated explicitly that he did not contend “that Sealy, Inc. was no more than a facade for a conspiracy to suppress competition,” Brief, p. 12, since it admittedly did have genuine and lawful purposes. For me these District Court findings, which the Government accepts for purposes of this appeal, take this case out of the category of horizontal agreements, and thus out of the per se category as well. Sealy has wholly legitimate interests and purposes of its own: it is engaged in vigorous interbrand competition with large integrated bedding manufacturers and with retail chains selling their own products. Sealy’s goal is to maximize sales of its prod ucts nationwide, and thus to maximize its royalties. The test under such circumstances should be the same as that governing other vertical relationships, namely, whether in the context of the market structure of this industry, these territorial restraints are reasonable business practices, given the true purposes of the antitrust laws. See White Motor Co., supra; Sandura Co. v. FTC, 339 F. 2d 847. It is true that in this case the shareholders of Sealy are the licensees. Such a relationship no doubt requires special scrutiny. But I cannot agree that this fact by itself automatically requires striking down Sealy’s policy of territorialization. The correct approach, in my view, is to consider Sealy’s corporate structure and decision-making process as one (but only one) relevant factor in determining whether the restraint is an unreasonable one. Compare United States v. Penn-Olin Chem. Co., 378 U. S. 158, 170. The Court in reaching its result relies heavily on the fact that these" }, { "docid": "23643018", "title": "", "text": "sold.” Because the jury awarded damages vastly in excess of those claimed for the other aspects of Ohio’s case, it necessarily found that Sealy had allocated markets. Deferring for later consideration Sealy’s arguments that the evidence shows no injury and no antitrust damages to Ohio, we think it plain that the district court did not err in allowing the jury to decide whether or not Sealy had illegally divided markets. In assessing the evidence making a jury question of market allocation, we bear in mind the horizontal nature of the restraints involved. As we have pointed out, the Supreme Court’s decision in United States v. Sealy, supra, expressly held that the structure of the Sealy organization mandated the conclusion that its arrangements were horizontal ones. That structure, as pertinent, stands unchanged now. Sealy half-heartedly argues that the fact that it now itself manufactures and sells in certain territories introduces elements of verticality to the picture, but we cannot agree. Whatever may be said about the way Sealy conducts its business in those territories, it is indisputably clear that any restraints applied to the independent businesses which are licensees result directly from the concerted action of their horizontal potential competitors. Accordingly, as Sealy agreed by accepting the district court’s instructions on market allocation, if Sealy’s license agreement and its conduct thereunder amounted to substantial limitations on manufacturers’ sales territories, a per se violation existed. See Topco, supra; Sealy, supra; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947); Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). We also emphasize that Sealy’s approach to the alleged restraints misses the mark. Repeatedly, Sealy argues that, e. g., areas of primary responsibility, exclusive manufacturing licenses, location clauses, pass-over payments, rights of first refusal, etc., have all been held at one time or another not to violate the antitrust laws. That is certainly true enough, but we know of no authority" }, { "docid": "6692528", "title": "", "text": "itself objectionable.” Thus, they contend that Ohio-Sealy should be precluded from challenging the clause in the con text of this case. But the court of appeals did not hold that the exclusive manufacturing territories clause was necessarily lawful under all possible circumstances. Rather, the court stated that: Repeatedly, Sealy argues that, e.g., areas of primary responsibility, exclusive manufacturing licenses, location clauses, passover payments, rights of first refusal, etc., have all been held at one time or another not to violate the antitrust laws. That is certainly true enough, but we know of no authority holding that these devices, alone or in conjunction, do not violate the antitrust laws even though they have effects plainly within the ambit of those laws. On the violation issue, Sealy consistently refuses to address what was obviously Ohio’s case theory, on which the jury was appropriately instructed in agreed language. It is thoroughly established that “[a]cts which may be legal and innocent in themselves, standing alone, lose that character when incorporated into a conspiracy to restrain trade.” 585 F.2d at 827-28 (citations omitted, emphasis in original). Whether Ohio-Sealy will be able to show a violation of the antitrust laws brought about by the application of the exclusive manufacturing territory clause itself or in conjunction with other allegedly anticom-petitive elements within the context of this case in order to justify the equitable relief it continues to seek is a very different question upon which we express no opinion at this juncture. We hold only that if such a violation should be proven, neither the opinion of the court of appeals nor Judge Parsons’ opinion in the 1971 case would preclude Ohio-Sealy from seeking equitable relief therefrom in this case in the form of elimination of the exclusive manufacturing territories clause. Accordingly, defendants’ motion for summary judgment with respect to the issue set forth in section II.D.(a) of the Schedule of Issues is denied. It is so ordered. B. The issue under section II.D.(b) of the Schedule of Issues is whether Ohio-Sealy may seek divestiture of the Reading and Des Moines licensees under section 16 of the" }, { "docid": "1258749", "title": "", "text": "it unnecessary to reach the other potential bases for liability. . Horizontal territorial restraints arise out of decisions by competitors, or potential competitors, to restrict competition inter sese by dividing the geographic market into exclusive enclaves. Vertical territorial restraints, on the other hand, involve a decision by one competitor to impose territorial limitations on independent dealers as a condition of their right to sell that competitor’s product. In Sealy, the Supreme Court found that Sealy’s territorial allocations fell into the former category: The territorial arrangements must be regarded as the creature of horizontal action by the licensees. It would violate reality to treat them as equivalent to territorial limitations imposed by a manufacturer upon independent dealers as incident to the sale of a trademarked product. Sealy, Inc., is an instrumentality of the licensees for purposes of the horizontal territorial allocation. It is not the principal. 388 U.S. at 354, 87 S.Ct. at 1851. . The jury in Ohio-Sealy returned a verdict of $6,814,852 against Sealy. This amount was trebled pursuant to the antitrust laws, 15 U.S.C. § 15, to reach the total of $20,444,556 in damages. Ohio then accepted a remittitur of 50 percent of these treble damages, thereby making the final award of $10,222,278. . At the time of the Supreme Court decision in 1967, Sealy itself neither manufactured nor sold bedding. Thereafter, Sealy began to enter this aspect of the business through the purchases of licensees. By the time of the Seventh Circuit opinion, Sealy’s market share of bedding had reached approximately 27 percent of all Sealy products sold. . The evidence presented before the magistrate showed that although Ohio accounts for less than 20 percent of all Sealy-label sales in the continental United States, it makes approximately 55 percent of all the out-of-APR sales in the Sealy organization. In 1978, 13.1 percent of its total sales were made out of its APRS, a significant increase from the 4.9 percent total registered in 1974. . At trial, Sealy had argued that its acquisition of licensees was spurred by the 1967 Supreme Court opinion, and represented an effort to" }, { "docid": "23254630", "title": "", "text": "differentiating it from a case involving, as here, alleged boycotting.” The same conclusion would seem to apply with respect to an alleged market division, which, like price-fixing, group boycotts, and tying arrangements, has been held to be a per se violation of the Sherman Act. Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958). Mr. Justice Harlan, dissenting. I cannot agree that on this record the restrictive territorial arrangements here challenged are properly to be classified as “horizontal,” and hence illegal per se under established antitrust doctrine. I believe that they should be regarded as “vertical” and thus, as the Court recognizes, subject to different antitrust evaluation. Sealy, Inc., is the owner of trademarks for Sealy branded bedding. Sealy licenses manufacturers in various parts of the country to produce and sell its products. In addition, Sealy provides technical and managerial services for them, conducts advertising and other promotional programs, and engages in technical research and quality control activities. The Government’s theory of this case in the District Court was essentially that the allocation of territories by Sealy to its various licensees was unlawful per se because in spite of these other legitimate activities Sealy was actually a “front” created and used by the various manufacturers of Sealy products “to camouflage their own collusive activities . . . .” Plaintiff’s Brief in Opposition to Defendants’ Briefs, October 12, 1961, pp. 12, 15. If such a characterization of Sealy had been proved at trial I would agree that the division of territories is illegal per se. Horizontal agreements among manufacturers to divide territories have long been held to violate the anti trust laws without regard to any asserted justification for them. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; United States v. National Lead Co., 332 U. S. 319; Timken Roller Bearing Co. v. United States, 341 U. S. 593. The reason is that territorial divisions prevent open competition, and where they are effected horizontally by manufacturers or by sellers who in the normal course of things would be competing among themselves, such" } ]

[ { "docid": "23484521", "title": "", "text": "Hines was decided. See ABA Code of Professional Responsibility Canon 6 & DR 6-101(A)(2). . We have previously ruled that mere conclusory allegations of unfair representation are insufficient to withstand a properly supported motion for summary judgment. Balowski v. UAW, 372 F.2d 829, 835 (6th Cir. 1967). See also Hines v. Local Union No. 377, 506 F.2d 1153, 1157 (6th Cir. 1974), rev’d in part on other grounds, Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Here, however, we review the sufficiency of a complaint on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and must apply a liberal construction of the complaint in favor of the party opposing the motion. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176, 1182 (6th Cir. 1975). . Contra, Hill v. Aro Corp., 275 F.Supp. 482, 487 (N.D.Ohio 1967). . Although more than three years elapsed between Appellant’s discharge and the filing of his complaint, we think it only fair that the statute of limitations be tolled from the time the grievance was filed until it was finally rejected (i. e., when the arbitration award was upheld on rehearing). Federal labor policy generally requires that a § 301 plaintiff seek arbitral relief as a prerequisite to his federal claim. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Litigants should not be penalized for complying with that policy. Cf. Butler v. Local Union 823, 514 F.2d 442, 450 (8th Cir.), cert. den., 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975). . If on remand, the trial court determines that plaintiff is entitled to reinstatement, it will be faced with the further question of the extent to which the employer’s liability for any backpay may be limited, should it appear that the employer justifiably relied upon the finality of the arbitration decision upholding the discharge and had no part in undermining the process of arbitration. See generally Hines, supra, 424" } ]

[ { "docid": "23273218", "title": "", "text": "1113, 16 L.Ed.2d 192 (1966); Davidson v. Roadway Express, Inc., 650 F.2d 902, 903 (7th Cir.), cert. denied, 455 U.S. 947, 102 S.Ct. 1447, 71 L.Ed.2d 661 (1981). The court, in making this determination, must decide which statute of limitations period is “the most appropriate one provided by state law.” United Parcel Service, Inc. v. Mitchell, supra, at 1563; John son v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295. ERISA, like Section 301 of the LMRA, does not contain a statute of limitations for the bringing of civil actions. Therefore, guided by the principles announced in Section 301 cases on the statute of limitations issue, the court will look to the most appropriate state statute of limitations. See: Johnson v. Railway Express, supra; Livolsi v. City of New Castle, Pa., 501 F.Supp. 1146, 1151 (W.D.Pa.1980). In determining the most appropriate state statute of limitations, the court must be cognizant of and examine the underlying nature of the federal claim as well as the federal policies involved. The employee benefit pension plan in this case is administered in the State of Illinois by an equal number of union and employee trustees. The Administrator of the Plan, who is also designated as the agent for service of process, has his office in the State of Illinois. The headquarters of the Plan and its principal place of business are located in Chicago, Illinois. The investment agents of the Plan are located in the State of Illinois as is Local Union No. 705 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Accordingly, the court will look to the State of Illinois in determining the most appropriate state statute of limitations. The parties have referred the court to various Illinois statutes of limitation. The appellee argued in the trial court that the ninety (90) day Illinois statute for vacating an arbitration award, Ill.Rev.Stat. eh. 10, § 112 and/or the six (6) month period provided in Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. 160(b) should be applied to the facts" }, { "docid": "8136100", "title": "", "text": "district judge regarding the applicable statute of limitations was based on the then controlling Supreme Court case, United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). Under Mitchell, federal courts were directed to look to the most “appropriate” state statute in determining the time limitations on the filing of a § 301 suit: Congress has not enacted a statute of limitations governing actions brought pursuant to § 301 of the LMRA. As this Court pointed out in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 [86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192] (1966), “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Our present task is to determine which limitations period is “the most appropriate one provided by state law.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 [95 S.Ct. 1716, 1721, 44 L.Ed.2d 295] (1975). This depends upon an examination of the nature of the federal claim and the federal policies involved. See Hoosier Cardinal, supra, [383 U.S.] at 706-707 [86 S.Ct. at 1113-1114]. Id. at 60-62, 101 S.Ct. at 1562-1563 (footnote omitted). In Mitchell the Supreme Court relied upon a New York state statute governing appeals from arbitration to find a ninety-day limit for the filing of an action that would have the effect of overturning an arbitrator’s ruling. Mitchell recognized that state statutes of limitation would not necessarily fit “hand in glove,” id. at 64,101 S.Ct. at 1564, but should be applied nonetheless. Although the present case does not involve an arbitration award as such, the district court found that the issue presented was more closely akin to an appeal from an arbitration decision than to a general breach of contract claim. Consequently, it ruled that the New Jersey 90-day statute of limitations for appeals from arbitration under N.J.S.A. 2A:24-7 would be the most appropriate state statute rather than the state’s six-year “catch-all” statute of limitations, N.J.S.A. 2A:14-1. Subsequent to the district court’s ruling in the present case, the" }, { "docid": "11608952", "title": "", "text": "Federal Practice, ¶ 15.08. Defendant asserts that it has suffered prejudice by reason of the time spent researching and'opposing the deficiencies of the initial complaint. This is not the type of detriment which, on the facts presented to this Court, could in any way constitute undue prejudice to the defendant. In addition, there is no showing that plaintiff has acted in bad faith. Therefore, in accordance with the liberal amendment policy of the Federal Rules of Civil Procedure, plaintiff should be allowed to amend his complaint to include an allegation that the union breached its duty of fair representation unless his cause of action was time-barred. CPLR § 7511(a) provides that an application to vacate or modify an arbitration award must be made within ninety days. On the other hand, CPLR § 213(2) provides that an action upon an express or implied contractual obligation must be commenced within six years. It is well settled that, in suits brought, pursuant to Section 301 of the Labor Management Relations Act, a federal district court must apply the pertinent statute of limitations of the state in which it sits. International Union, United Auto, etc., Workers v. Hoozier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). When such actions seek to vacate arbitration awards, courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from such awards rather than the longer statute of limitations governing actions bottomed on written contracts. DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); U. M. W. v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206 (W.D.Pa. 1974); International Brotherhood of Teamsters, Local 249 v. Motor Freight Express, Inc., 356 F.Supp. 724 (W.D.Pa.1978); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967). Federal labor policy favors the application of shorter periods of limitations. U. A. W. v. Hoozier Cardinal Corp., supra. In Hana Heating & A. C. Co., Inc. v. Sheet Metal Wkrs., Loc. U. 38, 378 F.Supp. 1001 (S.D.N.Y.1974), a labor dispute involving the interpretation of a collective bargaining agreement was submitted to a joint adjustment panel. Neither party" }, { "docid": "8136099", "title": "", "text": "union’s International. The joint council replied on February 22 that, since the dispute involved the interpretation and application of the local collective bargaining agreement, the matter was within the sole discretion of Local 863; the International did not respond. Local 863 granted the October plaintiffs’ one last appeal to its executive board on March 5, but then advised the employees’ attorney on April 7 that “Local 863, as it did in October 1981, has determined not to proceed to arbitration regarding your clients’ layoffs.” App. at 42. On April 8, 1982, the second group of sixteen employees was laid off. On May 14, a letter was sent by Local 863 declaring that these layoffs would also not be arbitrated. This lawsuit, covering all 35 laid off employees, was filed on October 8, 1982, under § 301 of the National Labor Relations Act, 29 U.S.C. § 185 (1976). II The principal question on this appeal is whether the district court erred in concluding that the suit was filed in an untimely fashion. The decision by the district judge regarding the applicable statute of limitations was based on the then controlling Supreme Court case, United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). Under Mitchell, federal courts were directed to look to the most “appropriate” state statute in determining the time limitations on the filing of a § 301 suit: Congress has not enacted a statute of limitations governing actions brought pursuant to § 301 of the LMRA. As this Court pointed out in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 [86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192] (1966), “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Our present task is to determine which limitations period is “the most appropriate one provided by state law.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 [95 S.Ct. 1716, 1721, 44 L.Ed.2d 295] (1975). This depends upon an examination of the nature of the federal" }, { "docid": "7061796", "title": "", "text": "indispensable predicate for such an action is not a showing under traditional contract law that there was a breach of the collective-bargaining agreement, but instead a demonstration that the union breached its duty of fair representation. Since the conclusion of the Joint Panel was under the collective-bargaining agreement “binding on all parties,” respondent was required in some way to show that the Union’s duty to represent him fairly at the arbitration had breached before he was entitled to reach the merits of his contract claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award than to a straight contract action. We think that the unfair representation claim by an employee against his union, even though his employer may ultimately be called upon to respond in damages if he is successful, is more a creature of “labor law” as it has developed since the enactment of § 301, than it is of general contract law. We said in Hoosier Cardinal that one of the leading federal policies in this area is the “relatively rapid disposition of labor disputes.” 383 U.S., at 707 [86 S.Ct., at 1114]. Cf. 29 U.S.C. § 160(b) (1976) (6-month period under NLRA). This policy was one of the reasons the Court in Hoosier Cardinal chose the generally shorter period for actions based on an oral contract rather than that for actions upon a written contract, ibid., and similar analysis supports our adoption of the shorter period for actions to vacate an arbitration award in this case. 451 U.S. at 62, 101 S.Ct. at 1563. The Sixth Circuit Court of Appeals, in an opinion that was relied upon and quoted by the Second Circuit Court of Appeals in Mitchell v. United Parcel Service, 624 F.2d 394 (2d Cir. 1980), reversed 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), had previously held that Michigan’s three year tort statute of limitations should govern § 301 actions. Smart v. Ellis Trucking Co., Inc., 580 F.2d 215, 217 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770" }, { "docid": "16454288", "title": "", "text": "represented before, during and after Arbitration by the” attorney for the International Union. App., at 10. Paragraph 23 alleges that the “Arbitration itself was improper and unfair.” App., at 12. Indeed, he sought to litigate before the district court the same claim he presented for arbitration, that of improper discharge. Moreover, the fact that Liotta alleges that the arbitration award is invalid due to the Union’s breach of its duty of fair representation does not change the limitations period because the suit here is against the Company and not the Union. Thus, it is clear that Liotta was dissatisfied with and simply seeks to upset the arbitrator’s decision that the Company did not wrongfully discharge him. The result we reach comports with the general federal policy favoring arbitration as a means of resolving labor disputes, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960), and with the federal labor policy that favors the application of shorter limitations period. In International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 707, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the Supreme Court stated: [Relatively rapid disposition of labor disputes is a goal of federal labor law. Since state statutes of limitations governing contracts not exclusively in writing are generally shorter than those applicable to wholly written agreements, their applicability to § 301 actions comports with that goal. Courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from arbitration awards rather than the longer statute of limitations governing actions bottomed on written contracts when such actions seek to vacate arbitration awards. E. g. Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y.1976); DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967); contra, Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). We therefore conclude that Liotta’s first cause of action seeking review and vacation of the arbitration award was untimely" }, { "docid": "5106628", "title": "", "text": "in § 301 actions. Rather, Plaintiff submits that the 90-day limitations period which previously existed for actions to vacate arbitration awards is more appropriate. Alternatively, Plaintiff suggests the longer limitations periods applicable to tort and common law contract actions. The United States Supreme Court has held that the appropriate state statute of limitations is to be used in determining the timeliness of a suit brought under § 301. International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 70A-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966). In Liotta v. National Forge Co., 629 F.2d 903 (3d Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981), the Third Circuit determined that the appropriate limitations period for § 301 actions was the statute of limitations applicable to suits seeking to vacate an arbitration award. Pennsylvania law, as recently changed, provides a limitations period of 30 days for actions to vacate an arbitration award. 42 Pa.C.S.A. § 7314 (Purdon 1981). Thus, an action to vacate an arbitration award under § 301 must be brought within 30 days after delivery of a copy of the award to the person challenging the award. 42 Pa.C.S.A. § 7314(b) (Purdon 1981). Plaintiff concedes that he received a copy of the award several days after its issuance. The new 30-day period was effective in December 1980, 42 Pa.C.S.A. § 7301 (Purdon 1981), more than seven months pri- or to the arbitration award here in question. Plaintiff’s contention that the 30-day statute is not applicable since the grievance was filed when the three months statute was in effect is without merit. Accordingly, the 30-day statute of limitations controls in this case. Other courts within this Circuit have also applied the 30-day limitations period in § 301 actions. See Fedor v. Hygrade Food Products Corp., 533 F.Supp. 269 (E.D.Pa.1982); General Teamsters v. DeBolt Transfer, Inc., 525 F.Supp. 1238 (W.D.Pa.1981). Plaintiff argues that a 30-day statute of limitations is far too short a time for an aggrieved party to prepare and file an action under § 301. The Third Circuit, however, has conclusively determined that" }, { "docid": "16454289", "title": "", "text": "v. Hoosier Cardinal Corp., 383 U.S. 696, 707, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the Supreme Court stated: [Relatively rapid disposition of labor disputes is a goal of federal labor law. Since state statutes of limitations governing contracts not exclusively in writing are generally shorter than those applicable to wholly written agreements, their applicability to § 301 actions comports with that goal. Courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from arbitration awards rather than the longer statute of limitations governing actions bottomed on written contracts when such actions seek to vacate arbitration awards. E. g. Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y.1976); DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967); contra, Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). We therefore conclude that Liotta’s first cause of action seeking review and vacation of the arbitration award was untimely and that the Company’s motion to dismiss should have been granted. II. The next issue we must consider concerns Liotta’s claim under 42 U.S.C. § 1981. As a threshold matter, however, we must first address the Company’s assertion that this claim is also time barred. As with Section 301, 42 U.S.C. § 1981 provides no explicit period of limitations and courts are bound to apply the most appropriate limitations period provided by state law. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). This court, in Davis v. U. S. Steel Supply, 581 F.2d 335 (3d Cir. 1978), held that the six-year statute of limitations for contracts under Pennsylvania law applied to a Section 1981 claim of unlawful discharge. We therefore conclude that Liotta’s second cause of action under 42 U.S.C. § 1981 is not barred as untimely. With regard to the merits of Liotta’s Section 1981 claim, the district court granted the Company’s motion for summary judgment for the following reasons: The only evidence which plaintiff" }, { "docid": "1224675", "title": "", "text": "Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The efficacy of that policy would be seriously undermined if arbitration decisions remained open to challenge for extended periods of time. See, e. g., Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003, 1006 (W.D.N.Y.1976). Moreover, the fact that plaintiff might not have the requisite standing to bring an action under CPLR § 7511 itself is irrelevant to the application of the limitations period provided in that statute to the instant § 301 action. In applying a state statute of limitations, “federal courts borrow only the chronometric aspects and not the procedural or substantive nuances of the law of the forum.” Wolf v. Frank, 477 F.2d 467, 475 (5th Cir.) cert. denied, 414 U.S. 975, 94 S.Ct. 287, 38 L.Ed.2d 218 (1973). Section 301 of the LMRA, as interpreted in Hines, supra, supplies plaintiff’s standing to maintain the instant action and by an action like the present one, timely filed, plaintiff could have obtained such relief as he would be entitled to in the circumstances. CPLR § 7511 setting forth the most analogous state action, that section is appropri ately relied upon by this Court for the narrow purpose of providing the limitations period applicable to the form of action which plaintiff has brought. Judicial decisions to date line up solidly behind the view that, where there has been a previous arbitration award on the subject of a pending § 301 action, that action is governed by the short statute of limitations provided for actions seeking to vacate an arbitration award. Barbarino, supra; De-Lorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); UMW v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206 (W.D.Pa.1974); International Brotherhood of Teamsters, Local 249 v. Motor Freight Express, Inc., 356 F.Supp. 724 (W.D.Pa. 1973); Lunceford v. Western Conference of Teamsters, 74 Lab.Cas. (CCH) ¶ 10,160 (C.D.Cal.1974); Elrod v. Western Conference of Teamsters, 66 Lab.Cas. (CCH) ¶ 11,941 (C.D.Cal.1971), aff’d, 72 Lab.Cas. ¶ 14,197 (9th Cir. 1973); Howerton v. J. Christenson Co., 65 Lab.Cas. (CCH)" }, { "docid": "15671040", "title": "", "text": "limitation periods which generally are applied to assaults on arbitration awards. Contrary to the district court’s characterization, § 301 actions cannot be equated to direct attacks on arbitration awards, nor can they be viewed as the same threat to the finality of arbitration awards. Arbitration awards cannot be vacated pursuant to § 301 on the ground that the arbitrators erred in their factual findings, or that the arbitrators reached faulty legal conclusions, or that the proceedings were flawed. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 571; Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003, 1005 (W.D.N.Y.1976). Rather, actions under § 301 are limited to those rare cases where the discharged employee can demonstrate both that the employer violated the collective bargaining agreement by discharging him and that the union violated its statutory duty by failing to represent him in good faith. This is a heavy burden which the § 301 plaintiff must shoulder in order to overturn his discharge. There is no need to increase this burden by requiring the employee to commence the action in an unduly short period of time after his discharge. To require an employee — who is suddenly out of work — to obtain new counsel and file an action against his union and employer all within 90 days of his discharge strikes us as unwarranted. Neither do we accept the argument that the 90 day limitation period is necessary to further the federal goal of relatively rapid disposition of labor disputes. The Court in Hoosier, supra, 383 U.S. at 707, indicated that a six year statute of limitations adequately furthered this federal labor policy. Far from suggesting that a 90 day period was needed to reach the goal of “relatively rapid” resolution of disputes, the Hoosier Court indicated that “unusually short” limitation periods — such as a 60 day New Mexico statute — should not be applied to § 301 actions. 383 U.S. at 707 n.9. Finally, we note that the characterization of § 301 actions such as the instant one as actions “to vacate arbitration awards” is not even" }, { "docid": "11608953", "title": "", "text": "pertinent statute of limitations of the state in which it sits. International Union, United Auto, etc., Workers v. Hoozier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). When such actions seek to vacate arbitration awards, courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from such awards rather than the longer statute of limitations governing actions bottomed on written contracts. DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); U. M. W. v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206 (W.D.Pa. 1974); International Brotherhood of Teamsters, Local 249 v. Motor Freight Express, Inc., 356 F.Supp. 724 (W.D.Pa.1978); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967). Federal labor policy favors the application of shorter periods of limitations. U. A. W. v. Hoozier Cardinal Corp., supra. In Hana Heating & A. C. Co., Inc. v. Sheet Metal Wkrs., Loc. U. 38, 378 F.Supp. 1001 (S.D.N.Y.1974), a labor dispute involving the interpretation of a collective bargaining agreement was submitted to a joint adjustment panel. Neither party applied to vacate, modify or set aside the panel’s decision within the ninety days requirement of CPLR § 7511(a). It was held that plaintiff’s sole remedy was to seek judicial review of the panel’s decision within such time period. It is the explicit policy of federal labor legislation to promote the speedy resolution of disputes through arbitration and to give finality to the decisions of arbitrators. Hill v. Aro Corp., supra, at 486-7. In the instant case, the application of the six years statute of limitations would undermine the arbitral process by subjecting the joint committee’s decision to the possibility of appeal for an extended length of time. U. A. W. v. LaCrosse Cooler Co., 406 F.Supp. 1213, 1215 (W.D.Wis.1976). The Second Circuit’s decisions which applied the contract statute of limitations to Section 301 and Railway Labor Act suits did not involve previous arbitration awards and are thus inapposite to the case at hand. See, Jones v. Trans World Airlines, Inc., 495 F.2d 790 (2d Cir. 1974); Abrams v. Carrier Corporation, 434 F.2d 1234 (2d" }, { "docid": "15763586", "title": "", "text": "for the appropriate limitations’ period. See, e. g. Wallace v. American Telephone and Telegraph Co., 460 F.Supp. 755 (E.D.N.Y.1978). International Union (UAW) v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), requires us to look to State law for determination of the limitations’ period for a claim under 29 U.S.C. § 185. Additionally, we are required under Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed.2d 280 (1895), to follow the Rules of Decision Act, 28 U.S.C. § 1652, in determining which statute of limitations to apply. Under that statute the “laws of the several states, except where . .. Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States.. .. ” In this case Congress has not provided for a limitations’ period for actions under § 301 to vacate an arbitration award, and has specifically excluded the application of the United States Arbitration Act to actions concerning such collective bargaining agreements. Thus, given that Congress has not provided otherwise, we look to the law of Maryland to determine the appropriate limitations’ period. The State statute of limitations to be selected is determined by characterizing the nature of the § 301 suit. Hoosier Cardinal, supra. Because this action against the Company is one which requires the vacation of an arbitrator’s award, we characterize the suit as one to vacate an award and look to the applicable arbitration statute of the State for limitations of the action. E. g. Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003, 1006 (W.D.N.Y.1976), and cases there cited; Wallace, supra, and cases there cited. This holding gives effect to the national labor policy of deciding labor disputes by arbitration if possible. Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Section 3-224 of the Maryland Code, Courts and Judicial Proceedings provides for a thirty day limitations’ period: (a) Petition — (1) Except as provided in paragraph (2), a petition to vacate the award shall be" }, { "docid": "8603833", "title": "", "text": "did not seek to overturn an arbitrator’s award, nor was it an employee § 301 action. It was in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), that the Supreme Court first addressed the limitation enactments pertinent to so called hybrid § 301/fair representation claims, where an aggrieved employee initiated the action. The Mitchell Court reasoned that such hybrid actions were “more analogous to an action to vacate an arbitration award than to a straight contract action”, 451 U.S. at 63, 101 S.Ct. at 1564, because “an arbitration award stands between the employee and any relief which may be awarded against the company”. Id. n. 4. Mitchell therefore mandated that the federal courts apply the state limitation statutes applicable to actions initiated by employees to vacate arbitration awards, which were (and remain) significantly shorter than other civil limitations periods. 451 U.S. at 61-63, 101 S.Ct. at 1563-64. In Badon v. General Motors Corp., 679 F.2d 93 (6th Cir.1982), this circuit evaluated the impact of Mitchell on § 301/fair representation actions arising pursuant to Michigan law. Previous to Mitchell, the Sixth Circuit had consistently maintained that Michigan’s three-year tort limitations statute governed such Michigan litigation. See, e.g., Echols v. Chrysler Corp., 633 F.2d 722 (6th Cir.1980); Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). In Badon, however, this court recognized that Mitchell had obviated the earlier cases and, enunciated a rule favoring the state arbitration limitation statutes. The Badon court, however, discovered that Michigan had specifically excluded labor disputes from its arbitration statute of limitations. As a result, Badon concluded that Michigan had elected to relegate the limitations period as applied to labor arbitration actions “to the realm of the common law”. 679 F.2d at 99. Finding no guidance from the state common law, the court “on the strength of our own reasoning ... conclude[d] that the most appropriate statute of limitations” was the six-month period embodied in § 10(b) of the National Labor Relations Act, 29 U.S.C. §" }, { "docid": "22703981", "title": "", "text": "the District Court should have applied New York’s 6-year limitations period for actions alleging breach of contract, N. Y. Civ. Prac. Law § 213 (2) (McKinney 1972). It reasoned that respondent’s action was analogous to a breach-of-contract action because the issues were whether the collective-bargaining agreement had been breached and whether the Union contributed to that breach by failure to discharge its duty of fair representation. The court further reasoned that a 6-year limitations period “provides for relatively rapid disposition of labor disputes without undermining an employee’s ability to vindicate his rights through § 301 actions.” 624 F. 2d, at 397-398. We granted UPS’ petition for certiorari. 449 U. S. 898 (1980). II Congress has not enacted a statute of limitations governing actions brought pursuant to § 301 of the LMR.A. As this Court pointed out in Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 704-705 (1966), “the timeliness of a §301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Our present task is to determine which limitations period is “the most appropriate one provided by state law.” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975). This depends upon an examination of the nature of the fed eral claim and the federal policies involved. See Hoosier Cardinal, supra, at 706-707. Although respondent did not style his suit as one to vacate the award of the Joint Panel, if he is successful the suit will have that direct effect. Respondent raises in his § 301 action the same claim that was raised before the Joint Panel— that he was discharged in violation of the collective-bargaining agreement. He seeks the same relief he sought before the Joint Panel — reinstatement with full backpay. In sum, “it is clear that [he] was dissatisfied with and simply seeks to upset the arbitrator’s decision that the company did not wrongfully discharge him.” Liotta v. National Forge Co., 629 F. 2d 903, 905-906 (CA3 1980), cert. pending, No. 80-890. The Court of Appeals purported to rely on" }, { "docid": "16454286", "title": "", "text": "42 U.S.C. § 1981. Liotta appeals from the entry of summary judgment for the Company. The Company cross appeals on the ground that Liotta’s complaint is barred by the applicable statutes of limitations. We conclude that his claim under Section 301 is time barred, that his claim under 42 U.S.C. § 1981 is not time barred, and that summary judgment was inappropriate on his Section 1981 claim because of the existence of material issues of fact. We will therefore affirm in part and reverse in part. I. The first question we must answer is whether Liotta’s Section 301 cause of action was untimely and therefore whether the Company’s motion to dismiss should have been granted. The Company’s motion was based on the ground that Liotta’s claims were barred by the three-month statute of limitations of the Pennsylvania General Arbitration Act, Pa.Stat.Ann. tit. 5 § 173 (Purdon 1963). The district court held that the six-year limitations period for actions upon a contract applied. We believe the district court erred. In UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966), the Supreme Court held that “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Courts within this circuit have consistently applied the three-month limitations period to suits seeking to vacate an arbitrator’s award. Cole v. United Steelworkers, 441 F.Supp. 1346, 1351 (M.D.Pa.1977), aff’d mem., 588 F.2d 819 (3d Cir. 1978); Siskey v. General Teamsters, Chauffeurs, 419 F.Supp. 48, 50 (W.D.Pa. 1976); UMWA v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206, 1211-12 (W.D.Pa. 1974); International Brotherhood v. Motor Freight Express, 356 F.Supp. 724, 726 (W.D. Pa.1973). It is important to identify the nature of Liotta’s first cause of action since the three-month statute of limitations of Pennsylvania’s General Arbitration Act would apply only where one seeks to vacate an arbitrator’s award. A fair reading of Liotta’s complaint demonstrates that he seeks to vacate the arbitrator’s decision. Paragraph 22 of his complaint alleges that he “was unfairly" }, { "docid": "8733197", "title": "", "text": "wrongfully discharge him. Courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from arbitration awards rather than the longer statute of limitations governing actions bottomed on written contracts when such actions seek to vacate arbitration awards. E.g. Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y.1976); DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967); contra, Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). Liotta v. National Forge Co., 629 F.2d 903, 905-06 (3rd Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981). . The court noted that International Union, UAW v. Hoosier Cardinal, 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966), required “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Michigan courts had previously characterized this type of labor dispute as one for injury to person or property governed by the three year period in M.C.L.A. § 600.5805(7). Glowacki v. Motor Wheel Corp., 67 Mich.App. 448, 241 N.W.2d 240 (1976). The Sixth Circuit found no reason to reject this characterization. Smart, 580 F.2d at 217 n.1. . Although M.C.L.A. § 600.5001(3) exempts collective labor contracts from the provisions of the statutory process for arbitration, an employee’s inability to bring direct suit to vacate an arbitration award “does not mean that his § 301 claim, which if successful would have the same effect, is not ‘closely analogous’ to such an action. Mitchell, 451 U.S. at 61 n.3, 101 S.Ct. at 1563 n.3. . Defendants contend that Gas Workers Local No. 80 v. Michigan Consolidated Gas Co., 503 F.Supp. 155 (E.D.Mich.1980), presaged the new rule of Mitchell However, Gas Workers could not fairly be read to provide warning that further reliance on Smart would be misplaced. First, Gas Workers involved a direct action to set aside an arbitration award as beyond the" }, { "docid": "8733196", "title": "", "text": "extant law. This distinction has little impact in this case where a difference of only several months separates the two time periods. However, the court favors the analysis in Wachovia Bank & Trust v. National Student Marketing, 650 F.2d 342, 347-48 (D.C.Cir.1980), cert. denied Peat, Marwick, Mitchell & Co. v. Wachovia Bank & Trust Co.,-U.S.-, 101 S.Ct. 3098, 69 L.Ed.2d 965 (1981), which held that a court must compare the new limitations ruling with the law the plaintiff relied upon when he contemplated suit. . In Liotta, the Third Circuit applied the three-month statute of limitations in the Pennsylvania Arbitration Act to bar plaintiffs wrongful discharge claim against his employer. The court commented: [T]he fact that Liotta alleges that the arbitration award is invalid due to the Union’s breach of its duty of fair representation does not change the limitations period because the suit here is against the Company and not the Union. Thus, it is clear that Liotta was dissatisfied with and simply seeks to upset the arbitrator’s decision that the Company did not wrongfully discharge him. Courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from arbitration awards rather than the longer statute of limitations governing actions bottomed on written contracts when such actions seek to vacate arbitration awards. E.g. Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y.1976); DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967); contra, Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). Liotta v. National Forge Co., 629 F.2d 903, 905-06 (3rd Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981). . The court noted that International Union, UAW v. Hoosier Cardinal, 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966), required “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Michigan courts had previously characterized" }, { "docid": "16454287", "title": "", "text": "U.S. 696, 704-05, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966), the Supreme Court held that “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Courts within this circuit have consistently applied the three-month limitations period to suits seeking to vacate an arbitrator’s award. Cole v. United Steelworkers, 441 F.Supp. 1346, 1351 (M.D.Pa.1977), aff’d mem., 588 F.2d 819 (3d Cir. 1978); Siskey v. General Teamsters, Chauffeurs, 419 F.Supp. 48, 50 (W.D.Pa. 1976); UMWA v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206, 1211-12 (W.D.Pa. 1974); International Brotherhood v. Motor Freight Express, 356 F.Supp. 724, 726 (W.D. Pa.1973). It is important to identify the nature of Liotta’s first cause of action since the three-month statute of limitations of Pennsylvania’s General Arbitration Act would apply only where one seeks to vacate an arbitrator’s award. A fair reading of Liotta’s complaint demonstrates that he seeks to vacate the arbitrator’s decision. Paragraph 22 of his complaint alleges that he “was unfairly represented before, during and after Arbitration by the” attorney for the International Union. App., at 10. Paragraph 23 alleges that the “Arbitration itself was improper and unfair.” App., at 12. Indeed, he sought to litigate before the district court the same claim he presented for arbitration, that of improper discharge. Moreover, the fact that Liotta alleges that the arbitration award is invalid due to the Union’s breach of its duty of fair representation does not change the limitations period because the suit here is against the Company and not the Union. Thus, it is clear that Liotta was dissatisfied with and simply seeks to upset the arbitrator’s decision that the Company did not wrongfully discharge him. The result we reach comports with the general federal policy favoring arbitration as a means of resolving labor disputes, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960), and with the federal labor policy that favors the application of shorter limitations period. In International Union, UAW" }, { "docid": "16454290", "title": "", "text": "and that the Company’s motion to dismiss should have been granted. II. The next issue we must consider concerns Liotta’s claim under 42 U.S.C. § 1981. As a threshold matter, however, we must first address the Company’s assertion that this claim is also time barred. As with Section 301, 42 U.S.C. § 1981 provides no explicit period of limitations and courts are bound to apply the most appropriate limitations period provided by state law. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). This court, in Davis v. U. S. Steel Supply, 581 F.2d 335 (3d Cir. 1978), held that the six-year statute of limitations for contracts under Pennsylvania law applied to a Section 1981 claim of unlawful discharge. We therefore conclude that Liotta’s second cause of action under 42 U.S.C. § 1981 is not barred as untimely. With regard to the merits of Liotta’s Section 1981 claim, the district court granted the Company’s motion for summary judgment for the following reasons: The only evidence which plaintiff has submitted to the court in support of his allegations is a letter from Bobby Kaigler, Compliance Officer of the Erie Human Relations Commission (EHRC), which states that plaintiff testified before the EHRC on behalf of black complainants who were discharged by defendant and that “It is the belief of this office that Mr. James Liotta was terminated from his job because of his constant fight for ‘Equal Rights’ of all men.” (Plaintiff’s summary judgment exhibit 7n). This letter is not an affidavit and it has not been notarized. Consequently, the conclusory “belief” expressed in the letter, which is not based on personal knowledge, is insufficient to create or support an inference that racial discrimination played any part in plaintiff’s dis charge. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141 (3rd Cir. 1972). No genuine issue of material fact supporting plaintiff’s claim has been presented by plaintiff’s evidence. Liotta v. National Forge Company, 473 F.Supp. 1139 at 1146 (W.D.Pa.1979) reprinted in App., at 45-46. Liotta claims, however, that he also submitted to the" }, { "docid": "7061797", "title": "", "text": "this area is the “relatively rapid disposition of labor disputes.” 383 U.S., at 707 [86 S.Ct., at 1114]. Cf. 29 U.S.C. § 160(b) (1976) (6-month period under NLRA). This policy was one of the reasons the Court in Hoosier Cardinal chose the generally shorter period for actions based on an oral contract rather than that for actions upon a written contract, ibid., and similar analysis supports our adoption of the shorter period for actions to vacate an arbitration award in this case. 451 U.S. at 62, 101 S.Ct. at 1563. The Sixth Circuit Court of Appeals, in an opinion that was relied upon and quoted by the Second Circuit Court of Appeals in Mitchell v. United Parcel Service, 624 F.2d 394 (2d Cir. 1980), reversed 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), had previously held that Michigan’s three year tort statute of limitations should govern § 301 actions. Smart v. Ellis Trucking Co., Inc., 580 F.2d 215, 217 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). In Smart, supra, the Sixth Circuit Court of Appeals refused to apply the twenty day limitation period of Michigan General Court Rule [GCR] 769, holding that “Appellant’s action for wrongful discharge is not in the nature of a motion to vacate or modify an arbitration award, at least to the extent that it states a claim under § 301.” 580 F.2d at 219. That reasoning was relied upon by the Second Circuit Court of Appeals in Mitchell, supra, and expressly rejected by the Supreme Court. Since Mitchell, supra, was decided by the Supreme Court, there can be no doubt that (1) a postarbitration claim under § 301 against a union and an employer is, in reality, an effort to vacate the arbitration award, and (2) as a matter of federal law, state statutes of limitations, which are applicable to actions that seek to overturn an arbitration award, must govern. Thus, Smart, supra, can no longer serve as an instructive guide to a resolution of the issues which are presently before this Court. Gas Workers" } ]

[ { "docid": "12065051", "title": "", "text": "provides that “[a] second or successive habeas petition may be dismissed if the judge finds that it fails to allege new or different grounds and the prior determination was on the merits.... ” See also Larson v. United States, No. 89-5171, 905 F.2d 218 (8th Cir. June 6, 1990) (successive habeas claim properly dismissed where appellate court previously rejected claim and petitioner only argued ruling was incorrect); Williams v. Lockhart, 862 F.2d 155, 158 (8th Cir.1988) (“repetitive claims should not be revisited because [petitioner] does not present any new facts or legal developments warranting relitigation of the claim”). As to the district court’s denial of the remaining ground, we affirm, but do so only on procedural grounds. Unlike the district court, we do not address the merits of the Mills issue. We agree with the state that Gilmore’s failure to raise the Mills claim in his first petition constitutes an abuse of the writ. See Rule 9(b) (if petitioner asserts new and different ground in successive petition, failure to assert ground in previous petition may constitute abuse of writ). In any event, consideration of the claim would be procedurally barred by Gilmore’s failure to raise it in state court. In Fairchild v. Lockhart, 900 F.2d 1292 (8th Cir.1990), this court made clear that “[i]n death-penalty cases, as in all cases, it is, with some exceptions, an abuse of the Great Writ to assert new grounds for relief that were available at the time of an initial petition.” Id. at 1294 (citing, e.g., Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989)). The court further stated that “the procedural-bar ‘cause’ and ‘prejudice’ analysis of Wainwright [v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ], and the ‘factual innocence’ exception [of Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ] to that analysis, also apply to a state’s abuse-of-the-writ defense.” 900 F.2d at 1294. In Smith, this court explained that “[i]n the penalty-phase context, this exception will be available if the federal constitutional error alleged probably resulted in a verdict of death against" } ]

[ { "docid": "4413138", "title": "", "text": "doctrine does not preclude a federal habeas court from reaching the merits of Mr. Holmes’ claims, several of his claims are not susceptible to federal review due to petitioner’s abuse of the writ. These claims are ineffective assistance of appellate counsel, denial of a speedy trial, and the Second Circuit brief claim. Petitioner is entitled to federal habeas review of claims contained in a second or successive habeas petition only in the limited circumstances enunciated in 28 U.S.C. § 2244, Rule 9(b) of the Rules Governing Habeas Corpus Proceedings (the “Rules”), and McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Pursuant to Title 28, United States Code, Section 2244(b), a federal court may refuse to entertain a second or subsequent application for federal habeas relief unless the petition alleges a new ground and the petitioner did not deliberately withhold this new ground or “otherwise abuse the writ.” Expanding on this concept, Rule 9(b) provides that A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. 28 U.S.C. § 2244 Rule 9(b). This Rule seeks to promote the finality of state court adjudications and also acknowledges the costs imposed by federal collateral review of state convictions. See Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). In Zant, the Court set forth a framework for analyzing whether a successive application for federal collateral relief that raises new and different grounds constitutes an abuse of the writ. Upon the filing of a second or subsequent habeas petition, the Government bears the burden of pleading abuse of the writ. “The government satisfies this burden if, with clarity, and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused" }, { "docid": "4948623", "title": "", "text": "supplants the “new factual/legal issues” development. [Citation omitted]. Byrd v. Delo, 917 F.2d 1037, 1039-40 (8th Cir.1990). . The record establishes that the confession claim asserted in the first petition was resolved on the merits. Pickens has now made a second confession claim. He represents that he has obtained newly discovered evidence and therefore has a justification for having failed to present these facts in his first petition. The newly discovered evidence is the Jack Lassiter affidavit in which he recounts a statement made to him by the interrogating officer. The short answer to the position advanced by Pickens is that this evidence is not newly discovered. The Court agrees with respondent that Pickens knew of the basis for the claim at least by 1981, the year he filed his first petition. In fact, he knew of the basis for the claim the day it arose because he was the person to whom the remark by the interrogating officer was made. The claim is therefore deemed successive, and it is barred from federal review in accordance with'Rule 9(b). Assuming, arguendo, that the claim is not successive but new, and given the caution in Sanders that any doubt should be resolved in favor of Pickens, the Court finds that the claim should also be. addressed pursuant to Rule 9(b) as if it were new. “The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second ... petition for ... writ of habeas corpus.” McCleskey v. Zant, 499 U.S. -, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). The doctrine is typically invoked when a new claim is asserted in a second petition but the claim was available at the time of the first petition. Gilmore v. Delo, 908 F.2d 385, 387 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 20, 111 L.Ed.2d 833 (1990). See also Cornman v. Armontrout, 959 F.2d 727, (8th Cir.1992); Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86" }, { "docid": "23147300", "title": "", "text": "consideration; at issue is Zayas’s entitlement to make the argument in his Middle District petition for habeas corpus. Since Zayas has previously filed two ha-beas petitions in the Eastern District that have not presented the § 212(c) issue, the government contends that the District Court was correct in dismissing the habeas petition filed in the Middle District. In the District Court, the government relied on (1) 28 U.S.C. § 2244(b), the AEDPA gatekeeping mechanism that requires one who seeks to file a “second or successive” petition in a district court under § 2254 to first obtain the permission of the court of appeals, and, (2) in the alternative, the pre-AEDPA “abuse of the writ” case law embodied in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In this court, the government has refrained from contesting Judge Caputo’s conclusion that the § 2244(b) gatekeeping regime does not govern habeas petitions filed under § 2241. But the government sup ports Judge Caputo’s further conclusion— challenged by Zayas — that McCleskey’s “abuse of the writ” jurisprudence is applicable to, and operates to bar, Zayas’s petition. To understand what Congress, in 1996, sought to do in enacting § 2244(b), one must start with McCleskey, decided five years before. In McCleskey, the Supreme Court comprehensively addressed the problem of “abuse of the writ” presented by sequential habeas filings. The Court undertook to analyze, and to integrate into a systematic whole, the then-existing habe-as statutes and rules and the Court’s own principal prior case discussions of abuse of the writ. The Court announced the following formulation: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts" }, { "docid": "22475984", "title": "", "text": "culminated in McQueen’s filing of a motion under Rule 60(b), Fed. R.Civ.P., in the district court, which was denied. The district court refused to reach the merits of the motion, holding that the motion amounted to a successive petition and that the respondent properly claimed an abuse of the writ. The district court properly denied this motion on that ground and, like the district court, we refuse to address the approximately sixty additional issues raised by McQueen. It is now well settled that a successive petition will be considered an abuse of the writ where such a claim is made by the respondent and where the petitioner cannot show cause and prejudice. The leading case on this issue remains McCleskey v. Zant, 499 U.S. 467, 111 S.Ct 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Supreme Court held that abuse of the writ exists when a petitioner fails to raise or otherwise present a claim in his initial petition. Abuse of the writ occurs regardless of whether the failure is from a deliberate choice or from inexcusable neglect. McCleskey, 499 U.S. at 489-91, 111 S.Ct. at 1467-69. The test for determining whether there has been abuse of the writ is the same as the issue of procedural default described in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The procedure to be followed was clearly defined in McCles-key: ... When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and show prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentia-ry hearing if the district court determines" }, { "docid": "23147301", "title": "", "text": "the writ” jurisprudence is applicable to, and operates to bar, Zayas’s petition. To understand what Congress, in 1996, sought to do in enacting § 2244(b), one must start with McCleskey, decided five years before. In McCleskey, the Supreme Court comprehensively addressed the problem of “abuse of the writ” presented by sequential habeas filings. The Court undertook to analyze, and to integrate into a systematic whole, the then-existing habe-as statutes and rules and the Court’s own principal prior case discussions of abuse of the writ. The Court announced the following formulation: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an eviden-tiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. 499 U.S. at 494-95, 111 S.Ct. 1454. In 1996, in AEDPA, Congress, concerned that successive habeas petitions filed in federal district courts still seemed to frustrate finality in the criminal process, amended § 2244 so as to impose tighter constraints than McCleskey’s on habeas petitioners invoking § 2254 to present collateral challenges to state criminal convictions. Under § 2244(b) as amended, (1) “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed,” § 2244(b)(1), and (2) a “second or successive" }, { "docid": "4159427", "title": "", "text": "barred from considering the merits of claims raised in a second or subsequent federal habeas petition. Washington v. Delo, 51 F.3d 756, 759 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 205, 133 L.Ed.2d 138 (1995). In determining when such a bar applies, we are guided not only by the statutory standards set forth in 28 U.S.C. § 2244(b) and Rule 9(b) of the Rules Governing Habeas Corpus Cases, but by the court’s own equitable powers. See McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). A. New Claims Rehbein first contends that the district court erred in dismissing as abusive the claims raised for the first time in Rehbein III. In McCleskey v. Zant, the United States Supreme Court announced the principles that govern abuse of the writ claims. There, a state prisoner challenged the constitutionality of his conviction in various state postconviction proceedings and in two federal habeas petitions. McCleskey’s second federal habeas petition contained a ground for relief not raised in his first federal habeas petition. 499 U.S. at 474, 111 S.Ct. at 1459-60. The Eleventh Circuit ordered dismissal of the new claim as an abuse of the writ, and McCleskey appealed, arguing that a new claim is not abusive unless it is deliberately abandoned in a prior proceeding. Id. at 476-77, 111 S.Ct. at 1460-61. The Supreme Court rejected MeCleskey’s argument. Tracing the history of the abuse of the writ doctrine, the Court held that “[ajbuse of the writ is not confined to instances of deliberate abandonment.” Id. at 489, 111 S.Ct. at 1467. Instead, “a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.” Id. Therefore, after McCleskey, claims raised or developed for the first time in a second or subsequent habeas are abusive and may not be considered on the merits unless the petitioner demonstrates either cause for his failure to raise them earlier and resulting prejudice, or demonstrates that a fundamental miscarriage" }, { "docid": "11090750", "title": "", "text": "invocation of its procedural bar rule to preclude petitioner from raising an effective assistance of counsel claim is in error. 2. Abuse of the Writ Perhaps the greatest irony in the majority’s opinion rests in its conclusion that petitioner has abused the writ. In its repeated application of procedural defaults to petitioner’s claims, the majority completely ignores the state's failure to assert with particularity abuse of the writ to petitioner’s claim of ineffective assistance of counsel on appeal. After the parties briefed their positions before this court and oral argument was heard, the Supreme Court issued a new standard by which we are to review a successive petition for a writ of habeas corpus. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Court for the first time set out that a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. at 72, 97 S.Ct. at 2497-99, applicable to procedural default eases, before a petitioner’s failure to raise the claim in the earlier petition is excused. This “strict liability” standard was set forth to avoid procedural abuses and to ensure the finality of state convictions. Nevertheless, “[wjhen a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes the petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s.” McCleskey, 111 S.Ct. at 1470 (emphasis supplied). The magistrate judge’s recommendation finds that petitioner’s claim of ineffective assistance of counsel was not abusive. The district court adopted wholesale the magistrate judge’s recommendation. I search in vain to find even a hint of writ abuse with regard to this claim in the state’s brief before this court. The state did not file an objection to the magistrate judge’s recommendation, nor has it appealed the district court’s adoption of that conclusion. The claim therefore has been waived and is not properly before" }, { "docid": "13126757", "title": "", "text": "repetitive” within forty-eight horns after receiving it, the district court made two flagrant errors. First, it wrongly decided that all of McKenzie’s claims were “successive.” A claim is “successive” if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and determined on the merits. Campbell v. Blodgett, 997 F.2d 512, 515-16 (9th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994). The State concedes that McKenzie has never previously raised most of the claims in his petition, including his Eighth Amendment and Ex Post Facto claims, see parts V & VI infra. It is the abuse of the writ doctrine that applies to claims raised for the first time in a second or subsequent petition. McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). Here, even if the district court’s order is construed as dismissing the non-successive claims as an abuse of the writ, the district court failed to follow the proper procedure for raising and deciding abuse of the writ, as prescribed by the Supreme Court in McCleskey: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ.... To excuse his failure to raise the claim earlier, petitioner must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions.... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at 494-95, 111 S.Ct. at 1470. The district court failed to observe these required procedures, dismissing McKenzie’s petition without requiring the State to raise" }, { "docid": "4948625", "title": "", "text": "(1991). When abuse of the writ is alleged, McCleskey requires the following analysis: [T]he government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s pri- or writ history, identifies the claims that appear for the first time, and alleges that prisoner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. • The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. McCleskey v. Zant, 499 U.S. at -, 111 S.Ct. at 1470. Respondent has outlined Pickens’ prior writ history with clarity and particularity. Respondent has also identified the claim appearing for the first time and has alleged that Pickens has abused the writ. These allegations having been made, he has the burden to disprove that he abused the writ. He shoulders this burden by establishing cause and prejudice or that a fundamental miscarriage of justice will occur if the claim is not considered. The cause apparently advanced by Pick-ens is that he only now obtained newly discovered evidence tending to support his claim of an involuntary confession, i.e., the affidavit of Jack Lassiter attesting to the threat made by the interrogating officer. As the Court has noted, however, the short answer to this assertion is that the evidence is not newly discovered. Pickens knew of the factual basis for the claim at least by 1981, the year he filed his first petition. In fact, he knew of the básis for the claim the day it arose because he was" }, { "docid": "22822440", "title": "", "text": "at 1144. It then held that Barapind’s § 2241 petition duplicated the claims presented in his 1994 habeas petition filed in the Central District of California pursuant to INA § 106(a)(10) and dismissed the petition as an abuse of the writ. See id. at 1143-44. Barapind claims that the district court erred because unlike his 1994 petition, he now challenges the BIA’s decision to hold his case in abeyance pending the outcome of the extradition case and seeks only an order compelling readjudication of his asylum application. “The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In MeCleskey, the Supreme Court examined the scope and procedure of the abuse of the writ doctrine: When a prisoner files a second or subsequent habeas petition, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s ... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at 494-95, 111 S.Ct. 1454. In large part, AEDPA codified the abuse of the writ doctrine and created a “gatekeeping” mechanism restricting the filing of second or successive habeas applications in district court. See Felker v. Turpin, 518 U.S. 651, 663-64, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Calderon v. U.S. Dist. Ct., 163 F.3d 530, 538 (9th Cir.1998), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999). However, the gatekeeping provisions of AEDPA, as set forth in 28 U.S.C. § 2244, do not apply to all habeas petitions," }, { "docid": "9575498", "title": "", "text": "PER CURIAM. Robert J. Haley is serving a 151-month sentence for participating in a conspiracy to manufacture in excess of 1,000 marijuana plants. In November 1993, Haley filed a § 2255 petition. The district court denied his petition on June 1,1994, and we affirmed on July 6, 1995. See Haley v. United States, 61 F.3d 905 (7th Cir.1995) (unpublished order) (text in Westlaw). On November 17, 1994, while the appeal from his first petition was pending, Haley filed a second § 2255 petition. The district court dismissed his second petition, holding that its filing constituted an abuse of the writ. See Rules Governing § 2255 Proceedings, 9(b); McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467-68, 113 L.Ed.2d 517 (1991). Haley appeals, arguing that the district court erred by failing to give him notice of its intention to find abuse of the writ and provide him with an opportunity to respond. As an initial matter, Haley’s second petition may not be dismissed as a successive petition under Rule 9(b) because it contains allegations different from those raised in his first petition. Still, the filing of the second petition constitutes abuse of the writ if Haley could have raised his new claims in the first petition. McCleskey, 499 U.S. at 489, 111 S.Ct. at 1467-68. To avoid dismissal for abuse of the writ, Haley must show cause for his failure to raise the claims in his first petition and demonstrate prejudice. Id. at 494, 111 S.Ct. at 1470. Haley correctly asserts that the district court must normally give the petitioner an opportunity to respond before finding an abuse of the writ. The government bears the burden of pleading abuse of the writ by noting the “petitioner’s prior writ history [and] identifying] the claims that appear for the first time.” McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470. The burden then shifts to the petitioner to disprove the allegation of abuse of the writ. Id. Thus, the district court should generally afford a petitioner the opportunity to respond before dismissing the petition as an abuse of the writ. Haley," }, { "docid": "6311597", "title": "", "text": "the District Court erred when it determined that some of the claims he raised in his third amended petition were procedurally barred as abusive under 28 U.S.C. § 2254, Rule 9(b). The State argues that any issues raised in the third amended petition which were not included in the other two amended petitions are barred by the abuse-of-the-writ doctrine. The abuse-of-the-writ doctrine generally prohibits a petitioner from raising claims in a subsequent habeas petition that could have been, but were not, raised in the first federal habeas proceeding. McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991). The general bar against abusive claims also extends to successive claims which raise grounds identical to those heard and decided on the merits in a previous petition, Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). The respondent bears the initial burden of pleading abuse of the writ, and, once he or she does so, the petitioner bears the burden of proving that no abuse has occurred. McCleskey, supra, 499 U.S. at 494, 111 S.Ct. at 1470. Normally, once the state pleads abuse of the writ as a defense, a court must determine why the issue was not raised in an earlier petition. Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989). Examples of the types of issues which are prohibited under the abuse-of-the-writ doctrine include grounds for relief which were deliberately withheld or which were not filed by competent counsel. Id. at 540-41. Dismissal of a petition can be avoided if the earlier petition “was filed and litigated without [petitioner’s] knowledge, participation, or authorization^]” Ibid. (citations omitted). The Supreme Court has carved out two types of exceptions to the general bar against successive writs. To qualify for the first exception, a petitioner must show cause for failing to raise the claim in an earlier petition, as well as prejudice resulting from that failure. McCleskey v. Zant, supra, 499 U.S. at 494, 111 S.Ct. at 1470. A court may also proceed to deeidé the claim on the merits if the defendant" }, { "docid": "3394190", "title": "", "text": "claims, however, as we find that Cornman’s petition constitutes an abuse of the writ. A federal court may not address the merits of a state prisoner’s habeas petition if the petition is premised upon a claim that constitutes an abuse of the writ. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). A prisoner abuses the writ of habeas corpus by attempting to assert “grounds for relief ... [that] were available but not relied [upon] in an earlier [habeas] petition.” Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991); see also Smith v. Armontrout, 888 F.2d 530, 541 (8th Cir.1989); Hall v. Lockhart, 863 F.2d 609, 610 (8th Cir.1988), appeal decided, 905 F.2d 1197 (8th Cir.1990). The burden is on the government to plead abuse of the writ. McCleskey, 111 S.Ct. at 1470. This burden is satisfied if the government “notes [with clarity and particularity the] petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that [the] petitioner has abused the writ.” Id. Once the government satisfies this requirement, the burden shifts to the petitioner to show cause for failing to include the delinquent claims in the earlier writ and also to show actual prejudice resulting from the newly alleged errors. See id. But even “[i]f [the] petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.” Id. Here there is no dispute that respondent adequately has pled abuse of the writ, both in the District Court and in this appeal. See Appellee’s Br. at 6; Designated Record at 23 (Respondent’s Response to Order to Show Cause Why a Writ of Habeas Corpus Should not be Granted at 4). Thus, unless a fundamental miscarriage of justice otherwise results, Cornman is entitled to a hearing on the merits of his petition only if he can show cause for failing" }, { "docid": "16763822", "title": "", "text": "Zayas v. INS, 311 F.3d 247, 252 (3d Cir.2002). We review the district court’s decision to deny an evidentiary hearing for abuse of discretion. See Schriro v. Lan- drigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). IV. DISCUSSION A. Legal Framework of Second Applications Under the Abuse-of-the-Writ Standard and the AEDPA Prior to the enactment of the AEDPA in 1996, the “doctrine of abuse of the writ define[d] the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or successive petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). When Goldblum filed his first federal habeas petition in 1991, the law encompassed the abuse-of-the-writ doctrine, which provided that a petitioner could prosecute another such petition only if he could “(1) show cause for, and prejudice from, the omission of his new claim or claims from his earlier petition (i.e., that his proceeding would not constitute an ‘abuse of the writ’), or (2) demonstrate ‘actual innocence.’ ” Minarik, 166 F.3d at 600. The Supreme Court in McCleskey discussed the meaning of “cause” and “prejudice” prongs, and the “narrow exception” of “actual innocence,” as well as the burden-shifting framework when the abuse-of-the-writ doctrine is raised. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an eviden-tiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause," }, { "docid": "3872187", "title": "", "text": "(b) Successive motions. A second or successive petition may be dismissed if the judge finds that it fails to allege new and different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior petition constituted an abuse of the writ. Rules Governing § 2254 Cases, Rule 9(b), 28 U.S.C. foil. § 2254. The district court also found that petitioner’s conduct offended the finality concept as articulated in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). By its terms, McCleskey addresses the type of writ abuse that “defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.” Id. at 470, 111 S.Ct. at 1457. Irving did not raise claims two and five for the first time in the instant petition; rather, he is raising these precise issues for the third time. Thus, arguably, McCleskey’s standard, with its cause and prejudice and miscarriage of justice exceptions, see id. at 493-94, 111 S.Ct. at 1469-70, is too generous to the petitioner. But even if we apply the McCleskey standard for “cause” to determine whether Irving’s successive writ can be entertained, Irving cannot prevail. Absent a showing of cause, then, Irving was bound to assert these claims in an appeal of his first federal habeas petition, rather than seek to relitigate the same claims in a subsequent petition. See Hamilton v. McCotter, 772 F.2d 171, 178 n. 12 (5th Cir.1985). Petitioner argues that his attorney’s conflict of interest constitutes cause for his failure to perfect an appeal from the district court’s original rejection of these claims in his first federal habeas proceedings. He asserts that Mr. McClellan, the attorney who represented him in his first federal habeas proceedings, is the same attorney who was found to have a conflict of interest at the original trial. Petitioner argues that we therefore should infer that counsel’s failure" }, { "docid": "7009878", "title": "", "text": "requirement. II. ANALYSIS A. Standard of Review Because this is Sawyer’s second federal habeas petition, we first must determine whether we can reach the merits of his claims. See 28 U.S.C. § 2244(b) (1988); Rule 9(b) of Rules Governing Section 2254 Cases (constraining the ability of federal courts to entertain the merits of subsequent or successive claims). When a condemned prisoner presents successive petitions for a writ of habeas corpus, the state has a legitimate interest in preventing the prisoner from abusing the writ and using successive petitions as a mere delaying tactic. If the petitioner raises a claim that a federal court has already considered in a previous habeas corpus petition, we may review the merits of the successive claim only when “the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion); see also McCleskey v. Zant, — U.S. -, -, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); Williams v. Lynaugh, 837 F.2d 1294, 1295 (5th Cir.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989). If the petitioner raises a new claim in a second or successive habeas petition, we may review that claim on the merits only if the petitioner’s failure to raise the claim in the prior petition was not due to inexcusable neglect. See Moore v. Butler, 819 F.2d 517, 519 (5th Cir.), cert. denied, 482 U.S. 920, 107 S.Ct. 3201, 96 L.Ed.2d 688 (1987) (quoting Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984)). The state bears the burden of pleading abuse of the writ. See id. Once the state has met its burden of pleading, the petitioner must disprove that he has abused the writ by showing cause for failure to bring the claim in the first federal habeas petition, and actual prejudice that results from the errors that gave rise to the claim. McCleskey, 111 5.Ct. at 1470. In order to demonstrate cause, the" }, { "docid": "4948624", "title": "", "text": "accordance with'Rule 9(b). Assuming, arguendo, that the claim is not successive but new, and given the caution in Sanders that any doubt should be resolved in favor of Pickens, the Court finds that the claim should also be. addressed pursuant to Rule 9(b) as if it were new. “The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second ... petition for ... writ of habeas corpus.” McCleskey v. Zant, 499 U.S. -, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). The doctrine is typically invoked when a new claim is asserted in a second petition but the claim was available at the time of the first petition. Gilmore v. Delo, 908 F.2d 385, 387 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 20, 111 L.Ed.2d 833 (1990). See also Cornman v. Armontrout, 959 F.2d 727, (8th Cir.1992); Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991). When abuse of the writ is alleged, McCleskey requires the following analysis: [T]he government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s pri- or writ history, identifies the claims that appear for the first time, and alleges that prisoner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. • The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. McCleskey v. Zant," }, { "docid": "3394189", "title": "", "text": "Designated Record] (Petitioner’s Traverse to Respondent’s Response to Order to Show Cause Why a Writ of Habeas Corpus Should not be Granted at 3)). After an evidentiary hearing, the Circuit Court of Texas County, Missouri, denied the motion. The Missouri Court of Appeals affirmed. Cornman v. State, 779 S.W.2d 17, 21 (Mo.Ct.App.1989). In April 1990, Cornman filed his second habeas corpus petition in the District Court. In this petition, as in his 29.15 motion, he alleged that his trial counsel was constitutionally deficient because he failed to investigate or interview alibi witnesses and because he failed to object to the admission of two alleged hearsay statements. However, he made neither of these arguments (hereinafter the “omitted claims”) in his original habeas petition. Respondents noted this fact and urged the District Court to dismiss the petition as abusive. This the District Court declined to do, but it did deny the petition on its merits. Cornman appeals from that decision, reasserting his claims that his counsel was constitutionally deficient. We do not reach the merits of these claims, however, as we find that Cornman’s petition constitutes an abuse of the writ. A federal court may not address the merits of a state prisoner’s habeas petition if the petition is premised upon a claim that constitutes an abuse of the writ. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). A prisoner abuses the writ of habeas corpus by attempting to assert “grounds for relief ... [that] were available but not relied [upon] in an earlier [habeas] petition.” Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991); see also Smith v. Armontrout, 888 F.2d 530, 541 (8th Cir.1989); Hall v. Lockhart, 863 F.2d 609, 610 (8th Cir.1988), appeal decided, 905 F.2d 1197 (8th Cir.1990). The burden is on the government to plead abuse of the writ. McCleskey, 111 S.Ct. at 1470. This burden is satisfied if the government “notes [with clarity and particularity the] petitioner’s prior writ history, identifies the claims that appear for the first" }, { "docid": "14140804", "title": "", "text": "100 L.Ed.2d 384 (1988), the penalty-phase jury instructions told the jury they could not consider a mitigating circumstance unless all twelve jurors found the mitigating circumstance existed. Shaw also claims he is incompetent to. be executed. Without addressing the merits of Shaw’s claims, the district court dismissed Shaw’s petition. III. After a state prisoner’s first federal habeas petition has been decided, federal courts generally cannot consider the merits of claims raised in the prisoner’s later federal habeas petitions. Federal courts must usually dismiss claims raised in later habeas petitions as successive or abusive. See 28 U.S.C. §§ 2244, 2254 rule 9(b) (1988). Repetitive claims that have been “raised and decided adversely on the merits in an earlier petition” are successive. Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991); see also Sanders v. United States, 373 U.S. 1, 15-17, 83 S.Ct. 1068, 1077-1078, 10 L.Ed.2d 148 (1963). New claims that were not raised in an earlier petition are potentially abusive. McCleskey v. Zant, — U.S. -,-, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991); Olds, 919 F.2d at 1332. If a petitioner shows cause and prejudice, however, the district court may consider the claims’ merits. Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); McCleskey, — U.S. at -, 111 S.Ct. at 1470. The cause requirement focuses on the petitioner’s conduct. McCleskey, — U.S. at-, 111 S.Ct. at 1472. The requirement “is based on the principle that [a] petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.” Id. “If what [the] petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what [the petitioner] does not know is irrelevant.” Id. Thus, to establish cause, the petitioner must show some external impediment, such as governmental interference or the reasonable unavailability of a claim’s factual basis, “ ‘preventing counsel from constructing or raising a claim.’ ” Id. (quoting Murray v. Carrier," }, { "docid": "1640683", "title": "", "text": "the burden of pleading abuse of the writ. The government satisfies the burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom.... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at-, 111 S.Ct. at 1470. The Court further stated: Abuse of the writ doctrine examines petitioner’s conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process. The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habe-as petition. 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. Id. at -, 111 S.Ct. at 1472 (citations omitted). McCleskey involved a successive federal habeas corpus petition by a state prisoner. Peltier contends that McCleskey applies only to state prisoners and not to federal ones. We held, however, in United States v. Fallon, 922 F.2d 212, 213 (8th Cir.1993) that “[t]he McCleskey standard applies to § 2255 habeas petitions filed by federal inmates.” See also United States v. Flores, 981 F.2d 231, 234-35 (5th Cir.1993) (“McCleskey’s formulation of the abuse of the writ doctrine also governs abuse of the proceedings under section 2255.”) (footnote omitted). Our ruling in Fallon accords with" } ]

[ { "docid": "22070245", "title": "", "text": "and the United States refer to four other federal-court decisions lending some support for their view that, for § 1341 purposes, no line should be drawn between challenges that would reduce revenues and attacks that might augment collections. See Reply Brief for Petitioner 8-9 (citing Kraebel v. New York City Dept. of Housing Preservation and Development, 959 F. 2d 395 (CA2 1992); Colonial Pipeline Co. v. Collins, 921 F. 2d 1237 (CA11 1991); In re Gillis, 836 F. 2d 1001 (CA6 1988); United States Brewers Assn., Inc. v. Perez, 592 F. 2d 1212 (CAI 1979)). See also Brief for United States as Amicus Curiae 14-15. In two of the cases, taxpayers were seeking relief aimed at lightening their own tax burdens. Kraebel held that § 1341 barred a taxpayer’s constitutional challenge to a property-tax exemption and abatement scheme. 959 F. 2d, at 400. Colonial Pipeline held that a taxpayer’s suit seeking a court-ordered redistribution of Georgia’s ad valorem tax system, which might have reduced plaintiff’s tax bill, implicated § 1341’s jurisdictional bar. 921 F. 2d, at 1243. The court did observe, broadly: “[The] requested relief, if granted, . . . would clearly conflict with the principle underlying the [TIA] that the federal courts should generally avoid interfering with the sensitive and peculiarly local concerns surrounding state taxation schemes.” Id., at 1242. Gillis, unlike Kraebel and Colonial Pipeline, was a third-party action. The court declined to decide “[w]hether the [TIA] actually does bar the availability of such relief,” but noted that a suit seeking to enhance state revenues may nonetheless fall within § 1341’s bar because “the Act is not, by its own language, limited to the collection of taxes.” 836 F. 2d, at 1005 (emphasis in original). Finally, Perez concerned the Butler Act, 48 U. S. C. § 872, a TIA analog applicable to Puerto Rico. Ordering dismissal of the case for want of jurisdiction, the court rested its decision not on statutory construction, but on “underlying]” comity concerns, stating: “[A]n order of a federal court requiring Commonwealth officials to collect taxes which its legislature has not seen fit to" } ]

[ { "docid": "11576951", "title": "", "text": "case was the economically uncertain action of elimination of a certain product “[that] might be genuinely hard to predict, [whereas] the elimination of a special tax exemption is much more likely to increase rather than decrease revenues.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 15. Ultimately, the court found that “this case is more like Hibbs than Hill[,]” and concluded that the action was not barred by the Butler Act. Id. at 16. Second, the First Circuit determined that comity had a restricted application in light of Hibbs. In so doing, it expressly overrode its earlier ruling in U.S. Brewers. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16. The court interpreted the “Hibbs footnote” to mean that comity did not bar the door to federal court, as such an invalidation would necessarily result in the repeal of a tax exemption that would raise tax revenue. Id. at 18. In concluding that “Hibbs effected a change in the law such that neither the Butler Act nor related principles of comity serve to bar Coors’s complaint[,]” id., the court held: The Court did observe that U.S. Brewers was based on principles of comity related to the Butler Act, and not the TIA. But this observation cannot serve to save U.S. Brewers since the Butler Act is read analogously to the TIA and since the Hibbs Court also limited principles of comity under the TIA. In light of the surrounding discussion, and considering the earlier footnote limiting the scope of comity, we read the Court’s citation to U.S. Brewers simply as an acknowledgment of a related case, and not as an endorsement of its result. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17-18 (citation omitted). The Supreme Court did not share this interpretation of Hibbs. Rather, the Court found that Hibbs had a more “modest reach.” The footnote, Justice Ginsburg explained, was not meant to recast the comity doctrine, but was merely intended to convey that Hibbs was a poor fit for comity. Levin v. Commerce Energy, Inc., 130 S.Ct. at 2335. Several idiosyncratic issues led to the Court to" }, { "docid": "19034575", "title": "", "text": "impediment.” Id. at 112, 124 S.Ct. 2276. Ultimately, since the plaintiffs in Hibbs did not seek to avoid paying state taxes, their action was not barred. Id. Hibbs’s holding regarding the proper understanding of the TIA shows that the Butler Act is similarly no bar to Coors’s action. Coors does not seek to lower the tax rate on itself. Rather, it alleges that a special exemption built into Puerto Rico’s tax code provides an illegal and unconstitutional benefit to local brewers. If this claim succeeds on the merits and Coors obtains the relief its requests, Coors’s tax liability will be unchanged. In this way, Coors’s challenge to the small brewer exemption is analogous to the plaintiffs’ claim in Hibbs. Thus, since the Butler Act is read in parallel to the TIA, and since it similarly only restricts the district courts from entertaining suits “for the purpose of restraining the assessment or collection” of taxes of Puerto Rico, we read it, according to Hibbs, to only apply where plaintiffs seek to challenge taxes in a way that would reduce the flow of state tax revenue. See May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d 1261, 1267 (9th Cir.2004) (“After Hibbs, the dispositive question in determining whether the Act’s jurisdictional bar applies is whether ‘[flederal-court relief ... would have operated to reduce the flow of state tax revenue.’” (quoting Hibbs, 542 U.S. at 106, 124 S.Ct. 2276)). Against this conclusion, the Secretary contends that the fact that Coors’s tax liability will be unchanged is irrelevant since federal court interference with the small brewer exemption could have the effect of lowering tax revenue. Specifically, the Secretary contends that a court-mandated increase of the tax rates on small brewers could affect the market in such a way as to ultimately reduce demand to the point where tax revenues suffer. The Secretary points to a recent Tenth Circuit decision interpreting Hibbs. See Hill v. Kemp, 478 F.3d 1236 (10th Cir.2007). In that case, plaintiffs challenged a state law that authorized the state Tax Commissioner to issue specialized license plates and use the funds" }, { "docid": "19034580", "title": "", "text": "success would ‘operate[ ] to reduce the flow of state tax revenue.’ ” (quoting Hibbs, 542 U.S. at 106-07, 124 S.Ct.2276)). The Secretary makes another argument based on Hill. The Hill court observed that Hibbs involved the “somewhat unusual circumstance ... of citizens seeking to eliminate tax credits” whereas Hill involved “an effort expressly aimed at preventing the State from exercising its sovereign power to collect certain revenues,” which was more like the “traditional heartland of TIA cases.” Hill, 478 F.3d at 1250. The Secretary argues that since Coors’s action is not a challenge to a tax credit, but rather to a tax exemption, it is also more similar to the kind of action traditionally barred by the TIA. We fail to see the distinction in this context between a tax credit and a tax exemption. The Hibbs court did not rely on the mechanism through which the challenged state tax relief was afforded, but rather on the fact that the relief plaintiffs sought would not endanger state tax revenues. Hibbs, 542 U.S. at 109, 124 S.Ct. 2276 (noting that the TIA’s legislative history showed no concern “ ‘about federal courts’ flogging state and local governments to collect additional taxes.’ ” (quoting Dunn v. Carey, 808 F.2d 555, 558 (7th Cir.1986))). Thus, this case is more like Hibbs than Hill; rather than eliminate a potential source of revenue, the relief Coors requests would simply eliminate a tax law affording preferential tax treatment to certain taxpayers. Accordingly, we conclude that under Hibbs, Coors’s action is not barred by the Butler Act. 2. Related principles of comity The Secretary contends that even if Coors’s action is not barred by the Butler Act, it is barred by the related principles of comity that we relied upon in U.S. Brewers, 592 F.2d at 1214. Certainly that court rejected arguments very similar to those raised now by Coors when it concluded that those principles would be “ill-served” by the “technical distinction” between restraining the imposition of a lower rate on small brewers and a direct challenge to plaintiffs’ higher rate. Id. at 1214-15. We further" }, { "docid": "19034587", "title": "", "text": "Our conclusion is supported by the Sixth Circuit. That court recognized that reading earlier comity caselaw, including Fair Assessment, to permit the broad use of comity in a situation like this one, “runs squarely against Hibbs’s instruction that comity guts federal jurisdiction only when plaintiffs try to thwart tax collection.” Commerce Energy, 554 F.3d at 1099. Similarly, as that court explained, “an unduly broad view of comity would render an Act of Congress — the Tax Injunction Act — effectively superfluous, as its contours would never be dispositive so long as extant ‘comity principles’ uniformly barred challenges to state taxation.” Id. The Sixth Circuit also noted that the Hibbs Court reasoned that the “decades-long understanding” that the TIA was no bar was revealed by the fact that other challenges to state tax law proceeded without reference to the TIA. Id.; see also Hibbs, 542 U.S. at 112, 124 S.Ct. 2276. Using the same reasoning suggests that comity is no bar as those same cases also proceeded without reference to comity. Commerce Energy, 554 F.3d at 1099-1100. These reasons provided by the Sixth Circuit, combined with our own analysis of Hibbs described above, lead us to conclude that comity does not bar federal courts from hearing suits seeking to invalidate state tax laws that afford preferential tax treatment to third parties where such challenge would not arrest state revenue generation. This is not to say that principles of comity are of no further effect. As recognized in Hibbs, Fair Assessment is still good law; plaintiffs may not circumvent the TIA or the Butler Act by challenging their tax liability through an action seeking money damages. See id. at 1098 (discussing Fair Assessment). But, properly read, Hibbs confined principles of comity to cases seeking to arrest or countermand state tax collection. It remains the case that Coors seeks “an order of a federal court requiring Commonwealth officials to collect taxes which its legislature has not seen fit to impose on its citizens.” U.S. Brewers, 592 F.2d at 1215. But, since Coors seeks an injunction eliminating an exemption and therefore does not seek" }, { "docid": "19034574", "title": "", "text": "enacting the TIA, Congress trained its attention on taxpayers who sought to avoid paying their tax bill by pursuing a challenge route other than the one specified by the taxing authority. Nowhere does the legislative history announce a sweeping congressional direction to prevent federal-court interference with all aspects of state tax administration. Id. (internal quotation marks omitted). The Court inventoried prior TIA precedents and explained that they are “not fairly portrayed cut loose from their secure, state-revenue-protective moorings.” Id. at 106, 124 S.Ct. 2276. Specifically, the TIA has been applied “only in cases Congress wrote the Act to address, i.e., cases in which state taxpayers seek federal-court orders enabling them to avoid paying state taxes.” Id. at 107, 124 S.Ct. 2276. The Court also cataloged a number of historical cases of third-party challenges to tax benefits that had proceeded without any party mentioning the TIA. Id. at 110-12, 124 S.Ct. 2276. This catalog led the Court to conclude that “[cjonsistent with the decades-long understanding prevailing on this issue, respondents’ suit may proceed without any TIA impediment.” Id. at 112, 124 S.Ct. 2276. Ultimately, since the plaintiffs in Hibbs did not seek to avoid paying state taxes, their action was not barred. Id. Hibbs’s holding regarding the proper understanding of the TIA shows that the Butler Act is similarly no bar to Coors’s action. Coors does not seek to lower the tax rate on itself. Rather, it alleges that a special exemption built into Puerto Rico’s tax code provides an illegal and unconstitutional benefit to local brewers. If this claim succeeds on the merits and Coors obtains the relief its requests, Coors’s tax liability will be unchanged. In this way, Coors’s challenge to the small brewer exemption is analogous to the plaintiffs’ claim in Hibbs. Thus, since the Butler Act is read in parallel to the TIA, and since it similarly only restricts the district courts from entertaining suits “for the purpose of restraining the assessment or collection” of taxes of Puerto Rico, we read it, according to Hibbs, to only apply where plaintiffs seek to challenge taxes in a way" }, { "docid": "11576914", "title": "", "text": "continued to cite the First Circuit case U.S. Brewers even after Hibbs. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17. Because the Hibbs Court itself cited U.S. Brewers, recognizing that U.S. Brewers was not based on the Butler Act, but on principles of comity, and quoted U.S. Brewers’ admonition against ordering a state to collect a tax not authorized by its legislature, they believed U.S. Brewers still controlled. For example “the Fourth Circuit has relied on U.S. Brewers, even after Hibbs, to refuse jurisdiction over a challenge to a state tax regime’s allegedly preferential treatment.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17 (citing DIRECTV, Inc. v. Tolson, 513 F.3d 119, 126-28 (4th Cir.2008)). The First Circuit chose not to follow what other circuits had perceived as a guide post, a footnote in Hibbs that quoted U.S. Brewers. The court rejected the Fourth Circuit’s belief that the footnote implicitly condoned the result in U.S. Brewers. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17. Rather, the court “read the [Supreme] Court’s citation to U.S. Brewers simply as an acknowledgment of a related case, and not as an endorsement of its result.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17-18. The court drew strength from a Sixth Circuit case, Commerce Energy v. Levin, 554 F.3d 1094 (6th Cir.), cert. granted,U.S. —, 130 S.Ct. 496, 175 L.Ed.2d 344 (2009), rev’d and remanded, — U.S. —, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010), that it felt supported their conclusion. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 18. The First Circuit thus ruled that U.S. Brewers was no longer good law, and found that “Hibbs effected a change in the law such that neither the Butler Act nor related principles of comity serve to bar Coors’s complaint.” Id. In other words, the court felt that Hibbs created a new avenue to federal jurisdiction under the TIA when a party seeks to invalidate a state statute that would have the net effect of raising taxes. The First Circuit thus joined the Sixth, Seventh and Ninth Circuits in holding that Hibbs sharply" }, { "docid": "527269", "title": "", "text": "UPS. Under the Butler Act, “[n]o suit for the purpose of restraining the assessment or collection of a tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico.” 48 U.S.C. § 872. For the reasons that follow, the prohibition does not apply to this case. The Secretary contends that UPS has challenged the statutory and regulatory mechanism for collecting the excise tax, thus UPS seeks to restrain the assessment or collection of the tax within the meaning of the Butler Act. But the action initiated by UPS sought to enjoin only those provisions of the laws and regulations of Puerto Rico that prohibit or interfere with the delivery of packages. UPS did not challenge the amount or validity of the excise tax, nor the authority of the Secretary to assess or collect it. The relief sought by UPS leaves the Secretary free to collect the tax from those who owe it. Not every statutory or regulatory obligation that may aid the Secretary’s ability to collect a tax is immune from attack in federal court by virtue of the Butler Act’s jurisdictional bar. See Wells v. Malloy, 510 F.2d 74, 76-77 (2d Cir.1975)(Friendly, J.)(action questioning the constitutionality of a statute providing for suspension of a driver’s license for failure to pay motor vehicle taxes did not constitute an attempt to restrain the assessment or levy of the tax); see also Mobil Oil Corp. v. Tully, 639 F.2d 912, 918 (2d Cir.l981)(holding that the “mere fact that the [challenged provision] is contained in a tax law of the State should not lead to automatic sanctuary” under the Tax Injunction Act). Such an interpretation extends the concept of tax collection, and therefore the breadth of the Butler Act, too far. See Wells, 510 F.2d at 77 (rejecting as overbroad an interpretation of tax collection that would include “anything that a state has determined to be a likely method of securing payment”). Like the Tax Injunction Act, the Butler Act’s jurisdictional bar extends to cases where taxpayers were repeatedly using the" }, { "docid": "527270", "title": "", "text": "ability to collect a tax is immune from attack in federal court by virtue of the Butler Act’s jurisdictional bar. See Wells v. Malloy, 510 F.2d 74, 76-77 (2d Cir.1975)(Friendly, J.)(action questioning the constitutionality of a statute providing for suspension of a driver’s license for failure to pay motor vehicle taxes did not constitute an attempt to restrain the assessment or levy of the tax); see also Mobil Oil Corp. v. Tully, 639 F.2d 912, 918 (2d Cir.l981)(holding that the “mere fact that the [challenged provision] is contained in a tax law of the State should not lead to automatic sanctuary” under the Tax Injunction Act). Such an interpretation extends the concept of tax collection, and therefore the breadth of the Butler Act, too far. See Wells, 510 F.2d at 77 (rejecting as overbroad an interpretation of tax collection that would include “anything that a state has determined to be a likely method of securing payment”). Like the Tax Injunction Act, the Butler Act’s jurisdictional bar extends to cases where taxpayers were repeatedly using the federal courts to raise questions of state or federal law going to the validity of the particular taxes imposed upon them — not to a case where a taxpayer contended that an unusual sanction for non-payment of a tax admittedly due violated his constitutional rights, an issue which, once determined, would be determined for him and all others. Id. (notation omitted). Admittedly, the conditional ban on package deliveries may not seem to be in some respects as unusual as the drivers’ license penalty in Wells. Nevertheless, because the delivery ban targets third parties instead of those who owe the tax, this is not a prototypical Tax Injunction Act or Butler Act case. UPS does not seek to restrain a system that “produce[s] money or other property directly.” Id. Instead, by exposing commercial carriers to fines and penalties (including the loss of their license to do business in Puerto Rico) if they choose to deliver a package without collecting a certificate from the recipient, § 9066 produces tax money “indirectly through a more general use of" }, { "docid": "19034572", "title": "", "text": "have subject matter jurisdiction over the federal questions Coors raises under 28 U.S.C. §§ 1331 and 1343. But, the Butler Act places a limit on federal jurisdiction. Specifically, as we stated above, the Butler Act provides, “[n]o suit for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico.” 48 U.S.C. § 872. We have consistently read this act to be a close analogue to the Tax Injunction Act (“TIA”) applicable to Puerto Rico. UPS v. Flores-Galarza, 318 F.3d 323, 330 n. 11 (1st Cir.2003) (“The two statutes employ different language (i.e. the Tax Injunction Act includes an express exception that the Butler Act lacks), but ‘have been construed in pari materia.’ ” (quoting Trailer Marine Transp. Corp. v. Rivera-Vázquez, 977 F.2d 1, 5 (1st Cir.1992))). In the present action, Coors has asked a federal court to invalidate the small brewer exemption and order Puerto Rico to assess the higher tax rate against small brewers. Coors argues that since it does not seek to decrease the tax it pays, the Butler Act is no bar to the requested relief. This distinction between restraining collection and ordering more collection was not well received in the prior actions. U.S. Brewers, 592 F.2d at 1214; Calderón, 225 F.Supp.2d at 26-27. But, since those decisions, the Supreme Court has accepted a similar argument in Hibbs, 542 U.S. at 104-07, 124 S.Ct. 2276. In that case, Arizona taxpayers sued the director of Arizona’s Department of Revenue seeking to enjoin provision of tax credits for taxpayers who made donations to “school tuition organizations,” which were permitted to fund religious educational organizations. Id. at 92, 124 S.Ct. 2276. The director argued the suit was barred by the TIA. Id. The Supreme Court found that the action was not barred since the plaintiffs did not seek to challenge their own tax liability, and thus did not endanger the collection of state tax revenue. Id. at 104-05, 124 S.Ct. 2276. The Court explained: In short, in" }, { "docid": "11576902", "title": "", "text": "U.S. Brewers Ass’n v. César Pérez, 455 F.Supp. 1159 (D.P.R.1978), remanded, 592 F.2d 1212 (1st Cir.1979) (“U.S. Brewers ”), abrogated by Coors Brewing Co. v. Méndez-Torres, 562 F.3d 3 (1st Cir.2009), abrogated by Levin v. Commerce Energy, Inc., — U.S. —, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010). In that action, the USBA raised much the same argument that Coors argued on appeal in this ease, namely, “that the Butler Act did not bar federal jurisdiction over the challenge to the state tax law since the plaintiffs were not seeking to prevent the collection of a tax.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 6. While not relying on the Butler Act on its face, the First Circuit concluded that the action “was barred by ‘considerations which underlie [the Tax Injunction Act and] the Butler Act,’ namely ‘equity practice, ... principles of federalism ... and the imperative need of a State to administer its own fiscal operations.’ ” Id. (quoting U.S. Brewers Ass’n, Inc. v. Pérez, 592 F.2d at 1214). The First Circuit remanded the case “to the district court so that it may dismiss the case for want of jurisdiction.” U.S. Brewers Ass’n, Inc. v. Pérez, 592 F.2d at 1215. “Meanwhile, the Puerto Rico courts rejected the USBA’s challenges on the merits.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 7 (citing U.S. Brewers Ass’n v. Sec’y of the Treasury, 109 D.P.R. 456, 9 P.R. Offic. Trans. 605 (1980)). Following the 2002 amendments to the beer tax, the Puerto Rico Association of Beer Importers (“PRABI”), to which Coors was affiliated, filed suit in Puerto Rico Superior Court. Asoc. Importadores de Cerveza v. E.L.A., 171 D.P.R. 140 (2007) (“Beer Importers ”). Shortly after filing the suit, Coors voluntarily dismissed its claims without prejudice. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 7. The Puerto Rico Superior Court ultimately dismissed the case, and the Puerto Rico Supreme Court upheld said dismissal on appeal. Id. (citing Asoc. Importadores de Cerveza v. E.L.A., 171 D.P.R. 140 (2007)). Coors filed its own complaint in the same year, challenging the 2002 Amendment to the" }, { "docid": "11576950", "title": "", "text": "1261, 1267 (9th Cir.2004)). The court also drew support from juxtaposing Hibbs to the Tenth Circuit case Hill v. Kemp (“Hill ”). In Hill, a group brought a First Amendment challenge against Oklahoma’s statutory scheme for speciality license plates for automobiles, which expressly included “choose life,” and “adoption creates families” plate options, both of which were easier to procure than license plates bearing messages in support of abortion rights. Hill v. Kemp, 478 F.3d 1236, 1239-40 (10th Cir.2007). The defendants argued that the suit was barred by the Tax Injunction Act. Id. at 1239. The Tenth Circuit refrained from enjoining the state law on evidentiary grounds, as any decision would be based on economic speculation. Otherwise, “judges might be free to become second rate, supply-side economists, hazarding guesses that enjoining this or that revenue raising measure would help rather than hurt overall tax collections.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 14 (citing Hill v. Kemp, 478 F.3d at 1250.) The First Circuit distinguished Hill from the instant case, as the remedy in that case was the economically uncertain action of elimination of a certain product “[that] might be genuinely hard to predict, [whereas] the elimination of a special tax exemption is much more likely to increase rather than decrease revenues.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 15. Ultimately, the court found that “this case is more like Hibbs than Hill[,]” and concluded that the action was not barred by the Butler Act. Id. at 16. Second, the First Circuit determined that comity had a restricted application in light of Hibbs. In so doing, it expressly overrode its earlier ruling in U.S. Brewers. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16. The court interpreted the “Hibbs footnote” to mean that comity did not bar the door to federal court, as such an invalidation would necessarily result in the repeal of a tax exemption that would raise tax revenue. Id. at 18. In concluding that “Hibbs effected a change in the law such that neither the Butler Act nor related principles of comity serve to bar Coors’s" }, { "docid": "11576949", "title": "", "text": "the First Circuit’s holding in this case. The two relevant holdings concerned the applicability of the Butler Act and, through in pari materia extension, the Tax Injunction Act, as well as the principles of comity. Both were found by the First Circuit not to bar Coors from pursuing its case; both were ultimately overruled by the United States Supreme Court. The First Circuit found the Butler Act & the Tax Injunction Act inapplicable to this case because the suit seeks to raise taxes, not reduce them. The appellate court concluded that “since the Butler Act is read in parallel to the TIA, and since it similarly only restricts the district courts from entertaining suits ‘for the purpose of restraining the assessment or collection’ of taxes of Puerto Rico, we read it, according to Hibbs, to only apply where plaintiffs seek to challenge taxes in a way that would reduce the flow of state tax revenue.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 14 (citing May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d 1261, 1267 (9th Cir.2004)). The court also drew support from juxtaposing Hibbs to the Tenth Circuit case Hill v. Kemp (“Hill ”). In Hill, a group brought a First Amendment challenge against Oklahoma’s statutory scheme for speciality license plates for automobiles, which expressly included “choose life,” and “adoption creates families” plate options, both of which were easier to procure than license plates bearing messages in support of abortion rights. Hill v. Kemp, 478 F.3d 1236, 1239-40 (10th Cir.2007). The defendants argued that the suit was barred by the Tax Injunction Act. Id. at 1239. The Tenth Circuit refrained from enjoining the state law on evidentiary grounds, as any decision would be based on economic speculation. Otherwise, “judges might be free to become second rate, supply-side economists, hazarding guesses that enjoining this or that revenue raising measure would help rather than hurt overall tax collections.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 14 (citing Hill v. Kemp, 478 F.3d at 1250.) The First Circuit distinguished Hill from the instant case, as the remedy in that" }, { "docid": "11576912", "title": "", "text": "Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 14. The court concluded: “Thus, this case is more like Hibbs than Hill ; rather than eliminate a potential source of revenue, the relief Coors requests would simply eliminate a tax law affording preferential tax treatment to certain taxpayers. Accordingly, we conclude that under Hibbs, Coors’s action is not barred by the Butler Act.” Id. at 16. v.Comity Finally, the court considered the issue of comity. The Secretary contended that the principles of comity barred Coors’ action. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16. In support, the defendant relies on U.S. Brewers. That court concluded that principles of comity “would be ‘ill-served’ by the ‘technical distinction’ between restraining the imposition of a lower rate on small brewers and a direct challenge to plaintiffs’ higher rate.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16 (quoting U.S. Brewers Ass’n, Inc. v. Pérez, 592 F.2d at 1214-15). Standing alone, the court’s decision in U.S. Brewers would control; but the court wrestled with what effect, if any, Hibbs had on the precedent. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16. The court considered the circuit split on the effect of a footnote in Hibbs. The footnote read: “[T]his Court has relied upon ‘principles of comity,’ ... to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection.” Hibbs v. Winn, 542 U.S. at 107 n. 9, 124 S.Ct. 2276. Several circuits had, in light of Hibbs, determined that scope of the comity bar had been limited. Based on the above footnote, these circuits concluded that “comity does not bar federal courts from hearing suits seeking to invalidate state tax laws that afford preferential tax treatment to third parties where such challenge would not arrest state revenue generation.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 18. In other words, these circuits took the confluence of factors in Hibbs, discussed below at 194-95, and crafted a general principle out of it. Other circuits did not read the Hibbs footnote in this light. They" }, { "docid": "11576913", "title": "", "text": "had on the precedent. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16. The court considered the circuit split on the effect of a footnote in Hibbs. The footnote read: “[T]his Court has relied upon ‘principles of comity,’ ... to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection.” Hibbs v. Winn, 542 U.S. at 107 n. 9, 124 S.Ct. 2276. Several circuits had, in light of Hibbs, determined that scope of the comity bar had been limited. Based on the above footnote, these circuits concluded that “comity does not bar federal courts from hearing suits seeking to invalidate state tax laws that afford preferential tax treatment to third parties where such challenge would not arrest state revenue generation.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 18. In other words, these circuits took the confluence of factors in Hibbs, discussed below at 194-95, and crafted a general principle out of it. Other circuits did not read the Hibbs footnote in this light. They continued to cite the First Circuit case U.S. Brewers even after Hibbs. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17. Because the Hibbs Court itself cited U.S. Brewers, recognizing that U.S. Brewers was not based on the Butler Act, but on principles of comity, and quoted U.S. Brewers’ admonition against ordering a state to collect a tax not authorized by its legislature, they believed U.S. Brewers still controlled. For example “the Fourth Circuit has relied on U.S. Brewers, even after Hibbs, to refuse jurisdiction over a challenge to a state tax regime’s allegedly preferential treatment.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17 (citing DIRECTV, Inc. v. Tolson, 513 F.3d 119, 126-28 (4th Cir.2008)). The First Circuit chose not to follow what other circuits had perceived as a guide post, a footnote in Hibbs that quoted U.S. Brewers. The court rejected the Fourth Circuit’s belief that the footnote implicitly condoned the result in U.S. Brewers. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 17. Rather, the court “read the [Supreme] Court’s citation to" }, { "docid": "19034571", "title": "", "text": "defendants would not seek attorney’s fees. We disagree with this interpretation. The stipulation is not a settlement agreement. Coors did not promise never to bring another suit. A plain reading of the stipulation’s terms shows only that Coors agreed to have a particular judgment entered against it. To the extent Coors was contractually bound to do anything under the stipulation, it was bound to accept the judgment and end its appeal. Coors did that, and was left with the judgment of the district court dismissing the action for lack of subject matter jurisdiction. We have already analyzed the preclusive effect of that judgment and held that it does not bar this action. There is nothing else in the stipulation that has any greater effect. Accordingly, we conclude that neither the Calderon stipulation nor judgment is a bar to this action. B. Subject Matter Jurisdiction 1. The Butler Act Having concluded that neither claim preclusion nor issue preclusion bars consideration of the jurisdictional issue, we proceed to analyze that issue. Of course, the district court would have subject matter jurisdiction over the federal questions Coors raises under 28 U.S.C. §§ 1331 and 1343. But, the Butler Act places a limit on federal jurisdiction. Specifically, as we stated above, the Butler Act provides, “[n]o suit for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico.” 48 U.S.C. § 872. We have consistently read this act to be a close analogue to the Tax Injunction Act (“TIA”) applicable to Puerto Rico. UPS v. Flores-Galarza, 318 F.3d 323, 330 n. 11 (1st Cir.2003) (“The two statutes employ different language (i.e. the Tax Injunction Act includes an express exception that the Butler Act lacks), but ‘have been construed in pari materia.’ ” (quoting Trailer Marine Transp. Corp. v. Rivera-Vázquez, 977 F.2d 1, 5 (1st Cir.1992))). In the present action, Coors has asked a federal court to invalidate the small brewer exemption and order Puerto Rico to assess the higher tax rate" }, { "docid": "11576911", "title": "", "text": "in Puerto Rico]”). iv. The Butler Act Having found that neither res judicata nor issue preclusion barred relitigation in this case, the court next considered the issue of subject matter jurisdiction itself. Specifically, the court addressed whether Coors had a claim under the Butler Act. The' Butler Act prevents a party, attempting to restrain the collection of taxes, from seeking relief in the United States District Court for the District of Puerto Rico. Coors argued on appeal that since it did not seek to decrease its own taxes, the Butler Act was no bar to its requested relief. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 13. The court then juxtaposed this case with the Hibbs case. Through its twin analysis of the Tax Injunction Act (“TIA”) and the Butler Act , the court followed the Hibbs Court’s lead and distinguished the case. Because the plaintiff was not trying to reduce its tax obligations, but rather was trying to invalidate a distinction in the law providing tax breaks to competitors, it served to raise taxes. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 14. The court concluded: “Thus, this case is more like Hibbs than Hill ; rather than eliminate a potential source of revenue, the relief Coors requests would simply eliminate a tax law affording preferential tax treatment to certain taxpayers. Accordingly, we conclude that under Hibbs, Coors’s action is not barred by the Butler Act.” Id. at 16. v.Comity Finally, the court considered the issue of comity. The Secretary contended that the principles of comity barred Coors’ action. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16. In support, the defendant relies on U.S. Brewers. That court concluded that principles of comity “would be ‘ill-served’ by the ‘technical distinction’ between restraining the imposition of a lower rate on small brewers and a direct challenge to plaintiffs’ higher rate.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 16 (quoting U.S. Brewers Ass’n, Inc. v. Pérez, 592 F.2d at 1214-15). Standing alone, the court’s decision in U.S. Brewers would control; but the court wrestled with what effect, if any, Hibbs" }, { "docid": "11576948", "title": "", "text": "Corp., 962 F.2d 728, 730 (7th Cir.1992)). Coors has not provided any benefit in eliminating the Puerto Rico statute, nor has it illustrated any evidence of discrimination, facially, effectually or otherwise. For those reasons, I recommend that plaintiffs motion for summary judgment be DENIED. V. Motion to Dismiss A. Background I now report on the Secretary’s motion to dismiss. (Docket No. 144.) The Secretary argues stridently that the Levin decision has a dispositive effect on this case, and should result in dismissal. (Id. at 2.) The plaintiff submits several parries, the majority of which are contingent upon the question of whether the Levin exceptions, discussed below at 195, apply. As an initial matter, because the plaintiffs motion for summary judgment will be considered and I recommend its rejection, its first argument might be rendered moot. The provision in the joint agreement requiring a stay of all proceedings until the summary judgment motion was decided upon, will soon be satisfied. Thus, the Secretary is free to pursue this motion. As stated, the Levin Court expressly abrogated the First Circuit’s holding in this case. The two relevant holdings concerned the applicability of the Butler Act and, through in pari materia extension, the Tax Injunction Act, as well as the principles of comity. Both were found by the First Circuit not to bar Coors from pursuing its case; both were ultimately overruled by the United States Supreme Court. The First Circuit found the Butler Act & the Tax Injunction Act inapplicable to this case because the suit seeks to raise taxes, not reduce them. The appellate court concluded that “since the Butler Act is read in parallel to the TIA, and since it similarly only restricts the district courts from entertaining suits ‘for the purpose of restraining the assessment or collection’ of taxes of Puerto Rico, we read it, according to Hibbs, to only apply where plaintiffs seek to challenge taxes in a way that would reduce the flow of state tax revenue.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 14 (citing May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d" }, { "docid": "19034581", "title": "", "text": "124 S.Ct. 2276 (noting that the TIA’s legislative history showed no concern “ ‘about federal courts’ flogging state and local governments to collect additional taxes.’ ” (quoting Dunn v. Carey, 808 F.2d 555, 558 (7th Cir.1986))). Thus, this case is more like Hibbs than Hill; rather than eliminate a potential source of revenue, the relief Coors requests would simply eliminate a tax law affording preferential tax treatment to certain taxpayers. Accordingly, we conclude that under Hibbs, Coors’s action is not barred by the Butler Act. 2. Related principles of comity The Secretary contends that even if Coors’s action is not barred by the Butler Act, it is barred by the related principles of comity that we relied upon in U.S. Brewers, 592 F.2d at 1214. Certainly that court rejected arguments very similar to those raised now by Coors when it concluded that those principles would be “ill-served” by the “technical distinction” between restraining the imposition of a lower rate on small brewers and a direct challenge to plaintiffs’ higher rate. Id. at 1214-15. We further stated that “an order of a federal court requiring Commonwealth officials to collect taxes which its legislature has not seen fit to impose on its citizens strikes us as a particularly inappropriate involvement in a state’s management of its fiscal operations.” Id. at 1215. If not for Hibbs, U.S. Brewers would control the resolution of this action. Whether the principles of comity described in U.S. Brewers are intact after Hibbs is an open question that has already engendered a circuit split. The Sixth and Seventh Circuits have adopted a narrowed view of comity principles in light of Hibbs. Commerce Energy, 554 F.3d at 1098-99 (describing the split and endorsing a narrow view of comity by allowing an energy company to challenge alleged preferential tax treatment of local natural gas distributors); Levy v. Pappas, 510 F.3d 755, 761-62 (7th Cir.2007) (finding comity still alive after Hibbs, but concluding that it is limited such that “[w]hen a plaintiff alleges that the state tax collection or refund process is giving unfair benefits to someone else, then according to" }, { "docid": "11576910", "title": "", "text": "state court decision in U.S. Brewers (P.R.). Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 19. But because “Coors was not a party to the action in U.S. Brewers (P.R.),” and because “Coors is not attacking the state court judgment, but simply seeking to raise a challenge to the same exemption previously upheld in U.S. Brewers (P.R.)[J ” the court rejected the applicability of the “Rooker-Feldman doctrine.” Id. The First Circuit then went on to conclude that because Coors was not a party in U.S. Brewers (P.R.), it “conclude[d] that the prior judgment ... does not provide a basis for granting the Secretary’s motion to dismiss.” Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 21. The court premised its position on not having sufficient evidence to conclude that Coors’ predecessor approved their trade association USBA to represent its interests. Id. For similar reasons, the court found that Beer Importers did not preclude the case. Id. at 22 (“the Secretary has failed to meet his burden of showing sufficient privity between Coors and [its exclusive distributor in Puerto Rico]”). iv. The Butler Act Having found that neither res judicata nor issue preclusion barred relitigation in this case, the court next considered the issue of subject matter jurisdiction itself. Specifically, the court addressed whether Coors had a claim under the Butler Act. The' Butler Act prevents a party, attempting to restrain the collection of taxes, from seeking relief in the United States District Court for the District of Puerto Rico. Coors argued on appeal that since it did not seek to decrease its own taxes, the Butler Act was no bar to its requested relief. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 13. The court then juxtaposed this case with the Hibbs case. Through its twin analysis of the Tax Injunction Act (“TIA”) and the Butler Act , the court followed the Hibbs Court’s lead and distinguished the case. Because the plaintiff was not trying to reduce its tax obligations, but rather was trying to invalidate a distinction in the law providing tax breaks to competitors, it served to raise taxes." }, { "docid": "11576905", "title": "", "text": "U.S.C. § 872, and the Tax Injunction Act, 28 U.S.C. § 1341. (Docket No. 13, at 17.) The Secretary additionally alleged that collateral estoppel and/or claim preclusion prevented the court from deciding the case, as there was ongoing litigation in the Puerto Rico state courts. (Docket No. 13, at 7-13, ¶ 111(A).) The defendant further contended that the stipulations agreed to in the Calderon case had a preclusive effect on this court’s jurisdiction. {Id. at 5.) The district court then referred the matter to me for report and recommendation. (Docket No. 40.) I filed my report and recommendation on July 13, 2007, recommending that this court dismiss the action. (Docket No. 48, at 1.) The court adopted my recommendation in part, although it decided to dismiss the action on grounds other than those recommended. (Docket No. 77, at 26.) The district court found that the action was barred not by res judicata but by several independent procedural barriers, including the Rooker-Feldman doctrine , the Butler Act , and the preclusive effect of Calderón and the resulting stipulations flowing therefrom. The district court ultimately entered judgment dismissing Coors’ federal claims with prejudice. (Docket No. 78.) B. First Circuit On appeal, Coors argued that dismissal was improper, and stressed four arguments. First, that this case is not bound by the same factual nexus as the case in Calderón. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 9-10. Coors’ action in Calderón challenged the 2002 Amendments, whereas the case at bar challenged the 2004 Amendments. Id. at 10. Second, the plaintiff alleged that an intervening change of law, the United States Supreme Court case Hibbs v. Winn, 542 U.S. 88, 124 5.Ct. 2276, 159 L.Ed.2d 172 (2004), limited the preclusive effect of the earlier judgment. Coors Brewing Co. v. Méndez-Torres, 562 F.3d at 10. Third, the Butler Act was not a bar to its requested relief because it did not seek to decrease the tax it pays, but rather, sought to increase the taxes other companies paid. Id. at 13. Finally, that there was not perfect identity of cause between the instant action" } ]

[ { "docid": "996595", "title": "", "text": "or ten months. An inquiry would have disclosed this fact. If appellant chose to furnish coal and supplies without inquiry, or if it was in the possession of the facts and ignored them, it is responsible for its present position. Does the appellant have a lien for the coal and supplies furnished, second to the lien of the mortgage? The presumption is that a lien arises when necessary supplies are furnished to' a vessel on the order of the owner or master, and it shall not be necessary to allege or prove that credit was given to the vessel. Any one who denies the existence of such a lien has the burden of establishing the contrary. Section P of the Ship Mortgage Act of June 5, 1920 (Comp. St. .Ann. Supp. 1923, § 8146%ooo); The Yankee, 233 F. 919, 147 C. C. A. 593. The agreement of sale contained the following provision: “That this agreement will be carried as part of the ship’s papers, and that the buyer shall take such other appropriate steps, as designated to it by the seller from time to time, or required by the circumstances, as will give notice to the world that the buyer’s right, title, and interest in the said vessel is subject to the said mortgage and to this agreement, and that the buyer has no right, power, or authority to suffer or permit to be imposed on or against said vessel any liens or claims which might be deemed superior to, or a charge against, the interest of the seller in said vessel.” An inquiry by the appellant would have disclosed the information it contained. The sale had been completed, and the agreement, in a sense, as appellant contends, “had ceased to be operative before the supplies were furnished” ; but it nevertheless showed that the seller still had an interest in the vessel, and that the buyer had “no right, power, or authority to suffer or permit to he imposed on or against said vessel any liens or claims” which might be deemed superior to the interest of the seller;" } ]

[ { "docid": "21473199", "title": "", "text": "waived the lien by relying on the credit of persons other than the owners and charterers to the exclusion of that of the vessel. See, e.g., Farwest I, 769 F.2d at 624-25. We do not reach Marine Fuel’s argument that an in rem action survives even if Ken Lucky’s owners or charterers are not found liable. Second, Ken Lucky may attempt to rebut the presumption of authority on remand by relying on the no lien clauses in the charter agreements. We discuss this issue below because the district court evidenced some confusion in its ruling as to the effect of such clauses. C. Effect of the No Lien Clauses Ken Lucky admits that the purpose of the Act is to help suppliers determine who has authority to incur a lien. The Act’s presumption in favor of granting liens to suppliers “was enhanced in 1971 when Congress deleted the requirement that materi-almen inquire about the existence of any no-lien clauses before furnishing supplies.” Farwest I, 769 F.2d at 623; see Foss Launch, 808 F.2d at 700 (one purpose of amendment was “to ensure that any party to whom the management of the vessel is entrusted will be presumed to have authority to procure necessaries and supplies which may give rise to maritime liens”); Gulf Trading & Transp. Co. v. M/V Tento, 694 F.2d 1191, 1194 (9th Cir.1982), cert. denied, 461 U.S. 929, 108 S.Ct. 2091, 77 L.Ed.2d 301 (1983). Congress was concerned that the duty of inquiry had become a “substantial obstacle” for persons furnishing supplies. H.Rep. No. 92-340, 92d Cong., 1st Sess., reprinted in 1971 U.S. Code Cong. & Admin.News 1363, 1364-65. See Belcher Oil, 766 F.2d at 1511; Lake Union Drydock Co. v. M/V Polar Viking, 446 F.Supp. 1286, 1289-91 (W.D.Wash.1978); Ryan-Walsh Stevedoring Co., Inc. v. M/V Khalij Star, 507 F.Supp. 36, 38 (W.D.Wash.1980). [The] duty of inquiry became quite impractical in light of the various chartering and sub-chartering practices of foreign and domestic vessels. Furthermore, vessel owners and charterers engaged in subchartering activities began to insert “prohibition of lien” or “no lien” provisions in charter parties. This practice" }, { "docid": "18925697", "title": "", "text": "Ins. Co., 400 U.S. 964, 91 S.Ct. 363, 27 L.Ed.2d 383 (1970), cited with approval in Farrell Ocean Services, Inc. v. United States, 681 F.2d 91, 92-93 (1st Cir. 1982). Fuel supplied to a vessel for its own use to enable it to proceed with its voyage is a clear example of what “necessaries” are giving rise to a maritime lien. See, Belcher Co. of Alabama, Inc., supra, 724 F.2d at 1163. Under 46 U.S.C. § 972, the ship master is presumed to have authority from the owner to “procure ... necessaries for the vessel ... ” Through an amendment in 1971, this principle was extended to a master appointed by a charterer. 46 U.S.C. § 973. Accordingly, “maritime liens /may/ be en forced even if it was the charterer rather than the owner who had ordered the supplies giving rise to it.” Gulf Trading & Transp. Co. v. M/V Tento, 694 F.2d 1191, 1194 (9th Cir.1982), cert. denied, I/S Norexim v. Gulf Trading & Transp. Co., 461 U.S. 929, 103 S.Ct. 2091, 77 L.Ed.2d 301 (1983). There does not seem to be controversy over the fact that the bunker fuel was furnished to the Mermaid for its own use and that the fuel was supplied upon instructions of the master, who had authority for the request. Accordingly, the supply of bunker fuel gave rise to a maritime lien as “necessaries” within the meaning of section 971. Furthermore, Exxon and Colonial, as direct suppliers, would be the ones entitled to the protection of the maritime lien provisions of section 971. SUBROGATION Plaintiffs claim to a lien through these in rem proceedings is based on its purported right to automatically stand in the shoes of the American suppliers by mere payment for the fuel. Subrogation takes place when a party substitutes another with respect to a particular claim. Subrogation may result from an agreement between the parties, better known as “conventional”, or from the application of equitable principles, referred to as “legal”. 73 Am.Jur. 2nd, Subrogation, sec. 2-3 (1974). The doctrine of subrogation applies when a person, “not acting as a" }, { "docid": "14476093", "title": "", "text": "of this title shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel. As summarized in Gilmore and Black, The Law of Admiralty, § 9-46a at 685 (2d Ed. 1975) (hereinafter referred to as “Gilmore and Black”), these Sections, which are part of the Federal Maritime Lien Act, today have the following effect: [C] on tract liens may arise when services are furnished to a vessel “upon the order of the owner * * * or of a person authorized by the owner”; (§ 971), and * * * the “managing owner, ship’s husband, master or any other person to whom the management of the vessel is intrusted” are presumed to have authority to create liens (§ 972) even though they may have been appointed by a “charterer * * * an owner pro hac vice or * * * an agreed purchaser in possession of the vessel” (§ 973). Significantly, the Lien Act was amended by Congress in 1971. As originally enacted, the second clause of § 973 greatly restricted the presumption of authority created by § 972 and the first clause of § 973. The second clause of § 973 previously provided as follows: [B]ut nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel. Questions arising under this provision were resolved by the courts against the supplier of necessaries so that “the duty to inquire provision was, in effect, allowed to swallow up the presumption of authority provisions.” Gilmore and Black, § 9-42 at 674. See, e. g., Dampskibsselskabet Dannebrog v. Signal Oil Co., 310 U.S. 268, 60 S.Ct. 592, 84 L.Ed. 998 (1940). It became standard practice to insert “prohibition of lien” or “no lien” provisions" }, { "docid": "11942521", "title": "", "text": "65 L.Ed. 97 (1920))). A strict approach is in keeping with the overriding purpose of maritime liens and necessary to prevent a proliferation of liens that might hinder international commerce. See Itel, 982 F.2d at 768 (maritime liens are for the’ benefit of “both the ship' and its creditors” but must be narrowly construed because they are “secret lien[s] arising by operation of law”). Maritime liens reduce the counterparty risk associated with supplying a vessel that may not call at the same port again. But because maritime liens are not publicly documented, the risk that a vessel is secretly encumbered may deter parties from doing business with the vessel or its owners in the future. Id.; see also Tramp Oil & Marine, Ltd. v. M/V Mermaid I, 805 F.2d 42, 46 (1st Cir. 1986) (rejecting a less restrictive approach on the grounds that it might require a “vessel seeking to avoid a lien ... to delve far deeper into every transaction than is commercially reasonable”). Perverse incentives are also possible; for example, parties confident that they have a lien on a vessel may be less likely to conduct due diligence or carefully memorialize their agreements, 2. USOT and NuStar did not provide necessaries “on the order” of the vessels or their agents The Physical Suppliers did not provide necessaries “on the order” of the Vessel Interests. In reaching this conclusion, the Court joins the other district courts to consider this issue since O.W.’s collapse. See Valero Mktg. & Supply Co. v. M/V ALMI SUN, 160 F.Supp.3d 973 (E.D. La. 2016) (Brown, J.); O’Rourke Marine Servs. L.P., L.L.P. v. M/V COSCO HAIFA, 179 F.Supp.3d 333 (S.D.N.Y. 2016) (Scheindlin, J.); Temara I, No. 16-CV-95 (KBF), 203 F.Supp.3d 355, 2016 WL 4471901 (Forrest, J.); NuStar Energy Servs., Inc. v. M/V COSCO AUCKLAND, No. 14-CV-3648 (KPE), Dkt. 98 (S.D. Tex. Dec. 1, 2016) (Ellison, J.). Each of these courts rejected substantially the same arguments made by the Physical Suppliers in this case and on materially similar facts. CIMLA creates a presumption that certain officers, such as the. master of a vessel or an agent" }, { "docid": "16653963", "title": "", "text": "an American port. We are thus in complete agreement with the District Court in its application of American instead of English law to the present controversy. Does A Maritime Lien Exist? The Vessel’s owner, as claimant, argues in the alternative that even if American law applies to the present controversy, Gulf did not rely on the credit of the vessel in this case. Therefore, the claimant argues, no maritime lien exists. It points out that Gulf’s agent, in a deposition, stated that the credit in this instance was extended to the charterer, Multinational, and further observes that no conversations took place between Gulf’s credit department and the Vessel’s owner. Moreover, no invoice was sent to the Vessel’s owner. The Maritime Lien Statute, 46 U.S.C. § 971, provides that a supplier of necessaries to a vessel shall have an enforceable maritime lien on the vessel, “and it shall not be necessary to allege or prove that credit was given to the vessel.” See Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 273, 60 S.Ct. 937, 940, 84 L.Ed. 1197, 1200, 1940 A.M.C. 647, 650. A presumption therefore arises that one furnishing supplies to a vessel acquires a maritime lien, and the party attacking this presumption has the burden of establishing that the personal credit of the owner or charterer was solely relied upon. In Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., 261 F.2d 861, 867 (5th Cir. 1958), this Court held that in order to overcome the presumption, evidence must be produced that would permit “the inference that the supplier purposefully intended to forego the valuable privilege which the law accords. . . . ” Id. We agree with the District Court’s conclusion that while Gulf obviously relied upon the credit of the charterer Multinational in furnishing bunkers to the Vessel, there is no evidence that Gulf relied solely on the personal credit of Multinational or otherwise took any action with the purposeful intention of foregoing its maritime lien in the Vessel. Although we agree with the claimant that it is possible for the furnisher" }, { "docid": "17848297", "title": "", "text": "caused Colonial Oil Industries, Inc. (Colonial) to supply the oil to the Mermaid in Savannah. Tramp paid Exxon in full, and Exxon paid Colonial. Tramp then sent an invoice for $91,360.14 for the fuel addressed to J & L and its parent company, Jensen and Larsen A/S (Jensen), as well as to the owner and master of the Mermaid. J & L billed Logos, who paid J & L in full. J & L, however, paid only $45,000 to Tramp who, after unsuccessful efforts to collect the balance, filed this action in rem against the Mermaid, claiming a maritime lien against the ship under 46 U.S.C. § 971. The district court concluded that Tramp was not entitled to such a lien, and granted the Mermaid’s motion for summary judgment, 630 F.Supp. 630. Tramp then filed this appeal. II. The Federal Maritime Lien Act, 46 U.S.C. §971, provides, in pertinent part: Any person furnishing repairs, supplies ... or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem.... No one disputes that Exxon and Colonial, as direct suppliers of the fuel to the Mermaid, would be entitled to a maritime lien. Fuel is unquestionably a “necessary” within the meaning of the Act, and it was furnished upon the order of someone with authority to do so. The question before us is whether Tramp acquired the suppliers’ rights to the lien when it paid Exxon in full for the fuel. Tramp's theory is that it acquired the lien by making an \"advance\" on behalf of the Mermaid. The rule of advances, developed through admiralty case law, is that: Any person advancing money to a ship on the order of the master or one intrusted with her management and for the purpose of satisfying outstanding or future lien claims against the vessel is entitled to a lien of equal dignity with the one replaced, provided the amounts so advanced are actually" }, { "docid": "10866492", "title": "", "text": "in support. Id. Under general contractor cases, the actual deliverer of necessaries often is not entitled to a lien. See, e.g., Galehead, 183 F.3d at 1245 (“[Although Polygon did not physically supply the bunkers, a party need not be the physical supplier or deliverer to have ‘provided’ necessaries under the statute.”). In two of the cases LCS cites in support of its middle-man argument, the court suggested that the actual deliverers of the necessaries would be entitled to liens. See Tramp Oil & Marine, 805 F.2d at 44 (“No one disputes that Exxon and Colonial, as direct suppliers to the Mermaid, would be entitled to a maritime lien.”); Belcher, 724 F.2d at 1163 (“Thus, when Belcher supplied fuel to the [vessel], a maritime lien may have arisen by operation of law ....”); id. at 1164 (“If American law had been applicable when the vessel was attached in the Netherlands, the supplier of fuel would have had a lien on the vessel.... ”). However, it was not necessary for these courts to consider whether Exxon, Colonial, or Belcher had a maritime lien under U.S. law, and thus we need not consider ourselves bound by these statements. Cf. Crescent City Marine, 20 F.3d at 670 (noting that language from Belcher relied on by party was dicta). In the final case cited by LCS, Marine Fuel Supply & Towing, Inc. v. M/V Ken Lucky, 869 F.2d 473 (9th Cir.1989), a sub-charterer’s managing agent, acting on the subcharterer’s orders and instructions, contacted a firm it was authorized to order fuel through, which in turn instructed another firm to place the order for the vessel’s supplies with Marine Fuel. Marine Fuel was subsequently notified that it had been nominated by the vessel’s owner to supply the vessel. ■ It was also notified of the identity of the vessel’s husbanding agent, which arranged for delivery of the necessaries. Marine Fuel supplied the fuel, which the master of the vessel accepted. The court found that the order originated from the subcharterer, who had authority to bind the vessel, and that, under the circumstances, Marine Fuel was entitled" }, { "docid": "19591202", "title": "", "text": "lien. Ken Lucky typifies the middle-man line of cases. In that case, the following sequence of events occurred: Bulkferts, Inc., the vessel's subcharterer, placed an order for fuel with its managing agent, Eurostem Maritime Limited; Eurostem contacted Brook Oil Ltd., a fuel trader; Brook Oil then instructed Gray Bunkering Services to place an order for fuel with Marine Fuel, the physical supplier; Marine Fuel, in turn, asked Gray for assurances about payment before delivery of the bunkers; Gray notified Marine Fuel that it had been \"nominated by the owner\" of the vessel to supply the fuel; Marine Fuel delivered the fuel; and the vessel's chief engineer accepted the fuel with the approval of the vessel's master. After having unsuccessfully sought payment, Marine Fuel asserted a maritime lien on the vessel. The Ninth Circuit found that Marine Fuel was entitled to a lien because the parties agreed that the order originated from Bulkferts, the subcharterer, an entity with authority to bind the ship. Due to that concession, the Ninth Circuit did not \"reach ... the district court's conclusion that Brook was not Bulkfert's agent,\" concluding that Marine Fuel did not need to \"establish agency between Brook and Bulkferts to fall within the scope of one entitled to a maritime lien under [CIMLA].\" IV. In this case, there is no dispute that bunkers qualify as necessaries and that Valero provided those necessaries to the Vessel. The sole inquiry before us is whether Valero furnished the necessaries to the Vessel \"on the order of the owner or a person authorized by the owner.\" We conclude that it did not. The record shows that Verna, through its agent Almi Tankers, contacted OW Malta because it was a \"reputable bunker trader[ ]\"; that during negotiations, Almi Tankers asked who would be the bunker fuel supplier, and it did not object to Valero's selection; that the sales order confirmation listed Valero as the supplier; that Valero provided the entire bunkering service that Almi Tankers contracted for, with no assistance from O.W. or its affiliates; that the Vessel's agents monitored and tested Valero's performance; and that Almi" }, { "docid": "19591201", "title": "", "text": "to Broussard. Broussard, working through an agent, awarded Lake Charles Stevedores (\"LCS\") the bid to load the rice onto the vessel. LCS loaded the rice, and the vessel's agents signed activity sheets and receipts. When Broussard failed to pay, LCS asserted a maritime lien for its services. We found those facts to be \"more akin to those in which general contractors have been engaged to supply a service and have called upon other firms to assist them in meeting their contractual obligations.\" Typically, \"the general contractor supplying necessaries on the order of an entity with authority to bind the vessel has a maritime lien\"; however, \"subcontractors hired by those general contractors are generally not entitled to assert a lien on their own behalf, unless it can be shown that an entity authorized to bind the ship controlled the selection of the subcontractor and/or its performance.\" Because Man Sugar \"retained no control over the selection of a stevedoring concern, and Broussard accepted all the risk associated,\" we held that LCS was not entitled to a maritime lien. Ken Lucky typifies the middle-man line of cases. In that case, the following sequence of events occurred: Bulkferts, Inc., the vessel's subcharterer, placed an order for fuel with its managing agent, Eurostem Maritime Limited; Eurostem contacted Brook Oil Ltd., a fuel trader; Brook Oil then instructed Gray Bunkering Services to place an order for fuel with Marine Fuel, the physical supplier; Marine Fuel, in turn, asked Gray for assurances about payment before delivery of the bunkers; Gray notified Marine Fuel that it had been \"nominated by the owner\" of the vessel to supply the fuel; Marine Fuel delivered the fuel; and the vessel's chief engineer accepted the fuel with the approval of the vessel's master. After having unsuccessfully sought payment, Marine Fuel asserted a maritime lien on the vessel. The Ninth Circuit found that Marine Fuel was entitled to a lien because the parties agreed that the order originated from Bulkferts, the subcharterer, an entity with authority to bind the ship. Due to that concession, the Ninth Circuit did not \"reach ... the district" }, { "docid": "16653964", "title": "", "text": "S.Ct. 937, 940, 84 L.Ed. 1197, 1200, 1940 A.M.C. 647, 650. A presumption therefore arises that one furnishing supplies to a vessel acquires a maritime lien, and the party attacking this presumption has the burden of establishing that the personal credit of the owner or charterer was solely relied upon. In Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., 261 F.2d 861, 867 (5th Cir. 1958), this Court held that in order to overcome the presumption, evidence must be produced that would permit “the inference that the supplier purposefully intended to forego the valuable privilege which the law accords. . . . ” Id. We agree with the District Court’s conclusion that while Gulf obviously relied upon the credit of the charterer Multinational in furnishing bunkers to the Vessel, there is no evidence that Gulf relied solely on the personal credit of Multinational or otherwise took any action with the purposeful intention of foregoing its maritime lien in the Vessel. Although we agree with the claimant that it is possible for the furnisher of supplies to waive its right to a lien, we agree with the District Court’s holding that the record indicates that the transaction was carried out in such a way as to preserve Gulf’s maritime lien. The Marine Bunker Delivery Receipts, as well as the invoice sent to Multinational, reflect the name of the Vessel HOEGH SHIELD. We agree with Gulf that when the transaction is considered as a whole, nothing was purposely done by Gulf to waive the maritime lien that arose as a matter of statutory law upon the furnishing of bunker fuel to the Vessel in a United States port. Procedural Due Process In The Trial Court The Vessel’s owner also argues that it was denied procedural due process by the Trial Court’s rendering judgment without allowing submission of briefs or a hearing on the central issue in this controversy. It claims that the Trial Court’s action in this regard precluded it from moving for compulsion of answers to certain interrogatories relevant to the choice of law issue discussed above. Apparently, the" }, { "docid": "12412019", "title": "", "text": "U.S. at 275, 60 S.Ct. at 941; Gilmore & Black, Admiralty (1957), at 566. It thus must be a fortiori sufficient to prevent the purchaser of fuel from creating a lien in the charterer himself, whether this is claimed directly- — in the teeth of his agreement to provide the fuel himself— or by subrogation to the rights of a third-party supplier. See Pensacola Shipping Co. v. United States Shipping Board, 277 F. 889, 893 (5 Cir. 1922). The trustee also argues that even if a lien did not arise when the fuel was procured for the vessels, one sprang into existence when they were turned back with fuel on board, in view of the owners’ contractual obligation to pay for the fuel at that point. This position might seem supported by the statements in Gilmore & Black, supra, that “Most, but not all, maritime claims give rise to liens,” at 512, and, more specifically, that “liens arise for breach of charter-party in either direction. The charterer has a lien on the vessel for owner’s breach; the owner may have a lien on cargo and sub-freights for charterer’s breach * * At 517. It has the important backing of Judge Hough’s decision in The Oceano, 148 F. 131 (S.D.N.Y.1906), recognizing a lien for a charterer’s advances for a vessel’s disbursements where the advances by error had not been deducted from the charter hire, and stating, 148 F. at 133, that “As soon as the performance of a charter party is commenced a lien exists on the vessel in favor of the shipper or charterer, and a suit in rem may be maintained for any liability of the master or owner arising therefrom. * * * Damages sustained by a charterer through breach •of a charter contract constitute a lien on the vessel. * * * It cannot be denied that unless explicitly excluded by the contract of charter party both shipper and owner may pursue their remedies for breach of contract by actions in rem.” We thus do not find the absence of an •explicit charter provision conferring a lien" }, { "docid": "14476094", "title": "", "text": "amended by Congress in 1971. As originally enacted, the second clause of § 973 greatly restricted the presumption of authority created by § 972 and the first clause of § 973. The second clause of § 973 previously provided as follows: [B]ut nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel. Questions arising under this provision were resolved by the courts against the supplier of necessaries so that “the duty to inquire provision was, in effect, allowed to swallow up the presumption of authority provisions.” Gilmore and Black, § 9-42 at 674. See, e. g., Dampskibsselskabet Dannebrog v. Signal Oil Co., 310 U.S. 268, 60 S.Ct. 592, 84 L.Ed. 998 (1940). It became standard practice to insert “prohibition of lien” or “no lien” provisions in charter parties, thus effectively shifting the risk of loss to the supplier. Because of the nature of the shipping business, suppliers rarely have enough time to review complicated charter provisions before entering into contracts for the furnishing of necessaries to a vessel which might be in a port for only a short period of time. Accordingly, the supplier “usually end[ed] up assuming the risk that his bill [would] be paid.” House Report No. 92-340, 1971 U.S.Code Cong. & Admin. News, pp. 1363, 1364. Making it easier for a supplier to assert a valid lien encourages the prompt furnishing of necessaries to vessels so that they may be speedily turned around and put to sea, an especially significant maritime goal today when the emphasis on vessel performance is reduced port time and increased speed. Idem, at p. 1365. In response to this problem, Congress in 1971 amended § 973 by deleting the provision placing a “duty to inquire” on the furnisher. P.L. 92-97, 85 Stat. 285. To properly construe the Lien Act, this Court must" }, { "docid": "21473197", "title": "", "text": "precluded summary judgment because material issue of fact remained as to the existence of implied authority); Jan C. Uiter-wyk, 459 F.Supp. at 1330-31 (subcharterer was held to have had implied authority from the time charterer to procure the services because masters of the vessels who ordered the services were held to be agents of persons with apparent authority to bind the vessels, the time charterer and owner). Moreover, the district court’s reliance on the no lien clause to deny the lien thwarts the purpose of the statute by charging Marine Fuel with the onerous duty of resolving the ambiguities in the Sipra-Bulk-ferts-Eurostem-Brook relationship. Cf. Signal Oil, 310 U.S. at 280, 60 S.Ct. at 943 (purpose of lien act thwarted if courts compel the “material-man furnishing supplies to the vessel to resolve the ambiguities which may be found in [the charter agreements]”). We recently noted, construing a lien under the Preferred Ship Mortgage Act, that “one of the purposes of the Maritime Liens Act, 46 U.S.C. §§ 971-75 ... is to create liens in favor of those who furnish necessaries for the vessel’s operation. Permitting [a] contrived financial scheme to prevail effectively destroys the liens of suppliers and subverts the purposes of the Maritime Liens Act.” Wardley Int’l Bank, Inc. v. Nasipit Bay Vessel, 841 F.2d 259, 264 (9th Cir.1988) (citation omitted). Therefore, we conclude that Marine Fuel presented sufficient evidence to establish, as an alternate basis for creation of a lien, that Marine Fuel delivered fuel for the vessel to an agent who possessed statutory authority to bind the ship. If Ken Lucky presents a defense relying on the no lien clauses to rebut this authority on remand, it must demonstrate that Marine Fuel had actual knowledge of the clauses. We remand for further proceedings to give Ken Lucky the opportunity to rebut the presumption of authority. If Ken Lucky fails to rebut the statutory presumption of authority, our finding of presumed authority must lead to a determination that a lien arose. On remand, Ken Lucky may attempt to rebut the statutory presumption of authority by showing that Marine Fuel" }, { "docid": "22270037", "title": "", "text": "which we have referred with respect to the existence of maritime liens where supplies have been ordered by a charterer who has agreed with the owner to provide and pay for them. As, iii such a case, the supplies are furnished on the charterer’s order, there is no question that the supplier is charged with knowledge of the provisions of the charter when he either knows them or by reasonable diligénce could have ascertained them. So far, the principle of The Kate and Thei Valencia, supra, is embodied in the statute. But it does not follow that, in the light of the statute, The Kate and The Valencia can still be regarded as authority for the view that the mere fact that the charterer is bound to provide and pay for the supplies excludes the supplier from having a maritime lien when the charter party contains no prohibition against its creation. We think that our decision in The South Coast, 251 U. S. 519, negatives such a conclusion. That was a case of a bare-boat charter which provided that the charterer should pay for all supplies and all other charges and save the owner harmless from all liens. The supplies were ordered by the master, but, though appointed by the owner, the master was under the orders of the charterer and thus the master’s orders were the charterer’s orders. When the supplies were ordered, representatives of the owner at the port of supply warned the supplier that the vessel was under charter and that he must not furnish the supplies on the credit of the vessel. If the owner had power to prevent the attaching of a lien by this warning, the owner had done so. But while under the terms of the charter party it was clearly the duty of the charterer to provide and pay for the supplies and to save the owner harmless, this was held not to preclude the creation of a maritime lien. The Kate and The Valencia were cited unavailingly. When the charter party was examined to see if it prohibited liens it was" }, { "docid": "11942507", "title": "", "text": "Line Ltd. v. O.W. Bunker USA Inc. et al. (Nippon) No. 14-CV-10091 (VEC), Dkt. 4. The parties identified the three test cases presently before the Court, and the Court set a briefing schedule. See Hapag-Lloyd, Dkt. 207. Summary judgment motions were filed on an array of issues by several of the O.W. entities; two of the Physical Suppliers, NuStar Energy Services, Inc. (“NuStar”) and U.S. Oil Trading, LLC (“USOT”); ING; and the vessel charterers themselves. This Opinion addresses a threshold issue in the interpleader actions. The Physical Suppliers, O.W. entities, and ING each assert an in rem right to the interpleader funds under the Commercial Instruments & Maritime Lien Act (CIMLA), 46 U.S.C. § 31342. CIMLA codifies the common-law maritime lien for “necessaries”—essential supplies and services provided to a vessel. To the extent any party has a maritime lien, the interpleader funds stand as a substitute res for that lien, giving that party a priority interest in the interpleader stake. See Hapag-Lloyd, Dkt. 5 ¶2. The parties’ in personam contract claims to the interpleader funds, as well as the Vessel Interests’ motions to be discharged, will not be' resolved here; they will be addressed separately to the extent they are not mooted by this Opinion. 2. The Test Cases The test cases concern fuel delivered on O.W.’s behalf in mid-October 2014, shortly before O.W. USA filed for bankruptcy. To give every party an opportunity to be heard, the test cases each involve either a different Physical Supplier or Vessel Interest. Nonetheless, as is set forth in more detail below, the facts of the transactions at issue are materially similar: each case involves a time-charterer that arranged either directly or through an intermediary for O.W. to deliver bunkers at a U.S. port. In each case, O.W,, through its U.S. affiliate, O.W. USA, entered into a separate contract with a Physical Supplier, either NuStar or USOT. None of the cases involves a direct contractual link between the Vessel Interests and the Physical Suppliers, although after the bunkers wére ordered, the Physical Suppliers did coordinate delivery directly with the vessels and their local" }, { "docid": "14476102", "title": "", "text": "his fee. The only reasonable inference to be drawn from these undisputed facts is that United Brands, and Oriens through the ships’ masters, knew of and approved of the employment by Beef and Produce of the services of plaintiffs as suppliers of necessaries. The selection of JCU and UTC as ship’s agents by Beef and Produce was unmistakably ratified and confirmed by the masters of the ships and by United Brands, and in some instances, even ordered by the master of the vessel or by United Brands. Whichever entity may have actually ordered the performance of services by plaintiffs, the services were furnished to the MARE ARABICO and the MARE AUSTRALE, they were accepted by the ships’ masters, the vessels themselves benefitted from their performance and the ordering of the services was ratified by the ships’ masters on behalf of the owner and by representatives of the charterer. Under all these facts, it was entirely reasonable for the plaintiffs to assume that Beef and Produce had been authorized by the shipowner to order these necessaries on its behalf. The agreement between JCU and Beef and Produce provided that JCU was to be appointed ship’s agent in New Orleans when Beef and Produce was authorized by the owner or charterers to engage a ship’s agent in that port. In various pertinent documents, the masters of the vessels referred to JCU as “ship’s agent”, thus ratifying the appointment on behalf of the shipowner or on behalf of the time charterer acting for the shipowner. On the record here, this Court concludes that the services in question were, as required by § 971, furnished to these vessels upon the order of a person authorized by the owner, Oriens. Pursuant to §§ 972 and 973, the masters of these vessels were presumed to have had the authority to create these liens. In the absence of a “no lien” clause in the time charter, representatives of the time charterer were also presumed to have this authority. There is no evidence in this record to overcome the statutory presumption. As amended in 1971, the Lien Act" }, { "docid": "14476103", "title": "", "text": "on its behalf. The agreement between JCU and Beef and Produce provided that JCU was to be appointed ship’s agent in New Orleans when Beef and Produce was authorized by the owner or charterers to engage a ship’s agent in that port. In various pertinent documents, the masters of the vessels referred to JCU as “ship’s agent”, thus ratifying the appointment on behalf of the shipowner or on behalf of the time charterer acting for the shipowner. On the record here, this Court concludes that the services in question were, as required by § 971, furnished to these vessels upon the order of a person authorized by the owner, Oriens. Pursuant to §§ 972 and 973, the masters of these vessels were presumed to have had the authority to create these liens. In the absence of a “no lien” clause in the time charter, representatives of the time charterer were also presumed to have this authority. There is no evidence in this record to overcome the statutory presumption. As amended in 1971, the Lien Act now requires that the supplier of necessaries have actual knowledge of the lack of authority of the master or charterer to procure the services. See Lake Union Drydock Co. v. MV POLAR VIKING, supra, at 1291. Thus, the Act now requires that the owner take affirmative action to notify the supplier of necessaries that the master of a vessel or the charterer is not authorized to order services, the performance of which will result in the creation of liens. No such action was taken by Oriens on the occasions involved in these cases. In its present form, the Lien Act is to be construed in favor of the supplier of necessaries over the owner in situations such as those present in these two cases. Nacirema Operating Co., Inc. v. SS AL KULSUM, 407 F.Supp. 1222, 1225 (S.D.N.Y. 1975). This does not mean, as contended by plaintiffs, that the lien vests absolutely as a matter of law, but rather that the burden is upon the owner to show that the supplier of necessaries had actual knowledge" }, { "docid": "12412018", "title": "", "text": "might well argue that, having paid off the supplier, he is subrogated to the latter’s lien. See Rodriquez v. The G. K. Dauntless, 70 F.Supp. 958 (S.D.Fla.1947); The Maret, 145 F.2d 431, 444 (3 Cir. 1944). But 46 U.S.C. § 973 provides that “nothing in this chapter shall be construed to confer a lien when the furnisher knew * * * that because of the terms of a charter party, * * * the person ordering the * * * supplies * * * was without authority to bind the vessel therefor,” and Clause 18 of the present charter states that “Charterers will not suffer, nor permit to be continued, any lien or encumbrance incurred by them or their agents, which might have priority over the title and interest of the owners in the vessel.” Such a clause is,sufficient to preclude a lien in a supplier who knows or should know of its existence in the charter. United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361 (1923); Signal Oil, supra, 310 U.S. at 275, 60 S.Ct. at 941; Gilmore & Black, Admiralty (1957), at 566. It thus must be a fortiori sufficient to prevent the purchaser of fuel from creating a lien in the charterer himself, whether this is claimed directly- — in the teeth of his agreement to provide the fuel himself— or by subrogation to the rights of a third-party supplier. See Pensacola Shipping Co. v. United States Shipping Board, 277 F. 889, 893 (5 Cir. 1922). The trustee also argues that even if a lien did not arise when the fuel was procured for the vessels, one sprang into existence when they were turned back with fuel on board, in view of the owners’ contractual obligation to pay for the fuel at that point. This position might seem supported by the statements in Gilmore & Black, supra, that “Most, but not all, maritime claims give rise to liens,” at 512, and, more specifically, that “liens arise for breach of charter-party in either direction. The charterer has a lien on the vessel for owner’s" }, { "docid": "21473198", "title": "", "text": "those who furnish necessaries for the vessel’s operation. Permitting [a] contrived financial scheme to prevail effectively destroys the liens of suppliers and subverts the purposes of the Maritime Liens Act.” Wardley Int’l Bank, Inc. v. Nasipit Bay Vessel, 841 F.2d 259, 264 (9th Cir.1988) (citation omitted). Therefore, we conclude that Marine Fuel presented sufficient evidence to establish, as an alternate basis for creation of a lien, that Marine Fuel delivered fuel for the vessel to an agent who possessed statutory authority to bind the ship. If Ken Lucky presents a defense relying on the no lien clauses to rebut this authority on remand, it must demonstrate that Marine Fuel had actual knowledge of the clauses. We remand for further proceedings to give Ken Lucky the opportunity to rebut the presumption of authority. If Ken Lucky fails to rebut the statutory presumption of authority, our finding of presumed authority must lead to a determination that a lien arose. On remand, Ken Lucky may attempt to rebut the statutory presumption of authority by showing that Marine Fuel waived the lien by relying on the credit of persons other than the owners and charterers to the exclusion of that of the vessel. See, e.g., Farwest I, 769 F.2d at 624-25. We do not reach Marine Fuel’s argument that an in rem action survives even if Ken Lucky’s owners or charterers are not found liable. Second, Ken Lucky may attempt to rebut the presumption of authority on remand by relying on the no lien clauses in the charter agreements. We discuss this issue below because the district court evidenced some confusion in its ruling as to the effect of such clauses. C. Effect of the No Lien Clauses Ken Lucky admits that the purpose of the Act is to help suppliers determine who has authority to incur a lien. The Act’s presumption in favor of granting liens to suppliers “was enhanced in 1971 when Congress deleted the requirement that materi-almen inquire about the existence of any no-lien clauses before furnishing supplies.” Farwest I, 769 F.2d at 623; see Foss Launch, 808 F.2d at 700" }, { "docid": "19591203", "title": "", "text": "court's conclusion that Brook was not Bulkfert's agent,\" concluding that Marine Fuel did not need to \"establish agency between Brook and Bulkferts to fall within the scope of one entitled to a maritime lien under [CIMLA].\" IV. In this case, there is no dispute that bunkers qualify as necessaries and that Valero provided those necessaries to the Vessel. The sole inquiry before us is whether Valero furnished the necessaries to the Vessel \"on the order of the owner or a person authorized by the owner.\" We conclude that it did not. The record shows that Verna, through its agent Almi Tankers, contacted OW Malta because it was a \"reputable bunker trader[ ]\"; that during negotiations, Almi Tankers asked who would be the bunker fuel supplier, and it did not object to Valero's selection; that the sales order confirmation listed Valero as the supplier; that Valero provided the entire bunkering service that Almi Tankers contracted for, with no assistance from O.W. or its affiliates; that the Vessel's agents monitored and tested Valero's performance; and that Almi Tankers expressed concern about O.W.'s ability to pay Valero. These facts do not demonstrate that Valero provided the bunkers to the Vessel \"on the order of the owner or a person authorized by the owner.\" Valero provided the bunkers at O.W.'s request, and O.W. is not a \"person [ ] presumed to have authority to procure necessaries[.]\" These facts are \"more akin to those in which general contractors have been engaged to supply a service and have called upon other firms to assist them in meeting their contractual obligations.\" Thus, Valero must show that an entity authorized to bind the ship \"controlled [its] selection ... and/or its performance.\" The record, however, proves no more than the Vessel's awareness of Valero, not that the Vessel \"controlled\" the selection or performance of Valero. Mere awareness does not constitute authorization under CIMLA. Despite Valero's urging, we decline to apply Ken Lucky . As mentioned supra , the Ninth Circuit's holding-that the physical supplier could assert a lien-turns on the parties' concession that the physical supplier sold the bunkers" } ]

[ { "docid": "22677770", "title": "", "text": "sometimes referred to as “non-constitutional” Booker error. See Gonzalez-Huerta, 403 F.3d at 731-32; McConnell, supra, at 669. In this context, our post-Booker precedent instructs district courts to follow a three-step sentencing process. See United States v. King, 454 F.3d 187 (3d Cir.2006). (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. See id. at 196; see also Cooper, 437 F.3d at 330. (2) In doing so, they must “formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account [our] Circuit’s pre-Booker case law, which continues to have advisory force.” King, 454 F.3d at 196. (3) Finally, they are required to “exercise[ ] [their] discretion by considering the relevant [§ 3553(a)] factors,” id. at 194 (quoting Cooper, 437 F.3d at 329), in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. While the District Court complied with steps one and two of our Circuit’s post-Booker sentencing procedure, it eschewed (because it believed it must in this case) following through fully with exercising its discretion at step three, notwithstanding Gunter’s express request that it do so. In effect, the Court treated the crack cocaine Sentencing Guidelines as mandatory and not advisory. This implicates the second type of Booker error. The Government urges us to affirm nonetheless, arguing that “reducing the guidelines for crack cocaine would not simply stand as an inappropriate downward departure but would amount to judicial rewriting of binding law.” Gov’t Br. at 15. If the District Court had simply refused in its discretion to impose a sentence below Gunter’s statutory mandatory minimum as prescribed by Congress, we would, of course, agree. That, however, is not what happened here, as Gunter’s recommended sentence for his offenses involving crack cocaine was well above the mandatory minimum of ten .years required by 21 U.S.C. § 841(b). The District Court did not reject in its discretion imposing a sentence less than the mandatory minimum sentence required'by statute;" } ]

[ { "docid": "2107156", "title": "", "text": "prosecution of others, reducing his offense level to 22. The sentencing range for offense level 22, category I, offenders is 41 to 51 months’ imprisonment. Thus, the reduced sentencing range overlapped with Vazquez’s initial sentencing range. The District Court sentenced Vazquez to 48 months’ imprisonment — within the new, lower guideline range, but also within the original, pre-departure guideline range. Vazquez did not raise any objection when the District Court imposed this sentence. II. Jurisdiction The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the sentence pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. III. Discussion Ordinarily, we review for abuse of discretion the procedures a District Court follows in sentencing a defendant. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Because, however, Vazquez did not object to the sentence, we review for plain error. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir.2006). As we explained in United States v. Gunter, 462 F.3d 237 (3d Cir.2006), sentencing, post-Booker, requires a three-step process: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. Id. at 247 (internal quotation marks, citations, and alterations omitted). The District Court erred at the second step of the process. The Court correctly calculated Vazquez’s Guidelines range of 46 to 57 months’ imprisonment. The Court then heard motions from both parties regarding departure, and stated on the record that it would grant a one-level downward departure in recognition of Vazquez’s substantial assistance in the prosecution of other defendants." }, { "docid": "15031125", "title": "", "text": "United States, 552 U.S. 38, -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). In reviewing a criminal sentence, an appellate court should: first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Id. at 597. In this Circuit, district courts should engage in the following three-step process when determining an appropriate sentence: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker, (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors ... in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir.2009) (citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006)) (internal quotation marks and citations omitted). III. We expressly distinguish between departures from the guidelines and variances from the guidelines. See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006). Departures are enhancements of, or subtractions from, a guidelines calculation “based on a specific Guidelines departure provision.” Id. These require a motion by the requesting party and an express ruling by the court. Id. at 197-98. Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors and do not require advance notice. Id. at" }, { "docid": "21237608", "title": "", "text": "must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal quotation marks, citations, and alterations omitted). This process serves to clarify the basis for the sentence imposed. See United States v. Jackson, 467 F.3d 834, 838-39 (3d Cir.2006). The calculations of the first two steps provide “a natural starting point” from which a court exercises its discretion at step three. Cooper, 437 F.3d at 331. Under the advisory Guidelines regime, we have distinguished between two types of sentence that diverge from the original Guidelines range. See United States v. Vampire Nation, 451 F.3d 189, 195 & n. 2 (3d Cir.2006) (adopting distinction between departures and variances). A traditional sentencing “departure” diverges at step 2 from the originally calculated range “for reasons contemplated by the Guidelines themselves.” Jackson, 467 F.3d at 837 n. 2. In contrast, a “variance” diverges at step 3 from the Guidelines, including any departures, based on an exercise of the court’s discretion under § 3553(a). Gunter, 462 F.3d at 247 n. 10. Although a departure or a variance could, in the end, lead to the same outcome — i.e., a reduction (or increase) in sentence as compared to the originally calculated range — it is important for sentencing courts to distinguish between the two, as departures are subject to different requirements than variances. B. The District Court sentenced Floyd without the benefit of our recent decisions distinguishing between variances and departures, and clarifying the preferred three-step sentencing process. The parties nevertheless agree that the disputed action of the District Court" }, { "docid": "2107157", "title": "", "text": "sentencing, post-Booker, requires a three-step process: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. Id. at 247 (internal quotation marks, citations, and alterations omitted). The District Court erred at the second step of the process. The Court correctly calculated Vazquez’s Guidelines range of 46 to 57 months’ imprisonment. The Court then heard motions from both parties regarding departure, and stated on the record that it would grant a one-level downward departure in recognition of Vazquez’s substantial assistance in the prosecution of other defendants. The one-level departure resulted in a range of 41 to 51 months, which overlapped with the original range. A District Court need not follow a particular formula in calculating a § 5K1.1 departure — it may be appropriate to depart by a certain number of months or guideline ranges below the initial sentencing range. United States v. Floyd, 499 F.3d 308, 312 n. 6 (3d Cir.2007). In granting a downward departure, however, a District Court must follow the definition set out in the Sentencing Guidelines: a downward departure is a “departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence.” U.S.S.G. § 1B1.1, cmt. n. l.E. In other words, “the sentence reached after granting a departure motion must be less than the bottom of the otherwise applicable Guidelines range.” Floyd, 499 F.3d at 312-13. By departing to a range that overlapped with the original range, and then imposing a sentence within both guideline ranges, the District" }, { "docid": "22269849", "title": "", "text": "the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597; Wise, 515 F.3d at 217. Second, “[i]f we determine that the district court has committed no significant procedural error, we then review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines range.” Wise, 515 F.3d at 218; see also Gall, 128 S.Ct. at 597. Because we perceive a procedural error that requires resentencing in this case, we do not address the issue of substantive reasonableness. Our Court’s decision in United States v. Gunter requires district courts to follow a three-step sentencing procedure: (1)Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before [United State v. Booker, 543 U.S. 220, 125 S.Ct. 738,160 L.Ed.2d 621 (2005) ]. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. 462 F.3d 237, 247 (3d Cir.2006) (internal citations, quotation marks, and brackets omitted). As noted above, it is undisputed here that the District Court complied with steps one and two: it calculated the Guidelines range and formally ruled on the Government’s motion for a downward departure under U.S.S.G. § 5K1.1. The parties disagree, however, whether the District Court complied with step three in light of its failure to address some of Sevilla’s arguments for a lower sentence. A. We Review for Meaningful Consideration, Not Plain Error The Government argues that, because Sevilla failed to object to the District Court’s omissions at close of sentencing, we must" }, { "docid": "23047464", "title": "", "text": "District Court failed to articulate its consideration of the sentencing factors in 18 U.S.C. § 3553(a). He requests that we vacate the sentencing judgment and remand for resentencing. II. Standard of Review After Booker, the Guidelines have only advisory force and appellate courts must review sentences for reasonableness according to the “relevant [Section 3553(a) ] factors” that guide sentencing. 543 U.S. at 234, 125 S.Ct. 738; cf. United States v. King, 454 F.3d 187, 194 (3d Cir.2006); Cooper, 437 F.3d at 327-28. We have interpreted Booker to require the following three steps: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal citations and quotations marks omitted); cf. King, 454 F.3d at 194; Cooper, 437 F.3d at 330; see also United States v. Jackson, No. 05-4091, 2006 WL 3247919, 467 F.3d 834, 837 (3d Cir.2006). III. Discussion Charles argues that his sentence is unreasonable for three reasons. First, he contends that the District Court failed to consider all of the § 3553(a) factors by not “fully and explicitly articulat[ing]” its reasons for imposing the sentence when it stated that it “carefully considered” those factors. App. Br. at 11-12, 13-14. Second, he asserts that the Court violated § 3553(a)’s “Parsimony Provision” — that sentences be “sufficient, but not greater than necessary,” to meet the purposes of sentencing set out in § 3553(a)(2). App. Br. at 9, 14 (quoting United States v. Brown, 356 F.Supp.2d 470, 479 (M.D.Pa. 2005)). Third, he argues that the Court impermissibly imposed a sentence that “failed to avoid" }, { "docid": "22465807", "title": "", "text": "that range as a starting point for the entirety of the § 3553(a) analysis. Based on its consideration of the § 3553(a) factors, the Court must state the reasons for its sentence and explain whether a within-Guidelines sentence is appropriate in the particular case, a process which generally will require a correct Guidelines calculation. Third and finally, a correctly calculated Guidelines range will often be a necessary precondition of our reasonableness review. Where a district court begins with an erroneous range, it will be difficult for us to determine that it fulfilled its duty to consider the Guidelines and reason through to the ultimate sentence. We will discuss these considerations in turn. A. Duty to calculate the Guidelines range in each individual case In rendering the Guidelines advisory, the Supreme Court made clear that sentencing courts are required to “consider” the Guidelines in crafting a sentence. United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our Court thereafter provided district courts with a three-step process to follow in order to comply with the Supreme Court’s ruling in Booker: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (quotation marks, brackets, and citations omitted); see also United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir.2006) (stating that courts should calculate Guidelines ranges just as they would have before Booker); United States v. Crosby, 397 F.3d 103, 112 (2d Cir.2005) (“The applicable Guidelines range is normally to be determined in the same manner as before" }, { "docid": "22160929", "title": "", "text": "made explicit the three-step process that District Courts in this Circuit should follow after the Supreme Court’s ruling in Booker: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pr e-Booker case law, which continues to have advisory force. (3)Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. Id. at 247, 125 S.Ct. 738 (quotation marks, brackets, and citations omitted) (citing United States v. King, 454 F.3d 187, 194, 196 (3d Cir.2006); Cooper, 437 F.3d at 329, 330). The two points of error that Jackson presses in this appeal fall into the second and third steps set out in Gunter. The first alleged error relates to a Guidelines “departure,” and the second to a Guidelines “variance.” We address each in turn. A. Gunter’s Step Two: Guidelines Departures Pr e-Booker, district courts had the (limited) authority to depart from the mandatory Guidelines range if they found “that there exist[ed] an aggravating or mitigating circumstance ... of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that ... should result in a sentence different from that described.” U.S.S.G. § 5K2.0(a)(l). Our Court’s jurisdiction to review the denial of such departures depended on a district court’s reason for denial. If the judge believed s/he could not legally depart on the ground asserted, we had jurisdiction to review for legal error; if, instead, the judge recognized her/his authority to depart but chose not to do so, we lacked jurisdiction to review that decision. United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir.1989) (citing 18 U.S.C. § 3742); see also United States v. D’Angelico, 376 F.3d 141, 141 (3d Cir.2004); United States v. Stevens, 223" }, { "docid": "22160928", "title": "", "text": "of Prisons that Jackson participate in drug and psychological treatment programs. Explaining Jackson’s sentence, the Judge said: Mr. Jackson, you’ve committed very serious crimes, as I’ve described above. You’ve pled guilty to three counts of counterfeit currency-related crimes. I considered the following factors as significant in determining the sentence that I will impose: your seven prior adult convictions [and] that, in 2000, you were twice convicted of aggravated assault, and these crimes involved violence. I have also considered the very persuasive comments made by your very capable counsel. I have considered the circumstances of your upbringing, including your parents’ drug addiction, and your financial circumstances. Jackson makes two claims on appeal: (1) that the District Court erred by failing explicitly to rule on his motion for a downward departure from the initial Guidelines range, and (2) that the Court did not adequately consider all of the relevant factors of 18 U.S.C. § 3553(a) in refusing to vary his sentence from that range. II. Discussion In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), we made explicit the three-step process that District Courts in this Circuit should follow after the Supreme Court’s ruling in Booker: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pr e-Booker case law, which continues to have advisory force. (3)Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. Id. at 247, 125 S.Ct. 738 (quotation marks, brackets, and citations omitted) (citing United States v. King, 454 F.3d 187, 194, 196 (3d Cir.2006); Cooper, 437 F.3d at 329, 330). The two points of error that Jackson presses in this appeal fall into the second and third steps set out in Gunter. The first alleged error relates to" }, { "docid": "22990987", "title": "", "text": "U.S.C. § 1291. II. The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory. Under Booker, we review the sentence imposed by the District Court for reasonableness, Booker, 543 U.S. at 261-62, 125 S.Ct. 738 which, in essence, calls upon us to “ask[ ] whether the trial court abused its discretion. ...” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). To determine whether a sentence is reasonable, the court must examine “whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc); see also United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006) (“The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.”). In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), we set out a three-step process for district courts to follow in imposing sentences after Booker. Those steps are: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors, in setting the sentence they impose regardless [of] whether it varies from the sentence calculated under the Guidelines. Id. at 247 (internal citations, quotation marks, and brackets omitted). On appeal, “we must ... ascertain whether [the § 3553(a)] factors were reasonably applied to the circumstances of the case.” Cooper, 437 F.3d at 330. Our review is deferential, id., but a “significant departure” from the Guidelines range “must be adequately supported by the record.” United States v. King, 454 F.3d 187, 195 (3d Cir.2006). Applying those standards here, we conclude" }, { "docid": "22465808", "title": "", "text": "to comply with the Supreme Court’s ruling in Booker: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (quotation marks, brackets, and citations omitted); see also United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir.2006) (stating that courts should calculate Guidelines ranges just as they would have before Booker); United States v. Crosby, 397 F.3d 103, 112 (2d Cir.2005) (“The applicable Guidelines range is normally to be determined in the same manner as before Booker/Fanfan.”). When a sentencing court miscalculates the applicable range, it fails to discharge its duties under step one of Gunter. As we made clear in United States v. Jackson, “because the Guidelines still play an integral role in criminal sentencing, we require that the entirety of the Guidelines calculation be done correctly.” 467 F.3d 834, 838 n. 4 (3d Cir.2006) (citations omitted). B. The “starting point” of a district court’s § 3553(a) analysis The correct Guidelines calculation is not merely one of three steps, but rather constitutes the “natural starting point” from which the sentencing court exercises its discretion under § 3553(a) at Gunter's third step. United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006). As the Supreme Court recently confirmed in Gall v. United States, “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.” — U.S. -, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). The" }, { "docid": "22615170", "title": "", "text": "of § 3553(a). See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006) (explaining the distinction between departures and variances). . Our post-Booker precedent instructs district courts to follow a three-step sentencing process: (1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker; (2) in doing so, they must formally rule on the motions of both parties, state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force; and (3) they are required to \"exercise their discretion by considering the relevant § 3553(a) factors” in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (alterations omitted). . We need not resolve today whether our appellate review extends to ensure that district courts \"must” support a major deviation by a more significant justification. All the Supreme Court stated in Gall was that it found it \"uncontroversial that a major departure should be supported by a more significant justification than a minor one.\" Gall, 128 S.Ct. at 597. We thus leave for another day the task of defining the precise contours of that statement. Nonetheless, we note the nuanced distinction in language to highlight just how modest our appellate approach is. Here, even when we do not require \"a more significant justification” from the District Court for its \"major” deviation from the Guidelines, the justification it did provide fails to support the degree of downward variance. . We do not mean to suggest that white-collar offenses in general or tax evasion in particular must be met by a sentence of incarceration. See, e.g., S.Rep. No. 98-225, at 91-92 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3275 (\"The placing on probation of [a white-collar criminal] may be perfectly appropriate in cases in which, under all the circumstances, only the rehabilitative needs of the offender are pertinent; such a sentence may be grossly" }, { "docid": "21237609", "title": "", "text": "that diverge from the original Guidelines range. See United States v. Vampire Nation, 451 F.3d 189, 195 & n. 2 (3d Cir.2006) (adopting distinction between departures and variances). A traditional sentencing “departure” diverges at step 2 from the originally calculated range “for reasons contemplated by the Guidelines themselves.” Jackson, 467 F.3d at 837 n. 2. In contrast, a “variance” diverges at step 3 from the Guidelines, including any departures, based on an exercise of the court’s discretion under § 3553(a). Gunter, 462 F.3d at 247 n. 10. Although a departure or a variance could, in the end, lead to the same outcome — i.e., a reduction (or increase) in sentence as compared to the originally calculated range — it is important for sentencing courts to distinguish between the two, as departures are subject to different requirements than variances. B. The District Court sentenced Floyd without the benefit of our recent decisions distinguishing between variances and departures, and clarifying the preferred three-step sentencing process. The parties nevertheless agree that the disputed action of the District Court involved a departure, rather than a variance, and it is clear from the record that the Court granted a departure motion under § 5K1.1, rather than varying Floyd’s sentence based on the factors listed at § 3553(a). The parties dispute only whether the Court properly effected the departure it granted. Floyd argues that a downward departure under the Guidelines must result in a sentence below the otherwise applicable range and that the District Court “misunderstood the definition of a downward departure.” Floyd’s Br. at 9. In our view, her challenge relates to whether the Court properly determined, at step 2 of the Gunter process, how its departure “affect[ed] the [original] Guidelines calculation.” Gunter, 462 F.3d at 247. For the reasons that follow, we conclude that the manner by which the District Court reduced Floyd’s sentence — that is, from a prior sentence of 48 months to a new sentence of 42 months — was inconsistent with proper sentencing procedure. c. The parties agree that the Guidelines define the phrase “downward departure” but dispute whether the" }, { "docid": "22990988", "title": "", "text": "after Booker. Those steps are: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors, in setting the sentence they impose regardless [of] whether it varies from the sentence calculated under the Guidelines. Id. at 247 (internal citations, quotation marks, and brackets omitted). On appeal, “we must ... ascertain whether [the § 3553(a)] factors were reasonably applied to the circumstances of the case.” Cooper, 437 F.3d at 330. Our review is deferential, id., but a “significant departure” from the Guidelines range “must be adequately supported by the record.” United States v. King, 454 F.3d 187, 195 (3d Cir.2006). Applying those standards here, we conclude that the four-month sentence imposed on Goff was unreasonable, as the District Court committed both procedural and substantive errors in imposing that sentence. The court’s decision fails to reflect the required analysis of the factors set out in § 3553(a). Even if all the § 3553(a) factors had been considered, however, a four-month sentence cannot be justified in this case, because the circumstances do not warrant such a downward variance. III. The District Court’s sentencing decision is procedurally flawed because the court failed to follow the analysis we set out in Gunter. The court made no comment on defense counsel’s repeated point that a five-level sentence enhancement was excessive, nor did it properly consider the factors set out in 18 U.S.C. § 3553(a). Although the District Court is not required either to comment on every argument counsel advances or to make findings as to each § 3553(a) factor, it nevertheless should expressly deal with arguments emphasized by the parties, and “the record [must] make[] clear the court took the [§ 3553(a)] factors into account in" }, { "docid": "21237607", "title": "", "text": "downward departure, and we have the benefit of an original sentence, and rather than go through the calculation of what my offense level arrived at in terms of a guideline, I thought it better just to give you the specific sentence departure. So I don’t think it’s accurate to say that the departure doesn’t reflect the court’s assessment of the guideline range. (App.56-57.) On appeal, Floyd asks us to remand for resentencing because the District Court never provided her thé benefit of the departure it granted. II. Discussion A The Supreme Court rendered the Sentencing Guidelines advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and we now review sentences for reasonableness, United States v. Cooper, 437 F.3d 324, 326-27 (3d Cir.2006). In spite of these changes, district courts must still calculate an applicable Guidelines range and rule on any motions for departure. United States v. King, 454 F.3d 187, 196 (3d Cir.2006). We have thus described post-Booker sentencing as proceeding in the following three steps: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal quotation marks, citations, and alterations omitted). This process serves to clarify the basis for the sentence imposed. See United States v. Jackson, 467 F.3d 834, 838-39 (3d Cir.2006). The calculations of the first two steps provide “a natural starting point” from which a court exercises its discretion at step three. Cooper, 437 F.3d at 331. Under the advisory Guidelines regime, we have distinguished between two types of sentence" }, { "docid": "4864743", "title": "", "text": "argues that his sentence is procedurally unreasonable because the District Court did not (1) follow the proper order of the steps set forth in Gunter, (2) compute a definitive loss calculation or offense level to reach the Guidelines range; (3) formally rule on Friedman’s departure motion; or (4) meaningfully consider the § 3553(a) factors. Friedman also argues that his sentence is substantively unreasonable. Here, the District Court did not follow the correct order of the steps set forth in Gunter, did not compute a definitive loss calculation or offense level to reach its Guidelines range nor did it meaningfully consider § 3553(a)(6), “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Based on these procedural errors, we will remand to the District Court for resentencing. Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we directed district courts to follow a three-step sentencing process. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). During the first step, a district court must “calculate a defendant’s Guidelines sentence precisely as they would have before BookerId. (citation omitted). During the second step, district courts “must ‘formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account [our] Circuit’s pre-Booker case law, which continues to have advisory force.’ ” Id. (alterations in Gunter) (citation omitted). During the third step, district courts must “ ‘exercise [ ] [their] discretion by considering the relevant [§ 3553(a)] factors’ in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines.” Id. (alterations in Gunter) (citation omitted). During the third step, district courts should engage in “a true, considered exercise of discretion ... including a recognition of, and response to, the parties’ non-frivolous arguments.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir.2006) (citation omitted). Appellate review is limited to determining whether the sentence is reasonable. United States v." }, { "docid": "19008569", "title": "", "text": "867, 166 L.Ed.2d 856 (2007), but the Supreme Court recently clarified its meaning. Reasonableness review “merely asks whether the trial court abused its discretion” in calculating and applying the Guidelines. Rita v. United States, 551 U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); see also id. at -, 127 S.Ct. at 2470 (Stevens, J., concurring) (“Simply stated, Booker replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called ‘reasonableness’ review.”). Rita, which allowed appellate courts to apply a nonbinding presumption of reasonableness to within-Guidelines sentences, did not set standards governing below-Guidelines range sentences like those before us. See id. at -, 127 S.Ct. at 2462. However, it did note that the reasonableness presumption applies only to within-Guidelines sentences without suggesting an unreasonableness presumption to outside-of-Guidelines sentences. Id. at -, 127 S.Ct. at 2467. It also emphasized that the reasonableness presumption applies to appellate review only; it does not affect the ordinary sentencing process that a district court judge must undertake. Id. at -, 127 S.Ct. at 2465. We have interpreted Booker to require the following three steps in the ordinary sentencing process: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal citations, brackets, and quotation marks omitted); see also United States v. King, 454 F.3d 187, 196 (3d Cir.2006); United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006). IV. Discussion A. Step One: Guidelines Calculation 1. Initial Calculation As we have noted repeatedly, sentencing “[c]ourts" }, { "docid": "22615169", "title": "", "text": "the circumstances” and the “§ 3553(a) factors, on a whole.” Gall, 128 S.Ct. at 597. Gall’s instruction to review sentences for substantive reasonableness gives us the authority to vacate such sentences. Congress, the Sentencing Commission, and the public rely on us to exercise that authority. Therefore, we would vacate the judgment of the District Court and remand for re-sentencing in accordance with this opinion. . Upon the receipt of these invoices, Tomko, Inc. paid the subcontractors in the normal course of business and posted the expenses to the jobs that were listed on the invoices. . Because Tomko, Inc. is classified as a \"flow-through\" Subchapter S Corporation under the federal tax code, Tomko, the individual, was required to include on his personal income tax return his share of the company's items of income, deduction, loss, and credit. . The District Court in this case did not grant Tomko a downward departure based on his charitable acts or any other ground, but rather took them into consideration as mitigating factors in the course of its analysis of § 3553(a). See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006) (explaining the distinction between departures and variances). . Our post-Booker precedent instructs district courts to follow a three-step sentencing process: (1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker; (2) in doing so, they must formally rule on the motions of both parties, state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force; and (3) they are required to \"exercise their discretion by considering the relevant § 3553(a) factors” in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (alterations omitted). . We need not resolve today whether our appellate review extends to ensure that district courts \"must” support a major deviation by a more significant justification. All the" }, { "docid": "9664770", "title": "", "text": "in sentencing. ’’ United States v. Howe, 543 F.3d 128, 137 (3d Cir.2008) (quoting United States v. Parker, 462 F.3d 273, 278 (3d Cir.2006)). . Under our post-Booker jurisprudence, we call the altering of a Guidelines range at step two of the sentencing process a “departure.\" See United States v. Floyd, 499 F.3d 308, 311 (3d Cir.2007). A departure is based on reasons provided by the Guidelines themselves. United States v. Jackson, 467 F.3d 834, 837 n. 2 (3d Cir.2006). We call a sentence that diverges from the final Guidelines range— which, because of a departure at step two, may be different from the original Guidelines range — a “variance.” Floyd, 499 F.3d at 311. A variance is based on the court’s consideration of the § 3553(a) factors. Gunter, 462 F.3d at 247 n. 10. Although we have not required district courts to use these terms, we have noted that their use assists our review. See Jackson, 467 F.3d at 837 n. 2. . In Jackson we also noted that six of our sister circuits \"essentially employ the same approach to departures as we do,\" in contrast to the two circuits that have held departure motions to be obsolete in the wake of Booker. 467 F.3d at 838 n. 5 (collecting cases); see also United States v. A.B., 529 F.3d 1275, 1286 (10th Cir.2008) (acknowledging that Tenth Circuit caselaw might require the three-step approach). Although the parties do not question our approach, we further observe here that four of those circuits, like us, have indicated that ruling on departure motions is part of correctly calculating the Guidelines range. See United States v. Wallace, 461 F.3d 15, 32 (1st Cir.2006) (“Once the sentencing court has established the GSR {including a consideration of any applicable departures), it must then evaluate the sentencing factors set out in 18 U.S.C. § 3553(a) ....”) (quotation omitted); United States v. McBride, 434 F.3d 470, 476 (6th Cir.2006) (\"Within this Guideline calculation is the determination of whether a Chapter 5 departure is appropriate.”); United States v. Fuller, 426 F.3d 556, 562 (2d Cir.2005) (\"[W]e consider here whether" }, { "docid": "19008570", "title": "", "text": "127 S.Ct. at 2465. We have interpreted Booker to require the following three steps in the ordinary sentencing process: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal citations, brackets, and quotation marks omitted); see also United States v. King, 454 F.3d 187, 196 (3d Cir.2006); United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006). IV. Discussion A. Step One: Guidelines Calculation 1. Initial Calculation As we have noted repeatedly, sentencing “[c]ourts must continue to calculate a de fendant’s Guidelines sentence precisely as they would have before Booker.” Gunter, 462 F.3d at 247 (citing King, 454 F.3d at 196; Cooper, 437 F.3d at 330); see also Grier, 475 F.3d at 564 (“District courts must still conduct the full Guidelines analysis in every case.”)- Nothing in Rita changed this requirement. To the contrary, Rita affirmed our approach, emphasizing that the sentencing “process[] will normally begin by considering the presen-tence report and its interpretation of the Guidelines.” 551 U.S. at -, 127 S.Ct. at 2465. In calculating the Guidelines sentence, we have explained that, “[a] s before Booker, the standard of proof under the guidelines for sentencing facts continues to be preponderance of the evidence.” Cooper, 437 F.3d at 330. We have further determined that our “Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.” Grier, 475 F.3d at 570; United States v. Fred Cooper, 394 F.3d 172, 176 (3d Cir.2005)." } ]

[ { "docid": "11874744", "title": "", "text": "election. N.L.R.B. v. Lamar Electric Membership Corp., 5 Cir. 1966, 362 F.2d 505, 508. Third, the company submitted evidence that the lowest starting rate at a competitor’s organized plant was $1.25 an hour, while the union told the employees before the election that the starting rate was $1.42 an hour. The Regional Director ignored this evidence and held that one employee was told by the union that the lowest base rate, not starting rate, was $1.42 an hour at the competitor’s plant and that this was true. The company, having had no opportunity to rebut the union’s claim before the Supplemental Decision was issued, submitted with its Request for Review statements from thirteen additional employees that they were told about the starting rate, not the base rate, and in its Response to the Order to Show Cause the company offered to prove that nineteen employees would so testify. Manifestly, “[t]he truth was not clear, the conclusions of law were not obvious, and the employer should have had a fair hearing.” N.L.R.B. v. Smith Indus., Inc., supra at 894 of 403 F.2d. Finally, the Regional Director found on evidence offered by the company that the union had told Genesco employees that a competitor’s employees had received a 13 cents an hour wage increase instead of the actual 6.67 cents. But the union’s evidence was credited that this included fringe benefits, and the Regional Director therefore found that it did not constitute “a substantial departure from the truth.” The company had been given no opportunity to rebut this before the Supplemental Decision was issued, so it submitted with its Request for Review statements of nine additional employees that they had not been told the increase included fringe benefits and in Response to the Order to Show Cause offered to prove that seventeen additional employees would so testify. Obviously the amount of the wage increase of Genesco’s competitor is in dispute and the truth is not clear. We conclude that the § 8(a) (5) order in this case which rests “on crucial factual determinations made after ex parte investigations and without a hearing" } ]

[ { "docid": "11480032", "title": "", "text": "for rebuttal. Courts of appeals in several circuits have held that misinformation about company profits can be material, since the extent to which employees share fairly in the results of their labors is of great interest to them. Argus Optics v. National Labor Relations Board, 515 F.2d 939 (6th Cir. 1975); Henderson Trumbull Supply Corporation v. National Labor Relations Board, 501 F.2d 1224 (2d Cir. 1974); National Labor Relations Board v. G. K. Turner Associates, 457 F.2d 484 (9th Cir. 1972). In Tyler Pipe & Foundry Company v. National Labor Relations Board, 406 F.2d 1272 (5th Cir. 1969), the union allegedly misstated the company earnings. Although the Board determined that employees would not have been affected, the court on review said: “We cannot accept the Board’s complacency . ****** “[I]n. a case where election propaganda is challenged by a party to the election, the ultimate question before the Board is whether the propaganda has lowered the standards to the point where it may be said that the uninhibited desires of the employees cannot be determined from the election. Those influences, regardless of their truth or falsity, which make impossible an impartial test, are grounds for invalidation of an election.” 406 F.2d at 1275 (emphasis in original). In the case sub judice, there is no doubt that the representations about ARC’s earnings and profits were clearly false. It cannot be said that on this record the union was merely mistaken in its pronouncements because after the employer produced the accurate information on September 25 and 26, the union republished the same misrepresentations. Dissemination of the erroneous information, therefore, was not merely inadvertent or mistaken, it was deliberate and calculated. Moreover, the election eve efforts were designed to damage the employer’s credibility, always a key issue in representation campaigns. The Board’s determination that the harm was cured because the employer had the opportunity to, and did, in fact, counter the union’s assertions does not adequately evaluate the circumstances. The union’s misstatements in Spanish and its “Flash!!!!” on September 27 came too late to allow effective replies. Even though the employer had addressed" }, { "docid": "3532083", "title": "", "text": "nature permitted in the plant during this period. Thus, the instant case is readily distinguishable from those cited by the Board. More recent cases have held that promulgation of such a rule after the beginning of a union’s organization campaign does not rebut the presumption of validity of the rule. Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10 Cir. 1968); TRW, Inc. v. N. L. R. B., 393 F.2d 771 (6 Cir. 1968), supra. In Serv-Air, supra 395 F.2d at 560, the court said: “Standing alone, the fact that an organizational campaign may have begun before the rule was posted does not prove a discriminatory purpose.” And in TRW, supra 393 F.2d at 774, the court stated: “We fail to see how the timing of the bulletin under the circumstances here shown has any significant bearing on the issue to be resolved. If it was to be published at all, this was the logical time to do it. The company could well have considered that publication of such a rule prior to the receipt of the union’s letter [announcing the commencement of the Union’s organizing campaign] would be premature.” Each of these cases involved a situation which would have made the company’s no-solicitation rule more suspect than in the instant case; in fact, in Serv-Air the company had been found guilty of interrogations, threats, discriminatory discharges, and a refusal to bargain. We hold, in accord with the view announced by the Sixth and Tenth Circuits, that timing alone will not invalidate an otherwise valid no-solicitation rule. The Board found that the fact that the rule prohibited only union activities also rebutted the presumed validity of the rule. This finding is inconsistent with the Board’s established policy (as stated in the Board’s decision in this case) that a no-solicitation rule prohibiting union activities which is limited to employees' work time is presumed valid. Furthermore, there is testimony in the record that Hosiery already had a general no-solicitation rule in effect, although unfortunately this matter was not seriously pursued by either party as an issue in the case. In" }, { "docid": "22237920", "title": "", "text": "him that should the Union win the election an employee would have to join the Union. This misrepresentation, which the named Union representative categorically denied having made, was allegedly uttered before a group of about twelve of the Company’s employees. Because it was undisputed that the alleged conversation preceded the filing of an election petition, the Trial Examiner, assuming arguendo that the misrepresentation was made, nevertheless overruled the objection relying upon the Board rule announced in Ideal Electric & Manufacturing Company, 134 N. L.R.B. 1275 (1961), that makes misconduct occurring prior to the filing of an election petition irrelevant to the determination of whether the election should be set aside. Designed to eliminate from post-election consideration conduct too remote to have prevented the employees’ exercise of free choice, this rule was reasonably applied in these circumstances. Cf. N.L.R.B. v. Lawrence Typographical Union, 376 F.2d 643, 652-653 (10th Cir.1967). See also Rockwell Manufacturing Co., etc. v. N.L.R.B., 330 F.2d 795 (4th Cir.1964), cert, denied, 379 U.S. 890, 85 S.Ct. 161, 13 L.Ed.2d 94 (1964). In any event, the Company apparently had ample opportunity to rebut the misrepresentation, and cannot now assert prejudice because of its failure to do so. Anchor Manufacturing Co. v. N. L.R.B., supra 300 F.2d at 303. Furthermore, it is not unlikely that the alleged misrepresentation of mandatory union membership, if it had any effect at all on the employees’ free choice, inured to the benefit of the Company rather than the Union. In sum, considering the remoteness of the alleged statement from the election, as well as its ambiguous effect, if any, on the results, the Board did not abuse its discretion when it determined this objection to be without merit. See Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). The most serious objections asserted by the Company were those dealing with alleged threats of physical violence. Several employee witnesses provided conflicting statements as to a threat of physical violence made during the time immediately preceding the voting. Another employee reported a conversation on the day before the election" }, { "docid": "4281073", "title": "", "text": "half-truths, and falsehoods.” The Board was requested to set aside the election. On May 13,1952, the Regional Director of the Board filed his report on the Union’s objections. The report stated that the Company’s president visited each of the nine affected stores and made an informal speech to the alteration department employees; that there was evidence that some of the employees knew a few days in advance that the president was going to visit them, but, the report added, the Union’s representatives “deny that they knew of the speeches before the evening of April 3 (the day before the election)”. Three of the speeches were made two days before the election, and six were made on the day before the election. The report further recited that the eligible voters were called together in the alteration shop at each store to hear the president of the Company during working hours; that in general the employees had no alternative but to attend; that there was no evidence that the Company president made any statement to the employees which might be held to be coercive; that there was no showing that the Union requested the right to address the employees, or that any employees requested the privilege or attempted to rebut the president’s statement; that no representative of the Union knew of these meetings until the last one had been held; that the timing of the president’s speeches was such as to make impossible the holding of any further meetings for the purpose of giving the Union an opportunity to rebut his statements; that the Company in effect denied the Union such an opportunity, by timing the speeches as it did; and that by addressing the employees in small groups the Company may have interfered with the election. The Regional Director closed his report by recommending that the Board set aside the election. On May 22, 1952, the Company filed exceptions to the Regional Director’s report, requesting that the Board overrule the recommendations of the Regional Director and certify the results of the election. Counsel point out that the exceptions “did not deny" }, { "docid": "17245544", "title": "", "text": "There is no suggestion that the leaflet was prepared to meet some last-minute impropriety by the company. Nor was the union otherwise pressed. The election campaign had been in progress over three months, and the contracts described had been negotiated before that. It is obvious that the whole proceeding was a calculated move, at a deliberately selected moment when, due to the shortness of time to learn the true facts or effectively reach the employees, the company’s ability to correct misstatements would be minimal. The Board’s response that the company had an opportunity to reply and did so “effectively” is, in our opinion, simply not so. The employees, except for ten per cent who did not see it at all, received the company’s leaflet fifteen minutes before they voted. One may wonder how many conversions are made at such a moment. Furthermore, there is an important distinction between a reply and what the Board chose to regard in oral argument as “refutation.” As to some matters a reply may be a refutation; but to others, not. If a union says it negotiated such and such contracts with A, B & C, and the company says it did not, whom are the employees more likely to believe? We think there can be little doubt. There is much merit in the court’s suggestion in N. L. R. B. v. Houston Chronicle Publishing Co., 5 Cir., 1962, 300 F.2d 273, 279, that the very attempt to deny what the union presumably has the only first-hand knowledge of may put the company in a worse light. Moreover, the company made no reply, and there is no suggestion that it had the opportunity to do so, to any but one of the Monsanto half truths listed in fn. 2, supra, to the Knolls exaggerated pieceworker rate, to the implication that the Metal Hydrides agreement covered commercial work, and the false assertion that that contract contained company-paid plans for pension and severance pay. These misrepresentations alone were substantial and serious. We do not believe that even the company’s positive denial that it had radioactive or other" }, { "docid": "3830139", "title": "", "text": "a protection against having an employee grievance hang unsettled over its head indefinitely like a “Sword of Damocles.” The Union characterizes that danger as “fanciful.” The Union emphasizes that Articles V and VI are separate, with distinct procedures and differing coverage; the latter includes employer claims, while the former does not. Both parties also rely on past practice. Thus, ITT says that it has never sought to arbitrate an employer claim, that when it brought a similar damage action in 1965, the Union did not seek arbitration, and that a Union official warned members during the 1968 strike that the walkout “gives the company an opportunity to go into Federal Court.” The Union rebuts with very recent actions of ITT which it says show ITT recognition of the arbitrability of employer claims. Finally, both sides call our attention to analogous judicial decisions. ITT relies most heavily on G. T. Schjeldahl Co., Packaging Machinery Division v. Local 1680, IAM, 393 F.2d 502 (1st Cir. 1968), and Boeing Co. v. International Union, UAW, 370 F.2d 969 (3d Cir. 1967). The Union invokes the imposing language of the Steelworkers’ Trilogy and cites numerous cases for the proposition that whether a union has violated a no-strike clause is an arbitrable dispute under the contract, e. g., Drake Bakeries Inc. v. Local 50, American Bakery Workers, 370 U.S. 254, 258, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962); Signal-Stat Corp. v. Local 475, United Electrical Workers, 235 F.2d 298, 301 (2d Cir. 1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957); and Local No. 463, United Papermakers and Paperworkers, AFL-CIO v. Federal Paper Board Co., 239 F.Supp. 45 (D.Conn.1965). From these volleys back and forth it appears to us that the Union has somewhat the better of it. Judge Pollack noted that Section 2(a) of Article VI fixes one time limit (30 days) for the Union to exercise “its exclusive, right to invoke arbitration of employee grievances” and Section 2(b), which does not mention employee grievances, fixes another period (two weeks) in which “either party” may act. We agree with the judge" }, { "docid": "4452923", "title": "", "text": "effect to the principle of majority rule. The court there went on to state: “The principle of majority rule, however, does not foreclose practical adjustment designed to protect the election machinery from the ever present dangers of abuse and fraud.” 329 U.S. at 331, 67 S.Ct. at 328. The Board takes the position that it may therefore adopt policies which, while foreseeably resulting in some infringement of the rights of particular majorities, at the same time foster the rights of all majorities by discouraging needless post-election litigation and encouraging the prompt settlement of representation questions. The Board argues that in a case of this type such a permissible balancing of interests is at the heart of its refusal to set aside elections because of misstatements which the objecting party failed to rebut during the campaign despite a clear opportunity to do so. Without articulating a broad principle, we agree that there are proper situations for the Board’s application of a balance of interest test that serve to limit future post-election litigation. See e. g. N. L. R. B. v. Decatur Transfer & Storage Co., 430 F.2d 763 (5th Cir. 1970); N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245 (5th Cir., 1964). While there is also certainly a proper place for the Board’s Hollywood Ceramics rule, in the context of this case a strict application of that rule is too severe. As it was observed in Tyler Pipe & Foundry v. N. L. R. B., 406 F.2d 1272 (5th Cir., 1969): “It seems, in passing, that the Board relies too heavily on the Company’s opportunity to rebut the Union’s misstatements. Rebuttal is significant; opportunity to rebut, taken alone, is a different matter. It must be remembered that the stated purpose of these proceedings is to determine the uninhibited desires of the employees. Too often, the battle raging between the company and the union obscures the very subject of the focus of our attention. The fact that the company or the union fails to exercise an opportunity to rebut the lies of the other is" }, { "docid": "16390807", "title": "", "text": "election only prove that in fact the Company’s unfair labor practice succeeded in dissipating the Union’s majority. In order to prevent the Company from benefiting by its own wrong, it is therefore automatically necessary to order bargaining in spite of the employees’ present desires. The passage of time, in the Board’s view, in fact only exacerbates the wrong, since the • longer the Union is wrongfully deprived of the opportunity to prove to the employees how much it could do for them as their bargaining representative, the more likely it is that support for the Union will dwindle. In our view, this argument gives too much weight to the interests of the Union, too little to the statutory rights of the employees, and rests too much on speculation. In any case, its underlying rationale is inconsistent with the Supreme Court decisions in Gissei and with the Board’s own practice as expressed in Irving Air Chute Co., 149 NLRB 627 (1964), enf’d, 350 F.2d 176 (2d Cir. 1965). The inevitable implication of the Board’s view is that any wrongful refusal to bargain can and should be remedied at any time by a bargaining order, regardless of employee desires, since the simple fact that no bargaining is occurring may be undercutting the Union’s support. But in Gissei, the Supreme Court agreed with the Board’s finding of unlawful refusals to bargain combined with other, coercive, unfair labor practices, and still held that if possible, elections should be held to determine employee choice. 395 U.S. at 614, 89 S.Ct. at 1940. We recognize that Gissel was an initial recognition case, and this situation involves a withdrawal of recognition, but it seems to us that unlawful refusals to bargain are as likely, if not more likely, to dissipate support for a fledgling Union as for an established Union. The two situations are not, of course, identical; different policy considerations are implicated in the choice of a remedy. However, Gissel does clearly establish that an 8(a)(5) violation should not automatically trigger a bargaining order if there is a substantial possibility that the employees do not want" }, { "docid": "4281074", "title": "", "text": "which might be held to be coercive; that there was no showing that the Union requested the right to address the employees, or that any employees requested the privilege or attempted to rebut the president’s statement; that no representative of the Union knew of these meetings until the last one had been held; that the timing of the president’s speeches was such as to make impossible the holding of any further meetings for the purpose of giving the Union an opportunity to rebut his statements; that the Company in effect denied the Union such an opportunity, by timing the speeches as it did; and that by addressing the employees in small groups the Company may have interfered with the election. The Regional Director closed his report by recommending that the Board set aside the election. On May 22, 1952, the Company filed exceptions to the Regional Director’s report, requesting that the Board overrule the recommendations of the Regional Director and certify the results of the election. Counsel point out that the exceptions “did not deny that non-coercive and non-promising speeches had been made”, but objected “to the report and recommendation of the Regional Director to set aside the election on the ground that, being based solely on the mere timing of a non-coercive speech, it would directly contravene Section 8(c) of the Act (infra) and the guaranty of freedom of speech in the First Amendment to the Constitution of the United States.” The exceptions concluded with the statement that if the Board believed that non-coercive and non-promising speeches to employees could be made the basis for setting aside an election— “We submit that, in that event, a hearing would be necessary to determine the facts with reference to the opportunities available to Petitioner (the Union), and availed of by it, to make known its views to the employees.” On October 21, 1952, the Board issued a Supplemental Decision, Order and Second Direction of Election, the Chairman dissenting. The majority agreed with the Regional Director’s conclusion that by timing the speech “the Employer made impossible the holding of any further meetings" }, { "docid": "11480031", "title": "", "text": "has been lacking; and the misrepresentation has had an impact on the free choice of the employee. See Linn v. Plant Guard Workers, 383 U.S. 53, 60, 86 S.Ct. 657, 15 L.Ed.2d 582 (1965); Hollywood Ceramics Co., 140 N.L.R.B. No. 221 (1962). The importance which the Board attributes to the opportunity of rebuttal is understandable, although not completely satisfactory. By emphasizing this factor, the Board skirts the delicate issue of freedom of speech during a campaign and avoids the necessity of detailed and exhaustive regulations on permissible statements. See Bok, supra. However, the propaganda technique of the “Big Lie” repeated over and over again is well known, and its effectiveness has been demonstrated. During the course of a campaign, the rebuttal procedure may be a useful regulatory tool but its invocation, post election, as a defense should be received with caution. Fairness is not readily apparent when a party which has been successful in the balloting through the use of deliberate falsehood is allowed to retain its victory by pleading that its opponent had opportunity for rebuttal. Courts of appeals in several circuits have held that misinformation about company profits can be material, since the extent to which employees share fairly in the results of their labors is of great interest to them. Argus Optics v. National Labor Relations Board, 515 F.2d 939 (6th Cir. 1975); Henderson Trumbull Supply Corporation v. National Labor Relations Board, 501 F.2d 1224 (2d Cir. 1974); National Labor Relations Board v. G. K. Turner Associates, 457 F.2d 484 (9th Cir. 1972). In Tyler Pipe & Foundry Company v. National Labor Relations Board, 406 F.2d 1272 (5th Cir. 1969), the union allegedly misstated the company earnings. Although the Board determined that employees would not have been affected, the court on review said: “We cannot accept the Board’s complacency . ****** “[I]n. a case where election propaganda is challenged by a party to the election, the ultimate question before the Board is whether the propaganda has lowered the standards to the point where it may be said that the uninhibited desires of the employees cannot be determined" }, { "docid": "897208", "title": "", "text": "several employees that the handbill was in error. But there is no evidence in the record to indicate that the official tally posted by the Company was read by all or even a majority of the employees, or that the Company supervisor was able to reach more than a few of the Company’s employees with the truth. An important factor in our determination is that the distribution of the handbill was “apparently timed to deprive the employer of the opportunity effectively to rebut the misrepresentations.” Walled Lake Door Co. v. N. L. R. B., 5th Cir. 1973, 472 F.2d 1010, 1011. While the Company may have had time to frame a reply, there was no effective opportunity to correct the misrepresentation. N. L. R. B. v. Cactus Drilling Corp., supra, 455 F.2d at 875. We fully support the Board’s reluctance to police and censor the statements of parties to a certification election. N. L. R. B. v. Southern Foods, Inc., supra, 434 F.2d at 719. But that reluctance must give way where the employees’ freedom to make an unfettered choice between the competing factions is tainted. In Luminator Division of Gulfton Industries, Inc. v. N. L. R. B., supra, we found that a company’s opportunity to reply to misrepresentations contained within a leaflet distributed twenty-six hours before the election “certainly raised a question of material fact,” thus necessitating a hearing. In N. L. R. B. v. Houston Chronicle Publishing Company, 5th Cir. 1962, 300 F.2d 273, a union letter containing material misstatements was circulated two days before the election. The Board held that the employer's answer by telegram was sufficient. We disagreed and denied enforcement of the order noting that the requisite laboratory conditions had been destroyed by the propaganda. On the record in this case, there is not substantial evidence to support the conclusion that the Company had an adequate opportunity to reply and to correct the misrepresentation. Fourth, the record indicates that there was a substantial and material factual issue as to whether the employees possessed the requisite independent knowledge to evaluate the propaganda effectively. Having dispensed with" }, { "docid": "3251310", "title": "", "text": "employees could evaluate propaganda, the Board frequently considers (1) whether the promulgating party had special knowledge of the facts asserted, thus making it more likely that the employees would rely on them; and (2) whether the challenging party had the opportunity to or did rebut the false assertions. Celanese Corporation of America, 121 NLRB No. 42, 42 LRRM 1354 (1958). These, of course, are merely useful factual tests for ascertaining whether the legal standards have been transgressed; that is, whether the effect of circumstances surrounding an election was such that the results of the election reflect the desires of the employees, free of improper influence.” It cannot be denied that in regard to the origin of the wage scale contained in the letter, the Union was in a superior position of knowledge. Moreover, substantial doubts arise as to whether the Company had either sufficient knowledge or time to rebut the letter. Nor will this Court attribute extraordinary powers of perspicacity to the employees. The state of the record, however, precludes the resolution of these doubts and requires this Court to remand this case to the Board for a full hearing on the Company’s objection to the letter. Enforcement of the Board order is denied and the case is remanded for a full hearing to determine the extent to which the Union misrepresentations affected the election." }, { "docid": "17245543", "title": "", "text": "very dangerous, but the danger can’t be seen or felt. Are radioactive materials being used in your plant? If so, have you been told about it? And what kind of safety measures have been taken?” After further development of this none too veiled insinuation, entirely unjustified in fact, the leaflet stated, “Not long ago beryllium poisioning claimed the lives of many workers in this industry and in our plant.” The inclusion of respondent’s plant was completely false. This is a sorry record. Of the three contracts advertised, the first was at least considerably exaggerated; the benefits of the second were paraded under the general assertion that the working conditions were less hazardous when actually they were more so, and at least one benefit was substantially misstated; the third contract was not in fact negotiated for competitive commercial work, and was claimed to contain fully paid-for pension and severance plans, certainly substantial matters, when it contained none at all. Finally, with no basis in fact, there was the emotional appeal to apprehensions over radioactivity and poisons. There is no suggestion that the leaflet was prepared to meet some last-minute impropriety by the company. Nor was the union otherwise pressed. The election campaign had been in progress over three months, and the contracts described had been negotiated before that. It is obvious that the whole proceeding was a calculated move, at a deliberately selected moment when, due to the shortness of time to learn the true facts or effectively reach the employees, the company’s ability to correct misstatements would be minimal. The Board’s response that the company had an opportunity to reply and did so “effectively” is, in our opinion, simply not so. The employees, except for ten per cent who did not see it at all, received the company’s leaflet fifteen minutes before they voted. One may wonder how many conversions are made at such a moment. Furthermore, there is an important distinction between a reply and what the Board chose to regard in oral argument as “refutation.” As to some matters a reply may be a refutation; but to others," }, { "docid": "4452925", "title": "", "text": "of little moment in attempting to determine the effect of those falsehoods on the employees.” We agree with that observation, especially in the context of the case at bar where any rebuttal by the employer would have been futile and served only to underscore in the voters’ minds the Union’s poisonous misrepresentation. Applying the fourth and final standard, the recipients of the letter ostensibly had no independent knowledge of what unnamed companies would do if the Union lost at Cactus. Thus they could not effectively evaluate the Union propaganda. Had the Union’s propaganda not been addressed to Hondo eligible employees and had the propaganda named a source, we might be presented with the problem of N. L. R. B. v. Louisville Chair, 385 F.2d 922 (6th Cir., 1967), cert. den. 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163, where the court stated: “Having deliberately by-passed its opportunity to reply, the respondent (employer) cannot now contend that the Union campaign material, which was refutable, prevented the exercise of a free choice by its employees in the election of their bargaining representative.” [Emphasis supplied.] 385 F.2d at 927. It can be seen from the italicized material that Louisville Chair is distinguishable. Likewise are N. L. R. B. v. Decatur Transfer & Storage Co., supra, and N. L. R. B. v. Agawam Food Mart, Inc., 386 F.2d 192 (1st Cir., 1967). Unlike those eases the record here affirmatively indicates that this piece of pre-election propaganda was not refutable. We conclude, therefore, that Cactus has met the heavy burden of proving that the Union’s misrepresentations “interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.” N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 30. We hold that the Board abused its discretion in certifying the Union as the employees’ bargaining representative, and direct that the Board’s order requiring the company to recognize and bargain with the Union be set aside. Enforcement denied. . International Union of Operating Engineers (the Union). . The Permian Basin is an area" }, { "docid": "897207", "title": "", "text": "union there is strength, it strains our credulity to believe that Company employees would not be affected by how employees at another company had voted with respect to the same union, or how they believed employees at another company voted. We find that this misrepresentation could have affected the outcome of this election, and is therefore material. Second, since the handbill was prepared by the same Union which attempt ed to organize Bes-Pak employees, the Union was in an authoritative position to know the truth. That much is not disputed by any of the parties. Third, we find that the Company did not have an adequate opportunity to reply and to correct the misrepresentation. The handbill was not distributed until the eve of the election, even though the Bes-Pak election had occurred a week before. The Company discovered the Union handbill on the day of the election and then placed an official NLRB vote tally of the Bes-Pak election on the bulletin board near the timeclock. At least one Company supervisor attempted to explain to several employees that the handbill was in error. But there is no evidence in the record to indicate that the official tally posted by the Company was read by all or even a majority of the employees, or that the Company supervisor was able to reach more than a few of the Company’s employees with the truth. An important factor in our determination is that the distribution of the handbill was “apparently timed to deprive the employer of the opportunity effectively to rebut the misrepresentations.” Walled Lake Door Co. v. N. L. R. B., 5th Cir. 1973, 472 F.2d 1010, 1011. While the Company may have had time to frame a reply, there was no effective opportunity to correct the misrepresentation. N. L. R. B. v. Cactus Drilling Corp., supra, 455 F.2d at 875. We fully support the Board’s reluctance to police and censor the statements of parties to a certification election. N. L. R. B. v. Southern Foods, Inc., supra, 434 F.2d at 719. But that reluctance must give way where the employees’ freedom" }, { "docid": "4452924", "title": "", "text": "L. R. B. v. Decatur Transfer & Storage Co., 430 F.2d 763 (5th Cir. 1970); N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245 (5th Cir., 1964). While there is also certainly a proper place for the Board’s Hollywood Ceramics rule, in the context of this case a strict application of that rule is too severe. As it was observed in Tyler Pipe & Foundry v. N. L. R. B., 406 F.2d 1272 (5th Cir., 1969): “It seems, in passing, that the Board relies too heavily on the Company’s opportunity to rebut the Union’s misstatements. Rebuttal is significant; opportunity to rebut, taken alone, is a different matter. It must be remembered that the stated purpose of these proceedings is to determine the uninhibited desires of the employees. Too often, the battle raging between the company and the union obscures the very subject of the focus of our attention. The fact that the company or the union fails to exercise an opportunity to rebut the lies of the other is of little moment in attempting to determine the effect of those falsehoods on the employees.” We agree with that observation, especially in the context of the case at bar where any rebuttal by the employer would have been futile and served only to underscore in the voters’ minds the Union’s poisonous misrepresentation. Applying the fourth and final standard, the recipients of the letter ostensibly had no independent knowledge of what unnamed companies would do if the Union lost at Cactus. Thus they could not effectively evaluate the Union propaganda. Had the Union’s propaganda not been addressed to Hondo eligible employees and had the propaganda named a source, we might be presented with the problem of N. L. R. B. v. Louisville Chair, 385 F.2d 922 (6th Cir., 1967), cert. den. 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163, where the court stated: “Having deliberately by-passed its opportunity to reply, the respondent (employer) cannot now contend that the Union campaign material, which was refutable, prevented the exercise of a free choice by its employees in" }, { "docid": "3251309", "title": "", "text": "wage scale was taken from a New York contract. This broad statement contravenes the requirement of precision in such matters. See Graphic Arts Finishing Co., Inc. v. N. L. R. B., 380 F.2d 893 (1967). Claims involving wages and benefits which are based upon unstated hypotheses constitute a prima facie misrepresentation. N. L. R. B. v. Houston Chronicle Publishing Co., supra, 300 F.2d at 279. Whether this misrepresentation had a significant impact upon the election cannot now be determined since unlike National Cash Register Co. v. N. L. R. B., supra, and N. L. R. B. v. Houston Chronicle Publishing Co., supra, this Court is not favored with a complete record of the facts. It is clear that neither the Regional Director nor the Board has considered or applied the factual tests promulgated by the Board and adopted by this Court in N. L. R. B. v. Houston Chronicle Publishing Co., 300 F.2d at 278, and National Cash Register Co. v. N. L. R. B., supra. “* * * As a guide to determining whether employees could evaluate propaganda, the Board frequently considers (1) whether the promulgating party had special knowledge of the facts asserted, thus making it more likely that the employees would rely on them; and (2) whether the challenging party had the opportunity to or did rebut the false assertions. Celanese Corporation of America, 121 NLRB No. 42, 42 LRRM 1354 (1958). These, of course, are merely useful factual tests for ascertaining whether the legal standards have been transgressed; that is, whether the effect of circumstances surrounding an election was such that the results of the election reflect the desires of the employees, free of improper influence.” It cannot be denied that in regard to the origin of the wage scale contained in the letter, the Union was in a superior position of knowledge. Moreover, substantial doubts arise as to whether the Company had either sufficient knowledge or time to rebut the letter. Nor will this Court attribute extraordinary powers of perspicacity to the employees. The state of the record, however, precludes the resolution of these doubts" }, { "docid": "23307390", "title": "", "text": "(1958). However, when a party deliberately makes material misrepresentations of fact in circumstances in which employees are unable to evaluate the truth or falsity of the assertions, the Board has held that the legitimate bounds of campaign propaganda have been exceeded and has set aside the election. E. g., Cleveland Trencher Co., 130 NLRB, No. 59, 47 LRRM 1371 (1961) ; The Caldyne Co., 117 NORB, 1026, 39 LRRM 1364 (1957). That the misrepresentation be deliberate is not required in every case, for: “in any event the effect on * * * employees * * * would be no different from that of a deliberate misstatement”. Kawneer Company, supra. As a guide to determining whether employees could evaluate propaganda, the Board frequently considers (1) whether the promulgating party had special knowledge of the facts asserted, thus making it more likely that the employees would rely on them; and (2) whether the challenging party had the opportunity to or did rebut the false assertions. Celanese Corporation of America, 121 NLRB No. 42, 42 LRRM 1354 (1958). These, of course, are merely useful factual tests for ascertaining whether the legal standards have been transgressed; that is, whether the effect of circumstances surrounding an election was such that the results of the election reflect the desires of the employees, free of improper influence. In this case, the Board has made no specific finding, labelled as such, that the Union representations to which the Chronicle objects were or were not false. It has, however, adopted the findings of the Regional Director that the representations were “not completely accurate; speculative; exaggerated; half-truths; misrepresentations”. The fact that some of them were based upon unstated hypotheses does not lighten the impact of the deception. See Reiss Associates, 116 NLRB No. 26, 38 LRRM 1218 (1956). The form of presentation employed by the Union is in and of itself misleading, in .addition to the effect of substantive inaccuracies which it may embody. Ibid. The representations with which we are here concerned were neither “inadvertently inaccurate” nor “substantially correct”, as were those which the Board considered in Otis Elevator" }, { "docid": "3830138", "title": "", "text": "contract with Article V, which is set forth in the margin. Since Arti ele V concededly only covers employee grievances, ITT argues that the provisions for arbitration in Article VI must also be so construed. The Union retorts that the phrase relied on by ITT is not a limiting one, but merely describes when a claim is ready for arbitration. The Union points out that since an employer’s claim of contract violation obviously cannot be adjusted under the Article V procedure, such a claim fits the Article VI description of “matters disputed” which are ripe for arbitration. The Union finds further support for its position in Section 2(b) of Article VI, which explicitly recognizes that “notification * * * of intent to proceed to arbitration” may be sent “by either party to the other” and thereafter “either party may request arbitration.” These contending positions have brought forth further rebuttals and rejoinders in the briefs. For example, under its theory that arbitration applies only to employee grievances, ITT views its right to “request arbitration” as merely a protection against having an employee grievance hang unsettled over its head indefinitely like a “Sword of Damocles.” The Union characterizes that danger as “fanciful.” The Union emphasizes that Articles V and VI are separate, with distinct procedures and differing coverage; the latter includes employer claims, while the former does not. Both parties also rely on past practice. Thus, ITT says that it has never sought to arbitrate an employer claim, that when it brought a similar damage action in 1965, the Union did not seek arbitration, and that a Union official warned members during the 1968 strike that the walkout “gives the company an opportunity to go into Federal Court.” The Union rebuts with very recent actions of ITT which it says show ITT recognition of the arbitrability of employer claims. Finally, both sides call our attention to analogous judicial decisions. ITT relies most heavily on G. T. Schjeldahl Co., Packaging Machinery Division v. Local 1680, IAM, 393 F.2d 502 (1st Cir. 1968), and Boeing Co. v. International Union, UAW, 370 F.2d 969 (3d" }, { "docid": "2099081", "title": "", "text": "enforce the order. The representation election, held on January 19, 19Y1, resulted in 26 votes for the Union and 22 against the Union. One vote was challenged; one ballot was void; four eligible employees did not vote. The Company has five plants: in Gila Bend, Arizona; Cameron, Texas; Stanley, Virginia; Richmond, Indiana; and Tupelo, Mississippi. Two plants, Gila Bend and Richmond, are organized and represented by the same union involved in this case. During the year before the Tupelo election the Union was defeated 27 to 14 in an election at the Stanley plant. The Company filed objections to the election on January 22, 1971. The target of these objections is a letter by the Union to the employees, apparently timed to deprive the employer of the opportunity effectively to rebut the misrepresentations. Some of the employees received the letter on the Saturday before the election on Tuesday, January 19, 1971; others received it on Monday, January 18. The letter did not come to the attention of the Company until Monday, the day before the election. The letter contains a manifest misstatement of fact: P.S. Join hands with employees of the 4 Walled Lake plants who are represented by unions. The letter was signed, “Your Organizing Committee, Southern Council of Lumber and Plywood Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO”. Because of the source, it would seem reasonable for the employees to accept the statement as true. It is a fair inference that the next step in an employee’s thinking would be to ask: If the employees in all of the Company’s other plants are represented by the Union, why should not the Tupelo plant employees be represented by that same Union? In Union there is strength; as employees of a completely unionized company they would have more bargaining leverage than as employees of a nonunionized plant at Tupelo. Preceding the postscript, the letter recited a long list of benefits enjoyed by the employees at the unionized plants. The record shows that the letter had the impact on a number of employees that one might expect. The" } ]

[ { "docid": "12201653", "title": "", "text": "J. SKELLY WRIGHT, Circuit Judge: This appeal presents for consideration in a summary.judgment context an application of the public official libel principle enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Appellee, a United States Congressman from New York, sued the Washington Post and its syndicated columnist, Drew Pearson, for alleged libelous information appearing in two of Pearson’s columns (appendices to this opinion) published in the Post. Without surrendering the defense of truth on the merits, the Post moved for summary judgment on the ground that the record raised no genuine issue as to actual malice on its part. The District Court, although “aware that there is substantial ground for a difference of opinion as to the law which we have cited in supporting this holding,” distinguished Times and, finding itself in “doubt,” denied the motion for summary judgment and certified the case for interlocutory appeal, 28 U.S.C. § 1292(b). Keogh v. Pearson, D.D.C., 244 F.Supp. 482, 486 (1965). We reverse. I The governing rule of law, announced in New York Times, is that public officials may sue for libel only when they can demonstrate the statement was made with “actual malice,” which is defined to mean publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. In Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), the Court refined its standard, stating that “only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.” And in Henry v. Collins, 380 U.S. 356, 357, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965), the Court reversed on the certiorari papers a judgment based upon an instruction allowing the jury to infer malice from the falsity and libelous nature of a statement, pointing out this instruction allowed the jury to find malice from “intent to inflict harm” rather than from “intent to inflict harm through falsehood.” The obvious" } ]

[ { "docid": "16554205", "title": "", "text": "simple negligence. As St. Amant makes clear, negligence is not recklessness and cannot support a finding of actual malice. 390 U.S. at 731, 88 S.Ct. 1323. Plaintiff makes much of language in St. Amant indicating that recklessness could be found where allegations are “so inherently improbable that only a reckless man would have put them in circulation.” Id. at 732, 88 S.Ct. 1323. However, given the factual backdrop of the article, including Secretary Schlesinger’s statement, the allegation that a defense contractor entertained Pentagon officials at a hunting lodge and provided prostitutes cannot be considered “inherently improbable.” Plaintiff relies principally on Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), where the majority extended the New York Times rule requiring evidence of actual malice to public figures, but held that the allegedly defamatory article was published with reckless disregard for its truthfulness. Although the Court based this conclusion on a finding that the publisher’s investigation was “an extreme departure from the standards of investigating and reporting,” id. at 158, 87 S.Ct. at 1993, a charge similar to that leveled by plaintiff against the Star, the facts underlying this finding were substantially more severe than those in the instant case. First, it was clear to all con cerned that the article, which appeared in the Saturday Evening Post and which accused Wally Butts, head football coach at the University of Georgia, of disclosing game strategy to the opposing team, would instantly destroy his reputation and his ability to earn a living whether or not it was false. The Post also knew that its informant, who claimed to have overheard Butts’ telephone conversation with the opposing team’s coach, was convicted of passing bad checks. Yet, the Post made no efforts to verify his story. This' failure to verify included decisions not to interview a person named by the informant as a witness to the incident and not to screen the game films to see if they indicated that the opposition was privy to Georgia’s strategy. Further, the Court noted that expert testimony established that the notes of" }, { "docid": "2921945", "title": "", "text": "452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981); Vandenburg II, 507 F.2d at 1026; New York Times Co. v. Connor, 365 F.2d 567 (5th Cir.1966). However, when an article is not in the category of “hot news,” that is, information that must be printed immediately or it will lose its newsworthy value, “actual malice may be inferred when the investigation for a story ... was grossly inadequate in the circumstances.” Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th Cir.1971) (“Vandenburg I”), cert. denied, 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108 (1971), appeal after remand, 507 F.2d 1024, 1027 (5th Cir.1975). See also Curtis Publishing, 388 at 157, 87 S.Ct. at 1992, 18 L.Ed.2d at 1112; Ryan v. Brooks, 634 F.2d 726, 733 (4th 1980). The Supreme Court has cited certain eircumstances which may support a finding of actual malice. The defendant in a defamation action brought by a public official cannot, however> automatically ensure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in £ood faltb- Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267-68 (footnote omitted), Since St. Amant, several courts have held that evidence which shows that the statement was inherently implausible or that there were obvious reasons to doubt the veracity of the informant is relevant to establishing actual malice. See, e.g., Gertz v. Robert Welch, Inc., 680 F.2d 527, 538 (7th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1233, 75 L.Ed.2d" }, { "docid": "18097563", "title": "", "text": "figures and public officials.... For the stake here, if harassment succeeds, is free debate.” Secord v. Cockburn, 747 F.Supp. 779, 786 (D.D.C.1990) (citations omitted). This Court has previously held that NIAC and Parsi are limited public figures. See Parsi v. Daioleslam, 595 F.Supp.2d 99, 104-06 (D.D.C.2009). As such, they must show by clear and convincing evidence that defendant’s statements were made with “actual malice” in order to prevail on their claims. Id.; New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). “The standard of actual malice is a daunting one.” McFarlane v. Esquire Magazine, 14 F.3d 1296, 1308 (D.C.Cir.1996). To establish actual malice, plaintiffs must show that defendant either knew that the challenged publication was false, or that he “in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Subjective ill-will does not establish actual malice, nor does a malevolent motive for publication. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 665, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Even “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” does not establish actual malice. Id. at 666, 109 S.Ct. 2678. But a plaintiff can show actual malice if he can demonstrate by clear and convincing evidence that defendant was “subjectively aware that it was highly probable that the story was (1) fabricated; (2) so inherently improbable that only a reckless person would have put it in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt.” Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C.Cir.2003) (citations omitted). In the summary judgment context, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion for summary judgment, however, “may not rely merely on allegations or denials in its" }, { "docid": "18222319", "title": "", "text": "also Celle, 209 F.3d at 181 (“A public figure seeking recovery in a libel action against a media defendant must establish the falsity of the defamatory statements.”). As to actual malice: Despite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of the publication. If it cannot be shown that the defendant knew that the statements were false, a plaintiff must demonstrate that the defendant made the statements with reckless disregard of whether they were true or false. The reckless conduct needed to show actual malice is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing, but by whether there is sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Church of Scientology, 238 F.3d at 174; see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (“Actual malice ... should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.”); Sack, supra, § 5.5.1.1, at 5-68 (actual malice “relates to whether the defendant published without believing the truth of the publication”). The actual malice showing “must be made with ‘convincing clarity,’ or, in a later formulation, by ‘clear and convincing proof.’ ” Phila. Newspapers v. Hepps, 475 U.S. 767, 773, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (internal citations omitted). The Supreme Court has identified several factors as relevant to a finding of actual malice: (1) whether a story is fabricated or is based wholly on an unverified, anonymous source, (2) whether the defen dant’s allegations are so inherently improbable that only a reckless person would have put them in circulation, or (3) whether there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Church of Scientology, 238 F.3d at 174 (citing St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20" }, { "docid": "18439462", "title": "", "text": "merely reading the words. “Actual malice” is defined by the Supreme Court as “knowledge that the statement was false or was made with reckless disregard of whether it was false or not.” New York Times, 84 S.Ct. at 725-26; Golden Bear Distributing Systems v. Chase Revel, Inc., 708 F.2d 944, 950 (5th Cir.1983). Whether a defendant acted in “reckless disregard” of the truth or falsity of his statement must be determined by applying the following standard: There must be sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); Golden Bear Distributing Systems, supra, at 950; Herbert v. Lando, supra, 99 S.Ct. at 1639. In St. Amant, the Court specifically noted, “that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” Id. 88 S.Ct. at 1325. Thus, it has been well established in the federal jurisprudence that failure to investigate does not constitute “reckless disregard,” per se. St. Amant placed some restrictions on the protection granted by the “reckless disregard” standard: The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. 88 S.Ct. at 1326. See also, Herbert, 99 S.Ct. at 1643, note 12. Because of the importance of our First Amendment" }, { "docid": "462495", "title": "", "text": "was highly probable that the story was ‘(1) fabricated; (2) so inherently improbable that only a reckless person would have put [it] in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt.’ ” Id. at 1283 (citation omitted). Courts serve an important function in assessing actual malice. As the Supreme Court has explained, “[t]he question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). “Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’ ” Id. Because Goldberg characterized Boley as a warlord based on his own purported observations of him in Liberia, this is not a case where actual malice can be shown through a journalist’s reckless reliance on an unreliable third-party source; rather, the question is whether Goldberg fabricated the story. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (actual malice may be established by proof that the “story [was] fabricated by the defendant, or [was] the product of his imagination”). And Boley “cannot show actual malice in the abstract; [he] must demonstrate actual malice in conjunction with a false defamatory statement.” Tavoulareas, 817 F.2d at 794. Furthermore, with respect both to falsity and actual malice, Boley must “ ‘demonstrate that [his] complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ ” Price, 620 F.3d at 1000 (citation omitted). Boley has failed to make this showing. Although his complaint makes blanket denials of Goldberg’s statements and denies having committed any war crimes, Compl. ¶" }, { "docid": "15598509", "title": "", "text": "this evidence, the Supreme Court found the record insufficient to support a finding of actual malice. Before evaluating the specific record before it, the St. Amant Court provided examples of the kind of proof that would likely support a finding of actual malice. The examples fell into three general categories: evidence establishing that the story was (1) “fabricated”; (2) “so inherently improbable that only a reckless man would have put [it] in circulation”; or (3) “based wholly on an unverified anonymous telephone call” or some other source that the defendant had “obvious reasons to . doubt.” 390 U.S. at 732, 88 S.Ct. at 1326. After setting forth these illustrative examples, the Court held that the evidence before it, by comparison, was clearly inadequate. St. Amant’s failure to investigate was deemed not indicative of actual malice, inasmuch as the plaintiff had not proven “a low community assessment of [the source’s] trustworthiness or unsatisfactory experience with him by St. Amant.” Id. at 733, 88 S.Ct. at 1326. The Court also found support for its decision in evidence tending to show that St. Amant published the charge in good faith, including St. Amant’s testimony that he had verified other aspects of his source’s information and evidence that the source had sworn to his answers in the presence of newsmen. 2. Application of the Legal Standards As the District Court correctly observed in the case at hand, the Supreme Court’s reasoning and result in St. Amant are instructive for inferior tribunals in attempting faithfully to apply the “serious doubt” test. 567 F.Supp. at 656. The examples provided there of when a jury may reasonably infer actual malice from circumstantial evidence are by no means exhaustive, but, as numerous courts have recognized, constitute useful benchmarks for lower courts to employ in determining whether a record is sufficient to sustain a finding of constitutional malice. See, e.g., Marcone v. Penthouse International Magazine For Men, 754 F.2d 1072, 1089-90 (3d Cir.), cert. denied, _ U.S. _, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Hunt v. Liberty Lobby, 720 F.2d 631, 643-46 (11th Cir.1983). When the entire record" }, { "docid": "15598508", "title": "", "text": "St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, the Supreme Court reversed a jury finding of liability in a public official’s defamation action. Because of St. Am-ant ’s importance in actual malice analysis, we pause to recall the facts of that case. Briefly stated, Deputy Sheriff Thompson sued St. Amant, a candidate for public office, for repeating in the course of a televised speech the false allegation that Sheriff Thompson had taken bribes from a local Teamsters Union president. The record showed that St. Amant had based his allegation exclusively on information provided by an active member of a dissident faction within the Teamsters. At the time, the dissident faction was locked in a struggle for control against the faction led by the Teamsters’ official alleged to have paid bribes to the Sheriff. Although he had no knowledge of the source’s reputation for veracity, St. Amant failed to investígate independently the obviously serious charge of bribery and failed to seek confirmation of the information from others who might have known the facts. Notwithstanding this evidence, the Supreme Court found the record insufficient to support a finding of actual malice. Before evaluating the specific record before it, the St. Amant Court provided examples of the kind of proof that would likely support a finding of actual malice. The examples fell into three general categories: evidence establishing that the story was (1) “fabricated”; (2) “so inherently improbable that only a reckless man would have put [it] in circulation”; or (3) “based wholly on an unverified anonymous telephone call” or some other source that the defendant had “obvious reasons to . doubt.” 390 U.S. at 732, 88 S.Ct. at 1326. After setting forth these illustrative examples, the Court held that the evidence before it, by comparison, was clearly inadequate. St. Amant’s failure to investigate was deemed not indicative of actual malice, inasmuch as the plaintiff had not proven “a low community assessment of [the source’s] trustworthiness or unsatisfactory experience with him by St. Amant.” Id. at 733, 88 S.Ct. at 1326. The Court also found support for its decision in evidence" }, { "docid": "4185546", "title": "", "text": "testimony of the newspaper’s witnesses, 109 S.Ct. at 2694, and irreconcilable disagreement between the newspaper’s sources. We face the same situation. Newton argues that the NBC journalists knew that he called Penosi and Piccolo with a security problem, not a financial one, and he predicates his argument on the assumption that the journalists should have considered Moreno a credible witness. In other words, Newton argues that because the journalists claimed that they found Moreno to be incredible, the jury must have concluded that the journalists were lying. This convoluted credibility assessment rests squarely before us because, like the jury in Harte-Hanks, the Newton jury heard testimony from and observed the demeanor of both the journalists and the source, Moreno. New York Times and its progeny protect journalists and publishers from liability based on errors of fact that arise from reliance on a credible source. In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court held that a journalist who relies on a source whose reliability is unknown, has not published false information with actual malice if the journalist made some effort to verify the source’s information. The Court in St. Amant reviewed a record which contained “no evidence ... of [the source’s] reputation for veracity” but nevertheless concluded that the defendant had not published false information with constitutional malice. 390 U.S. at 733, 88 S.Ct. at 1326. The Court suggested that reckless disregard for truth could be predicated on reliance “wholly on an unverified anonymous telephone call,” id. at 732, 88 S.Ct. at 1326, but found that when the publisher had not deemed the source to be “unsatisfactory,” and had verified aspects of the information, id. at 733, 88 S.Ct. at 1326, there was no reckless disregard. Id. One of our colleagues has also noted the important free speech values inherent in a journalist’s evaluation of a source: Newspapers and other media regularly digest a veritable avalanche of facts; these facts must be gathered from diverse sources, not all of equal reliability; judgments as to accuracy must often be made on the" }, { "docid": "21691296", "title": "", "text": "before publishing” but by whether a particular defendant “in fact entertained serious doubts as to the truth of [the] publication.” Id. at 731, 88 S.Ct. at 1325 (emphasis added). This the plaintiff must demonstrate clearly and convincingly. By the same token, however, a defendant cannot ... automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Id. at 732, 88 S.Ct. at 1326 (footnote omitted). IV. Turning to the statements about which Bartimo complains, no evidence whatsoever was introduced regarding Russell’s belief that Bartimo made the “ants” statement. Bartimo clearly failed to carry his burden of proving actual malice connected with that statement. Similarly, concerning the nickname “Snake,” Russell testified that three different persons had informed him of the prevalence of the epithet as applied to Bartimo. The only rebuttal was Bartimo’s own testimony that he had never heard himself referred to in that manner. This testimony, of course, had only remote and indirect relevance, if any, to Russell’s belief that Bartimo was called “Snake.” The evidence thus clearly failed to support even an inference of actual malice connected with the nickname. Regarding the charge of a partnership with “convicted felon Charles E. Roamer II,” Russell testified without contradiction both that Bartimo had at one time owned land jointly with Roamer and that Roamer had been convicted of a felony. Even Bartimo did not testify otherwise. There was thus no evidence, direct or circumstantial, that Russell doubted the accuracy of this statement." }, { "docid": "8753753", "title": "", "text": "in which they held this status. This means that, as a constitutional matter, in order to recover damages from these media defendants, the plaintiffs had to prove that they acted with actual malice. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974). Actual malice is not simply ill will; it is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true. Id. at 328, 94 S.Ct. at 3001. The test is not an objective one, for the Supreme Court has noted that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) (emphasis added). This does not mean, of course, that actual malice cannot be proved inferentially. The plaintiff need not obtain an admission of fault from the defendant. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Id. at 732, 88 S.Ct. at 1326. To prevail in a libel trial, not only must the public-figure plaintiff prove the existence of actual malice; he must prove it with “convincing clarity,” New York Times v. Sullivan, 376 U.S. 254, 285-86 (1964), or to use the Court’s more recent language, with “clear and convincing proof,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). . Moreover, judges are not merely to determine whether the finder of" }, { "docid": "14932658", "title": "", "text": "true (let alone swear in an affidavit that it is “true and correct to the best of my knowledge, information, and belief’) without an affirmative justification. That justification might come in the form of first-hand observation, or from information provided by a third party, or from some textual source, but we do not take seriously someone who claims that X is true but cannot provide any reason for thinking it so. In other words, a reasonable person’s default position is to doubt that a proposition is true until there are grounds to believe it. The absence of sufficient grounding to support an averment therefore constitutes an “obvious reason[] for doubt” under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth. Cf., e.g., Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir.1994) (observing that a “factfinder may infer reckless disregard from circumstances evincing ‘obvious reasons to doubt the veracity’ of the allegations”) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984) (quoting St. Amant, 390 U.S. at 731, 88 S.Ct. 1323)). The First Amendment case from which the reckless disregard standard is drawn makes this clear: The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. St. Amant, 390 U.S. at 732, 88 S.Ct. 1323 (emphasis added). The fact that a state ment is a" }, { "docid": "18439463", "title": "", "text": "to investigate does not constitute “reckless disregard,” per se. St. Amant placed some restrictions on the protection granted by the “reckless disregard” standard: The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. 88 S.Ct. at 1326. See also, Herbert, 99 S.Ct. at 1643, note 12. Because of the importance of our First Amendment guarantees, the Supreme Court has placed a most heavy burden of proof on a public figure seeking defamation damages. The most recent reassertion of this heavy burden was set forth by the Court in Bose Corp. v. Consumers Union of U.S., Inc., — U.S. —, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984): The burden of proving “actual malice” requires a plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement. 104 S.Ct. at 1965, note 30. Likewise, in Brewer v. Memphis Publishing Co., Inc., 626 F.2d 1238 (1980), the United States Court of Appeals for the Fifth Circuit applied this heightened burden of proof imposed on a public figure plaintiff in a defamation action. CONCLUSIONS: During Mr. Bartimo’s testimony-yesterday, I made the express finding that Mr. Bartimo was a “public figure,” as contemplated by the federal jurisprudence. There can be no question that Mr. Bartimo was the subject of extensive media coverage and public" }, { "docid": "21691295", "title": "", "text": "the sense of knowledge or reckless disregard of falsity. See Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 198, 19 L.Ed.2d 248 (1967). Liability turns not on the extent of the hatred, hostility, spite or intention to harm that defendant bears for plaintiff, but on his subjective evaluation of the accuracy of the statements he publishes to serve his motives. See Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 10-11, 90 S.Ct. 1537, 1539-40, 26 L.Ed.2d 6 (1970); see also Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964). The reckless disregard standard is, by nature, susceptible only of case-by-case definition and clarification. St. Amant v. Thompson, 390 U.S. 727, 730-31, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). It is clear enough, nonetheless, that a failure to investigate is not sufficient in itself to establish reckless disregard. Id. at 733, 88 S.Ct. at 1326. Thus, “reckless conduct is not measured by whether a reasonably prudent [person] would have published, or would have investigated before publishing” but by whether a particular defendant “in fact entertained serious doubts as to the truth of [the] publication.” Id. at 731, 88 S.Ct. at 1325 (emphasis added). This the plaintiff must demonstrate clearly and convincingly. By the same token, however, a defendant cannot ... automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Id. at 732, 88 S.Ct. at 1326 (footnote omitted). IV. Turning" }, { "docid": "2921946", "title": "", "text": "The finder of fact must determine whether the publication was indeed made in £ood faltb- Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267-68 (footnote omitted), Since St. Amant, several courts have held that evidence which shows that the statement was inherently implausible or that there were obvious reasons to doubt the veracity of the informant is relevant to establishing actual malice. See, e.g., Gertz v. Robert Welch, Inc., 680 F.2d 527, 538 (7th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983); Dickey v. CBS, Inc., 583 F.2d 1221, 1229 (3d Cir. 1978); Hotchner v. Castillo-Puche, 551 F.2d 910, 913-14 (2d Cir.1977) cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). “[A] publisher cannot feign ignorance or profess good faith when there are clear indications present which bring into question the truth or falsity of defamatory statements.” Gertz, 680 F.2d at 538 (quoted in Fitzgerald v. Penthouse International, Ltd., 691 F.2d 666, 670 (4th Cir.1982)). Our examination of the appellate court opinions also reveals that actual malice may be inferred in another circumstance in which the defendant protests his innocence. In Buckley v. Littell, 539 F.2d 882 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977), the author published a statement to the effect that William F. Buckley could be sued for libel. At the trial, the author suggested that he did not intend to label Buckley a libeler— that his metaphor was meant only to criticize Buckley’s “hounding” of certain people. The Second Circuit upheld a" }, { "docid": "18851753", "title": "", "text": "investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice, p. 731, 88 S.Ct. p. 1325. The court recognized that the New York Times malice standard might allow erroneous and libelous publications to go unredressed. Nevertheless, this is the price that must be paid to “ . . . insure the ascertainment and publication of the truth about public affairs . . The court went on to state: The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports, p. 732, 88 S.Ct. p. 1326 Based on the facts in the record, it is clear that, as a matter of law, there can be no finding of New York Times malice against defendant Harsha. Assuming that Mr. Bishop is a paid employee of PoliCom, Inc., that Mr. Harsha relied almost exclusively on his (Bishop’s) analysis of the situation, and that this analysis was wrong, the standards as set out in St. Amant v. Thompson, supra, have not been met. Here defendant Harsha had satisfactory dealings with Mr. Bishop in the past regarding military procurement practices. A member of defendant Harsha’s staff always reviewed the materials, which appear to this court to be extremely complex. The most that possibly can be said here is that defendant Harsha did not investigate as thoroughly as he might have, by, for example, contacting those who might present a different viewpoint from that espoused" }, { "docid": "18851752", "title": "", "text": "been no showing of New York Times malice. The Louisiana Supreme Court reversed the intermediate appellate court, finding that there was sufficient evidence that St. Amant had recklessly disregarded whether the statements about Thompson were true or false. Several reasons were given supporting this conclusion. St. Am-ant had no personal knowledge of the activities of Thompson; he had relied solely on the affidavit of the union official, although the record was silent as to the union official’s reputation for truthfulness; he did not verify the information with people in the union office who might have known the true facts; he went ahead without considering whether the statements defamed Thompson and heedless of the consequences; and he had mistakenly believed that he was not responsible for the broadcast because he was only quoting the union official’s words. The United States Supreme Court found that these considerations did not establish reckless disregard or New York Times malice. The court stated: reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice, p. 731, 88 S.Ct. p. 1325. The court recognized that the New York Times malice standard might allow erroneous and libelous publications to go unredressed. Nevertheless, this is the price that must be paid to “ . . . insure the ascertainment and publication of the truth about public affairs . . The court went on to state: The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them" }, { "docid": "8753754", "title": "", "text": "262 (1968) (emphasis added). This does not mean, of course, that actual malice cannot be proved inferentially. The plaintiff need not obtain an admission of fault from the defendant. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Id. at 732, 88 S.Ct. at 1326. To prevail in a libel trial, not only must the public-figure plaintiff prove the existence of actual malice; he must prove it with “convincing clarity,” New York Times v. Sullivan, 376 U.S. 254, 285-86 (1964), or to use the Court’s more recent language, with “clear and convincing proof,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). . Moreover, judges are not merely to determine whether the finder of fact could reasonably find such “convincing clarity” to exist, but are “independently [to] decide” that point, “as expositors of the Constitution.” Bose Corp. v. Consumers Union, — U.S.-, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984). The issue we address in this portion of our opinion is whether these requirements of “convincing clarity” and “independent judicial determination” apply at the summary judgment stage. Even though this is a diversity case, that issue is governed by federal law — either because the Constitution imposes the more demanding requirements at the summary judgment stage, or because, if it does not, the matter is determined by the rules of the forum court under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Anchorage-Hynning & Co. v. Moringiello, 697 F.2d 356, 360 (D.C. Cir.1983) (applying Erie to the District of Columbia); see Schultz v. Newsweek, Inc., 668 F.2d 911, 917 (6th Cir.1982). With regard to the “clear and convincing evidence” requirement, the issue can be framed as follows: whether, in order to deny the" }, { "docid": "18449021", "title": "", "text": "Newspapers Corp. v. Hanks, 389 U.S. 81, 84, 88 S.Ct. 197, 200, 19 L.Ed.2d 248 (1967); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In the leading case of St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Court found the “reckless disregard” requirement unsatisfied where the defendant had published defamatory falsehoods about the plaintiff without personal knowledge of the matter published. The Court said: . . reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. . . . The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive . . . where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” 390 U.S. at 731, 732, 88 S.Ct. at 1326. Measured by this standard, it is clear that Dr. Hutchinson’s allegations of libel and defamation fall short. His arguments that he was subjected to these torts proceed, basically, along these lines: failure to investigate; unfair editing in disregard of the facts before defendants; and republication after plaintiff complained about the press release of April 18, 1975. From St. Amant, it is clear that failure to investigate is insufficient to establish reckless disregard of the truth. Moreover, the record shows that Mr. Schwartz, on behalf of Senator Proxmire, spent approximately forty hours over a four week period gathering and re viewing agency documents regarding plaintiff and making a draft of his findings. During this time," }, { "docid": "372923", "title": "", "text": "jury, correctly instructed, awarded a verdict against Defendant that is supportable from the evidence adduced.” In New York Times and Gertz, the Supreme Court enunciated the burden of proof imposed upon a public figure in pursuing a claim of defamatory falsehood as “actual malice” established by clear and convincing evidence that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for the truth. Justice Harlan’s opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967) observed that public figures “were permitted to recover in libel only when they could prove that the publication involved was deliberately falsified, or published recklessly despite the publisher’s awareness of probable falsity. Investigatory failures alone were held insufficient to satisfy this standard.” The year following the Butts decision, the Supreme Court in St. Amant v. Thompson, 390 U.S. at 732, 88 S.Ct. at 1326 declared that the “finder of fact must determine whether the publication was indeed made in good faith.” The court proceeded to elaborate by explaining that sufficient proof must support the conclusion that the defendant in fact entertained serious doubts as to the truth of its publication and that [professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Id. (emphasis added) (footnote omitted). The Court emphasized that malice depended upon a showing that the defendant acted with improper motive — an evidentiary subjective pursuit calculated to probe the defendant’s state of mind in an effort to disclose the intent or purpose for the publication which, in turn, depended squarely upon credibility assessments best determined by a jury as ultimate factfinders after visually" } ]

[ { "docid": "22879814", "title": "", "text": "Because Smith could not identify an alternate source of Pawlowski’s alleged political enmity toward him, the Court concluded that Smith lacked admissible evidence that Pawlowski considered Smith a political adversary. It therefore entered summary judgment for Pawlowski and the City on all claims. This timely appeal followed. II. Discussion Smith appeals the District Court’s grant of summary judgment on both his ADEA and First Amendment claims. We exercise plenary review over an appeal from a grant of summary judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir.2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c)). “In making this determination, we must consider the evidence in the record in the light most favorable to the nonmoving party.” Id. A. Age Discrimination The District Court disposed of Smith’s age discrimination claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which we have applied to ADEA claims. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (describing the prima facie showing that a plaintiff must make under McDonnell Douglas, as applied to an ADEA claim). Under McDonnell Douglas, the plaintiff bears the burden of proof and the initial burden of production, having to demonstrate a prima facie case of discrimination by showing first, that the plaintiff is forty years of age or older; second, that the defendant took an adverse employment action against the plaintiff; third, that the plaintiff was qualified for the position in question; and fourth, that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir.2004). Once the plaintiff satisfies these elements, the burden of production shifts to the employer to identify a legitimate non-discriminatory reason for the adverse employment action. Keller, 130 F.3d at 1108. If the employer does so, the burden of production" } ]

[ { "docid": "21202978", "title": "", "text": "court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. II. The McDonnell Douglas Framework Plaintiff claims discrimination under Title VII, which makes it unlawful for a federal government employer to discriminate “based on race, color, religion, sex, or national origin.” 42 U.'S.C. § 2000e-16(a). The Court analyzes plaintiffs disparate treatment and hostile work environment claims under Title VII pursuant to the familiar 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). First, a plaintiff has the burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Id. at 802, 93 S.Ct. 1817; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to make out a prima facie case of discrimination, a plaintiff must show that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999)). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411" }, { "docid": "1381866", "title": "", "text": "the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by “ ‘informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. B. The McDonnell Douglas Framework A plaintiff has the burden of establishing a .prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To establish a prima facie case of discrimination, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); Stella" }, { "docid": "16813934", "title": "", "text": "We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). ANALYSIS As a threshold matter, we recognize that claims of discrimination brought pursuant to Title VII, 42 U.S.C. § 2000e et seq., and the ADEA, 29 U.S.C. § 621 et seq., are analyzed under the same framework. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). We follow the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) burden-shifting analysis, which requires a plaintiff first to establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. To establish a prima facie case, a plaintiff must show (1) “that [s]he is a member of a protected group,” (2) “that [s]he was subject to an adverse employment decision,” (3) “that [s]he was qualified for the position,” and (4) “that [s]he was replaced by a person outside of the protected class.” Kline v. Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir.1997) (citing Mitchell, 964 F.2d at 582). In disparate treatment cases, the fourth element may be replaced with the requirement that the plaintiff show she was treated differently from similarly-situated individuals. Mitchell, 964 F.2d at 582-83." }, { "docid": "11740165", "title": "", "text": "a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “[t]he mere existence of a scintilla of evidence” in support of a nonmoving party’s position is not sufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. B. Legal Standard for Age Discrimination and Retaliation Claims Discrimination claims made pursuant to ADEA and DCHRA are analyzed in the same way as Title VII claims. See Ford v. Mabus, 629 F.3d 198, 201 (D.C.Cir. 2010) (ADEA); Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C.Cir.2011) (DCHRA). First, a plaintiff must estab lish “a prima facie case of discrimination by a preponderance of the evidence.” Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A plaintiff establishes a prima facie case of discrimination in the context of termination of employment by demonstrating that “that he belongs in the statutorily protected age group, he was qualified for the position, he was terminated, and he was disadvantaged in favor of a younger person.” Hall v. Giant Food, 175 F.3d 1074, 1077 (D.C.Cir.1999). Once a plaintiff has established a prima facie case, “the employer must then articulate a legitimate, nondiscriminatory reason for its actions.” Id. “Once an employer has offered a legitimate reason for an employee’s dismissal, the question at the summary judgment stage is whether the employee has ‘produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee....’” Vatel, 627 F.3d at 1246 (quoting Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008)). A court analyzes retaliation claims in a similar manner. Once a defendant has proffered a legitimate, nondiscriminatory reason for whatever adverse action occurred, the court asks whether a reasonable jury could infer a retaliatory motive from the evidence “either directly by showing that a [retaliatory]" }, { "docid": "23164431", "title": "", "text": "Standard Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demon strate the absence of a genuine issue of material fact.” Id. (quoting Fed.R.Civ.P. 56(c)). In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant’s statements as true and accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. B. The McDonnell Douglas Framework The Court analyzes Lester’s discrimination and retaliation claims based on race pursuant to the familiar burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, a plaintiff has the burden of establishing a prima facie case of discrimination" }, { "docid": "13491821", "title": "", "text": "moving party is entitled to judgment as a matter of law. Fed. R. Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, we must draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When considering an unopposed motion for summary judgment, we determine de novo whether the facts as presented by the movant establish that the movant met its initial burden under Rule 56. Cacevic, 226 F.3d at 491. The ADEA prohibits an employer from failing or refusing to hire any individual because of such individual’s age. 29 U.S.C. § 623(a)(1). A plaintiff may establish a violation of the ADEA through the use of direct or circumstantial evidence. Provenzano, 663 F.3d at 811. Age discrimination claims based on circumstantial evidence are governed by the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir.2009). In the first step, the plaintiff employee must establish a prima facie case of discrimination; if this burden is met, the employer must respond by articulating a legitimate, nondiscriminatory reason for the challenged adverse employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817. If the employer meets its burden, then the plaintiff must rebut the proffered reason by showing that it was pretext intended to mask discrimination. Id. at 804, 93 S.Ct. 1817. All ADEA plaintiffs must carry the burden of persuasion and demonstrate that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). After reviewing the record, we believe that the FAA met its burden under Rule 56, so that the district court’s grant" }, { "docid": "22052872", "title": "", "text": "(1987). Summary judgment is appropriate only when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.P. 56(c) (1994). When the moving party (here, J & H) does not bear the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the non-moving party’s (here, Sempier’s) evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Thereafter, the nonmov-ing party creates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable jury to find for him at trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the record, the court must give the nonmoving party the benefit of all reasonable inferences. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir.1993); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.1992); Chipollini, 814 F.2d at 900; see also id. at 901 (discussing the impropriety of credibility de terminations on summary judgment); Josey, 996 F.2d at 639 (same). B. Sempier prosecuted his case on the “pretext” theory announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and later clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). As applied to ADEA cases, the plaintiff establishes a prima facie case by showing that (1) he is over 40, (2) he is qualified for the position in question, (3) he suffered an adverse employment decision, and (4) he was replaced by a sufficiently younger person to create an inference of age discrimination. Chipollini, 814 F.2d at 897. This showing creates a presumption of age discrimination that the employer must rebut by stating a legitimate nondiscriminatory reason for the" }, { "docid": "5801208", "title": "", "text": "on this claim. B. Plaintiffs Cross-Appeal Plaintiff limits his cross-appeal to the district court’s entry of summary judgment in favor of all of the defendants with respect to his claims that he was not reassigned to be the head basketball coach either (1) because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a), and the Tennessee Human Rights Act (THRA), Tenn.Code Ann. § 4-21-401(a); or (2) in retaliation for engaging in protected activity in violation of 42 U.S.C. § 1981. In the absence of direct evidence of either age discrimination or retaliation, plaintiff relied on the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256-59, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In this case, the district court found that plaintiff could make the prima facie showing for age discrimination and retaliation, but found that the evidence was not sufficient to lead a reasonable juror to conclude that the proffered reasons were a pretext either for unlawful discrimination or for retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A genuine issue of fact exists only when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). ' 1. Age Discrimination To establish a prima facie case of age discrimination under the ADEA, plaintiff must show that (1) he was at least 40 years old at the time of the alleged discrimination, (2) he was subjected to an adverse employment action, (3) he was otherwise qualified for the position, and (4) he was rejected and someone outside the protected class was selected. Burzynski v. Cohen, 264 F.3d 611, 621-22 (6th Cir.2001). Once the plaintiff makes this showing, the burden of production shifts to the defendant to articulate a nondiscriminatory reason for its action. Id. at 622. When the defendant" }, { "docid": "16450887", "title": "", "text": "review the District Court’s grant of summary judgment de novo. Jackson v. Ark. Dep’t of Educ., Vocational and Technical Educ. Div., 272 F.3d 1020, 1025 (8th Cir.2001). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admission 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 nonmoving party is entitled to benefit of all reasonable inferences to be drawn from the underlying facts in the record.” Widoe v. Dist. #111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir.1998). However, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. Erenberg’s hostile work environment claims are evaluated under the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir.1999); Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn.2001) (applying the McDonnell Douglas analysis to civil rights claims under the Minnesota Human Rights Act). Under this framework, the plaintiff first must demonstrate a prima facie case of discrimination. Breeding, 164 F.3d at 1156. If, and only if, the Plaintiff makes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its employment decision. Id. at 1157. If the employer successfully demonstrates a" }, { "docid": "6477975", "title": "", "text": "entitled to judgment as a matter of law.”, Fed.R.Civ.P. 56(a). A dispute is “genuine” “where the ‘evidence is such that a reasonable jury could return a verdict, for the non-moving party,’ a situation separate and distinct from a case where the evidence is ‘so one-sided that one party must prevail as a matter of law.’ ” Dozier-Nix v. District of Columbia, 851 F.Supp.2d 163, 166 (D.D.C.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). To survive a motion for summary judgment, the nonmoving party “must provide evidence showing that there is a triable issue as to\" an element essential to that party’s claim.” Arias v. DynCorp, 928 F.Supp.2d 1, 5, Civil Action No. 01-1908(RWR), 2013 WL 864566, at *3 (D.D.C. Feb. 6, 2013) (internal quotation marks omitted); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In considering a motion for summary judgment, a court accepts as true the nonmovant’s evidence and draws all “justifiable inferences ... in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. I. DISPARATE TREATMENT Title VII disparate treatment claims are analyzed under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The same framework applies to age discrimination claims. See Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984). A plaintiff making a disparate treatment claim carries the initial burden to establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To do so, “a plaintiff must show [ (1) ] that he ‘is a member of a protected class,’ [ (2) ] that he ‘suffered an adverse employment action,’ and [ (3) ] that ‘the unfavorable action gives rise to an inference of discrimination.’ ” Youssef v. FBI, 687 F.3d 397, 401 (D.C.Cir.2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002)); see also Cuddy v. Carmen, 694 F.2d 853, 857 (D.C.Cir.1982) (discussing a plaintiffs initial burden in an ADEA case). “An ‘adverse employment action’ ... is ‘a significant change in employment status, such as" }, { "docid": "8896785", "title": "", "text": "also failed, specifically finding that his claim that he was disciplined in retaliation was subsumed by his wrongful termination claim. Barber appeals. II. Discussion We review a district court’s decision to grant summary judgment de novo. Wingate v. Gage Cnty. Sch. Dist., No. Sip, 528 F.3d 1074, 1078 (8th Cir.2008). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Although the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Wingate, 528 F.3d at 1078-79. “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Barber’s claims of discrimination and retaliation are properly analyzed under the same legal framework whether brought under Title VII or ACRA. See Burkhart v. Am. Railcar Indus., Inc., 603 F.3d 472, 477 (8th Cir.2010); Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n. 3 (8th Cir.2000). Because we agree with the district court that Barber did not present direct evidence of either discrimination or retaliation, we analyze Barber’s claims under the familiar burden-shifting framework of McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817. See Wierman, 638 F.3d at 993. A. Racial Discrimination Under McDonnell Douglas, Barber must first establish a prima facie case of discrimination. A prima facie case of discrimination requires showing that he is a member of a protected group; he was qualified for his position; he suffered an adverse employment action; and the adverse action occurred under circumstances giving rise to an inference of discrimination. Id. If Barber establishes a prima facie case, the burden shifts to Cl to articulate a nondiscriminatory, legitimate basis for the challenged actions." }, { "docid": "8263227", "title": "", "text": "material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a genuine issue of fact exists, the court must “con strue the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aero., Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003). Summary judgment is appropriate when “the nonmoving party [fails] to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[A] plaintiff must provide more than eon-clusory allegations to resist a motion for summary judgment.” Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008). I. Discrimination The standard for analyzing discrimination claims brought under the New York Human Rights Laws is the same as the federal standard for analyzing discrimination claims pursuant to Title VII of the Civil Rights Act of 1964. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n. 3, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To meet this burden, plaintiff must show “(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Holcomb, 521 F.3d at 138. “[T]he prima facie ease ‘raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration" }, { "docid": "10522445", "title": "", "text": "review a grant of summary judgment cie novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076 (8th Cir.1980). The nonmoving party may not merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981). Discriminatory discharge claim Because Ghane’s discrimination claim is based upon inferences to be drawn from circumstantial evidence, it is governed by the three-stage burden-shifting pretextanalysis set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas); see also Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir.1996). Under the McDonnell Douglas framework, the plaintiff bears the burden of establishing a prima facie case of discrimination, which has the effect of creating a legal presumption of unlawful discrimination. If the plaintiff establishes a prima facie case, then the defendant must proffer some legitimate nondiserimina-tory reason for the adverse employment action. If the defendant meets this burden of production, the presumption created by the prima facie case is rebutted and drops from the case. The burden then shifts back to the plaintiff to show that the employer’s legitimate nondiscriminatory reason" }, { "docid": "23271571", "title": "", "text": "be affirmed if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence and inferences must be construed in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). 2. Age Discrimination Claims under the ADEA are typically analyzed within the framework set forth in McDonnell Douglas Corp. v. Green, 477 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (explaining the burden-shifting format). See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (modifying the McDonnell Douglas framework for an ADEA case). Under the modified McDonnell Douglas framework, a plaintiff first must establish a prima facie case by showing that (1) he was at least 40 years old at the time of the alleged discrimination, (2) he was subjected to an adverse employment action, (3) he was otherwise qualified for the position, and (4) the successful applicant was substantially younger than the plaintiff. See Barnett v. Department of Veterans Affairs, 153 F.3d 338, 341 (6th Cir.1998). If the plaintiff establishes a prima facie case, the burden of production then shifts to the defendant to produce evidence of a non-discriminatory reason for its action. See Barnett, 153 F.3d at 341. If the defendant can come forth with such a reason, the burden returns to the plaintiff to demonstrate that the defendant’s proffered reason is pretextual. See id. a. Bush’s Prima Facie Case The district court found that Bush easily satisfied the first two factors; i.e., Bush was within the protected class because of his age, and he was both demoted and terminated, each of which is clearly an adverse employment action. The district court also found, without explanation, that Bush was “otherwise qualified” for the job he held. This court has not addressed the precise requirements for satisfying this third factor, and we decline" }, { "docid": "14167267", "title": "", "text": "summary judgment motion, concluding that, even if Ruby had made a prima facie case of discrimination, Springfield had provided nondiscriminatory reasons for its adverse actions against Ruby, and that Ruby had failed to come forward with any evidence to support a finding that Springfield's reasons were pre-textual. II. We review a grant of summary judgment de novo. Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir.1995). A grant of summary judgment is proper if, taking all facts and reasonable inferences from facts in the light most favoraNe to the nonmo'ving party, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.P. 56(c). While a defendant who moves for summary judgment has the burden of showing that there is no genuine issue of fact for trial, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986), a nonmoving party may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Tindle, 56 F.3d at 969 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). Ruby's racial discrimination claims are analyzed under the framework of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A plaintiff must present a prima facie case of racial discrimination: that he was a member of a protected class, that he was qualified for the position, and that despite his qualification he was displaced from the position. See McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.1995) (applying McDonnell Douglas). The defendant may rebut plaintiffs prima facie case by demonstrating a legitimate, nondiscriminatory reason for adverse action against plaintiff. Id. Finally, plaintiff may prove that defendant's proffered reasons are a pretext for ifiegal discrimination. Id. Ruby's retaliation claims are also analyzed under this shifting burden framework; see Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981)." }, { "docid": "10338931", "title": "", "text": "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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment should seldom be granted in employment discrimination cases because intent is often the central issue and claims are often based on inference. Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir.2004); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999); see also Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir.2000) (collecting cases). Summary judgment should not be granted unless the evidence could not support any reasonable inference of discrimination. Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 486-87 (8th Cir.1998). II. Age and Gender Discrimination Peterson has not' presented direct evidence of discrimination; we analyze her discrimination and retaliation claims using the familiar three-step, burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Applying this framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. The prima facie case raises a legal presumption of discrimination in the plaintiffs favor, requiring the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id.; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff then has the opportunity to demonstrate that the defendant’s proffered reasons are in fact a mere pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (clarifying that a plaintiff must show that the employer’s proffer is a pretext for unlawful discrimination, not that it is merely false in some way). The evidence supporting the plaintiffs prima facie case may suffice to discredit the defendant’s explanation, and the plaintiff is not required in all cases to introduce additional evidence to meet the burden of proof. Burdine, 450 U.S. at 255" }, { "docid": "23164432", "title": "", "text": "Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. B. The McDonnell Douglas Framework The Court analyzes Lester’s discrimination and retaliation claims based on race pursuant to the familiar burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, a plaintiff has the burden of establishing a prima facie case of discrimination or retaliation by a preponderance of the evidence. Id. at 802, 93 S.Ct. 1817; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to make out a prima facie case of discriminatory failure to promote, for example, a plaintiff must show that he is a member of a protected class; that he applied and was qualified for the promotion at issue; that despite his qualification, he was rejected; and that, after his rejection, the position remained open and the employer continued to seek applicants who were no more qualified than plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The prima facie case requirement was recently articulated by this Circuit as follows: “a plaintiff [must] state a prima facie claim of discrimination by establishing that: ‘(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.’ ” Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002) (quoting" }, { "docid": "13075022", "title": "", "text": "matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of persuasion on the relevant issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party may survive a motion for summary judgment by producing “evidence from which a jury might return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the motion is supported by affidavits, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Cray Communications v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir.1994) (moving party on summary judgment motion can simply argue the absence of evidence by which the non-movant could prove her case), cert. denied, 513 U.S. 1191, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995). In considering the evidence, all reasonable inferences are to be drawn in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the [fact-finder] could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. Lacking direct evidence of discrimination, Plaintiff must satisfy the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to prevail on her Title VII and ADA claims. First, Plaintiff must establish by a preponderance of the evidence a prima facie ease of discrimination. If Plaintiff meets the low burden of establishing a prima facie case by a preponderance of the evidence, an inference of discrimination arises, and the burden of production shifts to Defendant to offer legitimate, non-discriminatory reasons for the allegedly discriminatory acts. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets its burden of articulating a legitimate, non-discriminatory reason for the adverse employment action, the McDonnell Douglas presumption disappears. Id. at 255 n. 10, 101 S.Ct." }, { "docid": "14298224", "title": "", "text": "review a district court’s grant of summary judgment de novo, applying the same standards as the district court. McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.1995). We will affirm the summary judgment if the evidence, viewed in the fight most favorable to Baucom, demonstrates there is no genuine issue as to any material fact and Holiday is entitled to judgment as a matter of law. Id. There is no genuine issue of material fact if the evidence is such that a reasonable jury could not return a verdict for Baucom. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Baucom may not rely on “mere allegations,” but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Furthermore, summary judgment must be entered against Baucom if he “fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] bear[s] the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Without direct evidence of discrimination, ADA, ADEA, and MHRA claims are evaluated under the McDonnell Douglas burden shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.2003); Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir.2003). Under this framework, the employee bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s actions. Id. If the employer articulates such a reason, the burden returns to the employee to show the employer’s justi fication is a pretext. Id. at 804, 93 S.Ct. 1817. Under the ADA, ADEA, and MHRA, a necessary element of establishing a prima facie case of discrimination is setting forth facts demonstrating the employee suffered an adverse employment action. Chambers, 351 F.3d at" }, { "docid": "9794638", "title": "", "text": "in his favor. Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. 2505. However, we must “remain mindful ‘that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based.’ ” Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003) (citing Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999)). “In the absence of evidence of direct discrimination, ADA claims are evaluated by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1044 (8th Cir.2005). Under this framework, an employee must first establish a prima facie case of discrimination: (1) an ADA-qualifying disability; (2) qualifications to perform the essential functions of his position with or without a reasonable accommodation; and (3) an adverse action due to his disability. Kincaid v. City of Omaha, 378 F.3d 799, 804 (8th Cir.2004). Once the employee establishes a prima facie case, the employer must proffer a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer proffers such a reason, the employee must respond and show that the proffered reason is merely a pretext for discrimination. See id. at 803, 93 S.Ct. 1817. The district court determined that Bass failed to establish a prima facie case, as he could not perform the essential functions of his job. An employee is qualified for a job when (1) he meets the necessary prerequisites for the job, including training, education, and experience; and (2) can perform the essential" } ]

[ { "docid": "12085813", "title": "", "text": "discussion of these claims. ii. Appellant claims that the district court erred in denying his motion to suppress the white bag containing the cocaine and the statements he made to Middletown Police Officers following his arrest. The evidence was improperly obtained, he claims, because the officers lacked probable cause to stop the Denaj car and to arrest appellant. Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). In other words, we consider the totality of the circumstances in evaluating whether the government demonstrated a sufficient “ ‘[probability ... of criminal activity,’” id. at 1023-24 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)). “Probability is the touchstone.... [T]he government need not show ‘the quantum of proof necessary to convict.’ ” Id. at 1023 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978)). We review the district court’s finding of probable cause under the clearly erroneous standard. Id. at 1024. Our conclusion that the police officers lawfully stopped the Denaj vehicle is based primarily on the nature of the case, in which police officers were closely involved in the development of the crime. Denaj had volunteered to corral another criminal with the hope that he would receive favorable treatment in his own drug case, and the officers therefore had reason to believe that he would not lead them on a wild goose chase — particularly since Denaj had planned an elaborate scenario in which he would be involved to the end. If at any point it seemed the transaction would not take place as Denaj had promised, it would have been in his interest to tell the officers. Instead, he traveled along the prearranged route to Middletown, indicating that cocaine was in the car." } ]

[ { "docid": "12066721", "title": "", "text": "in order to establish that probable cause existed for such an arrest, the government “need not present the quantum of proof necessary to convict.” Id. See also United States v. Morris, 977 F.2d 677, 684 (1st Cir. 1992) (same), cert. denied, — U.S.-, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993); United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (same). Rather, it need only show that, at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. Id.; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The arrests of Leon and Diaz clearly met these standards. Both Leon and Diaz had been observed on the evening prior to their arrest engaging in what appeared to be a drug deal. They were apprehended the following day returning to an area of the hotel which had recently been searched and which yielded large quantities of drugs, drug paraphernalia, and firearms. Finally, they admitted knowing members of the group who had been arrested earlier in the day. In total, the circumstances of this case indicate that the arresting officers had probable cause to believe that both Leon and Diaz had committed or were committing an offense. Therefore, their arrest was lawful. Moreover, it is well established that “[i]f an arrest is lawful, the arresting officers are entitled to search the individual apprehended pursuant to that arrest.” Uricoechea-Casallas, 946 F.2d at 165. Accordingly, the district court did not err in admitting the evidence recovered in that search. We have carefully considered all defendants’ other claims and find them to be without merit. III. CONCLUSION For the foregoing reasons, the convictions of Torres-Maldonado and Gotay-Colon under 18 U.S.C. § 924(c)(1) are vacated. All other convictions and sentences are affirmed, . Nieves-Burgos, convicted below, is not a party to this appeal. . Ramirez-Rivera, convicted below, is not a party to this appeal. . The parties agree that the exclamation was in Spanish, not" }, { "docid": "23679311", "title": "", "text": "suggestion that he should be allowed to raise as a defense a pretextual basis for the arrest which he expressly disavows. C.f. Wagenmann, 829 F.2d at 206 (jury entitled to reject pretextual bases for arrest). Even, however, if the snowball incident had been the basis for the arrest, a directed verdict on the common law claim would not have been justified. The evidence showed a dispute over whether all of the requirements for a lawful warrantless arrest, other than probable cause, were met in this case. Although the snowball throwing might constitute a breach of the peace if it were recklessly done, there is a dispute over whether any officer actually witnessed the throw. In addition, on plaintiffs version of the facts, a considerable time elapsed between the throwing of the snowball and the arrest. It was therefore disputed whether the alleged offense was continuing or whether the act and arrest could be said to form “one transaction.” The jury, therefore, could have found that, under Massachusetts law, the officers could not legally arrest Santiago for the snowball incident, regardless of the presence of probable cause. This leaves us with the original and only asserted basis for the arrest — that Santiago had pushed or struck an officer and had made loud and obscene noises. A determination of probable cause rests on “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Here, the evidence would have permitted a jury to find that the officers lacked probable cause to arrest Santiago for allegedly abusive conduct. Santiago and his witnesses testified that he never pushed or struck Rivera nor used loud and obscene language. The jurors could have believed plaintiff’s version of what occurred, and as a result could have found" }, { "docid": "10423763", "title": "", "text": "the government “need not present the quantum of proof necessary to convict.” Id. at 105 (quoting Uricoechea-Casallas, 946 F.2d at 165). See also United States v. Morris, 977 F.2d 677, 684 (1st Cir.1992) (same), cert. denied, — U.S. -, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993); United States v. Figueroa, 818 F.2d 1020,1023 (1st Cir.1987) (same). Rather, it need only show that at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. Torres-Maldonado, 14 F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Of course, probable cause must exist with respect to each person arrested, and “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968)); see also United States v. Diallo, 29 F.3d 23, 25 (1st Cir.1994). Rather, “some additional circumstances from which it is reasonable to infer participation in criminal enterprise must be shown.” United States v. Burrell, 963 F.2d 976, 986 (7th Cir.), cert. denied, — U.S.-, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992) (quoting United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984)). In assessing the significance of a defendant’s association to others independently suspected of criminal activity, the Hillison court looked to whether the known criminal activity was contemporaneous with the association and whether the circumstances suggest that the criminal activity could have been carried on without the knowledge of all persons present. See Hillison, 733 F.2d at 697 (citations omitted). Other courts have focused on the nature of the place in which the arrest occurred and whether the individual himself was behaving suspiciously or was merely “tainted” by another. See United States v. Tehrani, 49 F.3d 54, 59 (2d Cir.1995). A survey" }, { "docid": "23679312", "title": "", "text": "for the snowball incident, regardless of the presence of probable cause. This leaves us with the original and only asserted basis for the arrest — that Santiago had pushed or struck an officer and had made loud and obscene noises. A determination of probable cause rests on “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Here, the evidence would have permitted a jury to find that the officers lacked probable cause to arrest Santiago for allegedly abusive conduct. Santiago and his witnesses testified that he never pushed or struck Rivera nor used loud and obscene language. The jurors could have believed plaintiff’s version of what occurred, and as a result could have found no probable cause for the arrest. We therefore hold that the jury could have found a violation of Santiago’s Fourth Amendment right to be free from unreasonable seizure of the person and his common law right to be free from false arrest and imprisonment. 2. Immunity Mackler argues that the district court nevertheless properly granted him a directed verdict on the false arrest claims because he is entitled to immunity under both state and federal law. a. State Immunity Mackler asserts that he is immune from suit for the state tort of false arrest under Mass.Gen.L. ch. 263, § 3. That statute provides: No action, except for use of excessive force, shall lie against any officer other than the arresting officer, by reason of the fact that, in good faith and in the performance of his duties, he participates in the arrest or imprisonment of any person believed to be guilty of a crime unless it can be shown that such officer in the performance of his duties took an active part in the arrest" }, { "docid": "7204625", "title": "", "text": "search, provided that they have probable cause to do so. Consequently, the issue before us reduces to whether the facts and circumstances within the agents’ knowledge at the time of Winchenbach’s arrest were sufficient to yield probable cause. Like the district court, see Winchenbach, 31 F.Supp.2d at 165, we conclude that they were. Prior opinions guide this inquiry. We begin with bedrock: probable cause to effect an arrest does not require the same level of certitude or quantum of proof that is necessary to convict. See United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987). Instead, probable cause exists when, “at th[e] moment [the arrest is made,] the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [individual] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). For this purpose, the “fellow officer” rule applies, so that as a general matter (subject to exceptions not pertinent here), the focus is upon the collective knowledge possessed by, and the aggregate information available to, all the officers involved in the investigation. See Meade, 110 F.3d at 193-94. We need not dwell on generalities. In the last analysis, probable cause requires practical, context-specific determinations, made case by case, that give due weight to the totality of the circumstances and the trial court’s superior coign of vantage. See Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988). If the circumstances supportably found “warrant the officer’s reasonable belief that the action taken is appropriate, the arrest is justified.” Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir.1997). Thus, the dispositive question here is whether the officers’ collective knowledge at the moment of the arrest justified a prudent person in believing that the appellant had distributed cocaine. Having reviewed the stipulated record with care, we find the answer to this question readily apparent. The MDEA had received several tips that the" }, { "docid": "3214797", "title": "", "text": "favor.” LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). A. Nuon’s Motion for Summary Judgment Counts I and III, Probable Cause for the Arrest Under the Fourth Amendment to the United States Constitution, the right to be free from unreasonable searches gives rise to a requirement that an arrest be supported by probable cause. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause exists where “the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck, 379 U.S. at 91, 85 S.Ct. 223). The exact degree of certainty required to establish probable cause is difficult to quantify, but it falls somewhere between bare suspicion and what would be needed to justify conviction. Burke v. Town Of Walpole, 405 F.3d 66, 80 (1st Cir.2005) (citing Valente v. Wallace, 332 F.3d 30, 32 (1st Cir.2003)). Probable cause is evaluated as of the moment an arrest is made, based on the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information. Beck, 379 U.S. at 91, 85 S.Ct. 223. The probable cause analysis entails “ ‘an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ and not of the officer’s actual state of mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S. 463, 470-471, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)). Where “there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them,” the existence of probable cause for an arrest is an issue for the jury; on the other hand, where the historical facts are established or undisputed, the issue becomes a mixed question of law and fact" }, { "docid": "13160988", "title": "", "text": "committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Of course, the government need not prove beyond a reasonable doubt that a suspect has committed an offense prior to making a warrantless arrest, Figueroa, 818 F.2d at 1023; United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979), but need only make an objective showing that as a matter of probabilities, the defendant was involved in the criminal activity for which he was arrested. Figueroa, 818 F.2d at 1023-24; United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977). The probabilities in this case weigh in the government’s favor. On the night of September 3, 1985, after Leal’s codefendants had been arrested, they provided the Ponce Police Department and the customs officers with descriptions of Leal. Serra described him as “Venezuelan, white, brown hair, tall, thin ... and approximately 40 years old,” while Albertorio described “Aldo” as a “Venezuelan, white, brown hair, brown eyes and 5'9\"-5'll\" [in] height and approximately 39-49 years of age.” Moreover, prior to arresting Leal, the officers had been informed by Serra and Albertorio that Leal was registered in the Holiday Inn Hotel under the name “Aldo J. Leal,” as the hotel register ultimately reflected. These descriptions and information provided by Leal’s codefendants immediately after their arrest, were \"sufficient in themselves to warrant a man of reasonable caution in the belief that the suspect had committed or was committing an offense.” United States v. Baldacchino, 762 F.2d 170, 175 (1st Cir.1985) (citing Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). IV. We will affirm Leal’s judgment of sentence ordered by the district court on January 25, 1985. . 21 U.S.C. § 952 provides, in pertinent part, as follows: Importation of controlled substances It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or" }, { "docid": "14281135", "title": "", "text": "record does not show either directly or indirectly that either Massachusetts or Maine was mentioned on the tapes of the recorded conversations. And the agents testifying at the hearing stated they had not seen any drugs or money change hands. IV. The Defendant’s Argument The defendant asserts that there was no probable cause for the police to arrest him, search his motor vehicle, and seize therefrom $10,981 and a cellular telephone. A warrantless arrest, like the one at issue here, must be based on probable cause. See United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Link, 238 F.3d 106, 109 (1st Cir.2001); United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994). Generally, if an arrest is not based on probable cause, then statements and evidence obtained as a result of the arrest are inadmissible. See Brown v. Illinois, 422 U.S. 590, 601-02, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Jorge, 865 F.2d 6, 9-10 (1st Cir.1989). In United States v. Santana, 895 F.2d 850, 852 (1st Cir.1990), a case very similar to this one, probable cause was defined as follows: Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). In other words, we consider the totality of the circumstances in evaluating whether the government demonstrated a sufficient “ ‘[probability ... of criminal activity,’ ” Id. at 1023-24 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Probability is the touchstone.... [T]he government need not show ‘the quantum of proof necessary to convict.’ ” Id. at 1023 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st" }, { "docid": "5358033", "title": "", "text": "In response to officer González-Serrano's inquiry, he answered that he was not from San Sebas-tián, at which time he was placed under arrest. This person was later identified as Logrofio-Cruz. The other, later identified as appellant Tormes-Ortiz, was using a public telephone a few feet away from Lo-grofio-Cruz. As the officer was arresting Logrofio-Cruz, the latter repeatedly glanced toward Tormes-Ortiz. Observing this, Officer González-Serrano ordered the arrest of Tormes-Ortiz. Several documents and a pager were seized from Tormes-Ortiz' person. Appellant Tormes-Ortiz argues that the arresting officer lacked probable cause to carry out his arrest without a warrant. Therefore, appellant maintains that any evidence obtained as a result of his arrest should have been suppressed. The constitutionality of a warrantless arrest “depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Probable cause is determined under an objective standard, United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987), and the government need not show “the quantum of proof necessary to convict.” Id. Moreover, probability, and not a prima facie showing of criminal activity, is the standard of probable cause. Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). We must also keep in mind that probability should not be reduced to a neat set of rules, but assessed according to the particular factual context. Figueroa, 818 F.2d at 1024. Within this legal framework we must now examine the circumstances surrounding Tormes-Ortiz’ arrest in June, 1988. We note again that the findings of the district court are binding unless clearly erroneous. United States v. Wiseman, 814 F.2d 826, 828 (1st Cir.1987). Here the arresting officers undertook a lengthy and weary search for the drug offenders who had fired at them earlier in" }, { "docid": "10423762", "title": "", "text": "transpired during an incident by virtue of its ability to see and hear the witnesses who have firsthand knowledge of the events. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994). Questions of law, however, are subject to de novo review. Id. B. Applicable Law Law enforcement officers may effect warrantless arrests provided that they have probable cause to believe that the suspect has committed or is committing a crime. United States v. Watson, 423 U.S. 411, 416-18, 96 S.Ct. 820, 824-25, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113—14, 95 S.Ct. 854, 862-63, 43 L.Ed.2d 54 (1975). “[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts,” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983), and as such “must be evaluated in light of the totality of circumstances.” United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.1994) (quoting United States v. Uricoechea-Casal-las, 946 F.2d 162, 165 (1st Cir.1991)). Moreover, in order to establish probable cause, the government “need not present the quantum of proof necessary to convict.” Id. at 105 (quoting Uricoechea-Casallas, 946 F.2d at 165). See also United States v. Morris, 977 F.2d 677, 684 (1st Cir.1992) (same), cert. denied, — U.S. -, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993); United States v. Figueroa, 818 F.2d 1020,1023 (1st Cir.1987) (same). Rather, it need only show that at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. Torres-Maldonado, 14 F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Of course, probable cause must exist with respect to each person arrested, and “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing Sibron v. New York," }, { "docid": "9540716", "title": "", "text": "violations of his sequestration order, and the denial of defendants’ motion for a mistrial based on the jury’s view of defendants Termini and Ardizzone in handcuffs while in the custody of marshals. II. Ayres argues that the trial court should have suppressed his statements in which he admitted involvement in the smuggling operation. At trial, the court did order that testimony about incriminating statements made by Ayres at the breachway be stricken because the comments were made while Ayres was handcuffed and a police officer stood over him with a rifle. The judge left it to the jury to decide whether the subsequent statements made by Ayres at the police station were voluntary. Ayres contends that these statements also should have been excluded as a product of an arrest made without probable cause. Ayres further argues that his statements at the police station were the unattenuated taint of his prior involuntary statements at the breachway. We turn first to Ayres’s contention that he was arrested without probable cause. A warrantless arrest is constitutionally valid if “at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Whether there is probable cause for a warrantless arrest is determined under an objective standard, not by inquiry into the officers’ presumed motives. United States v. McCambridge, 551 F.2d 865, 870 (1st Cir. 1977). To sustain a warrantless arrest, the Government is not required to show that the arresting officer had “the quantum of proof necessary to convict.” United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979). Probable cause “is a practical, nontechnical conception” offering an acceptable compromise between competing societal interests in protecting citizens on the one hand from abusive interferences with" }, { "docid": "13160987", "title": "", "text": "a suppression hearing by failing to move for such a hearing prior to the commencement of his trial. See United States v. Gomez, 770 F.2d 251, 253 (1st Cir.1985); United States v. Barletta, 644 F.2d 50, 54 (1st Cir.1981). The decision to grant or deny Leal relief under Fed.R.Crim.P. 12(f) rests in the district court’s sound discretion and may not be overturned by this court absent a showing of abuse. Gomez, 770 F.2d at 253. Here, no such abuse has been shown. Moreover, even had Leal preserved this issue for appeal, which he did not, the district court properly found probable cause for Leal’s arrest, thus making the search incident to that arrest lawful. “The constitutionality of a warrantless arrest ‘depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Of course, the government need not prove beyond a reasonable doubt that a suspect has committed an offense prior to making a warrantless arrest, Figueroa, 818 F.2d at 1023; United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979), but need only make an objective showing that as a matter of probabilities, the defendant was involved in the criminal activity for which he was arrested. Figueroa, 818 F.2d at 1023-24; United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977). The probabilities in this case weigh in the government’s favor. On the night of September 3, 1985, after Leal’s codefendants had been arrested, they provided the Ponce Police Department and the customs officers with descriptions of Leal. Serra described him as “Venezuelan, white, brown hair, tall, thin ... and approximately 40 years old,”" }, { "docid": "1703112", "title": "", "text": "U.S. at 343, 341, 106 S.Ct. at 1097, 1096). The officers are therefore entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992); Prokey, 942 F.2d 67, 72 (1st Cir.1991); Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985). Under the Fourth Amendment, the right to be free from unreasonable seizures of the person gives rise to a.requirement that arrests be supported by probable cause. See, e.g., Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 224, 13 L.Ed.2d 142 (1964). As the Court explained in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963): It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion ..., though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would “warrant .a man of reasonable caution in the belief” that a felony has been committed ... — must be measured by the facts of the particular case. Id. at 479, 83 S.Ct. at 413 (citations omitted). The probable cause test is an objective one, for, as the Supreme Court noted in Beck, “[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Beck, 379 U.S. at 97, 85 S.Ct. at 229. Therefore, we have stated that probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck, 379 U.S. at 91, 85 S.Ct. at 225 (1964)). Finally, in reviewing any determination regarding the sufficiency of cause to effect an arrest we must “consider the totality of circumstances" }, { "docid": "12066720", "title": "", "text": "defense, it is compelled to convict the other defendant.” United States v. Angiulo, 897 F.2d 1169, 1195 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990). Leon has made no such showing in this case. The jury could have readily believed Panzardi’s argument that his name was used by a group of people at the hotel, and nonetheless have acquitted Leon. In sum, Panzardi’s opening remarks did not amount to a strong showing of prejudice to Leon, nor were they subsequently accompanied by prejudicial tactics at trial. Accordingly, the district court did not err in denying Leon’s motion for severance. C. Evidence Acquired Incident to the Warrantless Arrest Both Leon and Diaz argue that they were arrested without probable cause, and that therefore the items seized from their persons during their arrest should have been suppressed. Again, we disagree. In the context of warrantless arrests, as elsewhere, “[p]robable cause must be evaluated in light of the totality of circumstances.” United States v. Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir.1991). Moreover, in order to establish that probable cause existed for such an arrest, the government “need not present the quantum of proof necessary to convict.” Id. See also United States v. Morris, 977 F.2d 677, 684 (1st Cir. 1992) (same), cert. denied, — U.S.-, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993); United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (same). Rather, it need only show that, at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. Id.; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The arrests of Leon and Diaz clearly met these standards. Both Leon and Diaz had been observed on the evening prior to their arrest engaging in what appeared to be a drug deal. They were apprehended the following day returning to an area of the hotel which had recently been searched and which yielded large quantities" }, { "docid": "10546741", "title": "", "text": "doing, we stated that 19 C.F.R. § 162.5 “allows searches of aircraft that stop in the United States customs territory only briefly and then travel elsewhere. Such aircraft may keep luggage subject to search in their holds, perhaps mixed with other packages or freight.” Franchi-Forlando, 838 F.2d at 588 (emphasis added). Uricoechea’s argument that the agents were required to seek his consent to search before probing his garment bag is equally meritless. It is true that the Regulations applicable to passengers entering the United States forbid customs inspectors from opening baggage unless the owner refuses to do so. 19 C.F.R. § 148.21(a). However, in Franchi-Forlando we specifically held that regulation inapplicable to in-transit passengers. Franchi-Forlando, 838 F.2d at 587-88 (construing 19 C.F.R. § 148.21). In short, it is clear that Uricoechea’s garment bag was subject to search when his plane landed in San Juan and that, under the circumstances, customs inspectors were not required to obtain his consent before opening it. II. THE SEARCH INCIDENT TO ARREST Uricoechea also challenges the admissibility of the cocaine found in his wallet on the ground that it was seized pursuant to an unlawful arrest. Specifically, he contends that customs agents lacked probable cause to arrest him. We reject that contention for two reasons. First, the record clearly demonstrates the existence of probable cause to arrest Uricoechea. As we said in United States v. Figueroa, 818 F.2d 1020 (1st Cir.1987), the test is “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Id. at 1023 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Probable cause must be evaluated in light of the totality of circumstances. Moreover, in order to demonstrate the existence of probable cause, the government need not present the quantum of proof necessary to convict. United States v. Maguire, 918 F.2d 254, 258 (1st Cir.1990) (citing Illinois v. Gates," }, { "docid": "10546742", "title": "", "text": "found in his wallet on the ground that it was seized pursuant to an unlawful arrest. Specifically, he contends that customs agents lacked probable cause to arrest him. We reject that contention for two reasons. First, the record clearly demonstrates the existence of probable cause to arrest Uricoechea. As we said in United States v. Figueroa, 818 F.2d 1020 (1st Cir.1987), the test is “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Id. at 1023 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Probable cause must be evaluated in light of the totality of circumstances. Moreover, in order to demonstrate the existence of probable cause, the government need not present the quantum of proof necessary to convict. United States v. Maguire, 918 F.2d 254, 258 (1st Cir.1990) (citing Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)); United States v. Jorge, 865 F.2d 6, 9 (1st Cir.1989)). If an arrest is lawful, the arresting officers are entitled to search the individual apprehended pursuant to that arrest. United States v. Leal, 831 F.2d 7, 10 (1st Cir.1987). The permissible purposes of such a search include preservation of evidence, Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), and seizure of destructible contraband, United States v. Bautista, 731 F.2d 97, 99 (1st Cir.1984). In this case, the agents clearly had probable cause to arrest Uricoechea. The field test of the white powder in the garment bag bearing his claim tag indicated the presence of cocaine. Furthermore, Uricoe-chea never denied ownership of the bag. Consequently, the agents had ample justification for searching Uricoechea, examining his wallet and seizing the contraband concealed in it. Even without a finding of probable cause, the search of Uricoechea’s person would be lawful. As already noted, probable cause is not required to" }, { "docid": "7204624", "title": "", "text": "cause and postponing an arrest until the mood strikes. This argument has been made and rejected before in analogous contexts, see, e.g., Watson, 423 U.S. at 414, 423-24, 96 S.Ct. 820 (holding that a warrantless arrest based on probable cause may be made in a public place even though the officers had ample prior opportunity to obtain an arrest warrant, yet eschewed that course); United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994) (refusing “to attach significance to the ' fact that the government had ample time to obtain a warrant but declined to procure one”), and we reject it here. Put simply, when probable cause exists, the timing of an arrest is a matter that the Constitution almost invariably leaves to police discretion. See, e.g., Watson, 423 U.S. at 423-24, 96 S.Ct. 820; United States v. Bizier, 111 F.3d 214, 216-17, 220 (1st Cir.1997). We hold, therefore, that if the police have gained lawful entry to an individual’s home based on a valid search warrant, they may arrest the individual before commencing the search, provided that they have probable cause to do so. Consequently, the issue before us reduces to whether the facts and circumstances within the agents’ knowledge at the time of Winchenbach’s arrest were sufficient to yield probable cause. Like the district court, see Winchenbach, 31 F.Supp.2d at 165, we conclude that they were. Prior opinions guide this inquiry. We begin with bedrock: probable cause to effect an arrest does not require the same level of certitude or quantum of proof that is necessary to convict. See United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987). Instead, probable cause exists when, “at th[e] moment [the arrest is made,] the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [individual] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). For this purpose, the “fellow officer” rule applies, so that as a general matter (subject to exceptions not" }, { "docid": "17871667", "title": "", "text": "(1st Cir.1984). The Fourth Amendment requirement of probable cause to perform a warrantless arrest turns on “whether at that moment the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck, 379 U.S. at 91, 85 S.Ct. at 225; see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck). Here, the following undisputed facts could, at the very least, have led reasonable police officers to believe that they were obeying the probable cause requirement in proceeding to arrest Vargas for driving under the influence of alcohol. The officers were informed by Delgado, whether correctly or incorrectly, that Vargas was the driver of the track. Delgado also informed the defendants that Vargas and the other men smelled of alcohol and had glassy eyes. Reasonable police officers coidd further believe that Vargas’ actions suggested insolence, and were thus the kind of actions that correlate with drunkenness. It is worth emphasizing that in the qualified immunity context, we need not adjudge whether these facts were legally sufficient grounds for this warrantless arrest. We only conclude that the undisputed facts in this case preclude a finding that there was clearly no probable cause, or that “no reasonably competent officer would have found probable cause.” Prokey v. Watkins, 942 F.2d 67, 72 n. 4 (1st Cir.1991). The reports and observations suggesting that Vargas had been driving while intoxicated were sufficient to satisfy the rule in this circuit that questionable calls on matters of probable cause, such as the one in this case, are protected through the doctrine of qualified immunity. Cf Rivera v. Murphy, 979 F.2d 259, 263-64 (1st Cir.1992) (denying qualified immunity where arresting officer provided “no facts to support his legal conclusion that he had probable cause”). This kind of discretionary judgment call, made routinely by peace officers, must be protected from the chilling effect of personal liability. Our binding precedents addressing qualified immunity strike the difficult balance between chilling effective law enforcement and" }, { "docid": "17871666", "title": "", "text": "Here, that assessment turns on the officers’ determination of probable cause. In cases applying this [qualified immunity] standard to police arrests in this circuit, an arrest challenged as unsupported by probable cause is deemed “ ‘objectively reasonable’ ” unless “there clearly was no probable cause at the time the arrest was made.” Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir.1993) (quoting Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985)). In the instant case, the evidence giving rise to probable cause to believe Vargas drove under the influence of alcohol was far from substantial — and yet we cannot say that there clearly was no probable cause from the point of view of reasonable persons standing in these police officers’ shoes. See Farrell, 765 F.2d at 5 (“Despite a finding of no probable cause at a later hearing, a police officer should not be found liable under § 1983 for a warrantless arrest because the presence of probable cause was merely questionable at the time of arrest.”); Briggs v. Malley, 748 F.2d 715, 719 (1st Cir.1984). The Fourth Amendment requirement of probable cause to perform a warrantless arrest turns on “whether at that moment the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck, 379 U.S. at 91, 85 S.Ct. at 225; see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck). Here, the following undisputed facts could, at the very least, have led reasonable police officers to believe that they were obeying the probable cause requirement in proceeding to arrest Vargas for driving under the influence of alcohol. The officers were informed by Delgado, whether correctly or incorrectly, that Vargas was the driver of the track. Delgado also informed the defendants that Vargas and the other men smelled of alcohol and had glassy eyes. Reasonable police officers coidd further believe that Vargas’ actions suggested insolence, and were thus the kind of actions that correlate with drunkenness. It is" }, { "docid": "23449615", "title": "", "text": "no competent evidence that Domina or McDonald’s, as distinguished from Leporati, sought to exclude her on the basis of her race. See supra Section II.A.1. Thus, on the record evidence, Domina acted within her lawful authority — as “the person [having] lawful control of said premises,” Mass.Gen.Laws Ann. ch. 266, § 120 — in revoking Alexis’s implied license to utilize McDonald’s dining facilities. ii. Probable Cause Probable cause exists if “the facts and circumstances within [a police officer’s] knowledge and of which [the officer] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution” to believe that a crime has been committed or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); United States v. Drake, 673 F.2d 15, 17 (1st Cir.1982). Leporati effected this arrest based on the eyewitness report from Domina that Alexis had created an “unwarranted disturbance” and refused to leave the premises, and on the representation by Sherry Topham that there had been an unspecified “problem” with Alexis in the past. An objectively reasonable police officer so informed by the person in charge of the business premises, see swpra note 2, fairly could conclude that the implied license extended to Alexis had been revoked and that there was probable cause to believe that her continued presence constituted a criminal trespass. See Mass. Gen.Laws Ann. ch. 266, § 120 (“A person ... found committing such trespass may be arrested by a ... police officer_”); see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (“The constitutionality of a warrantless arrest ‘depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ”) (quoting Beck, 379 U.S. at 91, 85 S.Ct. at 225). Accordingly, we discern no error in the district court ruling that appellants" } ]

[ { "docid": "1984799", "title": "", "text": "received at trial for any purpose other than to attempt to demonstrate the defendant’s “criminal propensity.” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (quoting United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir.1992)). To determine if the trial court properly admitted other act evidence, we consider whether: (1) it was offered for a proper purpose; (2) it was relevant to a disputed trial issue; (3) its probative value is substantially outweighed by its possible prejudice; and (4) the trial court administered an appropriate limiting instruction. Pitre, 960 F.2d at 1119. We review the district court’s rulings for abuse of discretion. Garcia, 291 F.3d at 136. A. Cocaine-Cutting Recipe Defendant first challenges the admission into evidence of the note with the cocaine-cutting recipe found in his car when he was arrested. 1. Evidence of Identity, Knowledge and Intent The government urges the recipe was properly admitted because it bore on defendant’s identity and his knowledge and intent with respect to the charged conspiracy. We think the recipe was permissible evidence of defendant’s mental state, although it could not properly have been received on the issue of defendant’s identity- Knowledge, intent and identity are all expressly listed in Rule 404(b) as permissible purposes for offering other acts into proof. Further, appellant contested all three of these issues by challenging Rivera’s in-court identification of him, denying any knowledge of Rivera and Thomas’ cocaine importation scheme, and asserting innocent reasons for his association with Thomas and for his presence at the airport on the day of her arrest. But simply because the defense has put these matters in issue does not open the door for the government and give it carte blanche to introduce any prior act of defendant that falls into the same crime category. See Garcia, 291 F.3d at 137. Rather, some similarity or tangible connection between the acts must be identified, something that makes the prior act relevant to proving the contested fact. For example, in United States v. Zackson, 12 F.3d 1178 (2d Cir.1993), proof that defendant had previously engaged in a marijuana transaction with a" } ]

[ { "docid": "7320042", "title": "", "text": "19, 2009, the jury convicted Curley on all counts. The jury made specific findings that Curley committed interstate stalking under counts one and two with the intent to harass Linda and to place her under surveillance with the intent to harass, intimidate, and cause substantial emotional distress. Although the jury did not find that Curley had the intent to kill or injure Linda, it did find that his course of conduct caused Linda substantial emotional distress and placed her in reasonable fear of death or serious bodily injury. On July 29, 2010, after calculating a Guidelines range of forty-one to fifty-one months, the district court sentenced Curley to concurrent sixty-month terms of imprisonment, followed by concurrent three-year terms of supervised release. This appeal followed. DISCUSSION A. Applicable Law Rule 404(b) of the Federal Rules of Evidence governs the admissibility of evidence of prior or subsequent “bad acts”— evidence of “crimes, wrongs, or acts” other than those charged in the indictment. Fed.R.Evid. 404(b). The rule prohibits the admission of such evidence if it “prove[s] the character of a person” to show his propensity to commit the charged act, but permits its admission for other purposes. Id. This Circuit follows the “inclusionary” approach, which admits all “other act” evidence that does not serve the sole purpose of showing the defendant’s bad character and that is neither overly prejudicial under Rule 403 nor irrelevant under Rule 402. United States v. Pascarella, 84 F.3d 61, 69 (2d Cir.1996). Even under this approach, however, district courts should not presume that such evidence is relevant or admissible. United States v. Halper, 590 F.2d 422, 432 (2d Cir.1978). A district court’s evidentiary rulings are subject to review for abuse of discretion. United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009). When reviewing evidence admitted pursuant to Rule 404(b), we consider whether: “(1) the prior crimes evidence was ‘offered for a proper purpose’; (2) the evidence was relevant to a disputed issue; (3) the probative value of the evidence was substantially outweighed by its potential for unfair prejudice pursuant to Rule 403; and (4) the court administered" }, { "docid": "7320043", "title": "", "text": "of a person” to show his propensity to commit the charged act, but permits its admission for other purposes. Id. This Circuit follows the “inclusionary” approach, which admits all “other act” evidence that does not serve the sole purpose of showing the defendant’s bad character and that is neither overly prejudicial under Rule 403 nor irrelevant under Rule 402. United States v. Pascarella, 84 F.3d 61, 69 (2d Cir.1996). Even under this approach, however, district courts should not presume that such evidence is relevant or admissible. United States v. Halper, 590 F.2d 422, 432 (2d Cir.1978). A district court’s evidentiary rulings are subject to review for abuse of discretion. United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009). When reviewing evidence admitted pursuant to Rule 404(b), we consider whether: “(1) the prior crimes evidence was ‘offered for a proper purpose’; (2) the evidence was relevant to a disputed issue; (3) the probative value of the evidence was substantially outweighed by its potential for unfair prejudice pursuant to Rule 403; and (4) the court administered an appropriate limiting instruction.” United States v. McCallum, 584 F.3d 471, 475 (2d Cir.2009) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). “Other act” evidence serves a proper purpose so long as it is not offered to show the defendant’s propensity to commit the offense. See Fed.R.Evid. 404(b); United States v. Pitre, 960 F.2d 1112, 1118-19 (2d Cir.1992). Rule 404(b) provides that such evidence may properly show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), but this list is not exhaustive, United States v. Williams, 577 F.2d 188, 192 (2d Cir.1978); see also United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986); United States v. Johnson, 634 F.2d 735, 737 (4th Cir.1980). The district court may admit evidence that serves any “non-propensity purpose,” including state of mind. United States v. Edwards, 342 F.3d 168, 176, 180 (2d Cir.2003); see also United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996). To satisfy the relevance inquiry, the evidence must be" }, { "docid": "23522893", "title": "", "text": "to evidence of the federal crime. To avoid the prejudicial effect of the government’s introducing evidence of the prior crime, the defendant agreed to stipulate that he “had the chemical background to know the ingredients and equipment necessary to make methamphetamine.” Supp.App. at 822-23. See United States v. Jemal, 26 F.3d 1267, 1272-75 (3d Cir.1994) (approving use of stipulations to avoid prejudice flowing from admission of prior crimes evidence). To ensure that the Stipulation was voluntary, see United States v. Miller, 588 F.2d 1256, 1263-64 (9th Cir.1978), the District Court asked the defendant to take the stand and confirm that he understood the Stipulation and that acceptance was voluntary, which the defendant did. Supp. App. at 830-33. Thereafter, the District Court advised the jury of the Stipulation and did not admit evidence of the 1984 conviction. Ordinarily, defendant’s agreement to the Stipulation, on the informed advice of counsel, would preclude any objection on appeal. Here, Mastrangelo argues that the Stipulation was induced by the District Court’s erroneous ruling that Mastrange-lo’s prior crime was admissible. The Supreme Court has held that admissibility under FRE 404(b) re quires: (1) a proper evidentiary purpose; (2) relevance under FRE 402; (3) a weighing of the probative value of the evidence against its prejudicial effect under FRE 403; and (4) a limiting instruction concerning the purpose for which the evidence may be used. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), cited in United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992). The admission of prior crimes evidence under Rule 404(b) is a matter for the District Court’s discretion, provided that the court explains how the probative value of the evidence outweighs its prejudicial effect; if such an explanation is lacking, and the record does not clearly support the finding of probative value, the court of appeals will do the balancing itself. United States v. Himelwright, 42 F.3d 777, 781, (3d Cir.1994). To meet the first requirement and show a proper evidentiary purpose, the government must “clearly articulate how that evidence fits into a chain of" }, { "docid": "17897859", "title": "", "text": "475-76 (2d Cir.2009) (finding that the district court’s admission of the defendant’s prior drug convictions, offered to show his intent to deal drugs and his knowledge of drug dealing, was error because the district court had failed to conduct a Rule 403 analysis; the Second Circuit stated, “evidence of prior convictions merits particularly searching, conscientious scrutiny,” because such evidence can lead to “generalized reasoning about a defendant’s criminal propensity”); United States v. Paulino, 445 F.3d 211, 221-23 (2d Cir.2006); United States v. Garcia, 291 F.3d 127, 136, 138-39 (2d Cir.2002) (finding the district court abused its discretion in admitting evidence of a 12-year-old prior drug conviction whose only proffered similarity was that it involved cocaine). Courts may therefore admit evidence of other acts by the defendant if the evidence is relevant to an issue at trial other than the defendant’s character and if the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Morrison, 153 F.3d 34, 57 (2d Cir.1998); see also Garcia, 291 F.3d at 136. This inclusionary approach does not invite the Government “to offer, carte blanche, any prior acts of the defendant in the same category of crime.” McCallum, 584 F.3d at 475 (quoting Garcia, 291 F.3d at 137). In considering the admissibility of evidence pursuant to Rule 404(b), a court must consider the following: • Is the evidence offered for a proper purpose — that is, does it go to something other than the defendant’s character or general criminal propensity? • Is the evidence relevant? • Does the probative value of the evidence substantially outweigh the danger of unfair prejudice? • Has the court administered an appropriate limiting instruction? Garcia, 291 F.3d at 136. Among the “proper purposes” for presenting evidence of extrinsic acts are knowledge and intent. See McCallum, 584 F.3d at 475; United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996); Hynes v. Coughlin, 79 F.3d 285, 290-93 (2d Cir.1996) (acknowledging that knowledge and intent may be proper purposes, but reversing the district court decision, because intent was not an issue before the trial court);" }, { "docid": "7320045", "title": "", "text": "“sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the [state of mind] inference advocated by the proponent of the evidence.” United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). The district court must consider all the evidence presented to the jury and determine whether a reasonable jury could find the advocated inference. Huddleston, 485 U.S. at 690, 108 S.Ct. 1496; United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990). The court abuses its discretion if the evidence is “not sufficiently similar” to the charged conduct or if “the chain of inferences necessary to connect [the] evidence with the ultimate fact to be proved [is] unduly long.” Peterson, 808 F.2d at 974 (internal quotation marks omitted). If the evidence is relevant, the district court must determine if its potential for unfair prejudice substantially outweighs its probative value. See Fed. R.Evid. 403. The evidence’s probative value “depends largely on whether or not there is a close parallel between the crime charged and the acts shown.” United States v. Gordon, 987 F.2d 902, 908 (2d Cir.1993) (internal quotation marks omitted). Evidence is unfairly prejudicial when “it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” United States v. Massino, 546 F.3d 123, 132 (2d Cir.2008) (internal quotation marks omitted). If the other acts tend to prove a fact not in issue or “to excite emotions against the defendant,” they create a prejudicial effect. United States v. Figueroa, 618 F.2d 934, 943 (2d Cir.1980). The district court abuses its discretion when it admits “other act” evidence with a high possibility of jury misuse but with only slightly more probative value than other evidence on the same issue. See McCallum, 584 F.3d at 477. In our review, we will also consider whether the district court issued an appropriate limiting instruction. Although the law presumes that juries follow limiting instructions, United States v. Snype, 441 F.3d 119, 129 (2d Cir.2006), these instructions only minimize the evidence’s prejudicial effect, Figueroa, 618 F.2d" }, { "docid": "16325078", "title": "", "text": "“(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Trogdon, 575 F.3d 762, 766 (8th Cir.2009) (quoting United States v. Williams, 534 F.3d 980, 984 (8th Cir.2008)). This is considered a rule of inclusion, meaning that if these elements of admissibility are satisfied, the evidence will be excluded only when it is offered solely to prove criminal propensity. United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003). Federal Rule of .Evidence 404(b)(2) identifies the purposes for which evidence of prior convictions may be admitted, but merely reciting those permissible purposes without more is not sufficient to render evidence of a prior conviction admissible in any particular case. Rather, when the defendant raises a timely objection to admission of the evidence, Rule 404(b) requires a careful inquiry and analysis of the purpose for which the evidence is offered. The government — as proponent of the evidence — must identify the permissible non-propensity purpose for the evidence, and must articulate the relationship between the prior conviction and a material issue in the case. If the district court, upon consideration of the facts of the case, the elements of proof required, and the circumstances of the prior conviction, concludes that a permissible non-propensity purpose exists for the evidence, the court must then consider whether the other requirements for admissibility are satisfied. See United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir.2015) (holding that even if introduced for a proper purpose, to be admissible, prior bad act evidence must be relevant, supported by sufficient evidence, similar in kind and close in time to the crime charged, and higher in probative value than prejudicial effect). If, however, the court concludes that the only purpose for the evidence is to show the defendant’s criminal propensity, Rule 404(b)(1) prohibits its admission. Here, there is reason to be concerned that the evidence was not properly admitted under Rule 404(b). Following Cotton’s pretrial objection to the evidence, the government" }, { "docid": "17897862", "title": "", "text": "556, 566 (2d Cir.1996); see also United States v. Rosa, 11 F.3d 315, 334 (2d Cir.1993). Completing the story of the crimes is also a legitimate use of prior act evidence. United States v. Williams, 585 F.3d 703, 707 (2d Cir.2009) (citing United States v. Reifler, 446 F.3d 65, 91-92 (2d Cir.2006)). Once the Government has proffered a proper purpose for “other act” evidence, the Court must then determine whether the other act is in fact probative of the crimes charged. In this regard, the Government must identify the similarity or connection between the act at issue and an element of the crime charged. McCallum, 584 F.3d at 475; United States v. Brand, 467 F.3d 179, 197 (2d Cir.2006); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992); Foster, 939 F.2d at 455. If the Government cannot identify some similarity or connection between the other acts and charged conduct, then evidence of such other acts cannot be probative of knowledge and intent, Garcia, 291 F.3d at 137-38; United States v. Tubol, 191 F.3d 88, 96 (2d Cir.1999) (finding that the admission of a prior act was error where Government failed to show any similarity between a hoax bomb and an Israeli bomb). The similarity or connection between the charged crime and the prior event goes to the question of relevance. To be relevant, the other act must be sufficiently similar to the conduct at issue to permit the jury reasonably to draw an inference from the act that the state of mind of the actor is as the proponent of the evidence asserts. United States v. Curley, 639 F.3d 50, 57 (2d Cir.2011). The court abuses its discretion if the “chain of inferences” necessary to connect the “other act” evidence with the charged crime is “unduly long.” Id. (affirming a conviction involving domestic abuse after finding that four prior acts of abuse were sufficiently similar to that charged that it was probative of intent to harass or intimidate); see also United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). While the duration of elapsed time between two events" }, { "docid": "22902693", "title": "", "text": "AOL chat room, arranging a meeting with them, bringing them to his house, and touching one of them sexually. When Cherer began his relationship with “Susie,” he was serving probation for the 2001 conviction. Moreover, on April 2, 2005, and again on July 9, 2005, AOL received complaints (“AOL complaints”) from users alleging that another user, screen name “G8rwith8nGV” — Cherer’s screen name— had communicated with them using inappropriate sexual language. After each complaint, AOL blocked Cherer’s access, and each time Cherer called AOL to have it restored. After a hearing, the district court admitted evidence of Cherer’s prior conviction and the AOL complaints pursuant to FRE 404(b). This Court reviews a district court’s admission of evidence, including the decision that probative value exceeds unfair prejudice, for an abuse of discretion. See United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc) (citing United States v. Romero, 282 F.3d 683, 688 (9th Cir.2002)). Harmless errors do not warrant reversal. See Romero, 282 F.3d at 688 (citing United States v. Derington, 229 F.3d 1243, 1247 (9th Cir.2000)). According to Federal Rule of Evidence 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). The Ninth Circuit has held that evidence may be admitted pursuant to 404(b) if “(1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.” Romero, 282 F.3d at 688 (quoting United States v. Chea, 231 F.3d 531, 534 (9th Cir.2000)). If evidence satisfies Rule 404(b), “the court must then decide whether the probative value is substantially outweighed by the prejudicial impact under Rule 403.” Romero, 282 F.3d at 688 (quoting Chea, 231 F.3d at 534). Indeed," }, { "docid": "23464375", "title": "", "text": "intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). This Court reviews “404(b) evidence under an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s criminal propensity.’ ” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (quoting United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir.1992)). “To determine if the court properly admitted prior act evidence pursuant to Rule 404(b), we consider whether: (1) the prior act evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.” Garcia, 291 F.3d at 136. A district court’s decision to admit evidence of prior bad acts is reviewed for abuse of discretion, which we will find only if the judge acted in an arbitrary and irrational manner. Id. The district court did not abuse its discretion by allowing the government to introduce the testimony of Perrotta and Massie. Here, Lombardozzi attempted to distance himself from Isoldi by asserting that he was not involved with Isoldi’s loans to Leung. Perrotta’s and Massie’s testimony establishing similar acts of extortion that Lombardozzi committed with Isoldi in the past, however, directly contradicted that assertion, and thus is both relevant and highly probative. Furthermore, the district court issued a proper limiting instruction. It instructed the jury that it “may not consider the evidence of the similar conduct as a substitute for [proof] that the defendant committed the crime charged” and was to consider the evidence only as proof of Lombardozzi’s intent, absence of mistake, and identity. Accordingly, the district court did not abuse its discretion by allowing the government to present evidence of prior bad acts. C. Grand jury testimony Finally, Lombardozzi contends that his indictment should be dismissed because Agent Bryceland misled the grand jury into believing that Leung feared for his safety and that his fear was based on an interaction with Isoldi. In support of his argument, Lombardozzi points to Agent" }, { "docid": "23522894", "title": "", "text": "Supreme Court has held that admissibility under FRE 404(b) re quires: (1) a proper evidentiary purpose; (2) relevance under FRE 402; (3) a weighing of the probative value of the evidence against its prejudicial effect under FRE 403; and (4) a limiting instruction concerning the purpose for which the evidence may be used. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), cited in United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992). The admission of prior crimes evidence under Rule 404(b) is a matter for the District Court’s discretion, provided that the court explains how the probative value of the evidence outweighs its prejudicial effect; if such an explanation is lacking, and the record does not clearly support the finding of probative value, the court of appeals will do the balancing itself. United States v. Himelwright, 42 F.3d 777, 781, (3d Cir.1994). To meet the first requirement and show a proper evidentiary purpose, the government must “clearly articulate how that evidence fits into a chain of logical inferences” without adverting to a mere propensity to commit crime now based on the commission of crime then. Sampson, 980 F.2d at 887. The government sought to admit the evidence of Mastrangelo’s prior conviction to show Mastrangelo knew of the conspiracy’s objectives and intended to participate therein, but could not easily articulate a chain of logical inferences that would have made the prior crime evidence relevant to those issues. Ultimately, the District Court stated that it would admit evidence of the federal crime for purposes of proving knowledge but not to show intent. Supp.App. at 723. The court determined that the second requirement, relevance, was met because the prior conviction established that Mas-trangelo knew that the materials found in the storage locker could be assembled to manufacture methamphetamine. On the third prong, the court summarily stated that the probative value outweighs the prejudice to Mastrangelo, despite defense counsel’s repeated assertions that the government could establish Mastran-gelo’s knowledge of the ingredients and equipment through alternate means. Finally, on the fourth prong, the District Court declined" }, { "docid": "2539303", "title": "", "text": "court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999). Whether proffered evidence constitutes evidence of acts beyond the scope of the indictment and admissible only in limited circumstances under Federal Rule of Evidence 404(b) is reviewed de novo. United States v. Ramirez-Jiminez, 967 F.2d 1321, 1327 (9th Cir.1992). Rule 404(b) prohibits evidence of “other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” Fed. R.Evid. 404(b). The Rule does permit the admission of such evidence for the limited purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. However, Rule 403 excludes relevant evidence otherwise admissible under 404(b) “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Fed.R.Evid. 403. Interpreting the Rules of Evidence in this area, this court has held that evidence of prior bad acts is admissible if: (1) there is sufficient evidence to allow the jury to conclude that the defendant committed the prior act; (2) the act was not too remote in time from the commission of the charged offense; (3) the act is similar to the charged offense; (4) the act is introduced to prove an element of the charged offense that is a material issue in the case; and (5) the act’s probative value is not outweighed by its potential prejudice. United States v. Miller, 874 F.2d 1255, 1268 (9th Cir. 1989). Proffered evidence falls outside the ambit of 404(b), and thus outside the above the analysis, when it is “inextricably intertwined” with evidence of the crime charged. United States v. Soliman, 813 F.2d 277, 279 (9th Cir.1987) (citation omitted). A. The Barbados Check The district court did not abuse its discretion in admitting the Barbados transaction as 404(b) evidence probative of identity and lack of mistake. The test for admissibility set forth in Miller guides this inquiry. The first two requirements are easily satisfied. First, there is" }, { "docid": "23063360", "title": "", "text": "the best position to evaluate the evidence and its effect on the jury, its rulings on admissibility under Rule 404(b) will not be overturned on appeal absent a clear showing of abuse of discretion.” United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992) (citing United States v. Smith, 727 F.2d 214, 220 (2d Cir.1984)). An abuse of discretion under Rule 404(b) requires a determination that “the district court acted arbitrarily and irrationally.” Pitre, 960 F.2d at 1119. “The Second Circuit evaluates Rule 404(b) evidence under an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s criminal propensity.’ ” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (quoting Pitre, 960 F.2d at 1118). In reviewing whether a district court properly admitted evidence under Rule 404(b), we consider whether: “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.” Id. at 136 (citing Huddleston, 485 U.S. at 691-92, 108 S.Ct. 1496). Before trial, during the government’s in limine motion, and at trial, the government contended that “Brand’s intent to commit the charged offenses will be the ‘primary dispute.’ ” Brand, 2005 WL 77055, at *4. Similarly, in making its evi-dentiary rulings, the district court concluded that Brand “put his intent to commit the charged crimes at issue.” Id. Brand does not challenge the fact that his intent was at issue. Instead, Brand challenges the district court’s admission of sixteen images of child pornography on the basis that these images were not relevant to a disputed issue. Specifically, he claims that these images were not “sufficiently similar” to the crimes charged to be relevant to the issue of intent. We disagree. We have long acknowledged that “prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged.” United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir.1993)." }, { "docid": "17897863", "title": "", "text": "96 (2d Cir.1999) (finding that the admission of a prior act was error where Government failed to show any similarity between a hoax bomb and an Israeli bomb). The similarity or connection between the charged crime and the prior event goes to the question of relevance. To be relevant, the other act must be sufficiently similar to the conduct at issue to permit the jury reasonably to draw an inference from the act that the state of mind of the actor is as the proponent of the evidence asserts. United States v. Curley, 639 F.3d 50, 57 (2d Cir.2011). The court abuses its discretion if the “chain of inferences” necessary to connect the “other act” evidence with the charged crime is “unduly long.” Id. (affirming a conviction involving domestic abuse after finding that four prior acts of abuse were sufficiently similar to that charged that it was probative of intent to harass or intimidate); see also United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). While the duration of elapsed time between two events can detract from the probative value of the prior event, Garcia, 291 F.3d at 138, “temporal remoteness of ... acts does not preclude their relevancy.” Curley, 639 F.3d at 59. In Curley, although some of the “other act” evidence predated the charged conduct by as much as 15 years, “collectively they demonstrate[d] a pattern of activity that continued up to the time of the charged conduct.” Id. It is, however, improper to receive evidence ostensibly as probative of knowledge and intent when it is in reality “propensity evidence in sheep’s clothing.” McCallum, 584 F.3d at 477. The Government may not use Rule 404(b) to “parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo.” Huddle-ston, 485 U.S. at 689, 108 S.Ct. 1496. Under Rule 404(b), similar act evidence is only admissible if it is relevant, and it is only relevant if the jury could reasonably conclude that the act occurred and that it is connected to the defendant. M Temporal Proximity" }, { "docid": "17897858", "title": "", "text": "question is proof of the charged crime. Id. Rule 404(b) provides: (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.... Fed.R.Evid. 404(b). The Supreme Court has stated, “Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Second Circuit evaluates 404(b) evidence under an inclusionary approach that allows evidence for any purpose other than to show a defendant’s criminal propensity. United States v. McCallum, 584 F.3d 471, 475-76 (2d Cir.2009) (finding that the district court’s admission of the defendant’s prior drug convictions, offered to show his intent to deal drugs and his knowledge of drug dealing, was error because the district court had failed to conduct a Rule 403 analysis; the Second Circuit stated, “evidence of prior convictions merits particularly searching, conscientious scrutiny,” because such evidence can lead to “generalized reasoning about a defendant’s criminal propensity”); United States v. Paulino, 445 F.3d 211, 221-23 (2d Cir.2006); United States v. Garcia, 291 F.3d 127, 136, 138-39 (2d Cir.2002) (finding the district court abused its discretion in admitting evidence of a 12-year-old prior drug conviction whose only proffered similarity was that it involved cocaine). Courts may therefore admit evidence of other acts by the defendant if the evidence is relevant to an issue at trial other than the defendant’s character and if the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Morrison, 153 F.3d 34, 57 (2d Cir.1998); see also Garcia, 291 F.3d at 136." }, { "docid": "17897860", "title": "", "text": "This inclusionary approach does not invite the Government “to offer, carte blanche, any prior acts of the defendant in the same category of crime.” McCallum, 584 F.3d at 475 (quoting Garcia, 291 F.3d at 137). In considering the admissibility of evidence pursuant to Rule 404(b), a court must consider the following: • Is the evidence offered for a proper purpose — that is, does it go to something other than the defendant’s character or general criminal propensity? • Is the evidence relevant? • Does the probative value of the evidence substantially outweigh the danger of unfair prejudice? • Has the court administered an appropriate limiting instruction? Garcia, 291 F.3d at 136. Among the “proper purposes” for presenting evidence of extrinsic acts are knowledge and intent. See McCallum, 584 F.3d at 475; United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996); Hynes v. Coughlin, 79 F.3d 285, 290-93 (2d Cir.1996) (acknowledging that knowledge and intent may be proper purposes, but reversing the district court decision, because intent was not an issue before the trial court); United States v. Caputo, 808 F.2d 963, 968 (2d Cir.1987) (“Where intent to commit the crime charged is clearly at issue, evidence of prior similar acts may be introduced to prove that intent.”). The Second Circuit has approved the use of such evidence where a defendant does not contest that he was present during the commission of a crime but denies that he himself engaged in any wrongdoing. United States v. Colon, 880 F.2d 650, 659-60 (2d Cir.1989) (collecting eases); see also United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir.1993) (“Where a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged.”). Another “legitimate purpose for presenting evidence of extrinsic acts is to explain how a criminal enterprise developed; this sort of proof furnishes admissible background information in a conspiracy case” and can assist the jury in understanding the relationship of trust between the coconspirators. United States v. Pipola, 83 F.3d" }, { "docid": "23464374", "title": "", "text": "held that expert testimony may be introduced to explain the defendant’s role in the transaction.”). Finally, McCabe’s testimony did not “ask the jury to infer [Appellant’s] guilt from the conduct of unrelated individuals.” Id. at 476. Rather, it merely provided a means by which the jury could understand Lombardozzi’s role in the crimes charged; the other evidence was sufficient to link Appellant to the extortionate loan. Thus, the admission of McCabe’s testimony was not manifestly erroneous. B. Evidence of prior bad acts Lombardozzi also challenges the district court’s admission of evidence related to prior extortionate loans. In particular, he argues, pursuant to Federal Rule of Evidence 404(b), that the district court abused its discretion in admitting the testimony of Peter Perrotta and Ronald Massie, Isoldi’s loansharking customer and associate respectively. In relevant part, Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). This Court reviews “404(b) evidence under an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s criminal propensity.’ ” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (quoting United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir.1992)). “To determine if the court properly admitted prior act evidence pursuant to Rule 404(b), we consider whether: (1) the prior act evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.” Garcia, 291 F.3d at 136. A district court’s decision to admit evidence of prior bad acts is reviewed for abuse of discretion, which we will find only if the judge acted in an arbitrary and irrational manner. Id. The district court did not abuse its discretion by allowing the government to introduce the testimony" }, { "docid": "7206348", "title": "", "text": "Gilan, 967 F.2d 776, 780 (2d Cir.1992); United States v. Colon, 880 F.2d at 656. The decision to admit evidence pursuant to Rules 404(b) and 403 is reviewable only for abuse of discretion. See United States v. Gilan, 967 F.2d at 780; United States v. Pitre, 960 F.2d at 1119; United States v. Sappe, 898 F.2d 878, 880 (2d Cir.1990). The inquiry into the relevance of the evidence to the issue requires scrutiny of its probative value. Rule 404(b) does not authorize the admission of any and every sort of other-act evidence simply because a defendant proffers an innocent explanation for the charged conduct. See, e.g., United States v. Corey, 566 F.2d 429, 431 (2d Cir.1977). To the contrary, evidence of another act should not be admitted to show knowledge unless the other act is “sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge inference advocated by the proponent of the evidence.” United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). “Similarity, being a matter of relevancy, is judged by the degree in which the prior act approaches near identity with the elements of the offense charged. There is no necessity for synonymity but there must be substantial relevancy....” United States v. Kasouris, 474 F.2d 689, 692 (5th Cir.1973) (emphasis in original)_ If the other-act evidence does not provide a reasonable basis for inferring knowledge, its offer for that purpose should be rejected on the grounds of relevance. United States v. Afjehei, 869 F.2d 670, 674 (2d Cir.1989). Thus, the probative value of the proffered evidence depends largely on whether or not there is a “ ‘close parallel’ between the crime charged and the acts shown.” United States v. Corey, 566 F.2d at 431 (quoting United States v. Chestnut, 533 F.2d 40, 49 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976)). For example, evidence that the defendants had previously participated in similar drug transactions with the same coconspirators is properly admitted to show that the defendants had knowledge of the conspiracy charged. See" }, { "docid": "23063359", "title": "", "text": "as relevant to the primary issue in dispute, namely Brand’s intent to meet a minor for sex. The government further asserts that, even if the district court erred in admitting the images under Rule 404(b), these images, as well as the remaining images, were properly admitted at trial to show Brand’s predisposition. A. Rule 404(b) The Supreme Court has noted that Federal Rule of Evidence 404(b) “generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor’s character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge.” Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). However, in Huddleston, the Court was careful to point out that “[e]x-trinsie acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Id. “Since a district court is in the best position to evaluate the evidence and its effect on the jury, its rulings on admissibility under Rule 404(b) will not be overturned on appeal absent a clear showing of abuse of discretion.” United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992) (citing United States v. Smith, 727 F.2d 214, 220 (2d Cir.1984)). An abuse of discretion under Rule 404(b) requires a determination that “the district court acted arbitrarily and irrationally.” Pitre, 960 F.2d at 1119. “The Second Circuit evaluates Rule 404(b) evidence under an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s criminal propensity.’ ” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (quoting Pitre, 960 F.2d at 1118). In reviewing whether a district court properly admitted evidence under Rule 404(b), we consider whether: “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the" }, { "docid": "7320044", "title": "", "text": "an appropriate limiting instruction.” United States v. McCallum, 584 F.3d 471, 475 (2d Cir.2009) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). “Other act” evidence serves a proper purpose so long as it is not offered to show the defendant’s propensity to commit the offense. See Fed.R.Evid. 404(b); United States v. Pitre, 960 F.2d 1112, 1118-19 (2d Cir.1992). Rule 404(b) provides that such evidence may properly show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), but this list is not exhaustive, United States v. Williams, 577 F.2d 188, 192 (2d Cir.1978); see also United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986); United States v. Johnson, 634 F.2d 735, 737 (4th Cir.1980). The district court may admit evidence that serves any “non-propensity purpose,” including state of mind. United States v. Edwards, 342 F.3d 168, 176, 180 (2d Cir.2003); see also United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996). To satisfy the relevance inquiry, the evidence must be “sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the [state of mind] inference advocated by the proponent of the evidence.” United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). The district court must consider all the evidence presented to the jury and determine whether a reasonable jury could find the advocated inference. Huddleston, 485 U.S. at 690, 108 S.Ct. 1496; United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990). The court abuses its discretion if the evidence is “not sufficiently similar” to the charged conduct or if “the chain of inferences necessary to connect [the] evidence with the ultimate fact to be proved [is] unduly long.” Peterson, 808 F.2d at 974 (internal quotation marks omitted). If the evidence is relevant, the district court must determine if its potential for unfair prejudice substantially outweighs its probative value. See Fed. R.Evid. 403. The evidence’s probative value “depends largely on whether or not there is a close parallel between the crime charged and the acts shown.” United" }, { "docid": "7206347", "title": "", "text": "Under Fed.R.Evid. 404(b), evidence of “other crimes, wrongs, or acts,” though inadmissible to prove character or criminal propensity, may be admitted at trial to show that a defendant who claims that his conduct had an innocent explanation had the knowledge or intent necessary to commit the charged offense. See, e.g., Huddleston v. United States, 485 U.S. 681, 687-88, 108 S.Ct. 1496, 1499-500, 99 L.Ed.2d 771 (1988); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992); United States v. Mills, 895 F.2d 897, 907 (2d Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990); United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989). In considering whether to admit other-act evidence offered to show knowledge, the court must determine whether or not the evidence is relevant to that issue, see Fed. R.Evid. 401, 402, and whether or not its probative value is substantially outweighed by the danger of unfair prejudice, see Fed. R.Evid. 403. See, e.g., Huddleston v. United States, 485 U.S. at 687-88, 108 S.Ct. at 1499-500; United States v. Gilan, 967 F.2d 776, 780 (2d Cir.1992); United States v. Colon, 880 F.2d at 656. The decision to admit evidence pursuant to Rules 404(b) and 403 is reviewable only for abuse of discretion. See United States v. Gilan, 967 F.2d at 780; United States v. Pitre, 960 F.2d at 1119; United States v. Sappe, 898 F.2d 878, 880 (2d Cir.1990). The inquiry into the relevance of the evidence to the issue requires scrutiny of its probative value. Rule 404(b) does not authorize the admission of any and every sort of other-act evidence simply because a defendant proffers an innocent explanation for the charged conduct. See, e.g., United States v. Corey, 566 F.2d 429, 431 (2d Cir.1977). To the contrary, evidence of another act should not be admitted to show knowledge unless the other act is “sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge inference advocated by the proponent of the evidence.” United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). “Similarity, being a" } ]

[ { "docid": "1973821", "title": "", "text": "notes, They further allege that these facts were material in the sense that no reasonable purchaser would have purchased the notes had he known these facts. Plaintiffs do not allege any right to recover on the basis of any affirmative misrepresentation made by the defendants. Provisional Certification. The issue presented is whether the trial court abused its discretion in giving provisional certification to named plaintiffs to proceed as the class representative. The Supreme Court in Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), removed positive proof of reliance as a condition of recovery where the facts involve “primarily a failure to disclose.” The Court held that in such cases an obligation to disclose and a withholding of a fact, material in the sense that a reasonable investor might have considered them important in making his decision, are sufficient to establish causation in fact. Id. at 153-54, 92 S.Ct. at 1472, 31 L.Ed.2d at 761. In Blackie v. Barrack, supra, this court brought within the scope of Affiliated Ute a case in which it was alleged that certain material facts were omitted from annual and interim reports, press releases and SEC filings in the relevant period. These documents contained representations rendered inaccurate by the omissions. In this case, however, we need not go so far. There is no allegation by either plaintiffs or defendants that indicates the existence of any general representations made to purchasers. When looked at from the point of view of the class as a whole, this seems to be not merely a case “involving primarily a failure to disclose” but the purest case of an omission. Thus we need not draw a line between a misrepresentation and an omission. In Blackie, we allowed the de fendants the right to disprove causation as to any and all individual plaintiffs, but stated that this would not be likely to preclude predominance of common questions of law or fact or render the class action unmanageable. 524 F.2d at note 21. We follow the same course here. See Note, The Reliance" } ]

[ { "docid": "5949017", "title": "", "text": "legal issues necessary to prepare this case for trial. II. Reliance and “Fraud on the Market” Reliance by the plaintiff on a misrepresentation or omission of material fact knowingly or recklessly made by the defendant is an element of Rule 10b-5 liability. Sharp v. Coopers & Lybrand, 649 F.2d 175, 186 (3rd Cir. 1981); Huddleston v. Herman & MacLean, 640 F.2d 534, 543 (5th Cir. 1981). See generally Note, The Reliance Requirement in Private Actions Under SEC Rule 10b-5, 88 Harv.L.Rev. 584 (1975). But the necessity of proving an element of a claim does not necessarily determine the allocations of the burdens of going forward and persuasion with respect to that element. Sharp v. Coopers & Lybrand, 649 F.2d at 187; McCormick’s Handbook of the Law of Evidence, § 337, at 785-86 (Cleary ed. 1972). In appropriate circumstances the plaintiff will be relieved of the burden of introducing evidence of reliance and will be granted a rebuttable presumption that such reliance occurred. Thus in eases involving primarily a failure to disclose rather than an affirmative misrepresentation, “positive proof of reliance is not a prerequisite to recovery.” Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972). All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in making [the investment] decision. This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact. Id. (citation omitted). Evidence of reliance is also not required in cases alleging what has come to be known as a “fraud on the market” theory of liability. Such cases generally fall into three categories. The first and most common, typified by Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975), involves a deception inflating the price of stock traded on the open market. The theory has been succinctly stated as follows: To prevail under this theory, plaintiffs must demonstrate that defendant’s misrepresentations and omissions were a part of a common scheme to manipulate the value of stock and" }, { "docid": "22135680", "title": "", "text": "requisite causal connection between a defendant’s [alleged fraud] and a plaintiff’s injury,” Basic, 108 S.Ct. at 989, will be presumed from the materiality of the information not disclosed. See 406 U.S. at 153-54, 92 S.Ct. at 1472-73. In Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982), we held that in cases involving both omissions and misrepresentations, a unitary burden of proof on the reliance issue should be set according to a context-specific determination of where that burden more appropriately lies. See id. at 188. We rejected as unworkable “a strict application of the omissions-misrepresentations dichotomy,” which “would require the trial judge to instruct the jury to presume reliance with regard to the omitted facts, and not to presume reliance with regard to the misrepresented facts.” Id. This case is predicated upon two allegedly fraudulent courses of conduct directed at the class as a whole — the failure to disclose Blinder, Robinson’s excessive markups and the failure to clarify true but misleading statements about the research department. The first of these involves “pure” omissions as to which the burden-shifting rationale of Affiliated Ute is fully applicable. The second involves half-truths, which, although “analytically ... closer to lies than to nondisclosure,” L. Loss, Fundamentals of Securities Regulation 960 (2d ed. 1988), are obviously closer to omissions than are “pure” misrepresentations. Moreover, we believe that the half-truths about Blinder, Robinson’s research department would foreseeably influence investors’ decisions, and were intended and especially likely to do so. Sharp deemed all these considerations relevant in determining the burden of proof as to reliance in mixed omission/misrepresentation cases. See 649 F.2d at 189. Given all these factors, the district court did not err, having concluded that Blinder, Robinson’s nondisclosures and half-truths were material, in excusing plaintiffs from their burden of proving reliance on those nondisclosures and half-truths. Appellants were entitled to try to rebut the presumption that the plaintiffs relied, see, e.g., Rochez Brothers, Inc. v. Rhoades, 491 F.2d 402, 410 (3d Cir.1974), cert. denied, 425 U.S. 993, 96 S.Ct. 2205, 48" }, { "docid": "720336", "title": "", "text": "See also, Green v. Wolf Corp., 406 F.2d 291, 301 (2nd Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). The policies served by the securities laws would be in part eviscerated if the reliance requirement precluded class certification. Sharp, 70 F.R.D. at 547; Data Access, 103 F.R.D. at 139-40. See also Eisenberg v. Gagnon, 766 F.2d at 786, in which the Third Circuit stated that the presence of individual questions as to the reliance of each investor does not mean that the common questions do not predominate. Furthermore, the determination of whether each member of the class must prove reliance is itself a common question. Sharp, 70 F.R.D. at 548; Data Access, 103 F.R.D. at 140. To the extent that Defendants will raise non-reliance as a defense, this is also a question which goes to the merits and cannot be considered at this point. Id. at 139. If necessary, subclasses can be formed at a later date. Diasonics, 599 F.Supp. at 452, n. 3. 2. Effect of Oral Representations Defendants argue that certification is improper because of representations made to plaintiffs by brokers and others. Defendants argue that these representations turn this case into one for oral misrepresentations, for which class certification should not readily be available. However, this argument misreads Plaintiffs’ complaint, which focuses solely on disclosures in and omissions from the standardized letters issued. Any intervening oral representations may impact somewhat on the reliance issue, if that issue becomes crucial at trial. As the Data Access court recognized, various types of reliance are present in almost all securities cases. A class action of purchasers could never be maintained if these differences (reliance on friends, brokers, etc.) were permitted to defeat class certification. 103 F.R.D. at 139. 3. RICO Claims Similarly, although there may be individual issues involved in Plaintiffs’ civil RICO claims, such as injury and damages, significant common issues are presented. The issues of law and fact in making out a RICO violation will generally be common to all Plaintiffs’ claims, because Plaintiffs are asserting a single fraudulent scheme by the defendants" }, { "docid": "720335", "title": "", "text": "California Co., 532 F.2d 1302, 1304 n. 4 (9th Cir.1976); Weinberger v. Jackson, 102 F.R.D. 839, 846 (N.D.Cal.1984). However, it is not necessary to resolve this question at the present time. First of all, to do so would be an unwarranted intrusion into the merits of the claims and defenses. In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139-140 (D.N.J.1984) (hereinafter “Data Access”). Furthermore, such a determination might be wasteful. At this point, we cannot know whether the misrepresentation or omission claims will ultimately prevail. See Sharp v. Coopers & Lybrand, 70 F.R.D. 544, 547 (E.D.Pa.1976), aff'd in part, rev’d in part on other grounds, 649 F.2d 175 (3rd Cir.1981). More importantly, however, whether or not reliance is a necessary element in a case involving misrepresentations and omissions is not a question that needs to be decided on this motion for class certification. If it is later determined that reliance is a necessary element, separate hearings could be held or the trial bifurcated to deal with this issue. Sharp, 70 F.R.D. at 547. See also, Green v. Wolf Corp., 406 F.2d 291, 301 (2nd Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). The policies served by the securities laws would be in part eviscerated if the reliance requirement precluded class certification. Sharp, 70 F.R.D. at 547; Data Access, 103 F.R.D. at 139-40. See also Eisenberg v. Gagnon, 766 F.2d at 786, in which the Third Circuit stated that the presence of individual questions as to the reliance of each investor does not mean that the common questions do not predominate. Furthermore, the determination of whether each member of the class must prove reliance is itself a common question. Sharp, 70 F.R.D. at 548; Data Access, 103 F.R.D. at 140. To the extent that Defendants will raise non-reliance as a defense, this is also a question which goes to the merits and cannot be considered at this point. Id. at 139. If necessary, subclasses can be formed at a later date. Diasonics, 599 F.Supp. at 452, n. 3. 2. Effect of Oral Representations Defendants" }, { "docid": "964935", "title": "", "text": "re Data Access, 103 F.R.D. 130, 139 (D.N.J.1984). Third, proof of reliance may be unnecessary if the fraud-on-the-market theory of liability is available. See, e.g., Peil v. Speiser, 806 F.2d 1154 (3d Cir.1986). In addition, plaintiffs have alleged material omissions which give rise to a presumption of reliance. See Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981). Defendant counters that these theories are not available in this case. See, e.g., Peil, 806 F.2d at 1161 n. 10 (leaving open the question of whether the fraud-on-the-market theory is available to an initial public offering). This argument, however, goes to the merits of the case and is inappropriate in a class certification motion. More importantly, this question is common to the entire class and poses no difficulty to a class action. Similarly, the statute of limitations defense does not defeat typicality. Plaintiffs commenced this action on July 3, 1986. In its memorandum, défendant chronologically traces the disclosure of information to the public, as well as information revealed during the course of discovery in the related action. It argues that plaintiffs knew or should have known of the alleged omissions or misrepresentations more than one or two years before they brought this suit. Thus, defendant argues plaintiffs’ claims are time-barred. As with its reliance argument, the statute of limitations defense goes to the merits of plaintiffs’ complaint and therefore is beyond the scope of a motion for class certification. See, e.g., Rishcoff v. Commodity Fluctuations Systems, Inc., 111 F.R.D. 381, 382-83 (E.D.Pa.1986). Defendant’s own memorandum shows the impropriety of my reviewing the limitations argument at this time. Defendant states it will file motions to dismiss and for summary judgment on the basis of the statute of limitations once there has been additional discovery. Obviously, it would be unwise to consider the limitations defense on the basis of an incomplete record. Moreover, defendant’s argument is based on information disclosed to the public and obtained during discovery in the related case where I certified basically the same class as this case; therefore, the statute of limitations defense is common to the class. Thus," }, { "docid": "5068299", "title": "", "text": "Pension Investors, 150 F.R.D. 109 (N.D.Ill.1993), is demonstrative of the scope of the necessary reliance inquiry to be conducted in securities class action cases by the district court. Defendants correctly point out that the inquiry in Williams sought to determine whether the plaintiff was subject to unique defenses by first ascertaining whether he directly or indirectly relied upon the offering materials. Relying principally on Williams’ deposition testimony the court, in denying class certification, concluded that “Williams’ non-reliance may very well become a significant focus of [the] case, diverting attention away from is sues common to the class.” Williams v. Balcor Pension Investors, 150 F.R.D. at 113—14. Here, by contrast, the Court is convinced that the reliance element is only one issue which is not likely to become the focus of the litigation and that the better reasoned solution is to hold separate hearings or bifurcate the trial in order to deal with these issues if it is later determined that reliance is a necessary element. See Sharp v. Coopers & Lybrand, 70 F.R.D. 544, 547 (E.D.Pa.1976), aff'd in part, rev’d in part on other grounds, 649 F.2d 175 (3rd Cir.1981); Green v. WolfCorp., 406 F.2d 291, 301 (2d Cir.1968); South Carolina Nat. Bank v. Stone, 139 F.R.D. at 333 (even if individual issues of reliance arise, it is more appropriate to determine the common issues in one proceeding, which may be followed by separate hearings regarding any individual issues). Unlike Williams, the purported class claim here is not grounded solely on alleged written misrepresentations contained in the PPM. Rather the Complaint cites the PPM and “accompanying representations, brochures, and information ([labeled] “Offering Materials”).” Another important factual distinction between the case at bar and Williams is that Williams’ deposition revealed that he relied exclusively and only on his investment advisor. Williams v. Balcor Pension Investors, 150 F.R.D. at 112, fn. 2. (emphasis added). The pleadings and evidence before this court indicate that such exclusive reliance cannot be demonstrated for the plaintiffs in this matter. For example, the deposition testimony of named plaintiff, Bonnie Ruben, shows that while she may have only" }, { "docid": "17134473", "title": "", "text": "(5th Cir. 1973) interpreted Affiliated Ute to apply only to non-disclosure cases. The Simon court found that although Affiliated Ute abolished the need for individual reliance in non-disclosure cases, some modicum of individual reliance remained as an element of a 10b-5 claim for active misrepresentation. The dichotomy between plaintiffs’ and defendants’ positions on this issue results partially from different characterizations of the nature of plaintiffs’ claims. Plaintiffs contend that their complaint is not based upon active misrepresentation but upon non-disclosure and therefore, proof of individual reliance is nor required. Plaintiffs assert that defendants are guilty of one “big omission”. The alleged “big omission” was defendants’ failure to include in their prospectuses and their materials distributed to make a market for Leeds stock, an accurate statement of the depleted financial condition of Leeds. At the other extreme, defendants contend simply that plaintiffs are alleging claims based upon oral, active misrepresentations and individual reliance is a necessary element plaintiffs must prove. Plaintiffs and defendants have oversimplified the nature of the claims asserted. Plaintiffs’ 10b-5 claims are basically hybrid in nature, containing allegations of active misrepresentations and fraudulent nondisclosure. This circumstance is a consequence of the impersonal business methods employed in the securities investment industry. As a result, all actions for securities fraud do not fit neatly into categories of misrepresentation or nondisclosure. In such cases there are usually numerous misrepresentations and omissions to investors generally, and there is little actual face to face fraud. Traditional concepts of fraud are particularly ill-suited to this situation. Therefore, when confronted with this occurrence, the Court should not construe the remedies provided by the Securities Exchange Act technically and restrictively, but flexibly to effectuate its remedial purpose of achieving a high standard of integrity in the securities industry. Some courts confronted by this development have allowed the claims asserted to proceed under a theory often designated as “fraud on the market”. Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975); In re U. S. Financial Securities Litigation, 64 F.R.D. 443 (S.D.Cal.1974); Dorfman v. First Boston Corporation, 62 F.R.D. 466 (E.D.Pa.1974); Grad v. Memorex Corp., 61 F.R.D." }, { "docid": "720332", "title": "", "text": "hand, focus on the individual questions and issues. Various courts have held that where members of a class are subject to the same misrepresentations and omissions, and where alleged misrepresentations fit within a common course of conduct, common questions exist and a class action is appropriate. In re Diasonics Securities Litigation, 599 F.Supp. 447, 451 (N.D.Cal.1984) (hereinafter “Diasonics’); Beebe v. Pacific Realty Trust, 99 F.R.D. 60, 65 (D.Or.1983); Pistoll v. Lynch, 96 F.R.D. 22, 28 (D.Haw.1982), and cases cited therein; Clark v. Cameron-Brown Co., 72 F.R.D. 48, 59 (M.D.N.C.1976). This is particularly true where, as here, the claims are primarily grounded on misrepresentations and omissions contained in a common core of documents. In re Home-Stake Production Co. Securities Litigation, 76 F.R.D. 351, 369 at n. 11 (N.D.Okl.1977). Although the amount of damages suffered is generally an individual matter, this issue should not preclude a finding of predominance. Blackie v. Barrack, 524 F.2d at 905. Rules Advisory Committee Notes to 1966 Amendments to Rule 23, 39 F.R.D. 69 (1966). Furthermore, in this action, the amount of damages should be fairly simple to determine, so that calculations thereof should not completely overshadow other issues. The focus of the predominance question should be, therefore, liability. 1. Reliance Defendants’ primary argument against certification is that questions of reliance predominate. They argue that, in cases involving misrepresentations under federal securities laws, individual investor reliance must be shown. They claim that there are two exceptions to this rule, neither of which applies to the instant action. Defendants argue that the so-called “fraud-on-the-market” exception is inapplicable in this action because the securities in question were not traded on the open market. Under the fraud-on-the-market theory, proof of reliance is unnecessary because the plaintiff is considered to have relied on the integrity of the market price of the security. Blackie v. Barrack, 524 F.2d at 907; 4 Newberg on Class Actions 2d (1985), Section 22.49 at 100-101. In this action, Defendants assert, no such “market” exists. Defendants’ second exception to the reliance requirement derives from Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456," }, { "docid": "18381800", "title": "", "text": "not read the prospectuses and relied entirely upon the information provided by their brokers, or state that they read or looked through the prospectuses, but could not recall any specifics and also relied upon representations made by their brokers in deciding to purchase the Petro-Lewis partnership interests. The plaintiffs assert that because the prospec tuses were used in the sales of the securities, the misrepresentations and omissions presented in them provide a uniform presentation upon which common reliance can be based, and class certification need not depend upon whether the plaintiffs actually read the prospectuses. Kennedy v. Tallant, 710 F.2d 711 (11th Cir.1983); Affiliate Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741; Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Sharp v. Coopers & Lybrand, 70 F.R.D. 544 (E.D.Pa.1976). If misrepresentations are both oral and written and the plaintiffs relied upon the oral representations of their brokers, there is no standardized communication by the defendants and no basis for the assumption of reliance. Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880 (5th Cir.1973). The distinction here is that the cases relied upon by the plaintiffs were omissions cases whereas the instant cases primarily involve misrepresentations. The allegations stated in the complaints are almost entirely allegations of misrepresentations of material information presented in the prospectuses rather than the omission of material facts in the sale of Petro-Lewis securities. Where the misrepresentations and omissions are oral, precluding the uniformity of sales, rather than written, the court may infer reliance by the plaintiff in a section 10(b) and Rule 10b-5 action only where the defendant fails to disclose information material to the sale of the security. Where failure to disclose is material, the case is an omissions case. Affiliated Ute, supra; Huddleston v. Herman & MacLean, 640 F.2d 534 (5th Cir. 1981) (en banc modified on other grounds, 650 F.2d 815 (1981), aff'd in part and rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct." }, { "docid": "720333", "title": "", "text": "damages should be fairly simple to determine, so that calculations thereof should not completely overshadow other issues. The focus of the predominance question should be, therefore, liability. 1. Reliance Defendants’ primary argument against certification is that questions of reliance predominate. They argue that, in cases involving misrepresentations under federal securities laws, individual investor reliance must be shown. They claim that there are two exceptions to this rule, neither of which applies to the instant action. Defendants argue that the so-called “fraud-on-the-market” exception is inapplicable in this action because the securities in question were not traded on the open market. Under the fraud-on-the-market theory, proof of reliance is unnecessary because the plaintiff is considered to have relied on the integrity of the market price of the security. Blackie v. Barrack, 524 F.2d at 907; 4 Newberg on Class Actions 2d (1985), Section 22.49 at 100-101. In this action, Defendants assert, no such “market” exists. Defendants’ second exception to the reliance requirement derives from Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972), in which the Supreme Court held that in cases “involving primarily a failure to disclose,” proof of reliance is not required. Proof of reliance is not required because, where an omission is alleged, it would be difficult, if not impossible, to prove how the investor would have acted had the material information bren disclosed. In a pure omission case, all that is required is a showing of materiality, which does not depend on the circumstances and beliefs of the individual investors. Defendants argue that Affiliated Ute and cases which have followed it, such as Blackie v. Barrack, supra, do not apply to the instant case which involves misrepresentations rather than omissions. However, this argument is based in part upon a misreading of the complaint. The complaint alleges both misrepresentations and material omissions. The necessity of proving reliance becomes a more complicated question in cases such as this, where both misrepresentations and omissions are involved. As has often recognized, distinctions between the two often elevate form over substance. Little v. First" }, { "docid": "702191", "title": "", "text": "are common questions of law and fact that Mr. Kiciak, who read and relied on the Preliminary Official Statement, including the Touche Ross Feasibility Study, shares with those purchasers of the Notes, such as Ms. Gorsey and Mr. Whalen, who relied exclusively on oral representations by brokers of Simon. Mr. Kiciak, they say, is typical of all original purchasers of the Notes since he purchased the Notes during the same time period relying on the same material omissions and deceptive sales literature and prospectuses as the other purchasers. Class members who received either official statement have claims against defendants based on misrepresentations and material omissions in the official statements; whereas, those original purchasers who did not receive an official statement have claims based on material omissions. Plaintiffs assert that the overlap is sufficient to satisfy both the commonality and typicality requirements of Fed.R.Civ.P. 23(a).. Defendants argue that the distinction in reliance between those class members who read the official statements and those class members who did not vitiates typicality and commonality of the class representative. Therefore, plaintiffs do not satisfy the requirements of commonality or typicality because they will be subject to unique defenses concerning reliance. In contradistinction to defendants’ position, however, the prevailing view is that for class certification purposes, security fraud actions are allowed to proceed as class actions “in spite of foreseeable variations on the issue of reliance.” Reichert v. Bio-Medicus, Inc., 70 F.R.D. 71, 75 (D.Minn.1974). See also In re ORFA Securities Litigation, 654 F.Supp. 1449, 1461 (D.N.J.1987); Nelsen v. Craig-Hallum, Inc., 659 F.Supp. 480, 487 (D.Minn.1987); In re Pizza Time Theatre Securities Litigation, 112 F.R.D. 15, 22 (N.D.Cal.1986); In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984). But see Lewis v. Johnson, 92 F.R.D. 758, 759 (E.D.N.Y.1981) (named plaintiffs atypical because subject to unique defenses on issue of reliance); Blumenthal v. Great Am. Mortgage Investors, 74 F.R.D. 508, 511-12 (N.D.Ga.1976) (requiring standardized representations); Gatzke v. Owen, 69 F.R.D. 412, 414 (N.D. Miss.1975) (requiring standardized representations). The fact that all class members did not receive the same information and information from the same" }, { "docid": "10497667", "title": "", "text": "that sales meetings outlining the upcoming year’s program to Home-Stake salesmen were held annually. See Grainger v. State Security Life Insurance Co., 547 F.2d 303, 307 (5th Cir. 1977) . Moreover, plaintiffs contend that their claims are grounded primarily on misrepresentations and omissions contained in a common core of documents, and the court notes that the complaints in these actions do not include allegations concerning any specific oral statements or misrepresentations. See Sharp v. Coopers & Lybrand, 70 F.R.D. 544 (E.D.Pa.1976). Under these circumstances, the court finds that the presence of alleged oral statements and misrepresentations does not preclude class certification in these actions at this time. See, e.g., Sharp v. Coopers & Lybrand, supra; Ramsey v. Arata, 406 F.Supp. 435 (N.D.Texas 1975); Jenson v. Continental Financial Corporation, 404 F.Supp. 806 (D.Minn.1975); Fox v. Prudent Resources Trust, 69 F.R.D. 74 (E.D.Pa. 1975); Davis v. Avco Corp., 371 F.Supp. 782 (N.D.Ohio 1974); Frankel v. Wyllie & Thornhill, Inc., 55 F.R.D. 330 (W.D.Va.1972); Vernon J. Rockler and Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D.Minn.1971). If, at a later stage, it becomes apparent that plaintiffs will rely on oral statements and misrepresentations in order to establish their claims and that the oral statements and misrepresentations varied materially from class member to class member, decertification of these classes or the certification of appropriate subclasses may, of course, become appropriate. . In Blackie v. Barrack, supra, the Ninth Circuit stated: Individual questions of reliance are likewise not an impediment—subjective reliance is not a distinct element of proof of 10b-5 claims of the type involved in this case. The class members' substantive claims either are, or can be, cast in omission or nondisclosure terms—the company’s financial reporting failed to disclose the need for reserves, conditions reflecting on the value of the inventory, or other facts necessary to make the reported figures not misleading. The [Supreme] Court has recognized that under such circumstances ‘involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a" }, { "docid": "964072", "title": "", "text": "material misrepresentation or omission in making an investment decision; and resultant damages. See, e.g., Jaksich v. Thomson McKinnon Securities, Inc., 582 F.Supp. 485, 493 (S.D.N.Y.1984). Plaintiff here contends that in determining whether common questions predominate, the court’s inquiry should be directed toward liability, since the computation of damages will be a purely mechanical task. Even if we were to assume that plaintiff is correct in the latter assertion—a point which is hotly contested by the defendants—we find that class treatment is nevertheless inappropriate since individual issues of liability will predominate our common issues. At the heart of the liability question is the proof of a plaintiff’s reliance on the misrepresentation or omission. Plaintiff argues that this question may be resolved on a classwide basis because: (1) this case involves “omissions” rather than “misrepresentations”; and (2) in an “omissions” case, reliance may be presumed. Predictably, the defendants counter this by arguing that: (1) this is a misrepresentation case; and (2) therefore reliance cannot be presumed but must be proved. The most recent guidance out of the Third Circuit on this issue appears in Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). In Sharp, the Third Circuit reaffirmed the notion that reliance is an essential element of a section 10(b) case. The circuit court then observed that in a number of instances, courts have held that reliance may be presumed. The general rule which emerged from those cases was that the presumption of reliance is proper in cases of alleged omissions, and improper in cases of alleged misrepresentations. The Sharp court, however, declined to follow blindly this omission-misrepresentation distinction, primarily because of the confusion such a dichotomy would cause in a case involving both omissions and misrepresentations. Instead, the Third Circuit embraced the view of the Second Circuit. “We therefore presume reliance only ‘where it is logical’ to do so.” Sharp, 649 F.2d at 188, quoting Lewis v. McGraw, 619 F.2d 192, 195 (2d Cir.1980), cert. denied, 449 U.S. 951, 101 S.Ct. 354, 66 L.Ed.2d 214 (1980). The" }, { "docid": "10497633", "title": "", "text": "n. 4, the court stated: The categories of ‘omission’ and ‘misrepresentation” are not mutually exclusive. All misrepresentations are also non-disclosures, at least to the extent that there is failure to disclose which facts in the representation are not true. Thus, the failure to report an expense item on an income statement, when such a failure is material in the Affiliated Ute sense . can be characterized as (a) an omission of a material expense item, (b) a misrepresentation of income, or (c) both. There is a true dilemma presented in a case in which there has been a general representation from which material facts are omitted and there is no independent alternative ground, such as an “open market” situation, that justifies dispensing with a requirement that plaintiffs show individual reliance ... we feel the conceptual problem should be explicitly recognized as one in which there is no completely just solution. v. Barrack, 524 F.2d 891, 905-06 (9th Cir. 1975). But see Blackie Some courts have held that individualized proof of reliance must be presented unless plaintiffs’ claims are grounded on nondisclo-sures unaccompanied by any representations whatsoever. See, e.g., Lorber v. Beebe, 407 F.Supp. 279, 289 (S.D.N.Y.1975); Herzfeld v. Laventhol, Krekstein, Horwath and Horwath, 378 F.Supp. 112, 127 (S.D.N. Y.1974). Other courts have held that where a plaintiff alleges both misrepresentations and nondisclosures, reliance is not an essential element of a claim for damages under Section 10(b) and Rule 10b-5 and may be inferred from a showing of materiality if plaintiffs “complain primarily of defendants’ withholding relevant information . ” or if “the essence of the claim is one of nondisclosure . . . ” See also Arthur Young & Co. v. United States District Court, supra, 549 F.2d 688, 689, 694; Blackie v. Barrack, supra, 524 F.2d 905-06; Competitive Associates, Inc. v. Laventhol, Krekstein, Horwath & Horwath et al., 516 F.2d 811, 814 (2d Cir. 1975) ; Clark v. Cameron-Brown Co., 72 F.R.D. 48, 57-59 (M.D.N.C.1976); Sharp v. Coopers & Lybrand, 70 F.R.D. 544, 547 (E.D.Pa.1976); Seiffer v. Topsy’s International, Inc.,64 F.R.D. 714, 718 (D.Kan.1974), appeal dismissed, 520 F.2d 795" }, { "docid": "6139135", "title": "", "text": "of enforcing investors’ rights, Biben v. Card, [1985-1986 Transfer Binder] Fed. Sec.L.Rep. (CCH) 1192,462, at 92,824 (W.D.Mo. Jan. 6, 1986) [available on WESTLAW, 1986 WL1199]; In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 137, 149 (D.N.J.1984). A. Numerosity and Commonality As noted, defendants do not dispute and I find that the requirements of Fed.R. Civ.P. 23(a)(1) and 23(a)(2) are met. Although the exact number of class members has not been determined, plaintiff's undisputed estimate that shareholders of record of Zayre common stock numbered more than 9,000 during the class period permits the inference that the class is so large that joinder is impracticable. See Abelson v. Strong, Civ. No. 85-0592-S, slip op. at 4 (D.Mass. July 30, 1987) (Skinner, D.J.) [available on WESTLAW, 1987 WL15872]; Kirby v. Cullinet Software, Inc., 116 F.R.D. 303, 306 (D.Mass.1987) (Wolf, D.J.). In addition, common questions of law and fact exist in this case regarding: (1) Whether statements made by defendants contained misrepresentations or omissions; (2) Whether the alleged misrepresentations or omissions were material; (3) Whether defendants acted with scien-ter; and (4) Whether the misrepresentations or omissions inflated the market price of Zayre common stock. B. Typicality and Adequacy Defendants contend first and most emphatically that plaintiff is an atypical and inadequate plaintiff because he will be subject to unique defenses regarding reliance. They argue both that he did not rely on the documents containing the alleged misrepresentations, and that he relied on extraneous factors. Defendants identify as outside influences the publication Value Line and a computer program that incorporated historical data and current price information as well as adjustments for plaintiff’s own subjective preferences. To the extent that defendants’ reliance argument depends on plaintiff’s deposition testimony that he had no specific memory of any of the documents identified in the complaint, but recalled “favorable press,” it extends beyond the scope of class certification and into the merits of this litigation. See Kirby, 116 F.R.D. at 307; Data Access, 103 F.R.D. at 139; M. Berenson Co. v. Faneuil Hall Marketplace, 100 F.R.D. 468, 471 (D.Mass.1984) (McNaught, D.J.). Class certification is not an appropriate" }, { "docid": "18381801", "title": "", "text": "the defendants and no basis for the assumption of reliance. Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880 (5th Cir.1973). The distinction here is that the cases relied upon by the plaintiffs were omissions cases whereas the instant cases primarily involve misrepresentations. The allegations stated in the complaints are almost entirely allegations of misrepresentations of material information presented in the prospectuses rather than the omission of material facts in the sale of Petro-Lewis securities. Where the misrepresentations and omissions are oral, precluding the uniformity of sales, rather than written, the court may infer reliance by the plaintiff in a section 10(b) and Rule 10b-5 action only where the defendant fails to disclose information material to the sale of the security. Where failure to disclose is material, the case is an omissions case. Affiliated Ute, supra; Huddleston v. Herman & MacLean, 640 F.2d 534 (5th Cir. 1981) (en banc modified on other grounds, 650 F.2d 815 (1981), aff'd in part and rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)); Simon, supra; Shores v. Sklar, 647 F.2d 462 (5th Cir.1981). “Where a 10b-5 action alleges defendant made positive misrepresentations of material information, proof of reliance by the plaintiff upon misrepresentations is required. Upon an absence of proof on the issue, plaintiff loses. On the other hand, where a plaintiff alleges deception by defendant’s nondisclosure of material information, the Ute presumption obviates the need for plaintiff to prove actual reliance on the omitted information.” Rifkin v. Crow, 574 F.2d 256, 262 (5th Cir.1978) (footnote omitted). This court has determined that the instant case is primarily one of a “misstatement or failure to state the facts necessary to make those statements made not misleading.” Huddleston, 640 F.2d at 548. Because this case is one of misrepresentation, it is necessary that each class member prove his individual reliance upon the material misrepresentations made to him. Certification as a class action, therefore, is highly inappropriate. Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749 (11th Cir.1984); Huddleston, supra. The plaintiffs’ final attempt to procure a" }, { "docid": "8344654", "title": "", "text": "is the test for materiality, see Flynn v. Bass Bros. Enterprises, Inc., 744 F.2d 978, 985 (3rd Cir.1984), but rather, whether the individual plaintiff actually would have considered the undisclosed or truthful information important. Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 (2d Cir.1981); Jacobs, Litigation and Practice Under Rule 10b-5 § 64.01[a] at 3-311. In Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), the Supreme Court held that when a 10b-5 case is predicated upon an alleged omission, as opposed to a misrepresentation, the reliance element will be presumed from the materiality of the information not disclosed. Id. at 153-54, 92 S.Ct. at 1472. Thus, the Plaintiff in such a case is relieved of the initial burden of establishing reliance if he has been successful in establishing materiality. The Third Circuit has held, however, that in cases involving both misrepresentations and omissions, the allocation of the burden of proof should not be set according to an inflexible rule but rather should be set according to a determination of where it more appropriately lies. Sharp v. Coopers & Lybrand, 649 F.2d 175, 188 (3rd Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982); see also Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 208 (3rd Cir.1990); Zlotnick v. TIE Communications, 836 F.2d 818, 821-822 (3rd Cir.1988). “We conclude that the proper approach to the problem of reliance is to analyze the plaintiff’s allegations, in light of the likely proof at trial, and determine the most reasonable placement of the burden of proof of reliance.” Sharp, 649 F.2d at 188 (citations omitted). “We therefore, presume reliance only 'where it is logical’ to do so.’ ” Id. In the present case, as was discussed above, the Plaintiff has alleged both omissions and misrepresentations with respect to the sale of her MSI stock in 1982. The Court should therefore presume reliance only if it is logical to do so. Here, because there is an affirmative statement by the Plaintiff that she did not rely on the Defendants’ alleged misrepresentations" }, { "docid": "720334", "title": "", "text": "1472, 31 L.Ed.2d 741 (1972), in which the Supreme Court held that in cases “involving primarily a failure to disclose,” proof of reliance is not required. Proof of reliance is not required because, where an omission is alleged, it would be difficult, if not impossible, to prove how the investor would have acted had the material information bren disclosed. In a pure omission case, all that is required is a showing of materiality, which does not depend on the circumstances and beliefs of the individual investors. Defendants argue that Affiliated Ute and cases which have followed it, such as Blackie v. Barrack, supra, do not apply to the instant case which involves misrepresentations rather than omissions. However, this argument is based in part upon a misreading of the complaint. The complaint alleges both misrepresentations and material omissions. The necessity of proving reliance becomes a more complicated question in cases such as this, where both misrepresentations and omissions are involved. As has often recognized, distinctions between the two often elevate form over substance. Little v. First California Co., 532 F.2d 1302, 1304 n. 4 (9th Cir.1976); Weinberger v. Jackson, 102 F.R.D. 839, 846 (N.D.Cal.1984). However, it is not necessary to resolve this question at the present time. First of all, to do so would be an unwarranted intrusion into the merits of the claims and defenses. In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139-140 (D.N.J.1984) (hereinafter “Data Access”). Furthermore, such a determination might be wasteful. At this point, we cannot know whether the misrepresentation or omission claims will ultimately prevail. See Sharp v. Coopers & Lybrand, 70 F.R.D. 544, 547 (E.D.Pa.1976), aff'd in part, rev’d in part on other grounds, 649 F.2d 175 (3rd Cir.1981). More importantly, however, whether or not reliance is a necessary element in a case involving misrepresentations and omissions is not a question that needs to be decided on this motion for class certification. If it is later determined that reliance is a necessary element, separate hearings could be held or the trial bifurcated to deal with this issue. Sharp, 70 F.R.D. at 547." }, { "docid": "10497668", "title": "", "text": "at a later stage, it becomes apparent that plaintiffs will rely on oral statements and misrepresentations in order to establish their claims and that the oral statements and misrepresentations varied materially from class member to class member, decertification of these classes or the certification of appropriate subclasses may, of course, become appropriate. . In Blackie v. Barrack, supra, the Ninth Circuit stated: Individual questions of reliance are likewise not an impediment—subjective reliance is not a distinct element of proof of 10b-5 claims of the type involved in this case. The class members' substantive claims either are, or can be, cast in omission or nondisclosure terms—the company’s financial reporting failed to disclose the need for reserves, conditions reflecting on the value of the inventory, or other facts necessary to make the reported figures not misleading. The [Supreme] Court has recognized that under such circumstances ‘involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision. This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact.’ (citations omitted) Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153-154, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972). See U.S. Financial Securities Litigation, [64 F.R.D. 443, 451 (S.D.Cal.1974)]; Caesars Palace Securities Litigation, [360 F.Supp. 366, 399 (S.D.N.Y. 1973)]; In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1344 (E.D.Penn.1972). (Emphasis added.) . Cameron v. E. M. Adams & Co., 547 F.2d 473, 477 (9th Cir. 1976). . Spector v. City of New York, 71 F.R.D. 550, 552 (S.D.N.Y.1976). . In Competitive Associates, the Second Circuit held: [A] showing of reliance is not required where a comprehensive scheme to defraud which includes not only omissions and misrepresentation, but substantial collateral conduct as well, is alleged. [Citation omitted.] Not every violation of the anti-fraud provisions of the federal securities law can be, or should be, forced into a category headed ‘misrepresentations’" }, { "docid": "23570610", "title": "", "text": "questions as to the reliance of each investor does not mean that the common questions of law and fact do not predominate.’ Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir.1985). Prudential, 148 F.3d at 315. Here, however, we do not know the content of the individual representations as they were not standard or scripted but were oral and varied. Moreover, we do not know whether or to what extent the representations facilitated the sales of Cinema Plus units. In the circumstances, we cannot say “that questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Rule 23(b)(3). We emphasize this point to demonstrate that we are in no sense undermining Prudential. In addition to finding this case presented individual questions regarding the alleged misrepresentations, the district court found this case involved individual questions of rebanee. The plaintiffs dispute this finding, arguing instead that they are entitled to a presumption of reliance. In Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472-73, 31 L.Ed.2d 741 (1972), the Supreme Court held that in cases seeking to predicate Rule 10b-5 liability upon omissions, -reliance will be presumed from the materiality of the information not disclosed. Conversely, no presumption arises in cases of alleged misrepresentations. See id.; Sharp v. Coopers & Lybrand, 649 F.2d 175, 187 (3d Cir.1981). The Court did not address, however, those situations involving both misrepresentations and omissions. Then, in Sharp, we held that in cases involving both omissions and misrepresentations, the “proper approach to the problem of reliance is to analyze the plaintiffs allegations, in light of the likely proof at trial, and determine the most reasonable placement of the burden of proof of reliance.” Id. at 188. Otherwise, to maintain in these cases an omission-misrepresentation dichotomy “would require the trial judge to instruct the jury to presume reliance with regard to omitted facts, and not to presume reliance with regard to the misrepresented facts.” Id. By examining the plaintiffs’ allegations and likely proof, however, the court can decide, on a case by case" } ]

[ { "docid": "22916494", "title": "", "text": "exhaust administrative remedies before filing his original complaint in April 1999 his claims could not go forward. The amended complaint was thereby dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) (1994 & Supp. V 1999). Judgment was entered on August 12, 1999, and plaintiff filed an appeal on August 18,1999. Plaintiff filed a second amended complaint on August 23, 1999. Attached as exhibits were various decisions from the Central Office Review Committee (Review Committee), which renders final decisions on inmate grievances. In the only decision pertinent to this appeal, the Review Committee had accepted in part plaintiffs grievance pertaining to his request for physical therapy. The district court treated the second amended complaint as a motion for reconsideration and denied it in a September 27, 1999 order for the same reason as had been given before, that is, because plaintiff had not exhausted his administrative remedies prior to filing the original complaint. We affirm. ANALYSIS I Merits of the Dismissal We apply a de novo standard of review to sua sponte dismissals made pursuant to 28 U.S.C. § 1915(e) or § 1915A, or 42 U.S.C. § 1997e. Marvin v. Goord, 255 F.3d 40, 42 (2d Cir.2001) (per curiam); Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). A. Whether Plaintiff’s Inadequate Medical Treatment Claims Relate to a “Prison Condition” Subject to Exhaustion Congress, in enacting the Prison Litigation Reform Act of 1995(Act), Pub.L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996), carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing suit under 42 U.S.C. § 1983. See Nussle v. Willette, 224 F.3d 95, 97-99 (2d Cir.2000), cert. granted sub nom. Porter v. Nussle, — U.S. -, 121 S.Ct. 2213, 150 L.Ed.2d 207 (June 4, 2001) (No. 00-853). The Act amended 42 U.S.C. § 1997e(a) so that it now provides No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available" } ]

[ { "docid": "4321118", "title": "", "text": "complaint, ostensibly to add additional state-law claims. Primarily, though, his motion argued that the court should have inferred a claim for retaliation from his original complaint and that the court overlooked other federal and supplemental state-law claims implicit in his original complaint. The district court denied leave to amend, reasoning that Conyers had no excuse for waiting 20 months to file his motion, and that allowing the amendment would unduly delay the action and prejudice the defendants. The court did not respond to Co-nyers’s contention that some of his claims had not been addressed. The defendants ultimately moved for summary judgment on the frisk and religious-exercise claims that survived screening and their motion to dismiss. They argued that Conyers had failed to exhaust his administrative remedies with respect to these claims because he filed no grievance concerning the frisk and his grievance about the Fast of Ramadan was deemed untimely. The district court agreed with this position and dismissed the suit in its entirety. On appeal, Conyers challenges the district court’s conclusion that he failed to exhaust his administrative remedies for the October 1995 search and the Fast of Ramadan in 1996. Conyers .also argues that the court did not analyze all of the claims in his original complaint. An inmate complaining about prison conditions must exhaust administrative remedies before filing suit. 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Exhaustion requires complying with the rules applicable to the grievance process at the inmate’s institution, Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002). Under Wis. Admin. Code § 310.09(6), a grievance must be filed “within 14 calendar days after the occurrence giving rise to the complaint” unless accepted late “for good cause.” Failure to comply with administrative deadlines dooms the claim except where the institution treats the filing as timely and resolves it on the merits. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.2004). In that instance the grievance has served its function of inviting prison administrators to take corrective action, and thus the administrative exhaustion requirement" }, { "docid": "23710032", "title": "", "text": "EASTERBROOK, Circuit Judge. Anthony Riccardo, an inmate of the Centraba Correctional Center in Illinois, needed a new cellmate after his former cellmate complained about being housed with him. Normally that pairing would have been made by Centralia’s placement office, but when the evening of May 28, 1997, arrived and some inmates remained unassigned after the regular placement officers had left, the task fell to Lt. Larry Rausch, who was serving the second shift. Rausch matched Riccardo with Juan Garcia, a pairing that should have lasted only until the placement officers on the day shift could review matters. Two days later Garcia sexually assaulted Riccardo, who sued Rausch under 42 U.S.C. § 1983. A jury concluded that Rausch had subjected Riccardo to cruel and unusual punishment and awarded $1.5 million in compensatory damages. The district court entered judgment on this verdict, and Rausch appeals. His lead-off argument is that Riccardo failed to use his administrative remedies. If so, then 42 U.S.C. § 1997e(a), part of the Prison Litigation Reform Act, forecloses this suit even though Riccardo challenges a discrete incident and wants a form of relief — money damages — that the administrative process in Illinois does not provide. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Riccardo did file an administrative grievance, but Rausch contends it was too late (in February 1998, while Illinois sets a limit of six months) and asked the state to prosecute Garcia rather than do anything about Rausch and the classification system. Prisoners must follow state rules about the time and content of grievances. See Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.2002); Strong v. David, 297 F.3d 646 (7th Cir.2002). Failure to do this means failure to use (and thus to exhaust) available remedies. Yet the state's administrative apparatus did not reject Riccar-do's grievance as untimely; it accepted and denied the grievance on the merits. At the time of these events, Illinois permitted a filing after six months when the prisoner had good cause, see" }, { "docid": "23613625", "title": "", "text": "insufficient to state a cause of action under § 1983”). We therefore conclude that the district court did not err in granting Rutter’s motion for summary judgment. 2. Supplementation of Harbin-Bey’s complaint Nor did the district court abuse its discretion when it denied Harbin-Bey’s motion to supplement his complaint as to his retaliation claim. Harbin-Bey sought to add allegations showing that Rutter had retaliated against him for filing the present action. The district court denied his motion because Harbin-Bey failed to exhaust his administrative remedies through the prison’s grievance procedures with regard to Rutter’s most recent alleged misconduct. Although Harbin-Bey filed a new administrative grievance against Rutter, he did so only after commencing this lawsuit. This court has held that a prisoner “may not exhaust administrative remedies during the pendency of the federal suit.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.1999) (dismissing an Ohio prisoner’s suit because he filed his federal complaint before completing the administrative process). We therefore conclude that the district court did not abuse its discretion in refusing to allow Harbin-Bey to supplement his complaint. D. The district court did not err in determining that Harbin-Bey had not exhausted his administrative remedies with regard to Martin and Powell Finally, Harbin-Bey argues that the district court erred in ruling that he had failed to exhaust his administrative remedies with respect to Martin and Powell. Pursuant to 42 U.S.C. § 1997e(a), a prisoner must exhaust all available administrative remedies prior to bringing a § 1983 action with respect to prison conditions, even if the state administrative process does not allow the specific type of relief sought by the prisoner. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that the exhaustion requirement of the Prison Litigation Reform Act (PLRA) applied to an inmate’s claims that he was beaten by corrections officers without justification). This exhaustion requirement is mandatory and must be enforced by the district court sua sponte. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998) (enforcing the exhaustion requirement sua sponte and dismissing without prejudice a prisoner’s complaint on" }, { "docid": "22296397", "title": "", "text": "form on which Bryant submitted his appeal stated that the appeal was due within four business days. The form also indicated that an untimely appeal might be considered if the reason why it was untimely was clearly stated. Bryant’s appeal was late and gave no explanation for its tardiness; it was dismissed as untimely. On 19 April 2004, Bryant was beaten again — this time in retaliation for filing his grievance. Fearing another violent reprisal, he did not file a second grievance. Bryant was eventually transferred to Wheeler Correctional Institution; but he filed no grievances there about his mistreatment at Rogers. Bryant brought suit under section 1983. Defendants filed motions to dismiss, which the district court construed as motions for summary judgment. The district court granted the motions and dismissed Bryant’s complaint without prejudice for failure to exhaust administrative remedies under the PLRA. II. Discussion The PLRA requires inmates to exhaust available administrative remedies before filing a lawsuit: “No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This rule applies to all inmate suits alleging excessive force, whether the prisoner alleges an isolated episode of mistreatment or “a prolonged and sustained pattern of harassment and intimidation by corrections officers.” See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 991-92, 152 L.Ed.2d 12 (2002) (internal quotation marks omitted). Therefore, “when a state provides a grievance procedure for its prisoners, ... an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 law suit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.2005) (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir.2000)). We have no discretion to waive this exhaustion requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir.1998). A Andrew Priester That Priester filed no grievance at either Rogers or GSP about the beatings he allegedly suffered is undisputed. Priester contends that he attempted to file grievances at both facilities; but his" }, { "docid": "6739845", "title": "", "text": "satisfied can be sufficient grounds to grant a 12(b)(6) motion to dismiss. See McCoy, 255 F.Supp.2d at 249 (“If failure to exhaust is apparent from the face of the complaint ... á Rule 12(b)(6) motion is the proper vehicle.”). See also, Brito, 2003 WL 21391676, at *2 (finding that it was clear on the face of the complaint that the exhaustion requirement had not been met and that dismissal under Rule 12(b)(6) was appropriate, where the complaint asserted that the administrative procedure was of no value to inmates and was a “sham.”) Williams’s claim is about a “prison condition,” within the meaning of the PLRA, and he must have exhausted the administrative process prior to filing suit. While the complaint shows that Williams did make efforts to gain medical attention through letters and conversations with Warden Zenk and the medical staff, these efforts do not include the required steps of the PLRA’s administrative remedy process. (See generally Compl. 1-5.) If it could be assumed that Williams’s listing of the steps he took in pursuing his claim was intended to be comprehensive, then his Bivens claim would have to be dismissed under Rule 12(b)(6), without prejudice, for failure to exhaust his administrative remedies. See Morales v. Mackalm, 278 F.3d 126, 128 (2d Cir.2002) (“If a district court dismisses a prisoner’s complaint for failure to exhaust administrative remedies, it should do so without prejudice”), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). However, keeping in mind that failure to exhaust is an affirmative defense, and that exhaustion need not be pled to state a claim, it is more appropriate in the case of this pro se plaintiff to proceed under a summary judgment standard, giving the plaintiff an opportunity to rebut the claim of failure to exhaust in his opposition. Indeed, defendants agree that summary judgment, pursuant to Rule 56, is also an appropriate basis for dismissal as the materials outside of the complaint show that there is no genuine issue of material fact pertaining to Williams’s exhaustion of the administrative remedies." }, { "docid": "6682303", "title": "", "text": "violating his rights under Kentucky law; 4) intentional infliction of emotional distress; and 5) negligence and gross negligence. In July 2009, the district court granted LCDC’s motion for summary judgment with respect to Napier’s federal claims, and dismissed his state law claims without prejudice. It concluded that by not filing a grievance under LCDC’s policy, Napier failed to exhaust all of his available administrative remedies as required under the PLRA. 42 U.S.C. § 1997e(a) (2006). The sole issue on appeal is whether Napier failed to exhaust all available administrative remedies under the PLRA. Since Napier does not contend that he exhausted his administrative remedies, the issue is moi'e specifically whether LCDC’s grievance policy was “available” to him such that he was required to exhaust it. Napier argues that LCDC’s administrative remedies were not available to him when he resided at the Marion facility, and that LCDC failed to explain its grievance policy or the PLRA to him. We conclude that the jail’s administrative remedies were available to Napier. Therefore, summary-judgment was appropriate and we AFFIRM. II. ANALYSIS The PLRA’s Exhaustion Requirement Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal citations omitted). The law seeks to alleviate the burden of this litigation by requiring prisoners to exhaust all administrative remedies before they can file suit in federal court. See 42 U.S.C. § 1997a. The “dominant concern” of the PLRA is “to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court.” Porter v. Nussle, 534 U.S. 516, 528, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (making the exhaustion requirement mandatory). Specifically, the law provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement is a strong one. To further" }, { "docid": "9919681", "title": "", "text": "Willard, a secure drug treatment facility, where he remained until March 2003. While at Willard, Ruggiero filed the complaint in this suit. The district court granted summary judgment to Defendants-Appellees based on Ruggiero’s failure to exhaust his administrative remedies as required by the PLRA. Ruggiero v. County of Orange, 386 F.Supp.2d 434, 437 (S.D.N.Y.2005). This appeal followed. DISCUSSION We review a district court’s grant of summary judgment de novo, Anderson v. Recore, 446 F.3d 324, 328 (2d Cir.2006), affirming when, construing all evidence in the light most favorable to the non-moving party, id., “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(c). In 1996, as part of the PLRA, Congress enacted a provision intended to “invigorate! ] the exhaustion prescription” for prisoners. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 803 of the PLRA, 42 U.S.C. § 1997e(a), provides that [n]o action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. This exhaustion requirement applies to excessive-force claims such as Ruggiero’s as well as other complaints about general conditions of prison life. Porter, 534 U.S. at 532, 122 S.Ct. 983. At the time of the alleged abuses claimed by Ruggiero, this circuit did not require exhaustion of claims related to single instances of mistreatment. Nussle v. Willette, 224 F.3d 95 (2d Cir.2000), rev’d, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12. But in February 2002 Porter made it clear that claims such as Ruggiero’s were subject to the exhaustion requirement. Ruggiero’s complaint was filed a year later. I. Whether Exhaustion is Required for One Who is Confined at a Drug Treatment Facility On appeal, Ruggiero does not contest either that he was a “prisoner” as defined in 42 U.S.C. § 1997e or that he was “confined” at Willard when he filed his complaint. He argues," }, { "docid": "398751", "title": "", "text": "departure and told to change into a jumpsuit. The parties dispute the exact characteristics of this garment. King describes it as “a see-through jumpsuit that visually expose[d] his genitals and buttocks,” and he says the guards refused to give him undergarments to cover himself. Defendants (the county sheriff and two guards at the jail) deny that the jumpsuit was transparent but concede it was “less than opaque.” And while insisting the jumpsuit was not see-through, they defend the policy on the ground that see-through garments are crucial to ensure security and safety during transfer. The jumpsuit’s actual appearance remains a mystery at this point because the defendants have so far resisted King’s discovery requests. Whatever the outfit’s opacity, King says that he complained about it to the guards. According to his account, they responded by laughing at him and telling him to be grateful he was not being transferred in winter. After changing into the jumpsuit, King was shackled together with other prisoners and driven to the state intake facility. Upon arrival, he and the other transferees waited for several hours in the presence of male and female guards before being processed and strip-searched again. King noticed that inmates from other jails were not similarly clad. He says his hours-long exposure in front of male and female guards and other male inmates caused him pain and humiliation and had no valid justification, especially in light of the fact that he had been strip-searched already and remained shackled and under surveillance throughout the transfer. II. Exhaustion of Administrative Remedies We begin our analysis with the district court’s grant of summary judgment for the defendants based on King’s failure to exhaust as required by 42 U.S.C. § 1997e(a). That provision bars lawsuits challenging prison conditions unless the prisoner has first exhausted “such administrative remedies as are available.” See generally Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (explaining details and purpose of exhaustion rule). The exhaustion requirement is strict. A prisoner must comply with the specific procedures and deadlines established by the prison’s policy. Woodford v." }, { "docid": "9769015", "title": "", "text": "the Defendants violated their civil rights. After filing an answer, the Defendants moved for summary judgment. The district court dismissed Alexander’s use-of-excessive-force claim because he failed to exhaust his administrative remedies. Regarding Alexander’s and Carroll’s conditions-of-confinement claims, the district court granted the Defendants’ motion for summary judgment, after finding that Alexander’s and Carroll’s Eighth Amendment rights had not been violated and that they were not entitled to any relief as a matter of law. II. DISCUSSION A. Alexander’s § 1988 Excessive Force Claim The district court dismissed Alexander’s excessive force claim, finding that he did not properly exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). We review de novo a district court’s dismissal of a § 1983 suit for failure to exhaust administrative remedies. Days v. Johnson, 322 F.3d 863, 866 (5th Cir.2003). The Prison Litigation Reform Act, § 1997e(a), declares: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Exhaustion is mandatory for “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Alexander argues on appeal that the Detention Facility’s grievance procedures were inadequate. But it is not for the courts to inquire whether administrative procedures “satisfy ‘minimum acceptable standards’ of fairness and effectiveness.” Booth v. Churner, 532 U.S. 731, 740 n. 5, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Under § 1997e(a), a prisoner must exhaust such administrative remedies as are “available,” whatever they may be. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001). If a prisoner has not exhausted all available administrative remedies, dismissal is appropriate. See id. at 359. Alexander also argues that the grievance procedures were not “available” to him and that he made reasonable attempts to comply with them. The evidence, however, shows that grievance procedures were available" }, { "docid": "9769016", "title": "", "text": "correctional facility until such administrative remedies as are available are exhausted.” Exhaustion is mandatory for “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Alexander argues on appeal that the Detention Facility’s grievance procedures were inadequate. But it is not for the courts to inquire whether administrative procedures “satisfy ‘minimum acceptable standards’ of fairness and effectiveness.” Booth v. Churner, 532 U.S. 731, 740 n. 5, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Under § 1997e(a), a prisoner must exhaust such administrative remedies as are “available,” whatever they may be. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001). If a prisoner has not exhausted all available administrative remedies, dismissal is appropriate. See id. at 359. Alexander also argues that the grievance procedures were not “available” to him and that he made reasonable attempts to comply with them. The evidence, however, shows that grievance procedures were available to Alexander and that he, nonetheless, failed to pursue them. The Detention Facility’s grievance procedures were explained in the Inmate Handbook given to Alexander when he first arrived. Alexander admits that he knew how to prepare a handwritten grievance and that he was given the necessary paper and writing instruments. Alexander failed to file a grievance not because he was unable to do so, but because, in his words, “those things were already done, and nothing could be done about it.” While it may be true that the Detention Facility’s guards did not give Alexander a pre-printed grievance form, this does not change the fact that he was provided with the means to write one himself. In light of Alexander’s admissions, it is clear that he did not pursue the administrative remedies available to him. Thus, we conclude that the district court properly dismissed Alexander’s excessive-force claim. B. Alexander’s and Carroll’s § 1983 Conditions-of-Confinement Claims The district court granted summary judgment on Alexander’s and Carroll’s conditions-of-confinement claims, after finding that they suffered no Eighth Amendment" }, { "docid": "22955897", "title": "", "text": "retaliation. In addition, the district court noted that Kaba filed this lawsuit a mere 17 days after that beating, while he still had three days left to file a formal grievance under 28 C.F.R. § 542.14(a). While the court rejected an absolute rule that filing a lawsuit before the grievance period had expired necessarily constituted a failure to exhaust, it was persuaded that Kaba could have exhausted but opted to file a lawsuit instead. It noted that Kaba was physically able to file the proper paperwork and that he could have filed a grievance directly with the Regional Director if he felt that he remained in jeopardy. See 28 C.F.R. § 542.14(d)(1). Ill The Prison Litigation Reform Act (PLRA) provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a) (emphasis added). As the Supreme Court recently said in Ngo, “A centerpiece of the PLRA’s effort ‘to reduce the quantity ... of prisoner suits’ is an ‘invigorated’ exhaustion provision, § 1997e(a).” 126 S.Ct. at 2382 (quoting Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). Prisoners must exhaust even where the relief sought cannot be granted in the administrative process. Ngo, 126 S.Ct. at 2382-83. “The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to ‘affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.’ ” Id. at 2387 (quoting Nussle, 534 U.S. at 525, 122 S.Ct. 983). Nonetheless, the exhaustion requirement is not jurisdictional. Ngo, 126 S.Ct. at 2392. If administrative remedies are not “available” to an inmate, then the inmate cannot be required to exhaust. Thus, “[cjorrections officials concerned about maintaining order in their institutions have a reason for creating and retaining grievance systems that provide— and that are perceived as providing — a meaningful opportunity for prisoners to raise meritorious grievances.”" }, { "docid": "1855112", "title": "", "text": "in the pretrial order. Plaintiff argues that the district court should not have granted summary judgment based solely on the claims alleged in the Amended Complaint because the discovery process made it clear to all the parties that plaintiff had suffered constitutional deprivations beyond those specifically pled in the pro se Amended Complaint. Finally, he contends that the district court erred in denying his motion to compel discovery against the Love County defendants. We address these arguments below along with the relevant facts as they relate to plaintiffs claims against each defendant. II. Administrative Exhaustion Before turning to the merits of plaintiffs claims, we must first consider the issue of administrative exhaustion. The Prison Litigation Reform Act (PLRA) imposes specific filing requirements on prisoners seeking to file civil actions regarding prison conditions, which include “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong,” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). One requirement is that a prisoner exhaust all available administrative remedies before bringing suit. 42 U.S.C. § 1997e(a). Ex haustion under § 1997e(a) is mandatory, Porter, 534 U.S. at 524, 122 S.Ct. 983, and we have held that the fact of exhaustion must be specifically pled by the plaintiff, Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir.2003). In particular, the plaintiff must “attach a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome.” Id. (quotation marks and brackets omitted). Because plaintiff did not plead exhaustion in his Amended Complaint, we issued an order directing him to show cause why his case should not be dismissed for failure to exhaust, and we invited the defendants to file a reply to the plaintiffs submission. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1238, 1240 (10th Cir.2005) (reversing merits disposition and remanding to district court to dismiss action without prejudice for failure to exhaust administrative remedies). In response, plaintiff" }, { "docid": "22071915", "title": "", "text": "and unsafe living conditions in violation of the Eighth Amendment of the United States Constitution. Defendants moved to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The district court granted Defendants’ motion and dismissed the action with prejudice. It held that Griffin had failed to exhaust his administrative remedies, noting that he alleged deliberate indifference to his medical needs in his federal action without having first grieved it to the prison. Griffin filed a Motion to Reconsider, which the district court granted for reasons unrelated to this appeal. The district court then dismissed the action without prejudice, reiterating the reasoning underlying its earlier dismissal. Griffin timely appeals. The district court’s dismissal without prejudice would typically constitute a non-final judgment and preclude appellate review. However, we treat the dismissal as final because Griffin “has no way of curing the defect found by the court: there is no indication he could begin a new administrative process in the prison.” See Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798" }, { "docid": "13123090", "title": "", "text": "for his injuries. The County Defendants and EMSA filed separate motions for summary judgment, contending, among other things, that Rodriguez had failed to exhaust administrative remedies. Rodriguez acknowledged that he had not exhausted administrative remedies, but sought to excuse his omission primarily for two reasons. First, he contended that he did not think exhaustion was required for a single episode of prisoner mistreatment, as distinguished from continuing prison conditions. Second, he contended that by the time the Supreme Court ruled in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), that all prisoner complaints required exhaustion, he had been transferred from the Westchester County Jail, and administrative remedies were no longer available to him. The District Court (Robert P. Patterson, Jr., District Judge) granted the Defendants’ motions, entering judgment for the County Defendants on August 23, 2002, and for EMSA on June 23, 2003. The Court acknowledged that in 2000, prior to the Supreme Court’s 2002 decision in Porter, our Court had ruled that exhaustion was not required for single episode grievances, see Nussle v. Willette, 224 F.3d 95, 100 (2d Cir.2000), rev’d, Porter, 534 U.S. at 523, 122 S.Ct. 983. Nevertheless, Judge Patterson concluded that Rodriguez had been required to exhaust because he had had more than a year before his transfer during which he could have exhausted then-available administrative remedies and, that during that interval, he could not have relied on Nussle, which had not then been decided. Rodriguez appealed the dismissal of his claims against the County Defendants in No. 02-0325, and later appealed the dismissal of his claims against EMSA in No. 03-0240. The Defendants moved to dismiss both appeals because of Rodriguez’s failure to exhaust administrative remedies. On April 16, 2004, we entered a brief summary order in No. 02-0325, which denied the County Defendants’ motion to dismiss Rodriguez’s appeal and remanded to the District Court for consideration of the merits. Somewhat cryptically, we noted only that Rodriguez’s administrative remedies became unavailable prior to the Supreme Court’s ruling in Porter. The County Defendants petitioned for rehearing. On May 6, 2004, we" }, { "docid": "13123091", "title": "", "text": "grievances, see Nussle v. Willette, 224 F.3d 95, 100 (2d Cir.2000), rev’d, Porter, 534 U.S. at 523, 122 S.Ct. 983. Nevertheless, Judge Patterson concluded that Rodriguez had been required to exhaust because he had had more than a year before his transfer during which he could have exhausted then-available administrative remedies and, that during that interval, he could not have relied on Nussle, which had not then been decided. Rodriguez appealed the dismissal of his claims against the County Defendants in No. 02-0325, and later appealed the dismissal of his claims against EMSA in No. 03-0240. The Defendants moved to dismiss both appeals because of Rodriguez’s failure to exhaust administrative remedies. On April 16, 2004, we entered a brief summary order in No. 02-0325, which denied the County Defendants’ motion to dismiss Rodriguez’s appeal and remanded to the District Court for consideration of the merits. Somewhat cryptically, we noted only that Rodriguez’s administrative remedies became unavailable prior to the Supreme Court’s ruling in Porter. The County Defendants petitioned for rehearing. On May 6, 2004, we denied the petition for rehearing in a summary order that amplified the reasons for our April 16 order. Rodriguez v. Westchester County Jail Correctional Department, No. 02-0325 (2d Cir. May 6, 2004). Our May 6 order pointed out that because a panel of this Court had interpreted the PLRA not to require exhaustion for claims of excessive force, “Rodriguez’s own prior understanding of the statute, even though ultimately determined to be incorrect, see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), was a ‘justification for not pursuing available remedies.’ ” Rodriguez v. Westchester County Jail Correctional Department, No. 02-0325 (2d Cir. May 6, 2004) (quoting Berry v. Kerik, 366 F.3d 85, 88 (2d Cir.2004)). That sentence comprehended two points that we now further elaborate. First, in Berry we had stated that a prisoner’s complaint should be dismissed with prejudice where administrative remedies were available for a reasonable length of time and were not exhausted “in the absence of any justification.” Berry, 366 F.3d at 88. Berry thus implied that circumstances" }, { "docid": "398752", "title": "", "text": "other transferees waited for several hours in the presence of male and female guards before being processed and strip-searched again. King noticed that inmates from other jails were not similarly clad. He says his hours-long exposure in front of male and female guards and other male inmates caused him pain and humiliation and had no valid justification, especially in light of the fact that he had been strip-searched already and remained shackled and under surveillance throughout the transfer. II. Exhaustion of Administrative Remedies We begin our analysis with the district court’s grant of summary judgment for the defendants based on King’s failure to exhaust as required by 42 U.S.C. § 1997e(a). That provision bars lawsuits challenging prison conditions unless the prisoner has first exhausted “such administrative remedies as are available.” See generally Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (explaining details and purpose of exhaustion rule). The exhaustion requirement is strict. A prisoner must comply with the specific procedures and deadlines established by the prison’s policy. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The prisoner must do so even if he expects the process will ultimately be futile, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 536 (7th Cir.1999). At the same time, the statute requires exhaustion only of remedies that are “available.” Prison authorities cannot immunize themselves from suit by establishing procedures that in practice are not available because they are impossible to comply with or simply do not exist. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002) (“we refuse to interpret the PLRA so narrowly as to permit prison officials to exploit the exhaustion requirement through indefinite delay”) (internal formatting omitted); Johnson v. Litscher, 260 F.3d 826, 829 (7th Cir.2001) (“For the exhaustion requirement to apply, there must be some administrative remedy to exhaust.”). Failure to exhaust is an affirmative defense that a defendant has the burden of proving. Westefer v. Snyder, 422 F.3d 570, 577 (7th" }, { "docid": "22068771", "title": "", "text": "Judge Ishii on February 18, 2003. She concluded that Hall had met the exhaustion requirement, finding that “the court cannot find that it was necessary for him to continue pursuing his appeal.” Magistrate Judge Snyder noted that she found the second level response to be “inconsistent with a true and complete denial,” and concluded that “[pjlaintiff s inmate appeal grieved the facts at issue in this suit and to the extent the process could provide plaintiff with relief on the complaint stated, it provided such relief when plaintiffs allegation of staff misconduct was referred for investigation.” On April 7, 2003, the district court adopted Judge Snyder’s findings and recommendations in full. The district court later granted the defendant’s motion to allow an interlocutory appeal, and we accepted the appeal. DISCUSSION I. Congress, through the PLRA, changed in some significant respects the rules that had been previously applicable in federal court for prisoner suits challenging the conditions of confinement. Of pertinence here is amended § 1997e(a), which creates “a general rule of exhaustion” for prisoner civil rights cases. Porter v. Nussle, 534 U.S. 516, 525 n. 4, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 1997e(a) provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The question before us is whether Brown and Hall properly exhausted “such administrative remedies as are available” before proceeding to the district court. Two Supreme Court decisions, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), and Porter v. Nussle, provide substantial guidance in discerning the meaning of § 1997e(a) as it pertains to this question. In Booth, a prisoner sought injunctive relief and monetary compensation for alleged Eighth Amendment violations. 532 U.S. at 734, 121 S.Ct. 1819. The issue addressed was whether the PLRA required Booth to exhaust the prison grievance process even though it promised no hope of the monetary relief he sought. Couched in terms" }, { "docid": "5750761", "title": "", "text": "The Magistrate Judge found that, to the extent this cause of action was one against the RCI officers under § 1983, it challenged the conditions of Wagner’s confinement. Under the PLRA a prisoner is required to exhaust his administrative remedies before filing a § 1983 action concerning his confinement. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). This provision is mandatory, and prisoners must exhaust all available remedies, even those where the relief requested — monetary damages-— cannot be granted administratively. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Nicholas v. White, 2006 WL 2583765, *2 (D.S.C. Sept. 7, 2006). Exhaustion is also now required in all suits challenging prison conditions, not just suits brought under § 1983. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As such, Wagner was required by the PLRA to exhaust all “available” administrative remedies prior to bringing this suit in federal court. Therefore, the Magistrate Judge correctly found that Wagner’s failure to exhaust the relevant prison grievance procedures barred this claim. Wagner does not object to the Magistrate Judge’s finding that he did not satisfied the PLRA’s exhaustion requirements; rather, Wagner objects that the exhaustion requirement obstructs his “freedom to petition my government for redress” and is therefore unconstitutional. The Supreme Court, however, has repeatedly enforced and upheld the PLRA’s exhaustion requirements. Woodford v. Ngo, — U.S. --, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12; Booth, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958. The court therefore finds that Wagner’s contention that the PLRA is unconstitutional is without merit. Having reviewed the entire record, including Plaintiffs objections, the court concludes that the R & R accurately summarizes the facts and law applicable to this matter, and correctly finds that Wagner’s Complaint fails to state" }, { "docid": "23484936", "title": "", "text": "claims without prejudice. The order noted that the dismissal was, de facto, with prejudice, given the expiry of the statute of limitations. Final judgment was entered the same day. Coleman timely appealed. II. Coleman argues the magistrate judge erred by dismissing his claims against certain defendants for failure to exhaust ad ministrative remedies. We review dismissals for failure to exhaust de novo. Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir.2007). The Prison Litigation Reform Act of 1995 requires a prisoner to exhaust all available grievance procedures before filing suit. 42 U.S.C. § 1997e(a). This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). In Jones v. Bock, the Supreme Court held that exhaustion is an affirmative defense, rather than a pleading requirement the prisoner must satisfy in his complaint. 549 U.S. 199, 216, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007). As such, it is error to dismiss a prisoner’s complaint for want of exhaustion before a responsive pleading is filed unless the failure to exhaust is clear from the face of the complaint. Carbe, 492 F.3d at 328. District courts may not circumvent this rule by considering testimony from a Spears hearing or requiring prisoners to affirmatively plead exhaustion through local rules. See id. In response to question III on his form complaint, which seeks information regarding the inmate’s exhaustion of administrative remedies, Coleman attached copies of the “Step 2” grievances that he previously submitted to prison authorities. He did not otherwise mention exhaustion in his complaint. Thus, in concluding that Coleman failed to exhaust administrative remedies, the magistrate judge necessarily relied upon the Step 2 grievances or Lively’s testimony from the Spears hearing. Either basis constitutes reversible error. III. Because we cannot rely on the affirmative defense of failure to exhaust, we must first consider the sufficiency of Coleman’s complaint against Sweetin, Oliver, Cowan, and Brown for unsafe prison conditions. We review dismissals under 28 U.S.C. § 1915A de novo. Green v. Atkinson, 623" }, { "docid": "13993112", "title": "", "text": "Thornton was serving a life sentence. She further testified that Thornton, thirty-four years old at the time, was classified as an “extremely high escape risk.” She stated he had a “moderate aggression level” and was currently assigned to a unit for inmates with “high to moderate aggression levels.” In addition, she told the court that at least two security officers, including one lieutenant, would be needed to transport him to court. In light of the high security and escape risk Thornton posed, in addition to the fact that approximately twenty persons from the Department of Corrections (both inmates and employees) were listed as potential witnesses, the district court decided to conduct the trial by video-conference. At trial, Thornton and the defense counsel appeared via videoconference and were not physically present in the courtroom with the jury. In addition, all the witnesses testified by videoconference, save one that testified by telephone. ■ The jury returned a verdict for the defendants, and Thornton appeals. II. ANALYSIS A. Exhaustion of Administrative Remedies We review tie district court’s grant of summary judgment de novo. McCoy v. Gilbert, 270 F.3d 503, 508 (7th Cir.2001). “Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court.” Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In 1996, however, as part of the Prison Litigation Reform Act (“PLRA”), Congress made exhaustion a mandatory prerequisite for a prisoner’s suit concerning the conditions of his confinement brought under section 1983. Porter, 534 U.S. at 524, 122 S.Ct. 983. The PLRA’s exhaustion provision now reads: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administra tive remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,” Porter, 534 U.S. at 532, 122 S.Ct. 983, and “an inmate must exhaust irrespective of the forms of relief sought and" } ]

[ { "docid": "6812664", "title": "", "text": "HASTINGS, Circuit Judge. Plaintiff-appellant, Edith P. Reitan, brought this action to recover damages resulting from injuries sustained while riding as a paying passenger in a common carrier motor bus insured by defendant-appellee, The Travelers Indemnity Company. There was diversity of citizenship vesting jurisdiction in the district court. In a trial by jury and at the close of all the evidence the trial court granted defendant’s motion for a directed verdict and entered judgment dismissing the complaint. This appeal followed. The sole issue before us is whether the trial court erred in taking the case from the jury and directing a verdict'for defendant. The complaint charged the bus driver with negligent operation of the bus and with failing to exercise the highest degree of care for plaintiff’s safety consistent with the practical operation of the bus. The trial court found that there was insufficient evidence from which the jury could reasonably infer that defendant’s bus driver was negligent, and further that as a matter of law there was no negligence on the part of the bus driver and that plaintiff was guilty of contributory negligence. Under the Wisconsin Comparative Negligence Statute, Wis. Stat. § 331.045 (1957), the legal effect of the latter finding was that the contributory negligence of plaintiff was, as a matter of law, equal to, or greater than, the negligence, if any, of defendant’s bus driver. If the trial court was correct in either finding, the verdict was properly directed. We shall first consider the issue relating to the sufficiency of the evidence. We are governed by the rule that, in a trial of issues of fact before a federal court and jury, if the evidence, with all the inferences that justifiably could be drawn from it, constitutes a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, then a motion for a directed verdict for the other party should be denied. Burg v. Great Atlantic & Pacific Tea Company, 7 Cir., 1958, 256 F.2d 613. We must determine “whether there is any evidence in the record, together with all reasonable" } ]

[ { "docid": "2287896", "title": "", "text": "HOLMES, Circuit Judge. This appeal is from a judgment for the appellee in an action for damages for personal injuries, received by him when his automobile collided with a stationary or slowly moving train at a railroad crossing in Louisiana on February 9, 1951, about seven o’clock p. m. The train was owned by the Calcasieu Paper Company, which was insured by the appellant. At the close of the plaintiff’s evidence in the court below, the defendant moved for an instructed verdict, which was overruled by the court. The defendant introduced no evidence and, after closing its case, again moved for an instructed verdict. The court reserved its ruling on the motion, under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and allowed the case to go to the jury, which returned a verdict for the plaintiff. Whereupon, the motion for an instructed verdict was overruled; a motion for judgment notwithstanding the verdict also overruled; and judgment for the plaintiff entered upon the verdict. The plant of the Calcasieu Company is located near Elizabeth, Louisiana. Smoke from its chimneys sometimes settled in low areas around the plant site and, in combination with natural atmospheric elements, caused a foggy condition. In connection with its production, the company owned some industrial railroad tracks, which intersected said highway, over which it operated the steam engine and eight cars that blocked the highway at the time of the accident, which was approximately a quarter of a mile from the plant. The plaintiff alleged that the sole proximate cause of the injury was the negligence of the paper company in blocking the highway without sounding any signal or erecting any warning device, and that smoke from the train and the plant combined to create the condition that existed when the accident occurred. The defendant alleged that the lights of the engine were shining; that proper signals of the presence of the train were given; that warning signs were at the crossing; and that the paper company was not negligent in any respect. The appellee, who was the sole occupant of his automobile," }, { "docid": "3738078", "title": "", "text": "FITZHENRY, Circuit Judge. Appellee instituted her common-law action to recover damages for the wrongful death of her intestate in the circuit court of St. Clair county, 111. Appellant is a Missouri corporation, while appellee is a citizen of Illinois. Appellant removed the cause to the United States District Court on the ground of diversity of citizenship. After the settlement of the issues, the cause was submitted to a jury, which returned a verdict in favor of appellee, in the sum of $5,000. A motion for a new trial was denied and judgment entered upon the verdict, from which this appeal is prosecuted. The action was brought to recover damages occasioned by tho death of William E. Bansau, appellee’s intestate, on September 2, UK it, due, it was alleged, to the negligence of defendant in the operation of a truck. On that day a gasoline motor train of the Chicago & Alton Eailroad had a collision with a truck just west of Streator, 111., where tho tracks of that railroad cross at grade state route No. 17. The latter is a concrete highway, 20 feet in width, which runs east and west; the railroad runs northeast and southwest and crosses the highway at an angle of 45 degrees. Tho truck was driven by G. M. Flint, and was traveling from west to east toward Streator on the hard road. The train was coming from Streator, destined for Peoria, and the truck ax>proaehed it from the right. Bansau was the engineer operating the train, which consisted of two cars and was driven by a gasoline motor. Tho front end of tho first car was circular in form, with the engineer’s seat on the right-hand side. The second car was for passengers. As the train proceeded in a southwesterly direction, approaching the state highway, the bell was ringing and ihe usual crossing blasts of the whistle were blown. The usual stop signs were posted about 150 feet from, and on either side of, the track on the highway. There were also posted at the railroad crossing the usual railroad crossing cross-arm signs. It" }, { "docid": "16894188", "title": "", "text": "PARKER, Circuit Judge. This is an appeal in a railroad crossing collision case in which there was verdict and judgment for plaintiff; and the only question presented by the appeal is the sufficiency of the evidence to take the case to the jury against defendant’s motion for a directed verdict. The collision occurred around eight o’clock of a dark, foggy night in February near Elizabeth City, North Carolina, where the highway between Elizabeth City and Hertford crosses a little used spur track of the defendant. According to plaintiff’s testimony he approached the crossing, with which he was familiar, driving his automobile carefully and at a rate of speed not exceeding twenty-five miles per hour, when he ran into a train of cars standing still and completely blocking the crossing. There is a curve in the highway approaching the crossing, but the evidence is that the crossing is ordinarily visible for a distance of 100 feet or more. Plaintiff testified that because of the darkness and the fog, and because the railway car blocking the crossing was of a dull color, he did not see it until within a distance of twenty feet, when the collision was unavoidable. There was evidence on the part of defendant that the cars were being moved across the crossing in a shifting operation; that upon approaching the crossing they were stopped and a trainman was sent ahead with a lantern to give warning; and that the movement had been resumed and the cars were in motion at the time of the collision. On motion for directed verdict, plaintiff’s version of the occurrence must be accepted, but there is nothing in his version to justify an inference that the cars had been stopped upon the crossing for an unreasonable length of time, or for one not properly incident to the shifting operation which was in progress. Viewing the evidence in the light most favorable to plaintiff, we think that the motion for directed verdict should have been granted on the ground that no actionable negligence was shown. There was nothing in the evidence to warrant a" }, { "docid": "2325718", "title": "", "text": "comparing the negligence of the parties, the contributory negligence of the plaintiff is found to exceed in any degree that which under the circumstances amounts to slight negligence, or if the negligence of defendant falls in any degree short of gross negligence under the circumstances, then the contributory negligence of plaintiff, however slight, will defeat a recovery.” Plaintiff’s truck was on a regular run between Blair and Cozad, Nebraska, on United States Highway 30. The highway at the point of collision is level and runs in a northwesterly and southeasterly direction. The truck was going northwest. The defendant’s spur track runs northeasterly from defendant’s main line approximately a mile to an industrial plant. It crosses the highway about 800 or 900 feet northeast of the point where it leaves the main line at an angle of about 45 degrees. The crossing is at grade and is only a few feet west of the east city limits of the City of Cozad. The spur track is used but little, there being only about 12 train movements a week over it. Robert Warne was the driver of the truck. Pie was an experienced driver and perfectly familiar with the highway and the fact that the defendant’s spur track crossed it at the point of the accident. Viewing all of the evidence in the light most favorable to the conclusion the jury reached, as we must do in testing the sufficiency of the evidence to support the verdict, the following situation was presented by the evidence. The tractor and trailer were about 48 feet long and together with the freight on the trailer weighed approximately 50,000 pounds. It was traveling about 45 to 50 miles per hour when it passed a “Congested Area” sign 1100 feet east of the crossing, and a “Speed Limit 35 Miles Per Hour” sign 1000 feet east of the crossing. About one-quarter of a mile cast of the railroad crossing Warne dimmed the lights on the truck for an oncoming automobile which he later met about 650 feet east of the crossing. After passing this car, knowing that" }, { "docid": "13993999", "title": "", "text": "above the tracks at the northeast and southwest corners of the intersection. Those lights were designed to illuminate not only the crossing itself but a train that might be on the crossing as well. The plaintiff had travelled this highway a number of times and was familiar with the railroad crossing at the point of the collision. Although at the time of the accident he did not know exactly how close he was to the crossing, he knew he was in the vicinity of it. The night being foggy, he had planned to stop at a truck stop which he knew he was approaching and which he also knew to be east of the intersection in question. There was a heavy fog overhanging parts of the highway and in travelling from Findlay to the place of the accident, the plaintiff had passed through several patches of fog which were about a mile in length. At the time of the accident, he had been driving in a dense fog for three or four miles. The plaintiff’s tractor-trailer and load weighed approximately twenty-five tons. The evidence is that he had been travelling at a speed of about thirty miles per hour, until he reached the point of the grade, about four hundred feet from the crossing and that he then reduced his speed to twenty-seven or twenty-eight miles per hour; that he had vision for fifty or sixty feet ahead and that he could stop within the distance of his vision. It is conceded that at the time of the accident the defendant railway company was complying with all statutory requirements. Counsel for the plaintiff claimed that the crossing in question was an extraordinarily hazardous one and that the railroad company was negligent in not providing safety devices in addition to the statutory requirements. Section 4907.47 Ohio Revised Code provides that a railroad company is not required to use extra safeguards, except by order of the Public Utilities Commission. No order was ever made by the Commission. There is evidence that it was characteristic of the area of this crossing to be" }, { "docid": "19022778", "title": "", "text": "DUFFY, Circuit Judge. This is a suit for damages for personal injuries which plaintiff suffered when he was struck by one of defendant’s trains on or near the intersection of the defendant’s tracks with Hale Street and Chicago Avenue, in the Village of Palatine, Cook County, Illinois. On the day before-the trial, the District Court, on its own motion, severed the issue of damages from the issue of liability, acting under Rule 21 of the Civil Rules of the District Court for the Northern District of Illinois. Both the plaintiff and defendant objected to the severance. At the close of plaintiff’s case, defendant moved for a directed verdict which motion was denied. Defendant then rested without offering any evidence. The issue of liability was submitted to the jury, and a verdict finding the defendant “not guilty” of negligence was returned. Judgment in favor of defendant was entered on the verdict. Hale Street is unpaved south of the tracks and comes to a dead end about one block south of the intersection. North of the tracks, Hale Street is approximately 24 feet in width from curb to curb. South of the track the width of the travelled portion of the street is approximately 40 feet. On the east side of Hale Street and south of the tracks, there is a driveway which leads into the premises of the Hines Lumber Company. Also east of the crossing, a switch track runs in a southeasterly direction from which freight cars can be loaded into and unloaded from the Hines building. Chicago Avenue is a paved street 30 feet 6 inches wide. A crossing gate is located at the southeast corner of the intersection and also on the northwest corner. A similar gate is located on Chicago Avenue west of the intersection which barricades the sidewalks as well as the street. The posts which support the gates are equipped with flasher lights. Two main lines of railroad track cross the intersection at an angle of approximately 30 degrees; the northerly tracks are used for southeast bound trains, while the southerly tracks are utilized by" }, { "docid": "8703037", "title": "", "text": "LINDLEY, Circuit Judge. Plaintiff sued to recover damages for personal injuries incurred in a collision between a passenger train operated by defendant and a tractor-trailer which he was driving, as employee of Ellis Trucking Company, Inc., hereinafter referred to as Ellis or plaintiff’s employer. Defendant counterclaimed for the damage to its locomotive in the same collision. A jury found for plaintiff on both complaint and counter-claim. Defendant appeals from the judgment entered on the verdict and assigns error upon the action of the District Court in denying its motions for a directed verdict and for judgment notwithstanding the verdict, which were based on its contention that plaintiff was guilty of contributory negligence as a matter of law. The essential evidence, viewed most favorably to plaintiff, follows. The accident occurred at a crossing within the city limits of Anderson, Indiana, where defendant’s main line, extending in a general southwesterly and northeasterly direction, intersects an east-west street known as West 25th. A second street, Arrow Avenue, runs north and south and dead-ends into 25th a short distance west of the crossing, with a cut-off for east bound traffic from Arrow crossing defendant’s tracks to intersect with 25th, just east of the crossing, thus forming a Y highway intersection. The crossing on West 25th lies west of the center of the fork of the Y formed by the approaches from Arrow. The crossing was guarded by warning signals, topped with the usual “railroad crossing” sign, so arranged that one or more of the alternately flashing red lights faced in each direction, east and west, on 25th and each approach of the Arrow Avenue lanes. In his trips between Detroit and Indianapolis, plaintiff had passed over this highway many times. On the morning of April 26, 1950, about 6 A.M., he approached the railroad from the east on 25th Street, traveling at approximately 20 miles per hour, but reducing to 15 when he was about 80 feet east of the crossing. At the same time defendant’s passenger train, composed of two locomotives and thirteen baggage and passenger cars, came from the northeast, traveling in" }, { "docid": "13993998", "title": "", "text": "returned a verdict in the sum of $75,000. The railway company has double tracks which run generally north and south and cross the highway at the point of the collision at right angles. A grade approximately three to three and a half percent begins about four hundred feet west of the crossing, so that the tracks are about ten feet above the level road grade. There are no obstructions at the crossing and in the daytime or on a clear night, the visibility both ways along the tracks is almost unlimited. The crossing was marked by the standard wooden cross-buck signs required by statute. Sec. 4955.33 Ohio Revised Code. About five hundred fifty feet west of the crossing, there was placed, on the shoulder of the highway, a reflectorized advance warning disc sign. At this point, there was also a large reflectorized “X” on the pavement, extending practically all the way across the eastbound lane of the highway. In addition to these signs there were either sodium or mercury vapor lights placed about eighteen feet above the tracks at the northeast and southwest corners of the intersection. Those lights were designed to illuminate not only the crossing itself but a train that might be on the crossing as well. The plaintiff had travelled this highway a number of times and was familiar with the railroad crossing at the point of the collision. Although at the time of the accident he did not know exactly how close he was to the crossing, he knew he was in the vicinity of it. The night being foggy, he had planned to stop at a truck stop which he knew he was approaching and which he also knew to be east of the intersection in question. There was a heavy fog overhanging parts of the highway and in travelling from Findlay to the place of the accident, the plaintiff had passed through several patches of fog which were about a mile in length. At the time of the accident, he had been driving in a dense fog for three or four miles. The plaintiff’s" }, { "docid": "18275635", "title": "", "text": "THOMPSON, District Judge. This case is before the Court on appeal from the decision of the District Court denying appellant’s motion to set aside the verdict of the jury and to enter judgment for appellant or to order a new trial on the single issue of damages or on all the issues. The appellant, personal representative of J. ,W. Bell, deceased, plaintiff in the trial court, and the appel-lee, Pennsylvania Railroad Company, defendant in the trial court, will be referred to herein as plaintiff and defendant, respectively. Seaman 2nd Class J. W. Bell was killed when the automobile operated by him collided with the side of defendant’s moving train where the highway intersects defendant’s double-track main line railroad in Northampton County, Virginia. Plaintiff brought this action for damages on account of Bell’s death. The defendant’s evidence tended to show that: at the point where the highway crosses the tracks, the railroad ran generally north and south, and the highway ran generally east and west. Bell was alone in his automobile traveling west, it was daylight and the weather was clear; the train was proceeding south at a speed of 22 to 25 miles per hour. Bell had a clear view of the crossing for 500 feet before he reached it, and the track was visible to him in the direction from which the train was approaching for a distance of several hundred feet when his vehicle was 300 to 400 feet from the crossing. The railroad crossing was indicated by prominently displayed signs along the highway for several hundred feet east of the crossing which was equipped with electrically activated gates, flashing lights, and bells. The gate on the east side of the track, when lowered, extended across the west-bound highway traffic lane and similarly, the gate on the west side of the track, when lowered, extended across the eastbound traffic lane. The only eye-witness to the collision testified that the locomotive whistle was blowing, its headlight burning, and its bell ringing as it approached the crossing; the gates were down, and the decedent attempted to “beat” the train across" }, { "docid": "3151896", "title": "", "text": "STRUM, Circuit Judge. This is an appeal in a railroad grade crossing case, tried to a jury, with verdict for plaintiff below. Mrs. W. D. Pidd, a 46 year old housewife for whose death the verdict was returned, was driving a car with her sister as a passenger in the right-hand front seat, along U. S. Highway 441. About one mile east of the town of Oklawaha, in Marion County, Florida, where the highway runs approximately in an easterly-westerly direction, defendant’s tracks cross it diagonally from southeast to northwest, at an angle of about 35 degrees. Decedent was unfamiliar with the crossing, though she had once crossed it going in the opposite direction several days before her fatal injury. When injured, decedent was driving from west to east along the highway. The train was proceeding from southeast to northwest, thus approaching the crossing from the -right-hand side of decedent’s car- — the side away from the driver. The railroad tracks southeast of the crossing, from whence the train was approaching, are straight and level for approximately half a mile. The highway is straight and level for a distance of about 657 feet west of the-crossing, where it begins to curve to the south. The decedent had just rounded this curve and was proceeding easterly along the straight stretch of road when the collision occurred. Approaching the crossing from the west, going toward the east, as was decedent, several warning signs are in. view. At a distance of 563 feet west of the crossing, there was painted on the pavement with white paint, a sign consisting of a large “X,” -extending about 21 feet along the highway, flanked on its right and left by a large letter “R.” On the south shoulder of the highway, on decedent’s right, 279 feet west of the crossing, there was a round reflector type warning sign, 30 inches in diameter, with a black “X” flanked on either side by the letter “R.” At a point 184 feet west of the crossing, there was a white sign, 3 by 4 feet, at an elevation of 7" }, { "docid": "18044583", "title": "", "text": "at a railroad crossing about one mile west of West Des Moines, Iowa, a city of 17,000. There is a town of 3,000 six miles west. The collision occurred on December 6, 1967 at approximately 10:30 P.M. The Ford was proceeding in an easterly direction on Ashworth Road. The railroad tracks cross Ashworth Road at approximately a 45° angle. The train was traveling from the northwest toward the southeast. Ashworth Road has a blacktop surface, 22 feet wide, with narrow shoulders. It is uphill both east and west of the crossing for a distance in excess of 500 feet. The trial court found that the terrain was comparatively level, with less than a 2% grade for a distance of 400 feet to the west of the crossing (a witness testified 1.75%). The view was unobstructed for a distance of approximately 980 feet west of the crossing and there were no trees, brush or buildings obstructing the view. The only signs near the crossing are cross bucks and a sign stating the direction to the nearby interstate highway. The first warning sign was 670 feet from the crossing. The cross bucks had lettering saying “Railroad Crossing” and were reflectorized so that if light is thrown against them the letters reflect back. There were no lights at the crossing. There were no lights in or on the caboose. It did have reflectorized metal markers on the rear. Plaintiff’s husband was aware of the railroad crossing and knew there were railroad tracks there. In November and December, 1967, he had had other occasions to traverse this crossing and highway after dark. For six years he had made the trip he was making at the time of the collision once a week and about half the time used Ashworth Road. He was familiar with both the location of the railroad crossing and the approach to it on the highway. The night was very dark. It had been raining and drizzling. The street surface was wet. The car windows were up. The windshield was clear. It was not necessary to use the windshield wipers. With" }, { "docid": "13993997", "title": "", "text": "CECIL, Circuit Judge. This is an appeal by the Chesapeake and Ohio Railway Company from a judgment entered on a verdict in favor of Joseph Carufel, the appellee. We will refer to the parties as plaintiff and defendant, as they were in the trial court. The plaintiff was a truck driver and on or about the 2nd day of November, 1957, at approximately two o’clock in the morning, he was operating a G. M. C. tractor-trailer, in an easterly direction, on U. S. Highway 224, in Seneca County, about twelve miles east of Findlay, Ohio. At this point, the defendant’s railroad crossed the highway at grade. When the plaintiff reached the crossing it was preempted by a train of one hundred sixty-seven cars, which was approximately one and a half miles in length. The train was •travelling at a speed of about twelve miles per hour. The plaintiff drove his tractor into the ninth car from the rear of the train and as a result of the collision received serious injuries, for which the jury returned a verdict in the sum of $75,000. The railway company has double tracks which run generally north and south and cross the highway at the point of the collision at right angles. A grade approximately three to three and a half percent begins about four hundred feet west of the crossing, so that the tracks are about ten feet above the level road grade. There are no obstructions at the crossing and in the daytime or on a clear night, the visibility both ways along the tracks is almost unlimited. The crossing was marked by the standard wooden cross-buck signs required by statute. Sec. 4955.33 Ohio Revised Code. About five hundred fifty feet west of the crossing, there was placed, on the shoulder of the highway, a reflectorized advance warning disc sign. At this point, there was also a large reflectorized “X” on the pavement, extending practically all the way across the eastbound lane of the highway. In addition to these signs there were either sodium or mercury vapor lights placed about eighteen feet" }, { "docid": "19352935", "title": "", "text": "and, second, whether the evidence conclusively established .■ the defense of contributory negligence. Upon examining the evidence purporting to be set out in the record, the Circuit Court of Appeals answered the first question favorably to the plaintiffs and the second favorably to the defendant, and accordingly reversed the judgment. Í72 Fed. Rep. 328. The case was then brought here on a writ of certiorari granted on the petition of the plaintiffs. Assuming, but without so deciding, that the state of the record was such as to justify the Circuit Court of Appeals in examining the evidence and determining whether it conclusively established the defense of contributory negligence, we come to consider whether that question was rightly decided. As is often true in such eases, some matters were, not disputed at the trial, while others were the subjects of conflicting testimony or of testimony from which different inferences reasonably could be drawn. The matters not disputed were these: The injury occurred in the daytime, at a grade crossing in a small country village. The defendant’s tracks, which were three in number, ran in a northerly and southerly direction and crossed the highway at right angles. About 700 feet south of the crossing the tracks curved to the west, and when cars were occupying the east track south of the crossing a traveler on the highway east of the crossing could not see a train approaching from the south on either of the other tracks. Mrs. Flannelly, one of the plaintiffs and wife of the other, had occasion to drive along the highway from her home, a few miles east of the railroad, to a point on the other side of it. Seated in the vehicle with her were two small boys. As she neared the crossing a freight train was approaching on the east track from the north. She stopped about 40 feet from that track and waited for the train to pass, which took some time, as it was long and moving slowly. Before this train obscured the view she looked along the tracks to the south and observed" }, { "docid": "13340798", "title": "", "text": "for judgment notwithstanding the verdict, under Federal Rules of Civil Procedure 50(b). The trial court granted the motion and entered judgment for defendant, ruling that the evidence showed the deceased to have been guilty of proximate contributory negligence as a matter of law, thereby precluding any recovery by plaintiff. On appeal, Monte Kay Perry claims that the trial court erred in granting the motion for judgment notwithstanding the verdict and that the trial judge erroneously instructed the jury as to the Tennessee law of eontrib-utory negligence. She seeks reversal and a new trial, or in the alternative a reinstatement of the jury verdict. In ruling upon the motion for judgment notwithstanding the verdict, the trial court was obliged to consider the evidence in the light most favorable to the plaintiff, and to ajlow all reasonable inferences to sustain the verdict. Wallace v. Louisville & Nashville Railroad Company, 332 F.2d 97 (6th Cir. 1964); Clinchfield R. R. Co. v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966); Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 326 S.W.2d 461 (1959). The evidence showed that the collision occurred at eight o’clock in the morning at the intersection of the “Gin” road and the railroad tracks in Dyer. An earlier rain had by that time turned to mist, and the locomotive’s lights and wipers were on. The train had approached the crossing from the north at a speed of between twenty-five and thirty miles per hour. Alvin W. Hawks, engineer in charge of defendant’s train, was the sole surviving eye witness to the accident. He testified that he first observed Perry’s vehicle when the train was about thirty feet from the intersection at which time the automobile was not more than ten feet from the tracks. Hawks immediately applied the brakes of'the train, but probably not until after impact. Perry was killed instantly. No skid marks were observed at the crossing after the accident. It was the un-contradicted testimony of the engineer as well as two independent witnesses that the train’s bell had been ringing and its whistle blowing within the city" }, { "docid": "2865541", "title": "", "text": "STALEY, Circuit Judge. This is a diversity action in which plaintiff seeks to recover damages for the death of Joseph A. Dostal in a grade crossing collision between the automobile owned and operated by the decedent and the passenger train of defendant. This is the second trial of the case, the jury in the first trial having failed to agree. In the second trial the jury rendered a verdict for plaintiff. Defendant’s motions for judgment n. o. v. or, in the alternative, for a new trial were denied. Defendant argues on appeal that judgment n. o. v. should have been granted because plaintiff’s decedent was guilty of contributory negligence as a matter of law. The contention urged upon us is that the facts of the instant case call for the application of the “incontrovertible physical facts” rule. Defendant also urges that certain alleged errors in the charge of the district judge constituted prejudicial error and render a new trial necessary. The facts are as follows: The place of the accident was the Lyndora crossing of defendant railroad in Butler County, Pennsylvania; the time was February 20, 1946, shortly before 7 p. m., as 'twilight was merging into night. Immediately prior to the accident, decedent was driving his sedan in a westerly direction along Route 8, the highway between Butler and Pittsburgh. Although this highway has a generally north-south orientation, the particular stretch of Route 8 with which we are concerned runs approximately in an east-west direction. This segment of the highway is paralleled on the north by the single track of defendant railroad. Motorists on Route 8 who wish to travel in the direction of Lyndora must turn northward from Route 8 and cross the Lyndora crossing of defendant railroad. The approach to this crossing is in the form of a Y. Travelers coming from the east naturally use the eastern leg of the fork; those from the west, the western leg. The decedent, traveling in a westerly direction from Butler, turned right onto a fork of the Y, preparatory to crossing defendant’s track. There is eye-witness testimony to the" }, { "docid": "1290115", "title": "", "text": "DOBIE, Circuit Judge. This is an appeal from a judgment of the District Court of the United States for the Eastern District of South Carolina, pursuant to a jury verdict, awarding $54,600.00 in damages to the plaintiff. The action was brought under the provisions of “Lord Campbell’s Act,” Sections 411 and 412, Code of Laws of South Carolina (1942), by the widow of a deceased, on behalf of herself and three minor children as beneficiaries, to recover damages for the alleged wrongful death of her husband, arising out of a collision between an automobile driven by him and the defendant’s train at a country railroad crossing. The District Court overruled the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, and we are called upon to decide whether these rulings' are correct. We think that the motions should have been granted on the ground that the evidence conclusively shows plaintiff’s intestate to ■have been guilty of gross contributory negligence as a matter of law. The collision involved here occurred on December 28, 1950, at or around 1:30 P.M. at a grade crossing of the defendant railroad near the defendant’s station of Sims, in Richland County, South Carolina. The deceased was proceeding in his Ford automobile from his home near Highway No. 76 to his store on Bluff Road, a dirt highway running nearly parallel but some miles South from Highway No. 76. This was not his usual route to the store although he had traveled this way before. With him in the car were his two nephews, Thomas G. Wilson, Jr., and William A. Davis, each of whom was thirteen years old. The track at the grade crossing runs East and West, and the dirt road crosses it at a right angle. The crossing is marked with the usual cross-buck sign. The record contains varying testimony as to the existence of obstructions to the deceased’s view of the track when he approached the crossing. Some of the plaintiff’s witnesses testified to the presence of a growth of weeds and bushes, plus a black jack oak thicket blocking" }, { "docid": "8627771", "title": "", "text": "of his charge that the court erred in overruling its motion for a directed verdict because of alleged insufficiency of the evidence. In this connection it is noted that the instructions given by the court are omitted from the printed record in violation of Rule 10(b) of the rules of this court. In these circumstances we must presume that the court correctly instructed the jury as to every controverted issue, including the contention now made that it was incumbent upon the plaintiff to make proof of the specific acts of negligence alleged in his complaint without reference to the doctrine of res ipsa loquitur. In considering the question of the sufficiency of the evidence to sustain the verdict the evidence must be viewed in a light most favorable to the prevailing party. All conflicts in the evidence must be presumed to have been resolved in favor of the prevailing party and he is entitled to all such favorable inferences as may reasonably be drawn from the facts proven and if, when so viewed, fair-minded men might reasonably reach different conclusions the case is one for the jury and not for the court. National Postal Transport Ass’n v. Hudson, 8 Cir., 216 F.2d 193; Aetna Life Ins. Co. v. McAdoo, 8 Cir., 115 F.2d 369. It was the contention of the respective parties that the manner in which the accident occurred was indicated largely by the physical facts and surrounding circumstances. However, defendant's driver testified that he approached the crossing from the east at a speed of twenty miles per hour and that he saw the Sorensen truck one hundred fifty feet north of the intersection when he was fifty-five to sixty feet east of the intersection. The physical facts prove that the front end of the Sorensen truck had passed the intersection of the two highways before it was struck by defendant’s truck and that it was struck on the left cab door. The door and the frame of the Sorensen truck were crushed in twelve to fourteen inches and the truck was knocked from the highway into the west" }, { "docid": "6301118", "title": "", "text": "R. A. 771. On the issue of the defendant’s negligence it is conceded that the testimony, though in sharp conflict, was sufficient to justify submission to the jury. On the issue of the plaintiff’s contributory negligence the evidence of physical facts was not disputed. This issue, when raised on the motion for a directed verdict, turned on the inferences properly to be drawn by the court, as matters of law, from the plaintiff’s conduct in connection with the physical conditions. Shortly stated, the facts, either not disputed or established by the verdict, are these: The defendant’s two-track railroad, at the point in question, ran northeast and southwest and was crossed at grade by a state highway running almost exactly east and west — -forming with the tracks on the right an acute angle of 40 degrees. Here was a dangerous X crossing, familiar to motorists, with the narrow angle on the side whence the train came. The tracks ran straight for a distance of 3,385 feet, with' semiphores at 1,174 feet and a whistling post at 1,450 feet north of the crossing. Yiew from the highway up the tracks-was obstructed at different places by buildings and trees, being completely obstructed at 494 feet from the crossing, still obstructed at 302 feet, somewhat obstructed at 202 feet. The view progressively extended as the obstructions progressively decreased at 179, 106, 76, 54 feet and cleared at 29 feet from the crossing permitting a view up the tracks at least beyond the semiphores. The crossing was rough and was reached from the highway on an upgrade. The plaintiff, seated with a companion in a four-man cab of a left-hand drive truck, 28 feet long and 6 feet wide, weighing five tons and carrying a five-ton load, was driving on the highway toward the crossing. He was a stranger to the place. Observing a railroad sign 300 feet from the tracks, he slowed down to 5 miles an hour and, proceeding still more slowly, stopped with the front end of the truck 6 feet from the nearest rail of the first track. From his" }, { "docid": "18044582", "title": "", "text": "VAN PELT, Senior District Judge. Plaintiff filed suit in the Polk County, Iowa District Court to recover for injuries suffered when a ear owned and driven by her husband, in which she was riding, collided with the caboose of defendant’s train at a country railroad crossing. Defendant removed the case to federal court on diversity grounds. At the close of plaintiff’s ease, and again at the close of all of the evidence, defendant moved for a directed verdict. Each motion was denied. Only one specification of negligence was submitted to the jury. It pertained to the adequacy of the warning devices at the crossing. A verdict was returned for plaintiff in the sum of $22,648.18. Judge Stephenson granted a motion for judgment notwithstanding the verdict. The sole issue on this appeal is whether the evidence was sufficient to generate a jury question. We hold it was not, and affirm. Plaintiff was a front seat passenger in a 1964 Ford driven by her husband, which collided with the caboose of a moving freight train of defendant at a railroad crossing about one mile west of West Des Moines, Iowa, a city of 17,000. There is a town of 3,000 six miles west. The collision occurred on December 6, 1967 at approximately 10:30 P.M. The Ford was proceeding in an easterly direction on Ashworth Road. The railroad tracks cross Ashworth Road at approximately a 45° angle. The train was traveling from the northwest toward the southeast. Ashworth Road has a blacktop surface, 22 feet wide, with narrow shoulders. It is uphill both east and west of the crossing for a distance in excess of 500 feet. The trial court found that the terrain was comparatively level, with less than a 2% grade for a distance of 400 feet to the west of the crossing (a witness testified 1.75%). The view was unobstructed for a distance of approximately 980 feet west of the crossing and there were no trees, brush or buildings obstructing the view. The only signs near the crossing are cross bucks and a sign stating the direction to the nearby" }, { "docid": "6301117", "title": "", "text": "crossed such road * * * is guilty of a misdemeanor.” This statute, being penal in character, does not impose on railroads the duty of giving the prescribed warning. Vandewater v. New York & New England R. Co., 135 N. Y. 583, 32 N. E. 636, 18 L. R. A. 771. A railroad’s duty is that imposed by general law, namely, “to warn persons who may be passing, whether on foot or in team, of the approach of trains.” Dyer v. Erie Co., 71 N. Y. 228, 230. In other words, a railroad is bound to give some notice or warning of a train approaching a crossing and what is.sufficient warning is a question of fact for the jury. The law does not lay down any criterion other than that of due care in operating the train in all the circumstances. Failure to ring the bell or blow the whistle may, however, be evidence of negligence. Vandewater v. New York & New England R. Co., 135 N. Y. 583, 32 N. E. 636, 18 L. R. A. 771. On the issue of the defendant’s negligence it is conceded that the testimony, though in sharp conflict, was sufficient to justify submission to the jury. On the issue of the plaintiff’s contributory negligence the evidence of physical facts was not disputed. This issue, when raised on the motion for a directed verdict, turned on the inferences properly to be drawn by the court, as matters of law, from the plaintiff’s conduct in connection with the physical conditions. Shortly stated, the facts, either not disputed or established by the verdict, are these: The defendant’s two-track railroad, at the point in question, ran northeast and southwest and was crossed at grade by a state highway running almost exactly east and west — -forming with the tracks on the right an acute angle of 40 degrees. Here was a dangerous X crossing, familiar to motorists, with the narrow angle on the side whence the train came. The tracks ran straight for a distance of 3,385 feet, with' semiphores at 1,174 feet and a whistling post" } ]

[ { "docid": "8910190", "title": "", "text": "as plaintiff’s complaint was filed well within three years of October 31, 1986. Defendants’ assert that “the complaint falls far short of setting forth sufficient allegations to support plaintiff’s contention that defendants’ decision to terminate his was “ ‘willful;’ ” and thus insofar as his amended complaint states a claim for willful violation of the ADEA, that claim must be dismissed as untimely.” Defendants’ Memorandum of Law at p. 19. The parties are in agreement that in this Circuit an employer's conduct is “willful” for purposes of the ADEA statute of limitations if “ ‘the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’ ” Russo, 837 F.2d at 44 (quoting Trans World Airlines v. Thurston, 469 U.S. 111, 128, 105 S.Ct. 613, 626, 83 L.Ed.2d 523 (1985)). In Pfister v. Allied Corp., 539 F.Supp. 224 (S.D.N.Y.1982), the defendant employer moved to dismiss plaintiff’s al leged willful violation of the ADEA “ ‘for failure to allege any facts that are sufficient to state a cause of action for a willful violation.’ ” Id. at 228 (citation omitted) (emphasis in original). Relying upon Rule 9(b), which provides, inter alia, that “ ‘[m]alice, intent knowledge and other condition of mind of a person may be averred generally,’ ” the court rejected defendant’s argument. The court reasoned: Were the plaintiff required to aver condition of the mind with specificity, it would be virtually impossible to do so without presenting all the evidence bearing on the matter at length. Id. The court thus concluded that because plaintiff “properly allege[d] the facts supporting his contention that he was discrimi-natorily terminated because of his age, and generally aver[ed] willfulness in a manner which satisfie[d] the requirements of Rule 9(b)”, defendant’s motion to dismiss plaintiff’s cause of action based upon a willful violation of the ADEA had to be denied. Similarly, in the present case, plaintiff’s complaint does comport with the pleading requirements of Rule 9(b) with respect to willfulness. Not only does plaintiff allege facts supporting his contention that he was discriminated against in violation of the" } ]

[ { "docid": "10029758", "title": "", "text": "the very statute which creates the cause of action also contains a limitation period, the statute of limitation not only bars the remedy but also destroys the liability, and therefore the plaintiff must plead and prove facts showing that he is within the statute. This has been consistently followed under the Securities Act.” 573 F.2d 685 (1st Cir.1978) (quoting from 3 L. Loss, Securities Regulations ch. HC(l)(f) at 1744 (2d ed. 1961)). Other circuits have made similar holdings. See Toombs v. Leone, 777 F.2d 465 (9th Cir.1985); John Hopkins University v. Hutton, 488 F.2d 912 (4th Cir.1973). But the duty is to plead facts showing that the claim is within the statute and not to plead conclusory allegations to that effect. See Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028, 1033 (D.Minn.1981). This Hodges has done. c. Allegations of fraud were pleaded with sufficient particularity under Fed.R.Civ.P. 9(b). Claims brought under section 10(b) and Rule 10b-5 must comply with the requirement of particularity of pleading found in Fed.R.Civ.P. 9(b). Denny v. Barber, 576 F.2d 465 (2d Cir.1978); Gottreich v. San Francisco Investment Corp., 552 F.2d 866 (9th Cir.1977). Rule 9(b) states that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of the mind may be averred generally.” The requirement is that the plaintiff must plead facts giving rise to an inference of fraud with sufficient particularity to apprise the defendants of the misconduct complained of so as to enable them to prepare a defense. Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1087 (S.D.N.Y.1977), aff'd mem. 636 F.2d 1201 (2d Cir.1980). The circumstances which must be plead to meet the requirement of particularity are the time, place, and contents of the false misrepresentations, the person making the representation and what he obtained from the plaintiff through the misrepresentation. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1297 (1986). The complaint before this court meets this requirement of particularity. All of the misrepresentations were made in Gulf Shores, Alabama," }, { "docid": "14144715", "title": "", "text": "to take FMLA leave, where the defendant was aware of the plaintiffs children’s serious medical condition, and the plaintiff alleged that she submitted an application for additional sick time with articulated reasons); Krosmico v. JP Morgan Chase & Co., No. 06-CV-1178, 2006 WL 3050869, at *2 (E.D.N.Y. Oct. 19, 2006) (“When a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to trigger the three-year limitations period.” (internal quotation marks omitted)). Accordingly, the three-year statute of limitations will apply, and in deciding this motion to dismiss the Court will consider events that occurred beginning on April 1, 2006. 2. FMLA Interference Claim In an FMLA interference claim, “an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act.” Id. To state an interference claim under 29 U.S.C. § 2615(a)(1), a plaintiff must adequately plead: (1) that he is an eligible employee under the FMLA; (2) that the defendant is an employer as defined in the FMLA; (3) that he was entitled to leave under the FMLA; (4) that he gave notice to the defendant of his intention to take leave; and (5) that he was denied benefits to which he was entitled under the FMLA. See Geromanos, 322 F.Supp.2d at 427. a. Plaintiff’s FMLA Eligibility To be “eligible” under the FMLA, an employee must have been employed “(i) for at least twelve months by the employer ... and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A); see also Woodford v. Cmty. Action of Greene Cnty., Inc., 268 F.3d 51, 54 (2d Cir.2001) (“In order to be eligible for FMLA benefits, an employee must have been employed for at least twelve months with an employer and have worked at least 1,250 hours in the twelve months preceding the date on which eligibility is determined.”). “The determination of whether an employee ... [is eligible] must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d). Eligibility is" }, { "docid": "21680907", "title": "", "text": "trigger the three-year limitation period.” Settle v. S.W. Rodgers Co., 998 F.Supp. 657, 664 (E.D.Va.1998), aff'd, 182 F.3d 909 (4th Cir.1999) (unpublished table decision). When considering actions under the FMLA, courts often have looked to the Fair Labor Standards Act of 1938, as amended 29 U.S.C. §§ 201 et seq., (“FLSA”). Like the FMLA, the FLSA has a two-year statute of limitations that increases to three years when a willful violation is alleged. 29 U.S.C. § 255(a). Under the FLSA, “[t]he standard of willfulness [is] ... that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.... ” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). Ungerleider has failed to trigger the three-year limitation period. As FMG notes, the Ungerleider’s Amended Complaint does not contain a general averment as to willfulness on the part of FMG. Nor does the Amended Complaint allege any facts supporting the claimed willful violation of the FMLA. Nor has Ungerleider subsequently provided any evidence that FMG either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the FMLA. The court concludes that because Ungerleider failed to aver, allege, or submit evidence of a willful violation; the two-year statute of limitations applies and the claim is time barred. Accordingly, summary judgment is granted with respect to the FMLA cause of action for retaliatory discrimination. 2. Motion for Sanctions FMG next moves to sanction Ungerleider due to her failure to comply with local rules. Specifically: “[Ungerleider] has not even attempted to comply with Local Rule 56(a)3. Although [she] submitted a statement ... in which she admitted, denied and/or pleaded insufficient knowledge as to each fact, she did not include citations to affidavits nor admissible evidence to support any of her conclusory denials.” In response, Ungerleider objects to the defendant’s motion. Specifically: “Although [Ungerleider] did not provide specific citations to each denial, the second section, stating the disputed fact[,] has citations.” Further, “It is in the court’s discretion whether ... to grant sanctions ...." }, { "docid": "10426326", "title": "", "text": "reinstated on motion by the plaintiff no later than 60 days after the date of enactment of this section. D & T argues that § 27A is unconstitutional because it violates separation of powers principles by (1) prescribing a rule of decision in certain pending cases without changing the law and (2) directing federal courts to apply a law inconsistent with what D & T claims to be the “constitutional mandate” established in Beam. As such, D & T maintains that this court must apply Lampf’s statute of limitations, under which D & T contends the Investors' § 10(b) claims are time-barred. This court has had the opportunity to review the arguments made and authorities cited by D & T on a prior occasion and has rejected these challenges, among others, to § 27A’s constitutionality. See Rabin v. Fivzar Assocs., 801 F.Supp. 1045, 1051 (S.D.N.Y.1992). Adhering to the holding expressed in that opinion, the portion of D & T’s motion based on the statute of limitations is denied. B. Rule 9(b): Failure to Plead Fraud with Particularity The second prong of D & T’s motion to dismiss is based on Federal Rule of Civil Procedure 9(b), which provides in relevant part that “[i]n all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” To satisfy this rule, a pleading must specify the time, place, speaker and content of the alleged misrepresentations or omissions, see Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986), the nature of the defendant’s alleged participation in the fraud, Di Vittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987), and factual circumstances giving rise to a “strong inference” that the defendant possessed the requisite fraudulent intent. O’Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991). Rule 9(b) is designed to further three goals: (1) to provide a defendant with fair notice of a plaintiff’s claim; (2) to protect a defendant from harm to his reputation or goodwill;" }, { "docid": "14144714", "title": "", "text": "the two-year statute of limitations should apply. (Defs.’ Mem. 16-17.) Plaintiff argues that the violations were willful, triggering the three-year statute of limitations. (Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”) 17-19.) Indeed, Plaintiff has pled that the violations were willful. (SAC ¶¶ 4, 51.) Additionally, he alleges that: on multiple occasions he informed Defendants that they were violating his FMLA rights (id. ¶¶ 27, 32); certain Defendants made knowingly false statements regarding his FMLA eligibility (id. ¶ 22); and the violations were “knowing and willful” because Defendants were “fully aware of FMLA law and policy, knew they were violating [the] FMLA[,] and nevertheless continued their illegal behavior,” (id. ¶¶ 51-52). Thus, Plaintiff has alleged facts that, if proven true, would establish a willful violation. See Cinelli v. Oppenheim-Ephratah Cent. Sch. Dist, No. 07-CV-235, 2009 WL 4724670, at *3 (N.D.N.Y. Dec. 2, 2009) (concluding that the three-year statute of limitations for willful violations applied because there were disputed issues of fact as to whether the defendant recklessly disregarded the plaintiffs need to take FMLA leave, where the defendant was aware of the plaintiffs children’s serious medical condition, and the plaintiff alleged that she submitted an application for additional sick time with articulated reasons); Krosmico v. JP Morgan Chase & Co., No. 06-CV-1178, 2006 WL 3050869, at *2 (E.D.N.Y. Oct. 19, 2006) (“When a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to trigger the three-year limitations period.” (internal quotation marks omitted)). Accordingly, the three-year statute of limitations will apply, and in deciding this motion to dismiss the Court will consider events that occurred beginning on April 1, 2006. 2. FMLA Interference Claim In an FMLA interference claim, “an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act.” Id. To state an interference claim under 29 U.S.C. § 2615(a)(1), a plaintiff must adequately plead: (1) that he is an eligible employee under the FMLA; (2) that the defendant is an employer as defined in the FMLA; (3) that" }, { "docid": "20116381", "title": "", "text": "Code is applicable. Resolution of this issue requires consideration of facts not available to this court, and not cognizable under a Rule 12 motion for dismissal, regarding the relationship between the parties and the transaction between them involving the asbestos product. Gypsum’s motion to dismiss the fourth and fifth causes of action must be denied pending trial or a Rule 56 motion for summary judgment. This court observes, however, that the applicable statute of limitations appears, as Hebron suggests, to be the “six years from the discovery” rule of NDCC 28-01.1-02(5) rather than the “four years from the breach” rule of NDCC 41-02-104 (UCC 2-725). NDCC 28-01.1-02(5) is more specific than, and was enacted subsequent to, NDCC 41-02-104. See NDCC 1-02-07. Hebron’s sixth cause of action alleges fraud and misrepresentation. Gypsum argues that Hebron has failed to meet the pleading requirements set by Rule 9(b) of the Federal Rules of Civil Procedure for claims grounded on fraud. Rule 9(b) states: Fraud, Mistake, Condition of Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Rule 9(b) requires “specification of the time, place, and content of an alleged false representation, but not the circumstances or evidence from which fraudulent intent could be inferred.” McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980). This court adds the requirement that the pleadings indicate the medium or media by which the representation was communicated. Hebron’s general averments do not meet Rule 9(b)’s requirements. This does not require that the sixth cause of action be dismissed, but this court must, on its own motion, order a more definite statement of the claim, so that Gypsum may frame a response to it. See Wright and Miller, Federal Practice and Procedure, Civil § 1356. The redrafted claim must state: in what time period the representations were made, where they were made, what message or messages were conveyed, and by what medium or media the representations were communicated. Hebron’s strenuous objections that" }, { "docid": "16402001", "title": "", "text": "subd. 1. Instead, the Court must turn directly to the strict liability and breach of warranty limitations periods to determine whether Plaintiff may maintain those claims. For the reasons just discussed, the Court concludes that the applicable limitations periods have run. The accrual dates, which cannot be tolled, expired in October, 1997, almost two years before the present case was filed. Plaintiffs strict liability and breach of warranty claims are accordingly dismissed with prejudice. 2. Pleading Fraud with Particularity. Defendants argue that Plaintiffs common law and statutory fraud claims under Minn.Stat. §§ 325F.69, 325D.13, 325D.44, and 325F.67 must be dismissed because Plaintiff failed to plead them with particularity, as required by Rule 9(b) of the Federal Rules of Civil Procedure. Plaintiff acknowledges that her common law fraud claim is subject to 9(b)’s heightened pleading requirements, but denies that her statutory fraud claims fall within its ambit. In particular, Plaintiff argues that because Minnesota’s consumer fraud statutes have been construed more broadly than common law fraud, see LeSage v. Nonvest Bank Calhoun-Isles, 409 N.W.2d 536, 539 (Minn.App.1987), 9(b) does not apply. The Court strongly disagrees. Notwithstanding the relative breadth of the consumer protection statutes, Rule 9(b) applies where, as here, the gravamen of the complaint is fraud. See Marvin Lumber v. PPG Indus., Inc., Civil No. 3-94-545, (D.Minn. March 17, 1995); see also United States v. Napco, Int’l, Inc., 835 F.Supp. 493, 495 (D.Minn.1993); Toner v. Allstate Ins. Co., 821 F.Supp. 276, 283-84 (D.Del.1993). Rule 9(b) specifically requires that “all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be pled with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” In order to meet 9(b)’s heightened pleading requirement, a plaintiff must set forth the “who, what, when, where, and how: the first paragraph of any newspaper story.” Parnes v, Gateway 2000, Inc., 122 F.3d 539, 549-50 (8th Cir.1997). “Because one of the main purposes of the rule is to facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud, conclusory allegations that a defendant’s conduct" }, { "docid": "17989726", "title": "", "text": "Congress intended to exempt from the statute of limitations a plaintiff who simply slept on his right to sue. The cases on which the plaintiff relies depended upon the specific policies behind other limitations periods or are distinguishable from this action in that they involved such additional factors as misleading actions by the defendant, the fact that a layman had to proceed without the benefit of an attorney, the existence of contractual grievance procedures or a procedural technicality which would have created disunity among the states in a manner contrary to congressional intent. See, e.g., American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1965); Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Love v. Pull man Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). The Court therefore declines, on the facts of this case, to equitably modify the time requirement for filing a cause of action under the ADEA. The plaintiff’s claims of non-willful violations of the ADEA are therefore dismissed as being untimely filed. The defendant concedes that the plaintiff’s charge of willful violation of the ADEA is governed by a three-year statute of limitations, and hence was timely filed. The defendant moves, however, to dismiss this count “for failure to allege any facts that are sufficient to state a cause of action for a willful violation.” Defendant’s Brief at 10 (emphasis in original). The defendant’s argument is without merit. Rule 9(b) of the Federal Rules of Civil Procedure states: “In all averments of fraud or mistake, the circumstances constituting fraud of mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” (emphasis added). Were the plaintiff required to aver conditions of the mind with specificity, it would be virtually impossible to do so without presenting all the evidence bearing on the matter at length." }, { "docid": "21680905", "title": "", "text": "Gen erally, claims under the FMLA must be brought with two years of the alleged actionable event.” In response, Ungerleider maintains that FMG is not entitled to judgment as a matter of law. Specifically: “[W]hen the conduct alleged constitutes a ‘willful’ violation of the FMLA, the statute of limitations increases to three years.” The Family and Medical Leave Act, 29 U.S.C. § 2615(a)(1), states: “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” The regulations promulgated pursuant to the FMLA explain that “ ‘interfering with’ the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave,” 29 C.F.R. § 825.220(b), and that “an employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.” 29 C.F.R. § 825.220(c). Applying these principles and finding no material facts in dispute, the court concludes that summary judgment should be granted in favor of FMG. Ungerleider is time barred from bringing a claim that FMG retaliated against her for taking leave pursuant to the FMLA. The FMLA requires that “an action ... be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” 29 U.S.C. § 2617(c)(1). The statute of limitations period began running at the very latest when FMG accepted Ungerleider’s resignation on May 24, 2000. She did not amend her complaint to add a FMLA claim until May 5, 2003, nearly a year after the statute of limitation had run. To preserve a FMLA claim, Ungerleider would have to bring an action for a willful violation. The FMLA permits employees to bring claims within three years of an alleged violation “[i]n the case of such action brought for a willful violation. ...” 29 U.S.C. § 2617(c)(2). “Where ... a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to" }, { "docid": "1230890", "title": "", "text": "in Sections 523 or 727 of the Bankruptcy Code. The Debtor reiterates that all the alleged fraudulent transfers in the case at bar occurred more than one year prior to the bankruptcy filing. 3. The Objection The Plaintiff argues that Count One should not be dismissed because, inter alia, the Complaint places the Debtor on notice of the precise conduct with which he is charged, in conformance with the underlying purpose of Rule 9(b) of the Federal Rules. Count Three should not be dismissed, the Plaintiff argues, because Connecticut law recognizes the existence of a fiduciary duty by officers and directors of a corporation to that corporation’s creditors when the corporation is insolvent (or in the “zone of insolvency”) and that makes the Debtor a “fiduciary” within the purview of Section 523(a)(4). Finally, the Plaintiff argues that Count Four should not be dismissed because the Complaint sufficiently alleges willful and malicious injury to the Plaintiff by the Debtor within the purview of Bankruptcy Code § 523(a)(6), and that the Debtor’s conduct was designed to injure the Plaintiff [or his property]. Consequently, the Plaintiff argues, Counts One, Three and Four should not be dismissed. II. ANALYSIS A. The Law 1. Standard for Motion To Dismiss Pursuant to Rule 9(b) Rule 9 states in relevant part: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake should be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). “The purpose of Rule 9(b) is to allow a defendant to meaningfully respond to a complaint. To satisfy the first part of Rule 9(b), the pleading must set forth the alleged fraudulent statements, identity of the speaker, time and place of the statements, and nature of the misrepresentation.” Citik Ka Wah Bank Limited New York Branch v. Wong (In re Wong), 291 B.R. 266, 279 (Bankr.S.D.N.Y.2003). The more relaxed requirement of the second part of Rule 9(b), that state or condition of mind can be averred generally, must not be mistaken for a “license to base claims of fraud on speculation" }, { "docid": "1342320", "title": "", "text": "suffer from numerous deficiencies that require dismissal under Fed.R.Civ.P. 9(b) and 12(b)(6). D. Common Law Fraud Claims The common law claims in counts fifteen through thirty-nine are governed by a five-year period of limitations. Ill.Stat.Ann. ch. 110, para. 13-205 (Smith-Hurd 1984). Except for the Income Trust and MILP I securities, all of the Funds’ securities were sold within five years of the latest possible date this suit could be considered filed, April 30,1990. As to the Income Trust and MILP I, plaintiffs fail to allege any purchase dates. Thus, it is impossible to determine whether the statute of limitations bars plaintiffs’ common law claims with respect to their purchase of the Income Trust and MILP I securities. II. Motion to Dismiss Based on Rule 9(b) Defendants move to dismiss all counts sounding in fraud for failure to comply with Fed.R.Civ.P. 9(b). Rule 9(b) requires that In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Rule 9(b)’s particularity requirement furthers two basic purposes: (1) to reasonably notify defendants of their roles in the alleged scheme so that they may prepare a responsive pleading; and (2) to “safeguard potential defendants from lightly made claims charging commission of acts that involve some degree of moral turpitude.” Bankers Trust Co. v. Old Republic Ins. Co., 697 F.Supp. 1483, 1484-85 (N.D.Ill.1988) (citations omitted). See also O’Brien v. Nat’l Property Analysts Partners, 719 F.Supp. 222, 225 (S.D.N.Y.1989). These purposes are usually satisfied if the complaint sets forth the time, place, and substance of the alleged misrepresentations, as well as who made the statements and the method by which the misrepresentation was communicated to the plaintiff. Sears v. Likens, 912 F.2d 889 (7th Cir.1990); Flournoy v. Peyson, 701 F.Supp. 1370, 1374 (N.D.Ill.1988). However, conclusory allegations of fraud and averments of state of mind are insufficient to satisfy Rule 9(b). Flynn v. Merrick, 881 F.2d 446, 449 (7th Cir.1989). In addition, a complaint does not satisfy Rule 9(b) if it makes blanket allegations that" }, { "docid": "17989727", "title": "", "text": "this case, to equitably modify the time requirement for filing a cause of action under the ADEA. The plaintiff’s claims of non-willful violations of the ADEA are therefore dismissed as being untimely filed. The defendant concedes that the plaintiff’s charge of willful violation of the ADEA is governed by a three-year statute of limitations, and hence was timely filed. The defendant moves, however, to dismiss this count “for failure to allege any facts that are sufficient to state a cause of action for a willful violation.” Defendant’s Brief at 10 (emphasis in original). The defendant’s argument is without merit. Rule 9(b) of the Federal Rules of Civil Procedure states: “In all averments of fraud or mistake, the circumstances constituting fraud of mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” (emphasis added). Were the plaintiff required to aver conditions of the mind with specificity, it would be virtually impossible to do so without presenting all the evidence bearing on the matter at length. See 2 A Moore’s Federal Practice [2d ed.] ¶ 9.03 and cases cited therein. The cases cited by the defendant in support of its motion are inapposite since they involved instances in which the pleading of specific underlying facts other than a condition of mind was found insufficient to support the claim. In the present action, the plaintiff properly alleges the facts supporting his contention that he was discriminatorily terminated because of his age, and generally avers willfulness in a manner which satisfies the requirements of Rule 9(b). See Complaint ¶¶ 21, 22. The defendant’s motion to dismiss the plaintiff’s claim of willful violation of the ADEA is therefore denied. SO ORDERED." }, { "docid": "13615337", "title": "", "text": "Nugent & Co., v. Borey, 127 B.R. 727, 735 (S.D.N.Y.1991) Furthermore, “[e]ach averment of a pleading shall be simple, concise, and direct.” Fed.R.Civ.P. (8)(e). On a motion to dismiss for failure to state a claim, a court will take the complainant’s factual allegations as the truth and draw all inferences in their favor. Cosmos v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). Therefore, a complaint should not be dismissed merely because the Plaintiffs allegations are not supported by the specific legal theory advanced. Rather, a court is under a duty to examine the complaint to determine if any possible theory for relief exists. S.C. Wright & A. Miller, Federal Practice & Procedure: § 1219 at p. 191 (1990). Fed.R.Civ.P. 9(b) provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” Rule 9(b) is read in conjunction with Rule 8(a). The “circumstances” referred to in Rule 9(b) are “matters such as time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” In re Lion Capital Group, 44 B.R. 690, 697 (Bankr.S.D.N.Y.1984) (quoting Robertson v. Nat’l Basketball Assoc., 67 F.R.D. 691, 697 (S.D.N.Y.1975). In Decker v. Massey-Ferguson, Ltd., 681 F.2d 111 (2d Cir.1982), the Second Circuit Court of Appeals applied a straightforward test to determine the sufficiency of a claim based on fraud: Plaintiff need only allege the existence of facts and circumstances sufficient to warrant the pleaded conclusion that fraud had occurred. In so doing, the plaintiff’s attorneys would be stating “the circumstances constituting fraud ... with particularity” as required by Rule 9(b). Id. at 119. Furthermore, the court in Crystal v. Foy, 562 F.Supp. 422 (S.D.N.Y.1983), established that the allegations necessary to satisfy the Rule 9(b) requirements were: (1) specific facts; (2) sources that support the alleged specific facts; and (3) a basis from which an inference of fraud may be fairly drawn. Id. at 425; In re Interconnect Telephone Services, Inc.," }, { "docid": "14247249", "title": "", "text": "“a short and plain statement of the claim” which is sufficient to put the defendant(s) on notice of the claim against them. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” By its terms, Rule 9(b) applies only to allegations of “fraud or mistake.” Defebaugh and Morford argue that Rule 9(b) should be extended to all breaches of fiduciary duty under ERISA where the allegations are similar to fraud and/or misrepresentation allegations so as to require a plaintiff to plead their claims with the specificity required under Rule 9(b). Notably, Defebaugh and Morford have not provide the Court with any controlling authority for this argument but rather rely on cases where the plaintiff actually plead fraud or misrepresentation, not ERISA breach of fiduciary duty. As the Court of Appeals for the Ninth Circuit explained when faced with the identical argument: We have held that Rule 9(b) applies in cases of alleged securities fraud.... However, we have never applied Rule 9(b) in cases in which the plaintiffs allege a breach of fiduciary duty but do not allege fraud. In fact, [the defendants] cite to no case from any jurisdiction requiring plaintiffs to comply with Rule 9(b) when they allege breaches of fiduciary duty — under ERISA- — or any other law — but do not plead the commission of fraud. The reasons for requiring compliance with Rule 9(b) in fraud claims, but not in breach of fiduciary duty claims generally, can be understood by considering the differences between the respective causes of action. Fraud arises from the plaintiffs reliance on the defendant’s false representations of material fact, made with knowledge of falsity and the intent to deceive. Pence v. United States, 316 U.S. 332, 338, 62 S.Ct. 1080, 1083-84, 86 L.Ed. 1510 (1942); 2A Moore’s Federal Practice ¶ 9.03[1] (1994). Plaintiffs may fairly be expected to identify with specificity" }, { "docid": "14456256", "title": "", "text": "their employment are premature. These arguments raise factual questions that cannot be resolved on a motion to dismiss. See Armstrong, 699 F.2d at 92; Zaro v. Mason, 658 F.Supp. 222, 228 (S.D.N.Y.1987); cf. Marbury, 629 F.2d at 716. Defendants’ motion to dismiss with respect to respondeat superior liability is denied. E. Alleged Rule 9(b) Deficiencies Rule 9(b) provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other conditions of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). The Second Circuit has determined that to meet the requirements of rule 9(b), the allegations in the complaint should specify the time, place, speaker, and content of the alleged fraudulent statements or misrepresentations. Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986); accord DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1247 (2d Cir.1987); see generally U.S. v. Rivieccio, 661 F.Supp. 281, 289-91 (E.D.N.Y.1987) (discussing requirements and collecting cases). Furthermore, “[w]here multiple defendants are asked to respond to allegations of fraud, the complaint should inform each defendant of the nature of his alleged participation in the fraud.” DiVittorio, supra, at 1247 (citing Natowitz v. Mehlman, 542 F.Supp. 674, 676 (S.D.N.Y.1982)). While plaintiff’s complaint is not a model with respect to the detail provided, it is sufficient. It provides approximate times, as well as places, speakers, and content. It alleges that statements or omissions of material fact made by Emery are attributable to Lexington and Southeastern under the doctrine of respondeat superior, thus satisfying the requirement that multiple defendants be apprised of the nature of their participation. IV. THE RICO COUNT Plaintiff asserts in the third count of his complaint that he has been injured by defendants’ alleged violations of sections 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. Defendants have moved to dismiss these claims pursuant to rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Each of defendants’ arguments in support of their motion will be addressed separately. A. Distinction Between “Person” and Enterprise”" }, { "docid": "10706224", "title": "", "text": "imposed by Federal Rule of Civil Procedure 9(b), which provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind may be averred generally.” Moreover, section 21D(b)(2) of the Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4(b)(2) (1995) (the “Reform Act”), requires a plaintiff to “state with particularity” facts that raise a “strong inference of fraudulent intent,” as required by preexisting Second Circuit law. See Novak v. Kasaks, 216 F.3d 300, 310-11 (2d Cir.2000) (recognizing that the Reform Act raised pleading 10b-5 standard to previously existing Second Circuit standard). For example, a claim would meet the Reform Act standard if it alleged that “when the promise was made, the defendant secretly intended not to perform or knew that he could not perform.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1176 (2d Cir.1993). See Gurary v. Winehouse, 190 F.3d 37, 44 (2d Cir.1999) (affirming dismissal of Rule 10b-5 claim where complaint did not allege that defendant “did not intend to do just what he promised at the times he made the statements” at issue.). b. Scienter In order to raise the inference of scien-ter sufficiently to withstand a motion to dismiss, a plaintiff must allege either (a) facts to show that defendants had both motive and opportunity to commit fraud; or (b) facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. See In re Carter-Wallace Securities Litigation, 220 F.3d 36, 39 (2d Cir.2000) (“Carter-Wallace II ”); In re Livent, Inc. Secs. Litig., 78 F.Supp.2d 194 (S.D.N.Y.1999) (quoting Press v. Chemical Investment Svcs. Corp., 166 F.3d 529, 537-38 (2d Cir.1999)). Violations of generally accepted accounting practices (“GAAP”), when coupled with evidence of fraudulent intent, make out this element. Novak v. Kasaks, 216 F.3d 300, 309 (2d Cir.2000). II. The Statute of Limitations Bars Giant’s Federal Securities Claim The Rule 10b-5, claims are time-barred by the Rule 10b-5 statute of limitations if Giant was on actual or inquiry notice of the potential claims against the defendants before October 6, 1999, one year" }, { "docid": "6990531", "title": "", "text": "on the amount of commercially marketable oil capable of being withdrawn from each well; and the amount of oil withdrawn from each well; (f) About spring 1981, and numerous times thereafter, Affeld failed to disclose that significant amounts of money obtained from the plaintiffs were paid to him and his company for services and materials used in connection with drilling each well. Plaintiffs relied on those representations in making the investments (Complaint If 20). Rule 9(b) Requirements As to the federal securities fraud claims (under Sections 10(b) and 17(a)), Affelds say plaintiffs have not alleged fraud with the requisite particularity. Affelds attack plaintiffs’ failure to particularize the time and place of the misrepresentations, why the statements were false and misleading or the facts underlying Affeld’s knowledge those statements were false when he made them. In those respects Affelds misconceive the purpose and effect of Rule 9(b): In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. To plead a cause of action for fraud, plaintiffs need not allege evidentiary details that will be used to support the claim at a later date. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974); 2A Moore, Moore’s Federal Practice ¶ 9.03, at 9-28 to 9-30 and nn. 13-14. They need only set forth the basic outline of the scheme, who made what misrepresentations and the general time and place of such misrepresentations. Darling & Co. v. Klouman, 87 F.R.D. 756, 757-58 (N.D.Ill. 1980) and cases there cited. Here Affelds have been given sufficient notice of those matters, who made the representations and the general time period in which they were made. Affelds are also wrong in urging Rule 9(b) requires plaintiffs to allege facts showing Affeld knew he was misleading them. Instead Rule 9(b) specifically permits general allegations of knowledge and intent. To require a plaintiff to plead such matters, which are peculiarly within a defendant’s knowledge, would impose an impermissible burden. 2A Moore ¶ 9.03, at 9-36" }, { "docid": "21680906", "title": "", "text": "of FMG. Ungerleider is time barred from bringing a claim that FMG retaliated against her for taking leave pursuant to the FMLA. The FMLA requires that “an action ... be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” 29 U.S.C. § 2617(c)(1). The statute of limitations period began running at the very latest when FMG accepted Ungerleider’s resignation on May 24, 2000. She did not amend her complaint to add a FMLA claim until May 5, 2003, nearly a year after the statute of limitation had run. To preserve a FMLA claim, Ungerleider would have to bring an action for a willful violation. The FMLA permits employees to bring claims within three years of an alleged violation “[i]n the case of such action brought for a willful violation. ...” 29 U.S.C. § 2617(c)(2). “Where ... a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to trigger the three-year limitation period.” Settle v. S.W. Rodgers Co., 998 F.Supp. 657, 664 (E.D.Va.1998), aff'd, 182 F.3d 909 (4th Cir.1999) (unpublished table decision). When considering actions under the FMLA, courts often have looked to the Fair Labor Standards Act of 1938, as amended 29 U.S.C. §§ 201 et seq., (“FLSA”). Like the FMLA, the FLSA has a two-year statute of limitations that increases to three years when a willful violation is alleged. 29 U.S.C. § 255(a). Under the FLSA, “[t]he standard of willfulness [is] ... that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.... ” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). Ungerleider has failed to trigger the three-year limitation period. As FMG notes, the Ungerleider’s Amended Complaint does not contain a general averment as to willfulness on the part of FMG. Nor does the Amended Complaint allege any facts supporting the claimed willful violation of the FMLA. Nor has Ungerleider subsequently provided" }, { "docid": "3641901", "title": "", "text": "a RICO enterprise. In addition, defendants move to dismiss the third count on the ground that plaintiffs have not demonstrated that they were injured by reason of the alleged § 1962(a) violation and they move to dismiss the second count on the grounds that plaintiffs have not pleaded a RICO conspiracy with the requisite particularity nor have they alleged that they were injured by reason of the alleged conspiracy. For the following reasons, defendants’ motion is denied as to the first count, but is granted as to the second and third counts. DISCUSSION 1. Rules 9(b) and 8(a) Federal Rule of Civil Procedure 9(b) provides: In all averments of fraud or mistake, the circumstances constituting fraud or mistake, shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally. Fed.R.Civ.P. 9(b). Where a RICO claim is based on predicate acts of mail and wire fraud, the pleading must comply with Rule 9(b). Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 49-50 (2d Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); Center Cadillac, Inc. v. Bank Leumi Trust Co. of New York, 808 F.Supp. 213, 228 (S.D.N.Y.1992); Grunwald v. Bornfreund, 668 F.Supp. 128, 130 (E.D.N.Y.1987). To comply with Rule 9(b), a plaintiff must generally state the time, place, speaker, and content of the alleged misrepresentation. Galerie Furstenberg v. Coffaro, 697 F.Supp. 1282, 1288 (S.D.N.Y.1988) (citing Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986)). “However, the complaint need not specify the time, place and content of each mail communication where the nature and mechanics of the underlying scheme is sufficiently detailed, and it is enough to plead the general content of the misrepresentation without stating the exact words used,” Center Cadillac, 808 F.Supp. at 229; Vereins-Und Westbank AG v. Carter, 639 F.Supp. 620, 623 (S.D.N.Y.1986); Galerie Furstenberg, 697 F.Supp. at 1288, especially where the information is exclusively in the possession of the defendants. Landy v. Mitchell Petroleum Technology Corp., 734 F.Supp. 608, 622 (S.D.N.Y.1990); Grunwald, 668 F.Supp. at 131. Furthermore, a motion to dismiss under Rule" }, { "docid": "20088265", "title": "", "text": "and must be dismissed. By the same token, the Defendants’ motion to dismiss the § 10(b) claims brought by New York residents (the “New York Plaintiffs”) on statute of limitations grounds must be denied. Although the Second Circuit adopted a uniform federal limitations period prior to June 20, 1991, see Ceres, 918 F.2d at 364, it explicitly had declined to apply it retroactively as of that date, see Welch I, 923 F.2d at 995. New York’s six-year statute of limitations for fraud actions therefore governs the claims of its residents. Armstrong, 699 F.2d at 86-87. Since the present action was filed within six years of when the fraud is alleged to have occurred, these actions are timely, and the Defendants’ motion to dismiss the § 10(b) claims of the New York Plaintiffs on this ground is denied with prejudice. As to the remaining Plaintiffs, the Defendants’ motion to dismiss their § 10(b) claims on statute of limitations grounds is denied without prejudice. Leave is granted to renew the motion upon a full briefing, if necessary. II. Rule 9(b) The Defendants both argue that the Plaintiffs have failed to plead their § 10(b)/ Rule 10b-5 claims against them with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. The Plaintiffs contend that they have met its standard, and in particular that scienter can be inferred from the face of the complaint. Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.” Fed. R.Civ.P. 9(b). It is well-settled that this requirement applies to claims alleging violations of § 10(b) of the ’34 Act and Rule 10b-5. See, e.g., Kramer v. Time Warner Inc., 937 F.2d 767 (2d Cir.1991); Luce v. Edelstein, 802 F.2d 49 (2d Cir.1986). As stated in DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1247 (2d Cir.1987): Rule 9(b) is designed to further three goals: (1) providing a defendant fair notice of plaintiff’s claim, to enable preparation" } ]

[ { "docid": "14405631", "title": "", "text": "In its quest to establish the authenticity of its “mirror image” counterclaim, defendant also relies upon the Federal Circuit’s decision in Sharman, but to no avail. As defendant correctly observes, Sharman involved a Government counterclaim and a contractor’s “mirror image” claim. Sharman, 2 F.3d at 1569. Therein, “each ... ‘claim’ allege[d] entitlement to the same money based on the same partial performance, only under a different legal label.” Id. at 1571. Yet it defies reason to assert, as defendant does, that in Sharman “the Federal Circuit reiterated its holding in Placeway.” On the jurisdictional issue, Placeway and Sharman reached opposite outcomes, insofar as the Federal Circuit held in Sharman that the Claims Court never had jurisdiction over either the Government claim or the contractor’s “mirror image” counterclaim because the contracting officer had never issued a valid and timely final decision on either claim. Sharman, 2 F.3d at 1569, 1573. More to the point, the Federal Circuit expressly distinguished the actions taken by the contracting officer from the final decision rendered by the contracting officer in Placeway. Sharman, 2 F.3d at 1571 n. 9. Both the counterclaim and “mirror image” claim in Sharman arose when, following a termination for default, the contracting officer issued a letter demanding that the contractor repay certain progress payments. Id. at 1566-67. The contracting officer rendered no final decision, the Federal Circuit reasoned, because the letter “invited negotiation of the amount demanded.” Id. at 1571 n. 9. Thus, defendant’s attempt to cast Sharman as a reaffirmation of defendant’s faulty reading of Placeway is unpersuasive. For present purposes, what Placeway and Sharman instruct is that the question of whether defendant’s counterclaim is a bona fide “mirror image” of plaintiff’s claim turns in large part upon a factual inquiry into the nature, extent, and timing of the action taken, if any, by the contracting officer concerning said counterclaim. That is, the court must examine “the logical relationship between the two claims” and determine whether the contracting officer has rendered a “decision, actual or constructive,” regarding defendant’s purported “mirror image” counterclaim. (Kit-San-Azusa■, 32 Fed.Cl. at 664 (construing Placeway, 920" } ]

[ { "docid": "14405630", "title": "", "text": "More importantly, in Placeway, the Government’s assertion of a right of set off was held to be tantamount to a request directed to the contracting officer for “the adjustment ... of contract terms” pursuant to 48 C.F.R. § 33.201. Placeway, 920 F.2d at 906,18 Cl.Ct. at 164. Here, unlike Place-way, the record gives no hint that the contracting officer ever contemplated the possibility that either the $89,720 sought by plaintiff or the $11,208 actually awarded to plaintiff might be, or become, the subject of a set-off demand or counterclaim by defendant. Nor, in allowing only $11,208 of the equitable adjustment sought by plaintiff, did the contracting officer’s decision make reference to a set-off demand or counterclaim by defendant. Quite the contrary, the contracting officer’s decision merely stated, without elaboration, that the amount claimed by plaintiff was “overstated.” JX 2, at 2. Thus, Placeway is distinguishable, and we find that the decision of the Navy’s contracting officer increasing the contract price by $11,208 was not tantamount to a final decision denying defendant’s counterclaim of like amount. In its quest to establish the authenticity of its “mirror image” counterclaim, defendant also relies upon the Federal Circuit’s decision in Sharman, but to no avail. As defendant correctly observes, Sharman involved a Government counterclaim and a contractor’s “mirror image” claim. Sharman, 2 F.3d at 1569. Therein, “each ... ‘claim’ allege[d] entitlement to the same money based on the same partial performance, only under a different legal label.” Id. at 1571. Yet it defies reason to assert, as defendant does, that in Sharman “the Federal Circuit reiterated its holding in Placeway.” On the jurisdictional issue, Placeway and Sharman reached opposite outcomes, insofar as the Federal Circuit held in Sharman that the Claims Court never had jurisdiction over either the Government claim or the contractor’s “mirror image” counterclaim because the contracting officer had never issued a valid and timely final decision on either claim. Sharman, 2 F.3d at 1569, 1573. More to the point, the Federal Circuit expressly distinguished the actions taken by the contracting officer from the final decision rendered by the contracting officer in" }, { "docid": "6504460", "title": "", "text": "MICHEL, Circuit Judge. Placeway Construction Corp. (Placeway) appeals the United States Claims Court’s order of September 11, 1989, dismissing its complaint for lack of jurisdiction because, inter alia, the court concluded that the contracting officer (CO) had not made a final decision as to a government claim against Placeway. See Placeway Constr. Corp. v. United States, 18 Cl.Ct. 159 (1989). We affirm the Claims Court’s dismissal of Placeway’s count seeking declaratory judgment because the Claims Court is without jurisdiction to grant such relief with regard to disputes over contracts that have already been awarded. We vacate the dismissal of the remaining counts and remand for further proceedings consistent with this opinion because the CO effectively rendered a final decision on all the claims presented, and the Claims Court has jurisdiction otherwise. BACKGROUND In 1983 Placeway entered into a contract with the United States Coast Guard (government) to construct residential housing on Governors Island, New York. The construction was completed December 20, 1984, after the completion date specified by the contract. Appendix at 108, Placeway Constr. Corp. v. United States, No. 90-5017 (Fed.Cir. filed Feb. 23, 1990) [hereinafter App.]. Placeway asserts that it submitted a voucher to the CO on January 21, 1985, requesting payment of the remaining contract price balance, $297,226.12. Id. at 24. The balance was not paid. On May 28, 1986, Placeway submitted to the CO a written demand for payment of: (1) the contract price balance, (2) thirty-one specified adjustments for additional work, and (3) extended overhead expenses based on various delays allegedly caused by, or the responsibility of, the government. Place-way, 18 Cl.Ct. at 161. None of these claims were certified under the Contract Disputes Act, 41 U.S.C. § 605(c) (1988). On September 4, 1986, the CO denied Place-way’s demands. The CO decided that the contract price balance due would not be “released” because Placeway had failed to complete the contract “in a timely manner,” delaying the government in issuing start-work notices to two other contractors scheduled to do work on Governors Island who might later submit delay claims against the government. App. at 108-09. Placeway" }, { "docid": "6504466", "title": "", "text": "F.2d 1385, 1388-89 (Fed.Cir. 1986). In the instant case, the CO decided that the contract price balance could not be “released” because of Placeway’s “failure to complete the subject project in a timely manner” which in turn allegedly caused delays in the government’s issuance of notices to proceed on other contractors’ projects, potentially incurring liability on the government’s part. App. at 108. The CO’s decision, however, did determine both liability and damages. He concluded that Placeway was liable because of delayed performance and effectively ruled that damages would be the contract balance, $297,226.12, subject to revision if he concluded that different damages were due at some indeterminate time in the future. Accordingly, we conclude that the CO made a final decision on the government claim alleging damages because of Placeway’s delay in contract performance. The decision is no less final because it failed to include boilerplate language usually present for the protection of the contractor. Moreover, the CO’s decision was adverse to Placeway and thus it could properly appeal to the Claims Court. As a final decision on a government claim, the Claims Court has jurisdiction, even though the claim was not certified. Accordingly, we vacate the Claims Court’s dismissal of Count II and remand for further proceedings. III. Adjustment Claims There is a potential for contractors to subvert the certification requirement by artificially fragmenting a single claim into separate “claims,” each seeking no more than $50,000.00; any greater amount triggers the requirement for certification. Nonetheless, the CDA recognizes that a single government contract may give rise to more than one claim, and that a contractor may pursue his rights by filing “two or more suits” in either one or more fora. 41 U.S.C. § 609 (1988); see, e.g., Warwick Constr., Inc. v. United States, 225 Ct.Cl. 567, 568-69 (1980). Because, when applicable, certification is a prerequisite to Claims Court jurisdiction over government contract disputes, the issue whether certification was required must always be considered. To determine whether two or more separate claims, or only a fragmented single claim, exists, the court must assess whether or not the claims are" }, { "docid": "2680575", "title": "", "text": "case is admittedly different. The CO did not issue a final decision on plaintiffs claims. The Contract Disputes Act (“CDA”) treats the absence of a timely CO decision as a denial of the contractor’s claims. 41 U.S.C. § 605(c)(5) (1988). Thus, plaintiffs claims are deemed denied. Although in Placeway the CO’s denial of the contractor’s claim was expressed in a written decision, the Federal Circuit’s reasoning was based not on the form of the denial, but on the logical relationship between the two claims. The court holds that the CO’s constructive denial of KSA’s claim for release of the retainage was logically equivalent to granting the Government’s claim to keep the retainage. The only ground on which the Government could keep the retainage would be as liquidated damages. Thus, to the extent that the Government’s assessed liquidated damages do not exceed the amount of the retainage, the Government may litigate them here. The Government, however, is precluded from recovering liquidated damages over and above the amount of the retainage because no CO decision, actual or constructive, exists regarding that portion of its liquidated damages offset; that is, to the extent that the Government’s liquidated damages offset exceeds the retain-age, it cannot be held to be the mirror image of KSA’s claim to recover the retainage. With respect to the actual substantial completion date, the court agrees with the Government that performance could not be treated as complete until testing of the ventilation system was concluded. The facility was not practicably useable until the ventilation system was tested. This was plaintiffs responsibility, and if indeed the system worked in July, there was no reason for KSA not to arrange to have it tested earlier. The more difficult question has to do with the extended completion date. Although the evidence is admittedly confusing, the court is persuaded that the Government bears the responsibility for the delay in perfecting the Similkameen tie-in. Prior to the change in design, the contract simply could not be completed in a way that reasonably protected the orchardists. There was insufficient time in the off-season to make the" }, { "docid": "14877096", "title": "", "text": "28, 1986, Placeway submitted a written demand to the contracting officer seeking payment of the contract balance, and monies for adjustments for additional work and expenses allegedly incurred because of government delay. Id. None of Placeway’s claims was certified. Id. On September 4, 1986, the contracting officer denied Place-way’s demands and determined that the contract balance would be withheld because Placeway had failed to complete the contract in a timely manner. Id. Thus, the contracting officer used the contract balance to set off cost overruns caused by Plaeeway’s inability to complete its work on time as described in the contract. Id. Specifically, the government anticipated its obligation to make payments to other contractors working on related projects that had allegedly suffered delay costs because of Placeway’s inability to complete performance in a timely manner. Id. The contracting officer’s letter did not set forth the precise amount to be set off since the contracting officer was awaiting claims from the other contractors. Id. Placeway filed suit in the United States Claims Court (“Claims Court”) (a predecessor to the Court of Federal Claims), seeking, inter alia, the contract balance and an equitable adjustment. Id. The Claims Court found that the government had asserted a right of setoff against Placeway, which the court deemed “a government claim.” Placeway, 18 Cl.Ct. at 164. However, the Claims Court found that it lacked jurisdiction over Placeway’s claims because the contracting officer had not issued a final decision. Id. at 165. Because the September 4, 1986 letter did not contain language stating it was a final decision and did not contain the “ ‘appeal rights’ language required by the regulation to be included in any ‘final decision,’ ” the Claims Court held the letter did not constitute a final decision from which Placeway could appeal. Id. On appeal, the Federal Circuit examined two aspects of the Claims Court’s decision in Placeway regarding the contract balance. 920 F.2d at 906-07. First, the Federal Circuit agreed with the Claims Court “that the set off asserted is a government claim.” Id. at 906. The Federal Circuit defined a government claim" }, { "docid": "14877089", "title": "", "text": "Fed.Cl. 256, 262 (1997). The Act provides: “All claims by the government against a contractor relating to the contract shall be the subject of a decision by the contracting officer.” 41 U.S.C. § 605(a). The Federal Circuit has defined a government claim “as a claim seeking incidental and consequential damages for [a contractor’s] alleged breach of the contract.... ” Placeway, 920 F.2d at 906 n. 1. In addition, the Federal Circuit’s decision in Placeway provides that a decision on a government claim, which is adverse to the plaintiff contractor, serves as a basis for the contractor’s appeal in this court even in the absence of a contracting officer’s final decision on the contractor’s certified claim. Id. at 906-07. B. Roxco’s Request for the Outstanding Contract Balance In its motion, defendant asserts that because plaintiff did not file a certified claim with the CO for the contract balance, this court lacks jurisdiction over plaintiffs demand for that sum. See Def.’s Mot. 1; Tr. 4. Defendant notes that when plaintiff submitted its five-volume REA on March 30, 2001, “about two years and three months” after its default, “[n]owhere in the REA does Roxco claim entitlement to the remaining contract balance.” Def.’s Mot. 3. Additionally, defendant argues that the Final Decision and the Demand Letter “did not address Roxco’s or the surety’s entitlement or right to the immediate payment of the contract balance—only that the balance would be ‘retained and applied against the liquidated damages.’ ” Id. at 5 (quoting the Demand Letter). Thus, defendant asserts, plaintiffs request for the contract balance with interest must be dismissed because such request “was never submitted to the contracting officer [and is] not the subject of a contracting officer’s final decision.” Id. at 7; see also Tr. 4-5. In its response to defendant’s motion, plaintiff contends that at the time it submitted its REA to the CO in 2001, it was impossible to know the contract balance. See Tr. 6-8, 17-18; Pl.’s Resp. 3 n. 3; PL’s Supp’l Mem. 5. According to plaintiff, it was not until the CO issued her May 15, 2003 Final Decision" }, { "docid": "14405635", "title": "", "text": "set out in Placeway, 920 F.2d at 906-07, so as to create an exception for “mirror image” counterclaims. Moreover, decisions of this Court acknowledging the existence of an exception for “mirror image” counterclaims have done so only in dicta. See Kit-San-Azusa, 32 Fed.Cl. at 663-64 (applying Placeway set-off analysis); Alaska Pulp Corp. v. United States, 38 Fed.Cl. 141, 145-46 (1997) (rejecting contractor’s invitation to apply Sharman to exercise jurisdiction over purported “mirror image” claim, where there was no evidence of claim’s submission to contracting officer). Elsewhere, as defendant concedes in its brief, this Court has expressly rejected jurisdiction over an alleged “mirror image” counterclaim as to which the contracting officer had made no determination of liability or of damages. Volmar Constr. Co. v. United States, 32 Fed.Cl. 746, 756-57 (1995) (declining to adopt “mirror image” claim dictum in Kit-San-Azusa). Assuming, arguendo, that the case at bar presented a compelling reason to reach the unsettled question of subject matter jurisdiction over “mirror image” counterclaims, it would suffice to say that we concur with the result in Volmar. Based upon the foregoing discussion, plaintiffs motion to dismiss defendant’s counterclaim on this Count III under RCFC 12(b)(1) for lack of subject matter jurisdiction is granted. IV. COUNT VI — THE GROUND FACE MASONRY ISSUE A Facts Plaintiffs Count VI seeks an award of damages in the sum of $10,779, representing costs allegedly incurred to remove mortar stains from certain interior masonry walls of the building, plus statutory interest from the date of this claim’s submission to the contracting officer. Although Count VI is the least of plaintiffs claims still pending at bar, the meaning of the relevant contract provisions and the significance of the underlying operative facts have been energetically contested, as evidenced by the parties’ refusal to stipulate to even a single fact relating to this claim. Nonetheless, after a careful examination of the record, we find numerous matters not truly in dispute. Interior corridor walls in the EMIC school were constructed of ground face masonry units. Ground face masonry units are concrete blocks on which one face, the surface visible after" }, { "docid": "8828159", "title": "", "text": "Nat’l Neighbors, Inc., 839 F.2d at 1542 (“[U]nder the Election Doctrine, it is a contractor’s filing of an appeal ... in a forum with jurisdiction over the proceeding that precludes the contractor ... from pursuing its claim in the alternate forum.” (emphasis added)). 1. The Election Doctrine Bars the Court from Hearing Plaintiffs Appeal of the Contracting Officer’s April 9, 2012 Final Decision As discussed above, Palafox appealed the contracting officer’s April 9, 2012 final decision to the CBCA in July 2012, and defendant subsequently filed a motion to dismiss for lack of jurisdiction because Palafox had not submitted a certified claim to the contracting officer for a final decision. See supra Part I.B; cf. 41 U.S.C. § 7103(b) (requiring contractors to certify claims over $100,000); Thoen v. United States, 765 F.2d 1110, 1116 (Fed.Cir.1985) (referring to the contractor’s certification requirement as a “jurisdictional prerequisite”). Defendant now argues, however, that the CBCA had jurisdiction over that appeal. Def.’s Mot. 7; see also id. (“Upon further examination, we believe that our earlier motion to dismiss the CBCA case was incorrect with respect to $824,416.01____”). According to defendant, because the contracting officer’s April 9, 2012 final decision was “on a Government claim,” Palafox was not required to certify the claim before appealing the decision to the CBCA. Id. (emphasis added); cf. Placeway, 920 F.2d at 906 (stating that “certification is not required for government claims”). For the reasons set forth below, the court finds that it must dismiss plaintiffs appeal of the contracting officer’s April 9, 2012 final decision for want of jurisdiction. a. The CBCA Had Jurisdiction Over Plaintiffs Appeal of the Contracting Officer’s April 9, 2012 Final Decision Citing the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Placeway, defendant contends that “[t]he Government’s retention of contract payments through setoff, when the contracting officer has determined both liability and damages in a written statement, constitutes a direetly[ ] appealable final decision on a Government claim.” Def.’s Reply 3 (citing Placeway, 920 F.2d at 906-07). Plaintiff does not directly address this contention. Instead, plaintiff" }, { "docid": "14877098", "title": "", "text": "“as a claim seeking incidental and consequential damages for Placeway’s alleged breach of the contract, in particular failure to complete performance on the date set in the contract.” Id. at 906 n. 1. The Federal Circuit also agreed with the Claims Court that government claims do not require certification. Id. at 906. Second, the Federal Circuit explained what constitutes a contracting officer’s final decision. Id. at 906-07. In its ruling vacating the Claims Court’s dismissal of the contract balance claim, id. at 907, the Federal Circuit reasoned that the contracting officer’s September 4, 1986 letter served “effectively [as a] final decision on the government claim” when the contracting officer “declined to pay Placeway the balance due on the contract.” Id. at 906. The decision focused on the fact that the contracting officer’s “decision ... determine^] both liability and damages.” Id. at 907. The Federal Circuit’s ruling noted that the contracting officer found Place-way liable because of delayed performance and “effectively ruled that damages would be the contract balance.” Id. The Federal Circuit reiterated its precedent that “[b]oth issues of liability and of damages should usually be resolved before judicial review is sought.” Id. at 906; see also Teller Envt’l Sys. v. United States, 802 F.2d 1385, 1388-89 (Fed.Cir.1986) (holding that a contracting officer’s decision is final if it resolves the issues of liability and damages). Further, since the contracting officer’s decision was adverse to Placeway, the Federal Circuit explained that Placeway “could properly appeal to the Claims Court.” 920 F.2d at 907. The Federal Circuit concluded that the September 4, 1986 letter served as a final decision on the government’s claimed setoff, even though the contracting officer issued no distinct, formal written decision on the claimed setoff and reserved the power to redetermine the precise amount of the setoff in the future. Id. at 906-07; id. at 907 (“The decision is no less final because it failed to include boilerplate language usually present for the protection of the contractor.”); see also Alliant Tech-systems, Inc. v. United States, 178 F.3d 1260, 1267 (Fed.Cir.1999) (“A letter can be a final decision under" }, { "docid": "2680574", "title": "", "text": "29. Furthermore, plaintiff was well aware at the time of the claim of the Government’s assertion of a liquidated damages offset. In addition, the court holds that the return of the initial liquidated damages offset did not waive any rights the Government had to continue to seek liquidated damages as an offset to plaintiff’s affirmative claim. The Government’s rights were specifically reserved. The Federal Circuit has allowed the Government to litigate set-offs and “mirror-image” claims even in the absence of a direct decision by the CO. In Placeway Constr. Corp. v. United States, 920 F.2d 903, 906-07 (Fed.Cir.1990), the court in effect deemed that the CO had granted the Government’s previously unasserted claim for a set-off when it denied plaintiffs claim for payment of the contract balance. See also Sharman Co. v. United States, 2 F.3d 1564,1566, 1570 (Fed.Cir.1993) (implying that when two “mirror image” claims are “effectively the same claim, but made by [opposing] parties],” that a CO final decision on either claim would suffice to confer upon this court jurisdiction over both). This case is admittedly different. The CO did not issue a final decision on plaintiffs claims. The Contract Disputes Act (“CDA”) treats the absence of a timely CO decision as a denial of the contractor’s claims. 41 U.S.C. § 605(c)(5) (1988). Thus, plaintiffs claims are deemed denied. Although in Placeway the CO’s denial of the contractor’s claim was expressed in a written decision, the Federal Circuit’s reasoning was based not on the form of the denial, but on the logical relationship between the two claims. The court holds that the CO’s constructive denial of KSA’s claim for release of the retainage was logically equivalent to granting the Government’s claim to keep the retainage. The only ground on which the Government could keep the retainage would be as liquidated damages. Thus, to the extent that the Government’s assessed liquidated damages do not exceed the amount of the retainage, the Government may litigate them here. The Government, however, is precluded from recovering liquidated damages over and above the amount of the retainage because no CO decision, actual or" }, { "docid": "14405627", "title": "", "text": "if the claim is, in fact, effectively the same claim but made by the opposing litigant. Kit-San-Azusa, J.V. v. United States, 32 Fed.Cl. 647, 664 (1995) (citing Sharman, 2 F.3d at 1570), affd in part and modified in part on other grounds by unpublished opinion, 86 F.3d 1175 (Fed. Cir.1996). Thus, the court must consider the extent to which defendant’s counterclaim rests upon the same operative facts as plaintiffs original claim and the contracting officer’s disposition thereof. We find, without any misgivings, that defendant’s counterclaim and plaintiffs original claim derive from the same chain of events — namely, the disputed concrete rubbing work. See Sharman, 2 F.3d at 1571 (“mirror image” where each claim “allege[d] entitlement to the same money based on the same partial performance, only under a different legal label.”). Compare Case, Inc., 88 F.3d at 1010 (no “mirror image” where claims relating to same contract arose from different events, alleged different grounds for recovery, and sought different amounts). However, there remains the pivotal question of whether, as a matter of fact, the contracting officer took defendant’s counterclaim into consideration when rendering the final decision on plaintiffs original claim. In making this determination, we are mindful of the principle that the contracting officer’s decision is the “linchpin” for judicial review of contract claims under the CDA. Paragon Energy Corp. v. United States, 645 F.2d 966, 967, 227 Ct.Cl. 176 (1981), aff'd, 230 Ct.Cl. 884, 1982 WL 25259 (1982), cited with approval in McDonnell Douglas Corp. v. United States, 754 F.2d 365, 370 (Fed.Cir.1985). Seeking an exception to this principle, defendant relies mainly on Placeway Constr. Corp. v. United States, 920 F.2d 903 (Fed. Cir.1990), affg in part and vacating in part 18 Cl.Ct. 159 (1989), wherein the Federal Circuit held that, following submission of a contractor’s claim to the contracting officer pursuant to the CDA, the Government’s assertion of an unliquidated set-off likewise constitutes a “claim” under the CDA. Place-way, 920 F.2d at 906. By denying the contractor’s direct claim, the Federal Circuit reasoned, the contracting officer effectively makes a final decision on the Government’s claimed set-off, even" }, { "docid": "14405628", "title": "", "text": "contracting officer took defendant’s counterclaim into consideration when rendering the final decision on plaintiffs original claim. In making this determination, we are mindful of the principle that the contracting officer’s decision is the “linchpin” for judicial review of contract claims under the CDA. Paragon Energy Corp. v. United States, 645 F.2d 966, 967, 227 Ct.Cl. 176 (1981), aff'd, 230 Ct.Cl. 884, 1982 WL 25259 (1982), cited with approval in McDonnell Douglas Corp. v. United States, 754 F.2d 365, 370 (Fed.Cir.1985). Seeking an exception to this principle, defendant relies mainly on Placeway Constr. Corp. v. United States, 920 F.2d 903 (Fed. Cir.1990), affg in part and vacating in part 18 Cl.Ct. 159 (1989), wherein the Federal Circuit held that, following submission of a contractor’s claim to the contracting officer pursuant to the CDA, the Government’s assertion of an unliquidated set-off likewise constitutes a “claim” under the CDA. Place-way, 920 F.2d at 906. By denying the contractor’s direct claim, the Federal Circuit reasoned, the contracting officer effectively makes a final decision on the Government’s claimed set-off, even though the contracting officer issues no distinct, formal written decision on the claimed set-off and reserves the power to redetermine the precise amount of the set-off in the future. Id. Notwithstanding the foregoing, we find that defendant’s counterclaim in the case at bar is factually distinguishable from the Government set-off at issue in Placeway. In Placeway, the plaintiff submitted various claims to the contracting officer for decision, including a claim in the amount of $297,226.12 for the balance alleged to be due on the contract price. Placeway, 18 Cl.Ct. at 161. The contracting officer denied the plaintiffs claims because the Government intended to set off claims it anticipated receiving from contractors on other projects that had allegedly suffered delays as a result of plaintiffs delay in performing its contract. Id. By way of distinction, in the present case plaintiff does not appeal a contracting officer’s decision allowing a Government set-off against the contract price. Rather, defendant brings a counterclaim seeking to overturn the contracting officer’s decision increasing the contract price by the sum of $11,208." }, { "docid": "14877099", "title": "", "text": "that “[b]oth issues of liability and of damages should usually be resolved before judicial review is sought.” Id. at 906; see also Teller Envt’l Sys. v. United States, 802 F.2d 1385, 1388-89 (Fed.Cir.1986) (holding that a contracting officer’s decision is final if it resolves the issues of liability and damages). Further, since the contracting officer’s decision was adverse to Placeway, the Federal Circuit explained that Placeway “could properly appeal to the Claims Court.” 920 F.2d at 907. The Federal Circuit concluded that the September 4, 1986 letter served as a final decision on the government’s claimed setoff, even though the contracting officer issued no distinct, formal written decision on the claimed setoff and reserved the power to redetermine the precise amount of the setoff in the future. Id. at 906-07; id. at 907 (“The decision is no less final because it failed to include boilerplate language usually present for the protection of the contractor.”); see also Alliant Tech-systems, Inc. v. United States, 178 F.3d 1260, 1267 (Fed.Cir.1999) (“A letter can be a final decision under the CDA even if it lacks the standard language announcing that it constitutes a final decision.”). The Federal Circuit in Placeway noted that “implicit to a CO decision to award specified damages is a decision imposing liability, whether or not liability is explicitly discussed.” 920 F.2d at 907 n. 2. b. Application of Placeway to the Case Sub Judice i. Was the Liquidated Damages Claim a “Government Claim”? As explained above, the CDA requires that “[a]ll claims by the government against a contractor relating to the contract shall be the subject of a decision by the contracting officer.” 41 U.S.C. § 605(a). Here, the government filed a claim with the CO for liquidated damages against Roxco pursuant to the terms provided in the Contract. The CO then issued a final decision based on this claim, finding that the Air Force was entitled to liquidated damages because Roxco breached the Contract. Def.’s App. 8-9; see also Def.’s Mot. 7 (admitting that the CO issued a “final decision for a Government claim” regarding liquidated damages). Hence, the" }, { "docid": "14405634", "title": "", "text": "sought.” Placeway, 920 F.2d at 906. Defendant presented no evidence suggesting that it raised any contemporaneous objection to the contracting officer’s decision to award plaintiff the sum of $11,208. Unaware that defendant contested — or would later contest — this equitable adjustment, the contracting officer plainly was given no opportunity whatever to resolve defendant’s counterclaim on the merits. Lacking any credible evidence suggesting that defendant even pursued, much less exhausted, its administrative remedy before the contracting officer, we conclude that accepting jurisdiction over defendant’s counterclaim would frustrate the intended scheme of the CDA. Finally, lest this ruling be misconstrued, we do not hold here that, as a matter of law, the CDA confers no jurisdiction over “mirror image” counterclaims upon this Court. Rather, we give effect to the legal tenet that the party invoking the court’s jurisdiction bears the burden of proving the elementary jurisdictional facts by a preponderance of the evidence. Reynolds, 846 F.2d at 748. We duly take note, however, that the Federal Circuit has never expressly extended the exception for Government set-offs set out in Placeway, 920 F.2d at 906-07, so as to create an exception for “mirror image” counterclaims. Moreover, decisions of this Court acknowledging the existence of an exception for “mirror image” counterclaims have done so only in dicta. See Kit-San-Azusa, 32 Fed.Cl. at 663-64 (applying Placeway set-off analysis); Alaska Pulp Corp. v. United States, 38 Fed.Cl. 141, 145-46 (1997) (rejecting contractor’s invitation to apply Sharman to exercise jurisdiction over purported “mirror image” claim, where there was no evidence of claim’s submission to contracting officer). Elsewhere, as defendant concedes in its brief, this Court has expressly rejected jurisdiction over an alleged “mirror image” counterclaim as to which the contracting officer had made no determination of liability or of damages. Volmar Constr. Co. v. United States, 32 Fed.Cl. 746, 756-57 (1995) (declining to adopt “mirror image” claim dictum in Kit-San-Azusa). Assuming, arguendo, that the case at bar presented a compelling reason to reach the unsettled question of subject matter jurisdiction over “mirror image” counterclaims, it would suffice to say that we concur with the result in" }, { "docid": "8828160", "title": "", "text": "CBCA case was incorrect with respect to $824,416.01____”). According to defendant, because the contracting officer’s April 9, 2012 final decision was “on a Government claim,” Palafox was not required to certify the claim before appealing the decision to the CBCA. Id. (emphasis added); cf. Placeway, 920 F.2d at 906 (stating that “certification is not required for government claims”). For the reasons set forth below, the court finds that it must dismiss plaintiffs appeal of the contracting officer’s April 9, 2012 final decision for want of jurisdiction. a. The CBCA Had Jurisdiction Over Plaintiffs Appeal of the Contracting Officer’s April 9, 2012 Final Decision Citing the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Placeway, defendant contends that “[t]he Government’s retention of contract payments through setoff, when the contracting officer has determined both liability and damages in a written statement, constitutes a direetly[ ] appealable final decision on a Government claim.” Def.’s Reply 3 (citing Placeway, 920 F.2d at 906-07). Plaintiff does not directly address this contention. Instead, plaintiff makes the following arguments: (1) that the CBCA “implicitly—if not explicitly—dismissed the appeal because of a lack of subject matter jurisdiction,” Pl.’s Resp. 7, (2) that defendant is judicially es-topped from arguing that the CBCA had jurisdiction over Palafox’s appeal, id. at 8, (3) that the CBCA “never accepted jurisdiction and thus Palafox never made a binding election,” id. at 13, and (4) that Palafox’s appeal to the CBCA “was not ‘informed, knowing, and voluntary,”’ id. at 14 (emphasis and capitalization omitted). The court first addresses the substance of defendant’s argument and then addresses each of plaintiffs arguments in turn. The court finds persuasive defendant’s reliance on Placeway. In that case, the government withheld payment of the contract balance totaling $297,226.12 due to Place-way’s alleged untimely performance under a construction contract with the government. Placeway, 920 F.2d at 905. Placeway subsequently submitted a written demand to the contracting officer for the contract balance. Id. The contracting officer denied the request in a letter, stating that “the contract price balance due would not be ‘released’ because" }, { "docid": "2680573", "title": "", "text": "be approximately $966,000. In its claim, KSA conceded that completion went well beyond November 11. It argued substantial completion by July 1, 1987. It also conceded that to avoid damages for any of the period between November 11 and July 1, it would have to justify the delay. The court finds that permitting defendant to litigate the question of liquidated damages as a defense to plaintiff’s claim for return of the retainage does not prejudice plaintiff. There is no question that KSA completed the contract after the completion date. The contract price is reduced for each day of inexcusable delay up to completion. In both its claim for equitable adjustment and its complaint in this court, KSA correctly recognized that to establish its entitlement to recover any of the contract retain-age, it bore the burden of showing not only that the contract was completed, but also that completion was either timely or, if untimely, that all or part of the delay was excusable. See Claim for Equitable Adjustment § III.A (Mar. 8, 1989); Complaint If 29. Furthermore, plaintiff was well aware at the time of the claim of the Government’s assertion of a liquidated damages offset. In addition, the court holds that the return of the initial liquidated damages offset did not waive any rights the Government had to continue to seek liquidated damages as an offset to plaintiff’s affirmative claim. The Government’s rights were specifically reserved. The Federal Circuit has allowed the Government to litigate set-offs and “mirror-image” claims even in the absence of a direct decision by the CO. In Placeway Constr. Corp. v. United States, 920 F.2d 903, 906-07 (Fed.Cir.1990), the court in effect deemed that the CO had granted the Government’s previously unasserted claim for a set-off when it denied plaintiffs claim for payment of the contract balance. See also Sharman Co. v. United States, 2 F.3d 1564,1566, 1570 (Fed.Cir.1993) (implying that when two “mirror image” claims are “effectively the same claim, but made by [opposing] parties],” that a CO final decision on either claim would suffice to confer upon this court jurisdiction over both). This" }, { "docid": "14877088", "title": "", "text": "41 U.S.C. § 605(b). After the contracting officer issues a final decision on a claim, the contractor may either appeal to the appropriate board of appeals or to the Court of Federal Claims. Id. §§ 607(d), 609(a)(1); see also James M. Ellett Constr. Co., 93 F.3d at 1541-42 (noting that under the CDA, jurisdiction in the Court of Federal Claims requires both a valid claim and a final decision upon that claim by a contracting officer). This court has jurisdiction if the claim is appealed to this court within twelve months of the contracting officer’s final decision. 41 U.S.C. § 609(a). As noted above, the Court of Federal Claims has jurisdiction over an appeal of a contractor’s denied claim if that claim was certified when submitted. James M. Ellett Constr. Co., 93 F.3d at 1545. However, a government claim does not require certification. Placeway Constr. Corp. v. United States, 920 F.2d 903, 906 (Fed.Cir.1990). The CDA offers little guidance regarding what constitutes a valid government claim. J & E Salvage Co. v. United States, 37 Fed.Cl. 256, 262 (1997). The Act provides: “All claims by the government against a contractor relating to the contract shall be the subject of a decision by the contracting officer.” 41 U.S.C. § 605(a). The Federal Circuit has defined a government claim “as a claim seeking incidental and consequential damages for [a contractor’s] alleged breach of the contract.... ” Placeway, 920 F.2d at 906 n. 1. In addition, the Federal Circuit’s decision in Placeway provides that a decision on a government claim, which is adverse to the plaintiff contractor, serves as a basis for the contractor’s appeal in this court even in the absence of a contracting officer’s final decision on the contractor’s certified claim. Id. at 906-07. B. Roxco’s Request for the Outstanding Contract Balance In its motion, defendant asserts that because plaintiff did not file a certified claim with the CO for the contract balance, this court lacks jurisdiction over plaintiffs demand for that sum. See Def.’s Mot. 1; Tr. 4. Defendant notes that when plaintiff submitted its five-volume REA on March 30," }, { "docid": "20474489", "title": "", "text": "to plaintiffs contention that the liquidated damages constituted an impermissible penalty. However, it argues that the remainder of the claim letter is invalid because it did not provide Ms. Broussard with adequate notice of the basis of plaintiffs claim that the assessment and retention of liquidated damages was inappropriate. In other words, defendant asserts, plaintiff did not provide any details to substantiate its assertions that it “was not the sole cause of any alleged delays,” that “any alleged delays by [it were] concurrent with delays caused by the government,” or that “the government failed to issue extensions to the completion date as a result of changes to the contract by the government_” Pl.’s App. 309. In addressing defendant’s contention, the threshold question is whether the liquidated damages issue in this case should be analyzed as a government claim against a contractor or as a contractor’s claim against the government. As a general proposition, the government’s assessment of liquidated damages is a government claim against a contractor, Sun Eagle Corp. v. United States, 23 Cl.Ct. 465, 480 (1991), and can be directly appealed to the Court of Federal Claims, Garrett v. Gen. Elec. Co., 987 F.2d 747, 749 (Fed.Cir.1993). Thus, the Coast Guard’s unilateral modification of the contract to reduce the total contract price by the amount of assessed liquidated damages was a government claim against plaintiff at the time the Coast Guard issued the modification. See FAR 52.233-l(e) (defining a claim as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract”); Placeway Constr. Corp. v. United States, 920 F.2d 903, 906-07 (Fed.Cir.1990) (holding that the contracting officer’s assertion of a right of set off by declining to release the balance of the contract price is a government claim); see also Placeway Constr. Corp., 920 F.2d at 907 (“The decision is no less final because it failed to include boilerplate language usually present for the protection of" }, { "docid": "8828156", "title": "", "text": "S.Ct. 1955. III. Discussion A. The Election Doctrine The CDA requires that claims by a contractor against the government “shall be in writing” and “shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(l)-(2). The CDA also requires that claims by the government against a contractor “shall be the subject of a written decision by the contracting officer.” Id. § 7103(a)(3). Although contractors must certify claims over $100,000, id. § 7103(b), claims by the government do not require certification, Placeway Constr. Corp. v. United States (Placeway), 920 F.2d 903, 906 (Fed. Cir.1990), superseded by statute on other grounds, Court of Federal Claims Technical and Procedural Improvements Act of 1992, Pub.L. No. 102-572, § 907(b), 106 Stat. 4506, 4519. Because the CDA does not define the term “claim,” the court looks to the Federal Acquisition Regulations (FAR) for guidance. M. Maropakis Carpentry, Inc. v. United States (M. Maropakis), 609 F.3d 1323, 1327 (Fed.Cir.2010). The FAR defines a “claim” as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain.” 48 C.F.R. § 52.233-l(c) (2013). A claim need not be “submitted in any particular form or use any particular wording.” M. Maropakis, 609 F.3d at 1327. Whether a claim is made by a contractor or the government, the CDA requires that a contracting officer issue a final decision on the claim before it can be appealed. See Sharman Co. v. United States, 2 F.3d 1564, 1568 (Fed.Cir.1993) (“Under the CDA, a final decision by the contracting officer on a claim ... is a jurisdictional prerequisite to further legal action thereon.”) (internal quotation marks omitted), overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995). A contractor may appeal a contracting officer’s final decision to either the appropriate board of contract appeals or the Court of Federal Claims. 41 U.S.C. §§ 7104(a)—(b)(1). Pursuant to the election doctrine, once a contractor chooses the forum in which to lodge its appeal, the contractor's choice is binding, and the contractor is no longer" }, { "docid": "20474490", "title": "", "text": "480 (1991), and can be directly appealed to the Court of Federal Claims, Garrett v. Gen. Elec. Co., 987 F.2d 747, 749 (Fed.Cir.1993). Thus, the Coast Guard’s unilateral modification of the contract to reduce the total contract price by the amount of assessed liquidated damages was a government claim against plaintiff at the time the Coast Guard issued the modification. See FAR 52.233-l(e) (defining a claim as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract”); Placeway Constr. Corp. v. United States, 920 F.2d 903, 906-07 (Fed.Cir.1990) (holding that the contracting officer’s assertion of a right of set off by declining to release the balance of the contract price is a government claim); see also Placeway Constr. Corp., 920 F.2d at 907 (“The decision is no less final because it failed to include boilerplate language usually present for the protection of the contractor.”); Alliant Techsys., Inc. v. United States, 178 F.3d 1260, 1268 (Fed.Cir.1999) (noting that a document “can be a final decision under the CDA even if it lacks the standard language announcing that it constitutes a final decision.”). However, plaintiff did not directly appeal the government’s claim. Instead, it submitted the July 28, 2005 claim letter to Ms. Broussard, requesting a final decision regarding the remission of liquidated damages. The United States Claims Court (“Claims Court”) encountered a similar situation in Sun Eagle Corp. In that case, the government reduced the amount on the contractor’s invoice by $18,400 to reflect its retention of assessed liquidated damages. 23 Cl.Ct. at 481. The contractor subsequently submitted a claim letter to the government demanding remission of the retained liquidated damages, arguing that the government was responsible for the delay in completing the contract. Id. at 469, 481-82. In the same claim letter, the contractor demanded payment for the costs associated with the additional work. Id. The court concluded: [A] claim for liquidated damages is the quintessential government" } ]

[ { "docid": "22252340", "title": "", "text": "issue or where the result would otherwise be a plain miscarriage of justice. See United States v. Reddix, 106 F.3d 236, 238 (8th Cir.1997). This is not such a case, and thus we decline to address the ineffective assistance claim in this proceeding. IV. Diaz argues that his separate convictions for conspiracy to possess cocaine with intent to distribute and for aiding and abetting the possession of cocaine with intent to distribute violated the Double Jeopardy Clause of the Fifth Amendment. Diaz did not raise this claim in the district court, and it is well settled that “[d]ouble jeopardy claims may not be raised for the first time on appeal.” United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995). In any event, Diaz’s argument is precluded by United States v. Thomas, 971 F.2d 147 (8th Cir.1992), which holds that separate convictions identical to those in the present case do not constitute a violation of the Double Jeopardy Clause. 971 F.2d at 149. Y. Diaz next contends that the evidence was insufficient to support his conviction. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and give the government the benefit of all reasonable inferences. See United States v. Diaz-Diaz, 135 F.3d 572, 577 (8th Cir.1998). We will reverse “‘only if a reasonable jury must have had a reasonable doubt’ that the elements of the crime were established.” United States v. Carlisle, 118 F.3d 1271, 1273 (8th Cir.1997), cert. denied, — U.S. — , 118 S.Ct. 429, 139 L.Ed.2d 330 (1997) (quoting United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir.1996)). Diaz’s argument rests almost exclusively on his assertion that Arellano’s testimony was not credible and should have been disregarded. Assessing the credibility of witnesses is a matter properly left to the jury. See United States v. Anderson, 78 F.3d 420, 422-23 (8th Cir.1996). The jury heard extensive testimony from Arellano that Diaz had supplied him with a substantial amount of cocaine during August, September, and October of 1996. This testimony, which the jury apparently found credible, was clearly" } ]

[ { "docid": "17310397", "title": "", "text": "(8th Cir.1992); United States v. Herzog, 644 F.2d 713, 716 (8th Cir.1981); United States v. Conley, 503 F.2d 520, 521 (8th Cir.1974). However, this court has also reviewed such arguments for plain error, even if the defendant failed to raise the claim earlier. See United States v. Washburn, 444 F.3d 1007, 1010 (8th Cir.2006); United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998); United States v. Uder, 98 F.3d 1039, 1045 (8th Cir.1996). This case does not require resolving any inconsistencies among these cases, because Ihmoud’s argument fails even under plain error review. Under the plain error standard, the conviction is affirmed “unless (1) the district court made an error, (2) the error was plain under current law, meaning clear and obvious, and (3) the error was prejudicial and affected the trial outcome.” Jackson, 155 F.3d at 947, citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “The court should only correct the error if the error results in a miscarriage of justice or seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. In this case, the key to double jeopardy analysis is “whether Congress ‘intended that each violation be a separate offense.’ ” United States v. Bennett, 44 F.3d 1364, 1373 (8th Cir.1995), quoting Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). If Congress so intended, there is no double jeopardy violation. This court has held that Congress intended 18 U.S.C. § 844(h) to allow prosecution for both the crime of using fire to commit a felony, and the felony itself. See United States v. Shriver, 838 F.2d 980, 982 (8th Cir.1988). Ihmoud’s conviction for conspiracy does not change the analysis. “It is well settled that no double jeopardy violation occurs when a person is convicted of conspiracy and a substantive overt act of the conspiracy.” United States v. Cerone, 830 F.2d 938, 944 (8th Cir.1987). This court finds no plain error in Ihmoud’s conviction and sentencing for arson, conspiracy to" }, { "docid": "2612160", "title": "", "text": "defraud and a pattern of deceitful financial transactions. The district court questioned the relevance of the information, but agreed to admit it with one condition: the government was not to refer to the amount lost in that enterprise because the district court believed that the $1 million figure was more prejudicial than probative. On the first day of trial, however, the government’s third witness disclosed the $1 million amount while answering questions on direct examination. The defense moved for a mistrial, and the court granted the request. The court empaneled a second jury several months later, and the governmeht convicted Mr. Wash-burn without using any of the Rule 404(b) evidence at issue in the first trial. Mr. Washburn maintains that the government intentionally provoked the mistrial and therefore his retrial violated the fifth amendment. Because Mr. Wash-burn failed to object to his retrial, we review his double-jeopardy claim for plain error. See United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.1999). For Mr. Washburn to obtain relief under this standard, the error must be plain, it must have affected his substantial rights, and it must seriously have affected the fairness and integrity of judicial proceedings. United States v. Willis, 433 F.3d 634, 637 (8th Cir.2006). Reviewing the record in this case, we conclude that there was no double-jeopardy error of any kind. “When a defendant moves for a mistrial, the [double-jeopardy] doctrine does not bar retrial unless the prosecutor intentionally engaged in conduct designed to provoke the defendant’s motion.” United States v. Curry, 328 F.3d 970, 972 (8th Cir.2003). The transcript from Mr. Washburn’s first trial amply supports a finding that the government did not intend to elicit the information that led to the mistrial. The government had avoided any disclosure of the dollar amount when its two previous witnesses were on the stand. The federal prosecutor apologized to the court for the disclosure and said that he had instructed all of the witnesses not to get into specific dollar amounts. The transcript reveals that even Mr. Washburn’s trial counsel, when moving for a mistrial, agreed that the government" }, { "docid": "7817857", "title": "", "text": "Court’s plain error review we must affirm unless (1) the district court erred; (2) the error was plain under current law, i.e., clear and obvious; and (3) the error was prejudicial. United States v. Jackson, 155 F.3d 942, 947-48 (8th Cir.), cert. denied, - U.S. -, 119 S.Ct. 627, 142 L.Ed.2d 565 (1998). Under this standard, we cannot find that plain error has been committed by the district court. The only cases examining the contention raised by Sickinger, that interstate domestic violence is simply a more specific type of kidnapping, have rejected the argument. See United States v. Bailey, 112 F.3d 758, 766-67 (4th Cir.) cert. denied, — U.S.-, 118 S.Ct. 240, 139 L.Ed.2d 170 (1997); United States v. Frank, 8 F.Supp.2d 253, 282 n. 26 (S.D.N.Y.1998). Applying Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the courts in Bailey and Frank held that each statute — kidnapping and domestic violence- — requires proof of a fact that the other statute does not require. For example, kidnapping requires proof of “holding,” while the domestic violence statute does not, and the domestic violence statute requires proof of an “intimate partner,” a fact not required for a kidnapping conviction. See Bailey, 112 F.3d at 766-67; Frank, 8 F.Supp.2d at 282 n. 26. In light of these cases, we cannot say that any district court error was “clear and obvious.” Jackson, 155 F.3d at 947. We are thus unable to conclude that the district court plainly erred and we reject Sickinger’s double jeopardy challenge. B. Sentencing Guidelines, 1 Sickinger argues that the district court erred in failing to grant a one-level reduction for release within 24 hours under U.S.S.G. § 2A4.1(b)(4)(C) and the Commentary thereto. Sickinger claims that Walker was constructively released prior to 24 hours because Walker was left alone at a convenience store on two occasions and could have escaped. In the circumstances here, we conclude that the district court did not err in failing to grant a one-level reduction. United States v. Frieberger, 28 F.3d 916, 918 (8th Cir.1994) (district court’s application of the" }, { "docid": "7817856", "title": "", "text": "at that time threaten or physically restrain Walker. Walker did not attempt to escape because she “lost so much blood ... [and] I’m not going to get hit no more.” The next morning, Sickinger drove Walker to a gasoline station where she entered alone and purchased a drink and sunglasses to hide her black eyes. She made no attempt to escape or to alert authorities. That afternoon, Sickinger and Walker were stopped by an Illinois police officer and Sickinger was arrested. II. A. Double Jeopardy. Sickinger argues that conviction and sentencing on both interstate domestic violence and kidnapping constitutes double jeopardy in violation of the Fifth Amendment. Sickinger failed to raise this argument in the district court and thus it has not been preserved. United States v. Santana, 150 F.3d 860, 863-64 (8th Cir.1998); United States v. Garrett, 961 F.2d 743, 748 (8th Cir.1992). We will, however, review the contention for plain error. United States v. Uder, 98 F.3d 1039, 1045 (8th Cir.1996); United States v. Merritt, 982 F.2d 305, 306-07 (8th Cir.1992). Under the Court’s plain error review we must affirm unless (1) the district court erred; (2) the error was plain under current law, i.e., clear and obvious; and (3) the error was prejudicial. United States v. Jackson, 155 F.3d 942, 947-48 (8th Cir.), cert. denied, - U.S. -, 119 S.Ct. 627, 142 L.Ed.2d 565 (1998). Under this standard, we cannot find that plain error has been committed by the district court. The only cases examining the contention raised by Sickinger, that interstate domestic violence is simply a more specific type of kidnapping, have rejected the argument. See United States v. Bailey, 112 F.3d 758, 766-67 (4th Cir.) cert. denied, — U.S.-, 118 S.Ct. 240, 139 L.Ed.2d 170 (1997); United States v. Frank, 8 F.Supp.2d 253, 282 n. 26 (S.D.N.Y.1998). Applying Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the courts in Bailey and Frank held that each statute — kidnapping and domestic violence- — requires proof of a fact that the other statute does not require. For example, kidnapping requires proof" }, { "docid": "14131386", "title": "", "text": "States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993) (holding that Fed.R.Crim.P. 12(b)(2) requires that challenges based on multiplicitous counts in an indictment and related double-jeopardy problems be raised before trial or they are waived). Reviewing for plain error, we find none. See United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999) (reviewing a double jeopardy claim for plain error even though it was not raised in the district court); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998) (same). In a single trial where separate and consecutive sentences are imposed for the same underlying circumstances, the Double Jeopardy Clause does no more than prevent a sentencing court from prescribing greater punishment than a legislature intended. See Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). In the present case then, imposition of multiple punishments for the same underlying circumstances does not violate the Constitution as long as Congress intended it. See Alber-naz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Thus, we first consider whether the two statutes under which Men was convicted and sentenced prohibit the same offense, and if so, whether there is a clear indication that Congress in fact intended multiple punishments for that offense. See Hunter, 459 U.S. at 367, 103 S.Ct. 673. If the offenses are not the same, and absent clear contrary legislative intent, there is no double jeopardy violation. See id. The Supreme Court has consistently used the test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as the initial starting point for determining legislative intent. See Albernaz, 450 U.S. at 345 n. 3, 101 S.Ct. 1137 (explaining that “the established test for determining whether two offenses are the ‘same offense’ is the rule set forth in Blockburger ”). Under Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one, is whether each provision requires proof of a fact which the other does" }, { "docid": "7817854", "title": "", "text": "SACHS, District Judge. Michael J. Sickinger was charged with and found guilty of kidnapping in violation of 18 U.S.C. § 1201(a) and of interstate domestic violence in violation of 18 U.S.C. § 2261(a). The district court sentenced Sickinger to 78 months in prison on each count, to run concurrently. Sickinger appeals, claiming a violation of the Fifth Amendment double jeopardy clause and two errors in applying the United States Sentencing Guidelines (“U.S.S.G.”). We reject several of these contentions, but because we find one sentencing error we vacate the judgment and remand for re-sentencing. I. On January 24, 1998, Judith Walker, Sickinger’s girlfriend at the time, and her friend, Tammy Wilson, were cleaning a business in Clayton, Missouri. Sickinger arrived at the business shortly before noon and confronted Wilson and Walker through a window at the business. Shortly thereafter Sickinger gained access to the building, seized Walker by the hair, •punched her in the stomach and pushed her into a bathroom. Wilson screamed at Sickinger to stop and threatened to call 911. Sickinger turned and called out “Bitch, I’ll kill you if you call 911.” Sick-inger then seized Wilson’s hair, threw her to the ground and kicked her in the face twice, shattering bones in her eye socket and breaking her nose and sinuses. Sickinger then started choking Walker and dragged her by the hair to his Corvette. Once in the Corvette, Sickinger hit Walker in the nose and told her to keep her head down. When she raised her head, Sickinger struck her in the face and back of her head. When she tried to get out of the car, he used his hand and the power locks to keep the door shut. After crossing into Illinois Sickinger stopped for shopping at a convenience store and a fast food drive-through. Walker later stated that she did not attempt to run because she had nowhere to go and was afraid of being beaten by Sickinger. Sickinger warned Walker not to attempt to run. They rented a hotel room and Sickinger placed two chairs in front of the door. Sickinger did not" }, { "docid": "23472426", "title": "", "text": "§ 924(c)(1)(A), violated the Double Jeopardy Clause. We respectfully disagree. It does not appear from our review of the record that Gamboa raised a double jeopardy objection to the indictment as to Counts Four and Five before trial. He did raise such an objection before his sentencing. (Index at 745.) Federal Rule of Criminal Procedure 12(b)(2) (2000) requires such an objection to have been made before trial or it is deemed waived pursuant to Fed.R.Crim.P. 12(f). We have, in prior cases, enforced the waiver rule. See United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993), cert. denied, 510 U.S. 1203, 114 S.Ct. 1322, 127 L.Ed.2d 671 (1994); United States v. Garrett, 961 F.2d 743, 748 & n. 7 (8th Cir.1992). In other cases, we have proceeded to do a plain error analysis. See United States v. Allen, 247 F.3d 741, 767 (8th Cir.2001) (citing two other 8th Circuit cases where plain error review was undertaken even though a double jeopardy claim was not raised in the district court), cert. granted and judgment vacated, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), and cert. denied, 539 U.S. 916, 123 S.Ct. 2273, 156 L.Ed.2d 132 (2003). We noted the open nature of the issue in United States v. Frazier, 280 F.3d 835, 845 (8th Cir.), cert. denied, 537 U.S. 911, 123 S.Ct. 255, 154 L.Ed.2d 191 (2002), and declined to join either side of the debate. Because we find no double jeopardy violation under any standard of, review, we again decline to decide whether the failure to raise the objection pretrial precludes plain error review. “The [D]ouble [J]eopardy [CJlause is violated in a single proceeding only where multiple punishments are imposed for the same crime contrary to the legislature’s intent.” United States v. Good Bird, 197 F.3d 1203, 1204 (8th Cir. 1999) (citing Jones v. Thomas, 491 U.S. 376, 380-81, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989)). In ordér'to determine whether two crimes are the same for double jeopardy purposes, we apply the test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306" }, { "docid": "14131385", "title": "", "text": "that took place early that morning, resulted in an involuntary or improperly coerced confession under the Fifth Amendment. See United States v. McClinton, 982 F.2d 278, 282 (8th Cir.1992) (explaining that “[t]he appropriate test for determining the voluntariness of a confession is whether, in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will”) (internal quotations and citations omitted). c. Double Jeopardy Men argues that Ms multiple sentences of life in prison and the death penalty for the same underlying offense violate his right to be free from double jeopardy. Men waived this issue by failing to preserve it for appeal, however, because he did not raise this argument in the district court prior to trial. See Fed. R.Crim.P. 12(b)(2) (requiring that defenses and objections based on defects in an indictment be raised before trial or they are waived); United States v. Prescott, 42 F.3d 1165, 1167 (8th Cir.1994) (holding that failure to raise pretrial objection to alleged duplicitous counts in the indictment constitutes waiver of the defense); United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993) (holding that Fed.R.Crim.P. 12(b)(2) requires that challenges based on multiplicitous counts in an indictment and related double-jeopardy problems be raised before trial or they are waived). Reviewing for plain error, we find none. See United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999) (reviewing a double jeopardy claim for plain error even though it was not raised in the district court); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998) (same). In a single trial where separate and consecutive sentences are imposed for the same underlying circumstances, the Double Jeopardy Clause does no more than prevent a sentencing court from prescribing greater punishment than a legislature intended. See Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). In the present case then, imposition of multiple punishments for the same underlying circumstances does not violate the Constitution as long as Congress intended it. See Alber-naz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Thus," }, { "docid": "20137905", "title": "", "text": "argues that the indictment resulted in more than one sentence for a single offense, in violation of the Double Jeopardy Clause of the Fifth Amendment. Hinkeldey contends that his convictions should be reversed, and that the district court should be directed to enter judgment on and resentence him for a single conviction for possession of child pornography, with a statutory maximum sentence of 120 months. Hinkeldey did not raise a claim of multiplicity until after the trial was concluded. Federal Rule of Criminal Procedure 12(b)(3) specifies that “a motion alleging a defect in the indictment” must be made before trial. United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993). On appeal, therefore, we review his claim only for plain error. See Fed.R.Crim.P. 52(b); United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998). To gain relief, Hinkeldey must show an error that is clear or obvious under current law, and he must demonstrate that the error affected his substantial rights and seriously affected the fairness, integrity, or reputation of the judicial proceedings. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The district court’s ruling will be upheld if the statute and case law do not provide a clear answer, and the appellant’s “claim of error is at least subject to reasonable dispute.” United States v. Pazour, 609 F.3d 950, 953 (8th Cir.2010) (per curiam) (internal quotation omitted). The rule against multiplicitous prosecutions is based on the Fifth Amendment’s Double Jeopardy Clause, which “protects against multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (internal quotation omitted). Where, as here, an indictment includes more than one count charging the same statutory violation, the question is whether Congress intended the facts underlying each count to constitute a separate unit of prosecution. United States v. Chipps, 410 F.3d 438, 447 (8th Cir.2005). A unit of prosecution is “the aspect of criminal activity that Congress intended to punish.” Id. at 448. Hinkeldey claims that the" }, { "docid": "7817855", "title": "", "text": "out “Bitch, I’ll kill you if you call 911.” Sick-inger then seized Wilson’s hair, threw her to the ground and kicked her in the face twice, shattering bones in her eye socket and breaking her nose and sinuses. Sickinger then started choking Walker and dragged her by the hair to his Corvette. Once in the Corvette, Sickinger hit Walker in the nose and told her to keep her head down. When she raised her head, Sickinger struck her in the face and back of her head. When she tried to get out of the car, he used his hand and the power locks to keep the door shut. After crossing into Illinois Sickinger stopped for shopping at a convenience store and a fast food drive-through. Walker later stated that she did not attempt to run because she had nowhere to go and was afraid of being beaten by Sickinger. Sickinger warned Walker not to attempt to run. They rented a hotel room and Sickinger placed two chairs in front of the door. Sickinger did not at that time threaten or physically restrain Walker. Walker did not attempt to escape because she “lost so much blood ... [and] I’m not going to get hit no more.” The next morning, Sickinger drove Walker to a gasoline station where she entered alone and purchased a drink and sunglasses to hide her black eyes. She made no attempt to escape or to alert authorities. That afternoon, Sickinger and Walker were stopped by an Illinois police officer and Sickinger was arrested. II. A. Double Jeopardy. Sickinger argues that conviction and sentencing on both interstate domestic violence and kidnapping constitutes double jeopardy in violation of the Fifth Amendment. Sickinger failed to raise this argument in the district court and thus it has not been preserved. United States v. Santana, 150 F.3d 860, 863-64 (8th Cir.1998); United States v. Garrett, 961 F.2d 743, 748 (8th Cir.1992). We will, however, review the contention for plain error. United States v. Uder, 98 F.3d 1039, 1045 (8th Cir.1996); United States v. Merritt, 982 F.2d 305, 306-07 (8th Cir.1992). Under the" }, { "docid": "22262737", "title": "", "text": "cannot say that the district court committed plain error when it determined Lankford’s sentence. That kidnapping is a lesser included offense of interstate domestic violence is by no means clear or obvious under current law. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (defining “plain” error to be error that is “clear” or “obvious”); Sickinger, 179 F.3d at 1093 (considering whether kidnapping was a lesser included offense within interstate domestic violence and finding no plain error). B. Sentence for Interstate Domestic Violence Lankford was given a sentence of 135 months imprisonment for his conviction of interstate domestic violence. He contends, for the first time on appeal, that his sentence for violating § 2261(a)(1) exceeds the statutory maximum, because evidence supports an offense of aggravated sexual abuse as defined in 18 U.S.C. § 2241, an offense he was not charged with committing, but does not support an offense of sexual abuse as defined in 18 U.S.C. § 2242(1). As a result, he argues, he cannot be sentenced under § 2261(b)(4), which dictates that a person violating § 2261(a) “shall be fined under this title, imprisoned ... as provided for the applicable conduct under chapter 109A if the offense would constitute an offense under chapter 109A....” Instead, he must be sentenced under § 2261(b)(5), which specifies a term of not more than five years. Because Lankford’s argument requires that we interpret § 2261(b)(4), we review the district court’s action de novo, see United States v. Hebert, 131 F.3d 514, 525 (5th Cir.1997), cert. denied, 523 U.S. 1101, 118 S.Ct. 1571, 140 L.Ed.2d 804 (1998), and in this case must determine whether the court committed plain error. See United States v. Martinez-Cortez, 988 F.2d 1408, 1410 (5th Cir.1993). Section 2261(b) provides for penalties that vary according to the degree of the injury sustained by the victim. See United States v. Page, 167 F.3d 325, 334 (6th Cir.1999). The language of § 2261(b)(4) instructs that if “the offense would constitute an offense under chapter 109A,” then the penalties “as provided for the applicable conduct under chapter" }, { "docid": "7817863", "title": "", "text": "consistent with this opinion. . The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. . Because of the standard of review we use here, we do not reach the ultimate question of whether we necessarily agree with Bailey and Frank. . Sickinger argues in his reply brief that the error of trial counsel caused him not to raise the double jeopardy argument in the district court. Such an ineffective assistance claim could be pursued under 28 U.S.C. § 2255. .Section 2A4.1(b)(4)(C) provides that ''[i]f the victim was released before twenty-four hours had elapsed, decrease by one level .” The Commentary states that “For the purposes of subsection (b)(4)(C), 'released' includes allowing the victim to escape or turning him over to law enforcement authorities without resistance.” . We have considered the desirability of limiting further proceedings to matters germane to the issue on which a reversal is based, in order to avoid unjustified reconsideration of wholly unrelated matters. See United States v. Cornelius, 968 F.2d 703 (8th Cir.1992). Where one basis for an enhanced sentence is ruled legally impermissible, however, this occasionally allows use of another ground for enhancement. See, e.g., United States v. Jacobs, 136 F.3d 1187 (8th Cir.1998) (Guideline enhancement allowed after statutory firearm enhancement fails). In a case like this one we see no principled basis for blinding the sentencing judge to issues that are intimately related to those requiring a new sentence. Even though we have ruled that Wilson’s injuries were not the injuries to a kidnapping victim that are dealt with in the kidnapping Guideline, we are satisfied that sound procedure under Guideline Sentencing would permit the resentencing judge to reconsider the injuries occurring during the course of the crime and to determine whether they should be taken into account in some manner in reimposing sentence." }, { "docid": "17310396", "title": "", "text": "court erred in imposing consecutive sentences under § 924(c)(1). This court held that the “express language of the statute prohibits the district court from allowing the firearms terms of imprisonment to run concurrently with each other or with the underlying crime of violence.” Id.; see also United States v. Allee, 299 F.3d 996, 1003-04 (8th Cir.2002) (following Davis). The express language of § 844(h) — -just like § 924(c)(1) — categorically prohibits concurrent sentences for “any other term of imprisonment.” The district court did not abuse its discretion in running Abdel-jabbar’s sentences consecutively. F. Ihmoud argues that his sentence for multiple counts violates the Double Jeopardy Clause. The Government responds that this court declines to review double jeopardy arguments not raised before the district court. See United States v. High Elk, 442 F.3d 622, 624 (8th Cir.2006); United States v. Santana, 150 F.3d 860, 863-64 (8th Cir.1998); United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993); United States v. Garrett, 961 F.2d 743, 748 (8th Cir.1992); United States v. Herzog, 644 F.2d 713, 716 (8th Cir.1981); United States v. Conley, 503 F.2d 520, 521 (8th Cir.1974). However, this court has also reviewed such arguments for plain error, even if the defendant failed to raise the claim earlier. See United States v. Washburn, 444 F.3d 1007, 1010 (8th Cir.2006); United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998); United States v. Uder, 98 F.3d 1039, 1045 (8th Cir.1996). This case does not require resolving any inconsistencies among these cases, because Ihmoud’s argument fails even under plain error review. Under the plain error standard, the conviction is affirmed “unless (1) the district court made an error, (2) the error was plain under current law, meaning clear and obvious, and (3) the error was prejudicial and affected the trial outcome.” Jackson, 155 F.3d at 947, citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “The court should only correct the error if the error results" }, { "docid": "2612159", "title": "", "text": "ARNOLD, Circuit Judge. Donald Washburn appeals his conviction on ten counts of wire fraud, see 18 U.S.C. § 1343, and two counts of money laundering, see 18 U.S.C. § 1956(a)(l)(B)(i). The charges stemmed from Mr. Washburn’s efforts to procure money from six individuals for two enterprises: a dice game to be marketed to casinos and an effort to obtain an international grant for DNA storage. The government’s first attempt to try Mr. Washburn ended when the district court declared a mistrial in response to the statements of a witness. His second trial ended in his conviction. The district court sentenced Mr. Washburn to a term of 27 months. Mr. Washburn challenges several aspects of his trial and sentencing. We affirm. I. Before Mr. Washburn’s first trial, the government sought permission to introduce evidence about another failed enterprise in which he was involved. The investors in this earlier enterprise reported losing more than $1 million. The government contended that this evidence was admissible under Federal Rule of Evidence 404(b) because it established both the intent to defraud and a pattern of deceitful financial transactions. The district court questioned the relevance of the information, but agreed to admit it with one condition: the government was not to refer to the amount lost in that enterprise because the district court believed that the $1 million figure was more prejudicial than probative. On the first day of trial, however, the government’s third witness disclosed the $1 million amount while answering questions on direct examination. The defense moved for a mistrial, and the court granted the request. The court empaneled a second jury several months later, and the governmeht convicted Mr. Wash-burn without using any of the Rule 404(b) evidence at issue in the first trial. Mr. Washburn maintains that the government intentionally provoked the mistrial and therefore his retrial violated the fifth amendment. Because Mr. Wash-burn failed to object to his retrial, we review his double-jeopardy claim for plain error. See United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.1999). For Mr. Washburn to obtain relief under this standard, the error must be" }, { "docid": "23472425", "title": "", "text": "and of being a fugitive in possession of a firearm, § 922(g)(2) (Count Seven). Gamboa asserts that these firearm convictions result from a single act that constituted both offenses, and therefore the convictions violate the Double Jeopardy Clause of the Fifth Amendment. This court en banc recently determined that separate counts alleging that a defendant was a felon in possession of a firearm in violation of § 922(g)(1), and that the same defendant was also a drug user in possession of a firearm in violation of § 922(g)(3), both counts arising out of a single act of firearm possession, constituted but one offense. See United States v. Earnest Jesse Richardson, 439 F.3d 421 (8th Cir.2006). Accordingly, we grant the Government’s pending request to merge the convictions on Counts Six and Seven, and remand Count Seven to the district court with instructions to vacate the conviction, the sentence, and the special assessment imposed on that Count. B. Counts Four and Five. Gamboa also argues that his convictions under Counts Four and Five, both for violations of § 924(c)(1)(A), violated the Double Jeopardy Clause. We respectfully disagree. It does not appear from our review of the record that Gamboa raised a double jeopardy objection to the indictment as to Counts Four and Five before trial. He did raise such an objection before his sentencing. (Index at 745.) Federal Rule of Criminal Procedure 12(b)(2) (2000) requires such an objection to have been made before trial or it is deemed waived pursuant to Fed.R.Crim.P. 12(f). We have, in prior cases, enforced the waiver rule. See United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993), cert. denied, 510 U.S. 1203, 114 S.Ct. 1322, 127 L.Ed.2d 671 (1994); United States v. Garrett, 961 F.2d 743, 748 & n. 7 (8th Cir.1992). In other cases, we have proceeded to do a plain error analysis. See United States v. Allen, 247 F.3d 741, 767 (8th Cir.2001) (citing two other 8th Circuit cases where plain error review was undertaken even though a double jeopardy claim was not raised in the district court), cert. granted and judgment vacated, 536" }, { "docid": "5184549", "title": "", "text": "Interstate Domestic Violence Act. Stated differently, Larsen’s argument is that the crime of interstate domestic violence encompasses the crime of kidnapping. We disagree. The kidnapping statute requires that the defendant “hold[] [the victim] for ransom or reward or otherwise.” This “holding” requirement is an essential element of kidnapping and must be established in every case. See 3 Wayne R. LaFave, Substantive Criminal Law § 18.2 (2d ed. 2009); Sandoval, 347 F.3d at 633. Furthermore, the Supreme Court has said that the “holding” requirement “necessarily implies an unlawful physical or mental restraint for an appreciable period.” Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 90 L.Ed. 198 (1946). The Interstate Domestic Violence Act, on the other hand, does not require that the defendant hold the victim. Rather, the defendant must cause the victim to travel in interstate commerce “by force, coercion, duress, or fraud,” and commit a crime of violence against the victim “in the course of, as a result of, or to facilitate” the interstate travel. Thus, if a defendant (for example) induces his spouse to travel across state lines by coercion or false pretenses and then commits a crime of violence against her when she arrives, he would be guilty of interstate domestic violence but not kidnapping because the “holding” element of kidnapping would be missing. Indeed, three circuits have held that the element of holding distinguishes kidnapping from a violation of the Interstate Domestic Violence Act for double-jeopardy purposes. See Lankford, 196 F.3d at 578; United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.1999); Bailey, 112 F.3d at 767. We see no reason to disagree with this conclusion. Larsen suggests that even if the two crimes require proof of different elements in theory, in this case the same facts proved both the interstate travel element of interstate domestic violence and the “holding” element of kidnapping. That is, Larsen argues that the government could not prove a violation of the Interstate Domestic Violence Act in this case without also proving that the defendant “held” the victim for purposes of the kidnapping statute. Larsen’s argument essentially" }, { "docid": "20137904", "title": "", "text": "Before trial, the government dismissed the count alleging receipt of child pornography. In February 2009, a jury found Hinkeldey guilty of all six possession counts charged in the indictment. At sentencing, the district court calculated an advisory guideline range of 210 to 262 months’ imprisonment for each count. The statutory maximum sentence for each count, however, is 120 months’ imprisonment. Over Hinkeldey’s objection, the court applied USSG § 5G1.2(d), which calls for consecutive sentencing in a multiple-count case when necessary to achieve a total punishment within the advisory range. The court imposed concurrent sentences of 120 months’ imprisonment for the five counts stemming from the illegal files on the computer and the four computer disks, and a consecutive sentence of 90 months’ imprisonment for the count associated with illegal files on the zip drive. This resulted in a total sentence of 210 months’ imprisonment, which was the bottom of the advisory range. II. On appeal, Hinkeldey asserts that the six possession counts listed in the indictment are multiplicitous because they charge the same crime. He argues that the indictment resulted in more than one sentence for a single offense, in violation of the Double Jeopardy Clause of the Fifth Amendment. Hinkeldey contends that his convictions should be reversed, and that the district court should be directed to enter judgment on and resentence him for a single conviction for possession of child pornography, with a statutory maximum sentence of 120 months. Hinkeldey did not raise a claim of multiplicity until after the trial was concluded. Federal Rule of Criminal Procedure 12(b)(3) specifies that “a motion alleging a defect in the indictment” must be made before trial. United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1993). On appeal, therefore, we review his claim only for plain error. See Fed.R.Crim.P. 52(b); United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999); United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998). To gain relief, Hinkeldey must show an error that is clear or obvious under current law, and he must demonstrate that the error affected his substantial rights and seriously affected the" }, { "docid": "7817862", "title": "", "text": "S.Ct. 1859, 137 L.Ed.2d 1060 (1997); United States v. Muhammad, 948 F.2d 1449 (6th Cir.1991). But we join those courts that have found a meaningful distinction between the “any victim” language in § 2B3.1 and the “the victim” language found in other Guidelines provisions. See, e.g., Malpeso, 115 F.3d at 169-70; United States v. Graves, 908 F.2d 528, 530-31 (9th Cir.1990). Notwithstanding our conclusion that § 2A4.1 does not specify an upward adjustment for injuries to the bystander, Wilson, it is our view the district court may, on resentencing, consider whether an upward departure is appropriate under authority found in U.S.S.G. § 5K2.0 based on Wilson’s injuries. See, e.g., Malpeso, 115 F.3d at 170; United States v. Moore, 997 F.2d 30, 35-36 (5th Cir.1993). Presumably, if it departs upward, the district court will make a careful reevalua tion of the physical injury that occurred and will attempt to harmonize any departure with other provisions of the Guidelines. For the reasons stated, the judgment is vacated and the case remanded to the district court for resentencing consistent with this opinion. . The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. . Because of the standard of review we use here, we do not reach the ultimate question of whether we necessarily agree with Bailey and Frank. . Sickinger argues in his reply brief that the error of trial counsel caused him not to raise the double jeopardy argument in the district court. Such an ineffective assistance claim could be pursued under 28 U.S.C. § 2255. .Section 2A4.1(b)(4)(C) provides that ''[i]f the victim was released before twenty-four hours had elapsed, decrease by one level .” The Commentary states that “For the purposes of subsection (b)(4)(C), 'released' includes allowing the victim to escape or turning him over to law enforcement authorities without resistance.” . We have considered the desirability of limiting further proceedings to matters germane to the issue on which a reversal is based, in order to avoid unjustified reconsideration of wholly unrelated matters. See United States v. Cornelius, 968 F.2d 703 (8th Cir.1992). Where one" }, { "docid": "22262736", "title": "", "text": "defendant crossed state lines with the intent to injure, harass, or intimidate the victim, that a crime of violence was engaged in intentionally either in the course of or as the result of such travel, and that as a result of that crime of violence, bodily injury to the victim occurred. It can therefore be said that a kidnapping conviction requires proof of a fact not required by the interstate domestic violence statute (e.g., that the victim be held for purposes beneficial to the defendant at the time state lines were crossed), and that a conviction for interstate domestic violence requires proof of a fact not required by the kidnapping statute (e.g., that the victim be a spouse or intimate partner, that bodily injury to the victim resulted). See United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.1999)(identifying facts that are unique to both § 1201(a) and § 2261(a)); United States v. Bailey, 112 F.3d 758, 766-67 (4th Cir.1997) (same); United States v. Frank, 8 F.Supp.2d 253, 282 n. 26 (S.D.N.Y.1998) (same). Moreover, we cannot say that the district court committed plain error when it determined Lankford’s sentence. That kidnapping is a lesser included offense of interstate domestic violence is by no means clear or obvious under current law. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (defining “plain” error to be error that is “clear” or “obvious”); Sickinger, 179 F.3d at 1093 (considering whether kidnapping was a lesser included offense within interstate domestic violence and finding no plain error). B. Sentence for Interstate Domestic Violence Lankford was given a sentence of 135 months imprisonment for his conviction of interstate domestic violence. He contends, for the first time on appeal, that his sentence for violating § 2261(a)(1) exceeds the statutory maximum, because evidence supports an offense of aggravated sexual abuse as defined in 18 U.S.C. § 2241, an offense he was not charged with committing, but does not support an offense of sexual abuse as defined in 18 U.S.C. § 2242(1). As a result, he argues, he cannot be sentenced under" }, { "docid": "7817858", "title": "", "text": "of “holding,” while the domestic violence statute does not, and the domestic violence statute requires proof of an “intimate partner,” a fact not required for a kidnapping conviction. See Bailey, 112 F.3d at 766-67; Frank, 8 F.Supp.2d at 282 n. 26. In light of these cases, we cannot say that any district court error was “clear and obvious.” Jackson, 155 F.3d at 947. We are thus unable to conclude that the district court plainly erred and we reject Sickinger’s double jeopardy challenge. B. Sentencing Guidelines, 1 Sickinger argues that the district court erred in failing to grant a one-level reduction for release within 24 hours under U.S.S.G. § 2A4.1(b)(4)(C) and the Commentary thereto. Sickinger claims that Walker was constructively released prior to 24 hours because Walker was left alone at a convenience store on two occasions and could have escaped. In the circumstances here, we conclude that the district court did not err in failing to grant a one-level reduction. United States v. Frieberger, 28 F.3d 916, 918 (8th Cir.1994) (district court’s application of the Guidelines reviewed de novo; factual findings reviewed for clear error). The district court could reasonably have determined that in light of the extraordinarily severe nature of Sickinger’s abusive behavior towards Walker and Wilson, Walker was not in a position — physically, mentally or emotionally — to flee. Although Sickinger’s control had slackened, he did not release or abandon his prisoner. 2. Sickinger argues finally that the district court erred when it increased the sentencing offense level by four points for permanent or life-threatening injury to Wilson, the friend who was most severely injured. We agree that the Sentencing Guidelines do not specifically cover this aspect of the criminal affair and remand for resentencing. Sentencing Guideline § 2A4.1 specifies a base offense level of 24 for kidnapping, abduction and unlawful restraint. Subsection (b)(2) states that the base offense level should be increased four levels if “the victim sustained permanent or life-threatening bodily injury,” and two levels if “the victim sustained serious bodily injury.” It further specifies that a three level increase is appropriate if the degree" } ]

[ { "docid": "17903884", "title": "", "text": "The appellants’ own claim for these payments is not a claim allowable against the estate. . The trustee apparently obtained several ex parte orders from the bankruptcy court ordering Computer Graphics to turn over funds it held to the trustee and permitting the trustee to use various funds in the administration of the estate. Even if these orders were meant to cover payments after August 6, 1973, since no notice of these transactions was given to the individual land purchasers, despite their obvious status as “interested parties,” these orders are insufficient to relieve the trustee of personal liability. See Mosser v. Darrow, 341 U.S. 267, 274, 71 S.Ct. 680, 683, 95 L.Ed. 927 (1951). . We reject the approach of the Tenth and Sixth Circuits which, in an apparent misreading of the seminal case of Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951), have concluded that a bankruptcy or reorganization trustee may be held personally liable for damages only for injuries arising from intentional — as opposed to negligent — conduct. Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977); see Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461-62 (6th Cir.1982) (applying Sherr holding to debtor in possession case); see also United States v. Sapp, 641 F.2d 182, 184-85 (4th Cir.1981) (dictum). Explaining the liability of a reorganization trustee for the im proper use of assets of the estate by his employees, the Mosser court stated: The liability here is not created by a failure to detect defalcations, in which case negligence might be required to surcharge the trustee, but is a case of a willful and deliberate setting up of an interest in employees adverse to that of the trust. 341 U.S. at 272, 71 S.Ct. at 682. Interpreting this language, the Sherr court declared that “the court held that a reorganization trustee would not be liable personally except for willful and deliberate acts.” 552 F.2d at 1375; see Weaver, 680 F.2d at 461-62 (citing Sherr and Sapp). Given that the term “surcharge” itself means to impose “personal liability on a fiduciary" } ]

[ { "docid": "6444497", "title": "", "text": "duty to invest. Witmer v. Blair, 588 S.W.2d 222, 224 (Mo.Ct.App.1979) (quoting Restatement (Second) of Torts § 201), comment b (1959). Ignorance of a trustee’s duties is, indeed, no defense. Finally, it is clear that Local Rule 4.10C actually imposed the obligation to seek court direction regarding investments. Had the Trustee sought the advice of counsel, perhaps counsel might have alerted him to that fact (though Trustee’s Attorney maintains that he, too, was unaware of the Local Rule!). On the record before the Court, there is only an obvious dereliction of duty. Hence, the Court finds that, both before and after the filing of the Final Report, the Trustee breached his duty to invest funds of the estate, except during the ninety days following the filing of his Final Report. C. Surcharge “There is no question that a trustee in bankruptcy may be held personally liable for breach of his fiduciary duties.” In re Gorski, 766 F.2d 723, 727 (2d Cir.1985); Red Carpet Corporation of Pan ama City Beach v. Miller (In re Red Carpet Corporation of Panama Beach), 708 F.2d 1576, 1578 (11th Cir.1983). This liability encompasses not only intentional, but also negligent violations of the duties imposed on the trustee by law. Hall v. Perry (In re Cochise Park, Inc.), 703 F.2d 1339, 1357 (9th Cir.1983). This Court is not bound by the approach of the Tenth and Sixth Circuits, which concluded that a bankruptcy trustee may only be held personally liable for damages arising from intentional — as opposed to negligent — conduct. See, Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977); Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461-462 (6th Cir.1982). Although one Seventh Circuit decision has cited the Sherr intentional standard with approval, In re Chicago Pacific Corp., 773 F.2d 909, 915 (7th Cir.1985), its decision noted that the personal liability of the reorganization trustee was not at issue in that case. Hence, this Court understands this Circuit to use a negligence standard, as in the In re Kuhn decision, 234 F. 277 (7th Cir.1916), cert. denied, 242 U.S. 629, 37 S.Ct." }, { "docid": "12792457", "title": "", "text": "liability by obtaining a court order authorizing contemplated action. Apart from ultra vires acts, there is one other, major exception to the personal immunity of bankruptcy trustees — actions for breach of fiduciary duty. As with common law trustees, the courts have recognized a number of fiduciary duties incumbent upon bankruptcy trustees, some of which are set forth in Section 704 of the Bankruptcy Code. Among these duties is that of being accountable for all property of the estate. Thus, a trustee has a duty to obtain and preserve estate property. In re Power, 115 F.2d 69, 72 (7th Cir.1940) (“A trustee in bankruptcy ... is an officer of the court_ It is his duty to collect the assets and he is responsible for failure to do so.”); In re Hutchinson, 5 F.3d 750, 758 (4th Cir.1998) (remanding an action against a trustee for determination of whether the trustee failed to preserve estate property). Beyond the statutory duties, bankruptcy trustees owe to the beneficiaries of the estate the usual common law trust duties, such as the duty of loyalty, which proscribes self-dealing. Mosser v. Darrow, 341 U.S. 267, 271, 71 S.Ct. 680, 682, 95 L.Ed. 927 (1951) (“Equity tolerates in bankruptcy trustees no interest adverse to the trust.”). Similarly, it has been held that a bankruptcy trustee has a common law duty to invest funds of the estate in interest-bearing accounts. In re Consupak, Inc., 87 B.R. 529, 539-40 (Bankr.N.D.Ill.1988). Although it is generally accepted that “a trustee is not liable in any manner for mistakes in judgment where discretion is allowed,” Hutchinson, 5 F.3d at 753, the reported decisions reflect a substantial dispute as to whether a bankruptcy trustee may be personally liable for simple negligence in carrying out fiduciary duties, a position advocated by In re Cochise College Park, Inc., 703 F.2d 1339 (9th Cir.1983), or whether willful and deliberate violations of fiduciary duty are the only ground for personal liability, as advocated by Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977). Regardless of which of these positions is accepted, however, it is plain that bankruptcy trustees are" }, { "docid": "10273203", "title": "", "text": "standing to sue Rodriguez for most, if not all, of the damages assessed. His standing argument has two components. First Rodriguez asserts that Lopez can only sue him for harms actually suffered by the estate, not harms suffered by nonparty creditors. Second, and presumably alternatively, Rodriguez argues that Lopez lacks statutory authority to assert any claims against Rodriguez because Rodriguez’s potential liability was not “property” of the estate at the time bankruptcy proceedings began. We agree, in part, with Rodriguez’s first argument, but we reject his second. There is no question that the governing law in this case is Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951), and its progeny. In Mosser, the Supreme Court established the general proposition that bankruptcy trustees may be held personally liable for breaches of fiduciary duty. The defendant trustee in Mosser allowed two employees to trade on inside information and was surcharged for the profits they made. In affirming, the Court said, “trusteeship is serious business and is not to be undertaken lightly or so discharged. The most effective sanction for good administration is personal liability for the consequences of forbidden acts.” Id. at 274, 71 S.Ct. at 683. Following Mos-ser, federal courts including this one have “uniformly held that bankruptcy trustees are subject to personal liability for the willful and deliberate violation of their fiduciary duties.” Connecticut General, 838 F.2d at 621 (citing In re Gorski, 766 F.2d 723, 727 (2d Cir.1985); In re Cochise College Park, Inc., 703 F.2d 1339, 1357 (9th Cir.1983); Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977)). Such liability may be imposed either for the benefit of the estate in the form of a surcharge, or for the benefit of a creditor in the form of damages in a direct action against the trustee. Compare Mosser, 341 U.S. 267, 71 S.Ct. 680 (surcharge payable to estate) with Connecticut General, 838 F.2d at 621-22 (liability to creditor) and In re Rigden, 795 F.2d 727 (9th Cir.1986) (liability to creditor). This statement" }, { "docid": "18585945", "title": "", "text": "Weaver, 680 F.2d 451, 461 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977). Some courts have even held that personal liability can be imposed for negligent acts by a trustee, at least where discretionary judgments are not involved. E.g., Gorski, 766 F.2d at 727; Cochise College Park, 703 F.2d at 1357 & n. 26. Rodriguez’s argument concerning evidence to support the district court’s finding of deliberateness centers on the court’s judicial notice of a related district court proceeding in which Rodriguez was found personally liable to the bankrupt hotel corporation for deliberate violations of his fiduciary duties. See In re San Juan Hotel Corp., 71 B.R. 413 (D.P.R.1987). Characterizing the district court’s action as an offensive use of collateral estoppel, Rodriguez cites numerous cases to support his contention that this is not a proper subject for judicial notice under Federal Rule of Evidence 201. This argument misses the point. As the district court’s opinion makes clear, the finding of “willful and intentional disregard” of Rodriguez’s trustee duties was not based solely, or even predominantly, on the prior case. Rather, the district court based its finding on the following: despite the fact that Rodriguez negotiated the stipulation and thus knew its provisions, he never notified CG of the fire, he never reported CG as a party in interest when filing the proof of loss, and he never forwarded to CG the payment which it was due. The district court’s find ing of deliberateness is a factual determination which we review under the clearly erroneous standard of Federal Rule of Civil Procedure 52(a). Even assuming that the judicial notice was improper, we find that there is ample circumstantial evidence on the record — independent of the judicially-noticed prior case — to support the district court’s determination. With respect to CG’s claim, Rodriguez raises an additional defense: he argues that a cause of action arising out of his fiduciary duties as a bankruptcy trustee was never properly pleaded in the district court. Having reviewed the record from the district court, we conclude that this argument must be rejected. CG’s complaint" }, { "docid": "2141028", "title": "", "text": "v. McGee, 819 F.2d 74 (4th Cir.1987); In re Chicago Pac. Corp., 773 F.2d 909 (7th Cir.1985) (dicta); Sherr v. Winkler, 552 F.2d 1367 (10th Cir. 1977); In re Gorski, 766 F.2d 723 (2d Cir. 1985); Hall v. Perry (In re Cochise College Park., Inc.), 703 F.2d 1339 (9th Cir.1983) and Red Carpet Corp. of Panama City Beach v. Miller, 708 F.2d 1576 (11th Cir.1983)). . Professor Bogart’s article explains that although a bankruptcy trustee incurs liability to third party nonbeneficiaries in precisely the same ways and under the same circumstances as any other individual incurs liability, a trustee is generally protected by derived judicial immunity as long as he was acting within the scope of his authority. Bogart, 68 Am. Bankr.L.J. 205-206. See also, McCullough, 103 Com. L.J. at 140 (\"[I]t seems readily clear that trustees are immune for their actions so long as they pertain to their duties, in any form, as bankruptcy trustees.”). Although there is authority for the proposition that this derived immunity is absolute immunity, the better rule, in light of the fact that absolute immunity is a matter of function rather than identity, is that this is qualified judicial immunity. See Leonard v. Vrooman, 383 F.2d 556, 560 (9th Cir.1967) (in action by third party for wrongfully possessing property which is not an asset of the estate, trustee is immune if he acted in good faith and had reasonable grounds and probable cause); In re Rollins, 175 B.R. 69, 77 n. 7 (Bankr.E.D.Cal.1994) (\"If a trustee incurs a contract or tort liability to someone other than the debtor or a creditor of the estate, he is entitled to a qualified judicial immunity.”) (dicta); McCullough, 103 Com. L.J. at 140 (\"[Tjrustee enjoys qualified judicial immunity by virtue of his position....”) and Bogart, 68 Am. Bank L.J. at 206 (\"[Wjhen a nonbeneficiaiy of the bankruptcy estate challenges some action of the trustee, the trustee’s actions are entitled to the benefit of qualified judicial immunity.”). Thus, the court’s ruling today that the defendant in this action is protected by absolute immunity is based solely on the particular" }, { "docid": "12792458", "title": "", "text": "the duty of loyalty, which proscribes self-dealing. Mosser v. Darrow, 341 U.S. 267, 271, 71 S.Ct. 680, 682, 95 L.Ed. 927 (1951) (“Equity tolerates in bankruptcy trustees no interest adverse to the trust.”). Similarly, it has been held that a bankruptcy trustee has a common law duty to invest funds of the estate in interest-bearing accounts. In re Consupak, Inc., 87 B.R. 529, 539-40 (Bankr.N.D.Ill.1988). Although it is generally accepted that “a trustee is not liable in any manner for mistakes in judgment where discretion is allowed,” Hutchinson, 5 F.3d at 753, the reported decisions reflect a substantial dispute as to whether a bankruptcy trustee may be personally liable for simple negligence in carrying out fiduciary duties, a position advocated by In re Cochise College Park, Inc., 703 F.2d 1339 (9th Cir.1983), or whether willful and deliberate violations of fiduciary duty are the only ground for personal liability, as advocated by Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977). Regardless of which of these positions is accepted, however, it is plain that bankruptcy trustees are subject, under appropriate circumstances, to personal liability for breaching their fiduciary duties. Where a trustee is liable for a breach of duty that harms the estate generally, the trustee will be required to reimburse the estate personally, through a court-ordered “surcharge.” Where a breach of duty harms a particular beneficiary of the estate (as when a trustee fails to preserve property in which a creditor has a security interest), the surcharge will be imposed in favor of the party harmed. In re San Juan Hotel Corp., 847 F.2d 931, 938 (1st Cir.1988); In re Gorski, 766 F.2d 723, 727 (2d Cir.1985) (“In the usual case, a surcharge is imposed on the fiduciary in the amount of the actual or estimated financial harm suffered by either the creditors or the estate and is payable accordingly.”). In some circumstances trustees may be in doubt as to whether certain action they contemplate would be a violation of their fiduciary duties. Rather than avoiding all such action or engaging in the action at the risk of a surcharge, the" }, { "docid": "20946709", "title": "", "text": "absolute immunity to court reports while allowing qualified immunity to court reporters. • . Among the cases receiving scholarly attention in the context of a trustee’s fiduciary duties and the applicable standard of care to avoid personal liability are: Boullion v. McClanahan, 639 F.2d 213 (5th Cir.1981); In re Johnson, 518 F.2d 246 (10th Cir.1975); In re Marcus, 2 F.Supp. 524 (W.D.Pa.1932); Evans v. Williams, 276 F. 650 (6th Cir.1921); in re Chicago Pac., Corp., 773 F.2d 909 (7th Cir.1985); Red Carpet Corp. v. Miller, 708 F.2d 1576, 1578 (11th Cir.1983); Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977); Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339 (9th Cir.1983); Ka-lyna v. Swaine (In re Accomazzo), 226 B.R. 426 (D.Ariz.1998); Ebel v. King (In re Ebel), 338 B.R. 862 (Bankr.D.Colo.2005); Yadkin Valley Bank & Trust Co. v. Linda McGee, Trustee, 5 F.3d 750 (4th Cir.1993); United States by Central Sav. Bank v. Lasich (In re Kinross Mfg. Corp.), 174 B.R. 702 (Bankr.D.Mich. 1994); In re Chicago Art Glass, Inc., 155 B.R. 180 (Bankr.N.D.Ill.1993); In re Gorski, 766 F,2d 723 (2d Cir.1985); Pereira v. Foong (In re Ngan Gung Restaurant), 254 B.R. 566 (Bankr.S.D.N.Y.2000). . This Court notes in passing that, while 'the issue during the initial appeal was whether the trustee was entitled to absolute immunity, on remand the District Court found that the trustee was entitled to qualified immunity. . Parenthetically, the Court observes that the Lease Agreement itself provides that Phoenician was required to provide the lessor with access to the premises so that it could be inspected and/or repaired. See Lease Agreement at Section 6(A). By not providing the Trustee with the key to the interior doors, it appears that it was Phoenician that may have been in breach of its duties to the Trustee. . Conclusory allegations of a conspiracy are not enough to support the Plaintiff's claims, especially in the context of Section 1983 claims. Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977)(citing, among other cases, Fletcher v. Hook, 446" }, { "docid": "2141027", "title": "", "text": "(general rule is that statements made in the course of judicial proceedings which are relevant and pertinent to the issues are absolutely privileged) and Lambdin Funeral Service, Inc. v. Griffith, 559 S.W.2d 791, 792 (Tenn.1978) (\"The absolute privilege holds true even in those situations where the statements are made maliciously and corruptly.”). The court need not address this issue in light of the disposition of the action based upon federal common law immunity. . The courts are divided over whether the trustee must negligently or willfully breach a fiduciary duty to interested parties in order for liability to attach. See McCullough, 103 Com. L.J. at 129-32. While the Sixth Circuit Court of Appeals along with the Fourth, Seventh and Tenth circuits hold that trustees can only be held personally liable for injuries arising from willful and deliberate conduct, three circuits, the Second, Ninth and Eleventh, subject trustees to personal liability for negligent breaches of fiduciary duties. Id. (citing Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982); Yadkin Valley Bank & Trust Co. v. McGee, 819 F.2d 74 (4th Cir.1987); In re Chicago Pac. Corp., 773 F.2d 909 (7th Cir.1985) (dicta); Sherr v. Winkler, 552 F.2d 1367 (10th Cir. 1977); In re Gorski, 766 F.2d 723 (2d Cir. 1985); Hall v. Perry (In re Cochise College Park., Inc.), 703 F.2d 1339 (9th Cir.1983) and Red Carpet Corp. of Panama City Beach v. Miller, 708 F.2d 1576 (11th Cir.1983)). . Professor Bogart’s article explains that although a bankruptcy trustee incurs liability to third party nonbeneficiaries in precisely the same ways and under the same circumstances as any other individual incurs liability, a trustee is generally protected by derived judicial immunity as long as he was acting within the scope of his authority. Bogart, 68 Am. Bankr.L.J. 205-206. See also, McCullough, 103 Com. L.J. at 140 (\"[I]t seems readily clear that trustees are immune for their actions so long as they pertain to their duties, in any form, as bankruptcy trustees.”). Although there is authority for the proposition that this derived immunity is absolute immunity, the better rule, in light" }, { "docid": "18671994", "title": "", "text": "liable for the judgment taken against him in his representative capacity as Trustee for the Jacksens. Their contention lacks merit. The courts have recognized that “judicial immunity not only protects judges against suit from acts done within their jurisdiction, but also spreads outward to shield related public servants, including ... trustees in bankruptcy....” Bennett v. Williams, 87 B.R. 122, 123 (S.D.Cal.1988). See Wickstrom v. Ebert, 585 F.Supp. 924, 934 (E.D.Wis.1984). That immunity, however, is not unlimited. The Ninth Circuit Court of Appeals in In re Cochise College Park, Inc., 703 F.2d 1339, 1357 (9th Cir.1983), stated that a bankruptcy trustee may be held liable for negligent as well as intentional conduct pertaining to duties placed on him by law. See also Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951) (a bankruptcy trustee may protect himself from personal liability by seeking instruction from the court). Other courts have clarified which actions may or may not be clothed in the trustee’s blanket of immunity by observing that “[a] trustee has immunity only if his actions are within the scope of the authority conferred upon him by statute or the court.” In re Tucker Freight Lines, Inc., 62 B.R. 213, 217 (W.D.Mich.1986). See also Weissman v. Hassett, 47 B.R. 462, 466 (S.D.N.Y.1985). This circuit has adopted a similar rationale stating that a trustee or an official acting under the authority of the bankruptcy judge is entitled to derived judicial immunity because he is performing an integral part of the judicial process. Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir.1986). See also Boullion v. McClanahan, 639 F.2d 213, 214 (5th Cir.1981). Therefore, based on the Ninth Circuit’s Cochise holding, it follows that a trustee, who obtains court approval for actions under the supervision of the bankruptcy judge, is entitled to derived immunity. Boullion, supra, 639 F.2d at 214. See also In re XRX, Inc., 77 B.R. 797, 798 (Nev.1987). See also, Tiller, Personal Liability of Trustees and Receivers in Bankruptcy, 53 Am.Bankr.L.J. 75, 98 (Winter 1978). The Reads maintain that the judgment they obtained against the" }, { "docid": "8655719", "title": "", "text": "a bankruptcy trustee may be sued in his individual capacity for acts which exceed the scope of his authority, or are ultra vires. Grant v. Florida Power Corporation (In re American Fabricators, Inc.), 186 B.R. 526 (Bankr.M.D.Fla.1995) (trustee loses his immunity if he acts in the “clear absence of all jurisdiction.”); Schechter v. State of Illinois, Dept. of Revenue (In re Markos Gurnee Partnership), 182 B.R. 211 (Bankr.N.D.Ill.1995) (personal immunity of trustees extends only to matters within the scope of their duties). Courts differ merely in their estimation of what type of wrongdoing may subject a trustee to personal liability. In a leading case, Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977), the court held that a trustee who commits willful, deliberate acts of misconduct may be personally liable to third parties. Sherr, 552 F.2d 1367, citing McNulta v. Lochridge, 141 U.S. 327, 12 S.Ct. 11, 35 L.Ed. 796 (1891). The Fourth, Sixth and Seventh Circuits have either followed Sherr or cited it favorably. See e.g., Yadkin Valley Bank & Trust Co. v. McGee (In re Hutchinson), 5 F.3d 750 (4th Cir.1993); Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982); In re Chicago Pacific Corp., 773 F.2d 909 (7th Cir.1985). The Second and Ninth Circuits have held that a trustee may be held personally liable not only for intentional misconduct, but also for negligence. Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339 (9th Cir.1983); In re Gorski, 766 F.2d 723 (2d Cir.1985). However, it appears from the cases that the alleged negligence must rise to the level of gross negligence to be actionable. See Cochise Park, 703 F.2d at 1339 (sufficient allegations of fraud and misrepresentation by the trustee, and misappropriation of fund by the trustee, required new trial). In this case, the actions of Bar-bee do not rise to the level of willful and deliberate conduct or gross negligence. Barbee’s actions were sloppy, positively; stupid, definitely; negligent, perhaps; but grossly negligent, not quite. After deeming the records burdensome to the estate and determining their value to be inconsequential. Barbee filed the requisite" }, { "docid": "18585944", "title": "", "text": "the record to support the district court’s finding in that respect. We find neither claim persuasive. As to Rodriguez’s first argument, the law is directly to the contrary. In Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951), the Supreme Court held that a bankruptcy trustee could be held personally liable for permitting two employees to trade on inside information. The Court noted: Courts are quite likely to protect trustees against heavy liabilities for disinterested mistakes in business judgment. But a trusteeship is serious business and is not to be undertaken lightly or so discharged. The most effective sanction for good administration is personal liability for the consequences of forbidden acts.... Id. at 274, 71 S.Ct. at 683. Building on Mosser, federal courts have uniformly held that bankruptcy trustees are subject to personal liability for the willful and deliberate violation of their fiduciary duties. E.g., In re Gorski, 766 F.2d 723, 727 (2d Cir.1985); In re Cochise College Park, Inc., 703 F.2d 1339, 1357 (9th Cir.1983); Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977). Some courts have even held that personal liability can be imposed for negligent acts by a trustee, at least where discretionary judgments are not involved. E.g., Gorski, 766 F.2d at 727; Cochise College Park, 703 F.2d at 1357 & n. 26. Rodriguez’s argument concerning evidence to support the district court’s finding of deliberateness centers on the court’s judicial notice of a related district court proceeding in which Rodriguez was found personally liable to the bankrupt hotel corporation for deliberate violations of his fiduciary duties. See In re San Juan Hotel Corp., 71 B.R. 413 (D.P.R.1987). Characterizing the district court’s action as an offensive use of collateral estoppel, Rodriguez cites numerous cases to support his contention that this is not a proper subject for judicial notice under Federal Rule of Evidence 201. This argument misses the point. As the district court’s opinion makes clear, the finding of “willful and intentional disregard” of Rodriguez’s trustee duties was not based solely, or" }, { "docid": "20946708", "title": "", "text": "cause the same to be inventoried and appraised to the best values ... and also to take into their possession, and secured, all deed and books of account, papers and writings belonging to such bankruptcy; and shall cause the same to be safely keep, until assignees shall be chosen or appointed, in manner hereafter provided. See 2 Stat. 19 1799-1813, Sec.5. . This Court notes that Antoine was addressing absolute immunity, and left open the issue of whether qualified immunity would require the same analysis. As an example of differences in the application of Antoine in this respect, see In Sullivan v. Sokolski, 1994 WL 105526, *1, 1994 U.S. Dist. LEXIS 3753, *10-11 (E.D.Pa. Mar. 28, 1994)(\"In Antoine, the Supreme Court held that court reporters are entitled to qualified immunity for failing to produce transcripts of a criminal conviction.) and Thomas v. Mengel, 1996 WL 84261, 1996 U.S. Dist. LEXIS 2176 (E.D.Pa. Feb. 22, 1996)(Court Reporter Defendants do not enjoy immunity). What superficially appear as contrary views can be reconciled by recognizing that Antoine denied absolute immunity to court reports while allowing qualified immunity to court reporters. • . Among the cases receiving scholarly attention in the context of a trustee’s fiduciary duties and the applicable standard of care to avoid personal liability are: Boullion v. McClanahan, 639 F.2d 213 (5th Cir.1981); In re Johnson, 518 F.2d 246 (10th Cir.1975); In re Marcus, 2 F.Supp. 524 (W.D.Pa.1932); Evans v. Williams, 276 F. 650 (6th Cir.1921); in re Chicago Pac., Corp., 773 F.2d 909 (7th Cir.1985); Red Carpet Corp. v. Miller, 708 F.2d 1576, 1578 (11th Cir.1983); Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977); Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339 (9th Cir.1983); Ka-lyna v. Swaine (In re Accomazzo), 226 B.R. 426 (D.Ariz.1998); Ebel v. King (In re Ebel), 338 B.R. 862 (Bankr.D.Colo.2005); Yadkin Valley Bank & Trust Co. v. Linda McGee, Trustee, 5 F.3d 750 (4th Cir.1993); United States by Central Sav. Bank v. Lasich (In re Kinross Mfg. Corp.), 174 B.R. 702" }, { "docid": "11430224", "title": "", "text": "deliberate misconduct). Compare In re Gorski, 766 F.2d 723, 727 (2d Cir.1985) (responding in the affirmative), Red Carpet Corp. v. Miller, 708 F.2d 1576, 1578 (11th Cir.1983) (per curiam) (same), and Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339, 1357 (9th Cir.1983) (same), with Yadkin Valley, 819 F.2d at 76 (responding in the negative), In re Chicago Pac. Corp., 773 F.2d 909, 915 (7th Cir.1985) (dictum) (same), Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461-62 (6th Cir.1982) (same), and Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977) (same). We heretofore have left the question open. See Lopez-Stubbe v. Rodriguez-Estrada (In re San Juan Hotel Corp.), 847 F.2d 931, 937 & n. 5 (1st Cir.1988); Connecticut Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612, 621 (1st Cir.1988). In our view, Mosser, properly construed, strongly indicates that parties interested in the administration of a bankruptcy estate can seek to surcharge the trustee for negligence. While Mosser itself involved “a willful and deliberate setting up of an interest in employees adverse to that of the trust,” the Court took pains to clarify that “[tjhe liability here is not created by a failure to detect defalcations, in which case negligence might be required to surcharge the trastee....” 341 U.S. at 272, 71 S.Ct. 680. The unmistakable implication of this observation is that, in the absence of deliberate misconduct, negligence suffices for surcharge. Indeed, even the courts of appeals that decline to impose personal liability for negligence draw this inference. See, e.g., Sherr, 552 F.2d at 1375 (“A trustee in bankruptcy may be held liable in his official capacity and thus surcharged if he fails to exercise that degree of care required of an ordinarily prudent person serving in such capacity, taking into consideration the discretion allowed.”). These courts, however, differentiate between surcharges and personal liability, presumably relying on the Mosser Court’s statement that “[tjhe most effective sanction for good administration is personal liability for the consequences of forbidden acts.” 341 U.S. at 274, 71 S.Ct. 680. Because only willful misconduct is “forbidden,” the argument" }, { "docid": "10273204", "title": "", "text": "so discharged. The most effective sanction for good administration is personal liability for the consequences of forbidden acts.” Id. at 274, 71 S.Ct. at 683. Following Mos-ser, federal courts including this one have “uniformly held that bankruptcy trustees are subject to personal liability for the willful and deliberate violation of their fiduciary duties.” Connecticut General, 838 F.2d at 621 (citing In re Gorski, 766 F.2d 723, 727 (2d Cir.1985); In re Cochise College Park, Inc., 703 F.2d 1339, 1357 (9th Cir.1983); Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977)). Such liability may be imposed either for the benefit of the estate in the form of a surcharge, or for the benefit of a creditor in the form of damages in a direct action against the trustee. Compare Mosser, 341 U.S. 267, 71 S.Ct. 680 (surcharge payable to estate) with Connecticut General, 838 F.2d at 621-22 (liability to creditor) and In re Rigden, 795 F.2d 727 (9th Cir.1986) (liability to creditor). This statement of the law, we believe, itself effectively refutes Rodriguez’s second standing argument. The Supreme Court in Mosser broadly construed federal courts’ equitable powers to surcharge trustees for “forbidden acts.” It did not require a special statutory provision authorizing a successor trustee to file claims against his predecessor. In Mosser, the trustee’s wrongdoing was actually called to the bankruptcy court’s attention by the Securities and Exchange Commission, an arm of the federal government. 341 U.S. at 270, 71 S.Ct. at 681-82. Here, too, it is the United States (through Lopez) that has pursued Rodriguez, and we think it would be plainly inconsistent with Mosser to dismiss the action altogether for lack of standing. Returning to Rodriguez’s first standing argument (no harm to the estate), it is interesting to note that the defendant in Mosser also argued in his defense that the estate suffered no loss as a result of his actions. To that, the Court responded by noting that determining the amount of damage the trustee caused, if any, was difficult; the Court then added: “But" }, { "docid": "11430223", "title": "", "text": "derives solely from the trustee’s statutorily-inspired duty of care. See infra note 4. Hence, its validity depends, in the first instance, on whether an action for negligence lies against a bankruptcy trustee in his individual capacity. The exact parameters of a trustee’s fiduciary duties and the potential penalties for breach thereof are not fixed by the Bankruptcy Code, and the case law is somewhat murky at the edges. It is settled, however, that a bankruptcy trustee may be held personally liable for breach of the duty of loyalty. See Mosser v. Barrow, 341 U.S. 267, 271, 274, 71 S.Ct. 680, 95 L.Ed. 927 (1951). The Mosser Court surcharged a bankruptcy trustee for expressly permitting two employees to profit by selling securities to the estate, declar ing in unqualified terms that “[ejquity tolerates in bankruptcy trustees no interest adverse to the trust.” Id. at 271, 71 S.Ct. 680. Following Mosser, the courts of appeals have split almost evenly on the question of whether a bankruptcy trustee can be held personally liable for negligence (as opposed to deliberate misconduct). Compare In re Gorski, 766 F.2d 723, 727 (2d Cir.1985) (responding in the affirmative), Red Carpet Corp. v. Miller, 708 F.2d 1576, 1578 (11th Cir.1983) (per curiam) (same), and Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339, 1357 (9th Cir.1983) (same), with Yadkin Valley, 819 F.2d at 76 (responding in the negative), In re Chicago Pac. Corp., 773 F.2d 909, 915 (7th Cir.1985) (dictum) (same), Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461-62 (6th Cir.1982) (same), and Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977) (same). We heretofore have left the question open. See Lopez-Stubbe v. Rodriguez-Estrada (In re San Juan Hotel Corp.), 847 F.2d 931, 937 & n. 5 (1st Cir.1988); Connecticut Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612, 621 (1st Cir.1988). In our view, Mosser, properly construed, strongly indicates that parties interested in the administration of a bankruptcy estate can seek to surcharge the trustee for negligence. While Mosser itself involved “a willful and deliberate setting up of an interest" }, { "docid": "1187557", "title": "", "text": "against Fidelity based on the alleged breach of the bond issued by Fidelity posted to assure a faithful performance of Grant as Trustee of the estate in his charge. The Bankruptcy Code sets forth the duties of the Chapter 7 Trustee in § 704, which reads in pertinent part: § 704. Duties of trustee The trustee shall— (1) collect and reduce to money the property of the estate for which such trustee serves, and close such estate as expeditiously as is compatible with the best interests of parties in interest; There is no question that a bankruptcy trustee may be held personally liable for breach of his fiduciary duty. Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951). Such liability may attach as a result of negligent, as well as knowing or intentional violations of their fiduciary duties. In re San Juan Hotel Corp., 847 F.2d 931 (1st Cir 1988); Connecticut General Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612 (1st Cir.1988); In re Gorski, 766 F.2d 723 (2nd Cir.1985); In re Cochise College Park, Inc., 703 F.2d 1339 (9th Cir.1983); Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982); Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977). Liability may be imposed on the Trustee either for the benefit of the estate in the form of a surcharge, or in the form of damages in a direct action against the Trustee for the benefit of parties in interest injured by the Trustee’s conduct. Mosser, 341 U.S. 267, 71 S.Ct. 680; Connecticut General, 838 F.2d at 621; In re Rigden, 795 F.2d 727 (9th Cir.1986); In re Traffic Safety Company, Inc., 21 B.R. 669, 6 C.B.C.2d 1297 (E.D.Pa.1982). It is equally true that parties of interest injured by the Trustee’s breach of fiduciary duty may also recover damages from the bonding company who issued the bond posted by the Trustee. There is hardly any doubt that upon the showing of surplus funds in the estate after distribution to creditors, a Chapter 7 debtor is considered a party in interest. This is so because" }, { "docid": "12913399", "title": "", "text": "implicate the equitable nature of the particular action raised by this complaint. . Such a result would, as explained above, lead to the conclusion that CPC cannot have a jury trial because a claim against the estate implicates the first prong of the bankruptcy process. . Compare In re Cochise College Park, Inc., 703 F.2d 1339 (9th Cir.1983) (favoring the first interpretation of Mosser) with Sherr v. Winkler, 552 F.2d 1367 (10th Cir.1977) (favoring the second). . All of these cases hold that a bankruptcy trustee is personally liable for willful or intentional breaches of duty. Therefore, to the extent that CPC's claim against Schott is based on Schott’s intentional misconduct, it is not a claim against the estate and therefore does not involve the first prong of the bankruptcy process. . In re Hutchinson, 5 F.3d 750 (4th Cir.1993); Turshen v. Chapman, 823 F.2d 836 (4th Cir.1987); Yadkin Valley Bank & Trust Co. v. McGee, 819 F.2d 74 (4th Cir.1987); United States for the Use and Benefit of Julien P. Benjamin Equipment Co. v. Sapp, 641 F.2d 182 (4th Cir.1981). . Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982). The Sixth Circuit also cited Weaver favorably in an unpublished opinion, In re Slodov, 1988 WL 62180, at *6 (6th Cir.1988). . In re Chicago Pacific Corp., 773 F.2d 909 (7th Cir.1985). . See also, First National Bank of Jacksboro v. Lasater, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408 (1905); Dushane v. Beall, 161 U.S. 513, 16 S.Ct. 637, 40 L.Ed. 791 (1896); 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); American File Co. v. Garrett, 110 U.S. 288, 4 S.Ct. 90, 28 L.Ed. 149 (1884); Glenny v. Langdon, 98 U.S. (8 Otto) 20, 25 L.Ed. 43 (1878); Quinn v. Gardner, 32 F.2d 772 (8th Cir.1929); In re Malcom, 48 F.Supp. 675 (E.D.Ill.1943). Other cases mentioning the trustee's equitable power to abandon burdensome property include South Staffordshire R. Co. v. Burnside, 5 Exch. 129; Ex parte Davis," }, { "docid": "8655720", "title": "", "text": "re Hutchinson), 5 F.3d 750 (4th Cir.1993); Ford Motor Credit Co. v. Weaver, 680 F.2d 451 (6th Cir.1982); In re Chicago Pacific Corp., 773 F.2d 909 (7th Cir.1985). The Second and Ninth Circuits have held that a trustee may be held personally liable not only for intentional misconduct, but also for negligence. Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339 (9th Cir.1983); In re Gorski, 766 F.2d 723 (2d Cir.1985). However, it appears from the cases that the alleged negligence must rise to the level of gross negligence to be actionable. See Cochise Park, 703 F.2d at 1339 (sufficient allegations of fraud and misrepresentation by the trustee, and misappropriation of fund by the trustee, required new trial). In this case, the actions of Bar-bee do not rise to the level of willful and deliberate conduct or gross negligence. Barbee’s actions were sloppy, positively; stupid, definitely; negligent, perhaps; but grossly negligent, not quite. After deeming the records burdensome to the estate and determining their value to be inconsequential. Barbee filed the requisite notice of abandonment. Although the State Court Judge found Barbee acted in bad faith by failing to give notice of the abandonment to Price Waterhouse, such a finding does not lead to the conclusion that Barbee’s conduct amounted to gross negligence, particularly in light of the fact that Price Waterhouse never made an appearance in the bankruptcy case or requested service of pleadings in the bankruptcy case. A trustee is not liable in any manner for mistakes in judgment where discretion is allowed. Cochise Park, 703 F.2d at 1357 citing Mosser v. Darrow, 341 U.S. 267, 273-74, 71 S.Ct. 680, 683-84, 95 L.Ed. 927 (1951). Barbee, in his capacity as Trustee, is granted certain discretion in the administration of a bankruptcy estate. He took precautions to serve the requisite notice of abandonment on all interested parties to the bankruptcy proceeding and awaited the objection period. His failure to serve Price Waterhouse, who has never appeared in the bankruptcy case, was certainly an oversight, but not an abuse of his discretion. Price Waterhouse has further failed" }, { "docid": "6444498", "title": "", "text": "Corporation of Panama Beach), 708 F.2d 1576, 1578 (11th Cir.1983). This liability encompasses not only intentional, but also negligent violations of the duties imposed on the trustee by law. Hall v. Perry (In re Cochise Park, Inc.), 703 F.2d 1339, 1357 (9th Cir.1983). This Court is not bound by the approach of the Tenth and Sixth Circuits, which concluded that a bankruptcy trustee may only be held personally liable for damages arising from intentional — as opposed to negligent — conduct. See, Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977); Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461-462 (6th Cir.1982). Although one Seventh Circuit decision has cited the Sherr intentional standard with approval, In re Chicago Pacific Corp., 773 F.2d 909, 915 (7th Cir.1985), its decision noted that the personal liability of the reorganization trustee was not at issue in that case. Hence, this Court understands this Circuit to use a negligence standard, as in the In re Kuhn decision, 234 F. 277 (7th Cir.1916), cert. denied, 242 U.S. 629, 37 S.Ct. 14, 61 L.Ed. 536 (1916). However, since the Trustee’s disinvestment decisions in this case were wholly deliberate both before and after the filing of his Final Report, he was in both willful and negligent violation of his duty. For such violations of duty the Trustee may be surcharged with the cost of his omissions: A bankruptcy trustee’s duties and responsibilities are as heavy as those of other trustees, including executors and administrators ... [i]f in the performance of these duties he violates the law or acts so negligently or carelessly as to inflict loss upon estate or persons interested therein, he may answer in damages, according to the principles applicable in like situations to any other trustee or fiduciary. In re B.A. Montgomery & Son, 17 F.2d 404, 405-406 (N.D.Ohio 1927). For many years, courts have surcharged bankruptcy trustees for negligent breaches of their fiduciary duties. See, e.g., In re Kuhn, 234 F. 277, 281 (7th Cir.1916) cert. denied, 242 U.S. 629, 37 S.Ct. 14, 61 L.Ed. 536 (1916); Carson, Pirie, Scott & Co. v." }, { "docid": "12913328", "title": "", "text": "1375. The court concluded by affirming the trial court’s finding that Winkler had committed neither negligence nor a willful and deliberate act and that he wouldn’t be liable under any standard. Id., at 1376. The Fourth, Sixth, and Seventh Circuits have either followed Sherr or cited it favorably. The Second and Ninth Circuits have not. In re Cochise College Park, Inc., 703 F.2d 1339 (9th Cir.1983), is a Ninth Circuit case in which the court rejects Sherr, stating that a trustee “is subject to personal liability for not only intentional but also negligent violations of duties imposed upon him by law.” Id. at 1357. The Cochise court criticized Sherds statement that to surcharge a trustee is to hold him liable in his official capacity: Given that the “surcharge” itself means to impose “personal liability on a fiduciary for wilful or negligent misconduct in the administration of his fiduciary duties”, we find this interpretation to be incorrect. Properly construed, the language quoted from Mosser indicates merely that the sort of personal liability which may be imposed on a trustee for the acts of his employees is not strict liability but rather liability depending at least on a showing of the trustee’s own negligence; Mosser does not “hold” in any sense that personal liability does not obtain if such a showing of negligence is made. Id. at 1358, n. 26. (citations omitted). See Bennett v. Williams, 892 F.2d 822 (9th Cir.1989); In re Rigden, 795 F.2d 727 (9th Cir.1986). The Second Circuit has also found that a trustee was personally liable for negligent acts, upholding a surcharge of a Chapter XIII trustee that imposed personal liability on him for failure to monitor the debtors’ performance of their wage-earner plan. In re Gorski, 766 F.2d 723 (2nd Cir.1985). The lower court had found that the trustee’s failure to carry out his obligations constituted “a material breach and default of his fiduciary duties and ... a negligent disregard of the rights and best interest of creditors.” Id. at 725. The issue on appeal was whether surcharge was appropriate. The court cited Mosser and Cochise" } ]

[ { "docid": "7566328", "title": "", "text": "Frankel, 721 F.2d 917, 921 (3d Cir.1983), that the “scheme or artifice to defraud” clause is to be read independently of the “obtaining money or property by ... false ... pretenses” clause. Clapps argues that Congress did not intend in section 1341 to interfere with the conduct of state elections. He relies on United States v. Gradwell, 243 U.S. 476, 37 S.Ct. 407, 61 L.Ed. 857 (1917), in which the Supreme Court held that a conspiracy to “injure and oppress” candidates in a state primary nominating election did not fall within a federal statute proscribing a “conspiracy to defraud the United States.” The statute at issue in Gradwell was construed by the Court as designed for prosecution of frauds against the operation of the government, such as upon the revenue. In contrast, the mail fraud statute is considerably more comprehensive. In considering the scope of the “scheme or artifice to defraud” clause of section 1341, we stated in United States v. Pearlstein, 576 F.2d 531, 534 (3d Cir.1978), that the statute is “quite broad” and “generally proscribes ‘any scheme or artifice to defraud’ which in some way involves the use of the postal system.” Subsequently, in United States v. Boffa, 688 F.2d 919 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983), involving a scheme to switch labor leasing contracts from one corporation to another, we reviewed the following decisions of other courts holding that section 1341 encompasses schemes that deprive persons of intangible rights or interests: See United States v. Bronston, 658 F.2d 920, 927 (2d Cir.1981) (client’s right to “undivided loyalty” of attorney); United States v. Van Barta, 635 F.2d 999 (2d Cir.1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1703, 68 L.Ed.2d 199 (1981)(employer’s right to the honest and faithful service of employees); United States v. Bohonus, 628 F.2d 1167 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980) (same); United States v. Condolon, 600 F.2d 7 (4th Cir. 1979)(“time, effort and expectations”); United States v. Louderman, 576 F.2d 1383 (9th Cir.), cert. denied, 439 U.S. 896," } ]

[ { "docid": "13956139", "title": "", "text": "In addressing this issue, the Court was required to review the legislative history of the statute. The Court noted that the original statute, enacted in 1872, referred solely to “any scheme or artifice to defraud.” Id. at 356, 107 S.Ct. 2875. The sparse legislative history of that enactment “indicate[d] that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.” Id. The Court also noted that Congress subsequently amended the mail fraud statute in 1909, “add[ing] the words ‘or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises’ after the original phrase ‘any scheme or artifice to defraud.’ ” Id. at 357,107 S.Ct. 2875. Because the two phrases identifying the proscribed schemes appear in the disjunctive [ie., “any scheme ... to de fraud, or for obtaining money or property”], it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. Id at 358, 107 S.Ct. 2875. In fact, according to the Court, that is exactly the approach taken by the several courts that interpreted “schemes to defraud” as including those schemes designed to deprive victims of things other than money or property, such as “honest services.” Id The Supreme Court, however, rejected such an approach. The Court recognized that it had. long ago held that “the words 'to defraud’ commonly refer ‘to wrongdoing one in his property rights by dishonest methods or schemes,’ and usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” Id (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)). Congress’ 1909 amendment of the statute, the Court held, did not alter this understanding of the words “to defraud.” Rather, “adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money 'or property.” Id at" }, { "docid": "22537847", "title": "", "text": "1130. The new language is based on the statement in Durland, that the statute reaches “everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” 161 U. S., at 313. However, instead of the phrase “everything designed to defraud” Congress used the words “[any scheme or artifice] for obtaining money or property.” After 1909, therefore, the mail fraud statute criminalized schemes or artifices “to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, representation, or promises . . . .” Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e. g., United States v. Clapps, 732 F. 2d 1148, 1152 (CA3 1984); United States v. States, 488 F. 2d 761, 764 (CA8 1973). As the Court long ago stated, however, the words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” Hammerschmidt v. United States, 265 U. S. 182, 188 (1924). The codification of the holding in Durland in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property. We believe that Congress’ intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes. The Court has often stated that when" }, { "docid": "21582702", "title": "", "text": "right to open competition. Id. at 1572 (footnote omitted). Implicit (but certainly not explicit) in the government’s belated “two-charge” argument in the case at bar is the suggestion that the indictment charged a scheme (a) to defraud and (b) to obtain money by false and fraudulent pretenses (App. 7), implying that these were two different schemes, the one involving intangible rights and the other involving property rights. Apart from the fact that the government never even hinted at this argument prior to our earlier panel decision, it suffers from several problems. To begin with, it does nothing more than track the language of 18 U.S.C. § 1341 which reads in pertinent part: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... knowingly causes to be delivered by mail according to the direction thereon, or at the place 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. This is the standard boiler-plate language used by the government in mail fraud prosecutions. More importantly, however, in McNally the Supreme Court specifically rejected the notion that the concept of “defrauding” or “obtaining money by false pretenses,” although phrased in the disjunctive, represented two different types of charges: After 1909, therefore, the mail fraud statute criminalized schemes or artifices “to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, representation, or promises _” Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money or property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive" }, { "docid": "13956140", "title": "", "text": "aimed at causing deprivation of money or property. Id at 358, 107 S.Ct. 2875. In fact, according to the Court, that is exactly the approach taken by the several courts that interpreted “schemes to defraud” as including those schemes designed to deprive victims of things other than money or property, such as “honest services.” Id The Supreme Court, however, rejected such an approach. The Court recognized that it had. long ago held that “the words 'to defraud’ commonly refer ‘to wrongdoing one in his property rights by dishonest methods or schemes,’ and usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” Id (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)). Congress’ 1909 amendment of the statute, the Court held, did not alter this understanding of the words “to defraud.” Rather, “adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money 'or property.” Id at 359, 107 S.Ct. 2875. Accordingly, the Supreme. Court decided that § 1341 must be read “as limited in scope to the protection of, property rights.” Id at 360,. 107 S.Ct. 2875. As such, the Court held that a scheme to deprive the Commonwealth of Kentucky . of “honest services” was ■ not within the scope of § 1341 and therefore reversed the defendants’ convictions. Id at 361, 107 S.Ct. 2875. 2. The Supreme Court next addressed the mail fraud statute in Carpenter, in which the defendant was alleged to have violated that statute by defrauding the Wall Street Journal (the “Journal”) of “confidential business information.” 484 U.S. at 24, 108 S.Ct. 316. One of the defendants, a reporter for the newspaper, wrote a regular column discussing selected stocks and giving positive and negative information about those stocks. The Journal’s policy was that before the publication of each column, its contents were the Journal’s confidential information. Id. at 23, 108 S.Ct. 316. Despite that policy, the defendant entered into a scheme by which he gave employees" }, { "docid": "12089732", "title": "", "text": "to insurance companies controlled or nominally owned by the defendants. Based on this transaction, defendants were charged with defrauding the Commonwealth of Kentucky and its citizens of their right to have “the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud” and obtaining money and other things of value by fraudulent means. McNally 107 S.Ct. at 2878, n. 4. In reversing defendants’ convictions the Supreme Court relied on the legislative in tent surrounding the codification of the statute and the plain meaning of the words “to defraud”. Its opinion concluded that § 1341 criminalizes only those offenses involving the deprivation of property rights by a scheme or artifice to defraud. “As the Court long ago stated, however, the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” McNally 107 S.Ct. at 2881, quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968. The Court held that the value which is the subject of mail fraud encompasses money and property, but does not include the intangible expectation of the citizenry to an honest government, despite what intangible value such honesty may hold for the defrauded victims. The Supreme Court further articulated the contours of the new “money or property” requirement in Carpenter v. United States, — U.S. -, 108 S.Ct. 316, 98 L.Ed.2d 275, which involved R. Foster Win-ans’ appropriation of confidential securities information prior to its publication in his Wall Street Journal column “Heard on the Street”. In affirming the mail fraud conviction, the Court distinguished McNally by finding that the Journal had been defrauded of more than its right to the defendant’s honest and faithful service, “an interest too ethereal in itself to fall within the protection of the mail fraud statute”. Carpenter 108 S.Ct. at 320. The Court characterized the Journal’s interest in the information contained in the column as a protectable property right in spite of its intangible nature." }, { "docid": "22875958", "title": "", "text": "been using § 1341 to attack various forms of corruption that deprived victims of “intangible rights” unrelated to money or property. Reviewing the history of §1341, we concluded that “the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.” Id., at 356. As first enacted in 1872, § 1341 proscribed use of the mails to further “'any scheme or artifice to defraud.’” Ibid. In 1896, this Court held in Durland v. United States, 161 U.S. 306, 313, that the statute covered fraud not only by “representations as to the past or present,” but also by “suggestions and promises as to the future.” In 1909, Congress amended § 1341 to add after “any scheme or artifice to defraud” the phrase “or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” McNally, 483 U.S., at 357. We explained in McNally that the 1909 amendment “codified the holding of Durland,” ibid., and “simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property,” ibid. Rejecting the argument that “the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property,” id., at 358, we concluded that the 1909 amendment signaled no intent by Congress to “depar[t] from [the] common understanding” that “the words 'to defraud’ commonly refer ‘to wronging one in his property rights,’” id., at 358-359 (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)). Soon after McNally, in Carpenter v. United States, 484 U. S. 19, 25 (1987), we again stated that § 1341 protects property rights only. Carpenter upheld convictions under § 1341 and the federal wire fraud statute, 18 U.S.C. § 1343, of defendants who had defrauded the Wall Street Journal of confidential business information. Citing decisions of this Court as well as a corporate law treatise, we observed that “Confidential business information has long been recognized as property.” 484 U.S., at 26." }, { "docid": "20325091", "title": "", "text": "or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... [uses the mails to further the scheme, shall be guilty of mail fraud].” The elements of mail fraud derived from this definition are clearly established: “(1) the, devising of a scheme or artifice either (a) to defraud or (b) for obtaining money by means of false or fraudulent pretenses, representations, or promises, (2) the specific intent to defraud, and (3) the use of the United States mails to execute the scheme.” United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995); see also United States v. Altman, 48 F.3d 96, 101 (2d Cir.1995). Defendants do not dispute that plaintiffs have adequately alleged use of the mails, nor do they dispute that the bribe-paying dealers and Honda executives knowingly engaged in the scheme. Instead, defendants argue that the bribery scheme was not entered into with an intent to defraud. The Supreme Court has held that “the words ‘to defraud’ in the mail fraud statute have the ‘common understanding’ of ‘wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 321, 98 L.Ed.2d 275 (1987) (quoting McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 2880-81, 97 L.Ed.2d 292 (1987) (quoting in turn Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924))) (internal quotation marks omitted). Courts have read this language differently in different contexts. Defendants rely heavily on United States v. Lew, 875 F.2d 219 (9th Cir.1989), where the Ninth Circuit interpreted this definition to “ma[ke] it clear that the intent [of a “scheme to defraud”] must be to obtain money or property from the one who is deceived.\" Id. at 221 (emphasis added). Based on Lew and similarly-reasoned eases, defendants assert that, because plaintiffs have not alleged that they gave up money or property in reliance" }, { "docid": "14352297", "title": "", "text": "functions even when the government did not lose any revenue. This interpretation took root in Hammerschmidt v. United States which analyzed the statutory predecessor of 18 U.S.C. § 37, a statute making it illegal to “conspire to ... defraud the United States in any manner or for any purpose.” See 265 U.S. 182, 185, 44 S.Ct. 511, 511, 68 L.Ed. 968 (1924) (interpreting Comp.St. § 10201). In Hammerschmidt, the Supreme Court concluded that [t]o conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention. Id. at 188, 44 S.Ct. at 512. Recently, however, the Supreme Court has significantly narrowed the category of statutes in which the meaning of “defraud” extends beyond a deprivation of property rights. In McNally v. United States, 483 U.S. 350, 359, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987), the Court interpreted the mail fraud statute, which made it illegal “to defraud” or to “obtain[ ] money by means of false or fraudulent pretenses,” to require a finding that the defendant intended to deprive others of property or money. 18 U.S.C. § 1341. In so doing, the Court rejected “a long line of court of appeals decisions that had interpreted the statute as proscribing schemes by government officials to defraud citizens of their intangible rights to honest and impartial government.” United States v. Asher, 854 F.2d 1483, 1488 (3d Cir.1988) (emphasis in original). In justifying its decision, the Court quoted Hammer-schmidt, 265 U.S. at 188, 44 S.Ct. at 512, for the proposition that, “the words to defraud ‘commonly refer to wronging one in his property rights by dishonest methods or schemes.’” McNally, 483 U.S. at 359," }, { "docid": "22798476", "title": "", "text": "in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of the “Heard” column. Christie Grain, supra. As the Court has observed before: “[N]ews matter, however little susceptible of ownership or dominion in the absolute sense, is stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money, and to be distributed and sold to those who will pay money for it, as for any other merchandise.” International News Service v. Associated Press, 248 U. S. 215, 236 (1918). Petitioners’ arguments that they did not interfere with the Journal’s use of the information or did not publicize it and deprive the Journal of the first public use of it, see Reply Brief for Petitioners 6, miss the point. The confidential information was generated from the business, and the business had a right to decide how to use it prior to disclosing it to the public. Petitioners cannot successfully contend based on Associated Press that a scheme to defraud requires a monetary loss, such as giving the information to a competitor; it is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important as pect of confidential business information and most private property for that matter. We cannot accept petitioners’ further argument that Winans’ conduct in revealing prepublication information was no more than a violation of workplace rules and did not amount to fraudulent activity that is proscribed by the mail fraud statute. Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words “to defraud” in the mail fraud statute have the “common understanding” of “ ‘wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” 483 U. S., at 358 (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)). The concept of “fraud” includes the act of embezzlement," }, { "docid": "21582703", "title": "", "text": "such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. This is the standard boiler-plate language used by the government in mail fraud prosecutions. More importantly, however, in McNally the Supreme Court specifically rejected the notion that the concept of “defrauding” or “obtaining money by false pretenses,” although phrased in the disjunctive, represented two different types of charges: After 1909, therefore, the mail fraud statute criminalized schemes or artifices “to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, representation, or promises _” Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money or property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e.g., United States v. Clapps, 732 F.2d 1148, 1152 (CA3 1984); United States v. States, 488 F.2d 761, 764 (CA8 1973). As the Court long ago stated, however, the words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). The codification of the holding in Durland [v. U.S., 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896) ] in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property. McNally, 483 U.S. at 358-59, 107 S.Ct. at 2880-81 (footnote" }, { "docid": "21582704", "title": "", "text": "individuals, the people or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e.g., United States v. Clapps, 732 F.2d 1148, 1152 (CA3 1984); United States v. States, 488 F.2d 761, 764 (CA8 1973). As the Court long ago stated, however, the words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). The codification of the holding in Durland [v. U.S., 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896) ] in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property. McNally, 483 U.S. at 358-59, 107 S.Ct. at 2880-81 (footnote omitted). Thus, one must read the indictment as charging Runnels with obtaining money for himself by devising a scheme which resulted in depriving the union members of their right to an honestly-run union. This clearly is an intangible rights theory. It is unfortunate indeed that a conviction has to be reversed in a case in which the evidence so clearly established wrongful conduct on the part of the defendants. We concur in the observation made by the Eleventh Circuit in Conover when it was forced to reverse a mail fraud conviction as a result of the decision in McNally: At the time they acted for their personal gain their actions were clearly unlawful. The law is an ever-changing body, however. The Government’s attorneys cannot be blamed for proceeding as they did given the state of the law. Conover, 845 F.2d at 271. REVERSED and the judgment of convic tion is VACATED. . The other attorney, Peter Barbara, was not indicted in return for testifying against Runnels. Shapero preferred a conditional Fed.R.Crim.P. 11 plea to mail" }, { "docid": "22875959", "title": "", "text": "reached false promises and misrepresentations as to the future as well as other frauds involving money or property,” ibid. Rejecting the argument that “the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property,” id., at 358, we concluded that the 1909 amendment signaled no intent by Congress to “depar[t] from [the] common understanding” that “the words 'to defraud’ commonly refer ‘to wronging one in his property rights,’” id., at 358-359 (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)). Soon after McNally, in Carpenter v. United States, 484 U. S. 19, 25 (1987), we again stated that § 1341 protects property rights only. Carpenter upheld convictions under § 1341 and the federal wire fraud statute, 18 U.S.C. § 1343, of defendants who had defrauded the Wall Street Journal of confidential business information. Citing decisions of this Court as well as a corporate law treatise, we observed that “Confidential business information has long been recognized as property.” 484 U.S., at 26. The following year, Congress amended the law specifically to cover one of the “intangible rights” that lower courts had protected under § 1341 prior to McNally: “the .intangible right of honest services.” Anti-Drug Abuse Act of 1988, § 7603(a), 18 U.S.C. § 1346. Significantly, Congress covered only the intangible right of honest services even though federal courts, relying on McNally, had dismissed, for want of monetary loss to any victim, prosecutions under § 1341 for diverse forms of public corruption, including licensing fraud. I — 1 1 — < In this case, there is no assertion that Louisiana s video poker licensing scheme implicates the intangible right of honest services. The question presented is whether, for purposes of the federal mail fraud statute, a government regulator parts with “property” when it issues a license. For the reasons we now set out, we hold that §1341 does not reach fraud in obtaining a state or municipal license of the kind here involved, for such a license is not “property” in the government regulator’s hands. Again, as" }, { "docid": "9713688", "title": "", "text": "money or property by means of false or fraudulent pretenses, representations, or promises ...,” should not be read as establishing two types of schemes — the latter involving the deprivation of money or property and the former not involving such a deprivation. “To defraud” generally refers “ ‘to wronging one in his property rights by dishonest methods or schemes’ and ‘usually [signifies] the deprivation of something of value by trick, deceit, chicane or overreaching.’” Id. at -, 107 S.Ct. at 2880-81, 97 L.Ed.2d at 301, quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). Therefore, “[a]ny benefit which the Government derives from [section 1341] must be limited to the Government’s interests as property holder.” Id. 483 U.S. at-n. 8, 107 S.Ct. at 2881 n. 8, 97 L.Ed.2d 301-02, n. 8. However, the Court stated that the phrase “property rights” should be interpreted broadly. Id. at-, 107 S.Ct. at 2879-80, 97 L.Ed.2d at 300. In reversing appellants’ convictions, the Court in McNally found the jury charges insufficient because “the jury was not required to find that the [victim] was defrauded of any money or property.” Id. at -, 107 S.Ct. at 2882, 97 L.Ed.2d at 302. The Court continued: It was not charged that in the absence of the alleged scheme the Commonwealth would have paid a lower premium or secured better insurance. Hunt and Gray received part of the commissions but those commissions were not the Commonwealth’s money. Nor was the jury charged that to convict it must find that the Commonwealth was deprived of control over how its money was spent. Indeed, the premium for insurance would have been paid to some agency, and what Hunt and Gray did was to assert control that the Commonwealth might not otherwise have made over the commissions paid by the insurance company to its agent, (footnote omitted). Id. In footnote 9, the Supreme Court expanded upon the ideas contained within the above quote. The Court stated that it should assume, because it was not alleged, that the actions of the principals in McNally did" }, { "docid": "15712057", "title": "", "text": "States v. Rico Indus., Inc., 854 F.2d 710, 713 (5th Cir.1988) (“The mail fraud statute protects only against schemes or artifices to defraud the property rights of citizens.”). As the Supreme Court has explained, “the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” McNally v. United States, 483 U.S. 350, 359, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (quoting Hammersckmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)). Accordingly, in determining whether the indictment alleges a scheme to defraud Livingston Parish of money or property, we must look to whether the alleged scheme is one to deprive the parish of money or property through misrepresentations, thereby wronging the parish’s property rights. See id. at 360, 107 S.Ct. 2875 (holding that the mail fraud statute is “limited in scope to the protection of property rights”); see also Cleveland v. United States, 531 U.S. 12, 19, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (recognizing the Court’s “[r]eject[ion of] the argument that ‘the money-or-property requirement ... does not limit schemes to defraud to those aimed at causing deprivation of money or property’ ”); Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (“Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.”). Applying these principles, it is evident that Ratcliffs indictment does not allege a scheme to defraud Livingston Parish of any money or property. According to the indictment, Ratcliff devised a scheme (1) to conceal campaign finance violations from the Board of Ethics, which would (2) deceive the voting public about the campaign contributions he received, which would (3) secure his reelection to office, which would (4) cause Livingston Parish to pay him the salary and other financial benefits budgeted for the parish president. Although the charged scheme involves Ratcliff ultimately receiving money from the parish, it cannot be said that" }, { "docid": "22537846", "title": "", "text": "fact and not a mere promise as to the future.” Id., at 312. Instead, it construed the statute to “includ[e] everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” Id., at 313. Accordingly, the defendant’s use of the mails to sell bonds which he did not intend to honor was within the statute. The Court explained that “[i]t was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed . . . .” Id., at 314. Congress codified the holding of Durland in 1909, and in doing so gave further indication that the statute’s purpose is protecting property rights. The amendment added the words “or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises” after the original phrase “any scheme or artifice to defraud.” Act of Mar. 4, 1909, ch. 321, § 215, 35 Stat. 1130. The new language is based on the statement in Durland, that the statute reaches “everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” 161 U. S., at 313. However, instead of the phrase “everything designed to defraud” Congress used the words “[any scheme or artifice] for obtaining money or property.” After 1909, therefore, the mail fraud statute criminalized schemes or artifices “to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, representation, or promises . . . .” Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the" }, { "docid": "22537848", "title": "", "text": "government of intangible rights, such as the right to have public officials perform their duties honestly. See, e. g., United States v. Clapps, 732 F. 2d 1148, 1152 (CA3 1984); United States v. States, 488 F. 2d 761, 764 (CA8 1973). As the Court long ago stated, however, the words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” Hammerschmidt v. United States, 265 U. S. 182, 188 (1924). The codification of the holding in Durland in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property. We believe that Congress’ intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes. The Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Con gress has spoken in clear and definite language. United States v. Bass, 404 U. S. 336, 347 (1971); United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952). See also Rewis v. United States, 401 U. S. 808, 812 (1971). As the Court said in a mail fraud case years ago: “There are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute.” Fasulo v. United States, 272 U. S. 620, 629 (1926). Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read § 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has. For purposes of" }, { "docid": "9713687", "title": "", "text": "such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place 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. Discussion: Eecently, the Supreme Court has had occasion to comment upon prosecutions pursued under the mail fraud statute. In McNally, supra, the Supreme Court stated that “[t]he mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government.” McNally, 483 U.S. at-, 107 S.Ct. at 2879, 97 L.Ed.2d at 299-300. The Court chose to read section 1341 “as limited in scope to the protection of property rights” rather than “in a manner that leaves its outer boundaries ambiguous....” Id. at-, 107 S.Ct. at 2881, 97 L.Ed.2d at 302. The Supreme Court explained that the mail fraud statute, which criminalizes “schemes or artifices ‘to defraud’ or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ...,” should not be read as establishing two types of schemes — the latter involving the deprivation of money or property and the former not involving such a deprivation. “To defraud” generally refers “ ‘to wronging one in his property rights by dishonest methods or schemes’ and ‘usually [signifies] the deprivation of something of value by trick, deceit, chicane or overreaching.’” Id. at -, 107 S.Ct. at 2880-81, 97 L.Ed.2d at 301, quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). Therefore, “[a]ny benefit which the Government derives from [section 1341] must be limited to the Government’s interests as property holder.” Id. 483 U.S. at-n. 8, 107 S.Ct. at 2881 n. 8, 97 L.Ed.2d 301-02, n. 8. However, the Court stated that the phrase “property rights” should be interpreted broadly. Id. at-, 107 S.Ct. at 2879-80, 97 L.Ed.2d at 300. In reversing appellants’ convictions, the Court in McNally found the jury charges insufficient because" }, { "docid": "12089731", "title": "", "text": "withdraw his independent bid of $1,600,000. In spite of the defendants’ efforts, Wonder-world was eventually sold to a corporation unrelated to the defendants for $1,600,000. II In order to convict the defendants of wire fraud, two elements must be proven: (1) a scheme to defraud; and (2) use of wire communications in furtherance of the scheme. Prior to McNally, courts had interpreted the mail fraud statute (18 U.S.C. § 1341), which criminalizes schemes “to defraud” or schemes to obtain “money or property by means of false or fraudulent pretenses ... ”, in the disjunctive, enabling conviction for schemes to defraud which did not necessarily include the deprivation of property rights. See McNally 107 S.Ct. at 2880. Accordingly, defendants’ convictions in McNally were based on instructions charging the jury that the defrauding of the citizens of their intangible rights to honest and impartial government was sufficient to constitute mail fraud without a finding that the victims of the fraud were deprived of anything of value. McNally involved the funnelling of insurance policies by the two defendants to insurance companies controlled or nominally owned by the defendants. Based on this transaction, defendants were charged with defrauding the Commonwealth of Kentucky and its citizens of their right to have “the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud” and obtaining money and other things of value by fraudulent means. McNally 107 S.Ct. at 2878, n. 4. In reversing defendants’ convictions the Supreme Court relied on the legislative in tent surrounding the codification of the statute and the plain meaning of the words “to defraud”. Its opinion concluded that § 1341 criminalizes only those offenses involving the deprivation of property rights by a scheme or artifice to defraud. “As the Court long ago stated, however, the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” McNally 107 S.Ct. at 2881, quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct." }, { "docid": "22798477", "title": "", "text": "the information to a competitor; it is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important as pect of confidential business information and most private property for that matter. We cannot accept petitioners’ further argument that Winans’ conduct in revealing prepublication information was no more than a violation of workplace rules and did not amount to fraudulent activity that is proscribed by the mail fraud statute. Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words “to defraud” in the mail fraud statute have the “common understanding” of “ ‘wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” 483 U. S., at 358 (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)). The concept of “fraud” includes the act of embezzlement, which is “ ‘the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.’” Grin v. Shine, 187 U. S. 181, 189 (1902). The District Court found that Winans’ undertaking at the Journal was not to reveal prepublication information about his column, a promise that became a sham when in violation of his duty he passed along to his co-conspirators confidential information belonging to the Journal, pursuant to an ongoing scheme to share profits from trading in anticipation of the “Heard” column’s impact on the stock market. In Snepp v. United States, 444 U. S. 507, 515, n. 11 (1980) (per curiam), although a decision grounded in the provisions of a written trust agreement prohibiting the unapproved use of confidential Government information, we noted the similar prohibitions of the common law, that “even in the absence of a written contract, an employee has a fiduciary obligation to protect confidential information obtained during the course of his employment.” As the New York courts have recognized: “It is well established," }, { "docid": "13956138", "title": "", "text": "particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.”). This rule is embodied in a trilogy of Supreme Court cases that, each party agrees, governs the outcome of this appeal: McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), and, most recently, Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000). We agree that these three decisions must frame our analysis, and we review each in turn. 1. In McNally, the defendants were charged with, and convicted of, violating § 1341 by devising a scheme to defraud the Commonwealth of Kentucky’s citizens and government of their “intangible right” to have the Commonwealth’s affairs conducted honestly. 483 U.S. at 352, 107 S.Ct. 2875. The Supreme Court was asked to. determine whether the deprivation of “honest services” fell within the scope of the mail fraud statute. In addressing this issue, the Court was required to review the legislative history of the statute. The Court noted that the original statute, enacted in 1872, referred solely to “any scheme or artifice to defraud.” Id. at 356, 107 S.Ct. 2875. The sparse legislative history of that enactment “indicate[d] that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.” Id. The Court also noted that Congress subsequently amended the mail fraud statute in 1909, “add[ing] the words ‘or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises’ after the original phrase ‘any scheme or artifice to defraud.’ ” Id. at 357,107 S.Ct. 2875. Because the two phrases identifying the proscribed schemes appear in the disjunctive [ie., “any scheme ... to de fraud, or for obtaining money or property”], it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those" } ]

[ { "docid": "9762684", "title": "", "text": "complaint without prejudice. Without giving him notice that it was considering dismissal or an opportunity to be heard on the subject, the district court decided that “[t]he complaint on its face states that there are administrative remedies available to the plaintiff that he had failed to exhaust,” and that Mojias’s complaint was thus barred by the administrative exhaustion requirement of § 1997e(a). This appeal followed. Defendants did not appear in the district court and have not appeared in this court. II. Discussion Mojias, now represented by counsel, points out on appeal that our decision in Snider requires a district court to verify from “a legally sufficient source” the availability of an administrative remedy applicable to a prisoner’s underlying grievance before dismissing his complaint for failure to exhaust his administrative remedies. Mojias argues that (1) Snider requires the district court to afford him notice that it is considering dismissal and an opportunity for him to respond; and (2) the district court thus erred in dismissing his complaint solely on the basis of his pro se complaint form without affording him any opportunity to explain his answers. Moji-as contends that this error is particularly glaring because New York City’s Department of Correction Directive 3375R specifically lists complaints pertaining to an alleged assault as “non-grievable.” Had the district court looked beyond the complaint form and offered Mojias an opportunity to be heard, Mojias says, the court would have seen that there was no administrative remedy he was required to exhaust on his claim of assault. A. Dismissal of plaintiffs complaint 1. Standard of Review In Snider, we wrote that “[wjhether an administrative remedy was available to a prisoner in a particular prison or prison system, and whether such a remedy was applicable to the grievance underlying the prisoner’s suit, are not questions of fact. They either are, or inevitably contain, questions of law.” Snider, 199 F.3d at 113-14. We thus review de novo the district court’s sua sponte dismissal of Mo-jias’s complaint for failure to exhaust his administrative remedies. Neal v. Goord, 267 F.3d 116, 119 (2d Cir.2001). 2. Merits Section 1997e(a) of" } ]

[ { "docid": "12527908", "title": "", "text": "unavailable to him, or in the alternative, those threats estop defendants from raising his failure to exhaust as an affirmative defense. Macias does not challenge either the dismissal of his tort claims pursuant to the FTCA or the dismissal of his motion for a temporary restraining order. Therefore, our review is limited to the district court’s decision to dismiss Macias’ Bivens claims. For the following reasons, we affirm in part, and vacate and remand in part. DISCUSSION Federal jurisdiction is based on this Bivens action arising under the Eighth Amendment to the United States Constitution. 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the district court’s dismissal of Macias’ complaint for failure to state a claim de novo “accepting as true all facts alleged in the complaint and drawing all inferences in favor of the plaintiff.” Faulkner v. Beer, 463 F.3d 130, 133 (2d Cir.2006) (internal quotation marks omitted). The PLRA provides that a prisoner may not bring an action under federal law “with respect to prison conditions ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that “the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). We recently decided a series of cases examining the scope of the PLRA’s exhaustion requirement. See Giano v. Goord, 380 F.3d 670 (2d Cir.2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir.2004); Johnson v. Testman, 380 F.3d 691 (2d Cir.2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir.2004); Ziemba v. Wezner, 366 F.3d 161 (2d Cir.2004); Hemphill v. New York, 380 F.3d 680 (2d Cir.2004). In Hemphill we “read together” Giano, Abney, Johnson, Ortiz and Ziemba and formulated a three-part test: Depending on the inmate’s explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact available to the prisoner. The court should also inquire" }, { "docid": "23147911", "title": "", "text": "withdraw any unexhausted claims; (3) whether Ortiz’s factual allegations that the conditions of his confinement in SHU were unusually harsh sufficed to raise the question of whether that confinement implicated a constitutionally protected liberty interest so as to preclude 12(b) dismissal; (4) whether Ortiz’s complaint adequately pled, or could be amended adequately to plead, that the defendants are subject to supervisory liability, under the test described in Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994), for the alleged Eighth Amendment violations. Id. Ortiz concedes that his Eighth Amendment cruel and unusual punishment claim is not viable because (1) his complaint did not name the prison officials responsible for his allegedly abusive treatment during SHU confinement, and (2) the named defendants did not possess supervisory authority over the unnamed prison officials responsible for Ortiz’s SHU treatment. Accordingly, Ortiz concedes that there is no issue of supervisory liability in this case. We thus limit our review to the first three of our questions. DISCUSSION I. Standard of Review “We review a dismissal granted under Rule 12(b)(6) de novo, with all inferences drawn in favor of the nonmoving party.” Moore v. PaineWebber, Inc., 189 F.3d 165, 169 (2d Cir.1999). We similarly review a district court’s ruling on whether a plaintiff whose claim is governed by the PLRA has exhausted administrative remedies de novo. See Mojias v. Johnson, 351 F.3d 606, 608-09 (2d Cir.2003). II. The Status of Ortiz’s Claims All parties agree, as do we, that Ortiz has exhausted his available administrative remedies with respect to his due process claim. He appealed the Tier III hearing and obtained a reversal. He did not appeal to the highest level of DOCS, but inasmuch as he obtained a favorable determination regarding his due process claim, no such further appeal was required. See Abney v. McGinnis, 380 F.3d 663, 668, 2004 WL 1842647 (2d Cir.2004) (“To require prisoners to appeal all favorable resolutions ... would be impracticable.”); Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001) (per curiam); see also Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.2004) (“Once a" }, { "docid": "1389706", "title": "", "text": "on February 8, 2004, but he did not file any grievances complaining of Gordon’s behavior after that date. Although Beltran did file grievances during December, 2003, and early January, 2004, claiming threats by Gordon and other officers, those grievances could not have served to notify the defendants of Beltran’s claim in this action, which proceeds from the subsequent threats alleged in the complaint. “A grievance obviously cannot exhaust administrative remedies for claims based on events that have not yet occurred.” Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.2004); see also Johnson, 385 F.3d at 521 n. 12. D. Whether Beltran’s Failure to Exhaust Some Claims Mandates Dismissal of His Entire Complaint The defendants argue that Beltran’s failure to exhaust some of the claims in his complaint requires dismissal of the entire action. Three circuits have interpreted section 1997e(a) to impose this “total exhaustion” requirement. Bey v. Johnson, 407 F.3d 801, 807 (6th Cir.2005); Ross, 365 F.3d at 1187; Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam). Two other circuits, however, have expressly rejected such a rule. Lira v. Herrera, 427 F.3d 1164, 1170-71 (9th Cir.2005); Ortiz v. McBride, 380 F.3d 649, 663 (2d Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 1398, 161 L.Ed.2d 190 (2005). Neither the First Circuit nor this court has passed on the “total exhaustion” question. But see Goodrich, 2003 DNH 048, 2003 WL 1392433, at *2 (allowing prisoner’s exhausted claims to proceed despite failure to exhaust other claims but not discussing total exhaustion approach). Without acknowledging this split of authority, the defendants argue that the total exhaustion rule is supported by the plain language of section 1997e(a), the policies underlying the PLRA, and concerns of judicial economy. The court disagrees, essentially for the reasons stated by those circuits which have rejected such a rule. Under section 1997(e)(a), “[n]o action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted” (emphasis added). Section 1997e(c), in turn, provides that: (1) The court shall on its own motion or the motion of a party" }, { "docid": "23147912", "title": "", "text": "de novo, with all inferences drawn in favor of the nonmoving party.” Moore v. PaineWebber, Inc., 189 F.3d 165, 169 (2d Cir.1999). We similarly review a district court’s ruling on whether a plaintiff whose claim is governed by the PLRA has exhausted administrative remedies de novo. See Mojias v. Johnson, 351 F.3d 606, 608-09 (2d Cir.2003). II. The Status of Ortiz’s Claims All parties agree, as do we, that Ortiz has exhausted his available administrative remedies with respect to his due process claim. He appealed the Tier III hearing and obtained a reversal. He did not appeal to the highest level of DOCS, but inasmuch as he obtained a favorable determination regarding his due process claim, no such further appeal was required. See Abney v. McGinnis, 380 F.3d 663, 668, 2004 WL 1842647 (2d Cir.2004) (“To require prisoners to appeal all favorable resolutions ... would be impracticable.”); Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001) (per curiam); see also Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.2004) (“Once a prisoner has won all the relief that is available under the institution’s administrative procedures, his administrative remedies are exhausted. Prisoners are not required to file additional complaints or appeal favorable decisions in such cases.”). There is no basis, however, for us to conclude that Ortiz exhausted his available administrative remedies with respect to his Eighth Amendment claim. He alleges only that he complained orally, to no avail, about the SHU conditions which are the subject of the claim. According to his complaint, “When plaintiff complained of the inhumane conditions, corrections officers threatened that he would be physically beaten and charged with additional infractions.” First Amended Compl. ¶ 12. Although in some circumstances threats by prison guards may render administrative remedies “unavailable” for purposes of section 1997e(a), see Hemphill v. State of New York, 380 F.3d 680, 689-91, 2004 WL 1842658 (2d Cir.2004), Ortiz alleges only that he was threatened when he complained. He does not contend that the threats from guards prevented him from filing a grievance or otherwise rendered DOCS grievance procedures unavailable. III." }, { "docid": "22221636", "title": "", "text": "CALABRESI, Circuit Judge. Julio Giano, an inmate at Wende Correctional Facility (“Wende”) in Alden, New York, filed suit in the United States District Court for the Western District of New York, alleging that, in violation of 42 U.S.C. § 1983, the defendants, various state and Wende officials, retaliated against him for filing an earlier lawsuit against prison authorities and for prevailing in a disciplinary proceeding. The district court (Siragusa, /.) dismissed Giano’s pro se complaint, on the ground that the plaintiff had failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Following our holding in Lawrence v. Goord, 238 F.3d 182 (2d Cir.2001), that the PLRA did not require plaintiffs to exhaust retaliation claims, we vacated the district court’s decision. Giano v. Goord, 250 F.3d 146, 150 (2d Cir.2001). But the Supreme Court subsequently held that all claims relating to “prison conditions,” including retaliation claims, are subject to the PLRA’s exhaustion requirement. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). And so, on remand, the district court adhered to its earlier dismissal of Giano’s claims for failure to exhaust. Giano appealed that dismissal, and his suit was argued alongside several other cases that concern the nature and scope of the PLRA’s exhaustion requirement: Abney v. New York Dep’t of Corr. Servs., 380 F.3d 663, 2004 WL 1842647; Hemphill v. State of New York, 380 F.3d 680, 2004 WL 1842658; Johnson v. Testman, 380 F.3d 691, 2004 WL 1842669; and Ortiz v. McBride, 380 F.3d 649, 2004 WL 1842644. Based on the following principles, as well as those articulated in our opinions in these cases, we vacate the district court’s dismissal of Giano’s complaint, and remand the case for further proceedings. I. Background For purposes of this appeal, we describe the facts as alleged by Giano. On September 30, 1996, Giano submitted to a urine test pursuant to prison authorities’ orders. Sometime between September 30 and October 3, six of the defendants tampered with and contaminated Giano’s urine sample, causing the sample to test positive" }, { "docid": "14243023", "title": "", "text": "the strongest arguments they suggest. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). The rule favoring liberal construction of pro se submissions is especially applicable to civil rights claims. Cf. Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001). Ortiz appeals pro se from the district court’s dismissal of his appeal, arguing mainly that the district court erred in dismissing his claims based on a failure to exhaust. This court has noted that under the administrative scheme applicable to New York prisoners, resolution of an inmate’s grievances through informal channels can satisfy the exhaustion requirement of 42 U.S.C. § 1997e(a). See Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001) (per curiam) (citing 7 N.Y.C.R.R. § 701.1). More recently, we have ordered that counsel be appointed in four pending cases that address whether inmates who did not fully comply with the dictates of New York law nonetheless exhausted their claims in other ways. Abney v. New York Dep’t of Corr. Servs., No. 02-0241 (2d Cir. Feb. 13, 2003) (order granting motion to appoint counsel); Johnson v. Reno, No. 02-0145 (2d Cir. Feb. 13, 2003) (same); Hemphill v. New York, No. 02-0164 (2d Cir. Oct. 18, 2002) (same); Giano v. Goord, No. 02-0105 (2d Cir. Aug. 22, 2002) (same). While Ortiz’s attempts to exhaust his Eighth Amendment claim may be more limited than those at issue in these cases, Ortiz has contended that he filed written grievances without receiving a response and that he was deterred from further pursuing administrative remedies by the guards’ threat of assault. And that is enough to raise the issue currently being considered by us in the four just mentioned cases. In addition to the question of whether Ortiz administratively exhausted his Eighth Amendment claim for purposes of the PLRA, this case raises the question of whether the PLRA requires that a prisoner exhaust every claim raised in order to be able to proceed on any one claim. In other words, if Ortiz has not administratively exhausted his Eighth Amendment claim, does the PLRA bar consideration of his Fourteenth Amendment due process claim," }, { "docid": "23147918", "title": "", "text": "due process claim to survive defendants’ Rule 12(b)(6) motion, however, Ortiz must also have alleged that the prison imposed the SHU sentence without providing due process. Giano, 238 F.3d at 225. For a prison disciplinary proceeding to provide due process there must be, among other things, “some evidence” to support the sanction imposed. Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir.2001) (internal quotation marks omitted). In the case of a prison disciplinary sanction based solely on the evidence supplied by a confidential informant, we have said that this “some evidence” standard requires “some examination of indicia relevant to [the informant’s] credibility.” Id. (alteration in original) (citing Giakoumelos v. Coughlin, 88 F.3d 56, 61 (2d Cir.1996)). See also Sira v. Morton, 380 F.3d 57, 76-78, 2004 WL 1719285, *16-*18 (2d Cir. Aug.2, 2004), 2004 U.S.App. LEXIS 15897, *49-*56 (discussing due process requirement of “some” assessment of confidential informant credibility in the context of prison disciplinary proceedings). The complaint sufficiently alleges that the “some evidence” standard was not met to survive defendants’ Rule 12(b)(6) motion in this respect. Ortiz’s First Amended Complaint thus successfully states a Fourteenth Amendment due process claim. We must therefore decide whether the district court was nonetheless correct in dismissing Ortiz’s action in its entirety because the Eighth Amendment claim had not been administratively exhausted. TV. The Dismissal of Ortiz’s Action A. Section 1997e(a) and the Prison Litigation Reform Act Ortiz’s First Amended Complaint, as we have discussed, contained two claims: one alleging a violation of the Fourteenth Amendment with respect to which he had exhausted his prison administrative remedies, and the other alleging a violation of the Eighth Amendment with respect to which he had not. 42 U.S.C. § 1997e(a) provides: Suits by prisoners. (а) Applicability of administrative remedies. No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. Id. Because Ortiz “brought” this action in which he asserted a claim with respect to" }, { "docid": "23147910", "title": "", "text": "for failure to exhaust administrative remedies. In this case the exhaustion with respect to the main issue resulted in a favorable decision for the plaintiff. The oral testimony as well as other information before this Court does not make clear any exhaustion with respect to these other issues. Ortiz, 323 F.3d at 194 (alterations in original). The action was dismissed. The memorandum, judgment, and order of the district court did not state whether the dismissal was with or without prejudice. Ortiz appealed. In a per curiam opinion, we ordered that appellate counsel be appointed for Ortiz and invited counsel to ask that this case be heard with other pending appeals involving related PLRA issues, id. at 196, which he later did. We identified four issues to be addressed “[i]n addition to any other arguments counsel may choose to raise.” Id. They were, (1) whether Ortiz’s proffered evidence that he administratively exhausted his Eighth Amendment claim satisfies the requirements of § 1997e(a); (2) whether § 1997e(a) requires “total exhaustion” and, if so, whether Ortiz may now withdraw any unexhausted claims; (3) whether Ortiz’s factual allegations that the conditions of his confinement in SHU were unusually harsh sufficed to raise the question of whether that confinement implicated a constitutionally protected liberty interest so as to preclude 12(b) dismissal; (4) whether Ortiz’s complaint adequately pled, or could be amended adequately to plead, that the defendants are subject to supervisory liability, under the test described in Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994), for the alleged Eighth Amendment violations. Id. Ortiz concedes that his Eighth Amendment cruel and unusual punishment claim is not viable because (1) his complaint did not name the prison officials responsible for his allegedly abusive treatment during SHU confinement, and (2) the named defendants did not possess supervisory authority over the unnamed prison officials responsible for Ortiz’s SHU treatment. Accordingly, Ortiz concedes that there is no issue of supervisory liability in this case. We thus limit our review to the first three of our questions. DISCUSSION I. Standard of Review “We review a dismissal granted under Rule 12(b)(6)" }, { "docid": "16272838", "title": "", "text": "for the Western District of Oklahoma. On December 16, 2002, the district court referred this case to a magistrate judge for initial proceedings. On September 2, 2003, Defendants moved to dismiss the suit. On February 2, 2004, the magistrate judge recommended that the case be dismissed without prejudice based on Plaintiffs failure to exhaust his administrative remedies. On March 30, 2004, the district court adopted the magistrate judge’s report and recommendation over Plaintiffs objections and dismissed the case. On August 9, 2004, Plaintiff filed a notice of appeal. II. Analysis A. Plaintiffs Failure to Exhaust Administrative Remedies We review de novo a district court’s dismissal of an inmate’s suit for failure to exhaust his or her administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002). The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As we explained in Jemigan, “[e]ven where the ‘available’ remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” 304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Moreover, we have held that “the PLRA contains a total exhaustion requirement, and ... the presence of unexhausted claims in [prisoner's complaint require[s][a] district court to dismiss his [or her] action in its entirety without prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir.2004); see also Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (“When multiple prison condition claims have been joined ... § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.”). To exhaust his or her administrative remedies, an inmate in a federal prison must complete a four-step" }, { "docid": "22346469", "title": "", "text": "appears that such remedies are available — for instance, if Hemphill may now file an untimely grievance — then the district court must dismiss his complaint without prejudice. It must, in addition, make that dismissal subject to reinstatement if the remedies turn out to be unavailable. Under this scenario, Hemphill must still try to exhaust the available administrative remedies before filing suit. If, instead, administrative remedies are no longer available to him, then, since he was justified in his prior failure to exhaust, Hemphill may proceed with his suit without further ado. Giano, citation. III. Conclusion For the foregoing reasons, the judgment of the district court is VaCáted and the case is Remanded for further proceedings, in which, consistent with this opinion, the district court must determine (a) to what extent were the remedies Hemphill failed to pursue in fact available; (b) whether, if they were available, some or all of the defendants were estopped from raising Hemphill’s failure to pursue them, and (c) whether, if remedies not pursued were available and some of the defendants were not estopped from raising Hemphill’s failure to exhaust, Hemphill was nonetheless justified, at the time, in not pursuing the available remedies. . Those cases included; Ortiz v. McBride, 380 F.3d 649, 2004 WL 1842644; Giano v. Goord, 380 F.3d 670, 2004 WL 1842652; Johnson v. Testman, 380 F.3d 691, 2004 WL 1842669; and Abney v. McGinnis, 380 F.3d 663, 2004 WL 1842647. . The inmate has fourteen days from the date of the incident complained of to file a complaint, but \"mitigating circumstances” may toll the deadline. 7 N.Y.C.R.R. § 701.7(a)(1). .The regulations advise inmates \"to attempt to resolve a problem on [their] own” before resorting to formal procedures. 7 N.Y.C.R.R. § 701.3(a). We have stated that an inmate who obtains a favorable resolution of his complaint through informal processes has exhausted available administrative remedies under the DOCS scheme. See Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001) (per curiam). . The magistrate judge also indicated in her Report and Recommendation that Judge McMahon had attached the letter to her" }, { "docid": "22068775", "title": "", "text": "possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust.”) As to the basic legal question before us, Booth’s statutory interpretation is dispositive: The obligation to exhaust “available” remedies persists as long as some remedy remains “available.” Once that is no longer the case, then there are no “remedies ... available,” and the prisoner need not further pursue the grievance. The other circuits that have considered whether a prisoner continues to have an exhaustion obligation once it is clear that no further relief is available have agreed with our understanding that Booth decides this question in the negative. The Tenth Circuit has held that “[o]nce a prisoner has won all the relief that is available under the institution’s administrative procedures, his administrative remedies are exhausted.” Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.2004). Similarly, the Second Circuit determined in Abney v. McGinnis, 380 F.3d 663 (2d Cir.2004), that further attempts at exhaustion are unnecessary when there is “no further ‘possibility of some relief.’ ” Id. at 669 (quoting Booth, 532 U.S. at 738, 121 S.Ct. 1819). See also Dixon v. Page, 291 F.3d 485, 490-91 (7th Cir.2002) (asserting that once it is shown that there is no “possibility of relief,” then “administrative remedies are not really available,” and exhaustion is no longer required). We conclude, as have these other circuits, that a prisoner need not press on to exhaust further levels of review once he has either received all “available” remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available. Although Booth’s textual analysis provides the basic legal principle that governs the issue before us, some inquiry into the purpose of the PRLA exhaustion requirement will aid our later application of the no-relief limitation on that requirement. Porter summarized that purpose, expansively, as “afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” 534 U.S. at 525, 122 S.Ct. 983. By providing this" }, { "docid": "13993119", "title": "", "text": "“all available” remedies to mean Thornton must appeal grievances that were resolved as he requested ánd where money damages were not available. The requirement to exhaust “all ‘available’ ” remedies requires that some remedy is available to the inmate through the administrative process, even if not necessarily the relief desired. In Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir.1999), we observed: It is possible to imagine cases in which the harm is done and no further administrative action could supply any “remedy.” ... Suppose the prisoner breaks his leg and claims delay in setting the bone is cruel and unusual punishment. If the injury has healed by the time suit begins, nothing other than damages could be a “remedy,” and if the administrative process cannot provide compensation then there is no administrative remedy to exhaust. Perez, 182 F.3d at 538. The Tenth Circuit’s decision in Ross v. County of Bernal-illo, 365 F.3d 1181 (10th Cir.2004), decided after Booth, is similarly instructive. There, an inmate filed a grievance requesting that shower mats be placed on his shower floor. Shortly thereafter, prison officials furnished the shower with a mat, thus alleviating the problem the inmate had raised in his grievance. The court found that the inmate had exhausted his administrative remedies with respect to the shower mat grievance, stating, “Once a prisoner has won all the relief that is available under the institution’s administrative procedures, his administrative remedies are exhausted. Prisoners are not required to file additional complaints or appeal favorable decisions in such cases. When there is no possibility of any further relief, the prisoner’s duty to exhaust available remedies is complete.” 365 F.3d at 1187. See also Ortiz v. McBride, 380 F.3d 649, 653 (2d Cir.2004) (“All parties agree, as do we, that Ortiz has exhausted his administrative remedies with respect to his due process claim. He appealed the Tier III hearing and obtained a reversal. He did not appeal to the highest level of DOCS, but inasmuch as he obtained a favorable determination regarding his due process claim, no such further appeal was required.”). Here, too," }, { "docid": "22346456", "title": "", "text": "today in the other consolidated cases, suggest that a three-part inquiry is appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a). Depending on the inmate’s explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact “available” to the prisoner. Abney v. McGinnis, 380 F.3d 663, 2004 WL 1842647. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, Johnson v. Testman, 380 F.3d 691, 2004 WL 1842669, or whether the defendants’ own actions inhibiting the inmate’s exhaustion of remedies may estop one or more of the defendants from raising the plaintiffs failure to exhaust as a defense, Ziemba, 366 F.3d at 163. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether “special circumstances” have been plausibly alleged that justify “the prisoner’s failure to comply with administrative procedural requirements.” Giano v. Goord, 380 F.3d 670, 2004 WL 1842652 (citing Berry v. Kerik, 366 F.3d 85, 88 (2d Cir.2003); Rodriguez order). We consider each of these questions in turn with respect to the plaintiff before us. A. Availability of Administrative Remedies We hold today in Abney v. McGinnis that, in some circumstances, the behavior of the defendants may render administrative remedies unavailable. To the extent that the plaintiff lacked “available” administrative remedies, the PLRA’s exhaustion requirement is inapplicable. In Abney, the plaintiff obtained a favorable resolution of his grievance, and therefore did not appeal the prison’s disposition of the grievance. By the time he discovered that the favorable decision was not being implemented, the deadline for appealing the administrative ruling had come and gone. On these facts, we held that all available administrative remedies had been exhausted. Abney, citation. On the facts before us, administrative" }, { "docid": "13993120", "title": "", "text": "placed on his shower floor. Shortly thereafter, prison officials furnished the shower with a mat, thus alleviating the problem the inmate had raised in his grievance. The court found that the inmate had exhausted his administrative remedies with respect to the shower mat grievance, stating, “Once a prisoner has won all the relief that is available under the institution’s administrative procedures, his administrative remedies are exhausted. Prisoners are not required to file additional complaints or appeal favorable decisions in such cases. When there is no possibility of any further relief, the prisoner’s duty to exhaust available remedies is complete.” 365 F.3d at 1187. See also Ortiz v. McBride, 380 F.3d 649, 653 (2d Cir.2004) (“All parties agree, as do we, that Ortiz has exhausted his administrative remedies with respect to his due process claim. He appealed the Tier III hearing and obtained a reversal. He did not appeal to the highest level of DOCS, but inasmuch as he obtained a favorable determination regarding his due process claim, no such further appeal was required.”). Here, too, with monetary relief unavailable, there was simply no “remedy” that a higher appeal could provide after Thornton received the transfer and new mattress he requested. Nonetheless, the defendants persist in arguing that Thornton’s situation is no different from that in cases such as Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), which hold that futility is not an excuse for the failure to exhaust available administrative remedies. Booth, however, does not help the defendants. In Booth, the Supreme Court considered whether the requirement to exhaust “such administrative remedies as are available” required an inmate seeking only money damages to “complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money.” 532 U.S. at 734, 121 S.Ct. 1819 (emphasis added). Before filing suit in federal court, the inmate had filed an administrative grievance. In it, he sought several forms of injunctive relief and money damages, but as in Illinois, the state grievance process did not provide for money damages. The prison authority denied" }, { "docid": "5129056", "title": "", "text": "PLRA’s exhaustion rule support our conclusion that Davis’s administrative appeal satisfied the exhaustion requirement. The administrative appeal adequately apprised the DOCS officials of the conduct of which Davis complained — the manner in which his administrative hearing was conducted. See Woodford, 548 U.S. at 89, 126 S.Ct. 2378. The allegations of atypical conditions are only relevant to the instant appeal insofar as Davis was required to demonstrate such conditions to allege that he had a liberty interest sufficient to trigger due process protections during his administrative hearing. Davis properly contested the manner in which Barrett conducted the hearing with his administrative appeal, and he secured a victory when Barrett’s decision was reversed because “[Perry’s] report was based on investigation and confidential information [and the] author did not testify and no assessment of reliability was made on the confidential information.” He was not required to file any additional complaints with the agency to satisfy the PLRA’s exhaustion requirements. See Ortiz, 380 F.3d at 653-54; Abney v. McGinnis, 380 F.3d 663, 668-69 (2d Cir.2004); Marvin v. Goord, 255 F.3d 40, 43 & n. 3 (2d Cir.2001) (per curiam). B. Procedural Due Process “A prisoner’s liberty interest is implicated by prison discipline, such as SHU confinement, only if the discipline ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life’.... ” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (alteration in original)). “Factors relevant to determining whether the plaintiff endured an ‘atypical and significant hardship’ include ‘the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions’ and ‘the duration of the disciplinary segregation imposed compared to discretionary confinement.’ ” Id. (quoting Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998)). This Court noted in Colon v. Howard, 215 F.3d 227 (2d Cir.2000), that restrictive confinements of less than 101 days do not generally raise a liberty interest warranting due process protection, and thus require proof of conditions more onerous than usual. Id. at" }, { "docid": "22346470", "title": "", "text": "defendants were not estopped from raising Hemphill’s failure to exhaust, Hemphill was nonetheless justified, at the time, in not pursuing the available remedies. . Those cases included; Ortiz v. McBride, 380 F.3d 649, 2004 WL 1842644; Giano v. Goord, 380 F.3d 670, 2004 WL 1842652; Johnson v. Testman, 380 F.3d 691, 2004 WL 1842669; and Abney v. McGinnis, 380 F.3d 663, 2004 WL 1842647. . The inmate has fourteen days from the date of the incident complained of to file a complaint, but \"mitigating circumstances” may toll the deadline. 7 N.Y.C.R.R. § 701.7(a)(1). .The regulations advise inmates \"to attempt to resolve a problem on [their] own” before resorting to formal procedures. 7 N.Y.C.R.R. § 701.3(a). We have stated that an inmate who obtains a favorable resolution of his complaint through informal processes has exhausted available administrative remedies under the DOCS scheme. See Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001) (per curiam). . The magistrate judge also indicated in her Report and Recommendation that Judge McMahon had attached the letter to her March 7, 2001 Decision and Order, but the letter does not appear in the plaintiffs appendix. . We note, however, that if Hemphill wrote in a timely fashion to the Superintendent pursu ant to a possibly valid interpretation of DOCS grievance procedures, there might be a question as to the availability of remedies, since Hemphill received no response to his letter, and there is no indication in the record that his grievance was ever recorded, as required by DOCS regulations. Cf. Jemigan v. Stuc-hell, 304 F.3d 1030, 1032 (10th Cir.2002) (\"agree[ing with other circuits] that the failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable”); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002) (stating that prison’s failure timely to respond renders administrative remedies unavailable); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.2001) (holding that defendants failed to prove non-exhaustion where they presented no evidence to refute plaintiff's contention that he could not pursue grievance further after warden did not respond to his" }, { "docid": "23147903", "title": "", "text": "SACK, Circuit Judge. In this appeal, we consider whether the exhaustion provision of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires a federal district court to dismiss in its entirety a prisoner’s complaint brought pursuant to 42 U.S.C. § 1983 with respect to the conditions of his or her incarceration if the complaint contains any claim that has not been administratively exhausted within the prison system. Based on an examination of the text of section 1997e and the policies underlying the PLRA, we conclude that such complete dismissal is not required. This appeal also presents the question whether the due process claim of the plaintiff-appellant, in which he alleges unusually harsh confinement in a special housing unit (“SHU”), can survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) despite the fact that his period of confinement was less than 101 days. In accordance with our recent decision in Palmer v. Richards, 364 F.3d 60, 64-66 (2d Cir.2004), and based on the allegations of fact of this case,' we conclude that it can. BACKGROUND Many of the relevant facts underlying this appeal are set forth in our prior opinion in this case. Ortiz v. McBride, 323 F.3d 191, 192-94 (2d Cir.2003) (per cu-riam). We repeat them here insofar as we think it necessary to explain our resolution of this appeal. Because the appeal is from the district court’s dismissal of Ortiz’s complaint, we state the facts as they are alleged in the First Amended Complaint. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). The Arthur Kill Correctional Facility is a prison administered by the New York State Department of Correctional Services (“DOCS”). On September 29, 1998, while Ortiz was incarcerated in Arthur Kill, defendant-appellee Sergeant D. McBride, a corrections officer, confronted Ortiz with the allegations of a confidential informant that Ortiz had violated DOCS rules by smuggling drugs into, and selling them within, Arthur Kill. Ortiz denied the allegations. Four' times, McBride ordered Ortiz to take a urine test in an apparent attempt to establish that he was using" }, { "docid": "12527909", "title": "", "text": "... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that “the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). We recently decided a series of cases examining the scope of the PLRA’s exhaustion requirement. See Giano v. Goord, 380 F.3d 670 (2d Cir.2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir.2004); Johnson v. Testman, 380 F.3d 691 (2d Cir.2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir.2004); Ziemba v. Wezner, 366 F.3d 161 (2d Cir.2004); Hemphill v. New York, 380 F.3d 680 (2d Cir.2004). In Hemphill we “read together” Giano, Abney, Johnson, Ortiz and Ziemba and formulated a three-part test: Depending on the inmate’s explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact available to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants’ own actions inhibiting the inmate’s exhaustion of remedies may estop one or more of the defendants from raising the plaintiffs failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner’s failure to comply with administrative procedural requirements. Hemphill, 380 F.3d at 686 (internal quotation marks and citations omitted). Because the parties did not address Hemphill, we ordered supplemental briefing in this appeal. Macias responded by reiterating his argument that he did not need to use the BOP’s administrative remedy system because the BOP was only authorized to provide some of the relief he seeks. In addition, Macias argued for the first time that under" }, { "docid": "23147913", "title": "", "text": "prisoner has won all the relief that is available under the institution’s administrative procedures, his administrative remedies are exhausted. Prisoners are not required to file additional complaints or appeal favorable decisions in such cases.”). There is no basis, however, for us to conclude that Ortiz exhausted his available administrative remedies with respect to his Eighth Amendment claim. He alleges only that he complained orally, to no avail, about the SHU conditions which are the subject of the claim. According to his complaint, “When plaintiff complained of the inhumane conditions, corrections officers threatened that he would be physically beaten and charged with additional infractions.” First Amended Compl. ¶ 12. Although in some circumstances threats by prison guards may render administrative remedies “unavailable” for purposes of section 1997e(a), see Hemphill v. State of New York, 380 F.3d 680, 689-91, 2004 WL 1842658 (2d Cir.2004), Ortiz alleges only that he was threatened when he complained. He does not contend that the threats from guards prevented him from filing a grievance or otherwise rendered DOCS grievance procedures unavailable. III. Ortiz’s Due Process Claim If Ortiz’s Fourteenth Amendment due process claim relating to his disciplinary hearing failed to state a claim upon which relief can be granted, the claim could be dismissed pursuant to 42 U.S.C. § 1997e(c)(2). In that case, only Ortiz’s Eighth Amendment claim would remain, and, because it is unexhausted, it too would have to be dismissed under 42 U.S.C. § 1997e(a). See infra Part IV. Since the entire lawsuit would thus be disposed of, we would not reach the question whether a prisoner’s action under 42 U.S.C. § 1983 that contains both exhausted and unexhausted claims need be dismissed in its entirety under section 1997e(a). See id. We conclude, however, that the complaint does state a claim for a violation of Ortiz’s due process rights. “[T]o present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001) (citation and internal quotation" }, { "docid": "5129055", "title": "", "text": "the parties that Ortiz exhausted his administrative remedies with re spect to his due process claim by successfully appealing the hearing which resulted in his confinement. Id. at 653. Davis’s failure to grieve the conditions of his confinement is no bar to his due process claim because the conditions of his confinement are not the basis on which he alleges he suffered harm. In Ortiz the court distinguished exhaustion for his due process claim from exhaustion for his Eighth Amendment claim (the latter being a claim as to the manner in which the sanctions were imposed). We noted that Ortiz was required to grieve the conditions of his confinement in order to exhaust his Eighth Amendment claim. Id. at 654. Here, unlike in Ortiz, Davis makes no claim — under the Eighth Amendment or otherwise — challenging the conditions of his confinement directly. Rather, his sole claim calls in to question Barrett’s conduct at the administrative hearing. Thus, we find that Davis’s administrative appeal was sufficient for purposes of PLRA exhaustion. The concerns underlying the PLRA’s exhaustion rule support our conclusion that Davis’s administrative appeal satisfied the exhaustion requirement. The administrative appeal adequately apprised the DOCS officials of the conduct of which Davis complained — the manner in which his administrative hearing was conducted. See Woodford, 548 U.S. at 89, 126 S.Ct. 2378. The allegations of atypical conditions are only relevant to the instant appeal insofar as Davis was required to demonstrate such conditions to allege that he had a liberty interest sufficient to trigger due process protections during his administrative hearing. Davis properly contested the manner in which Barrett conducted the hearing with his administrative appeal, and he secured a victory when Barrett’s decision was reversed because “[Perry’s] report was based on investigation and confidential information [and the] author did not testify and no assessment of reliability was made on the confidential information.” He was not required to file any additional complaints with the agency to satisfy the PLRA’s exhaustion requirements. See Ortiz, 380 F.3d at 653-54; Abney v. McGinnis, 380 F.3d 663, 668-69 (2d Cir.2004); Marvin v. Goord," } ]

[ { "docid": "3622388", "title": "", "text": "MURRAH, Circuit Judge. Betty Lou Dubois resigned as an employee of the Albuquerque Job Corps Center for Women, operated and controlled by appellee Packard Bell Corporation. 144 days later she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), under Title VII of the Civil Rights Act of 1964. She sought both injunctive and compensatory relief as provided under the Act. Inasmuch as subsection 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), requires that no charge may properly be filed with the EEOC until after proceedings have been commenced under applicable state law, the EEOC referred Mrs. Dubois’ complaint to the New Mexico Human Rights Commission. The New Mexico Commission rejected the complaint as untimely under the 90-day filing period provided in N. M.Stat.Ann. § 4-33-9, subd. A (1971 Supp.), and returned it to the EEOC. When negotiations with Packard Bell failed, the EEOC notified Mrs. Dubois that she could bring suit pursuant to subsection 706(e). The trial court granted Packard Bell’s motion for summary judgment on the ground that failure to file with the state agency within the 90-day period prescribed by the state statute precludes application of the extended federal filing period set forth in subsection 706(d) of Title VII. That subsection provides that where the state filing procedure set forth in subsection (b) has been followed, the 90-day federal filing period may be extended to either 210 days after the alleged unlawful employment practice occurred, or 30 days after receiving notice that the state or local agency has “terminated the proceedings under the State or local law,” whichever is earlier. As the case comes to us, Mrs. Dubois contends that once she has filed charges with the appropriate state agency — whether timely or not — she is entitled to the benefit of this extended federal filing period. The narrow question we must decide, then, is whether the New Mexico Commission’s rejection of Mrs. Dubois’ complaint because it was not timely filed was a termination of proceedings within the meaning of subsection 706(d) so as to qualify for the extended federal filing period. We" } ]

[ { "docid": "18589046", "title": "", "text": "act, without having instituted proceedings with the state agency. Accordingly, plaintiff’s failure to file a charge of discrimination with the EEOC within 180 days of her termination from employment deprives this Court of subject matter jurisdiction. Mention should be made at this point of Olson v. Rembrandt Printing Co., supra, as it is the leading case concerning the issue of timely filing of employment discrimination charges. In Olson, the plaintiff filed charges of discrimination with the state agency and with the EEOC more than 180 days after, but within 300 days of, her termination from employment. The district court held that the charge was not timely filed under § 2000e-5(e), as it .was not filed with the EEOC within 180 days of the plaintiff’s termination. The district court reasoned that the plaintiff was not entitled to the benefit of the 300-day limitation period since she did not timely file a charge with the state agency. The Eighth Circuit affirmed. Unlike the district court, however, the court did not hold that a timely state filing is required to obtain the benefit of the extended federal filing period. Rather, the court held that a complainant located in a state with an unfair em ployment practices agency “will have at least 180 days in which to file with the state or local agency to receive the benefit of the deferral period, limited, ... by the requirement that the charge must be filed within 30 days after the state or local agency terminates its action.” 511 F.2d at 1232. In support of its holding, the court stated: While the purpose of the extended filing provision was to ensure that the federal remedy not be lost while the states were given an opportunity to act in the employment discrimination area and not to give complainants an extra 120 days, neither do we think it was the intent of Congress to allow states to frustrate the federal remedy by imposing limitation periods shorter than the federal which a complainant must meet to receive benefit of the extended filing period. Id. at 1232. Although some courts have" }, { "docid": "3622391", "title": "", "text": "history of Title VII were not so manifestly clear as to remove all doubt, the liberal interpretation accorded remedial legislation of this type might leave some room for argument as to the meaning of subsection (d). When, however, Title VII was being debated on the Senate floor there were strong objections to the manner in which its original provisions would have bypassed efforts at the state or local level to correct unfair employment practices. The final bill, accordingly, included the “Dirksen Amendment” as a compromise to expedite its passage. As Senator Humphrey explained, subsections 706(b) and (d) of the amended bill guarantee that the states “. . . will be given every opportunity to employ their expertise and experience . . .” before federal agencies are resorted to. To accept appellant Dubois’ contentions would enable a claimant to completely bypass state proceedings in favor of federal proceedings by simply waiting until the state is prevented by statutes or regulations from considering the claim, and then utilizing the extended filing provisions of subsection (d) — a result which flies in the face of the congressional intent. Mrs. Dubois’ failure to file within the time set forth in N.M.Stat.Ann. § 4-33-9, subd. A (1971 Supp.), did, indeed, deprive the New Mexico Commission of a bona fide opportunity to consider or act upon her complaint, and she cannot successfully rely on the resultant rejection as a termination of state proceedings within the meaning of subsection 706(d), so as to enable her to invoke the extended federal filing period. Mrs. Dubois claims the requirement of a timely state filing deprives her of her right to federal relief. The simple answer in this case is that if the state agency did not exist her claim would likewise be barred as untimely under the 90-day period which applies to federal filings in the absence of an appropriate state agency. The judgment is affirmed. . Subsection 706(b) provides that in the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the" }, { "docid": "7706658", "title": "", "text": "§ 2000e-5(e) because of her failure to make a timely filing with the state agency. In support of this contention, the defendant relies almost entirely on the Tenth Circuit decision in DuBois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972). Briefly stated, the court in Du-Bois held that the failure to make a timely filing with the state agency deprived that state agency of the opportunity to consider the complaint and therefore failed to invoke the extended federal filing period. 470 F.2d at 975. The DuBois decision is quite clear in its holding. If that decision were still the controlling rule of law then the plaintiff’s cause of action would necessarily be dismissed by this Court as untimely. However, it is this Court’s opinion that DuBois no longer applies because of subsequent decisional law. The first subsequent case to consider is Olson v. Rembrandt Printing Company, 511 F.2d 1228 (8th Cir. 1975). The Eighth Circuit court went further than the DuBois court while reaching a decision which was essentially consistent with it. The Court in Olson held, inter alia, that regardless of the state statutory provision on the length of the state filing period, a person in a deferral state in any event must file within 180 days with the state or local agency to gain benefit of the extended filing period. The Olson case was subject to strong criticism in the recent U.S. Supreme Court decision in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In Mohasco the court was not confronted with the precise questions that were decided in DuBois or Olson; the Supreme Court faced a related question as to what actions would constitute a filing under 42 U.S.C. § 2000e-5(c) or (e). In two footnotes, however, the Supreme Court addressed the ruling in Olson which applies a 180 day state filing period in deferral states as a precondition to having benefit of the extended federal filing period. The Supreme Court states in footnote 16, 447 U.S. at 814, 100 S.Ct. at 2490: “As indicated n. 19, infra, we believe" }, { "docid": "22846459", "title": "", "text": "with the District Court and the Dubois court that it would not be in keeping with the intent of Congress to allow one individual 300 days to file a charge because of the fortuitous circumstance that the state where the claim arose is a deferral state, when another individual in a non-deferral state will have only 180 days in which to file. The purpose underlying the extended period in a deferral state is to give the state agency an initial opportunity to process the claim without jeopardizing the federal right, not to extend by 120 days the time for assertion of this federal right. We do not think it is entirely accurate to state, however, that a timely state filing is required to obtain the benefit of the extended filing period with the EEOC. While the purpose of the extended filing provision was to ensure that the federal remedy not be lost while the states were given an opportunity to act in the employment discrimination area and not to give complainants an extra 120 days, neither do we think it was the intent of Congress to allow states to frustrate the federal remedy by imposing limitation periods shorter than the federal which a complainant must meet to receive benefit of the extended filing period. In so saying we are not passing upon the validity of any state limitation period as applied to claims of employment discrimination filed with it, but merely noting that the state ■ limitation period cannot govern the efficacy of the federal remedy. Thus a complainant in a deferral state will have at least 180 days in which to file with the state or local agency to receive the benefit of the deferral period, limited, of course, by the requirement that the charge must be filed within 30 days after the state or local agency terminates its action. In § 2000e — 5(e), Congress in 1972 adopted a 180-day period within which a claim must be filed with the EEOC. The one exception to this 180-day period is that a complainant with a state or local remedy" }, { "docid": "18900730", "title": "", "text": "provide a suitable starting point. Prevailing case authority has established that untimely state filing deprives a claimant under Title VII of the longer federal filing period. Thus, in Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972), plaintiff failed to file within the state period, and the application was rejected as untimely. Subsequently, after the shorter federal (then 90 day) period had expired, plaintiff filed with the EEOC. The court held that the suit was barred because she “did, indeed deprive the New Mexico Commission of a bona fide opportunity to consider or act upon her complaint,” (at S75). In addition, it held that since she had not complied with the shorter federal period, her civil action was barred. That is, the Court refused to accord plaintiff the longer federal period, but did not reach the issue of the availability of the shorter period. In Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975, en banc), plaintiff filed with the state agency after the (90 day) state period and the shorter (180 day) federal period had run, but the state agency accepted and processed the complaint. The charge as filed with the EEOC after the shorter federal period had run, was also processed. The court held that in a deferral state, the initial (i. e., state) charge must be filed within the shorter federal period in order to invoke the benefit of the longer federal period for filing the federal charge. Since plaintiff had not timely filed with the state, she was not entitled to utilize the longer federal period to file with the EEOC, and the action was dismissed. Although it deprived the untimely state applicant of the longer federal period, it, too, did not have to reach the question of whether such a plaintiff may utilize the shorter federal period, as if no state remedy existed. Olson and Dubois agree that an untimely state filing suspends the availability of the longer federal but disagree as to the standard for determining timeliness. Olson holds that a state filing is timely within 180 days of the discrimination," }, { "docid": "18589045", "title": "", "text": "state agency may he obtain the benefit of the’extended filing period. The purpose underlying this extended period “is to give the state agency an initial opportunity to process the claim without jeopardizing the federal right, not to extend by 120 days the time for assertion of this federal right.” Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1232 (8th Cir. 1975) (en banc). Where, as here, a charge is not timely filed with the appropriate state agency, the purpose for allowing the extended federal filing period is not served, since there is nothing before the state agency to process. More importantly, to allow a complainant to obtain the benefit of the extended filing period, notwithstanding the untimely filing of a state charge, would lead to the anomalous result of requiring complainants in states without unfair employment practice agencies to file an EEOC charge within 180 days of the alleged discriminatory act while, at the same time, allowing complainants in states with such agencies to file an EEOC charge within 300 days of the alleged discriminatory act, without having instituted proceedings with the state agency. Accordingly, plaintiff’s failure to file a charge of discrimination with the EEOC within 180 days of her termination from employment deprives this Court of subject matter jurisdiction. Mention should be made at this point of Olson v. Rembrandt Printing Co., supra, as it is the leading case concerning the issue of timely filing of employment discrimination charges. In Olson, the plaintiff filed charges of discrimination with the state agency and with the EEOC more than 180 days after, but within 300 days of, her termination from employment. The district court held that the charge was not timely filed under § 2000e-5(e), as it .was not filed with the EEOC within 180 days of the plaintiff’s termination. The district court reasoned that the plaintiff was not entitled to the benefit of the 300-day limitation period since she did not timely file a charge with the state agency. The Eighth Circuit affirmed. Unlike the district court, however, the court did not hold that a timely state filing is" }, { "docid": "19383911", "title": "", "text": "to qualify for 300-day extended federal period regardless of state limitation) with Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir.1972) (when employee submitted charge to EEOC before state filing, charge was deemed filed upon termination of state proceeding or 60 days after initial EEOC filing; charge was timely filed if initial filing occurred in extended federal period minus 60 days). See also other cases holding contrary to Olson and Dubois: Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir.1972) (interpreting earlier version of § 2000e-5 to allow the extended federal period to be tolled by submission of original charge with EEOC, which automatically deferred to state agency) and Doski v. M. Goldseker Company, 539 F.2d 1326 (4th Cir.1976) (holding charge was timely when employee filed with state agency which terminated and transferred charge to EEOC within 300 days). The Supreme Court rejected the “Olson approach” in Mohasco as “not compelled by the statute.” It reasoned: Although that construction is consistent with the general rule announced at the beginning of Section 706(e) [42 U.S.C. § 2000e-5], and is supported by one Congressman’s understanding of the procedures at the time of the 1972 amendment to that section, see 1972 Leg.Hist. 1863 (remarks of Rep. Dent), Congress included no express requirement that state proceedings be initiated by any specific date in the portion of the subsection that relates to time limitations in deferral states. Further, there are contemporaneous indications in the legislative history, which, while not authoritative, contradict Representative Dent’s views____ In any event, we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include____ Mohasco v. Silver, 447 U.S. at 816, n. 19, 100 S.Ct. at 2492, n. 19 (citations omitted). We infer from the above language that the “restrictive approach” of Dubois must also be rejected. Accordingly, we decide that the criteria for procedurally correct filing in Appellant’s case is what Mohasco outlined: [A] complainant in a deferral state having a fair employment practice agency over one year old need only file his charge within 240 days" }, { "docid": "7706657", "title": "", "text": "U.S.C. § 2000e-5(e). That section provides that a charge of discrimination shall be filed within 180 days after the occurrence of the unlawful act, except when a person has initially instituted proceedings with a state or local agency with authority to grant relief, then the charge must be filed with the EEOC within 300 days of the act or within 30 days after receiving notice of the termination of the state or local proceedings, whichever is sooner. Persons residing in states with a fair employment state agency (deferral states) are required to make an initial charge with the state agency before pursuing their claim with the EEOC. 42 U.S.C. § 2000e-5(c). The plaintiff in this case clearly made a filing with the EEOC within the 300 day limit and the defendant does not dispute whether the EEOC charge was filed by or on behalf of the plaintiff within 30 days after termination of the state proceedings. The defendant contends, however, that the plaintiff is not entitled to the extended period for federal filing offered by § 2000e-5(e) because of her failure to make a timely filing with the state agency. In support of this contention, the defendant relies almost entirely on the Tenth Circuit decision in DuBois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972). Briefly stated, the court in Du-Bois held that the failure to make a timely filing with the state agency deprived that state agency of the opportunity to consider the complaint and therefore failed to invoke the extended federal filing period. 470 F.2d at 975. The DuBois decision is quite clear in its holding. If that decision were still the controlling rule of law then the plaintiff’s cause of action would necessarily be dismissed by this Court as untimely. However, it is this Court’s opinion that DuBois no longer applies because of subsequent decisional law. The first subsequent case to consider is Olson v. Rembrandt Printing Company, 511 F.2d 1228 (8th Cir. 1975). The Eighth Circuit court went further than the DuBois court while reaching a decision which was essentially consistent with it. The Court" }, { "docid": "19383910", "title": "", "text": "the judgment, and remanded for consideration in the light of the Title VII decision in Mohasco. Ciccone v. Textron, Inc., 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980). On remand, the First Circuit Court of Appeals found that “[t]he rationale in Mohasco strongly suggests, if it does not compel, the conclusion that it is to control in situations such as the present.” Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.1981) (per curiam). Although Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) is not precisely on point, it contains persuasive language which supports Appellant’s position. Before the Mo-hasco decision, there was a split in the circuits over when an aggrieved person had to file in a deferral state to benefit from the extended federal filing period in 42 U.S.C. § 2000e-5(e). Compare Dubois v. Packard Bell, 470 F.2d 973 (10th Cir.1973), and Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir.1975) (citing Dubois with approval and holding that state charge must be filed within 180 days to qualify for 300-day extended federal period regardless of state limitation) with Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir.1972) (when employee submitted charge to EEOC before state filing, charge was deemed filed upon termination of state proceeding or 60 days after initial EEOC filing; charge was timely filed if initial filing occurred in extended federal period minus 60 days). See also other cases holding contrary to Olson and Dubois: Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir.1972) (interpreting earlier version of § 2000e-5 to allow the extended federal period to be tolled by submission of original charge with EEOC, which automatically deferred to state agency) and Doski v. M. Goldseker Company, 539 F.2d 1326 (4th Cir.1976) (holding charge was timely when employee filed with state agency which terminated and transferred charge to EEOC within 300 days). The Supreme Court rejected the “Olson approach” in Mohasco as “not compelled by the statute.” It reasoned: Although that construction is consistent with the general rule announced at the beginning of Section 706(e) [42" }, { "docid": "6259283", "title": "", "text": "Fed. 300-day pd & State 180-day pd First, there is no question that all of the plaintiffs’ claims in which the number of intervening days between the employment decision and the charge exceeded 300 days are barred by the extended 300-day filing period in 42 U.S.C. § 2000e-5(e). The defendants’ motion for partial summary judgment on these claims is therefore granted. The other allegedly barred claims require greater consideration. A. EFFECT OF THE FAILURE TO FILE WITHIN THE STATE FILING PERIOD The defendants cite the Tenth Circuit’s decision in Dubois v. Packard Bell Corp., 470 F.2d 973, 975 (10th Cir. 1973), in support of their position that the failure to file charges with the state agency within the state filing period precludes the use of the extended 300-day federal filing period. In Dubois, the Tenth Circuit held that the New Mexico Human Rights Commission’s rejection of the plaintiff’s charge as untimely under state law was not a “termination of state proceedings” which would invoke the extended federal filing period. The circuit court cited Title VIPs deferral provisions’ legislative history which expressed a congressional intent to guarantee that states be given every opportunity to employ their expertise and experience before federal agencies are resorted to. The circuit reasoned: To accept appellant Dubois’ contentions would enable a claimant to completely bypass state proceedings in favor of federal proceedings by simply waiting until the state is prevented by statutes or regulations from considering the claim, and then utilizing the extended filing provisions of subsection (d) — a result which flies in the face of the congressional intent. Id. at 975. However, Dubois’ continuing validity is doubtful in light of the Supreme Court’s decision in Oscar Meyer Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). In Oscar Meyer, the court interpreted § 14(b) of the Age Discrimination in Employment Act of 1967, (hereinafter “ADEA”), 29 U.S.C. § 633(b), which the court noted was “patterned after” and “virtually in haec verba ” with § 706(c) of Title VII, 42 U.S.C. § 2000e-5(c). Id. at 755, 99 S.Ct. at 2071. The" }, { "docid": "7706662", "title": "", "text": "to reject any requirement of a timely filing with the state agency. Although the Supreme Court language on the subject is included in footnotes and was not essential to the decision made in Mohasco, the certainty of the language causes this Court to believe that it is no longer bound by the ruling in DuBois. This Court does recognize that a viable argument can be made for the position that Mohasco does not obviate the rule of DuBois in the Tenth Circuit. For this reason, this Order is made appealable under 28 U.S.C. § 1292(b). In short, § 2000e-5(e) does not require that a party make a timely filing with a state agency as a prerequisite to obtaining the extended federal filing period. The statute only requires that a filing with the state agency be made with sufficient time to allow an effective filing with the EEOC within 300 days after the occurrence of the discriminatory act. Cf., Davis v. Calgon Corp., 627 F.2d 674 (3rd Cir. 1980), cert. den., 101 S.Ct. 897 (1981) (rejecting Olson -type 180 day state filing limitation period in regard to Age Discrimination in Employment Act on authority of Mohasco). Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251 (9th Cir. 1980) (rejecting requirement for timely state filing under ADEA as prerequisite to obtaining extended federal filing period). Having decided that the charge was timely filed with the EEOC, there remains for this Court to decide whether the plaintiff made a timely commencement of this action in this Court. The plaintiff received her right-to-sue letter on July 28, 1980, and began this action on January 22, 1981. The plaintiff undisputedly failed to commence the action within 90 days. Nevertheless, the plaintiff asserts that the action should be considered timely under the theory of equitable tolling of the limitations period. The reasons supporting this proposition are that the EEOC rejected the complaint as not being timely filed and that this decision by the EEOC was erroneous in view of the decision in Mohasco. In connection with this proposition, the plaintiff has offered the affidavit of Lorenzo" }, { "docid": "22846458", "title": "", "text": "F.2d 357, 359 (7th Cir. 1968); cf. Pacific Maritime Association v. Quinn, 491 F.2d 1294, 1295 (9th Cir. 1974). But see Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1014-15 n. 6 (5th Cir. 1971). The District Court reasoned that the charge was not timely filed under § 2000e — 5(e), as not filed within 180 days with the EEOC. Even though vicariously filed with the Missouri Commission on Human Rights during the 300-day period set out in § 2000e — 5(e) by referral from the EEOC to the Missouri Commission, the charge did not meet the 90-day limitation period of Mo.Rev.Stat. § 296.040. The District Court felt that there had to be a timely filing with the state to give the plaintiff the benefit of the 300-day limitation period for claims initially filed with a state or local agency, noting that § 2000e-5(e) does not provide a 300-day period for initial filing with a state or local agency. See Dubois v. Packard Bell Corp., 470 F.2d 973 (10th Cir. 1972). We agree with the District Court and the Dubois court that it would not be in keeping with the intent of Congress to allow one individual 300 days to file a charge because of the fortuitous circumstance that the state where the claim arose is a deferral state, when another individual in a non-deferral state will have only 180 days in which to file. The purpose underlying the extended period in a deferral state is to give the state agency an initial opportunity to process the claim without jeopardizing the federal right, not to extend by 120 days the time for assertion of this federal right. We do not think it is entirely accurate to state, however, that a timely state filing is required to obtain the benefit of the extended filing period with the EEOC. While the purpose of the extended filing provision was to ensure that the federal remedy not be lost while the states were given an opportunity to act in the employment discrimination area and not to give complainants an extra 120 days," }, { "docid": "5015664", "title": "", "text": "footnote cited, the Court was rejecting a line of cases that held that a claimant must file with the state agency within 180 days in every case in order to claim the extended filing period. The Court stated that this rule was too restrictive because it did not take into account deferral states that had a filing period longer than 180 days. In such cases, a claimant could file with the state more than 180 days after the injury complained of and still be within the state limitation period. As long as the claimant filed with the EEOC before 300 days had passed, the charge would be timely. But the footnote did not address the present case, where the state limitation period was equal to the federal, and plaintiff failed to file a timely charge with the state. Second, Title VII reflects a far more meaningful policy of deferral to state agencies than the purely token state-filing provision of ADEA. Section 2000e-5(c) requires a complainant in a deferral state to give the state 60 days to consider his or her claim before he or she files with EEOC. ADEA confers no such 60-day period of exclusive jurisdiction on the states {Oscar Mayer makes it clear, as does a mere reading of ADEA, that no substantive significance at all attaches to the ADEA claimant’s state filing). Hence the pursuit of a federal ADEA remedy despite an untimely state filing involves no encroachment on any deferral policy. In sharp contrast (and as Martinez, 772 F.2d at 350-51 suggested), if a Title VII plaintiff were allowed to evade state procedures while pursuing his or her federal remedy, that would fly in the face of the purpose behind the extended filing period in deferral states. As Lowell, 529 F.Supp. at 22 put it: The argument that a claimant becomes entitled to the extended filing period, which is designed to allow plaintiffs to exhaust their state remedies without jeopardizing their federal rights, merely because she filed a meaningless, time-barred charge with the state agency strikes this Court as illogical. To so hold would be to" }, { "docid": "18900731", "title": "", "text": "day) federal period had run, but the state agency accepted and processed the complaint. The charge as filed with the EEOC after the shorter federal period had run, was also processed. The court held that in a deferral state, the initial (i. e., state) charge must be filed within the shorter federal period in order to invoke the benefit of the longer federal period for filing the federal charge. Since plaintiff had not timely filed with the state, she was not entitled to utilize the longer federal period to file with the EEOC, and the action was dismissed. Although it deprived the untimely state applicant of the longer federal period, it, too, did not have to reach the question of whether such a plaintiff may utilize the shorter federal period, as if no state remedy existed. Olson and Dubois agree that an untimely state filing suspends the availability of the longer federal but disagree as to the standard for determining timeliness. Olson holds that a state filing is timely within 180 days of the discrimination, regardless of the state limitations period. Dubois, on the other hand, utilized the state limitations period, in an effort to insure “bona fide opportunity” for consideration. This Court must first determine which approach it finds apposite. If it opts for the Olson view, then the failure of plaintiff to file within the state period is not necessarily fatal, since plaintiff contacted the MCRC within 180 days and was rebuffed. In such a case, plaintiff might well have the benefit of the longer federal period with which he has complied. If the Court adopts the Dubois approach, plaintiff would clearly not have the longer federal period, and since he filed his notice with the Secretary of Labor within the shorter federal period, the court would be squarely confronted with the issue left undecided by Olson and Dubois. In the view of this Court, the state limitations period should be determinative of the timeliness of state exhaustion for a number of reasons. In the first place, the imposition of a standard 180 day period on the state" }, { "docid": "5015665", "title": "", "text": "to consider his or her claim before he or she files with EEOC. ADEA confers no such 60-day period of exclusive jurisdiction on the states {Oscar Mayer makes it clear, as does a mere reading of ADEA, that no substantive significance at all attaches to the ADEA claimant’s state filing). Hence the pursuit of a federal ADEA remedy despite an untimely state filing involves no encroachment on any deferral policy. In sharp contrast (and as Martinez, 772 F.2d at 350-51 suggested), if a Title VII plaintiff were allowed to evade state procedures while pursuing his or her federal remedy, that would fly in the face of the purpose behind the extended filing period in deferral states. As Lowell, 529 F.Supp. at 22 put it: The argument that a claimant becomes entitled to the extended filing period, which is designed to allow plaintiffs to exhaust their state remedies without jeopardizing their federal rights, merely because she filed a meaningless, time-barred charge with the state agency strikes this Court as illogical. To so hold would be to reduce the state filing to a procedural sham. Third, Mohasco, 447 U.S. at 821, 100 S.Ct. at 2494 (quoting Moore, 459 F.2d at 825 n. 35) itself pointed out: But neither [Title VII] nor anything else in the legislative history contains any “suggestion that complainants in some States were to be allowed to proceed with less diligence than those in other states.” In those terms, to allow a plaintiff to obtain the benefit of the extended 300-day federal filing period without complying with a state’s 180-day filing period would indeed enable deferral-state plaintiffs to “proceed with less diligence” than claimants in non-deferral states. That would frustrate Congress’ entire purpose by permitting a total sidestepping of the state process that gave rise to Title VII’s extended filing time in the first instance. This entire line of analysis finds direct support in the statutory language as well. Section 2000e-5(e) provides the 300-day extended filing period applies: in a case ... [where] the person aggrieved has initially instituted proceedings with a State or local agency with authority to" }, { "docid": "3622392", "title": "", "text": "result which flies in the face of the congressional intent. Mrs. Dubois’ failure to file within the time set forth in N.M.Stat.Ann. § 4-33-9, subd. A (1971 Supp.), did, indeed, deprive the New Mexico Commission of a bona fide opportunity to consider or act upon her complaint, and she cannot successfully rely on the resultant rejection as a termination of state proceedings within the meaning of subsection 706(d), so as to enable her to invoke the extended federal filing period. Mrs. Dubois claims the requirement of a timely state filing deprives her of her right to federal relief. The simple answer in this case is that if the state agency did not exist her claim would likewise be barred as untimely under the 90-day period which applies to federal filings in the absence of an appropriate state agency. The judgment is affirmed. . Subsection 706(b) provides that in the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing the effectuation of appropriate relief under the law, no charge may be filed with the EEOC “ . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . Subsection 706(e), 42 U.S.C. § 2000e-5 (e), provides that a civil action may be brought for the purpose of preventing unfair employment practices and otherwise insuring compliance with the provisions of Title VII, if previous efforts to secure voluntary compliance through appropriate state agencies or the EEOC have been to no avail. Redress in accordance with this section, however, is dependent upon prior compliance with the filing period requirements of subsections (b) and (d) —the issue here. See, e. g., Culpepper v. Reynolds Metals Company, 421 F.2d 888, 891 (5th Cir. 1970)." }, { "docid": "18589048", "title": "", "text": "adopted the Olson rule, Anderson v. Port Authority, 12 FEP Cases 1101 (W.D.Pa. Feb. 12, 1976); Doski v. M. Goldseker Co., 11 FEP Cases 468 (D.Md. July 17, 1975), this Court is disinclined to do so for two reasons. First, the Olson court’s reasoning, that a short state limitation period may not control the federal limitation period which a complainant must meet in order to receive the benefit of the extended filing period, is not supported by the language of § 2000e-5(e) itself. That section does not prescribe a federal period within which a complainant must file a charge with a state agency. It merely states that, if a complainant has initially instituted proceedings with a state agency, he is entitled to the benefit of the extended filing period. We are unable to discern how a complainant may be said to have “instituted” proceedings with a state agency when the state limitation period has expired. Second, it appears that the rule in no way furthers what the Eighth Circuit deems to be the purpose underlying the extended filing period — namely, to give the state agency an initial opportunity to process the claim without jeopardizing the federal right. If a complainant fails to file a timely charge with a state agency, there is no need to extend the period for filing with the EEOC, since there is no claim before the state to process. Accordingly, if a complainant fails to timely file a charge of discrimination with the appropriate state or local agency, then he or she is not entitled to the benefit of the 300-day limitation period, but must file a charge with the EEOC within 180 days after the alleged discriminatory act. Since plaintiff fails to meet this requirement, the complaint must be dismissed. An appropriate Order will be entered. . Concerning plaintiffs § 1981 claim, this Court recently held that sex discrimination claims are outside the parameters of § 1981. Presseisen v. Swarthmore College, 71 F.R.D. 34, 38 (E.D.Pa.1976). Accordingly, the § 1981 claim will be dismissed. . 42 U.S.C. § 2000e-5(e) (Supp. II, 1972) provides in" }, { "docid": "6259282", "title": "", "text": "(Gongora) 138 7/25/78 (Corsentino) 188 State 180-day pd 6/08/78 (Simpleman) 235 State 180-day i>d 3/24/78 (Arant) 311 State 180-day pd & Fed. 300-day pd 8/15/77 (Saracino) 532 Fed. 300-day pd & State 180-day pd Plaintiff Date of Employment Date Decision to Hire Al-of legedly Lesser QualiCharge ified White Number of Intervening Days Reason That Claim is Allegedly TimeBarred_ Corral 3/02/79 11/28/78 (Gill) 94 7/25/78 (Corsentino) 220 State 180-day pd State 180-day pd 6/08/78 (Simpleman) 267 & Mohasco rule 3/24/78 (Arant) 343 State 180-day pd & Fed. 300-day pd 8/15/77 (Saracino) 564 State 180-day pd & Fed. 300-day pd 7/20/76 (Keuchman) 955 State 180-day pd & Fed. 300-day pd 1976 (Negrini) Over 2 yrs State 180-day pd & Fed. 300-day pd. 1974 (Regusa) Over 4 yrs State 180-day pd & Fed. 300-day pd Puryear 1/29/79 11/28/78 (Gill) 62 10/24/78 (Galasso) 97 7/25/78 (Corsentino) 188 State 180-day pd 6/08/78 (Simpleman) 235 State 180-day pd 3/24/78 (Arant) 311 State 180-day pd & Fed. 300-day pd 2/28/78 (DeBono) 335 Fed. 300-day pd & State 180-day pd 8/15/77 (Saracino) 532 Fed. 300-day pd & State 180-day pd First, there is no question that all of the plaintiffs’ claims in which the number of intervening days between the employment decision and the charge exceeded 300 days are barred by the extended 300-day filing period in 42 U.S.C. § 2000e-5(e). The defendants’ motion for partial summary judgment on these claims is therefore granted. The other allegedly barred claims require greater consideration. A. EFFECT OF THE FAILURE TO FILE WITHIN THE STATE FILING PERIOD The defendants cite the Tenth Circuit’s decision in Dubois v. Packard Bell Corp., 470 F.2d 973, 975 (10th Cir. 1973), in support of their position that the failure to file charges with the state agency within the state filing period precludes the use of the extended 300-day federal filing period. In Dubois, the Tenth Circuit held that the New Mexico Human Rights Commission’s rejection of the plaintiff’s charge as untimely under state law was not a “termination of state proceedings” which would invoke the extended federal filing period. The circuit court cited Title VIPs" }, { "docid": "7097633", "title": "", "text": "— between 180 and 300 days after his alleged constructive discharge. The record does not establish whether the EEOC referred plaintiffs charge to the Kansas Commission on Civil Rights. But, if the charge was referred to the KCCR, the KCCR did not have jurisdiction to handle the charge because Kansas law requires charges to be filed within 180 days of the alleged discriminatory practice. K.S.A. 44-1005. These facts raise the question of whether administrative complainants who file administrative charges beyond the limitations period of state anti-discrimination agencies, may benefit from the 300 day period to file a charge before the EEOC, or whether they must file charges with the EEOC within 180 days of the alleged discriminatory practice. In Dubois v. Packard Bell Corp., 470 F.2d 973 (10th Cir.1972), our circuit clearly held that a plaintiff may not take advantage of the extended filing period if he or she did not timely file a discrimination charge with the state agency. Since Dubois was decided, the Supreme Court addressed the question of whether a Title VII suit could be based on a charge that was deferred by the EEOC to a state agency within the state’s limitation period but came back to the EEOC, after state agency consideration, more than 300 days after the alleged discriminatory practice. In Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Court held that the charge was not “filed” with the EEOC until after it returned from deferral to the state agency, and, therefore, the charge was untimely. Various courts have turned to Mohasco for guidance in deciding whether a timely filing with a state agency is a prerequisite to obtaining the extended federal filing period. A split of authority has developed. A timely filed charge with a state agency was required for an extended federal filing period in the following cases: Lowell v. Glidden-Durkee, 529 F.Supp. 17 (N.D.Ill.1981); Battle v. Clark Equipment, 524 F.Supp. 683 (N.D.Ind.1981); Gunn v. Dow Chemical Co., 522 F.Supp. 1172 (S.D.Ind. 1981); Stewart v. MBPXL, Case No. 81-1521 (D.Kan., unpublished, 5/24/82); Gutierrez v. Boeing" }, { "docid": "5015663", "title": "", "text": "days, a timely filing is not required to preserve one’s federal rights. But Martinez, id. at 351-52 also said a distinction might well be drawn between states whose statute of limitations is shorter than the federal 180-day period (as in Martinez) and states with a filing period of 180 days or longer (such as Illinois). Three considerations have led this Court to find such a distinction is appropriate (despite its rejection in several other circuits). First, Anderson’s dictum has really read too much into the earlier-quoted Mohasco footnote. Lowell v. Glidden-Durkee, Division of SCM Corp., 529 F.Supp. 17, 21-22 (N.D.Ill.1981) (emphasis in original) tells why that footnote did not really speak to an untimely filing in a deferral state such as Illinois: First ... Lowell’s case differs from Mohasco in one crucial respect. In Mohasco, the plaintiff had initiated state proceedings within the state limitation period, which was one year. The Court did not decide whether failure to file within the state period could preclude application of the extended federal filing period. Furthermore, in the footnote cited, the Court was rejecting a line of cases that held that a claimant must file with the state agency within 180 days in every case in order to claim the extended filing period. The Court stated that this rule was too restrictive because it did not take into account deferral states that had a filing period longer than 180 days. In such cases, a claimant could file with the state more than 180 days after the injury complained of and still be within the state limitation period. As long as the claimant filed with the EEOC before 300 days had passed, the charge would be timely. But the footnote did not address the present case, where the state limitation period was equal to the federal, and plaintiff failed to file a timely charge with the state. Second, Title VII reflects a far more meaningful policy of deferral to state agencies than the purely token state-filing provision of ADEA. Section 2000e-5(c) requires a complainant in a deferral state to give the state 60 days" } ]

[ { "docid": "22608460", "title": "", "text": "itself. On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. See, e. g., Monroe v. Pape, 365 U. S. 167 (1961). More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a “ ‘moving force’ ” behind the deprivation, Polk County v. Dodson, 454 U. S. 312, 326 (1981) (quoting Monell, supra, at 694); thus, in an official-capacity suit the entity’s “policy or custom” must have played a part in the violation of federal law. Monell, supra; Oklahoma City v. Tuttle, 471 U. S. 808, 817-818 (1985); id., at 827-828 (Brennan, J., concurring in judgment). When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as objectively reasonable reliance on existing law. See Imbler v. Pachtman, 424 U. S. 409 (1976) (absolute immunity); Pierson v. Ray, 386 U. S. 547 (1967) (same); Harlow v. Fitzgerald, 457 U. S. 800 (1982) (qualified immunity); Wood v. Strickland, 420 U. S. 308 (1975) (same). In an official-capacity action, these defenses are unavailable. Owen v. City of Independence, 445 U. S. 622 (1980); see also Brandon v. Holt, 469 U. S. 464 (1985). The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment. While not exhaustive, this list illustrates the basic distinction between personal- and official-capacity actions. With this distinction in mind, it is clear that a suit against a government official in his or her personal capacity cannot lead to imposition of fee liability upon the governmental entity. A victory in a personal-capacity action is a victory against the individual defendant, rather than against the entity that employs him. Indeed, unless a distinct cause of action is asserted against the entity itself, the entity is not even a party to a personal-capacity" } ]

[ { "docid": "4925018", "title": "", "text": "he is to avoid liability, must show that his actions were reasonably within the umbrella of his official duties. Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.1984). Furthermore, although § 1983 does not expressly incorporate any common law immunities, the Supreme Court has “found that [in some instances] a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’ ” Owen v. City of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980) (quoting Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)). Among the traditional immunities is that of police officers who, when acting within the scope of their duties, “enjoy a ‘good faith and probable cause’ defense to § 1983 suits similar to that which existed in false arrest actions at common law.” Owen, supra 445 U.S. at 637, 100 S.Ct. at 1408. By contrast, neither a tradition of immunity nor policy considerations justify a qualified immunity for municipalities and local governments under § 1983. Moreover, the good faith of its employees cannot be adopted by a governmental entity as a defense to a § 1983 action. Id. at 638, 100 S.Ct. at 1409. Consequently, a police officer who successfully defends a § 1983 action by asserting good faith immunity may leave the municipality, which does not have such a defense available, wholly liable. The attorney representing both the police officer and the municipality is faced with two opposing defenses of his clients. On behalf of the police officer he may be required to argue that his client was performing his duties in accordance with official policy. At the least, the success of this defense will lead to joint liability with the municipality, and may result in sole liability of the municipality if the officer is found to be protected by qualified immunity. How;ever, on behalf of the municipality, the attorney may be required to argue that the officer’s actions were violative" }, { "docid": "307873", "title": "", "text": "only claim directed against Walling (Count Four), that Walling is liable as the “final policymaker” for the Rowlett police department. The Trents further allege that Walling implemented unconstitutional policies and failed to properly supervise his officers. These allegations demonstrate that the Trents sued Walling in his official capacity, not in his individual capacity. The Trents’ theory of liability therefore plainly is grounded in municipal liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (analyzing lawsuit against “Harry Connick, in his official capacity as the Orleans Parish District Attorney,” under municipal liability principles). It is well established that “municipalities have no immunity from damages liability flowing from their constitutional violations.” Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); see also Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999) (“Unlike government officials sued in their individual capacities, municipal entities and local governing bodies do not enjoy immunity from suit, either absolute or qualified, under § 1983.”); Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 759 (5th Cir.1993) (“While qualified immunity shields a city’s officers from damages caused by their transgression of rights not ‘clearly established’ at the time of their conduct, the city itself is ‘strictly liable’ for all constitutional violations committed pursuant to its policies.” (citations omitted)). As a result, the relevant questions-with respect to Walling’s liability are: (1) whether Walling’s actions amounted to an “official municipal policy” and (2) whether those actions caused the Trents’ injury. Thompson, 131 S.Ct. at 1359. Walling may not be insulated by qualified immunity. Because qualified immunity is not at issue, we may not exercise appellate jurisdiction over Walling. Qualified immunity is the reason this case is before us on interlocutory appeal. The Supreme Court has elaborated on the collateral order doctrine: When we placed within the collateral order doctrine decisions denying pleas of government officials for qualified immunity, we stressed that an official’s qualified immunity" }, { "docid": "14177428", "title": "", "text": "six to nine positions. The total salaries for positions immediately under the Comptroller increased from $260,927 to $336,536. II. This court reviews a grant or denial of summary judgment do novo. Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 213 (4th Cir.1993). The district court found that the summary judgment motion did not \"call factual matter into triable issue,\" and, based on Fourth Circuit case law, the appellees were entitled to judgment as a matter of law. The district court found Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (4th Cir.1990), cert. denied, 498 U.s. 815, 111 5.Ct. 56, 112 L.Ed.2d 31 (1990), to be controlling in this case; therefore, the decision to eliminate Burt-nick's position was legislative in nature and immune from suit under the legislative fin-munity doctrine. However, Baker has since been overruled by this court sitting en bane in Berkley v. Common Council of Charleston. The court in Berkley, relying on Leatherman v. Tcvrrant Connty Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), held that municipalities are \"not immune from liabifity tmder section 1983 for the en actments and actions of the local legislative body.\" Berkley at 296. The court stated: In the course of adjudicating these various claims to immunity, the Supreme Court has left no doubt that municipalities and local governments are not entitled to immunity from suits brought under section 1983. Chief Justice Rehnquist, writing for a unanimous Court, could not have been any clearer when he observed recently {in Leatherinan I that \"unlike various government officials, municipalities do not enjoy immunity from suit-either absolute or qualified-under § 1983.\" The Chief Justice based his observation in Leatherinan on the Court's decision in Owen, where, in denying municipalities a qualified immurity defense to claims brought under section 1983, the Court \"held\" that \"municipalities have no immunity from damages liability flowing from their constitutional violations.\" In the face of such clear and broad pronouncements by the" }, { "docid": "7267613", "title": "", "text": "that is alleged to be unconstitutional implements or \"executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers ... Moreover ... local governments, like every other § 1983 ‘person,’ by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels. Id. at 690-91, 98 S.Ct. at 2035-36 (emphasis added); see also Oklahoma v. Tuttle, 471 U.S. 808, 817-18, 105 S.Ct. 2427, 2432-33, 85 L.Ed.2d 791 (1985) (stating that municipal policy or custom must have played a part in the alleged deprivation of a protected interest in order to find liability in an official capacity suit). There must therefore be proof that the acts in question were inflicted by a government’s “lawmakers or by those whose edicts or acts may fairly be said to represent official policy[.]” City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988) (citing Monell, 436 U.S. at 694, 98 S.Ct. at 2037). The defense or defenses applicable to a § 1983 suit are contingent on the nature of the action. In Graham, the Supreme Court expressly held that the defenses available in an individual capacity suit are the “personal immunity defenses, such as objectively reasonable reliance on existing law.” Graham, 473 U.S. at 166-67, 105 S.Ct. at 3105 (citing, inter alia, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Court, citing Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), held that these defenses would be “unavailable” in an official capacity suit, stating: [t]he only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment. Graham, 473 U.S. at 167, 105 S.Ct. at 3106. With these principles in mind, the Court will now analyze the merits of the pending motions. 2. Individual Capacity Liability Mason has asserted qualified immunity as a" }, { "docid": "18060765", "title": "", "text": "are not entitled to absolute immunity even where the entity’s officers are entitled to immunity. In Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983), we held that a village mayor who served as local liquor commissioner was entitled to quasi-judicial absolute immunity, but the immunity did not extend to the village itself. Id. at 953. We reasoned that the rationale of Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), which declined to afford qualified immunity to a municipality despite the good faith of its individual officers, should apply with as much force to legislative and judicial officers and did not extend to the village the absolute judicial and legislative immunity we afforded to its mayor and trustees as individuals. Reed, 704 F.2d at 953 (“[T]he municipality’s liability for such acts extends to acts for which the policymaking officials themselves might enjoy absolute immunity because the acts were legislative or judicial in character.”). More recently, we explained in Hernandez v. Sheahan, 455 F.3d 772 (7th Cir.2006), that “units of government are not entitled to immunity in suits under § 1983,” in part because immunities are “personal defenses designed to protect the finances of public officials whose salaries do not compensate them for the risks of liability,” unlike local governments, “which can tap the public fisc.” Id. at 776 (finding city and sheriffs department not entitled to quasi-judicial immunity from § 1983 suit). The Board points to no examples of a circuit court applying absolute immunity to a municipal entity, and we have found none. Most of the cases it cites involved state entities, which frequently will be protected from suit by Eleventh Amendment sovereign immunity or its statutory parallel under Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109* S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that states and state officials sued in official capacities are not “persons” who can be sued under § 1983). See, e.g., Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 924-26 (9th Cir.2004) (state medicine and professional discipline boards; court did not" }, { "docid": "23348905", "title": "", "text": "three separate occasions, in cases involving suits against local government officials and entities, we have suggested that legislative immunity is a personal defense that government officials may not assert when they are sued in their official capacities. See Almonte, 478 F.3d at 106 (stating that “[ijmmunity, either absolute or qualified, is a personal defense that is available only when officials are sued in their individual capacities”) (emphasis in original); Morris v. Lindau, 196 F.3d 102, 111 (2d Cir.1999) (stating that “[t]he immunities Town Board members enjoy when sued personally do not extend to instances where they are sued in their official capacities”); Goldberg v. Town of Rocky Hill, 973 F.2d 70, 73 (2d Cir.1992) (stating that “[t]he fallacy in the town’s argument on appeal lies in its assumption that the absolute legislative immunity of the town councilmen applies when the suit is brought against them in their official capacities”) (emphasis in original). In Morris, we held explicitly that legislative immunity did not bar claims for injunctive relief in official-capacity suits against local government officials. See Morris, 196 F.3d at 111. We do not think that Almonte, Morris, and Goldberg are applicable here. Each of those cases involved official-capacity claims against local-level officials, rather than state officials. While legislative immunity is available to local officials who are sued in their individual capacities, see Bogan, 523 U.S. at 54, 118 S.Ct. 966, the Supreme Court has made clear that, due to the historical unavailability of various immunity defenses to local governments, those governments (or “municipal corporations”) are not entitled to the benefit of any immunities that might be available to local officials sued under § 1983. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (“[T]here is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded [defendant municipality]”); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (“[UJnlike various government officials, municipalities do not enjoy" }, { "docid": "11039745", "title": "", "text": "(1979)) (“[T]he justifications for immunizing officials from personal liability have little force when suit is brought against the governmental entity itself.”). Indeed, in the Court’s view, the very existence of an immunity for individual officials cuts strongly in favor of denying immunity to the municipality the official represents. In Owen, for instance, the Court concluded that, in light of the qualified immunity already afforded to officials sued individually, the only way to “properly allocate[ ]” the costs of constitutional violations among government officials, municipalities, and victims, is to deny an immunity defense to the municipality. Id. at 657, 100 S.Ct. at 1418-19. And in Lake Country Estates, the Court justified its grant of absolute immunity to regional legislators serving on the Tahoe Regional Planning Agency (TRPA), in part on the fact that a plaintiff would still be able to proceed against the regional entity: If the [legislators serving on TRPA] have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners’ interests. Lake Country Estates, 440 U.S. at 405 n. 29, 99 S.Ct. at 1179 n. 29 (emphasis added). In sum, though the issue before us today is an important one, it is ultimately easily resolved. The Supreme Court effectively answered the question fifteen years ago in Owen. A unanimous Court in Leatherman recently reaffirmed Owen, and every other circuit to have addressed the issue has read Owen as foreclosing the possibility of legislative immunity for municipalities. In accord with this controlling, and otherwise impressive, body of authority, we hold that a municipality is not entitled to an absolute immunity for the actions of its legislature in suits brought under 42 U.S.C. § 1983. II. In the instant case, the appellants’ complaint alleged that, in enacting the annual budget for the City of Charleston in 1993, Charleston’s Common Council denied appellants a salary increase on the impermissible ground that the appellants had actively supported a candidate in the prior mayoral election other than the one favored by a majority of the members of the Common Council, in violation of the First Amendment. The" }, { "docid": "23348906", "title": "", "text": "Morris, 196 F.3d at 111. We do not think that Almonte, Morris, and Goldberg are applicable here. Each of those cases involved official-capacity claims against local-level officials, rather than state officials. While legislative immunity is available to local officials who are sued in their individual capacities, see Bogan, 523 U.S. at 54, 118 S.Ct. 966, the Supreme Court has made clear that, due to the historical unavailability of various immunity defenses to local governments, those governments (or “municipal corporations”) are not entitled to the benefit of any immunities that might be available to local officials sued under § 1983. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (“[T]here is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded [defendant municipality]”); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (“[UJnlike various government officials, municipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983.”); Goldberg, 973 F.2d at 73 (noting that “the immunities historically granted other government actors in § 1983 actions had not been available to municipal corporations”). The Supreme Court has never reached a similar conclusion with respect to suits against states, or against state agents in their official capacities. This may explain why we did not attempt to reconcile the holdings of Almonte, Morris, and Goldberg with our earlier holding in Star Distributors, or with the Supreme Court’s similar holding in Consumers Union. Because the three cases addressing the availability of legislative immunity to municipalities did not cite or discuss, much less overrule, Star Distributors, and no decision of the Supreme Court has overruled the relevant holdings in Consumers Union or Star Distributors, we adhere to the law of the Circuit that legislative immunity may bar claims for injunctive relief against state officials. See, e.g., Nicholas v. Goord, 430 F.3d 652, 659 (2d Cir.2005) (“[W]e are bound by our own precedent unless and until" }, { "docid": "8356862", "title": "", "text": "of the enforcement function within the legislative context. Second, liability should not flow automatically from a determination that a defendant acted in an enforcement role. The Court seemed to find “enforcement of legislation” a new immunity category, just as school and government officials may be immune. Unlike the latter two areas, however, the Supreme Court of Virginia Court failed to consider the applicability of a qualified immunity defense to a defendant acting in an enforcement capacity, or when, if ever, a court may impose personal liability on a legislative enforcement official. For a more extensive critique of the case, see Note, supra. c. Individual absolute immunity v. municipal liability. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), denied municipalities any immunity from § 1983 suits, even though city officials might successfully assert a qualified good faith defense. The case did not present for decision, however, the more intellectually challenging question concerning the liability of local governments for acts by officials shielded by absolute immunity. While the two social goals seem to conflict most directly here, at least two Circuits have extended Owen to cases involving absolute immunity. Hernandez v. City of Lafayette, 643 F.2d 1188, 1195-97 (5th Cir. 1981); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 613 (8th Cir. 1980). See also P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 242 n.13 (Supp.1981) (“It is probable ... that the [Owen ] Court intended its holding to mean that both qualified and absolute immunities are to be deemed relevant to municipal liability under § 1983.”). Under those cases and commentary, the city must pay plaintiffs counsel fees even if the Common Council acted legislatively in refusing to rehire Visser. The Council’s act represented the local government’s official “policy or custom” sufficient to impose liability. See Owen, 445 U.S. at 657, 100 S.Ct. at 1419 (quoting Monell v. Dep’t of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978)). Nor would the city’s absence as a named party" }, { "docid": "11039729", "title": "", "text": "1983.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, — U.S. —, —, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). The Chief Justice based his observation in Leatherman on the Court’s decision in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), where, in denying municipalities a qualified immunity defense to claims brought under section 1983, see id. at 650, 100 S.Ct. at 1415, the Court “held” that “municipalities have no immunity from damages liability flowing from their constitutional violations,” id. at 657, 100 S.Ct. at 1418. In the face of such clear and broad pronouncements by the Supreme Court, we have little trouble concluding that a municipality is not immune from section 1983 liability for unconstitutional enactments and other legislative activities of the local legislature. Apart from the unequivocal statements in the Court’s opinions, the reasoning employed by the Court in Owen forecloses any other conclusion. In Owen, the Court explained that it will only recognize an immunity from suit under section 1983 where “a tradition of immunity was so firmly rooted in the common law [at the time of the statute’s enactment] and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.”’ Id. at 637, 100 S.Ct. at 1408. After surveying the common law at the time of the enactment of section 1 of the Civil Rights Act of 1871, the predecessor statute to section 1983, and after evaluating the public policy considerations behind municipal liability, the Court held that there was no justification in history or tradition, or in policy, for affording municipalities immunity from suit under section 1983. With regard to the inquiry into tradition, the Court unqualifiedly concluded that “there is no tradition of immunity for municipal corporations.” Id. at 638, 100 S.Ct. at 1409. Though the Court was able to identify two common law doctrines that might have served as a basis for municipal immunity, it held that neither of these immunities survived Congress’ enactment of section 1 of the Civil Rights Act of" }, { "docid": "8356861", "title": "", "text": "Council’s “legislative” act, the Republican defendants-councilors fail that test. See § II infra. b. The enforcement exception. As discussed in note 2 supra, Supreme Court of Virginia v. Consumers Union of United States, Inc. granted absolute immunity to state judges acting in a legislative capacity. The Court found, however, that the state court and its chief justice could be held officially liable for counsel fees in their enforcement capacities, because the court had inherent and statutory authority to initiate proceedings against attorneys for violations of the Virginia Code of Professional Responsibility. 446 U.S. at 736, 738-39, 100 S.Ct. at 1976-78. Under that theory, defendants would be liable here in their official capacities. Swearing in Falge as the new City Clerk would constitute the Council’s enforcement of its earlier decision to replace plaintiff. See also Fernandes v. Limmer, 663 F.2d 619, 637 (5th Cir. 1981); Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113, 1175 (1973). Supreme Court of Virginia contains its own analytical flaws. First, the Court never discussed the scope of the enforcement function within the legislative context. Second, liability should not flow automatically from a determination that a defendant acted in an enforcement role. The Court seemed to find “enforcement of legislation” a new immunity category, just as school and government officials may be immune. Unlike the latter two areas, however, the Supreme Court of Virginia Court failed to consider the applicability of a qualified immunity defense to a defendant acting in an enforcement capacity, or when, if ever, a court may impose personal liability on a legislative enforcement official. For a more extensive critique of the case, see Note, supra. c. Individual absolute immunity v. municipal liability. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), denied municipalities any immunity from § 1983 suits, even though city officials might successfully assert a qualified good faith defense. The case did not present for decision, however, the more intellectually challenging question concerning the liability of local governments for acts by officials shielded by absolute immunity. While the two social" }, { "docid": "14177429", "title": "", "text": "1160, 122 L.Ed.2d 517 (1993), and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), held that municipalities are \"not immune from liabifity tmder section 1983 for the en actments and actions of the local legislative body.\" Berkley at 296. The court stated: In the course of adjudicating these various claims to immunity, the Supreme Court has left no doubt that municipalities and local governments are not entitled to immunity from suits brought under section 1983. Chief Justice Rehnquist, writing for a unanimous Court, could not have been any clearer when he observed recently {in Leatherinan I that \"unlike various government officials, municipalities do not enjoy immunity from suit-either absolute or qualified-under § 1983.\" The Chief Justice based his observation in Leatherinan on the Court's decision in Owen, where, in denying municipalities a qualified immurity defense to claims brought under section 1983, the Court \"held\" that \"municipalities have no immunity from damages liability flowing from their constitutional violations.\" In the face of such clear and broad pronouncements by the Supreme Court, we have little trouble concluding that a municipality is not immune from section 1983 liabifity for unconstitutional enactments and other legislative activities of the local legislature. Id. (citations omitted) (footnote omitted). The court also stated that the extent to which Baker \"can be read to confer legislative immunity on municipalities from suits brought under section 1983,\" it is overruled. Bericley at 303. We hold that the city is not entitled to legislative immunity, and accordingly, the grant of the motion for summary judgment as to the city is reversed. McLean, in her individual capacity as a legislator, is still immune from suit under the legislative immunity doctrine. Id. at 300-02; Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980). The com't in Berkley recognized, but did not decide, the issue of members of the Board being entitled to a testimonial privilege: Under Baker and Schlitz [854 F.2d 43 (4th Cir.1988)], [the defendant's] council members may be privileged from testifying in federal district court as to their motives in enacting legislatioh. Because appellants do" }, { "docid": "18908588", "title": "", "text": "board is obligated to pay a reasonable salary to the supervisor’s wife, should he choose to appoint her as Confidential Secretary. This Court concludes therefore that members of a town board, when acting as local legislators in a capacity comparable to that of members of a state legislature, are entitled to absolute immunity from liability under § 1983, and that they were so acting in setting the salaries for Dusanenko and Lon-go, or failing to reappoint Maidman. Defendants also argue that the Town of Clarkstown itself is also immune from suit, as a result of the Supreme Court’s decision in Owen v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). However, defendants have misread the applicable law. In Owen the Court held that a municipality was not jmmune from suits under § 1983 for alleged constitutional violations by members of its city council. Defendants attempt to distinguish the instant case by stating that the Court in Owen, while finding the “municipal corporation” without immunity, reaffirmed that other entities cannot be sued if there is historical immunity. The language of the passage cited by defendants does not support this argument. Indeed, the Court noted that while it had recognized and reaffirmed immunity for various government officials, it had not previously addressed the issue of the immunity of the municipality itself. Id. at 637-38 and fn. 18, 100 S.Ct. at 1408-09 and fn. 18. Moreover, the rationale underlying the decision does not support the recognition of immunity for the town itself. The Court held that the central aim of the Civil Rights Act of 1871 was to provide those wronged by persons cloaked with the power of the state, with a remedy against the offending party. Owen, supra, at 650-51,100 S.Ct. at 1415. Because the Court has recognized an absolute or qualified immunity for most government officials, a finding of immunity for the municipality itself might leave the injured party without a remedy, thereby thwarting the intent of Congress. Id. at 651, 100 S.Ct. at 1415. In this case, the individual defendants are absolutely immune from" }, { "docid": "22885757", "title": "", "text": "make our summary ruling applicable to the new case. In Fierro itself, for example, we stated our usual assumption that the parties were familiar with the facts; we described the plaintiff simply as “refusfing] to follow [the principal’s] order to submit false and damaging information about two teachers at the school”; and we provided no details such as what the plaintiff had been instructed to say or to whom the allegedly “false and damaging information” was to have been “submitted].” The facts of that case may or may not be similar to those at issue here. But Fierro does not require the court to uphold the qualified immunity defenses asserted here for, by Rule, Fierro has no precedential effect. Finally, because a claim asserted against a government official in his official capacity is essentially a claim against the governmental entity itself, the defense of qualified immunity, which may be available to individual defendants as they are sued in their individual capacities, is not applicable to claims against them in their official capacities. See generally Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). And “there is no tradition of immunity for municipal corporations.” Owen, 445 U.S. at 638, 100 S.Ct. 1398. Jaekler’s complaint asserted claims against defendants in both their individual and official capacities. Thus, even if the court were eventually to determine that defendants are entitled to qualified immunity on the claims against them in their individual capacities, that determination would not entitle them to dismissal of the official-capacity claims. See generally Kentucky v. Graham, 473 U.S. at 166 n. 11, 105 S.Ct. 3099 (“In an official-capacity action in federal court, death or replacement of the named official will result in automatic substitution of the official’s successor in office. See Fed. Rule Civ. Proc. 25(d)(1);" }, { "docid": "10470262", "title": "", "text": "the qualified immunity of public officials. The Magistrate Judge concluded that certain questions of fact precluded dismissal of the action, but he recommended that qualified immunity should be applied to the defendants. In his opinion, “[cjreating an arbitrary distinction between prison officials who are government officials and prison officials who are private parties, despite the fact that they both perform the same functions, places form over substance and runs counter to the rationales behind qualified immunity.” Report and Recommendation at 8. The Court disagrees. II. Title 42 U.S.C. § 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, 136 (1976). However, the Supreme Court has “accorded certain government officials either absolute or qualified immunity from suit if the ‘tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.” ’ ” Wyatt v. Cole, 504 U.S.-,-, 112 S.Ct. 1827, 1831, 118 L.Ed.2d, 504, 512 (1992) (quoting Owen v. City of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980); Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)). Thus, immunity from suit under Section 1983 today depends on whether such an immunity was recognized at common law when the statute was enacted and whether public policy would support such an immunity. The United States Court of Appeals for the Sixth Circuit has reduced this analysis to a concise two-part test: “The first part requires the party claiming immunity to show that the immunity was recognized at common law. The second part requires a showing of strong public policy reasons for granting such an immunity.” Duncan v. Peck, 844 F.2d 1261, 1264 (6th Cir.1988). Indeed, in a somewhat different context, the Court of Appeals already has applied this analysis to the question presented here and concluded “[b]e-eause we find no evidence that private parties were immune from suit at" }, { "docid": "16020674", "title": "", "text": "defendants only in their “official capacity” does not involve personal liability to the individual defendant. Concomitantly, defenses such as absolute quasi-judicial immunity, that only protect defendants in their individual capacities, are unavailable in official-capacity suits. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“[T]he only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses.”); see also Johnson v. Kegans, 870 F.2d 992, 998 n. 5 (5th Cir.1989) (“Immunity does not bar suits against defendants in their official capacities.”); Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999). The Supreme Court clarified this distinction in Kentucky v. Graham and again in Hafer v. Melo, finding immunity to be inapplicable in § 1983 suits against government officials in their “official capacity.” As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. Graham, 473 U.S. at 166, 105 S.Ct. 3099 (citations omitted); see also Hafer, 502 U.S. at 25, 112 S.Ct. 358 (reiterating the reasoning of Graham); Burge, 187 F.3d at 466 (“Unlike government officials sued in their individual capacities, municipal entities and local governing bodies do not enjoy immunity from suit, either absolute or qualified, under § 1983.”). Appellants’ contention that the Houma Board members should be granted absolute quasi-judicial immunity in their official capacities derives from a misreading of the case law in this circuit. To be fair, this circuit has not been explicit in articulating which “capacity” we have granted absolute quasi-judicial immunity; however, a precise reading of the cases relied on by appellants demonstrate that the holdings in Graham and" }, { "docid": "11039740", "title": "", "text": "not precluded simply because the [local legislators] were found immune in their individual capacities.”); Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir.1983) (holding that a “municipality’s liability for [the official acts of municipal policy makers] extends to acts for which the policy-making officials ... might enjoy absolute immunity because the acts were legislative or judicial in character”); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1350 (9th Cir.1982) (complete immunity of county legislators does not immunize county); Hernandez v. City of Lafayette, 643 F.2d 1188, 1196 (5th Cir. Unit A May 1981) (“We consider the Supreme Court’s decision in Owen and its caveat in Lake Country Estates to be disposi-tive of the city’s argument and hold that the City of Lafayette is not entitled to a legislative immunity from damages under § 1983....”), cert. denied, 455 U.S. 907, 102 5.Ct. 1251, 71 L.Ed.2d 444 (1982); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 613 n. 7 (8th Cir.1980) (“Owen would seem to provide a remedy for unconstitutional municipal legislation.” (emphasis omitted)). In the face of this overwhelming authority, the City of Charleston attempts to justify its claim of absolute legislative immunity by reference to the tradition and policy justifications supporting the legislative immunity for individual legislators. While there is indeed a long tradition of granting individual legislators at all levels of government a broad immunity from suits based upon their legitimate legislative activities, and though there are undoubtedly strong public policy justifications for such immunity, the Supreme Court has instructed that the defenses available to an official in a personal capacity action simply “are unavailable” in a suit against a governmental entity. Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985) (citing Owen); see also Owen, 445 U.S. at 638 n. 18, 100 S.Ct. at 1409 n. 18 (factors supporting an immunity for officers sued in individual capacity “differ[] significantly” from factors considered when “only the liability of the municipality itself is at issue”). The Court has made clear that neither the tradition nor the public policy considerations supporting a" }, { "docid": "23330317", "title": "", "text": "A successful suit against an individual acting under color of law results in personal liability of the individual to the injured party for the amount of his injuries. In this individual capacity, the local public official may prevail on the affirmative defenses of absolute or qualified immunity if they are applicable. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This doctrine and the theories of liability and immunity applicable thereto are not relevant to suits directly against a governmental entity. A suit against an individual “in his official capacity” has been held to be essentially a suit directly against the local government unit and can result in that unit’s liability to respond to the injured party for his injuries. Official capacity suits, ... “generally represent only another way of pleading an action against an entity of which an officer is an agent.” ... As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (citations omitted). In such suits, however, the governmental entity is not entitled to assert the immunity defenses available to individual actors sued in their individual capacities. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Further, before a local government can be held liable for injuries under section 1983, whether the suit is pleaded as an official capacity suit or a suit against the local government, a plaintiff must show that his injuries were the result of some “policy or custom” attributable to the governmental entity. Monell, 436 U.S. at 690, 98 S.Ct. at 2035. As the Supreme Court stated in Kentucky v. Graham: On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.... More is required in an official-capacity action, however, for" }, { "docid": "11039741", "title": "", "text": "In the face of this overwhelming authority, the City of Charleston attempts to justify its claim of absolute legislative immunity by reference to the tradition and policy justifications supporting the legislative immunity for individual legislators. While there is indeed a long tradition of granting individual legislators at all levels of government a broad immunity from suits based upon their legitimate legislative activities, and though there are undoubtedly strong public policy justifications for such immunity, the Supreme Court has instructed that the defenses available to an official in a personal capacity action simply “are unavailable” in a suit against a governmental entity. Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985) (citing Owen); see also Owen, 445 U.S. at 638 n. 18, 100 S.Ct. at 1409 n. 18 (factors supporting an immunity for officers sued in individual capacity “differ[] significantly” from factors considered when “only the liability of the municipality itself is at issue”). The Court has made clear that neither the tradition nor the public policy considerations supporting a broad legislative immunity for legislators sued in their individual capacity has persuasive force when the liability of the municipality is at issue. The Court foreclosed reliance on the tradition of legislative immunity for individual legislators when it stated in unequivocal terms that “there is no tradition of immunity for municipal corporations.” Id. at 638, 100 S.Ct. at 1409. As to the public policy behind granting individual officers an immunity, the Court explained in Owen that the “overriding considerations of public policy,” which, on occasion, have led the Court to conclude that an “official be given a measure of protection from personal liability,” are “less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.” Id. at 653, 100 S.Ct. at 1416. The Court in Owen cited two such policy considerations: first, the injustice of holding a public officer personally liable for making discretionary decisions mandated by his public employment, and second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness" }, { "docid": "19272542", "title": "", "text": "and/or under the protection of qualified immunity. Indeed, ample ease law describes the scope of these defenses, and at this point in the litigation, the Individual Defendants need not elaborate further. Furthermore, the Court looks with disfavor on 12(f) motions to strike and will not grant such motions “if the insufficiency of the defense is not readily apparent.” J & J Sports Productions, Inc. v. Romero, 2012 WL 2317566, at *1 (E.D.Cal. June 18, 2012). For these reasons, the Court DENIES the motion to strike affirmative defenses two, six, and twenty-two with respect to the Individual Defendants. As for the City, though many government officials hold qualified immunity, municipalities are not immune from liability for “good faith constitutional violations.” Owen v. City of Independence, Mo., 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Similarly, a “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983,” because “municipalities have no immunity from damages liability flowing from their constitutional violations.” Owen, 445 U.S. at 638, 657,100 S.Ct. 1398. Thus, although the Individual Defendants may assert qualified immunity, the City cannot. Id.; Monell, 436 U.S. at 691, 98 S.Ct. 2018; Arnold v. Cnty. of El Dorado, 2011 WL 902204, at *6 (E.D.Cal. Mar. 15, 2011) report and recommendation adopted, 2011 WL 4344178 (E.D.Cal. Sept. 14, 2011) (“[G]iven the case law that municipal entities qualify for neither absolute or qualified immunity, plaintiff is free to pursue the entity despite a finding of immunity for individuals, if she has otherwise pled a municipal liability § 1983 claim.”) (citing Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir.1988)). Accordingly, the Court STRIKES WITHOUT LEAVE TO AMEND the second, sixth, and twenty-second affirmative defenses with respect to the City. B. Third and Fourth Affirmative Defenses — City Not Liable for Employee’s Actions if No Statute or if Employee is Immune Defendants’ third affirmative defense asserts that the City is immune from liability stemming from the acts or omissions of a public employee when there is no statute declaring such liability. (Answer; p. 4.) Similarly," } ]

[ { "docid": "1688035", "title": "", "text": "outside the scope of his authority as defined by 28 U.S.C. § 636(b)(1)(A) & (B) and the Local Rules of the District Court. For the Court’s jurisdiction to have been destroyed by the Order of Remand, the Magistrate must have been empowered to issue such an Order in the first place. A federal magistrate’s authority to act derives from federal statute and the Local Rules of this Court. In passing the Federal Magistrates Act, Congress conferred only limited powers on the magistrates who would wield them. Sections 636(b)(1)(A) & (B) of the Federal Magistrates Act state (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal ease, to ■ dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in this subpara-graph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. 28 U.S.C. § 636(b)(1)(A) & (B) (emphasis added). The Local Rules of this Court also define the scope of a magistrate’s powers with respect to nondispositive and dispositive motions. See Local Rules 40(A) & (B). Tracking the language of 28 U.S.C. § 636(B)(1)(A) to a significant degree, Local Rule 40(A)(2) provides that a magistrate may Hear and conduct such evidentiary hearing as are necessary or appropriate and submit to a Judge proposed findings of fact and" } ]

[ { "docid": "4397962", "title": "", "text": "a pension or employee benefit plan. But such actions are not subject to removal. Removal and preemption are two distinct concepts. “The fact that a defendant might ultimately prove that a plaintiffs claims are pre-empted” — for example under § 1144(a) — “does not establish that they are removable to federal court. Caterpillar [Inc. v. Williams], 482 U.S. [386,] 398 [107 S.Ct. 2425, 2432, 96 L.Ed.2d 318 (1987)]. The federal preemption defense in such nonremovable cases would be decided- in state court_ Warner, 46 F.3d at 534-35 (emphasis added). Therefore, were this simply a ease involving state claims not covered by Section 1132(a)(1)(B), its removal would be improper under Warner. This appears to be the situation here because Zuniga is neither a plan participant nor a beneficiary, although he does seek to recover benefits from an employee benefit plan. However, Count II, the Due Process claim, complicates matters further. Despite the fact that ERISA preemption does not confer federal jurisdiction over these claims, any civil action of which the district court has original jurisdiction may be removed under 28 U.S.C. § 1441(a) (1988). Alleging a violation of the Due Process clause of the United States Constitution provides original federal question jurisdiction, under 28 U.S.C. § 1331 (1988), over Count II. The district court could then exercise supplemental jurisdiction over “all other claims that are so related to claims in the action ... that they form part of the same case or controversy....” 28 U.S.C. § 1367(a) (Supp. V 1993). Thus, this case was properly removed to the district court despite the restrictions of Warner. III. Blue Cross’s appeal challenges the district court’s denial of its motion to dismiss Counts III and V as not being preempted by ERISA. Thus, Blue Cross argues at length concerning the scope of ERISA preemption and whether these counts fall within it. However, despite Blue Cross’s preemption analysis, substantively it is challenging the district court’s order to remand these counts to state court. Although Zuniga does not contest our authority to consider Blue Cross’s appeal, we are obligated to ensure that we have jurisdiction over" }, { "docid": "12560062", "title": "", "text": "Black, there still remains due and owing $6,169.25, which the defendant has steadfastly refused to pay. Thereafter, on January 28, 1993, Travelers filed its Notice of Removal to this Court pursuant to 28 U.S.C. § 1441 alleging, inter alia, that this court has original jurisdiction of this action because it arises under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(e). In response, the plaintiff filed its motion to remand, denying that its claim for unpaid hospital and medical services is governed by “ERISA.” As noted above, the defendant then filed a motion to dismiss any pending state law claims for the same reason that because this case arose under “ERISA,” that act effectively preempts any and all pendent state claims for relief. DISCUSSION The standards applicable to motions such as the ones now before the court are well and firmly established. In considering a motion to dismiss for failure to state a claim upon which relief may be granted, the court must accept as true all of the allegations recited in the complaint, construing them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939 (3rd Cir.1985); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F.Supp. 1141 (E.D.Pa.1991). In order to prevail on a motion to dismiss, Defendant must establish that Plaintiff can prove no set of facts which would entitle it to relief. See: Oatess v. Sobolevitch, 914 F.2d 428, 431, note 8 (3rd Cir.1990); Hendrix v. Fleming Companies, 650 F.Supp. 301 (W.D.Okla.1986). Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending ...” In the absence of diversity of citizenship of the parties, federal question jurisdiction is of course required. See: Coardes v. Chrysler Corp., 785 F.Supp. 480 (D.Del.1992). In ruling on whether an action should be remanded to the state court from which it" }, { "docid": "21046016", "title": "", "text": "the magistrate judge's recommendations. 28 U.S.C. § 636(b)(1)(B). In enacting Fed.R.Civ.P. 72, which describes the procedures to be followed by magistrate judges regarding pre-trial motions, Congress designated those motions which are excepted from a magistrate's hear and determine authority as “dispositive” and those motions which are not within such authority as \"non-dispositive.” Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 594, 595 (W.D.N.Y.1996). Any motion that is neither listed nor analogous to a motion listed in § 636(b)(1)(A) falls within the non-dispositive group. Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir.1990), cert. denied, 498 U.S. 1025, 111 S.Ct. 674, 112 L.Ed.2d 666 (1991). The dispositive/non-dispositive distinction is drawn because \"[t]he Constitution requires that Article III judges exercise final decisionmaking authority.” Ocelot Oil Corp., v. Sparrow Industries, 847 F.2d 1458, 1463 (10th Cir.1988). A motion to compel arbitration is not one of the listed dispositive motions and, based on the relevant portions of the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (\"FAA”) this court has determined that it is not analogous to one of the listed motions. Specifically, § 9 of the FAA requires that the parties to arbitration must apply to the' court for an order confirming an arbitration award, which shall be granted unless the award is vacated, modified or corrected in accordance with 9 U.S.C. §§10 and 11. Section 10 provides federal district courts with authority to make an order vacating an arbitration award, while § 11 permits modification of the same. Thus, as enacted, the FAA provides that there is no final exercise of Article III power until after arbitration is complete and the arbitrator's decision is either affirmed, modified, or vacated by the district court judge where the actions remain lodged. The court also notes that magistrate judges are permitted under § 636(b)(1)(A) to remand matters back to state courts resulting in the federal court's loss of jurisdiction over the action. See, e.g., Holt v. Tonawanda Coke Corp., 802 F.Supp. 866, 868 (W.D.N.Y.1991). In contrast, when a federal court refers a matter to arbitration of a federal statutory right, the federal" }, { "docid": "2321522", "title": "", "text": "of service of a copy of the order, a party may serve and file objections; which the district court judge shall consider, under a standard of review of clearly erroneous or contrary to law. Id. Pursuant' to § 636(b)(1)(B), the district court may also refer to a magistrate any of the excepted dispositive matters listed in § 636(b)(1)(A). In that instance, however, the magistrate files proposed findings and recommendations with the district court. 28 U.S.C. § 636(b)(1)(B). Within 10 days of service of a copy of the proposed findings and recommendations, a party may serve and file objections, which the district court reviews de novo. Id.; see also Fed. R.Civ.P. 72(b). A motion to remand is not specifically listed as an excepted dispositive matter in § 636(b)(1)(A). Accordingly, some courts have determined that it is a nondispositive matter within the authority of the magistrate to determine by final order. McDonough v. Blue Cross of Northeastern Pennsylvania, 131 F.R.D. 467 (W.D.Pa.1990) (district court order upholding memorandum and order of magistrate); North Jersey Savs. & Loan Assoc. v. Fidelity & Deposit Co., 125 F.R.D. 96, 98 (D.N.J.1988); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F.Supp. 583, 586 (D.Me.1984); see also Walker v. Union Carbide Corp., 630 F.Supp. 275, 277 (D.Me.1986) (relying on Jacobsen, supra, and reviewing order of remand under standard of clearly erroneous or contrary to law). On the other hand, at least two courts view a remand order as the equivalent of an involuntary dismissal — a dispositive matter specifically excepted from those in which a magistrate has the authority to enter a final order. Long v. Lockheed Missiles & Space Co., 783 F.Supp. 249, 250-51 (D.S.C.1992); Giangola v. Walt Disney World Co., 753 F.Supp. 148, 152 (D.N.J.1990). According to these courts, a magistrate, presented with a motion to remand, is restricted to proposing findings and recommendations for disposition by the district court. Long v. Lockheed Missiles & Space Co., 783 F.Supp. at 250-51; Giangola v. Walt Disney World Co., 753 F.Supp. at 152. It is evident that the magistrate and the district court judge in" }, { "docid": "19825408", "title": "", "text": "claim based upon the New Jersey State Constitution, Article 1, Paragraph 1. See Moving Brief at 1. According to Harter, he seeks to assert these state claims because, if he prevails on his cause of Federal ADEA action, “he will be entitled to damages which would not otherwise be available under the ADEA” Id. at 4. The motion to amend was denied by Judge Cavanaugh on 28 May 1993. See 28 May 1993 Cavanaugh Order. Discussion A. Standard of Review of Decision by Judge Cavanaugh Harter now appeals the 28 May 1993 Cavanaugh Order denying his motion to amend the Complaint. He argues that the 28 May 1993 Cavanaugh Order is clearly erroneous and contrary to law. Pursuant to 28 U.S.C. § 636(b)(1), Rule 72 of the Federal Rules of Civil Procedure and Rule 40 A of the General Rules of the District Court for the District of New Jersey, a United States Magistrate Judge may hear “dispositive” and “nondispositive” motions assigned by the district court. With regard to nondispositive motions, “the district court may modify the magistrate [judge’s] order only if the district court finds that the magistrate [judge’s] ruling was clearly erroneous or contrary to law.” Gomez v. United States, 490 U.S. 858, 868, 109 S.Ct. 2237, 2244, 104 L.Ed.2d 923 (1989); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992); see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Upon review by a district court of a nondispositive decision, the magistrate judge is accorded wide discretion. National Labor Relations Bd. v. Frazier, 966 F.2d 812, 815 (3d Cir.1992); Hanntz v. Shiley, Inc. Div. of Pfizer, Inc., 766 F.Supp. 258, 262 (D.N.J.1991); Republic of Philippines v. Westinghouse Electric Corp., 132 F.R.D. 384, 387 (D.N.J.1990); Dome Petroleum, Ltd. v. Employers Mut. Liability Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990); Schroeder v. Boeing Commercial Airplane Co., Div. of Boeing Corp., 123 F.R.D. 166, 169 (D.N.J.1988). With respect to dis-positive motions the district court must make a de novo determination of those portions of the magistrate judge’s report to which a litigant has filed an objection. Gomez, 490 U.S. at" }, { "docid": "104118", "title": "", "text": "defense. The removal statute particularly provides that an order remanding a case to state court is not reviewable on appeal or otherwise, except in situations not relevant here. 28 U.S.C. § 1447(d). Remand merely determines that the litigation shall take place in state court rather than federal court; thus, we are authorized to enter final order remanding the matter to the state court. Accord: North Jersey Savings and Loan Ass’n v. Fidelity and Deposit Company of Maryland, 125 F.R.D. 96 (D.C.N.J.1988); Jacobsen v. Mintz, Levin, Cohn P.C., 594 F.Supp. 583 (D.Maine 1984); Acme Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26 (W.D.N.Y.1988). Either party may, however, appeal this order within 10 days to a district judge. The standard of review upon appeal is whether the magistrate’s determination is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). A party’s failure to file a timely appeal to a district judge will constitute a waiver of that party’s right to a review by a district judge. See United Steelworkers of America v. New Jersey Zinc Co., 828 F.2d 1001 (3d Cir.1987); EEOC v. U.S. Steel Corp., 728 F.Supp. 1167 (W.D.Pa.1989). An appropriate order follows. ORDER AND NOW, this 26 day of April, 1990, IT IS HEREBY ORDERED that this case is remanded to the Court of Common Pleas of Allegheny County, Pennsylvania. . Although plaintiffs motion for remand was not filed until April 16, 1990, the question of whether the case was improperly removed and whether the court has jurisdiction to entertain this claim was posed and argued at the initial status conference held on March 1, 1990. Thus, we do not feel that additional briefing or oral argument would aid the court in resolving the matter. . Under Count III, ¶ 33 of the amended complaint, plaintiff avers that the defendant failed to pay certain medical bills related to the decedent’s last hospital visit. However, this averment appears to be only a part of the res gestae of the underlying course of conduct, not a . ground for recovery. Count III remains one to recover damages for defendant’s failure" }, { "docid": "21397560", "title": "", "text": "MEMORANDUM OPINION AND ORDER SANDERS, Acting Chief Judge. Before the Court are Plaintiff’s Motion to Remand, filed April 20, 1988; Defendant’s Opposition thereto, filed May 9, 1988; and Defendant’s Motion for Leave to Amend Petition for Removal, filed May 9, 1988. On March 14,1988, Plaintiff filed a cause of action in state court for the denial of benefits under Section 1132(a)(1)(B) of the Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. On April 4, 1988, Defendant removed the case to federal court pursuant to 28 U.S.C. § 1441(b). Plaintiff maintains in his motion that this matter should be remanded because (1) concurrent jurisdiction exists with the state court, and there is no triggering mechanism for removal, no requirement for removal or automatic right of removal granted to a defendant under a Section 1132(aXl)(B) action for the recovery of ERISA benefits once a plaintiff has brought the action in state court; and (2) Defendant’s Petition for Removal is defective as it is not verified. An action brought under Section 1132(a)(1)(B) of ERISA to recover benefits due under the terms of a benefits plan or to enforce a plaintiffs rights under the terms of the plan is one in which state courts and federal courts have concurrent jurisdiction. See 28 U.S.C. § 1132(e)(1). Therefore, both the state court in which Plaintiff brought his suit and this Court have original jurisdiction to hear this lawsuit. Under 28 U.S.C. § 1441(a), a suit may be removed in any case in which a federal district court has original jurisdiction “[ejxcept as otherwise expressly provided by Act of Congress ...” Plaintiff argues, relying on Lederman v. Pacific Mutual Life Insurance Co., 494 F.Supp. 1020 (C.D.Cal.1980), that by granting “concurrent” jurisdiction over Section 1132(a)(1)(B) actions, Congress “expressly” prohibited removal of actions originally filed in state court. The Court disagrees. The Court does not consider Congress’ act of allowing concurrent jurisdiction under these circumstances to speak expressly to the removal issue. See Mercy Hospital Association v. Miccio, 604 F.Supp. 1177, 1180 (E.D.N.Y.1985); McConnell v. Marine Engineers Beneficial Association, 526 F.Supp. 770, 771-72 (N.D.Cal.1981). Had" }, { "docid": "2321521", "title": "", "text": "to whether a magistrate has the authority to enter a final order of remand or whether a magistrate’s power extends only to making a report and recommendation on the issue of -remand to the district court, which, in turn, renders a determination. The disparity in views turns on whether a motion for remand is a dispositive matter. ’ Section 636(b)(1)(A) of Title 28 permits the district court to refer to a magistrate for hearing and determination any pending pretrial matter, with the exception of, what have been termed, dispositive matters, therein listed as: a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. As for a nondispositive matter referred to a magistrate, the magistrate enters a final order. Fed.R.Civ.P. 72(a). Within 10 days of service of a copy of the order, a party may serve and file objections; which the district court judge shall consider, under a standard of review of clearly erroneous or contrary to law. Id. Pursuant' to § 636(b)(1)(B), the district court may also refer to a magistrate any of the excepted dispositive matters listed in § 636(b)(1)(A). In that instance, however, the magistrate files proposed findings and recommendations with the district court. 28 U.S.C. § 636(b)(1)(B). Within 10 days of service of a copy of the proposed findings and recommendations, a party may serve and file objections, which the district court reviews de novo. Id.; see also Fed. R.Civ.P. 72(b). A motion to remand is not specifically listed as an excepted dispositive matter in § 636(b)(1)(A). Accordingly, some courts have determined that it is a nondispositive matter within the authority of the magistrate to determine by final order. McDonough v. Blue Cross of Northeastern Pennsylvania, 131 F.R.D. 467 (W.D.Pa.1990) (district court order upholding memorandum and order of magistrate); North Jersey Savs. & Loan Assoc." }, { "docid": "8337960", "title": "", "text": "Sav. & Loan Ass’n v. Fidelity & Deposit Co., 125 F.R.D. 96, 98 (D.N.J.1988); Walker v. Union Carbide Corp., 630 F.Supp. 275, 277 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F.Supp. 583, 586 (D.Me.1984). Other courts, however, have concluded that a remand order is the equivalent of an involuntary dismissal, a dispositive matter that a magistrate judge cannot determine. Long v. Lockheed Missile and Space Co., 783 F.Supp. 249, 250-51 (D.S.C.1992); Giangola v. Walt Disney World Co., 753 F.Supp. 148, 151-53 (D.N.J.1990); see also U.S. Fidelity and Guaranty Co. v. Thomas Solvent Co., 132 F.R.D. 660, 665 (W.D.Mich.1990) (motion for realignment of the parties). The City of Jackson court based its determination that a motion to remand is nondispositive on two grounds: First, a motion to remand is not specifically listed in Section 636(b)(1)(A) as a matter excepted from disposition by the magistrate judge. The statute thus expressly authorizes the magistrate judge to dispose of the motion. Second, this Court does not agree with those courts which have held that the motion is dispositive. The motion to remand does not reach the merits of the underlying dispute but instead decides only the question of whether removal to the federal court was proper. The parties remain free to litigate the merits of the case following the disposition of the motion, whether in state or federal court. City of Jackson, 147 F.R.D. at 124. This court adopts the reasoning set forth in City of Jackson and concludes that a'motion to remand is a nondispositive matter that a magistrate judge can determine pursuant to § 636(b)(1)(A). The court thus reviews Magistrate Judge Boline’s order dated March 22, 1993, under the clearly erroneous or contrary to law standard. Section 636(b)(1)(A); Rule 72(a); D.Minn. LR 72.1(b)(2). 2. Fraudulent Joinder A defendant alleging fraudulent joinder has the burden of demonstrating that the plaintiff joined a party to destroy diversity jurisdiction. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); Carriere v. Sears, Roebuck and Co., 893 F.2d" }, { "docid": "18359784", "title": "", "text": "MEMORANDUM and ORDER ELFVIN, District Judge. The plaintiff, Acme Electric Corporation (“Acme”), brought suit in New York State Supreme Court, Allegany County, against the defendant, Sigma Instruments, Inc. (“Sigma”), a foreign corporation, for breach of contract concerning the sale of certain electronic relays by Sigma to Acme. On November 21, 1986, pursuant to 28 U.S. C. § 1441 and grounds for diversity jurisdiction, Sigma removed this action to federal court. By order of this Court dated December 31, 1986, as authorized by 28 U.S.C. § 636(b)(1)(A), this action was referred to the Honorable Edmund F. Maxwell, United States Magistrate for the Western District of New York, for all pre-trial procedures and determinations of non-dispositive motions. During discovery proceedings Acme learned of the involvement of Summit Distributors Inc. (“Summit”), a New York corporation. Thereafter, Acme moved to amend its Complaint to add Summit as a party defendant. The motion was granted by order of the Magistrate dated November 4, 1987.. On November 16, 1987 Sigma moved this Court to vacate the Magistrate’s Order and for a determination of the issues raised by Acme’s motion to amend. Sigma objected here to the order as being beyond the authority of the Magistrate in that the granting of the motion was dispositive in that it destroyed diversity jurisdiction and required a remand to the state court. Fed.R.Civ.P. rule 72(a) authorizes a magistrate to hear and determine pre-trial motions not dispositive of a party’s claim or defense. 28 U.S.C. § 636(b)(1)(A) provides that “a magistrate [may] hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, * * *, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” Acme’s motion to add Summit as a defendant does not explictly fall" }, { "docid": "18702965", "title": "", "text": "next agreed that plaintiffs suit is under 29 U.S.C. § 1132(a)(1)(B) and that therefore under § 1132(e)(1) the state and federal courts have concurrent original jurisdiction. Subsection 1132(a)(1)(B) allows civil suits by beneficiaries or participants to recover benefits due from an ERISA fund. The parties, therefore, agree that this particular benefit fund is governed by ERISA and that Mercy Hospital, as the one to whom benefits are owing, has standing to sue under § 1132(a)(1)(B). The Court, however, does not have before it necessary facts for determination of these points. While not deciding the issues, for the purposes of this motion the Court will assume the parties are correct that ERISA applies and Mercy Hospital is the proper plaintiff under § 1132(a)(1)(B). Plaintiff contests removal of this action on the ground that the Court has discretionary power in removal cases and the proper exercise of that power would dictate remand to state court. Plaintiff has perhaps misapprehended the law. The Court does not treat a removal petition in a civil action as a motion or application to be denied or granted, 28 U.S.C. § 1446(a)-(b). Rather, filing the petition has the effect of removing the action to district court, subject to remand or dismissal. Grounds for remand or dismissal include lack of subject matter jurisdiction. in the federal district court, 28 U.S.C. § 1447(c), or a statutory prohibition of removal, e.g., 28 U.S.C. § 1441(b), 1445. Indeed, the right to removal is a statutory grant to be strictly construed. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). The defendant seeking removal must base the petition on a specific removal provision and specific grant of original jurisdiction in the district court. In this instance, the Union Fund premises removal on federal question jurisdiction, that is the ERISA claim, and the removal provision of 28 U.S.C. § 1441(a) and (b). Plaintiff, however, argues that the matter should be remanded. In particular plaintiff relies on the language “any civil action ... may be removed by the defendant,” 28 U.S.C. § 1441(a) (emphasis added). Plaintiff" }, { "docid": "8337958", "title": "", "text": "the authority to determine a motion to remand or whether a magistrate judge can only issue a report and recommendation on a motion to remand. The split in authority centers on whether a remand motion is dispositive of a case. A district court can refer to a magistrate judge for hearing and determination any matter with the exception of a matter that is dispositive of an action. [A] judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, ... to dismiss or permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. 28 U.S.C. § 636(b)(1)(A). If the matter is nondispositive, the magistrate judge enters a final order. Rule 72(a) of the Federal Rules of Civil Procedure. If a party timely objects to the magistrate judge’s order, the district court reviews the order under a clearly erroneous or contrary to law standard. Section 636(b)(1)(A); Rule 72(a). A district court may also refer to a magistrate judge any of the excepted dispositive matters listed in § 636(b)(1)(A). In that case, however, the magistrate judge issues a report and recommendation to the district court. 28 U.S.C. § 636(b)(1)(B). If a party timely objects to the report and recommendation the district court reviews the magistrate judge’s report de novo. 28 U.S.C. § 636(b)(1)(C); Rule 72(b) of the Federal Rules of Civil Procedure. A motion to remand is not specifically listed as an excepted matter in § 636(b)(1)(A). Based in part on a strict reading of the statutory language, some courts have concluded that a motion to remand is a nondispositive matter that a magistrate judge can determine. See City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss.1993); Holt v. Tonawanda Coke Corp., 802 F.Supp. 866, 868 (W.D.N.Y.1991); Doe v. The American Red Cross, 763 F.Supp. 1084, 1085 (D.Or.1991); McDonough v. Blue Cross of Northeastern Pennsylvania, 131 F.R.D. 467, 468 (W.D.Pa.1990); North Jersey" }, { "docid": "2321523", "title": "", "text": "v. Fidelity & Deposit Co., 125 F.R.D. 96, 98 (D.N.J.1988); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F.Supp. 583, 586 (D.Me.1984); see also Walker v. Union Carbide Corp., 630 F.Supp. 275, 277 (D.Me.1986) (relying on Jacobsen, supra, and reviewing order of remand under standard of clearly erroneous or contrary to law). On the other hand, at least two courts view a remand order as the equivalent of an involuntary dismissal — a dispositive matter specifically excepted from those in which a magistrate has the authority to enter a final order. Long v. Lockheed Missiles & Space Co., 783 F.Supp. 249, 250-51 (D.S.C.1992); Giangola v. Walt Disney World Co., 753 F.Supp. 148, 152 (D.N.J.1990). According to these courts, a magistrate, presented with a motion to remand, is restricted to proposing findings and recommendations for disposition by the district court. Long v. Lockheed Missiles & Space Co., 783 F.Supp. at 250-51; Giangola v. Walt Disney World Co., 753 F.Supp. at 152. It is evident that the magistrate and the district court judge in the instant case treated the motion to remand-as a nondis-positive matter within the authority of the magistrate to determine by final order. While we note the existing and conflicting caselaw on this issue, we need not enter the fray at this time for we conclude that, in any event, we lack jurisdiction over this appeal. Appellate Jurisdiction “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise [subject to an exception not applicable in this case].” 28 U.S.C. § 1447(d). The magistrate’s order remanded for lack of jurisdiction. An order remanding for lack of jurisdiction is immune from review, whether erroneous or not. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977); Volvo of Am. Corp. v. Schwarzer, 429 U.S. 1331, 1332, 97 S.Ct. 284, 285, 50 L.Ed.2d 273 (Rehnquist, Circuit Justice 1976). As noted, supra, at 12-13, the district" }, { "docid": "104117", "title": "", "text": "remedial structure of ERISA instructive.”). Finally, whether plaintiff’s allegations support the claims advanced under Pennsylvania law is not for us to determine. We determine only that ERISA’s exclusive enforcement provisions do not vindicate the same interests that the plaintiff’s state law claims seek to vindicate. In fact, ERISA could not even grant plaintiff the compensatory relief she seeks. Since plaintiff’s claim fails to fall within those “select group of claims” which ERISA completely preempts, plaintiff’s complaint is not removable under the complete preemption doctrine. C. Federal Rule of Civil Procedure 72(a) authorizes a United States Magistrate to hear and determine any pretrial matter not dispositive of a party’s claim or defense. Fed.R.Civ.P. 72(a). Congress has defined civil dispositive matters as ones for injunctive relief, judgment on the pleadings, summary judgment, class action certification, dismissal for failure to state a claim for which relief can be granted, and involuntary dismissal. 28 U.S.C. § 636(b)(1)(A). Remand to state court is neither identified by Congress as a dispositive matter nor does it dispose of a party’s claim or defense. The removal statute particularly provides that an order remanding a case to state court is not reviewable on appeal or otherwise, except in situations not relevant here. 28 U.S.C. § 1447(d). Remand merely determines that the litigation shall take place in state court rather than federal court; thus, we are authorized to enter final order remanding the matter to the state court. Accord: North Jersey Savings and Loan Ass’n v. Fidelity and Deposit Company of Maryland, 125 F.R.D. 96 (D.C.N.J.1988); Jacobsen v. Mintz, Levin, Cohn P.C., 594 F.Supp. 583 (D.Maine 1984); Acme Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26 (W.D.N.Y.1988). Either party may, however, appeal this order within 10 days to a district judge. The standard of review upon appeal is whether the magistrate’s determination is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). A party’s failure to file a timely appeal to a district judge will constitute a waiver of that party’s right to a review by a district judge. See United Steelworkers of America v. New Jersey Zinc" }, { "docid": "104108", "title": "", "text": "only under the Employee Retirement Income Security Act (“ERISA” or “Act”), 29 U.S.C. § 1001 et seq., and that plaintiff’s state law claims are preempted by ERISA. Thus, the claims present a federal question under the provisions of 28 U.S.C. § 1441(b). In support of her motion to remand, plaintiff directs us to Mooney v. Blue Cross of Western Pennsylvania, 678 F.Supp. 565 (W.D.Pa.1988). There, the district court held that no federal question jurisdiction was presented by a federal employee’s action against an insurer based on the insurer’s failure to pay claims under the Federal Employee Health Benefits Program. The court held that the claim presented a question solely of contract interpretation governed by state law, not by the provisions of the federal statute and thus, ordered remand. The facts of Mooney are clearly distinguishable from those present here and the holding is not controlling. Nevertheless, since we are faced with a question of the court’s subject matter jurisdiction, the court is obligated to make an independent determination of whether we have jurisdiction to entertain the claim. The court may even remand the action to state court sua sponte if the circumstances warrant. Mall v. Atlantic Financial Federal, 127 F.R.D. 107 (W.D. Pa.1989); Recchion v. Kirby, 637 F.Supp. 290 (W.D.Pa.1986). We conclude that the circumstances presented here warrant remand. B. Under the removal statute, 28 U.S.C. § 1441(b), absent diversity of citizenship (as in the present case) a defendant’s power to remove a state court action to federal court turns on whether the plaintiff’s claim arises under federal law within the meaning of 28 U.S.C. § 1331. La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 343-44 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94, reh. denied, 421 U.S. 1006, 95 S.Ct. 2408, 44 L.Ed.2d 674 (1975). Moreover, for both removal and original jurisdiction, the federal question must appear on the face of the complaint unaided by the answer, counterclaim or petition for removal. Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936); La Chemise Lacoste v." }, { "docid": "20156053", "title": "", "text": "because there is diversity of citizenship between Gloucester County and Honeywell and because the amount in controversy exceeds $50,000. See 28 U.S.C. § 1332. The parties are presently before the court upon plaintiff’s motion to remand its claim to the Superior Court of New Jersey. DISCUSSION There are two possible grounds upon which plaintiff’s claim can be remanded to the state court. If removal of the case from the state court was improper, then this court lacks jurisdiction over the case and must remand the entire matter back to the state court. See 28 U.S.C. § 1447(c). Even if removal was proper, this court still has the discretion to remand all matters not otherwise within its original jurisdiction. See 28 U.S.C. § 1441(c). Honeywell removed the case pursuant to 28 U.S.C. § 1441(a) and (c). Those sections provide that: (a) ... any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. (c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. There is a widespread difference of opinion among courts as to whether or not third-party defendants are entitled under these provisions to remove cases to federal courts. Numerous courts have held that third-party defendants can remove actions under § 1441(c), so long as the third-party complaint is a “separate and independent claim or cause of action, which would be removable if sued upon alone.” See, e.g., Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir.1980); Columbia Casualty Co., Inc. v. Statewide Hi-Way Safety, Inc., 94 F.R.D. 182 (D.N.J.1982); Marsh Investment Corp. v. Lang-ford," }, { "docid": "2935843", "title": "", "text": "new and extended pretrial schedule, including the period for discovery; and (v) a jury trial pursuant to Rules 38 and 39 of the Federal Rules of Civil Procedure, should the action not be remanded. Because the proposed amendments to the complaint form the centerpiece of the present motion, the Court begins its analysis there. DISCUSSION Rule 15(a) of the Federal Rules of Civil Procedure mandates that leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This is understood to mean that “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); accord Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir.1983). Amendments which effectively divest a district court of diversity jurisdiction, however, present a unique problem inasmuch as the joinder of additional non-diverse parties to a validly removed action destroys federal subject matter jurisdiction, and thereby necessitates a remand to the state court. However, it is well settled in this circuit that a district court may, in the exercise of its sound discretion, add new parties despite the fact that their citizenship will destroy diversity and require a remand. See Wilson v. Famatex GmbH, 726 F.Supp. 950, 952 (S.D.N.Y.1989); Aries Ventures Ltd. v. Axa Finance S.A., 696 F.Supp. 965, 966 (S.D.N.Y.1988); Acme Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26, 28 (W.D.N.Y.1988); McIntyre v. Codman & Shurtleff, Inc., 103 F.R.D. 619, 620-621 (S.D.N.Y.1984); Grogan v. Babson Bros. Co. of Ill., 101 F.R.D. 697, 699 (N.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209, 1213 (S.D.N.Y.1981). With that principle in mind, the Court turns to consider the application at bar. I. Proper Parties to be Joined NML argues that the only valid ground for allowing joinder of a non-diverse party and thereby compel a remand is when the additional parties are indispensable pursuant to Rule 19 of the Federal Rules of Civil Procedure. To support its position, NML cites In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642 (5th Cir. 1978)." }, { "docid": "8337959", "title": "", "text": "to law standard. Section 636(b)(1)(A); Rule 72(a). A district court may also refer to a magistrate judge any of the excepted dispositive matters listed in § 636(b)(1)(A). In that case, however, the magistrate judge issues a report and recommendation to the district court. 28 U.S.C. § 636(b)(1)(B). If a party timely objects to the report and recommendation the district court reviews the magistrate judge’s report de novo. 28 U.S.C. § 636(b)(1)(C); Rule 72(b) of the Federal Rules of Civil Procedure. A motion to remand is not specifically listed as an excepted matter in § 636(b)(1)(A). Based in part on a strict reading of the statutory language, some courts have concluded that a motion to remand is a nondispositive matter that a magistrate judge can determine. See City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss.1993); Holt v. Tonawanda Coke Corp., 802 F.Supp. 866, 868 (W.D.N.Y.1991); Doe v. The American Red Cross, 763 F.Supp. 1084, 1085 (D.Or.1991); McDonough v. Blue Cross of Northeastern Pennsylvania, 131 F.R.D. 467, 468 (W.D.Pa.1990); North Jersey Sav. & Loan Ass’n v. Fidelity & Deposit Co., 125 F.R.D. 96, 98 (D.N.J.1988); Walker v. Union Carbide Corp., 630 F.Supp. 275, 277 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F.Supp. 583, 586 (D.Me.1984). Other courts, however, have concluded that a remand order is the equivalent of an involuntary dismissal, a dispositive matter that a magistrate judge cannot determine. Long v. Lockheed Missile and Space Co., 783 F.Supp. 249, 250-51 (D.S.C.1992); Giangola v. Walt Disney World Co., 753 F.Supp. 148, 151-53 (D.N.J.1990); see also U.S. Fidelity and Guaranty Co. v. Thomas Solvent Co., 132 F.R.D. 660, 665 (W.D.Mich.1990) (motion for realignment of the parties). The City of Jackson court based its determination that a motion to remand is nondispositive on two grounds: First, a motion to remand is not specifically listed in Section 636(b)(1)(A) as a matter excepted from disposition by the magistrate judge. The statute thus expressly authorizes the magistrate judge to dispose of the motion. Second, this Court does not agree with those courts which have held that" }, { "docid": "18359786", "title": "", "text": "within any of the stated exceptions to section 636(b)(1)(A). Upon remand to state court all parties will be able to assert any claim or defense permitted in this Court. Accordingly, this Court finds that the Magistrate’s Order was non-dispositive of any claim or defense and, therefore, must be affirmed unless “clearly erroneous or contrary to law.” See Walker v. Union Carbide Corp., 630 F.Supp. 275 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glorsky, & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984); 28 U.S.C. § 636(b)(1)(A). Past precedent establishes that the Magistrate’s Order is not clearly erroneous or contrary to law. Substantial case law holds that a party may amend its pleadings even if the amendment destroys diversity jurisdiction and causes a remand to a state court. Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980); Kamunda v. Harley Davidson Motor Co., Inc., Civ. No. 84-462C (W.D.N.Y. 1986); McIntyre v. Codman and Shurtleff Inc., 103 F.R.D. 619 (S.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209 (S.D. N.Y.1981); Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980); Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978); Harper Financial Corp. v. Hanson Oil Corp., 403 F.Supp. 1405 (W.D.Tenn.1975). Amendments for non-diverse joinder have been granted where the movant complies with the specific requirements of Fed.R. Civ.P. rules 15 and 20 and where granting the motion comports with “principles of fundamental fairness.” Kamunda v. Harley Davidson Motor Co., Inc., supra, at 10; McIntyre v. Codman and Shurtleff Inc., supra, at 622; Shaw v. Munford, supra, at 1213; Desert Empire Bank v. Ins. Co. of North America, supra, at 1375. The specific requirements of rules 15 and 20 have been complied with in the instant case. Rule 15 states that leave to amend shall be “freely given when justice so requires.” Rule 20 provides for permissive joinder of defendants if the claim arises from the “same transaction” and where “[common] questions of law and fact * * * will arise in the action.” The action here concerns the same transaction—viz., a contract for the sale of electronic relay components entered into by Acme and" }, { "docid": "18359785", "title": "", "text": "determination of the issues raised by Acme’s motion to amend. Sigma objected here to the order as being beyond the authority of the Magistrate in that the granting of the motion was dispositive in that it destroyed diversity jurisdiction and required a remand to the state court. Fed.R.Civ.P. rule 72(a) authorizes a magistrate to hear and determine pre-trial motions not dispositive of a party’s claim or defense. 28 U.S.C. § 636(b)(1)(A) provides that “a magistrate [may] hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, * * *, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” Acme’s motion to add Summit as a defendant does not explictly fall within any of the stated exceptions to section 636(b)(1)(A). Upon remand to state court all parties will be able to assert any claim or defense permitted in this Court. Accordingly, this Court finds that the Magistrate’s Order was non-dispositive of any claim or defense and, therefore, must be affirmed unless “clearly erroneous or contrary to law.” See Walker v. Union Carbide Corp., 630 F.Supp. 275 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glorsky, & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984); 28 U.S.C. § 636(b)(1)(A). Past precedent establishes that the Magistrate’s Order is not clearly erroneous or contrary to law. Substantial case law holds that a party may amend its pleadings even if the amendment destroys diversity jurisdiction and causes a remand to a state court. Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980); Kamunda v. Harley Davidson Motor Co., Inc., Civ. No. 84-462C (W.D.N.Y. 1986); McIntyre v. Codman and Shurtleff Inc., 103 F.R.D. 619 (S.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209 (S.D. N.Y.1981); Soam Corp. v. Trane Co., 506" } ]

[ { "docid": "11879135", "title": "", "text": "appeal was timely, as we hold a 60-day appeal period exists in this case. However, as their complaint failed to assert a link between the Medical Center’s alleged regulatory violations and its receipt of Government funds, it did not state a violation of the False Claims Act. We therefore affirm the District Court’s dismissal of the suit. . “Qui tam actions have a long history and were used in England before the foundation of this country.” United States ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 509 (3d Cir.2007). The term “qui tam ” itself is a shortening of “the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on our Lord the King’s behalf as well as his own.' ” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 769 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Under modern practice, qui tam actions are brought by private plaintiffs on behalf of the Government in exchange for some portion of any resulting damages award. See id. at 773-74, 120 S.Ct. 1858. Rodriguez and King’s complaint also alleged that they were terminated from their employment for objecting to illegal practices in violation of New Jersey’s Conscientious Employee Protection Act, N.J. Stat Ann. § 34:19-1 et seq. The District Court declined to exercise supplemental jurisdiction over this claim when it dismissed the False Claims Act action, Rodriguez v. Our Lady of Lourdes Med. Ctr., No. 06-0129, 2006 WL 3193838, at *2 (D.N.J. Nov.l, 2006), and it is not before us. .According to the complaint, Rodriguez was assigned to work with Project H.O.P.E. (Homeless Outreach Program Enrichment), which provides health care and social services to homeless individuals and families, while King was assigned to work with Community Health Practice, which serves as a primary clinic to the uninsured working poor. . The New Jersey Pharmacy Act was repealed and replaced by the New Jersey Pharmacy Practice Act, N.J. Stat. Ann. § 45:14-40 et seq. . The District Court had jurisdiction under 28" } ]

[ { "docid": "21507985", "title": "", "text": "payment or conspire to use false claims to obtain payment from the government. See 31 U.S.C.A. § 3729 (West 2003 & Supp.2007). FCA actions against the false claimant may be brought by the government itself or by a private person (known as the “relator”) on behalf of the government. See 31 U.S.C.A. § 3730. Actions brought by a relator are known as “qui tam” actions. See Vermont Agency of Nat. Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (“Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’ ”). The government has the right to intervene in actions brought by a relator, see 31 U.S.C.A. § 3730, but a successful relator receives a share of any proceeds recovered in the action whether or not the government intervenes. See 31 U.S.C.A. §§ 3730(d)(1)-(2). “A qui tam relator [thus] is essentially a self-appointed private attorney general, and his recovery is analogous to a lawyer’s contingent fee.” United States ex rel. Milam v. University of Texas M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.1992). The FCA bars federal courts from exercising subject matter jurisdiction over certain qui tam actions. See Rockwell Int’l Corp. v. United States, — U.S.-, 127 S.Ct. 1397, 1405-06, 167 L.Ed.2d 190 (2007). The only such bar relevant to this case is the public disclosure bar, which provides that (A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. (B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on" }, { "docid": "8544385", "title": "", "text": "requested these documents. Because the law firm was unaware of Hutchins’s request for these documents when it decided to fire him, it did not retaliate against him in violation of § 3730(h) because of his “investigation” into the firm’s accounting files. Hutchins has failed to assert a prima facie case of retaliatory discharge under § 3730(h). By failing to prove that he engaged in “protected conduct” and that he put his employer on notice of the “distinct possibility” of False Claims Act litigation, Hutchins, as a matter of law, cannot prove a violation of § 3730(h). We agree with the District Court that Wilentz, Goldman & Spitzer did not terminate Hutchins in retaliation for his “investigation” in furtherance of a False Claims Act suit. V. For the foregoing reasons, we will affirm the District Court’s dismissal of Hutchins’s qui tam claims. We also will affirm its grant of summary judgment for Wilentz, Goldman & Spitzer on the retaliatory discharge claims. . United States ex rel. Hutchins v. Wilentz, Goldman & Spitzer, C.A. No. 96-5988, slip. op. at *4 (D.N.J. August 4, 1998) (“Hutchins I\") (dismissing qui tam claim). . United States ex rel. Hutchins v. Wilentz, Goldman & Spitzer, C.A. No. 96-5988, slip, op. at *15-16 (D.N.J. September 8, 1998) (\"Hutchins II”) (granting defendant summary judgment on retaliatory discharge claim). . In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (internal citations omitted), the United States Supreme Court set forth the historical foundations of the qui tam suit stating, “qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on Lord the King's behalf as well as his own.' The phrase dates from at least the time of Blackstone.” The Court further explained, Qui tam actions appear to have originated around the end of the 13th century, when private individuals who had suffered injury began bringing actions in the royal courts on both their own and the" }, { "docid": "7875328", "title": "", "text": "by Wilson that a quarter of some 30,000 bills submitted to Medicare were altered. Aflatooni’s argument rests upon cases that allow parties, who can point to specific examples of false claims, to estimate total damages by extrapolation based on proof that a defendant engaged in systematic fraud. Aflatooni relies mostly on United States v. Krizek, 192 F.3d 1024 (D.C.Cir.1999), in making this argument. Krizek, however, provides him no shelter. The court in Krizek presumed that the defendants would be liable under the False Claims Act for submitting psychiatric bills that totaled more than twenty four hours for a given day. Id. at 1026-27. The government had the Medicare/Medicaid claims in hand in Knzek but could not prove which claims put the defendants over the twenty-fourth hour. Id. at 1027-28. Quite unlike the government in Krizek, Aflatooni cannot bring forth even a single false claim from the alleged three-year period of fraud. His failure to produce evidence establishing submission of a single false claim is fatal to his action. rv The district court’s summary judgment dismissal of Aflatooni’s action is AFFIRMED. . “Qui tam\" is shorthand for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on our Lord the King's behalf as well as his own.’ ” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). In practice, the phrase means \"an action under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.” Garner, A Dictionary of Modern Legal Usage at 728 (2d ed. 1995). Practitioners and courts refer to them by the abbreviated title “qui tam.\" Qui tam actions under the False Claims Act are authorized by 31 U.S.C. § 3730(b)(1). . Under the False Claims Act, the Attorney General is served with a copy of the relator’s complaint at the time that it is filed under seal with the district court. The United States Department" }, { "docid": "8544386", "title": "", "text": "op. at *4 (D.N.J. August 4, 1998) (“Hutchins I\") (dismissing qui tam claim). . United States ex rel. Hutchins v. Wilentz, Goldman & Spitzer, C.A. No. 96-5988, slip, op. at *15-16 (D.N.J. September 8, 1998) (\"Hutchins II”) (granting defendant summary judgment on retaliatory discharge claim). . In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (internal citations omitted), the United States Supreme Court set forth the historical foundations of the qui tam suit stating, “qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on Lord the King's behalf as well as his own.' The phrase dates from at least the time of Blackstone.” The Court further explained, Qui tam actions appear to have originated around the end of the 13th century, when private individuals who had suffered injury began bringing actions in the royal courts on both their own and the Crown's behalf. Suit in this dual capacity was a device for getting their private claims into the respected royal courts, which generally entertained only matters involving the Crown’s interest. Id. at 774, 120 S.Ct. 1858 (internal citations omitted). The Court noted that in the 14th century, Parliament began enacting statutes that explicitly provided for qui tam suits. These were of two types: those that allowed injured parties to sue in vindication of their own interests (as well as the Crown's) ... and ... those that allowed informers to obtain a portion of the penally as a bounty for their information (about those who transgressed against the king) even if they had not suffered the injury themselves. Id. at 775, 120 S.Ct. 1858 (internal citations omitted). . As noted, § 3729(a)(1) provides: Any person who- (1) knowingly presents, or caused to be presented, to an officer or employee of the United States Government, or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval ... is liable...." }, { "docid": "23283769", "title": "", "text": "want of jurisdiction. All of the allegations and transactions involved in each of the counts were publicly disclosed under § 3730(e)(4)(A). Moreover, Atkinson is not an original source of any of the allegations or transactions including the defendants’ failure to record, and failure to ensure recordation, of the instruments named in the Trust Indenture. We conclude that a plaintiff/relator cannot rely solely on information available in the public domain to substantiate original source status under § 3730(e)(4)(B). Such a relator does not have direct and independent knowledge of the information that forms the basis of the FCA claim. 31 U.S.C. §§ 3730(e)(4)(A)-(B). For the above stated reasons, we will affirm the District Court’s order of dismissal of all counts, as applicable, of the Second and Third Amended Complaints. . Qui tam actions have a long history and were used in England before the foundation of this country. \"Qui tam\" is short for the Latin phrase \"qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means \"who pursues this action on our Lord the King's behalf as well as his own.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 769, n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). . 31 U.S.C. §§ 3729(a)(2)-(4), and (7) impose liability on a person or entity who does any of the following: (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved b y t h e government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; (4) has possession, custody, or control of property or money used, or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt; [or] (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an" }, { "docid": "7875329", "title": "", "text": "of Aflatooni’s action is AFFIRMED. . “Qui tam\" is shorthand for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on our Lord the King's behalf as well as his own.’ ” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). In practice, the phrase means \"an action under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.” Garner, A Dictionary of Modern Legal Usage at 728 (2d ed. 1995). Practitioners and courts refer to them by the abbreviated title “qui tam.\" Qui tam actions under the False Claims Act are authorized by 31 U.S.C. § 3730(b)(1). . Under the False Claims Act, the Attorney General is served with a copy of the relator’s complaint at the time that it is filed under seal with the district court. The United States Department of Justice is then given sixty days to evaluate the merits of the complaint and decide whether it will intervene and take over the prosecution of the civil action. 31 U.S.C. § 3730(b)(2). In this case, Aflatooni’s counsel informed us at oral argument that the government had elected not to intervene. When that occurs, the relator must unseal the complaint and serve the putative defendants. The case then proceeds as any other civil action in federal court. . Defendants filed a joint motion in this Court for fees and costs associated with this appeal. Federal Rule of Appellate Procedure 38 allows defendants to recover their appeal costs if Aflatooni's appeal is \"frivolous.” An appeal is frivolous if it is \"wholly without merit.” Amwest Mortgage Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir.1991). We cannot say that Aflatooni’s claims meet this standard, and defendants’ motion is accordingly denied. Each party shall bear its own costs and fees in this appeal." }, { "docid": "16065519", "title": "", "text": "Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: In this case, a qui tam relator alleges that his former employer and one of its subcontractors violated the False Claims Act. The relator also alleges that by suspending and ultimately firing him, the employer violated the statute’s protections for whistleblowers. The district court dismissed both claims — the false claims count for failure (among other things) to plead fraud with the particularity required by Federal Rule of Civil Procedure 9(b), and the whistleblower count pursuant to Rule 12(b)(6) for failure to state a claim. We affirm the dismissal of the false claims allegations, but because the relator has stated a claim under the more liberal pleading rules that govern whistleblower allegations, we reverse the district court’s dismissal of that claim and remand for further proceedings. I. A plaintiff, either an individual or the United States, may state a claim under the False Claims Act (“FCA”) by alleging that a defendant “knowingly ma[de], use[d], or cause[d] to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(2). FCA violators are liable for civil penalties and treble damages, id. § 3729(a), and private individuals, known as “relators,” may bring civil actions in the United States government’s name, id. § 3730(b)(1). The government may opt to take over the suit, but if (as here) it declines to do so, the relator may elect to proceed and collect a significant percentage of any recovery. Id. §§ 3730(b)(4), (d). Cases brought under the FCA áre known as qui tam actions, an abbreviation of the Latin phrase, “qui tam pro domino rege quam pro se ipso in hac parte sequitwr — or, “who pursues this action on our Lord the King’s behalf as well as his own.” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 1860 n. 1, 146 L.Ed.2d 836 (2000). The False Claims Act contains a “whis-tleblower” provision to protect qui tam relators," }, { "docid": "3208924", "title": "", "text": "any public disclosure to qualify as an “original source.” McKenzie, 123 F.3d at 942 (adopting the approach of United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 690 (D.C.Cir.1997)). Here, Walburn filed his 1996 action long before he filed his sealed qui tam action with the government on May 25, 2000. Walburn’s failure to report his allegations of fraud to the federal government before filing his 1996 suit precludes him from enjoying original source status. Jones, 160 F.3d at 335 n. 7. Thus, his qui tam action is barred under 31 U.S.C. § 3730(e)(4). IV. Because the district court lacked jurisdiction under 31 U.S.C. § 3730(e)(4), its dismissal of Walburn’s complaint is affirmed. . \"Qui tam\" is part of the longer Latin phrase \"qui tam pro domino rege quam pro se ipso in hac parte sequitur,\" which means \"who pursues this action on our Lord the King’s behalf as well as his own.\" Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 769 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). . The size of the bounty varies, but can be as high as thirty percent of the proceeds of a successful suit. 31 U.S.C. § 3730(d). . We analyze Walburn's First Amended Complaint as it was the last complaint to have been filed in the district court. Walburn’s subsequent amended complaints were tendered to the district court but never filed. . Section 3729(a) provides, in relevant part: Any person who— (1)knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; [or] ... (7) knowingly makes, uses, or causes to be made or used, a false record or statement" }, { "docid": "22430727", "title": "", "text": "authority); but see Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170-73 (4th Cir.1981) (invalidating agency regulation under E.O. 11,246 because no statutory grant of congressional authority). . Moreover, courts have also rejected third-party beneficiary claims pursuant to agreements between the government and contractors as an attempt to circumvent the lack of a private cause of action in Executive Order 11,246. Brug, 45 F.Supp.2d at 41 (citations omitted). . Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur. Vennont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 769 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836. This English translation of this phrase means he “who pursues this action on our Lord the King’s behalf as well as his own.” Id. There are three other qui tam statutes that remain in the United States Code: 25 U.S.C. § 81 (cause of action and share of recovery against a person contracting with Indians in an unlawful manner); 25 U.S.C. § 201 (cause of action and share of recovery against a person violating Indian protection laws); 35 U.S.C. § 292(b) (cause of action and share of recovery against a person falsely marking patented articles). Id. . The termination of the plaintiff's employment appears to have been initiated in the United States, as evidenced by the termination letter from the defendant’s Chief Financial Officer who works at the defendant’s main office in Washington, D.C. See Compl. Ex. D. . 31 U.S.C. § 3729(a) states that an individual is liable under the FCA for committing the following acts: (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly maltes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent" }, { "docid": "9867831", "title": "", "text": "v. United States ex rel. Stevens, 529 U.S. 765, 768, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). “Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hoc parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’ ” Id. at 768 n. 1, 120 S.Ct. 1858. In modern practice, “qui tam actions are brought by private plaintiffs on behalf of the Government in exchange for some portion of any resulting damages award.” Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 299 n. 1 (3d Cir.2008). Those private plaintiffs are referred to as “relators.” United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 242 (3d Cir.2004). Under the False Claims Act, any person is liable to the United States government for a civil penalty who: (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid.... 31 U.S.C. § 3729(a) (emphasis added). Because the word “presents” is missing from §§ 3729(a)(2) and (a)(3), there has been significant debate about whether there is a “presentment” requirement in those subsections. For example, in United States ex rel. Totten v. Bombardier Corp., the D.C. Circuit held that §§ 3729(a)(2) and (a)(3) do require direct presentment to the federal government. 380 F.3d 488 (D.C.Cir.2004); see also United States ex rel. DRC, Inc. v. Custer Battles, LLC, 472 F.Supp.2d 787, 790 (E.D.Va.2007) (endorsing Totten’s holding that § 3729(a)(2) requires presentment); United States ex rel. Atkins v. McInteer, 345 F.Supp.2d 1302, 1304-05 (N.D.Ala.2004) (holding that § 3729(a)(3) requires presentment). However, in United States ex rel. Sanders v. Allison Engine Co., the Sixth" }, { "docid": "21835133", "title": "", "text": "States.” Spay, 2015 WL 5582553, at *8. .Spay, 2015 WL 5582553, at *15. . In 2006-2007, Caremark served as a PBM for 39 different Part B Sponsors. . \"Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’ ” Vt. Agency of Nat Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768 n.1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (citation omitted). A qui tam lawsuit is a private enforcement action under the False Claims Act where the private party bringing the suit referred to as the “relator.\" U.S. ex rel. Eisenstein v. City of N.Y., 556 U.S. 928, 932, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009) (citation omitted). . Specifically, Spay alleged that Caremark failed to comply with 42 C.F.R. § 423.505(k), which requires, as a condition for payment, that Part D Sponsors certify the “accuracy, completeness, and truthfulness of all data related to payment.” . \"When a relator initiates [a qui tam] action, the United States is given 60 days to review the- claim and decide whether it will ‘elect to intervene and proceed with the action.’ ” Eisenstein, 556 U.S. at 932, 129 S.Ct. 2230 (quoting 31 U.S.C. §§ 3730(b)(2), (b)(4)). . Spay ‘ also moved for partial summary judgment, which was denied in its entirety. . The District Court did not address Care-mark’s additional arguments for why Spay’s dummy Prescriber ID claim failed: (1) the dummy Prescriber IDs were not deceptive and, therefore, not \"false;” (2) Spay could not prove the \"knowledge” element; and (3) Care-mark did not make a false certification. Spay, 2015 WL 5582553, at *23. . Id. at *23-*25. . Id. at *24. . Id. (citing U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 951 (10th Cir. 2008); United States v. Southland Mgmt. Corp., 326 F.3d 669, 683-84 (5th Cir. 2003) (en banc) (Jones, J., concurring); U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 289 (4th Cir. 2002); U.S." }, { "docid": "11868420", "title": "", "text": "from pursuing the claim only because the government has decided to intervene. This statutory requirement to provide a hearing does not, by its own terms, apply when the government does not yet have “primary responsibility for prosecuting the ' action.” 31 U.S.C. § 3730(c)(1). No statutory provision requires that a district court provide a relator with an evidentiary hearing when the government has filed a motion to dismiss the relator’s claim for lack of jurisdiction. Moreover,, no federal court has ever found that an evidentiary hearing is required for ruling on a motion to dismiss a qui tam action on the grounds that it is barred by the FCA’s first-to-file and public disclosure provisions. Accordingly, we conclude that the district court did not abuse its discretion by failing to conduct such a hearing. IV. CONCLUSION For the foregoing reasons, the judgment of the district court dismissing Poteet’s qui tam action is AFFIRMED. . Qui tam is short for the Latin phrase qui tam pro domino rege quam pro si ipso in hac parte sequitur, which means \"who pursues this action on our Lord the King’s behalf as well as his own.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); accord Black’s Law Dictionary 1282 (8th ed.2004). . The real name of this relator is not publicly available information as the Doe complaint remains under seal. . The Anti-Kickback statute provides that: Whoever knowingly and willfully solicits or receives [or offers or pays] any remuneration (including any kickback, bribe or rebate) directly, or indirectly, overtly, or covertly, in cash or in kind ... in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program ... shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both. 42 U.S.C. §§ 1320a-7b(b)(l)(A) &" }, { "docid": "22430726", "title": "", "text": "Cir.1981) (holding that E.O. 11,246 is firmly rooted in congressionally delegated authority); United States v. New Orleans Pub. Service Inc., 553 F.2d 459, 467-68 (5th Cir.1977) (identifying three sources of legislative authorization for E.O. 11,246), vacated on other grounds by 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978); Farmer v. Philadelphia Elec. Co., 329 F.2d 3 (3d Cir.1964) (suggesting that the Federal Property and Administrative Services Act of 1949 (\"FPASA”) was the authority for predecessors of E.O. 11,246), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967); Contractors Ass'n E. Pa. v. Secretary of Labor, 442 F.2d 159, 174-75 (3d Cir.1971) (holding that E.O. 11,246 is authorized by the broad grant of procurement authority with respect to Titles 40 and 41); Farkas v. Tex. Instrument, Inc., 375 F.2d 629 (5th Cir.1967) (holding generally that Congress granted the President the necessary authority to enact anti-discrimination executive orders under the FPASA); S. III. Builders Ass’n v. Ogilvie, 327 F.Supp. 1154, 1161 (S.D.Ill.1971) (assuming that E.O. 11,246 is properly rooted in congressionally delegated authority); but see Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170-73 (4th Cir.1981) (invalidating agency regulation under E.O. 11,246 because no statutory grant of congressional authority). . Moreover, courts have also rejected third-party beneficiary claims pursuant to agreements between the government and contractors as an attempt to circumvent the lack of a private cause of action in Executive Order 11,246. Brug, 45 F.Supp.2d at 41 (citations omitted). . Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur. Vennont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 769 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836. This English translation of this phrase means he “who pursues this action on our Lord the King’s behalf as well as his own.” Id. There are three other qui tam statutes that remain in the United States Code: 25 U.S.C. § 81 (cause of action and share of recovery against a person contracting with Indians in an unlawful manner); 25 U.S.C." }, { "docid": "16065520", "title": "", "text": "record or statement to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(2). FCA violators are liable for civil penalties and treble damages, id. § 3729(a), and private individuals, known as “relators,” may bring civil actions in the United States government’s name, id. § 3730(b)(1). The government may opt to take over the suit, but if (as here) it declines to do so, the relator may elect to proceed and collect a significant percentage of any recovery. Id. §§ 3730(b)(4), (d). Cases brought under the FCA áre known as qui tam actions, an abbreviation of the Latin phrase, “qui tam pro domino rege quam pro se ipso in hac parte sequitwr — or, “who pursues this action on our Lord the King’s behalf as well as his own.” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 1860 n. 1, 146 L.Ed.2d 836 (2000). The False Claims Act contains a “whis-tleblower” provision to protect qui tam relators, who are often either current or former employees of FCA defendants. See 31 U.S.C. § 3730(h). In particular, the statute protects those who suffer retaliation because of their conduct “in furtherance of an action under [the FCA].” Id. Appellee Martin-Baker Aircraft manufactures Naval Aircrew Ejection System (“NACES”) seats for U.S. Navy aircraft. Appellee Teledyne Technologies, a Martin-Baker subcontractor, produces the “NACES sequencer,” an electronic component of the ejection seat. Martin-Baker sells the seats to the Navy in production batches known as “lots.” For each lot, Martin-Baker negotiates the price of the sequencer with Teledyne and then negotiates the price of the entire ejection seat with the Navy. Pursuant to the Federal Acquisition Regulations (“FAR”), which require government contractors to certify that “to the best of [their] knowledge and belief, the cost or pricing data [are] accurate, complete, and current as of the date of agreement on price,” Teledyne had to certify to Martin-Baker the accuracy of the data for the sequencer, and Martin-Baker had to certify the same to the Navy for the ejection seat" }, { "docid": "21507984", "title": "", "text": "the district court concluded that for various reasons, each of Wilson’s claims failed on the merits. The district court therefore granted summary judgment in favor of the defendants, but the court later denied the defendants’ requests for attorneys’ fees. See 31 U.S.C.A. § 3730(d)(4) (authorizing award of attorneys’ fees to prevailing defendants in qui tarn action where the government does not intervene if the court concludes the action “was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment”). II. The False Claims Act (the “FCA”) was enacted “during the Civil War in response to overcharges and other abuses by defense contractors, ... [with the expectation that it] would help the government uncover fraud and abuse by unleashing a posse of ad hoc deputies to uncover and prosecute frauds against the government.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999) (internal quotation marks omitted). The FCA imposes civil liability (including treble damages and a fine of up to $10,000) on persons who knowingly submit false claims to the government for payment or conspire to use false claims to obtain payment from the government. See 31 U.S.C.A. § 3729 (West 2003 & Supp.2007). FCA actions against the false claimant may be brought by the government itself or by a private person (known as the “relator”) on behalf of the government. See 31 U.S.C.A. § 3730. Actions brought by a relator are known as “qui tam” actions. See Vermont Agency of Nat. Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (“Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’ ”). The government has the right to intervene in actions brought by a relator, see 31 U.S.C.A. § 3730, but a successful relator receives a share of any proceeds recovered in the action whether or not the government intervenes. See 31 U.S.C.A. §§ 3730(d)(1)-(2). “A qui tam" }, { "docid": "2795801", "title": "", "text": "dismiss the common law claims against MWI. IV. CONCLUSION For the foregoing reasons, the court grants the plaintiffs motion to file a surreply, grants defendant Eller’s motion for summary judgment, denies the defendants’ joint motion for summary judgment and grants in part the plaintiffs cross-motion for partial summary judgment. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 6th day of November, 2007. . Qui tam is a convenient short hand for the phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “who pursues this action on our Lord the King’s behalf as well as his own.” Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 769 n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). . Eller spares one sentence to assure the court that “the issue raised in the surreply does not warrant additional briefing.” Def. Eller’s Response to Gov’t’s Mot. for Leave to File a SurReply (“Def. Eller’s Response”) at 1. A “single conclusory sentence,” however, cannot substitute for a properly raised argument. Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 869 (D.C.Cir.2001). . In fact, Eller raised this defense in his answer and in two discovery interrogatories to the government seeking ''[a]ll documents referring or related to the United States' investigative files in this case, including but not limited to reports of interviews.'' Def. Eller's Reply at 3, Gov’t’s Resp. to Defs.’ Req. for Doc. No. 18. At that time, the government withheld responses to both interrogatories, citing the investigative files privilege. Id.; Gov’t's Opp’n to Def.'s Mot. to Compel (Sept. 22, 2005) at 7 n. 5. The defendant filed a motion to compel which the court denied, concluding that, because Eller now had access to the relator’s materials, he had not demonstrated a substantial need sufficient to override the government's claim of privilege. Mem. Order (Nov. 14, 2005) at 5-7. . The government also notes that the Nigerian sales equaled 400% of MWI's annual revenue and that Eller made several trips to the Caribbean to deposit large duffel bags of" }, { "docid": "18144972", "title": "", "text": "professional advice when preparing his 2003 tax return. See also Bachmann v. Commissioner, supra (taxpayer was a sophisticated banker who should have sought advice on tax treatment of receipt of large arbitration award). Moreover, petitioner’s claimed authority for his position was a footnote from a case that reached a holding directly adverse to his position. See Roco v. Commissioner, supra. Petitioner’s position was neither persuasive nor reasonable. Given his experience, knowledge, and education, petitioner has failed to meet his burden of proving the reasonable cause exception to the accuracy-related penalty. Consequently, we hold that petitioner is liable for the accuracy-related penalty with respect to the $5.25 million net proceeds of the qui tarn payment. The Court has considered all other arguments made by the parties and, to the extent we have not addressed them herein, we consider them moot, irrelevant, or without merit. On the basis of the foregoing, Decision will be entered under Rule 155. Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code (Code), as amended. Respondent has conceded that petitioner is not liable for the sec. 6651(a) delinquency addition to tax. “Qui tam” is an abbreviation of the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur”, which means “who pursues this action on our Lord the King’s behalf as well as his own.” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000). The individual who brings the qui tam suit on behalf of the Government is known as the relator. 31 U.S.C. sec. 3730(b) (2006); Vt. Agency of Natural Res. v. United States ex rel. Stevens, supra at 769. For a discussion of the history of qui tam actions, see Vt. Agency of Natural Res. v. United States ex rel. Stevens, supra at 774-777. The record is unclear whether the Dec. 6, 2004, assessment was abated before the notice of deficiency was sent on June 14, 2007. Petitioner does not contend that sec. 7491(a) should" }, { "docid": "9867830", "title": "", "text": "this decision, the consultants asked this Court to summarily affirm the District Court’s dismissal of this case. We denied the motion. II. The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order granting the consultants’ motion to dismiss. Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). When reviewing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), we accept as true all wellpled factual allegations in the complaint and all reasonable inferences that can be drawn from them, and we affirm the order of dismissal only if the pleading does not plausibly suggest an entitlement to relief. Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 321-22 (3d Cir.2008). III. Originally enacted in 1863, the FCA is the most frequently used of a handful of current laws creating a form of civil action known as “qui tam.” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). “Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hoc parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’ ” Id. at 768 n. 1, 120 S.Ct. 1858. In modern practice, “qui tam actions are brought by private plaintiffs on behalf of the Government in exchange for some portion of any resulting damages award.” Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 299 n. 1 (3d Cir.2008). Those private plaintiffs are referred to as “relators.” United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 242 (3d Cir.2004). Under the False Claims Act, any person is liable to the United States government for a civil penalty who: (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United" }, { "docid": "18144973", "title": "", "text": "references are to the Internal Revenue Code (Code), as amended. Respondent has conceded that petitioner is not liable for the sec. 6651(a) delinquency addition to tax. “Qui tam” is an abbreviation of the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur”, which means “who pursues this action on our Lord the King’s behalf as well as his own.” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000). The individual who brings the qui tam suit on behalf of the Government is known as the relator. 31 U.S.C. sec. 3730(b) (2006); Vt. Agency of Natural Res. v. United States ex rel. Stevens, supra at 769. For a discussion of the history of qui tam actions, see Vt. Agency of Natural Res. v. United States ex rel. Stevens, supra at 774-777. The record is unclear whether the Dec. 6, 2004, assessment was abated before the notice of deficiency was sent on June 14, 2007. Petitioner does not contend that sec. 7491(a) should apply to shift the burden of proof to respondent, nor did he establish that it should apply to the instant case. The Court of Appeals for the Eleventh Circuit has adopted as binding precedent the caselaw of the former Court of Appeals for the Fifth Circuit, as of Sept. 30, 1981. Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981). Absent stipulation to the contrary, any appeal of the instant case would be to the Court of Appeals for the Eleventh Circuit. The Tax Court follows the law of the circuit in which an appeal would lie if that law is on point. Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971). The American Jobs Creation Act of 2004, Pub. L. 108-357, sec. 703, 118 Stat. 1546, amended sec. 62(a) to allow an adjustment from gross income for attorney’s fees paid by, or on behalf of a taxpayer in connection with a claim under the FCA. However, the adjustment is applicable only to fees and costs paid" }, { "docid": "21835132", "title": "", "text": "the government. IV. CONCLUSION For the foregoing reasons, we will affirm the District Court’s order granting summary judgment in favor of Defendants. . The False Claims Act, and the qui tam actions they give rise to, are explained in more detail below. . The Medicare Part D program was enacted as part of the Medicare Modernization Act of 2003 and began on January 1, 2006. 42 U.S.C. § 1395w-101(a)(2). . \"On March 22, 2007, Caremark Rx LLC merged with CVS Corporation to form Defendant CVS Caremark Corporation. The Defendants are various subsidiaries of Defendant CVS Caremark Corporation.” U.S. ex rel. Spay v. CVS Caremark Corp., No. 09-4672, 2015 WL 5582553, at *3 (E.D. Pa. Sept. 22, 2015). . 42 C.F.R. §§ 423.265, 315. . 42 C.F.R. § 423.343. . Medicare Program; Medicare Prescription Drug Benefit, 70 Fed. Reg, 4194, 4307 (Jan. 28, 2005) (to be codified at 42 C.F.R. pt. 423). . \"In 2006-2007, few prescribers used, the NPI since there was no universal form of Prescriber ID issued to all prescribers in the United States.” Spay, 2015 WL 5582553, at *8. .Spay, 2015 WL 5582553, at *15. . In 2006-2007, Caremark served as a PBM for 39 different Part B Sponsors. . \"Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’ ” Vt. Agency of Nat Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768 n.1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (citation omitted). A qui tam lawsuit is a private enforcement action under the False Claims Act where the private party bringing the suit referred to as the “relator.\" U.S. ex rel. Eisenstein v. City of N.Y., 556 U.S. 928, 932, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009) (citation omitted). . Specifically, Spay alleged that Caremark failed to comply with 42 C.F.R. § 423.505(k), which requires, as a condition for payment, that Part D Sponsors certify the “accuracy, completeness, and truthfulness of all data related to payment.”" } ]

[ { "docid": "22467630", "title": "", "text": "467 (8th Cir.1985). And, finally, we reject appellants’ contention that they are not citizens of the United States, but rather “Free Citizens of the Republic of Minnesota” and, consequently, not subject to taxation. See United States v. Kruger, 923 F.2d 587, 587-88 (8th Cir.1991) (rejecting similar argument as “absurd”). The government requests that we assess $1,500 in sanctions against appellants for bringing this frivolous appeal based on discredited, tax-protestor arguments. Because the arguments appellants advance for reversal are clearly lacking in merit and frivolous, we grant the government’s motion for $1,500 in sanctions pursuant to 28 U.S.C. § 1912 and Federal Rule of Appellate Procedure 38. See United States v. Carter, 988 F.2d 68, 69-70 (8th Cir.1993) (per curiam) (“As the arguments raised in this appeal are frivolous, and we have many times so held, we award a sanction in the form of damages in the amount of $1500 against appellants.”); Kruger, 923 F.2d at 588 (“Because this appeal is utterly frivolous, the government’s motion for sanctions in the amount of $1,500 is granted.”). Accordingly, we affirm the district court’s judgment and grant the government’s motion for sanctions in the amount of $1,500. . The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota." } ]

[ { "docid": "13675926", "title": "", "text": "judicial lien, as well as the Order Vacating Order Avoiding Judicial Liens As To Fairway Only entered on August 21, 2001 are AFFIRMED. Furthermore, we find this appeal to be frivolous under Fed. R. Bankr.P. 8020, and, that the imposition of sanctions is warranted. The Panel imposes sanctions against Maloni and in favor of Fairway in the amount of $3,591.00 for attorneys’ fees and costs incurred prior to oral argument, and imposes additional attorneys’ fees and costs incurred to argue the appeal. . Rule 60 of the Fed.R.Civ.P. applies in cases under the Bankruptcy Code pursuant to Rule 9014 of the Federal Rules of Bankruptcy Procedure (\"Fed. R. Bankr.P.”). . Attorneys’ fees incurred by Fairway's counsel prior to oral argument. See Exhibit D of Appellee’s Motion for Sanctions. . 11 U.S.C. § 522(f). .The court estimated Fairway’s lien in the amount of $10,000.00, finding that the exact amount owed as of the date of the filing was irrelevant. We agree. The difference will not affect the conclusion that there was equity because Maloni owned the whole property. . Snyder v. Rockland Trust Company (In re Snyder), 249 B.R. 40 (1st Cir. BAP 2000), aff'd, 2 Fed.Appx. 46, 2001 WL 227336 (1st Cir. March 02, 2001). . In re Patenaude, 259 B.R. 481 (Bankr.D.Mass.2001). . Fed. R.App. P. 38 provides that: If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. . The record shows that on December 7, 2001, Fairway's counsel sent a letter to Malo-ni's counsel contending that the appeal was frivolous, and requesting its dismissal or a revision of the Appellant’s Brief. On December 12, 2001, Maloni's counsel rejected Fairway's proposal. See Exhibits B and C of Appellee’s Motion for Sanctions. Fairway’s Motion for Sanctions was filed on December 27, 2001." }, { "docid": "22996647", "title": "", "text": "long-defunct arguments invites sanctions. Sanctions on pro se litigants are appropriate if they were warned, as Stearman was, that their claims are frivolous and if they were aware of “ample legal authority holding squarely against them.” Stelly v. Comm’r, 761 F.2d 1113, 1116 (5th Cir.1985) (per curiam) (“Although a court can demand a higher degree of responsibility from members of the bar, litigants cannot be treated as free to advance frivolous claims merely because they appear without counsel.”)- Because Stearman explicitly questions the wisdom of the Tello cases in his brief, he must have been aware that the Tello cases rejected the theories that he advanced as patently frivolous. We accordingly grant the motion for sanctions of $6,000 for pursuing a frivolous appeal pursuant to 26 U.S.C. § 7482(c)(4), 28 U.S.C. § 1912, and Federal Rule of Appellate Procedure 38. Moreover, because the sanctions imposed by the Tax Court (cumulatively $25,000) did not deter Stearman from pursuing the same frivolous arguments on appeal, we impose sua sponte an additional sanction of $6,000. See 28 U.S.C. § 1912; Fed. R.App. P. 38. As pointed out in Coghlan, 852 F.2d at 808 & n. 1, “there is no question that the courts of appeals have the ability to impose sanctions sua sponte.” As we warned in Stelly, 761 F.2d at 1115-16, sanctions greater than reasonable attorney’s fees and double costs may “be imposed under appropriate circumstances.” In Stoecklin v. Comm’r, 865 F.2d 1221 (11th Cir.1989), for example, the court doubled sua sponte the amount of lump-sum appellate sanctions requested by the Commissioner because the circumstances indicated that higher damages were appropriate. The extraordinary circumstances of this case indicate that greater sanctions are called for. Stearman knew that this court had dismissed similar arguments as frivolous in the Tello cases, as shown by Stear-man’s offensive insinuations with respect to this court’s alleged lack of preparation in those cases. He was also warned by the Tax Court that his arguments are frivolous. Yet on appeal, rather than explaining why the Tax Court committed error, Stearman restated the myriad of claims with which he inundated" }, { "docid": "15061763", "title": "", "text": "the magistrate judge’s scheduling order established for res judicata purposes that the district court had jurisdiction over her appeal, and (2) the bankruptcy court lacked jurisdiction to issue orders concerning the seizure of her real property. Appellant has misconstrued the magistrate judge’s order and authority, as well as the doctrine of res judicata. Her challenge to the district court’s decision is clearly frivolous, and we affirm. Her challenge to the bankruptcy court’s decision that her real property was part of the bankruptcy estate was concluded in a prior appeal and does not warrant further discussion here. Appellee has moved for this court to impose sanctions against appellant for filing a frivolous appeal, and for repeatedly filing frivolous papers related to this bankruptcy case in various courts. “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. Fed. R.App. P. 38. The fact that Ms. Haworth is a pro se litigant does not prohibit the court from imposing sanctions. See Stafford v. United States, 208 F.3d 1177, 1177, 1178-79 (10th Cir.2000). This appeal has no arguable merit and is frivolous. Ms. Haworth was placed on notice that appellee was seeking sanctions. She had an opportunity to respond and chose to go forward with the appeal, presenting no good faith argument for reversing the district court’s judgment and, in fact, acknowledging that she was challenging matters that have already been concluded. See Aplt. Reply Br. at 1-2. Therefore, we grant appellee’s motion for sanctions pursuant to Rule 38 and will award double costs. In addition, we caution Ms. Haworth that continued filing of frivolous actions or pleadings containing arguments already ruled upon in prior litigation will result in restrictions upon her ability to proceed pro se in the federal courts of this circuit. Appellee’s motion to dismiss this appeal as untimely is denied. Appellee incorrectly relies on 28 U.S.C. § 158(c)(2), which applies to bankruptcy appeals to the district court. Appellee has cited" }, { "docid": "3736673", "title": "", "text": "the manner herein accomplished.” We hold that the imposition of additions to tax under § 6653(a) was proper. VII. The Commissioner urges us to assess sanctions against appellants. The Federal Rules of Appellate Procedure authorize us to award “just damages and single and double costs to the appellee” when an appeal is frivolous. Fed.R.App.P. 38. We find that such sanctions are appropriate here. “Not only have the courts repeatedly rejected arguments similar to those offered by appellants, but they have imposed sanctions- for frivolous [appeals] in precisely this sort of case. See, e.g., [Mone v. Commissioner, 774 F.2d 570, 575-76 (2d Cir.1985)].” Pollard, supra, 786 F.2d at 1067. VIII. To summarize: We dismiss for lack of jurisdiction the appeal from the Tax Court’s decision determining a deficiency in Douglas’ federal income tax for the 1982 tax year and imposing additions to tax under §§ 6651(a), 6653(a) and 6654. In the 1980-1981 tax deficiency case, we hold that the Tax Court properly denied appellants’ motion for a continuance on the ground that the issue of whether the IRS discriminatorily enforces its rules is irrelevant. We also hold that appellants received the relevant income as principals and not as agents of the churches because the churches did not control appellants' use of the funds purportedly turned over to them and that therefore these sums are not exempt from federal income taxation. We further hold that appellants are not entitled to any charitable deductions because part of the sums given to the churches inured to the benefits of appellants and the members of their family. We further hold that the Tax Court correctly sustained the Commissioner’s determination of deficiencies in appellants’ income tax for the 1980 and 1981 tax years and that the additions to tax imposed under § 6653(a) are appropriate. Finally, we direct appellants to pay to ap-pellee double costs and $5,000 attorneys’ fees (damages) in this frivolous appeal. Dismissed in part and affirmed in part, with double costs and $5,000 attorneys’ fees (damages) assessed against appellants in this frivolous appeal. . Unless otherwise stated, all statutory citations in this opinion" }, { "docid": "19944712", "title": "", "text": "Id. We hold that the arguments Mr. Wheeler raised in his opening brief are frivolous for the reasons stated by the Tax Court. In addition, issues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived, and we will not consider the arguments Mr. Wheeler raised for the first time in his reply brief. See Hill v. Kemp, 478 F.3d 1236, 1250 (10th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 873, 169 L.Ed.2d 725 (2008), — U.S. -, 128 S.Ct. 884, 169 L.Ed.2d 725 (2008). III Because we are affirming the Tax Court’s decision, we have discretion to award the Commissioner “just damages for his delay, and single or double costs.” 28 U.S.C. § 1912; see Casper v. Comm’r, 805 F.2d 902, 906 (10th Cir.1986). And because this appeal is frivolous, we have discretion to require Mr. Wheeler to pay “a penalty” to the Commissioner, see 26 U.S.C. § 7482(c)(4), and we may award the Commissioner “just damages and single or double costs,” Fed. R.App. P. 38; see Casper, 805 F.2d at 906. This court also “has the inherent power to impose sanctions to regulate the docket, promote judicial efficiency and to deter frivolous filings.” Casper, 805 F.2d at 906. The fact that Mr. Wheeler is appearing pro se does not insu late him from the imposition of sanctions. See id. Although the Commissioner filed a separate motion for sanctions in accordance with Rule 38, we are unpersuaded that he has adequate factual support for the $8,000 lump sum he requests under any of the authorities upon which he relies. Therefore, the motion is denied. The Tax Court’s decision is AFFIRMED. The Commissioner’s motion for sanctions is DENIED. . All active circuit judges agree that to the extent Casper v. Commissioner, 805 F.2d 902, 906 (10th Cir.1986), purports to require a $1,500 sanction for a frivolous appeal from a Tax Court decision, it is overruled." }, { "docid": "19598348", "title": "", "text": "Inc. , 579 F.3d 787, 798 (7th Cir. 2009). We find no fault with the district court's order suspending Nora from practice in the Western District of Wisconsin. C. Further Appellate Sanctions We must also resolve HSBC's appellate motion for additional sanctions. This court may \"award just damages and single or double costs to the appellee\" when it deems an appeal frivolous. FED. R. APP. P. 38. Such sanctions are discretionary and appropriate where an appellant simply repeats previously rejected, frivolous arguments or pursues an appeal to harass their adversary. Arnold v. Villarreal , 853 F.3d 384, 389 (7th Cir. 2017). Nora's arguments almost entirely regurgitate points she pressed before the bankruptcy court, which the district court concluded were frivolous. As we have explained to Nora previously, \"Sanctions are warranted under Rule 38 when a litigant or attorney presents appellate arguments with no reasonable expectation of success for the purposes of delay, harassment, or sheer obstinacy.\" In re Nora , 778 F.3d at 665. That aptly describes Nora's present appeals. Not only were Nora's arguments on the merits frivolous, she also engaged in meritless and dilatory motion practice before this court. She moved to stay these appeals pending our ruling on a frivolous motion to strike that she filed. When we denied that motion, Nora immediately filed an equally frivolous motion to reconsider. Similarly, Nora submitted four separate \"Requests for Judicial Notice,\" needlessly clogging this court's motion docket. She continued to lodge these requests, even after this court issued an opinion detailing why they were unnecessary and improper. In re Appeals of Nora , 905 F.3d at 497 (7th Cir. 2018). We find Nora's appeals to have been frivolous and grant HSBC's motion for attorneys' fees and costs. HSBC requested $2,150.00 for attorneys' fees and $446.00 for costs in its motion. Although such figures appear reasonable, HSBC has not submitted an affidavit or other evidentiary record to support them. See Arnold , 853 F.3d at 389 (directing moving party to \"submit an affidavit and supporting papers specifying the damages\" incurred); Flip Side Prod., Inc. v. Jam Prod., Ltd. , 843" }, { "docid": "1677213", "title": "", "text": "district court finds that “the case was removed improvidently and without jurisdiction” and that the language of section 1447(c) does not require bad faith as a precondition to an award of costs. C. Appellate Sanctions Under Rule 38 NTI also seeks sanctions against the City for bringing a frivolous appeal. “If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.” Fed.R.App.P. 38. “A frivolous appeal is one which ‘involves legal points not arguable on their merits.’ ” Olympia Co., Inc. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir.1985) (citation omitted); see also Hagerty v. Succession of Clement, 749 F.2d 217, 221-23 (5th Cir.1984) (imposing frivolous appeal sanctions on both the litigant and counsel), cert. denied,—U.S.-, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985); 28 U.S.C. § 1912 (authorizing award of damages and double costs to party prevailing on appeal if a decision of a lower court is affirmed), cited and quoted in Olympia, supra, at 893 n. 3; 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure: Jurisdiction § 3984, at 463-66 (1977); id. at 369-81 (Supp.1986). We find that Rule 38 sanctions are appropriate in this appeal and direct appellant to pay appellee’s costs on appeal as well as appellee’s reasonable appellate attorneys’ fees in an amount determined by the district court following our remand of this case. See, e.g., Stelly v. Commissioner, 804 F.2d 868, 870-72 (5th Cir.1986) (noting court of appeals may remand for a determination of the amount of attorneys’ fees or itself fix the amount thereof based on information filed with the appellate court). II. We hold that the district court correctly determined that this case was not removable under section 1443, and accordingly its remand is affirmed. We vacate the district court’s decision not to impose sanctions on appellant, and remand to the district court both for reconsideration of sanctions respecting the removal proceedings below applying the standards of Rule 11 and section 1447(c), and to determine the amount of reasonable attorneys’ fees incurred" }, { "docid": "11877738", "title": "", "text": "several states.’ ” (citations omitted)). Federal Rule of Appellate Procedure 38 provides that “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R.App. P. 38. The government separately filed a motion for sanctions, which gave Morse a full opportunity to respond. His response was simply to reassert his frivolous arguments. In Hyslep v. United States, 765 F.2d 1083 (11th Cir.1985), we stated that “those who would litigate in this circuit are put on notice that they may be expected to have sanctions imposed against them if they continue to raise these sorts of frivolous contentions.” Id. at 1084-85. While we are reluctant to impose sanctions on pro se litigants, Woods v. IRS, 3 F.3d 403, 404 (11th Cir.1993), we have imposed sanctions on pro se litigants in certain situations, see King v. United States, 789 F.2d 883, 884 (11th Cir.1986) (imposing sanctions on a pro se litigant who was warned that his claims were mer-itless); see also Bonfiglio v. Nugent, 986 F.2d 1391, 1394-94 (11th Cir.1993) (imposing sanctions on a pro se litigant who was also an attorney); Pollard v. Comm’r, 816 F.2d 603, 605 (11th Cir.1987) (imposing sanctions on a pro se litigant who had previously brought frivolous tax claims). Because Morse’s arguments are frivolous and he had been warned about raising them, we conclude that sanctions are appropriate. In order to determine the amount of sanctions, we direct the government to file within fourteen days of the date of this opinion a supplement to its motion setting forth its costs, the time records of its attorneys, and appropriate affidavits establishing reasonable hourly rates for those attorneys. Morse may file a response to this supplement within seven days from the date he is served with the supplement. We will issue a separate order setting the amount of the sanction. AFFIRMED; MOTION FOR SANCTIONS GRANTED. . This Court has held that decisions of Unit B of the former Fifth" }, { "docid": "1677212", "title": "", "text": "11 permits a district court — either on a party’s motion or sua sponte — to award costs and attorneys’ fees against a party or attorney, or both, for filing a “pleading, motion, [or] other paper of a party” that is not “well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,” or if it is “interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Rule 11 also imposes upon the attorney signing a party’s pleadings, motions, and other papers the duty of reasonable inquiry and permits sanctions even in the absence of bad faith. Accordingly, because it appears that the district court may have applied an improper threshold standard to sanctions under Rule 11, we vacate the decision not to impose sanctions and remand to allow the district court to reconsider this decision. We also observe that section 1447(c) permits an award of “just costs” if the district court finds that “the case was removed improvidently and without jurisdiction” and that the language of section 1447(c) does not require bad faith as a precondition to an award of costs. C. Appellate Sanctions Under Rule 38 NTI also seeks sanctions against the City for bringing a frivolous appeal. “If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.” Fed.R.App.P. 38. “A frivolous appeal is one which ‘involves legal points not arguable on their merits.’ ” Olympia Co., Inc. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir.1985) (citation omitted); see also Hagerty v. Succession of Clement, 749 F.2d 217, 221-23 (5th Cir.1984) (imposing frivolous appeal sanctions on both the litigant and counsel), cert. denied,—U.S.-, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985); 28 U.S.C. § 1912 (authorizing award of damages and double costs to party prevailing on appeal if a decision of a lower court is affirmed), cited and quoted in Olympia, supra, at 893 n. 3; 16 C." }, { "docid": "14235107", "title": "", "text": "the district court and will be disturbed only where the court abuses its discretion. Mars Steel Corp. v. Cont’l Bank N.A., 880 F.2d 928, 933 (7th Cir.1989). For the same reasons we affirmed the district court’s denial of fees under § 1988, we affirm its decision to decline Rule 11 sanctions. Moreover, the defendants fail to identify the specific pleadings or filings that they contend violated Rule 11(b). This provides another reason to affirm the district court’s exercise of discretion in this case. C. Rule 38 Sanctions However, the defendants’ request for Rule 38 sanctions is a different matter. “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R.App. P. 38. “Under Rule 38, we must first determine if the appeal is frivolous, and if we find it is, we have discretion to award sanctions or decline to do so.” Smeigh v. Johns Manville, Inc., 643 F.3d 554, 565 (7th Cir.2011) (citation omitted). “An appeal is frivolous when the result is obvious or when the appellant’s argument is wholly without merit.” Id. (quotation and citation omitted). “When an appeal rehashes positions that the district court properly rejected, or when it presents arguments that are lacking in substance and ‘foreordained’ to lose, the appeal is frivolous.” Berwick Grain Co. v. Ill. Dep’t of Agric., 217 F.3d 502, 505 (7th Cir.2000) (citations omitted). Cooney’s appeal is just such an appeal. She merely reargues the arguments that the district court properly rejected. And she does so despite the district court’s clear warning that her complaint teetered on the line separating the frivolous from the meritless. Although Springer may preclude a finding that the district court abused its discretion here, it provides ample support for an award of sanctions under Rule 38. There, after affirming the district court’s denial of fees and costs, we said: [W]e are not at all sympathetic to the [plaintiffs’] appeal. They have never been able to point to" }, { "docid": "22297259", "title": "", "text": "are wholly without merit.” Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir.1987) (quotation omitted). In appeal number 08-2034, Mr. Ford has repeated his arguments made to the district court without any showing that the district court erred. Furthermore, he has provided no reasoned argument or evidence that the Form 4340 failed to provide the necessary information or that he was entitled to a writ of mandamus. His arguments in appeal number 08-2121 were either rejected in Ford I, or are so patently without merit to be frivolous. Accordingly, we conclude that the results in both appeals are obvious, that Mr. Ford’s arguments are wholly without merit, and that these appeals were brought to delay further the collection of his federal income tax liability. E. Monetary Sanctions and Filing Restrictions (1) Monetary Sanctions The IRS has filed a motion for sanctions in appeal number 08-2034, requesting $8,000 to compensate it for attorney fees expended, arguing that the appeal is frivolous. This court has the power to award just damages and single or double costs if the court “determines that an appeal is frivolous” or brought for purposes of delay. Fed. R.App. P. 38; 28 U.S.C. § 1912; accord Stafford v. United States, 208 F.3d 1177, 1179 (10th Cir.2000). Mr. Ford has had notice and an opportunity to respond, as required by Braley, 832 F.2d at 1514. He has responded, but he has not objected to the amount requested. In support of its request for attorney fees, the IRS has filed a declaration documenting $9,661.63 in attorney fees expended in this matter, but has modified its request to $8,000. Having held that the appeal is frivolous, we conclude that under these circumstances just damages are $8,000, and we award that amount to the IRS. We expressly note that this award is not meant to establish a presumptive or flat-fee sanction to be used in all frivolous tax appeals. (2) Filing Restrictions “Federal courts have the inherent power to regulate the activities of abusive litigants by imposing carefully tailored restrictions in appropriate circumstances.” Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir.2007)." }, { "docid": "22284962", "title": "", "text": "be used as a substitute for an appeal. Benny v. Pipes, 799 F.2d 489, 494 (9th Cir.1986), as amended, 807 F.2d 1514 (9th Cir.1987), petition for cert, filed (June 9, 1987). McCarthy’s contention regarding the exclusion of the affidavit is nothing more than dissatisfaction with a ruling of the court. As such, it would be appropriate for appellate review as opposed to Rule 60(b) relief. See Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982) (legal error alone does not warrant Rule 60(b) relief). Moreover, Rule 60(b)(2) addresses “newly discovered evidence which by due diligence could not have been discovered____” McCarthy’s motion dealt with evidence that had been in existence for years. He gave no explanation of why it had not been discovered earlier. We find no abuse of discretion in the court’s denial of the 60(b) motion. 6. Sanctions The government defendants seek attorney’s fees on appeal. We may award attorney’s fees and single or double costs to the prevailing party when an appeal is frivolous. See Fed.R.App.P. 38; 28 U.S.C. §§ 1912, 1927; Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.1985). Title 42 U.S.C. § 1988 also allows an award of attorney fees to prevailing defendants in an action brought under 42 U.S.C. § 1983 when the action is groundless, without foundation, frivolous, or unreasonable. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). An appeal is frivolous when the result is obvious and the arguments on appeal wholly lack merit. Grimes v. Commissioner, 806 F.2d 1451 (9th Cir.1986). An appeal that lacks merit is not necessarily frivolous. Id. at 1454. Not all of the issues raised by McCarthy were completely without substance. We reject the request for sanctions. AFFIRMED. . We have jurisdiction to consider an appeal from the June 17 judgment because McCarthy’s timely Rule 59(e) motion tolled the time period for filing a notice of appeal. Fed.R.App.P. 4(a)(4); Beaudry. Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 753 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986);" }, { "docid": "3040474", "title": "", "text": "made no effort to discover any such evidence. Since Sánchez has failed to point to any evidence that AT & T’s reasons for disciplining him were merely a pretext for religious discrimination, we affirm the district court’s grant of summary judgment to AT & T on the retaliation claim. III. Sanctions AT & T has moved for sanctions against Sánchez and/or his lawyers on the ground that Sánchez’s appeal brief to this Court “grossly misstates” the record regarding the discovery proceedings before the district court. Sánchez has not responded to AT & T’s motion. AT & T requests sanctions under Fed. R.App. P. 38 and under 28 U.S.C. § 1927. Under Fed. R.App. P. 38, “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” An appeal is frivolous “if the result is obvious or the arguments are wholly without merit.” Pimentel v. Jacobsen Fishing Co., Inc., 102 F.3d 638, 640 (1st Cir.1996) (citations and quotations omitted) (emphasis in original). In addition, “[although Rule 38 speaks in terms of frivolousness, we have awarded costs and attorneys’ fees pursuant to it for ‘what can only be characterized as blatant misrepresentations in appellant’s brief.’ ” Thomas v. Digital Equip. Corp., 880 F.2d 1486, 1491 (1st Cir.1989) (quoting Ortiz Villafane v. Segarra, 797 F.2d 1, 2 (1st Cir.1986)). Under 28 U.S.C. § 1927: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. We have held that filing a frivolous appeal qualifies as “unreasonably and vexatiously multiplying] the proceedings.” See Cruz v. Savage, 896 F.2d 626, 635 (1st Cir.1990). Sánchez’s appeal was clearly not frivolous. Sánchez’s arguments were not completely meritless, even though they were ultimately unsuccessful. Thus, we will not" }, { "docid": "3220687", "title": "", "text": "the’ nature and extent of the written trust documents to which should be relied upon in the further administration of the trust and eventual distribution thereof.” Petition to Construe Trust ¶ 14. It appears that eleven of the twelve defendants in this case will be affected to varying degrees by the court’s interpretation of the trust, as each was named as a beneficiary at one point in the trust’s much-altered existence. Thus, on the face of the pleadings, none of the defendants are dispensable, as they all were at one time beneficiaries to the trust. Determining which beneficiaries, if any, are dispensable requires an evaluation of the case on the merits by the district court. Accordingly, the district court did not err in denying Waugh’s motion to dismiss the other defendants in this case. IV. As a final matter, we address Horton’s motion for sanctions against Waugh. Horton requests that this court impose sanctions for damages and costs against Waugh under Fed. R.App. P. 38, which governs frivolous appeals and provides in relevant part that “[i]f a court of appeals determines that an appeal is frivolous, it may ... award just damages and single or double costs to the appellee.” Horton asserts that Waugh’s motion for removal to state court and motion to dismiss were without merit because mandatory authority dictated the case could not be removed. Our court has stated that an appeal is frivolous “when the result is obvious or when the appellant’s argument is wholly without merit.” Newhouse v. McCormick & Co., Inc., 130 F.3d 302, 305 (8th Cir. 1997) (citing Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 184 (7th Cir. 1985)). We have also observed that “sanctions are appropriate where an appeal challenges district court decisions that are unquestionably supported by the great weight of the evidence and wholly in conformance with applicable law.” First Commercial Trust Co. v. Colts Mfg. Co., Inc., 77 F.3d 1081, 1084 (8th Cir.1996) (citation and quotation omitted). We first observe that Waugh’s motion to remove was arguably defective from the outset due to his failure to join all" }, { "docid": "6637669", "title": "", "text": "with the Contempt Order was not an abuse of its discretion. III. NHF’S MOTION FOR SANCTIONS NHF has moved for sanctions against appellants under Federal Rule of Bankruptcy Procedure 8020, arguing that the appeals presently before the Court are frivolous as argued. A. Standard of Review Federal Rule of Bankruptcy Procedure 8020 provides that “[i]f a district court ... determines that an appeal from an order ... of a bankruptcy judge is frivolous, it may, after a separately filed motion ... award just damages and single or double costs to the appellee.” Fed. R. Bankr.P. 8020. “Because the language of Bankruptcy] Rule 8020 is materially identical to Fed. R.App. P. 38, the sanctions provision for the filing of frivolous appeals in the Court of Appeals, the standard for imposing sanctions is similar.” In re Prop. Movers, L.L.C., 31 Fed.Appx. 81, 83 (4th Cir.2002) (citing Pettey v. Belanger, 232 B.R. 543, 548 (D.Mass.1999)). A court considering a motion for sanctions for the filing of a frivolous appeal must “first determine that the appeal is frivolous, and then determine that this is an appropriate case for the imposition of sanctions.” In re Prop. Movers, 31 Fed.Appx. at 84 (citing Williams v. United States Postal Service, 873 F.2d 1069, 1075 (7th Cir.1989)). An appeal is frivolous where “the result is obvious or when the appellant’s argument is wholly without merit.” Id. (internal quotation marks omitted). A finding of frivolity is appropriate where an appellant cites no relevant cases in response to a lower court’s accurate exposition of the law, and where an appellant’s arguments are irrelevant to the issues in dispute. Id. It is particularly appropriate to hold not only the appellant, but also his attorney, liable for a sanctions award when the frivolity of an appeal is premised not only on the filing of the appeal but also on the type of arguments used to support it. Dungaree Realty, Inc. v. United States, 30 F.3d 122, 124-25 (Fed.Cir.1994). Sanctions for the filing of a frivolous appeal are appropriate because “they compensate the prevailing party for the expense of having to defend a" }, { "docid": "22051135", "title": "", "text": "costs to the appellee” if the court has determined that an appeal is “frivolous.” Fed. R.App. P. 38. However, such sanctions may only be imposed “ ‘after a separately filed motion or notice from the court.’ ” Great American Ins. Co. v. M/V Handy Laker; 348 F.3d 352, 354 (2d Cir. 2003) (per curiam) (quoting Fed. R.App. P. 38). “Since neither of those measures has been taken in this case,” we refuse to award sanctions to State Street Bank pursuant to Rule 38. Id. We also conclude that sanctions would not be appropriate under 28 U.S.C. § 1927. Section 1927 authorizes the imposition of sanctions only “when there is a finding of conduct constituting or akin to bad faith.” Sakon v. Andreo, 119 F.3d 109, 114 (2d Cir.1997). “We have held that an award under [section] 1927 is proper when the attorney’s actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” In re 60 East 80th Street Equities, 218 F.3d 109, 115 (2d Cir.2000) (citations and internal quotation marks omitted). Although certain actions taken by defendants’ counsel approach the borders of this standard, particularly with respect to his arguments on appeal pertaining to fraud and fraud on the court, we are ultimately unpersuaded that he articulated various arguments in these consolidated appellate proceedings in bad faith. Hence, sanctions would not be justified under 28 U.S.C. § 1927. Under these circumstances, we also decline to sanction the defendants or their counsel in accordance with our inherent authority to do so. See Sakon, 119 F.3d at 114. CONCLUSION For the foregoing reasons, we affirm the district court’s denials of the motions the defendants brought pursuant to the provisions of Rule 60(b). We also deny the defendants’ motion to certify certain issues pertaining to the merits of their tortious interference counterclaim to the New York Court of Appeals. . This figure does not include the interest payments that also were awarded in the default judgment. . In this respect, Comercial e Inmobiliaria Unimarc S.A., Pesquera Nacional S.A., Cidef" }, { "docid": "22051134", "title": "", "text": "long thereafter, the defendants brought their first motion to vacate the default judgment. Although they litigated that motion for many months, the defendants failed to argue that the default judgment was void for any reason related to the district court’s award of damages. Instead, the defendants advanced such an argument for the first time in the second Rule 60(b) motion they filed in February 2003. Under these circumstances, we conclude that the district court properly denied their Rule 60(b)(4) motion as untimely. D. Sanctions State Street Bank asks us to sanction the defendants as well as their counsel for re-litigating many of the unsuccessful arguments they articulated in their Rule 60(b) motions in the proceedings below. The bank suggests that we should impose sanctions pursuant to either Rule 38 of the Federal Rules of Appellate Procedure, 28 U.S.C. § 1927, or our inherent authority to do so. We begin by noting that sanctions would not be justified under Rule 38. That provision allows a court of appeals to award “just damages and single or double costs to the appellee” if the court has determined that an appeal is “frivolous.” Fed. R.App. P. 38. However, such sanctions may only be imposed “ ‘after a separately filed motion or notice from the court.’ ” Great American Ins. Co. v. M/V Handy Laker; 348 F.3d 352, 354 (2d Cir. 2003) (per curiam) (quoting Fed. R.App. P. 38). “Since neither of those measures has been taken in this case,” we refuse to award sanctions to State Street Bank pursuant to Rule 38. Id. We also conclude that sanctions would not be appropriate under 28 U.S.C. § 1927. Section 1927 authorizes the imposition of sanctions only “when there is a finding of conduct constituting or akin to bad faith.” Sakon v. Andreo, 119 F.3d 109, 114 (2d Cir.1997). “We have held that an award under [section] 1927 is proper when the attorney’s actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” In re 60 East 80th Street Equities, 218 F.3d" }, { "docid": "11877737", "title": "", "text": "moved for sanctions against Morse for maintaining a frivolous appeal, contending that the issues raised by Morse on appeal are frivolous and that he had been warned about raising them. Before the district court and again on appeal, Morse has contended that the IRS lacked authority to issue the summons on the ground that he is not a taxpayer and his income, which was derived from employment in the private sector, is not subject to federal taxation. In its amended order enforcing the summons, the district court warned Morse that his arguments that the IRS lacked power to issue a summons and to investigate him were “utterly without merit,” and this Court has long held that this type of argument is frivolous, see Madison, 758 F.2d at 574 (“The assertion that the Treasury Department and Internal Revenue Service have no power over this appellant and this subject matter is frivolous. Congress has the power to lay and collect taxes and may ‘lay and collect taxes on income, from whatever source derived, without apportionment among the several states.’ ” (citations omitted)). Federal Rule of Appellate Procedure 38 provides that “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R.App. P. 38. The government separately filed a motion for sanctions, which gave Morse a full opportunity to respond. His response was simply to reassert his frivolous arguments. In Hyslep v. United States, 765 F.2d 1083 (11th Cir.1985), we stated that “those who would litigate in this circuit are put on notice that they may be expected to have sanctions imposed against them if they continue to raise these sorts of frivolous contentions.” Id. at 1084-85. While we are reluctant to impose sanctions on pro se litigants, Woods v. IRS, 3 F.3d 403, 404 (11th Cir.1993), we have imposed sanctions on pro se litigants in certain situations, see King v. United States, 789 F.2d 883, 884 (11th Cir.1986) (imposing sanctions on a" }, { "docid": "3220688", "title": "", "text": "“[i]f a court of appeals determines that an appeal is frivolous, it may ... award just damages and single or double costs to the appellee.” Horton asserts that Waugh’s motion for removal to state court and motion to dismiss were without merit because mandatory authority dictated the case could not be removed. Our court has stated that an appeal is frivolous “when the result is obvious or when the appellant’s argument is wholly without merit.” Newhouse v. McCormick & Co., Inc., 130 F.3d 302, 305 (8th Cir. 1997) (citing Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 184 (7th Cir. 1985)). We have also observed that “sanctions are appropriate where an appeal challenges district court decisions that are unquestionably supported by the great weight of the evidence and wholly in conformance with applicable law.” First Commercial Trust Co. v. Colts Mfg. Co., Inc., 77 F.3d 1081, 1084 (8th Cir.1996) (citation and quotation omitted). We first observe that Waugh’s motion to remove was arguably defective from the outset due to his failure to join all defendants as required by our court’s interpretation of 28 U.S.C. § 1446. Further, as noted earlier, Waugh’s argument that Horton waived his right to have the case remanded by failing to file a remand motion ignores the fact that Horton demonstrated that Missouri defendants had been served within the thirty day window to file a remand motion in accordance with the district court’s order, which arguably obviated Horton’s need to file said motion. Overlooking these defects, Waugh’s appeal rested on the premise that our court might overturn Hurt in light of contrary views expressed by other circuits. Although there are grounds for us to conclude that Waugh’s appeal challenged a district court decision that was “wholly in conformance with applicable law,” given the disagreements among the circuits regarding the nature of the forum defendant rule violations, we decline to impose sanctions under Fed. R.App. P. 38. . The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri. . The twelfth defendant is named in the trust because he was" }, { "docid": "6648101", "title": "", "text": "stated, “Without a vicarious liability hook or evidence to establish criminal intent, Smeigh’s conversion claim fails.” Smeigh v. Johns Manville, Inc., No. 1:09-cv-0414, 2010 WL 3781492, at *10 (S.D.Ind. Sept. 22, 2010). We similarly conclude that Smeigh, who arguably may have had a claim arising in negligence for the loss of his property, see Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 82-84 (Ind.Ct.App.1996) (finding genuine issue of material fact on bailment claim where employees left their tools at employer’s premises and they were stolen), cannot make out a claim for criminal conversion. JM contends that Smeigh’s conversion claim is frivolous and seeks sanctions pursuant to Rule 38 of the Federal Rules of Appellate Procedure. We agree that his claim is frivolous, but for the reasons stated below, we decline to award monetary damages to JM. Rule 38 states: “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R.App. P. 38. Under Rule 38, we must first determine if the appeal is frivolous, and if we find it is, we have discretion to award sanctions or decline to do so. In re Bagdade, 334 F.3d 568, 581 (7th Cir.2003). “An appeal is frivolous when the result is obvious or when the appellant’s argument is wholly without merit.” Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 642 (7th Cir.2002) (quotations omitted). “Pursuing a frivolous appeal invites sanctions, including just damages, which we may impose in our considered discretion.” Id. “Sanctions are appropriate if the appellant merely restates arguments properly rejected by the district court that are unsupported by a reasoned colorable argument for altering the district court’s judgment.” Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir.1993). We have held that “the combination of frivolous legal arguments ... and frivolous factual arguments” may warrant sanctions. In re Bagdade, 334 F.3d at 581 (citation omitted). Smeigh did not address any of the district court’s well-reasoned explanations for dismissing his" } ]

[ { "docid": "16638117", "title": "", "text": "longer must look at the likelihood of future harm before deciding whether to grant an injunction under the ESA.” Id. at 1511 (internal citations omitted). In addition to these precedents, reason dictates that plaintiffs make a showing that the particular injunction they request is necessary to prevent irreparable harm caused by the defendants’ violation of the ESA. It could not be the case that any time defendants are found liable for a significant violation of the ESA’s procedural provisions, the plaintiffs are entitled to any form of injunctive relief that they request. Indeed, “injunctive relief must be tailored to remedy the specific harm alleged.” NRDC v. Winter 508 F.3d 885, 886 (9th Cir.2007). As a practical matter, the court must decide what irreparable harms are likely to occur to the species in order to craft an appropriately tailored injunction. Here, plaintiff is only entitled to an injunction that prevents irreparable harm caused by defendants’ violation of the Endangered Species Act. Thus, even if a showing of irreparable harm was not necessary for an injunction to issue, such a showing is required in order to justify the specific measures that plaintiffs’ request. Accordingly, the court holds that plaintiff must show that irreparable harm to the listed species will result from defendants’ violation of the ESA in the absence of each measure plaintiffs request. iii. Adequacy of Remedies at Law In environmental cases, it is presumed that remedies at law are inadequate. “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Cal. ex rel. Lockyer v. United States Dep’t of Agric., 575 F.3d 999 (9th Cir.2009). B. Plaintiffs’ Requested Relief Plaintiffs argue that, given the current degraded condition of the population of the three protected species of fish, injunctive relief is necessary to prevent irreparable harm to those species. A species’ condition is measured using four criteria: abundance, productivity, spatial structure, and genetic or life history diversity. Plaintiffs provide evidence that the population of all three fish at issue suffer from low abundance. In addition, the" } ]

[ { "docid": "16638112", "title": "", "text": "resulted from defendants’ liable conduct. Having already determined that the defendants are liable for a violation of the ESA, there is no need for the court to evaluate plaintiffs’ likelihood of success on the merits. The court will therefore look at the following factors to determine whether interim injunctive measures are appropriate in this case: whether the measures are necessary to prevent irreparable injury; whether remedies available at law are inadequate to compensate for that injury; whether the balance of hardships weigh in favor of injunctive relief; and whether the public interest would be served by the injunction. i. The Balance of Hardships and the Public Interest Under the Endangered Species Act, the third and fourth factors always tip in favor of protecting the species. Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (“Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.”). Thus, “the balance of hardships and the public interest tip heavily in favor of endangered species. We may not use equity’s scales to strike a different balance.” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987). In this case, the parties agree that Monsanto’s holding that the four-factor test applies to injunctions issued to remedy violations of the National Environmental Policy Act (“NEPA”) does not undo Congress’ conclusion that, under the ESA, the balance of hardships and the public interest factors tip towards protecting the species. Fed. Defs.’ Remedy Brief 7:3-5; Pis.’ Remedy Brief 5:26-6:3. Indeed, the Court could not undo Congress’ command in this regard. Accordingly, the court finds that the balance of hardships and the public interest factors support granting injunctive relief in this case. ii. Irreparable Injury Plaintiffs, however, take their argument a step further by urging that the standard of review under ESA also differs from the traditional analysis for injunctions in that no showing of irreparable harm is required when there is a substantial procedural violation of the ESA in connection with a federal project. Pis.’" }, { "docid": "16638119", "title": "", "text": "chinook population’s productivity is in decline, and its spatial distribution is low. Plaintiffs argue that against this backdrop, the Englebright and Daguerre dams and related operations put the species in jeopardy of extinction while the new BiOp is being produced. This position is consistent with the July Order, which held that the BiOp was arbitrary and capricious because it concluded that the project’s unmitigated effects would not jeopardize the species, without first concluding that the species was in a stable condition. Plaintiff argues that nine remedial measures are necessary to improve the species’ chances of survival while a new BiOp is prepared. The defendants argue generally that the measures are unnecessary to prevent irreparable harm. Because plaintiff is entitled to injunctive relief only insofar as it prevents irreparable harm caused by defendants’ violation of the ESA, the court analyzes each of the plaintiffs’ requested measures in relation to the deficiencies that the court found in the BiOp. Although the court did not reach any conclusions as to what findings a properly conducted BiOp might reach, the court did note some areas of deficiency upon which it based its conclusion that the issuance of the BiOp was arbitrary and capricious. The court analyzes the plaintiffs’ requested measures in that context. That is, the measures must bear some relation to the deficiencies in the BiOp for which the court held that the defendants were liable for a violation of the ESA. However, because of the BiOp’s failure to produce the data and analysis necessary to determine what measures, precisely, are needed in order to avoid jeopardizing the listed species, it is impossible for the court to tailor a remedy that goes no further than the bare minimum needed to protect the species. Since the irreparable harm that the court is obligated to prevent is jeopardy to the very survival of the species, the court will err on the side of a more protective injunction. Plaintiffs’ burden is also slightly diminished since the project is currently operating pursuant to a BiOp that this court found to be inadequate. Under the ESA, “take” of" }, { "docid": "16638118", "title": "", "text": "issue, such a showing is required in order to justify the specific measures that plaintiffs’ request. Accordingly, the court holds that plaintiff must show that irreparable harm to the listed species will result from defendants’ violation of the ESA in the absence of each measure plaintiffs request. iii. Adequacy of Remedies at Law In environmental cases, it is presumed that remedies at law are inadequate. “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Cal. ex rel. Lockyer v. United States Dep’t of Agric., 575 F.3d 999 (9th Cir.2009). B. Plaintiffs’ Requested Relief Plaintiffs argue that, given the current degraded condition of the population of the three protected species of fish, injunctive relief is necessary to prevent irreparable harm to those species. A species’ condition is measured using four criteria: abundance, productivity, spatial structure, and genetic or life history diversity. Plaintiffs provide evidence that the population of all three fish at issue suffer from low abundance. In addition, the chinook population’s productivity is in decline, and its spatial distribution is low. Plaintiffs argue that against this backdrop, the Englebright and Daguerre dams and related operations put the species in jeopardy of extinction while the new BiOp is being produced. This position is consistent with the July Order, which held that the BiOp was arbitrary and capricious because it concluded that the project’s unmitigated effects would not jeopardize the species, without first concluding that the species was in a stable condition. Plaintiff argues that nine remedial measures are necessary to improve the species’ chances of survival while a new BiOp is prepared. The defendants argue generally that the measures are unnecessary to prevent irreparable harm. Because plaintiff is entitled to injunctive relief only insofar as it prevents irreparable harm caused by defendants’ violation of the ESA, the court analyzes each of the plaintiffs’ requested measures in relation to the deficiencies that the court found in the BiOp. Although the court did not reach any conclusions as to what findings a properly conducted BiOp might reach," }, { "docid": "16638108", "title": "", "text": "of Review for Injunctive Relief under the ESA As a preliminary matter, the parties disagree sharply as to the standard of review to be applied for issuing an injunction under the Endangered Species Act. In particular, the parties have differing views with respect to the necessity of showing irreparable harm. Plaintiffs argue that under the ESA, an injunction may issue absent a showing of irreparable harm if there is a substantial violation of ESA’s procedural requirements. Pis.’ Remedy Brief 6. Alternatively, plaintiffs argue that if a showing of irreparable harm is required, the burden is on the defendants to show that no irreparable harm will occur absent the injunction. Pis.’ Remedy Brief 7. Additionally, plaintiffs argue that the listed species will suffer irreparable harm absent injunctive relief. Id. at 7. Defendants argue that a showing of irreparable harm is always required in order to obtain an injunction, including under the ESA. The parties discuss the standard for granting injunctive relief under the ESA without distinguishing between the standard for preliminary versus permanent relief. Typically, “a prehminary injunction is effective pendente lite until a decision has been reached on the merits,” whereas “a permanent injunction will issue only after a right thereto has been established at a trial on the merits.” 11A Wright & Miller, Federal Practice and Procedure § 2941 (2d ed.1995). Courts evaluating injunctive relief in environmental cases have also conflated the two types of injunctions. In Monsanto, the Court reviewed the preliminary injunction granted by the district court in Geertson Farms, Inc. v. Johanns, 2007 WL 776146, 2007 U.S. Dist. LEXIS 21491 (N.D.Cal.2007), but recited the four-factor test for permanent injunctions: “A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a" }, { "docid": "23209422", "title": "", "text": "ordering an analysis of the cumulative impacts prior to the individual site-specific analysis. Intervenors reiterate these arguments and also contend that the district court improperly included the west side packers in the injunctive relief order. A district court has “broad latitude in fashioning equitable relief when necessary to remedy an established wrong.” Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir.2000)(internal quotation marks omitted). The traditional bases for injunctive relief are irreparable injury and inadequacy of legal remedies. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). In issuing an injunction, the court must balance the equities between the parties and give due regard to the public interest. Id. “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.” Id. at 545, 107 S.Ct. 1396. a. Irreparable Injury In the NEPA context, irreparable injury flows from the failure to evaluate the environmental impact of a major federal action. Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985). While an injunction does not automatically issue upon a finding that an agency violated NEPA, “the presence of strong NEPA claims gives rise to more liberal standards for granting an injunction.” American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir.1983). If environmental injury is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment. Amoco, 480 U.S. at 545, 107 S.Ct. 1396. The record is abundantly clear that not only is environmental injury to the wilderness areas “likely,” but that injury continued unabated until the injunctive relief order was issued. The district court found that there was sufficient evidence to link commercial packstock with injury to environmentally sensitive areas and a reduction in the population of sensitive species. The record clearly supports the likelihood of continued injury absent adequate protective measures. The district court balanced the environmental and economic concerns raised by the commercial packers’ continued operation in the wilderness areas. The district court" }, { "docid": "16638120", "title": "", "text": "the court did note some areas of deficiency upon which it based its conclusion that the issuance of the BiOp was arbitrary and capricious. The court analyzes the plaintiffs’ requested measures in that context. That is, the measures must bear some relation to the deficiencies in the BiOp for which the court held that the defendants were liable for a violation of the ESA. However, because of the BiOp’s failure to produce the data and analysis necessary to determine what measures, precisely, are needed in order to avoid jeopardizing the listed species, it is impossible for the court to tailor a remedy that goes no further than the bare minimum needed to protect the species. Since the irreparable harm that the court is obligated to prevent is jeopardy to the very survival of the species, the court will err on the side of a more protective injunction. Plaintiffs’ burden is also slightly diminished since the project is currently operating pursuant to a BiOp that this court found to be inadequate. Under the ESA, “take” of listed species is prohibited, ESA § 9(a); 16 U.S.C § 1538(a), and a project may not operate if it will result in take. Once a valid BiOp determines that the project poses no jeopardy to the survival, “incidental take” is permitted if it is “in compliance with the terms and conditions specified in a written incidental take statement.” ESA § 7(o )(2); 16 U.S.C § 1536(o )(2). The ITS functions to immunize the Corps for otherwise-prohibited take of listed species. In this case the Corps already determined that the project was likely to affect the three listed species. This determination triggered an obligation on the part of the Corps to seek a BiOp and ITS. In cases where a BiOp relating to a new project has been found to be inadequate, a court could enjoin the new project entirely. See e.g., Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). In this case, plaintiffs do not seek to enjoin operation of the South Yuba dams entirely. Without suggesting that such an injunction would have been granted," }, { "docid": "21391915", "title": "", "text": "Marine Fisheries Serv., 2005 WL 1278878, at *22-32 (D.Or. May 26, 2005) (listing some of the scientific sources considered by the District Court of Oregon during National Wildlife Federation’s years of protracted litigation). A full review of the “Columbia basin salmon saga” demonstrates that the district court’s decades-long efforts to analyze the evidence of irreparable harm has resulted in judicial frustration and “status quo dam operations [that] largely continue to inflict high salmon mortalities” even “over two decades after a determination that more than a dozen species of Pacific salmonids require ESA protection.” Michael C. Blumm & Aurora Paulsen, The Role of the Judge in ESA Implementation: District Judge James Redden and the Columbia Basin Salmon Saga, 32 Stan. Envtl. L.J. 87, 148 (2013) (examining a “paradigmatic example of the limits of judicial review to effectuate real improvements in complex natural resources cases” despite' active managerial efforts by the district court). The outcome of National Wildlife Federation is a good example justifying Thomas ’s holding that an injunction to protect endangered species and their critical habitat must come first. Thomas’s holding remains one of the best guarantors of positive outcomes for threatened and endangered species. Because I would follow settled precedent and protect the Canada Lynx and its critical habitat first, I would apply Thomas v. Peterson rather than finding it to be implicitly overturned as the majority does. Thus, I would grant Appellant’s request for an injunction pending compliance with the ESA’s Section 7 consultation requirements. . The majority opinion also discusses South Yuba River Citizens League, 804 F.Supp.2d 1045, another ESA case involving the effect of dams on endangered salmon and other fish species, to demonstrate the ability of a district court to \"address the evidence of harm and the relief requested, and grant[] an injunction to address the harm established by the evidence.” Maj. op. at 1091. But a careful reading of South Yuba River finds that Thomas provided a critical function in that case, offering the district court a solid foundation for an injunction even when the \"data and analysis necessary to determine what measures, precisely," }, { "docid": "12730176", "title": "", "text": "violation” at issue in Thomas was the Forest Service’s failure to prepare a biological assessment to determine the potential effects of construction of a logging road and related timber sales on the endangered Rocky Mountain Gray Wolf. In holding that an injunction pending compliance with the ESA was the proper remedy, the Thomas Court relied on a line of prior Ninth Circuit NEPA cases for the proposition that “irreparable damage is presumed to flow from a failure to properly evaluate the environmental impact of a major federal action.” Thomas, 753 F.2d at 764 (citing Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984) and Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir.1975)). The Thomas Court reasoned that “the strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions.” Id. (emphasis original). The Court concluded that if a project is allowed to proceed without substantial compliance with those procedural requirements, “there can be no assurance that a violation of the ESA’s substantive provisions will not result.” Id. Because such a result would be “impermissible” under the ESA, the Thomas Court squarely rejected the district court’s holding that the “party asserting a violation [of section 7] of the Endangered Species Act has the burden of showing the proposed action would have some prohibited effect on an endangered species or its critical habitat” in order to be. entitled to injunctive relief. Id. at 764-65. Rather, the Thomas Court pointed out that under section 7: Congress has assigned to the agencies and to the Fish and Wildlife Service the responsibility for evaluation of the impact of agency actions on endangered species, and has prescribed procedures for such evaluation. Only by following the procedures can proper evaluations be made. It is not the responsibility of plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed. Id. at 765 (emphasis added). Accordingly, the Thomas" }, { "docid": "21391890", "title": "", "text": "law under NEPA, noting that “[t]he procedural requirements of the ESA are analogous to those of NEPA....” 753 F.2d at 764. We then acknowledged in the NEPA context, we had held that because “fijrreparable damage is presumed to flow from a failure properly to evaluate” environmental impacts of an agency action, an injunction is typically the appropriate remedy for a Section 7 violation. Id. (citing Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984); Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir.1975)). Critical to our discussion here was our holding that “[w]e see no reason that the same principle should not apply to procedural violations of the ESA.” Id. In so holding, we explained that “[i]t is not the responsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.” Id. at 765. In 2005, we reiterated that “the appropriate remedy for violations of the ESA consultation requirements is an injunction pending compliance with the ESA.” Wash. Toxics, 413 F.3d at 1035. We acknowledged that some “non-jeopardizing agency actions [may] continue during the consultation process,” but stated that “the burden should be on the agency [as] the entity that has violated its statutory duty” to establish that the agency action is non-jeopardizing. Id. The Forest Service argues that the Thomas presumption of irreparable harm has been effectively overruled by two recent Supreme Court cases addressing in-junctive relief in the context of NEPA: Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). In Winter, the Court rejected our test for preliminary injunctive relief in NEPA eases as “too lenient.” 555 U.S. at 22, 129 S.Ct. 365. Our precedent had allowed for granting a preliminary injunction upon a showing that irreparable harm was a “possibility.” Id. The Winter Court held that, even in NEPA cases, “plaintiffs seeking preliminary relief [must]" }, { "docid": "16638107", "title": "", "text": "plan for re-engineering the south bank of the Yuba River and the main channel of the Yuba River as needed to improve flows to the Daguerre south fish ladder, (6) installing grates over the Daguerre fish ladders to prevent fish from jumping out of these ladders and to prevent poaching, (7) installing a temporary, seasonal artificial segregation weir within the Yuba River below Englebright to create a temporary, impassable barrier segregating spring Chinook from fall run Chinook and allowing the former to spawn without competition from the fall-run Chinook, (8) adopting and commencing implementation of an improved, comprehensive final long-term gravel augmentation plan for creating new spawning habitat in the Yuba River below Englebright, and (9) developing and implementing a plan for securing better wood-related structures and native riparian vegetation in the Yuba River reach from Englebright to Daguerre. Pis.’ Final Remedy Brief (“Pis.’ Remedy Brief’) 3:13-4:4, ECF No 363. Plaintiffs also request that defendants file quarterly status reports describing compliance with these measures. Defendants argue that remand is the only appropriate remedy. A. Standard of Review for Injunctive Relief under the ESA As a preliminary matter, the parties disagree sharply as to the standard of review to be applied for issuing an injunction under the Endangered Species Act. In particular, the parties have differing views with respect to the necessity of showing irreparable harm. Plaintiffs argue that under the ESA, an injunction may issue absent a showing of irreparable harm if there is a substantial violation of ESA’s procedural requirements. Pis.’ Remedy Brief 6. Alternatively, plaintiffs argue that if a showing of irreparable harm is required, the burden is on the defendants to show that no irreparable harm will occur absent the injunction. Pis.’ Remedy Brief 7. Additionally, plaintiffs argue that the listed species will suffer irreparable harm absent injunctive relief. Id. at 7. Defendants argue that a showing of irreparable harm is always required in order to obtain an injunction, including under the ESA. The parties discuss the standard for granting injunctive relief under the ESA without distinguishing between the standard for preliminary versus permanent relief. Typically, “a" }, { "docid": "21391889", "title": "", "text": "district court’s denial of injunctive relief but remand for further proceedings. A. Under “well-established principles of equity,” a plaintiff seeking permanent injunctive relief must satisfy a four-factor test by showing: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Starting with Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985), we have long recognized an exception to the traditional test for injunctive relief when addressing procedural violations under the ESA. See also Wash. Toxics, 413 F.3d at 1035; Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir.1987). In Thomas, after holding that plaintiffs established a procedural violation of the ESA, we addressed the appropriate remedy. We looked to our case law under NEPA, noting that “[t]he procedural requirements of the ESA are analogous to those of NEPA....” 753 F.2d at 764. We then acknowledged in the NEPA context, we had held that because “fijrreparable damage is presumed to flow from a failure properly to evaluate” environmental impacts of an agency action, an injunction is typically the appropriate remedy for a Section 7 violation. Id. (citing Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984); Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir.1975)). Critical to our discussion here was our holding that “[w]e see no reason that the same principle should not apply to procedural violations of the ESA.” Id. In so holding, we explained that “[i]t is not the responsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.” Id. at 765. In 2005, we reiterated that “the appropriate remedy for violations of the ESA consultation requirements" }, { "docid": "12730173", "title": "", "text": "Amoco Prod. Co. v. Cambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (environmental injury by its nature can seldom be remedied by money damages). Nevertheless, these cases do not obviate the need to assess the potential threat of injury to a listed species before deciding whether to grant an injunction under the ESA. See Burlington Northern, 23 F.3d at 1511. Federal courts are not obligated to grant an injunction for every violation of the law. Hill, 437 U.S. at 193, 98 S.Ct. 2279. In order to be entitled to injunctive relief, the plaintiff “must make a showing that a violation of the ESA is at least likely in the future.” Burlington Northern, 23 F.3d at 1511. Accordingly, injunctive relief under the ESA is generally mandated where the moving party 1) has had or can likely show “success on the merits,” and 2) makes the requisite showing of “irreparable injury.” 1. Success on the Merits It is undisputed that plaintiffs have had success on the merits. As detailed in this Court’s recent ruling, the ESA requires NMFS to prepare a comprehensive biological opinion equal in scope to the North Pacific groundfish FMPs. NMFS’s failure to do so goes beyond a technical or de minimis violation, but constitutes a substantial violation of the procedural requirements of the ESA. See Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985) (failure to prepare preliminary biological assessment is substantial procedural violation). In the absence of a completed comprehensive biological opinion NMFS has not, and cannot, insure that continued fishing in designated critical habitat will not result in harm to endangered Steller sea lions. Under these circumstances, continued implementation of the FMPs and, therefore, authorization of the yearly fisheries under those FMPs, constitutes a continuing violation of the ESA. See Greenpeace, 80 F.Supp.2d at 1150. Plaintiffs undoubtedly have had “success on the merits.” The more difficult question for the Court in this case is the standard to be applied to determine whether plaintiffs have met their burden of showing “irreparable injury.” 2. Irreparable Injury The parties argue that the requirement of “irreparable" }, { "docid": "21391897", "title": "", "text": "does nothing to disturb the Supreme Court’s holding in Hill that when evaluating a request for injunctive relief to remedy an ESA procedural violation, the equities and public interest factors always tip in favor of the protected species. As the Court made unmistakably clear: “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’ ” Hill, 437 U.S. at 194, 98 S.Ct. 2279. That fundamental principle remains intact and will continue to guide district courts when confronted with requests for injunctive relief iñ ESA cases. Second, we do not dispute that the Thomas presumption of irreparable harm virtually assures the grant of injunctive relief to remedy an ESA procedural violation. But that does not mean that without the aid of such a presumption the district courts will be at a disadvantage in remedying procedural violations pending compliance with the ESA. Indeed, as exemplified by several of the cases the dissent cites, district courts are quite capable of identifying harm to protected species, and in crafting an injunction to remedy the precise harm. For instance, in South Yuba River Citizens League v. National Marine Fisheries Service, the district court, although acknowledging Thomas’s holding, nonetheless held that the plaintiff “must show that irreparable harm to the listed species will result from defendants’ violation of the ESA in the absence of each [protective] measure plaintiffs request.” 804 F.Supp.2d 1045, 1054 (E.D.Cal.2011). The court proceeded to address the evidence of harm and the relief requested, and granted an injunction to address the harm established by the evidence. Similarly, in National Wildlife Federation v. National Marine Fisheries Service, 839 F.Supp.2d 1117, 1131 (D.Or.2011), the plaintiffs moved the district court to order the operators of the Federal Columbia River Power System to maintain previously established spring and summer dam spills along the Columbia River for the protection of endangered salmon species. In ruling on the motion, the court recognized our holding in Thomas, but did not stop there." }, { "docid": "12730174", "title": "", "text": "ruling, the ESA requires NMFS to prepare a comprehensive biological opinion equal in scope to the North Pacific groundfish FMPs. NMFS’s failure to do so goes beyond a technical or de minimis violation, but constitutes a substantial violation of the procedural requirements of the ESA. See Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985) (failure to prepare preliminary biological assessment is substantial procedural violation). In the absence of a completed comprehensive biological opinion NMFS has not, and cannot, insure that continued fishing in designated critical habitat will not result in harm to endangered Steller sea lions. Under these circumstances, continued implementation of the FMPs and, therefore, authorization of the yearly fisheries under those FMPs, constitutes a continuing violation of the ESA. See Greenpeace, 80 F.Supp.2d at 1150. Plaintiffs undoubtedly have had “success on the merits.” The more difficult question for the Court in this case is the standard to be applied to determine whether plaintiffs have met their burden of showing “irreparable injury.” 2. Irreparable Injury The parties argue that the requirement of “irreparable injury” is only met under section 7 of the ESA where the conduct sought to be enjoined poses “a reasonably certain threat of imminent harm” to the listed species. This test was developed by the Ninth Circuit in a line of cases dealing with ESA section 9, which prohibits the “taking” of a listed species. See Burlington Northern, 23 F.3d at 1510-11; Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784-88 (9th Cir.1995); Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1064-66 (9th Cir.1996); Defenders of Wildlife v. Bernal, 204 F.3d 920, 924-25 (9th Cir.2000). However, this is not the test to be applied under ESA section 7. The seminal case for injunctive relief under ESA section 7 in the Ninth Circuit is Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). In that case, the Ninth Circuit held that “[gjiven a substantial procedural violation of the ESA in connection with a federal project, the remedy must be an injunction of the project pending compliance with the ESA.” 753 F.2d at 764. The “substantial procedural" }, { "docid": "16638113", "title": "", "text": "public interest tip heavily in favor of endangered species. We may not use equity’s scales to strike a different balance.” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987). In this case, the parties agree that Monsanto’s holding that the four-factor test applies to injunctions issued to remedy violations of the National Environmental Policy Act (“NEPA”) does not undo Congress’ conclusion that, under the ESA, the balance of hardships and the public interest factors tip towards protecting the species. Fed. Defs.’ Remedy Brief 7:3-5; Pis.’ Remedy Brief 5:26-6:3. Indeed, the Court could not undo Congress’ command in this regard. Accordingly, the court finds that the balance of hardships and the public interest factors support granting injunctive relief in this case. ii. Irreparable Injury Plaintiffs, however, take their argument a step further by urging that the standard of review under ESA also differs from the traditional analysis for injunctions in that no showing of irreparable harm is required when there is a substantial procedural violation of the ESA in connection with a federal project. Pis.’ Remedy Brief 6-7. Prior to Monsanto, the Ninth Circuit had held that a substantial procedural violation of the ESA could warrant issuance of an injunction. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), the Ninth Circuit found that defendants’ complete failure to prepare a BiOp under the circumstances was a substantial procedural violation, for which “the remedy must be an injunction of the project pending compliance with the ESA.” Id. at 764. This holding was rooted in prior Ninth Circuit cases decided under the National Environmental Policy Act (“NEPA”): “Our cases repeatedly have held that, absent ‘unusual circumstances,’ an injunction is the appropriate remedy for a violation of NEPA’s procedural requirements. Irreparable damage is presumed to flow from a failure properly to evaluate the environmental impact of a major federal action. We see no reason that the same principle should not apply to procedural violations of the ESA.” Id. (internal citations omitted). The Thomas court’s reliance on earlier NEPA cases undercuts plaintiffs’ assertion that Monsanto, a NEPA case, “does not alter the law governing" }, { "docid": "21391906", "title": "", "text": "it was undisputed that there had been a take of animals within an endangered species, grizzly bears, but we affirmed the denial of injunctive relief because there was insufficient evidence in .the record that the defendant’s operations would result in a future take of bears. On the surface, there is some tension between Burlington and Thomas, but there is a fundamental difference between the two cases. Burlington involved a discrete incr-dent that resulted in a substantive violation of the ESA, whereas Thomas involved a procedural violation. Addressing the procedural aspects of the ESA, we stressed in Thomas that there is a presumption of irreparable harm because “there can be no assurance that a violation of the ESA’s substantive provisions will not result” from a procedural failure under Section 7. 753 F.2d at 764. Notably, there was no procedural violation at issue in Burlington. . Cottonwood argues that since Winter and Monsanto we have continued to apply Thomas's presumption of irreparable harm, citing Kraayenbrink, 632 F.3d at 500, and Wild Fish Conservancy v. Salazar, 628 F.3d 513, 533 (9th Cir.2010). Although we determined in both cases that the ESA procedural violation warranted injunctive relief pending compli- anee with the ESA, we did so without discussing Winter and Monsanto's impact on Thomas’s presumption of irreparable harm. PREGERSON, Circuit Judge, concurring in part and dissenting in part: Respectfully, I dissent from Section VI of the majority opinion which makes it harder to protect the threatened Canada Lynx and its critical habitat, and puts the species at increased risk. I do not agree with the majority that Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985) (“Thomas ”), should be put into the shredder by inferring that Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010), implicitly “undermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny.” Maj. op. at 1090. I do not read Winter and Monsanto as casting a dark shadow on" }, { "docid": "12730175", "title": "", "text": "injury” is only met under section 7 of the ESA where the conduct sought to be enjoined poses “a reasonably certain threat of imminent harm” to the listed species. This test was developed by the Ninth Circuit in a line of cases dealing with ESA section 9, which prohibits the “taking” of a listed species. See Burlington Northern, 23 F.3d at 1510-11; Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784-88 (9th Cir.1995); Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1064-66 (9th Cir.1996); Defenders of Wildlife v. Bernal, 204 F.3d 920, 924-25 (9th Cir.2000). However, this is not the test to be applied under ESA section 7. The seminal case for injunctive relief under ESA section 7 in the Ninth Circuit is Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). In that case, the Ninth Circuit held that “[gjiven a substantial procedural violation of the ESA in connection with a federal project, the remedy must be an injunction of the project pending compliance with the ESA.” 753 F.2d at 764. The “substantial procedural violation” at issue in Thomas was the Forest Service’s failure to prepare a biological assessment to determine the potential effects of construction of a logging road and related timber sales on the endangered Rocky Mountain Gray Wolf. In holding that an injunction pending compliance with the ESA was the proper remedy, the Thomas Court relied on a line of prior Ninth Circuit NEPA cases for the proposition that “irreparable damage is presumed to flow from a failure to properly evaluate the environmental impact of a major federal action.” Thomas, 753 F.2d at 764 (citing Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984) and Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir.1975)). The Thomas Court reasoned that “the strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions.” Id. (emphasis original). The Court concluded that if a project is allowed to proceed without substantial compliance with those procedural requirements, “there can" }, { "docid": "21391898", "title": "", "text": "cases the dissent cites, district courts are quite capable of identifying harm to protected species, and in crafting an injunction to remedy the precise harm. For instance, in South Yuba River Citizens League v. National Marine Fisheries Service, the district court, although acknowledging Thomas’s holding, nonetheless held that the plaintiff “must show that irreparable harm to the listed species will result from defendants’ violation of the ESA in the absence of each [protective] measure plaintiffs request.” 804 F.Supp.2d 1045, 1054 (E.D.Cal.2011). The court proceeded to address the evidence of harm and the relief requested, and granted an injunction to address the harm established by the evidence. Similarly, in National Wildlife Federation v. National Marine Fisheries Service, 839 F.Supp.2d 1117, 1131 (D.Or.2011), the plaintiffs moved the district court to order the operators of the Federal Columbia River Power System to maintain previously established spring and summer dam spills along the Columbia River for the protection of endangered salmon species. In ruling on the motion, the court recognized our holding in Thomas, but did not stop there. Instead, it proceeded to review. the record and found that without certain protective measures sought by the plaintiffs, including the spills, the protected fish would suffer irreparable harm. The court then granted injunctive relief to address the specific harm. As these cases demonstrate, district courts will not be left adrift without the benefit of Thomas’s presumption of irreparable harm. The purposes and objectives of the ESA, as recognized in Hill,, will continue to provide fundamental direction to the district courts when confronted with a request for injunctive relief to remedy a procedural violation of the ESA. The presumption of irreparable harm, however, as explained above, cannot survive the Court’s recent opinions in Winter and Monsanto. D. Although we acknowledge today that Thomas’s, ruling on injunctive relief is no longer good law, we recognize that it has been the law of the circuit since 1985. Cottonwood should not be faulted for relying on Thomas and its progeny as a basis for injunctive relief. We therefore vacate the district court’s denial of injunctive relief and remand on" }, { "docid": "21391916", "title": "", "text": "habitat must come first. Thomas’s holding remains one of the best guarantors of positive outcomes for threatened and endangered species. Because I would follow settled precedent and protect the Canada Lynx and its critical habitat first, I would apply Thomas v. Peterson rather than finding it to be implicitly overturned as the majority does. Thus, I would grant Appellant’s request for an injunction pending compliance with the ESA’s Section 7 consultation requirements. . The majority opinion also discusses South Yuba River Citizens League, 804 F.Supp.2d 1045, another ESA case involving the effect of dams on endangered salmon and other fish species, to demonstrate the ability of a district court to \"address the evidence of harm and the relief requested, and grant[] an injunction to address the harm established by the evidence.” Maj. op. at 1091. But a careful reading of South Yuba River finds that Thomas provided a critical function in that case, offering the district court a solid foundation for an injunction even when the \"data and analysis necessary to determine what measures, precisely, are needed in order to avoid jeopardizing the listed species [were not provided by the government.]” 804 F.Supp.2d at 1055. Lacking this necessary information, the district court was able to “err on the side of a more protective injunction,” relying, in part, on Thomas’s holding that, had plaintiffs sought such a remedy, the court could \"enjoin the new project entirely.” Id." }, { "docid": "16638114", "title": "", "text": "Remedy Brief 6-7. Prior to Monsanto, the Ninth Circuit had held that a substantial procedural violation of the ESA could warrant issuance of an injunction. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), the Ninth Circuit found that defendants’ complete failure to prepare a BiOp under the circumstances was a substantial procedural violation, for which “the remedy must be an injunction of the project pending compliance with the ESA.” Id. at 764. This holding was rooted in prior Ninth Circuit cases decided under the National Environmental Policy Act (“NEPA”): “Our cases repeatedly have held that, absent ‘unusual circumstances,’ an injunction is the appropriate remedy for a violation of NEPA’s procedural requirements. Irreparable damage is presumed to flow from a failure properly to evaluate the environmental impact of a major federal action. We see no reason that the same principle should not apply to procedural violations of the ESA.” Id. (internal citations omitted). The Thomas court’s reliance on earlier NEPA cases undercuts plaintiffs’ assertion that Monsanto, a NEPA case, “does not alter the law governing injunctions under the ESA.” Pis.’ Brief 6:4-5. In Monsanto, the Court rejected lower court holdings insofar as they “presume[d] than an injunction is the proper remedy for a NEPA violation except in unusual circumstances.” 130 S.Ct. at 2757. Instead of a presumption in favor of issuing an injunction, “a court must determine that an injunction should issue under the traditional four-factor test set out above.” Id. The Court went on to conclude that the test had not been satisfied in the case before it, because “[m]ost importantly, respondents cannot show that they will suffer irreparable injury if [defendant] APHIS is allowed to proceed with any partial deregulation.” Id. at 2760. Plaintiffs’ argument is not completely defeated by Monsanto, since in Thomas, the Ninth Circuit distinguished between ESA’s and NEPA’s procedural provisions, holding that “the strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements [than NEPA’s procedural requirements], because [ESA’s] procedural requirements are designed to ensure compliance -with the substantive provisions,” whereas NEPA does not contain substantive provisions. Thomas 753 F.2d" } ]

[ { "docid": "311756", "title": "", "text": "mortgage interest, insurance, fuel, etc. The beneficiary is required to include this income in her individual return and is entitled to deduct the allowable depreciation. The procedure established by the Commissioner is merely a short cut to the same end. Suppose, for example, that the income before depreciation is $10,000 and the depreciation is $5,000 in a given year. It makes no difference so far as the tax liability of the beneficiary is concerned if the fiduciary reports $10,000 as income distributable to the beneficiary and the beneficiary reports this amount as fiduciary income received and deducts the $5,000 depreciation, or if, as is provided by the regulations, the trustee deducts the amount- of depreciation from the net rent and shows $5,000 as distributable to the beneficiary. In either event, the beneficiary pays a tax on only $5,000 of fiduciary income. But regardless of whether the trustee deducts the depreciation or not, under New York law, unless the trust documents provide to the contrary, the trustee may not withhold from income any amount for depreciation but must pay the entire net income to the beneficiary. Even assuming that in this case there were operating losses before depreciation, which could be carried over and carried back by the trustee, this would not avail the plaintiff. The law is well settled that a trust is deemed an entity separate and distinct from its beneficiaries and that any operating loss suffered is that of the trust and not that of the beneficiary. Such loss may be available to the trust as a deduction from any other taxable income it may have, or if it has none, such loss may be availed of by it on a carry over or carry back basis. But it does not follow that the net income of the trust distributable to the plaintiff in any one year may be reduced by a carry over or carry back permitted the trust by § 23 (s) of the Internal Revenue Code. The income payable to the beneficiary under the trust and the local law is not necessarily the same as" } ]

[ { "docid": "8071280", "title": "", "text": "the Commissioner’s adjustments in the deficiency notices relating to depreciation. However, the deficiency notices are distressingly vague as to the precise effect resolution of this issue will have on petitioners’ taxable income. Since the trust is stipulated to be a “simple testamentary trust,” any depreciation deducted by the trust serves to reduce petitioners’ shares of distributable net income from the trust. If the depreciation deductions are allocated in full to the beneficiaries, their shares of the trust’s distributable net income are correspondingly increased, but they themselves will then be entitled to deductions for depreciation (sec. 1.167(h)-l(b), Income Tax Regs.), and those depreciation deductions will offset the increase in their shares of distributable income dollar for dollar. See secs. 651-652, I.R.C. 1954; Kearney v. United States, 116 F. Supp. 922, 925 (S.D. N.Y. 1953); M. Knuthe, “Depreciation & Depletion,” 114 Trusts & Estates 146, 178 (1975). Thus, it would appear that there should not be any deficiency arising from this issue. The entire matter may well be merely another instance of the familiar tempest in a teapot. However, in view of the confused state of the record in respect of this issue and in view of the fact that the parties have fully briefed and treated the maintenance of a depreciation reserve as the only matter to be decided, we have considered the testator’s will and Connecticut law and have concluded that the beneficiaries, and not the trust, are entitled to the entire deduction for depreciation. Unless something has eluded us in this foggy record, the upshot, of course, would appear to be that there should not be any deficiency against petitioners in respect of the depreciation deductions. No issue has been presented to us for decision in respect of any other matter relating to depreciation — e.g., basis, useful life, etc. Appropriate adjustments in petitioners’ shares of trust income and deductions for depreciation, as well as other adjustments necessitated by the settlement of certain disputed issues, will be reflected in the Decisions to be entered under Rule 155. These consolidated cases were originally submitted to Judge William H. Quealy. After" }, { "docid": "16829868", "title": "", "text": "The present regulations provide that the same result should apply where depreciation is allocated to corpus rather than income, in the trust accounting sense, pursuant to requirements of the applicable local law as well as where the governing instrument so directs. Sec. 1.167(g)-1(b), Income Tax Regs. It is petitioner’s contention that the reserve for depreciation of the Nissen Building set aside by the executor in this case was maintained pursuant to mandatory provisions of decedent’s will and State law, that the same language as that appearing in the sentence of section 167 (g) dealing with allocation of the depreciation deduction in a trust situation must be taken as being applicable to this case, and consequently that petitioner is entitled to the full amount of the allowable deduction. We are not persuaded to petitioner’s view that the executor of this estate was required to maintain a depreciation reserve either by the terms of decedent’s will or by the relevant North Carolina Law. However, we note that the executor and trustee were given incontrovertible discretionary authority by Article XIII of decedent’s will “to determine what is principal and what is income and what expenses or other payments shall be charged against principal and what against income,” and that the executor did in fact make principal mortgage payments on, and capital additions to the Nissen Building out of income in total amounts, for the 3 years in issue, roughly equal to the total allowable depreciation for those years. This Court has not had occasion to rule on the question of whether such actual use, as above, or the setting aside of additions to a depreciation reserve by a trustee pursuant to discretionary authority to allocate between income and corpus granted by the instrument creating the trust, will entitle the trust to the full amount of the allowable deduction for depreciation; but section 1.167(g)-1(b)(2), Income Tax Regs., takes the position that such result would follow, at least to the extent an addition to a reserve is in an amount as great as the allowable deduction, and we have indicated that we might so hold" }, { "docid": "17831521", "title": "", "text": "for income tax purposes. The evidence herein does not establish the amount of the total gross income received or derived by the trustee for the 3 taxable years here involved; but it does establish the following: For said 3 years here involved, Baymond, as trustee, formally allocated to Velma, as the primary beneficiary, all of the Federal income tax deductions for the above-listed amounts of depreciation which he had computed to have been sustained by the trust in said respective years. And thereafter, Baymond and Velma, in the joint income tax returns which they filed for said years, deducted as depreciation of trust properties these same respective amounts. The respondent' initially determined in his notice of deficiency herein, that Vehna was entitled to depreciation deductions in respect of the trust properties in the reduced amounts of $84.21 for the year 1959, $215.32 for the year 1960, and $28.94 for the year 1961 — reflecting the limited portions of the total trust incomes which she received. Subsequently however the respondent, in an amended answer to the petition herein, took the position that Velma is not entitled to any portion of the trust’s depreciation deduction for any of the years involved— on the ground that one of the pertinent provisions of the trust inden ture required the trustee to establish a reserve for depreciation out of the trust income. OPINION This case presents the question of whether petitioner Velma W. Dusek, as income beneficiary of a trust of which her husband was both grantor and trustee, was entitled to deduct on the joint income tax returns filed by her and her husband for the years involved, all of the deduction for depreciation in respect of the trust’s properties for said years — notwithstanding that under the terms of the instrument creating the trust, the husband in his capacity as trustee was required to reserve depreciation out of the trust income; and that actually, he distributed only a nominal amount of trust income to his wife as beneficiary. 1. It should be observed at the outset that if said question may properly be" }, { "docid": "16829864", "title": "", "text": "OPINION We are here called upon to decide who is entitled to the deduction for the depreciation of the Nissen Building in the years in question. Petitioner takes the position that the estate is entitled to deduct the full amount of the allowable depreciation in each year, whereas respondent contends that the estate may take only such portions as are ratable to the portions of estate’s income in each year, allocable to the estate. The language of the statutory deficiency notice is “apportioned between the estate and the estate beneficiaries on the basis of the income of the estate allocable to each.” Prior to the adoption of the Internal Revenue Code of 1954, an estate was entitled in all cases to the full amount of the deduction allowable for depreciation of property owned by it. Kathryn Titus MacMurray, 16 T.C. 616 (1951); compare Baltzell v. Mitchell, 3 F. 2d 428 (C.A. 1, 1925), and United States v. Blow, 77 F. 2d 141 (C.A. 7, 1935). In 1954, however, Congress added a new provision to the Federal income tax law which states, with respect to the depreciation deduction for property of an estate, as follows: In the case of an estate, the allowable deduction shall be apportioned between the estate and the heirs, legatees, and devisees on the basis of the income of the estate allocable to each. We have been referred to no decisions involving this provision, and we have found none. Petitioner contends that the new .provision is not to be read as requiring the estate involved in this case to share the allowable depreciation deduction with any distributees of income from the estate. Appreciation of petitioner’s argument is predicated on an understanding of certain background information concerning the law with respect to trusts. Since the enactment of the 1928 Revenue Act there has continued to be in effect a provision of Federal income tax law dealing with the allocation of the depreciation deduction in the case of trusts, as follows: In the case of property held in trust, the allowable deduction shall be apportioned between the income beneficiaries" }, { "docid": "8071265", "title": "", "text": "taxpayer, filed fiduciary income tax returns for taxable years 1971 and 1973. Although the trust reported interest income on its 1971 return in the amount of $3,399.26, no amount was included as interest income in respect of the receipt of the proceeds from the condemnation of trust property. The Commissioner determined that $103,912.76 of the amount received on the condemnation of the trust property was interest income to the trust, and increased the petitioners’ respective shares of distributable net income from the trust in accordance with this determination. The trust’s 1971 return claimed a deduction of $9,504 for depreciation of property purchased by the trust to replace the property taken by condemnation. A similar depreciation deduction in the amount of $7,514.11 was claimed by the trust on its 1973 return. The Commissioner determined that the trust itself was not entitled to any deduction for depreciation in 1971 or 1973, and made allegedly corresponding adjustments to petitioners’ respective shares of distributable net income from the trust and allowable depreciation on property held by the trust. (1) \"Interest” on condemnation award. — Section 1033, I.R.C. 1954, permits nonrecognition of gain on the involuntary conversion of property to the extent that the amount realized on the conversion is utilized to purchase property similar in use to the converted property. It is not disputed that the trust purchased replacement property with a cost in excess of the amount of the condemnation award. However, section 1033 is applicable to provide nonrecognition only of “gain” on the involuntary conversion of “property * * * into money or * * * [other] property.” If the condemnation award includes amounts other than compensation for the value of the condemned property, such amounts do not qualify under the nonrecognition of gain provisions of section 1033. See Graphic Press, Inc. v. Commissioner, 523 F.2d 585, 588 (9th Cir. 1975), revg. 60 T.C. 674 (1973); Asjes v. Commissioner, 74 T.C. 1005, 1010-1011 (1980). The condemnation award the trust received pursuant to the judgment of the Connecticut Superior Court included $103,912.76 in “interest,” and we must determine whether this amount is part" }, { "docid": "6076020", "title": "", "text": "BREITENSTEIN, Circuit Judge. Petitioners seek review of a Tax Court decision disallowing deductions claimed on account of depreciation of property held in trust for the benefit of petitioner Velma Dusek. Raymond Dusek created a trust in favor of Velma, his wife. Raymond was both the grantor of the trust and the trustee. The term of the trust was 10 years and one month. The trust agreement provided that the net income “may be distributed” to Velma when, in the discretion of the trustee, her needs required. Net income was all income from the trust property after payment of “all the necessary costs and expenses incident to the management, maintenance and conservation of this Trust,” the compensation of the trustee, and “such adjustments thereto as are permitted and provided for hereinafter in Item (f) of Article V.” The latter item relates to the determination of net income and provides, among other things, that “depreciation and depletion shall be reserved out of income.” Article V, Item (m), reads: “The Trustee is authorized to apportion and allocate between the Trust and the Primary Beneficiary [Velma] all appropriate tax deductions for depletion and depreciation and any other apportionable tax deductions in such manner as he may see fit.” Raymond contributed over $100,000 to the trust. These funds were used for the purchase of rental property. During the three tax years in question, 1959, 1960, and 1961, the net income of the trust before depreciation ranged from $5,100 to $15,800, and in the same period the depreciation ranged from $4,500 to $11,000. In each year, the trustee distributed only $100 to Velma and, at the same time, allocated to her all of the federal income tax deductions for depreciation. In their joint federal income tax returns for each year the taxpayers claimed as a deduction from their gross income the depreciation on the trust property. Although he made no point of the propriety or accuracy of the depreciation computations made by the trustee, the Commissioner disallowed the deductions and assessed deficiencies. The controlling provisions of the applicable statute, § 167(h) of the Internal Revenue Code" }, { "docid": "10389445", "title": "", "text": "include the January 1961 value of the salary continuation agreement in Harriet’s income, and we are not called upon to apply sec. 691. However, it appears that any charitable contribution to which she would be entitled under her interpretation of the facts would be offset by at least an equal amount of income. Mont. Rev. Codes Ann. sec. 73-205 (1962) provides: unrecorded instruments valid between the parties. An unrecorded instrument is valid as between the parties and those who have notice thereof. The income tax return of Strain Brothers in 1963 reflects that some of the improvements were apparently already fully depreciated so that no depreciation was claimed for them. Sec. 1.642(d)-l, Income Tax Regs., provides that, in computing a net operating loss, “a trust shall exclude that portion of the income and deductions attributable to the grantor or another person under sections 671 through 678.” However, as discussed above, since Edgar has only an interest in the income and no interest in the corpus, his deductions are to be computed as if he were a “current income beneficiary” rather than as a grantor. In addition, contrast sec. 642(e), which provides that “An estate or trust shall be allowed the deduction for depreciation and depletion only to the extent not allowable to beneficiaries,” and sec. 167(h), which states that “In the ease of property held in trust, the allowable deduction shall be apportioned between the income beneficiaries and the trustee in accordance with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each.” None of these special provisions applies to partnership losses of a trust." }, { "docid": "6076021", "title": "", "text": "the Trust and the Primary Beneficiary [Velma] all appropriate tax deductions for depletion and depreciation and any other apportionable tax deductions in such manner as he may see fit.” Raymond contributed over $100,000 to the trust. These funds were used for the purchase of rental property. During the three tax years in question, 1959, 1960, and 1961, the net income of the trust before depreciation ranged from $5,100 to $15,800, and in the same period the depreciation ranged from $4,500 to $11,000. In each year, the trustee distributed only $100 to Velma and, at the same time, allocated to her all of the federal income tax deductions for depreciation. In their joint federal income tax returns for each year the taxpayers claimed as a deduction from their gross income the depreciation on the trust property. Although he made no point of the propriety or accuracy of the depreciation computations made by the trustee, the Commissioner disallowed the deductions and assessed deficiencies. The controlling provisions of the applicable statute, § 167(h) of the Internal Revenue Code of 1954, 26 U.S.C. § 167 (h), are: “In the case of property held in trust, the allowable deduction shall be apportioned between the income beneficiaries and the trustee in accordance with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each.” The question is what are the “pertinent provisions” of the trust agreement. The Commissioner says they are those of Article V, Item (f), requiring that depreciation be reserved out of income. The taxpayers say they are those of Article V, Item (m), relating to the allocation of tax deductions for depreciation. The Tax Court adopted the theory of the Commissioner and upheld the deficiency determination. Section 167(h) is a carry-over from § 23 (k) of the Revenue Act of 1928, ch. 852, 45 Stat. 791. Before the enactment of § 23 (k) the rule was that the trust as the entity with legal title to the de-preciable assets was the only taxpayer entitled to any portion of" }, { "docid": "22549531", "title": "", "text": "income of the estate or trust for its taxable year which, pursuant to the instrument or order governing the distribution, is distributable to such beneficiary, whether distributed or not, . . .” In the belief that these provisions warranted his action, the.Commissioner of Internal Revenue increased the income shown on the petitioner’s return by so much of- the amount received as reflected the proportionate share of the depreciation, deducted by .the trustee in his fiduciary return, and determined a deficiency accordingly. The petitioner appealed to the Board of Tax Appeals. In 1928, while the case was pending before the Board, the trustee, who had annually rendered income statements to the beneficiaries, but had filed no accounts as trustee, lodged in a California court having jurisdiction of the trust, an account for the period 1903-1928, and prayed its approval. Due notice of the proceeding was given the parties in interest. Certain remaindermen objected to the account, on the ground that the trustee had paid the entire income to beneficiaries without deducting and reserving proper amounts for depreciation and for capital losses sustained. The matter coming on for hearing, the court sustained the objection concerning depreciation and overruled that as to capital losses; found the amounts which should have been reserved for depreciation; refused to surcharge the trustee, but decreed that the life beneficiaries (including the estate of Louise P. V. Whitcomb) repay to the trustee the amounts which he should have withheld annually for depreciation.. The sum fixed for the year 1921 was $43,003.16, which the Board of Tax Appeals has found w,as the correct amount, a pro rata share of which the petitioner had deducted from the reported income of Louise P. V. Whitcomb. Pursuant to this decree the petitioner repaid $10,700 to the trustee, which was more than petitioner’s share of the required repayment for the year 192L Since, however, Mrs. Whit-comb’s estate owed additional amounts for each of the years 1913-1928, the balance was adjusted by a promissory note of her next of lcin. Other beneficiaries also gave notes in settlement of amounts due the trustee. The Board" }, { "docid": "8071281", "title": "", "text": "teapot. However, in view of the confused state of the record in respect of this issue and in view of the fact that the parties have fully briefed and treated the maintenance of a depreciation reserve as the only matter to be decided, we have considered the testator’s will and Connecticut law and have concluded that the beneficiaries, and not the trust, are entitled to the entire deduction for depreciation. Unless something has eluded us in this foggy record, the upshot, of course, would appear to be that there should not be any deficiency against petitioners in respect of the depreciation deductions. No issue has been presented to us for decision in respect of any other matter relating to depreciation — e.g., basis, useful life, etc. Appropriate adjustments in petitioners’ shares of trust income and deductions for depreciation, as well as other adjustments necessitated by the settlement of certain disputed issues, will be reflected in the Decisions to be entered under Rule 155. These consolidated cases were originally submitted to Judge William H. Quealy. After Judge Quealy’s retirement, the cases were reassigned to. Judge Raum by order of the Chief Judge dated May 7, 1980. The notice of deficiency in the Roessler case (docket No. 5787-78) also contained a determination of a $152 deficiency for 1975, but petitioners have not sought review of that determination in this Court. Joint returns were filed by petitioner and her husband in the Tiefenbrunn ease for both years in controversy, but the determination of deficiency before us for 1971 was addressed solely to the wife, and although the determination for 1973 was addressed to both spouses, only the wife filed the petition herein. Joint returns were filed for both years in the Roessler case, and both spouses filed the petition herein in respect of the determination of deficiency, which was addressed to both of them. Par. (e)(5) of the codicil to the testator’s will reads in relevant part as follows: “5. That for a period of ten years the trust will make no distribution from either the corpus of the estate or net income." }, { "docid": "8071288", "title": "", "text": "the basis of the trust income allocable to each, unless the governing instrument (or local law) requires or permits the trustee to maintain a reserve for depreciation in any amount. In the latter case, the deduction is first allocated to the trustee to the extent that income is set aside for a depreciation reserve, and any part of the deduction in excess of the income set aside for the reserve shall be apportioned between the income beneficiaries and the trustee on the basis of the trust income (in excess of the income set aside for the reserve) allocable to each. For example: Apart from the confusing manner in which depreciation was treated in the trust’s returns (see n. 11 infra), the record is exasperatingly silent as to how the trustees in fact accounted for depreciation and as to the amounts of income which they in fact distributed to the beneficiaries. However, as will be noted infra, if the trust is not entitled to the depreciation deduction and the income of the trust is distributable to the beneficiaries without diminution on account of that deduction, petitioners, themselves, as beneficiaries would be entitled to the deduction (sec. 1.167(h)-l(b), particularly example (1), Income Tax Regs., n. 8 supra), and the ultimate result in favor of petitioners would appear to be the same regardless of whether depreciation is deductible by the trust or by the beneficiaries. The record is in confusion as to the trustees’ understanding with respect to a depreciation reserve. There is no evidence as to how they kept their books of account in this connection, and their treatment of depreciation in their returns did not follow a consistent pattern. In their 1971 return, they claimed a depreciation deduction of $9,504, the total amount of depreciation allegedly sustained in that year. In 1973 and 1974, allowable depreciation shown on the trust’s returns amounted to $40,942. However, the only deduction for depreciation taken by the trust in 1973 was $7,514.11; and in 1974, the trust took no deduction for depreciation. The reasons, if any, for such disparate treatment are unexplained. See Uniform Principal" }, { "docid": "8071289", "title": "", "text": "the beneficiaries without diminution on account of that deduction, petitioners, themselves, as beneficiaries would be entitled to the deduction (sec. 1.167(h)-l(b), particularly example (1), Income Tax Regs., n. 8 supra), and the ultimate result in favor of petitioners would appear to be the same regardless of whether depreciation is deductible by the trust or by the beneficiaries. The record is in confusion as to the trustees’ understanding with respect to a depreciation reserve. There is no evidence as to how they kept their books of account in this connection, and their treatment of depreciation in their returns did not follow a consistent pattern. In their 1971 return, they claimed a depreciation deduction of $9,504, the total amount of depreciation allegedly sustained in that year. In 1973 and 1974, allowable depreciation shown on the trust’s returns amounted to $40,942. However, the only deduction for depreciation taken by the trust in 1973 was $7,514.11; and in 1974, the trust took no deduction for depreciation. The reasons, if any, for such disparate treatment are unexplained. See Uniform Principal and Income Act sec. 13 (1962 rev.), which has been adopted in 22 States. See 7A Uniform Laws Ann. 24 (West Supp. 1980). See 3 A. Scott, Trusts sec. 239.4 (3d ed. 1967); C. Dalton, “Buildings Held in Trust,” 106 Trusts & Estates 1125 (1967); cf. Edgar v. Commissioner, 56 T.C. 717, 752-753 (1971)." }, { "docid": "8071287", "title": "", "text": "irrespective of any provisions in the trust instrument, except as otherwise provided in this paragraph when the trust instrument or local law requires or permits the trustee to maintain a reserve for depreciation. Sec. 167(h), I.R.C. 1954, provides in relevant part as follows: (h) Life Tenants and Beneficiaries of Trusts and Estates. — In the case of property held by one person for life with remainder to another person, the deduction shall be computed as if the life tenant were the absolute owner of the property and shall be allowed to the life tenant. In the case of property held in trust, the allowable deduction shall be apportioned between the income beneficiaries and the trustee in accordance with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each. Sec. 1.167(h)-l(b), Income Tax Regs., provides as follows: (b) Trusts. If property is held in trust, the allowable deduction is to be apportioned between the income beneficiaries and the trustee on the basis of the trust income allocable to each, unless the governing instrument (or local law) requires or permits the trustee to maintain a reserve for depreciation in any amount. In the latter case, the deduction is first allocated to the trustee to the extent that income is set aside for a depreciation reserve, and any part of the deduction in excess of the income set aside for the reserve shall be apportioned between the income beneficiaries and the trustee on the basis of the trust income (in excess of the income set aside for the reserve) allocable to each. For example: Apart from the confusing manner in which depreciation was treated in the trust’s returns (see n. 11 infra), the record is exasperatingly silent as to how the trustees in fact accounted for depreciation and as to the amounts of income which they in fact distributed to the beneficiaries. However, as will be noted infra, if the trust is not entitled to the depreciation deduction and the income of the trust is distributable to" }, { "docid": "8071275", "title": "", "text": "payments were in substance part of the payment for the condemned property. Here, it is clear that the “interest” was not a payment for the property condemned, and we do not read the opinion of the Court of Appeals as precluding the current taxation of such sums. See Graphic Press, Inc. v. Commissioner, 523 F.2d at 588-589 & n. 3; see also E. R. Hitchcock Co. v. United States, 382 F. Supp. 236, 240 (D. Conn. 1974), affd. 514 F.2d 484 (2d Cir. 1975). (2) Depreciation. — With respect to property held in trust, section 167(h), I.R.C. 1954, sets forth the applicable rules for the allocation of depreciation deductions between the trustee and the beneficiaries. As interpreted by the regulations, section 167(h) provides that the deduction is to be apportioned between the trustees and the beneficiaries in accordance with the trust income allocable to each, unless local law or the trust instrument requires or allows the trustee to establish a reserve for depreciation; if a reserve is established, the deduction is allocated to the trustee to the extent of the income reserved. See generally Dusek v. Commissioner, 376 F.2d 410, 412-413 (10th Cir. 1967), affg. 45 T.C. 355 (1966). Petitioners argue that the testator’s will and Connecticut law permitted the trustees to establish a depreciation reserve with respect to the properties acquired after the condemnation of 185 Church Street; they accordingly contend that the trust is entitled to depreciation deductions in 1971 and 1973. Although not explicitly articulated by petitioners, the apparent purpose of their contention is to establish that the distributable income of the trust is reduced by the amount of the depreciation deduction with the consequence that their allocable shares of such income are correspondingly reduced. The Government claims that the testator’s will requires the distribution of all current income, and does not permit the trust to establish any reserves beyond the $25,000 “reserve fund” accumulated prior to the taxable years involved herein. The Government thus maintains that all allowable depreciation for the years involved must be allocated to the beneficiaries and not to the trust. Both parties" }, { "docid": "8071285", "title": "", "text": "property so converted, * * * at the election of the taxpayer the gain shall be recognized only to the extent that the amount realized upon such conversion (regardless of whether such amount is received in one or more taxable years) exceeds the cost of such other property or such stock. * * * (B) Period within which property must be replaced. — The period referred to in subparagraph (A) shall be the period beginning with the date of the disposition of the converted property, or the earliest date of the threat or imminence of requisition or condemnation of the converted property, whichever is the earlier, and ending— (i) one year after the close of the first taxable year in which any part of the gain upon the conversion is realized, or (ii) * * * at the close of such later date as the Secretary * * * may designate on application by the taxpayer. * * * Petitioners have not contended that the interest on the condemnation award was not an amount required to be distributed to them as income beneficiaries in 1971. See sec. 652(a), I.R.C. 1954. (1) If under the trust instrument or local law the income of a trüst computed without regard to depreciation is to be distributed to a named beneficiary, the beneficiary is entitled to the deduction to the exclusion of the trustee. (2) If under the trust instrument or local law the income of a trust is to be distributed to a named beneficiary, but the trustee is directed to maintain a reserve for depreciation in any amount, the deduction is allowed to the trustee (except to the extent that income set aside for the reserve is less than the allowable deduction). The same result would follow if the trustee sets aside income for a depreciation reserve pursuant to discretionary authority to do so in the governing instrument. No effect shall be given to any allocation of the depreciation deduction which gives any beneficiary or the trustee a share of such deduction greater than his pro rata share of the trust income," }, { "docid": "16829867", "title": "", "text": "the income of the trust computed without regard to depreciation shall be distributed to a named beneficiary, such beneficiary will be entitled to the depreciation allowance to the exclusion of the trustee, while if the instrument provides that the trustee in determining the distributable income shall first make due allowance for keeping the trust corpus intact by retaining a reasonable amount of the current income for that purpose, the allowable deduction will be granted in full to the trustee. The bill contains similar provisions as to the deduction for depletion. * * * Conf. Rept. No. 1882,70th Cong., 1st Sess., pp. 11-12 (1928). It was thus established that a trust created pursuant to an instrument providing for depreciation by way of a requirement that funds be set aside in the nature of a depreciation reserve, before income could be distributed to income beneficiaries, was entitled to the entire deduction for depreciation of property owned by it. See, e.g., Newbury v. United States, 57 F. Supp. 168 (Ct. Cl. 1944), certiorari denied 323 U.S. 802 (1945). The present regulations provide that the same result should apply where depreciation is allocated to corpus rather than income, in the trust accounting sense, pursuant to requirements of the applicable local law as well as where the governing instrument so directs. Sec. 1.167(g)-1(b), Income Tax Regs. It is petitioner’s contention that the reserve for depreciation of the Nissen Building set aside by the executor in this case was maintained pursuant to mandatory provisions of decedent’s will and State law, that the same language as that appearing in the sentence of section 167 (g) dealing with allocation of the depreciation deduction in a trust situation must be taken as being applicable to this case, and consequently that petitioner is entitled to the full amount of the allowable deduction. We are not persuaded to petitioner’s view that the executor of this estate was required to maintain a depreciation reserve either by the terms of decedent’s will or by the relevant North Carolina Law. However, we note that the executor and trustee were given incontrovertible discretionary authority by" }, { "docid": "8071260", "title": "", "text": "OPINION Raum, Judge: The Commissioner determined deficiencies in petitioners’ income taxes as set forth below: 1971 1973 Elizabeth R. Tiefenbrunn. $7,397.09 $3,303.97 Alan Roessler and Virginia Roessler. 8,027.77 3,823.00 Petitioners Elizabeth Tiefenbrunn and Alan Roessler are two of the life income beneficiaries of the Carl Roessler Trust (the trust). The stipulation of the parties has already disposed of a number of matters in controversy, but the following two issues remain for decision: (1) Whether “interest” awarded the trust in 1971 pursuant to a judgment determining the amount of just compensation for the condemnation of the trust’s property must be included in income, or whether it is part of the gain on the involuntary conversion of the property entitled to nonrecognition under section 1033, I.R.C. 1954; and (2) whether the trust is entitled to any deduction for depreciation on its real property under section 167(h), I.R.C. 1954. The case was submitted on a stipulation of facts. Petitioners were residents of Connecticut at the time of the filing of their petitions herein. The Carl Roessler Trust is a simple testamentary trust created under a codicil to the Will of Carl Roessler, who died on October 18, 1956. Fred C. Roessler, the testator’s son, and the First National Bank of New Haven, Conn., were the original trustees. Petitioners Elizabeth R. Tiefenbrunn and Alan Roessler, as well as Carl F. Roessler, grandchildren of the testator, are the life income beneficiaries of the trust. At the time of the creation of the trust, its corpus consisted of a commercial building known as 185 Church Street, situated in the central business district of New Haven, Conn. The trust provided for no distributions from either corpus or net income for its first 10 years of operation. Instead, a $25,000 “reserve fund” was to be accumulated to pay for “any extraordinary expense or capital improvements,” and during the first 10 years of the trust any remaining net income of the trust was to be used to reduce the principal balance due on the mortgage loan outstanding with respect to the property. The $25,000 reserve for depreciation was accumulated" }, { "docid": "8071279", "title": "", "text": "Connecticut statutes provide that trust “income” includes “All receipts of money * * * paid * * * as rent of realty.” (Emphasis added.) Conn. Gen. Stat. Ann. sec. 45-112(1) (West 1960). Although the statutes also provide for the payment of “ordinary expenses incurred in connection with the trust estate” out of income, depreciation is not mentioned as such an expense. Conn. Gen. Stat. Ann. sec. 45-119(1) (West 1960). While statutes in many States now permit trustees to provide an allowance for depreciation in determining trust income, this has not been the practice of most trustees in the absence of statutory provisions, and we think the Connecticut statutes cannot fairly be read to permit such an allowance in the circumstances of this case. We accordingly hold that each individual income beneficiary, and not the trust, is entitled to a deduction for depreciation in respect of the property held by the trust. In reaching our conclusion as to this issue, we must emphasize that this is the only issue argued by the parties in respect of the Commissioner’s adjustments in the deficiency notices relating to depreciation. However, the deficiency notices are distressingly vague as to the precise effect resolution of this issue will have on petitioners’ taxable income. Since the trust is stipulated to be a “simple testamentary trust,” any depreciation deducted by the trust serves to reduce petitioners’ shares of distributable net income from the trust. If the depreciation deductions are allocated in full to the beneficiaries, their shares of the trust’s distributable net income are correspondingly increased, but they themselves will then be entitled to deductions for depreciation (sec. 1.167(h)-l(b), Income Tax Regs.), and those depreciation deductions will offset the increase in their shares of distributable income dollar for dollar. See secs. 651-652, I.R.C. 1954; Kearney v. United States, 116 F. Supp. 922, 925 (S.D. N.Y. 1953); M. Knuthe, “Depreciation & Depletion,” 114 Trusts & Estates 146, 178 (1975). Thus, it would appear that there should not be any deficiency arising from this issue. The entire matter may well be merely another instance of the familiar tempest in a" }, { "docid": "8071286", "title": "", "text": "to be distributed to them as income beneficiaries in 1971. See sec. 652(a), I.R.C. 1954. (1) If under the trust instrument or local law the income of a trüst computed without regard to depreciation is to be distributed to a named beneficiary, the beneficiary is entitled to the deduction to the exclusion of the trustee. (2) If under the trust instrument or local law the income of a trust is to be distributed to a named beneficiary, but the trustee is directed to maintain a reserve for depreciation in any amount, the deduction is allowed to the trustee (except to the extent that income set aside for the reserve is less than the allowable deduction). The same result would follow if the trustee sets aside income for a depreciation reserve pursuant to discretionary authority to do so in the governing instrument. No effect shall be given to any allocation of the depreciation deduction which gives any beneficiary or the trustee a share of such deduction greater than his pro rata share of the trust income, irrespective of any provisions in the trust instrument, except as otherwise provided in this paragraph when the trust instrument or local law requires or permits the trustee to maintain a reserve for depreciation. Sec. 167(h), I.R.C. 1954, provides in relevant part as follows: (h) Life Tenants and Beneficiaries of Trusts and Estates. — In the case of property held by one person for life with remainder to another person, the deduction shall be computed as if the life tenant were the absolute owner of the property and shall be allowed to the life tenant. In the case of property held in trust, the allowable deduction shall be apportioned between the income beneficiaries and the trustee in accordance with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each. Sec. 1.167(h)-l(b), Income Tax Regs., provides as follows: (b) Trusts. If property is held in trust, the allowable deduction is to be apportioned between the income beneficiaries and the trustee on" }, { "docid": "8071276", "title": "", "text": "to the extent of the income reserved. See generally Dusek v. Commissioner, 376 F.2d 410, 412-413 (10th Cir. 1967), affg. 45 T.C. 355 (1966). Petitioners argue that the testator’s will and Connecticut law permitted the trustees to establish a depreciation reserve with respect to the properties acquired after the condemnation of 185 Church Street; they accordingly contend that the trust is entitled to depreciation deductions in 1971 and 1973. Although not explicitly articulated by petitioners, the apparent purpose of their contention is to establish that the distributable income of the trust is reduced by the amount of the depreciation deduction with the consequence that their allocable shares of such income are correspondingly reduced. The Government claims that the testator’s will requires the distribution of all current income, and does not permit the trust to establish any reserves beyond the $25,000 “reserve fund” accumulated prior to the taxable years involved herein. The Government thus maintains that all allowable depreciation for the years involved must be allocated to the beneficiaries and not to the trust. Both parties have proceeded as if the trust’s, and not petitioners’, tax liability were at issue herein. From our examination of the materials available, we have concluded that petitioners, and not the trust, are entitled to deduct the depreciation on the trust’s property. The testator’s will requires that a $25,000 reserve be established for “paying any extraordinary expense or capital improvements” prior to the commencement of income distributions to the beneficiaries, and this reserve had been accumulated in full prior to the beginning of the 1967 taxable year. The will does not call for any other reserve, for depreciation or any other purpose; instead, it mandates the distribution of the “remaining income” after payment of “principal and interest on mortgages, operational expenses, State, City and Federal taxes.” Based upon our examination of the foregoing provisions and the testator’s will as a whole, we conclude that the testator did not intend the trust to accumulate any reserve for depreciation or any other purpose beyond those specifically provided in the will. Had he intended the creation of an additional" } ]

[ { "docid": "20709464", "title": "", "text": "owner. We believe that this reasoning is consistent with the opinions of the North Carolina courts. The North Carolina courts have consistently applied a broad rule to second permittees when deciding whether they were in “lawful possession” for purposes of coverage under the financial responsibility laws. See, e.g., Nationwide Mut. Ins. Co. v. Chantos, 214 S.E.2d 438; Insurance Co. of North America v. Aetna Life and Cas. Co., 362 S.E.2d 836. Although the concept of lawful possession is not the equivalent of entitlement, we do think that lawful possession is closely analogous to entitlement because it focuses on the perspective of the user rather than the owner. Thus, we think the lawful possession analysis in these cases is more persuasive as to how we should interpret entitlement than is the permissive use analysis. We now apply this conclusion to the facts of this case. Although there is ample evidence from which the jury might find that Kathy did not reasonably believe she had permission to drive, there is also evidence that David, the first permittee, did in fact grant her permission to drive. Kathy has testified that she believed that the permission David gave her entitled her to drive when he was in the car. Thus, we agree with the district court that genuine issues of fact remain on this point, and they must be tried. IV. Conclusion The district court erroneously ruled that the legal right to drive was a prerequisite to entitlement under the policy clause at issue. Based on that ruling, it erroneously concluded that Kathy could not have reasonably believed that she was entitled to drive the car because she had no legal right to drive. For this reason, we reverse the judgment of the district court and remand for proceedings consistent with this opinion. REVERSED and REMANDED. . The Jamisons were later added as plaintiffs. . This clause differs from the traditional \"permissive use\" clauses in at least three respects. First, the standard changes from an objective one (permission) to one that is both objective (reasonableness) and subjective (belief). See Allstate Ins. Co. v. U.S." } ]

[ { "docid": "86320", "title": "", "text": "C. Exclusions When an insurer relies on an exclusion to deny coverage, it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation. Board of Pub. Ed. of Sch. Dist. of Pittsburgh v. National Union Fire Ins. Co. of Pittsburgh, 709 A.2d 910, 913 (Pa.Super.Ct.1998); Westmoreland v. Lumbermens Mut. Cas. Co., 704 So.2d 176, 179 (Fla.Dist.Ct.App.1997); Houpe v. City of Statesville, 128 N.C.App. 334, 497 S.E.2d 82, 88 (1988). Exclusionary clauses are generally disfavored. Consequently, courts construe any ambiguity in exclusionary language strictly against the insurer. Id. In this case, the insurance policy contains what is commonly referred to as an “intended or expected” exclusion. This type of exclusion excludes from coverage all damages and injuries which the insured intended as a consequence of his or her actions. See ABC Distrib., Inc. v. Lumbermens Mut. Ins. Co., 646 F.2d 207, 209 (5th Cir.1981) (applying Florida law). Florida, North Carolina, and Pennsylvania use the same test for application of the intended or expected exclusion. Under this test, the exclusion applies to bar coverage where both the act and the resultant harm are intended. See Allstate Ins. Co. v. Myers, 951 F.Supp. 1014, 1017 (M.D.Fla.1996); North Carolina Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 412 S.E.2d 318 (1992); United Servs. Auto Ass’n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986). Proof of “subjective or specific intent to harm is not required when a reasonable person would know that the harm would likely occur from the intentional acts.” Allstate Ins. Co. v. Myers, 951 F.Supp. at 1017. Additionally, many courts have held that the intent to harm may be inferred where the underlying theories of liability allege acts of intentional discrimination. See, e.g., Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir.1986); Travelers Cas. & Sur. Co. of Ill. v. Rage Admin. & Mktg. Serv., Inc., 42 F.Supp.2d at 1167; Jourdain v. Millet, 1997 WL 627590, *2 (E.D.La. Oct.9, 1997), aff'd, 163 F.3d 1355 (5th Cir.1998); Farmer City Cmty. Health Found.," }, { "docid": "11246717", "title": "", "text": "Co. v. Anderson, 756 So.2d 29 (Fla.2000); Siegle v. Progressive Consumers Ins. Co., — So.2d -, 2001 WL 456531 (Fla. 4th DCA, opinion filed May 2, 2001). If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, an ambiguity is deemed to exist by definition and the court is bound to adopt the interpretation which favors coverage. Anderson, supra. Florida law is equally well-settled that insuring or coverage clauses are to be construed in the broadest possible manner to effect the greatest extent of coverage. See Westmoreland v. Lumbermens Mutual Casualty Co., 704 So.2d 176 (Fla. 4th DCA 1997), and cases cited infra. On the other hand, insurance policy exclusions are construed in the narrowest possible manner, again with an eye toward maximizing the coverages afforded. See Anderson, supra; Demshar v. AAACon Auto Transport, Inc., 337 So.2d 963, 965 (Fla.1976); Blue Cross and Blue Shield of Florida, Inc. v. Steck, 778 So.2d 374 (Fla.2d DCA 2001); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA), cert. den., 282 So.2d 638 (Fla.1973)(espousing well settled and almost universally accepted principle of construing exclusion in a manner which affords the broadest possible coverage). More generally, in interpreting an insurance policy in accordance with these precepts, Florida law requires the court to look at the policy as a whole, and to give meaning to all of its terms. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla.1979). III. The Policy The insuring agreement and exclusionary passages pertinent to the present discussion are set forth in the policy at Section 1, “Coverages,” Sub-Section B, “Personal and Advertising Injury Liability” as follows: Coverage B. Personal and Advertising Injury Liability 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages cause of “personal injury” or “advertising injury” to which this insurance applies.... b. This insurance applies to: (1) “Personal injury” caused by an offense arising out of your business, excluding advertising publishing, broadcasting or telecasting" }, { "docid": "86319", "title": "", "text": "731417, *4 (E.D.La. Sept.17, 1999), aff'd, 234 F.3d 706 (5th Cir.2000) (housing discrimination); Travelers Cas. & Sur. Co. of Ill. v. Rage Admin. & Mktg. Serv., Inc., 42 F.Supp.2d 1159, 1167 (D.Kan.1999) (racial discrimination); Farmer City Cmty. Health Found., Inc. v. Cincinnati Ins. Co., 1994 WL 394914, *3-4 (C.D. Ill. Jul. 28, 1994) (racial discrimination); Brooklyn Law Sch. v. Aetna Cas. & Sur. Co., 661 F.Supp. 445, 452 (E.D.N.Y.1987), aff'd, 849 F.2d 788 (2d Cir.1988) (racial discrimination); Folsom Invest ments, Inc. v. American Motorists Ins. Co., 26 S.W.3d 556, 561 (Tex.Ct.App.2000) (sexual harassment); Rideout v. Crum & Forster Commercial Ins., 417 Mass. 757, 633 N.E.2d 376 (1994) (sex discrimination); Industrial Indem. Co. v. Pacific Maritime Ass’n, 97 Or.App. 676, 777 P.2d 1385, 1388 (1989). At least one Florida court has reached the same conclusion. See State Farm Fire & Cas. Co. v. Compupay, Inc., 654 So.2d 944, 946-47 (Fla.Dist.Ct.App.1995) (finding that allegations of sexual harassment and discrimination directed toward the injured person are intentional acts that do not constitute an occurrence under an insurance policy). C. Exclusions When an insurer relies on an exclusion to deny coverage, it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation. Board of Pub. Ed. of Sch. Dist. of Pittsburgh v. National Union Fire Ins. Co. of Pittsburgh, 709 A.2d 910, 913 (Pa.Super.Ct.1998); Westmoreland v. Lumbermens Mut. Cas. Co., 704 So.2d 176, 179 (Fla.Dist.Ct.App.1997); Houpe v. City of Statesville, 128 N.C.App. 334, 497 S.E.2d 82, 88 (1988). Exclusionary clauses are generally disfavored. Consequently, courts construe any ambiguity in exclusionary language strictly against the insurer. Id. In this case, the insurance policy contains what is commonly referred to as an “intended or expected” exclusion. This type of exclusion excludes from coverage all damages and injuries which the insured intended as a consequence of his or her actions. See ABC Distrib., Inc. v. Lumbermens Mut. Ins. Co., 646 F.2d 207, 209 (5th Cir.1981) (applying Florida law). Florida, North Carolina, and Pennsylvania use the same test for application" }, { "docid": "19326117", "title": "", "text": "1228 (11th Cir.1995). Under Florida law, any interpretation of contract terms must be viewed in light of the entire document. Prudential Property & Casualty Ins. Co. v. Bonnema, 601 So.2d 269 (Fla. 5th DCA 1992). Under Florida and federal law, a court must construe ambiguities in an insurance contract in favor of providing maximum coverage to the insured. Dyer v. Nationwide Mutual Fire Insurance Co., 276 So.2d 6, 8 (Fla.1973); Rigel v. National Casualty Co., 76 So.2d 285, 286 (Fla.1954); Gulf Tampa Drydock Co. v. Great Atlantic Insurance Co., 757 F.2d 1172, 1174 (11th Cir.1985). As a result, the Court will interpret terms in favor of the non-drafting party, and any ambiguities in the policy will be resolved in favor of the insured. Dahl-Eimers v. Mutual of Omaha Life Insurance Co., 986 F.2d 1379 (11th Cir.1993); Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467 (Fla.1993). However, when the language of the policy is clear and unambiguous, there is no need for judicial construction and the contract must be enforced as written. Great Global Assurance Co. v. Shoemaker, 599 So.2d 1036 (Fla. 4th DCA 1992). Failure to provide a definition for a term used in a policy does not necessarily render that term ambiguous. State Farm Fire and Casualty Co. v. Metropolitan Dade County, 639 So.2d 63 (Fla. 3d DCA 1994). “Just because insurance contracts are complex instruments, the fact that analysis is required for one fully to comprehend them, does not mean the contracts are ambiguous.” State Farm Fire and Casualty Co. v. Oliveras, 441 So.2d 175, 178 (Fla. 4th DCA 1983). Although it is axiomatic that exclusionary clauses are construed more strictly than coverage clauses in insurance contracts, see Indiana Ins. Co. v. Miguelarcaina, 648 So.2d 821 (Fla. 3d DCA 1995); Florida Farm Bureau Ins. Co. v. Birge, 659 So.2d 310 (Fla. 2d DCA 1994), where the exclusion is clearly stated and unambiguous, it will be enforced as written. Hawk Termite & Pest Control, Inc. v. Old Republic Insurance Co., 596 So.2d 96 (Fla. 3d DCA 1992). Duty to Defend Even with an understanding of the" }, { "docid": "6631372", "title": "", "text": "but did not.” Nautilus Ins. Co. v. Country Oaks Apartments, Ltd., 566 F.3d 452, 455 (5th Cir.2009) (quoting Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006)) (internal quotation omitted). “If the insurance policy is worded so that it can be given a definite meaning or certain legal meaning, then the policy is not ambiguous. If the policy is not ambiguous, then the court construes the policy as a matter of law.” Brown & Brown of Tex., Inc. v. Omni Metals, Inc., — S.W.3d -, 2010 WL 1240580 (Tex. App.-Houston [1st Dist.] Mar. 25, 2010, no pet. h.) (citing Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003)) (internal citation omitted). An ambiguity exists where a policy is susceptible to more than one meaning. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Courts interpreting contractual provisions give terms their plain, ordinary, and generally accepted meanings, unless otherwise defined by the parties. “ ‘Both the insured and the insurer are likely to take conflicting views of coverage, but neither conflicting expectations nor disputation is sufficient to create an ambiguity.’ ” Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. U.S. Liquids, Inc., 271 F.Supp.2d 926, 932 (S.D.Tex.2003) (quoting Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994)). “[I]f, and only if, the court finds an ambiguity in the contract provisions, particularly in exclusionary clauses, the court should construe the policy strictly against the insurer.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 271 F.Supp.2d at 932; see also Waffle House, Inc. v. Travelers Indem. Co. of Ill., 114 S.W.3d 601, 607 (Tex.App.-Ft. Worth 2003, pet. denied) (cautioning that exclusionary provisions “must be clearly expressed and must not be ambiguously worded”). And, “if the insured’s construction of an exclusionary provision is reasonable, it must be adopted, even if the insurer’s construction is more reasonable.” Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 271 F.Supp.2d at 931. Two distinct duties are at issue in the motion for summary judgment pending before the court: the duty to defend and the duty to indemnify. The duty to defend determination" }, { "docid": "19925111", "title": "", "text": "should be relieved of that obligation because facts establish that the Policy provides no coverage. (Dkt. 103 at 5). In essence, Underwriters asserts that if there is no duty to indemnify STD, there is no longer a duty to defend STD. Underwriters is correct in theory: the duty to defend ceases when it is shown that there is no potential for coverage, i.e., when there is no duty to indemnify. Thus the court must examine whether Underwriters has shown that there is no potential for coverage of STD under the Policy. IV. Underwriters’ Duty to Indemnify Under Florida law, an insurer’s duty to indemnify is determined by analyzing the policy coverages in light of the actual facts of the underlying case. Auto Owners Ins. Co. v. Travelers Cas. & Surety Co., 227 F.Supp.2d 1248, 1258 (M.D.Fla.2002) (citing State Farm Fire & Cas. Co. v. CTC Dev. Corp. 720 So.2d 1072, 1077 n. 3 (Fla.1998)). Underwriters states that the cross-liability exclusion was a “usual term” of the Policy, that facts now available show that Alberto Rivera is an insured under the Policy, and therefore there is no possibility of coverage under the Policy. The court examines each assertion in turn, without being confined to the contours of the complaint as when considering the duty to defend. A. Is the cross-liability exclusion a “usual term” of the Policy? A policy exclusion may relieve an insurer of their duty to indemnify only when it is clear the exclusion applies. Under Florida law, “exclusionary clauses in insurance contracts must be construed liberally against the insurance company and in favor of the insured in order that the purpose of insurance will not be defeated.” Tropical Park, 357 So.2d at 256. However, “if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Hagen v. Aetna Casualty & Surety Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996). The insurer alleging non-coverage based on an exclusion in the policy bears the burden of establishing that the exclusion applies. See LaFarge" }, { "docid": "2097452", "title": "", "text": "exclude coverage only for environmental pollution, not damages due to routine commercial hazards such as a faulty heating and ventilation system. We conclude that the pollution exclusion clause at issue is ambiguous as applied to the Gruner and Schomer actions because it is reasonable to interpret that clause as applying only to environmental pollution. We review de novo the district court’s grant of Prudential’s motion to dismiss. See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). Under New York law, an insurer’s duty to defend is “exceedingly broad.” Colon v. Aetna Life & Casualty Ins. Co., 66 N.Y.2d 6, 494 N.Y.S.2d 688, 689, 484 N.E.2d 1040, 1041 (1985). An insurer must defend a claim whenever the complaint suggests a reasonable possibility of coverage, regardless of the merits of the action. See Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 571 N.Y.S.2d 672, 673-74, 575 N.E.2d 90, 91-92 (1991). An insurer, however, may negate coverage by virtue of an exclusionary clause if the insurer establishes that the clause “is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case.” Continental Casualty Co. v. Rapid-American Corp., 80 N.Y.2d 640, 593 N.Y.S.2d 966, 972, 609 N.E.2d 506, 512 (1993). See also Niagara County v. Utica Mut. Ins. Co., 80 A.D.2d 415, 439 N.Y.S.2d 538, 542 (1981) (to be relieved of its obligation to defend, insurer must “demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions_”) (quotations omitted). When construing an insurance policy, the tests applied are “common speech” and the “reasonable expectation and purpose of the ordinary businessman.” Ace Wire & Cable Co. v. Aetna Casualty & Surety Co., 60 N.Y.2d 390, 469 N.Y.S.2d 655, 658, 457 N.E.2d 761, 764 (1983). Any ambiguity is to be construed against the insurer, particularly when the ambiguity is in an exclusionary clause. See id. An exclusionary clause, moreover, can be ambiguous in one context and not in another. See Continental Casualty, 593 N.Y.S.2d at 972, 609 N.E.2d at 512. As a threshold matter, we believe that" }, { "docid": "9685384", "title": "", "text": "correctly point out, some cases have held that, under specific circumstances, “auto exception” clauses using similar or identical language to the policy in question, do not preclude coverage despite the fact that a vehicle “operated by” or “loaned to” an insured was involved in some way in an accident. These case have held that “where two separate, independent acts of negligence combine to cause injury and one of those acts is excluded from coverage ... [under the “auto exception,”] the policy will still cover the damage incurred if the other act of negligence is not excluded under the policy.” Sharp v. Indiana Union Mut. Ins. Co., 526 N.E.2d 237, 240 (Ind.Ct.App.1988). These cases, however, are inapplicable to the case at bar. The line of cases relied upon by the Plaintiff, which have held the “auto exception” clauses inapplicable, have all hinged their rulings on one essential element not present in the case at bar: the existence of a wholly independent, non-vehicle related act of negligence which, separate and apart from the presence of an automobile, caused the injuries. The most important, and in fact, conclusive, factor in these cases which prompted the various courts to find inapplicable the “auto exception” clause, therefore,-was the presence of an act of negligence wholly separate and independent of the use or operation of a motor vehicle. See, e.g., Richland Knox Mut. Ins. Co. v. Kallen, 376 F.2d 360, 364-64 (6th Cir.1967) (Peck, J.) (where negligent lighting of fire cracker inside car caused injuries and “the location of the parties inside the car was purely incidental” “auto exception” clause held inapplicable); Wirth v. Maryland Cas. Co., 368 F.Supp. 789, 792 (W.D.Ky.1973), aff'd, 497 F.2d 925 (6th Cir.1974) (lighting of fire cracker inside of car was cause of injuries and thus injuries did not arise out of the use of an automobile); Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 887-88 (S.Ct.Tenn.1991) (where non-auto related acts of negligence constitute a “substantial” factor in causing injuries and auto was mere “situs” of accident “auto exception” clause should not apply); Nationwide Ins. Co. v. Auto-Owners Mut. Ins. Co.," }, { "docid": "20628139", "title": "", "text": "is not even potential coverage for these alleged causes. The complaints, however, allege a second set of causes over which the parties are in dispute. The complaints allege that Mr. Waserstein and 1108 negligently exposed the plaintiffs in the underlying suit to “living organisms,” “microbial populations,” “airborne and microbial contaminants,” and “indoor allergens.” St. Ct. Compl. at ¶¶ 13, 40, 42 b, c, d, 48, 50 d. If this set of causes are not excluded from coverage, then there is “one claim being within the insurance coverage,” and the “insurer is obligated to defend the entire suit.” Baron Oil Co., 470 So.2d at 813-14. But if this set of causes are also excluded from coverage, then there is not even a single covered cause alleged in the underlying complaints, and Nova has no duty to defend either Mr. Waserstein or 1108 in the underlying suits. This requires an interpretation of the insurance policy, which, under Florida law, is a matter of law for the court. See Adelberg v. Berkshire Life Ins., 97 F.3d 470, 472 (11th Cir.1996). Thus, I turn to see if “living organisms,” “microbial populations,” “airborne and microbial contaminants,” and “indoor allergens” are excluded from coverage under the policy. 2. Interpreting the Pollution Exclusion and Definition of “Pollutant” Under Florida law, “insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.” Prudential Prop. & Cas. Ins. v. Swindal, 622 So.2d 467, 470 (Fla.1993). See also Rigel v. Nat’l Cas. Co., 76 So.2d 285, 286 (Fla.1954); State Farm Fire & Cas. Ins. v. Deni Assocs., 678 So.2d 397, 400 (Fla. 4th DCA 1996), aff'd 678 So.2d 397 (Fla.1996). Thus, “where the language in a policy is plain and unambiguous, there is no special construction or interpretation required, and the plain language of the policy will be given the meaning it clearly expresses.” Fla. Farm Bureau Ins. v. Birge, 659 So.2d 310, 312 (Fla. 2d DCA 1994). If an exclusionary clause in an insurance contract “is ambiguous or otherwise susceptible to more than one meaning, [it] must be construed in favor" }, { "docid": "23289979", "title": "", "text": "months after Steven Cade was terminated from employment. In March of 1992, Cade-Grayson was advised that Steven Cade had been making disparaging statements about Cade-Grayson to at least one of Cade-Grayson’s suppliers. In order to respond, Cade-Grayson found it necessary to issue a statement to its brokers to the effect that Steven Cade was terminated for acts involving dishonesty. Nationwide maintained its refusal. On May 20, 1993, a jury returned a verdict against Cade-Grayson on Cade’s defamation claim for $1 million. This action followed. Cade-Grayson seeks indemnification for the entire amount of the verdict and its costs of defense. The parties made cross-motions for summary judgment. Nationwide argued that the policy’s employment-related practices exclusion excluded Cade’s post-termination defamation claim from coverage because it arose out of the employment relationship. The district court denied Cade-Grayson’s motion and granted Nationwide’s motion. This timely appeal followed. The district court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291. II STANDARD OF REVIEW We review de novo a district court’s grant of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). The meaning and interpretation of an insurance contract is a question of law reviewed de novo. Aetna Cas. and Sur. Co. v. Pintlar Corp., 948 F.2d 1507, 1511 (9th Cir.1991). In a diversity case, we decide issues of state law as we believe the state’s highest court would decide them. Jones-Hamilton Co. v. Beazer Materials & Serv., Inc., 973 F.2d 688, 692 (9th Cir.1992). III DISCUSSION In this case, whether or not there is coverage depends on the interpretation of an exclusion. Because this diversity case arose in California, we apply California law. The insurer bears the burden of bringing itself ■within a policy's exclusionary clauses. Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 880, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978). Exclusionary clauses are strictly construed. Loyola Marymount Univ. v. Hartford Accident and Indem. Co., 219 Cal.App.3d 1217, 1223, 271 Cal.Rptr. 528 (1990). See also State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 101, 109 Cal.Rptr. 811, 514 P.2d 123 (1973)" }, { "docid": "16962439", "title": "", "text": "that as a matter of law there is no coverage for the damages to the K-2 because the policy has an exclusion which specifically provides that there is no coverage for any loss incurred “during a race or speed trial or during preparation for a race or speed trial.” According to Lloyds, the K-2 was damaged while Giroire was using it in preparation for a race; he was sailing it to Newport singlehandedly to fulfill a prerequisite to participation in the Europe 1 Star race, and he was bringing it up to Newport in preparation for the Legend Cup. Because there is no firmly-entrenched federal law on the construction of exclusionary provisions, the Court looks to Florida law to resolve Lloyd’s argument that Giroire is not entitled to insurance benefits because an exclusionary clause bars coverage for the loss at issue. Interpretation of a marine policy is a question of law for the court. Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174 (11th Cir.1985). A policy’s language is ambiguous when its meaning is doubtful. Hagen v. Aetna Casualty & Sur. Co., 675 So.2d 963 (Fla. 5th DCA 1996). Whether the terms of a policy are ambiguous depends not upon the meaning of such terms to one engaged in the insurance business or trained in law, but upon what the drafter of the policy might reasonably anticipate would be the effect of the language used upon an untrained mind. John A. Appleman and Jean Appleman, Insurance Law and Practice section 7386. In this case Giroire argues, persuasively, that the language used in the exclusion, “during preparation for a race,” is ambiguous. The Court agrees that as applied to the facts of this case, there is a reasonable basis for a difference of opinion as to whether the yacht was damaged “during preparation for a race.” There is nothing in the policy to indicate what the insurer meant by the term “preparation.” It is settled law that insurance policies in general, and exelu- sions in particular, are interpreted strictly against the carrier. Mitchel v. Cigna Prop. &" }, { "docid": "10458379", "title": "", "text": "and properly supported its motion, the burden shifts to the nonmovant to create, through the evidentiary forms listed in FED.R.CIV.P. 56(e), genuine issues of material fact necessitating a trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. B. Policy language The coverage language under Section I—Liability—Coverage A is án omnibus liability clause which is standard in liability insurance policies. See Ga. Mut. Ins. Co. v. Rollins, Inc., 209 Ga.App. 744, 434 S.E.2d 581, 583 (1993). The definition of an insured to include “any other person or organization liable for the use of such a car by one of the above insureds” is sufficiently broad to include an employer responsible for an employee’s negligence in a respondeat superior situation. Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga.App. 426, 160 S.E.2d 603 (1968). Omnibus clauses such as the one contained in State Farm’s policy have been construed to include the United States in the definition of an “insured” in situations involving its employees’ operation of vehicles in the scope of their government employment. United States v. Myers, 363 F.2d 615, 617-18 & n. 1 (5th Cir.1966) (citing an “unbroken line of cases” in support of its holding); Barker v. United States, 233 F.Supp. 455, 456 (N.D.Ga.1964). Unless additional policy language clearly excluded the United States from coverage, the omnibus liability clause in the policy issued to Ms. McGowan extended to the United States as an additional insured. The next question is whether the language of paragraph 3.a. is sufficiently unambiguous to exclude the United States from coverage. In Georgia, the courts will construe a contract of insurance most favorably to the insured when there is any ambiguity in the policy. U.S. Fidelity & Guaranty Co. v. Gillis, 164 Ga.App. 278, 296 S.E.2d 253, 256 (1982); Richards v. Hanover Ins. Co., 250 Ga. 613, 299 S.E.2d 561, 563 (1988). The policy must be construed so as to provide for coverage unless the lack of coverage clearly appears. Travelers Indem. Co. v. Whalley Construction Co., 160 Ga.App. 438, 287 S.E.2d 226 (1981). Georgia law requires a narrow construction of exclusionary" }, { "docid": "6231779", "title": "", "text": "an insurer who fails to comply with the CAS’s notification requirements is not estopped by that statute from later refusing to make payment on a matter excluded by the policy. See, e.g., Danny’s Backhoe Svc., LLC v. Auto Owners Ins. Co., 116 So.3d 508, 511 (Fla. 1st DCA 2013) (notice requirement under CAS only applies where insurer asserts coverage defense to coverage that otherwise exists; where the policy expressly excluded coverage of rental property, the CAS does not apply); Max Specialty Ins. Co. v. A Clear Title & Escrow Exch., LLC, 114 F.Supp.3d 1191, 1196 (M.D. Fla. 2013) (non-compliance with CAS did not estop insurer from indemnifying based on a criminal act that was expressly excluded by the policy); Hartford Ins. Co. of the Midwest v. BellSouth Telecomm., Inc., 824 So.2d 234 (Fla. 4th DCA 2002) (insurer’s assertion of policy provision containing an anti-stacking clause that limited insurer’s amount of liability for each accident did not constitute a denial of coverage and was therefore not subject to the CAS); Almendral v. Sec. Nat’l Ins. Co., 704 So.2d 728, 730 (Fla. 3d DCA 1998) (where uninsured motorist coverage was expressly excluded by terms of policy, insurer’s failure to adhere to requirements of CAS did not bar it from disclaiming liability); Scottsdale Ins. Co. v. Deer Run Prop. Owner’s Ass’n, Inc., 642 So.2d 786 (Fla. 4th DCA 1994) (where policy did not provide coverage for insured’s contractual obligation to pay attorney’s fees, insurer’s failure to comply with CAS in so notifying insured did not estop insured from refusing to pay); State Farm Mut. Auto. Ins. Co. v. Hinestrosa, 614 So.2d 633, 635-36 (Fla. 4th DCA 1993) (where policy excluded coverage for any member of insured’s family, insurer’s statement that it had no known policy defenses did not trigger application of the CAS to estop the insurer’s later refusal to indemnify the insured based on a policy provision excluding family members from coverage); Nat’l Union Fire Ins. Co. of Pittsburg, Pa. v. Goldman, 548 So.2d 790, 792 (Fla. 2d DCA 1989) (policy excluded coverage for acts of deliberate dishonesty, on which acts the" }, { "docid": "19925112", "title": "", "text": "is an insured under the Policy, and therefore there is no possibility of coverage under the Policy. The court examines each assertion in turn, without being confined to the contours of the complaint as when considering the duty to defend. A. Is the cross-liability exclusion a “usual term” of the Policy? A policy exclusion may relieve an insurer of their duty to indemnify only when it is clear the exclusion applies. Under Florida law, “exclusionary clauses in insurance contracts must be construed liberally against the insurance company and in favor of the insured in order that the purpose of insurance will not be defeated.” Tropical Park, 357 So.2d at 256. However, “if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Hagen v. Aetna Casualty & Surety Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996). The insurer alleging non-coverage based on an exclusion in the policy bears the burden of establishing that the exclusion applies. See LaFarge v. Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir.1997); Auto Owners Ins. Co. v. Travelers Cas. & Surety Co., 227 F.Supp.2d 1248, 1258 (M.D.Fla.2002). At the time of the accident in this case, the complete Policy had not been issued and only a written binder existed. Florida insurance law provides that “Binders... shall be deemed to include all the usual terms of the policy as to which the binder was given together with such applicable endorsements as are designated in the binder, except as superseded by the clear and express terms of the binder.” Fla. Stat. § 627.420. Here, however, the binder does not designate any specific endorsements, and only contains the phrase “Exclusions/Amendments as per quote.” (Dkt. 107 at 10). Underwriters contends that the binder includes the cross-liability exclusion because it was a “usual term” of the policy under Fla. Stat. § 627.420. STD cites Steuart Petroleum Company, Inc. v. Certain Underwriters at Lloyd’s London, 696 So.2d 376, 379 (Fla. 1st DCA 1997), for the proposition that an exclusion labeled an endorsement cannot" }, { "docid": "20628140", "title": "", "text": "(11th Cir.1996). Thus, I turn to see if “living organisms,” “microbial populations,” “airborne and microbial contaminants,” and “indoor allergens” are excluded from coverage under the policy. 2. Interpreting the Pollution Exclusion and Definition of “Pollutant” Under Florida law, “insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.” Prudential Prop. & Cas. Ins. v. Swindal, 622 So.2d 467, 470 (Fla.1993). See also Rigel v. Nat’l Cas. Co., 76 So.2d 285, 286 (Fla.1954); State Farm Fire & Cas. Ins. v. Deni Assocs., 678 So.2d 397, 400 (Fla. 4th DCA 1996), aff'd 678 So.2d 397 (Fla.1996). Thus, “where the language in a policy is plain and unambiguous, there is no special construction or interpretation required, and the plain language of the policy will be given the meaning it clearly expresses.” Fla. Farm Bureau Ins. v. Birge, 659 So.2d 310, 312 (Fla. 2d DCA 1994). If an exclusionary clause in an insurance contract “is ambiguous or otherwise susceptible to more than one meaning, [it] must be construed in favor of the insuredf.]” State Farm Auto. Ins. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986). But there must be a “genuine inconsistency, uncertainty or ambiguity in meaning... after resort to the ordinary rules of construction,” before an exclusionary clause is construed in favor of the insured. Id. Courts may not “rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Id. Deni Assocs. v. State Farm Fire & Cas., 711 So.2d 1135 (Fla.1998), is the closest Florida authority addressing pollution exclusion clauses and the definition of “pollutant.” Deni rejected the insured’s argument that pollution exclusion clauses only apply to industrial and environmental pollution because the clause at issue did not contain any such limiting language. See id. at 1138, 1139 (“We cannot accept the conclusion reached by certain courts that because of its ambiguity the pollution exclusion clause only excludes environmental or industrial pollution.. .We cannot place limitations upon the plain language of a policy exclusion simply because we may think it should have been written that" }, { "docid": "16486347", "title": "", "text": "291 So.2d 699, 701 (Miss.1974) (looking to authority of other states regarding whether insureds, under uninsured motorist policies, can aggregate coverage provided in a single insurance policy which insures more than one vehicle), overruled on other grounds, Government Employees Ins. Co. v. Brown, 446 So.2d 1002 (Miss.1984); Lowery, 285 So.2d at 771-77 (reviewing cases interpreting other states’ uninsured motorist statutes and concluding that \"the great weight of authority supports the (plaintiff's] contention that the exclusionary clause violates the public policy of this state”); Rampy, 278 So.2d at 432-34 (looking for guidance to interpretations of \"similar, if not identical” uninsured motorist statutes); McMinn, 276 So.2d at 685 (treating as \"persuasive and enlightening” other uninsured motorist statutes which do not contain the exact phraseology of the UM Act); Harthcock, 248 So.2d at 461-62 (looking to other jurisdictions’ interpretation of \"other insurance” clause); Travelers Indem. Co. v. Chappell, 246 So.2d 498, 501-04 (Miss.1971) (adopting view among states that if two escape clauses within insurance policy operate to negate coverage, those escape clauses are null and void). . Harris v. Magee, 573 So.2d at 653; see also Wickline, 530 So.2d at 714; Dunnam, 366 So.2d at 672. Our case law is in accord with this view. See Johnston v. Safeco Ins. Co. of Am., 727 F.2d 548, 550 (5th Cir.1984) (per curiam) (rejecting plaintiff's argument because it rested on state uninsured motorist statutes “that are grossly different from Mississippi’s”). . See Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 663-65 (Miss.1994) (declaring invalid offset provision which operated to deny insured the maximum excess coverage the insured paid for); Employers Mut. Cas. Co. v. Tompkins, 490 So.2d 897, 904-05 (Miss.1986) (declaring void policy provision which stated that nonlisted vehicles would not be covered, but failed to inform insured that insured would not receive minimum statutoiy coverage); Nester, 459 So.2d at 793 (holding that policy exclusion for uninsured motorist claims involving permissive users violated Mississippi public policy as expressed in the UM Act); State Farm Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670, 673 (Miss.1976) (\"An insurance company cannot by the provisions in one" }, { "docid": "21869163", "title": "", "text": "requires the court to construe the policy against the insurer. Performance Autoplex II Ltd. v. Mid-Continent Casualty Co., 322 F.3d 847, 854 (5th Cir.2003). If the court finds that the contract is ambiguous in an exclusion provision, it construes the contract strictly against the insurer. Balandran, 972 S.W.2d at 741 National Union Fire Ins. Co. of Pittsburgh v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991)(“if a contract of insurance is susceptible of more than one reasonable interpretation, we must resolve the uncertainty by adopting the construction that most favors the insured”); American States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir.l998)(applying Texas law). The insurer has the burden to show that coverage is precluded by an exclusionary provision. Bailey, 133 F.3d at 369. Where the insured’s construction of an exclusion is reasonable, the court must adopt it even if the insurer’s construction is more reasonable. Hudson Energy, 811 S.W.2d at 555 (“The court must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.”). “[A]n attempt to exclude coverage must be expressed in clear and unambiguous language.” Id. See also TIG Specialty Ins., Co. v. Pinkmonkey.com, Inc., 375 F.3d 365, 373-74 (5th Cir.2004)(Pickens, J., concurring and dissenting). 2. Coverage for Defense Costs in Criminal Actions under Policies Before the Court As noted, “CLAIM” is defined in both the AEGIS and EIM Policies, § 11(A)(1) and § IV(I)(1) respectively, as “any demand, suit or proceeding against any DIRECTORS and/or OFFICERS during the POLICY PERIOD, ... which seeks actual monetary damages or other relief and which may result in any Directors and/or OFFICERS becoming legally obligated to pay ULTIMATE NET LOSS by reason of any Wrongful Act actually or allegedly caused, committed or attempted .... ” “ULTIMATE NET LOSS” is the “total INDEMNITY and DEFENSE COST with respect to which this POLICY applies ....” AEGIS Policy, Ex. A.2.a, § II(O) to # 3121. “WRONGFUL ACT” is “any actual" }, { "docid": "23625651", "title": "", "text": "language depending upon the exclusion in which they appear. At any rate, the assault and battery exclusion alone is sufficient to preclude coverage for all claims asserted against Canutillo, notwithstanding the effect of the bodily injury exclusion. . We furthermore reject Canutillo’s assertion that the policy is somehow ambiguous because it conflicts with Canutillo's expectation that the policy would cover this type of claim. \"[N]ot every difference in the interpretation of . ’. an insurance-policy amounts to an ambiguity. Both the insured and the insurer are likely to take conflicting views of coverage, but neither conflicting expectations nor disputation is sufficient to create an ambiguity.\" Forbau, 876 S.W.2d at 134. The objective intent of the parties as evidenced in the Policy, when examined under Texas law, excludes from coverage all the claims asserted, notwithstanding Canutillo’s subjective expectations. See Brooks, Tarlton, Gilbert, Douglas & Kressler, 832 F.2d at 1364 (noting that objective, not subjective, intent controls when the policy is unambiguous). We also disagree that the interpretation given the identical exclusionary clauses by a North Carolina court in Durham City Board of Education v. National Union Fire Ins. Co., 109 N.C.App. 152, 426 S.E.2d 451 (1993, rev. denied), evidences ambiguity in the Policy. The Durham court did not find these clauses to be ambiguous, but rather held that under North Carolina law, claims against a school board for negligent supervision of a coach who raped a student did not \"arise out of” the coach’s assault. This interpretation, however, directly contradicts settled law in Texas as set forth in McManus and its progeny. Merely because North Carolina law differs from that of Texas does not render the policy exclusions ambiguous. See, e.g., T.C. Bateson Constr. Co. v. Lumbermens Mut. Cas. Co., 784 S.W.2d 692, 698 (Tex.App. — Houston [14th Dist.] 1989, writ denied) (rejecting argument that exclusion is ambiguous as matter of law because courts of different states have interpreted it differently); Union Pacific Resources Co. v. Aetna Cas. & Sur. Co., 894 S.W.2d 401, 405 (Tex.App.— Fort Worth 1994, writ denied) (noting split among courts but holding that “[n]either conflicting views" }, { "docid": "10458380", "title": "", "text": "United States v. Myers, 363 F.2d 615, 617-18 & n. 1 (5th Cir.1966) (citing an “unbroken line of cases” in support of its holding); Barker v. United States, 233 F.Supp. 455, 456 (N.D.Ga.1964). Unless additional policy language clearly excluded the United States from coverage, the omnibus liability clause in the policy issued to Ms. McGowan extended to the United States as an additional insured. The next question is whether the language of paragraph 3.a. is sufficiently unambiguous to exclude the United States from coverage. In Georgia, the courts will construe a contract of insurance most favorably to the insured when there is any ambiguity in the policy. U.S. Fidelity & Guaranty Co. v. Gillis, 164 Ga.App. 278, 296 S.E.2d 253, 256 (1982); Richards v. Hanover Ins. Co., 250 Ga. 613, 299 S.E.2d 561, 563 (1988). The policy must be construed so as to provide for coverage unless the lack of coverage clearly appears. Travelers Indem. Co. v. Whalley Construction Co., 160 Ga.App. 438, 287 S.E.2d 226 (1981). Georgia law requires a narrow construction of exclusionary language on the theory that “the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” Gillis, 296 S.E.2d at 255-56, quoting Alley v. Great American Ins. Co., 160 Ga. App. 597, 287 S.E.2d 613 (1981). Courts have considered whether exclusionary clauses similar to paragraph 3.a. are sufficiently unambiguous to exclude the United States from coverage as an insured. Directly on point is the case of Ogima v. Rodriguez, 799 F.Supp. 626 (M.D.La.1992), which involved the interpretation of the identical policy provisions at issue herein. Plaintiff Louise Ogima originally filed suit in the Louisiana state court against defendant Rodriguez and Rodriguez’s insurer, State Farm. Ogima claimed that she sustained injuries resulting from the negligent operation of a vehicle driven by Rodriguez while delivering United States mail. State Farm filed a third-party action against the United States seeking indemnification for any sums it was required to pay in damages, as well as an order requiring the United States to defend Rodriguez. The United" }, { "docid": "23289980", "title": "", "text": "judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). The meaning and interpretation of an insurance contract is a question of law reviewed de novo. Aetna Cas. and Sur. Co. v. Pintlar Corp., 948 F.2d 1507, 1511 (9th Cir.1991). In a diversity case, we decide issues of state law as we believe the state’s highest court would decide them. Jones-Hamilton Co. v. Beazer Materials & Serv., Inc., 973 F.2d 688, 692 (9th Cir.1992). III DISCUSSION In this case, whether or not there is coverage depends on the interpretation of an exclusion. Because this diversity case arose in California, we apply California law. The insurer bears the burden of bringing itself ■within a policy's exclusionary clauses. Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 880, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978). Exclusionary clauses are strictly construed. Loyola Marymount Univ. v. Hartford Accident and Indem. Co., 219 Cal.App.3d 1217, 1223, 271 Cal.Rptr. 528 (1990). See also State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 101, 109 Cal.Rptr. 811, 514 P.2d 123 (1973) (“Whereas coverage clauses are interpreted broadly so as to afford the greatest possible protection to the insured, exclusionary clauses are interpreted narrowly against the insured.”) (citations omitted). The CGL policy provided coverage, inter alia, for the following: We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal injury”____ We will have the right and duty to defend against any “suit” seeking those damages .... This insurance applies to “personal injury” caused by an offense arising out of your business____ Personal injury means injury ... arising out of one ... of the following offenses ... (d) Oral or written publication of material that slanders or libels a person---- The policy's “Employment-Related Practices Exclusion” provided that coverage does not apply to: e. “Personal injury” arising out of any: (1) Refusal to employ; (2) Termination of employment; (3) Coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination, or other employment-related practices, policies, acts or omissions; or (4) Consequential “personal injury” as a result of (1) through (3) above. Read literally" } ]

[ { "docid": "8645512", "title": "", "text": "had to sign it to continue work at that job site. Id. The Ninth Circuit held that the fraudulent inducement claim was not preempted because it did not require the court to interpret the agreement but instead involved only the facts surrounding the formation of the agreement without reference to the agreement itself. Id. at 538-39. The claim advanced by W & F— that the Union fraudulently induced it to sign the Employer Participation Agreements — like the claim in Wilson, does not require interpretation of a collective bargaining agreement or even of the Employer Participation Agreements themselves. Instead, the rights and duties at issue arise from the Union’s actions prior to the formation of the Employer Participation Agreements. W & F alleges that the Union claimed it was seeking only to show W & F the benefits of having a union labor force, when in fact it was deceiving the employer into paying union benefits for all its employees. The relevant inquiry here concerns the representations made by the Union and/or Helldobler at the time the Project Agreements were executed, not any term of the Agreements themselves. Section 301 therefore does not preempt the third-party state law claim. Finally, allowing the district court to rule on the fraud claim presents no threat to federal labor law. Because ruling on the fraud claim does not involve the interpretation of a collective bargaining agreement, ruling on that claim presents no challenge to the uniformity of federal law governing labor contracts. In short, section 301 does not preempt Walcher & Fox’s claim of fraud in the inducement. D. Individual immunity under Atkinson Lastly, Helldobler claims that Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) overruled on other grounds by Boys Markets, Inc., v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) provides him immunity from suit. Helldobler misreads Atkinson. Atkinson addressed the question of whether individual union members could be held liable for the union’s violation of a no-strike clause in their contract. The Supreme Court held that" } ]

[ { "docid": "1269036", "title": "", "text": "were preempted by § 301 of the LMRA. The jury panel included three blacks. All were excluded by peremptory strikes exercised by the appellees without objection by appellant. Clark appeals from a verdict in favor of appellees. II. Appellant Clark argues that the district court erred in holding that his state-law negligence claims are preempted by federal law. Appellant frames his action against Newport News as one for negligence in failing to use proper drug-testing procedures and accurately maintain test results, proximately resulting in his wrongful discharge. The action against the Union is presented as one in negligence for failure to prevent the use of improper testing procedures in the formation and enforcement of the collective-bargaining agreement and failure to challenge prior arbitration decisions upholding terminations of Newport News’ employees under the drug-testing provisions of the agreement. Section 301 of the LMRA expresses a federal policy, mandated by Congress, that federal law be applied in addressing disputes arising out of labor contracts. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917-18, 1 L.Ed.2d 972 (1957)). In furtherance of the federal policy, “when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract,” the claim is preempted by federal law. Id. at 220, 105 S.Ct. at 1916. The only exception is where state law proscribes the conduct or confers “nonnegotiable ... rights on employers or employees independent of any right established by contract.” Id. at 212, 105 S.Ct. at 1912. However, if the state-law rights and obligations have no independent existence and can be waived or altered by private agreement, they are preempted by the agreement. Id. at 213, 105 S.Ct. at 1912. In other words, where “evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract” and “state tort law purports to define the meaning of the contract relationship, that law is pre-empted.” Id. Moreover, the contractual rights" }, { "docid": "1754022", "title": "", "text": "the entire field of labor law, “the question whether a certain state action is pre-empted by federal law is one of congressional intent.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985). The issue thus becomes whether Congress intended to preempt state statutes that protect workers’ compensation actions when it enacted Section 301 of the LMRA. Section 301 provides subject matter jurisdiction to the federal courts for suits involving violations of collective bargaining agreements. In cases where section 301 is the basis of jurisdiction, it also requires that courts apply federal common law to determine the meaning of the agreement. Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962). Thus, the Supreme Court has held that section 301 preempts a state claim when “resolution of a state-law claim is substantially dependent upon analysis of the terms of [a collective bargaining] agreement.” Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1916. Pratt & Whitney argues that section 301 preemption is mandated here because adjudication of the state claim will require reference to the collective bargaining agreement. In pressing this fundamental contention in a number of ways, Pratt & Whitney relies principally on Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S.Ct. 1904. In Allis-Chalmers, the Court held that plaintiff’s suit alleging a state law tort of bad-faith handling of an insurance claim by an employer was preempted by section 301. Plaintiff, an employee of Allis-Chalmers, was covered by a collective bargaining agreement that provided for payment of insurance benefits for non-occupational in juries. Plaintiff suffered a non-occupational injury and sued Allis-Chalmers for bad-faith handling of his insurance claim. Although he did receive benefits, plaintiff contended that Allis-Chalmers had acted in bad faith by periodically ordering the insurance company to cut off its payments to him. The Court concluded that plaintiffs claim was dependent upon the terms of the collective bargaining agreement. It pointed out that interpretation of the labor agreement would determine “whether there was an obligation ... to provide the payments in a timely manner,” and" }, { "docid": "15424757", "title": "", "text": "law or dismissed as preempted. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985). Allis-Chalmers is the leading.case interpreting Section 301. The Court held that parties cannot escape the preemptive effect of Section 301 by casting their claims as tort claims rather than contract claims. Id. at 210, 105 S.Ct. at 1911. The Court held that the key to determining the scope of preemption is not how the complaint is cast, but whether the claims can be resolved only by referring to the terms of the collective bargaining agreement. Id. at 213, 105 S.Ct. at 1912. “Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.” Id. at 211, 105 S.Ct. at 1911. The Court expressed concern that such evasion could emasculate the arbitration process. Id. at 219, 105 S.Ct. 1915. On the other hand, the Court noted that Section 301 does not preempt every dispute concerning employment or tangentially involving a collective bargaining agreement; for example, state rules proscribing conduct or establishing rights and obligations independent of a labor contract are not preempted. Id. at 211-12, 105 S.Ct. at 1910-11. The Court framed the test for preemption of a tort claim as whether the tort “confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” 471 U.S. at 213, 105 S.Ct. at 1912. Under Allis-Chalmers, the district court had to decide whether Tellez’s claims derive from, or require interpretation of, his collective bargaining agreement. If they do not, the court must determine whether permitting the state law claims to proceed would infringe upon the arbitration process established by the collective bargaining agreement. 1. Defamation Tellez alleges that PG & E defamed him by distributing copies of a letter maliciously and falsely accusing him of buying cocaine on the job. This claim neither asserts rights deriving from the" }, { "docid": "10072996", "title": "", "text": "analysis of the terms of an agreement made between the parties in a labor contract * * Lingle, 823 F.2d at 1048, quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985); see also IBEW v. Hechler, — U.S.-, 107 S.Ct. 2161, 2166, 95 L.Ed.2d 791 (1987) (holding that “an employee’s state-tort action that necessarily rests on an interpretation of [the] terms [of the collective bargaining agreement] is pre-empted by sec. 301”). If resolution of a state law tort claim is substantially dependent upon analysis of the terms of a labor agreement, then that claim is “inextricably intertwined with consideration of the terms of the labor contract,” and, therefore, preempted. Lueck, 471 U.S. at 213, 105 S.Ct. at 1912. We now apply these principles to this case. 1. Fraudulent misrepresentation The plaintiffs, in their claim for fraudulent misrepresentation, allege that: When Keystone and the Union entered into the “Shutdown Agreement” on November 14, 1985 * * * the defendants, including Corral, were well aware that said Shutdown Agreement * * * was false and fraudulent in that inter alia (a) it and they alleged that “the assets of [CHS Division] would be sold to an independent buyer”, (b) it and they failed to disclose that Frank Corral was an officer of both Keystone * * * [and] CHS Acquisition * * * and a director and on information and belief a substantial shareholder of CHS [Acquisition], the alleged independent buyer, (c) it and they failed to advise the plaintiffs that they would not be hired back by the new company because of their age, their prior labor activities and valid workmen’s compensation claims that had been previously filed by some of said Plaintiffs, and (d) it and they failed to advise the Plaintiffs that the new corporation would be an empty shell of a company with little or no capital with Keystone financing the transaction and supporting it with a guarantee of continued purchases of fence posts. Par. 300. The plaintiffs also allege that the defendants knew that the Shutdown Agreement was false" }, { "docid": "23618065", "title": "", "text": "(1957). Applying federal law to these cases ensures a uniform interpretation of labor contract terms, a goal that the Supreme Court has described as particularly compelling. “The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence.” Local 174, Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962). In order to preserve this uniformity, even suits based on torts, rather than on breach of collective bargaining agreements, are governed by federal law if their evaluation is “inextricably intertwined with consideration of the terms of [a] labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985). Section 301 preempts all state-law causes of action evaluation of which requires interpretation of a labor contract’s terms. See, e.g., Allis-Chalmers, 471 U.S. at 214-20, 105 S.Ct. at 1912-15 (finding preempted a state tort based on the duty to act in good faith and deal fairly, because the meanings of “good faith” and “fair dealing” were derived from the particular labor contract); Lucas Flour, 369 U.S. at 104, 82 S.Ct. at 577 (finding preempted a state breach-of-contract suit based on the collective bargaining agreement). Although its scope is substantial, section 301 does not preempt every suit concerning employment. If a court can uphold state rights without interpreting the terms of a CBA, allowing suit based on the state rights does not undermine the pur pose of section 301 preemption: guaranteeing uniform interpretation of terms in collective bargaining agreements. Therefore, “nonnegotiable state-law rights ... independent of any right established by contract” are not preempted. Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912. A contrary rule would permit unions and employers to exempt themselves from state labor standards. Congress never intended “to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Id. at 212, 105 S.Ct. at 1912; see, e.g., Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir.1987) (holding that a wrongful discharge claim based on violation of" }, { "docid": "14806610", "title": "", "text": "claims that implicate a collective bargaining agreement must be construed as a § 301 claim and adjudicated under federal labor law or be dismissed as preempted. Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1918-19; Harris, 897 F.2d at 402-03. The district court then applied the test for preemption of tort claims set out in Allis-Chalmers and first carried forward in this circuit in Young, inquiring “whether the state ‘confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.’ ” (Young, 830 F.2d at 999 (quoting Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912)); see also Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1062 (9th Cir.1989); Utility Workers v. Southern Cal. Edison Co., 852 F.2d 1083, 1085-86 (9th Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1530, 103 L.Ed.2d 835 (1989). We agree that each of Schlacter-Jones’s claims is preempted. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Supreme Court set out the analysis we must use in determining whether § 301 preempts state law claims. “[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is preempted and federal labor-law principles—necessarily uniform throughout the nation—must be employed to resolve the dispute.” Id. at 405-06, 108 S.Ct. at 1881. In other words, an “application of state law is preempted by § 301 [of the LMRA] only if such application requires the interpretation of a collective-bargaining agreement.” Id. at 413, 108 S.Ct. at 1885. Section 301, however, does not preempt “state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1912. The gravamen of Schlacter-Jones’s claims for breach of implied contract and breach of the implied covenant of good faith and fair dealing is that she was discharged without good cause. The counts for constitutional violations, intentional infliction" }, { "docid": "11110028", "title": "", "text": "471 U.S. at 211-12, 105 S.Ct. at 1911-12. In Allis-Chalmers, the Court also recognized that “not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301.” Id. at 211, 105 S.Ct. at 1911. Rather, preemption is to be applied only to “state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties.” Id. at 213, 105 S.Ct. at 1912. Before the Court in Allis-Chalmers was the issue of whether a state law claim for bad faith handling of an insurance claim was preempted because the applicable CBA included the insurance plan provisions. Id. at 203, 105 S.Ct. at 1907. The analysis employed in Allis-Chalmers focused on whether the state law cause of action confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract. Id. at 213, 105 S.Ct. at 1912. The Court concluded that preemption was appropriate, because the specific right at issue was derived from the contract and the contractual obligation of good faith, thus examination of liability would require contract interpretation. Id. at 218-19, 105 S.Ct. at 1914^-15. The Supreme Court has since sought to clarify the type of independent state law rights that would not warrant preemption. In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Court found that a unionized employee’s state law suit alleging retaliatory discharge for filing a workers’ compensation claim was not preempted, because the state law remedy was “independent” of the CBA, in that “resolution of the state-law claim does not require construing the collective bargaining agreement.” Id. at 407,108 S.Ct. at 1882 (footnote omitted). The Court also held that even if dispute resolution under a CBA and under state law would require analysis of the identical set of facts, the claim is still considered to be “independent” of the CBA, if" }, { "docid": "1338573", "title": "", "text": "court below dismissed the wrongful death claim, as well as plaintiffs state common law breach of employment contract claim and her § 301 breach of collective bargaining agreement claim. (These last two dismissals were not appealed.) These appeals followed. II The News first contends that the court below erred in holding that O’Shea’s state law claims were not preempted under § 301 of the LMRA. The Supreme Court has held many times that § 301 of the LMRA requires that all claims, state or federal, whose resolution depends on the interpretation of a collective bargaining agreement be preempted by federal law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985). This rule of law does not merely apply to labor-contract disputes for, “[t]he interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation.” Id. at 211, 105 S.Ct. at 1911. The Court in Allis-Chalmers went on to hold that the plaintiff employee’s state law claim against his employer and its insurer for bad faith in handling his claim was “inextricably intertwined with consideration of the terms of the labor contract” in that the contract set out the rights and duties of the parties regarding insurance claims. Id. at 213, 218, 105 S.Ct. at 1912, 1914-15. The defendant in the present case contends that the state law claims remanded to the state court are preempted under § 301 and Allis-Chalmers and thus must be heard in federal court. The News argues that all the claims (the age and handicap discrimination claims, the constructive discharge claim, and the intentional infliction of emotional distress claim) depend on the plaintiffs allegation that O’Shea’s transfer to the midnight shift was a demotion or some kind of punishment. Indeed, the plaintiff’s complaint alleges that, after stating that the employment agreement prevented the defendant from demoting and/or transferring its employees so long as their performance was satisfactory, “defendant breached said employment agreement ... with the" }, { "docid": "21566142", "title": "", "text": "a complaint with OSHA regarding conditions at Seaboard. Plaintiff asserted in the complaint that Parsec had complied with Seaboard’s wishes and terminated him in violation of the provision in the collective bargaining agreement that discharges shall be only for just cause. Plaintiff filed a grievance under the collective bargaining agreement that resulted in arbitration, as provided by the contract. Following exhaustion of the contractual grievance and arbitration procedure, during which the Union represented Plaintiff, his discharge was upheld. Seaboard filed a motion to dismiss on the grounds, inter alia, that Dougherty’s tor-tious interference with contract claim was preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. On May 9, 1986, the district court granted Seaboard’s motion to dismiss. Relying on Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), and Michigan Mutual Insurance Co. v. United Steelworkers, 774 F.2d 104 (6th Cir.1985), the court held Plaintiff’s claim was preempted by Section 301. On appeal, a divided court affirmed. Dougherty v. Parsec, Inc., 824 F.2d 1477 (6th Cir.1987). The majority noted that a fair reading of Lueck was that a tort claim under state law is preempted by Section 301 if that claim is “inextricably intertwined with consideration of terms of the labor contract.” 824 F.2d at 1478 (quoting Lueck, 471 U.S. at 213, 105 S.Ct. at 1912). The court quoted the district judge: “Regardless of how the tortious interference with a contract claim is defined, the terms of the labor agreement will have to be scrutinized to determine if Seaboard induced its breach.” Id. at 1478. In affirming the trial court, the court stated: The only contract with which any interference could be charged is the collective bargaining agreement. An interference claim could not exist in the absence of such agreement, which in turn is exclusively to be interpreted under federal law. Id. at 1478-79. On remand, Plaintiff Dougherty argues that Lingle requires a finding that his claim against Defendant Seaboard is not preempted by Section 301. Defendant argues that Lingle should have no effect on the prior opinion. The central" }, { "docid": "3355705", "title": "", "text": "requires an interpretation of a collective bargaining agreement. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410 (1988). In Allis-Chalmers v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1977), the Supreme Court enunciated the test for Section 301 preemption of a tort claim as whether the tort “confers nonnegotiable state-law rights on employers and employees independent of any established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with considerations of the terms of the labor contract.” The Court made it clear that “not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is preempted by § 301....” Id. at 211, 105 S.Ct. at 1911. Preemption is only required “[w]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract....” Id. at 220, 105 S.Ct. at 1916. More recently, the Court of Appeals for the First Circuit stated that preemption requires a real interpretive dispute and not the need merely to refer in passing to the collective bargaining agreement. Martin v. Shaw’s Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir.1997). The Court will first address the Count II claim for defamation as the majority of plaintiff’s claims arise from the alleged false statements of sexual harassment made by the defendants. The Court of Appeals for the First Circuit has not addressed the precise question of whether Section 301 preempts a state law claim of defamation. Defendants argue that statements made in the course of a grievance proceeding are completely preempted. See Cullen v. E.H. Friedrich Co., Inc., 910 F.Supp. 815, 823-24 (D.Mass.1995). The plaintiff in Cullen was a union member and was covered under the terms of the collective bargaining agreement. In contrast, plaintiff is not a union member and, as a supervisor,' he is not covered under the collective bargaining agreement for telephone operators at issue in this case. Moreover, plaintiff’s status as a supervisor distinguishes him from the plaintiff in" }, { "docid": "3355704", "title": "", "text": "either allowed itself to act as [Dwyer’s] weapon against [Naitram], or it actively endorsed the project to disparage him and achieve his dismissal ... [Dwyer] and other officers of Local 2313 intentionally distorted rumors and hearsay, and transmogrified them into allegedly bona fide sexual harassment charges of a serious nature against [Naitram]. Based on these largely fabricated charges, they demanded his dismissal from NYNEX. [Dwyer] also disparaged and demeaned [Naitram] and [Mosel] in a NYNEX training session. She either outright lied or avoided telling the truth about this class session when questioned under oath. On June 14,1996, plaintiff filed a complaint against the defendants with the Massachusetts Commission Against Discrimination. II. ANALYSIS A. Section SOI of LMRA Preemption The threshold question presented in this case is whether an employee, who is neither a union member nor a member of the bargaining unit covered by a collective bargaining agreement, may have his state law claims preempted under Section 301 of the LMRA. State law claims are preempted by Section 301 of the LMRA where their resolution requires an interpretation of a collective bargaining agreement. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410 (1988). In Allis-Chalmers v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1977), the Supreme Court enunciated the test for Section 301 preemption of a tort claim as whether the tort “confers nonnegotiable state-law rights on employers and employees independent of any established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with considerations of the terms of the labor contract.” The Court made it clear that “not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is preempted by § 301....” Id. at 211, 105 S.Ct. at 1911. Preemption is only required “[w]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract....” Id. at 220, 105 S.Ct. at 1916. More recently, the Court of Appeals for the First Circuit" }, { "docid": "10126876", "title": "", "text": "it is a nonnegotiable independent state-law right). However, only “state law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are preempted.” Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912. To determine whether section 301 preempts a state tort claim, we do not look to how the complaint is cast. Rather, we inquire whether “the claim can be resolved only by referring to the terms of the CBA.” Young, 830 F.2d at 999. If the state tort action “as applied here confers nonnegotiable state-law rights on employers or employees independent of any right established by contract,” the claim is not preempted. Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912 (cited in Paige, 826 F.2d at 863 and Young, 830 F.2d at 999). A state law claim is independent for the purposes of Section 301 if “resolution of ... [it] does not require construing the collective bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., — U.S.-, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988). However, if “evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract,” it is preempted and may be removed to federal court. Id. Emotional Distress Hyles’ claims for emotional distress are grounded on the assertion that some defendants failed to process his grievance complaints, filed false reports accusing him of work infractions, removed him as union delegate, arbitrarily demanded that he submit to a physical examination, and terminated him without cause. After reviewing these allegations we conclude that they are not based on non-negotiable state law rights and are “inextricably intertwined with consideration of the terms of the labor contract.” Hyles points to no independent, non-negotiable state standard by which we can judge the defendants’ conduct. Because the CBA, rather than a nonnegotiable state law standard, defines the defendants’ authority and Hyles’ rights with regard to the conduct complained of, Hyles’ claims are not independent of the CBA. The CBA establishes the defendants’ responsibility to process grievance complaints. It" }, { "docid": "11110027", "title": "", "text": "citizenship of the parties. 29 U.S.C. § 185(a) (1988). Previously, the Supreme Court has interpreted § 301 to provide federal court jurisdiction over controversies involving contract disputes, and further, to preempt state law claims arising under a CBA. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985); Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451-52, 77 S.Ct. 912, 915-16, 1 L.Ed.2d 972 (1957). This principle was intended to ensure that all claims raising issues of labor contract interpretation are decided according to federal labor law, so as to guard against inconsistent interpretations under state and federal law. Lucas Flour, 369 U.S. at 103, 82 S.Ct. at 576-77. According to the Court in Allis-Chalmers, nothing in § 301 demonstrates Congressional intent to displace completely state labor law regulation, as such a rule would permit unions and employers to exempt themselves from state labor standards that they disfavored. 471 U.S. at 211-12, 105 S.Ct. at 1911-12. In Allis-Chalmers, the Court also recognized that “not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301.” Id. at 211, 105 S.Ct. at 1911. Rather, preemption is to be applied only to “state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties.” Id. at 213, 105 S.Ct. at 1912. Before the Court in Allis-Chalmers was the issue of whether a state law claim for bad faith handling of an insurance claim was preempted because the applicable CBA included the insurance plan provisions. Id. at 203, 105 S.Ct. at 1907. The analysis employed in Allis-Chalmers focused on whether the state law cause of action confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract. Id. at 213," }, { "docid": "7376718", "title": "", "text": "In Allis-Chalmers, the Supreme Court enunciated the test for preemption of a tort claim as whether the tort “confers nonnegotiable state-law rights on employers and employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” Id. at 213,105 S.Ct. at 1912. In holding that an employee’s state tort claim of bad faith, based on his employer’s mishandling of his disability payments due under a benefit plan that was part of a collective bargaining agreement between his employer and his union, was preempted by § 301, the Court in Allis-Chalmers concluded: We ... hold that when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim ... or dismissed as pre-empted by federal labor-contract law [as where the plaintiff failed to make use of the grievance procedure established in the collective bargaining agreement]. Id. at 220, 105 S.Ct. at 1916 (citation omitted). The Court made clear that parties cannot escape the preemptive effect of § 301 by casting their claims as tort actions rather than contract claims. Id. at 210, 105 S.Ct. at 1910. The key to determining the scope of preemption is not how the complaint is cast, but whether those claims can be resolved only by reference to the terms of the collective bargaining agreement. Id. at 213, 105 S.Ct. at 1912. “Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.” Id. at 211, 105 S.Ct. at 1911. Therefore, the focus of an inquiry determining § 301 preemption is the nature of the state law claims because such claims, which are independent of the collective bargaining agreement, are not preempted by § 301. Id. at 213, 105 S.Ct. at 1912. Plaintiff claims that under the test set forth in Farmer v. United Brotherhood of Carpenters" }, { "docid": "13659924", "title": "", "text": "counts at issue are time barred under either the six-month statute of limitations period set forth in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), see DelCostello, 462 U.S. at 169, 103 S.Ct. at 2293, or the ninety-day state statute of limitations period for vacating arbitration awards. Mo.Rev.Stat. § 435.405.2 (1986). See Johnson, 805 F.2d at 797. Therefore, the dispositive question before us is whether the state-law counts survive the preemptive effect of section 301. The Johnsons argue that their petition survives the preemptive effect of section 301 because its resolution does not require an analysis of the terms of the collective bargaining agreement. The LMRA grants federal courts jurisdiction over “[s]uits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” Labor Management Relations Act of 1947, § 301, 29 U.S.C. § 185(a) (1982). The Supreme Court has interpreted section 301 as preempting state-law tort claims in situations where the resolution of the state-law claim substantially depends upon interpreting the terms of the collective bargaining agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206 (1985). If the state-law tort claim is “inextricably intertwined with consideration of the terms of the labor contract,” the state-law tort claim is preempted. Id. at 213, 105 S.Ct. at 1912. Preemption under section 301 will not apply, however, in all instances in which a collective bargaining agreement is present. Where a state-law remedy is independent of a collective bargaining agreement in the sense that resolution of the state-law claim does not require construing the collective bargaining agreement, preemption is inapplicable. Lingle v. Norge Div. of Magic Chef, Inc., — U.S. —, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988). This principle applies even if analysis of the same set of facts would be required to resolve a dispute arising directly under the collective bargaining agreement or a dispute arising under state tort law. Id. 108 S.Ct. at 1883. This court recently examined the preemption issue in Hanks v. General Motors Corp., 859 F.2d 67 (8th" }, { "docid": "9669672", "title": "", "text": "sustained. See Guz, 24 Cal.4th at 366, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (“where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper”). Furthermore, the covenant of good faith and fair dealing cannot impose substantive terms and conditions beyond those to which the contract parties actually agreed. Id. at 349-50, 100 Cal.Rptr.2d 352, 8 P.3d 1089. As a result, because Lappin had no implied employment contract with Laidlaw, she also cannot sustain her Sixth Cause of Action, for breach of the covenant of good faith and fair dealing. As an alternative ground for summary judgment, the two contract claims are preempted by Section 301 of the Labor Management Relations Act. 29 U.S.C. § 185(a). Because Lappin was a union member, her employment was governed by the collective bargaining agreement (“CBA”) in place during her employment at Laidlaw. Complaint, ¶ 15. Section 301(a) of the LMRA provides federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization.” Id. The Supreme Court has held that the LMRA preempts state law causes of action that are “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). The Ninth Circuit has also found that state law claims that are “inextricably intertwined with consideration of the terms of the CBA” are preempted. Miller v. AT & T Network Sys., 850 F.2d 543, 550 (9th Cir.1988); Evangelista v. Inlandboatmen’s Union of Pacific, 777 F.2d 1390, 1401 (9th Cir.1985). Since Lappin’s contract claims concern a job that was governed by the collective bargaining agreement, the claims are completely preempted by Section 301. See Young v. Anthony’s Fish Grottos, Inc., 830 F.2d at 997-999 (1987). For the same reasons, Lappin’s state law claim for breach of the implied covenant of good faith and fair dealing is preempted. This covenant “derives from the contract [and] is defined by the contractual obligation of good faith,” and therefore is preempted to the same extent the" }, { "docid": "10072995", "title": "", "text": "779-80. Nevertheless, Garmon recognized that state regulation of conduct arguably within the NLRA was not preempted if the activity regulated is a mere peripheral concern of the labor laws, or if the regulated conduct touches interests so deeply rooted in local feeling that preemption cannot be inferred in the absence of “compelling congressional direction.” Garmon, 359 U.S. at 243-44, 79 S.Ct. at 778-79. In contrast, federal courts may exercise jurisdiction over claims under sec. 301 of the LMRA even if the conduct is arguably covered by the NLRA. See, e.g., Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279, 1288 (6th Cir.1986). Section 301 provides that: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * * may be brought in any district court of the United States having jurisdiction over the parties * * *. 29 U.S.C. sec. 185(a). In determining whether a claim is preempted by sec. 301, “[t]he ultimate question is whether ‘resolution of [the] claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract * * Lingle, 823 F.2d at 1048, quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985); see also IBEW v. Hechler, — U.S.-, 107 S.Ct. 2161, 2166, 95 L.Ed.2d 791 (1987) (holding that “an employee’s state-tort action that necessarily rests on an interpretation of [the] terms [of the collective bargaining agreement] is pre-empted by sec. 301”). If resolution of a state law tort claim is substantially dependent upon analysis of the terms of a labor agreement, then that claim is “inextricably intertwined with consideration of the terms of the labor contract,” and, therefore, preempted. Lueck, 471 U.S. at 213, 105 S.Ct. at 1912. We now apply these principles to this case. 1. Fraudulent misrepresentation The plaintiffs, in their claim for fraudulent misrepresentation, allege that: When Keystone and the Union entered into the “Shutdown Agreement” on November 14, 1985 * * * the defendants, including Corral, were well aware that said Shutdown Agreement" }, { "docid": "8645508", "title": "", "text": "bargain collectively, or the balance of power between labor and management. In this case, the Union is not representing any employees. There is no dispute between employees and management. The dispute is between the administrator of the pension and benefit fund (a third-party beneficiary) and the Company. Since this dispute presents no threat to the uniformity of federal labor law, and the Board’s position as the authoritative interpreter of the NLRA is not threatened, the policies underlying Garmon do not require preemption. In sum, because the Union has failed to demonstrate that its conduct was arguably prohibited by section 8 of the NLRA, Gar-mon preemption does not apply. C. Section 301 Preemption The Union and Helldobler next argue that the state law claim asserted in the third-party complaint is preempted by section 301 of the LMRA. Under their theory, the state claim should be preempted under federal law because the issues the court must determine are “inextricably intertwined with the terms of the labor contract.” Section 301 grants to the courts of the United States jurisdiction over issues pertaining to collective bargaining agreements. The Supreme Court has construed section 301 as a grant from Congress to create a federal common law of labor contracts. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). The grant is necessary to ensure uniform national interpretation of labor agreements and thus to ensure that rights and duties are clearly understood and to lessen industrial strife occasioned by conflict over differing interpretations of collective bargaining agreements. Int’l Bhd. of Elec. Workers v. Heckler, 481 U.S. 851, 855-57, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987). Since federal law is the exclusive law used to interpret the duties and obligations contained within collective bargaining agreements, any state law claim that is not independent of rights established by an agreement, and that is “inextricably intertwined” with a determination of the meaning of the terms of an agreement, is preempted by section 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213,105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Thus, if a state tort" }, { "docid": "10072998", "title": "", "text": "(par. 301); and that the defendants were obligated, as fiduciaries of the plaintiffs, to disclose any and all material facts relating to the Shutdown Agreement and the sale of CHS Division. Pars. 302, 308. The plaintiffs’ claim for fraudulent misrepresentation clearly centers directly on the terms of the Shutdown Agreement, which is a labor contract. See Complaint, Ex. A. In order to determine whether the terms of the Shutdown Agreement are false, we first must know what the terms of the Shutdown Agreement are. This, of course, requires that we analyze those terms. Accordingly, any determination of the plaintiffs’ claim for fraudulent misrepresentation “necessarily rests on an interpretation of [the] terms” of the Shutdown Agreement. Heckler, 107 S.Ct. at 2166. As such, resolution of this claim is substantially dependent upon, and inextricably intertwined with, the terms of the Shutdown Agreement. It is therefore preempted under sec. 301. We believe that this claim also is preempted by the NLRA. In Kolentus v. Avco Corp., 798 F.2d 949 (7th Cir.1986), former employees filed suit against Avco in federal court alleging that they had been fraudulently deprived of their pension benefits under a collective bargaining agreement and pension agreement where Avco had deliberately withheld certain information from union representatives during labor agreement negotiations. The district court held that the plaintiffs’ state law fraud claim was preempted by the NLRA under the Garmon doctrine. On appeal, the Seventh Circuit affirmed the district court’s decision, stating that the critical question: in considering the preemptive effect of the NLRA is whether the controversy presented by the state claim is identical to that which could have been presented to the NLRB. It is only in this situation that litigation of a state claim necessarily involves a risk of interference with the unfair labor practice jurisdiction of the NLRB. Id. at 961. In Kolentus, the plaintiffs’ fraud claim was preempted by the NLRA because it was “indistinguishable” from the unfair labor practice claim that the plaintiffs could have presented to the NLRB: In both cases, the key inquiry would be whether, at the time of negotiating and entering" }, { "docid": "13243542", "title": "", "text": "negligence, and fraud and misrepresentation through Greyhound’s denial of his reinstatement in 1971. Terwilliger claimed that Greyhound employees intentionally changed the first report by Dr. Kantor and concealed the second report in order to secure the Union’s agreement to an examination by a third physician, all as part of a Greyhound plot to not rehire Terwilliger as a driver. At trial, with only the fraud and misrepresentation claim remaining, the jury returned a verdict for Terwilliger, awarding him $250,-000 in actual damages and $500,000 in consequential damages. Pursuant to pretrial agreement, this was set-off by the $225,000 from Terwilliger’s previous attorney malpractice award, resulting in a total award of $525,000. Greyhound appeals. II. Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), provides: Suits for violation of contracts between an employer and a labor organization representing employees ... may be brought in any district court of the United States having jurisdiction of the parties .... The Supreme Court has determined that section 301 not only confers federal jurisdiction over controversies involving collective bargaining agreements, but also authorizes the federal courts to fashion a body of federal law for the enforcement of section 301. Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957). In Teamsters v. Lucas Flour, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), the Court determined that the federal law preempts local law so that a uniform body of labor law can be developed to avoid conflicts in the interpretation of collective bargaining agreements. Then, in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985), the Court determined that the preemptive effect of the federal labor law extended to state-law tort claims which are “inextricably intertwined with consideration of the terms of the labor contract” as well as pure contract claims. In 1987, the Court summarized the preemption doctrine as follows: “Section 301 governs claims founded directly on rights created by collective bargaining agreements, and also claims substantially dependent on analysis of a collective bargaining agreement.” Caterpillar Inc." } ]

[ { "docid": "23567062", "title": "", "text": "is no possibility of avoiding adjudication of the constitutional questions that plaintiffs raise. We will not abstain merely to permit state determination of those questions. Zwickler v. Koota, 1967, 389 U.S. 241, 245-252, 88 S.Ct. 391, 19 L.Ed.2d 444; Dombrowski v. Pfister, 1965, 380 U.S. 479, 483-492, 85 S.Ct. 1116, 14 L.Ed.2d 22. Turning to the merits of plaintiffs’ claim, defendants concede that section 14-44, which gives the licensing bureau a broad discretion to refuse a permit, is unconstitutional. They are, of course, correct. Shuttlesworth v. Birmingham, 394 U.S. at 148-153, 89 S.Ct. 935, 22 L.Ed.2d 162; Staub v. City of Baxley, 355 U.S. at 321-325, 78 S.Ct. 277, 2 L.Ed.2d 302; Kunz v. New York, 1951, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Largent v. Texas, 318 U.S. at 422, 63 S.Ct. 667, 87 L.Ed. 873; Cantwell v. Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Schneider v. State of New Jersey, 1939, 308 U.S. 147, 163-165, 60 S.Ct. 146, 84 L.Ed. 155; Lovell v. Griffin, ante. Correspondingly, section 14-52, which permits discretionary revocation of the license, must be invalidated. Hence the only question is whether the physical acts of registering and of procuring and wearing a badge can constitutionally be required of a newspaper vendor under what remains of the ordinance. If we were to find this permissible, plaintiffs would be required to open themselves to possible identification as the ones associated with Extra, to deposit fifty cents with the city, and possibly to suffer the felt stigma of having to display a button. In the face of these burdens upon the exercise of first amendment rights, defendants point to no governmental interest of any importance that would be served by registration and identification. We therefore hold these requirements of the ordinance, like its other provisions, unconstitutional. See discussion in United States v. O’Brien, 1968, 391 U.S. 367, at 376-377, 88 S.Ct. 1673, 20 L.Ed.2d 672. Cf. Martin v. City of Struthers, 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313. We do think that something is to be said for defendants’" } ]

[ { "docid": "16215749", "title": "", "text": "on the free exercise rights of religious minorities which cannot be justified. Section 4A(c)(3)’s cost-effectiveness standard is not sufficiently tailored to serve D/FW’s interests in protecting against fraudulent or annoying solicitation to justify the resulting imposition on First Amendment rights. § 4A(c)(4) This section authorizes the Executive Director to deny a permit “when there is good reason to believe that the granting of the permit will result in a direct and immediate danger or hazard to the public security, health, safety or welfare.” ISK-CON contends that this provision is unconstitutional because it gives the Executive Director excessive discretion in deciding whether the granting of the permit will be detrimental to the public interest. In Shuttlesworth v. City of Birmingham, supra, the Supreme Court invalidated a municipal ordinance that empowered a public official to deny a parade permit if, in his opinion, the proposed parade would be detrimental to the “public welfare, peace, safety, health, decency, good order, morals or convenience.” Id. 394 U.S. at 149, 89 S.Ct. at 938. The use of public streets cannot be conditioned upon an official’s opinion as to the harmful consequences that might result. Id. at 153, 89 S.Ct. at 940. Accord Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Staub v. City of Baxley, supra. Discretion in public officials must be narrowly circumscribed. “[A] municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to . . . parade according to their own opinions regarding the potential effect of the activity in question. ...” Shuttlesworth, 394 U.S. at 153, 89 S.Ct. at 940. We agree with the district court’s conclusion that the standard of “good reason” is indefinite and does not comport with the constitutional requirement that discretion in public officials be specifically and narrowly circumscribed. A before-the-fact determination as to the harmful consequences of an applicant’s speech is by this ordinance made a subjective judgment call in the total discretion of the Director. This type of unbridled discretion has been condemned time and time again by the Supreme Court. A narrowly" }, { "docid": "10458263", "title": "", "text": "the facial constitutionality of Section 10-110 of the New York City Administrative Code, the permitting ordinance under which the Police Commissioner derives the authority to regulate parades. ILGO argues that the ordinance delegates unfettered discretion to city officials and is unconstitutionally overbroad. I find that ILGO has not shown a clear or substantial likelihood of success on this claim. A. “It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.” Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 2400-01, 120 L.Ed.2d 101 (1992). Parade permitting ordinances, while permissible, see Cox v. New Hampshire, 312 U.S. 569, 574-576, 61 S.Ct. 762, 765-766, 85 L.Ed. 1049 (1941), must not delegate overly broad discretion to a government official, see Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162 (1969); Kunz v. People of State of New York, 340 U.S. 290, 294, 71 S.Ct. 312, 315, 95 L.Ed. 280 (1951), and must otherwise comport with the traditional requirements for reasonable time, place, or manner restrictions. See Forsyth County, 505 U.S. at 130, 112 S.Ct. at 2401. When conducting an evaluation of a facial challenge to a permitting ordinance, the Court must consider “the [defendant’s] authoritative constructions of the ordinance, including its own implementation and interpretation of it.” Id., 505 U.S. at 131, 112 S.Ct. at 2402. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 2151, 100 L.Ed.2d 771 (1988) (“The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.”). See also Rock Against Racism, 491 U.S. at 795, 109 S.Ct. at 2755-56 (“Administrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for ‘[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state" }, { "docid": "23118159", "title": "", "text": "on advertising. At present, more democratic means of communication — demonstrations in parks, bumper stickers, signs in the windows of homes — must be jealously protected. Cf. Ladue, •— U.S. at-■, 114 S.Ct. at 2047 (striking down ordinance that barred respondent from placing political sign in the window of her home). . We note that the permit requirement imposed by section 010, similar to the advance notice requirement at issue in Rosen, actually \"lies somewhere between the classic prior restraint cases in which speech is totally prohibited, and the classic ‘time, place, and manner’ cases in which the time, location, or volume of speech are regulated.” Rosen, 641 F.2d at 1249-50 (citations omitted). It is, more precisely, “a 'prior restraint' intended to permit efficient ‘time, place and manner’ regulation.” Id. at 1250. Under one well-known line of cases involving challenges to permit requirements, the reviewing court looks behind the requirement itself to the criteria, or lack of criteria, guiding city officials in determining whether to issue a permit. See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). The present case, however, like Turner, involves a different type of challenge. Rather than attacking the constitutionality of the permitting criteria, or asserting that city officials have been given unbridled discretion to grant or deny permits, Dr. Grossman challenges the permit requirement itself as burdening substantially more speech than necessary. . Because both parties agree that the ordinance is content neutral, we do not examine that prong. As to the “significant government interest” requirement contained in the second prong, the City’s stated interest in protecting the safety and convenience of park users may be sufficient. See Ward, 491 U.S. at 797, 109 S.Ct. at 2757 (\"[t]he city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits city parks have to offer”). Again, however, we need not decide the question and we simply assume ad arguendo that such is the appropriate interest to be considered here." }, { "docid": "8087692", "title": "", "text": "VA ... and to all persons entering in or on such property.”). Formally, in this facial challenge, the fact that Mr. Griffin' has sought access to a national cemetery is irrelevant to the question of whether section 1.218(a)(14) vests VA facility heads with impermissibly broad discretion to suppress speech. But since we have no reason to conclude that other VA property ought to be classified as a traditional or designated public forum, we shall assume that other VA properties are also nonpublic fora and we need not consider how a facial challenge should weigh against a regulation that governs both public and nonpublic fora. Furthermore, Mr. Griffin makes no allegation that section 1.218(a)(14) poses a risk of censorship at any VA property other than national cemeteries, or that he or any parties not before the court desire to speak at other kinds of VA property. If national cemeteries are where the alleged threat to free expression is lodged, then we think it appropriate to focus on national cemeteries when we evaluate the relationship between the alleged restraint, the speech so restrained, and the nature of the forum. Our analysis therefore will take into account not only the fact that VA properties are nonpublic fora, but also the relevant characteristics of national cemeteries to the extent that those characteristics have been presented to the court. As we have explained, no Supreme Court decision attempts to apply the unbridled discretion doctrine in the context of a nonpublic forum. By its terms, the unbridled discretion doctrine has been articulated as a limit on licensing regimes in public fora. See, e.g., Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 153, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (“[W]e have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.”) (quoting Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 95 L.Ed. 280 (1951)). In a nonpublic forum, the government is said to operate as proprietor, not licensor. See United States v. Kokinda, 497 U.S." }, { "docid": "8087693", "title": "", "text": "alleged restraint, the speech so restrained, and the nature of the forum. Our analysis therefore will take into account not only the fact that VA properties are nonpublic fora, but also the relevant characteristics of national cemeteries to the extent that those characteristics have been presented to the court. As we have explained, no Supreme Court decision attempts to apply the unbridled discretion doctrine in the context of a nonpublic forum. By its terms, the unbridled discretion doctrine has been articulated as a limit on licensing regimes in public fora. See, e.g., Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 153, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (“[W]e have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.”) (quoting Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 95 L.Ed. 280 (1951)). In a nonpublic forum, the government is said to operate as proprietor, not licensor. See United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Nonetheless, we are aware of several cases from our sister circuits that have struck down standardless licensing schemes in nonpublic fora. Perhaps the leading circuit case is Sentinel Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.1991), in which the Eleventh Circuit invalidated a statutory scheme that gave a government employee in Florida unfettered discretion over the placement of newspaper racks in rest areas along the interstate highway. Concluding that rest areas were nonpublic fora, the Eleventh Circuit nonetheless held that nonpublic forum status “does not eliminate the constitutional requirement of standards for discretionary licensing. It may, however, require that any regulations or standards promulgated ... be reviewed only for reasonableness instead of some higher level of scrutiny.” Id. at 1199 n. 11 (quoting N.Y. News, Inc. v. Metro. Transp. Auth., 753 F.Supp. 133, 140 (S.D.N.Y.1990)). No court has suggested exactly how this more deferential scrutiny should be applied. The text of section 1.218(a)(14) sets no explicit limit on the discretion of VA officials to permit" }, { "docid": "9713781", "title": "", "text": "example, the Supreme Court invalidated a Maryland law that required prior state approval before an exhibitor could show a motion picture at its theaters. According to the Court, it was immaterial for constitutional purposes whether the plaintiff in this case had actually been deprived of a first amendment right: In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965); see also Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). In a long and celebrated line of cases, the Court has deployed this principle repeatedly to strike down statutes that, on their face, vested officials with a dangerously wide and unfettered degree of discretion to regulate speech. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (invalidating ordinance requiring marchers to seek permission from town mayor); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (striking down standard-less breach-of-the-peace statute); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (invalidating ordinance prohibiting public worship without a permit from city police commissioner); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 ’ (1948) (invalidating ordinance requiring sound trucks to obtain permission from police chief). These cases establish the principle that, for overbroad statutes affecting speech, the first amendment precludes the application of ordinary rules of severability. In order to ensure an optimal level of constitutional enforcement, it is necessary to allow facial challenges to overbroad statutes irrespective of the plaintiff’s particular injury. This is so because piece-meal litigation is an inadequate method of enforcing the Constitution when a governmental official is given unrestricted authority to regulate speech on a case-by-case basis. The particular evil associated" }, { "docid": "9713782", "title": "", "text": "v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (invalidating ordinance requiring marchers to seek permission from town mayor); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (striking down standard-less breach-of-the-peace statute); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (invalidating ordinance prohibiting public worship without a permit from city police commissioner); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 ’ (1948) (invalidating ordinance requiring sound trucks to obtain permission from police chief). These cases establish the principle that, for overbroad statutes affecting speech, the first amendment precludes the application of ordinary rules of severability. In order to ensure an optimal level of constitutional enforcement, it is necessary to allow facial challenges to overbroad statutes irrespective of the plaintiff’s particular injury. This is so because piece-meal litigation is an inadequate method of enforcing the Constitution when a governmental official is given unrestricted authority to regulate speech on a case-by-case basis. The particular evil associated with a standardless grant of authority is not so much that it will always be exercised illicitly, but that the ordinary course of litigation will invariably fail to provide an adequate check against the likelihood that, at some point, it will. Hence, in a situation in which a governmental official is given complete and unbridled discretion to choose which speakers to favor and which to stifle, it is proper to permit a challenge to the wording of the statute in order to protect future victims against the potential for abuse that the statute creates. As the Supreme Court has noted, “an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Brockett, 472 U.S. at 503, 105 S.Ct. at 2802. In order successfully to" }, { "docid": "6141839", "title": "", "text": "of regulation, be abridged or denied. Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Accordingly, this court concludes that new-stands, like newracks, are entitled to the protections of free speech and expression guaranteed by the First Amendment. III. Unfettered Discretion That an activity is found to be expressive and thus entitled to constitutional protection does not deprive the government of all authority to regulate the activity. Indeed, an activity that is protected may, under some circumstances, be banned entirely without violation of the constitution. Though the Supreme Court decided in Lakewood that newsracks were covered by the First Amendment, it left undecided whether a municipality would be constitutionally prohibited from banning the placement of newsracks on city streets and sidewalks. But where a total ban is not the issue — that is, where a municipality has decided to allow a particular type of protected speech activity to occur — it must ensure that any regulations it promulgates with regard to that activity, particularly those imposing any form of prior restraint on speech or expression, are free from even the possibility of censorship, bias, or discrimination. Compare Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) (holding unconstitutional ordinance prohibiting use of sound trucks without permission from police chief), with Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (finding city’s total ban on sound trucks constitutional). The Supreme Court has established that any licensing or permitting scheme that regulates expressive activities must be constrained by articulated standards to guide the exercise of discretion by the licensor or permittor, because “a scheme that places ‘unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.’” Lakewood, 486 U.S. 750, 757, 108 S.Ct. 2138 (1988). Thus, “a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question.” Shuttlesworth v. City of Birmingham," }, { "docid": "3886809", "title": "", "text": "safeguards to prevent city officials from abusing their discretion. The Supreme Court has held in a long line of cases that authority exercised to administer a licensing scheme must be bounded by clear and precise standards where officials have the power to foreclose speech in public places. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938-39; Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302; Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 314-15, 95 L.Ed. 280; Schneider v. State, 308 U.S. 147, 161-162, 60 S.Ct. 146, 149-51, 84 L.Ed. 155; Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954. A prior restraint “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 738, 13 L.Ed.2d 649. An ordinance must contain explicit limits on the decisionmaker’s discretion. Lakewood, 486 U.S. at 769, 108 S.Ct. at 2150. It is also clear that these limits must exist whether or not a municipal ordinance also happens to pass muster as a time, place and manner restriction. In FW/ PBS, for example, the plurality did not even reach the time, place and manner question because the procedural safeguards in that ordinance were inadequate. 493 U.S. at 223, 110 S.Ct. at 603. It is thus both surprising and dismaying that the Court’s decision today focuses so heavily on the merits of the Chicago ordinance as a time, place and manner restriction, to the exclusion of its other failings. Given the lack of sufficient procedural safeguards, the majority’s discussion of time, place and manner is interesting, but beside the point. Under FW/PBS, which by the way follows from a long line of cases setting forth similar standards, a city may only license a business associated with First Amendment freedoms if, first, the licensor is obligated to grant or deny the permit within a specified and reasonable" }, { "docid": "6141840", "title": "", "text": "restraint on speech or expression, are free from even the possibility of censorship, bias, or discrimination. Compare Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) (holding unconstitutional ordinance prohibiting use of sound trucks without permission from police chief), with Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (finding city’s total ban on sound trucks constitutional). The Supreme Court has established that any licensing or permitting scheme that regulates expressive activities must be constrained by articulated standards to guide the exercise of discretion by the licensor or permittor, because “a scheme that places ‘unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.’” Lakewood, 486 U.S. 750, 757, 108 S.Ct. 2138 (1988). Thus, “a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). The Court has repeatedly found “unbridled” or “unfettered” discretion to violate the First Amendment. ‘“It is settled by a long line of recent decisions of this Court that an ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.’ ” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Shuttlesworth, 394 U.S. at 151, 89 S.Ct. 935). In this case, the granting and renewal of newsstand permits is subject to the general rules governing City concessions, see Cum-mins Deck Ex. B (Local Law 29); 12 RCNY § 1-01 et seq. (providing that “[t]his Chapter shall apply to initial grants of concessions as well as to renewals of concessions”), as well" }, { "docid": "18872603", "title": "", "text": "the overall context and nature of the restricted display conveys the impermissible message of governmental endorsement of religion.” (footnote omitted)). Thus the critical question remains whether San Diego’s relationship with the Christmas Committee display violates the Establishment Clause. Having found an Establishment Clause violation, I conclude that a content-based injunction against the display does not offend the public forum doctrine. Holding the government to its obligations under the Establishment Clause constitutes a compelling state interest. Moreover, a prohibition limited to long-standing displays of solitary religious symbols on public property adjoining prominent city structures would be narrowly tailored to serve this interest. See Smith, 895 F.2d at 960; Kaplan, 891 F.2d at 1030. Accordingly, the Free Speech Clause is satisfied. B. The Prior Restraint Doctrine. San Diego’s licensing scheme regulating the use of long-term, unattended displays in Balboa Park is a prior restraint of speech. “[I]t is the sort of system in which an individual must apply for multiple licenses over time, or periodically renew a license.” Lakewood, 486 U.S. at 759, 108 S.Ct. at 2145. A prior restraint of speech is not unconstitutional per se. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975). “Any system of prior restraint, however, ‘comes to this [cjourt bearing a heavy presumption against its constitutional validity.’ ” Id. (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)). Accordingly, San Diego’s “licensing requirement is sufficiently threatening to invite judicial concern.” Lakewood, 486 U.S. at 760, 108 S.Ct. at 2145. The City’s scheme for regulating long-term, unattended displays is an unconstitutional prior restraint of speech if it “vests unbridled discretion in a government official over whether to permit or deny expressive activity.” Id. at 755, 108 S.Ct. at 2143; see Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (invalidating ordinance allowing city to deny parade permit if city believed its public welfare, safety, health, morals, or convenience required denial). In determining whether unbridled discretion is present, we must examine both the nature" }, { "docid": "479527", "title": "", "text": "makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”); Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (“We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.”); Beal v. Stern, 184 F.3d 117, 124 (2d Cir.1999) (“Because the [New York City] Rules [at issue] condition the exercise of expressive activity on official permission — a Parks Department permit — they do constitute a ‘prior restraint’ on speech. The essence of prior restraints are that ‘they give public officials the power to deny use of a forum in advance of actual expression.’ ”) (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)). This aversion to what is in effect the licensing of expression has an ancient pedigree. “[M]uch of the special hostility to traditional prior restraints has concerned the context in which they historically operated: one was prohibited from publishing without the approval of a professional censor who usually operated in secret and with great discretion.” Marc A. Franklin et al., Cases and Materials on Mass Media Law 95 (7th ed. 2005) (“Franklin et al.”). The Supreme Court’s seminal decision giving rise to the presumptive invalidity of prior restraints, Near v. Min. ex. rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), noted that it was “[t]he struggle in England, directed against the legislative power of the licenser [sic]” that “resulted in renunciation of the censorship of the press.” Id. at 713, 51 S.Ct. 625. And in Thomas v. Chicago Park District, 534 U.S. 316, 320, 122 S.Ct. 775, 151" }, { "docid": "3886808", "title": "", "text": "a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” 486 U.S. at 759, 108 S.Ct. at 2145. There the Court recognized two critical factors — both present in this case as well — that identified a licensing scheme subject to facial challenge. First, businesses had to apply for licenses that were periodically renewed by the issuer. Second, the licensing system was “directed narrowly and specifically at expression or conduct commonly associated with expression: the circulation of newspapers.” Id. at 760, 108 S.Ct. at 2145. The Chicago ordinance is also directed specifically at newsstand operators: “It shall be unlawful for any person to erect, locate, construct or maintain any newspaper stand * * * without obtaining a permit * * *.” Chicago Mun. Code § 10-28-130. A licensing scheme that operates as a prior restraint, as opposed to a zoning ordinance, is subject to more intense scrutiny than mere time, place and manner analysis; the regulation must also provide adequate procedural safeguards to prevent city officials from abusing their discretion. The Supreme Court has held in a long line of cases that authority exercised to administer a licensing scheme must be bounded by clear and precise standards where officials have the power to foreclose speech in public places. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938-39; Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302; Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 314-15, 95 L.Ed. 280; Schneider v. State, 308 U.S. 147, 161-162, 60 S.Ct. 146, 149-51, 84 L.Ed. 155; Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954. A prior restraint “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 738, 13 L.Ed.2d 649. An ordinance must contain explicit limits on the" }, { "docid": "20371241", "title": "", "text": "on commercial speech. C. We now turn to the district court’s analysis of the “equivalent” language of Section 22-164(a). Section 22-164(a) allows a publisher to use newsracks that are the “equivalent” of those specified in that section of the Ordinance. The City contends that the district court erred in concluding that “the ordinance’s use of the term ‘equivalent,’ without designation of a decisionmaker and in the absence of narrow, objective and definite standards to guide the decision, functions as an unconstitutional prior restraint.” Gold Coast, 798 F.Supp. at 1566. One branch of the doctrine of prior restraints has evolved from a “long fine of precedent ... that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.” Lakewood, 486 U.S. at 757,108 S.Ct. at 2144 (citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Staub v. City of Baxley, 355 U.S. 313, 321-22, 78 S.Ct. 277, 281-82, 2 L.Ed.2d 302 (1958)). To avoid that risk, “the Constitution requires that the city establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered.” Id. at 760, 108 S.Ct. at 2146. In Lakewood, the Supreme Court addressed whether a newsrack licensing ordinance vested unbridled discretion in government officials. The challenged ordinance granted the mayor the authority to approve or reject applications for annual permits to place newsracks on public rights-of-way, subject only to the requirement that he provide reasons for any rejections, and allowed the mayor to condition approval on “any ‘other terms and conditions deemed necessary and reasonable by the Mayor.’” Id. at 753-54, 108 S.Ct. at 2142. The Court held those portions of the ordinance unconstitutional because there were “no explicit limits on the mayor’s discretion,” and “[t]he doctrine [forbidding unbridled discretion] requires that the limits ... be made explicit by textual incorporation, binding judicial or administrative" }, { "docid": "6907289", "title": "", "text": "Pursley v. City of Fayetteville before the Supreme Court decided Frisby, and therefore, Pursley’s viability is at least suspect. Third, there is no suggestion in the record that the City applies the ordinance to commercial establishments. See Ward, 491 U.S. at 801, 109 S.Ct. at 2759 (rejecting plaintiffs’ argument in light of city’s policy in administering the ordinance). III. The protesters next contend that the parade permit ordinance is an unconstitutional prior restraint on First Amendment freedoms. A prior restraint on the exercise of First Amendment rights bears “a heavy presumption against its constitutional validity.” Vance v. Universal Amusement Co., 445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413 (1980) (per curiam). Nevertheless, certain restrictions on speech in public places are valid. A city may issue reasonable regulations governing the time, place, or manner of speech. See, e.g., Ward, 491 U.S. at 791, 109 S.Ct. at 2753-54. Such regulations, however, must not “delegate overly broad licensing discretion to a government official,” Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 2401, 120 L.Ed.2d 101 (1992), and contain narrow, objective, and definite standards to guide licensing authorities. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969). A permit requirement controlling the time, place, and manner of speech must also be content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication. Ward, 491 U.S. at 791, 109 S.Ct. at 2753-54. A. The protesters first attack the parade ordinance on the ground that it gives the Chief of Police too much discretion. The protesters point out that the Chief of Police can stifle free speech under the guise of determining that “the time, route or size” of the parade “will disrupt” the use of any street ordinarily subject to “significant congestion or traffic.” The protesters complain that there are no standards to guide the Chief of Police in determining if the route, time, or size of the parade will be disruptive. For example, the protesters contend that the Chief of Police can simply" }, { "docid": "12475154", "title": "", "text": "specific commercial and industrial zones may well promote the protection of residential areas and children, as may the 1000-foot restriction and the sign and window-blackening requirements. The County’s regulations do not suffer from the defects of the ordinance in Schad, which banned live entertainment, sexually explicit or otherwise, or the ordinance in Keego Harbor, which banned adult movie theaters. Some thirteen sites remain in the County upon which new adult bookstores apparently can open. Plaintiff has not challenged the suitability of those sites for development. See Renton, 475 U.S. at 53-54, 106 S.Ct. at 932. The County’s ordinance does, however, grant wide discretion to the zoning officials who must approve an adult bookstore’s application for the special exception. Plaintiff challenges such broad discretion as constituting an unreviewable pri- or restraint. In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), the Supreme Court discussed the permissible scope of a public official’s discretion in the First Amendment context. In that case, Justice Stewart wrote that an ordinance requiring a permit for a parade or procession which could be denied if the City Commission deemed a particular parade to be detrimental to the welfare, decency, or morals of the community, was unconstitutional since it gave licensing officials “extensive authority to issue or refuse to issue parade permits on the basis of broad criteria entirely unrelated to legitimate municipal regulation of the public streets and sidewalks.” Id. at 153. On the other hand, in Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), Justice White noted that a “first-come, first-served system” of awarding locations for soliciting at a state fair is “not open to the kind of arbitrary application that this Court has condemned as inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.” Id. at 649, 101 S.Ct. at 2565. Several lower federal courts have carefully scrutinized special permit procedures in a zoning context and have discussed specific criteria" }, { "docid": "12704847", "title": "", "text": "S.Ct. at 2303; Knights'of KKK v. East Baton Rouge, 578 F.2d 1122, 1124 (5th Cir. 1978). The government contends that the regulation validly restricts the time, place, and manner of use of the property. It offered several justifications for enforcement of the regulation. First, restriction of unauthorized individuals is necessary for security. Second, the adjacent community is entitled to quiet enjoyment of its environs. Third, trespassers have no access to restroom facilities. Regulations of time, place and manner of protected speech are upheld when necessary to further significant governmental interest. Eg., Ellwest Stereo Theatres, Inv. v. Wenner, 681 F.2d 1243 (9th Cir.1982) (upholding ordinance regulating “video centers”); Carlson v. Schlesinger, 511 F.2d 1327 (D.C.Cir.1975) (upholding prohibition on petitioning on military bases in Yiet Nam); Callison v. United States, 413 F.2d 133 (9th Cir.1969) (upholding arrest for distributing petitions at military induction center). We agree with the district court that the asserted governmental interests are sufficient to support the restrictions created by the regulation. c. Prior Restraint Appellants argue that the imposition of a permit requirement is an unconstitutional prior restraint. Any law which imposes a prior restraint on the exercise of first amendment rights comes to court “with a heavy presumption against its constitutional validity.” Rosen, 641 F.2d at 1246-47 (citing Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413 (1980)). The presumption is great because the prior restraint of protected activity is “the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1975). Even where it has been generally recognized that speech may be regulated, permit regulations are often condemned because they improperly vest in an administrative official discretion to grant or withhold a permit based upon broad criteria unrelated to proper regulation. Shuttlesworth v. Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162; Kunz v. New York, 340 U.S. 290, 293-94, 71 S.Ct. 312, 314-15, 95 L.Ed. 280 (1951). Thus, advance registration as a condition of peaceful pamphleteering at a" }, { "docid": "12704848", "title": "", "text": "is an unconstitutional prior restraint. Any law which imposes a prior restraint on the exercise of first amendment rights comes to court “with a heavy presumption against its constitutional validity.” Rosen, 641 F.2d at 1246-47 (citing Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413 (1980)). The presumption is great because the prior restraint of protected activity is “the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1975). Even where it has been generally recognized that speech may be regulated, permit regulations are often condemned because they improperly vest in an administrative official discretion to grant or withhold a permit based upon broad criteria unrelated to proper regulation. Shuttlesworth v. Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162; Kunz v. New York, 340 U.S. 290, 293-94, 71 S.Ct. 312, 314-15, 95 L.Ed. 280 (1951). Thus, advance registration as a condition of peaceful pamphleteering at a public airport is unconstitutional. Rosen, 641 F.2d at 1243. Similarly, the delegation of authority to a single person to determine who may use hospital grounds for free speech purposes violates the Constitution. Dallas Ass’n Etc. v. Dallas County Hospital District, 670 F.2d 629 (5th Cir. 1982). Even a regulation allowing a park director to issue overnight camping permits was unconstitutional since the regulation contained no definite standards to guide the licensing authority. United States v. Abney, 534 F.2d 984 (D.C.Cir.1976). The government argues here that the licensing requirement is narrow, objective and contains definite standards. We agree. 41 C.F.R. § 101-20.703 (1981) specifies grounds for the disapproval of an application for a permit. The regulation is not deficient for inadequate safeguards or for allowing unfettered discretion to vest in one official. The permit regulations are drawn with adequate specificity. 4. Insufficiency of the Evidence Appellants argue that the government failed to prove that they were present on the property after “normal working hours”. We examine the evidence in the light most favorable to the government" }, { "docid": "479526", "title": "", "text": "shown with in the state. In striking down the law, the Court acknowledged the “heavy presumption” against the “constitutional validity” of such a “sys tem of prior restraints of expression.” Id. at 57, 85 S.Ct. 734 (quoting Bantam Books, 372 U.S. at 70, 83 S.Ct. 631); see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (“[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.”); Cox v. Louisiana, 379 U.S. 536, 557, 85 S.Ct. 466, 13 L.Ed.2d 487 (1965) (“It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups ... by use of a statute providing a system of broad discretionary licensing power....”); Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958) (“[A]n ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”); Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (“We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.”); Beal v. Stern, 184 F.3d 117, 124 (2d Cir.1999) (“Because the [New York City] Rules [at issue] condition the exercise of expressive activity on official permission — a Parks Department permit — they do constitute a ‘prior restraint’ on speech. The essence of prior restraints are that ‘they give public officials the power to deny use of a" }, { "docid": "16215750", "title": "", "text": "be conditioned upon an official’s opinion as to the harmful consequences that might result. Id. at 153, 89 S.Ct. at 940. Accord Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Staub v. City of Baxley, supra. Discretion in public officials must be narrowly circumscribed. “[A] municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to . . . parade according to their own opinions regarding the potential effect of the activity in question. ...” Shuttlesworth, 394 U.S. at 153, 89 S.Ct. at 940. We agree with the district court’s conclusion that the standard of “good reason” is indefinite and does not comport with the constitutional requirement that discretion in public officials be specifically and narrowly circumscribed. A before-the-fact determination as to the harmful consequences of an applicant’s speech is by this ordinance made a subjective judgment call in the total discretion of the Director. This type of unbridled discretion has been condemned time and time again by the Supreme Court. A narrowly drawn statute authorizing the official to grant or deny a permit based on narrow criteria related to the proper regulation of public places would pass constitutional muster. See, e. g., Cox v. New Hampshire, supra (upholding permit system which sanctioned denial of permit if proposed activity would interfere with the public convenience to use the city streets). This provision is not so narrowly drawn. Accordingly, we find § 4A(c)(4) unconstitutional. § 4A(c)(5) Subsection 4A(c)(5) authorizes permit denial on the ground that “the Applicant or any agent or representative of the Applicant . . . has previously violated . . . Regulations of the Dallas-Fort Worth Regional Airport Board, or has violated any of the terms and provisions of any prior Permit.” Denial of a permit for prior violations unquestionably entails a total abridgement of a citizen’s right to use the forum provided at the D/FW airport. Compare Kunz v. New York, supra (denial of permit application for public worship based on disorders caused by prior worship meetings held by applicant constitutes improper censorship). The First" } ]

[ { "docid": "14546861", "title": "", "text": "did submit evidence of his financial ability to travel, the evidence consisting of a bank deposit of $1,000 derived from contributions. In 1954 appellant made the passport application which is the basis for the present suit. The State Department advised him that it took no position on the Kraus Case, and that it had no objection to his traveling abroad for the purpose of gaining support for his case. However, the Department declined to issue appellant a passport unless he could show that he had the necessary funds with which to travel abroad and return home, or a means of obtaining such funds which had reasonable assurance of success. The Department also expressed displeasure at the fact that appellant’s past travels had caused “Foreign Service offices of the United States to receive numerous troublesome and vexatious inquiries” about appellant’s activities. Appellant declined to make the submissions requested and instead brought this action in the District Court. It is clear that the denial of a passport by the Secretary of State is subject to a measure of judicial review, including the question whether the action of the Secretary was arbitrary or capricious or contrary to law, Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C.-, 235 F.2d 532. We think that in the instant case there is sufficient likelihood that the reason given represents arbitrary and capricious action to render the grant of appellee’s motion to dismiss-before answer and before hearing- — unjustified. In the instant case, some officials of the Department of State indicated in their correspondence with appellant that the Department has a longstanding policy “that it is not favorably disposed to issue passport facilities to persons who appear likely to require financial assistance in accomplishing their proposed travels abroad.” And a State Department official has testified before a Senate Subcommittee that some 120 passport applicants were screened on a financial basis during the ten months period from January 1 until October 30, 1955, with a resultant 25 rejections" } ]

[ { "docid": "7089010", "title": "", "text": "circumstances in which it is enacted. The question before us is whether the Secretary of State has power to establish such substantive criteria for travel as are here involved. We need not decide and I do not say that there are no circumstances under which the Secretary may restrain a citizen’s travel. Whether he may deny a passport to prevent a flight from justice or in aid of the enforcement of some specific law, e. g., the Universal Military Training and Service Act, are questions that may arise in other cases. In any event, the exercise of such powers would be a far cry from the Secretary’s present undertaking. . See 3 Hackworth, Digest of International Law § 268 (1942). . Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 289-290, 225 F.2d 938, 940-941. . Actually the first requirement of a passport for travel was during World War I. Act of May 22, 1918, 40 Stat. 559, 22 U.S.C.A. §§ 223-226b, Proclamation No. 1473, Aug. 8, 1918, 40 Stat. 1829. These controls expired March 3, 1921. Pub.Res. No. 64, 41 Stat. 1359. By Act of June 21, 1941, 55 Stat. 252, 22 U.S.C.A. § 223, Congress amended the 1918 Act to apply during a proclaimed emergency and, on November 14, 1941, the President issued Proclamation No. 2523, 55 Stat. 1696, U.S.Code Cong.Service 1941, p. 883, restoring travel controls which have remained in effect since then. The 1941 statute was replaced by § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C.A. § 1185, and on January 17, 1953, the revised statutory authority was invoked by Proclamation No. 3004, 67 Stat. 031, U.S. Code Cong. and Adm.News 1953, p. 915. In addition to being legally required as an exit permit, a passport has become a practical necessity because foreign countries have increasingly been requiring it as a condition to entry. See Shachtman v. Dulles, 96 U.S.App.D.C. at page 290, 225 F.2d at page 941; Bauer v. Acheson, D.C., 1952, 106 F.Supp. 445, 451; Comment, 61 Yale L.J., infra note 28, at pages 171-172. . See, for example," }, { "docid": "12608030", "title": "", "text": "the procedures under section 13(b). The findings of the Congress made in section 2 of the Subversive Activities Control Act of 1950 are therefore as valid and as binding on this Court today as on the day on which they were made. It is in the light of these congressional findings that the plaintiffs’ claims of unconstitutionality of section 6 of the Act must be judged. Denial of a passport to a citizen is a denial of the right to travel outside the United States. Worthy v. Herter, 106 U.S.App.D.C. 153, 270 F.2d 905 (1959), cert. den., 361 U.S. 918, 80 S.Ct. 255, 4 L.Ed.2d 186. “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958). The Supreme Court further noted in Kent that “ [i] f that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress.” Id. 357 U.S. at 129, 78 S.Ct. at 1119. The Supreme Court in Kent did not review the constitutionality of the restrictions on travel involved in that case. It merely held that the Secretary of State did not have the authority to deny passports to citizens because of their alleged Communistic beliefs and associations and their refusal to file affidavits concerning their membership in the Communist Party when sections 2 and 6 of the Subversive Activities Control Act had not yet become effective. The Court said it would be “strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs or associations.” Id. 357 U.S. at 130, 78 S.Ct. at 1120. It is clear in the present case that certain liberties of these plaintiffs, as alleged by them in their brief in these consolidated cases and in oral argument before this Court, are being" }, { "docid": "8225914", "title": "", "text": "to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir.1996) (“Given the lesser importance of this freedom to travel abroad, the Government need only advance a rational, or at most an important, reason for imposing the ban.”). Responding to challenges similar to those brought by Clancy, the Supreme Court held that the Fifth Amendment right to travel, standing alone, is insufficient to overcome the foreign policy considerations justifying restrictions on travel to Cuba. Regan, 468 U.S. at 242, 104 S.Ct. 3026; see also Zemel, 381 U.S. at 14, 85 S.Ct. 1271 (upholding refusal by Secretary of State to validate the passports of United States citizens for travel to Cuba). These regulations were issued pursuant to President Bush’s declaration of a national emergency with respect to Iraq, and were imposed to ensure that no benefit from the United States flowed to the Government of Iraq. 55 Fed.Reg. 31,803 (1990). We see no reason (and Clancy provides none) to find that these considerations are insufficient to justify the travel restriction imposed by the regulations. See also Karpova, 497 F.3d at 272 (travel restriction imposed by the Iraq Sanctions regulations does not violate liberty interest under the Fifth Amendment). Clancy responds that even if general travel restrictions are constitutional, this one is invalid because it is selectively enforced. It is true that government efforts to selectively restrict travel based on “the basis of political belief or affiliation” are not entitled to the same judicial deference as general bans on travel. See Aptheker v. Sec’y of State, 378 U.S. 500, 514, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (rejecting Congress’s attempt to deny passports on the basis of an affiliation with the Communist Party); Kent v. Dulles, 357 U.S. 116, 130, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (Secretary of State did not have authority to inquire about affiliation with Communist Party before issuing passports). But the Supreme Court has distinguished “general bans on travel” that are imposed because of foreign policy considerations affecting all citizens from selective travel restrictions. Regan, 468 U.S. at 241, 104 S.Ct. 3026 (distinguishing Kent and Aptheker on" }, { "docid": "3691037", "title": "", "text": "seq. Although the right of foreign travel may not be arbitrarily or unreasonably restrained, it is not an absolute right. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840; Shachtman v. Dulles, supra. The right of the Congress to require passports and to impose reasonable restrictions upon foreign travel is not dependent upon the existence of a state of war, but may be exercised under the broad power to enact legislation for the regulation of foreign affairs. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. The authorities before cited, particularly the opinions of the District •of Columbia Circuit in the Worthy case and the Frank case, have so fully developed the doctrines and principles which sustain the validity of the requirement of a passport for foreign travel and the denial of a passport to the appellant, that we need do no more with respect to such questions than to refer again to them. The requirement and restrictions are applicable not only to Worthy and Frank, newspapermen who asserted rights of freedom of the press under the First Amendment, but also to a Congressman who claimed the restriction was a breach of the separation of powers. Porter v. Herter, D.C.Cir. 1960, 278 F.2d 280, cert. den. 361 U.S. 918, 4 L.Ed.2d 185, 80 S.Ct. 260, and 364 U.S. 837, 81 S.Ct. 70, 5 L.Ed.2d 61. Since Congress has the power to declare a policy with respect to foreign affairs, and to impose reasonable restrictions on the right of the citizen to travel in foreign countries, it follows that it may punish violations of the statute. See Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90. The prohibitory provision of Section 1185(b) defines the offenses in the alternative, and makes it unlawful for a citizen “to depart from or enter * * * the United States unless he bears a valid passport.” If the conviction of the appellant had been for a willful departure from the United States without a valid passport we would be confronted with a less difficult problem. A citizen, at" }, { "docid": "23689373", "title": "", "text": "chain’ cases, it leads into the next question, i. e. the impact of the statute on the constitutional right to travel. “If this possible interference with the right to travel is a proper realm for congressional action and does not violate constitutional provisions pertaining thereto, we have no doubt that the element of choice available to the prospective registrant under Sec. 1407, Title 18 U.S. O.A., makes inapplicable Hoffman and Blau, supra and similar cases. “5. Right to travel. “Williams v. Fears, 1900, 179 U.S. 270, 21 S.Ct. 128, 129, 45 L.Ed. 186, involved the Fourteenth Amendment and the power of a state to tax an ‘emigrant agent’ and whether the tax burdened interstate-commerce. The tax was held proper and the court said: “ ‘ * * * Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution. * * * ’ “In the cases at bar the statute must comply with the provisions of the constitution applicable to the federal government. This is the Fifth Amendment, —‘No person shall be * * * deprived of * * * liberty * * * without due process of law,’ Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 225 F.2d 938, 940, 941, ‘What is arbitrary, however, in the sense of constituting a denial of due process, depends upon circumstances,’ Shachtman, supra, 225 F.2d 941, citing cases. We do not find the Shacht-man case otherwise helpful. Nor does Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840, another passport case, teach anything except that an ad ministrative denial of a passport must be reasonable and not arbitrary and tliat the denial is subject to review.” Id., 155 F.Supp. 927-929. See, also, Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, and Dayton v. Dulles, 357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed.2d 1221. “The right to" }, { "docid": "7089015", "title": "", "text": "the United States Code, has not been repealed and is still in effect. Savorgnan v. United States, 1950, 338 U.S. 491, 498-499, 70 S.Ct. 292. . See also op. cit. supra note 1, p. 163. . 8 U.S.C.A. §§ 1481 and 1483; Savorgnan v. United States, 338 U.S. at page 503, 70 S.Ct. at page 298. . Supra note 6. . Ibid. . In the last session of Congress, legislation was introduced by Representative Walter, which would have amended the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. to provide for a passport review procedure and would have denied passports to persons under Communist discipline in much the fashion now employed by the State Department. The bill died in committee. H.R. 9991, 102 Cong.Rec. 4266, 84th Cong., 2d Sess., March 15, 1956. . See Note, 41 Geo.L.J., infra note 28, at page 89. . Comment, The Passport Puzzle, 23 U. Chi.L.Rev. 260 (1956); Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo.L.J. 63, 88 (1952); Note, “Passport Denied”: State Department Practice and Due Process, 3 Stan.L.Rev. 312 (1951); Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va.L.Rev. 853, 870 (1954); Passport Refusals for Political Reasons: Constitutional Issues and Judicial Review, 61 Tale L.J. 171 (1952). . 96 U.S.App.D.C. at page 290, 225 F.2d at page 941. See also Williams v. Fears, 1900, 179 U.S. 270, 274, 21 S.Ct. 128, 130, 45 L.Ed. 186, referring to “freedom of egress from the state.” . Dayton v. Dulles, supra note 4; Boudin v. Dulles, supra note 4; Bauer v. Acheson, supra note 3; see also Dulles v. Nathan, supra note 4, remanding Nathan v. Dulles, D.C.1955, 129 F.Supp. 951, for vacation of judgment and dismissal of complaint on ground of mootness. . Shachtman v. Dulles, supra note 2; see Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. . In saying in the Communist Party case “that the Government may validly decline” a passport to a Communist, this court was referring to the passport in its aspect as" }, { "docid": "2886585", "title": "", "text": "suggesting Due Process protection for the right to travel grew out of the federal government’s attempts in the 1950’s and 1960’s to deny passports to Communists. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Court stated that “[t]he right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.” Id. at 125, 78 S.Ct. at 1118. Because of the Fifth Amendment values at stake, the Court construed an arguably ambiguous statute not to confer on the Secretary of State “unbridled discretion” to decide whether or not to grant passports to Communists. Id. at 129, 78 S.Ct. at 1119. The Court noted, however, an additional First Amendment concern lurking in the case — the conditioning of a passport on the abandonment of protected speech and association. See id. at 130, 78 S.Ct. at 1120. In Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), a similar case decided on constitutional grounds, the First Amendment seemed to play a more central role in the Court's analysis. “Since freedom of association is itself guaranteed in the First Amendment, restrictions imposed upon the right to travel cannot be dismissed by asserting that the right to travel could be fully exercised if the individual would first yield up his membership in a given association.” Id. at 507, 84 S.Ct. at 1664 (footnote omitted). Subsequent cases upholding restrictions on the right to travel abroad make it difficult to infer a general Due Process right of localized intrastate movement from Kent. In Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981), the Court drew a sharp distinction between “the freedom to travel outside the United States” at issue in Kent, which it characterized as “no more than an aspect of the ‘liberty’ protected by the Due Process clause,” and “the right to travel within the United States,” which it characterized as “[t]he constitutional right to interstate travel,” citing cases all of which fall squarely within" }, { "docid": "22420333", "title": "", "text": "doctrine see e. g., United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 97 L.Ed. 770 (1953) and cases cited. There is abundant precedent for application of this doctrine to avoid a conclusion that a statute vests unfettered discretion in the Executive. In the Japanese Immigrant Case, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721, (1903) Justice Harlan said (p. 101, 23 S.Ct. p. 615) : The words here used do not require an interpretation that would invest executive or administrative officers with the absolute, arbitrary power implied in the contention of the appellant. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Court said at 128-130, 78 S.Ct. at 1119-1120: “We, therefore, hesitate to impute to Congress, when in 1952 it made a passport necessary for foreign travel and left its issuance to the discretion of the Secretary of State, a purpose to give him unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose. * * * We would be faced with important constitutional questions were we to hold that Congress * * * had given the Secretary authority to withhold passports to citizens because of their beliefs or associations. Congress has made no such provision in explicit terms; and absent one, the Secretary may not employ that standard to restrict the citizens’ right of free movement.” Only last year the Court said in Gutknecht v. United States, 396 U.S. 295, 306-307, 90 S.Ct. 506, 511, 24 L.Ed.2d 532 (1970): The power under the [Selective Service] regulations to declare a registrant “delinquent” has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. * * * We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized. Nor do we read it as granting personal privileges that may be forfeited for transgressions" }, { "docid": "7089041", "title": "", "text": "349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129. . 32 Stat. 380 (1902), 22 U.S.C. § 212 (1952), 22 U.S.C.A. § 212, which amended 14 Stat. 54 (1866). Under the earlier lav? only citizens were eligible for passports. FAHY, Circuit Judge (dissenting). The discretion of the Secretary in issuing passports prior to the enactment in 1941 of 66 Stat. 190, 8 U.S.C. § 1185 (b) (1952), 8 U.S.C.A. § 1185(b), see Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938, was subject to no clear limitation except that the applicant must qualify as one who owed allegiance to the United States. A passport was in the nature of a political document; one need not have it in order to obtain passage and depart from the United States. So no deprivation of liberty and no justiciable controversy were involved in denial of a passport. But 8 U.S.C. § 1185(b), 8 U.S.C.A. § 1185(b), changed all this. By that statute Congress provided that when the United States is at war or during the existence of any national emergency proclaimed by the President no citizen may lawfully depart from the United States without a valid passport, with exceptions not here pertinent. This was an assertion by Congress of restraint upon travel based upon the war power, coupled with the executive control over passports incident to the conduct of foreign affairs noted in Shachtman. The new statute, however, did not enumerate other specific criteria, notwithstanding a passport thenceforth was not merely a political document the denial of which entailed no deprivation of liberty. But I do not think the absence from 8 U.S.C. § 1185(b), 8 U.S.C.A. §. 1185(b), of more specific criteria renders nugatory the control in question. The statute explicitly limits the control to a time of war or of a presidentially proclaimed national emergency, and to passports. Control related to the war powers and to the conduct of foreign affairs is thus plainly intended. In order to be validly exercised the powers thus invoked, though subject to the Constitution, are not held to the same degree of legislative or" }, { "docid": "23689374", "title": "", "text": "by other provisions of the Constitution. * * * ’ “In the cases at bar the statute must comply with the provisions of the constitution applicable to the federal government. This is the Fifth Amendment, —‘No person shall be * * * deprived of * * * liberty * * * without due process of law,’ Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 225 F.2d 938, 940, 941, ‘What is arbitrary, however, in the sense of constituting a denial of due process, depends upon circumstances,’ Shachtman, supra, 225 F.2d 941, citing cases. We do not find the Shacht-man case otherwise helpful. Nor does Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840, another passport case, teach anything except that an ad ministrative denial of a passport must be reasonable and not arbitrary and tliat the denial is subject to review.” Id., 155 F.Supp. 927-929. See, also, Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, and Dayton v. Dulles, 357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed.2d 1221. “The right to travel is not an absolute one, free of all restraint or regulation. The right of free speech, in comparison, must yield to the delicate balancing of interests, public and private. Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Gitlow v. New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. “There are of course the familiar restraints on travel, such as the Dyer Act [18 U.S.C.A. § 2311 et seq.] and the Mann Act [18 U.S.C.A. § 2421 et seq.] where a certain set of facts has been found by Congress to be a federal crime within the power of Congress to regulate interstate and foreign commerce. In fact all regulations of interstate or foreign commerce involving persons are restraints on the right of free travel. “Such statutes are comparable to the statutes here, in that Congress has here determined that crossing the border by a particular class of persons is illegal without" }, { "docid": "16998659", "title": "", "text": "and whether the tax burdened interstate commerce. The tax was held proper and the court said: * * Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution. * * *” In the cases at bar the statute must comply with the provisions of the constitution applicable to the federal government. This is the Fifth Amendment,— “No person shall be * * * deprived of * * * liberty * * * without due process of law,” Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 225 F.2d 938, 940, 941, “What is arbitrary, however, in the sense of constituting a denial of due process, depends upon circumstances,” Shachtman, supra, 225 F. 2d 941, citing cases. We do not find the Shachtman case otherwise helpful. Nor does Kraus v. Dulles, 1956, 98 U.S.App. D.C. 343, 235 F.2d 840, another passport case, teach anything except that an administrative denial of a passport must be reasonable and not arbitrary and that the denial is subject to review. In Briehl v. Dulles, D.C.Cir., En Banc 248 F.2d 561, five of the eight judges found no infirmity in a statutory and regulatory system of passport control requiring the filing of a non-communist affidavit by the applicant. The right to travel is not an absolute one, free of all restraint or regulation. The right of free speech, in comparison, must yield to the delicate balancing of interests, public and private. Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Gitlow v. New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. There are of course the familiar restraints on travel, such as the Dyer Act and the Mann Act where a certain set of facts has been found by Congress to be a" }, { "docid": "7088969", "title": "", "text": "courts. We should do no more than decide the question actually before us. . When the Supreme Court in Garner determined that the state agency may properly elicit from city employees information “that may prove relevant to their fitness and suitability for the public service,” 341 U.S. at page 720, 71 S.Ct. at page 912, it apparently assumed the proposition that the state agency had power to bar from employment those who are not fit or suitable for the public service. . See Shachtman v. Dulles, 1955, 96 U.S. App.D.C. 287, 225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43; cf. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. The highly restrictive position taken by Judge Bazelon in his learned dissent is opposed to tbe spirit if not the letter of these decisions. But it may be agreed that further congressional action in the passport field would be very desirable. . See American Communications Ass’n v. Douds, 1950, 339 U.S. 382, 402, 70 S.Ct. 674; see also United States v. Rumely, 1953, 345 U.S. 41, 56, 73 S.Ct. 543, 97 L.Ed. 770. . 22 U.S.C.A. § 213 requires every passport applicant to furnish under oath an application containing “a true recital of each and every matter of fact which may be required by law or by any rules authorized by law.” See also 22 C.F.R. 51.14. Section 51.142 of the regulations authorizes the affidavit, and Section 51.74 specifies that the' affidavit “shall be considered as, and become, a part of the application.” . The thrust of appellant’s argument is that the issuance of a passport is being unlawfully conditioned upon the requirement of a “test oath.” But as the Supreme Court pointed out in Garner, supra, entirely different issues are raised by a requirement that certain conduct or affiliation be denied under oath, and by a requirement that information “with respect to” a stated subject matter be given. . See Garner, supra 341 U.S. at page 720, 71 S.Ct. at page 912: “The affidavit" }, { "docid": "3691035", "title": "", "text": "be hostile even though not at war. There are hazards in a cold war as well as in a declared war. Neither the language of the statute nor its legislative history, as we read them, is indicative of any legislative intent to restrict the operation of the statute to times of declared war. Cf. United States ex rel. Knauff v. Shaughnessy, Acting Director, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. This observation applies, of course, only to the construction of the statute; not to its validity. Having resolved against the appellant all of the other issues, we are brought to the question as to whether the statutory prohibition, with penal sanctions, supplemented by an executive order, against the entry of a citizen into the United States unless he bears a valid passport, violates the rights of the citizen guaranteed by the Federal Constitution. The right to travel outside the United States is a right which is within the protection of the Constitution. The Supreme Court has' held: “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. * * * Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. * * * Freedom to travel is, indeed, an important aspect of the citizen’s ‘liberty.’ ” Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204. See also Dayton v. Dulles, 357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed.2d 1221; Worthy v. Herter, supra; Frank v. Herter, D.C.Cir. 1959; 106 U.S.App.D.C. 54, 269 F.2d 245, cert. den. 361 U.S. 918, 80 S.Ct. 256, 4 L.Ed.2d 187; Shachtman v. Dulles, D.C.Cir. 1955, 96 U.S.App.D.C. 287, 225 F.2d 938; Antieau, Commentaries on the Constitution 375 et" }, { "docid": "3363595", "title": "", "text": "this conflict between the need for executive expediency and the ideal of individual liberty, we consider the analogous situation in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). In Kent, the issue was whether the Secretary of State, acting pursuant to a broadly worded congressional enactment bestowing upon him the authority to issue passports, had the power to curtail the right of a citizen to travel by issuing and enforcing a regulation denying passports, which were necessary to leave the country, to alleged Communists or those refusing to submit an affidavit denying membership in the Communist party. Despite the general language of the congressional enactment that was the basis of the Secretary’s regulation, the Court found that when Congress passed the provision, it merely intended to adopt the existing administrative practice under which the Secretary had denied passports only for failure to show allegiance to the United States or upon proof of participation in criminal activity. 357 U.S. at 127, 78 S.Ct. 1113. While recognizing that the foreign affairs power of the executive was implicated in the issuance of a passport in that such a document extended some diplomatic protection to the bearer, in light of the impact upon the individual’s fundamental right to travel were it withheld, the Court refused to accept that executive power as a valid basis upon which the Secretary could rest his authority to promulgate the regulations, stating that “[i]f that ‘liberty [to travel]’ is to be regulated, it must be pursuant to the lawmaking functions of the Congress.” Id. at 129, 78 S.Ct. at 1120. As in Kent, the right here involved — the guarantee of equal protection of the laws implicit in the due process clause of the fifth amendment — is one fundamental to the individual freedom of all persons, citizens and aliens alike, and it is one that the action of the executive threatens to totally annul. The effect of the regulation at issue is to establish two classes of nonimmigrant students, Iranians and non-Iranians, each of which is to be subjected to a different type" }, { "docid": "3363594", "title": "", "text": "that ideal. This then is the dichotomy of foreign affairs which has caused the Supreme Court to observe that “[a]ny rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, supra, 426 U.S. at 81, 96 S.Ct. at 1892. But, above all, it is patent that the executive, even in the area of immigration and naturalization, must be subject to applicable principles of the Constitution. See Galvan v. Press, supra, 347 U.S. at 531, 74 S.Ct. 737; Fong Yue Ting v. United States, supra, 149 U.S. at 713, 13 S.Ct. 1016. To allow the executive to, in effect, delegate to itself the power to abrogate the important, constitutionally protected right to equal protection of the laws under the statutes governing immigration when Congress, which has primary responsibility for the policy decisions in immigration matters, has not acted, exceeds the proper boundaries within which the three branches of our constitutional government co-exist. In resolving this conflict between the need for executive expediency and the ideal of individual liberty, we consider the analogous situation in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). In Kent, the issue was whether the Secretary of State, acting pursuant to a broadly worded congressional enactment bestowing upon him the authority to issue passports, had the power to curtail the right of a citizen to travel by issuing and enforcing a regulation denying passports, which were necessary to leave the country, to alleged Communists or those refusing to submit an affidavit denying membership in the Communist party. Despite the general language of the congressional enactment that was the basis of the Secretary’s regulation, the Court found that when Congress passed the provision, it merely intended to adopt the existing administrative practice under which the Secretary had denied passports only for failure to show allegiance to the United States or upon proof of participation in criminal activity. 357 U.S. at 127, 78 S.Ct. 1113. While recognizing that the foreign affairs power" }, { "docid": "3691036", "title": "", "text": "part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. * * * Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. * * * Freedom to travel is, indeed, an important aspect of the citizen’s ‘liberty.’ ” Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204. See also Dayton v. Dulles, 357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed.2d 1221; Worthy v. Herter, supra; Frank v. Herter, D.C.Cir. 1959; 106 U.S.App.D.C. 54, 269 F.2d 245, cert. den. 361 U.S. 918, 80 S.Ct. 256, 4 L.Ed.2d 187; Shachtman v. Dulles, D.C.Cir. 1955, 96 U.S.App.D.C. 287, 225 F.2d 938; Antieau, Commentaries on the Constitution 375 et seq. Although the right of foreign travel may not be arbitrarily or unreasonably restrained, it is not an absolute right. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840; Shachtman v. Dulles, supra. The right of the Congress to require passports and to impose reasonable restrictions upon foreign travel is not dependent upon the existence of a state of war, but may be exercised under the broad power to enact legislation for the regulation of foreign affairs. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. The authorities before cited, particularly the opinions of the District •of Columbia Circuit in the Worthy case and the Frank case, have so fully developed the doctrines and principles which sustain the validity of the requirement of a passport for foreign travel and the denial of a passport to the appellant, that we need do no more with respect to such questions than to refer again to them. The requirement and restrictions are applicable not only to Worthy and Frank, newspapermen who asserted rights of" }, { "docid": "12608029", "title": "", "text": "made by the Congress in the Subversive Activities Control Act of 1950 as to the dangers threatening our Government by the world Communist movement, and upheld by the Supreme Court in Communist Party v. Subversive Activities Control Board, supra, were made some thirteen years ago and may not be considered binding on the courts at this time. There has been no evidence offered or adduced that the “leopard” of the world Communist movement has changed a single spot in the past thirteen years nor would common sense nor common knowledge indicate any such change. In addition, section 13(b) of the Act, 50 U.S.C. § 792(b), contains the procedure whereby an organization which has been required to register by a final order of the Subversive Activities Control Board may seek the cancellation of such registration. On proper showing, the Board could cancel their prior registration order and the members of the organization would be under no impediment as to the use or issuance of passports. To our knowledge, the Communist Party has not sought to utilize the procedures under section 13(b). The findings of the Congress made in section 2 of the Subversive Activities Control Act of 1950 are therefore as valid and as binding on this Court today as on the day on which they were made. It is in the light of these congressional findings that the plaintiffs’ claims of unconstitutionality of section 6 of the Act must be judged. Denial of a passport to a citizen is a denial of the right to travel outside the United States. Worthy v. Herter, 106 U.S.App.D.C. 153, 270 F.2d 905 (1959), cert. den., 361 U.S. 918, 80 S.Ct. 255, 4 L.Ed.2d 186. “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958). The Supreme Court further noted in Kent that “ [i] f that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress.”" }, { "docid": "7089011", "title": "", "text": "Pub.Res. No. 64, 41 Stat. 1359. By Act of June 21, 1941, 55 Stat. 252, 22 U.S.C.A. § 223, Congress amended the 1918 Act to apply during a proclaimed emergency and, on November 14, 1941, the President issued Proclamation No. 2523, 55 Stat. 1696, U.S.Code Cong.Service 1941, p. 883, restoring travel controls which have remained in effect since then. The 1941 statute was replaced by § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C.A. § 1185, and on January 17, 1953, the revised statutory authority was invoked by Proclamation No. 3004, 67 Stat. 031, U.S. Code Cong. and Adm.News 1953, p. 915. In addition to being legally required as an exit permit, a passport has become a practical necessity because foreign countries have increasingly been requiring it as a condition to entry. See Shachtman v. Dulles, 96 U.S.App.D.C. at page 290, 225 F.2d at page 941; Bauer v. Acheson, D.C., 1952, 106 F.Supp. 445, 451; Comment, 61 Yale L.J., infra note 28, at pages 171-172. . See, for example, Bauer v. Acheson, supra note 3; Dulles v. Nathan, 1955, 96 U.S.App.D.C. 190, 225 F.2d 29; Shaehtman v. Dulles, supra note 2; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Robeson v. Dulles, 1956, 98 U.S.App.D.C. 313, 235 F.2d 810, certiorari denied, 1956, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43. . 17 Fed.Reg. 8013, Sept. 4, 1952, 22 C.F.R. §§ 51.135-51.143 (1957 Supp.). . Section 6 of the Internal Security Act of 1950, 64 Stat. 993, 50 U.S.C.A. § 785, which makes it a crime for a “member of [a Communist] organization” to apply for or use a passport, is inoperative until such an organization has registered or been finally ordered to do so. Neither of these events has occurred. Communist Party v. Subversive Activities Control Board, 1956, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, reversing, 1954, 96 U.S.App.D.C. 66, 223 F.2d 531. . The Act of May 30, 1866, 14 Stat. 54, disqualified noncitizens. By Act of June" }, { "docid": "7089016", "title": "", "text": "Denied”: State Department Practice and Due Process, 3 Stan.L.Rev. 312 (1951); Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va.L.Rev. 853, 870 (1954); Passport Refusals for Political Reasons: Constitutional Issues and Judicial Review, 61 Tale L.J. 171 (1952). . 96 U.S.App.D.C. at page 290, 225 F.2d at page 941. See also Williams v. Fears, 1900, 179 U.S. 270, 274, 21 S.Ct. 128, 130, 45 L.Ed. 186, referring to “freedom of egress from the state.” . Dayton v. Dulles, supra note 4; Boudin v. Dulles, supra note 4; Bauer v. Acheson, supra note 3; see also Dulles v. Nathan, supra note 4, remanding Nathan v. Dulles, D.C.1955, 129 F.Supp. 951, for vacation of judgment and dismissal of complaint on ground of mootness. . Shachtman v. Dulles, supra note 2; see Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. . In saying in the Communist Party case “that the Government may validly decline” a passport to a Communist, this court was referring to the passport in its aspect as a documentary assurance of “the protection and good offices of American diplomatic and consular officers abroad,” 1954, 96 U.S.App.D.C. 66, 90, 223 F.2d 531, 555, and not as an exit permit indispensable to travel. As for the latter aspect of a passport, i. e., whether a restriction upon liberty to travel is constitutional, the court said, “ * * * we need not, and do not, enter upon consideration of that question * * *.” 96 U.S.App.D.C. at page 91, 223 F.2d at page 556. Later in Shachtman, the court did consider that question and concluded, as we have already seen, that there is a constitutionally protected right, supra note 29; but how much protection springs from the First Amendment has not been determined. . Mr. Justice Cardozo dissenting in Panama Refining Co. v. Ryan, 1935, 293 U.S. 388, 440, 55 S.Ct. 241, 256, 79 L.Ed. 446. The Secretary argues that standardless delegation is not invalid in a field where the Executive possesses inherent power, citing United States v. Curtiss-Wright Export Corp., 1936, 299 U.S." }, { "docid": "10847036", "title": "", "text": "of the restriction for business purposes and family emergencies. Eunique has not even attempted to avail herself of the regulatory safe harbor. Eunique’s right to international travel, although protected under the Due Process clause, is not absolute. Accordingly, the restriction imposed here was carefully considered and should be upheld. To understand the development of the jurisprudence in the travel arena, it is instructive to take a short chronological tour of the key Supreme Court cases and our circuit’s follow-on cases. The seminal case of Kent v. Dulles, 357 U.S. 116, 117-18, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), considered regulations relating to the issuance of passports to Communists. The Court explained that “[t]he right to travel is part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.” Id. at 125, 78 S.Ct. 1113. It went on to elaborate that “[t]ravel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” Id. at 126, 78 S.Ct. 1113. In the end, however, the Court did not reach the constitutional question; instead, it decided the case based on the scope of the Secretary of State’s regulatory authority. Id. at 129, 78 S.Ct. 1113. The Court next addressed international travel in a challenge to section 6 of the Subversive Activities Control Act, which denied passports to Communists. Aptheker v. Secretary of State, 378 U.S. 500, 501, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). Concluding that the Act was unconstitutional on its face because it swept “too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment” and was not “narrowly drawn to prevent the supposed evil,” id. at 514, 84 S.Ct. 1659, the Court pointed out that Congress had less drastic measures at its disposal to safeguard national security. Id. at 512-13, 84 S.Ct. 1659. Just one year later, in Zemel v. Rusk, 381 U.S. 1, 16," } ]

[ { "docid": "15123103", "title": "", "text": "bargaining representatives with information on its financial status is triggered whenever an employer asserts an inability to meet a wage proposal. See Truitt, 351 U.S. at 152-53, 76 S.Ct. at 755-56. No “magic words” are required to trigger an employer’s duty to disclose financial information; the employer’s conduct only must be sufficiently specific to convey an inability to meet a union’s wage proposal. NLRB v. Harvstone Mfg., 785 F.2d 570, 575 (7th Cir.), cert. denied, 479 U.S. 821, 107 S.Ct. 88, 93 L.Ed.2d 41 (1986). The test for determining whether an employer has communicated such an inability is whether it asserts that it “cannot,” as opposed to “will not,” pay a particular wage demand. See id. The mere assertion that an employer is operating at a competitive disadvantage or that its wages exceed the prevailing rate does not constitute a claim of inability to meet wage demands. Id.; Dallas Gen. Drivers, Warehousemen & Helpers Local 745 v. NLRB, 355 F.2d 842, 845 (D.C.Cir.1966); see, e.g., Washington Materials v. NLRB, 803 F.2d 1333, 1338-39 (4th Cir.1986) (employer’s claim that it is losing bids to non-union companies paying lower wages does not trigger duty to disclose financial information). In the instant case, Facet’s initial communication with Union negotiators did not trigger a duty to disclose financial information. Facet’s assertion that it was operating at a competitive disadvantage by paying higher wages than its competitors readily could be corroborated with information available to the Union; resort to Facet’s books would be unnecessary. See Washington Materials, 803 F.2d at 1338-39; Harvstone Mfg., 785 F.2d at 575. However, the presentation by Facet’s controller and the letter to the Detroit employees communicated information on the company’s financial status that could not be confirmed with publicly available information. Only by examining the company’s books could the Union confirm the accuracy of the controller’s presentation and Facet’s assertions as to the disparate profitability of the three plants. Substantial evi dence therefore supports the Board’s conclusion that Facet crossed the threshold between asserting an unwillingness to meet the Union’s wage demands and asserting an inability to meet those demands." } ]

[ { "docid": "99607", "title": "", "text": "ignored,” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (footnote omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). See also Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (when agency changes course it must “supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance”). It is with respect to this principle that we find the CAB to have failed. In promulgating PS-109, it “failed to show that the rates resulting from its newly articulated ratemaking principles would necessarily satisfy the ‘just and reasonable’ standard.” Farmers Union, 734 F.2d at 1510. This gap was not filled when the CAB used the zone to approve the IATA rate agreement, and its approval is thus not in accordance with law. This is not to say that the CAB could not decide to rely on competition to patrol rates, but only that if it should choose to do so it must demonstrate through its factual record and legal reasoning that its choice is consistent with its statutory obligations. Cf. Brae Corp. v. United States, 740 F.2d 1023 (D.C.Cir.1984) (affirming in part, vacating in part ICC deregulation of boxcars); id. at 1036-1044 (upholding reliance on competition to justify boxcar exemption from rate regulation). See generally Sunstein, supra p. 1541, at 204-06 (discussing standard agencies must meet to deregulate and ways they can do so). C. The Carriers’Revenue Needs The Board approved the rate agreement, to the extent that the rates were within the zone established by PS-109, not only because of competition, but because of “the carriers’ need for revenue improvement indicated by Form 41 reports.” CAB Order 83-10-32, at 10, JA at 44. The only other reference to this data was the statement that the carriers showed, for the year ending March 31, 1983, “an operating profit of only 4.5 percent on Flying Tiger’s transpacific cargo revenues, and a return on investment of 7.3 percent," }, { "docid": "99606", "title": "", "text": "construction is inconsistent with the rest of IATCA, which created a zone of reasonableness for international passenger transportation but left international cargo unchanged. Apparently Congress believed it was necessary to do more than enunciate policy goals in order to require the creation of the zone of reasonableness. If the policy statements did not mandate the change for passengers, they did not do so for cargo. Cf. Keyes, A Comparison of Two Proposals for Regulatory Change, 41 J.Air.L. & Com. 727, 736 (1975) (similar policy statement in proposed Aviation Act of 1975 not likely to be interpreted to compel unfettered market entry in view of fact that Act singled out particular markets to be subject to open entry). In short, the new policy goals restrain us from holding that under no circumstances could the CAB rely on competition to aid in ratemaking, but they do not preempt the fundamental requirement of administrative law that “an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored,” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (footnote omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). See also Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (when agency changes course it must “supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance”). It is with respect to this principle that we find the CAB to have failed. In promulgating PS-109, it “failed to show that the rates resulting from its newly articulated ratemaking principles would necessarily satisfy the ‘just and reasonable’ standard.” Farmers Union, 734 F.2d at 1510. This gap was not filled when the CAB used the zone to approve the IATA rate agreement, and its approval is thus not in accordance with law. This is not to say that the CAB could not decide to rely on competition to patrol rates, but" }, { "docid": "8655208", "title": "", "text": "into effect the will of Congress as expressed by the statute.”) (citations and internal quotations omitted). In this case, plaintiffs challenge Interi- or’s decision to rescind a validly-issued rule and replace it with the 2001 Regulations. Rescission of agency rules that previously met Congress’s legislative mandate are judged by the rulemaking record. That is, “ ‘[a]n agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis.’ ” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970)); see Ctr. for Sci. in Pub. Interest v. Dep’t of Treasury, 797 F.2d 995, 999 (D.C.Cir.1986); Louisiana Pub. Serv. Comm’n v. FERC, 184 F.3d 892, 897 (D.C.Cir.1999) (“For the agency to reverse its position in the face of a precedent it has not persuasively distinguished is quintessentially arbitrary and capricious.”)- An agency must therefore “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). C. Facial Challenge In this case, moreover, plaintiffs mount a facial challenge to the 2001 Regulations. In so doing, according to Interior and NMA, plaintiffs assume an unusually “heavy burden” in prevailing on the merits. Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759,114 L.Ed.2d 233 (1991); see United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687, 699-700, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Chem. Waste Mgmt. v. U.S. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995). According to Interior and NMA, under the Supreme" }, { "docid": "19185270", "title": "", "text": "employer claimed that any wage increase beyond 2lf¿ cents an hour would put it out of business but refused to substantiate the claim. Id. at 150, 76 S.Ct. at 754. The Court held that a “refusal to attempt to substantiate a claim of inability to pay increased wages may support a finding of a failure to bargain in good faith.” Id. at 153, 76 S.Ct. at 756. The Court stressed, however, that the union’s right to disclosure in inability-to-pay eases was not automatic: “Each case must turn upon its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met.” Id. at 153-54, 76 S.Ct. at 756 (footnote omitted). After Truitt, a few courts distinguished between cases in which an employer claimed an inability to pay the requested wage increase and those in which the employer merely asserted that complying with the union’s request would place it at a competitive disadvantage, ordering disclosure in the former but denying it in the latter. See NLRB v. Harvstone Mfg. Corp., 785 F.2d 570, 575- 76 (7th Cir.), cert. denied, 479 U.S. 821, 107 S.Ct. 88, 93 L.Ed.2d 41 (1986); Washington Materials, Inc. v. NLRB, 803 F.2d 1333, 1338-39 (4th Cir.1986). Other courts read Truitt to mandate disclosure whenever the employer claimed financial hardship. See NLRB v. Western Wirebound Box Co., 366 F.2d 88, 91 (9th Cir.1966). We adopted the latter, broader reading of Truitt. Olivetti Office U.S.A., 926 F.2d at 188-89; NLRB v. General Elec. Co., 418 F.2d 736, 760 (2d Cir.1969), cert. denied, 397 U.S. 965, 90 S.Ct. 996, 25 L.Ed.2d 257 (1970). The majority of Board decisions after Truitt also mandated disclosure when the employer asserted any form of financial hardship. See, e.g., Sioux City Stockyards, 293 N.L.R.B. 1 (1989), enf'd, 901 F.2d 669 (8th Cir.1990). But see Washington Materials, Inc., 276 N.L.R.B. 839 (1985) (recognizing the distinction between inability-to-pay and competitive disadvantage claims). Recently, however, the Board has altered its reading of Truitt. Prompted by the Seventh Circuit’s refusal to enforce its" }, { "docid": "18018378", "title": "", "text": "recent developments, including the lead poisoning suffered by a bird inhabiting what was thought to be one of the safest locations. The Wildlife Service simply exercised its discretion to “adapt [its] rules and policies to the demands of changing circumstances.” Permian Basin Area Rate Cases, 390 U.S. 747, 784, 88 S.Ct. 1344, 1368, 20 L.Ed.2d 312 (1968). The district court, however, concluded that the factual developments supporting the agency’s change of course were not they had been known at an earlier stage, when the agency reaffirmed its commitment to preserving a wild flock. The flaw in this reasoning is that in a case like this one there is no particular significance attached to the exact date that factual information reaches any official of an agency. It takes time for information to be disseminated from the lower echelons of agency staff to the agency’s decisionmakers, and still more time for the decisionmakers to appraise the policy implications of that information. More fundamentally, agencies are entitled to alter their policies “ ‘with or without a change in circumstances,’ ” so long as they satisfactorily explain why they have done so. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57,103 S.Ct. 2856, 2873, 77 L.Ed.2d 443 (1983) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971)) (emphasis added). We have little problem concluding that the Wildlife Service met its burden of justifying its change of course. The agency’s October Environmental Assessment thoroughly surveyed the competing factors at stake and examined the desirability of seven alternative courses of action. Its December Addendum incorporated the earlier document’s reasoning and additionally set forth the agency’s reasons for preferring a different option than before. The Service’s documentation may have been succinct, but nonetheless adequately discloses the concerns underlying the agency’s decision and demonstrates that that decision rests on a rational basis. That much being so, our inquiry is at an end: NEPA’s “mandate to the agencies is essentially procedural.... It is to insure a fully informed" }, { "docid": "18018542", "title": "", "text": "Rad. Reg.2d at 865. Thereafter, pursuant to section 402(a) of the Communications Act of 1934, 47 U.S.C. § 402(a) (1982) and 28 U.S.C. § 2342, TRAC petitioned this Court for review of the FCC’s “Policy Statement and Order.” REVIEW OF THE FCC’S POLICY STATEMENT When an agency undertakes to change or depart from existing policies, it must set forth and articulate a reasoned explanation for its departure from prior norms. Hence, on review, a court may “understand the basis of the agency’s action and so may judge the consistency of that action with the agency’s mandate.” Atchinson, Topeka & Santa Fe Ry. v. Wichita Board of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973); see also NAACP v. FCC, 682 F.2d 993, 998 (D.C.Cir.1982). In Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971), this court explained the role and function of a reviewing court: The function of the court is to assure that the agency has given reasoned consideration to all the material facts and issues.... Judicial vigilance to enforce the Rule of Law in the administrative process is particularly called upon where ... the area under consideration is one wherein the Commission’s policies are in flux. An agency’s view of what is in the public interest may change.... But an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored ... Id. at 851, 852 (footnotes omitted); see Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2873-74, 77 L.Ed.2d 443 (1983). As part of its ongoing review of broadcast regulations, the FCC decided to eliminate as unnecessary certain broadcast policies. Each of the policies related in some way to the business practices of broadcast stations. At the outset, the Commission noted that the action addressed by these policies “may be considered as reflecting on the ‘character’ of a licensee.” The Commission explained, however, that its treatment of licensee" }, { "docid": "3724983", "title": "", "text": "at 233 n. 8. It distinguished the Long Island Sound cases we cited in our panel opinion, id., and explained in greater detail the factors it uses to determine what constitutes a ferry, id. at 235-40. After discussing the general contours of the ferry exemption, the Commission specifically reaffirmed its earlier finding that Viking’s services qualify as exempt ferriage under section 10544(a)(4). Id. at 241-46. In addition, the Commission rejected Cross-Sound’s claim that a decision exempting Viking from the Commission’s jurisdiction nonetheless obligated the ICC to comply with environmental review procedures under the National Environmental Policy Act and the Coastal Zone Management Act. Id. at 246-49. II. In order to determine whether the Commission has complied with our mandate in Cross-Sound I, we must evaluate the sufficiency of the Commission’s explanations in Viking II as to the scope of the ferry exemption. If we find that the ICC’s current view of - the ferry exemption “diverge^] from agency precedent,” then, in order to uphold the new interpretation, we must also find that the Commission “supplied] a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.” See Hall v. McLaughlin, 864 F.2d 868, 872 (D.C.Cir.1989) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971)); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983). If, on the other hand, we deter mine that the Commission “has not in fact diverged from past decisions, [then] the need for a comprehensive and explicit statement of its current rationale is less pressing.” Hall, 864 F.2d at 872. The agency’s explanation in such a case “need not be elaborate”; we will uphold its findings, “though of less than ideal clarity, if the agency’s path may reasonably be discerned.” Id. at 872-73 (quoting Greater Boston Television, 444 F.2d at 851). Petitioner contends that our opinion in Cross-Sound I conclusively determined that the agency had changed its policy with respect to" }, { "docid": "19185271", "title": "", "text": "it in the latter. See NLRB v. Harvstone Mfg. Corp., 785 F.2d 570, 575- 76 (7th Cir.), cert. denied, 479 U.S. 821, 107 S.Ct. 88, 93 L.Ed.2d 41 (1986); Washington Materials, Inc. v. NLRB, 803 F.2d 1333, 1338-39 (4th Cir.1986). Other courts read Truitt to mandate disclosure whenever the employer claimed financial hardship. See NLRB v. Western Wirebound Box Co., 366 F.2d 88, 91 (9th Cir.1966). We adopted the latter, broader reading of Truitt. Olivetti Office U.S.A., 926 F.2d at 188-89; NLRB v. General Elec. Co., 418 F.2d 736, 760 (2d Cir.1969), cert. denied, 397 U.S. 965, 90 S.Ct. 996, 25 L.Ed.2d 257 (1970). The majority of Board decisions after Truitt also mandated disclosure when the employer asserted any form of financial hardship. See, e.g., Sioux City Stockyards, 293 N.L.R.B. 1 (1989), enf'd, 901 F.2d 669 (8th Cir.1990). But see Washington Materials, Inc., 276 N.L.R.B. 839 (1985) (recognizing the distinction between inability-to-pay and competitive disadvantage claims). Recently, however, the Board has altered its reading of Truitt. Prompted by the Seventh Circuit’s refusal to enforce its decision in Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063 (7th Cir.1988), the Board on remand decided that it would thereafter distinguish between those employers who claim a present or prospective inability to pay during the period of the contract under negotiation and those employers who claim only economic difficulties or a desire for a greater profitability. Nielsen Lithographing Co., 305 N.L.R.B. No. 90, affid. sub nom Graphic Communications Int’l Union, Local 508 v. NLRB, 977 F.2d 1168 (7th Cir.1992). According to the Board, “the employer who claims only economic difficulties or business losses or the prospect of layoffs is simply saying that it does not want to pay.” Id. The Board qualified this assertion by noting that the circumstances of an individual case might support a conclusion that particular claims of economic problems amounted to an assertion of an inability to pay during the contract under negotiation. Id. When an agency has committed itself to a settled course of behavior, a presumption in favor of that course arises. Motor Vehicle Mfrs. Ass’n v. State" }, { "docid": "12606984", "title": "", "text": "broadcasting. Id. at 1109. Under this policy, the Commission required television stations to maintain quarterly issues/programs lists containing “in narrative form, a brief description of at least five to ten issues to which the licensee gave particular attention____” Id. at 1108. In its revision order, the Commission augmented this log-keeping guideline with the requirement that stations maintain quarterly lists of programs that “have provided the most significant treatment of community issues.” Revision, 104 F.C.C.2d at 371-72 (emphasis added). ACT challenges these relaxed program log requirements as insufficient to provide information necessary to make license renewal proceedings an effective regulatory technique; in addition, ACT argues that the FCC’s treatment of program logging failed adequately to consider the special informational needs of challengers in comparative license renewal hearings. We consider the children’s television and program log challenges in turn. II It is axiomatic that an agency choosing to alter its regulatory course “must supply a reasoned analysis indicating that its prior policies and standards are being deliberately changed, not casually ignored.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971); accord Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). If an agency does not supply a reasoned basis for its action, the courts are not to supply one. See State Farm, 463 U.S. at 43, 103 S.Ct. at 2866; SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). Under basic principles of separation of powers, buttressed in no small measure by common sense, we are not to do the agency’s work for it. Our review of the FCC’s actions in this case fails to unearth a “reasoned basis” adequate to justify the FCC’s termination of the children’s commercialization guidelines. As we alluded to previously, the Commission grounded its general deregulation of television commercialization on the determination that market forces alone could adequately police the commercial content of television. 1984 Report, 98 F.C.C.2d at 1105. Petitioners do" }, { "docid": "18688723", "title": "", "text": "on substantial evidence, we AFFIRM the Board’s order adopting the AU’s findings made in accordance with settled principles of labor law. A. In NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956), the Supreme Court stated that an employer’s “refusal to attempt to substantiate a claim of inability to pay increased wages may support a finding of a failure to bargain in good faith.” Id. at 153, 76 S.Ct. at 756. The Court rationalized this governing principle by observing that if such an assertion is “important enough to be present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.” Id. at 152-53, 76 S.Ct. at 756. In NLRB v. Harvstone Manufacturing Corp., 785 F.2d 570 (7th Cir.), cert. denied, 479 U.S. 821, 107 S.Ct. 88, 93 L.Ed.2d 41 (1986), the Seventh Circuit observed: It is well established that when an employer makes a claim of financial inability to pay a proposed wage rate, it generally has an obligation, in order to meet its duty to bargain in good faith, to provide substantiating financial data to its employees’ bargaining representation upon request. Although no magic words are required to express an inability to pay, the words and conduct must be specific enough to convey such a mean-ing_ [T]he mere assertion by an employer that it is operating at a competitive disadvantage does not, in and of itself, constitute a claim of inability to pay. The relevant test, as articulated by this court, is to ascertain whether the employer said it “would not” as opposed to “could not” pay the employee’s proposed demands. Only in the latter situation where the employer communicated that it “could not” pay the demands has it made a claim of inability to pay. Id. at 575-76 (citations and footnote omitted). See also Washington Materials, Inc. v. NLRB, 803 F.2d 1333, 1338-39 (4th Cir. 1986). Within this framework, we must determine whether Georgia-Pacific’s bargaining representations amounted to a plea of poverty or inability to pay. Each of the representations made by" }, { "docid": "10692579", "title": "", "text": "we have no difficulty in recognizing the traditional role that courts have always played in ensuring that the agency is continuing to act in the way that it considers to be the best implementation of its statutory mandate. IV. Review of The Decision To Close The Shelter The government’s rescission of its well publicized commitment to renovate the Second and D Streets shelter is subject to judicial review to ensure that, given the guidance of the Community Services Block Grant Act, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As enunciated by the Supreme Court in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983), to satisfy these standards an agency must “articulate a satisfactory explanation” for any change of course from previously stated policies or intentions. This requirement is more demanding than “that which may be required when an agency does not act in the first instance.” Id.; see also National Black Media Coalition v. FCC, 775 F.2d 342, 354-356 (D.C.Cir.1985); Airmark Corp. v. FAA, 758 F.2d 685, 691-692 (D.C.Cir.1985); Massachusetts Fair Share v. Law Enforcement Assistance Administration, 758 F.2d 708, 711 (D.C.Cir.1985); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971). Upon review, the court must invalidate agency action if it finds that the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., supra, 463 U.S. at 43, 103 S.Ct. at 2867. In short, the court must ensure that changes in policy are carried out “for rational reasons that are sufficiently explained.” Ventura Broadcasting Co. v. FCC, 765 F.2d 184, 190 (D.C.Cir.1985). Appellants maintain that the decision to close" }, { "docid": "15614086", "title": "", "text": "When resolving an apparent conflict among EPA regulations, even greater deference is in order.\" See Texas Mun. Power Agency v. EPA, 836 F.2d 1482, 1488 (5th Cir.1988) (footnote omitted). See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (\"[The] court is not empowered to substitute its judgment for that of the agency.”); Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983) (a reviewing court “must generally be at its most deferential” when reviewing an agency’s scientific determinations in an area within the agency’s technical expertise); San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 37 (D.C.Cir.) (en banc), cert. denied, 479 U.S. 923, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986) (we view under this highly deferential review presumes the validity of agency action and so is limited to determining whether their terms and conditions are \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law\" pursuant to 5 U.S.C. § 706(2)(A)); BASF Wyandotte Corp. v. Costle, 614 F.2d 21, 22 (1st Cir.), cert. denied, 444 U.S. 1096, 100 S.Ct. 1063, 62 L.Ed.2d 784 (1980) (EPA’s regional administrators’ considerable discretion in setting, applying, and enforcing BAT effluent limitations should not be disturbed without a showing of a compelling lapse in administrative judgment); Weyerhauser Co. v. Costle, 590 F.2d 1011, 1061 (D.C.Cir.1978) (with regard to analytical methodology for deriving pollutant limitations and measuring compliance therewith, EPA’s choice from among an array of diverse approaches is appropriately accorded the great deference due regulating entities' factual determinations and policy choices under their statutory mandate); Tanners’ Council of Am. v. Train, 540 F.2d 1188, 1195 (4th Cir.1976) (such policy choices are \"best left in the hands of the Agency\"). . API argues that the EPA’s substitution of mineral oil for diesel oil is improper because EPA inadequately considered the statutory factors required for BAT-level limitations. Before EPA selects BAT-level limitations, it is required to address both (1) operational considerations, including “the" }, { "docid": "21862328", "title": "", "text": "authority to grant or deny exemptions, we now consider whether the FAA has exercised that authority in an arbitrary and capricious fashion. Under this familiar standard, “[t]he scope of review ... is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Deference to agency authority or expertise, however, “is not a license to ... treat like cases differently.” United States v. Diapulse Corporation, 748 F.2d 56, 62 (2d Cir.1984). See also Local 777, Democratic Union Organizing Committee v. NLRB, 603 F.2d 862, 872 (D.C.Cir.1978). As the FAA recognizes, “the agency [has] no choice but to apply the same criteria to all airlines petitioning for exemptions. Any other policy would fly in the face of Congress’ intent that air carriers be treated even-handedly.” Brief for FAA, Carefree Vacations, at 12. We recognize, of course, that “an agency is free to alter its past rulings and practices even in an adjudicatory setting.” Hatch v. FERC, 654 F.2d 825, 834 (D.C.Cir.1981). Nevertheless, “it is equally settled that an agency must provide a reasoned explanation for any failure to adhere to its own precedents.” Id. At the very least, “an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from tolerably terse to intolerably mute.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (citations omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Petitioners and intervenors alike (although with different objectives) contend that the FAA has arbitrarily applied different decisional criteria to similarly situated carriers. We agree. The FAA’s application of the exemption criteria can only be described as grossly inconsistent and patently arbitrary. Elementary even-handedness requires that if all five factors must be met by one petitioner, then all five factors must be met by the" }, { "docid": "1599134", "title": "", "text": "of the National Labor Relations Act. . See, e.g., Columbia Broadcasting Sys. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971) (\"[W]hen an agency decides to reverse its course, it must provide an opinion or analysis indicating that the standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law.”) (footnote omitted); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.”) (footnotes omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). . See Dorr v. NLRB, 801 F.2d 1404, 1409 (D.C.Cir.1986) (remanding for further consideration or explanation of Board’s decision to defer to an arbitrator’s award). . Section 8(a)(2) of the Act makes it an unfair labor practice for an employer \"to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” 29 U.S.C. § 158(a)(2) (1982). . See, e.g., NLRB v. Autotronics, Inc., 596 F.2d 322, 325 (8th Cir.1979) (refusing to enforce Board order where Board failed to give \"meaningful consideration” to charges that a settlement was procured by the unethical conduct of a Board attorney); Feld & Sons, Inc., 263 N.L.R.B. 332, 337-38 (1982) (in response to charges that attorney misconduct infected the settlement process. Board remands to administrative law judge \"for the purpose of taking testimony concerning the circumstances surrounding the execution of the Settlement Agreement”). . 236 N.L.R.B. at 853 (quoting Ingalls Steel Constr. Co., 126 N.L.R.B. 584 n. 1 (1960)). . In this respect, we find the Board’s duty at least as great as that of a district court judge charged with the responsibility for approving class action settlements. See FED.R.CIV.P. 23(e); Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980) (district court may approve class action settlement only" }, { "docid": "18018379", "title": "", "text": "circumstances,’ ” so long as they satisfactorily explain why they have done so. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57,103 S.Ct. 2856, 2873, 77 L.Ed.2d 443 (1983) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971)) (emphasis added). We have little problem concluding that the Wildlife Service met its burden of justifying its change of course. The agency’s October Environmental Assessment thoroughly surveyed the competing factors at stake and examined the desirability of seven alternative courses of action. Its December Addendum incorporated the earlier document’s reasoning and additionally set forth the agency’s reasons for preferring a different option than before. The Service’s documentation may have been succinct, but nonetheless adequately discloses the concerns underlying the agency’s decision and demonstrates that that decision rests on a rational basis. That much being so, our inquiry is at an end: NEPA’s “mandate to the agencies is essentially procedural.... It is to insure a fully informed and well-considered decision, not necessarily a decision [federal judges] would have reached had they been members of the decisionmaking unit of the agency.” Vermont Yankee Nuclear Power Co. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) (citations Reversed. . In fact, the court apparently found more than a likelihood; it stated in its opinion that it would subsequently grant the plaintiffs’ motion for summary judgment as well. No opinion has yet issued on that matter. . So far as the record discloses, it appears that Audubon has standing to maintain this action. The organization’s activities in observing and studying wild condors may be set back by the agency’s action, and these activities are within the \"zone of interests” protected by the ESA and NEPA. See Japan Whaling Ass'n v. American Cetacean Soc’y, — U.S. -, -, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166 (1986). . In any event, the Council on Environmental Quality had certified that, due to the urgent nature of the Wildlife Service’s concerns with condor mortality," }, { "docid": "1390604", "title": "", "text": "seven items of information seem to have been required for at least 30 years; this indicates that those items were once thought to serve some law enforcement function. We fully recognize that “[rjegulatory agencies do not establish rules of conduct to last forever,” American Trucking Ass’ns, Inc. v. Atchison, Topeka & Santa Fe R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967), and that agencies must be given ample latitude to “adapt their rules and policies to the demands of changing circumstances,” Permian Basin Area Rate Cases, 390 U.S. 747, 784, 88 S.Ct. 1344, 1369, 20 L.Ed.2d 312 (1968). Accord Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, -, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting above cases). Nonetheless, when an agency seeks to change a settled policy, the record must at least indicate what led it to make the change. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). As the Supreme Court stated in Motor Vehicle Manufacturers, supra, 463 U.S. at -, 103 S.Ct. at 2866, “If Congress established a presumption from which judicial review should start, that presumption * * * is not against safety regulation, but against changes in current policy that are not justified by the rulemaking record.” (Emphasis in original.) In the light of the above principles, our review focuses on whether the agency explained its change of policy with respect to the seven items of information. Of course, the agency’s unsupported assertion that these items are “unnecessary” is insufficient, for such an' unsupported assertion states a result, not a reason. And aside from the bald assertion that the items are unnecessary, we can find no other indication in the record as to why the agency decided to change its long-established policy. Therefore, in the light of the record evidence and the agency’s own conclusions — and in the absence of any hint as to the basis for the agency’s conclusion that the items were “unnecessary for" }, { "docid": "19185272", "title": "", "text": "decision in Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063 (7th Cir.1988), the Board on remand decided that it would thereafter distinguish between those employers who claim a present or prospective inability to pay during the period of the contract under negotiation and those employers who claim only economic difficulties or a desire for a greater profitability. Nielsen Lithographing Co., 305 N.L.R.B. No. 90, affid. sub nom Graphic Communications Int’l Union, Local 508 v. NLRB, 977 F.2d 1168 (7th Cir.1992). According to the Board, “the employer who claims only economic difficulties or business losses or the prospect of layoffs is simply saying that it does not want to pay.” Id. The Board qualified this assertion by noting that the circumstances of an individual case might support a conclusion that particular claims of economic problems amounted to an assertion of an inability to pay during the contract under negotiation. Id. When an agency has committed itself to a settled course of behavior, a presumption in favor of that course arises. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); Atchison, Topeka & Santa Fe Ry. v. Wichita Board of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973); New York Council, Ass’n of Civ. Technicians v. FLRA 757 F.2d 502, 508 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985). Torrington Association argues that the Board’s decision in the instant matter was at odds with the Board’s “settled course of behavior” of treating claims of economic difficulties as requiring substantiation. However, an agency may alter its interpretation of a statute so long as the new rule is consistent with the statute, applies to all litigants, and is supported by a “reasoned analysis.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42, 103 S.Ct. at 2866; New York Council, Ass’n of Civ. Technicians, 757 F.2d at 508; NLRB v. Niagara Mach. & Tool Works, 746 F.2d 143, 148 (2d Cir.1984). Such a new rule must be upheld by the courts “regardless" }, { "docid": "19185273", "title": "", "text": "Farm Mut. Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); Atchison, Topeka & Santa Fe Ry. v. Wichita Board of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973); New York Council, Ass’n of Civ. Technicians v. FLRA 757 F.2d 502, 508 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985). Torrington Association argues that the Board’s decision in the instant matter was at odds with the Board’s “settled course of behavior” of treating claims of economic difficulties as requiring substantiation. However, an agency may alter its interpretation of a statute so long as the new rule is consistent with the statute, applies to all litigants, and is supported by a “reasoned analysis.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42, 103 S.Ct. at 2866; New York Council, Ass’n of Civ. Technicians, 757 F.2d at 508; NLRB v. Niagara Mach. & Tool Works, 746 F.2d 143, 148 (2d Cir.1984). Such a new rule must be upheld by the courts “regardless of how we might have decided the matter in the first instance [if the Board] ... has arrived at one reasonable resolution of the problem in a reasonable manner.” Niagara Mach. & Tool Works, 746 F.2d at 149 (quoting Local 900, Int’l Union of Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1189 (D.C.Cir.1984)). The Board’s decision in Nielsen Lithographing meets these requirements. First, the new approach is consistent with the Act. The duty to provide relevant information is based on the general requirement to “confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement” in Section 8(d) and (a)(5) of the Act. The Nielsen Lithographing rule certainly does not exceed any parameters expressly delineated in the statute. Second, there is no claim that the Board has not applied its new rule equally to all litigants. Finally, the Board provided the “reasoned analysis” necessary to sustain its change in practice. Although the reasoning of the majority decision in Nielsen Lithographing is" }, { "docid": "1599133", "title": "", "text": "Unpublished Order of the Board (Oct. 23, 1985), reprinted in J.A. 3, 4. . See Combustion Eng’g Inc., 272 N.L.R.B. 215 (1984) (agreement between union and employer to settle employee’s grievance short of arbitration); Coca-Cola Bottling Co., 243 N.L.R.B. 501 (1979) (same). . See, e.g., Alpha Beta Co., 273 N.L.R.B. 1546, 1547 (1985) (Board furthers fundamental purposes of the Act by encouraging employers and unions to negotiate their differences, to discuss and settle grievances, and, if necessary, to arbitrate their differences), appeal docketed sub nom. Mahon v. NLRB, No. 85-7565 (9th Cir.1985); Roadway Express, Inc. v. NLRB, 647 F.2d 415, 426 (4th Cir.1981): [Deferring to the [grievance] settlement in this case, effected by the union’s representative ... would not be repugnant to the national labor policy of respecting agreements freely made between an employee and employer, where such agreement had been effected under the protection of the employee’s bargaining agent____ That certainly is promoting the use of the collective bargaining agent in resolving peaceably and amicably grievances and this is one of the primary purposes of the National Labor Relations Act. . See, e.g., Columbia Broadcasting Sys. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971) (\"[W]hen an agency decides to reverse its course, it must provide an opinion or analysis indicating that the standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law.”) (footnote omitted); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.”) (footnotes omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). . See Dorr v. NLRB, 801 F.2d 1404, 1409 (D.C.Cir.1986) (remanding for further consideration or explanation of Board’s decision to defer to an arbitrator’s award). . Section 8(a)(2) of the Act makes it an unfair labor practice for an employer \"to" }, { "docid": "3724984", "title": "", "text": "a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.” See Hall v. McLaughlin, 864 F.2d 868, 872 (D.C.Cir.1989) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971)); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983). If, on the other hand, we deter mine that the Commission “has not in fact diverged from past decisions, [then] the need for a comprehensive and explicit statement of its current rationale is less pressing.” Hall, 864 F.2d at 872. The agency’s explanation in such a case “need not be elaborate”; we will uphold its findings, “though of less than ideal clarity, if the agency’s path may reasonably be discerned.” Id. at 872-73 (quoting Greater Boston Television, 444 F.2d at 851). Petitioner contends that our opinion in Cross-Sound I conclusively determined that the agency had changed its policy with respect to the ferry exemption. We decline, however, to adopt so narrow a view of our earlier holding. We remanded the Commission’s decision in Viking I precisely because we were unsure what its interpretation of the ferry exemption was, see Cross-Sound I, 873 F.2d at 400; it would be inappropriate to let our earlier expressions of puzzlement prevent a subsequent panel from evaluating the Commission’s newly tendered explanations de novo. Reviewing the Viking II decision, we conclude that the Commission has not diverged from prior precedent. First, we believe that the Commission persuasively distinguished those cases where it has exercised jurisdiction over water carriers operating in Long Island Sound. As the Commission explained in Viking II, 6 I.C.C.2d at 233 n. 8, three of the examples that we cited in Cross-Sound I as “prima facie evidence of a change in ICC policy,” 873 F.2d at 398-99, involved the transportation not only of passengers but also of freight, a subject area over which the Commission has long exercised jurisdiction. See Mascony Transport and Ferry Servs., Inc., 353 I.C.C." } ]

[ { "docid": "13906413", "title": "", "text": "■of the deposition is its agent. The instant motion will be considered against the background of these decisions. In Newark Insurance Co. v. Sartain Judge Halbert reviewed the authorities on the meaning of the term “managing agent” as used in F.R.Civ.P. 26(d)(2). He mentioned the absence of any guidance from appellate courts for the district courts to follow in concluding whether witnesses were to be deemed managing agents of other persons. However, Judge Halbert ruled that given other basic factors, viz., knowledge by the witness of relevant facts and status of the witness as a person other than a common employee, i.e., with at least a consciousness of the problems of management and an incentive to promote the interests of management, the paramount test to be applied is “Can [the witness] be expected to identify himself with the interests of his principal rather than those of the other party?” In this ruling I am in complete accord. The purpose of Rule 26(d)(2) is to protect a party from the admissions of a disgruntled former employee. In Curry v. States Marine Corporation of Delaware, supra, note 3, Judge Walsh was presented with a motion to vacate the notice to examine the defendant corporation through the person who at the time of occurrence of an accident was master of one of its vessels. At the time of the ruling, the witness was an employee recognized by Judge Walsh as not occupying the conventional status of “managing agent”. In denying the motion, Judge Walsh noted the absence of any danger that the witness might through animus make admissions against the moving defendant. He concluded that the witness would identify defendant’s interests with his own because the witness was still in defendant’s employ as chief mate. He found that the witness was defendant’s managing agent at the time of the accident ; “he should be the person to explain the defendant’s position now, unless defendant has a basis for withholding the confidence it previously placed in him.” Judge Palmieri attained the same result on similar facts in Klop v. United Fruit Company. On a" } ]

[ { "docid": "14442031", "title": "", "text": "on to testify because he is required to do so by Rule 30(b)(2). There are, however, considerations external to the principal-agent relationship that are pertinent to this issue. For example, in this case at least one of the port agents, Anfrena, is an entity of a foreign government, and is therefore unlikely to be relied upon to give testimony at Afram’s request. On the other hand, an agent’s history of cooperating with a party in discovery may be probative of the party’s ability to rely on the agent to testify. See Sugarhill, 105 F.R.D. at 171 (witness previously submitted affidavit on behalf of party). Here, although the port agents have supplied documents at Afram’s request, there has been no showing that they ever provided sworn testimony for Afram without being required to do so by subpoena or other formal process. The third factor is whether there are persons employed by the corporation in positions of higher authority with regard to the subject matter of the proposed deposition. In admiralty cases, the ship’s master is often found to be the exclusive managing agent with respect to a voyage, notwithstanding the fact that individual crew members or agents might possess more information about the specific events at issue. See, e.g., Santiago v. American Export Lines, Inc., 30 F.R.D. 372, 373-74 (S.D.N.Y.1962). Here, both the masters of the respective vessels and Afram officers in the corporate headquarters had more authority than the port agents with regard to the duties performed by those agents. Thus, it is these other witnesses that either were or could have been deposed on behalf of Afram pursuant to notice. The last factor is whether the witness may be expected to identify with the interests of the party. Such identification of interests is unlikely here. Afram and the port agents do not even stand in an employer-employee relationship. Moreover, the agents may represent numerous shipping companies, some of which may at times have interests antagonistic to Afram’s. Finally, the agent’s interests even with respect to the issues involved here may be adversarial to Afram’s, since cargo damage or loss" }, { "docid": "14282042", "title": "", "text": "served a series of discovery requests, including a Notice of Deposition of Motown by Brenda Boyce, to be held at the Southern District courthouse, and a Notice of Deposition of Rick James, also to be held at this courthouse. These motions ensued and discovery has been essentially suspended during the time that they have been pending. DISCUSSION 1. Motown’s Motion to Vacate and for a Protective Order Pursuant to Rule 30 of the Federal Rules of Civil Procedure, a party can request the deposition of any other party to the litigation by serving a notice of deposition upon that party. See, e.g., Spaeth v. Warner Bros. Pictures, Inc., 1 F.R.D. 729, 730 (S.D.N.Y.1941). The party to be deposed can be a natural person or a corporation. See Fed.R.Civ.P. 30(a) and (b)(6). If the person to be deposed is a corporation, the party seeking discovery has the choice either to designate an appropriate individual or to describe the subject matter of the questions to be asked and allow the corporate deponent to designate its own spokesperson familiar with that subject matter. Fed.R.Civ.P. 30(b)(6) (“This subdivision [permitting the latter option] ... does not preclude taking a deposition by any other procedure authorized in these rules.”); see also Fed.R.Civ.P. 30(b)(6) advisory committee note to 1970 amendments (“This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed.”). If the party seeking discovery chooses the former option, then the person designated must be “an officer, director, or managing agent” of the corporate deponent. See, e.g., Proseus v. Anchor Line, Ltd,., 26 F.R.D. 165, 166-67 (S.D.N.Y.1960); Williams v. Lehigh R.R. Co., 19 F.R.D. 285 (S.D.N.Y.1956). If the individual so designated is not an officer, director, or managing agent, but merely an employee, then the party seeking the deposition must proceed as for an ordinary non-party witness. See, e.g., Alfred Bell & Co. v. Catalda Fine Arts, Inc., 5 F.R.D. 327, 329 (S.D.N.Y. 1946); Czuprynski v. Shenango Furnace Co., 2 F.R.D. 412 (W.D.N.Y.1942). In this case, Sugarhill served a Notice of Deposition upon the corporate defendant Motown. Sugarhill chose, in" }, { "docid": "8908693", "title": "", "text": "ruling of the court on the ground of privilege from testifying,\" (2) a \"refus[al] to testify ... despite an order of the court,” (3) \"a lack of memory,” (4) \"death or then existing physical or mental illness or infirmity,” and (5) absence where judicial process \"or other reasonable means\" have not been successful in procuring attendance. . The government does not include Mr. Reidhill on its own witness list, but it expressly reserves the right to call any witness Globe has listed but subsequently withdraws before trial. See Def.’s Witness List Pursuant to App. A, ¶ 15 at 9. . \"A 'declarant' is a person who makes a statement.” Fed.R.Evid. 801(b). \"A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Fed.R.Evid. 801(a). . \" 'Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). . Fed.R.Civ.P. 32 is identical to RCFC 32, save for some exceptions not pertinent to this case. See RCFC 32 rules committee note. . Most courts follow a three-part test for determining whether a deponent was a \"managing agent” at the time of his or her deposition: First, the employee should be a person invested by the corporation with general powers to exercise his judgment and discretion in dealing with corporate matters. Second, the employee should be a person who could be depended upon to carry out his employer’s direction to give testimony at the demand of a party engaged in litigation with the employer. Third, the employee should be a person who can be expected to identify himself with the interests of the corporation rather than with those of the other parties. Reed Paper Co. v. Procter & Gamble Distrib. Co., 144 F.R.D. 2, 4 (D.Me.1992) (internal quotation marks omitted). See also Young & Assocs. Pub. Relations, L.L.C. v. Delta Air Lines, Inc., 216 F.R.D. 521, 523 (D.Utah 2003) (applying similar factors); I Moore’s Federal Practice %" }, { "docid": "18311568", "title": "", "text": "deposition served on Honda Japan, are not “directors, officers, or managing agents” of Honda Japan, and therefore Honda cannot be deposed “through” them. A. Takeo Okusa “The law concerning who may properly be designated a managing agent is sketchy.” Webster, 802 F.2d at 1452. Because the factual circumstances in which the term managing agent must be applied differs greatly among cases, the test must be a functional one and the determination made on a case-by-case basis. Id. Courts are generally agreed, however, on the controlling factors used in deciding whether an individual is a managing agent of a corporation. These factors include: (1) whether the corporation has invested the person with discretion to exercise his judgment, (2) whether the employee can be depended upon to carry out the employer’s directions, and (3) whether the individual can be expected to identify him or herself with the interests of the corporation as opposed to the interests of the adverse party. See Reed Paper Co. v. Proctor & Gamble Distrib. Co., 144 F.R.D. 2, 4 (D.Me.1992); Colonial Capital Co. v. General Motors Corp., 29 F.R.D. 514, 516-17 (D.Conn.1961); see also Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 170 (S.D.N.Y.1985); Afram Lines, 159 F.R.D. at 413; Independent Prods. Corp. v. Loew’s, Inc., 24 F.R.D. 19, 25 (S.D.N.Y.1959). Other factors to consider include the degree of supervisory authority which a person is subject to in a given area and the general responsibilities of the individual regarding the matters at issue in the litigation. See Sugarhill, 105 F.R.D. at 170. The “paramount test” is whether the individual can be expected to identify with the corporation’s interests as opposed to an adversary’s. Okusa, as present General Manager of Public Relations at Honda Japan, clearly satisfies the “paramount test:” as a present employee, he continues to maintain an “identity of interest” with Honda. Okusa has previously held senior management positions for Honda Japan and its subsidiaries for a period spanning over 10 years, thus evidencing a long, close relationship with the corporation. He formerly served as an Executive Vice President of American Honda, Honda Japan’s" }, { "docid": "14442023", "title": "", "text": "can be relied upon to give testimony, at his employer’s request, in response to the demands of the examining party; 3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which the information is sought by the examination; 4) the general responsibilities of the individual “respecting the matters involved in the litigation,” Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254 (E.D.N.Y.1962) (emphasis in original); and 5) whether the individual can be expected to identify with the interests of the corporation. Id. at 170 (citation omitted). Although this analysis is couched in terms of an individual employee, it is fully applicable to cases like this where the agent is a corporate entity rather than an individual and an independent contractor rather than an employee. The identification of a managing agent in any given case is fact-sensitive. “[Bjecause of the vast variety of factual circumstances to which the concept must be applied, the standard ... remains a functional one to be determined largely on a case-by-case basis.” Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C.Cir.1986) (citation omitted), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987). Thus, “the question of whether a particular person is a ‘managing agent’ is to be answered pragmatically on an ad hoc basis____” 8 C. Wright & A. Miller, Federal Practice and Procedure § 2103, at 376 (1970); see also 4A Moore’s Federal Practice ¶ 30.51, at 30-47 to 30-48 (1994). Whether a proposed deponent falls into a particular category of employees or agents is therefore less relevant than the individual’s specific functions and authority. The caselaw provides somewhat ambiguous guidance with respect to the burden of proof for demonstrating managing agent status. Generally, the burden is on the discovering party to establish the status of the witness. See Sugarhill, 105 F.R.D. at 170; Proseus v. Anchor Line, Ltd., 26 F.R.D. 165, 167 (S.D.N.Y.1960); 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2103, at 380 (1970). At" }, { "docid": "18311567", "title": "", "text": "cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987). Determining whether an individual qualifies as a “managing agent” of a corporation must be made at the time of the deposition. See, e.g., Curry v. States Marine Corp. of Del., 16 F.R.D. 376, 377 (S.D.N.Y.1954). While the burden of proof rests on the party seeking discovery, doubt about an individual’s status as a “managing agent,” at the pre-trial discovery stage, are resolved in favor of the examining party. See, e.g., Webster, 802 F.2d at 1452 n. 4. If an examining party fails to meet its burden, it must resort to Fed.R.Civ.P. 45 for subpoenas on non-party witnesses. Afram Lines, 159 F.R.D. at 413. If the witness is overseas, a party must resort to procedures outlined in the Hague Convention or another applicable treaty. Id. Honda Japan contends that even if foreign nationals can be compelled to give depositions in the United States under principles of international comity, Takeo Okusa and Tetsuo Chino, two of the four designated deponents named in the notice of deposition served on Honda Japan, are not “directors, officers, or managing agents” of Honda Japan, and therefore Honda cannot be deposed “through” them. A. Takeo Okusa “The law concerning who may properly be designated a managing agent is sketchy.” Webster, 802 F.2d at 1452. Because the factual circumstances in which the term managing agent must be applied differs greatly among cases, the test must be a functional one and the determination made on a case-by-case basis. Id. Courts are generally agreed, however, on the controlling factors used in deciding whether an individual is a managing agent of a corporation. These factors include: (1) whether the corporation has invested the person with discretion to exercise his judgment, (2) whether the employee can be depended upon to carry out the employer’s directions, and (3) whether the individual can be expected to identify him or herself with the interests of the corporation as opposed to the interests of the adverse party. See Reed Paper Co. v. Proctor & Gamble Distrib. Co., 144 F.R.D. 2, 4 (D.Me.1992); Colonial Capital" }, { "docid": "18311566", "title": "", "text": "litigation. See Work, 106 F.R.D. at 55. Both comity and judicial economy require the deposition of Honda Japan’s managing agents in Baltimore, Maryland. II. Only a party to the litigation may, of course, be compelled to give testimony pursuant to a notice of deposition. United States v. Afram Lines (U.S.A), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y.1994). When a party is a corporation, such notice of deposition must be given to it pursuant to Fed. R.Civ.P. 30(b)(6). If the examining party notices the corporation alone, the corporation must designate who will speak on its behalf. Fed.R.Civ.P. 30(b)(6). The examining party has the power itself, however, to designate deponents who will speak for the corporation, but only if the named individuals are “directors, officers, or managing agents.” See id. (Advisory Committee Note to 1970 amendments); Founding Church of Scientology of Washington, D.C. v. Webster, 802 F.2d 1448, 1451 (D.C.Cir.1986) (Advisory Committee Note makes clear that new procedure does not supplant but “ ‘supplements existing practice whereby the examining party designates the corporate official to be deposed’ ”), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987). Determining whether an individual qualifies as a “managing agent” of a corporation must be made at the time of the deposition. See, e.g., Curry v. States Marine Corp. of Del., 16 F.R.D. 376, 377 (S.D.N.Y.1954). While the burden of proof rests on the party seeking discovery, doubt about an individual’s status as a “managing agent,” at the pre-trial discovery stage, are resolved in favor of the examining party. See, e.g., Webster, 802 F.2d at 1452 n. 4. If an examining party fails to meet its burden, it must resort to Fed.R.Civ.P. 45 for subpoenas on non-party witnesses. Afram Lines, 159 F.R.D. at 413. If the witness is overseas, a party must resort to procedures outlined in the Hague Convention or another applicable treaty. Id. Honda Japan contends that even if foreign nationals can be compelled to give depositions in the United States under principles of international comity, Takeo Okusa and Tetsuo Chino, two of the four designated deponents named in the notice of" }, { "docid": "11852344", "title": "", "text": "by the alternate. Appellant may not on appeal object to potential juror bias when he opposed a remedy which would have eliminated the bias. Delgado v. United States, 403 F.2d 208, 209 (9th Cir.), cert. denied, 394 U.S. 966, 89 S.Ct. 1320, 22 L.Ed.2d 568 (1968); see United States v. Verkuilen, 690 F.2d 648, 658 (7th Cir.1982). Moreover, the juror in question was, under the circumstances, probably biased in favor of appellant, rather than against him. The district court did not commit error. Rejection of Deposition Evidence Appellant argues that the district court erred in refusing to admit into evidence the deposition of MoPac’s managing agent, Arthur Shoener. The district court sustained MoPac’s objection because Shoener was to be called later in the trial. Appellant argues that the deposition should have been admitted as an admission of a party opponent to show the inconsistency of Austin’s statements. The district court erred in excluding the testimony of Shoener. Fed.R.Civ.P. 32(a)(2) states: (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. Whether an individual has the status of managing agent depends on several factors, including whether the interests of the individual “are identified with those of his principal and on the nature of his functions, responsibilities and authority____” Terry v. Modern Woodmen, 57 F.R.D. 141, 143 (W.D.Mo.1972), citing Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94 (S.D.N.Y. 1968). At the time of the deposition Shoen er was a general manager for MoPac and had responsibility for 56,000 employees and 4,300 miles of track. Shoener had “sufficient power and discretion to be classified a 'managing agent.’ ” Colonial Capital Co. v. General Motors Corp., 29 F.R.D. 514, 518 (D.Conn.1961). Therefore, his deposition was admissible under Fed.R.Civ.P. 32(a)(2). The district court, however, did not commit reversible error. Federal appellate courts" }, { "docid": "14282043", "title": "", "text": "familiar with that subject matter. Fed.R.Civ.P. 30(b)(6) (“This subdivision [permitting the latter option] ... does not preclude taking a deposition by any other procedure authorized in these rules.”); see also Fed.R.Civ.P. 30(b)(6) advisory committee note to 1970 amendments (“This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed.”). If the party seeking discovery chooses the former option, then the person designated must be “an officer, director, or managing agent” of the corporate deponent. See, e.g., Proseus v. Anchor Line, Ltd,., 26 F.R.D. 165, 166-67 (S.D.N.Y.1960); Williams v. Lehigh R.R. Co., 19 F.R.D. 285 (S.D.N.Y.1956). If the individual so designated is not an officer, director, or managing agent, but merely an employee, then the party seeking the deposition must proceed as for an ordinary non-party witness. See, e.g., Alfred Bell & Co. v. Catalda Fine Arts, Inc., 5 F.R.D. 327, 329 (S.D.N.Y. 1946); Czuprynski v. Shenango Furnace Co., 2 F.R.D. 412 (W.D.N.Y.1942). In this case, Sugarhill served a Notice of Deposition upon the corporate defendant Motown. Sugarhill chose, in that Notice, to designate Brenda Boyce as the individual it wished to depose representing Motown. Sugarhill is seeking, through this deposition, to discover the facts supporting Motown’s argument that it received Sugar-hill’s consent to use the performances of the artists from the Group. This is a central and hotly disputed issue in this case. Motown moves for an order vacating that Notice on the ground that Brenda Boyce is not an officer, director, or managing agent of Motown. Sugarhill, in response, urges this Court to allow the deposition as noticed “[i]n the interest of judicial economy,” apparently arguing that she does have the requisite capacity. Motown, in support of its motion, submitted an affidavit of counsel (not of anyone at Motown who could detail Boyce’s position at the corporation or role in this case). In that affidavit, counsel refers to Boyce merely as “an employee.” Counsel also makes the facile argument that “unless a corporate officer or director is specified, the corporation may chose [sic] ... the person by whom it desires to be deposed.”" }, { "docid": "14282045", "title": "", "text": "Affidavit of Daniel A. Eigerman, Esq., ¶ 6. This argument completely ignores Boyce’s possible status as “managing agent.” It is clear that Boyce is neither an officer nor a director of Motown. The only remaining issue, therefore, is whether Boyce is a “managing agent” of Motown. Several factors have been enunciated which must be examined in determining whether a person is a “managing agent.” Those are as follows: 1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; 2) whether the individual can be relied upon to give testimony, at his employer’s request, in response to the demand of the examining party; 3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which information is sought by the examination; 4) the general responsibilities of the individual “respecting the matters involved in the litigation,” Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254 (E.D.N.Y.1962) (emphasis in original); and 5) whether the individual can be expected to identify with the interests of the corporation. See, e.g., Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 96 (S.D.N.Y.1968). The burden of proving that she is a managing agent rests on Sugarhill. See, e.g., Proseus, 26 F.R.D. at 167. Plaintiff has not submitted any evidence regarding Boyce’s role at Motown, but has been chosen to rely on Boyce’s own affidavit, submitted in opposition to Sugar-hill’s earlier motion for a preliminary injunction. From this affidavit the following can be determined regarding Boyce’s role at Motown. She serves as the Director of Creative Administration. It is not clear what responsibility this title, or the job generally, invests in Boyce. It appears that she is charged with the responsibility for obtaining side man clearances for Motown, including those at issue herein. She allegedly conducted all the correspondence with Sugarhill aimed at securing the consents at issue herein. Affidavit of Brenda Boyce, 111111-15. She claims to have followed “the usual procedures,” id., If 16— presumably those referred to earlier as “our practice,” id., ÍI10" }, { "docid": "14442022", "title": "", "text": "managing agent to testify on its behalf. Alternatively, the party seeking the deposition may identify a specific officer, director, or managing agent to be deposed and notice that person under Rule 30(b)(1). The testimony of such a person will be binding on the party. However, a corporate employee or agent who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. See GTE Products Corp. v. Gee, 115 F.R.D. 67, 68-69 (D.Mass. 1987); Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 169 (S.D.N.Y. 1985). Such a witness must be subpoenaed pursuant to Rule 45 of the Federal Rules of Civil Procedure, or, if the witness is overseas, the procedures of the Hague Convention or other applicable treaty must be utilized. Whether a person is a party’s “managing agent,” and therefore subject to deposition on notice, has been said to depend on several factors: 1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; 2) whether the individual can be relied upon to give testimony, at his employer’s request, in response to the demands of the examining party; 3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which the information is sought by the examination; 4) the general responsibilities of the individual “respecting the matters involved in the litigation,” Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254 (E.D.N.Y.1962) (emphasis in original); and 5) whether the individual can be expected to identify with the interests of the corporation. Id. at 170 (citation omitted). Although this analysis is couched in terms of an individual employee, it is fully applicable to cases like this where the agent is a corporate entity rather than an individual and an independent contractor rather than an employee. The identification of a managing agent in any given case is fact-sensitive. “[Bjecause of the vast variety of factual circumstances to which the concept must be applied, the standard ... remains a functional one to" }, { "docid": "18311571", "title": "", "text": "sense, but whether Honda has invested him with general powers to exercise his judgment and discretion in a position of trust. See Colonial Capital, 29 F.R.D. at 516-17. Clearly, an official spokesman for a major corporation has been imbued with trust. Okusa is not simply a “common employee,” but one with “at least a consciousness of the problems of management.” See Loew’s, 24 F.R.D. at 25. B. Tetsuo Chino With respect to Chino, however, Plaintiffs have failed to meet their burden of proof demonstrating that he is presently a mánaging agent of Honda Japan. The general rule is that former employees cannot be managing agents of a corporation. Colonial Capital, 29 F.R.D. at 515 (citation omitted) (recently retired Vice President of General Motors cannot be considered managing agent at time of deposition); see also Mitchell v. American Tobacco Co., 33 F.R.D. 262, 263 (M.D.Pa.1963) (former president of corporation not a managing agent after retirement); Frasier v. Twentieth Century-Fox Film Corp., 22 F.R.D. 194, 197 (D.Neb.1958) (corporation not required to produce former officer and director for deposition). Again, the test for determining whether one is a managing agent must be made at the time of deposition. See Loew’s, 24 F.R.D. at 24-25. There are exceptions to the general rule, however, particularly when a corporation terminates a managing agent in an attempt to avoid disclosure in pending or potential litigation, see, e.g., Loew’s, 24 F.R.D. at 23-24, when there is evidence that the managing agent has been or might be reappointed to another position in the corporation, see Curry, 16 F.R.D. at 377, or when the former employee still has ultimate control with the ability to utilize an entity’s organs of communication. See Webster, 802 F.2d at 1455-57. As the record now stands, plaintiffs have failed to produce any evidence that Chino is presently an employee of Honda Japan or otherwise acts as its agent. Formerly the President of American Honda, Chino retired in 1989. Honda Japan concedes that he remained as an advisor to Honda Japan thereafter until June 1993. Defendant contends, with evidence in support, that Chino ended his association" }, { "docid": "14282046", "title": "", "text": "individual can be expected to identify with the interests of the corporation. See, e.g., Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 96 (S.D.N.Y.1968). The burden of proving that she is a managing agent rests on Sugarhill. See, e.g., Proseus, 26 F.R.D. at 167. Plaintiff has not submitted any evidence regarding Boyce’s role at Motown, but has been chosen to rely on Boyce’s own affidavit, submitted in opposition to Sugar-hill’s earlier motion for a preliminary injunction. From this affidavit the following can be determined regarding Boyce’s role at Motown. She serves as the Director of Creative Administration. It is not clear what responsibility this title, or the job generally, invests in Boyce. It appears that she is charged with the responsibility for obtaining side man clearances for Motown, including those at issue herein. She allegedly conducted all the correspondence with Sugarhill aimed at securing the consents at issue herein. Affidavit of Brenda Boyce, 111111-15. She claims to have followed “the usual procedures,” id., If 16— presumably those referred to earlier as “our practice,” id., ÍI10 (emphasis added). Boyce claims to have obtained oral consents from one Diane Moore, a Sugarhill employee. She sent a letter agreement to Moore to obtain Sugarhill’s written consent. That letter was concluded and signed by Boyce, “Sincerely, MOTOWN RECORDS CORPORATION, Brenda M. Boyce, Director of Creative Admin.” Although Boyce never received those written consents back from Moore, she did expect that they would be signed and returned. “Accordingly,” she stated, “I saw no problem in proceeding with the sale of the album with the credits that had been granted.” Id., U17 (emphasis added). When advised that Sugarhill claimed that the use of the performances of the members of the Group constituted interference with Sugar-hill’s exclusive recording agreement and a violation thereof without Sugarhill’s written consent, Boyce “merely assumed” that the writer of Sugarhill’s missive simply had not yet been informed about the forthcoming written consent. Id., 1Í16 (emphasis added). Upon reviewing her affidavit, it appears that Boyce does identify with Motown’s interests; that she is the sole employee at Motown involved and knowledgeable about the" }, { "docid": "8908694", "title": "", "text": "is identical to RCFC 32, save for some exceptions not pertinent to this case. See RCFC 32 rules committee note. . Most courts follow a three-part test for determining whether a deponent was a \"managing agent” at the time of his or her deposition: First, the employee should be a person invested by the corporation with general powers to exercise his judgment and discretion in dealing with corporate matters. Second, the employee should be a person who could be depended upon to carry out his employer’s direction to give testimony at the demand of a party engaged in litigation with the employer. Third, the employee should be a person who can be expected to identify himself with the interests of the corporation rather than with those of the other parties. Reed Paper Co. v. Procter & Gamble Distrib. Co., 144 F.R.D. 2, 4 (D.Me.1992) (internal quotation marks omitted). See also Young & Assocs. Pub. Relations, L.L.C. v. Delta Air Lines, Inc., 216 F.R.D. 521, 523 (D.Utah 2003) (applying similar factors); I Moore’s Federal Practice % 30.03[2], at 30-19 to 30-20; 8A Wright et al., Federal Practice and Procedure § 2103, at 39-41. Additionally. [t]wo other factors sometimes mentioned by the courts include: (1) whether any persons are employed by the corporation in positions of higher authority than the individual designated in the area for which information is sought by the deposition, and (2) the general responsibilities of the individual respecting the matters involved in the litigation. 7 Moore’s Federal Practice § 30.03[2], at 30-20. . “However, since [Rule 32(a)(2)] plainly requires active service in the appropriate capacity at the time of the deposition, it is probably more accurate to say that the court has discretion to permit the use of the former employee’s deposition at the trial or hearing on the theory that he or she in fact remained an 'agent or servant’ within Evidence Rule 801(d)(2)(D) even though Rule 32(a)(2) was not satisfied.” 7 Moore's Federal Practice § 32.21[2][c], at 32-26 (quoting Fed.R.Evid. 801(d)(2)(D)). . Mr. Reidhill changed his name in 1989. Pls.’ Reidhill Mot., Ex. A at 7:25-8:4." }, { "docid": "14442021", "title": "", "text": "including obtaining the assistance of non-party witnesses. Second, even if I had issued a compulsory directive orally, the failure to reduce it to writing would have rendered it unenforceable. Rule 72(a) of the Federal Rules of Civil Procedure provides for the issuance of written orders by magistrate judges and establishes rules for appeal from such orders. The issuance of an off-the-record, oral directive would deprive the parties of any opportunity for an appeal. Third, even if I had issued a valid order along the lines suggested by the Govern ment, Afram has complied at least to the extent of producing to the Government documents from some of the port agents. For all these reasons, the Government may not rely solely on the court “directive.” 3. Managing Agents Only a party to litigation may be compelled to give testimony pursuant to a notice of deposition. If the party is a corporation, it may be noticed pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, in which case it must designate an officer, director, or managing agent to testify on its behalf. Alternatively, the party seeking the deposition may identify a specific officer, director, or managing agent to be deposed and notice that person under Rule 30(b)(1). The testimony of such a person will be binding on the party. However, a corporate employee or agent who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. See GTE Products Corp. v. Gee, 115 F.R.D. 67, 68-69 (D.Mass. 1987); Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 169 (S.D.N.Y. 1985). Such a witness must be subpoenaed pursuant to Rule 45 of the Federal Rules of Civil Procedure, or, if the witness is overseas, the procedures of the Hague Convention or other applicable treaty must be utilized. Whether a person is a party’s “managing agent,” and therefore subject to deposition on notice, has been said to depend on several factors: 1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; 2) whether the individual" }, { "docid": "11852345", "title": "", "text": "the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. Whether an individual has the status of managing agent depends on several factors, including whether the interests of the individual “are identified with those of his principal and on the nature of his functions, responsibilities and authority____” Terry v. Modern Woodmen, 57 F.R.D. 141, 143 (W.D.Mo.1972), citing Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94 (S.D.N.Y. 1968). At the time of the deposition Shoen er was a general manager for MoPac and had responsibility for 56,000 employees and 4,300 miles of track. Shoener had “sufficient power and discretion to be classified a 'managing agent.’ ” Colonial Capital Co. v. General Motors Corp., 29 F.R.D. 514, 518 (D.Conn.1961). Therefore, his deposition was admissible under Fed.R.Civ.P. 32(a)(2). The district court, however, did not commit reversible error. Federal appellate courts have held that the exclusion of deposition evidence is harmless if the material matters covered in the deposition are covered, or could have been covered, at trial. “Even if the deposition was properly admissible under [Fed.R.Civ.P.] 32(a)(2) [pertaining to “managing agents”], we believe that any possible error was not prejudicial and was in fact harmless. The deposition contains no information that [the witness’] live testimony could not supply.” Jackson v. Chevron Chemical Co., 679 F.2d 463, 466 (5th Cir.1982); see Fenstermacher v. Philadelphia National Bank, 493 F.2d 333, 338 (3d Cir.1974). Admission of Shoener’s Handwritten Notes and Internal Investigative Report Appellant argues that the district court erred in admitting into evidence, as business records, handwritten notes and an investigative report prepared by Shoener, based on his observations and conversations with appellant, Austin, MoPac staff, and others because (1) the notes and report were not contemporaneously prepared, (2) the investigation report was prepared for use in litigation or an adversary proceeding, and (3) the statements contained therein were clearly hearsay. Appellant’s argument is without merit. The" }, { "docid": "14442027", "title": "", "text": "subject to deposition by notice. In Boston Diagnostics Development Corp. v. Kollsman Manufacturing Co., 128 F.R.D. 415, 415-16 (D.Mass.1988), the court ordered the deposition of an individual who had previously been employed by the party served with the notice but who was now employed only by a related corporation. This result was criticized by the court in Reed Paper Co. v. Procter & Gamble Distributing Co., 144 F.R.D. 2 (D.Me.1992), which found it inconsistent with the language of Rule 32(a)(2), which refers to the deposition of a party or of “anyone who at the time of taking the deposition was an officer, director, or managing agent____” Id. at 5 n. 3 (emphasis added). In Reed Paper, the court found the separate corporate identities of the witness’ present and former employer to be dispositive. Id. at 4-5 & n. 2. The better approach is a practical one that focuses not only on the formal connection between the witness and the party at the time of the deposition, but also on their functional relationships. Thus, in the Church of Scientology case the court found that although the witness had nominally relinquished his role as the party’s principal, he continued to possess “ultimate control.” 802 F.2d at 1455-57. This was consistent with the observation that: Courts have accorded managing agent status to individuals who no longer exercised authority over the actions in question (and even to individuals who no longer held any position of authority in the corporation), so long as those individuals retained some role in the corporation or at least maintained interests consonant with rather than adverse to its interests. Id. at 1456 (citations omitted). Thus, the witness’ continuing ability to utilize the party’s organs of communication, see id. at 1455-56, and his access to the party’s confidential documents, see Kollsman, 123 F.R.D. at 416, are among the relevant considerations to be taken into account to determine if managing agent status has persisted to the date of deposition. When this analytic framework is applied to the facts of this case, it is apparent that the Government has failed to provide sufficient" }, { "docid": "18311570", "title": "", "text": "domestic subsidiary. His present position as the spokesman for Honda Japan itself suggests that what Okusa says, and what he might say at deposition, will be closely identified with, and in furtherance of, the interests of Honda. Defendant proffers no evidence, and makes no suggestion, that Okusa is no longer loyal to the corporation or does not still identify himself with the its interests. Furthermore, Okusa can be depended upon to carry out his employer’s direction to give testimony; as a present employee, Honda Motor can compel his appearance. See Boston Diagnostics Dev. Corp., Inc. v. Kollsman Mfg. Co., 123 F.R.D. 415, 416 (D.Mass.1988). Honda Japan primarily contends that Okusa’s position as General Manager of Public Relations is not senior enough in the corporate hierarchy to have him speak on its behalf. It argues that Okusa has no final authority to bind Honda on issues related to his position or on anything related to Honda Japan’s American subsidiaries. However, the issue is not whether Okusa has the power to bind Honda Japan in the contractual sense, but whether Honda has invested him with general powers to exercise his judgment and discretion in a position of trust. See Colonial Capital, 29 F.R.D. at 516-17. Clearly, an official spokesman for a major corporation has been imbued with trust. Okusa is not simply a “common employee,” but one with “at least a consciousness of the problems of management.” See Loew’s, 24 F.R.D. at 25. B. Tetsuo Chino With respect to Chino, however, Plaintiffs have failed to meet their burden of proof demonstrating that he is presently a mánaging agent of Honda Japan. The general rule is that former employees cannot be managing agents of a corporation. Colonial Capital, 29 F.R.D. at 515 (citation omitted) (recently retired Vice President of General Motors cannot be considered managing agent at time of deposition); see also Mitchell v. American Tobacco Co., 33 F.R.D. 262, 263 (M.D.Pa.1963) (former president of corporation not a managing agent after retirement); Frasier v. Twentieth Century-Fox Film Corp., 22 F.R.D. 194, 197 (D.Neb.1958) (corporation not required to produce former officer and director for" }, { "docid": "18311569", "title": "", "text": "Co. v. General Motors Corp., 29 F.R.D. 514, 516-17 (D.Conn.1961); see also Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 170 (S.D.N.Y.1985); Afram Lines, 159 F.R.D. at 413; Independent Prods. Corp. v. Loew’s, Inc., 24 F.R.D. 19, 25 (S.D.N.Y.1959). Other factors to consider include the degree of supervisory authority which a person is subject to in a given area and the general responsibilities of the individual regarding the matters at issue in the litigation. See Sugarhill, 105 F.R.D. at 170. The “paramount test” is whether the individual can be expected to identify with the corporation’s interests as opposed to an adversary’s. Okusa, as present General Manager of Public Relations at Honda Japan, clearly satisfies the “paramount test:” as a present employee, he continues to maintain an “identity of interest” with Honda. Okusa has previously held senior management positions for Honda Japan and its subsidiaries for a period spanning over 10 years, thus evidencing a long, close relationship with the corporation. He formerly served as an Executive Vice President of American Honda, Honda Japan’s domestic subsidiary. His present position as the spokesman for Honda Japan itself suggests that what Okusa says, and what he might say at deposition, will be closely identified with, and in furtherance of, the interests of Honda. Defendant proffers no evidence, and makes no suggestion, that Okusa is no longer loyal to the corporation or does not still identify himself with the its interests. Furthermore, Okusa can be depended upon to carry out his employer’s direction to give testimony; as a present employee, Honda Motor can compel his appearance. See Boston Diagnostics Dev. Corp., Inc. v. Kollsman Mfg. Co., 123 F.R.D. 415, 416 (D.Mass.1988). Honda Japan primarily contends that Okusa’s position as General Manager of Public Relations is not senior enough in the corporate hierarchy to have him speak on its behalf. It argues that Okusa has no final authority to bind Honda on issues related to his position or on anything related to Honda Japan’s American subsidiaries. However, the issue is not whether Okusa has the power to bind Honda Japan in the contractual" }, { "docid": "14282044", "title": "", "text": "that Notice, to designate Brenda Boyce as the individual it wished to depose representing Motown. Sugarhill is seeking, through this deposition, to discover the facts supporting Motown’s argument that it received Sugar-hill’s consent to use the performances of the artists from the Group. This is a central and hotly disputed issue in this case. Motown moves for an order vacating that Notice on the ground that Brenda Boyce is not an officer, director, or managing agent of Motown. Sugarhill, in response, urges this Court to allow the deposition as noticed “[i]n the interest of judicial economy,” apparently arguing that she does have the requisite capacity. Motown, in support of its motion, submitted an affidavit of counsel (not of anyone at Motown who could detail Boyce’s position at the corporation or role in this case). In that affidavit, counsel refers to Boyce merely as “an employee.” Counsel also makes the facile argument that “unless a corporate officer or director is specified, the corporation may chose [sic] ... the person by whom it desires to be deposed.” Affidavit of Daniel A. Eigerman, Esq., ¶ 6. This argument completely ignores Boyce’s possible status as “managing agent.” It is clear that Boyce is neither an officer nor a director of Motown. The only remaining issue, therefore, is whether Boyce is a “managing agent” of Motown. Several factors have been enunciated which must be examined in determining whether a person is a “managing agent.” Those are as follows: 1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; 2) whether the individual can be relied upon to give testimony, at his employer’s request, in response to the demand of the examining party; 3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which information is sought by the examination; 4) the general responsibilities of the individual “respecting the matters involved in the litigation,” Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254 (E.D.N.Y.1962) (emphasis in original); and 5) whether the" } ]

[ { "docid": "372867", "title": "", "text": "clause, appellants point out that the authority paid it $75,402 in impact damages as part of eight change orders during the course of the project. Additionally, the authority paid one subcontractor directly for its delay costs. Appellants declare further that they explicitly reserved their right to delay costs envisioned by § 7.01D by insisting that such language be included on nearly half— 121 of the 267 — of the change orders issued. Summary judgment may be granted when the provisions of a contract convey a definite and precise meaning, absent any ambiguity. See Seiden Assoc., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992); Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975); Painton & Co. v. Bourns, Inc., 442 F.2d 216, 233 (2d Cir.1971). When the provisions of the contract are susceptible to conflicting constructions and when there is also relevant extrinsic evidence of the parties’ actual intent, the meaning of the provisions becomes an issue of fact barring summary judgment. See Seiden, 959 F.2d at 428; Heyman, 524 F.2d at 1320; Painton, 442 F.2d at 233. Ambiguity without the existence of extrinsic evidence of intent presents not an issue of fact, but an issue of law for the court to rule on. Antilles Steamship Co. v. Members of the Am. Hull Ins. Syndicate, 733 F.2d 195, 207 (2d Cir.1984) (Newman, J., concurring). A conflict exists between § 7.01D of the contract—which provides for delay impact costs arising from change orders— and the general no-damages-for-delay clause of § 10.02. The contract is ambiguous because the interrelationship of these two provisions is susceptible to different reasonable interpretations. See Seiden, 959 F.2d at 430. In light of this ambiguity, the contracting parties are entitled to an opportunity to present extrinsic evidence to establish their intent. Id. Appellants have proffered such extrinsic evidence by asserting that the authority paid delay impact costs with respect to a number of change orders, and that appellants explicitly reserved their right to make such claims in other change orders. These facts directly conflict with the state dormitory authority’s interpretation of" } ]

[ { "docid": "14144583", "title": "", "text": "and not from extrinsic evidence’ ” (quoting De Luca v. De Luca, 300 A.D.2d 342, 751 N.Y.S.2d 766, 766 (2002))); Terwilliger, 206 F.3d at 245 (“[M]atters extrinsic to the agreement may not be considered when the intent of the parties can fairly be gleaned from the face of the instrument.” (citing Teitelbaum Holdings, Ltd. v. Gold, 48 N.Y.2d 51, 421 N.Y.S.2d 556, 396 N.E.2d 1029, 1032 (1979))). Ambiguity is not to be found solely because the Parties urge different interpretations of the Policy. See Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990) (“Language whose meaning is otherwise plain is not ambiguous merely because the parties urge different interpretations in the litigation.”); O.D.F. Optronics Ltd. v. Remington Arms Co., No. 08-CV-4746, 2008 WL 4410130, at *11 (S.D.N.Y. Sept. 26, 2008) (“ ‘The language of a contract is not made ambiguous simply because the parties urge different interpretations.’ ” (quoting Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992))). A court may grant summary judgment when the contractual language is “ ‘plain and unambiguous.’ ” Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir.2005) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 148 (2d Cir.1993)); see also Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989) (“Contract language is not ambiguous if it has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.’ ” (alteration in original) (quoting Breed, 413 N.Y.S.2d 352, 385 N.E.2d at 1282)). These basic rules of contract interpretation are not altered by the fact that the contract at issue in this case is an insurance policy. See In re Covert, 735 N.Y.S.2d 879, 761 N.E.2d at 576; Lavanant v. General Accident Ins. Co. of Am., 79 N.Y.2d 623, 584 N.Y.S.2d 744, 595 N.E.2d 819, 822 (1992) (“The principles governing interpretation of insurance contracts are well settled. Unambiguous provisions of a policy are given their plain and" }, { "docid": "19879778", "title": "", "text": "oral representations to him regarding the applicability of the Agreement to MidOcean Defendants’ purchase of Palace Entertainment and therefore that the Court should consider “the parties’ understanding of the Agreement and the representations made after the Agreement was executed.” (Id.) “In reviewing a written contract, a trial court’s primary objective is to give effect to the intent of the parties as revealed by the language they chose to use,” and thus the court “ordinarily looks only at the wording used by the drafters who presumably understood what they intended.” Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 426, 428 (2d Cir.1992) (citing Slatt v. Slatt, 64 N.Y.2d 966, 488 N.Y.S.2d 645, 477 N.E.2d 1099 (1985)). It is “axiomatic that where the language of a contract is unambiguous, the parties’ intent is determined within the four corners of the contract, without reference to external evidence.” Feifer v. Prudential Ins. Co. of Am., 306 F.3d 1202, 1210 (2d Cir.2002) (citing United States v. Liranzo, 944 F.2d 73, 77 (2d Cir.1991)). However, “when the language of a contract is ambiguous, its construction presents a question of fact,” which of course precludes summary dismissal. Jackson Heights Medical Group, P.C., v. Complex Corp., 222 A.D.2d 409, 411, 634 N.Y.S.2d 721, 722 (2d Dep’t 1995) (citations omitted); see also Seiden Assocs., 959 F.2d at 428 (“Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is extrinsic evidence of the parties’ actual intent, the meaning of the words becomes an issue of fact ... ”). Ambiguous language is “that which is ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Seiden Assocs., 959 F.2d at 428 (quoting Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987)). Conversely, “[t]he language of a contract is not made ambiguous simply because the parties" }, { "docid": "22371059", "title": "", "text": "effect to the intent of the parties as revealed by the language they chose to use. See Slatt v. Slatt, 64 N.Y.2d 966, 967, 488 N.Y.S.2d 645, 477 N.E.2d 1099 (1985). When the question is a contract’s proper construction, summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity. See Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1320 (2d Cir.1975); Painton v. Company & Bourns, Inc., 442 F.2d 216, 233 (2d Cir.1971). Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is relevant extrinsic evidence of the parties' actual intent, the meaning of the words become an issue of fact and summary judgment is inappropriate, see Heyman, 524 F.2d at 1320; Painton, 442 F.2d at 233; cf. Antilles Steamship Co., Ltd. v. Member of the American Hull Insurance Syndicate, 733 F.2d 195, 202 (2d Cir.1984) (Newman, J., concurring) (ambiguity in a contract, in the absence of relevant extrinsic evidence, presents a question of law), since it is only when there is no genuine issue as to any material fact that 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, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In the past, we have defined ambiguous language as that which is “ ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968) (Mansfield, J.)). Conversely, language is not ambiguous when it has “ ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference" }, { "docid": "23227936", "title": "", "text": "and counterclaims premised on JA’s alleged misuse of Joseph Abboud’s name and persona. For the reasons that follow, we conclude (a) that the district court erred in ruling that the Sale Agreement unambiguously conveyed all of Abboud’s rights to use his name commercially, and (b) that that error affected several of its other rulings, and we therefore remand for further proceedings. A. The Contract Claim Under New York law, which the parties agree governs their contract dispute, the question of whether a written contract is ambiguous is a question of law for the court. See, e.g., Seiden Associates, Inc. v. ANC Holdings, Inc., 959 F.2d 425, 429 (2d Cir.1992) (“Seiden”). “Ambiguity is determined by looking within the four corners of the document, not to outside sources.... ” Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 356, 696 N.E.2d 174 (1998). Contract language is not ambiguous if it has “a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.” Breed v. Insurance Company of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280 (1978); see, e.g., Seiden, 959 F.2d at 428. “Language whose meaning is otherwise plain does not become ambiguous merely because the parties urge different interpretations in the litigation.” Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989). Rather, “[a]mbiguous language is language that is ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66 (2d Cir.2000) (“Revson”) (quoting Seiden, 959 F.2d at 428 (other internal quotation marks omitted)); see, e.g., Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 299 (2d Cir. 1996) (“contract is ambiguous where reasonable minds could differ on what a term means”). We review de novo the district court’s" }, { "docid": "11283873", "title": "", "text": "they intended.” Seiden Assoc.’s, Inc. v. ANC Holdings, Inc., 959 F.2d 425, 426, 428 (2d Cir.1992) (citing Slatt v. Slatt, 64 N.Y.2d 966, 488 N.Y.S.2d 645, 477 N.E.2d 1099 (1985)). However, “when the language of a contract is ambiguous, its construction presents a question of fact,” which of course precludes summary dismissal. Jackson Heights Medical Group, P.C., v. Complex Corp., 222 A.D.2d 409, 411, 634 N.Y.S.2d 721, 722 (2d Dep’t 1995) (citations omitted); see also Seiden Assoc.’s, 959 F.2d at 428 (“Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is extrinsic evidence of the parties’ actual intent, the meaning of the words becomes an issue of fact ... ”). Ambiguous language is “that which is ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Seiden Assoc.’s, 959 F.2d at 428 (quoting Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987)). Conversely, “[t]he language of a contract is not made ambiguous simply because the parties urge different interpretations,” or “where one party’s view ‘strains the contract language beyond its reasonable and ordinary meaning.’ ” Id. (quoting Bethlehem Steel Co. v. Turner Construction Co., 2 N.Y.2d 456, 459, 161 N.Y.S.2d 90, 141 N.E.2d 590 (1957)). Moreover, when interpreting contractual provisions which create a duty to indemnify where one would not otherwise exist, New York courts read indemnification language narrowly. As the New York Court of Appeals has declared, “Words in a contract are to be construed to achieve the apparent purpose of the parties. Although the words might seem to admit of a larger sense, yet they should be restrained to the particular occasion and to the particular object which the parties had in view ... This is particularly true with indemnity contracts. When a party is under no legal duty to indemnify, a contract assuming" }, { "docid": "22164268", "title": "", "text": "there is relevant extrinsic evidence of the parties' actual intent,\" then the contract's meaning becomes an issue of fact precluding summary judgment. Seiden, 959 F.2d at 428; see also Hartford, 33 N.Y.2d at 172, 350 N.Y.S.2d 895, 305 N.E.2d 907. Ascertaining whether or not a writing is ambiguous is a question of law for the trial court, W.W.W. Assocs., 77 N.Y.2d at 162, 565 N.Y.S.2d 440, 566 N.E.2d 639; see also Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990), and we review the trial court's determination de novo. See Two Guys from Harrison-N.Y., Inc. v. S.F.R. Realty Assocs., 63 N.Y.2d 396, 403, 482 N.Y.S.2d 465, 472 N.E.2d 315 (1984); see also Garza v. Marine Transp. Lines Inc., 861 F.2d 23, 27 (2d Cir.1988). Contract language is ambiguous if it is “ ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968)); accord, Care Travel, 944 F.2d at 988; Garza, 861 F.2d at 27. No ambiguity exists when contract language has “a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.” Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978); accord, Seiden, 959 F.2d at 428; Metropolitan Life, 906 F.2d at 889. Although the parties dispute the meaning of specific contract clauses, our task is to determine whether such clauses are ambiguous when “read in the context of the entire agreement.” W.W.W. Assocs., 77 N.Y.2d at 163, 565 N.Y.S.2d 440, 566 N.E.2d 639; see also Williams Press, Inc. v. New York, 37 N.Y.2d 434, 440, 373 N.Y.S.2d 72, 335 N.E.2d 299 (1975). By examining" }, { "docid": "3322101", "title": "", "text": "was part of origination. However, LaSalle did not prevail in Merrill Lynch. Judge Leisure held that origination did not unequivocally and unambiguously include securitization, which was the precise question before him. He did not have occasion to decide whether it included underwriting. And in any event, LaSalle was not successful: Judge Leisure denied its motion for summary judgment and held “[c]ourts look to extrinsic evidence concerning trade usage of a contract term regardless of whether the term is found to be ambiguous. See, e.g., Walk-In Med. Ctrs., Inc. v. Breuer Capital Carp., 818 F.2d 260, 263 (2d Cir.1987) (citing N.Y.U.C.C. § 2-202 and Official Comments thereto).” Merrill Lynch, supra, at n. 13. Therefore LaSalle is not judiciallyestopped to deny that “origination” includes “underwriting” by the position it took in Merrill Lynch. While LaSalle’s usage of the word “origination” in Merrill Lynch does not estop it from arguing for a different usage here, it does stand essentially as an admission by a party opponent that the word “origination,” when used in the precise context at issue here — the representations and warranties in a mortgage loan purchase agreement involving securitization of commercial real estate loans — can include underwriting. This establishes to the Court’s satisfaction that the word “origination” as used in Representation and Warranty 23 is ambiguous. Where, as here, the question before the court on a summary judgment motion concerns the interpretation of a contract, “summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity.” Seiden Assoc., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). However, “where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is relevant extrinsic evidence of the parties’ actual intent, the meaning of the words become [sic] an issue of fact and summary judgment is inappropriate.” Id.) accord Painton & Co. v. Bourns, Inc., 442 F.2d 216, 233 (2d Cir.1971) (Friendly, J.) (‘When a contract is so ambiguous as to require resort to other evidence to ascertain its meaning and" }, { "docid": "22962712", "title": "", "text": "(1926). Aniero and General argue that “assignment” is used in this manner in the Completion Agreement; accordingly, they maintain that the parties intended to transfer contractual rights from Carlin and Aetna to Aniero. Aetna contends that the term “assignment” in the Completion Agreement instead means “delegation”- — that is, a transfer of duties only. In interpreting a written contract, a trial court’s primary goal is to effectuate the intent of the parties as manifested by the language used in the contract. See Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). As the Second Circuit has explained: When the question is the contract’s proper construction, summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity. WThere the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is relevant extrinsic evidence of the parties’ actual intent, the meaning of the words become an issue of fact and summary judgment is inappropriate .... Id. Contract language is ambiguous if it is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages, and terminology as generally understood in the particular trade or business.” Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968), quoted in Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987). However, “[t]he language of a contract is not made ambiguous simply because the parties urge different interpretations. Nor does ambiguity exist where one party’s view ‘strain[s] the contract language beyond its reasonable and ordinary meaning.’ ” Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992), quoting Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 161 N.Y.S.2d 90, 141 N.E.2d 590 (Ct.App.1957). Applying these standards, the language of ¶ 24 is unambiguous. “Assignment” is a legal term indicating a transfer of property or rights therein, and there is no reason to doubt" }, { "docid": "23067861", "title": "", "text": "product’s source, it can be construed as a slogan. Plaintiffs insist, moreover, that even if this court rejects the definition of “slogan” offered by the district court, and even if we ultimately conclude that “BOSS” does not constitute a “trademarked slogan,” Federal should, nonetheless, be found liable. This is so, they claim, because the term “trademarked slogan” is, in the very least, ambiguous, and therefore, under New York’s contra proferentem rule, Federal was obligated to provide full coverage. But, of course, the contra proferentem does not come into play unless this court first determines that the contract is, in fact, ambiguous. See Wallace v. 600 Partners Co., 86 N.Y.2d 543, 634 N.Y.S.2d 669, 658 N.E.2d 715, 717 (1995) (“The rules governing the construction of ambiguous contracts are not triggered unless the court first finds an ambiguity.”) And this court has explained that, under New York law, ambiguity does not exist “simply because the parties urge different interpretations.” Seiden Assocs. Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). Rather, “[t]he question of whether an insurance policy is ambiguous is a matter of law to be determined by the court.” Bd. of Mgrs. of Yardarm Condominium II v. Fed. Ins. Co., 247 A.D.2d 499, 669 N.Y.S.2d 332, 332 (2d Dep’t 1998). In this respect, we have held that “[a]n ‘ambiguous’ word or phrase is one capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Walk-In Med. Ctrs., Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987). Conversely, we have explained that “[cjontract language is not ambiguous if it has a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.” Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989) (quoting Breed v. Ins. Co. of North America, 46 N.Y.2d" }, { "docid": "22321746", "title": "", "text": "F.2d at 151 (“only where the language and the' inferences to be drawn from it are unambiguous” may a district court grant summary judgment). Whether an ambiguity exists in a contract is a threshold question of law to be resolved by the court. See Curry Rd. Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir.1990); Van Wagner Advertising Corp. v. S & M Enters., 67 N.Y.2d 186, 191, 501 N.Y.S.2d 628, 492 N.E.2d 756 (1986). Ambiguous language is that which is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987). Straining a contract’s language beyond its reasonable and ordinary meaning does not create an ambiguity. See Seiden Assocs., 959 F.2d at 429. Nor may an ambiguity be found where the contract has a definite meaning, and where no reasonable basis exists for a difference of opinion about that meaning. See Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989). 2. Rules Ayylied. Plaintiffs correctly note that the Stock Purchase Rights — the rights representing warrants — constitute a contract between them and AFT. Warrants are simply “a contract by which the corporation gives an irrevoea-ble option to the holder to purchase authorized corporate stock within a period of time at a price and upon terms specified in the contract.” Tribble v. J.W. Greer Co., 83 F.Supp. 1015, 1022 (D.Mass.1949); accord 4 Charles R.P. Keating, Fletcher Cy-cloyedia of the Law of Private Coryora-tions § 1370 (Perm.Ed.1985). According to the terms of the rights or warrants contract, plaintiffs are entitled to purchase 32,500 shares of AFT common stock at $4 per share (prior to the reverse stock split, there were 65,000 warrants at $2 a share), subject to restrictions and covenants set out in four paragraphs labeled “statement of rights holders.” The first of these paragraphs provides" }, { "docid": "22164269", "title": "", "text": "in the particular trade or business.’ ” Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968)); accord, Care Travel, 944 F.2d at 988; Garza, 861 F.2d at 27. No ambiguity exists when contract language has “a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.” Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978); accord, Seiden, 959 F.2d at 428; Metropolitan Life, 906 F.2d at 889. Although the parties dispute the meaning of specific contract clauses, our task is to determine whether such clauses are ambiguous when “read in the context of the entire agreement.” W.W.W. Assocs., 77 N.Y.2d at 163, 565 N.Y.S.2d 440, 566 N.E.2d 639; see also Williams Press, Inc. v. New York, 37 N.Y.2d 434, 440, 373 N.Y.S.2d 72, 335 N.E.2d 299 (1975). By examining the entire contract, we safeguard against adopting an interpretation that would render any individual provision superfluous. See Two Guys, 63 N.Y.2d at 403, 482 N.Y.S.2d 465, 472 N.E.2d 315; see also Rothenberg, 755 F.2d at 1019; Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 46, 150 N.Y.S.2d 171, 133 N.E.2d 688 (1956). Parties to a contract may not create an ambiguity merely by urging conflicting interpretations of their agreement. See Seiden, 959 F.2d at 428; accord, Metropolitan Life, 906 F.2d at 889; Garza, 861 F.2d at 27. But, if ambiguity exists, then extrinsic evidence of the parties’ intent may be looked to as an aid to construing the contractual language. See Curry Rd. Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir.1990); accord, Care Travel, 944 F.2d at 988; Hudson-Port Ewen Assocs. v. Kuo, 78 N.Y.2d 944, 945, 573 N.Y.S.2d 637, 578 N.E.2d 435 (1991); O’Neil Supply Co. v. Petroleum Heat & Power Co., 280 N.Y. 50, 55-56, 19 N.E.2d 676 (1939). With these principles in mind, we hold that the Rider" }, { "docid": "7330311", "title": "", "text": "principles of contract construction are well-established. The pri mary objective “is to give effect to the intent of the [contracting] parties as revealed by the language they chose to use.” Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). If the language of the contract is “unambiguous and conveys a definite meaning,” then the interpretation of the contract is a question of law for the court. Sayers v. Rochester Tel. Corp. Supplemental Management Pension Plan, 7 F.3d 1091, 1094 (2d Cir.1993); see Seiden, 959 F.2d at 428 (contract language “is not ambiguous when it has a definite and precise meaning ... concerning which there is no reasonable basis for a difference in opinion” (internal quotations omitted)). Alternatively, “[w]here the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another,” then the interpretation of the contract becomes a question of fact for the jury and extrinsic evidence of the parties’ intent properly is admissible. Seiden, 959 F.2d at 428; see Walk-In Medical Ctrs., Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (stating that language is ambiguous if it is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business” (internal quotations omitted)). In order to analyze Bourne’s contention that Disney has no right to produce videocassettes utilizing the Compositions, we first must look to the specific language of the grants. If the production of home videocassettes clearly falls outside the scope of the grants, then Disney’s use of the Compositions was unauthorized as a matter of law, and, therefore, the district court erred in submitting this question to the jury. The 1939 Pinocchio Agreement provided Disney with “the non-exclusive right to mechanically and/or electrically record the said musical compositions ... in synchronism with any and all of the motion pictures which may be made by [Disney].” (emphasis added). Similarly, the 1933" }, { "docid": "22371060", "title": "", "text": "question of law), since it is only when there is no genuine issue as to any material fact that 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, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In the past, we have defined ambiguous language as that which is “ ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987) (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968) (Mansfield, J.)). Conversely, language is not ambiguous when it has “ ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference in opinion.’ ” Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989) (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978)). The language of a contract is not made ambiguous simply because the parties urge different interpretations. Nor does ambiguity exist where one party’s view “strain[s] the contract language beyond its reasonable and ordinary meaning.” Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 459, 161 N.Y.S.2d 90, 141 N.E.2d 590 (1957). If the language unambiguously conveys the parties’ intent, extrinsic evidence may not properly be received, nor may a judicial preference be interjected since these extraneous factors would vary the effect of the contract’s terms. See Metropolitan Life Ins. Co. v. RJR Nabisco Inc., 906 F.2d 884, 889 (2d Cir.1990) (Given agreement by the parties, courts should not change terms or allow them to be violated.); W.W.W. Assocs. v. Giancontieri, 11 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 (1990); Teitelbaum Holdings, Ltd. v. Gold, 48 N.Y.2d 51," }, { "docid": "6057075", "title": "", "text": "York law, the determination of whether a contract term is ambiguous is a threshold question for the court. Walk-In Med. Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987). A contractual phrase is ambiguous as a matter of law if it is capable of “more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages, and terminology as generally understood in the particular trade or business.” Id. (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968)). By contrast, language that has “a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference in opinion,” is unambiguous. Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989) (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280, 1282 (1978)). Moreover, the language of a contract is not made ambiguous simply because the parties urge different interpretations. Wards Co., Inc. v. Stamford Ridgeway Assoc., 761 F.2d 117, 120 (2d Cir.1985). Nor does ambiguity exist where one party’s view “strain[s] the contract language beyond its reasonable and ordinary meaning.” Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 141 N.E.2d 590, 593, 161 N.Y.S.2d 90, 92 (1957). Mindful of these precepts, we turn to examine the critical language at issue in the letter agreement. If, as defendant contends, a plain reading of the letter agreement admits of no other conclusion than that the obligation to reimburse plaintiff depended upon board approval for defendant to participate in the project until completion of the plant, summary judgment is appropriate because plaintiff concedes that defendant’s board never granted such broad approval. However, if the agreement’s language is also reasonably susceptible of plaintiffs interpretation, then the agreement is ambiguous, and the parties must be permitted to introduce extrinsic evidence to clarify the agreement. We are unpersuaded by plaintiffs contention that because" }, { "docid": "22321745", "title": "", "text": "v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir.1990). Where the language is plain and unambiguous, a court may construe the contract and grant summary judgment. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 427 (2d Cir.1992). Even where some ambiguity lurks in the language of the contract, a court may still construe the contract, if it can do so without reference to extrinsic circumstances or evidence.. Where the res olution of the ambiguity hinges on such extrinsic matters as the credibility of witnesses or documents or upon choosing one among several reasonable inferences that may be drawn from such extrinsic evidence, a jury, and not a court, should decide what meaning is to be ascribed to the contract. See Hartford Accident, 33 N.Y.2d at 172, 350 N.Y.S.2d 895, 305 N.E.2d 907; accord Antilles S.S. Co. v. Members of the Am. Hull Ins. Syndicate, 733 F.2d 195, 207 (2d Cir.1984) (Newman, J., concurring). In such case, summary judgment is inappropriate. See Seiden Assocs., 959 F.2d at 428; Cable Science Corp., 920 F.2d at 151 (“only where the language and the' inferences to be drawn from it are unambiguous” may a district court grant summary judgment). Whether an ambiguity exists in a contract is a threshold question of law to be resolved by the court. See Curry Rd. Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir.1990); Van Wagner Advertising Corp. v. S & M Enters., 67 N.Y.2d 186, 191, 501 N.Y.S.2d 628, 492 N.E.2d 756 (1986). Ambiguous language is that which is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987). Straining a contract’s language beyond its reasonable and ordinary meaning does not create an ambiguity. See Seiden Assocs., 959 F.2d at 429. Nor may an ambiguity be found where the contract has a definite" }, { "docid": "6057074", "title": "", "text": "N.Y.2d 966, 488 N.Y.S.2d 645, 646, 477 N.E.2d 1099, 1100 (1985). Where the language of a contract is unambiguous, the question of interpretation is one of law, and summary judgment may be granted. Seiden Assoc., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). In such cases, “the intent of the parties must be determined from their final writing and no parol evidence or extrinsic evidence is admissible.” International Klafter Co., Inc. v. Continental Cas. Co., 869 F.2d 96, 100 (2d Cir.1989) (citations omitted); W.W.W. Assoc., Inc. v. Giancontieri, 77 N.Y.2d 157, 565 N.Y.S.2d 440, 443, 566 N.E.2d 639, 641 (1990) (extrinsic evidence may not be considered in order to create an ambiguity). However, where contractual language is ambiguous, and where there is conflicting extrinsic evidence relevant to the parties’ actual intent, a material question of fact exists, and summary judgment should be denied. Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 528 (2d Cir.1990); Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). Under New York law, the determination of whether a contract term is ambiguous is a threshold question for the court. Walk-In Med. Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987). A contractual phrase is ambiguous as a matter of law if it is capable of “more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages, and terminology as generally understood in the particular trade or business.” Id. (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968)). By contrast, language that has “a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference in opinion,” is unambiguous. Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989) (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280, 1282 (1978)). Moreover, the" }, { "docid": "19879779", "title": "", "text": "a contract is ambiguous, its construction presents a question of fact,” which of course precludes summary dismissal. Jackson Heights Medical Group, P.C., v. Complex Corp., 222 A.D.2d 409, 411, 634 N.Y.S.2d 721, 722 (2d Dep’t 1995) (citations omitted); see also Seiden Assocs., 959 F.2d at 428 (“Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is extrinsic evidence of the parties’ actual intent, the meaning of the words becomes an issue of fact ... ”). Ambiguous language is “that which is ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” Seiden Assocs., 959 F.2d at 428 (quoting Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir.1987)). Conversely, “[t]he language of a contract is not made ambiguous simply because the parties urge different interpretations,” or “where one party’s view ‘strains the contract language beyond its reasonable and ordinary meaning.’ ” Id. (quoting Bethlehem Steel Co. v. Turner Construction Co., 2 N.Y.2d 456, 459, 161 N.Y.S.2d 90, b141 N.E.2d 590 (1957)). Although Plaintiff states that the operative provision of the Agreement is “not clear or limited”, he does not attempt to demonstrate how that might be so. The Agreement provides that Plaintiff shall be entitled to a “final advisory fee” only if his efforts resulted in the closing of a “transaction or series or combination of transactions ... involving the offer and sale of equity securities of [VisionMaker], or securities convertible into or exchangeable for equity securities of [VisionMaker].” (Am. Compl. Ex. A at 1.) There is nothing ambiguous about the term “equity securities” nor the clause that follows referring to other types of securities that may be changed into VisionMaker equity securities. There is no allegation in the Amended Complaint that Plaintiff closed any transaction that involved the sale of Vi-sionMaker securities. MidOcean Defendants certainly are" }, { "docid": "16716603", "title": "", "text": "assertion, DBSI has presented evidence to the contrary as well. Hence, these matters must be resolved at trial. b. Interpretation of the Addendum Defendants argue that, even assuming the Addendum is enforceable, they are entitled to summary judgment dismissing DBSI’s breach of contract claim because the Addendum’s plain language did not prohibit them from turning to another investment banking firm to seek $500 million in debt financing rather than the $300 million that was the subject of the Addendum. I disagree. i. Applicable Law The rules of contract interpretation are well-settled and are set forth in the summary judgment context in Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425 (2d Cir.1992): In reviewing a written contract, a trial court’s primary objective is to give effect to the intent of the parties as revealed by the language they chose to use. When the question is the contract’s proper construction, summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity. Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is relevant extrinsic evidence of the parties’ actual intent, the meaning of the words become an issue of fact and summary judgment is inappropriate, since it is only when there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law. Id. at 428 (citations omitted); see also Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1094 (2d Cir.1993) (summary judgment may be granted “only where the agreement’s language is unambiguous and conveys a definite meaning”); Nycal Corp. v. Inoco PLC, 988 F.Supp. 296, 298 (S.D.N.Y.1997) (summary judgment “is clearly permissible when the language of the contract provision in question is unambiguous”) (citations omitted), aff'd, 166 F.3d 1201 (2d Cir.1998). Therefore, in a contract interpretation case under New York law, the Court must first decide whether the contract is ambiguous. See Morse/Diesel, Inc. v. Trinity Indus., Inc., 67 F.3d 435, 443 (2d Cir.1995) (citing" }, { "docid": "22902369", "title": "", "text": "Inc., 861 F.2d 23, 27 (2d Cir.1988). An ambiguity exists where the terms of a contract could suggest “more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997). Ambiguity with respect to the meaning of contract terms can arise either from the language itself or from inferences that can be drawn from this language. Hence, “only where the language and the inferences to be drawn from it are unambiguous” may a district court “construe a contract as a matter of law and grant summary judgment accordingly.” Cable Science, 920 F.2d at 151. If the court finds that the contract is not ambiguous it should assign the plain and ordinary meaning to each term and interpret the contract without the aid of extrinsic evidence. If the court finds that the terms, or the inferences readily drawn from the terms, are ambiguous, then the court may accept any available extrinsic evidence to ascertain the meaning intended by the parties during the formation of the contract. Seiden Associates v. ANC Holdings, Inc., 959 F.2d 425, 428-29 (2d Cir.1992). If the court .must resort to extrinsic evidence to ascertain the correct and intended meaning of a term, material questions of fact necessarily exist. If the language is susceptible to different reasonable interpretations, and “where there is relevant extrinsic evidence of the parties’ actual intent,” then the contract’s meaning becomes an issue of fact precluding summary judgment. Seiden Associates, 959 F.2d at 428. Consequently, only where the court finds that the terms are unambiguous, or where no extrinsic evidence exists, may it properly grant summary judgment to one of the parties. Seiden Associates, 959 F.2d at 428 (“Where the language used is susceptible to differing interpretations ... and where there is relevant extrinsic evidence of the parties’ actual intent, the meaning of the words become[s] an issue of fact and summary judgment" }, { "docid": "20034785", "title": "", "text": "(S.D.N.Y. Jan. 12, 2011). “Whether a contract is unambiguous is a question of law to be resolved by the Court.” Brass v. Am. Film Tech., Inc., 987 F.2d 142, 148-49 (2d Cir.1993). Contract language is unambiguous when it has a “definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.” Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 139 (2d Cir.2000) (quotation omitted); accord Trustees of the Four Joint Bds. Health & Welfare & Pension Funds v. Penn Plastics, Inc., 864 F.Supp. 342, 345 (S.D.N.Y.1994). In order “[t]o determine the terms of a contract^] a court must ascertain the parties’ intent based on the language they used.” Consarc Corp. v. Marine Midland Bank, N.A, 996 F.2d 568, 573 (2d Cir.1993) (citing Slatt v. Slatt, 64 N.Y.2d 966, 488 N.Y.S.2d 645, 477 N.E.2d 1099 (1985)). The Second Circuit has noted that [i]nterpreting [an] agreement requires consideration as to whether any terms of that agreement are ambiguous.... An ambiguous term is one about which reasonable minds could differ. See Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992); Care Travel Co. v. Pan American World Airways, Inc., 944 F.2d 983, 988 (2d Cir.1991); Van Wagner Advertising, 67 N.Y.2d 186, 501 N.Y.S.2d 628, 492 N.E.2d 756 [ (1986) ]. Consarc Corp., 996 F.2d at 573. “Where reasonable minds could be said to differ because the language the parties used in their written contract is susceptible to more than one meaning— each as reasonable as the other — and where extrinsic evidence of the parties’ actual intent exists, it should be submitted to the trier of fact.” Id. (citing Seiden Assocs., 959 F.2d at 428); see also Fershtadt v. Verizon Commc’ns Inc., No. 07 Civ. 6963(CM), 2010 WL 571818, at *12 (S.D.N.Y. Feb. 9, 2010) (“ ‘[W]hen the language of a contract is ambiguous and there is relevant extrinsic evidence regarding the actual intent of the parties, an issue of fact is presented for [the fact-finder] to resolve, thereby precluding summary judgment.’" } ]

[ { "docid": "3900270", "title": "", "text": "is technically barred from simultaneously maintaining two cases under different chapters of the Bankruptcy Code. 97 B.R. at 26. The Court in Strause noted that although the debtor in Freshman was denied a discharge as to old debts, he was allowed to discharge new debts scheduled in the second petition, despite the pendency of the first proceeding. Id. Therefore, Freshman merely holds that two applications for discharge of the same debts cannot be pending concurrently. See Id. Another approach to the simultaneous filings issue suggests that a debtor may file a Chapter 13 petition once the Chapter 7 discharge has entered, but before the Chapter 7 case is technically closed. See In re Saylors, supra; In re Strause, supra; In re Kosenka, supra. Courts adopting this policy agree with those utilizing the strict approach to the extent that a debtor is prohibited from filing a Chapter 13 petition before the entry of a discharge in a pending Chapter 7 case. See In re Kosenka, 104 B.R. at 43. The rationale for this approach is that a per se prohibition on Chapter 13 filings would be contrary to the rehabilitative purpose of Chapter 13 and would collide with the purpose of Congress in promoting Chapter 13 plans. In re Saylors, 869 F.2d at 1438. Administrative hurdles, including the trustee’s delay in filing the final report after the entry of the discharge, are beyond the debtor’s control and, thus, should not defeat the legislative intent behind Chapter 13. See Id. In rejecting a per se prohibition against simultaneous filings, these courts assess the propriety of the Chapter 13 in light of the standards applicable to confirmation of Chapter 13 plans, particularly the debtor’s good faith. See Id. at 1437; In re Kosenka, 104 B.R. at 46; In re Strause, 97 B.R. at 30. Saving the issue of whether the debtor’s subsequent filing is in good faith for the confirmation hearing preserves the legislative goals of Chapter 13 and safeguards the bankruptcy process from bad faith filings. “The good faith requirement of 11 U.S.C. § 1325(a)(3) is sufficient to prevent undeserving debtors from" } ]

[ { "docid": "3900271", "title": "", "text": "a per se prohibition on Chapter 13 filings would be contrary to the rehabilitative purpose of Chapter 13 and would collide with the purpose of Congress in promoting Chapter 13 plans. In re Saylors, 869 F.2d at 1438. Administrative hurdles, including the trustee’s delay in filing the final report after the entry of the discharge, are beyond the debtor’s control and, thus, should not defeat the legislative intent behind Chapter 13. See Id. In rejecting a per se prohibition against simultaneous filings, these courts assess the propriety of the Chapter 13 in light of the standards applicable to confirmation of Chapter 13 plans, particularly the debtor’s good faith. See Id. at 1437; In re Kosenka, 104 B.R. at 46; In re Strause, 97 B.R. at 30. Saving the issue of whether the debtor’s subsequent filing is in good faith for the confirmation hearing preserves the legislative goals of Chapter 13 and safeguards the bankruptcy process from bad faith filings. “The good faith requirement of 11 U.S.C. § 1325(a)(3) is sufficient to prevent undeserving debtors from using this procedure, yet does not also prevent deserving debtors from using the procedure.” In re Saylors, 869 F.2d at 1436 (emphasis in original). This Court agrees with the line of authority holding that the filing of a Chapter 13 petition after the discharge has been entered in a Chapter 7 case, but during the pending Chapter 7 case, is not per se impermissible. Although the commencement of a Chapter 13 case during the pendency of the Chapter 7 case may be indicative of bad faith, the Court shall determine this issue in the context of objections to confirmation of the Chapter 13 plan or at some other appropriate time, such as the hearing on a motion for relief -from stay when the likelihood of a successful reorganization is at issue. See 11 U.S.C. § 362(d)(2). In this Court’s view, commencement of a Chapter 13 ease during the pendency of a Chapter 7 case may indicate exploitation of the bankruptcy process, particularly when the Chapter 13 filing precedes the Chapter 7 discharge and impedes' a" }, { "docid": "6753896", "title": "", "text": "illustrates that the Turners almost certainly cannot have been granted a discharge in their chapter 7 case at the time they sought chapter 13 relief. Since the Supreme Court issued its decision in Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991), it has been increasingly common for debtors who have been in chapter 7 to seek chapter 13 protection as a means of dealing with mortgage liens or nondischargeable claims that survive the chapter 7 discharge. In Johnson, The Supreme Court found that “Congress did not intend categorically to foreclose the benefits of chapter 13 reorganization to a debtor who has previously filed for chapter 7 relief.” Id. at 87, 111 S.Ct. at 2156. The Court did not address whether a debtor may maintain a chapter 13 case during the pendency of a chapter 7 ease. Such a coupling of these two cases has been described as a “simultaneous chapter 20” as opposed to a “serial or sequential chapter 20” in which the chapter 13 case is commenced after closure of the chapter 7 ease. In re Hodurski, 156 B.R. 353, 354 (Bankr.D.Mass.1993). There is a decided difference of opinion over whether a debtor may ever simultaneously maintain two separate bankruptcy proceedings. In re Jones, 117 B.R. 415, 421 (Bankr.N.D.Ind.1990). In the first line of cases, courts have read an old Supreme Court opinion to be a strict prohibition against ever having two cases open simultaneously. In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984) (citing Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925)). The Heywood court premised its holding on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code. This continues to be the majority view. Norwalk Savings Society v. Peia (In re Peia), 204 B.R. 310, 314 (Bankr.D.Conn.1996). A minority view soon developed in some courts which declined to adopt a per se rule against such filings and permit a debtor to file a" }, { "docid": "16449239", "title": "", "text": "was res judicata as to the debts listed in the first proceeding. Strause, 97 B.R. at 26; accord In re Kosenka, 104 B.R. 40, 44-45 (Bankr.N.D.Ind.1989) (holding that after a Chapter 7 discharge has been granted the debtor is not barred as a matter of law from filing a Chapter 13 petition); In re Brown, 51 B.R. 284, 285 (Bankr.D.D.C.1985) (finding that the rule of Freshman prohibiting two suits at the same time is distinguishable because the later filed Chapter 13 seeks entirely different relief from that which has already been obtained in the Chapter 7 case). The only circuit court to directly address the issue is In re Saylors, 869 F.2d 1434 (11th Cir.1989). In Saylors, the debtor filed a Chapter 13 petition after receiving a Chapter 7 discharge but prior to the closing of the Chapter 7 case. The Eleventh Circuit held: The district court also concluded that, as a matter of law, Saylors did not propose his chapter 13 plan in good faith. Two factors had a significant influence on the court in reaching this decision. The first was that Saylors filed his chapter 13 petition before the chapter 7 trustee filed his final report. This factor, however, is not dispositive on the issue of good faith. If it were, a debtor effectively would be barred as a matter of law from filing a chapter 13 petition during the period between the debtor’s receipt of a chapter 7 discharge and the filing of the final report by the chapter 7 trustee. The language of the Bankruptcy Code suggests no such rule. The Code provides that the “court shall confirm a [chapter 13] plan” if the debtor meets certain conditions. 11 U.S.C. § 1325(a). The receipt of a prior chapter 7 discharge does not prevent the debtor from meeting any of the listed conditions. See § 1325(a)(l)-(6). A per se rule barring the filing of a chapter 13 petition during the period at issue also would conflict with the purpose of Congress in adopting and designing chapter 13 plans. In Perry v. Commerce Loan Co., 383 U.S. 392" }, { "docid": "8558958", "title": "", "text": "well. Id. at 87, 111 S.Ct. at 2155-56. This fact, \"combined with the evident care with which Congress fashioned these express prohibitions,” convinced the Court that Congress \"did not intend categorically to foreclose the benefit of Chapter 13 reorganization to a debtor who previously has filed for Chapter 7 relief.” Id. . Several courts have suggested that a Chapter 13 petition can never be filed until a discharge has been entered in the Chapter 7 case. See, e.g., Jim Walter Homes, Inc. v. Saylors (In re Saylors), 869 F.2d 1434, 1437-38 (11th Cir.1989); In re Kosenka, 104 B.R. 40, 41-44 (Bankr.N.D.Ind. 1989). I, however, find such a distinction to be rather artificial and such a per se rule to serve no proper purpose. See In re Studio Five Clothing Stores, Inc., 192 B.R. 998, 1005 (Bankr. C.D.Cal.1996). . Of course, the viability of the debtor's Chapter 13 plan still must evaluated in light of the \"good faith” hurdle found in 11 U.S.C. § 1325(a)(3). See In re Fountain, 142 B.R. 135, 137 (Bankr. E.D.Va.1992); In re Hodurski, 156 B.R. 353, 356 (Bankr.D.Mass. 1993)." }, { "docid": "10696717", "title": "", "text": "156 B.R. 353 (Bankr.D.Mass.1993); In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); In re Saylors, 869 F.2d 1434 (11th Cir.1989); Helbock v. Strause (In re Strause), 97 B.R. 22 (Bankr.S.D.Cal.1989). The minority is concerned that although a Chapter 7 trustee has the duty to “close the estate as expeditiously as is compatible with the best interests of parties in interest” pursuant to Section 704(1) of the Bankruptcy Code, the debtor should not be subject to completion of “administrative hurdles” by the Chapter 7 Trustee, such as the filing of the final report, which are “beyond the debtor’s control”, before being able to file the Chapter 13 petition and propose a plan. In re Hodurski, 156 B.R. 353, 356 (Bankr.D.Mass.1993) (citing In re Saylors, 869 F.2d at 1438). Thus, where simultaneous Chapter 7 and Chapter 13 petitions relate to different assets and different debts, the minority finds that a court may properly entertain simultaneous cases for the same debtor. See In re Strause, 97 B.R. at 27-30; In re Kosenka, 104 B.R. at 51; In re Tauscher, 26 B.R. 99, 101 (Bankr.E.D.Wis.1982). Rather than prohibiting the filing of Chapter 13 petitions during the pendency of the Chapter 7 case, the minority line of cases assesses the propriety of the Chapter 13 case in light of the “good faith” standards by which “serial Chapter 20” filings are evaluated. In re Hodurski, 156 B.R. at 356-57; In re Tauscher, 26 B.R. at 101; In re Strause, 97 B.R. at 28; In re Kosenka, 104 B.R. at 51; In re Saylors, 869 F.2d at 1438; In re Bumpass, 28 B.R. 597 (Bankr.S.D.N.Y.1983). This Court agrees with the majority rule articulated in In re Turner. There, the Bankruptcy Appellate Panel for the Second Circuit, faced with debtors who filed a Chapter 13 petition four days before the foreclosure sale of their home was to take place, and following the unopposed lifting of the stay of their pending Chapter 7 case, analyzed both the majority and minority rule on the permissibility of “simultaneous Chapter 20” filings, and observed as follows: While the majority view may be viewed" }, { "docid": "16169866", "title": "", "text": "October 8, 2003. On June 24, 2004, Debtor filed a Chapter 13 petition (case No. 04-57903). The Debtor’s Chapter 13 Plan proposes to fund the Plan with monthly payments of $3,155.00. The source of the payments is Debtor’s wages. That case is still pending and is the subject of the Chapter 7 Trustee’s present Motion to Dismiss. The Chapter 7 Trustee asserts that Debtor’s Chapter 13 estate is attempting to administer assets which belong to the Chapter 7 estate-assets that “were either not declared exempt or are still being administered by the trustee, and have yet to be abandoned by a closing order or a motion for abandonment.” (Trustee’s Motion ¶ 2). No other party has objected to confirmation of the Debtor’s Chapter 13 Plan. Analysis The Bankruptcy Code does not expressly prohibit a Chapter 7 debtor from simultaneously seeking relief under Chapter 13. Given the lack of explicit statutory guidance, courts have split on the issue. While a majority of courts have adopted a per se rule prohibiting a debtor from having more than one bankruptcy case open at any time (see, e.g. In re Lord, 295 B.R. 16 (Bankr.E.D.N.Y.2003)), other courts permit a debtor to file a Chapter 13 petition after the Chapter 7 discharge has been entered, but before the Chapter 7 case is officially closed. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993). See also, In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); In re Tauscher, 26 B.R. 99 (Bankr.E.D.Wis., 1982); In re Robinson, 18 B.R. 891 (Bankr.D.Conn.1982); In re Saylors, 869 F.2d 1434 (11th Cir.1989). The courts which follow the minority rule focus on the rehabilitative purpose behind Chapter 13 filings and reason that “administrative hurdles, including the trustee’s delay in filing the final report after the entry of the discharge, are beyond the debtor’s control and, thus, should not defeat the legislative intent behind Chapter 13.” Id., 156 B.R. at 356. In rejecting a per se prohibition against simultaneous filings, these courts assess the propriety of the Chapter 13 in light of the standards applicable to confirmation of Chapter 13 plans, particularly the debtors good faith." }, { "docid": "253565", "title": "", "text": "on the property located in Uniondale, New York. When Barnes-filed her Chapter 13 bankruptcy, an automatic stay was placed on all transactions regarding the Chapter 7 estate including the foreclosure proceeding on the property in Uniondale, New York. As a result, the Trustee claims that the Chapter 13 filing was made in bad faith as it was intended for the sole purpose of stalling the foreclosure proceeding and preserving the real property owned by the estate and located in Uniondale, New York. Prior to the decision of the United States Bankruptcy Appellate Panel for the Second Circuit’s decision in In re Turner, 207 B.R. 373 (2nd Cir. BAP 1997), a decision filed after the briefs had been submitted in this case, courts were split as to the issue of whether Chapter 7 and Chapter 13 filings may exist simultaneously for the same debt- or. The Court in In re Turner analyzed both the majority rule, which prohibited simultaneous filings of Chapter 7 and Chapter 13 bankruptcies; and the minority rule, that permitted such filings. The Bankruptcy Appellate Panel described the divergence in opinions as follows: There is a decided difference of opinion over whether a debtor may ever simultaneously maintain two separate bankruptcy proceedings. In the first line of cases, courts have read an old Supreme Court opinion to be a strict prohibition against ever having two cases open simultaneously. The Heywood court premised its holding on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code. This continues to be the majority view. A minority view soon developed in some courts which declined to adopt a per se rule against such filings and permit a debtor to file a chapter 7, receive his or her discharge, and then file a second petition under chapter 13 to reorganize the debts which have not been discharged although certain administrative acts of the chapter seven case such as the trustee’s filing of a final report have not already been completed." }, { "docid": "6753897", "title": "", "text": "after closure of the chapter 7 ease. In re Hodurski, 156 B.R. 353, 354 (Bankr.D.Mass.1993). There is a decided difference of opinion over whether a debtor may ever simultaneously maintain two separate bankruptcy proceedings. In re Jones, 117 B.R. 415, 421 (Bankr.N.D.Ind.1990). In the first line of cases, courts have read an old Supreme Court opinion to be a strict prohibition against ever having two cases open simultaneously. In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984) (citing Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925)). The Heywood court premised its holding on the fact that a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code. This continues to be the majority view. Norwalk Savings Society v. Peia (In re Peia), 204 B.R. 310, 314 (Bankr.D.Conn.1996). A minority view soon developed in some courts which declined to adopt a per se rule against such filings and permit a debtor to file a chapter 7, receive his or her discharge, and then file a second petition under chapter 13 to reorganize the debts which have not been discharged although certain administrative acts of the chapter 7 case such as the trustee’s filing of a final report have not already been completed. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993); In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); Frenz, 142 B.R. at 614 n. 2 (citing cases). While the majority view may be viewed as an absolutist position, the minority view does run the risk of making available “an easy avenue for abuse of the bankruptcy system” that would allow debtors to file multiple cases if they do not achieve their intended goal in a particular case. In re Bodine, 113 B.R. 134, 135 (Bankr.W.D.N.Y.1990). Despite these courts’ differences as to the propriety of simultaneous filings, there is universal agreement among them that where a debtor files for chapter 7 relief and then files for protection under chapter 13 before receiving a discharge in the original chapter 7 case, that the" }, { "docid": "16449234", "title": "", "text": "In re Colony Square, Co., 62 B.R. 48 (N.D.Ga.1985); In re Stahl, Asano, Shigetomi & Associates, 7 B.R. 181, 186 (Bankr.D.Hawaii 1980). There is an emerging minority view that a debtor who has received a Chapter 7 discharge is not prohibited from filing a subsequent case under Chapter 13 even though the Chapter 7 case remains open. See In re Saylors, 869 F.2d 1434, 1437-38 (11th Cir.1989); In re Kosenka, 104 B.R. 40, 43-44 (Bankr.N.D.Ind.1989) (and the cases cited therein); In re Strause, 97 B.R. 22, 26-30 (Bankr.S.D.Cal.1989) (and the cases cited therein); In re Brown, 51 B.R. 284, 285 (Bankr.D.C.1985); In re Nimai Kumar Ghosh, 38 B.R. 600, 603-04 (Bankr.E.D.N.Y.1984); In re Bumpass, 28 B.R. 597, 599 (Bankr.S.D.N.Y.1983); In re Tauscher, 26 B.R. 99, 102-03 (Bankr.E.D.Wis.1982); In re Robinson, 18 B.R. 891, 893 (Bankr.D.Conn.1982). Most of the cases in the majority rely on Freshman, and state a per se rule that two cases cannot be pending at the same time. In Freshman, the debtor filed a bankruptcy in 1915. The debtor applied for a discharge but no action was ever taken to either grant or deny the discharge. Id. at 121, 46 S.Ct. at 41. The debtor filed a second bankruptcy in 1922, listing debts contained in the 1915 petition in addition to some new debts. The debtor was denied a discharge in the second bankruptcy. Id. at 122-23, 46 S.Ct. at 41-42. The Supreme Court reasoned: [T]he pendency of the first application precluded a consideration of the second in respect of the same debts_ A proceeding in bankruptcy has for one of its objects the discharge of the bankrupt from his debts. In voluntary proceedings, as both of these were, that is the primary object. Denial of a discharge from the debts provable, or failure to apply for it within the statutory time, bars application under a second proceeding for discharge from the same debts. Id. (citations omitted.) The court held that the prior application for discharge was pending and could have been acted upon by the trial court, and that to ignore it and make a second" }, { "docid": "6753899", "title": "", "text": "chapter 13 case is a nullity because the filing of simultaneous petitions is “contrary to the obvious contemplated function of the Bankruptcy Code to resolve a debtor’s financial affairs by administration of a debtor’s property as a single estate under a single chapter within the code.” In re Kosenka, 104 B.R. 40, 46 (Bankr.N.D.Ind.1989) (quoting Associates Fin'l Services Corp. v. Cowen (In re Cowen), 29 B.R. 888, 894-95 (Bankr.S.D.Oh.1983)). See also, Hodurski, 156 B.R. 353 (after learning that a debtor had filed a chapter 13 petition before receiving his chapter 7 discharge, the court sua sponte issued an order to show cause to dismiss the chapter 13 case). What is especially noteworthy in the Ko-senko case is the fact that the bankruptcy judge consolidated two motions to dismiss the petitions of the two unrelated chapter 13 debtors, Kosenka and Parduhn, both of whom had previously filed chapter 7 peti tions. Because Kosenka had filed his chapter 13 petition prior to receiving a discharge in his chapter 7 case, the judge dismissed his case. However, the judge did not dismiss Parduhn’s case because he had filed his chapter 13 petition after receiving his chapter 7 discharge. Id. at 40. The existence of multiple cases may indicate an exploitation of the bankruptcy process and an attempt at reimposing the automatic stay after it had been previously lifted. See Frenz, 142 B.R. at 614 (manipulating the judicial process by reimposing the automatic stay through multiple filings works an unconscionable fraud on creditors.); Peia, 204 B.R. at 314 (same); Hodurski, 156 B.R. at 356 (impeding a secured creditor’s ability to proceed with state court foreclosure rights after obtaining relief from the stay in chapter 7 ease is an exploitation of the bankruptcy process); GEIBank Indus. Bank v. Martin (In re Martin), 97 B.R. 1013, 1016 (Bankr.N.D.Ga.1989) (filing new case to create a new stay was abusive and invalid); In re Heywood, 39 B.R. 910, 911 (same). In the case of simultaneous filings, this is especially likely since a debtor in most instances has an absolute right of conversion during the pendency of the case," }, { "docid": "3900266", "title": "", "text": "on the theory of the exclusivity of “expressly enumerated exceptions,” the Court rejected a per se bar to serial filings of Chapter 13 cases. Id. However, the Court left open the issues of good faith, best interests of creditors and feasibility raised by 11 U.S.C. § 1325 for a case by case determination. Id. Although Johnson settled the question of whether a debtor may use, Chapter 13 relief to affect liens that survive a prior Chapter 7 discharge, the Supreme Court did not address whether a debtor may maintain a Chapter 13 case during the pen-dency of a Chapter 7 case. A Chapter 13 case when coupled with a pending Chapter 7 case has been described as a “simultaneous Chapter 20,” as opposed to a “serial or sequential Chapter 20,” in which the Chapter 13 case is commenced after closure of the Chapter 7 case. In re Standfield, 152 B.R. 528, 535 (Bankr.N.D.Ill.1993), appeal dismissed, No. 93-2317, 1993 WL 192957 (N.D.Ill. May 28, 1993). Because the “simultaneous Chapter 20” issue was not reached in Johnson, this Court shall consider decisions prior to Johnson to decide the propriety of concurrent Chapter 7 and Chapter 13 cases. There is no express prohibition in the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure barring a Chapter 7 debtor from simultaneously seeking Chapter 13 relief. In re Saylors, 869 F.2d 1434, 1436-37 (11th Cir.1989); In re Standfield, 152 B.R. at 538; In re Kosenka, 104 B.R. 40, 42-43 (Bankr.N.D.Ind.1989). For example, Section 109(e) simply states the eligibility requirements for Chapter 13: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontin-gent, liquidated, unsecured debts that aggregate less than $100,000 and non-contingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11" }, { "docid": "16169867", "title": "", "text": "one bankruptcy case open at any time (see, e.g. In re Lord, 295 B.R. 16 (Bankr.E.D.N.Y.2003)), other courts permit a debtor to file a Chapter 13 petition after the Chapter 7 discharge has been entered, but before the Chapter 7 case is officially closed. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993). See also, In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); In re Tauscher, 26 B.R. 99 (Bankr.E.D.Wis., 1982); In re Robinson, 18 B.R. 891 (Bankr.D.Conn.1982); In re Saylors, 869 F.2d 1434 (11th Cir.1989). The courts which follow the minority rule focus on the rehabilitative purpose behind Chapter 13 filings and reason that “administrative hurdles, including the trustee’s delay in filing the final report after the entry of the discharge, are beyond the debtor’s control and, thus, should not defeat the legislative intent behind Chapter 13.” Id., 156 B.R. at 356. In rejecting a per se prohibition against simultaneous filings, these courts assess the propriety of the Chapter 13 in light of the standards applicable to confirmation of Chapter 13 plans, particularly the debtors good faith. Saving the issue of whether the debtor’s subsequent filing is in good faith for the confirmation hearing preserves the legislative goals of Chapter 13 and safeguards the bankruptcy process from bad faith filings. ‘The good faith requirement of 11 U.S.C. § 1325(a)(3) is sufficient to prevent undeserving debtors from using this procedure, yet does not also prevent deserving debtors from using the procedure’. In re Saylors, 869 F.2d 1434, 1436 (emphasis in original). Hodurski, 156 B.R. at 356 (additional citations omitted). While recognizing that simultaneous filings may in some cases be indicative of bad faith, “the Court [can] determine this issue in the context of objections to confirmation of the Chapter 13 plan or at some other appropriate time, such as the hearing on a motion for relief from stay when the likelihood of a successful reorganization is at issue. See 11 U.S.C. § 362(d)(2).” Hodurski 156 B.R. at 356. Courts which hold that a Chapter 13 case may be filed while a Chapter 7 case is still pending also note that the existence of" }, { "docid": "16169868", "title": "", "text": "Saving the issue of whether the debtor’s subsequent filing is in good faith for the confirmation hearing preserves the legislative goals of Chapter 13 and safeguards the bankruptcy process from bad faith filings. ‘The good faith requirement of 11 U.S.C. § 1325(a)(3) is sufficient to prevent undeserving debtors from using this procedure, yet does not also prevent deserving debtors from using the procedure’. In re Saylors, 869 F.2d 1434, 1436 (emphasis in original). Hodurski, 156 B.R. at 356 (additional citations omitted). While recognizing that simultaneous filings may in some cases be indicative of bad faith, “the Court [can] determine this issue in the context of objections to confirmation of the Chapter 13 plan or at some other appropriate time, such as the hearing on a motion for relief from stay when the likelihood of a successful reorganization is at issue. See 11 U.S.C. § 362(d)(2).” Hodurski 156 B.R. at 356. Courts which hold that a Chapter 13 case may be filed while a Chapter 7 case is still pending also note that the existence of a Chapter 13 case does not interfere with the Chapter 7 Trustee’s ability to administer the Chapter 7 estate. As the Court stated in In re Tauscher, 26 B.R. at 100: Over the years, there has been a truism in bankruptcy circles that a debtor cannot have two bankruptcy cases pending at the same time, and the court was itself concerned with the fact that Tauscher’s present chapter' 13 petition was filed prior to the closing of the earlier chapter 7 case. Aside from the questions of good faith or possibly abuse of process, however, the court has been unable to conceive of any legal or practical reason, and none has been suggested to it, as to why he should be barred from so filing. Under the Bankruptcy Act of 1989 (§§ 656(a)(3) and 14(c)(5)), his recent bankruptcy discharge would have barred him from obtaining confirmation of this composition plan, but that is not the case under the new Bankruptcy Code. See § 1325. Tauscher is in no wise involved in the preceding chapter 7" }, { "docid": "6753898", "title": "", "text": "chapter 7, receive his or her discharge, and then file a second petition under chapter 13 to reorganize the debts which have not been discharged although certain administrative acts of the chapter 7 case such as the trustee’s filing of a final report have not already been completed. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993); In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); Frenz, 142 B.R. at 614 n. 2 (citing cases). While the majority view may be viewed as an absolutist position, the minority view does run the risk of making available “an easy avenue for abuse of the bankruptcy system” that would allow debtors to file multiple cases if they do not achieve their intended goal in a particular case. In re Bodine, 113 B.R. 134, 135 (Bankr.W.D.N.Y.1990). Despite these courts’ differences as to the propriety of simultaneous filings, there is universal agreement among them that where a debtor files for chapter 7 relief and then files for protection under chapter 13 before receiving a discharge in the original chapter 7 case, that the chapter 13 case is a nullity because the filing of simultaneous petitions is “contrary to the obvious contemplated function of the Bankruptcy Code to resolve a debtor’s financial affairs by administration of a debtor’s property as a single estate under a single chapter within the code.” In re Kosenka, 104 B.R. 40, 46 (Bankr.N.D.Ind.1989) (quoting Associates Fin'l Services Corp. v. Cowen (In re Cowen), 29 B.R. 888, 894-95 (Bankr.S.D.Oh.1983)). See also, Hodurski, 156 B.R. 353 (after learning that a debtor had filed a chapter 13 petition before receiving his chapter 7 discharge, the court sua sponte issued an order to show cause to dismiss the chapter 13 case). What is especially noteworthy in the Ko-senko case is the fact that the bankruptcy judge consolidated two motions to dismiss the petitions of the two unrelated chapter 13 debtors, Kosenka and Parduhn, both of whom had previously filed chapter 7 peti tions. Because Kosenka had filed his chapter 13 petition prior to receiving a discharge in his chapter 7 case, the judge dismissed his case. However, the" }, { "docid": "10696715", "title": "", "text": "cases involving related debtors, as implying that simultaneous filings by the same debtor under different Chapters of the Code are permissible. This Court agrees with the Trustee that no such inference may be drawn from Bankruptcy Rule 1015, which, as the Advisory Committee Note states, is applicable when the debtor is named in both voluntary and involuntary petitions; when related debtors have filed petitions which should be consolidated or jointly administered; when two or more involuntary petitions are filed against the same debtor, or in similar circumstances. Neither Bankruptcy Rule 1015, nor any provision of the Bankruptcy Code addresses the propriety of simultaneous cases under different Chapters with regard to the same debtor, nor does the absence of such a provision imply that Congress permitted such cases. Lacking statutory guidance on this issue, the courts have split in two camps. The majority of courts to address this issue have ruled that only one bankruptcy case may be pending at a time and for a given debtor. E.g., In re Fulks, 93 B.R. 274, 275 (Bankr.M.D.Fla.1988); In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okl.1988); In re Barnes, 231 B.R. 482, 483-485 (E.D.N.Y.1999); In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984). This view, adopted by the Bankruptcy Appellate Panel of the Second Circuit in In re Turner, 207 B.R. 373, 378 (2d Cir. BAP 1997), holds that “a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code.” Under this view, a debtor is barred from filing a Chapter 13 petition before the Chapter 7 case is closed, even if the debtor has already received a discharge in the Chapter 7 case. A minority of courts, however, have declined to adopt a per se rule against such simultaneous filings and have permitted a debtor to file a second petition under Chapter 13 to reorganize the debts that have survived the Chapter 7 discharge, before the closing of the Chapter 7 case, provided the debtor had already received the Chapter 7 discharge. In re Hodurski," }, { "docid": "16449233", "title": "", "text": "FmHA argues that based on the rule of Freshman, the only question remaining is whether the bankruptcy court correctly determined that two actions were pending when it dismissed the debtors’ Chapter 12 petition. Despite the lack of statutory authority for its argument FmHA’s position is not without legal support. A number of cases have considered the question of whether a debtor may maintain two simultaneous bankruptcy cases in connection with Chapter 13 cases filed after receiving a discharge in a Chapter 7. There is a split of authority with respect to whether a debtor may file a Chapter 13 on the heels of a Chapter 7. The majority of courts have held that the filing of a Chapter 13 while a Chapter 7 case is pending violates the Supreme Court’s holding in Freshman. See In re Borg, 105 B.R. 56, 58 (Bankr.D.Mont.1989); In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okla.1988); In re Belmore, 68 B.R. 889, 891 (Bankr.M.D.Pa.1987); Prudential Ins. Co. of America v. Colony Square, Co., 40 B.R. 603, 605 (Bankr.N.D.Ga.1984), aff'd, sub nom. In re Colony Square, Co., 62 B.R. 48 (N.D.Ga.1985); In re Stahl, Asano, Shigetomi & Associates, 7 B.R. 181, 186 (Bankr.D.Hawaii 1980). There is an emerging minority view that a debtor who has received a Chapter 7 discharge is not prohibited from filing a subsequent case under Chapter 13 even though the Chapter 7 case remains open. See In re Saylors, 869 F.2d 1434, 1437-38 (11th Cir.1989); In re Kosenka, 104 B.R. 40, 43-44 (Bankr.N.D.Ind.1989) (and the cases cited therein); In re Strause, 97 B.R. 22, 26-30 (Bankr.S.D.Cal.1989) (and the cases cited therein); In re Brown, 51 B.R. 284, 285 (Bankr.D.C.1985); In re Nimai Kumar Ghosh, 38 B.R. 600, 603-04 (Bankr.E.D.N.Y.1984); In re Bumpass, 28 B.R. 597, 599 (Bankr.S.D.N.Y.1983); In re Tauscher, 26 B.R. 99, 102-03 (Bankr.E.D.Wis.1982); In re Robinson, 18 B.R. 891, 893 (Bankr.D.Conn.1982). Most of the cases in the majority rely on Freshman, and state a per se rule that two cases cannot be pending at the same time. In Freshman, the debtor filed a bankruptcy in 1915. The debtor applied for a" }, { "docid": "10696718", "title": "", "text": "26 B.R. 99, 101 (Bankr.E.D.Wis.1982). Rather than prohibiting the filing of Chapter 13 petitions during the pendency of the Chapter 7 case, the minority line of cases assesses the propriety of the Chapter 13 case in light of the “good faith” standards by which “serial Chapter 20” filings are evaluated. In re Hodurski, 156 B.R. at 356-57; In re Tauscher, 26 B.R. at 101; In re Strause, 97 B.R. at 28; In re Kosenka, 104 B.R. at 51; In re Saylors, 869 F.2d at 1438; In re Bumpass, 28 B.R. 597 (Bankr.S.D.N.Y.1983). This Court agrees with the majority rule articulated in In re Turner. There, the Bankruptcy Appellate Panel for the Second Circuit, faced with debtors who filed a Chapter 13 petition four days before the foreclosure sale of their home was to take place, and following the unopposed lifting of the stay of their pending Chapter 7 case, analyzed both the majority and minority rule on the permissibility of “simultaneous Chapter 20” filings, and observed as follows: While the majority view may be viewed as an absolutist position, the minority view does run the risk of making available “an easy avenue for abuse of the bankruptcy system” that would allow debtors to file multiple cases if they do not achieve their intended goal in the particular case. H« H« H* Hi ‡ H* The existence of multiple cases may indicate an exploitation of the bankruptcy process and an attempt at reimposing the automatic stay after it had been previously lifted. In the case of simultaneous filings, this is especially likely since a debtor in most instances has an absolute right of conversion during the pendency of the case, obviating the need for a second filing. The only rationale for not converting an open case and filing a new petition is the creation of a new automatic stay. Consequently, by initiating a new case, the [debtor] effectively frustrated the stay relief .... Id. at 379 (Citations omitted). Other courts have also voiced concerns regarding the potential for abuse of the Bankruptcy Code in permitting “simultaneous Chapter 20” filings, particularly where" }, { "docid": "4728620", "title": "", "text": "first six years following the receipt of another discharge in bankruptcy does not apply to a chapter 13 petition filed after the receipt of a bankruptcy discharge. The Court reasoned that the application of the six-year bar to chapter 13 plans would prevent deserving debtors from utilizing the plans and thereby collide with the purpose of Congress in adopting and designing these plans. Id. at 399 and n. 6, 86 S.Ct. at 857 and n. 6. We similarly are convinced that barring a debtor, as a matter of law, from filing a chapter 13 petition during the period at issue would collide with the purpose of Congress in adopting and designing chapter 13 plans. A chapter 7 trustee has the duty to ‘close the estate as expeditiously as is compatible with the best interests of parties in interest.’ 11 U.S.C. § 704(1). As a practical matter, however, the trustee often cannot fully close the estate until a considerable time has elapsed since the chapter 7 discharge. A rule barring all debtors from taking advantage of chapter 13 during this period could defeat Congress’s intent to the same extent as would a flat six-year prohibition. Jim Walter Homes, Inc. v. Saylors (In re Saylors), supra, 869 F.2d at 1437-38 (11th Cir.1989) (footnotes omitted). In Helbock v. Strause (In re Strause), 97 B.R. 22 (Bkrtcy.S.D.Cal.1989), Bankruptcy Judge Bowie sets forth an excellent decision for the emerging minority that hold a debtor who has received a discharge in a case under Chapter 7 is not prohibited from filing a subsequent case under Chapter 13 although the Chapter 7 case remains technically open. Bankruptcy Judge Bowie correctly points out the fallacy of most of the Courts within the majorities’ camp — their misinterpretation and misapplication of the correct holding by the Supreme Court in Freshman v. Atkins, supra. In Freshman, the referee recommended that the debtor’s application for a discharge be denied. For some reason, the District Court never acted on the referee’s report. The matter remained dormant until 1922, when the debtor filed a second voluntary petition. He sought and obtained a favorable" }, { "docid": "10696716", "title": "", "text": "In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okl.1988); In re Barnes, 231 B.R. 482, 483-485 (E.D.N.Y.1999); In re Heywood, 39 B.R. 910, 911 (Bankr.W.D.N.Y.1984). This view, adopted by the Bankruptcy Appellate Panel of the Second Circuit in In re Turner, 207 B.R. 373, 378 (2d Cir. BAP 1997), holds that “a debtor possesses only one estate for the purpose of trusteeship and each bankruptcy must be administered as a single estate under a single chapter of the Bankruptcy Code.” Under this view, a debtor is barred from filing a Chapter 13 petition before the Chapter 7 case is closed, even if the debtor has already received a discharge in the Chapter 7 case. A minority of courts, however, have declined to adopt a per se rule against such simultaneous filings and have permitted a debtor to file a second petition under Chapter 13 to reorganize the debts that have survived the Chapter 7 discharge, before the closing of the Chapter 7 case, provided the debtor had already received the Chapter 7 discharge. In re Hodurski, 156 B.R. 353 (Bankr.D.Mass.1993); In re Kosenka, 104 B.R. 40 (Bankr.N.D.Ind.1989); In re Saylors, 869 F.2d 1434 (11th Cir.1989); Helbock v. Strause (In re Strause), 97 B.R. 22 (Bankr.S.D.Cal.1989). The minority is concerned that although a Chapter 7 trustee has the duty to “close the estate as expeditiously as is compatible with the best interests of parties in interest” pursuant to Section 704(1) of the Bankruptcy Code, the debtor should not be subject to completion of “administrative hurdles” by the Chapter 7 Trustee, such as the filing of the final report, which are “beyond the debtor’s control”, before being able to file the Chapter 13 petition and propose a plan. In re Hodurski, 156 B.R. 353, 356 (Bankr.D.Mass.1993) (citing In re Saylors, 869 F.2d at 1438). Thus, where simultaneous Chapter 7 and Chapter 13 petitions relate to different assets and different debts, the minority finds that a court may properly entertain simultaneous cases for the same debtor. See In re Strause, 97 B.R. at 27-30; In re Kosenka, 104 B.R. at 51; In re Tauscher," }, { "docid": "16449238", "title": "", "text": "the new debts scheduled in the second petition were discharged, notwithstanding the “pending” first proceeding. Second, in 1938 the Congress amended the applicable law through the Chandler Act. The amendments specifically changed the requirement of applying for a discharge within a specific period of time. As noted by the Second Circuit: Section 14 was amended in 1938 to provide that a petition in bankruptcy filed by any person except a corporation is to be considered an application for a discharge. 11 U.S.C.A. § 32, sub. a. The court then has the duty to fix a time for filing objections to discharge, with notice given to all interested parties. If no objections are filed, the discharge is automatically granted. Perlman v. 322 West Seventy-Second Street Co., 127 F.2d 716, 717 (2nd Cir.1942). See also In re Frey, 95 F.Supp. 1007, 1008 (S.D.N.Y.1951). By the amendment, the rationale for the decision in Freshman v. Atkins was removed, because a failure to apply for a discharge within a specified time no longer constituted a denial of discharge which was res judicata as to the debts listed in the first proceeding. Strause, 97 B.R. at 26; accord In re Kosenka, 104 B.R. 40, 44-45 (Bankr.N.D.Ind.1989) (holding that after a Chapter 7 discharge has been granted the debtor is not barred as a matter of law from filing a Chapter 13 petition); In re Brown, 51 B.R. 284, 285 (Bankr.D.D.C.1985) (finding that the rule of Freshman prohibiting two suits at the same time is distinguishable because the later filed Chapter 13 seeks entirely different relief from that which has already been obtained in the Chapter 7 case). The only circuit court to directly address the issue is In re Saylors, 869 F.2d 1434 (11th Cir.1989). In Saylors, the debtor filed a Chapter 13 petition after receiving a Chapter 7 discharge but prior to the closing of the Chapter 7 case. The Eleventh Circuit held: The district court also concluded that, as a matter of law, Saylors did not propose his chapter 13 plan in good faith. Two factors had a significant influence on the court" } ]

[ { "docid": "13819995", "title": "", "text": "Mr. Justice Douglas. Applicant has been sentenced to three years’ imprisonment after conviction of one charge each for violating Articles 90, 133, and 134 of the Uniform Code of Military Justice, 10 U. S. C. §§ 890, 933, 934. He has exhausted all of his military remedies and has now filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania. He seeks release on bail pending determination of the merits. The District Court, the Court of Appeals, and the Circuit Justice, Mr. Justice Brennan, have each denied bail. This application to me therefore carries a special burden, for we very seldom grant an order that has been denied by the Circuit Justice. Indeed the practice is to refer such renewed application to the full Conference of this Court. We are now in recess and widely scattered; hence referral to the Conference is not immediately possible. Some of the problems tendered seem substantial to me. One charge on which applicant stands convicted rests on Article 134 which makes a crime “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” In O’Callahan v. Parker, 395 U. S. 258, which the lower courts did not have before them when they denied bail, we reserved decision on whether Article 134 satisfies the standards of vagueness required by due process. Apart from the question of vagueness is the question of First Amendment rights. While in the Armed Services, applicant spoke out against the war in Vietnam. The extent to which First Amendment rights available to civilians are not available to servicemen is a new and pressing problem. It is true that applicant’s sentence will expire on August 14, 1969. But in light of Carafas v. LaVallee, 391 U. S. 234, I would not think that the running of the sentence would moot the petition for habeas corpus. A live controversy will continue; and I have concluded that this applicant should be released on bail until the full Court can pass on the application. For, in my view, substantial issues" } ]

[ { "docid": "18689863", "title": "", "text": "pending the filing of a petition for certiorari in the Supreme Court of the United States. Rule 41(b) of the Federal Rules of Appellate Procedure authorizes a court of appeals to issue such a stay. Relief is not, however, a matter of right but of sound judicial discretion. The rule in its present form does not set forth the criteria that ought to guide the exercise of that discretion. Our local rules simply require that a “substantial showing” be made that the petition for certiorari will raise “an important question meriting review by the Supreme Court.” Cir.R. 41(a)(3). The foremost treatise in this area states that “[a] stay is a form of temporary injunction, and in general is governed by the same principles, modified to some extent because the application is made after the case has already been lost in at least one court.” ROBERT L. Stern et al„ Supreme CouRT PRACTICE § 17.19 (6th ed. 1986). Therefore, the inquiry must center on whether the applicant will suffer irreparable injury and whether the applicant has a reasonable probability of succeeding on the merits. In the context of a petition for a writ of certiorari, this second criteria requires, as our local rule indicates, albeit somewhat laconically, an estimation as to whether there is a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five will vote to reverse the judgment of this court. Justice Brennan discussed the interrelationship of these factors in his chambers opinion in Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 3, 65 L.Ed.2d 1098 (1980): Relief ... is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct_ In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a “reasonable probability” that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note" }, { "docid": "10245381", "title": "", "text": "U. S. 1301, 1305 (1974) (Powell, J., in chambers) (requiring “significant possibility of reversal” in order to grant stay). Judicial consideration of applicants’ constitutional claim appears precluded at this point by the language of § 307 (b) (2) of the Act, 42 U. S. C. § 1857h-5 (b) (2)\". While this Court has granted certiorari in Adamo Wrecking Co. v. United States, 430 IT. S. 953 (1977), in part to consider the validity of § 307 (b) (2)’s preclusion of defenses in a criminal context, applicants do not argue that any analogous considerations would make § 307 (b) (2) invalid as applied in this civil case. Applicants’ Tenth Amendment contentions are based on alleged similarities between this case and EPA v. Brown, supra, but the fact that New York promulgated its own Plan makes this case significantly different from Brown and, in my view, renders insubstantial the Tenth Amendment issue here. Finding neither a balance of irreparable harm in favor of applicants nor a likelihood that four Justices will vote to grant a writ of certiorari, I am compelled to deny the application for a stay." }, { "docid": "14663227", "title": "", "text": "it has been seriously undermined by the evidence, presented to the District Court, that his diary transcripts and tapes have been altered. Regardless of the scope of respondent’s initial inquiry, surely respondent has the authority to investigate attempts to obstruct that inquiry, and the evidence of tampering very likely renders all of the requested diary entries relevant to that investigation. Applicant next asserts that the subpoena violates his Fourth Amendment right to privacy. The District Court, relying on our decisions in O’Connor v. Ortega, 480 U. S. 709 (1987), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977), balanced applicant’s privacy interests against the importance of the governmental interests. The court concluded that the latter outweighed the former. Applicant does not quarrel with the legal standard applied by the District Court, only with its conclusion. Because this claim thus also involves only a factbound determination, I do not think certiorari would be granted to review it. Finally, applicant argues that the subpoena violates his Fifth Amendment protection against self-incrimination. He relies primarily on Boyd v. United States, 116 U. S. 616 (1886), and argues that the Courts of Appeals are in conflict as to whether Boyd remains controlling with regard to the production of private papers. We recently denied a petition for certiorari raising this precise issue. See Doe v. United States, ante, p. 1091. Our recent denial demonstrates quite clearly the unlikelihood that four Justices would vote to grant review on this issue. See South Park Independent School Dist. v. United States, 453 U. S. 1301, 1304 (1981) (Powell, J., in chambers) (denying stay application because it raised issues “almost identical to those presented three years ago, when the Court voted to deny certiorari”). Accordingly, the request for a stay is denied." }, { "docid": "17992320", "title": "", "text": "obtain the information he seeks by deposing the hearing witnesses. The hardship that this would impose— although not negligible — does not outweigh the unpalatable choice that civil contempt would impose upon the applicant. Finally, even respondent’s burden of gomg forward without the desired cooperation of the applicant can be alleviated by an agreement with the Commission to continue disciplinary proceedings until resolution of applicant’s petition for a writ of certiorari. Having decided that a stay pending a timely petition for writ of certiorari and disposition thereof is warranted, I have today entered an order continuing my stay of enforcement of the order of the single justice of July 10, 1980, adjudicating applicant Roche in civil contempt. In Rostker, my evaluation of the “fair prospect” for reversal of the decision below was conducted in the context of a direct appeal. Where review is sought by the more discretionary avenue of writ of certiorari, however, the consideration of prospects for reversal dovetails, to a greater extent, with the prediction that four Justices will vote to hear the case. Thus, it may be that the “fair prospect”-of-reversal criterion has less independent significance in a stay determination when review will be sought by way of certiorari. The opinions in chambers denying the requested stay in New York Times Co. v. Jascalevich on the basis of the unlikelihood of review turned not upon the general meritlessness of a newsman’s privilege, but more particularly upon the improbability that such a privilege would be applied to preclude in camera inspection of papers by a judge. 439 U. S., at 1322-1323 (White, J.); 439 U. S., at 1337 (Marshall, J.); see United States v. Nixon, 418 U. S. 683 (1974). Respondent also suggests that Herbert v. Lando, 441 U. S. 153, 167-169 (1979), contradicts any assertion of a newsman’s privilege. That decision, however, dealt with discovery of editorial processes when the collective state of mind of a news organization was directly in issue in a suit against that organization. Civil contempt proceedings such as these — against a nonparty and colored by First Amendment overtones — are" }, { "docid": "17992316", "title": "", "text": "contempt order. The adjudication of contempt was affirmed by the full Supreme Judicial Court on July 16, and the next day Justice Kaplan ordered that the stay of civil contempt sanctions be vacated on July 21. Upon application to me as Circuit Justice, I entered an interim order continuing the stay pending filing of a response and further order of the Circuit Justice or this Court. Only recently, I have had occasion to review the principles that guide a Circuit Justice’s determination of stay applications. Rostker v. Goldberg, ante, p. 1306. Generally, a stay will issue upon a four-part showing that (1) there is a “reasonable probability” that four Justices will find the issue sufficiently substantial to grant certiorari; (2) there is a “fair prospect that a majority of the Court will conclude that the decision below was erroneous,” ante, at 1308; Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (POWELL, J., in chambers); (3) irreparable harm to applicant is likely to result if the request for a stay is denied; and (4) the “balance of equities” — to the parties and to the public — favors the issuance of a stay. Predicting the probability of a grant of certiorari and of a reversal of the decision below in this case is an uncertain undertaking. The question of a newsman’s privilege to conceal sources is not a matter of first impression. Branzburg v. Hayes, 408 U. S. 665 (1972), held that the First Amendment does not provide newsmen with an absolute or qualified testimonial privilege to be free of relevant questioning about sources by a grand jury. More recently, two of my Brethren found the prospects for review by the full Court insufficient to warrant staying contempt proceedings against a New York Times reporter for his failure to submit documents to in camera judicial inspection in compliance with a subpoena for those documents by the defendant in a murder trial. New York Times Co. v. Jascalevich, 439 U. S. 1317 (1978) (White, J., in chambers); New York Times Co. v. Jascalevich, 439 U. S. 1331 (1978) (Marshall," }, { "docid": "17992318", "title": "", "text": "J., in chambers). At the same time, there is support for the proposition that the First Amendment interposes a threshold barrier to the subpoenaing of confidential information and work product from a newsgatherer. Four dissenting Justices in Branzburg discerned at least some protection in the First Amendment for confidences garnered during the course of newsgathering. 408 U. S., at 721 (Douglas, J., dissenting); id., at 744-747 (Stewart, J., dissenting, joined by Brennan and Marshall, JJ.). And Mr. Justice Powell, who joined the Court in Branzburg, wrote separately to emphasize that requests for reporter’s documents should be carefully weighed with due deference to the “vital constitutional and societal interests” at stake. Id., at 710. Consequently, I do not believe that the Court has foreclosed news reporters from resisting a subpoena on First Amendment grounds. Assuming that there is at least a limited First Amendment right to resist intrusion into newsgatherers’ confidences, this case presents an apt occasion for its invocation. As determined by Justice Kaplan below, respondent judge could have obtained the information sought from the applicant by other adequate — albeit somewhat roundabout — methods. Thus, this case does not present a question of necessity for the confidences subpoenaed. What is ranged against the asserted First Amendment interests of the applicant is essentially respondent’s convenience. If I am correct, therefore, that a majority of the Court recognizes at least some degree of constitutional protection for newsgatherers’ confidences, it is reasonably probable that four of my Brothers will vote to grant certiorari, and there is a fair prospect that the Court will reverse the decision below. Turning to consider the irreparable harm of the applicant in the absence of a stay, and to weigh the “balance of equities,” I conclude that these favor the continuation of the stay below pending a petition for writ of certiorari and disposition thereof. Without such a stay, applicant must either surrender his secrets (and moot his claim of right to protect them) or face commitment to jail. If the stay remains in force, on the other hand, the judge subject to the disciplinary inquiry can" }, { "docid": "10245377", "title": "", "text": "grounds for the Court of Appeals’ holding. II In deciding whether to grant a stay pending disposition of a petition for certiorari, the Members of this Court use two principal criteria. First, “a Circuit Justice should ‘balance the equities’. . . and determine on which side the risk of irreparable injury weighs most heavily.” Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers). Second, assuming a balance of equities in favor of the applicant, the Circuit Justice must also determine whether “it is likely that four Members of this Court would vote to grant a writ of certiorari.” Id., at 1310. The burden of persuasion as to both of these issues rests on the applicant, and his burden is particularly heavy when, as here, a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals. See Magnum Import Co. v. Coty, 262 U. S. 159, 163-164 (1923); Board of Education v. Taylor, 82 S. Ct. 10, 10-11 (1961) (Brennan, J., in chambers); cf. Holtzman v. Schlesinger, supra, at 1314-1315 (“great weight” given to decision by Court of Appeals to grant stay). Applicants have not met their burden of showing a balance of hardships in their favor. Were the injury to the City from implementation of the Plan as severe as applicants now claim, one would think that they would have filed their petition for certiorari with dispatch, so that this matter could have been resolved by the entire Court prior to the June 29, 1977, conclusion of the 1976 Term. Instead, applicants waited the maximum time, 90 days, after the Court of Appeals denied rehearing and rehearing en banc before filing their petition on June 2, 1977. In the interim, they did not seek any stay of the Court of Appeals’ judgment and the ensuing District Court order; they first sought such a stay in the District Court a full 20 days after filing their certiorari petition. The applicants’ delay in filing their' petition and seeking a stay vitiates much of the force of their allegations of irreparable" }, { "docid": "22758056", "title": "", "text": "not here express any views on the propriety of broadcasting court proceedings generally. Instead, our review is confined to a narrow legal issue: whether the District Court’s amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court’s actions. We therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature. A To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent. Lucas v. Townsend, 486 U. S. 1301, 1304 (1988) (Kennedy, J., in chambers); Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). To obtain a stay pending the filing and disposition of a petition for a writ of mandamus, an applicant must show a fair prospect that a majority of the Court will vote to grant mandamus and a likelihood that irreparable harm will result from the denial of a stay. Before a writ of mandamus may issue, a party must establish that (1) “no other adequate means [exist] to attain the relief he desires,” (2) the party’s “right to issuance of the writ is ‘clear and indisputable,’ ” and (3) “the writ is appropriate under the circumstances.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380-381 (2004) (some internal quotation" }, { "docid": "23089880", "title": "", "text": "benefits to all applicants until she establishes their lack of disability through hearings complying with Patti and Finnegan. My obligation as a Circuit Justice in considering the usual stay application is “to determine whether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities/ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers). The Secretary’s stay application does not come to me in the posture of the usual application, however. The Secretary does not ask me to stay the judgment of the Court of Appeals pending the disposition of a petition for certiorari in this Court. She asks instead that I grant a stay of the District Court’s judgment pending appeal to the Ninth Circuit when the Ninth Circuit itself has refused to issue the stay. Although there is no question that I have jurisdiction to grant the Secretary’s request, it is also clear that “‘a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted.’” Atiyeh v. Capps, 449 U. S. 1312, 1313 (1981) (Rehnquist, J., in chambers) (citation omitted); see O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers). For the reasons I am about to set out, I believe that the present case is sufficiently unusual to warrant the relief sought. Ordinarily, in an action for an injunction, the decision of the court on the “merits” will be of greater concern to a re viewing court than the particular provisions of an injunction, which are primarily entrusted to the discretion of the district court. In this case, however, I believe that the scope of the District Court’s injunction would prompt review of the injunction by at least four Members of this Court should the Court of Appeals affirm it without modification. I believe this is true even though I assume that the Court of Appeals for the Ninth Circuit will certainly follow its" }, { "docid": "14663224", "title": "", "text": "Chief Justice Rehnquist, Circuit Justice. Applicant Senator Bob Packwood requests that I grant a stay pending appeal to the Court of Appeals for the District of Columbia Circuit of a decision by the District Court enforcing the subpoena duces tecum issued by respondent Senate Select Committee on Ethics. The Court of Appeals recently, and unanimously, denied his emergency motion for a stay pending appeal. The criteria for deciding whether to grant a stay are well established. An applicant must demonstrate: (1) a reasonable probability that four Justices would vote to grant certiorari; (2) a significant possibility that the Court would reverse the judgment below; and (3) a likelihood of irreparable harm, assuming the correctness of the applicant’s position, if the judgment is not stayed. Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1302 (1991) (Scalia, J., in chambers). Because this matter is pending before the Court of Appeals, and because the Court of Appeals denied his motion for a stay, applicant has an especially heavy burden. “When a matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only ‘upon the weightiest considerations.’” Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O’Connor, J., concurring in denial of stay application) (quoting O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d, 615, 616 (1960) (Harlan, J., in chambers); see also Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers) (a stay applicant’s “burden is particularly heavy when ... a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals”). Applicant raises three challenges to the enforcement of the subpoena. First, he contends that the subpoena is impermissibly broad and seeks information beyond the defined subject matter of the pending Committee investigation. In applicant’s view, the subpoena should have been limited to those documents pertaining to the Committee’s initial inquiry into allegations regarding sexual misconduct; as it stands now, the subpoena," }, { "docid": "10245380", "title": "", "text": "for those with respiratory ailments. See Friends II, 535 F. 2d, at 179-180 (noting that Congress made the decision to put “the lungs and health of the community’s citizens” ahead of some “inconvenience and expense to . . . governmental and private parties” and that the City’s carbon monoxide levels are “over five times the federal health standards”). Finally, if specific aspects of the Plan prove to be onerous or unworkable, applicants are free at any time to seek an accommodation with EPA and a modification of the District Courtis order. Ill I have therefore concluded that the “balance of equities” does not weigh in applicants’ favor. Even if it did, however, I am not persuaded that four Justices of this Court would vote to grant a writ of certiorari in this matter. The Court of Appeals gave alternative rationales for its result, and its opinion as to each appears facially correct. Applicants are thus not “likely to prevail on the merits,” Holtzman v. Schlesinger, supra, at 1311; see Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers) (requiring “significant possibility of reversal” in order to grant stay). Judicial consideration of applicants’ constitutional claim appears precluded at this point by the language of § 307 (b) (2) of the Act, 42 U. S. C. § 1857h-5 (b) (2)\". While this Court has granted certiorari in Adamo Wrecking Co. v. United States, 430 IT. S. 953 (1977), in part to consider the validity of § 307 (b) (2)’s preclusion of defenses in a criminal context, applicants do not argue that any analogous considerations would make § 307 (b) (2) invalid as applied in this civil case. Applicants’ Tenth Amendment contentions are based on alleged similarities between this case and EPA v. Brown, supra, but the fact that New York promulgated its own Plan makes this case significantly different from Brown and, in my view, renders insubstantial the Tenth Amendment issue here. Finding neither a balance of irreparable harm in favor of applicants nor a likelihood that four Justices will vote to grant a writ of" }, { "docid": "3284732", "title": "", "text": "Justice Rehnquist, Circuit Justice. Applicant has filed a motion for bail pending disposition of his petition for writ of certiorari. He was arrested in Los Angeles on May 7, 1980, while attempting to board a nonstop flight to Lima, Peru. Prior to the scheduled departure time, a customs official had announced that anyone taking more than $5,000 currency out of the country was required to file a report with the Customs Service. When stopped on the boarding ramp, applicant acknowledged that he had heard the announcement but denied that he was carrying more than $5,000. He repeated this denial during subsequent questioning, but a search of his person and belongings revealed approximately $29,000 in cash as well as a variety of narcotics paraphernalia. Following a jury trial in the United States District Court for the Central District of California, applicant was convicted of attempted importation of narcotics; making false statements to a Government official, in violation of 18 U. S. C. § 1001; and failing to file a report in connection with the transportation of more than $5,000 outside the United States, in violation of 84 Stat. 1122, 31 U. S. C. § 1101. He was sentenced to concurrent 5-year terms and fined $5,000 each on the first two counts. He received a consecutive 1-year term and a $5,000 fine on the third count. Applicant was freed on bond pending appeal. The Court of Appeals, by a divided vote, affirmed his conviction in all respects, and this application followed. For the reasons explained below, the application is denied. The standards to be applied are well established. Applications for bail to this Court are granted only in extraordinary circumstances, especially where, as here, “the lower court refused to stay its order pending appeal. ” Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers). At a minimum, a bail applicant must demonstrate a reasonable probability that four Justices are likely to vote to grant cer-tiorari. Bateman v. Arizona, 429 U. S. 1302, 1305 (1976) (Rehnquist, J., in chambers). Applicant raises a number of contentions in his petition, none" }, { "docid": "19079142", "title": "", "text": "Appeals for January 16, 1976. In December 1976, the Secretary’s delegate gave notice that he proposed to modify the standard in question, and the Secretary moved in the Ninth Circuit to postpone oral argument until after the modification. The Court of Appeals advised counsel for the Secretary to appear at oral argument on January 16, 1976, as scheduled. Following oral argument, the Court of Appeals entered the following order: “IT IS HEREBY ORDERED that [the motor vehicle safety standard] is stayed for a period of sixty days, this stay to remain in effect thereafter pending further order of this court upon the application of any party.” It is incumbent upon me first to determine whether I have jurisdiction to grant the relief requested by the Secretary. This case does not come before me in the usual posture of a stay application, where a court of appeals has rendered a judgment disposing of a case before it and the losing litigant seeks a stay of the judgment of the court of appeals pending the filing of a petition for certiorari to review that judgment in this Court. There the question is whether four Justices are likely to vote to grant certiorari, and what assessment is to be made of the equities pertinent to the grant of such interim relief. Edelman v. Jordan, 414 U. S. 1301 (1973) (Rehnquist, J., in chambers). Here the Court of Appeals has not finally disposed of the case; indeed, it has not ruled on the merits nor apparently rescheduled oral argument on the question presented by the petition for review of the safety standard. Pursuant to Rules 50 and 51 of this Court I have authority as Circuit Justice to take any action which the full Court might take under 28 U. S. C. § 1651. But even the full Court under § 1651 may issue writs only in aid of its jurisdiction. The Secretary contends that the Court of Appeals’ stay order is the equivalent of a preliminary injunction which, if issued by a three-judge district court, would be reviewable here. Certainly the full Court," }, { "docid": "4535889", "title": "", "text": "a “substantial risk” that disclosure of the documents or the Vaughn index would jeopardize the grand jury proceedings investigating the Corporation. The court therefore ruled that the Agency and the Government Agency were not required to turn over the documents to the Corporation. 850 F. 2d, at 107. The Court of Appeals for the Second Circuit reversed. It held that, because the documents in question were prepared in routine audits and only later transferred to a law enforcement agency, they were not “compiled for law enforcement purposes” within the meaning of §552(b)(7). Id., at 106. The court’s mandate issued on November 28, 1988. On remand, the District Court ordered that the Vaughn index be disclosed, and the Court of Appeals refused to stay that order. The Solicitor General, on behalf of the Agency and the Government Agency, ha“s filed a petition for a writ of certiorari (No. 88-1083) seeking review of the Court of Appeals’ determination that the documents in question were not “compiled for law enforcement purposes.” The Solicitor General seeks a recall and stay, pending the disposition of the petition for a writ of certiorari, of the mandate of the Court of Appeals, and a stay of the District Court’s order on remand requiring disclosure of the Vaughn index. My obligation as a Circuit Justice in considering a stay application under 28 U. S. C. § 2101(f) and this Court’s Rule 44 is “to determine whether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities,’ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School Dist. v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers); see also Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers); Beame v. Friends of the Earth, 434 U. S. 1310, 1312-1313 (1977) (Marshall, J., in chambers). Evaluating these factors, I am convinced that the request for a stay should be granted. First, the balance of the equities clearly weighs in favor of a stay. The District Court, having undertaken an in" }, { "docid": "18501435", "title": "", "text": "our disposition of that petition. Applicant argues that a stay should be granted because “the 56 day limitation will expire before the application for a writ of certiorari can be completed and filed.” He maintains that should this Court deny his yet-to-be filed petition for certiorari he desires to have time remaining to comply with the Court of Appeals’ directive. The 56 days expired on the day applicant filed for this stay. Except in extreme circumstances the Court generally is unable to provide same-day service. While it might be within our jurisdiction to grant a stay retroactively, an applicant detracts from the urgency of his situation where he makes a last-minute claim and offers no explanation for his procrastination. Applicant may be injured if a stay does not issue. Assuming he files a petition for certiorari, unless we grant that petition and reverse the lower court the running of the 56 days will bar applicant from reinstating his appeal by surrendering to the authorities. A stay is appropriate, however, only where there is a reasonable possibility that four Justices of this Court will vote to grant certiorari. See Houchins v. KQED, Inc., 429 U. S. 1341, 1344 (1977) (Rehnquist, J., in chambers); Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers). I do not believe that a reasonable possibility exists here. In Molinaro v. New Jersey, supra, the Court said that while a litigant’s status as a fugitive from justice “does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the [litigant] to call upon the resources of the Court for determination of his claims.” Id., at 366. See also Smith v. United States, 94 U. S. 97 (1876). While this Court has never extended the “fugitive from justice” rule beyond the facts of Molinaro and Smith (i. e., where the criminal conviction from which the litigant is a fugitive is the judgment being challenged on appeal), the court below correctly points out that the Courts of Appeals have done so on a number of occasions. Since we" }, { "docid": "4535890", "title": "", "text": "stay, pending the disposition of the petition for a writ of certiorari, of the mandate of the Court of Appeals, and a stay of the District Court’s order on remand requiring disclosure of the Vaughn index. My obligation as a Circuit Justice in considering a stay application under 28 U. S. C. § 2101(f) and this Court’s Rule 44 is “to determine whether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities,’ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School Dist. v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers); see also Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers); Beame v. Friends of the Earth, 434 U. S. 1310, 1312-1313 (1977) (Marshall, J., in chambers). Evaluating these factors, I am convinced that the request for a stay should be granted. First, the balance of the equities clearly weighs in favor of a stay. The District Court, having undertaken an in camera review of the Vaughn index and other documents, specifically found that disclosure of the Vaughn index and the documents posed a substantial risk of jeopardizing an important ongoing grand jury investigation. The Court of Appeals did not disturb this finding, basing its judgment for the Corporation instead on its determination that Exemption 7 mandated release of the documents. The Solicitor General further supports this interest by proffering an affidavit from an Assistant United States Attorney; the affidavit states that disclo sure can reasonably be expected ta interfere with an ongoing law enforcement investigation by apprising the targets of that investigation of the nature of the grand jury’s inquiry and by facilitating hindrance of the investigation. The fact that disclosure would moot that part of the Court of Appeals’ decision requiring disclosure of the Vaughn index would also create an irreparable injury. See New York v. Kleppe, 429 U. S. 1307, 1310 (1976) (Marshall, J., in chambers) (“Perhaps the most compelling justification for a Circuit Justice to upset an interim decision by a court of" }, { "docid": "21914923", "title": "", "text": "persuades me that the harm to applicant if the stay is denied, in the form of a substantial lessening of competition in the relevant market, outweighs the harm respondents may suffer as a result of a stay of the mandate. Applicant alleges, for example, that permitting the merger would cost the State’s consumers $400 million a year in higher prices. Respondents contend that they are incurring costs of over $1 million a week by reason of the District Court’s injunction and applicant’s decision to file suit after the merger had been consummated. To be sure, the cost of enjoining a merger before consummation is staggering, see Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1309 (1987) (O’Connor, J., in chambers), and the cost of enjoining an already completed transaction even greater. But, as the District Court found, “the State conducted [its] investigation as swiftly as was responsibly possible.” 697 F. Supp., at 1135. Under the circumstances, and in light of the public interests involved, it appears that the equities favor applicant. Because the citizens of California will likely suffer irreparable harm if integration of respondents’ companies is not enjoined, and because there is both a reasonable probability that at least four Justices will vote to grant the petition for a writ of certiorari and a fair prospect that applicant may prevail on the merits, I grant the requested stay of the mandate of the United States Court of Appeals for the Ninth Circuit in this case, pending the disposition by this Court of the petition for a writ of certiorari or further order of this Court. This order is conditioned upon the posting of a good and sufficient bond with the Clerk of the United States District Court for the Central District of California, the adequacy of such bond to be determined by that court. American Stores initiated a hostile takeover bid for the Lucky chain on March 21, 1988. Pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1390, 15 U. S. C. § 18a, American Stores notified the Federal Trade Commission (FTC) of its intentions." }, { "docid": "18501436", "title": "", "text": "possibility that four Justices of this Court will vote to grant certiorari. See Houchins v. KQED, Inc., 429 U. S. 1341, 1344 (1977) (Rehnquist, J., in chambers); Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers). I do not believe that a reasonable possibility exists here. In Molinaro v. New Jersey, supra, the Court said that while a litigant’s status as a fugitive from justice “does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the [litigant] to call upon the resources of the Court for determination of his claims.” Id., at 366. See also Smith v. United States, 94 U. S. 97 (1876). While this Court has never extended the “fugitive from justice” rule beyond the facts of Molinaro and Smith (i. e., where the criminal conviction from which the litigant is a fugitive is the judgment being challenged on appeal), the court below correctly points out that the Courts of Appeals have done so on a number of occasions. Since we have denied certiorari in this type case in the past, I do not believe it likely that applicant’s petition will be granted. See, e. g., Doyle v. Department of Justice, supra. For these reasons the application is denied. While applicant alleges injury in his request for a stay, he does not set forth a legal argument on the merits. Thus, the application could be denied for applicant’s failure to carry his burden of overcoming the presumptive correctness of the Court of Appeals’ decision. Whalen v. Roe, 423 U. S. 1313, 1316 (1975) (Marshall, J., in chambers). Applicant’s failure to seek a stay in the Court of Appeals provides an alternative ground for denial of the stay. “An application for a stay or injunction to a Justice of this Court shall not be entertained, except in the most extraordinary circumstances, unless application for the relief sought first has been made to the appropriate court or courts below, or to a judge or judges thereof.” This Court’s Rule 44.4. Applicant seeks to be excused from his failure" }, { "docid": "14663225", "title": "", "text": "matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only ‘upon the weightiest considerations.’” Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O’Connor, J., concurring in denial of stay application) (quoting O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d, 615, 616 (1960) (Harlan, J., in chambers); see also Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers) (a stay applicant’s “burden is particularly heavy when ... a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals”). Applicant raises three challenges to the enforcement of the subpoena. First, he contends that the subpoena is impermissibly broad and seeks information beyond the defined subject matter of the pending Committee investigation. In applicant’s view, the subpoena should have been limited to those documents pertaining to the Committee’s initial inquiry into allegations regarding sexual misconduct; as it stands now, the subpoena, according to applicant, is tantamount to a general warrant. See Stanford v. Texas, 379 U. S. 476, 480 (1965) (holding that general warrants are clearly forbidden by the Fourth Amendment). As we stated in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209 (1946), determining whether a subpoena is overly broad “cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.” Because resolution of applicant’s claim would entail a factbound determination of the nature and scope of respondent’s investigation, I do not think his claim raises an issue on which four Members of the Court would grant certiorari. Cf. United States v. Nixon, 418 U. S. 683, 702 (1974) (“Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues”). Moreover, whatever merit applicant’s argument may have had initially," }, { "docid": "10245376", "title": "", "text": "to a civil enforcement proceeding. Such an attack could only have been made, the court stated, in a petition for review of the EPA Administrator’s approval of the Plan in 1973 — a time when the City was supporting the Plan. Second, even assuming no statutory preclusion, the court held that the District Court’s Tenth Amendment analysis was in error, because the State here promulgated its own Plan, which thus represented its own policy choices. In the cases involved in EPA v. Brown, supra, by contrast, the EPA had promulgated plans for the States, pursuant to its mandate to do so whenever a State fails to submit a plan or submits an inadequate plan, see § 110 (c)(1) of the Act, 42 U. S. C. § 1857c-5 (c)(1). The Court of Appeals concluded that the federal intrusion into state affairs is much more limited in a case in which the Federal Government sets only goals and the State decides for itself how to reach them. Applicants’ certiorari petition seeks review in this Court of both grounds for the Court of Appeals’ holding. II In deciding whether to grant a stay pending disposition of a petition for certiorari, the Members of this Court use two principal criteria. First, “a Circuit Justice should ‘balance the equities’. . . and determine on which side the risk of irreparable injury weighs most heavily.” Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers). Second, assuming a balance of equities in favor of the applicant, the Circuit Justice must also determine whether “it is likely that four Members of this Court would vote to grant a writ of certiorari.” Id., at 1310. The burden of persuasion as to both of these issues rests on the applicant, and his burden is particularly heavy when, as here, a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals. See Magnum Import Co. v. Coty, 262 U. S. 159, 163-164 (1923); Board of Education v. Taylor, 82 S. Ct. 10, 10-11 (1961) (Brennan, J., in chambers); cf." } ]

[ { "docid": "13000378", "title": "", "text": "at best, of questionable significance. Delchamps’ wage increases were based on its competitors’ wages and not on wages it had previously granted. Although no evidence was presented as to exactly what the competitive rate actually was, Swanson did testify that the increase was required to stay competitive. Of course, Delchamps did not have to pay at exactly the same rate as its competition but it can hardly be argued with a reasonable expectation of acceptance that it did not have to stay somewhere near the ball park. We can perceive no rational basis for the Board’s denial of credibility to Swanson’s testimony. His testimony was undisputed. It was not inherently unreasonable. Presumably, in its far-flung acquaintance with wages ordinarily paid in a given activity, to say nothing of its ability to receive and gather evidence for hearings before an administrative law judge, there would have been no problem about offering contradictory testimony if it existed. The Board simply eliminated Swanson’s testimony by the mere act of declaring it incredible in the face of a finding of credibility by the judge who had heard the testimony, viewed the witness, observed his demeanor, and witnessed his cross-examination. The Board could take this action only if Swanson’s undisputed testimony conflicted with well supported or obvious inferences from the remainder of the record, Russell-Newman Manufacturing Co. v. NLRB, supra, at 249; NLRB v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803, 809; NLRB v. Pyne Molding Corp., 2 Cir. 1955, 226 F.2d 818, 819. No such inferences exist here. Indeed, it must be observed that Swanson’s testimony is supported by the fact that Delchamps granted wage increases to employees at all 44 stores, whereas only 15 stores were involved in a union organizational campaign. See Louisburg Sportswear Co. v. NLRB, supra. Finally, the Board now tries to argue that Delchamps was aware of union activity going on at the time of the November increase. It is clear from examining the record, however, that Swanson, testifying on behalf of Delchamps, was admitting only a general awareness of union activity involving the Delchamps operation during November" } ]

[ { "docid": "7926826", "title": "", "text": "restraint and coercion of its employees. It bases this part of the finding upon three separate circumstances: (1) The employment of Blair and Ekstrand in the Chicago plant, more than a year before the Elgin plant began to operate; (2) the conduct of Voss at the Union meeting of January 3, 1939, eleven days after the discharge of Van Delinder; and (3) the conversation of Havlik, Voss and Franz on the morning of January 4, 1939. The employment of Blair and Ekstrand is relied upon to establish an unfriendly attitude of respondent to union labor at a time more than a year prior to the act here complained of. There is not one word of evidence in this record which tends to prove that these men committed any acts of labor espionage while in the employment of respondent. True, the Board’s rule permitted it, if it so chose, to consider admitted that which was not denied. However, it obviously ignored the rule at the time of the hearing before the Examiner, and attempted by its direct evidence to prove that respondent through Blair and Ekstrand was guilty of espionage. Having failed completely in this attempt, the Board even now relies upon the evidence of its own witness, elicited on cross-examination, to prove that at some other time and place, wholly unrelated to respondent or its business, Blair and Ekstrand were found, by a Senate Committee, to have practiced industrial espionage, and the Board uses this evidence in argument as a basis for inferring that Blair and Ekstrand were likewise guilty of labor espionage during the time they were in the employ of respondent. Under these circumstances we think it would be unfair at this late day to withhold from respondent the benefit of this evidence merely because of a permissive rule, which the Board did not seek to enforce until after the Examiner had heard all the evidence and had made his report. The Board still relies on the evidence thus received, which, if the rule were enforced, was clearly incompetent because immaterial, and yet it denies that benefit to" }, { "docid": "890405", "title": "", "text": "typically higher wages, as it presumably will have to do in order to justify the collection of dues, he will endeavor to compensate for any extra expense of that nature by negotiating for the elimination of benefits the employees have enjoyed in the past, less directly measurable in dollars but contributing to cost, such as providing loans or free coffee breaks, and retention of employees during slow periods — and this even though the employer might be able both to pay higher wages and continue the benefits if he were able to raise his prices or content to reduce his profits. If that be so, it would defy reality to insist that a man in overalls, working on the plant floor, should precisely adhere to the niceties of expression that would be used by a careful lawyer trained in labor relations law. On the other hand, Klugman’s remarks went a considerable distance beyond those held not to constitute an unfair labor practice in NLRB v. Golub Corp., 388 F.2d 921, 929 (2 Cir., 1967), where the employer “made it clear enough that he would not aim to withdraw special privileges if a union contract were signed, and certainly not to withdraw them in retaliation for the union contract, but that he feared that the rules of the contract or the union’s administration of it might forbid giving such benefits to one employee unless they were uniformly given to all.” Here, on the credited testimony, there was a more distinct flavor of reprisal; at least the Board was entitled to draw that inference. On the facts permissibly found by the Examiner, the Board could regard Klugman’s statements not as good-faith predictions of what he sincerely believed he would be compelled to do in the event of unionization or what he proposed to seek to accomplish at the bargaining table as a counter to increased wage demands, but rather as threats not rooted in any solid business purpose and designed mainly or even solely to prevent employees from supporting the union. That is what the Board found — “threatening employees with reprisals" }, { "docid": "20688643", "title": "", "text": "to show cause. J.A. 263-64. That said, we appreciate the government’s point that if Jark-esy really meant to assert a facial challenge, he would have done well to at least mention Dodd-Frank or cite the relevant statutes in his complaint. If the district court misunderstood the nature of Jark-esy’s intended claim, its confusion was understandable. In any case, assuming arguendo that Jarkesy adequately put forth a non-delegation challenge, he is wrong to assign it talismanic significance. He seems to assume that whenever a respondent in an administrative proceeding attacks a statute on its face, a district court has jurisdiction to hear the challenge, whereas the agency does not. That is mistaken. To be sure, the Supreme Court has noted that “adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.” Thunder Basin, 510 U.S. at 215, 114 S.Ct. 771 (brackets omitted). But the Thunder Basin Court did not find that consideration to be determinative of whether the company’s constitutional claims could receive meaningful review within the Mine Act scheme. Id. And the Court’s recent decision in Elgin v. Department of Treasury reiterated that, so long as a court can eventually pass upon the challenge, limits on an agency’s own ability to make definitive pronouncements about a statute’s constitutionality do not preclude requiring the challenge to go through the administrative route. 132 S.Ct. at 2136-37. Elgin concerned the Civil Service Reform Act (CSRA), which sets forth a comprehensive structure for reviewing personnel actions taken against federal employees. Under the CSRA, federal employees who suffer adverse employment actions may seek a hearing before the Merit Systems Protection Board (MSPB), whose decision is then reviewed by the Federal Circuit. Id. at 2130-31. The plaintiffs in Elgin were male employees who had been discharged because they failed to register for the military draft. Id. at 2131. While one employee (Elgin) sought a hearing under the CSRA, he did not pursue the proceedings past the ALJ’s initial ruling against him. All the employees filed suit in federal district court instead. Id. They claimed that the Military Selective Service" }, { "docid": "3181872", "title": "", "text": "that Presto’s failure to bargain upon certification worked a substantial hardship upon the employees, and its refusal and attendant delay in bargaining tended to weaken the Union’s position with the employees by straining their estimation of the Union’s ability to deliver on its campaign promises. The Union goes further in this respect to say that these delays occasioned definable losses in wages and fringe benefits that would have been forthcoming had the Company bargained in good faith. It requests, therefore, in addition to the standard cease and desist order, that the employees be made financially whole and the Union be given greater access to the employees. We are unable to comply. We do not doubt that it is incumbent upon the Board, where it finds disregard of the Act in an unfair labor case, to rectify the situation by ordering appropriate relief. However, we feel that the Company’s refusal to bargain was merely an attempt to obtain judicial review of what it felt were substantial questions of propriety of Union campaign tactics. Its attempt was not an exercise in frivolity tending only to delay the inevitable but rather was a bona fide effort to test the validity of what it thought untenable. Additionally, the arguments advanced by the Union here are substantially the same as those urged by the petitioners before this court in Retail, Wholesale, and Department Store Union v. NLRB, 128 U.S.App.D.C. 41, 48, 385 F.2d 301, 308 (1967). We do not think that this case warrants a departure from the reasoning of our prior holding. Therefore, taking into account the broad discretion of the Board with respect to the fashioning of remedies, and the granting of appropriate relief, we find that the cease and desist order, coupled with the order to bargain upon request, is sufficient as a matter of law and was not an arbitrary abuse of that discretion in view of the totality of events surrounding the Union’s certification. Accordingly, it is our duty to affirm the Board and order enforcement of its mandate. So ordered. Chief Judge BAZELON did not participate in the foregoing" }, { "docid": "4482626", "title": "", "text": "directed reinstatement of “those listed and others adversely affected,” and confined payment of money losses to those proved. It seems plain that “others adversely affected” refers to those other than the four named claimants whose positions as “truckers, Philadelphia Transfer * * * Were abolished effective May 13, 1946” in violation of the rules. The order was made for the benefit of that group as well as the four named claimants. If it subsequently appears that any of plaintiffs were not in the class covered by the award, as above described, the action may be dismissed as to them. Defendant contends that plaintiffs’ complaint is inadequate to give them standing to seek enforcement of the Board’s order for another reason. It asserts that under the holding of the Supreme Court in Elgin, Joliet & Eastern R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, adhered to on rehearing 1946, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928, plaintiffs must allege and prove that they authorized the union to represent them before the Board. We disagree. The Elgin case held only that a Board order was not a bar to later suit by individual employees not represented or notified in some way of the proceedings culminating in the order. The question in the case at bar is quite different: Are plaintiffs entitled to bring action, to enforce a Railroad Adjustment Board order under a statutory provision giving this right to “any person for whose benefit such order was made”? We conclude that the answer to that question does not depend on whether an adverse order would have bound plaintiffs. A plaintiff who shows that an order was made for his benefit has made out his right to be in court. The result may be that an employee may have rights under an order which would not have bound him had it been in the carrier’s favor. This result does not ignore the rule that the estoppel of a judgment must be mutual, nor does it do injustice to the carrier. The principle of mutuality of" }, { "docid": "8176540", "title": "", "text": "employees’ negotiating committee without inquiry as to its representative status, its acceptance of the temporary Grievance Committee named by the negotiating committee, and the promulgation of the grievance procedure, likewise without questioning or seeking any proof of such status.” First let us say that if the Company had recognized the Employees Committees and later the Elgin Rawhide Employees Association without any prior showing of majority representation, that in itself would not constitute an unfair labor practice. The record shows that the Employees Committees with which the Company negotiated did represent a majority of the workers from the very beginning. Although Mr. Agger, the manager of the Elgin plant, did not specifically ask the group of employees that came to him about the grievance procedure whether or not they represented a majority of the workers, the record makes it clear that the Company understood that the Committee did represent a majority. The testimony of Mr. Violi, the representative chosen by the employees, settles any contention that the Company showed preference or tried to interfere with the employees’ organization. “Violi; * * * -^e know through past experience we have to handle the grievances and everything else, and therefore we don't see why we should pay our money to outside sources and do the work ourselves. We would like to try it out. We don’t know whether it would work or wouldn’t work, or whether we would be pleased with it or not, but we would like to give it a try, and we would like to know the opinion of the company, how they felt about it. Mr. Agger told me there and then that the company itself or anybody else has nothing to do or say whatsoever what we are going to have, that it is entirely up to the majority of the employees of the plant, and whatever they want that is what they are going to have.” When the employees first began negotiations with the Company, they did not constitute a labor union. The discussions clearly fell within the proviso of Section 8(a) (2): “* * * an" }, { "docid": "4440982", "title": "", "text": "plants where unionization activity did not proscribe it, and that the delay in announcing the increases to the Fort Plain employees was in all likelihood motivated by a desire to avoid a charge of an unfair labor practice under the doctrine of NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). To construe the Exchange Parts doctrine, as the Examiner appears to do, to require the employer to refrain from announcing and implementing pay increases until after all aspects of a union organizational campaign have been resolved, a process which often consumes years, twists the Exchange Parts doctrine into an instrument to punish employees for union organization. The doctrine should not bar grants of economic benefits after the employees have had a full opportunity to ballot secretly on whether they wish unionization. Quite obviously the purposes of the Act are not furthered by finding a violation of Section 8(a) (1) in this context. Moreover, I fail to see how the single instance of surveillance by the employer’s supervisors, a surveillance which the employees never knew about, which was never followed up or pursued by the employer, and which did not interfere with the organizational activity of the employees, warrants the issuance of a court cease and desist injunction order. Of course, there would be interference with employees’ organizational rights if any employee were aware of the surveillance, or if the employer used the information gained in such surveillance to punish union organizers or to influence employees against unionization; but these factors justifying a cease and desist order are totally absent here. Admittedly, Luxuray does not contest the Board’s finding that this surveillance was a violation of the Act, even though I seriously question that it really was; Luxuray only argues that a remedial order is not warranted. In this posture, we cannot properly reverse the Board’s finding of a violation on this issue, but even if a violation is admitted, I believe that we should approach the issuance of a remedial order as the Examiner would approach it and that we should exercise our" }, { "docid": "12411754", "title": "", "text": "such a clause would preclude the union from prosecuting flagrant violations of the contract merely because the employee involved, due to fear of employer reprisals, or for similar reasons, chose not to sign a grievance. Hence, redress for a violation would be made contingent upon the intrepidity of the individual employee. The fact that there are other labor contracts in this industry requiring employee signatures on grievances is not significant. Non-mandatory subjects may lawfully be included in collective bargaining contracts if the parties agree to them. NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. at 349, 78 S.Ct. at 722. Bethlehem’s reliance on Elgin, Joliet & Eastern Railway v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), aff’d, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946), is misplaced. That case simply holds that a bargaining representative can compromise accrued monetary claims of individual employees only if the employees have authorized it to do so. The Board concluded that Bethlehem did not violate the statute when, upon the expiration of the 1956 agreement, it discontinued enforcement of the union shop and checkoff. In this court the union does not seriously press its contention that this was error. In any event, we agree with the reasoning of the Board. The right to require union membership as a condition of employment is dependent upon a contract which meets the standards prescribed in § 8(a) (3). The checkoff is merely a means of implementing union security. Since there was no contract in existence when the company discontinued these practices, its action was in conformity with the law. Cf. NLRB v. International Union, United Automobile Workers, 297 F.2d 272 (C.A. 1, 1961); Communications Workers v. NLRB, 215 F.2d 835, 839 (C.A. 2, 1954). Moreover, the checkoff clause of the 1956 contract expressly provided that it should remain in effect only so long as the agreement was extant. Bethlehem makes a tripartite challenge to the Board’s determination that the company violated § 8(a) (5) by unilaterally abrogating the preferential seniority rights of union representatives and by altering the prior grievance" }, { "docid": "18790364", "title": "", "text": "established practice. Most of the conversations occurred during December 1981, a month in which rumors concerning a possible year-end bonus were widespread. The conversations generally consisted of an individual or small group of employees inquiring of supervisors or low-level managers whether there would be a bonus in 1981. While the evidence concerning Comptroller Wesley Melvin indicates that he seemed to think that there might be a bonus, it also plainly shows that he was not the decision maker and that the final decision on whether to give a bonus had not been made. Meanwhile, there is no evidence that the ultimate decision maker, Dr. Chiaramonte, had at any time given any indication that the one-time gift of 1980 was to be continued as a year-end bonus in 1981 and beyond. The doctor made no statements, and more importantly, there was never an authoritative, general announcement of any kind stating that the 1300 hospital employees would receive a 1981 Christmas bonus. This is not a case such as NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir.1976). In that case, the Hospital Administrator issued a general announcement, posted on all bulletin boards, that employees would receive a cost-of-living salary increase. When the union began its organizational drive, the administrator refused to implement the wage increase. The court upheld the Board’s finding of a § 8(a)(1) and (3) violation reasoning, “A clear impression was publicly conveyed to all employees that a wage increase was imminent, and an employee would scarcely expect this employer to renege in such circumstances.” 545 F.2d at 256. The hospital’s actions in the present case could not have conveyed such a “clear impression” to anyone and, at most, evidenced that the bonus issue was mired in ambiguity. Based upon this record, we find that it would not have been clearly apparent to a reasonable employer in the hospital’s situation that the Christmas bonus was such an established employee benefit that its withholding would raise an inference of improper conduct on the part of the hospital. C. Since there was no established practice in this case, the Board may" }, { "docid": "12974474", "title": "", "text": "purpose is to force the employer to bargain with the union as the representative of his employees, unless the union has been certified by the Board. It was stipulated here that Union was not so certified. Union also asserts that the comments made to Gilmore did not constitute threats or coercion, but were merely privileged statements of a lawful position. There is no merit in this contention. “Requests and threats addressed * * * to employers, even though not illegal in themselves * * * may be considered in determining the motives for picketing.” National Labor Relations Bd. v. Associated Musicians, supra, 226 F.2d at page 904. In determining whether the picketing here involved was for unlawful purposes proscribed by the Act, it need only be said that the comments and statements of Union agents speak for themselves. The order entered by the Board directs Union to cease and desist from: “Engaging in or inducing * * * employees of Gilmore Construction Company, or any other employer, to engage in strikes or refusals in the course of their employment * * * to perform any services, or to threaten, coerce, or restrain Gilmore Construction Company, or any other ■employer * * * where an object thereof is to force or require Gilmore Construction Company, or any other employer or person, to cease doing business with Simpson Company (or any other employer), or an object thereof is to force or require Simpson Company, (or any other employer), to recognize or bargain with the Respondent, in the absence of a certification as bargaining rep resentative of the employees of such employer.” (Emphasis and parentheses supplied). Union contends that the Board’s order is too broad in two respects: (1) it fails to provide that Union shall have the right to engage in primary strikes and primary picketing against Simpson, and (2) it encompasses not only Gilmore and his subcontractors on the school project in Omaha, Nebraska, but other employers. In amending § 158(b) (4) of the Act, Congress made it clear that it was not attempting to prevent lawful primary picketing or primary" }, { "docid": "5601901", "title": "", "text": "Union. Niemark’s statement seems to have been no' more than a -reasonable argument that the bargaining process would inevitably delay any wage increase and did not carry with it the threat that the company would cause such delay. Bur-chett’s utterances we think cannot be given a sinister meaning. We have no reason to suppose that the employees preferred, a classification based on merit rather than on seniority, and unless that were true the change mentioned by Burchett could not possibly be regarded as detrimental to them. It seems to us that in any event it was no more than an argument involving no threats of reprisal by the employer. . The last question to be decided is the correctness of the Board’s holding that Bonwit Teller violated § 8(a)(1) of the Act by failing to grant the Union’s request for an opportunity to reply to Rudolph’s speech under similar conditions, namely, at a meeting of the employees to be held on thq company’s premises. Bonwit Teller contends that the Board’s decision is contrary to § 8(c) of the Act because it conditions the employer’s exercise of the right to speak to his employees on his extending to the Union the same opportunity — a condition which is not contained in § 8(c). However, neither § 8(c) nor any issue of “employer free speech” is involved in this case. Normally, an employer cannot forbid union solicitation on' company property-during non-working time even where there is no showing that solicitation away from the plant would be ineffective. Republic Aviation, Corp. v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. This is so because the place of work has been recognized to be the most effective place for the communication of information and opinion concerning ^unionization. The Board, however, has allowed retail department stores the privilege of prohibiting all solicitation within the selling areas of the store during both working and nonworking hours, e: g., In the Matter of May Department Stores Co., 59 N.L.R.B. 976, 981. Bonwit Teller chose to avail itself of that privilege and, having done so, was" }, { "docid": "6578386", "title": "", "text": "the union, and that University’s antedating the exhibit was merely an unwise attempt to paint the lily. However, a user of a faulty firearm must risk a backfire. Attaching even the mildest presumption to the Director’s resolution of conflicting evidence causes us to conclude that the likelihood of Board success was great. The rest is relatively down hill. As to irreparable harm, this was a discharge of the entire workforce in the face of unionization, far more serious in its ultimate consequences even if at some later date those employees who have not succeeded in getting other work they prefer are restored to their jobs, than a case where only a handful of selected organizers is involved. The union, without early relief, may well be done for. Measuring the injury to Caribe and its employees, the record is clear that they undertook the employment with full knowledge of the situation. Cf. NLRB v. Remington Rand, Inc., 2 Cir., 1938, 94 F.2d 862, 871 (L. Hand, J.) (“[I]t is probably true today that most men taking jobs so made vacant, realize from the outset how tenuous is their hold.”). If they underestimated their risk, that is not a reason for denying relief where the likelihood of success is great. As to the public interest, again this would seem high in view of the numbers involved. We deal, finally, with the concept of laches and delay. The court was of the view that since judicial relief was not sought until four months had passed, the special benefits that might have accrued from a more speedy restoration were largely lost. We agree that they might have become less, but to charge this against relief altogether would be too great a reaction. A busy administrative agency cannot operate overnight. The very fact that it must exercise discretion, and that its decision is entitled to presumptive weight, cases ante, indicate that it should have time to investigate and deliberate. While it does seem perhaps unnecessarily long, we must reject the court’s reliance on the four months delay. A more serious factor is that we áre" }, { "docid": "8176533", "title": "", "text": "SWAIM, Circuit Judge. The only question we consider on this appeal is whether or not all the facts viewed together furnish a substantial basis for the National Labor Relations Board’s conclusion that the petitioner, Chicago Rawhide Manufacturing Company, was guilty of an unfair labor practice by “supporting, assisting and interfering with various employee associations” in violation of Section 8(a) (2) and (1), 29 U.S.C.A. § 158(a) (2) and(l). The Company operates several plants throughout the middlewest, manufacturing mechanical, leather and synthetic rubber products. In 1950 a new plant was opened in Elgin, Illinois. For almost a year the employees of the Elgin plant were not approached by a union. During that time the Company set up a system for handling grievances. That system was not satisfactory to the employees, and the Company and a group of employees together worked out a new plan. Among other things this plan called for the creation of a Grievance Committee and an Employees Shop Committee. These two Committees were later merged under the name of Elgin Rawhide Employees Association. The Company let its employees meet during working hours so that those who had worked out the grievance procedure with management could explain it to the others. Without the Company’s knowledge the members of the Shop Committee were elected at these meetings. The employees also organized a Recreation Committee which sponsored baseball teams, arranged picnics, etc. The Company contributed money on several occa sions to help defray the expense of activities promoted by that Committee for the employees. In February of 1951 the International Fur and Leather Workers Union of the United States and Canada, hereinafter referred to as the Union, tried to organize the plant. Petitions were then circulated among the employees asking that the Employees Committee be recognized as their bargaining agent. These petitions were signed by more than 300 employees, about 80 per cent of all the employees in the plant. Both the Union and the Employees Committee demanded recognition as bargaining agent. The Company and the Union petitioned the National Labor Relations Board for an election. The Employees Committee advised that" }, { "docid": "9903595", "title": "", "text": "March 4, 2003, George sent another e-mail to Jameson complaining about the Plaintiffs lack of responsiveness with regard to a situation taking place with an employee who had been terminated (i.e., Corine Morrow). [Undisputed Fact 82]. Subsequently, on the next day, Chouhdry sent an e-mail to the Plaintiff describing his dissatisfaction with his support to the Elgin Exchange. [Undisputed Fact 83]. On March 10, 2003, Chouhdry sent another e-mail to Jameson regarding his dissatisfaction with the Plaintiffs support to the Elgin Exchange. [Undisputed Fact 86]. Based on these complaints and the fact that the Elgin project was granted final approval, Jameson determined that Fried needed to be fully committed to assisting George and Chouhdry for the duration of the Elgin project, and that she would report directly to him in lieu of the Plaintiff. [Undisputed Facts 87, 88, 89, 90, 91, 92], Second, with regard to the alleged denial of a merit increase in March 2003, the undisputed facts show that pursuant to Per-Se’s standard company practice, when an employee is on an extended leave of absence, the employee’s annual review is delayed until the employee returns to work. [Undisputed Fact 163]. Upon the employee’s return to work, the employee is given a performance review, and if the employee is recommended for a merit pay increase, Per-Se’s regular practice is to retroactively grant such a merit pay increase. [Undisputed Fact 165]. The Plaintiff was on approved sick and FMLA leave from March 17 to June 18, 2003. [Undisputed Facts 107, 108, 109, 119]. The Plaintiff was scheduled to return to work from his approved leave of absence on July 1, 2003. [Undisputed Fact 142], However, the Plaintiff failed to report; and, on July 3, 2003, the Plaintiff telephoned Swaine and advised him that he would not be returning to work at Per-Se. [Undisputed Fact 158]. The Plaintiff never returned to work after March 14, 2003; and, therefore, in accordance with Per-Se’s policy, he never received an annual performance review for the applicable period of March 27, 2002 to March 26, 2003. [Undisputed Fact 166]. Therefore, Per-Se contends that it was" }, { "docid": "1355442", "title": "", "text": "fraudulent insurance reporting that occurred here only to the extent that the amount paid out on claims by the carrier exceeds the premiums that it received. Because the Government offered no evidence at sentencing as to whether Simpson’s carriers paid out on any claims, Simpson contends that no loss occurred. Underlying this argument is the idea that the mere provision of insurance coverage confers no value, and that value is conferred only when a carrier actually pays on a claim. However, this contention ignores the fact that, by agreeing to provide coverage, a carrier obligates itself to pay claims arising during the period of coverage, even if those claims exceed the premiums paid. In doing so, the carrier certainly gives up something valuable. Insurance coverage, by its very nature, is forward-looking, and cannot be valued using the type of after-the-fact analysis advocated by Simpson. Moreover, and contrary to Simpson’s contentions, it is not the case that no “loss” occurs in a case like this if insurance coverage may be cancelled for fraud. At least for Guidelines purposes, it is irrelevant whether, upon uncovering Simpson’s fraud and cancelling his policy, a carrier would or would not have been required to pay on claims for injuries pre-dating that termination. Even assuming that Simpson is correct that his carriers would not have been so bound, it appears obvious that Simpson would have directed undeclared workers to his carriers in hopes of evading detection and obtaining coverage. A resourceful employer such as Simpson will attempt to disguise the fact that an employee for whom benefits are sought has not been reported. Where, for example, a policy requires that the employer list the names of the specific individuals for whom coverage has been purchased, an employer may wait to report an employee’s existence until the employee is injured, and then explain the discrepancy by claiming, for instance, that the employee is a recent hire. See United States v. Ratliff, 63 Fed.Appx. 192, 193-94 (6th Cir.2003). Indeed, the record suggests that Simpson did direct injured, unreported employees to his carriers, this being the reason for the" }, { "docid": "11645522", "title": "", "text": "of the union organizational drive. Those of you who have worked here for several years are surely aware of the fact that wages and fringe benefits have been increased every year without interruption since beginning the operation in Fremont in 1959. At the time of our increases in wages and fringe benefits last year, we had been losing large amounts of money and an increase at that time was really not justifiable, but an increase of 50 to 80 was granted anyhow. We granted this increase because of our faith in you and in the future of this plant. We cannot say at this time how much of an increase you would have already been granted this year if it were not for the union activity but it was certainly greater than what was granted last year. “Another program that we had initiated in your behalf before the union organizational activity began was a job evaluation program. I have letters in my office dating back to August, 1965, concerning the establishment of this program. On January 10th of this year, I wrote a letter to Harrison Martin [another supervisor] telling him that we had completed writing job specifications and were ready to proceed with this program so that it could be tied in with our annual review of wages and fringe benefits. Again we were unable to proceed with this program, which would have been beneficial to you, because of the union organizational activity.” C.T. 13. The Regional Director concluded that “by the above-quoted remarks, the Employer sought to discredit the [union] and discourage the employees from voting for the [union] by announcing a previous intent to provide benefits for the employees and shifting to the [union] the onus for failure to institute these benefits. It is further concluded that this conduct was calculated to interfere with and discourage the employees’ choice of the [union] as their bargaining [representative].” C.T. 13. It is petitioner’s contention that the Regional Director erred in taking the comments referred to “out of context,” and that at least one of two speeches which followed that" }, { "docid": "4510050", "title": "", "text": "freely express themselves on the question presented. There is no substance in the argument that respondent thus notified the employees that it would immediately close the plant unless they repudiated the Un ion’s stand. Certainly every sensible employee, of his own knowledge, was aware of the fact that the inevitable result of a strike would be the shut-down of the plant followed by the inability of respondent to manufacture and fill orders for its product. The Board found: “It is clear that the meeting was initiated and sponsored by representatives of the management.” The Board overlooks the fact that at least two of those who circulated petitions requesting the meeting were members of the Union. Assuming, however, that this finding was justified, what was respondent to do when confronted with such a situation? On the day before the Union, by an illegal strike vote, had threatened to close the plant unless its demands were met. Was respondent required to sit idly by and accept orders which it could not fill if the Union’s threat was carried out, or was it justified in fairly ascertaining what it could expect of its employees? In our judgment the latter alternative was a proper and necessary business expedient. It must be kept in mind that it is the employer who is required to meet the payroll, and we do not think it is the purpose of the act to deprive him of all discretion as to how his business is to be conducted. Under some circumstances, the instigation of a strike vote by an employer might constitute an unfair labor practice, but not under the situation here presented. Fine spun theories must give way to common sense. The Board’s conclusion that respondent was guilty of unfair labor practices in its refusal to bargain with the Union on numerous dates subsequent to June 13, 1939, is dependent largely upon the Board’s conclusion that respondent was guilty of an unfair labor practice in the formation, recognition and administration of the Association. This is so for the reason that respondent’s refusal to bargain with the Union on" }, { "docid": "7926833", "title": "", "text": "the employees had shown Ramsey’s letter to Havlik, and on this occasion he merely asked Voss if he was at the meeting and who was there. Voss named a few whom he recalled, including Franz who was standing near by, just as he told Ramsey he would, if asked. Franz verified that statement as to himself, and that ended the conversation. No one claims that Havlik showed any animus against the union, or opposed in any way the unionization of the factory, and the same is true of Voss. Neither represented respondent in what they did and said, and of course neither could bind it. Their actions, of which complaint is made, occurred eleven days after Van Delinder was discharged, and no one appears to have been restrained, coerced or intimidated in his union activities by what was done or said by Havlik or Voss. It is very significant that, so far as this record discloses, neither respondent, nor its officers, nor its foremen ever expressed one word, or committed any act in opposition to unionization of its factory, either at Elgin or Chicago. Not an employee was discharged except Van Delinder. All are still working there, except Papay, who ceased his employment voluntarily. There is no-complaint as to hours, wages or working conditions, and the only question presented is whether the Board has met its burden of proving by substantial, competent evidence that Van Delinder was discriminated against because of his union activities. Petitioner in this respect urges that he was discriminated against because he was penalized more severely than others who were guilty of the same offense. Franz was the only employee who was at all comparable with Van Delinder in his infractions, and they worked together. Superintendent Berthelson gave a reasonable explanation of his actions in this respect. He retained the younger and better workman and the least offender, on the ground that he needed workmen, and thought that Van Delinder’s discharge would stop the violations of the safety rules. This prognosis proved correct, for since the discharge there has been complete compliance with the rule. Van" }, { "docid": "1544189", "title": "", "text": "Supervisor LaFave conceded only that she asked White whether the latter had received a copy of the company book that outlined the work benefits available at Garland. In all three instances the employees testified that the supervisors had indicated that union success would unfavorably affect the working conditions of Garland employees and in each instance the supervisor denied this. The Board, as already noted, credited the employees. The trial examiner’s decision, which the Board adopted, states that “the fundamental issue in this case is one of credibility.” If this were the issue, we could agree with the Board’s disposition of the case since it is well within the Board’s province to prefer the testimony of the employees, especially in view of the credibility evaluation of the trial examiner. See N. L. R. B. v. Gass, 377 F.2d 438, 443 (1st Cir.1967). It seems, however, that the more fundamental question is whether these three incidents, considered in their total context, are sufficient to justify finding respondent guilty of unfair labor practices, even assuming that they occurred substantially as the employees testified. We think not. To begin with, there were only these three isolated events in a plant comprising some six hundred employees and sixty supervisors. We are told now that undoubtedly these conversations were passed on from employee to employee by word of mouth, thus increasing their over-all impact. This theory is not analytically inevitable, since the above stated conversations were not such as to become a conversation piece among the employees. Further, we will not now speculate about a matter on which testimony could easily have been elicited if it had been thought important. But see discussion of Irving Air Chute Co. v. N. L. R. B., infra n. 5 ¶2. We do not say that these incidents are in themselves de minimus but we do say that they are not sufficient to constitute a repudiation of the policy of noninterference announced by the plant manager to supervisors and employees alike. Petitioner contends, with appropriate citations, that employers are liable for the conduct of supervisors when the employees have reason" }, { "docid": "4482635", "title": "", "text": "before the Board nor even to consideration by it, and certainly they would not be entitled to notice of the proceedings as “employees involved.” We do not predicate our decision on the inference just made, however. We think the result may be the same even if the persons hired by the carrier to do the work of the plaintiffs and others similarly situated, did become employees of the Pennsylvania Railroad. Who are “employees involved” under the statutory language? The exact meaning has never been settled; perhaps it never can be. The cases which have passed upon it have all involved factual situations quite different from ours. They involved disputes between two or three employees over seniority ratings or between two groups of workmen both long-time employees of the carrier, over which group was entitled to do a particular type of work. The interest of such employees, the extent to which the Board should be required to consider such interests, and the type of dispute involved were not even similar to our problem here. We do not know on what basis, if at all, the workers who replaced plaintiffs were employed by the defendant and whether out of such employment, they acquired a status which gave them such rights in their jobs as entitled them to notice and opportunity to be heard before the Board. Anyone employed 'by another, even purely at will, has some “interest” in his job. But the mere fact of that employment, without more, is not enough to make him a necessary party in an Adjustment Board hearing. Here we do not know whether the replacement workers became employees, nor upon what terms if they did. We have no knowledge of facts upon which we can say notice to them was required. • So far as this litigation is concerned a,t this stage, the order stands on the presumption of validity attributed to it by the Supreme Court in the Elgin case. On remand the trial court may hear evidence on the question of what employees, if any, would have been replaced by defendant’s compliance with the" } ]

[ { "docid": "21328867", "title": "", "text": "shall be included in gross income) It is clear that Congress intended that the words “amounts received under a life insurance contract paid by reason of the death of the insured” in the 1926 Act and the words “proceeds of life insurance policies paid upon the death of the insured’’ in the former statute should have the same meaning and were to be exempt from taxation. To insure the exemption in the case of instalments under the Act, a plain provision was inserted covering their exemption. See II.R.Rep. No. 356, 69th Cong., 1st Sess. (1926) 33. The Revenue Act of 1934, § 22(b) (1), 48 Stat. 687, 26 U.S.C.A. Int.Rcv.Acts, p. 670, made but one change from the language used in the 1926 Act. It employs the words “or otherwise” in place of “or in instalments”. The explanation of this change is found in H.R.Rep. No. 704, 73d Cong., 2d Sess. (1934) 21. This report is as follows : “Section 22(b) (1). Life Insurance:' This change makes it clear that the proceeds of a life-insurance policy payable by reason of the death of the insured in the form of an annuity are not includible in gross income.” The Senate Finance Committee in its report, Sen.Rep. No. 558, 73d Cong., 2d Sess. (1934) 23, says: “Section 22(b) (1). Life Insurance. This change, made by the House, makes it clear that the proceeds of a life-insurance policy payable by reason of the death of the insured in the form of an annuity are not includible in gross income. Your Committee made no change in this section of the House bill.” Congress has been consistent in all its Acts in exempting from taxation amounts received in settlement of death claims. It draws no distinction whether such amounts are paid in instalments or as annuities. Accepting the analysis of the Commissioner that the policy in question is a life insurance policy for $53,000 principal value payable as an annuity, rather than one for $100,000 payable in 50 instalments, it still falls precisely within the language of Section 22(b) (1) of the Revenue Act of" } ]

[ { "docid": "21328871", "title": "", "text": "Stat. C87, 26 U.S.C.A.Int.Rev.Aets, page 670. Gross Income * * * (b) Exclusions from Gross Income.— The following items shall not be included in gross income and shall be exempt from taxation under this title: (1) Life Insurance. — Amounts received under a life insurance contract paid by-reason of tbe death of tbe insured, whether in a single sum or otherwise (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); Article 22 (b) (1) 1. Life insurance-Amounts paid by reason of the death of the insured. — The proceeds of life insurance policies, paid by reason of the death of an insured to his estate or to any beneficiary (individual, partnership, or corporation, but not a transferee for valuable consideration), directly or in trust, are excluded from the gross income of the beneficiary. While it is immaterial ■whether the proceeds of a life insurance policy payable upon the death of the insured are paid to the beneficiary in a single sum or in installments', only the amount paid solely by reason of the death of the insured is exempted. The amount exempted is the amount payable had the insured or the beneficiary not elected to exercise an option to receive the proceeds of the policy or any part thereof at a later date or dates. If the policy provides no option for payment upon the death of the insured, or provides only for payments in installments, there is exempted only the amount which the insurance company would have paid immediately after the death of the insured had the policy not provided for payment at a later date or dates. Any increment thereto is taxable. In any mode of settlement the portion of each distribution which is to be so included in gross income shall be determined as follows: (a) Proceeds held by the insurer. — If the proceeds are held by the insurer under an agreement (whether with the insured or with a beneficiary) to distribute either the increment to such proceeds currently, or" }, { "docid": "21480778", "title": "", "text": "for Congress attempted no such classification. It exempted “payments”. These were certainly payments within the clear language used and that is enough so far as language is concerned. The Board made the only possible decision by reading that language, as it should, “in the ordinary and natural sense”. Helvering v. San Joaquin Fruit & Investment Co., 297 U.S. 496, 56 S.Ct. 569, 80 L.Ed. 824. The legislative history of the statute fortifies this conclusion. See, Sidney W. Winslow, Jr. v. Commissioner, 39 B.T.A. 373 where that is clearly shown. In United States v. Heilbroner, 2 Cir., 100 F.2d 379, we had in issue the taxability of payments which in reality were made for the use of the proceeds of matured policies retained by an insurance company. Such payments were made by way of interest and were accordingly held taxable since they were not within the terms of the exemption allowed in the above statute. The payments here involved were of an entirely different character in that they were installment payments which pro tan-to diminished the total amounts payable under the policies. The small sum of $33.36 was paid to the respondent during the year in addition to the installments due as computed when the policies matured upon the death of the insured. This represented an increase of $1.39 in each monthly payment after July 1, 1930, because of the discontinuance by the insurance company of an administration charge. It is argued that this excess was taxable but we cannot agree. It was either received under an insurance contract and paid by reason of the death of the insured as was the remainder of the installments or it was a gift exempt from taxation under Sec. 22 (b) (3) of the Revenue Act of 1934. The decision of the Board was right in either event and no more need presently be decided. Affirmed." }, { "docid": "17800376", "title": "", "text": "follows: “§ 22. Gross income * * * “(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this title: “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income) * * *. ” Upon the basis of the ruling of the Commissioner the defendant filed a claim for refund covering the income taxes she had paid for 1931 on the insurance proceeds. Her claim was allowed and paid, but subsequently a new Commissioner reversed the earlier ruling and demanded a return of the refund and interest. His demand having been refused, this action was brought, resulting in the judgment for the United States already described. The question before us is whether the amounts received by the defendant from the insurance companies constituted taxable income. We hold that they were such income. After the exercise by the insured of his options to have the proceeds of his policies retained upon his death by the respective companies and specified sums paid to his widow, the defendant as the life beneficiary became entitled to receive during her life annual payments upon the respective policies to a minimum of $2.47 per month for each $1,000 of the Northwestern Mutual policies and to a minimum of three per cent upon the policies of the other companies, such amounts to be increased by any annual dividend that might be apportioned to it by the directors of the company issuing the policy. The items aggregating $19,109 paid to the defendant during the year 1931 constituted the amounts due her that year both as to the guaranteed minima and as dividends apportioned to the respective policies. The defendant argues that the payments received during 1931 were all installments “paid by reason of the death of the insured”, were not “amounts * * *" }, { "docid": "12605659", "title": "", "text": "is payable to taxpayer. No .matter how many annual payments he may have received, he is still entitled, on demand, to have the principal sum returned to him intact. The question presented for determination :is whether the annual payments received by taxpayer in 1941 u'nder said insurance contracts constituted interest on an invested fund taxable in full under Sec. 22(a), Internal Revenue 'Code, as the Commissioner had ruled, which ruling the Tax Court upheld, or amounts received as an annuity within the meaning of Sec. 22(b) (2), Internal Revenue Code, taxable only to the extent provided in that section, as taxpayer contends. 26 U.S.C.A. § 22(a), (b).(2). Sec. 22(a) broadly defines gross income as including “interest * * * and income derived from any source whatever.” Sec. 22(b) (2) provides: “ * * * Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except' that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per centum of the aggregate premiums or consideration paid for such annuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this chapter or prior income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity. * * *” Whether the payments to taxpayer are labeled “annuity payments” is not determinative of whether they qualify as such under Code Sec. 22(b) (2). We think- that these payments, which did not include any return of taxpayer’s capital, do not so qualify. We hold that such payments were in fact nothing more than interest or earnings upon an invested fund. To hold otherwise would necessitate disregarding not only the plain construction of the section and its legislative history, but also the firmly accepted notion that an annuity has as its basic function the systematic liquidation of the principal. Huebner, Life Insurance, pages 154-155. The legislative history of -Code Sec. 22 (b) (2) discloses it was framed solely with reference to periodic payments" }, { "docid": "21328865", "title": "", "text": "by reason of the death of the insured, whether in a single sum or otherwise” — is to be interpreted in its ordinary and natural meaning. Helvering v. San Joaquin Co., 1936, 297 U.S. 496, 56 S.Ct. 569, 80 L.Ed. 824. It is not clear from an examination of the words of the statute whether amounts received under a life insurance contract payable in the form of an annuity are exempt from inclusion in the gross income. Section 22(b) (2) of the same statute provides for a new method of taxing annuities “under an annuity or endowment contract” but it is far from clear whether an annuity received under a life insurance contract is included in suc-h taxation or is exempted by Section 22(b) (1). In such circumstances it is proper to consider the reports of the committees of the Congress in charge of the legislation in order to discover the legislative intention. Binns v. United States, 1904, 194 U.S. 486, 495, 24 S.Ct. 816, 48 L.Ed. 1087; Holy Trinity Church v. United States, 1892, 143 U.S. 457, 464, 12 S.Ct. 511, 36 L.Ed. 226; Blake v. National Banks, 1874, 23 Wall. 307, 23 L.Ed. 119; Bankers’ Trust Co. v. Bowers, 2 Cir.1923, 295 F. 89, 96, 31 A.L.R. 922. See Caminetti v. United States, 1917, 242 U.S. 470, 490, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168. Prior to 1926 “The proceeds of life insurance policies paid upon the death of the insured” were exempt, e. g„ Revenue Act of 1924, § 213(b) (1), 43 Stat. 267, 26 U. S. C.A.Int.Rev.Acts, page 19. The Revenue Act of 1926, § 213(b) (1), 44 Stat. 24, 26 U.S.C.A.In-t.Rev.Aets, page 163, reads in part as follows: “(b) The term 'gross income’ docs not include the following items, which shall be exempt from taxation under this title: “(1) Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments" }, { "docid": "18093432", "title": "", "text": "the aggregate premiums or consideration paid for such annuity. * * * Art. 22 ib) (2)-2. [I’ogulations 94.1 Annuities.— Vmounts received as an annuity under an annuity or endowment contract include amounts received in periodical installments, whether annually, semiannually, quarterly, monthly, or otherwise, and whether for a fixed period, such as a term of years, or for an indefinite period, such as for life, or for life and a guaranteed fixed period, and which installments are payable or may be payable over a period longer than one year. * * * See Report No. 704, p. 21, of the Ways and Means Committee, and Report No. 558, p. 23, of the Finance Committee, accompanying the 1934 bill to provide revenue. In Report No. 704, p. 21, the following appears: “Section 22 (b) (2). Annuities, etc.: The present law does not tax annuities arising under contracts until the annuitant lias received, an aggregate amount of payments equal to the total amount paid for the annuity. Payments to annuitants are, in fact, based upon mortality tables which purport to reflect a rate of return sufficient to enable the annuitant to recover his cost and in addition thereto a low rate of return on his investment. The change continues the policy of permitting the annuitant to recoup his original cost tax-free but requires him to include in his gross income a portion of the annual payments in an amount equal to 3 percent of the cost of the annuity. While the percent used is arbitrary, it approximates the rate of return in the average annuity. “Statistics show that an increasing amount of capital is going into the purchase of annuities, with the result that income taxes are postponed indefinitely. The change merely places the return of this form of investment on the same basis as other forms of investment by taxing that portion of each payment which in fact constitutes income.\" “Prevention of Tax Avoidance,\" Preliminary Report of a Subcommittee of the Committee on Ways and Means (73d Cong., 2d sess.), p. 13, part II. Minor Problems, (1) Annuities: “Section 22 (b) (2)" }, { "docid": "23143095", "title": "", "text": "Cf. Helvering v. Rankin, 1934, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343; Powers v. Commissioner, 1941, 312 U.S. 259, 260, 61 S.Ct. 509, 85 L.Ed. -. The remaining issue is whether any part of the amount paid under the life insurance contract is taxable to respondent. The reasoning of Helvering v. Le Gierse, 1941, 61 S.Ct. 646, 85 L.Ed. -, construing the estate tax statute, suggests that under the income tax statute as well, only amounts paid because of an insurance— as opposed to an investment — risk should be exempt. But the legislative history of the income tax statute, 26 U.S.C.A. Int.Rev.Code, § 22(b) (1), as outlined in Commissioner v. Winslow, 1 Cir., 113 F.2d 418, indicates that the Congressional intent was not to restrict the exemption in this manner. We, therefore, adhere to otir ruling in Commissioner v. Bartlett, 2 Cir., 113 F.2d 766. The decision of the Board of Tax Appeals is reversed as to the trust income and affirmed as to the annuity payment. Or to have the law of intestate succession distribute, should he die, leaving no will. We note, in passing, that Buck had expressly in mind the importance of retaining voting power in a considerable block of stock in conjunction with a small group of persons who, together with him, were the dominant stockhold•ers of the Wrigley company. It has •often been observed (in economic •treatises, government reports, based upon extensive investigations, and judicial decisions), that control of such a block yields corporate control from which in turn may flow numerous pecuniary emoluments of substance, to say nothing of more indirect “satisfactions * * * of economic worth” of the sort to which the court referred in the Horst case. As we have disposed of the case under Section 22 (a), there is no need to consider the Commissioner’s contention that Buck is taxable under Section 167 on a portion of the trust income which was in fact applied by his wife to payment of premiums on policies on Buck’s life. There is no need here to consider whether findings" }, { "docid": "10172295", "title": "", "text": "Committee, Kept. No. 52, p. 20, to accompany H. R. 1 of the 69th Cong., 1st Sess.] . The question as to whether the petitioner constructively received 3 per cent of the principal annually need not be determined here. Even if 3-per cent payments were constructively received annually, they were not “installment payments which pro tanto diminished the total amounts payable under the policies.” See Commissioner v. Bartlett, 113 F. 2d 766 (C. A. 2, 1940). The determining fact here is that the entire principal was allowed to be retained undiminished by the insurers. It is not material whether the.petitioner’s failure to exercise her annual right of withdrawal resulted in an annual gift to her children, the secondary beneficiaries. Nor need we determine whether that portion of the amounts paid by the insurers to the petitioner, above the interest rate specified in the supplementary agreements, represented surplus dividends. It is settled law that surplus dividends are not exempt from gross income under section 22. (b) (1), Katharine C. Pierce, supra; United States v. Heilbroner, supra. The entire amounts paid to the petitioner during 1945, 1946, and 1947 constitute taxable income, whether paid as interest or as surplus dividends. Reviewed by the Court. Decision will be entered for the respondent. SEC. 22. GROSS INCOME. (b) Exclusions prom Gross Income. — The following Items shall not be included In gross Income and shall be exempt from taxation under this chapter: (1) Life insurance. — Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or otherwise (but if such amounts are held by the insurer under an agreement to pay Interest thereon, the interest payments shall be included in groe? income) ;" }, { "docid": "15377843", "title": "", "text": "HOLMES, Circuit Judge. Appellant brought its action in the district court to recover income taxes paid for the year 1933, its claim for refund having been duly filed and subsequently denied. The judgment appealed from denied recovery of all or any part of the claim. In 1930, appellant prevailed upon one Wylie, who was indebted to it for a sum in excess of $15,000, tp insure his life for said amount, making appellant the named beneficiaryj with the understanding that the policies would be delivered to it and that it would pay all premiums. The policies were issued, and the premiums were paid by appellant without any charge against Wylie, keeping the insurance in effect until Wylie’s death in the year 1933, whereupon appellant collected the face amount of the policies. Prior to Wylie’s death, appellant charged off as uncollectable $29,-152.86 of the debt of Wylie, and claimed the amounts as deductible items on its income for taxation purposes for the years in which the deductions were made. No return was made, or tax paid, on the proceeds of the insurance, whereupon a deficiency assessment was made, and paid under protest.' On the trial of the cause, all of the facts were stipulated, and the sole controversy here is whether or not appellant received the proceeds of the insurance as the transferee of the contracts by assignment or otherwise, within the meaning of section 22(b) of the Revenue Act of 1932, 47 Stat. 169, 26 U.S.C.A. § 22(b). The statute in question is as follows: “(b) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt from taxation under this title: “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); '“(2) Annuities, etc. Amounts received (other than amounts paid by reason of the death of the insured and interest" }, { "docid": "10172291", "title": "", "text": "has been held to be excluded from gross income under section 22 (b) (1). But, even assuming that petitioner did constructively receive annual installments of principal and that they were permitted to remain with the insurance companies as gifts for her children, her situation is readily distinguishable from the cited cases. The beneficiary to whom the proceeds are paid on the installment method actually receives a mixed installment of principal and interest. It may be inferred that Congress intended to favor the installment method of paying the proceeds to the family of the insured, and, possibly, added the incentive of tax-free interest on such installments. But we cannot believe, in view of the parenthetical clause, that Congress also intended to grant tax exemption to a beneficiary who, in actuality, received only interest and elected to leave the principal undiminished for the secondary beneficiaries. It is our opinion that the total amount of the payments received by the petitioner during the taxable years 1945, 1946, and 1947 from the insurers falls within the parenthetical clause of section 22 (b) (1) and is, therefore, taxable income. The principal consideration, as we see it, is that the proceeds of the policies have been retained and held intact by the insurers while interest thereon was paid to the primary beneficiary. Section 22 (b) (1) was amended in 1934, by changing the phrase “whether in a single sum or in installments” to read “whether in a single sum or otherwise.” The House and Senate Committee Reports, at that time, state that “This change * * * makes it clear that the proceeds of a life-insurance policy payable by reason of the death of the insured in the form of an annuity are not includible in gross income.” (Ways and Means Committee Report No. 704, p. 21, Finance Committee Report No. 558, p. 23, 73d Cong., 2d Sess.) This section can apply, however, only where proceeds of a life insurance policy are being so paid. Here, no part of the proceeds has been paid to the petitioner, up to and during the years in issue, as" }, { "docid": "10172294", "title": "", "text": "withdrawal and yet would have us hold that it renders in terest payments received by her nontaxable. The parenthetical clause states that “if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income.” The Code clearly speaks in the present tense and is not concerned here with future alterations of the arrangement between the insurer and the beneficiary whereby the principal may be diminished. During the taxable years in quest ion, the entire principal was retained by the insurers. Interest pi. yments thereon must accordingly be governed by the parenthetical clause. This conclusion is in accord with the interpretation of this clause given by the Senate Finance Committee at the time of its enactment: In order to prevent an exemption of earnings, -where the amount payable under the policy is placed in trust, upon the death of the insured, and earnings thereon paid, the committee amendment provides specifically that such payments shall be included in gross income. [Report of the Senate Finance Committee, Kept. No. 52, p. 20, to accompany H. R. 1 of the 69th Cong., 1st Sess.] . The question as to whether the petitioner constructively received 3 per cent of the principal annually need not be determined here. Even if 3-per cent payments were constructively received annually, they were not “installment payments which pro tanto diminished the total amounts payable under the policies.” See Commissioner v. Bartlett, 113 F. 2d 766 (C. A. 2, 1940). The determining fact here is that the entire principal was allowed to be retained undiminished by the insurers. It is not material whether the.petitioner’s failure to exercise her annual right of withdrawal resulted in an annual gift to her children, the secondary beneficiaries. Nor need we determine whether that portion of the amounts paid by the insurers to the petitioner, above the interest rate specified in the supplementary agreements, represented surplus dividends. It is settled law that surplus dividends are not exempt from gross income under section 22. (b) (1), Katharine C. Pierce, supra; United States v. Heilbroner, supra." }, { "docid": "10172292", "title": "", "text": "section 22 (b) (1) and is, therefore, taxable income. The principal consideration, as we see it, is that the proceeds of the policies have been retained and held intact by the insurers while interest thereon was paid to the primary beneficiary. Section 22 (b) (1) was amended in 1934, by changing the phrase “whether in a single sum or in installments” to read “whether in a single sum or otherwise.” The House and Senate Committee Reports, at that time, state that “This change * * * makes it clear that the proceeds of a life-insurance policy payable by reason of the death of the insured in the form of an annuity are not includible in gross income.” (Ways and Means Committee Report No. 704, p. 21, Finance Committee Report No. 558, p. 23, 73d Cong., 2d Sess.) This section can apply, however, only where proceeds of a life insurance policy are being so paid. Here, no part of the proceeds has been paid to the petitioner, up to and during the years in issue, as an annuity or otherwise. Such proceeds have been “held by the insurer under an agreement to pay interest thereon.” The payments in issue, therefore, come literally within the parenthetical clause of section 22(b) (1). In view of the clear words of such clause and the obvious intent of Congress, we are not at liberty to use the theory of constructive receipt to circumvent such words or intent. The petitioner puts great emphasis on statements in United States v. Heilbroner, supra, that payments to the primary beneficiary were taxable earnings because said amounts were “solely for the use of money ultimately payable without depletion to designated beneficiaries, and were fairly within the meaning of the word ‘interest’.” She attempts to distinguish her situation by her unexercised right to diminish' the principal by annual withdrawals of 3 per cent. The mere possibility that the petitioner might choose, at some time in the future, to exereise her limited right of withdrawal is not an adequate distinction. In fact, she might never choose to exercise this limited right of" }, { "docid": "9835226", "title": "", "text": "* . * * * Section 1 — Participation in Surplus— Dividends The proportion of divisible surplus accruing upon this Policy shall be ascertained annually. On each anniversary such surplus as shall have been apportioned by the Company to this Policy shall at the option of the Insured be either (a) Paid in cash; or (b) Applied to purchase a Participating Paid-up Addition to the sum insured; or (c) Left to accumulate at such rate of interest as the Company may declare on funds so held, but at a rate never less than three per cent compounded and credited annually, and withdrawable in cash on any anniversary or payable at the maturity of the Policy to the person entitled to its proceeds. * * * * *_» Section 117(a) of the Revenue Act of 1934,. 48 Stats. 680, 714, 26 U.S.O.A. Int.Rev.Acts, page 707. “Sec. £§] 22. Gross Income * * * * * “(b) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt from taxation under this title: “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); “(2) Annuities, etc. Amounts received (other than amounts paid by reason of the death of the insured and interest payments on such amounts) under a life insurance, endowment, or annuity contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. In the case of a transfer for a valuable consideration, by assignment or otherwise, of a life insurance, endowment, or annuity contract, or any interest therein, only the actual value of such consideration and the amount of the premiums and other sums subsequently paid by the transferee shall be" }, { "docid": "8650428", "title": "", "text": "previously deducted and were taxable income in the year received, and entered judgment in favor of defendant. Plaintiff seeks reversal on the ground that the proceeds of the policies received by»- it were not taxable income under the provisions of Section 22(b) (1) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev. Code, § 22(b) (1), because (1) it paid no valuable consideration for the assignment, or (2) if there was a valuable consideration paid it consisted of the amount originally advanced by it to Walton, and as the proceeds of the insurance policies were less than the consideration plus the premiums paid by plaintiff subsequent to the assignment, they were exempt under the provisions of Section 22(b) (2) of the Revenue Act. Section 22 of the Internal Revenue Code defines gross income as including various specifically named sources of income and as including income derived “from any source whatever.” Section 116(a) of the Revenue Act of 1942, 26 U.S.C.A. Int.Rev.Code, § 22(b) (12), provides that income attributable to the recovery during the taxable year of a bad debt is taxable to the extent of the amount of recovery. The recovery of the debt of Walton previously deducted as worthless, clearly constitutes taxable income in the year of recovery unless, as contended by plaintiff, it was exempt as proceeds received under a life insurance contract paid by reason of the death of the insured. Section 22(b) of the Internal Revenue Code provides for certain exclusions from gross income as follows: “Sec. 22 * * * (b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this chapter : “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or otherwise (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); “(2) Annuties, etc. * * * In the case of a transfer for a valuable consideration, by assignment or otherwise," }, { "docid": "14419941", "title": "", "text": "“The exclusion is * * * made available regardless of whether the employer has a contractual obligation to pay the death benefits.” That language is certainly that of some one who thinks that the new provision extends a boon instead of a burden to the recipients of gratuitous death benefits. With the utmost respect, I believe that the Committee’s view of the prior law was a misinterpretation. Even if the Congress itself were to solemnly declare the meaning of legislation adopted at a previous session it would have no more effect than an executive interpretation such as I. T. 4027, supra. Fire Companies Bldg. Corp. v. Commissioner of Int. Rev., 2 Cir., 54 F.2d 488, 489; American Exchange Securities Corp. v. Helvering, 2 Cir., 74 F.2d 213, 214. Thus I am not required to accept the interpretation of the Senate Committee and I adhere to my view that gratuitous death benefits were wholly exempt until the effective date of the Revenue Code of 1954. Judgment is awarded to plaintiff for $4,622.24 with interest from March 15, 1953, and costs. The foregoing opinion is intended to embody findings of fact and conclusions of law. Payment to Estate of Leonard S. Schlesinger, Deceased. . Flarsheim v. United States, 8 Cir., 156 F.2d 105; Varnedoe v. Allen, 5 Cir., 158 F.2d 467; Sutro v. U. S., 42-2 U.S.T.C. Rep. C.C.H. Para. 9523. . “(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this chapter: “(1) Life insurance, etc. Amounts received— “(A) under a life insurance contract, paid by reason of the death of the insured; or “(B), under a contract of an employer providing for the payment of such amounts to the beneficiaries of an employee, paid by reason of the death of the employee; whether in a single sum or otherwise (but if such amounts are held by the insurer, or the employer, under an agreement to pay interest thereon, the interest payments shall be included in gross income). The aggregate of the amounts excludible under subparagraph (B) by" }, { "docid": "18093431", "title": "", "text": "in gross income and shall be exempt from taxation under this title ; ******* (2) Annuities, etc. — Amounts received (other than .amounts paid by reason of the death of the insured and interest payments on such amounts and other than amounts received as annuities) under a life insurance or endowment contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per centum of the aggregate premiums or consideration paid for such annuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this title or prior income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity. * * * Art. 22 ib) (2)-2. [I’ogulations 94.1 Annuities.— Vmounts received as an annuity under an annuity or endowment contract include amounts received in periodical installments, whether annually, semiannually, quarterly, monthly, or otherwise, and whether for a fixed period, such as a term of years, or for an indefinite period, such as for life, or for life and a guaranteed fixed period, and which installments are payable or may be payable over a period longer than one year. * * * See Report No. 704, p. 21, of the Ways and Means Committee, and Report No. 558, p. 23, of the Finance Committee, accompanying the 1934 bill to provide revenue. In Report No. 704, p. 21, the following appears: “Section 22 (b) (2). Annuities, etc.: The present law does not tax annuities arising under contracts until the annuitant lias received, an aggregate amount of payments equal to the total amount paid for the annuity. Payments to annuitants are, in fact, based upon mortality tables which" }, { "docid": "17800375", "title": "", "text": "to named children of the insured upon the death of the defendant the face amount of the policies. This mode of settlement was chosen by the insured during his lifetime through the exercise of options given to him in the policies and there was no power in her after his death to make any change in the terms of settlement. After the defendant had included in her 1931 income tax return the above sum of $19,109 and paid the tax thereon the Commissioner of Internal Revenue made a ruling on or about January 27, 1933, determining that amounts received by a beneficiary under policies of life insurance such as those here involved constituted part of the consideration for the premium payments of the insured and formed a part of the amounts paid by reason of the death of the insured within the meaning of the income tax provisions excluding insurance from taxable income. The income tax provisions referred to were Section 22(b) (1) of the Revenue Act of 1928, 26 U.S.C.A. § 22, reading as follows: “§ 22. Gross income * * * “(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this title: “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income) * * *. ” Upon the basis of the ruling of the Commissioner the defendant filed a claim for refund covering the income taxes she had paid for 1931 on the insurance proceeds. Her claim was allowed and paid, but subsequently a new Commissioner reversed the earlier ruling and demanded a return of the refund and interest. His demand having been refused, this action was brought, resulting in the judgment for the United States already described. The question before us is whether the amounts received by the defendant from the insurance" }, { "docid": "21480777", "title": "", "text": "held that they were exempt from taxation under Sec. 22(b) (1) of the Revenue Act of 1934, which provided that there should be exempt from taxation and not included in gross income, “Amounts received under a life insurance contract paid by reason of the death of the insured, whether'in a single sum or otherwise (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); * * 26 U.S.C.A.Int.Rev. Code, § 22(b) (1). The payments are literally within the scope of the statutory exemption. They were received under insurance contracts ; they were paid by reason of the death of the insured; and they were not interest payments on amounts held by the insured under an agreement to pay interest thereon. The petitioner attempted to make rather subtle distinctions between what part of the payments might properly be considered an annuity and what might be termed strictly insurance. We cannot readily follow the argument and it seems beside the point anyway for Congress attempted no such classification. It exempted “payments”. These were certainly payments within the clear language used and that is enough so far as language is concerned. The Board made the only possible decision by reading that language, as it should, “in the ordinary and natural sense”. Helvering v. San Joaquin Fruit & Investment Co., 297 U.S. 496, 56 S.Ct. 569, 80 L.Ed. 824. The legislative history of the statute fortifies this conclusion. See, Sidney W. Winslow, Jr. v. Commissioner, 39 B.T.A. 373 where that is clearly shown. In United States v. Heilbroner, 2 Cir., 100 F.2d 379, we had in issue the taxability of payments which in reality were made for the use of the proceeds of matured policies retained by an insurance company. Such payments were made by way of interest and were accordingly held taxable since they were not within the terms of the exemption allowed in the above statute. The payments here involved were of an entirely different character in that they were installment payments which pro tan-to diminished the" }, { "docid": "15377844", "title": "", "text": "on the proceeds of the insurance, whereupon a deficiency assessment was made, and paid under protest.' On the trial of the cause, all of the facts were stipulated, and the sole controversy here is whether or not appellant received the proceeds of the insurance as the transferee of the contracts by assignment or otherwise, within the meaning of section 22(b) of the Revenue Act of 1932, 47 Stat. 169, 26 U.S.C.A. § 22(b). The statute in question is as follows: “(b) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt from taxation under this title: “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); '“(2) Annuities, etc. Amounts received (other than amounts paid by reason of the death of the insured and interest payments on such amounts) under a life insurance, endowment, or annuity contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. In the case of a transfer for a valuable consideration, by assignment or otherwise, of a life insurance, endowment, or annuity contract, or any interest therein, only the actual value of such consideration and the amount of the premiums and other sums subsequently paid by the transferee shall be exempt from taxation under paragraph (1) or this paragraph.” The insurable interest of appellant in the life of Wylie and the validity of the contract are not questioned. In procuring the insurance in the form and manner in which the policy was issued, Wylie acted for the benefit of appellant, and obtained no beneficial interest therein for himself. Should any of the benefits have inured to him under the terms of the policy, he" }, { "docid": "8650429", "title": "", "text": "a bad debt is taxable to the extent of the amount of recovery. The recovery of the debt of Walton previously deducted as worthless, clearly constitutes taxable income in the year of recovery unless, as contended by plaintiff, it was exempt as proceeds received under a life insurance contract paid by reason of the death of the insured. Section 22(b) of the Internal Revenue Code provides for certain exclusions from gross income as follows: “Sec. 22 * * * (b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this chapter : “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or otherwise (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); “(2) Annuties, etc. * * * In the case of a transfer for a valuable consideration, by assignment or otherwise, of a life insurance, cudowment, or annuity contract. or any interest therein, only the actual value of such consideration and the amount of the premiums and other sums subsequently paid by the transferee shall be exempt from taxation under paragraph (1) or this paragraph ; * * The policies on Walton’s life were written in favor of his wife. These policies by written assignment were pledged to plaintiff as collateral security for the Walton notes. Under the law of Missouri life insurance policies were subject to pledge as security for a debt. Missouri State Life Ins. Co. v. Cal. State Bank, 202 Mo.App. 347, 216 S.W. 785; First Nat. Bank of Beeville, Tex. v. Security Mut. Life Ins. Co. of Binghamton, N. Y., 283 Mo. 336, 222 S.W. 832. The assignment here purports in terms to transfer title. Its only purpose, however, was to pledge the policies as security for the insured’s indebtedness. This is conclusively shown by the recitals in the assignment itself and by the surrounding facts and circumstances and it should be" } ]

[ { "docid": "22875655", "title": "", "text": "a promise to arbitrate, C. Updegraff and W. McCoy, Arbitration of Labor Disputes, 85 (2d Ed. 1961). Before arbitration can actually proceed, it is necessary for the parties to supplement the agreement to arbitrate by defining the issue to be submitted to the arbitrator and by explicitly giving him authority to act. See District of Columbia v. Bailey, 1897, 171 U.S. 161, 18 S.Ct. 868, 43 L.Ed. 118. This statement of issues and designation of the arbiter is frequently incorporated into a separate document, called a submission agreement. If a party refuses to arbitrate a question, the crucial issue is whether the collective bargaining agreement requires it to do so. See Safeway Stores v. Bakery Workers, Local 111, 5 Cir. 1968, 390 F.2d 79, 81. In that event arbitrability is ordinarily a question of contract interpretation for the courts, Local 149 etc. v. General Electric Co., 1 Cir. 1957, 250 F.2d 922, cert. denied, 1958, 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed.2d 813. Even this issue may be submitted to binding arbitration, however, if there has been a clear demonstration that the parties contemplated it. United Steelworkers v. Warrior & Gulf Navigation Co., 1969, 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409. See, e. g., Metal Product Workers Union, Local 1645 v. Torrington Co., 2 Cir. 1966, 358 F.2d 103, 105. However, once the parties have gone beyond their promise to arbitrate and have actually submitted an issue to an arbiter, we must look both to their contract and to the submission of the issue to the arbitrator to determine his authority. Washington-Baltimore Newspaper Guild v. The Washington Post Co., D.C.Cir.1971, 143 U.S. App.D.C. 210, 212, 442 F.2d 1234, 1236; Lee v. Olin Mathieson Chemical Corp., D.W.D.Va.1967, 271 F.Supp. 635, 639. See also Textile Workers’ Union of America, AFL-CIO, Local Union No. 1386 v. American Thread Co., 4 Cir. 1961, 291 F.2d 894; Truck-Drivers, etc., Union, Local 784 v. Ulry-Talbert Co., 8 Cir. 1964, 330 F.2d 562; cf. Continental Materials Corp. v. Gaddis Mining Co., 10 Cir. 1962, 306 F.2d 952, 954" } ]

[ { "docid": "4819410", "title": "", "text": "and non-associate activity on behalf of any cause or organization, with the exception of Company-sponsored charity events.” When Local 1776 advised Rite Aid of its intent to submit the grievances to arbitration, Rite Aid filed a complaint in the federal District Court for the Middle District of Pennsylvania seeking a declaratory judgment that the Union’s grievances were not arbitrable. The parties filed cross-motions for summary judgment with supporting declarations. In March 2009, the District Court granted Rite Aid’s motion and denied the Union’s motion. This appeal followed. II. The Steelworkers Principles Fifty years ago, the Supreme Court decided three cases, collectively known as the “Steelworkers Trilogy,” which establish the principles that guide our determination of whether a grievance is arbitrable. See United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). As the Supreme Court has observed, “[t]hese precepts have served the industrial relations community well, and have led to continued reliance on arbitration ... as the preferred method of resolving disputes arising during the term of a collective-bargaining agreement.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Those precepts are as follows. (1) “[Arbitration is a matter of contract!,] and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. 1347. (2) Unless the parties “clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415 (citing Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. 1347). (3) In deciding whether the parties have agreed to arbitrate a particular grievance, courts may “not ... rule on" }, { "docid": "18690771", "title": "", "text": "the underlying claim for severance pay are not before us.\" (emphasis supplied)); AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649-50, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986) (holding that \"in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims\" (emphasis supplied)); cf. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960), quoted infra at 360; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960) (\"The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements.”); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (\"The courts ... have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.” (footnote omitted)). . The Court, moreover, took this prescription quite seriously, for, as Justice Marshall pointed out in his dissent, it was debatable whether the obligation at issue in Litton arose under the expired CBA or not. Compare Litton, 501 U.S. at 209-10, 111 S.Ct. at 2227 (construing the qualified seniority provision as not having vested) with id. at 215-18, 111 S.Ct. at 2230-31 (Marshall, J., dissenting) (contra) and Corcoran, Arbitrability of Labor Grievances, supra, 43 Syracuse L. Rev. at 1086-88 (agreeing with Justice Marshall’s dissent). Cf. Litton, 501 U.S. at 218-20, 111 S.Ct. at 2232 (Stevens, J., dissenting) (declining to address the merits of the dispute). . See Cincinnati Typographical Union No. 3, Local 14519 v. Gannett Satellite Info. Net., Inc., 17 F.3d 906, 910-11 (6th Cir.1994); International Bhd. of Teamsters, Local Union 1199 v. Pepsi-Cola Gen. Bottlers, Inc., 958 F.2d 1331, 1333-34 (6th Cir.1992); Cumberland Typographical Union No. 244 v. Times & Alleganian Co., 943 F.2d 401, 404-05 (4th Cir.1991); Winery, Distillery" }, { "docid": "1040171", "title": "", "text": "to commence a' new and separate action for enforcement. After a hearing, this court allowed Local 25’s motion, treating it as a motion to file a supplemental complaint rather than a motion to amend. Thereafter the parties filed cross motions for summary judgment. Penn challenges the award on three theories: 1) the executed collective bargaining agreement was not a binding contract; 2) the doctrine of res judicata defeats enforcement of the award; 3) the award is vague and ambiguous and thus unenforceable as it now stands. As the Steelworkers triology emphasizes, labor arbitration is a vital organ in the body of federal labor law. “[T]he grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). National policy favors the settlement of labor disputes arising out of collective bargaining agreements through the utilization of grievance machinery established by the parties to the agreement. This policy is served only when the method of settlement chosen by the parties is given full play. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). Thus a court reviewing an arbitration award rendered pursuant to a collective bargaining agreement may not review the merits of the award; for to do so would undermine our national policy. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Though the scope of judicial review of such awards is narrow, a court will not merely rubber stamp its approval. A court will refuse enforcement if the award fails to draw its essence from the collective bargaining agreement. Enterprise Wheel, supra, at 597, 80 S.Ct. 1358. A court may examine whether the agreement conferred jurisdiction upon the arbitrator. Camden Industries Co. v. Carpenters Local Union No. 1688, 353 F.2d 178, 180 (1st Cir. 1965). The burden, however, is on the party resisting enforcement. Given the national policy favoring labor" }, { "docid": "16856176", "title": "", "text": "Union Local 287 v. Frito-Lay, Inc., 849 F.2d 1210, 1211 (9th Cir.1988). The central issue in this case, the arbitra-bility of a dispute under a collective bargaining agreement, is a question of contract interpretation that we review de novo. McKinstry Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 16, 859 F.2d 1382, 1385 (9th Cir.1988). “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960)). The threshold question of arbitra-bility—which is no less than the question of the arbitrator’s jurisdiction to decide disputes—is thus a question for judicial resolution. AT & T, 475 U.S. at 649, 106 S.Ct. at 1418. If arbitrators were permitted to define their own jurisdiction, employers and unions would lose the power to determine which disputes they would like to have arbitrated. Having lost that power, they would become reluctant to incorporate arbitration provisions in their collective bargaining agreements. As the Court emphasized in AT & T, such a result would “undercut[] the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements.” 475 U.S. at 651, 106 S.Ct. at 1419. These are the rationales underlying the rule that “[ujnless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” Id. at 649, 106 S.Ct. at 1418. Of course, this rule is subject to an important caveat. In considering whether the Union’s grievance is arbitrable, we must carefully avoid ruling on the merits of that grievance. Id. The Court has expressed this caveat in strong terms. In AT & T, the Court warned: Whether “arguable” or not, indeed even if it appears to the court to be frivolous, the union’s claim that the employer has violated" }, { "docid": "5721705", "title": "", "text": "a specific agreement to the contrary, “arbitrability is a matter for the courts to determine,” Sheet Metal Workers Local No. 252 v. Standard Sheet Metal, 699 F.2d 481, 483 (9th Cir.1983); see John Wiley & Sons v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409 (1960); Aluminum, Company of America v. International Union, etc., 630 F.2d 1340, 1342 (9th Cir.1980); Amalgamated Clothing and Textiles Workers Union v. Ratner Corporation, 602 F.2d 1363, 1368 (9th Cir.1979); Leyva v. Certified Grocers of California, 593 F.2d 857, 861 (9th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979); see also Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Independent Truck Drivers Union, Local No. 1, 611 F.2d 580, 583-84 (5th Cir.1980); Carpenters District Council v. Brady Corp., 513 F.2d 1, 3 (10th Cir.1975) . In deciding arbitrability, “[t]he judicial inquiry ... must be strictly confined to the question whether the reluctant party did agree ... to give the arbitrator power to make the award he made,” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1353. “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” Id. In this case, the parties did not agree to submit jurisdictional disputes to arbitration. The collective bargaining agreement specifically excluded jurisdictional disputes. Since the arbitrator decided an issue which was the subject of a jurisdictional dispute, i.e. whether the Laborers were entitled to perform cleanup work, the award is unenforceable. “[I]t is of course fundamental that an arbitrator may decide only those issues submitted to arbitration, and that courts will refuse to enforce an award when the arbitrator exceeds its power.” International Association of Machinists and Aerospace Workers v. Texas Steel Co., 639 F.2d 279, 283 (5th Cir.1981). We recognize that under the collective bargaining agreement, the arbitrator had the" }, { "docid": "1040172", "title": "", "text": "served only when the method of settlement chosen by the parties is given full play. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). Thus a court reviewing an arbitration award rendered pursuant to a collective bargaining agreement may not review the merits of the award; for to do so would undermine our national policy. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Though the scope of judicial review of such awards is narrow, a court will not merely rubber stamp its approval. A court will refuse enforcement if the award fails to draw its essence from the collective bargaining agreement. Enterprise Wheel, supra, at 597, 80 S.Ct. 1358. A court may examine whether the agreement conferred jurisdiction upon the arbitrator. Camden Industries Co. v. Carpenters Local Union No. 1688, 353 F.2d 178, 180 (1st Cir. 1965). The burden, however, is on the party resisting enforcement. Given the national policy favoring labor .arbitration, courts are reluctant to withhold enforcement of labor arbitration awards. Lodge No. 725, Int. Ass’n of Mach. v. Mooney Aircraft, Inc., 410 F.2d 681, 683 (5th Cir. 1969). Penn’s first contention is that the collective bargaining agreement executed on July 12, 1971, is not a binding contract because “it was procurred by coercion including the pressures of an unlawful secondary boycott.” Arbitration is a contractual matter. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L. Ed.2d 1409 (1960). Thus in order for an arbitration award to be enforceable it must draw its essence from the contract. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). It follows that an award cannot be enforced against a party who was not bound by the collective bargaining agreement authorizing the arbitration. See e. g., Local Union No. 11, IBEW v. Jandon Electric Co., 429 F.2d 584 (9th Cir. 1970); Joint Board of Cloak, Skirt &" }, { "docid": "3033147", "title": "", "text": "at issue in this appeal. First, Bechtel argued that the March 12 agreement completely resolved the grievance, leaving nothing to arbitrate. Second, Bechtel argued that the grievance had not been properly processed through Step III (consideration by the General Presidents’ Committee and a Bechtel representative) and thus could not proceed to Step IV (arbitration). On August 9, 1986, the district court denied the petition, concluding that both the underlying grievance and Bechtel’s defenses to arbitration were arbitrable. We consider in turn Bechtel’s challenges to each of these conclusions. II. In the recent case of AT & T Technologies, Inc. v. Communication Workers, — U.S. —, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the Supreme Court reaffirmed the four basic principles governing courts and labor arbitrators that were first announced more than twenty-five years ago in the Steelworkers Trilogy: Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). First, “ ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Technologies, 106 S.Ct. at 1418 (quoting Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1353). Second, “the question of arbitrability — whether a collective-bargaining agreement creates a duty for the parties to arbitrate a particular grievance — is undeniably an issue for judicial determination.” Id. Third, “in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims.” 106 S.Ct. at 1419. Finally, “where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted" }, { "docid": "7320536", "title": "", "text": "an order to enforce the 1990 collective bargaining agreement by compelling Ethyl to arbitrate the dispute surrounding the testing procedure. Following discovery, the district court granted Ethyl’s motion for summary judgment, refusing to compel arbitration. Local 509 appeals. II. Our review of a motion for summary judgment is de novo. Cumberland Typographical Union 244 v. The Times & Allegarian Co., 943 F.2d 401, 407 (4th Cir.1991). The principles of arbitrability which govern this dispute are well settled. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986). Arbitration of a claim is available only when the parties involved agree to arbitration by contract. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). Whether parties must arbitrate a particular dispute is for the courts to decide on the basis of the contract. Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1352-53; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964). However, when deciding whether a dispute is arbitrable, courts may not judge the merits of the claim put forward. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346-47, 4 L.Ed.2d 1403 (1960). Even claims that courts might deem without merit are entitled to arbitration if the parties agreed in their contract that such issues were arbitrable. American Mfg. Co., 363 U.S. at 567-68, 80 S.Ct. at 1346. Because arbitration is the preferred method for settling labor disputes, any doubts should be decided in favor of arbitration. Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53. However, if the agreement specifically excludes a subject from arbitration, courts are not free to ignore the plain wording of the agreement and must decline to compel arbitration. District 50, United Mine Workers of America v. Chris-Craft Corp., 385 F.2d 946, 949-50 (6th Cir.1967). A. The 1990 collective bargaining agreement between Ethyl and Local 509 provides for arbitration of disputes" }, { "docid": "14206651", "title": "", "text": "an issue for judicial determination”. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 912, 11 L.Ed.2d 898 (1964); Woodcrest Nursing Home v. Local 144, Hotel, Hospital, Nursing Home & Allied Services Union, 788 F.2d 894, 897 (2d Cir.1986) (per curiam). Arbitration is a contractual right, and a party cannot be required to submit to arbitration a dispute which is not contemplated as arbitrable by the contract. AT & T, 475 U.S. at 648, 106 S.Ct. at 1418; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); McAllister Bros., Inc. v. A & S Transp. Co., 621 F.2d 519, 522 (2d Cir.1980). In deciding the contractual issue of arbitrability, courts must take pains not to rule on the merits of the underlying dispute: Whether ‘arguable’ or not, indeed even if it appears to the court to be frivolous, the union’s claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. AT & T, 475 U.S. at 649-50, 106 S.Ct. at 1419. Finally, where the contract contains an arbitration clause, courts should indulge a presumption in favor of arbitrability, which may only be overcome if “it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. at 650, 106 S.Ct. at 1419 (quoting United Steelworkers of America v. Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53) (internal quotations omitted). The collective bargaining agreement involved here provides for arbitration of “[a]ny grievance, dispute, complaint or claim arising out of or relating to this agreement”. Local 1814 asks us to read this provision with breadth enough to encompass its disagreement with NYSA. The government and NYSA maintain that since consent judgments derive their authority from the imprimatur of" }, { "docid": "6007536", "title": "", "text": "arbitrable and enjoining the Union from proceeding to arbitration. The Union appealed to this Court. Arbitration of labor disputes is a matter of contract, not a matter of right. United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 317 F.2d 214 (5th Cir. 1963). Determination of the arbitrability of this dispute therefore depends upon whether the collective agreement between the Company and the Union requires arbitration. In deciding this question, the permissible scope of the judicial inquiry is narrowly circumscribed by the Steelworkers’ trilogy. United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See also Lodge No. 12, District No. 37, International Association of Machinists v. Cameron Iron Works, Inc., 292 F.2d 112 (5th Cir. 1961). We are precluded from “weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim,” United Steelworkers of America v. American Manufacturing Co., supra, 363 U.S. at 568, 80 S.Ct., at 1346, such questions being for the arbitrator alone to decide. Our examination is solely “confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract”, United Steelworkers of America v. American Manufacturing Co., supra, and whether the parties “did agree to arbitrate the grievance * * United Steelworkers of America v. Warrior and Gulf Navigation Company, supra, 363 U.S. at 582, 80 S.Ct., at 1353. Having made this ‘limited inquiry, we conclude that this is a contractual dispute which the parties agreed to submit to arbitration. Compulsory retirement of employees upon attainment of a certain" }, { "docid": "8663410", "title": "", "text": "seeking enforcement of the awards. The District Court’s judgment of enforcement was appealed to this Court. There is little dispute as to the applicable law. Both parties seem to agree that the courts do not have jurisdiction to review the merits of the underlying dispute. If the arbitrator has authority to act, his decision will not be questioned by the courts. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The only point for us to decide is whether the arbitrator had authority to grant the awards in question. The authority of an arbitrator springs from the agreement between the parties, and it is upon the terms of this agreement that the award must be based. The arbitrator is not free to “dispense his own brand of industrial justice.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). However, in making the determination of whether an arbitrator has exceeded his authority the agreement must be broadly construed with all doubts being resolved in favor of his authority. Bonnot v. Congress of Independent Unions, Local #14, 331 F.2d 355 (8 Cir. 1964). As stated in United Steelworkers of America, etc. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L. Ed.2d 1409 (1960): “An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Applying this philosophy to the facts of the case at hand we see that hours, wages, and overtime are dealt with in the collective bargaining agreement. The Agreement provides that “should any dispute arise concerning the interpretation or application of this Agreement * * * the dispute or grievance shall be submitted to arbitration.” Thus on the face of the Agreement, these grievances would seem to be a proper subject for arbitration under the doctrine enunciated in United" }, { "docid": "14688138", "title": "", "text": "F.2d 133, 137-38 (D.C.Cir.1983). There can be no doubt that appellants had to submit their claim for “negligent termination” to the grievance process. Most of them did so. A decision in arbitration is normally conclusive in determining an employee’s rights under a collective bargaining agreement. Steelworkers’ Trilogy (United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)). The rationale behind this principle is obvious: to permit unrestricted judicial review of the arbitration process would utterly defeat the purpose of finality of arbitration by allowing a second tier of review. Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. at 1362; Devine v. White, 697 F.2d 421, 435 (D.C.Cir.1983). The grievance process provides the parties with a efficacious, economical, and informal route in resolving labor disputes. In addition, the process itself is more conducive to the preservation of ongoing employment relations than is litigation, and the arbitrator is, in general, more competent than the court in interpreting and implementing collective bargaining agreements. AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). A smooth continuance of employment relations is particularly vital as it pertains to WMATA because a serious labor dispute is likely to cause a curtailment of transit services. See, e.g., Office & Professional Employees Int’l Union v. WMATA, 724 F.2d 133, 138 (D.C.Cir.1983). An aggrieved employee is not always barred from a judicial forum but, as this court stated in Office & Prof. Emp. Int’l Union v. WMATA, 724 F.2d at 137: “[t]he case must present some egregious deviation from the norm before we will abandon the firmly-established principles of deference.” This court has also held that the decisions of an arbitrator can have res judi-cata (claim preclusion) or collateral estop-pel (issue preclusion) effect on a" }, { "docid": "2141033", "title": "", "text": "the parties’ substantive interpretations of the agreement,’ and would thus resolve the step in the parties’ dispute which was saved for the arbitrator in AT & T In short, AT & T does not forbid arbitration here, it calls for arbitration.” Without any further elaboration, the court directed the parties to arbitrate the Forbes dispute. On appeal, the company alleges that the district court erred in failing to give effect to section 21 of the collective bargaining agreement which expressly excluded from arbitration the company’s rejection of union-referred applicants. The union contends that, under section 5 of the agreement, the arbitrator is to resolve disputes as to the meaning of the terms in the contract and, therefore, the district judge’s order referring the grievance to the arbitrator was correct. Our review begins with the principles summarized in AT & T Technologies. Arbitration in collective bargaining agreements is a matter of contract; the arbitrators derive their authority from the parties’ voluntary agreement. “[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, 475 U.S. at 648, 106 S.Ct. at 1418; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). Whether a dispute is arbitrable is a question for the court to resolve. Absent the parties’ clear expression to the contrary, see Johnson v. United Food & Commercial Workers Int’l, Local No. 23, 828 F.2d 961, 963-66 (3d Cir.1987), that threshold question is to be decided by the court, not the arbitrator. AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418; Warrior & Gulf, 363 U.S. at 582, 583 n. 7, 80 S.Ct. at 1352, 1353 n. 7. In determining whether the parties have agreed to submit to arbitration, the court must avoid ruling on the merits of the underlying claims. AT & T Technologies, 475 U.S. 649, 106 S.Ct. at 1419; United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). Application" }, { "docid": "18048406", "title": "", "text": "not represent retirees and the Agreement does, not cover retirees. Hyster also argues that although it provides benefits to retirees, it has no obligation to do so under the Agreement. The Union, on the other hand, argues that even assuming arguendo that there are questions as to whether the Agreement covers retirees, those questions are for an arbitrator to resolve, not the court. In AT & T Technologies v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the Supreme Court outlined four basic principles for determining whether a labor dispute is arbitrable. First, “arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which it has not agreed to submit.” Id. at 648, 106 S.Ct. at 1418 (citing United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)). Second, whether an issue is arbitrable is a question for the court unless the parties have expressly contracted otherwise. Id. (Citing Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53.) “The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede a judicial determination that the collective bargaining agreement does in fact create such a duty.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964) (cited in AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418). An arbitrator is not empowered to determine his or her own jurisdiction. AT & T Technologies, 475 U.S. at 651, 106 S.Ct. at 1419. Third, “[i]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claim” that the collective bargaining agreement has been violated. AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418 (citing American Mfg., 363 U.S. at 568, 80 S.Ct. at" }, { "docid": "5721704", "title": "", "text": "of the National Labor Relations Board.” II STANDARD OF REVIEW Our review of a district court’s grant of summary judgment is de novo. Nevada v. United States, 731 F.2d 633, 635 (9th Cir.1984). III ARBITRABILITY The Laborers contend that the district court erred when it vacated the arbitration award on the grounds that the arbitrator exceeded his jurisdiction under the contract. They argue that arbitrability is itself an arbitrable issue, and that the award “draws its essence” from the Memorandum Agreement. “Federal policy generally favors arbitration of labor disputes.” Orange Belt District Council of Painters, No. 48 v. Maloney Specialties, Inc., 639 F.2d 487, 490 (9th Cir.1980). Courts should decline to review the merits of arbitration awards, rendering them unenforceable only when the award does not “[draw] its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). However, while a general presumption in favor of enforcing arbitration award exists, it is also clear that in the absence of a specific agreement to the contrary, “arbitrability is a matter for the courts to determine,” Sheet Metal Workers Local No. 252 v. Standard Sheet Metal, 699 F.2d 481, 483 (9th Cir.1983); see John Wiley & Sons v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409 (1960); Aluminum, Company of America v. International Union, etc., 630 F.2d 1340, 1342 (9th Cir.1980); Amalgamated Clothing and Textiles Workers Union v. Ratner Corporation, 602 F.2d 1363, 1368 (9th Cir.1979); Leyva v. Certified Grocers of California, 593 F.2d 857, 861 (9th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979); see also Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Independent Truck Drivers Union, Local No. 1, 611 F.2d 580, 583-84 (5th Cir.1980); Carpenters District Council v. Brady Corp., 513 F.2d 1, 3 (10th Cir.1975) . In deciding arbitrability, “[t]he judicial inquiry ... must be strictly" }, { "docid": "2326174", "title": "", "text": "In the case before us, however, the dispute submitted to the arbitrator was not one within the terms of the collective bargaining agreement, but went to the very existence of that contract. Although the union asserted the grievance arose from the labor contract, the employer denied that any agreement existed and initially objected to arbitration on that ground. In AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, -, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), the Court restated the longstanding rule that the question of arbitrability is “undeniably an issue for judicial determination.” Earlier the Court had said, “[t]he duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964). Without question the union and the employer were entitled to a judicial decision on the issue of arbitrability. Yet, we have no doubt that both parties could voluntarily decide, as they did here, to resort to binding arbitration as an alternative form of dispute resolution. Because an arbitrator’s jurisdiction is rooted in the agreement of the parties, they may agree to submit even the question of arbitrability to an arbitrator. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409 (1960); George Day Constr. Co. v. United Bhd. of Carpenters and Joiners of America, Local 354, 722 F.2d 1471, 1474-75 (9th Cir.1984). In general, a question ordinarily reserved for the courts may be submitted instead to binding arbitration if the parties consent. Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Indep. Truck Drivers Union, Local No. 1, 611 F.2d 580, 584 (5th Cir.1980). Once the parties have referred the matter to an arbitrator they are bound by his decision, Teamsters Local Union No. 764, 770 F.2d at 40, and may not later challenge his authority to resolve the dispute. Jones Dairy" }, { "docid": "23199831", "title": "", "text": "activities.” Holly’s appeal presents the usual argument of parties seeking to invalidate adverse arbitration awards. The Company insists that, under the teachings of the “Trilogy”, the question of whether a particular grievance is arbitrable requires less judicial scrutiny than the question of whether an award once rendered is enforceable. Arguing that the arbitrator exceeded his powers, the appellant relies principally on United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. at 597, 80 S.Ct. at 1361. It is well established that arbitration is a matter of contract and that arbitration provisions are construed with great liberality. See, e.g. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 Sup.Ct. 1347, 4 L.Ed.2d 1409 (1960). Moreover, Holly is quite correct in its argument that simply because a court would compel arbitration in a particular dispute does not necessarily mean that it would approve of everything or anything which the arbitrator might decide in resolving the dispute. See Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966); International Ass’n of Machinists AFL-CIO v. Hayes Corp., 296 F.2d 238 (5th Cir. 1961), rehearing denied, 316 F.2d 90 (1963). However, if the scope of judicial review in post-award proceedings were as broad as the appellant suggests, we would be tempted to slip into the practice, so prevalent before the “Trilogy”, of “deciding the merits in the guise of adjudicating the court-reserved issue of the scope * * * of the agreement to arbitrate.” United States Gypsum Co. v. United Steelworkers, 384 F.2d 38, 49 (5th Cir. 1967), cert. denied, 389" }, { "docid": "22464464", "title": "", "text": "in this regard. A. “We begin by recognizing that where parties to a collective bargaining agreement have provided that an arbitrator’s award shall be final and binding, the award is generally non-reviewable by a court.” Trailways Lines v. Trail-ways, Inc. Joint Council, 807 F.2d 1416, 1420 (8th Cir.1986). “As long as the arbitrator's award ‘draws its essence from the collective bargaining agreement,’ and is not merely ‘his own brand of industrial justice,' the award is legitimate.” United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 36, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987) (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (I960)). This deference means that “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Misco, 484 U.S. at 38, 108 S.Ct. at 371. While our review of an arbitration award is narrowly circumscribed, this judicial deference “does not grant carte blanche approval to any decision an arbitrator might make.” Piggly Wiggly Operators’ Whse. v. Piggly Wiggly Operators’ Whse. Indep. Truck Drivers Union, Local No. 1, 611 F.2d 580, 583 (5th Cir.1980). Rather, where “a court concludes that the arbitrator did not stay within the bounds of his authority, this principle of deference inevitably gives way ... to the greater principle that an award not drawing its essence from the agreement is not entitled to judicial enforcement.” Centralab v. Local No. 816, Int’l Union of Elec. Workers, 827 F.2d 1210, 1217 (8th Cir.1987). Such an award must be vacated because “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); see also Franklin Elec. Co. v. International Union, UAW, 886 F.2d 188, 190-91 (8th Cir.1989). While the issue of whether the arbitrator exceeded" }, { "docid": "6007535", "title": "", "text": "of company management, followed by arbitration in certain specified cases when agreement is not reached. Contending that Article VII of the collective agreement specifically precluded use of the grievance-arbitration procedure in this dispute, the Company refused to meet on the grievance. The Union then filed a second grievance alleging that the Company’s refusal to meet on the first grievance violated the grievance provisions of the collective bargaining contract. This second grievance, after being processed through the grievance procedure without resolution, was submitted to an arbitrator who found that the Company’s refusal had violated the contract. Following this determination, Southwestern Bell met with the Union on the grievance, but no agreement was reached and the Union invoked arbitration again. The Company responded by instituting this suit to enjoin arbitration, in which it reasserted that the dispute was not arbitrable under the express provision of Article VII. The Union cross-claimed seeking to compel arbitration. The District Court denied the Union’s motion for summary judgment and granted, sua sponte, summary judgment for the Company declaring the dispute not arbitrable and enjoining the Union from proceeding to arbitration. The Union appealed to this Court. Arbitration of labor disputes is a matter of contract, not a matter of right. United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 317 F.2d 214 (5th Cir. 1963). Determination of the arbitrability of this dispute therefore depends upon whether the collective agreement between the Company and the Union requires arbitration. In deciding this question, the permissible scope of the judicial inquiry is narrowly circumscribed by the Steelworkers’ trilogy. United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See also Lodge No." }, { "docid": "9849856", "title": "", "text": "The Arbitration Award In reviewing the merits of Garvey’s challenge to the arbitrator’s award, we start with the proposition that judicial review of an arbitrator’s decision in a labor dispute is extremely limited. Our deferential approach to judicial review found its first important expression in three 1960 Supreme Court cases that have come to be known as the “Steelworkers Trilogy.” See Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In those eases, the Court explained that a collective bargaining agreement is “more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” Warrior & Gulf Navigation Co., 363 U.S. at 578, 80 S.Ct. 1347. The Court went on to state that because the arbitrator is the .one chosen to implement the collective bargaining agreement’s system of self-government, “[i]t is the arbitrator’s construction [of the agreement] which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. 1358. Accord Federated Dept. Stores v. United Food & Comm. Workers Union, Local 1442, 901 F.2d 1494, 1496 (9th Cir.1990). More recently, the Court has reiterated the deference due to an arbitrator’s award: “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Intl. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). In Enterprise Wheel & Car Corp., the Supreme Court set forth one of the exceptions to the general rule of outright refusal to" } ]

[ { "docid": "22897890", "title": "", "text": "Bichi v. Gonzales, 157 Fed.Appx. 835, 837 (6th Cir. Nov.28, 2005) (per curiam). The two provisions at first glance seem to lead to a jurisdictional dead end: Aburto-Ro-cha is seeking review of the denial of an application for cancellation of removal, and that decision generally rests in the discretion of the Attorney General. See Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir.2007); Valenzuela-Alcantar v. INS, 309 F.3d 946, 949-50 (6th Cir.2002) (holding that a BIA decision on the hardship requirement is a discretionary decision not subject to judicial review). Yet two exceptions to these provisions — one explicitly drawn by the statute, one inferred from its general framework— modify the (seemingly) categorical imperative of the statute. First, the statute elsewhere explicitly permits us to review “constitutional claims or questions of law.” See 8 U.S.C. § 1252(a)(2)(D). Second, as the heading of the underlying provision suggests, see id. § 1252(a)(2)(B) (“Denials of discretionary relief’), the statute prevents us from reexamining only discretionary decisions by the agency, including discretionary denials of an application for cancellation of removal. “[N]on-discretionary decisions,” by contrast, are within our purview, even where they “underlie determinations that are ultimately discretionary.” Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir.2004); see also Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir.2005) (holding that § 1252(a)(2)(B) “divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal,” but does not remove jurisdiction to review the non-discretionary fact of an alien’s continuous presence in the United States). Aburto-Roeha insists that his challenge to the BIA’s hardship decision—premised on the theory that the BIA failed to follow its own precedent—presents a question of law falling within the first exception. He may be correct, and we have suggested as much before. See Billeke-Tolosa, 385 F.3d at 711-12 (describing an alien’s claim that the BIA failed to follow its own precedent as an assertion of “legal error” and noting that such a failure was barred by the BIA’s own regulations and potentially the alien’s due process rights). But we need not (and therefore do not)" } ]

[ { "docid": "22763792", "title": "", "text": "subjective discretionary judgment that has been carved out of the court’s jurisdiction). We have held that traditional abuse of discretion challenges recast as alleged due process violations do not present sufficiently colorable constitutional questions as to give this court jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)®) (holding that the petitioner’s argument that the Immigration Judge (“IJ”) violated her right to due process by misapplying the facts of her case to applicable law was “nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction”). Here, the BIA’s denial of the motion to reconsider falls outside the court’s jurisdiction because the court cannot reconsider the discretionary, fact-based determination that petitioners failed to demonstrate the requisite hardship. See Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (holding “where Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn”); see also Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (holding court lacks jurisdiction to review the BIA’s denial of a motion to reopen where the BIA already denied cancellation of removal on direct appeal based on failure to demonstrate exceptional and extremely unusual hardship, and the newly introduced evidence spoke to the same hardship). Accordingly, we lack jurisdiction to review the BIA’s denial of the motion to reconsider because petitioners’ contentions, namely that the agency failed to properly weight their hardship evidence, does not state a colorable due process claim. See Martinez-Rosas, supra, 424 F.3d at 930. Further, we lack jurisdiction to review petitioners’ contention that the agency abused its discretion in denying the motion to reopen to seek prosecutorial discretion based on the recent order of President Obama. See 8 U.S.C. § 1252(g); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001) (holding that section 1252(g) barred review of discretionary, quasi-prosecutorial decisions by asylum officers and INS district directors to adjudicate cases or refer them to immigration judges for hearing). Lastly, to the" }, { "docid": "13576", "title": "", "text": "to the BIA. On December 2, 2005, the BIA remanded for a hearing on Serrato-Soto’s possible eligibility for “post-completion” voluntary departure. On July 12, 2006, the IJ issued an oral decision denying Serrato-Soto’s application for voluntary departure on the merits and ordering him removed to Mexico, finding that Serrato-Soto’s 2004 conviction in Mississippi state court for fraudulent use of a social security number was a crime involving moral turpitude, which precluded Serrato-Soto from demonstrating the requisite good moral character necessary for voluntary departure. Serrato-Soto again appealed to the BIA, this time arguing that the 2004 conviction did not involve moral turpitude. On July 31, 2008, the BIA, per curiam, adopted and affirmed the IJ’s decision. II. Analysis A. Jurisdiction Serrato-Soto timely filed his petition for review on August 28, 2008, within 30 days of the BIA’s July 31, 2008 order. See 8 U.S.C. § 1252(b)(1). Pursuant to 8 U.S.C. § 1252(a)(2)(B)®, this court lacks jurisdiction to review the denial of relief under 8 U.S.C. § 1229c, the statutory authority for voluntary departure. However, § 1252(a)(2)(D) restores jurisdiction to circuit courts to review constitutional claims and questions of law raised in a petition for review of a removal order. 8 U.S.C. § 1252(a)(2)(D); Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). SerratoSoto’s argument presents a question of law, namely whether Serrato-Soto’s conviction for fraudulent use of a social security number or identifying information, in violation of Mississippi state law, is a crime involving moral turpitude. Accordingly, this Court has jurisdiction. B. Standard of Review Where, as here, “the BIA expressly adopts and affirms the IJ’s decision but adds comments of its own, we directly review the decision of the IJ while also considering the additional comments made by the [BIA].” Elias v. Gonzales, 490 F.3d 444, 449 (6th Cir.2007). We generally accord Chevron deference to the BIA’s reasonable construction of the INA, Ramirez-Canales v. Mukasey, 517 F.3d 904, 908 (6th Cir.2008), which requires us to uphold the BIA’s construction unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843-44," }, { "docid": "22090214", "title": "", "text": "TASHIMA, Circuit Judge: Luis Amoldo Alvarez Figueroa and Hilda Guerra de Alvarez (“Petitioners”) are a married couple who concede that they are removable aliens. They petition this Court to review the Board of Immigration Appeals’ (“BIA”) denial of their Applica tion for Cancellation of Removal. Petitioners contend that the Immigration Judge (“IJ”) applied improper legal standards in determining whether Petitioners had demonstrated that their removal would result in a sufficient hardship to their two citizen-children. Petitioners also argue that their petition should be granted and the IJ’s opinion vacated because the IJ’s opinion is indiscernible. The government, on the other hand, argues that we lack jurisdiction to hear Petitioners’ challenge because Petitioners seek review of a discretionary-determination, which this Court lacks jurisdiction to review, and because Petitioners failed to exhaust their administrative remedies with the BIA. For the reasons discussed below, we hold that Petitioners exhausted their challenges, that we have jurisdiction to hear their legal challenges, and that the IJ committed legal error. Thus, we grant the petition and remand the case to the BIA for further proceedings. I. JURISDICTION Petitioners invoke this Court’s jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). The government argues that we lack jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). Because jurisdiction is disputed, we consider the jurisdictional question in Part PV.A, infra. We, of course, have jurisdiction to determine our own jurisdiction. See Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). II. FACTUAL AND PROCEDURAL BACKGROUND Petitioners, husband and wife, are the parents of three children — Claudia, the eldest child, Louis and Natalie. The latter two are United States citizens. Petitioners and Claudia are aliens from Jalisco, Mexico. In July 1999, Petitioners filed an Application for Asylum and Withholding of Removal with the then-immigration and Naturalization Service (“INS”). Shortly after filing that application, Petitioners received from the INS a Notice to Appear charging that they were subject to removal from the United States. Petitioners then filed an Application for Cancellation of Removal and Adjustment of Status. Removal proceedings began in September 1999. At the initial hearing, Petitioners conceded removability, and the" }, { "docid": "22303250", "title": "", "text": "BIA’s denial of cancellation of removal, because the BIA failed to consider all the hardship factors in their totality, as required by the BIA’s precedential decision in In re Gonzalez Recinas, 23 I. & N. Dec. 467, 473 (BIA 2002). This court has interpreted § 1252(a)(2)(B)© to permit review of a BIA decision in which the Board allegedly failed to follow its own precedent, Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.2008), but Ettienne’s case is not controlled by that case. This court reviewed Aburto-Rocha’s claim by asking whether the BIA had correctly distilled the standard of review embodied by the cases Aburto-Rocha alleged the agency had failed to follow. Id. at 504. In contrast, Ettienne argues that the IJ ignored the totality requirement by failing to specifically identify every hardship factor that Ettienne’s family would face upon her removal. This is a challenge to the weighing of the evidence that, if accepted, would effectively eliminate the jurisdictional bar on review of denials of cancellation of removal. Aburto-Rocha did not purport to invalidate the statutory bar, and we do not read it to do so. The preclusion of review of cancellation denials does not extend to “questions of law” under 8 U.S.C. § 1252(a)(2)(D), or to “nondiscretionary issues” under a theoretically distinct but largely coterminous exception to the preclusion of review described in Aburto-Rocha, 535 F.3d at 503. To determine whether a cancellation-of-removal claim falls within such an exception to the jurisdictional bar, the court must consider what type of analysis would be necessary to evaluate the claim on its merits. Where our decision requires resolution of a contested interpretation of language in the statute or the regulations, the appeal will fall within our jurisdiction. In Garcia v. Holder, 638 F.3d 511 (6th Cir.2011), for example, the petitioner argued that his prior state conviction did not place him under the INA provision making permanent residents convicted of aggravated felonies ineligible for cancellation of removal, 8 U.S.C. § 1229b(a)(3). This court readily recognized its jurisdiction to consider the question of “whether Garcia’s state drug conviction amounts to an aggravated felony" }, { "docid": "22664590", "title": "", "text": "this requirement. She does not contend that she was prevented from presenting her case before the IJ, denied a full and fair hearing before an impartial adjudicator, or otherwise denied a basic due process right. Rather, she contends that the IJ erred in finding that she did not meet the requirement of “exceptional and extremely unusual hardship.” Such an assertion is nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)®. Therefore, we dismiss this claim. See Torres-Aguilar, 246 F.3d at 1271. Martinez-Rosas also argues that the BIA denied her right to due process by summarily affirming the IJ’s decision pursuant to 8 C.F.R. § 1003.1(d)(2)®. In Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.2003), we held that the BIA does not deny a petitioner’s right to due process by summarily affirming an IJ’s decision that he does not meet the statutory requirements for cancellation of removal, including the requirement that a qualifying United States citizen or lawfully admitted alien relative would suffer “exceptional and extremely unusual hardship” if the petitioner were removed. Id. at 848. Therefore, Martinez-Rosas’ claim that the BIA denied her right to due process lacks merit. V. In summary, habeas appeals challenging final removal orders that were pending on the date the REAL ID Act of 2005 became effective shall be treated as petitions for review. Although we have jurisdiction to review constitutional claims and questions of law presented in petitions for review of final removal orders, we lack jurisdiction to review the subjective, discretionary determination that an alien failed to satisfy the “exceptional and extremely unusual hardship” requirement for cancellation of removal. Furthermore, traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction. Finally, our bold- ing in Falcon Carricke forecloses Martinez-Rosas’ challenge to the summary af-firmance procedure adopted by the BIA. Therefore, we dismiss the petition in part and deny the petition in part. PETITION DISMISSED IN PART AND DENIED IN PART." }, { "docid": "9275881", "title": "", "text": "v. Holder , 632 F.3d 351, 353 (6th Cir. 2011) ; Pepaj v. Mukasey , 509 F.3d 725, 728 (6th Cir. 2007). Petitioner's attempt to characterize his challenge to the BIA's recitation of the facts as a question of law thus runs headlong into a solid wall of circuit precedent. His claim-that the Board reviewed the IJ's factual findings de novo rather than for clear error-does not ask this court to construe a statute, or even the relevant regulation. Rather, it asks us to review the Board's application of 8 C.F.R. § 1003.1(d)(3)(i) and determine whether the BIA's factual statements differed from those made by the IJ. This we cannot do, for it presents precisely the kind of mixed question of law and fact that we have repeatedly said falls outside of § 1252(a)(2)(D) 's definition of \"questions of law.\" In an analogous case, we held that the exception allowing review for legal issues does not apply when the purported \"legal issue\" is whether one set of facts is similar to or different from the facts in agency precedent. Ettienne v. Holder , 659 F.3d 513, 518 (6th Cir. 2011). As we said in Ettienne , \"this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner's case and those of precedential decisions.\" Id. In Ettienne , the petitioner argued that the BIA had a legal obligation to comply with its own precedent requiring it to consider certain hardship factors in their totality, and that we had jurisdiction to consider whether the BIA had done so. Id. at 517. We held that we lacked jurisdiction, however, because Ettienne's challenge amounted to a request to second-guess the BIA's weighing of the factors in her particular case. Id. at 518. This, we concluded, was beyond the limited scope of the exception for legal questions because if the exception were so expanded, it would effectively negate Congress's command that such factual and discretionary decisions-as opposed to constitutional or legal decisions-may not be judicially reviewed. Permitting judicial review here would open virtually all" }, { "docid": "12318334", "title": "", "text": "F.3d 87, 89-90 (1st Cir.2010) (holding that the court has no jurisdiction to review a denial of a waiver under § 1227(a)(1)(H)); Singh v. Gonzales, 451 F.3d 400, 410-11 (6th Cir.2006) (same); San Pedro v. Ashcroft, 395 F.3d 1156, 1157-58 (9th Cir.2005) (same). Consequently, we lack jurisdiction to review the BIA’s discretionary denial of Alhuay’s application for a waiver of removability. We also lack jurisdiction to review the BIA’s denial of Alhuay’s application for cancellation of removal under INA § 240A, 8 U.S.C. § 1229b. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221-23 (11th Cir.2006); see 8 U.S.C. § 1252(a)(2)(B)(i) (expressly stripping the court’s jurisdiction to review “any judgment regarding the granting of relief under section ... 1229b” (emphasis added)). The addition of § 1252(a)(2)(D) in 2005 does not change that result. That section permits the courts to review “constitutional claims or questions of law” notwithstanding the jurisdiction-stripping provisions of § 1252(a)(2)(B) and (C). INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Because the BIA affirmed the IJ’s denial of Alhuay’s application for cancellation of removal not as a matter of discretion, but because she failed to demonstrate “exceptional and extremely unusual hardship” to a qualifying relative, INA § 240A(b)(l)(D), 8 U.S.C. § 1229b(b)(l)(D), Alhuay claims that her petition raises only constitutional and legal questions. But our decision in Martinez forecloses this argument. In Martinez, we further held that § 1252(a)(2)(D) does not restore our juris diction in cases where the BIA affirms an IJ’s order due to the petitioner’s failure to demonstrate the requisite hardship. Martinez, 446 F.3d at 1222. Following four other circuits, the Martinez Court explained that such challenges are not constitutional claims or questions of law because what constitutes an “exceptional and extremely unusual hardship” is itself a discretionary determination. Id. (citing cases). Accordingly, to the extent Alhuay petitions for review of the denial of her applications for waiver of removability and cancellation of removal, we DISMISS the petition for lack of jurisdiction. III. CONCLUSION For the foregoing reasons, Alhuay’s petition for review is DISMISSED in part and DENIED in part. . Presumably, this is a" }, { "docid": "23092822", "title": "", "text": "because Ridore’s specific circumstances and the current conditions in Haiti’s prisons were distinguishable from those existing at the time of In re J E-, such that cancellation was warranted as a matter of discretion. 2007 Appeal to the BIA. The DHS appealed the IJ’s decision to the BIA, which sustained the appeal and vacated the IJ’s grant of CAT protection and cancellation of removal. The BIA concluded that Ridore’s case was controlled by In re J-E-for the purposes of his CAT protection claim, and that a discretionary grant of cancellation was unwarranted. Ridore now petitions for review. Jurisdiction and Standard of Review We have exclusive jurisdiction over petitions for review of final orders of removal. See 8 U.S.C. § 1252. We have jurisdiction to review Ridore’s legal challenges to the BIA’s denial of his CAT claim pursuant to § 1252(a)(2)(D). Although we typically may not review the BIA’s finding that a case does not warrant a discretionary grant of cancellation of removal, see id. § 1252(a)(2)(B)®, such jurisdiction stripping provisions do not apply where, as here, the petitioner raises a question of law — whether the BIA acted within its regulatory authority. See Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006), abrogated on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008). We review factual findings for substantial evidence, see Azanor, 364 F.3d at 1018, and legal questions de novo, see De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). Whether the BIA has applied the correct standard of review is a question of law. See Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir.2012). Discussion The central question presented here is whether the BIA, in overruling the IJ’s grants of CAT protection and discretionary cancellation of removal, failed to apply a clear error standard of review to the IJ’s factual findings and engaged in factfinding that it is not authorized to do in its appellate function. The governing regulations explicitly state that the BIA shall not “engage in de novo review of findings of fact determined by an immigration judge.” 8 C.F.R. § 1003.1(d)(3)®." }, { "docid": "22763791", "title": "", "text": "but instead, are challenging the BIA’s denial of the reconsideration motion on the ground that the BIA applied the wrong legal standard and failed to consider petitioners’ equities in support of their claim for cancellation of removal. Under 8 U.S.C. § 1252, we have jurisdiction to review final orders of removal. See Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). However, absent a colorable legal or constitutional claim, we lack jurisdiction to review the BIA’s discretionary determination that an alien failed to prove that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1252(a)(2)(B)® (stating in relevant part that “[njotwithstanding any other provision of law, no court shall have jurisdiction to review—-any judgment regarding the granting of relief under section ... 1229b [cancellation of removal]”). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (holding that an exceptional and extremely unusual hardship determination is a subjective discretionary judgment that has been carved out of the court’s jurisdiction). We have held that traditional abuse of discretion challenges recast as alleged due process violations do not present sufficiently colorable constitutional questions as to give this court jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)®) (holding that the petitioner’s argument that the Immigration Judge (“IJ”) violated her right to due process by misapplying the facts of her case to applicable law was “nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction”). Here, the BIA’s denial of the motion to reconsider falls outside the court’s jurisdiction because the court cannot reconsider the discretionary, fact-based determination that petitioners failed to demonstrate the requisite hardship. See Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (holding “where Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn”); see also Fernandez" }, { "docid": "22303249", "title": "", "text": "Ettienne had conceded removability for being in the country without authorization. The BIA affirmed the IJ’s finding that Ettienne had not demonstrated “exceptional and extremely unusual hardship” to Bradley or their children. Ettienne appealed to this court, and the Government moved for dismissal based on lack of jurisdiction, citing the statutory bar on review of cancellation denials, 8 U.S.C. § 1252(a)(2)(B)(i). On October 12, 2010, a panel denied the Government’s motion to dismiss on the grounds that Ettienne had claimed that the BIA failed to follow its own precedent in making the hardship determination. In spite of this ruling, the Government maintains, correctly, that Ettienne’s appeal should be dismissed for lack of jurisdiction. This court may revisit the issue of jurisdiction even after a motions panel has denied a motion to dismiss, see In re LWD, Inc., 335 Fed.Appx. 523, 526 (6th Cir.2009), and such a course is appropriate here to avoid erroneously exercising jurisdiction over a statutorily barred claim. Ettienne argues that she is not subject to the statutory prohibition on review of the BIA’s denial of cancellation of removal, because the BIA failed to consider all the hardship factors in their totality, as required by the BIA’s precedential decision in In re Gonzalez Recinas, 23 I. & N. Dec. 467, 473 (BIA 2002). This court has interpreted § 1252(a)(2)(B)© to permit review of a BIA decision in which the Board allegedly failed to follow its own precedent, Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.2008), but Ettienne’s case is not controlled by that case. This court reviewed Aburto-Rocha’s claim by asking whether the BIA had correctly distilled the standard of review embodied by the cases Aburto-Rocha alleged the agency had failed to follow. Id. at 504. In contrast, Ettienne argues that the IJ ignored the totality requirement by failing to specifically identify every hardship factor that Ettienne’s family would face upon her removal. This is a challenge to the weighing of the evidence that, if accepted, would effectively eliminate the jurisdictional bar on review of denials of cancellation of removal. Aburto-Rocha did not purport to invalidate the" }, { "docid": "23122775", "title": "", "text": "OPINION IKUTA, Circuit Judge: Petitioner Michael Angelo Planes petitions for review of a final order of removal. An Immigration Judge (IJ) ordered Planes removed pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for violation of California Penal Code § 476a(a) (passing a bad check with intent to defraud), and his 2004 conviction for violating 18 U.S.C. § 1029(a)(3) (possession of 15 or more access devices with intent to defraud). The IJ also exercised his discretion to deny Planes’s request for cancellation of removal. The Board of Immigration Appeals (BIA) affirmed the removal order and discretionary denial. Planes petitions for review of the BIA’s decision. Because we conclude (1) that Planes stands convicted of two crimes involving moral turpitude, for each of which a sentence of a year or more may be imposed, and which did not arise out of a common criminal scheme; and (2) that the IJ’s denial of the cancellation request was a discretionary decision as to which Planes has not raised a colorable legal or constitutional claim, we lack jurisdiction over, and therefore dismiss, the petition for review. 8 U.S.C. § 1252(a)(2)(B)(I), (C). I Planes is a native and citizen of the Philippines and a lawful permanent resident of the United States. After entering the United States in July 1981, he sustained two relevant criminal convictions. In 1998, he pleaded guilty and was convicted of delivering or making a check with insufficient funds with intent to defraud, in violation of California Penal Code § 476a(a). In 2004, he pleaded guilty to and was convicted of possessing 15 or more “access devices,” in violation of 18 U.S.C. § 1029(a)(3). Planes subsequently appealed the sentence imposed for the § 1029(a)(3) offense, but did not appeal the conviction itself. We remanded Planes’s challenge to the sentence to the district court “for further proceedings consistent with United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005).” On remand, the district court has not yet issued any decision regarding Planes’s sentence. On September 20, 2005, the former Immigration" }, { "docid": "22890613", "title": "", "text": "BLACK, Circuit Judge: Petitioner Jose Felix Martinez petitions for review of the Board of Immigration Appeals’ (BIA’s) affirmance of the Immigration Judge’s (IJ’s) order denying his application for cancellation of removal, pursuant to 8 U.S.C. § 1229b(b). Specifically, he challenges the BIA’s discretionary determination that he failed to satisfy § 1229b(b)(l)(D)’s “exceptional and extremely unusual hardship” requirement. We dismiss the petition for lack of jurisdiction. I. BACKGROUND The following facts are not in dispute. Petitioner is a native and citizen of Mexico who entered the United States without inspection in 1989. His two children— Jose Felix, who was born in January 1992, and Carlos Martinez, who was born in January 1996' — are U.S. citizens. Both children live with Petitioner. On August 22, 2001, the former Immigration and Naturalization Service (INS) issued Petitioner a Notice to Appear, alleging he is an alien present in the United States without being admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)®. At his hearing, Petitioner conceded remov- ability under § 1182(a)(6)(A)(i), but requested cancellation of removal pursuant to § 1229b(b). The IJ denied his application for cancellation of removal on October 29, 2003, holding Petitioner failed to demonstrate his removal would result in “exceptional and extremely unusual hardship” to his two U.S. citizen children, pursuant to § 1229b(b)(l)(D). Petitioner timely appealed the IJ’s decision to the BIA. In a written opinion, the BIA dismissed the appeal on December 8, 2004, expressly agreeing with the IJ that Petitioner did not demonstrate his two U.S. citizen children would suffer “exceptional and extremely unusual hardship” upon his removal to Mexico. This petition for review ensued. II. STANDARD OF REVIEW ‘We review subject matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir.2003). III. ANALYSIS The issue of first impression we address is whether 8 U.S.C. § 1252(a)(2)(D) restores our ability to review the BIA’s purely discretionary determination that a petitioner failed to satisfy § 1229b(b)(l)(D)’s “exceptional and extremely unusual hardship” requirement. Section 1229b(b)(l) gives the Attorney General discretion to cancel the removal of an alien who demonstrates (1) continuous physical" }, { "docid": "21838075", "title": "", "text": "EBEL, Circuit Judge.- The question- presented in this petition for -review is whether Petitioner Juan Alberto Lucio-Rayos’s municipal theft conviction qualifies as a crime involving moral turpitude (“CIMT”), which would make him ineligible for cancellation of. removal. Lucio-Rayos was convicted under a divisible municipal code provision that sets forth several different theft, offenses, some ■ of which qualify as CIMTs and some of which do not. Applying the modified categorical approach, it is not possible to tell which theft offense was the basis of Lucio-Ra-yos’s conviction. However, because it is Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, he bears the brunt of. this inconclusive record. We, therefore, uphold, the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos has not shown that he is eligible for cancellation of removal We also conclude that the immigration judge (“I J”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. Thus, having jurisdiction under 8 U.S.C. §'1252(a)(2)(D), we DENY Lucio-Rayos’s petition for review. I. BACKGROUND Lucio-Rayos, a citizen of Mexico who entered the United States without authorization, conceded that he is subject to removal, but seeks discretionary relief from the Attorney General in the form of cancellation of removal under 8 U.S.C. § 1229b(b). The IJ ruled that Lucio-Rayos is not eligible to apply for cancellation of removal because his prior theft conviction under the Westminster, Colorado Municipal Code, WMC 6-3-l(A), is for a CIMT. The BIA affirmed. Lucio-Rayos has petitioned this court to review the BIA’s decision. See 8 U.S.C. § 1252. We have jurisdiction to consider his constitutional claims and questions of law involving statutory construction. Id § 1252(a)(2)(D); see Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017). We review these matters de novo, although in appropriate circumstances we may defer to the BIA’s interpretation of the immigration laws it implements. See Flores-Molina, 850 F.3d at 1157. II. DISCUSSION A. The IJ did not deprive Lucio-Rayos of due process by refusing to recuse As an initial matter, Lucio-Rayos contends that the IJ erred in refusing to recuse from considering Lucio-Rayos’s case" }, { "docid": "22763790", "title": "", "text": "ORDER Luis Jesus Vilchiz-Soto and Obdulia Resendiz-Ledesma, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen removal proceedings and reconsider a previous denial of their application for cancellation of removal. The BIA denied the motion to reconsider because petitioners failed to demonstrate any error of fact or law in the BIA’s September 22, 2011 decision, which was based on petitioners’ failure to demonstrate “exceptional and extremely unusual hardship” to their qualifying relatives. 8 C.F.R. § 1003.2(b)(1). The BIA also denied the motion to reopen because petitioners did not demonstrate reopening would be proper under 8 C.F.R. § 1003.2(c)(1). The government contends that we lack jurisdiction to review the denial of the motion to reconsider because petitioners’ challenge is nothing more than a challenge to the BIA’s discretionary determination that petitioners failed to establish that their removal would cause the requisite hardship to their qualifying relatives. Petitioners contend that we do have jurisdiction because they are not challenging the BIA’s discretionary determinations but instead, are challenging the BIA’s denial of the reconsideration motion on the ground that the BIA applied the wrong legal standard and failed to consider petitioners’ equities in support of their claim for cancellation of removal. Under 8 U.S.C. § 1252, we have jurisdiction to review final orders of removal. See Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). However, absent a colorable legal or constitutional claim, we lack jurisdiction to review the BIA’s discretionary determination that an alien failed to prove that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1252(a)(2)(B)® (stating in relevant part that “[njotwithstanding any other provision of law, no court shall have jurisdiction to review—-any judgment regarding the granting of relief under section ... 1229b [cancellation of removal]”). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (holding that an exceptional and extremely unusual hardship determination is a" }, { "docid": "10907965", "title": "", "text": "PER CURIAM. Petitioner Jesus Meraz-Reyes, a citizen of Mexico unlawfully present in the United States, conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b, or in the alternative, voluntary departure. An immigration judge denied cancellation of removal but granted voluntary departure with an alternative order of removal to Mexico. In denying cancellation of removal, the immigration judge found that the petitioner failed to establish that his removal would result in an “extraordinary and extremely unusual hardship” to his eight-year-old, United States-citizen child. 8 U.S.C. § 1229b(b)(l)(D). The petitioner appealed to the Board of Immigration Appeals (BIA), and the BIA affirmed. The petitioner now appeals to our court. He concedes that courts generally lack jurisdiction to review denials of petitions for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)® (“Notwithstanding any other provision of law ... no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b.”); Bropleh v. Gonzales, 428 F.3d 772, 778 (8th Cir.2005); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir.2003) (per curiam) (“The controlling statute expressly states that denials of discretionary relief, such as that under 8 U.S.C. § 1229b, are not subject to review by the courts.”). He nevertheless argues that our court has jurisdiction over his case under an exception to the general rule that would permit courts to review substantial constitutional challenges to the Immigration and Nationality Act or administrative proceedings under the act. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in sub-paragraph (B) ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.”); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n. 1 (8th Cir.2004) (“Several circuits have suggested that courts retain jurisdiction to review discretionary decisions by immigration judges if a petitioner has demonstrated a substantial constitutional violation.”). Despite arguing in favor of such an exception, the petitioner does not identify any reviewable claim. He does not argue that the BIA failed to recognize its discretionary authority or that the" }, { "docid": "22817561", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We write to address whether this Court has jurisdiction to review a denial by the Board of Immigration Appeals (“BIA”) of a petitioner’s request for cancellation of removal on the basis of its finding that the petitioner failed to demonstrate that his removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S. citizen relative. Because we hold that such denials are discretionary judgments committed by law to the BIA (acting on behalf of the Attorney General) and that we are precluded from reviewing such discretionary judgments in the cancellation of removal context by 8 U.S.C. § 1252(a)(2)(B)(i), we dismiss the petition for review for lack of jurisdiction. We further hold that, in the circumstances presented, Section 106 of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231 (“REAL ID Act”), does not override the jurisdiction-denying provisions of 8 U.S.C. § 1252(a)(2)(B)(i) because petitioner challenges a discretionary determination of the BIA and does not raise any “constitutional claims or questions of law.” Background Gustavo A. De La Vega, a native and citizen of Guatemala, petitions for review of a June 4, 2003 decision of the BIA vacating an August 29, 2000 order of an Immigration Judge (“IJ”) granting petitioner’s request for cancellation of removal. Petitioner entered the United States on or about March 30, 1986 and resided in this country for over a decade before being served in May 1998 with a Notice to Appear charging him with “removability.” Petitioner admitted the truth of the factual allegations — that he was an alien present in the United States without being admitted or paroled — and conceded his remova-bility, but sought the discretionary relief of cancellation of removal. Petitioner was statutorily eligible to apply for cancellation of removal due to his uncontested status as a nonpermanent resident with ten years or more of continuous physical presence in the United States. His wife, a native and citizen of Mexico, could not satisfy the ten-year physical presence requirement and therefore departed the United States voluntarily in 1998, returning to Mexico along with petitioner’s U.S. citizen" }, { "docid": "9275882", "title": "", "text": "facts in agency precedent. Ettienne v. Holder , 659 F.3d 513, 518 (6th Cir. 2011). As we said in Ettienne , \"this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner's case and those of precedential decisions.\" Id. In Ettienne , the petitioner argued that the BIA had a legal obligation to comply with its own precedent requiring it to consider certain hardship factors in their totality, and that we had jurisdiction to consider whether the BIA had done so. Id. at 517. We held that we lacked jurisdiction, however, because Ettienne's challenge amounted to a request to second-guess the BIA's weighing of the factors in her particular case. Id. at 518. This, we concluded, was beyond the limited scope of the exception for legal questions because if the exception were so expanded, it would effectively negate Congress's command that such factual and discretionary decisions-as opposed to constitutional or legal decisions-may not be judicially reviewed. Permitting judicial review here would open virtually all BIA factual determinations to judicial review, contrary to the clear intent of Congress. As we explained in Almuhtaseb , \"the purpose of [ § 1252(a)(2)(D) ] is to permit judicial review over those issues that were historically reviewable on habeas-constitutional and statutory-construction questions, not discretionary or factual questions.\" 453 F.3d at 748 (emphasis deleted) (quoting Chen v. U.S. Dep't of Justice , 434 F.3d 144, 153 (2d Cir. 2006) ). While any question of whether an agency determination is supported by substantial evidence or constitutes an abuse of discretion may be in some sense \"legal,\" Congress obviously intended a narrower meaning to the term. Letting every BIA discretionary decision be reviewed as \"legal\" under the guise of reviewing the BIA's application of its scope of review to an IJ's factual or discretionary determinations would gut Congress's attempt in § 1252(a)(2)(D) to limit judicial review over claims that Congress has placed within the Attorney General's discretion. Moreover, this is not a case in which the BIA has purported to apply an incorrect legal standard. In Ettienne" }, { "docid": "22303248", "title": "", "text": "alien to remain in the United States because her departure would effect an exceptional and extremely unusual hardship on a citizen parent, spouse, or child. The IJ found that Ettienne met the first three statutory requirements for cancellation of removal: at least ten years of continuous presence in the United States, good moral character for the statutory period, and lack of certain criminal convictions, 8 U.S.C. § 1229b(b)(l)(A)-(C). However, the judge determined that Ettienne had not satisfied the final requirement — showing that her removal would cause Bradley or the children to suffer more hardship than would normally be expected under the circumstances, 8 U.S.C. § 1229b(b)(l)(D). Because Ettienne could not make the required hardship showing, the IJ denied the petition. The IJ noted that even if Ettienne had demonstrated exceptional and extremely unusual hardship, the IJ would still deny the petition in her discretion due to Ettienne’s involvement in marriage fraud. Ettienne appealed to the BIA, contesting the IJ’s marriage fraud and hardship determinations. The BIA declined to address the marriage fraud finding, since Ettienne had conceded removability for being in the country without authorization. The BIA affirmed the IJ’s finding that Ettienne had not demonstrated “exceptional and extremely unusual hardship” to Bradley or their children. Ettienne appealed to this court, and the Government moved for dismissal based on lack of jurisdiction, citing the statutory bar on review of cancellation denials, 8 U.S.C. § 1252(a)(2)(B)(i). On October 12, 2010, a panel denied the Government’s motion to dismiss on the grounds that Ettienne had claimed that the BIA failed to follow its own precedent in making the hardship determination. In spite of this ruling, the Government maintains, correctly, that Ettienne’s appeal should be dismissed for lack of jurisdiction. This court may revisit the issue of jurisdiction even after a motions panel has denied a motion to dismiss, see In re LWD, Inc., 335 Fed.Appx. 523, 526 (6th Cir.2009), and such a course is appropriate here to avoid erroneously exercising jurisdiction over a statutorily barred claim. Ettienne argues that she is not subject to the statutory prohibition on review of the" }, { "docid": "14228711", "title": "", "text": "8 U.S.C. § 1101(a)(43)(J), which includes as an aggravated felony an offense described in 18 U.S.C. § 1962 relating to racketeer influenced corrupt organizations for which a sentence of imprisonment of one year or more can be imposed. At a master calendar hearing on January 22, 2009, Murillo-Prado appeared with counsel and denied allegation six of the NTA. At a hearing before the Immigration Judge (IJ) on February 25, 2009, the IJ sustained the racketeering charge of re-movability based on the evidence in the. record. On March 11, 2009, the IJ ordered Murillo-Prado removed from the United States to Mexico based in part on the IJ’s determination that Murillo-Prado’s conviction for racketeering was an aggravated felony. The IJ explained he had sustained allegation six based on the documentation establishing Murillo-Prado’s conviction for illegally conducting an enterprise and a sentence of three years out of Maricopa County, Arizona Superior Court on June 7, 2006. Because Murillo-Prado was convicted of an aggravated felony, the IJ found he was ineligible for cancellation of removal, voluntary departure, or any other relief. Murillo-Prado appealed to the BIA. He asserted the IJ erred in finding him removable as an aggravated felon for racketeering because the Arizona statute of conviction is missing essential elements of the generic or federal definition of racketeering. Applying the modified categorical approach, the BIA determined the language in the record of conviction made it clear that Murillo-Prado was convicted of an aggravated felony as defined by federal law. Thus, the BIA found no reversible error in the IJ’s holding that Murillo-Prado is an aggravated felon and ineligible for cancellation of removal. JURISDICTION AND STANDARD OF REVIEW We lack jurisdiction “to review an order of removal against an alien removable for having committed an aggravated felony.” Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir.2010); 8 U.S.C. § 1252(a)(2)(C). “Nonetheless, this Court retains jurisdiction to determine its jurisdiction, which includes determining whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions.” Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004). Consequently, we can reach the question of whether Romero’s conviction constituted" }, { "docid": "22763176", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: Petitioner Byron Barco-Sandoval, a native and citizen of Guatemala, seeks review of a decision by the Board of Immigration Appeals (“BIA”), adopting and affirming a decision by Immigration Judge (“IJ”) Michael W. Straus, denying his application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1). See In re Barco-Sandoval, No. [ A XX XXX XXX ] (B.I.A. Jan. 4, 2006) (“BIA Dec.”), aff'g In re Barco-Sandoval, No. [ A XX XXX XXX ] (Immig. Ct. Hartford Oct. 1, 2004) (“IJ Dec.”). The IJ denied Barco-Sandoval’s application for two reasons. First, the IJ stated that Barco-Sandoval did not deserve a favorable exercise of discretion because he had been arrested twice for driving while intoxicated (“DWI”). Second, the IJ found that Barco-Sandoval had failed to demonstrate that his removal would “result in exceptional and extremely unusual hardship” to his family, 8 U.S.C. § 1229b(b)(1)(D). The BIA agreed with the IJ’s reasoning and affirmed his decision. On appeal, Barco-Sandoval contends that the IJ’s decision, and the BIA’s decision adopting it, used the incorrect standard to determine whether he had demonstrated extreme and unusual hardship, and that he was entitled to relief under both the correct standard and the allegedly incorrect standard actually used by the agency. The Government seeks dismissal of the petition, asserting that this Court lacks jurisdiction to review the agency’s discretionary and factual determinations leading to the denial of Barco-Sandoval’s application for cancellation of removal. We dismiss the petition, concluding (1) that we lack jurisdiction to review the agency’s discretionary and factual determinations underlying the denial of Barco-Sandoval’s application for cancellation of removal, and (2) that Barco-Sandoval fails to raise any colorable constitutional claims or questions of law. In reaching this conclusion, we reaffirm our holding in De La Vega v. Gonzales, 436 F.3d 141 (2d Cir.2006), that we lack jurisdiction to review “discretionary determinations concerning whether to grant cancellation of removal,” id. at 144, and we settle the question of whether De La Vega remains good law in light of our revised opinion in Xiao" } ]

[ { "docid": "16776701", "title": "", "text": "by substantial evidence or based on an erroneous conception of the applicable law, Southern Illinois Stone Co. v. Universal Engineering Corp., 592 F.2d 446, 451 (8th Cir. 1979), or when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954), (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746 (1948)). The district court held that the government failed to prove the reasonableness of the amount claimed above its original estimate for the repairs. Although we disagree with the use of the estimate in ascertaining the award of damages, we cannot say that the district court’s determination of the facts is clearly erroneous or is based on an erroneous conception of the applicable law. Substantial evidence supports those findings, which were based on the following evidence. Pursuant to regulation and custom, the United States Corps of Army Engineers prepared a formal, detailed, and itemized estimate of the projected costs of repairing the damaged gates. That estimate was prepared by a civil engineer employed by the Corps of Engineers and was approved by the head of the Lock and Dam Section, the Chiefs of the Finance and Accounting Branch and Program and Development Offices, and the Corps’ District Engineer. The estimate, based on the experience of the Corps of Engineers in repairing similar damage, reflected a cost of $91,668.00 as the cost of repair, plus an overhead charge of $8,291.61, for a total of $99,959.61 in estimated damages. A final bill of $157,402.15 was submitted to Midwest. Although the estimate correctly ascertained the amount of material and equipment needed to complete the project, it was highly inaccurate in determining labor and overhead charges. As the district court found, a comparison of the estimates with the final invoice reflects a gross disparity between the amount estimated and the amount claimed for both labor and overhead charges. Offsite labor hours were originally estimated at 3600 labor hours;" } ]

[ { "docid": "997289", "title": "", "text": "water” at the time its leg struck Marathon’s pipeline, a fixed structure on the seabed. The district court therefore correctly applied general maritime law on the issue of Rowan’s liability for the collision. General maritime law would, of course, also govern Rowan’s liability for the various items of damage suffered by Marathon, including the cost of repairing the ruptured pipeline. Under general maritime law, a vessel owner at fault in a maritime collision is responsible for the full cost of necessary and reasonable repairs to the damaged structure and for the loss of earnings while the repairs are being made. If the injured party acts reasonably in repairing its damaged property, it may recover in full from the tortfeasor. In Signal Oil and Gas Company v. Barge W-701, we permitted a pipeline owner to recover from a barge that ruptured a pipeline the expenses incurred by the pipeline owner in its initial, unsuccessful attempt to repair the rup tured pipeline because the pipeline owner acted reasonably in its repair efforts. Rowan concedes, that Marathon acted reasonably in attempting to repair its pipeline with the hydrocouples; had the device worked, Marathon, and therefore Rowan, would have avoided the greater costs required by the traditional flange method of repair. The parties agree that Marathon had no responsibility for the hydrocouple failure. Because the hydrocouple installation was a reasonable, albeit unsuccessful, repair effort, Rowan, under the undisputed facts, was liable for all the expenses of its installation and removal. While it is not clear whether, in the Signal Oil case, the failure of the first repair effort was due to a defect in the manufacture of a part used in the repairs, the case cannot be distinguished on the basis that possibly products liability was not involved. The manufacturer’s fault does not absolve the initial tortfeasor of its liability for the costs of a reasonable repair effort. The failure of the part does not make the unsuccessful first repair effort a “separate tort” against the original victim as Hydro-Tech argues, although the product defect may entitle the tortfeasor to seek redress from the" }, { "docid": "11778070", "title": "", "text": "for loss of use of the barge. However, Mr. Norman McAlister, president of American General Transportation, admitted that he did not solicit work while the PTC-502 was being repaired. The court finds that the damages from loss of income and for loss use are too speculative in nature. The court thus disallows all damages for loss of use and lost time. Bolivar County Gravel Co. v. Thomas Marine Co., 585 F.2d 1306 (5th Cir.1978). Parker Towing and American General contend that the district court applied the wrong legal standard in holding that they could not prevail on their claim for loss of use. They claim the district court ruled against them because they did not solicit work for the barge while it was being repaired. Warrior Tombigbee contends that the district court correctly denied Parker Towing and American General’s claim for loss of use of the barge because they failed to present credible evidence from which the district court could have based such an award. It is well settled that a plaintiff may recover income lost as a result of an allision where the loss can be proved with reasonable certainty. Skou v. United States, 526 F.2d 293 (5th Cir.1976); Delta Marine Drilling Co. v. MV Baroid Ranger, 454 F.2d 128 (5th Cir.1972). Such a claim may not be disallowed, however, merely because the claimant is unable to prove the loss of a specific contract due to the vessel being out of commission for repairs. Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995, 1001 (5th Cir.1984) (citing Skou v. United States, 526 F.2d 293, 298 (5th Cir.1976)). After reviewing the district court’s findings, we are unable to ascertain precisely why Parker Towing and American General’s claim for loss of use was considered “too speculative.” Thus, we are compelled to remand for the district court to set forth a more detailed and precise explanation for disallowing the claim. CONCLUSION We affirm that portion of the district court’s order regarding negligence, apportionment of fault, and prejudgment interest. We remand for the district court to reconsider its findings on this" }, { "docid": "997288", "title": "", "text": "body of law governed the principal defendant’s (Rowan’s) liability to the principal plaintiff (Marathon) for the repair costs occasioned by the collision with Marathon’s pipeline. We must then determine what corpus juris governs the third party defendant’s (HydroTech’s) liability to Marathon for the extra repair expenses caused by the hydrocouple failure. Having answered these questions, we then choose the body of law applicable to Rowan’s third party action against HydroTech. Rowan’s liability to Marathon for repair costs was governed by general maritime law made applicable by the Admiralty Extension Act. Under that statute, the admiralty jurisdiction extends to “all cases of damage ... to property caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” In such cases, suit may be brought “according to the principles of law ... obtaining in cases where the injury or damage has been done and consummated on navigable water” — the general maritime law. The ROWAN/ODESSA, a jack-up rig in tow to a new site, was a “vessel on navigable water” at the time its leg struck Marathon’s pipeline, a fixed structure on the seabed. The district court therefore correctly applied general maritime law on the issue of Rowan’s liability for the collision. General maritime law would, of course, also govern Rowan’s liability for the various items of damage suffered by Marathon, including the cost of repairing the ruptured pipeline. Under general maritime law, a vessel owner at fault in a maritime collision is responsible for the full cost of necessary and reasonable repairs to the damaged structure and for the loss of earnings while the repairs are being made. If the injured party acts reasonably in repairing its damaged property, it may recover in full from the tortfeasor. In Signal Oil and Gas Company v. Barge W-701, we permitted a pipeline owner to recover from a barge that ruptured a pipeline the expenses incurred by the pipeline owner in its initial, unsuccessful attempt to repair the rup tured pipeline because the pipeline owner acted reasonably in its repair efforts. Rowan concedes, that Marathon acted" }, { "docid": "4304797", "title": "", "text": "guide wall repairs was an appropriate charge. Id. at 324-325. The court held that this charge was supported by testimony that the figure was derived from time cards for the period that Corps laborers worked on the repairs. Id. The testimony revealed that services of such technical people as engineers were charged to the job as labor if they devoted more than an hour to the repairs. Id. at 325 n. 9. As with the miter gate repairs, the court refused to allow reimbursement for certain costs related to the guide wall repairs that were not supported by the evidence such as $68.16 for tool, furniture, and equipment replacement, $682.23 for reproduction services, and $422.63 for other facility charges. Id. at 325. The extended and accurate analysis of the facts by the district court reveals that its ultimate holding was the product of a careful study of the evidence. Indiana State Employees Ass’n v. Negley, 501 F.2d at 1242. We hold that the district court’s findings on these items of damages were not clearly erroneous. B. Overhead Overhead expenses include those expenses that are necessary to keep a company or organization functioning as a going concern and that cannot be easily identified with any individual product or repair project. See United Electrical, Radio and Mach. Workers v. Oliver Corp., 205 F.2d 376, 387 (8th Cir.1953). By its very definition, overhead serves to reimburse a party for its general operating expenses, which are composed of costs that are not directly allocable to a particular project. Furthermore, reasonable overhead charges can be included in the cost of repairs even if the injured party makes the repairs itself since such charges would be billed by any outside firm selected to complete the repairs. Freeport Sulphur Co. v. The S/S Hermosa, 526 F.2d 300, 304 (5th Cir.1976); Bultema Dock and Dredge Co. v. Steamship David P. Thompson, 252 F.Supp. 881, 885-86 (W.D.Mich.1966). In admiralty cases, the courts have held that the grant or denial of damages rests within the discretion of the judge, who can base his decision upon principles of equity and justice." }, { "docid": "3149816", "title": "", "text": "“MARI-BO” in November, 1970, for a total consideration of approximately $8,000.-00. At that time the vessel was in fairly poor condition. Thereafter, particularly during 1972, the Plaintiff made extensive structural improvements to the hull, ribs, decking, housing, etc. and installed various items of equipment, such as replacing the engine, radio, loran system, etc. These improvements cost approximately $12,-000.00, excluding the Plaintiffs considerable labors involved in effectuating the structural repairs and installing the equipment, along with the labors of several of his friends. He further testified that the fair market value of his vessel immediately prior to the accident was between $40,000.00 and $45,000.00 (emphasis supplied) Based thereon Greer was awarded damages in the amount of $20,000. Greer asserts that it was error for the lower court to consider only his out of pocket expenses without also considering the value of the ■ extensive labors it found he performed on the vessel in repairing it. We agree. The amount of damages sustained by a party is a question of fact and a trial court’s findings of damages are not to be disturbed unless clearly erroneous. Union Oil Co. of California v. Tug Mary Malloy, 5 Cir. 1969, 414 F.2d 669; Neal v. Saga Shipping Co., S.A., 5 Cir. 1969, 407 F.2d 481; F.R.Civ.P. 52(a). The Supreme Court stated in a landmark admiralty case, McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20: . . [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.’ (cited cases omitted)” We are left with such a conviction here. Whenever a vessel is lost as a result of a maritime collision, damages are customarily determined by a finding as to the vessel’s market value immediately preceding the collision. See Standard Oil Co. v. Southern Pacific Co., 1925, 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890; Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, 454 F.2d 128. In situations where market" }, { "docid": "20049969", "title": "", "text": "and costs of towage by three tugs, $20,007.50, a total of $54,605.53. We affirm. No attack is made here on the district court’s finding of liability. The sole issue presented for review is whether the court erred in its determination of the measure and amount of damages awarded. The maxim applied in the event of marine collision is restitutio in integrum That doctrine, strictly construed, would limit damages to the difference in the value of the vessel before and after collision. However, that measure has long been equated with the cost of necessary repairs and the loss of earnings while they are being made. The extent of the damage to the Zeppa was not realized until Decem ber 29, 1966, and at that time repairs were commenced immediately. Baroid contends that it was prejudiced by the denial of the opportunity to conduct a joint survey of the damage prior to commencement of repairs. It has been held that where the party charged with liability is not given notice of any survey of alleged damage, a claim for damage is to be viewed “with some suspicion.” However, as the district court held, lack of a joint survey is not fatal. In fact, the district court found that Delta Marine’s efforts td commence repairs immediately “may have mitigated damages.” We find no error in the court’s treatment of this issue. Delta Marine’s contract with Chevron called for the payment of $4,300.00 per day of 24 hours while the vessel was drilling; and $3,500.00 per day of 24 hours for time spent in tow, for time in repair (up to 24 hours during any 30 day operating period) and for time spent in waiting on weather (up to a maximum of 7 days for each bad weather lay-off). The marine surveyor testified that a total of 151 hours were expended for repairs, inclusive of the hours lost as a result of adverse weather while repairs were being effected. The district court held that Delta Marine was entitled to recover the loss of income resulting from the collision at the rate of $4,300.00 per" }, { "docid": "5380368", "title": "", "text": "overhead actually billed. (C) In what the Court can only consider as an unreasonable and highly excessive method of charging overhead, the government has made a general charge of district overhead in the amount of Twenty Thousand Five Hundred Ninety One Dollars and Forty One Cents ($20,-591.41) in connection with the repairs to the number 4 miter gate. The items which constituted the cost of repairs (labor, materials, vehicle rental, reproduction, plant and equipment and personnel travel) were totalled. The total, One Hundred Twenty Five Thousand Five Hundred Sixty Three Dollars and Eighty Cents ($125,563.80), included overhead already charged to the various items in the amount of Thirty Two Thousand Five Hundred Twenty Four Dollars and Ninety Nine Cents ($32,524.99). The government then took sixteen point four per cent (16.4%) of the cost of repairs already including overhead or Twenty Thousand Five Hundred Ninety One Dollars and Forty One Cents ($20,591.41) as an additional overhead charge. This latter amount is arbitrary and also constitutes overhead being charged on overhead. There has been no proof that this general overhead figure is either necessary or reasonable or that it would not have existed regardless of the accident. Since it is computed on a dollar figure which already contains overhead charges it is unreasonable on its face. 12. The overhead charges were not based upon actual expenditures of overhead items related to the accident but were calculated under regulations promulgated by the Corps of Engineers and determined by the staff of the St. Louis District Corps of Engineers. 13. The government did not solicit bids from any private contractors to determine the amount they would have charged to repair the damaged gates. But instead, the Corps effectuated the repairs with its own labor and equipment based upon its belief that the costs would not exceed the amount set forth in its own detailed and itemized estimate of Ninety Nine Thousand Nine Hundred Fifty Nine Dollars and Sixty One Cents ($99,959.61). 14. From the testimony adduced at trial, the fair and reasonable costs of repairing the damage caused by defendants did not exceed the" }, { "docid": "20049968", "title": "", "text": "GEWIN, Circuit Judge: On December 7, 1966, the drill barge Chris Zeppa (Zeppa) owned and operated by the Delta Marine Drilling Company (Delta Marine), appellee, was performing drilling operations in the Gulf of Mexico for Chevron Oil Company pursuant to a written contract. In the early morning of that day the M/V Baroid Ranger (Ranger) owned by Baroid Division of National Lead Company (Baroid), appellant, came alongside the Zeppa to discharge drilling mud. While efforts were being made to secure the bow line of the Ranger to the Zeppa, the force of the waves caused the Ranger to slam into the aft port fender system of the Zeppa, causing extensive damage to the entire fender system. In March of 1968, Delta Marine brought suit against Baroid claiming damages as a result of the collision of December 7. The case was tried without a jury and judgment was entered for Delta Marine. The district court awarded material and labor costs of repair of $7,543.86, lost income at the rate of $4,300.00 per day for 151 hours, and costs of towage by three tugs, $20,007.50, a total of $54,605.53. We affirm. No attack is made here on the district court’s finding of liability. The sole issue presented for review is whether the court erred in its determination of the measure and amount of damages awarded. The maxim applied in the event of marine collision is restitutio in integrum That doctrine, strictly construed, would limit damages to the difference in the value of the vessel before and after collision. However, that measure has long been equated with the cost of necessary repairs and the loss of earnings while they are being made. The extent of the damage to the Zeppa was not realized until Decem ber 29, 1966, and at that time repairs were commenced immediately. Baroid contends that it was prejudiced by the denial of the opportunity to conduct a joint survey of the damage prior to commencement of repairs. It has been held that where the party charged with liability is not given notice of any survey of alleged damage, a" }, { "docid": "5380373", "title": "", "text": "estimate analogous to a bid for repairs submitted by a private contractor. See Monsanto Co. v. Port of St. Louis Investments, Inc., 350 F.Supp. 502 (E.D.Mo.1972). The Court credits the testimony of defendants’ experts to the effect that the fair and reasonable costs necessary to restore the damaged facility to its condition prior to the casualty did not exceed One Hundred Thousand Dollars ($100,000) and that private contracting firms could have effectuated the repairs for no more than that amount. The Court finds that the amount of overhead demanded by the government is an unreasonable amount and is not factually related to the actual repair work performed. Since each of the items in the costs of repair already included specific overhead charges, the general overhead charge for general district overhead is nothing more than overhead on overhead for which the law does not permit recovery. The government has not met its burden that the amount claimed for overhead is properly attributable to a specific job of repair. See Canadian Pacific Railway Co. v. United States, 272 F.2d 913 (9th Cir. 1959); Mitsui O. S. K. Lines, K. K. v. Horton & Horton, 480 F.2d 1104 (5th Cir. 1973). The Court finds the fair and reasonable costs of repairing miter gate number 4 does not exceed the sum of One Hundred Thousand Dollars ($100,000) and as stated above the Court credits the testimony of defendants’ experts in this regard, one of which, Peter C. Merrill, has been used by the government as its expert in proving the reasonable costs of repairing damaged lock gates. The parties have stipulated that the reasonable costs of repairing upper miter gate number 2 is Two Thousand Four Hundred Twenty Dollars ($2,420). 33 U.S.C. § 411 requires this Court to award plaintiff a penalty of not more than Twenty Five Hundred ($2,500) nor less than Five Hundred Dollars ($500). The amount to be awarded lies within the discretion of this Court. The parties have stipulated that the damage to the facility was not the result of gross negligence or an intent to injure the gate. The" }, { "docid": "16776708", "title": "", "text": "In making such determination you will exclude any items of overhead not reasonably necessary and any items of expense not properly allocable to such overhead. Id. at 388 (emphasis added). Testimony in this case revealed that a percentage of the overhead charges was applied to the miter repair job but that those charges were not specifically related to nor incurred as a result of the Gopher State job. In particular, the government failed to specify how the overhead calculated related to the costs of that job. As the district court found, “[t]he overhead charges were not based upon actual expenditures of overhead items related to the accident but were calculated under regulations promulgated by the Corps of Engineers and determined by the staff of the St. Louis District Corps of Engineers.” United States v. Motor Vessel Gopher State, 472 F.Supp. 556, 558 (E.D.Mo.1979). Increased overhead and indirect expenses are compensable, but only where there exists justification for awarding these costs. See, e. g., United States v. Commercial American Barge Line Co., 424 F.Supp. 453, 456 (E.D.Mo.1977). See also Canadian Pacific Railway v. United States, 272 F.2d 913, 918 (9th Cir. 1959); United Electrical Workers v. Oliver Corp., supra, 205 F.2d 376, 388 (8th Cir. 1953). It was the gross disparity between estimated and actual labor and overhead costs, unrebutted by adequate explanation for those increased costs, and the failure to show that the overhead arose “naturally from the particular breach,” id., which influenced the district court’s decision to limit the award of damages to an amount initially considered reasonable by the Corps as reflected in its estimate. Since this disparity was buttressed by the testimony of an expert admittedly used by the government to establish the cost of repairs in other instances of miter gate damage, we cannot say the trial court erred. In admiralty suits, prejudgment interest is awarded in the discretion of the district court to insure compensation of the injured party in full and “should be granted unless there are exceptional or peculiar circumstances.” Mid-America Transportation Co. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th" }, { "docid": "22385446", "title": "", "text": "navigational use of the waterway during required repairs. See Pet. for Cert. in No. 93-1094, p. 22a (District Court found that after the flood “[t]he river remained closed for over a month,” “[r]iver traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system ... because the river level was lowered to aid repair efforts”). Cf. Pennzoil Producing Co. v. Offshore Express, Inc., 943 F. 2d 1465 (CA5 1991) (admiralty suit when vessel struck and ruptured gas pipeline and gas exploded); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F. 2d 229, 233 (CA5 1985) (admiralty jurisdiction when vessel struck pipeline, “a fixed structure on the seabed”); Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva, 680 F. 2d 1374 (CA11 1982) (admiralty suit when vessel struck underwater pipeline). In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. We ask whether a tortfeasor’s activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand. Navigation of boats in navigable waters clearly falls within the substantial relationship, Foremost, 457 U. S., at 675; storing them at a marina on navigable waters is close enough, Sisson, supra, at 367; whereas in flying an airplane over the water, Executive Jet, 409 U. S., at 270-271, as in swimming, id., at 255-256, the relationship is too attenuated. On like reasoning, the “activity giving rise to the incident” in this suit, Sisson, supra, at 364, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel. Described in this way, there is no question that the activity is substantially related to traditional maritime activity, for barges and similar vessels have traditionally been engaged in repair work similar to what Great Lakes contracted to perform here. See, e. g., Shea v. Rev-Lyn Contracting Co., 868 F. 2d 515, 518 (CA1 1989) (bridge" }, { "docid": "3446352", "title": "", "text": "be resolved in its favor. Alexandre v. Machan (The City of New York), 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84 (1893). This rule places the burden on Fernwood to show that Liberty II committed plain fault. General Seafoods Corp. v. J. S. Packard Dredging Co., 120 F.2d 117 (1st Cir. 1941). Since Fern-wood has failed to meet this burden, we find no error in the decision of the trial court. We now come to the question of the trial court’s findings concerning plaintiff’s damages. Here the roles are reversed, and plaintiff must take up the burden previously borne by the defendant. CIA. Maritima San Basillio S.A. v. Shell Canada Ltd., 490 F.2d 173 (1st Cir. 1974). Having carefully reviewed the record and the findings of the trial judge, we are not presuaded that they are clearly erroneous, and therefore affirm the decision below. Plaintiff must establish that the loss he has suffered and the expenses he has incurred were the result of the tortious conduct of the defendant. See Dreijer v. Girod Motor Co., 294 F.2d 549 (5th Cir. 1961). The measure of damage in maritime collision cases is expressed by the maxim restitutio in integrum. The Baltimore, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869). While under this rule the measure of damage is the difference in value of the vessel before and after the collision, the cost of necessary repairs and the loss of earnings during repair have been regarded as the equivalent. Delta Marine Drilling Co. v. M/V Baroid Ranger, 454 F.2d 128 (5th Cir. 1972); The Pocahontas, 109 F.2d 929 (2d Cir.), cert. denied sub nom., Eagle Transp. Co. v. United States, 310 U. S. 641, 60 S.Ct. 1088, 84 L.Ed. 1409 (1940). The owner of the damaged vessel is entitled to sufficient damages to put his vessel into a condition as seaworthy and serviceable as before the collision. Zeller Marine Corp. v. Nessa Corp., 166 F.2d 32 (2d Cir. 1948). However, the owner must show that the injury was caused by the fault of the other vessel, and that it had" }, { "docid": "3149817", "title": "", "text": "damages are not to be disturbed unless clearly erroneous. Union Oil Co. of California v. Tug Mary Malloy, 5 Cir. 1969, 414 F.2d 669; Neal v. Saga Shipping Co., S.A., 5 Cir. 1969, 407 F.2d 481; F.R.Civ.P. 52(a). The Supreme Court stated in a landmark admiralty case, McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20: . . [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.’ (cited cases omitted)” We are left with such a conviction here. Whenever a vessel is lost as a result of a maritime collision, damages are customarily determined by a finding as to the vessel’s market value immediately preceding the collision. See Standard Oil Co. v. Southern Pacific Co., 1925, 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890; Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, 454 F.2d 128. In situations where market value cannot readily be established, the court should consider any and all evidence before it to establish a fair valuation. See Carl Sawyer, Inc. v. Poor, 5 Cir. 1950, 180 F.2d 962. Having rejected sub silentio the only testimony before it as to market value, the plaintiff’s estimate of $40,000 to $45,000, the court erred when it excluded consideration of the fair value of Greer’s extensive personal labor in repairing the vessel. The judgment of the lower court is reversed as to damages only. We remand for a recomputation of the damages award, including the fair value of Greer’s labor. Reversed and remanded." }, { "docid": "22385445", "title": "", "text": "incident as “fire” would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the capacity of pleasure boats to endanger commer cial shipping that happened to be nearby. We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping. Following Sisson, the “general features” of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure. So characterized, there is little question that this is the kind of incident that has a “potentially disruptive impact on maritime commerce.” As it actually turned out in this suit, damaging a structure beneath the riverbed could lead to a disruption in the water course itself, App. 33 (eddy formed above the leak); and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway during required repairs. See Pet. for Cert. in No. 93-1094, p. 22a (District Court found that after the flood “[t]he river remained closed for over a month,” “[r]iver traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system ... because the river level was lowered to aid repair efforts”). Cf. Pennzoil Producing Co. v. Offshore Express, Inc., 943 F. 2d 1465 (CA5 1991) (admiralty suit when vessel struck and ruptured gas pipeline and gas exploded); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F. 2d 229, 233 (CA5 1985) (admiralty jurisdiction when vessel struck pipeline, “a fixed structure on the seabed”); Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva, 680 F. 2d 1374 (CA11 1982) (admiralty suit when vessel struck underwater pipeline). In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. We ask whether a tortfeasor’s activity, commercial or noncommercial, on" }, { "docid": "16776702", "title": "", "text": "a formal, detailed, and itemized estimate of the projected costs of repairing the damaged gates. That estimate was prepared by a civil engineer employed by the Corps of Engineers and was approved by the head of the Lock and Dam Section, the Chiefs of the Finance and Accounting Branch and Program and Development Offices, and the Corps’ District Engineer. The estimate, based on the experience of the Corps of Engineers in repairing similar damage, reflected a cost of $91,668.00 as the cost of repair, plus an overhead charge of $8,291.61, for a total of $99,959.61 in estimated damages. A final bill of $157,402.15 was submitted to Midwest. Although the estimate correctly ascertained the amount of material and equipment needed to complete the project, it was highly inaccurate in determining labor and overhead charges. As the district court found, a comparison of the estimates with the final invoice reflects a gross disparity between the amount estimated and the amount claimed for both labor and overhead charges. Offsite labor hours were originally estimated at 3600 labor hours; the final invoice charged Mid-west with 5409 hours of labor, which is an increase of 50 percent over the amount estimated. Accordingly, the cost of offsite labor was adjusted upward from $42,408.00 to $80,224.21. Overhead actually billed amounted to $53,421.32, a sum $45,129.71 or 544 percent greater than the amount reflected in the original estimate. This increase, ridiculous on its face, undoubtedly influenced the trial court in arriving at the proper figure to be allowed. The government did not solicit bids from any private contractors to determine the amount they would have charged to repair the damaged gates, although it was authorized to do so and in fact had done so on past occasions. Evidence adduced at trial established that the miter gates could possibly have been repaired by private contractors for $100,000, provided they were removed from the lock by the Corps of Engineers. Further, a survey conducted on behalf of Midwest by a marine surveyor, Merrill Marine Services, Inc., mirrored the Corps’ original computation of the estimates of costs of repair. Based on" }, { "docid": "16040030", "title": "", "text": "of pipe and repairing the coating damage on the remaining portion. Accordingly, Marathon was awarded the entire amount that it had expended in replacing the pipeline section. We find that the district court’s determination of damages had a firm basis in the evidence and is not clearly erroneous. We are not persuaded by the argument urged by Sea Level and C.S.I. that Marathon conducted a “secret survey” which prevented them from bringing alleged inaccuracies in the reports to the attention of Marathon. Sea Level and C.S.I. maintain that Marathon denied them and their underwriters the opportunity to analyze the tests and reports and to conduct tests of their own before repairs. They cite cases in this Circuit which they contend stand for the proposition that when a party conducts a survey of its own and refuses to permit a joint survey courts view the plaintiff’s eventual damage claims with suspicion. See e.g., Florida East Coast Railway Co. v. Revilo Corp., 637 F.2d 1060, 1067 (5th Cir.1981); Delta Marine Drilling Co. v. M/V BAROID RANGER, 454 F.2d 128, 130 (5th Cir.1972). The facts in the case at bar do not support such a claim. Opposing the contention of Sea Level and C.S.I. that Marathon prevented their having input in the decisions regarding repairs is the evidence showing that neither Sea Level and C.S.I. nor its underwriters requested a joint survey or other means of examination until after all Marathon’s inspections of the damaged pipeline were completed. The district court considered this conflicting evidence' and concluded that Marathon’s conduct was not unreasonable. This finding is supported by the record and is not clearly erroneous. B. Sea Level and C.S.I. challenge the district court’s award of prejudgment interest. They argue that interest should not have been awarded from the date of the mishap, since Marathon operated the damaged pipeline with no reduction in pressure for two months after the accident. The pipeline section was then replaced during a shutdown, which was scheduled by Marathon before the accident occurred. The award of prejudgment interest in an admiralty action is committed to the sound discretion" }, { "docid": "16776706", "title": "", "text": "of the law. Since these findings are not clearly erroneous, they may not be set aside on this appeal. The district court found the calculated overhead charges to be unreasonable and highly excessive. The final overhead charge was $53,400.00; it had been estimated at $8,291.61. Of this, $30,790.00 was considered “burden” and reflected overhead for offsite labor. The government made a general charge of district overhead in the amount of $20,591.41 in connection with the repairs to Miter Gate No. 4. That charge was calculated by totaling items such as the cost of repairs, such as labor, materials, vehicle rental, reproduction, plant and equipment and personnel travel. The total, $125,563.80, included some items of overhead already charged elsewhere. The overhead charges in the final bill were computed by applying a predetermined percentage of 16.89 percent, reflecting a pro rata share of the anticipated expense of operations during the coming year. Although the government analogized overhead to factory costs and “burden” (the overhead for offsite labor in the amount of $30,790.00) to materials costs, it admits that “the former is part of the underlying cost to which the latter is applied.” The district court found this additional overhead charge to be both arbitrary and “overhead on overhead.” In essence, payment of this charge would result in double recovery which we believe the district court properly refused to consider. The government contends that under United Electrical Workers v. Oliver Corp., 205 F.2d 376, 387 (8th Cir. 1953), it is entitled to general overhead costs. However, United Electrical involved a suit for damages for breach of a collective bargaining agreement resulting from the closing of its plant due to three illegal strikes. The court instructed the jury to award overhead damages only if they were specifically attributable to the shutdown and gave those instructions only after detailed testimony by cost accountants. Indeed, the instructions approved in United Electrical specifically provided for an award of overhead but only upon a determination of what items of expenses were reasonably and properly allocable to such overhead and the fair and reasonable amounts of such allocable items." }, { "docid": "4304811", "title": "", "text": "that the underlying documents be produced in court. Mr. Showalter also testified that the Corps labor charge of $4,825.59 on the guide wall repairs was based on time card form 240 which indicates the worker’s name and number of hours worked. Tr. I at 111, 117. In its questioning of its own expert witnesses, the defendant merely asked its witnesses if the costs for the repairs to the miter gates and guide wall were reasonable rather than specifically questioning various elements of damages. Tr. II at 11, 22, 23, 25, 62, 63, 65. . The district court stated that the United States’ claim should be reduced by the total of the four disallowed items of basic overhead. Memorandum Opinion at 323-324. We note that the total of these disallowed items is $2,087.49 rather than the amount indicated by the district court, $2,089.49. . In Motor Vessel, the Eighth Circuit affirmed the district court's holding that the United States had not proved that the general overhead figure on repairs caused by a motor vessel’s collision into a U.S. lock and dam was necessary or reasonable. 614 F.2d at 1189. In noting that the government had applied a predetermined percentage to the total cost of repairs to determine overhead, the Eighth Circuit held that the government failed to specify how the overhead was related to the costs of the particular repair job. Id. The decision in Motor Vessel can be distinguished from the present case because in Motor Vessel, the Eighth Circuit noted that the district court’s decision to severely limit over head charges was influenced by the gross disparity between the government’s original estimate for overhead of $8,291.16 and the government’s final bill for overhead of $53,421.32. Id. at 1188, 1190. The court noted that this \"ridiculous” disparity, representing a 544% increase over the original estimate, went unrebutted by adequate explanation. Id. Finally, the court concluded that the overhead figure was computed on an amount that already contained overhead charges, so that it would be unreasonable to apply overhead to overhead. Id. at 1189. . The district court in Motor Vessel" }, { "docid": "3446353", "title": "", "text": "Motor Co., 294 F.2d 549 (5th Cir. 1961). The measure of damage in maritime collision cases is expressed by the maxim restitutio in integrum. The Baltimore, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869). While under this rule the measure of damage is the difference in value of the vessel before and after the collision, the cost of necessary repairs and the loss of earnings during repair have been regarded as the equivalent. Delta Marine Drilling Co. v. M/V Baroid Ranger, 454 F.2d 128 (5th Cir. 1972); The Pocahontas, 109 F.2d 929 (2d Cir.), cert. denied sub nom., Eagle Transp. Co. v. United States, 310 U. S. 641, 60 S.Ct. 1088, 84 L.Ed. 1409 (1940). The owner of the damaged vessel is entitled to sufficient damages to put his vessel into a condition as seaworthy and serviceable as before the collision. Zeller Marine Corp. v. Nessa Corp., 166 F.2d 32 (2d Cir. 1948). However, the owner must show that the injury was caused by the fault of the other vessel, and that it had not been aggravated by his own fault. The Baltimore, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869). The trial judge found that when the Liberty II was “opened up” during the 1970-1971 overhaul all the starboard frames were replaced as well as some on the port side. As previously noted, these frames were discarded and no evidence existed of the condition of the vessel until the defendant’s surveyor observed the actual rebuilding. There was no evidence of the use, or abuse, of the Liberty II during the eighteen month period after the accident and before the overhaul. Based on these findings, the trial judge concluded, in regard to the August 1970-February 1971 overhaul, that the plaintiff had not shown sufficient evidence to support an award of damages against the defendant. There was ample evidence to show what work was done, but insufficient evidence to show which repairs were proximately caused by the collision and which represented the normal maintenance for a wooden vessel built in 1948. We have carefully considered the findings of the" }, { "docid": "5380369", "title": "", "text": "this general overhead figure is either necessary or reasonable or that it would not have existed regardless of the accident. Since it is computed on a dollar figure which already contains overhead charges it is unreasonable on its face. 12. The overhead charges were not based upon actual expenditures of overhead items related to the accident but were calculated under regulations promulgated by the Corps of Engineers and determined by the staff of the St. Louis District Corps of Engineers. 13. The government did not solicit bids from any private contractors to determine the amount they would have charged to repair the damaged gates. But instead, the Corps effectuated the repairs with its own labor and equipment based upon its belief that the costs would not exceed the amount set forth in its own detailed and itemized estimate of Ninety Nine Thousand Nine Hundred Fifty Nine Dollars and Sixty One Cents ($99,959.61). 14. From the testimony adduced at trial, the fair and reasonable costs of repairing the damage caused by defendants did not exceed the sum of One Hundred Thousand Dollars ($100,000). The Court finds that the repairs could have been effectuated by a private contractor for an amount not in excess of One Hundred Thousand Dollars ($100,000). Accordingly, the Court finds the amount charged, One Hundred Fifty Seven Thousand Four Hundred Two Dollars and Fifteen Cents ($157,402.15) is excessive and unreasonable. 15. For the purpose of awarding costs only, the Court, pursuant to Rule 68 of the Federal Rules of Civil Procedure, notes that defendants filed a formal offer of judgment simultaneously with the filing of their answer in the amount of One Hundred Two Thousand Five Hundred Dollars ($102,500). Conclusions of Law This Court has jurisdiction over the parties and over the subject matter pursuant to the Court’s admiralty and maritime jurisdiction, 28 U.S.C. § 1333. The Rivers and Harbors Act of 1899, 33 U.S.C. § 408, confers strict liability upon those who cause damages to a government work irrespective of fault. Defendants concede and have never contested liability. Defendants do, however, dispute the amount of damages plaintiff" } ]

[ { "docid": "14125121", "title": "", "text": "delay. It was within the district court’s discretion to refuse to extend the discovery period. In light of our decision that summary judgment must be reversed, discovery-must continue for a single purpose: to determine what fees were paid by the Tribe to Casino Magic, as the record is hopelessly unclear as to whether any fees were paid, and if so, the amount thereof. III. Conclusion The district court erred in holding as a matter of law that the Consulting Agreement, the Construction and Term Loan Agreement, and the Participation Agreement constituted a consulting agreement rather than a management agreement. We reverse the district court’s grant of summary judgment and remand for proceedings consistent with this opinion. . United States ex rel. Steele v. Turn Key Gaming, Inc., 260 F.3d 971, 973-74 (8th Cir.2001) (rehearing en banc denied Oct. 16, 2001) (quoting 25 U.S.C. § 81), states: 25 U.S.C. § 81 governs all contracts with an Indian tribe whereby the tribe trades consideration for “services for said Indians relative to their lands.” All such agreements must \"bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon [them].” Any agreement subject to Section 81, but not so indorsed, \"shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe ... may be recovered by suit in the name of the United States.” . \"IGRA recognizes a tribe’s authority to enter into contracts for the management and operation of an Indian gaming facility by an entity other than the tribe or its employees, so long as certain requirements are satisfied and subject to approval by the Chairman of the National Indian Gaming Commission.” Casino Resource Corp. v. Harrah’s Entertainment, 243 F.3d 435, 438 n. 3 (8th Cir.2001) (citing 25 U.S.C. §§ 2710(d)(9), 2711). Although the IGRA was passed in 1988, the regulatory scheme created by the Act did not take effect until the NIGC came into existence, some five years later. The preexisting regulatory scheme, administered by the Bureau of Indian Affairs, remained in effect" } ]

[ { "docid": "5893566", "title": "", "text": "the Tribe bargained, and is therefore unconvincing. IV. Conclusion Non-tribal parties who enter into contracts relating to tribal gaming undertake, in addition to ordinary business risks, certain regulatory risks as well. First American elected to execute a de facto management contract without the fuss and bother of NIGC approval and now wishes Multimedia to assume the costs of First American’s decision. We conclude that under Oklahoma law an unapproved management contract, being void, cannot be the basis for a suit against a third party for tortious interference. The decision of the district court is AFFIRMED. . A management contract is a contract that \"provides for the management of all or part of a [tribal] gaming operation.” 25 C.F.R. § 502.15. . The IGRA divides Indian gaming into three classes. Class I consists of traditional forms of gaming associated with ceremonies and celebrations, Class II consists primarily of bingo and related games, and Class III encompasses all other forms of gaming, including slot machines. 25 U.S.C. § 2703. . The statute sets the ceiling for the percentage fee at thirty percent in ordinary cases. 25 U.S.C. § 2711(c)(1); 25 C.F.R. § 531.1(i)(l). It is only when the NIGC Chairman determines that the capital expenditure and income projections associated with a project justify a higher fee that forty percent may be charged. . The Operating Lease provides that the Tribe and First American may renegotiate the contract for two additional years, bringing the term of the contract to seven years, the maximum length permitted by the statute even with a showing that capital expenditure and income projections justify an increased term. Art. 3(B); 25 U.S.C. § 2711(b)(5); 25 C.F.R. 531.1(h). . It may be questioned whether any part of a contract determined to be void ab initio, including the severability provisions, may. be enforced. Apart from a single footnote in Multimedia’s Brief referring us to one case decided before passage of the IGRA and another recently vacated by the Sixth Circuit Court of Appeals, we have not had the benefit of the parties' argument on this issue. As our discussion in text" }, { "docid": "14054939", "title": "", "text": "Int’l Paper Co. v. United Paperworkers Int’l Union, 215 F.3d 815, 818 n. 1 (8th Cir.2000). Simply put, “[t]he arbitrator did not interpret the contract, [s]he rewrote it” by eliminating the geographical limitation to “Thur-ston County, Nebraska” and the gaming limitation to bingo and bingo-related activities. Id. In so doing, we believe that she effectively overrode the policies behind § 81 and the IGRA, which are to protect Indian tribes and to promote their economic development. See Turn Key, 164 F.3d at 1095 (IGRA); Ringsred v. City of Duluth, 828 F.2d 1305, 1308 (8th Cir.1987) (§ 81). The Tribe also challenges other findings of the arbitrator. However, the Tribe has not demonstrated that these findings are totally irrational or manifest a disregard for the law. See Hoffman, 236 F.3d at 461-62. In sum, we hold that the district court erred because the Agreement, as approved by the BIA, does not permit satisfaction of a monetary award from profits and proceeds of the Iowa casino. Thus, the judgment in favor of MRS should be strictly limited, as the Agreement provides, to profits of and property purchased for the Nebraska facility. Accordingly, we reverse the judgment of the district court and remand for further proceedings not inconsistent with this opinion. . Section 533.7 provides that \"[m]anagement contracts ... that have not been approved by the Secretary of the Interior or the [NIGC] Chairman ... are void.” Section 535.1 provides that \"[mjodifications that have not been approved by the Chairman ... are void.” . In United States v. Turn Key Gaming, Inc., 260 F.3d 971 (8th Cir.2001), this court considered the scope of 25 U.S.C. § 81. The court held that because a rental agreement 'and an employment agreement were not \"relative to” Indian lands, they were not subject to the statute. Id., at 979. However, we noted that cases had held that exclusive contracts to construct and manage a gaming facility on Indian lands were subject to the statute. Id., at 977-78 (citing Barona Grp. of Capitan Grande Band of Mission Indians v. American Mgmt. & Amusement, Inc., 840 F.2d 1394, 1403" }, { "docid": "14054933", "title": "", "text": "of the subject matter encompassed” by the approved contract. Id. at 1095. We stated that no matter the “correct approach in ordinary contract disputes, in the context of Indian gaming the directives of Congress, when made apparent, must control.” Id. at 1094. In the context of the IGRA, we made clear that “any management contract that does not receive approval is void, and that any attempted modification of an approved contract that does not ... receive approval, is also void.” Id. (citing 25 C.F.R. §§ 533.7, 535.1(f)). In this case, the parties do not dispute that the December 1987 agreement was subject to approval by the BIA as required by 25 U.S.C. § 81, and that any agreement that did not have such approval is void. In addition, MRS admits that al though the second amendment was submitted to the NIGC, it was not approved. Although in the initial agreement the parties may have intended that MRS would be able to conduct Class III gaming on the Tribe’s land in Iowa, the BIA did not approve that agreement. To obtain the necessary approval, the parties were required to amend the agreement. As approved, the Agreement unambiguously restricted the “Location of the Enterprise” to “Thurston County, Nebraska” and “Gaming Activities” to “Bingo and Bingo-related activities.” By the express terms of the only enforceable, valid agreement before the court, the Tribe’s waiver of immunity was limited to entry of a judgment and execution thereon only as to property or profits from the Nebraska bingo facility. See Namekagon Dev. Co., 517 F.2d at 510 (tribe waived immunity from levy and execution, but only as to certain specified funds). On appeal MRS argues that it could have conducted Class III gaming under the Agreement because the BIA-approved term “bingo and bingo-related” activities was broad enough to permit it to conduct Class III gaming. That argument is frivolous. MRS admitted in the so-called second amendment that it could not conduct Class III gaming in the Nebraska facility in view of the IGRA. It was fortunate that the parties did not attempt to violate the law." }, { "docid": "5893531", "title": "", "text": "McCONNELL, Circuit Judge. Plaintiff First American Kickapoo Operations appeals the district court’s grant of summary judgment on its claim for tor-tious interference with contract. We AFFIRM. I. Factual Background The Indian Gaming Regulatory Act (“IGRA”) establishes a statutory basis for the operation and regulation of gaming by Indian tribes to “promot[e] tribal economic development, self-sufficiency, and strong tribal governments,” while simultaneously “shielding tribes] from organized crime and other corrupting influences [and] ensuring] that ... Indian tribe[s are] the primary beneficiaries] of ... gaming operations.” 25 U.S.C. § 2702. The IGRA effects these goals in part by providing for federal oversight of contracts between tribes and non-tribal entities for the management of tribal gaming operations. Tribes may enter into contracts for the management of these gaming operations only with the approval of the National Indian Gaming Commission (“NIGC”) Chairman. 25 U.S.C. § 2711(a)(1). Unapproved management contracts are void, 25 C.F.R. § 533.7, and a gaming operation that violates any provision of the IGRA is subject to closure and fines of up to $25,000 per violation. 25 U.S.C. § 2713. On April 30, 2001, the Kiekapoo Tribe of Oklahoma entered into an Operating Lease Agreement with First American. The Operating Lease provided for constructing, equipping, and operating a Class II casino on tribal land. First American agreed to construct the casino and lease all the gaming equipment it required. The Tribe agreed to repay, without interest, the costs of construction, although First American guaranteed a monthly payment to the Tribe of $20,000 which took precedence over repaying the construction loan. In return for lease of the gaming equipment, First American was to be paid forty percent of the operation’s net revenues. First American indicates that it spent $859,545.90 “establishing and developing” the casino, which opened May 23, 2001. On June 13, 2001, the NIGC notified the Tribe that its gaming ordinances did not comply with the requirements of the IGRA. The Tribe voluntarily closed the casino, and on June 30, 2001 passed gaming ordinances that subsequently met with NIGC approval. Also in June 2001, the Tribe submitted the Operating Lease to the" }, { "docid": "12003225", "title": "", "text": "Park Place used wrongful means to interfere. BACKGROUND A. Regulatory Framework In 1988, Congress enacted the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721 (2006), which provides a detailed regulatory framework for Indian gaming. Congress’s express purpose in passing IGRA was, inter alia, to “promot[e] tribal economic development, self-sufficiency, and strong tribal governments,” while simultaneously “shield[ing tribes] from organized crime and other corrupting influences [and] ensuring] that ... Indian tribe [s are] the primary beneficiaries] of ... gaming operation[s].” Id. § 2702. To conduct gaming, an Indian tribe must satisfy numerous prerequisites. As relevant to this case, the gaming must take place “on Indian lands ... located within a State that permits such gaming.” Id. § 27 10(b)(1)(A). IGRA generally prohibits gaming on lands that became Indian lands subsequent to IGRA’s enactment in October 1988, unless the Governor of the relevant State “concurs” with a determination by the Secretary of the Interior that it “would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.” Id. § 2719(b)(1)(A). Moreover, IGRA provides for federal oversight of contracts between tribes and non-tribal entities regarding the management of tribal gaming operations. Id. § § 2710(d)(9), 2711(g). Tribes may enter into contracts for the management of these gaming operations only with the approval of the National Indian Gaming Commission (“NIGC”) Chairman. Id. § 2711(a)(1). By regulation, unapproved management contracts are deemed “void.” 25 C.F.R. § 533.7 (2008). B. Factual Background In 1996, the Catskill Group entered into a series of contracts with the Tribe for the purpose of building and operating a casino at a site adjacent to the Monticello Raceway. Three of those contracts are at issue here: • A Land Purchase Agreement (“LPA”) between the Tribe and Catskill, which, inter alia, provided for Catskill’s transfer of 29 acres of land to the United States to be held in trust for the Tribe; • A Management Agreement (“MA”) between the Tribe and Mohawk, which, inter alia, detailed the duties and responsibilities of Mohawk, and the fees for its management services; and" }, { "docid": "12003240", "title": "", "text": "that the Catskill Group could not satisfy this element as a matter of law because its contracts with the Tribe were void in the absence of prior NIGC approval under 25 C.F.R. § 533.7 (providing that “[mjanagement contracts ... that have not been approved by the Secretary of the Interior or the Chairman ... are void”). On appeal, the Catskill Group raises three principal challenges to the district court’s determination in this regard. First, it claims that the federal voiding provisions do not apply to any of the contracts at issue — the MA (Management Agreement), the LPA (Land Purchase Agreement), and the DCA (Development and Construction Agreement) — because these contracts concern lands that are not yet “Indian lands.” Second, the Catskill Group argues that the voiding provisions do not invalidate the Tribe’s precursory obligations to act in good faith in seeking required agency approvals. Third, it argues that even if the voiding provision of 25 C.F.R. § 533.7 applies to the MA, it does not apply to the LPA or DCA because those agreements do not contain gaming management provisions. We address, and reject, each of these assertions in turn below. A. “Indian Lands” IGRA defines “Indian lands,” in relevant part, as “lands within the limits of any Indian Reservation” or “lands title to which is ... held in trust by the United States for the benefit of any Indian tribe.” 25 U.S.C. § 2703(4) (emphasis added). The Catskill Group argues that while the LPA contemplated a land transfer from Catskill to the United States in trust for the Tribe, the land was owned by Catskill at all relevant times, and thus was not land that “is” Indian land subject to the NIGC’s voiding provision. The Catskill Group further asserts that this interpretation does not result in a regulatory gap because any proposed gaming on lands not yet held in trust would be regulated by state law, and nothing in IGRA would require states to allow Indian gaming on the site. We disagree with this interpretation of IGRA. To begin with, the NIGC’s authority to approve management contracts" }, { "docid": "20687140", "title": "", "text": "BENTON, Circuit Judge. The National Indian Gaming Commission (“NIGC”) fined Bettor Racing, Inc. $5 million for violations of the Federal Indian Gaming Regulatory Act. The Act requires NIGC to approve all contracts for the operation of gaming activities at tribal casinos. 25 U.S.C. § 2711(a). Contract approval “shall be evidenced by a Commission document dated and signed by the chairman. No other means of approval shall be valid.” 25 C.F.R. § 533.1(b). “[T]he regulations mandate that any management contract that does not receive approval is void, and that any attempted modification of an approved contract that does not comply with the regulations and does not receive approval, is also void.” Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1092, 1094 (8th Cir.1999). ■ The Act further requires tribes to maintain the “sole proprietary interest” in the gaming activities; management contractors cannot collect more than 30% (or in some cases 40%) of the net revenues. §§ 2710(b)(2)(A), 2711(c). Bettor Racing contracted to operate its pari-mutuel betting business at the casino of the Flandreau Santee Sioux Tribe. NIGC did not approve the contract until after Bettor Racing had begun operating at the casino.. The parties made two modifications to the contract, creating a check-swap scheme: Bettor Racing would pay the full amount due under the initial contract and the Tribe would repay Bettor Racing with a “bonus.” NIGC approved neither. Under the check-swap scheme, Bettor Racing received more than 40% of the net revenues. NIGC sent a “Notice of Violation” to the Tribe and Bettor Racing. The Tribe settled with NIGC; Bettor Racing did not. NIGC found Bettor Racing had committed three violations of the Act: (1) managing a tribal gaming operation without an approved management contract, (2) operating under unapproved modifications, and (3) holding a proprietary interest in the pari-mutuel betting operation. The Notice offered Bettor Racing the chance to correct the violations by reimbursing the Tribe $4,544,75s. Bettor Racing did not make this payment. NIGC issued a Civil-Fine Assessment, fining Bettor Racing $5 million for the three violations. Bettor Racing appealed the Notice and Civil-Fine Assessment. The Office" }, { "docid": "14573113", "title": "", "text": "the contract must contain a “representation that the contract as submitted ... is the entirety of the agreement among the parties.” 25 C.F.R. § 533.3(a)(2). In addition, the regulations mandate that any management contract that does not receive approval is void, and that any attempted modification of an approved contract that does not comply with the regulations and does not receive approval, is also void. 25 C.F.R. §§ 533.7, 535.1(f). In keeping with these requirements, the management contract (hereinafter “Agreement”) in this case stated that it encompassed the entire agreement between the parties with respect to the subject matter thereof and that there were no other collateral agreements or understandings except those contained therein. The Agreement provided that it could not be changed orally, but only by an instrument in writing signed by both parties and submitted by the Tribe for written approval to the NIGC. The Agreement also provided that “the maximum agreed ceiling for development and construction cost of all construction and equipping of the Project shall not exceed the aggregate sum of $4,000,000.” While awaiting final NIGC approval of the Agreement, the parties entered into several “interim agreements” which allowed gaming operations to begin in temporary facilities erected on the site. Thei^e was a Rental Agreement, whereby Turn Key agreed to provide the Tribe certain gaming equipment and other personal property, as well as an Employee Agreement between Wayne Barber, a tribe member and officer of Turn Key, and the Tribe, in which the Tribe employed Barber to manage the temporary gaming facility until the Agreement received NIGC approval. Both interim agreements stated that they would end upon approval of the main Agreement by the NIGC, and that thereafter the main Agreement would govern all rights and obligations of the parties. Turn Key also asserts that there was an oral agreement with Tribe officials to modify the $4,000,000 construction cost ceiling after it became obvious that this amount would not adequately cover the full cost of construction. On appeal, Turn Key first argues that it was error for the District Court to refuse to consider the content" }, { "docid": "18465477", "title": "", "text": "Place argued that the lack of the necessary governmental approvals rendered the various agreements void. In the May 14 opinion, I held that the Management Agreement was void under regulations passed pursuant to the IGRA which require that gaming management contracts not approved by the National Indian Gaming Commission (NIGC) are void and unenforceable. Catskill, 144 F.Supp.2d 215 (citing 25 C.F.R. § 533.7). See also 25 C.F.R. § 533.1 (stating that Class II and III management contracts “shall become effective upon approval by the Chairman [of the NIGC]”). As to the LPA, the Development and Construction Agreement, and the Shared Facilities Agreement, I held that each of these was also void. I found that each of these agreements were collateral to the Management Agreement, under the definition of “collateral agreements” under provided in 25 C.F.R. § 502.5. Under section 2711(a)(3) of the IGRA, collateral agreements are considered management contracts. Thus, because unapproved management contracts are void under C.F.R. §§ 533.1 and 533.7,1 held that the collateral agreements were also void. See Catskill, 144 F.Supp.2d 215 (citing 25 U.S.C. § 2711(a)(3) and U.S. ex rel. Mosay v. Buffalo Bros. Mgmt, 20 F.3d 739, 743 (7th Cir.1994) (explaining effect of IGRA on contracts with Indian tribes)). Catskill Development now moves for reconsideration of the Court’s holding, albeit only with respect to the LPA. 1. Plaintiffs Motion For Reconsideration Is Granted To prevail on a motion for reconsideration, the movant must demonstrate “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” See Doe v. New York City Dept. of Soc. Servs., 709 F.2d 782, 789 (2d Cir.1983). The court’s review “is narrow and applies only to already-considered issues; new arguments and issues are not to be considered.” See Morales v. Quintiles Transnational Corp., 25 F.Supp.2d 369, 372 (S.D.N.Y.1998). A motion for reconsideration “is not a substitute for appeal and ‘may be granted only where the Court has overlooked matters or controlling decisions which might have materially influenced the earlier decision.’ ” See id. (citations omitted). Plaintiff argues that I" }, { "docid": "14573111", "title": "", "text": "be known as the Prairie Wind Casino. All costs of constructing and equipping the project were to be advanced by Turn Key, and repaid by the Tribe out of revenues from operations according to a set formula. According to Turn Key, the project experienced significant cost overruns because of the protracted process of receiving NIGC approval, inflation, and the added expenses of opening temporary facilities. Turn Key insists that these overruns were discussed with Tribe officials, and that in order to avoid the risk of further delays, it was orally agreed that the parties would modify the Agreement after receiving NIGC approval. By the time the Agreement finally received NIGC approval on December 7, 1995, Turn Key had already, spent a considerable amount of money, about $2.7 million, on the project. In June of 1996, Turn Key sent a change order to the Tribe requesting that it approve an increase in construction costs. The Tribe refused, and Turn Key ceased work on the project. The Tribe then declared Turn Key in default, and, after a time, terminated the Agreement. Turn Key filed suit alleging breach of contract and unjust enrichment. The Tribe counterclaimed for breach of contract and breach of fiduciary duty. The Indian Gaming Regulatory Act of 1988 provided a statutory basis for the operation and regulation of Indian gaming, and established the National Indian Gaming Commission (NIGC) to oversee Indian gaming. 25 U.S.C. §§ 2701-21. Among other things, the Act permits tribes to enter into management contracts for the operation and management of gaming facilities, subject to the approval of such contracts by the Chairman of the NIGC. 25 U.S.C. § 2711. A contract cannot receive approval from the Chairman unless it provides certain minimal protections for the tribe. Id. Some requirements are codified in the Act itself, and others are set out in the accompanying regulations. See id.; 25 C.F.R. §§ 531.1-533.7. A few of those requirements are relevant- here. First, the contract must provide for an “agreed ceiling for the repayment of development and construction costs.” 25 U.S.C. § 2711(b)(4); see 25 C.F.R. § 531.1(g). Second," }, { "docid": "6796550", "title": "", "text": "“to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1). This circuit has recently held that IGRA completely preempts the field of Indian gaming vis a vis state law. Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536 (8th Cir.1996) (specifically holding that “IGRA has the requisite extraordinary preemptive force necessary to satisfy the complete preemption exception to the well-pleaded complaint rule.”). The text of IGRA authorizes tribes to enter into management contracts for the operation and management of tribal gaming ventures. 25 U.S.C. § 2711(a)(1). IGRA and its regulations further prescribe essential terms which must be contained in a management contract before the same can be “approved” by the NIGC’s Chairman (or the Secretary of the Interior for contracts, like the present, which were submitted prior to NIGC organization). 25 U.S.C. § 2711(b)(l-6); 25 C.F.R. Part 531.1(a-n). Along with the presence of an adequate tribal ordinance regarding gaming and satisfactory background checks for individuals and entities representing management parties, 25 U.S.C. § 2711(a), the presence of the various essential contract terms is critical regarding federal approval of management contracts. B. NIGC review of existing management contracts The management contract at issue in the present case was approved by the BIA Area Director, on behalf of the Secretary of the Interior, on February 19, 1993. IGRA and the rules and regulations of the NIGC require that all management contracts approved prior to the organization of the NIGC be reviewed and approved by that agency’s Chairman. 25 U.S.C. § 2712. During the review process, many of the same criteria required for the Secretary’s approval are examined by the Chairman of the NIGC. 25 U.S.C. § 2712(c)(l-2) (directing the Chairman to “subject [the existing] contract to the requirements and process of [25 U.S.C. § 2711]”). Again, a contract’s approval by the Chairman depends on, inter alia, satisfactory background cheeks and compliance with the essential terms outlined in IGRA and the regulations. 25 C.F.R. §§ 533.6 (approval procedure), 533.3 (materials and" }, { "docid": "14573112", "title": "", "text": "time, terminated the Agreement. Turn Key filed suit alleging breach of contract and unjust enrichment. The Tribe counterclaimed for breach of contract and breach of fiduciary duty. The Indian Gaming Regulatory Act of 1988 provided a statutory basis for the operation and regulation of Indian gaming, and established the National Indian Gaming Commission (NIGC) to oversee Indian gaming. 25 U.S.C. §§ 2701-21. Among other things, the Act permits tribes to enter into management contracts for the operation and management of gaming facilities, subject to the approval of such contracts by the Chairman of the NIGC. 25 U.S.C. § 2711. A contract cannot receive approval from the Chairman unless it provides certain minimal protections for the tribe. Id. Some requirements are codified in the Act itself, and others are set out in the accompanying regulations. See id.; 25 C.F.R. §§ 531.1-533.7. A few of those requirements are relevant- here. First, the contract must provide for an “agreed ceiling for the repayment of development and construction costs.” 25 U.S.C. § 2711(b)(4); see 25 C.F.R. § 531.1(g). Second, the contract must contain a “representation that the contract as submitted ... is the entirety of the agreement among the parties.” 25 C.F.R. § 533.3(a)(2). In addition, the regulations mandate that any management contract that does not receive approval is void, and that any attempted modification of an approved contract that does not comply with the regulations and does not receive approval, is also void. 25 C.F.R. §§ 533.7, 535.1(f). In keeping with these requirements, the management contract (hereinafter “Agreement”) in this case stated that it encompassed the entire agreement between the parties with respect to the subject matter thereof and that there were no other collateral agreements or understandings except those contained therein. The Agreement provided that it could not be changed orally, but only by an instrument in writing signed by both parties and submitted by the Tribe for written approval to the NIGC. The Agreement also provided that “the maximum agreed ceiling for development and construction cost of all construction and equipping of the Project shall not exceed the aggregate sum of" }, { "docid": "18465476", "title": "", "text": "May 14 opinion, plaintiffs were in the process of obtaining the necessary approvals when defendant convinced the Tribe to deal only with it on any casino projects in New York State. At the time defendant allegedly induced the Tribe to break with plaintiffs, the Secretary of the BIA had determined that the project could proceed. However, Governor Pataki had not yet concurred, and from documents submitted by the plaintiffs it appeal’s that he was not likely to give this concurrence prior to successful renegotiation of the tribal-state compact. Thus, the BIA had not yet agreed to accept the land in trust for the Tribe, and the trust transfer had not yet occurred. Furthermore, the NIGC had not yet approved the Management Agreement. Plaintiffs filed claims for tortious interference with contract, tortious interference with prospective business relations, unfair competition, and violations of New York’s Donnelly Act. Defendant moved to dismiss plaintiffs’ claim for tortious interference with contract on the grounds that none of the agreements executed between plaintiffs and the Tribe was a valid contract. Park Place argued that the lack of the necessary governmental approvals rendered the various agreements void. In the May 14 opinion, I held that the Management Agreement was void under regulations passed pursuant to the IGRA which require that gaming management contracts not approved by the National Indian Gaming Commission (NIGC) are void and unenforceable. Catskill, 144 F.Supp.2d 215 (citing 25 C.F.R. § 533.7). See also 25 C.F.R. § 533.1 (stating that Class II and III management contracts “shall become effective upon approval by the Chairman [of the NIGC]”). As to the LPA, the Development and Construction Agreement, and the Shared Facilities Agreement, I held that each of these was also void. I found that each of these agreements were collateral to the Management Agreement, under the definition of “collateral agreements” under provided in 25 C.F.R. § 502.5. Under section 2711(a)(3) of the IGRA, collateral agreements are considered management contracts. Thus, because unapproved management contracts are void under C.F.R. §§ 533.1 and 533.7,1 held that the collateral agreements were also void. See Catskill, 144 F.Supp.2d 215" }, { "docid": "467094", "title": "", "text": "the Tribe are not enforceable contracts because they had not been approved as required under the IGRA or Section 81. Defendant is correct. 1. The gaming management agreement is void under 25 U.S.C. 2711(b) The Gaming Management Agreement contemplates a relationship between Catskill and the Tribe under which Catskill would be primarily responsible for the organization and operation of the casino, and would give the Tribe a portion of the profits. The management agreement required NIGC approval. 25 U.S.C. § 2711(a)(1). Management agreements that do not have NIGC approval are void and unenforceable. 25 C.F.R. § 533.7. The Management Agreement, under which Catskill would earn its gaming profits, was not approved at the time defendant allegedly interfered with the agreement. Thus, there was no valid and enforceable contract with which defendant could interfere. Catskill argues that this and the other agreements were fully enforceable because the parties agreed to cooperate and to use commercially reasonable best efforts to obtain government approval, so that, even though no government approval was obtained, the contracts are nonetheless enforceable to the extent they require the Mohawks to use good faith efforts to bring about government approval. This contention was expressly rejected in A.K. Management Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir.1986), in which the Ninth Circuit explained that the failure to obtain government approval renders the entire agreement invalid, including any “best efforts” clause. The validity of the management agreement (and all agreements collateral to it) is a matter of statutory application — it is not dependent on language used by the parties in the contract. 2. Plaintiffs’ Other Agreements Are Void Under 25 U.S.C. § 2711(a)(8) Collateral agreements executed in conjunction with gaming management contracts are included in the definition of management contracts, and thus are also void absent NIGC approval. 25 U.S.C. § 2711(a)(3); 25 C.F.R. § 533.7. A collateral agreement is defined as any contract, whether or not in writing, that is related, either directly or indirectly, to a management contract, or to any rights, duties or obligations created between a tribe (or any of" }, { "docid": "467063", "title": "", "text": "25 U.S.C. §§ 2705(a), 2711(b). Regulations passed pursuant to the IGRA state that such contracts “shall become effective upon approval by the Chairman,” 25 C.F.R. § 533.1, and that a gaming management contract not approved by the NIGC is void. 25 C.F.R. § 533.7. See also International Gaming Network v. Casino Magic Corp., 120 F.3d 135 (8th Cir.1997) (noting that agreement to build and manage casino on tribal land was not binding on parties because it lacked NIGC approval); Casino Resource Corp. v. Harrah’s Entm’t, Inc., 243 F.3d 435 (8th Cir.2001). In addition, collateral agreements to the management contract that relate to Indian gaming must also be approved, and are thus void without approval. 25 U.S.C. § 2711(a)(3). See also U.S. ex. rel. Mosay v. Buffalo Bros. Mgmt., 20 F.3d 739, 743 (7th Cir.1994) (explaining effect of IGRA on contracts with Indian tribes). A separate section of the IGRA describes the approval process for planned “off-reservation” gambling projects on lands to be transferred and held in trust by the U.S. for the benefit of a tribe. Such a project must be expressly authorized by the Secretary of the Interior. IGRA § 20, 25 U.S.C. § 2719(b)(1)(a). See also Kewee-naw Bay Indian Cmty. v. United States, 136 F.3d 469, 474 (6th Cir.1998). The Section states that gaming shall not be conducted “on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988,” unless certain limited conditions are met. 25 U.S.C.A. § 2719(a). Under the exceptions to § 2719(a), gaming on newly acquired trust lands may be conducted when: [t]he Secretary, after consultation with the Indian tribe and appropriate State, and local officials ... determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian Tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination.... 25 U.S.C. § 2719(b)(1)(A) Unlike Section 2711, there is no regulation related to Section 2719 which explicitly" }, { "docid": "12003241", "title": "", "text": "agreements do not contain gaming management provisions. We address, and reject, each of these assertions in turn below. A. “Indian Lands” IGRA defines “Indian lands,” in relevant part, as “lands within the limits of any Indian Reservation” or “lands title to which is ... held in trust by the United States for the benefit of any Indian tribe.” 25 U.S.C. § 2703(4) (emphasis added). The Catskill Group argues that while the LPA contemplated a land transfer from Catskill to the United States in trust for the Tribe, the land was owned by Catskill at all relevant times, and thus was not land that “is” Indian land subject to the NIGC’s voiding provision. The Catskill Group further asserts that this interpretation does not result in a regulatory gap because any proposed gaming on lands not yet held in trust would be regulated by state law, and nothing in IGRA would require states to allow Indian gaming on the site. We disagree with this interpretation of IGRA. To begin with, the NIGC’s authority to approve management contracts does not appear to hinge on whether the contract relates to Indian lands. Neither the governing statutes relating to gaming management contracts, 25 U.S.C. §§ 2710(d)(9), 2711, nor the NIGC’s implementing regulations, 25 C.F.R. §§ 533.1, 533.7, expressly require that a gaming contract relate to Indian lands for it to be subject to NIGC approval. Indeed, the absence of any mention of “Indian lands” in § 2710(d)(9) or § 2711 stands in contrast to many of the surrounding statutory provisions, which are expressly limited in some way to Indian lands. See, e.g., 25 U.S.C. §§ 2710(d)(1), (2), (3), (5), (7), (8) (relating to class III gaming “on Indian lands”); id. §§ 2710(b)(1), (2), (4) (relating to class II gaming “on Indian lands”). Even if we were to read an “Indian land” requirement into the governing statutes and regulations at issue, we would nevertheless reject the Catskill Group’s proposed application of any such requirement to the circumstances of this case. The Dictionary Act, 1 U.S.C. § 1, instructs that “[i]n determining the meaning of any Act" }, { "docid": "14054932", "title": "", "text": "profits from the Nebraska facility. MRS argues that in determining the scope of the Tribe’s waiver, we should consider the intent of the parties that the Enterprise would include Class III gaming anywhere on the Tribe’s lands, as was expressed in the December 1987 agreement and the so-called second amendment. We disagree. This case is similar to Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1092 (8th Cir.1999). In that case, a company had executed a contract with an Indian tribe to construct and manage a gaming facility on the tribe’s land. The contract was subject to the IGRA. While the parties were awaiting approval from the NIGC, they entered into interim agreements. They also attempted to orally modify the contract’s approved ceiling on construction costs. When disputes arose, the company argued that it was “proper ... to look to these other agreements in order to determine the intent of the parties.” Id. at 1094. This court rejected the argument, holding that “these other agreements [could] have no effect with respect to any of the subject matter encompassed” by the approved contract. Id. at 1095. We stated that no matter the “correct approach in ordinary contract disputes, in the context of Indian gaming the directives of Congress, when made apparent, must control.” Id. at 1094. In the context of the IGRA, we made clear that “any management contract that does not receive approval is void, and that any attempted modification of an approved contract that does not ... receive approval, is also void.” Id. (citing 25 C.F.R. §§ 533.7, 535.1(f)). In this case, the parties do not dispute that the December 1987 agreement was subject to approval by the BIA as required by 25 U.S.C. § 81, and that any agreement that did not have such approval is void. In addition, MRS admits that al though the second amendment was submitted to the NIGC, it was not approved. Although in the initial agreement the parties may have intended that MRS would be able to conduct Class III gaming on the Tribe’s land in Iowa, the BIA did not" }, { "docid": "8863856", "title": "", "text": "Id. at 743 (quoting 41 Fed.Reg. 42944 (1976)). Wells Fargo also points to the Indenture’s own severability clause, which provides that any illegal terms in the Indenture should be read out in order to preserve the remainder of the agreement. According to Wells Fargo, reformation of the Indenture would conform with both Olson and the intent of the parties as expressed in the severability clause. We cannot accept this argument. As Wells Fargo readily admits, see Appellant’s Br. 34, IGRA regulations provide explicitly that management contracts that have not been approved by the Chairman are void. 25 C.F.R. § 533.7. The Act is comprehensive legislation reconciling many competing interests and fulfilling the federal government’s special obligation to protect Native American tribes. See Gaming World Int’l, Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840, 848 (8th Cir.2003) (“The regulatory scope of IGRA is ... far reaching in its supervisory power over Indian gaming contracts.”)- One of IGRA’s principal purposes is to ensure that the tribes retain control of gaming facilities set up under the protection of IGRA and of the revenue from these facilities. Consequently, the statute provides for pre-screening of contracts between the tribes and parties desiring to establish business relationships with the tribes that might impair this fundamental purpose of the federal statutory scheme, and it is this comprehensive review that constitutes the core of Congress’s protection for Indian gaming establishments. The statutory and regulatory framework is thus fundamentally different from the simple omission of statutorily required terms at issue in Olson and incompatible with the presumption against total invalidity applied in that case. It was reasonable for the NIGC to determine that, in enacting the statute, Congress intended that a contract violating this fundamental purpose of the statute was void. Given the Commission’s categorical statement about the consequences for failure to secure approval and the comprehensive regulatory framework involved, we conclude that the Commission’s regulation is not subject to reformation by excision of offending provisions. Cf. First American Kickapoo Operations, L.L.C. v. Multimedia Games, Inc., 412 F.3d 1166, 1177 n. 5. (10th Cir.2005) (“It may" }, { "docid": "467062", "title": "", "text": "same members as the Management Business Board, to approve certain aspects of the project, such as the budget and the choice of architect. The agreement was signed by the Gaming Authority, the Tribe, and the Monticello Raceway Development Company. (Id. at E.) C. Federal and State Approval of Indian Gaming The contemplated casino project between plaintiffs and the Mohawks was subject to regulatory approval by the Federal Government, and as discussed above, by New York State. Defendant argues that certain of the required approvals affect the validity of the agreements signed by plaintiffs and the Mohawks, in that the agreements could not become legally binding contracts without those approvals. 1. IGRA The primary statute regulating Indian gaming is the IGRA. As explained above, the IGRA allows Indian tribes to conduct gaming operations on reservation lands and, under certain circumstances, on “off-reservation” lands. The Act established the National Indian Gaming Commission (NIGC) to regulate Indian gaming. Under the Act, gaming management contracts for Class III gaming must now be approved by the Commissioner of the NIGC. 25 U.S.C. §§ 2705(a), 2711(b). Regulations passed pursuant to the IGRA state that such contracts “shall become effective upon approval by the Chairman,” 25 C.F.R. § 533.1, and that a gaming management contract not approved by the NIGC is void. 25 C.F.R. § 533.7. See also International Gaming Network v. Casino Magic Corp., 120 F.3d 135 (8th Cir.1997) (noting that agreement to build and manage casino on tribal land was not binding on parties because it lacked NIGC approval); Casino Resource Corp. v. Harrah’s Entm’t, Inc., 243 F.3d 435 (8th Cir.2001). In addition, collateral agreements to the management contract that relate to Indian gaming must also be approved, and are thus void without approval. 25 U.S.C. § 2711(a)(3). See also U.S. ex. rel. Mosay v. Buffalo Bros. Mgmt., 20 F.3d 739, 743 (7th Cir.1994) (explaining effect of IGRA on contracts with Indian tribes). A separate section of the IGRA describes the approval process for planned “off-reservation” gambling projects on lands to be transferred and held in trust by the U.S. for the benefit of a" }, { "docid": "12003226", "title": "", "text": "surrounding community.” Id. § 2719(b)(1)(A). Moreover, IGRA provides for federal oversight of contracts between tribes and non-tribal entities regarding the management of tribal gaming operations. Id. § § 2710(d)(9), 2711(g). Tribes may enter into contracts for the management of these gaming operations only with the approval of the National Indian Gaming Commission (“NIGC”) Chairman. Id. § 2711(a)(1). By regulation, unapproved management contracts are deemed “void.” 25 C.F.R. § 533.7 (2008). B. Factual Background In 1996, the Catskill Group entered into a series of contracts with the Tribe for the purpose of building and operating a casino at a site adjacent to the Monticello Raceway. Three of those contracts are at issue here: • A Land Purchase Agreement (“LPA”) between the Tribe and Catskill, which, inter alia, provided for Catskill’s transfer of 29 acres of land to the United States to be held in trust for the Tribe; • A Management Agreement (“MA”) between the Tribe and Mohawk, which, inter alia, detailed the duties and responsibilities of Mohawk, and the fees for its management services; and • A Development and Construction Agreement (“DCA”) between the Tribe and Monticello, which, inter alia, provided for the construction and development of the casino and surrounding lands. All of these agreements, in some manner, required the Tribe to use its best efforts and to cooperate with the Catskill Group in obtaining the requisite government approvals. However, despite having spent millions of dollars, the Catskill Group still had not received all the necessary state and federal approvals by April 2000, and the NIGC had denied the Catskill Group’s application several times. Although the United States Bureau of Indian Affairs (the “BIA”) had agreed to take the land at issue in trust for the Tribe, final approval was never provided because the New York Governor had not yet consented to the transfer, and the BIA had not made a final determination that the price ($10 million) to be paid by the Tribe for the land transfer did not exceed the land’s fair market value. Meanwhile, in mid-1999, Park Place sought an introduction to the Tribe through Ivan" } ]

[ { "docid": "22389621", "title": "", "text": "notice and time to amend the defective complaint. . In seeking to affirm the District Court's order, the Defendants argue that pro se plaintiffs like Alston are not exempt from the strictures of heightened pleading. Brief for Ap-pellee at 9 (citing Ressler v. Scheipe, 505 F.Supp. 155, 156 (E.D.Pa.1981)). . The Defendants likewise argue on appeal that Alston's complaint lacked sufficient factual support. But a plaintiff need not plead facts. To withstand a 12(B)(6) motion, a plaintiff need only make out a claim upon which relief can be granted. If more facts are necessary to resolve or clarify the disputed issues, the parties may avail themselves of the civil discovery mechanisms under the Federal Rules. Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992 (“This simplified notice pleading standard relies on liberal discovery rules ... to define disputed facts and issues and to dispose of unmeritorious claims.’’). The need for discovery before testing a complaint for factual sufficiency is particularly acute for civil rights plaintiffs, who often face informational disadvantages. See Colburn, 838 F.2d at 667. Plaintiffs may be unaware of the identities and roles of relevant actors and, owing to their incarceration or institutionalization, unable to conduct a pretrial investigation to fill in the gaps. But by itself, this lack of knowledge does not bar entry into a federal court. The principles of notice pleading and the liberal discovery rules allow for meritorious claims to proceed even if a confined prisoner cannot adduce all the necessary facts at the outset. For instance, our cases permit the naming of fictitious defendants as stand-ins until the identities can be learned through discovery, Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir.1998). As the Magistrate Judge here recognized, counsel appointed under 28 U.S.C. § 1915(d) can help litigants like Alston surmount these obstacles to pleading. But legal help alone is insufficient; in such cases, access to discovery may well be critical. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980) (“[T]he plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not" } ]

[ { "docid": "7329874", "title": "", "text": "guardian ad litem need not be appointed at this time. Finally, the Court must decide whether the plaintiffs’ JJDPA claim must be dismissed for failure to name an indispensable party. The county defendants argue that the plaintiffs must sue the juvenile judges who order the sheriff to place class members in jail, and that their failure to do so warrants dismissal under Rule 12(b)(7). The Eighth Circuit’s decision in R.W.T. v. Dalton, 712 F.2d 1225, 1233 (8th Cir.1983), indicates that juvenile judges are not indispensable parties to actions of this sort. The motion is therefore denied. II. THE PLAINTIFFS’ § 1983 CAUSE OF ACTION FOR RIGHTS CREATED BY § 5633 Prior to 1980, citizens could only enforce federal statutory rights if a cause of action was expressly provided for in the statute or if one could be implied under general principles stated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). Under these principles, a cause of action could only be implied if the plaintiff was one of the class for whose especial benefit the statute was enacted, a congressional intent to create a remedy could be found, such a remedy would be consistent with legislative purposes, and it would not inappropriately interfere with a traditionally state area. Id. In effect, these requirements placed the burden on the plaintiff to find a specific intent to permit this particular form of a remedy. Since 1874, § 1983 has expressly provided a private cause of action for claims arising from “the deprivation of any rights, privileges or immunities secured by the Constitution and laws ” by individuals acting under color of state law. Until Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the “and laws” phrase was generally ignored. In Thiboutot, the court formally recognized that § 1983 provided a private cause of action for “claims based on purely statutory violations of federal law” by state actors. Now plaintiffs suing state actors who cannot satisfy Cort v. Ash by showing that the same Congress which created a statutory right also" }, { "docid": "8771998", "title": "", "text": "public policy goal, that goal is not immediately apparent. Furthermore, and in any event, such a goal would run counter to the public policy of all, or nearly all, fifty states. Accordingly, the Court will treat this procedural due process claim as a claim for “personal injury” under Massachusetts law. Because Mass. Gen. Laws ch. 228, § 1 provides in substance that an action “in tort” for “damage” survives the death of the injured party, this action did not abate upon the death of James Pomeroy, Jr., and accordingly will not be dismissed on that basis. C. Whether the Complaint States a Claim for Violation of Procedural Due Process In a civil rights action under § 1983, the plaintiff must prove that he was deprived of a right secured by the Constitution or a federal statute by a person acting under the color of state law. See Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (permitting § 1983 claims against state actors for violation of federal statutes); Tatro v. Kervin, 41 F.3d 9, 14 (1st Cir.1994). Plaintiff grounds his due process claim in part on defendant’s alleged failure to comply with Mass Gen Laws ch. 71, § 37H and various regulations found in the Oakmont Student Handbook. However, “[i]t is well established that a state actor’s failure to observe a duty imposed by state law, standing alone, is not sufficient to establish a § 1983 claim.” Fournier v. Reardon, 160 F.3d 754, 757 (1st Cir.1998). Thus, the Court must examine whether the school’s actions, irrespective of state statutes and local regulations, violated the plaintiffs due process rights under the Constitution. There is no doubt that James Pomeroy, Jr., had a property interest in his public education and a liberty interest in his reputation that were protected under the Fourteenth Amendment’s Due Process Clause. See Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1st Cir.1988) Having provided for the right to a free public education, see Mass. Gen. Laws ch." }, { "docid": "22116860", "title": "", "text": "against the Secretary if the Secretary owes plaintiffs a clear, non-discretionary duty); Lopez v. Heckler, 725 F.2d 1489, 1507-08 (9th Cir.1984), vacated and remanded on other grounds, Heckler v. Lopez, 469 U.S. 1082, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). “Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individual’s claim is clear and certain; (2) the official’s duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir.1998); see also Ringer, 466 U.S. at 616, 104 S.Ct. 2013 (“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief....”). We hold that Appellants do not meet the third requirement because administrative review could correct the individual errors alleged by Appellants. Thus, there is an adequate alternative remedy. B. State Defendants Appellants appeal the district court’s order granting the State Defendants’ motion to dismiss for failure to state a claim, finding that Appellants did not state a claim under § 1988 based on violations of procedural due process. 1. Standard of Review We review de novo a dismissal of a § 1983 action for failure to state a claim. Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir.2000). 2. Section 1983 Section 1983 provides, in relevant part: 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 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.... Section 1983 may be used to challenge violations of federal statutory law. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). To state a claim for relief under" }, { "docid": "19888289", "title": "", "text": "out of court on a Rule 12(b)(6) motion for' lack of detailed facts.’ ” Id. (quoting Stanziale v. Nachtomi (In re Tower Air, Inc.), 416 F.3d 229 (3d Cir.2005)). Discovery is intended to uncover who did what and when and it is at the summary judgment stage that the Individual Defendants can argue there is a lack of factual support to allow a claim against them to proceed. See Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992 (“This simplified notice pleading standard relies on liberal discovery rules ... to define disputed facts and issues and to dispose of unmeritorious claims.”). The question for this court involves the validity of the stated claims. As explained throughout this memorandum, some of the alleged facts state a legitimate claim for relief and others do not; however, Cornell does not fail to include a factual predicate for any of the claims against the Individual Defendants. In addition, “[t]he need for discovery before testing a complaint for factual sufficiency is particularly acute for civil rights plaintiffs, who often face informational disadvantages. Plaintiffs may be unaware of the identities and roles of relevant actors and ... unable to conduct a pre-trial investigation to fill in the gaps” Alston, 363 F.3d at 233 n. 6. Under the Federal Rules, this lack of information does not prevent the filing of a federal civil rights complaint. See generally Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir.1998) (permitting the naming of fictitious defendants as stand-ins until the identities can be learned through discovery). The Individual Defendants rely on inapposite case law to support their position. For example, Evancho v. Fisher, 423 F.3d 347 (3d Cir.2005), involved a § 1983 claim against a government official under a respondeat superior theory of liability. The court held that the plaintiff failed to meet the notice pleading standard of the Federal Rules because she did not aver any personal involvement by the government official in the alleged wrongdoing. Rather, the plaintiff was attempting to hold the official liable due to his position. A § 1983 cause of action cannot rest on the theory" }, { "docid": "18838921", "title": "", "text": "It is beyond peradventure that such an arrest states a colorable claim under § 1983. Reeves v. City of Jackson, 608 F.2d 644, 650 (5th Cir.1979). The existence of Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa.C. S.A. § 8541 et seq., (Tort Claims Act), does not alter this conclusion. The Tort Claims Act, passed in response to Ayela v. Philadelphia Board of Education, 453 Pa. 584, 305 A.2d 877 (1973), reinstated the immunity of the Commonwealth’s political subdivisions and governmental agencies. See, Bliss v. Allentown Public Library, 534 F.Supp. 356 (E.D.Pa.1982). Pennsylvania’s legislation cannot, however, immunize state actors who abrogate federal constitutional or statutory rights; § 1983 specifically protects such rights. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). Although states remain generally free to develop their own tort and immunity law, they may not exempt state actors from liability for “wholly arbitrary or irrational” conduct. Martinez v. Califano, 444 U.S. 277, 282, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980). Specifically, states may not immunize official conduct which violates rights protected by § 1983. Id. at 284, n. 8, 100 S.Ct. at 558, n. 8. Sager v. City of Woodland Peak, 543 F.Supp. 282, 290-297 (D.Colo.1982); Walker v. Rowe, 535 F.Supp. 55, 57 (N.D.Ill.1982). See also, Commonwealth of Pennsylvania v. Porter, 659 F.2d 306, 314-15 (3d Cir.1981) (en banc; plurality opinion) (The Fourteenth Amendment is the “law of the land in all of Pennsylvania”.) Similarly, state law may not “frustrate or interfere with the implementation of national policies”. Knoll v. Springfield Township School District, 699 F.2d 137, 141 (3d Cir.1983), quoting, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1967). Therefore, the immunities created by Pennsylvania’s statutory scheme do not impinge upon plaintiffs’ ability to maintain the § 1983 action. Cf., Holman v. Hilton, 542 F.Supp. 913, (D.N.J. 1982) (declaring unconstitutional a New Jersey immunity provision which prevented state prisoners from instituting suit against public entities.) Our conclusion that plaintiffs, in Count I, have stated a claim under § 1983, warrants dismissal" }, { "docid": "14279371", "title": "", "text": "significant disincentive to the solicitation or acceptance of federal financial assistance, and hence a significant deterrent to the promotion and expansion of opportunities for handicapped individuals through funding legislation. See Guardians Association, supra (no compensatory relief under Title VI); Lieberman v. University of Chicago, supra, at 1188 (holding that a damage remedy does not exist for the implied cause of action under Title IX); but see Guardians Association, supra, at 272 (Coffrin, J., concurring) (compensatory relief available under Title VI). In sum, although the provision of a damage remedy would provide a means of enforcing rights under section 504, counter-veiling considerations convince the Court that the implication of a damage remedy under that section would frustrate the underlying purpose of the Rehabilitation Act’s legislative scheme. Cannon v. University of Chicago, supra, 441 U.S. at 703, 99 S.Ct. at 1960; Guardians Association, supra, at 262. An implied private cause of action for equitable relief under section 504, given near universal recognition by the courts, coupled with the provision for an award of attorneys fees contained in 29 U.S.C. § 794a, provide plaintiffs with an effective means of enforcing the federal statutory rights in question. Therefore, the Court declines to imply a private damage remedy under section 504 of the Rehabilitation Act. E. The Remedial Framework of 42 U.S.C. § 1983 Plaintiffs, relying upon the Supreme Court’s recent decision in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), assert that they are entitled to maintain an action for damages under 42 U.S.C. § 1983 for alleged violations of the EHCA and section 504 of the Rehabilitation Act. In Thiboutot the Supreme Court considered whether section 1983 would encompass a claim under the Social Security Act, specifically 42 U.S.C. § 602(a)(7). The Social Security Act is similar to the EHCA, and, to a limited extent section 504, in that it contains an elaborate internal remedial scheme. It differs from the EHCA in that an express private right of action is not provided. Section 1983, the Court held, provided a cause of action for plaintiffs who alleged that they" }, { "docid": "23561180", "title": "", "text": "with jurisdiction, See Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978); Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91 (3d Cir.1995). To be timely, the notice of appeal must have been filed within 60 days from the date of the district court’s entry of a final judgment. See 28 U.S.C. § 1291; Fed. R.App. P. 4(a)(1) (establishing a 60-day period for appeal where a federal agency or officer is a party). In general, a judgment is not final for purposes of appeal until the district court has disposed of all claims against all parties. See Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777, 779 (3d Cir.1992); Jackson v. Hart, 435 F.2d 1293, 1294 (3d Cir.1970) (per cu-riam). Appellees have filed a motion to dismiss this appeal as untimely. They argue that the district court’s orders were final, thereby starting the running of the time to appeal, on November 27, 1996, upon the district court’s dismissal of all claims .except those against the Doe defendants. Thus, appellees aver that this appeal is untimely because the appellants did not , file a notice of appeal until May 6, 1997, 179 days after the district court’s entry of a final judgment. We reject appellees’ argument and hold that appellants timely filed this appeal so that we have jurisdiction to consider the appeal on its merits. Doe defendants “are routinely used as stand-ins for. real parties until discovery permits the intended defendants to be installed.” Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36 (E.D.Pa.1990) (citations omitted). The case law is clear that “[fjictitious parties must eventually be dismissed, if discovery yields no identities,” id. at 37, and that an action cannot be maintained solely against Doe defendants. See Scheetz v. Morning Call, Inc., 747 F.Supp. 1515, 1534-35 (E.D.Pa.1990) (noting that Federal Rules do not contemplate a plaintiff proceeding without a tangible defendant except in extraordinary circumstances), affd on other grounds, 946 F.2d 202 (3d Cir.1991); Breslin v. City and County of Philadelphia, 92 F.R.D. 764 (E.D.Pa.1981) (dismissing complaint against identified defendants warrants dismissing" }, { "docid": "7079202", "title": "", "text": "II Besides their claim for tuition reimbursement under the Rehabilitation Act, the plaintiffs seek damages pursuant to 42 U.S.C. § 1983. The Supreme Court in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), broadly stated that an action under Section 1983 exists to enforce all federally created statutory and constitutional rights. However, the Court has been quick to limit Thiboutot by holding that where the substantive federal statute provides an exclusive remedy for violations, additional remedies under Section 1983 are not applicable. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Whether an act contains remedies which are sufficiently comprehensive to preclude Section 1983 actions is a matter of legislative intent. Middlesex County Sewerage Authority v. National Sea Clammers Assc., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). In view of the Court’s previous conclusions regarding Congress’ intent in enacting Section 504, the issue now before the Court is whether the rights created by Section 504 can be asserted within the remedial framework of Section 1983. The Court has determined that Section 504 only provides for equitable relief to private litigants. To conclude that damage claims are allowable under Section 1983 would circumvent the Court’s ruling and the Court’s determinations of Congress’ intent upon which that ruling is based. Therefore, the Court holds that the plaintiffs can not assert a claim for damage under Section 1983. Accordingly, the defendant’s motion as to Count II will be GRANTED. See Ruth Anne M. supra. . The defendant does not operate a residential school program for the mentally handicapped. The defendant’s responsibility under the EAH-CA to provide a residential school for students in need of one may be met either in a public facility or a private facility at public expense. See 45 C.F.R. § 84.22(c)(3). . It must be emphasized that plaintiff does not bring this action under the EAHCA. For a more detailed discussion of the relationship between the Rehabilitation Act and the EAHCA, see note 4 infra. . See Guardians Association of New York City" }, { "docid": "6871553", "title": "", "text": "Court in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), solely supports causes of action based upon violations, under the color of state law, of federal statutory law or constitutional rights. Section 1983 does not provide a cause of action for violations of state statutes.” Brown v. Grabowski 922 F.2d 1097, 1113 (3d Cir.1990); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Second, in an emergency situation, a short-term commitment without a hearing does not violate procedural due process. In a similar case dealing with the MHPA, we observed that “[i]t may be reasonable ... for a state to omit a provision for notice and a hearing in a statute created to deal with emergencies, particularly where the deprivation at issue, in this case detention for a maximum of several hours to permit an examination, continues for only a short period of time.” Doby v. DeCrescenzo, 171 F.3d 858, 870 (3d Cir.1999); see also Project Release v. Prevost, 722 F.2d 960, 974 (2d Cir.1983); Covell v. Smith, 1996 WL 750033 (E.D.Pa. Dec.30 1996); Luna v. Van Zandt, 554 F.Supp. 68, 76 (S.D.Tex.1982). Benn’s case clearly presented an emergency situation. Both his calls to the Horsham clinic and his note at the bottom of his Contract for Safety suggested to the doctors that Benn was highly unstable. Furthermore, he was committed for a “short period of time” and was released upon Dr. Mukerjee’s evaluation that he was no longer suicidal. While committed, Benn was constantly evaluated by the MCES physicians. Under these circumstances, we hold that the defendants did not violate Benn’s rights by not granting him a hearing before he was committed. Third, we see no evidentiary basis in the record for Benn’s claim that MCES maintains a policy that denied him his due process rights. On the contrary, MCES guidelines track the MHPA, which does not deny due process. See Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In sum, we hold that Benn’s procedural" }, { "docid": "1173280", "title": "", "text": "families leasing existing housing under Section 8, is responsible for compliance with the regulations for PHA leased housing. 24 C.F.R. pt. 882. Plaintiffs claim a cause of action directly under the LPPPA and pursuant to 42 U.S.C. § 1983. 1. Section 1983 Confers a Federal Right of Action Against the PHA’s Section 1983 establishes a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2516, 110 L.Ed.2d 455 (1990) (quoting 42 U.S.C. § 1983) . While Section 1983 can be used to remedy violations of federal statutes as well as the Constitution, Wilder, 496 U.S. at 508, 110 S.Ct. at 2516-17 (citing Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980)), violation of a federal statute does not always give rise to a cause of action under § 1983. Id. When alleging violation of a federal statute, a plaintiff is not allowed to sue under § 1983 if: (1) “the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983”; or (2) “Congress has foreclosed such enforcement of the statute in the enactment itself.” Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987). The presumption is in favor of a right to sue. Chan v. City of New York, 1 F.3d 96, 103 (2d Cir.1993). a. Enforceable Rights i. The Standards for Determining Whether an Enforceable Right Exists In determining whether a statute creates a right, privilege or immunity enforceable under § 1983, the Court of Appeals first applies the three-part Wilder test. First, the Court ascertains whether ‘“the provision in question was intended to benefit the putative plaintiff.’ ” Wilder v. Virginia Hosp. Ass’n, 496 U.S. at 509, 110 S.Ct. at 2517 (quoting Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989)). Second, even if the provision benefits the plaintiff, it" }, { "docid": "22121542", "title": "", "text": "because the answer is so clear, because the argument presents a purely legal issue which this court is well-suited to address in the first instance, and because the outcome does not implicate the potential unfairness, we will address the defendants’ contentions. The defendants rely largely on Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), in which the Supreme Court articulated what has since become known as the National Sea Clam-mers doctrine. The plaintiffs in National Sea Clammers brought claims for injunctive and monetary relief, alleging that the EPA and the Army Corps of Engineers permitted New Jersey and New York to discharge pollutants in violation of two federal environmental statutes, and that New Jersey and New York violated the terms of permits issued under those statutes. The Court first concluded that the statutes contained no implied private rights of action, given the “unusually elaborate enforcement provisions” expressly established, including both citizen suits and enforcement by government agencies. Id. at 13, 101 S.Ct. at 2623. The Court then went on to consider whether, in the alternative, the plaintiffs could sue under section 1983, noting that in a prior case, Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Court had construed section 1983 as authorizing suits to redress violations by state officials of rights created by federal statutes. National Sea Clammers, 453 U.S. at 19, 101 S.Ct. at 2625-26. The Court concluded that “Congress foreclosed a § 1983 remedy” under the statutes in question, id., and that no such suit was available: When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.... As discussed above, [the statutes at issue] do provide quite comprehensive enforcement mechanisms. It is hard to believe that Congress intended to preserve the § 1983 right of action when it created so many specific statutory remedies, including the two citizen-suit provisions. We therefore conclude that the existence of these express remedies demonstrates not only" }, { "docid": "21331056", "title": "", "text": "Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges,, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress... 42 U.S.C. § 1983. In his motion to dismiss, defendant argued that Section 1983 does not create a private right of action to enforce these provisions, and therefore that plaintiffs’ Counts I, II, and VI must be dismissed for failure to state a claim. In Maine v. Thiboutot, the Supreme Court held that the Section 1983 remedy encompassés rights conferred by federal statutesi 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Nonetheless, “[i]n order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct1353, 137 L.Ed.2d 569 (1997). In -determining whether a particular statutory provision gives rise to a federal right, courts apply a three-pronged test: (1) “Congress must have intended that the provision in question benefit the plaintiff’; (2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so Vague and amorphous’ that its enforcement would strain judicial competence”; and (3) “the statute must unambiguously impose a binding obligation on the States,” meaning it “must be couched in mandatory, rather than precatory, terms.” Id. at 340-41, 117 S.Ct. 1353. ,If the plaintiff demonstrates that the federal statute creates an individual right, the defendant many nonetheless rebut the presumption that such right is enforceable via a Section 1983 action by showing that - Congress “specifically foreclosed a remedy under § 1983,” either expressly or “impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Id. at 341, 117 S.Ct. 1353 (internal quotation marks and citations omitted). This test is known as the “Blessing ” test. In Gonzaga University v. Doe, the Supreme Court clarified that, with respect" }, { "docid": "1894976", "title": "", "text": "559 (7th Cir.1986). As there is no contemporaneous state court proceeding in which the issues before this Court are raised, and which the Plaintiffs seek to enjoin, the Younger doctrine is inapplicable, and so is the qualification that it imposes on the proposition that a federal court may only look to the adequacy of the plaintiffs federal remedy in assessing the availability of injunctive relief. As it is clear that the Plaintiffs do not have an adequate remedy at federal law in this action due to the Eleventh Amendment barrier to compensatory relief, Defendants claim that injunctive relief is unavailable is rejected. Plaintiffs are not precluded from seeking relief in this Court. Defendants’ contention that this action should be dismissed because the Plaintiffs are not entitled to injunctive relief is rejected. The Court will consider the substance of the Plaintiffs’ claims. Count One — Procedural Requirements As Defendants point out, there is no statute expressly conferring a private right of action to enforce the statutory sections and regulations Plaintiffs rely upon in Counts One, Two and Three of their Complaint. However, as indicated by the jurisdictional statement of paragraph two of Plaintiffs Complaint, this action is based upon purported violations of federal statutes and regulations which are enforceable under 42 U.S.C. section 1983. The threshold question then, is whether Plaintiffs’ claims under Counts One, Two, and Three, that the new rules violate various provisions of the Medicaid statute and its implementing regulations, state a cause of action under section 1983. Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C.A. § 1983 (West 1981). In Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980), the Supreme Court held that section 1983 provides a cause of action for violations of rights that are defined by federal statutes as well as those defined in the Constitution. In Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), the Supreme" }, { "docid": "11843602", "title": "", "text": "violation of a legally protected right. Id. Plaintiffs seek redress through § 1983 and assert violations of four “federal rights.” Section 1983 imposes liability on anyone who, acting under color of state law, deprives a person of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. In Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 can be used to vindicate violations of federal statutory rights. Somewhat more obviously, § 1983 can also be used to vindicate constitutional violations. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (“As the language of the statute plainly indicates, the remedy encompasses violations of federal statutory as well as constitutional rights.”). The Supreme Court has made clear that “[i]n order to seek redress through § 1983 ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). In the Third Amended Complaint, Plaintiffs allege that Defendants deprived, and are depriving, them of four federal rights guaranteed by the Medicaid statutes, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(B), 1396a(a)(3), and the substantive and procedural protections provided by the Fourteenth Amendment to the United States Constitution. Because this is a motion to certify a class, the Court must “determine that at least one named class [or subclass] representative has Article III standing to raise each class subelaim.” Prado-Steiman v. Bush, 221 F.3d 1266, 1279-80 (11th Cir.2000). “[E]ach claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Id. at 1280 (quoting Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987)). Therefore, the Court takes up each of the four claims and determines whether each named subclass representative has standing to prosecute the claims asserted by members of the subclass she seeks to represent. Making the" }, { "docid": "22841924", "title": "", "text": "his rights under Title II of the ADA. Appellants argue that the district court erred in failing to grant summary judgment dismissing the section 1983 claim because the individual commissioners are not “public entities” within the meaning of Title II and hence any section 1983 action premised on a violation of Title II fails to state a cause of action. Alternatively, they maintain that the commissioners are protected by qualified immunity. In reversing the district court’s denial of summary judgment, the panel opinion held that it would be inconsistent with the ADA’s comprehensive remedial and enforcement scheme to recognize a section 1983 suit predicated solely on alleged violations of the ADA. Section 1983 provides a federal cause of action for plaintiffs to sue officials acting under color of state law for alleged deprivations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. See 42 U.S.C. § 1983. It is well recognized that a plaintiff may use section 1983 to enforce not only rights contained in the Constitution, but also rights that are defined by federal statutes. See Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Arkansas Med. Soc’y, Inc. v. Reynolds, 6 F.3d 519, 523 (8th Cir.1993). An exception to this general rule exists when a comprehensive remedial scheme evidences a congressional intent to foreclose resort to section 1983 for remedy of statutory violations. See Middlesex County Sewerage Auth. v. National Sea (Hammers Ass’n, 453 U.S. 1, 19-21, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). Courts should presume that Congress intended that the enforcement mechanism provided in the statute be exclusive. See Pona v. Cecil Whittaker’s, Inc., 155 F.3d 1034, 1038 (8th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1805, 143 L.Ed.2d 1009 (1999). We agree with the panel’s conclusion that the ADA’s comprehensive remedial scheme bars Alsbrook’s section 1983 claims against the commissioners in their individual capacities. In Davis v. Francis Howell School District, 104 F.3d 204, 206 (8th Cir.1997), this court, in dicta, expressed the view that “the comprehensive enforcement mechanisms provided under § 504" }, { "docid": "6279690", "title": "", "text": "in the harassment. Compare Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1013 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996) (no liability absent allegations that school district itself directly discriminated based on sex), and Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996) (en banc) (same), unth Oona R.S. v. McCaffrey, 143 F.3d 473, 477 (9th Cir.1998) (school officials potentially liable for discriminatory actions in failing to remedy a known hostile environment), and Doe v. University of Illinois, 138 F.3d 653, 661-62 (7th Cir.1998) (plaintiffs may state hostile environment claim against school officials for student-to-student harassment). We hold that it was not clearly established law in the fall of 1993 that a § 1983 claim could be stated against individual officials for failure to prevent peer sexual harassment among students. Thus, defendants Race and Parker are entitled to a dismissal based on the defense of qualified immunity. A. Section 1983 Claim Alleging Violations of Title IX We turn now to our two-part analysis. Plaintiff alleges the defendants denied her right under Title IX to be free from a hostile school environment created by peer-on-peer sexual harassment, and seeks to use § 1983 to enforce this right. It is familiar law that § 1983 does not create substantive rights, but simply provides the procedural mechanism through which a plaintiff may bring a suit for violation of a federal right. Section 1983 supplies a cause of action to a plaintiff when a person acting under color of state law deprives that plaintiff of any “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983 (1994). In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court explained that individuals could sue under § 1983 for violations of federal statutory, as well as constitutional, law. See id. at 4, 100 S.Ct. 2502. But § 1983 is not available for violations of all federal statutes. In Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 101" }, { "docid": "6871552", "title": "", "text": "WL 510095 (E.D.Pa. Sept.9, 1996), aff'd, 118 F.3d 1575 (3rd Cir.1997) (table); Bodor v. Horsham Clinic, Inc., supra (thoroughly analyzing the “state actor” question); Savacool v. Delaware County Department of Mental Health, 1993 WL 21209, *6 (E.D.Pa.Jan.25, 1993); Janicsko v. Pellman, 774 F.Supp. 331, 339 (M.D.Pa.1991), aff'd, 970 F.2d 899 (3d Cir.1992). Our analysis leads to the same result. We thus hold that the Horsham defendants were not state actors. B. Benn claims that MCES, Dr.. Mukerjee, Dr. Zerby, and Dr. Quasim, all of whom conceded that they were state actors for purposes of the motion for summary judgment, violated both his procedural and substantive due process rights. We disagree. 1. Benn argues that MCES and its doctors violated procedural due process by failing to comply with the MHPA and by failing to grant him a hearing before he was involuntarily confined. This argument has no merit. First, even if these defendants violated the MHPA, this would not establish a § 1983 claim. “The plain language of section 1983, interpreted and underscored by the Supreme Court in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), solely supports causes of action based upon violations, under the color of state law, of federal statutory law or constitutional rights. Section 1983 does not provide a cause of action for violations of state statutes.” Brown v. Grabowski 922 F.2d 1097, 1113 (3d Cir.1990); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Second, in an emergency situation, a short-term commitment without a hearing does not violate procedural due process. In a similar case dealing with the MHPA, we observed that “[i]t may be reasonable ... for a state to omit a provision for notice and a hearing in a statute created to deal with emergencies, particularly where the deprivation at issue, in this case detention for a maximum of several hours to permit an examination, continues for only a short period of time.” Doby v. DeCrescenzo, 171 F.3d 858, 870 (3d Cir.1999); see also Project Release v. Prevost, 722 F.2d" }, { "docid": "15303916", "title": "", "text": "of the Massachusetts Rehabilitation Commission (“MRC”), the Commissioner of the Department of Public Health (“DPH”), and the Director of Region I for the Department of Mental Retardation (“Reg I”). Defendants now seek to dismiss the entirety of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In essence, Defendants contend that 42 U.S.C. § 1983 provides no redress for violations of the various statutory provisions under which Plaintiffs seek vindication. For the reasons set forth below, Defendants’ motion will be denied. I. STANDARD OF REVIEW A motion to dismiss under Rule 12(b)(6) is designed to test whether the complaint properly states a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). When assessing ¿ Rule 12(b)(6) motion, a court does not weigh the evidence which might be presented at trial, but merely determines whether the complaint itself is legally sufficient. Kusek v. Family Circle, 894 F.Supp. 522, 527 (D.Mass.1995); Duncan v. Santaniello, 900 F.Supp. 547, 553 (D.Mass.1995). In carrying out this function, a court must accept “the factual aver-ments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiffs cause.” Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). See Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184, 187 (1st Cir.1993). However, the court “need not credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation.” Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). The appropriate inquiry is whether, based on the allegations of the complaint, Plaintiffs are entitled to offer evidence in support of their various causes of action. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). II. DISCUSSION It is well-settled that section 1983 is an available remedy for claimed violations of federal statutes as well as violations of the Constitution, Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), except “where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges or immunities within the meaning of § 1983.” Suter v." }, { "docid": "15837949", "title": "", "text": "section 1983 actions, the relevant statute of limitations is the applicable state personal injury statute. Under New Jersey law, the relevant period for section 1983 purposes is two years. See N.J.Stat. Ann. § 2A:14-2 (West 1987); Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989). The statute of limitations begins to run in New Jersey from the date of accrual of the cause of action. See Brown v. Foley, 810 F.2d 55, 56 (3d Cir.1987). New Jersey, however, permits fictitious name practice to overcome a statute of limitations obstacle. N.J.Civ.Prac.R. 4:26-4 provides, in pertinent part, [i]n any action, ... if the defendant’s true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient to identify him. Plaintiff shall on motion, prior to judgment, amend his complaint to state defendant’s true name, ____ The New Jersey Supreme Court has acknowledged that the “fictitious-name practice provided by Rule 4:26-4 save[s] [an] amended complaint from the bar of the statute of limitations____” Viviano v. CBS, Inc., 101 N.J. 538, 549, 503 A.2d 296 (1986). As the New Jersey Supreme Court noted, Rule 4:26-4 [ ] permit[s] a plaintiff who institutes a timely action against a fictitious defendant to amend the complaint after the expiration of the statute of limitations____ [The Court has] recognized that an amended complaint identifying the defendant by its true name relates back to the time of filing of the original complaint, thereby permitting the plaintiff to maintain an action that, but for the fictitious-party practice, would be time-barred____ Id. at 548, 503 A.2d 296, citing Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120-23, 299 A.2d 394 (1973). Although New Jersey permits fictitious name pleading, the plaintiff is required to substitute the real party in interest once his identity is established. See id. at 548-49, 299 A.2d 394, citing Miletta v. Doe, 158 N.J.Super. 550, 555-56, 386 A.2d 897 (Law Div.1978). “[.0]nce [a plaintiff] substitutes a specific defendant for the fictitious defendant ... ”, the protections of" }, { "docid": "4401312", "title": "", "text": "under 42 U.S.C. § 1983 and various state law tort theories. Defendants filed a motion to dismiss on September 28, 1992. For the reasons stated below, we grant the defendants’ motion in part and deny it in part. II. FICTITIOUSLY NAMED DEFENDANTS Defendants have moved to dismiss the complaint as to the fictitiously named defendants John Doe and Richard Roe, who are alleged to be police officers of the City of Chester and Aston Township, the identity and number of which are presently unknown. There is conflicting authority on the question of whether fictitiously named defendants must be dismissed. Compare Agresta v. Philadelphia, 694 F.Supp. 117, 119 n. 1 (E.D.Pa.1988) (where unknown party has been sued under fictitious name, court will dismiss the defendant who has only been fictitiously named) with Scheetz v. Morning Call, Inc., 130 F.R.D. 34 (E.D.Pa.1990) (fictitious names may be used until plaintiff has reasonable opportunity to learn their identities through discovery). However, plaintiff does not object to the dismissal of the fictitious defendants. Therefore, the complaint is dismissed as to defendants John Doe and Richard Roe. III. FEDERAL CIVIL RIGHTS CLAIMS Defendants have moved to dismiss all of the complaint’s 42 U.S.C. § 1983 federal civil rights claims. We first consider the § 1983 claims against the individual police officer defendants, Briscoe and Fontaine. Then we consider the claims against the municipal defendants, City of Chester and Township of Aston. A. Individual Defendants: Fontaine and Briscoe In their motion to dismiss plaintiff’s federal civil rights claims, defendants rely heavily upon Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In Baker, respondent was mistakenly arrested pursuant to a warrant which bore his name but was actually intended for his brother. He was held in jail for several days despite repeated protests that the arrest was a result of mistaken identity. The United States Supreme Court held that respondent did not have a cause of action under 42 U.S.C. § 1983 because he had not been deprived of any right secured by the Constitution and laws of the United States. The Baker" } ]

[ { "docid": "22884096", "title": "", "text": "contract. With respect to the second contract the affidavit states that the Plotkins made misrepresentations to Weller in Ohio over the telephone. The Weller affidavit further alleged that “defendants Plotkin or Cromwell Oil Company or both sent into the state of Ohio authorized agents to negotiate the provisions of Exhibit B [the second contract] . . .” and that the agents made misrepresentations. Here again we have disjunctives in the affidavit. It can hardly be interpreted as a positive statement sufficient to support jurisdiction, that the Plotkins sent their agents, rather than agents of the corporate defendants who were negotiating a distributor contract. With the use of this ambiguous language, it can reasonably be interpreted that the agents were agents of the corporation. This is shown by the further allegation that during the negotiations for the contract the agents called Bernard Plotkin relative to the negotiations and the representations. From all of this it can be inferred that the agents at all times were acting within the course and scope of their employment. It is settled that jurisdiction over the individual officers of a corporation cannot be predicated merely upon jurisdiction over the corporation. Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277 (10th Cir. 1969); Path Instruments International Corp. v. Asahi Optical Co., 312 F.Supp. 805 (S.D.N.Y.1970). It was because of the activities of the officers and agents that plaintiff sought jurisdiction over the corporations. The burden of proof to establish jurisdiction over the individuals was upon the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ; Schuckman v. Rubenstein, 164 F.2d 952 (6th Cir. 1947). Where a motion to quash and dismiss is filed, supported by affidavits, the non-moving party may not rest upon allegations or denials in his pleadings but his response by affidavit or otherwise must set forth specific facts showing that the court has jurisdiction. In this respect the rule is similar to a motion for summary judgment under Rule 56(e), Fed.R.Civ.P. In the present ease, plaintiff submitted only an ambiguous affidavit in the" } ]

[ { "docid": "23647025", "title": "", "text": "relevant here. See, e. g., Blount v. Peerless Chemicals, Inc., 316 F.2d 695, 698 (2d Cir.), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Bland v. Kentucky Fried Chicken Corp., 338 F.Supp. 871 (S.D.Tex.1971); 2 Moore’s Federal Practice ¶ 4.25[6], at 4-273 (2d ed. 1978). When in personam jurisdiction is challenged by a motion to dismiss, the burden is with the plaintiff to show the court a basis for the assertion of long-arm jurisdiction. 2 Moore’s Federal Practice H4.411[3], at 4-471 (2d ed. 1978). Where a motion to dismiss is filed, supported by affidavit, the nonmoving party may not rest upon allegations in his pleadings but his response by affidavit or otherwise must set forth specific facts showing that the court has jurisdiction. See Weller v. Cromwell Oil Co., Inc., 504 F.2d 927, 929-30 (6th Cir. 1974). In the case at bar there has been no allegations that defendants do business in Indiana. Further, a review of the relevant authority indicates that in similar cases, courts have held that they do not have personal jurisdiction over the defendants. By reason of the foregoing, defendants’ motion to dismiss for lack of personal jurisdiction is GRANTED. IT IS SO ORDERED." }, { "docid": "22377560", "title": "", "text": "would be less likely to spend their money to see his films, and his compensation would diminish accordingly. Therefore, Schwarzenegger maintains, it is vital for him to avoid “over-saturation of his image.” According to his complaint, he has steadfastly refused to endorse any products in the United States, despite being offered substantial sums to do so. Defendants removed the action to federal district court in California, and Fred Martin moved to dismiss the complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The district court granted Fred Martin’s motion, and Schwarzenegger timely appealed. Zimmerman is not a party to this appeal. II. Personal Jurisdiction We review de novo the district court’s determination that it does not have personal jurisdiction over Fred Martin. Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir.2001). Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.1990). Where, as here, the motion is based on written materials rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of jurisdictional facts.” Id. In such cases, “we only inquire into whether [the plaintiffs] pleadings and affidavits make a prima facie showing of personal jurisdiction.” Caruth v. International Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir.1995). Although the plaintiff cannot “simply rest on the bare allegations of its complaint,” Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 787 (9th Cir.1977), uncontroverted allegations in the complaint must be taken as true. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996). Conflicts between parties over statements contained in affidavits must be resolved in the plaintiffs favor. Id.; see Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir.2000) (“Because the prima facie jurisdictional analysis requires us to accept the plaintiffs allegations as true, we must adopt [the plaintiffs] version of events for purposes of this appeal.”). Where, as here, there is no applicable federal statute governing" }, { "docid": "12902750", "title": "", "text": "defendant’s vice-president/general manager, Norman Golm, visited Atlanta to negotiate the terms and conditions of the purchase order that is the subject of this action. Defendant controverts plaintiff’s allegation of jurisdiction and has submitted supporting affidavits. Mr. Golm states by affidavit that he visited Mr. and Mrs. Welt, principal officers of the plaintiff corporation, on his return trip from a vacation in North Carolina. He states that the purpose of the visit was to discuss his possible employment by plaintiff. There were no negotiations regarding the purchase of tanning units during his visit in Atlanta, he says. Defendant further asserts that its business dealings with plaintiff regarding the purchase order at issue in this action occurred by telephone and written correspondence between its office in Indiana and plaintiff’s office in Hialeah, Florida (Affidavit of Richard Weingart). Plaintiff must bear the burden of proving the existence of in personam jurisdiction. Under Fed.R.Civ.P. 12(b)(2) a defendant may move to dismiss the complaint for lack of personal jurisdiction prior to trial. If defendant controverts plaintiff's allegation of jurisdiction by making a factual showing, plaintiff must come forward with sufficient factual evidence to establish a prima facie showing of jurisdiction. National Egg Co. v. Bank Leumi le-Israel B.M., 504 F.Supp. 305 (N.D.Ga.1980). Further, the Court may, in its discretion, hold a preliminary hearing on the jurisdictional issue and “put [plaintiff] to his full proof,” requiring plaintiff to establish the jurisdictional facts by a preponderance of the evidence. Data Disc, Inc. v. Systems Tech Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977). The Court, in exercising this discretion, balances the need to test the sufficiency of the jurisdictional challenge and the right of a party to have his defense decided promptly against the expense and delay of a hearing, the likelihood of arriving at a meaningful result and the possibility that the jurisdictional facts may be so interwoven with the merits of the case that deferral of the determination until trial is desirable. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1373 (1969). In this case, if defendant’s version of the facts is" }, { "docid": "18834785", "title": "", "text": "may search out the real, ultimate facts alleged. See generally, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784 (9th Cir. 1977). Also, if there is no conflict in the opposing affidavits concerning any material fact affecting jurisdiction, then the uncontradicted facts may be deemed established and determinative of jurisdiction. See Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1284-86 (9th Cir. 1977). To determine if a court has personal jurisdiction over a nonresident of the forum state, two issues must be addressed: (1) whether an applicable statute appears to confer personal jurisdiction, and (2) whether assertion of such jurisdiction satisfies federal constitutional principles of due process. As to the first inquiry, under Rule 4, FRCP, this Court turns to the Nevada jurisdictional statutes. Amba Marketing Systems, Inc. v. Jobar International Inc., 551 F.2d 784 (9th Cir. 1977). See also Sterling Television Presentations v. Shintron Co., 454 F.Supp. 183 (S.D.N.Y.1978), which held that a court’s exercise of personal jurisdiction over nonresidents alleged to have infringed a federal copyright must be affirmatively authorized by the forum state. Because Nevada Revised Statutes § 14.065, the Nevada long-arm statute, “clearly contemplates that only causes of action ‘arising from’ enumerated ‘acts’ which took place within Nevada may be reached,” Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 417 (9th Cir. 1977), this Court is satisfied that none of plaintiff’s theories of personal jurisdiction meet the necessary statutory basis. However, assuming plaintiff’s tenuous theories for personal jurisdiction somehow satisfy the Nevada jurisdictional statutes, this Court would still lack personal jurisdiction unless the exercise of such jurisdiction would accord with federal due process requirements. Whether or not a court may exercise personal jurisdiction over nonresi dents is measured by the standards elucidated in International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In order for the exercise of jurisdiction to satisfy due process, there must be minimum contacts between the defendant, the forum and the litigation." }, { "docid": "247670", "title": "", "text": "93A. The motion was supported by an affidavit of the defendant’s president alleging facts bearing on both issues. After hearing, I find and rule as follows. Confronted with a motion to dismiss, plaintiff bears the burden of establishing the facts upon which the question of personal jurisdiction over the defendant is to be determined. E. g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183 (1936); ARO Manufacturing Co. v. Automatic Body Research Corp., 352 F.2d 400 (1st Cir. 1965), cert. denied, 383 U.S. 947, 86 S.Ct. 1199, 16 L.Ed.2d 210 (1966). The plaintiff has submitted affidavits and exhibits alleging facts bearing on the issue of jurisdiction. For purposes of a motion to dismiss, the Court will accept all assertions contained in plaintiff’s affidavits as true. The facts alleged by the plaintiff in its affidavits are essentially as follows. Sometime in 1975, the plaintiff’s president, Phillip A. Vultaggio, saw the defendant’s advertisement for the sale of drills in a nationally distributed publication éntitled Popular Mechanics. Vultaggio, from his office in Massachusetts, telephoned to the defendant in Arizona to discuss acting as a distributor for defendant. Thereafter, Robert Everts, defendant’s vice president, gave Vultaggio’s name to one Elliot Srebrenick, President of Elliot and Associates, as someone who had indicated an interest in Rotor-way’s product line as a result of seeing an advertisement. Srebrenick, from Arizona, contacted Vultaggio by telephone and informed him that Rotorway marketed its tools exclusively through Elliot and Associates, an Arizona corporation, and explained the marketing program and the purchase requirements necessary to secure a Rotor-way distributorship. As a result of that conversation, Vultaggio ordered four drills for examination which Rotorway sent, the terms net 30 days. Thereafter, Srebrenick came to Massachusetts and negotiated a distributorship agreement with plaintiff, subject to defendant’s acceptance. Between July, 1975 and April, 1976, defendant filled six orders for plaintiff. In all Super Tools bought for resale over 500 drills and saws, totalling approximately $62,000 in value. Within those orders, Invoice No. 955 reveals that 150 saws were sent to plaintiff for its Maine, Vermont and New Hampshire" }, { "docid": "546960", "title": "", "text": "his amenability to service in Ohio under the Indiana “long arm” statute. The affidavit sets forth facts, with particularity, which support the proposition that Lenz has never acted in a personal capacity in any manner which would cause him to be subjected to proper service of process under Indiana law, or which would allow the constitutional exercise of extraterritorial jurisdiction over his person or by any court in Indiana. Lenz has simply had no personal contact with Indiana, commercial, contractual, tortious, or otherwise. The fact that Lenz was an officer of a corporation which may have had commercial or tortious contacts with. Indiana is not a sufficient predicate for “long arm” service upon or personal jurisdiction over Lenz. Weller v. Cromwell Oil Company, 504 F.2d 927, 929 (6th Cir. 1974). Plaintiffs have not submitted opposing affidavits or other materials to challenge the factual assertions in the Lenz affidavit. Technically, only a motion to dismiss for failure to state a claim, pursuant to F.R. C.P. 12(b)(6), may be converted into a motion for summary judgment and decided upon consideration of matters outside the pleadings. However, where a motion to dismiss for improper service and lack of personal jurisdiction is filed, pursuant to F.R.C.P. 12(b)(2), (5), and said motion is supported by affidavit, it is well settled that “the non-moving party [herein, Plaintiffs] may not rest upon allegations or denials in his pleadings but his response by affidavit or otherwise must set forth specific facts showing that the court has jurisdiction.” Weller, supra, at 930; Garrett v. Ruth Originals Corp., 456 F.Supp. 376, 384 (S.D.Ohio 1978); Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306, 310 (S.D.Ind.1978). Therefore, this Court finds in the present case that service on Lenz in Ohio was not proper under Indiana’s “long arm” statute, and that the federal District Court for the Northern District of Indiana lacked personal jurisdiction over Lenz. But this does not necessarily end the matter with respect to Lenz. Where a federal district court lacks personal jurisdiction over a defendant, it may transfer the case upon the plaintiff’s motion, pursuant to 28 U.S.C. §§ 1404(a)," }, { "docid": "247669", "title": "", "text": "OPINION CAFFREY, Chief Judge. This is a civil action wherein plaintiff seeks recovery for an alleged breach of. warranty and for violation of Mass.Gen-.Laws ch. 93A, § 11, by defendant in the sale of gasoline-powered drills and saws. Plaintiff, Boston Super Tools, Inc., is a Massachusetts corporation. Defendant, RW Technologies, Inc., formerly known as Rotorway, Inc., is a Delaware corporation. In April, 1976, Rotorway, Inc.’s name was changed to RW Technologies, Inc., and its drill and saw business, which was previously part of its Piston Powered Products division, was transferred to a wholly-owned subsidiary, Piston Powered Products, Inc., an Arizona corporation. RW Technologies has its principal place of business in Arizona. Service of process was made by mail in Delaware purportedly under the Massachusetts long-arm statute, Mass.Gen.Laws Ch. 223A, § 3. Rotorway moved, under Fed.R.Civ.P. 12(b)(2), to dismiss the suit for insufficient service of process and lack of personal jurisdiction. In the alternative, defendant moved for summary judgment on Count II of the complaint, contending defendant is within the interstate commerce exemption of Mass.Gen.Laws Ch. 93A. The motion was supported by an affidavit of the defendant’s president alleging facts bearing on both issues. After hearing, I find and rule as follows. Confronted with a motion to dismiss, plaintiff bears the burden of establishing the facts upon which the question of personal jurisdiction over the defendant is to be determined. E. g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183 (1936); ARO Manufacturing Co. v. Automatic Body Research Corp., 352 F.2d 400 (1st Cir. 1965), cert. denied, 383 U.S. 947, 86 S.Ct. 1199, 16 L.Ed.2d 210 (1966). The plaintiff has submitted affidavits and exhibits alleging facts bearing on the issue of jurisdiction. For purposes of a motion to dismiss, the Court will accept all assertions contained in plaintiff’s affidavits as true. The facts alleged by the plaintiff in its affidavits are essentially as follows. Sometime in 1975, the plaintiff’s president, Phillip A. Vultaggio, saw the defendant’s advertisement for the sale of drills in a nationally distributed publication éntitled Popular Mechanics. Vultaggio, from his office in" }, { "docid": "23137651", "title": "", "text": "Where, as here, the motion is based on written materials rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of jurisdictional facts.” Id. In such cases, “we only inquire into whether [the plaintiffj’s pleadings and affidavits make a prima facie showing of personal jurisdiction.” Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir.1995). Although the plaintiff cannot “simply rest on the bare allegations of its complaint,” Amba Marketing Systems, Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.1977), uncontroverted allegations in the complaint must be taken as true. See AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996). Conflicts between parties over statements contained in affidavits must be resolved in the plaintiffs favor. See id.; see also Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir.2000) (“Because the prima facie jurisdictional analysis requires us to accept the plaintiffs allegations as true, we must adopt [plaintifffs version of events for purposes of this appeal.”). Plaintiff-appellant Dole U.S. is incorporated under the laws of Hawaii and has its headquarters and principal place of business in California. Defendant-appellee Watts is a citizen of the United Kingdom and lives in France. According to Dole’s complaint, Watts was an employee of Dole Europe, which is based and registered in Belgium, from 1971 to 1975, and was an employee of Dole Packaged Foods (“DPF”), a division of Dole U.S., from 1975 until his retirement in 1998. At the time of all the events that form the basis for this suit, Watts was Vice President and Managing Director of European Sales and Marketing for DPF. Watts’ duties included management of Dole Holland B.V., a Dutch company, from its formation in 1989 until his retirement. Douglas Jocelyn, who worked at the California headquarters of Dole U.S. as Vice-President of International Sales, had direct supervisory responsibilities over Watts. In his declarations, Watts describes his positions and duties slightly differently. He states that he was employed by Dole Europe from 1971 until his retirement, and that he was “Director of the Belgian" }, { "docid": "18834784", "title": "", "text": "He also alleges that Goleta Valley Chamber of Commerce violated two of his copyrights in its 1978 brochure. As to all other defendants, 17 U.S.C. § 507 has run. Therefore, this Court should dismiss sua sponte Claims 1-8 as to all named defendants except Goleta Valley Chamber of Commerce and The Times-Weekend of San Mateo, pursuant to Rule 12(b)(6), FRCP, for failure to state a claim upon which relief can be granted, in that the statute of limitations ran before plaintiff filed this action. (ii) PERSONAL JURISDICTION. Both the Goleta Valley Chamber of Commerce and The Times-Weekend of San Mateo have moved this Court to dismiss Claims 1-8 against them pursuant to Rule 12(b)(2), FRCP, for lack of jurisdiction over the person. The burden of alleging and proving the existence of a factual basis for the exercise of personal jurisdiction, once it has been placed in controversy, rests with the plaintiff. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 490-91 (5th Cir. 1974). If a trial court questions whether jurisdiction is properly invoked, it may search out the real, ultimate facts alleged. See generally, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784 (9th Cir. 1977). Also, if there is no conflict in the opposing affidavits concerning any material fact affecting jurisdiction, then the uncontradicted facts may be deemed established and determinative of jurisdiction. See Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1284-86 (9th Cir. 1977). To determine if a court has personal jurisdiction over a nonresident of the forum state, two issues must be addressed: (1) whether an applicable statute appears to confer personal jurisdiction, and (2) whether assertion of such jurisdiction satisfies federal constitutional principles of due process. As to the first inquiry, under Rule 4, FRCP, this Court turns to the Nevada jurisdictional statutes. Amba Marketing Systems, Inc. v. Jobar International Inc., 551 F.2d 784 (9th Cir. 1977). See also Sterling Television Presentations v. Shintron Co., 454 F.Supp. 183 (S.D.N.Y.1978), which held that a" }, { "docid": "23647024", "title": "", "text": "not subject to the jurisdiction of a state merely because another franchisee or licensee of the same name does business in the forum state. The Court also holds that it has no jurisdiction over Holiday Inn of America, Inc., a Tennessee corporation which also has its principal place of business in that state. There has been no allegation that it does any business in Indiana and the mere fact that it may have subsidiaries, franchisees or licensees in this state does not subject it to the jurisdiction of this state. The general rule is that a foreign parent corporation will not be subjected to a state’s jurisdiction merely because of its ownership of a subsidiary corporation doing business within the state. Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925) (Brandeis, J.); de Walker v. Pueblo Internat'l, Inc., 569 F.2d 1169, 1172 (1st Cir. 1978); 2 Moore’s Federal Practice ¶ 4.25[6], at 4-272 (2d ed. 1978). While there are exceptions to this rule, none of them appear relevant here. See, e. g., Blount v. Peerless Chemicals, Inc., 316 F.2d 695, 698 (2d Cir.), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Bland v. Kentucky Fried Chicken Corp., 338 F.Supp. 871 (S.D.Tex.1971); 2 Moore’s Federal Practice ¶ 4.25[6], at 4-273 (2d ed. 1978). When in personam jurisdiction is challenged by a motion to dismiss, the burden is with the plaintiff to show the court a basis for the assertion of long-arm jurisdiction. 2 Moore’s Federal Practice H4.411[3], at 4-471 (2d ed. 1978). Where a motion to dismiss is filed, supported by affidavit, the nonmoving party may not rest upon allegations in his pleadings but his response by affidavit or otherwise must set forth specific facts showing that the court has jurisdiction. See Weller v. Cromwell Oil Co., Inc., 504 F.2d 927, 929-30 (6th Cir. 1974). In the case at bar there has been no allegations that defendants do business in Indiana. Further, a review of the relevant authority indicates that in similar cases, courts have held that they do" }, { "docid": "7635999", "title": "", "text": "269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936)). Plaintiff cannot “simply rest on the bare allegations of the complaint, but rather [is obliged] to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction.” Macpherson v. Taglione, 158 Ariz. 309, 762 P.2d 596, 598-9 (Ct.App.1988) (quoting Amba Mktg. Sys. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir.1977)). B. Fiduciary Shield Doctrine First Credit argues that the Court cannot look at the individual contacts of Faya-zi and Merkwan in determining whether the Court has personal jurisdiction over them because they are protected by the fiduciary shield doctrine. Pursuant to the fiduciary shield doctrine, an officer’s or employee’s mere association with a corporation is an insufficient basis for the Court to assert jurisdiction over them, even though the Court can assert jurisdiction over the corporation. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1069 at 370 (2nd ed.1987). Restated, jurisdiction over individual officers and employees of a corporation may not be predicated on the court’s jurisdiction over the corporation itself. Id. at 371. Some courts liberally interpreted this doctrine to insulate officers and employees by refusing to assert or even analyze the existence of jurisdiction over them in actions arising out of conduct of the employees that is within the scope of their employment and for the benefit of their corporate employer. See U.S. v. Montreal Trust Co., 358 F.2d 239 (2nd Cir.1966), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440; see also Powder Horn Nursery, Inc. v. Soil and Plant Laboratory, Inc., 20 Ariz.App. 517, 514 P.2d 270 (Ct.App.1973). The Supreme Court’s discussion of jurisdiction in Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), however, rejected this liberal interpretation. In Calder, the Supreme Court upheld a the California Court of Appeals’ assertion of jurisdiction over two employees of the National Enquirer, Inc. pursuant to California’s long arm statute, which provides for jurisdiction whenever permitted by the state and federal Constitutions. Id. at 786, 790, 104 S.Ct. 1482. The employees were residents of Florida and" }, { "docid": "22151503", "title": "", "text": "59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939). When considering a challenge to its jurisdiction, a court may receive and weigh affidavits. 5 Wright and Miller, Federal Practice and Procedure § 1351, at 565 (1969). Based upon evidence obtained, the court properly decides jurisdictional disputes before trial. Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965); Williams v. Minnesota Mining & Manufacturing Co., 14 F.R.D. 1, 5 (S.D.Cal.1953). The burden of proof rests upon the party asserting existence of jurisdiction, id. at 5; KVOS, Inc, v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936). However, this burden is met by a prima facie showing that jurisdiction is conferred by the long arm statute. United States v. Montreal Trust Co., 358 F.2d 239 (2nd Cir. 1966). The affidavits filed pursuant to the Rule 12(d) motions to dismiss presented the district court with contradictory factual allegations from which to decide the jurisdictional issue. Because there were conflicting statements, for the purpose of this appeal we must assume the facts related in the plaintiff’s affidavits and complaint to be true. Woodworkers Tool Works v. Byrne, 191 F.2d 667, 673 (9th Cir. 1951); Kesler v. Schetky Equipment Corp., 200 F.Supp. 678, 679 (N.D.Cal.1961.) Thus, accepting the validity of plaintiff’s allegations, the jurisdictional facts would appear to be as follows: Both plaintiff and its assignor, the original lessor of the lease here involved, are legal residents of Illinois. Negotiations for the lease were commenced by a phone call to the lessor’s Chicago office by one of the defendants; subsequent discussions with at least one of the defendants occurred in Illinois. The lease was not accepted until executed in Illinois and payments under it were to be made at Chicago, Illinois, or at such other place as the lessor shall designate. The guaranty in question specifically provided that it “shall be construed according to the law of the State of Illinois, in which State it' shall be performed. * * * ” The issue before this court is whether the jurisdictional facts alleged by the plaintiff establish “minimum contacts” with" }, { "docid": "22727989", "title": "", "text": "a pleading which are contradicted by affidavit. Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir. 1967). Here, however, both parties support their respective positions with affidavits. To escape this impasse, STA argues that we must examine the facts in a light most favorable to the decision of the trial judge. In this situation, however, such an approach would not be appropriate. Where affidavits are directly conflicting on material points, we do not see how it is possible for the district judge to “weigh” the affidavits in order to resolve disputed issues. Except in those rare cases where the facts alleged in an affidavit are inherently incredible, and can be so characterized solely by a reading of the affidavit, the district judge has no basis for a determination of credibility. This is not one of those rare cases. Here the affidavits are in conflict with regard to the factual significance of the east coast and California negotiations, the instigation for the STA employees’ activities in California subsequent to formation of the contract, and the alleged misrepresentations. The parties’ briefs indicate that all of these are material facts in determining whether the court may exercise in personam jurisdiction over ST A. Yet, without further evidence, we see no way to select one set of facts as more credible than the other. Instead of “resolving” the factual disputes, we believe the matter may be determined by reference to the burden of proof which may properly be placed upon Data Disc. It is clear that the party seeking to invoke the jurisdiction of the federal court has the burden of'establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936). Yet the quantum of proof required to meet that burden may vary, depending upon the nature of the proceeding and the type of evidence which the plaintiff is permitted to present. A defendant may move, prior to trial, to dismiss the complaint for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). Because there is no statutory method for resolving this issue, the mode of" }, { "docid": "8843673", "title": "", "text": "burden to establish jurisdiction. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936). Upon a motion to dismiss for lack of personal jurisdiction, the burden varies according to the nature of the pre-trial proceedings in which the jurisdictional question is decided. Data Disc, Inc. v. Systems Tech. Assoc., 557 F.2d 1280, 1285 (9th Cir. 1977). Whatever degree of proof is required initially, a plaintiff must have proved by the end of trial the jurisdictional facts by a preponderance of the evidence. The jurisdictional inquiry involves a two-step analysis. First, we see if any statute of the state in which the district court sits confers personal jurisdiction over appellant. See Fed.R.Civ.P. 4(e). Next, we ascertain whether the state’s assertion of jurisdiction accords with principles of due process. The applicable California statute is § 410.10 of the California Code of Civil Procedure. It has been interpreted to provide that the limits on the jurisdiction of the state’s courts are “coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court.” Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d at 1286 (citations omitted). Thus, the usual two-step analysis collapses into a single search for the outer limits of what due process permits. Cf. Amba Marketing Systems, Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 788-89 (9th Cir. 1977). A series of decisions, beginning with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), defines the limitations on a state’s power to assume in personam jurisdiction over an out-of-state defendant. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). A defendant must have such “minimal contacts” with the forum that maintenance of the suit will not offend traditional notions of fair play and substantial justice. Data Disc, Inc., 557 F.2d at 1287, citing International Shoe Co. v. Washington, 326 U.S. at 316, 66 S.Ct." }, { "docid": "22803335", "title": "", "text": "the state of Ohio”; (2) “Plaintiffs have further failed to show that the claim arose from defendant’s activities in Ohio ... ”; and (3) “... the quality and frequency of defendant’s contacts with Ohio viewed in their overall context will not sustain the exercise of jurisdiction over the defendant’s person.” In making these findings, the district court referred to this court’s decisions in Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (1968), and In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (1972). Before ruling on the defendant’s motion to dismiss, the district court received affidavits from the parties. There was no hearing on the motion. The procedure to be followed in deciding a motion to dismiss for lack of jurisdiction was outlined by the Seventh Circuit in O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (1971), as follows: Rule 12(d), Federal Rules of Civil Procedure, enables a party asserting certain defenses enumerated in subsection (b) of that rule to raise such challenge prior to trial on the merits. The rule clearly contemplates hearing and determination of jurisdictional issues in advance of trial. 2A Moore, Federal Practice ¶ 12.16, at 2352-54 (2d ed. 1968). “As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial” court.” Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939). When considering a challenge to its jurisdiction, a court may receive and weigh affidavits. 5 Wright and Miller, Federal Practice and Procedure § 1351, at 565 (1969). Based upon evidence obtained, the court properly decides jurisdictional disputes before trial. Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965); Williams v. Minnesota Mining & Manufacturing Co., 14 F.R.D. 1, 5 (S.D.Cal.1953). The burden of proof rests upon the party asserting existence of jurisdiction, id. at 5; KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 201, 81 L.Ed. 183 (1936). However, this burden is met by a prima facie showing that jurisdiction is conferred by the long arm statute." }, { "docid": "22801587", "title": "", "text": "to balance the limitations of email service against its benefits in any particular case. See Mayoral-Amy, 180 F.R.D. at 460 (declining to authorize alternative service under Rule 4(f)(3)). In our case, the district court performed the balancing test admirably, crafting methods of service reasonably calculated under the circumstances to apprise RII of the pendency of the action. II JURISDICTION The district court’s determination that personal jurisdiction can be exercised is a question of law reviewed de novo. Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1319-20 (9th Cir.1998). Although the defendant is the moving party on a motion to dismiss, the plaintiff bears the burden of establishing that jurisdiction exists. See KVOS, Inc. v. Assoc. Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936). Where, as here, the district court receives only written submissions, the plaintiff need only make a prima facie showing of jurisdiction to avoid the defendant’s motion to dismiss. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 268 (9th Cir.1995); Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir.1977). In determining whether RIO has met this burden, uncontroverted allegations in RIO’s complaint must be taken as true, and conflicts between the facts contained in the parties’ affidavits must be resolved in RIO’s favor. AT & T v. Gompagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996). To establish that personal jurisdiction over RII is proper, RIO must show that (1) Nevada’s long-arm statute confers personal jurisdiction over RII; and (2) that the exercise of jurisdiction comports with the constitutional principles of due process. See Omeluk, 52 F.3d at 269. Nevada’s long-arm statute permits the exercise of jurisdiction to the same extent as the Constitution. Nev.Rev.Stat. § 14.065 (2001). Hence, we consider only the constitutional principles of due process which require that RII have minimum contacts with Nevada “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). General jurisdiction is not at issue on" }, { "docid": "22727992", "title": "", "text": "a motion to dismiss. See United States Railway Equipment Co. v. Port Huron & Detroit Railroad Co., 495 F.2d 1127, 1128 (7th Cir. 1974); O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971). If a plaintiff make such a showing,. however, it does not necessarily mean that he may then go to trial on the merits. If the pleadings and other submitted materials raise issues of credibility or disputed questions of fact with regard to jurisdiction, the district court has the discretion to take evidence at a preliminary hearing in order to resolve the contested issues. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1373, at pp. 714-15 (1969); 4 J. Moore, Federal Practice § 26.56[6], at p. 26-190 (1976). In this situation, where plaintiff is put to his full proof, plaintiff must establish the jurisdictional facts by a preponderance of the evidence, just as he would have to do at trial. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) Here it appears that Data Disc, in opposing STA’s motion to dismiss, was limited in the first instance to the submission of affi davits. Thus we must determine whether its pleadings and affidavits establish a prima facie showing of jurisdictional facts. Ill The power of a federal court entertaining a case based on diversity of citizenship to exercise personal jurisdiction over a nonresident defendant turns on two independent considerations: whether an applicable state rule or statute potentially confers personal jurisdiction over the defendant, and whether assertion of such jurisdiction accords with constitutional principles of due process. Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 786 (9th Cir. 1977); Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir. 1974); Arrowsmith v. United Press International, 320 F.2d 219, 222-23 (2d Cir. 1963) (en banc). As to the first inquiry, the applicable statute here is Cal.Code Civ.Pro. § 410.10: A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United" }, { "docid": "22803336", "title": "", "text": "rule clearly contemplates hearing and determination of jurisdictional issues in advance of trial. 2A Moore, Federal Practice ¶ 12.16, at 2352-54 (2d ed. 1968). “As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial” court.” Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939). When considering a challenge to its jurisdiction, a court may receive and weigh affidavits. 5 Wright and Miller, Federal Practice and Procedure § 1351, at 565 (1969). Based upon evidence obtained, the court properly decides jurisdictional disputes before trial. Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965); Williams v. Minnesota Mining & Manufacturing Co., 14 F.R.D. 1, 5 (S.D.Cal.1953). The burden of proof rests upon the party asserting existence of jurisdiction, id. at 5; KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 201, 81 L.Ed. 183 (1936). However, this burden is met by a prima facie showing that jurisdiction is conferred by the long arm statute. United States v. Montreal Trust Co., 358 F.2d 239 (2nd Cir. 1966). The burden of establishing jurisdiction is on the plaintiff. Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974). However, if the district court determines to decide the issue solely on the basis of written materials, the plaintiff should be required only to make a prima facie case of jurisdiction, that is, he need only “demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss.” Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977) (citation omitted). Accord: Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). However, if the district court concludes that the written submissions have raised issues of credibility or disputed issues of. fact which require resolution, it may conduct a preliminary evidentiary hearing. Where this occurs the plaintiff must show by a preponderance of the evidence that jurisdiction exists. Data Disc, Inc. v. Systems Technology Associates, Inc., supra, 557 F.2d at 1285. In the" }, { "docid": "11659633", "title": "", "text": "that he is a citizen and resident of Indiana, that he is only licensed to practice in Indiana, and that he treated plaintiff’s decedent only in Indiana. He argues, therefore, that there is no basis for personal jurisdiction over him in' Illinois, and further, that federal due process precludes the assertion of jurisdiction over him in Illinois. In opposition to Patel’s motion, plaintiff contends that the Illinois Supreme Court has construed the state’s long-arm statute, Ill.Rev.Stat. ch. 110, § 2-209, to assert jurisdiction over non-resident defendants whose conduct outside Illinois produces tor-tious injury within Illinois. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Plaintiff also argues that there is personal jurisdiction over Patel on the theory that he is “doing business” in Illinois. In her brief, plaintiff alleges that Patel regularly treats Illinois patients directly and through referrals at St. Margaret Hospital; that Patel is compensated with Illinois public and private funds for treating Illinois residents; and in support of her “doing business” theory, that St. Margaret Hospital, as referral agent for Patel, regularly and continuously solicits Illinois patients. Plaintiff has produced photostatic copies of St. Margaret Hospital advertisements in the Chicago Yellow Pages Consumer Buying Guide. Patel admits that he treated plaintiffs decedent on the hospital’s referral. When a non-resident defendant challenges personal jurisdiction, the plaintiff bears the burden of proof. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 200, 81 L.Ed. 183 (1936); O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir.1971). To meet his burden of proof, the plaintiff must make a prima facie showing of the basis for jurisdiction. O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir.1971). On a motion to dismiss, however, the plaintiff’s allegations are taken as true, Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir.1977). The instant cause has been removed from state court. Federal court jurisdiction in removal cases is derivative, measured by whether the state court had or would have jurisdiction. Shultz v. Director, Federal Emergency Management Agency, 477 F.Supp. 118," }, { "docid": "7635998", "title": "", "text": "Doe v. American Nat'l Red Cross, 112 F.3d 1048, 1050 (9th Cir.1997); Data Disc v. Systems Tech. Assocs., 557 F.2d at 1287. “By requiring that individuals have ‘fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,’ the Due Process Clause ‘gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’” Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.1995) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal citations omitted)). The plaintiff has the burden of establishing personal jurisdiction. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir.1995) (citing Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.1990)); Data Disc, Inc. v. Systems Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir.1977) (citing KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936)). Plaintiff cannot “simply rest on the bare allegations of the complaint, but rather [is obliged] to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction.” Macpherson v. Taglione, 158 Ariz. 309, 762 P.2d 596, 598-9 (Ct.App.1988) (quoting Amba Mktg. Sys. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir.1977)). B. Fiduciary Shield Doctrine First Credit argues that the Court cannot look at the individual contacts of Faya-zi and Merkwan in determining whether the Court has personal jurisdiction over them because they are protected by the fiduciary shield doctrine. Pursuant to the fiduciary shield doctrine, an officer’s or employee’s mere association with a corporation is an insufficient basis for the Court to assert jurisdiction over them, even though the Court can assert jurisdiction over the corporation. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1069 at 370 (2nd ed.1987). Restated, jurisdiction over individual officers and employees of a corporation may not be predicated on the court’s jurisdiction over the corporation" } ]

[ { "docid": "16110598", "title": "", "text": "framework of analysis under section 1 of the Sherman Act is familar and does not require extended discussion. Section 1 prohibits “[e]very contract, combination . .., or conspiracy, in restraint of trade or commerce.” Since the early years of this century a judicial gloss on this statutory language has established the “rule of reason\" as the prevailing standard of analysis. Standard Oil Co. v. United States, 221 U.S. 1 [31 S.Ct. 502, 55 L.Ed. 619] (1911). Under this rule, the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. Per se rules of illegality are appropriate only when they relate to conduct that is manifestly anti-competitive. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977) (footnote omitted). To be considered “manifestly anticompetitive” and illegal per se, a restrictive agreement must have a “pernicious effect on competition and lack of any redeeming virtue . . .. ” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). While restrictive agreements among independent business entities at the same level of the market, so-called “horizontal” agreements, are illegal per se, United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), restraints imposed by a manufacturer or supplier upon its distributor-or retailer-customers, so-called “vertical” restraints, can significantly benefit competition and are permissible unless they violate the rule of reason. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). In the instant case we have a dual distributorship — a business structure in which one party, in this case TAI, operates a branch or dealership on the same market level as one or more of its customers. Since TAI was a supplier of Copy-Data, the parties were vertically related. Since both Copy-Data and TAI were engaged in the wholesale distribution of copiers, they were also horizontally related. A dual distributorship like the one in this" } ]

[ { "docid": "3934975", "title": "", "text": "weighing an alleged violation “presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful.” Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S.Ct. 1276, 164 L.Ed.2d 1 (2006) (quoting State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997)). The exception, liability per se, is reserved for those categories of behavior so definitively and universally anti-eom-petitive that a court’s consideration of market forces and reasonableness would be pointless. Id. Traditionally, restraints that are per se unlawful take the form of horizontal agreements “raising, depressing, fixing, pegging, or stabilizing the price of a commodity.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Among modern cases, the per se rule takes aim exclusively at horizontal agreements, because “competition among the manufacturers of the same [product] ... is the primary concern of antitrust law.” Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 52 n. 19, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Accordingly, the trend of antitrust law has been a steady constriction of the per se rule in the context of vertical relationships. See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 901, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (holding that vertical agreements for minimum prices are not per se violations); State Oil Co., 522 U.S. at 7, 118 S.Ct. 275 (holding that vertical agreements for maximum prices are not per se violations); Continental T.V., 433 U.S. at 59, 97 S.Ct. 2549 (holding that vertical non-price restraints are not per se violations); White Motor Co. v. United States, 372 U.S. 253, 261-64, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963) (holding that vertical territorial restraints are not per se violations). The cases have “continued to temper, limit, or overrule once strict prohibitions on vertical restraints.” Leegin, 551 U.S. at 901, 127 S.Ct. 2705. A vertical relationship that facilitates a horizontal price conspiracy does not amount to a per se violation." }, { "docid": "15967498", "title": "", "text": "Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Section 1 requires proof of “concerted action”. Further, restraints imposed by a manufacturer or supplier upon its distributors or retailers, so-called “vertical” restraints, are generally found to be potentially beneficial to interbrand competition. Analysis of vertical restraints, therefore, requires the application of the rule of reason. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). However, restrictive agreements among independent business entities at the same level of the market, so called “horizontal” agreements, are found to have a pernicious effect upon competition and to lack redeeming virtue, so that analysis proceeds under a per se illegal rule. United States v. Topco Assocs., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). The difficult issue presented by this case is whether the territorial, location and customer restrictions, as well as the alleged group boycott and price stabilization, were imposed within the Amana distribution chain as vertical restraints, originating as unilateral action from the manufacturer Amana, or whether they operated as horizontal restraints, originating from agreement or concerted action among distributors or retailers. The Supreme Court has recognized that a manufacturer has an interest in maintaining as much intrabrand competition as is consistent with the efficient distribution of its products. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 56, 97 S.Ct. 2549, 2560, 53 L.Ed.2d 568 (1977). Thus, in determining whether non-price restraints are imposed vertically or horizontally — i.e. whether the non-price restraints should be analyzed under rule of reason or as illegal per se — the focus of inquiry must be upon the effect and purpose of such restrictions. Indeed, the Supreme Court states that in determining whether non-price restraints should be analyzed under a per se rule: Our inquiry must focus on whether the effect and, here because it tends to show effect, see United States v. United States Gypsum Co., 438 U.S. 422, 436 n.13, 98 S.Ct. 2864, 2873 n.13, 51 L.Ed.2d 854 (1978), the purpose of the practice are to threaten the" }, { "docid": "16751754", "title": "", "text": "gone along with the distinction at least up to the point of a case such as Klor’s, infra. Compare Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (rule of reason applied to vertical territorial restriction placed on retailers by manufacturers) and Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961) (vertical exclusive dealing contracts analyzed under rule of reason) with Fashion (per se treatment given to horizontal arrangement) and Eastern States (same), supra. In United States v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), the Court said: One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a “horizontal” restraint in contradistinction to combinations of persons at different levels of the market structure, e.g., manu facturers and distributors, which are termed vertical restraints. We recognize that some courts have found that certain restraints which are vertical in form may be horizontal in nature or effect, see, e.g., Cernuto, Incorporated v. United States Cabinet Corporation, 595 F.2d 164, 167 & n. 15 (3d Cir.1979), and thus deserve per se treatment (United States v. Topeo could be viewed as such a case). The restraint here is not, however, of that sort. We also recognize that the majority of cases which employ a rule of reason analysis when confronted with a vertical restraint involve a manufacturer-distributor relationship. But the very novelty of the present situation is one of the main arguments against a per se approach. The fact that this case does not fit this familiar pattern is not a reason to turn to per se analysis, but is rather a factor favoring the rule of reason. B. The Klor’s Case is Not Grounds for Per Se Analysis M & H argues that the single tire rule should receive per se treatment on the basis of Klor’s, Inc." }, { "docid": "6619522", "title": "", "text": "Act have been described as “certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a “horizontal” restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed “vertical” restraints. This Court has reiterated time and time again that “[hjorizontal territorial limitations ... are naked restraints of trade with no purpose except stifling of competition.” White Motor Co. v. United States, 372 U.S. 253, 263 [83 S.Ct. 696, 702, 9 L.Ed.2d 738] (1963). Such limitations are per se violations of the Sherman Act. United States v. Topeo Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133-34, 31 L.Ed.2d 515 (1972) (citations omitted). The evidence here established a “horizontal” restraint. There was an agreement between distributors of Amana microwave ovens to allocate territories and eliminate Value House as a competitor to distributor-serviced retailers outside of Boyd’s territory. The effect was to minimize competition among the Amana distributors. This is what triggers the per se rule. Contrary to Boyd’s contention, this was not a vertical arrangement. Vertical arrangements start with the manufacturer and extend down the line through distributor to retailer. See Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct.2549, 53 L.Ed.2d 568 (1977); White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). Nor do we see any merit in the argument that Boyd and Value House had to be competitors for the per se rule to apply. In Engine Specialities, Inc. v. Bombardier Limited, 605" }, { "docid": "12907665", "title": "", "text": "se rule to geographic market allocation and horizontal price-fixing because such practices are so plainly anticompetitive that no elaborate study of an industry is necessary to establish their illegality. National Soc. of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978). . Abadir & Co. v. First Mississippi Corp., 651 F.2d 422, 426-27 (5th Cir.Unit A July 1981) (competitors not allowed to turn an otherwise horizontal agreement vertical by setting up a licensing corporation to impose market allocation agreements); see, e.g., U.S. v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972) (cooperative buying association which allocates territories violates horizontal per se rule); U.S. v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 1850, 18 L.Ed.2d 1238 (1967) (characterizing licensor-licensee relationship as horizontal where licensees own substantially all stock of licensor). . Agreements between horizontal competitors that affect inter-brand competition Eire the \"primary concern of antitrust law.” Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 52 n. 19, 97 S.Ct. 2549, 2558 n. 19, 53 L.Ed.2d 568 (1977). . Both provide the same type of service, bar review courses, and both are capable of providing their services in the same geographic locations (absent their agreements). . The district court stated that: Neither agreement between BRG and [HBJ] constitutes the sort of market or customer allocation agreement which has been recognized as a basis of per se liability. Cf. Topco, 405 U.S. 596 [92 S.Ct. 1126]. This is not a situation where competitors divided up a market in which both have previously done business, each taking a portion of a market. BRG has never done business outside the state of Georgia, and nothing in the record suggests that it ever intended to do so. [HBJ] as noted has done business virtually nationwide, but withdrew from the Georgia market following the 1980 agreement between BRG and [HBJ]. Thus, the only market ever claimed by both Defendants is the state of Georgia, and clearly the state of Georgia was not divided up under either the 1980 or 1982" }, { "docid": "18664255", "title": "", "text": "only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed; these restraints must be tested by the rule of reason. National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978). By whatever rule it is measured, the challenged restraint ultimately must stand or fall depending upon whether it merely regulates and thereby perhaps promotes competition or whether it tends to suppress or ultimately destroy competition. Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918); AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1208 (10th Cir.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). Any “departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than ... upon formalistic line drawing.” Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 2561-62, 53 L.Ed.2d 568 (1977). For a number of reasons, the court concludes that INTV and SVC have not established beyond factual dispute that the challenged arrangements, “because of their pernicious effect on competition and lack of any redeeming virtue [should be] conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). On the record now presented, the challenged agreements cannot be condemned as illegal per se. 1. NEED FOR COOPERATION Agreements among competitors to limit output, fix prices, or divide markets are condemned per se because of the overwhelming probability that such practices will work anticompetitive results. In National Collegiate Athletic Ass’n v. Board of Regents of the University of Oklahoma, the United States Supreme Court rejected per se condemnation of practices with ancillary impact on prices or output in the intercollegiate football market, however, because it is “an industry in which horizontal restraints on competition are" }, { "docid": "21433622", "title": "", "text": "seq., because they eliminate competition in the market by the independent wholesalers and artificially raise the price of beer. DISCUSSION 1. Vertical Claims Exclusive territory agreements are known as non-price vertical restraints. Such restraints are not illegal per se under section 1 of the Sherman Act, 15 U.S.C. § 1 (1982); rather, their illegality is tested by the rule of reason. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 2561-2562, 53 L.Ed.2d 568 (1977). Such restraints are not considered illegal per se because they provide both benefits and detriments to competition. Eiberger v. Sony Corp. of America, 622 F.2d 1068, 1075 (2d Cir.1980). In the instant case, intrabrand competition is inhibited because distributors of the same brand of beer do not compete with one another. However, this intrabrand restraint may heighten interbrand competition by increasing a distributor’s efficiency within his exclusive territory. Under the rule of reason, the “fact-finder weighs all the circumstances of a case in deciding whether a restrictive practice should be prohibited as an unreason able restraint on competition.” Sylvania, 433 U.S. at 49, 97 S.Ct. at 2557. See also Arizona v. Maricopa Medical Society, 457 U.S. 332, 343, 102 S.Ct. 2466, 2472, 73 L.Ed. 2d 48 (1982). In Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918), Mr. Justice Brandeis set forth the factors that the fact-finder must use to determine whether a restraint on balance promotes competition or “suppresses or even destroys competition.” Id. at 238, 38 S.Ct. at 244. In applying the rule of reason a fact-finder must: Consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the peculiar remedy, the purpose and end to be sought.... Id. In Sylvania, the Supreme Court did not emphasize one factor over another, rather the Court stated that the fact-finding court must weigh “all the" }, { "docid": "9403289", "title": "", "text": "at 886, 127 S.Ct. 2705 (“Resort to per se rules is confined to restraints ... ‘that would always or almost always tend to restrict competition and decrease output.’ ”) (quoting Business Elees. Corp. v. Sharp Elees. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988)). Of particular relevance to this case, “agreements between competitors at the same level of the market structure to allocate territories, fix prices or otherwise minimize competition — referred to as ‘horizontal restraints’ — are classic examples of per se violations,” while “agreements between persons at different levels of a market structure, for example between manufacturer and distributor or between franchisor and franchisee — referred to as ‘vertical restraints’ — are analyzed under the rule of reason.” Integrated Sys. & Power, Inc. v. Honeywell Int’l, Inc., 713 F.Supp.2d 286, 291 (S.D.N.Y.2010) (citing United States v. Topco Assocs., Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Leegin, 551 U.S. at 907, 127 S.Ct. 2705). Here, Plaintiff argues that it has adequately pled the existence of a horizontal agreement between competitors SATV and Apple. See PL Opp. 16. Defendants SATV and Apple, however, contend that Ace’s allegations show them to have an “obviously vertical” relationship precluding statement of a claim for a per se violation. Apple Mem. 7. As an initial matter, the Court rejects Ace’s argument that its mere allegation that SATV and Apple are “competitors with respect to sale and licensing of the Beatles media content” is sufficient to establish the existence of a horizontal conspiracy for purposes of resolving this motion. See Am. Compl. ¶ 59; Pl. Opp. 16. Whether or not the Defendants’ alleged conduct “constitutes a ‘horizontal conspiracy,’ and therefore is a per se violation, ... is a legal conclusion that the Court does not accept as true on a motion to dismiss.” Integrated Sys. & Power, 713 F.Supp.2d at 290. Instead, the Court must consider whether the factual allegations of the Amended Complaint plausibly establish that the" }, { "docid": "21433621", "title": "", "text": "beer from any wholesaler and sell it to retailers throughout the State. This practice is known as transhipping, and these plaintiffs contend that it kept the price of beer at competitive levels in such area. Further, these plaintiffs contend that the purpose and effect of the exclusive territory agreements was to eliminate tran-shipping. The independent wholesale plaintiffs allege that the exclusive territory agreements constitute unlawful vertical restraints. They also allege a horizontal conspiracy among all the defendants to fix the price of beer in New York. The retailer plaintiffs allege principally a single horizontal conspiracy by the brewer defendants, the “franchised” wholesaler defendants, and the defendant wholesale trade association to increase the price of beer in New York. They contend that the conspiracy constitutes a per se violation of section 1 of the Sherman Act. The State of New York alleges that the exclusive territory agreements are unreasonable restraints of trade under both the Sherman Act, 15 U.S.C. § 1, et seq., and the New York State Donnelly Act, N.Y.Gen. Bus. Law § 340, et seq., because they eliminate competition in the market by the independent wholesalers and artificially raise the price of beer. DISCUSSION 1. Vertical Claims Exclusive territory agreements are known as non-price vertical restraints. Such restraints are not illegal per se under section 1 of the Sherman Act, 15 U.S.C. § 1 (1982); rather, their illegality is tested by the rule of reason. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 2561-2562, 53 L.Ed.2d 568 (1977). Such restraints are not considered illegal per se because they provide both benefits and detriments to competition. Eiberger v. Sony Corp. of America, 622 F.2d 1068, 1075 (2d Cir.1980). In the instant case, intrabrand competition is inhibited because distributors of the same brand of beer do not compete with one another. However, this intrabrand restraint may heighten interbrand competition by increasing a distributor’s efficiency within his exclusive territory. Under the rule of reason, the “fact-finder weighs all the circumstances of a case in deciding whether a restrictive practice should be prohibited as an unreason able" }, { "docid": "23235922", "title": "", "text": "practice or industry at issue here and therefore conclude that imposing a new per se rule would be premature. 2. Effect on competition: This is the most troubling and conceptually elusive of the three factors. Echoing the district court, McDonnell argues that the agreements destroy competition because they split the market into product categories— limiting Northrop to selling land-based F-18L’s and McDonnell to selling carrier-suitable F-18A’s. Although tenable, the argument is overly simplistic and is not an entirely accurate reading of either the agreements or the relief sought by Northrop. The critical inquiry in determining whether per se condemnation should be extended to a previously unexamined business practice is whether the “practice facially appears to be one that would always or almost always tend to restrict competition and decrease output, ... or instead one designed to ‘increase economic efficiency and render markets more, rather than less, competitive.’ ” Broadcast Music, 441 U.S. at 19-20, 99 S.Ct. at 1562 (citations omitted). Accord, Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1356 (9th Cir.1982). In making this inquiry, we are mindful of the Court’s admonition that “departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than ... upon formalistic line drawing.” Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 2561-62, 53 L.Ed.2d 568 (1977). The agreements call for a joint effort by both “teammates” in the production and sale of all F-18’s. The agreements allocate which party may act as prime contractor and which as principal subcontractor (depending on the type of F-18); they do not foreclose, at least in the traditional market-splitting sense, these competitors from competing in regard to their respective versions of the jointly developed F-18 fighter concept. There is evidence, which must be accepted as true at this posture of the proceedings, that the agreements have not eliminated head-to-head competition in international markets between the two variants of the joint F-18 development effort — a surprisingly proeompetitive occurrence in an industry typified by single-source products. For example, Canada, the first international purchaser of an F-18, chose McDonnell’s" }, { "docid": "8355651", "title": "", "text": "due to annual distribution of profits to members in the form of a percentage rebate). The restraint at issue is not distinguishable from the sort normally considered under the per se rule simply because it occurs in the context of the sulfuric acid industry. Defendants’ argument to that effect is unavailing. 4. Zone Contracts Plaintiffs challenge Defendants’ zone contracts as an attempt at horizontal market allocation and thus a per se violation of § 1. One of the classic examples of a per se violation is an agreement between competitors to allocate territories in order to minimize competition. See Topco, 405 U.S. at 608, 92 S.Ct. 1126; United States v. Heffernan, 43 F.3d 1144, 1145-46 (7th Cir.1994); Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 49, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990). Such horizontal market allocation agreements can be contrasted against vertical combinations of entities at different levels, such as suppliers and distributors, designed to control the marketing of a certain brand of product. See Topeo, 405 U.S. at 608, 92 S.Ct. 1126; GTE Sylvania, 433 U.S. at 57-59, 97 S.Ct. 2549; Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 727-28, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). In Continental T.V. v. GTE Sylvania, Inc., the Supreme Court considered a challenge to a manufacturer’s exclusive territorial and marketing agreements, which limited the number of franchises granted for any given area and required each franchisee to sell manufacturer’s products only from the location(s) at which it was franchised. See 433 U.S. at 38, 97 S.Ct. 2549. The Court held that the agreement could not be condemned as per se illegal, observing that the reduction of intrabrand competition through vertical territorial restrictions allowed suppliers to achieve certain efficiencies in the distribution of their products, thereby stimulating interbrand competition. See id. at 54-56, 58, 97 S.Ct. 2549; see also Leegin, 551 U.S. at 890, 127 S.Ct. 2705. Because territorial restrictions on distributors have the possibility of producing procompetitive as well as anticompetitive effects, they are properly judged under the rule of reason. See Leegin, 551 U.S. at 903, 127" }, { "docid": "7700350", "title": "", "text": "of the Sherman Act, 15 U.S.C. § 1, that every contract, combination or conspiracy that imposes an unreasonable restraint on competition is illegal. A few types of restraint — price fixing agreements among competitors, e.g. — have such a clear lack of any redeeming virtue that any restraint of that type is conclusively presumed to be unreasonable. Most restraints on competition, however, are not illegal per se; they have been analyzed, historically, under a “rule of reason” approach that permite case-by-case evaluation of their effect on competition. And where the case involves manufactured goods sold in competition with goods of other manufacturers, it is “interbrand competition,” as opposed to “intrabrand competition,” that is “the primary concern of antitrust law.” Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 724, 108 S.Ct. 1515, 1519, 99 L.Ed.2d 808 (1988), quoting Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 52, n. 19, 97 S.Ct. 2549, 2558, n. 19, 53 L.Ed.2d 568 (1977). In determining whether a particular restraint on competition is illegal per se, it is sometimes important to know whether the restraint is “horizontal” or “vertical.” “ ‘[Horizontal’ restraints [are] agreements between competitors at the same level of market structure, and ‘vertical’ restraints [are] combinations of persons at different levels of the market structure, such as manufacturers and distributors. Horizontal restraints alone have been characterized as ‘naked restraints of trade with no purpose except stifling competition,’ ... and, therefore, per se violations of the Sherman Act. On the other hand, while vertical restrictions may reduce intrabrand competition by limiting the number of sellers of a partic ular product, competing for a given group of buyers, they also promote inter-brand competition by allowing a manufacturer to achieve efficiencies in the distribution of its products....” Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.), cert. denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978), as quoted in Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805-06 (6th Cir.1988). It is also important to distinguish between price restraints and non-price restraints. Even in vertical relationships—" }, { "docid": "15967497", "title": "", "text": "of their pernicious effect upon competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal v/ithout elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are prescribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Practices generally found to be illegal per se are group boycotts, price-fixing, horizontal market divisions and tying arrangements. It is well settled that unilateral action within a particular market is not a violation of section 1. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Section 1 requires proof of “concerted action”. Further, restraints imposed by a manufacturer or supplier upon its distributors or retailers, so-called “vertical” restraints, are generally found to be potentially beneficial to interbrand competition. Analysis of vertical restraints, therefore, requires the application of the rule of reason. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). However, restrictive agreements among independent business entities at the same level of the market, so called “horizontal” agreements, are found to have a pernicious effect upon competition and to lack redeeming virtue, so that analysis proceeds under a per se illegal rule. United States v. Topco Assocs., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). The difficult issue presented by this case is whether the territorial, location and customer restrictions, as well as the alleged group boycott and price stabilization, were imposed within the Amana distribution chain as vertical restraints, originating as unilateral action from the" }, { "docid": "23146072", "title": "", "text": "127 S.Ct. 1955 (quoting Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 98 L.Ed. 273 (1954) (emphasis ours)). Agreements within the scope of § 1 may be either “horizontal,” i.e., “agreement^] between competitors at the same level of the market structure,” or “vertical,” i.e., “combinations of persons at different levels of the market structure, e.g., manufacturers and distributors.” United States v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). As to horizontal agreements, “[o]ne of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition.” Id.; see id. at 609 n. 9, 92 S.Ct. 1126 (“removing any] doubt” that “horizontal territorial limitations, unaccompanied by price fixing, are per se violations of the Sherman Act”). Vertical restraints that do not involve price-fixing are generally judged under the “rule of reason, which requires a weighing of the relevant circumstances of a case to decide whether a restrictive practice constitutes an unreasonable restraint on competition.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984); see, e.g., Continental T.V., Inc. v. GTE Sylvania Inc., 438 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme “Court has long held that certain concerted refusals to deal or group boycotts are so likely to restrict competition without any offsetting efficiency gains that they should be condemned as per se violations of § 1 of the Sherman Act.” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 290, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985); see, e.g., Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). In Klor’s, the plaintiff retailer (“Klor’s”), which competed against a national retail chain (“Broadway-Hale”), alleged a conspiracy that was both vertical and horizontal. It alleged, inter alia, that 10 national manufacturers of household appliances “conspired among themselves and with Broadway-Hale ... not to sell to Klor’s.”" }, { "docid": "16215183", "title": "", "text": "the court considered only whether a per se tying arrangement had been shown and denied plaintiffs’ appeal after trial for failing to demonstrate defendant’s sufficient economic power and because of defendant’s demonstrated business justification for the tie. The court was satisfied with defendant’s need to protect the uniform quality of its products and the impossibility of control through specifications and periodic quality inspections. Once again, the case stands more for the principle of possible business justification rather than any express rejection of a per se standard and is more appropriately discussed in that context. Finally, defendant cites Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) to suggest the inapplicability of a per se standard. In that case the Court declined to apply a per se standard to a marketing plan whereby Sylvania franchised retailers were required to sell Sylvania products only from the location^) set forth in the franchise agreement. The Court’s reasoning was based on the specific nature of vertical territorial restrictions and their potential for promoting in-terbrand competition by increasing market efficiency even while decreasing certain in-trabrand freedoms. Within that context, the Court determined that vertical restrictions were not shown to have a “pernicious effect on competition.” Id. at 58, 97 S.Ct. at 2561. The Court concluded with a general statement that “departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than . . . upon formalistic line drawing.” Id. at 58-59, 97 S.Ct. at 2562. While such language reflects general approval of a rule-of-reason analysis, the context of that case undermines defendant’s argument that such a policy should be adopted in the present case. The GTE Sylvania decision substantially overruled United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), a case which itself only recently had departed from the rejection of a per se standard for vertical territorial restrictions found in White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). By contrast, a per se rule long has been" }, { "docid": "907963", "title": "", "text": "issue of reasonableness from the jury by the use of a conclusive presumption, Koppers also contends that the charge denied the jury the opportunity to find that the conspiracy in which Koppers was involved was not a horizontal conspiracy to rig bids or allocate customers but was instead a vertical allocation of territories or customers, which would properly be subject to the rule of reason. In making this argument, Koppers points to the fact that by 1973 Dosch-King was buying all of its road tar from Koppers, and that therefore their relationship was a vertical one, similar to the manufacturer-distributor relationship found to be subject to the rule of reason in Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The issue posed in the Continental T.V. case was whether a manufacturer’s policy of limiting the number of franchises granted and requiring each franchisee to sell its products only from the location at which it was franchised constituted a per se violation of the Sherman Act. After noting that vertical restrictions of this type can often be expected to increase both intrabrand and interbrand competition, the Court concluded that a blanket per se rule applicable to all vertical restraints should not be laid down, because such restraints have not been shown to have the consistently “pernicious effect on competition” which previous decisions of the Court have required as a predicate for the imposition of a per se rule. Id. at 58, 97 S.Ct. at 2561. See Northern Pacific Railway v. United States, supra. The Court then went on to deal with the problems which may arise in classifying cases as vertical or horizontal in nature: “There may be occasional problems in differentiating vertical restrictions from horizontal restrictions originating in agreements among the retailers. There is no doubt that restrictions in the latter category would be illegal per se, see, e. g., United States v. General Motors Corp., 384 U.S. 127 [86 S.Ct. 1321, 16 L.Ed.2d 415] (1966); United States v. Topco Associates, Inc., supra, but we do not regard the problems of" }, { "docid": "15967514", "title": "", "text": "case, several potential economic advantages are legitimately advanced by Amana for imposing horizontal market divisions: attracting aggressive retailers, inducing retailers to engage in promotional activities, creating an efficient market distribution system, and maintaining control over the safety and quality of the product. In Abadir & Co. v. First Mississippi Corp., supra, the Fifth Circuit states: A per se rule is applicable to a particular case if and only if the economic analysis which justifies the rule applies to the particular case. The per se horizontal market-distribution rule would be applicable to the agreement between First Mississippi and Abadir if and only if the economic analysis justifying the per se rule applied to the relationship between First Mississippi and Abadir. Because the potential economic advantages which might have motivated First Mississippi are those characteristic of a vertical rather than a horizontal market-distributing agreement, the per se horizontal rule does not apply. Id. at 426. Reviewing the evidence in this case in a light most favorable to SMC, we agree with the district court that Amana’s restrictions cannot be characterized as horizontal — facially appearing to be the type of restrictions that would always or almost always tend to restrict competition and decrease output. Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1, 20, 99 S.Ct. 1551, 1562, 60 L.Ed.2d 1 (1979). We find, therefore, that this case was appropriately submitted to the jury under the rule of reason for a determination of whether the restraints imposed increased competition or whethei they were such as to suppress or even destroy competition. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed. 568 (1977). V. SMC also contends that in submitting this case to the jury the district court erred in instructing the jury under the rule of reason. We do not agree. The district court instructed the jury concerning the rule of reason in part as follows: However, in determining reasonableness there are three crucial inquiries you must make. First, you must determine whether Amana has substantial market power to unreasonably restrain trade in the" }, { "docid": "9403288", "title": "", "text": "of “a combination or some form of concerted action between at least two legally distinct economic entities,” and (2) that “such combination or conduct constituted an unreasonable restraint of trade either per se or under the rule of reason.” Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95-96 (2d Cir.1998). The adequacy of the pleadings as to the first prong do not appear to be contested here. Defendants do, however, argue that Plaintiffs allegations fail to plausibly state that their conduct constituted either a per se violation or a violation of the rule of reason, and they further contend that their conduct was privileged by the Noerr-Pennington Doctrine. The Court addresses each of these arguments in turn. A. Per Se Liability Because determining whether a restraint on trade is unreasonable in violation of Section 1 is typically a “laborious process,” certain categories of “obviously unreasonable restraints” on trade trigger per se liability under Section 1. Intellective, Inc. v. Massachusetts Mut. Life Ins. Co., 190 F.Supp.2d 600, 615-16 (S.D.N.Y.2002); see also Leegin, 551 U.S. at 886, 127 S.Ct. 2705 (“Resort to per se rules is confined to restraints ... ‘that would always or almost always tend to restrict competition and decrease output.’ ”) (quoting Business Elees. Corp. v. Sharp Elees. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988)). Of particular relevance to this case, “agreements between competitors at the same level of the market structure to allocate territories, fix prices or otherwise minimize competition — referred to as ‘horizontal restraints’ — are classic examples of per se violations,” while “agreements between persons at different levels of a market structure, for example between manufacturer and distributor or between franchisor and franchisee — referred to as ‘vertical restraints’ — are analyzed under the rule of reason.” Integrated Sys. & Power, Inc. v. Honeywell Int’l, Inc., 713 F.Supp.2d 286, 291 (S.D.N.Y.2010) (citing United States v. Topco Assocs., Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Leegin," }, { "docid": "1429796", "title": "", "text": "from the market direct competitors of some members of the combination.” Id. at 186. Actually, however, the conspiracy or combination in Klors included both vertical and horizontal agreements. While one of the conspirators, Broadway-Hale, was a retailer, and thus vertical with respect to the other conspirators, the remaining conspirators were all suppliers and horizontal with respect to each other. Second, the court summarized the case law dealing with collective refusals to deal in a manner which suggests that the primary consideration is whether exclusionary or coercive conduct has occurred: In all of these cases, the touchstone of per se illegality has been the purpose and effect of the arrangement in question. Where exclusionary or coercive conduct has been present, the arrangements have been viewed as “naked restraints of trade,” and have fallen victim to the per se rule. Id. at 187. In our view, however, this dictum in McQuade does not survive the Supreme Court’s decision in Continental TV, Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Sylvania makes it clear that the “touchstone” of per se illegality is not the presence of exclusionary conduct in the particular case but rather is the market impact of the kind of restrictions in question. See id at 50-59, 97 S.Ct. at 2557-2562. “Departure from the rule of reason standard must be based upon demonstrable economic effect rather than ... upon formalistic line drawing.” Id at 58-59, 97 S.Ct. at 2561-2562. CAT attempts to bolster its argument by citation to the Sixth Circuit’s recent decision in Com-Tel, Inc. v. DuKane Corp., supra. Com-Tel involved a boycott initiated by one distributor which pressured its manufacturer, which in turn enforced the boycott among other distributors. The plaintiff, a competing distributor which was thereby barred from purchasing products from either the manufacturer or the boycotting distributors, brought suit, alleging a concerted refusal to deal. The Sixth Circuit held that the boycott in question was horizontal in nature, thus warranting an instruction on per se illegality. The court declared that the acquiescence, or participation by other distributors in the plan" }, { "docid": "1429789", "title": "", "text": "trade provides an alternative type of analysis. This analysis distinguishes between restraints which are horizontal in nature and those which may be considered vertical in nature. See generally Continental TV v. GTE Sylvania, 433 U.S. at 54-59, 97 S.Ct. at 2559-2562. Horizontal combinations are cartels or agreements among competitors. Such agreements generally restrain competition among enterprises at the same level of distribution. Vertical restraints, on the other hand, are generally agreements between persons or firms occupying different levels in the chain of distribution of a specific product. Muenster Butane, Inc. v. Stewart Co., 651 F.2d at 295. As such, the effect of a purely vertical restraint will be to restrain competition at a level other than that from whence the restraint was initiated. The classic example of a per se violation is an agreement between: Competitors at the same level of the market structure to allocate territories in order to minimize competition. Such con certed action is usually termed a “horizontal” restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed “vertical” restraints. United States v. Topco Associates, 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972) (emphasis added). CAT contends that the restraint involved in this case is horizontal rather than vertical in nature. Specifically, it argues that the “horizontal aspect” necessary to bring this case within the rule of per se illegality is provided by FRI’s aggregate hauling subsidiary, Tank Lines, which competes at the same market level as CAT. According to this argument, it is irrelevant that the parties to the alleged conspiracy are arranged in a completely vertical configuration so long as FRI competes with CAT through its trucking subsidiary. In our view, this argument is without merit. The case law demonstrates that there are several types of arrangements which may be characterized as horizontal, thus warranting the per se prohibition. First is the arrangement in which two or more businesses all operating at the same level in the chain of distribution agree to do business with one customer to the exclusion" } ]

[ { "docid": "9799080", "title": "", "text": "S.Ct. 2211, 135 L.Ed.2d 659 (1996); Blackman v. Michael Friedman Publ’g Group, Inc., 201 A.D.2d 328, 328, 607 N.Y.S.2d 43, 44 (1st Dep’t 1994); Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 572, 592 N.Y.S.2d 27, 28 (1st Dep’t 1993); Alen MacWeeney, Inc. v. Esquire Assocs., 176 A.D.2d 217, 218, 574 N.Y.S.2d 340, 341 (1st Dep’t 1991). Factors bearing on earning potential include: (a) past earnings from use of the transparencies; (b) the expertise and reputation of the photographer; (c) the extent and nature of the market demand for the use of the particular type of photos; (d) the extent and nature of the. photographer’s efforts to exploit the economic value of the transparencies; and (e) potential competition or alternative sources of similar photographs. See Gasperini, 972 F.Supp. at 772. Although Raishevich bears the burden of proving damages with reasonable certainty, “[t]he need for specificity in proving damages is mitigated ... by the principle that when there has been a clear showing of some injury, and damages are not susceptible of precise measurement because of defendant’s conduct, a fact finder ‘has some latitude to make a just and reasonable estimate of damages based on relevant data.’” J.M. Studio, Inc. v. Federal Express Corp., No. 89-3550, 1991 WL 7672, at *4 (S.D.N.Y. Jan. 22, 1991) (quoting Electro-Miniatures Corp. v. Wendon Co., 771 F.2d 23, 27 (2d Cir.1985) (internal quotation marks omitted)). II. Uniqueness In assessing the uniqueness of a photograph, courts have considered both its subject matter and cost of replacement. See, e.g., Gasperini, 972 F.Supp. at 769-72 (discussing subject matter); MacWeeney, 176 A.D.2d at 218, 574 N.Y.S.2d at 340 (discussing replacement cost). Unlike a fleeting historical event, which by definition is incapable of recreation, cannabis plants are by their very nature capable of reproduction. Cf. Gasperini, 972 F.Supp. at 772 (“While most of the photographs lost were select and classic images which can never be replaced because the historical and physical conditions under which they were taken have ceased to exist, it is also true that some are simply beautiful shots of trees, hills, and waterfalls which are essentially replaceable or" } ]

[ { "docid": "21019140", "title": "", "text": "the New York requirement that we consider the uniqueness of the lost transparencies and the earning level of the photographer, rather than relying solely on the so-called industry standard, the testimony of Jane Kinne, Gasperini’s expert on the valuation of photographs, is of little utility. Ms. Kinne did testify that, in her opinion, the lost transparencies should be valued at $1,500 each. Her explanation for this valuation, however, said a lot about the alleged industry standard and virtually nothing about either uniqueness or earning level. Ms. Kinne explained the value she gave to the transparencies as follows: a transparency taken by a professional photographer and selected in a professional edit is, under the industry standard, worth $1,500; Gasperini is a professional photographer whose work has been professionally edited; therefore, the value of each of the lost transparencies is $1,500. Thus, under Ms. Kinne’s approach, a common photograph of the President exiting a helicopter (culled from a number of such shots), taken by an inexperienced but published photo-journalist, would have the same value as a classic image taken by a photographer with the reputation of Walker Evans or Alfred Eisenstaedt. New York law does not countenance such a methodology. The object of tort damages is to do what can be done to make an injured party whole; it is not meant to be a winning lottery ticket. In light of Gasperini’s failure to make an effective showing that all 300 lost transparencies were unique, and the strong evidence of Gasperini’s limited earning power as a photographer, the jury’s award of $450,000 cannot be regarded as anything but a financial windfall for Gasperini. A review of New York cases involving lost transparencies further supports the conclusion that the jury’s award in this case was excessive. See Consorti v. Armstrong World Indus., 64 F.3d 781, 789-90 (2d Cir.1995) (when New York substantive law governs a diversity case, we look to New York decisions for guidance on the issue of excessiveness of damages). We acknowledge the limited utility of comparing damage awards in different cases, particularly since we find ourselves without access to the" }, { "docid": "3991340", "title": "", "text": "the value of lost slides depends primarily on their uniqueness and the “plaintiff’s earning potential.” Lowit v. Consolidated Edison Co., 234 A.D.2d 2, 650 N.Y.S.2d 152, 152 (1996); accord Blackman v. Michael Friedman Publ’g Group, 201 A.D.2d 328, 607 N.Y.S.2d 43, 44 (1994) (“The proper standard ... is a consideration of uniqueness of the transparencies and plaintiffs earning potential.”); see also Gasperini 66 F.3d at 429 (New York courts consider “(1) the uniqueness of the transparencies and (2) the earning level of the photographer”); Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 592 N.Y.S.2d 27, 28 (1993) (“uniqueness of subject matter of the slides and the earning level of the photographer”); Alen MacWeeney, Inc. v. Esquire Assocs., 176 A.D.2d 217, 574 N.Y.S.2d 340, 341 (1991) (same). In reaching its decision, the district court considered several factors, including primarily the sales potential of the photographs and their uniqueness as directed by Lowit and Blackman. See Gasperini 972 F.Supp. at 771-72. It found that the closest appellate division decision on point was Girard Studio Group, Ltd. v. Young & Rubicam, Inc., 147 A.D.2d 357, 536 N.Y.S.2d 790, 790 (1989), where the court reduced an award from $3,000 per slide to $1,500. The latter figure was justified by “evidence that the lost slides represented classics from a long career.” Alen MacWeeney, 574 N.Y.S.2d at 341 (discussing Girard). The district court found that Gasperini’s lost slides were collected over a seven year period, were edited down from 5,000 photographs, were of “superior quality,” were “unique[ ],” and that “most of them were irreplaceable.” Gasperini 972 F.Supp. at 770. The district court found that the jury could reasonably value 240 of those slides at $1,500 each. Id. at 772. It found that 70 slides were “readily replaceable and available from other sources,” and that “[a] reasonable jury should not value [those] generic slides in excess of an average of $200.00 per slide.” Id. at 773. Although photography “was not [Gasperini’s] main business,” 972 F.Supp. at 769, and his earnings from the sale of photographs was quite low, the district court apparently found these circumstances outweighed by" }, { "docid": "2630487", "title": "", "text": "in police custody although plaintiff “provided little to no evidence indicating the uniqueness of his work”); Blackman, 607 N.Y.S.2d at 44 (fixing value of 146 lost transparencies where the “record [wa]s barren of any evidence establishing the lost transparencies’ uniqueness”). Having the foregoing in mind, we turn to the District Court’s formulation of damages in this case. Our attention is first drawn to the number of missing images identified by the District Court: “I conclude ... that the number of missing images is substantially below 67,473, the number claimed by Grace, and that, more likely than not, the number is about 40,-000.” Grace, 403 F.Supp.2d at 348 (emphasis supplied). Supporting its finding, the District Court discounted Grace’s claim for images that were double counted, images returned to Grace, and images never given to Sygma, such as those retained in the possession of Time and Newsweek. The problem with the District Court’s finding, that Sygma lost “about 40,000” of Grace’s images, Id. (emphasis supplied), is that when the District Court calculated the ultimate damages amount it multiplied the number of lost images by a value assigned to each image. A precise number of images is therefore necessary, however inexact the method of arriving at it may be. As Grace himself points out, the court’s approximation of 40,000, rounded down from the number of lost images asserted by either party, results in a reduction of the amount of damages Grace should receive. Sygma, whose interest is in keeping the number as low as possible, asserts that the number of lost images is 46,448 at most. On appeal, Grace, although apparently adhering to the claim that 67,473 images are missing, argues that even assuming the District Court’s discounts for double counting, returned images, and images not given to Sygma in the first place, the number lost would be 43,367. In either case, the number is above the 40,000 figure which the District Court settled upon. Compounding the District Court’s error in its finding of the number of images lost is the use of that erroneous number in awarding $100 per image for 4,000" }, { "docid": "2630496", "title": "", "text": "apply to the annual earnings potential a multiplier based upon the length of time that the lost images would continue to be a source of revenue. This might be the average number of years remaining on the copyrights of the lost images or some other measure based upon the input of the parties on this issue. We note that the Court in Raishe-vich applied a 30-year multiplier, though it did not indicate why it chose this length of time. Raishevich, 247 F.3d at 341. This step in the methodology assumes that past earnings reflect future earning potential. See Gasperini v. Ctr. for Humanities, 972 F.Supp. 765, 772 (S.D.N.Y.1997) (noting that “prior licensing fees collected and the prior economic experience of the photographer in connection with the slides” was one of seven elements relevant to the “earning potential” factor in a lost transparency case), vacated and remanded on other grounds, 149 F.3d 137 (2d Cir.1998); Raishevich v. Foster, 9 F.Supp.2d 415, 417 (S.D.N.Y.1998) (listing “past earnings from use of the transparencies” as one of five elements relevant to determining lost transparencies’ “earning potential”), vacated and remanded on other grounds, 247 F.3d 337 (2d Cir.2001). The formula suggested here rests on two assumptions: first that the market value of the lost images can be determined by establishing or inferring the earnings generated by the lost images in the past, or those that they would have generated in the past. We do not disagree with the District Court that reliance on past earnings to determine the market value of the lost images may be “reasonable, but only as a starting point,” Grace, 403 F.Supp.2d at 351, though we note that some courts have relied exclusively on past earnings to determine damages awards based on projected future earnings, see, e.g., Nierenberg, 592 N.Y.S.2d at 28 (reducing damages but basing value on past licensing revenue to provide estimate of future licensing value); see also Raishevich, 9 F.Supp.2d at 421. The District Court may resolve the “past earnings”/“earning potential” gap by identifying its reliance on this assumption, or by applying the Bige-low principle we discussed earlier," }, { "docid": "2630484", "title": "", "text": "is their reasonable value at the time of such loss.” 8 C.J.S. Bailments § 149. We have stated the New York rule (applicable here) governing the valuation of lost photographic images as follows: [T]he value of lost slides depends primarily on their uniqueness and the “plaintiffs earning potential.” Lowit v. Consolidated Edison Co., 234 A.D.2d 2, 650 N.Y.S.2d 152, 152 (1996); accord Blackman v. Michael Friedman Publ’g Group, 201 A.D.2d 328, 607 N.Y.S.2d 43, 44 (1994) (“The proper standard ... is a consideration of uniqueness of the transparencies and plaintiffs earning potential.”); see also Gasperini, 66 F.3d [427, 429 (2d Cir.1995)] (New York courts consider “(1) the uniqueness of the transparencies and (2) the earning level of the photographer”); Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 592 N.Y.S.2d 27, 28 (1993) (“uniqueness of subject matter of the slides and the earning level of the photographer”); Alen MacWeeney, Inc. v. Esquire Assocs., 176 A.D.2d 217, 574 N.Y.S.2d 340, 341 (1991) (same). Gasperini v. Ctr. for Humanities, Inc., 149 F.3d 137, 141 (2d Cir.1998). In Gasperini, we upheld the District Court’s determination that the jury’s ability to distinguish slides that were of “superior quality,” “unique,” and “irreplaceable” from those that were “readily replaceable and available from other sources” enabled it to assign reasonable values to the lost images accordingly. Id. (internal quotation marks and alterations omitted). The case before us is different from Gasperini and somewhat unusual in that an enormous number of images is missing, the parties are unable to agree on the number of images lost, and the incompleteness of the records available makes it impossible to identify all the images in the “unique” category. The difficulty in computing damages under these circumstances is apparent. However, in cases such as this, “in which the defendant’s wrongdoing prevented the plaintiff from demonstrating the exact measure of the damages suffered, the factfinder may make a ‘just and reasonable estimate’ of the damages caused.” Raishevich v. Foster, 247 F.3d 337, 342 n. 2 (2d Cir.2001) (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946))." }, { "docid": "2630478", "title": "", "text": "photographs of news events covered by other photographers, that many were “out-takes” or unusable, and that “only a small percentage of any collection of photographs is placed into the licensing stream.” Id. The Court noted that Zuma, Grace’s present agent, had selected only 6% to 10% of his available images for licensing. Id. Reviewing Grace’s earning potential as a prelude to its ultimate assessment of damages, the District Court found that Grace earned an average of $11,002.48 per year from all of his images licensed by Sygma during the thirteen-year period 1990-2002, and $5,881 per year for the ten-year period 1991-2000, with the income from celebrity photos omitted. Id. As a measure of future income, however, the District Court characterized these averages as “high” because they included revenue from images that have been returned and that remained available for licensing, as well as “low” because, in later years especially, income more likely was reduced because the lost images were not available for licensing. Id. In evaluating Grace’s earning potential, the District Court indicated that it took into consideration Grace’s outstanding reputation and experience; the fact that he had spent little time in the past fifteen years in photojournalism; the declining income stream as the stories behind the images passed into history; the possibility that interest in past events could be triggered by current events; and the significant competition between Grace’s images and those of many other successful photojournalists. Id. at 349-50. According to the District Court, the sales of various collections of images in their entirety also entered into its final determination of damages — the sales of the Bettmann Collection for $13.5 million ($1.23 per image); the Turnley Collection for $2.3 million ($3.83 per image); and the entire Sygma Collection to Corbis for $12.5 million ($.31 per image). Id. at 350. The District Court noted that these figures were “relevant,” but “the collections are different, and, unlike here, the transactions involved willing buyers and willing sellers. Grace did not want to sell his images.” Id. The District Court considered and rejected the industry’s liquidated damages standard of $1,500 per" }, { "docid": "3991339", "title": "", "text": "and that reasonably each of the former could be valued as high as $1,500 and the latter as high as $200, for a total award of $ 375,00o. Id. at 772-73. The district court ordered a new trial unless Gasperini accepted a remittitur of $75,000 (reducing the jury’s original award from $450,000 to $375,000, plus prejudgment interest). Id. at 773. Gasperini accepted remitti-tur, and the Center appealed. DISCUSSION I. Review of the Jury Verdict for Excessiveness On writ of certiorari from this court’s first judgment in this case, the Supreme Court held that appellate review of the district court’s judgment as to the excessiveness of the jury’s damage award under New York law is limited to determining whether the district court has abused its discretion. See 518 U.S. at 438, 116 S.Ct. 2211; cf. Binder v. Long Island Lighting Co., 57 F.3d 193, 202 (2d Cir.1995) (reviewing for abuse of discre tion district court’s decision to grant new trial pursuant to Fed.R.Civ.P. 59 because jury verdict was against weight of evidence). Under New York law, the value of lost slides depends primarily on their uniqueness and the “plaintiff’s earning potential.” Lowit v. Consolidated Edison Co., 234 A.D.2d 2, 650 N.Y.S.2d 152, 152 (1996); accord Blackman v. Michael Friedman Publ’g Group, 201 A.D.2d 328, 607 N.Y.S.2d 43, 44 (1994) (“The proper standard ... is a consideration of uniqueness of the transparencies and plaintiffs earning potential.”); see also Gasperini 66 F.3d at 429 (New York courts consider “(1) the uniqueness of the transparencies and (2) the earning level of the photographer”); Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 592 N.Y.S.2d 27, 28 (1993) (“uniqueness of subject matter of the slides and the earning level of the photographer”); Alen MacWeeney, Inc. v. Esquire Assocs., 176 A.D.2d 217, 574 N.Y.S.2d 340, 341 (1991) (same). In reaching its decision, the district court considered several factors, including primarily the sales potential of the photographs and their uniqueness as directed by Lowit and Blackman. See Gasperini 972 F.Supp. at 771-72. It found that the closest appellate division decision on point was Girard Studio Group, Ltd. v. Young" }, { "docid": "2630476", "title": "", "text": "Grace’s burden to prove his damages with reasonable certainty was impacted by Sygma’s wrongdoing. Id. (citing Raishevich v. Foster, 9 F.Supp.2d 415, 417 (S.D.N.Y.1998)). The Court recognized that the uniqueness and earning potential of the photographic images are essential components in the evaluation of damages. See id. Identifying the number of images as the “threshold question,” the District Court noted the difficulty in resolving this issue occasioned by the “essentially non-existent” record-keeping and stated as follows: I conclude, however, that the number of missing images is substantially below 67,473, the number claimed by Grace, and that, more likely than not, the number is about 40,000. I reach these conclusions because some of Grace’s estimates are high (for example, there was some inadvertent double-counting); some images were undoubtedly returned to Grace over the course of the thirty years; and some of the images were not given to Sygma in the first place.... In any event, in light of my rulings below on damages, a precise number is not necessary. Id. at 348-49 (internal citations omitted). On appeal, Grace asserts that, even assuming as accurate the District Court’s discounts for double counting, returned images, and images not given to Sygma in the first place, the number of images missing would be 43,367. Sygma advances an even higher number — 46,448. Sygma claims, however, that this figure could be reduced to reflect “the several categories of images for which, while there are no exact numbers, one can reasonably be sure Grace’s numbers did not account.” Defendants-Appellees’ Br. at 25. Grace also contests the District Court’s assertion that “a precise number is not necessary,” arguing that “the [c]ourt’s failure to accurately calculate the number of lost images ... directly resulted in a corresponding reduction in damages.” Appellant’s Br. at 57. As to the uniqueness element essential to the valuation process, the District Court concluded that, although “Grace had a ‘unique eye’ and was one of the top photojournalists of his time, the vast majority of his images were not unique.” Id. at 349. The District Court reasoned that most of the lost images were" }, { "docid": "2630477", "title": "", "text": "appeal, Grace asserts that, even assuming as accurate the District Court’s discounts for double counting, returned images, and images not given to Sygma in the first place, the number of images missing would be 43,367. Sygma advances an even higher number — 46,448. Sygma claims, however, that this figure could be reduced to reflect “the several categories of images for which, while there are no exact numbers, one can reasonably be sure Grace’s numbers did not account.” Defendants-Appellees’ Br. at 25. Grace also contests the District Court’s assertion that “a precise number is not necessary,” arguing that “the [c]ourt’s failure to accurately calculate the number of lost images ... directly resulted in a corresponding reduction in damages.” Appellant’s Br. at 57. As to the uniqueness element essential to the valuation process, the District Court concluded that, although “Grace had a ‘unique eye’ and was one of the top photojournalists of his time, the vast majority of his images were not unique.” Id. at 349. The District Court reasoned that most of the lost images were photographs of news events covered by other photographers, that many were “out-takes” or unusable, and that “only a small percentage of any collection of photographs is placed into the licensing stream.” Id. The Court noted that Zuma, Grace’s present agent, had selected only 6% to 10% of his available images for licensing. Id. Reviewing Grace’s earning potential as a prelude to its ultimate assessment of damages, the District Court found that Grace earned an average of $11,002.48 per year from all of his images licensed by Sygma during the thirteen-year period 1990-2002, and $5,881 per year for the ten-year period 1991-2000, with the income from celebrity photos omitted. Id. As a measure of future income, however, the District Court characterized these averages as “high” because they included revenue from images that have been returned and that remained available for licensing, as well as “low” because, in later years especially, income more likely was reduced because the lost images were not available for licensing. Id. In evaluating Grace’s earning potential, the District Court indicated that it" }, { "docid": "2630479", "title": "", "text": "took into consideration Grace’s outstanding reputation and experience; the fact that he had spent little time in the past fifteen years in photojournalism; the declining income stream as the stories behind the images passed into history; the possibility that interest in past events could be triggered by current events; and the significant competition between Grace’s images and those of many other successful photojournalists. Id. at 349-50. According to the District Court, the sales of various collections of images in their entirety also entered into its final determination of damages — the sales of the Bettmann Collection for $13.5 million ($1.23 per image); the Turnley Collection for $2.3 million ($3.83 per image); and the entire Sygma Collection to Corbis for $12.5 million ($.31 per image). Id. at 350. The District Court noted that these figures were “relevant,” but “the collections are different, and, unlike here, the transactions involved willing buyers and willing sellers. Grace did not want to sell his images.” Id. The District Court considered and rejected the industry’s liquidated damages standard of $1,500 per lost transparency delivered on consignment, observing that some courts had used this standard in cases involving unique, superior, and irre placeable images. The court found that the per-image standard of $1,500 would lead to an “absurd result” in this case, since not all the lost images were unique and irreplaceable and the recovery for the 40,000 images ultimately found missing by the District Court would be $60 million. The District Court stated that “[w]hat a client was willing to stipulate to as compensation in the event of the loss of an image when receiving a few ‘selects’ on consignment to review under the pressure of a deadline is not relevant to a situation involving 40,000 images.” Id. Proceeding to review Grace’s other theories of valuation, the District Court rejected the testimony of Grace’s expert, who ranked the images into three categories of values of $5,000, $2,500, and $l,500-$2,000 each. The court observed that the expert “never looked at the licensing revenue that Grace’s photographs actually earned, which clearly is a relevant consideration,” Id. at 351," }, { "docid": "2630474", "title": "", "text": "Corbis-Sygma) that he was terminating Sygma as his representative. Id. at 345. The letter included the following: I expect all of my images that are now in Corbis/Sygma’s files to be returned to me no later than June 1, 2001. This includes all images from May 1972 to the present that have been archived in both New York and Paris as originals or duplicates]. Id. at 346. Sygma made sporadic returns of Grace’s images beginning in the fall of 2001. Id. The returns continued up to the time of trial. Id. The fact that the photographs were “disorganized” and kept in a “haphazard fashion” made it impossible for Sygma to account for all of the thousands of photographs spanning a period of thirty years. Id. Sygma found some of the images by referring to a list of stories relating to photographs for which royalties were paid and matching the photographs to the stories. Id. Despite all efforts, Syg-ma simply was unable to account for and return a great number of the photographs Grace had entrusted to it as his agent and representative. During the trial, Grace claimed that 67,473 of his images were missing. Id. at 347 n. 16. The District Court found that as of December 7, 2004, Sygma had returned 33,013 original images to Grace, id. at 346, and the parties do not dispute this figure. The District Court determined that Grace’s entrustment of his photographs to Sygma for licensing purposes as his agent was a mutual benefit bailment, that the bailment ended when Grace terminated the relationship in May 2001, and that “Sygma is presumed to have been negligent in failing to return the missing images.” Id. at 348. Accordingly, the District Court concluded as follows: “Defendants have not provided a sufficient explanation for the loss, and, indeed, the record shows that Sygma’s system of keeping track of images was ‘completely inadequate.’ Hence, defendants are liable.” Id. Sygma, having filed no cross appeal, does not disagree with these determinations nor with the damages fixed by the District Court. In evaluating Grace’s loss, the District Court observed that" }, { "docid": "2630483", "title": "", "text": "claims for holding fees or improper deductions or any other expenses or damages.” Id. DISCUSSION On this appeal from a judgment entered after a bench trial, we are constrained to review the District Court’s findings of fact for clear error and its conclusions of law de novo. See Mobil Shipping & Transp. Co. v. Wonsild Liquid Carriers Ltd., 190 F.3d 64, 67 (2d Cir.1999). We also are constrained to accord de novo review in examining whether the correct legal standard was applied by the District Court. See LoPresti v. Terwilliger, 126 F.3d 34, 39 (2d Cir.1997). Since Sygma does not contest its liability as bail-ee for the negligent loss of photographic images belonging to Grace, we are confronted here only with Grace’s challenge to the methodology employed by the District Court in arriving at its award of damages and his consequent objection to the adequacy of the award. In assessing damages, we are guided by the general rule that “[t]he measure of a bailee’s liability to the bailor for ... wrongful loss of the goods is their reasonable value at the time of such loss.” 8 C.J.S. Bailments § 149. We have stated the New York rule (applicable here) governing the valuation of lost photographic images as follows: [T]he value of lost slides depends primarily on their uniqueness and the “plaintiffs earning potential.” Lowit v. Consolidated Edison Co., 234 A.D.2d 2, 650 N.Y.S.2d 152, 152 (1996); accord Blackman v. Michael Friedman Publ’g Group, 201 A.D.2d 328, 607 N.Y.S.2d 43, 44 (1994) (“The proper standard ... is a consideration of uniqueness of the transparencies and plaintiffs earning potential.”); see also Gasperini, 66 F.3d [427, 429 (2d Cir.1995)] (New York courts consider “(1) the uniqueness of the transparencies and (2) the earning level of the photographer”); Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 592 N.Y.S.2d 27, 28 (1993) (“uniqueness of subject matter of the slides and the earning level of the photographer”); Alen MacWeeney, Inc. v. Esquire Assocs., 176 A.D.2d 217, 574 N.Y.S.2d 340, 341 (1991) (same). Gasperini v. Ctr. for Humanities, Inc., 149 F.3d 137, 141 (2d Cir.1998). In Gasperini, we" }, { "docid": "2630486", "title": "", "text": "Therefore, although Grace had the burden of proof as to loss, “he had no obligation to offer a mathematically precise formula as to the amount of damages.” Raishevich, 247 F.3d at 343. Despite the flexibility to be accorded in proving damages under the circumstances revealed here, we have observed that “[t]he factfinder ... may not base its award on speculation or guesswork.” Id. Relevant data must be considered, and “[w]hen damages are at some unascertainable amount below an upper limit and when the uncertainty arises from the defendant’s wrong, the upper limit will be taken as the proper amount.” Id. (internal quotation marks and citation omitted). This principle was developed in Bigelow to avoid the potential for a wrongdoer to “profit by his wrongdoing at the expense of his victim.” Bigelow, 327 U.S. at 264, 66 S.Ct. 574. Values thus may be ascer tained even when establishment with precision of all of the relevant data is problematic. See, e.g., Raishevich, 247 F.3d at 343 (fixing value where 347 transparencies were seized and later destroyed while in police custody although plaintiff “provided little to no evidence indicating the uniqueness of his work”); Blackman, 607 N.Y.S.2d at 44 (fixing value of 146 lost transparencies where the “record [wa]s barren of any evidence establishing the lost transparencies’ uniqueness”). Having the foregoing in mind, we turn to the District Court’s formulation of damages in this case. Our attention is first drawn to the number of missing images identified by the District Court: “I conclude ... that the number of missing images is substantially below 67,473, the number claimed by Grace, and that, more likely than not, the number is about 40,-000.” Grace, 403 F.Supp.2d at 348 (emphasis supplied). Supporting its finding, the District Court discounted Grace’s claim for images that were double counted, images returned to Grace, and images never given to Sygma, such as those retained in the possession of Time and Newsweek. The problem with the District Court’s finding, that Sygma lost “about 40,000” of Grace’s images, Id. (emphasis supplied), is that when the District Court calculated the ultimate damages amount it" }, { "docid": "2630498", "title": "", "text": "or in some other fashion. As noted above, our focus here is to ensure that the damages award is reasonable and based on the evidence presented. The District Court may also see fit to expand upon the values generated by the methodology suggested here by incorporating into its damages valuation evidence of other elements of earning potential and uniqueness. See Gasperini, 149 F.3d at 141. Our second assumption has been that the requisite uniqueness element is also reflected in past earnings. That is, to rely on this methodology alone, one must assume that past earnings reflect the ratio of unique to non-unique images in the set of images that generated the past earnings. We think this is a rational assumption given the large size of the sets of both lost and non-lost images, at least if one assumes that there is no causal connection between the unique nature of an image and whether or not it has been lost. We recognize however, that uniqueness is required under New York law to be factored into the damages calculation. We leave it to the District Court to decide whether to rely on some of the assumptions laid out in the opinion, or to find another way to incorporate uniqueness. Moreover, we note that there was some evidence of some uniqueness of some photographs. The problem here has been created by the failure of the parties, by virtue of poor record-keeping, to be more specific in regard to the uniqueness element. We also note, however, that in Blackman, 607 N.Y.S.2d at 44, as well as in Raishevich, 247 F.3d at 343, there was no evidence or implication of uniqueness. And in Nierenberg, 592 N.Y.S.2d at 28, the value of the images was based on an estimate of their licensing revenue. In order to produce a just a reasonable estimate of value with this methodology, the Court should factor in the discounted value of the stream of future income that the images are expected to produce. See Ammar v. United States, 342 F.3d 133, 147-48 (2d Cir.2003) (remanding for recalculation of award where district" }, { "docid": "2630475", "title": "", "text": "to it as his agent and representative. During the trial, Grace claimed that 67,473 of his images were missing. Id. at 347 n. 16. The District Court found that as of December 7, 2004, Sygma had returned 33,013 original images to Grace, id. at 346, and the parties do not dispute this figure. The District Court determined that Grace’s entrustment of his photographs to Sygma for licensing purposes as his agent was a mutual benefit bailment, that the bailment ended when Grace terminated the relationship in May 2001, and that “Sygma is presumed to have been negligent in failing to return the missing images.” Id. at 348. Accordingly, the District Court concluded as follows: “Defendants have not provided a sufficient explanation for the loss, and, indeed, the record shows that Sygma’s system of keeping track of images was ‘completely inadequate.’ Hence, defendants are liable.” Id. Sygma, having filed no cross appeal, does not disagree with these determinations nor with the damages fixed by the District Court. In evaluating Grace’s loss, the District Court observed that Grace’s burden to prove his damages with reasonable certainty was impacted by Sygma’s wrongdoing. Id. (citing Raishevich v. Foster, 9 F.Supp.2d 415, 417 (S.D.N.Y.1998)). The Court recognized that the uniqueness and earning potential of the photographic images are essential components in the evaluation of damages. See id. Identifying the number of images as the “threshold question,” the District Court noted the difficulty in resolving this issue occasioned by the “essentially non-existent” record-keeping and stated as follows: I conclude, however, that the number of missing images is substantially below 67,473, the number claimed by Grace, and that, more likely than not, the number is about 40,000. I reach these conclusions because some of Grace’s estimates are high (for example, there was some inadvertent double-counting); some images were undoubtedly returned to Grace over the course of the thirty years; and some of the images were not given to Sygma in the first place.... In any event, in light of my rulings below on damages, a precise number is not necessary. Id. at 348-49 (internal citations omitted). On" }, { "docid": "21019141", "title": "", "text": "image taken by a photographer with the reputation of Walker Evans or Alfred Eisenstaedt. New York law does not countenance such a methodology. The object of tort damages is to do what can be done to make an injured party whole; it is not meant to be a winning lottery ticket. In light of Gasperini’s failure to make an effective showing that all 300 lost transparencies were unique, and the strong evidence of Gasperini’s limited earning power as a photographer, the jury’s award of $450,000 cannot be regarded as anything but a financial windfall for Gasperini. A review of New York cases involving lost transparencies further supports the conclusion that the jury’s award in this case was excessive. See Consorti v. Armstrong World Indus., 64 F.3d 781, 789-90 (2d Cir.1995) (when New York substantive law governs a diversity case, we look to New York decisions for guidance on the issue of excessiveness of damages). We acknowledge the limited utility of comparing damage awards in different cases, particularly since we find ourselves without access to the full, records in the prior cases. See id. at 790-91. Nevertheless, there is a clear pattern in appellate decisions addressing awards of damages for lost transparencies, and that pattern is instructive. The Appellate Division has considered such damage awards on four occasions in the last six years. Only once did the court permit an award of $1,500 per lost transparency. Girard Studio Group v. Young & Rubicam, Inc., 147 A.D.2d 357, 357, 536 N.Y.S.2d 790, 790 (1st Dep’t 1989). In Girard, the court made no reference to the purported industry standard, but instead valued transparencies that “represented classics from a long career.” MacWeeney, 176 A.D.2d at 218, 574 N.Y.S.2d at 341. In each of the other three cases, the Appellate Division reduced the award of damages to well under $1,500 per transparency. In Nierenberg v. Wursteria, Inc., the court noted that, while there was evidence of the lost transparencies’ uniqueness, that evidence was offset by the fact that the plaintiff earned little from still photography. It therefore rejected the application of the purported industry standard" }, { "docid": "2630485", "title": "", "text": "upheld the District Court’s determination that the jury’s ability to distinguish slides that were of “superior quality,” “unique,” and “irreplaceable” from those that were “readily replaceable and available from other sources” enabled it to assign reasonable values to the lost images accordingly. Id. (internal quotation marks and alterations omitted). The case before us is different from Gasperini and somewhat unusual in that an enormous number of images is missing, the parties are unable to agree on the number of images lost, and the incompleteness of the records available makes it impossible to identify all the images in the “unique” category. The difficulty in computing damages under these circumstances is apparent. However, in cases such as this, “in which the defendant’s wrongdoing prevented the plaintiff from demonstrating the exact measure of the damages suffered, the factfinder may make a ‘just and reasonable estimate’ of the damages caused.” Raishevich v. Foster, 247 F.3d 337, 342 n. 2 (2d Cir.2001) (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946)). Therefore, although Grace had the burden of proof as to loss, “he had no obligation to offer a mathematically precise formula as to the amount of damages.” Raishevich, 247 F.3d at 343. Despite the flexibility to be accorded in proving damages under the circumstances revealed here, we have observed that “[t]he factfinder ... may not base its award on speculation or guesswork.” Id. Relevant data must be considered, and “[w]hen damages are at some unascertainable amount below an upper limit and when the uncertainty arises from the defendant’s wrong, the upper limit will be taken as the proper amount.” Id. (internal quotation marks and citation omitted). This principle was developed in Bigelow to avoid the potential for a wrongdoer to “profit by his wrongdoing at the expense of his victim.” Bigelow, 327 U.S. at 264, 66 S.Ct. 574. Values thus may be ascer tained even when establishment with precision of all of the relevant data is problematic. See, e.g., Raishevich, 247 F.3d at 343 (fixing value where 347 transparencies were seized and later destroyed while" }, { "docid": "2630495", "title": "", "text": "likely, however, that different images were lost at different times, which is why the methodology set forth herein assumes that the lost and non-lost images produced, absent any further evidence to the contrary and on the current record before us, a proportionate share of the revenue. These findings may indeed be difficult to make in light of the state of the evidence. But we nonetheless suggest that in calculating the past earnings of the lost images using the revenues generated by the entire collection, the District Court should be aware of the possibility that those revenues were probably generated by some combination of lost and non-lost images. Moreover, in making its own computation of annual earning potential, the District Court is free to discount the number of lost images to the extent it finds additional evidence demonstrating that some percentage of the lost images did not contribute to past revenues. A lower number in the lost-images category would of course result in a lower award overall. Further applying the suggested methodology, the District Court would apply to the annual earnings potential a multiplier based upon the length of time that the lost images would continue to be a source of revenue. This might be the average number of years remaining on the copyrights of the lost images or some other measure based upon the input of the parties on this issue. We note that the Court in Raishe-vich applied a 30-year multiplier, though it did not indicate why it chose this length of time. Raishevich, 247 F.3d at 341. This step in the methodology assumes that past earnings reflect future earning potential. See Gasperini v. Ctr. for Humanities, 972 F.Supp. 765, 772 (S.D.N.Y.1997) (noting that “prior licensing fees collected and the prior economic experience of the photographer in connection with the slides” was one of seven elements relevant to the “earning potential” factor in a lost transparency case), vacated and remanded on other grounds, 149 F.3d 137 (2d Cir.1998); Raishevich v. Foster, 9 F.Supp.2d 415, 417 (S.D.N.Y.1998) (listing “past earnings from use of the transparencies” as one of five elements" }, { "docid": "2630497", "title": "", "text": "relevant to determining lost transparencies’ “earning potential”), vacated and remanded on other grounds, 247 F.3d 337 (2d Cir.2001). The formula suggested here rests on two assumptions: first that the market value of the lost images can be determined by establishing or inferring the earnings generated by the lost images in the past, or those that they would have generated in the past. We do not disagree with the District Court that reliance on past earnings to determine the market value of the lost images may be “reasonable, but only as a starting point,” Grace, 403 F.Supp.2d at 351, though we note that some courts have relied exclusively on past earnings to determine damages awards based on projected future earnings, see, e.g., Nierenberg, 592 N.Y.S.2d at 28 (reducing damages but basing value on past licensing revenue to provide estimate of future licensing value); see also Raishevich, 9 F.Supp.2d at 421. The District Court may resolve the “past earnings”/“earning potential” gap by identifying its reliance on this assumption, or by applying the Bige-low principle we discussed earlier, or in some other fashion. As noted above, our focus here is to ensure that the damages award is reasonable and based on the evidence presented. The District Court may also see fit to expand upon the values generated by the methodology suggested here by incorporating into its damages valuation evidence of other elements of earning potential and uniqueness. See Gasperini, 149 F.3d at 141. Our second assumption has been that the requisite uniqueness element is also reflected in past earnings. That is, to rely on this methodology alone, one must assume that past earnings reflect the ratio of unique to non-unique images in the set of images that generated the past earnings. We think this is a rational assumption given the large size of the sets of both lost and non-lost images, at least if one assumes that there is no causal connection between the unique nature of an image and whether or not it has been lost. We recognize however, that uniqueness is required under New York law to be factored into the" }, { "docid": "2630492", "title": "", "text": "the record viewed in its entirety.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 (2d Cir.2001) (internal quotation marks and citation omitted). In formulating an award of damages on remand, the District Court might next consider factoring in Grace’s past annual earnings, perhaps utilizing the Bigelow principle described above. Application of this principle at this juncture requires identification of Grace’s highest earning year and the assumption that that year represented the collection’s earning capacity. The District Court may determine that this assumption takes care of the gap between “past earnings” and “earning potential.” Based upon the evidence presented of record, Grace’s highest earnings came in 1979 for Paris sales, when he earned $19,970.72 and in 1999 for New York sales, when he earned $1,288.09, for a total of $21,258.81 (reflecting conversion from francs). The next step in this methodology would be to ascertain the percentage of lost images in order to find the earnings per year from the lost images. This would be accomplished by dividing the number of lost images by the total number of images consigned to Sygma over the years. Accepting the number of lost images put forward by Sygma (46,448) for the purpose of this example only, and adding to it 33,013, the number of non-lost images not in dispute, results in a total of 79,461 images. Dividing this hypothetical number of lost images (46,448) by the total number of images (79,461) yields 0.5845 (58%) in this example. Carrying out the methodology of this example, 58% of $21,258.81 earnings per year yields a figure of $12,330.11 earnings per year from lost images. Although this figure may seem generous, given the District Court’s findings that Grace’s average earnings per year from all images in 1979-1989 totaled $8,475.77, without New York income, and $11,002.48 in 1990-2002, including New York income, “the wrongdoer may not object to the plaintiffs reasonable estimate of the cause of injury and of its amount, supported by the evidence, because not based on more accurate data which the wrongdoer’s misconduct has rendered unavailable.” Bigelow, 327 U.S. at 265, 66 S.Ct. 574. We cannot" } ]

[ { "docid": "22423552", "title": "", "text": "1934, 15 U.S.C. § 78j, (the 1934 Act), and Rule 10b-5 promulgated thereunder, and sections 12(1) and 12(2) of the Securities Act of 1933, 15 U.S.C. § 77i(l) & (2), (the 1933 Act). All these federal claims were dismissed with prejudice for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed. R.Civ.P.). Guidry’s complaint also alleges several Louisiana state law claims over which the district court exercised pendent jurisdiction. The district court dismissed with prejudice Guidry’s state securities law and negligence claims on Rule 12(b)(6) grounds and dismissed with prejudice Guidry’s allegations of fraud on the ground that Guidry failed to state those claims with particularity as required by Fed.R.Civ.P. Rule 9(b). Guidry appeals the dismissal of all claims and, alternatively, argues that if the district court did correctly dismiss the federal claims, it should have dismissed the state law claims without prejudice for lack of jurisdiction. 1. The Facts We review de novo a district court’s dismissal on the pleadings. Walker v. South Central Bell Telephone Co., 904 F.2d 275 (5th Cir.1990). We accept the complaint’s well-pleaded factual allegations as true. O’Quinn v. Manuel, 773 F.2d 605 (5th Cir.1985). However, “[i]n order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations....” Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir.1989). And, “[cjonclusory allegations and unwarranted deductions of fact are not admitted as true” by a motion to dismiss. Associated Builders, Inc. v. Alabama Power Company, 505 F.2d 97, 100 (5th Cir.1974). Therefore, in deciding whether Guidry’s complaint sufficiently states any claims against the defendants, we must set forth the facts well-pleaded by the complaint (including the RICO Case statement, filed by Guidry below in accordance with the local rules, and Guidry’s first supplemental and amending complaint). In 1982, Martin began a scheme in which he convinced his victims to provide him with funds he would use to purchase large blocks of airline tickets for groups taking gambling trips to Las Vegas. Martin told his victims that certain Las Vegas hotels would reimburse" } ]

[ { "docid": "22440454", "title": "", "text": "the three remaining plaintiffs, only Mi-chaels failed to assert an antitrust claim in its complaint. Michaels did, however, assert an antitrust counterclaim in an action brought by First National to recover on notes. Michaels’ antitrust claim was dismissed in a separate order which is not now before this court. . Fed.R.Civ.P. 8 provides, in pertinent part: (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief ... ****** (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. . Noting that reliance is an essential element of a claim of fraud, the National City Defendants, in a \"supplemental brief,” urge that plaintiffs did not rely on the alleged misrepresentations of defendants since plaintiffs testified that they did not \"shop around\" for a lower interest rate. We find this argument to be without merit. Certainly the Michaels Building Co. relied upon the defendant banks to calculate the interest on plaintiffs’ loans based upon the banks’ prime rates — i.e., the lowest rate offered by a given bank on short term commercial loans. Indeed, as plaintiffs note, when Michaels Building paid off the loan in full from National City Bank of Akron’s predecessor, the Goodyear Bank, it relied upon the proper calculation of that payoff balance as being based upon the established \"prime rate.” Thus, since plaintiffs knew that defendants’ loan statements offered a certain prime rate (which allegedly misstated the true prime rate), this information, it must be inferred, influenced plaintiffs’ decision to borrow money from those defendant banks. . In their insistence upon plaintiffs’ producing the actual names of favored borrowers, defendants border on urging that Rule 9(b) requires that plaintiff plead the evidence of the fraud. The rule, however, requires only that the \"circumstances” of the fraud be pled with particularity, not the evidence of the case. While" }, { "docid": "22980380", "title": "", "text": "BIDDLE, Circuit Judge. The plaintiff’s “statement of claim” (complaint), amended under an order of court granting defendant’s motion for a more definite statement under Rule 12(e), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, alleged that he was injured by the premature explosion of a dynamite cap. Specifically the plaintiff claimed as negligent acts the manufacturing and distributing of the cap “in such a fashion that it was unable to withstand the crimping which defendant knew it would be subjected to”; and distributing a cap so constructed that it would explode upon being crimped, without warning, the defendant knowing it would be crimped. Judge Kalodner granted the defendant’s motion to strike this amended statement, as failing to set forth any specific act of negligence, and dismissed the action. From his order the plaintiff appealed to this court. The plaintiff, as alleged, was injured while “crimping” a dynamite cap manufactured by the defendant and supplied to him by his employer. “Crimping” is a necessary and anticipated process in using the cap. Appellee, admitting that a manufacturer is liable for injuries to a person from the use of a defectively manufactured article, argues that it is not put on notice by the complaint as to whether it must meet a claim of warranty, of misrepresentation, of the use of improper ingredients, or of faulty inspection. But there is a specific averment of negligent manufacture and distribution of the cap in such a fashion as to make it explode when crimped. A plaintiff need' not plead evidence. He “sets forth a claim for relief” when he makes “a short and plain statement of the claim showing that the pleader is entitled to relief (Rule 8(a) (2).” The same rule, (e) (1), requires that “each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required”; and (f) “all pleadings shall be so construed as to do substantial justice”. Form 9 in the Appendix of Forms attached to the Rules, “intended to indicate * * * the simplicity and brevity of statement" }, { "docid": "456266", "title": "", "text": "that would entitle them to relief.” Flood v. Neio Hanover County, 125 F.3d 249, 251 (4th Cir.1997); Shepard’s, Motions in Federal Court, § 5.124, at 367 (2d ed.1991). Plaintiffs also filed a proposed amended complaint which the Magistrate Judge recommended be stricken because it is not in compliance with Federal Rule of Civil Procedure 8. That rule provides that a complaint shall contain “a short and plain statement of the grounds upon which the court’s jurisdiction depends” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a). “Each averment of a pleading shall be simple, concise, and direct.” Fed.R.Civ.P. 8(e). II. DISCUSSION In September 1994, the Plaintiffs were involved in a motor vehicle accident in New Jersey, where they resided at the time. Defendant State Farm Indemnity Company (Indemnity) was the Plaintiffs’ insurance carrier. Both Plaintiffs received minor injuries in the accident, as a result of which they filed various claims with Indemnity for medical services and income continuation. Because they were dissatisfied with the handling of their claims and the coverage provided, Plaintiffs sued Indemnity in the New Jersey state court. Exhibits 1, 2 & 3 attached to Affidavit of Michelle Wall, filed September 21, 1999. In those actions, Plaintiffs alleged that Indemnity breached the insurance contract, failed to provide complete coverage, failed to pay medical claims, failed to provide income continuation benefits, failed to provide coverage for future medical benefits, violated its fiduciary duty to the insureds and acted in bad faith. Id. Plaintiffs sought compensatory and punitive damages, attorneys’ fees and costs as their relief. Id. Despite the earlier New Jersey actions, Plaintiffs brought an action in this Court on August 3, 1999 alleging that Indemnity and State Farm Mutual Automobile Insurance Company (Mutual) violated the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq. by virtue of Hobbs Act violations. The complaint also alleges state law claims for tortious interference with contract, abuse of process and denial of due process. These causes of action all stem from the 1994 accident and Indemnity’s" }, { "docid": "22440453", "title": "", "text": "of postal service facilities to obtain money by means of false or fraudulent pretenses. . Fed.R.Civ.P. 9(b) provides: (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind may be averred generally. . In addition to Bank One Corporation and Bank One, Akron, N.A. (a subsidiary of Bank One Corporation), both named in Michaels, the Abbe complaint named Bank One Cleveland, N.A., another subsidiary of Bank One Corporation. Bank One of Akron was named as a defendant only on a pendent breach of contract claim not at issue here. . On March 30, 1988, a fourth plaintiff, Theodore Goumas, voluntarily withdrew an identical appeal as to all defendants. Because the issues involved in all of the appeals are the same, the appellants in all of the cases will be collectively referred to as \"plaintiffs.\" Except as otherwise noted, the defendant banks, officers, and directors will be collectively referred to as \"defendants.” Of the three remaining plaintiffs, only Mi-chaels failed to assert an antitrust claim in its complaint. Michaels did, however, assert an antitrust counterclaim in an action brought by First National to recover on notes. Michaels’ antitrust claim was dismissed in a separate order which is not now before this court. . Fed.R.Civ.P. 8 provides, in pertinent part: (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief ... ****** (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. . Noting that reliance is an essential element of a claim of fraud, the National City Defendants, in a \"supplemental brief,” urge that plaintiffs did not rely on the alleged misrepresentations of defendants since plaintiffs testified that they did not \"shop around\" for a lower interest" }, { "docid": "13533374", "title": "", "text": "346 (1985); Keystone Insurance Co., supra at 1128, citing Marshall-Silver Construction Co. v. Mendel, 835 F.2d 63, 65 (3d Cir.1987). See also Saporito v. Combustion Engineering Inc., 843 F.2d 666, 673 (3d Cir.1988). All elements of a RICO claim must be plead in accordance with the liberal notice provisions of Fed.R.Civ.P. 8. See Seville, supra at 790. Under Rule 8: A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief and (3) a demand for judgment for relief the pleader seeks. Relief in the alternative or of several different types is allowed. Rule 8(e)(1) further provides that: Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading ... are required. The limited requirements for pleadings made under Federal Rules of Civil Procedure reflects the view that the function of federal pleadings is to provide ones’ adversary with notice of the occurrence sued upon and that the pleader has a claim upon which he is entitled to relief. Rose, supra at 355. A. Wright & C. Miller, Federal Practice & Procedure, § 1202 at 63. In their treatise, these authors specifically observed that: pleadings under the rule may simply be a general summary of the parties’ position that is sufficient to advise the other party of the event being sued upon ... No more is demanded of the pleading than this. Id. at 358-59. Hence, all that the federal rule requires is that the complaint give defendants “fair notice of what plaintiffs claim is and the ground upon which it rests.” Conley, supra 355 U.S. at 48, 78 S.Ct. at 103; United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir.1980); Universe Tankships, Inc. v. United States, 528 F.2d 73, 75-76 (3d Cir.1975). See also Seville, supra at 790 in which the court recognized that: the Federal Rules of Civil Procedure were designed to eliminate the vagaries of" }, { "docid": "11558007", "title": "", "text": "to disclose Brown, an issue which shall be analyzed infra. I decide only that, as a matter of pleading, dismissal is not appropriate. 3. Simplicity and Rule 8 Defendants attack the RICO counts for their verbosity, arguing that Fed.R. Civ.P. 8 is thereby offended. Rule 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief____” This rule sets the liberal tone of the federal pleading requirements, in sharp contrast to the earlier formalistic code and writ pleading. Indeed, Rule 8(e)(1) states that “[e]ach averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” Fed.R.Civ.P. 8(e)(1) (emphasis added). However, the Rule must be applied with some logic and common sense. The length of a pleading will depend upon a number of factors, not the least of which is the complexity of the case. Accord Kaufman, 539 F.Supp. at 1092. The RICO counts, detailing the findings in Brown, are indeed prolix. However, as determined above, these allegations may be relevant, although very lengthy and redundant in spots. I shall not go through each count and determine which averments ought to remain and which are potentially extraneous. I agree with the sentiments expressed in Kaufman: The plaintiffs in this action are alleging the violation of numerous provisions in the federal securities laws, which are complex in their application. This makes “concise” pleading difficult. What verbosity and repetition appears in the complaint does not, standing alone, justify dismissal under Rule 8. Kaufman, 539 F.Supp. at 1092 (emphasis added). Accordingly, the RICO counts shall not be dismissed pursuant to Fed.R. Civ.P. 8. In Gaugler and Shulik defendants also argue that the state law claims lack sufficient factual allegations to pass muster under Rule 8(a)(2). For example, the contract claim in Gaugler is faulted for failing to set forth when the contract was formed and the substance of its terms. Similarly, on the breach of fiduciary duty issue, plaintiffs allegedly fail to spell out the nature of the claimed duty. This argument misperceives the purpose" }, { "docid": "7933833", "title": "", "text": "says he complained and challenged, he is in the best position to plead the facts that would defeat qualified immunity, if such facts exist. IV. For the foregoing reasons, the order of the district court denying defendants’ motion to dismiss is reversed, and the cause is remanded for further proceedings consistent with this opinion. . The complaint also alleged age discrimination, a count that he voluntarily dismissed prior to trial. . Only four of the six defendants are parties to this appeal. They are Michael Hogan, Director of ODMH; Martha Knicely, its former Director; Carol Hernandez, Area Deputy Director of ODMH; and Frank Fleischer, Chief Executive Officer of the Massillon Psychiatric Center, which is operated by ODMH. . In reality, this was not the first complaint. He had filed an earlier action in federal court that was dismissed without prejudice when the parties were not prepared to proceed. Pleadings in this earlier case made no mention of First Amendment violations. . Rule 8 reads in part: (a) Claims for Relief. A pleading which sets forth a claim for relief ... shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief.... (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. Fed.R.Civ.P. 8. . A similar scenario would apply should the defense first be asserted by answer. Judge Patrick Higginbotham, writing for the en banc court of the Fifth Circuit, suggests that the district court, pursuant to Federal Rule of Civil Procedure 7(a), could insist that plaintiff file a reply tailored to answer the defense of qualified immunity. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995) (en banc). Should the defense be raised by the individual defendant by a motion for summary judgment, it would follow that the burden by the plaintiff would be a heightened production of summary judgment documentation under Rule 56. Any discovery undertaken in that regard should be limited to the defense of qualified immunity. . A" }, { "docid": "18255966", "title": "", "text": "of fact set forth in Paragraph 2 by the pleader is as follows: “2. On December 19, 1945 on a public highway known as United States Route No. 6, one mile east of Wellsboro in the County of Tioga, State of Pennsylvania, defendant negligently drove a motor vehicle against plaintiff who was then standing in the rear of a truck parked on said highway.” In the first instance, the plaintiff need not plead evidence and he sets forth a claim for relief when he makes “a short and plain statement of the claim showing that the pleader is entitled to relief”. Rule 8(a) (2) of Federal Rules of Civil Procedure. Furthermore Rule 8(e) (1) requires that “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” Rule 8(f) sets forth that “All pleadings shall be so construed as to do substantial justice.” Rule 84 sets forth that “The forms contained in the Appendix of Forms are intended to indicate, * * *, the simplicity and brevity of statement which the rules contemplate.” Form 9 in the Appendix of Forms attached to the Rules of Civil Procedure contains this concise allegation of negligence: “* * * defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.” Since there is a specific allegation of negligence in a general manner .set forth in the complaint, it is not necessary for the plaintiff to plead evidence; and if the defendant needs further information to prepare his defense, he can obtain it by interrogatories under the provisions of Rule 33 of the Federal Rules of Civil Procedure. Martz et al. v. Abbott et al., D.C., 2 F.R.D. 17; Sierocinski v. E. I. Du Pont De Nemours & Co., 3 Cir., 103 F.2d 843; Hardin v. Interstate Motor Freight System, Inc., D.C., 26 F.Supp. 97. Furthermore, the plaintiff in his pleading, for reasons personal to himself, might not have desired to set forth the specific items of negligence of which complaint was made for the reason that where a general charge of" }, { "docid": "9940463", "title": "", "text": "102, 2 L.Ed.2d 80 (1957). I may only test plaintiffs complaint for any legal deficiency and must construe the factual allegations in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, 503 U.S. 936, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). B. Analysis The sticking point in determining if Brzon-kala sufficiently stated a VAWA claim is whether she has sufficiently alleged that the rape was “motivated by gender.” A crime “motivated by gender” is defined as a crime “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” See 42 U.S.C. § 13981(d)(1). Defendants argue that Brzonkala failed the liberal pleading standards of Fed.R.Civ.P. 8. “A pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief,_” Fed.R.Civ.P. 8(a). “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” Fed. R.Civ.P. 8(e)(1). The legislative history behind VAWA sheds some light on the proof requirements which, in turn, shed some light on the pleading requirements. “Proof of ‘gender-motivation’ under [T]itle III should proceed in the same ways proof of race or sex discrimination proceeds under other civil rights laws. Judges and juries will determine ‘motivation’ from the ‘totality of the circumstances’ surrounding the event.” S.Rep. No. 197, 102d Cong., 2d Sess. 50 (1991). “Bias, in short, can be proved by circumstantial as well as indirect evidence.” S.Rep. No. 138, 103d Cong., 1st Sess. 52 (1993). Generally accepted guidelines for identifying hate crimes may also be useful in assessing whether the circumstances show gender-motivation. The following characteristics are used to determine whether a crime is bias related: language used by the perpetrator; the severity of the attack (including mutilation); the lack of provocation; previous history of similar incidents; absence of any other apparent motive (battery without robbery, for example);" }, { "docid": "8299235", "title": "", "text": "F.2d 696, 699 (9th Cir.1988). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a). “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” Fed.R.Civ.P. 8(e). The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which it bases its claim. See Twombly, 127 S.Ct. at 1964. To the contrary, all the Rules require is that the plaintiff “give the defendant fair notice of what the [plaintiffs] claim is and the grounds on which it rests.” Id. (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (internal quotation marks omitted). 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.” Id. The complaint must contain sufficient factual allegations “to raise a right to relief above the speculative level.” Id. at 1965. When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir.1990). In determining whether amendment would be futile, a court examines whether the complaint could" }, { "docid": "13533373", "title": "", "text": "limit the range of the statute, however, must be tempered by the insight that in some instances business-related fraud can constitute a pattern of racketeering activity under RICO.” Barticheck v. Fidelity Union Bank/First National State, et al., 832 F.3d 36, 40 (3d Cir.1987). See also Moravian Development Corp. v. Dow Chemical Co., 651 F.Supp. 144, 146 (E.D.Pa.1986) in which the court stated that “nothing in the statute limits its application to organized crime or to a particular cause of action. 18 U.S.C. § 1961; Sedima [supra ].... Moreover, plaintiff may not succeed on its RICO claim unless it proves its underlying allegation of fraud. Thus, the complaint goes beyond the limits of a traditional product liability case.” Such is the case presently before me. To state a claim under civil RICO, plaintiffs must allege that defendants are (1) conducting (2) an enterprise (3) through a pattern (4) of racketeering activity (5) that has caused injury to plaintiff’s business or property. Sedima, SPRL v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); Keystone Insurance Co., supra at 1128, citing Marshall-Silver Construction Co. v. Mendel, 835 F.2d 63, 65 (3d Cir.1987). See also Saporito v. Combustion Engineering Inc., 843 F.2d 666, 673 (3d Cir.1988). All elements of a RICO claim must be plead in accordance with the liberal notice provisions of Fed.R.Civ.P. 8. See Seville, supra at 790. Under Rule 8: A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief and (3) a demand for judgment for relief the pleader seeks. Relief in the alternative or of several different types is allowed. Rule 8(e)(1) further provides that: Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading ... are required. The limited requirements for pleadings made under Federal Rules of Civil Procedure reflects the view that the function of federal pleadings is to provide" }, { "docid": "22832145", "title": "", "text": "are: (1) whether the district court abused its discretion in dismissing appellants’ amended complaint with prejudice for failure to comply with rules 8(a) and 8(e); and (2) whether the district court abused its discretion in dismissing appellants’ amended complaint with prejudice for failure to comply with rules 12(b)(6), 21, 4(a) and Local Rule 23(g). III. Rule 8(a) states: “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or a third party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief to which he deems himself entitled.” [Emphasis added.] Rule 8(e) provides: “(1) Each averment of a pleading shall be simple, concise, and direct.\" [Emphasis added.] A complaint which fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to rule 41(b). Schmidt v. Herrmann, 614 F.2d 1221 (9th Cir. 1980); Von Poppenheim v. Portland Boxing and Wrestling Comm., 442 F.2d 1047 (9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972); Corcoran v. Yorty, 347 F.2d 222 (9th Cir.), cert. denied, 382 U.S. 966, 86 S.Ct. 458, 15 L.Ed.2d 370 (1965); Agnew v. Moody, 330 F.2d 868 (9th Cir.), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964). In reviewing the propriety of dismissal under rule 41(b) we should look to see whether the district court might have first adopted other less drastic alternatives. Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970). These less drastic alternatives include allowing further amended complaints, allowing additional time, or insisting that appellant associate experienced counsel. “Courts have been reluctant to impose the ultimate sanction of dismissal with prejudice” because rule 41(b) is a harsh remedy, and “sometimes the fault lies with the attorney rather than the litigant.”" }, { "docid": "21880484", "title": "", "text": "(2d Cir.1989), cert denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989). The Court is mindful that under the modern rules of pleading, a plaintiff need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and that “[a]ll pleadings shall be so construed as to do substantial justice”. Fed.R.Civ.P. 8(f). In addition, because the plaintiffs are proceeding without an attorney, the Court must give wide latitude to the papers fled by the pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (pro se papers are to be held “to less stringent standards than formal pleadings drafted by lawyers”). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of his lack of legal training. Seagrave Corp. v. Vista Resources, Inc., 710 F.2d 95 (2d Cir.1983). However, the Court is also aware that “ ‘self representation does not exempt a party from compliance with relevant rules of procedural and substantive law.’ ” Id. (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981)). The Aaron defendants, the Midland Marine defendants and the Shapiro defendants all move to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6), 9(b), and 12(b)(1). From this point forward these three groups of defendants will be referred to collectively as the “defendants.” Federal jurisdiction in this action is based on alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. The defendants assert that: 1) the Amended Complaint fails to state a RICO claim upon which relief can be granted; 2) the Amended Complaint fails to plead fraud with particularity; and 3) in the absence of the RICO claim," }, { "docid": "19919267", "title": "", "text": "in favor of the non-moving party. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995). A 12(b)(6) dismissal will not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The court is not required to “conjure up unpled allegations” to save a complaint. Systems Contractors Corporation v. Orleans Parish School Board, et al., 1996 WL 547414,*1, (E.D.La.1996) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988)). The court also notes that under the Federal Rules of Civil Procedure, litigants are not required to plead each and every fact upon which they base their claims. Rule 8 of the Federal Rules reads in part as follows: (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1)a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it; (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. This form of pleading, known as “notice pleading,” does not require a lengthy litany of facts. In fact, the Federal Rule goes on to require litigants to keep the aver-ments in their pleadings “simple, concise, and direct.” Fed.R.Civ.Pro. 8. B. Analysis 1. The Stubbs’s ADDCA Claims The court correctly dismissed all claims made by Kathleen Stubbs under the ADD-CA. Kathleen Stubbs was not a party to the Sales and Service Agreements (“SSAs”) under which plaintiffs argue the claims arise. The court now extends this holding to any individual claims brought by Kathleen Stubbs under the ADDCA against CFC. The court’s decision to dismiss the" }, { "docid": "2428184", "title": "", "text": "emotional distress arising from Dr. Butler’s misdiagnosis. The complaint’s punitive damages (sixth) cause of action alleges Dr. Butler’s conduct was intentional, willful and malicious to entitle Ms. Wilkerson to punitive damages. The complaint’s prayer seeks compensatory damages for medical costs and emotional distress damages. On May 25, 2005, Dr. Butler filed his F.R.Civ.P. 12(b)(1) motion to dismiss the complaint for failure to allege this Court’s subject matter jurisdiction and F.R.Civ.P. 12(f) motion to strike all but the complaint’s medical malpractice (first) cause of action. Ms. Wilkerson failed to respond to Dr. Butler’s motions. DISCUSSION Lack Of Jurisdiction F.R.Civ.P. 8 establishes general pleading rules and provides in pertinent part: (a) Claims for Relief. A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise and direct. This Court’s Local Rule 8-204 addresses allegations of jurisdiction and provides: When an affirmative allegation of jurisdiction is required pursuant to Fed. R.Civ.P. 8(a)(1), it (I) shall appear as the first allegation of any complaint ..., (ii) shall be styled “Jurisdiction,” (iii) shall state the claimed statutory or other basis of federal jurisdiction, and (iv) shall state the facts supporting such jurisdictional claim. Dr. Butler contends the complaint should be dismissed under F.R.Civ.P. 12(b)(1) which allows a motion to dismiss for lack of subject matter jurisdiction. Fundamentally, federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Limits on federal jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). A plaintiff bears the burden to" }, { "docid": "123920", "title": "", "text": "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,-000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State, and foreign states or citizens or subject thereof; and (3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties. . 28 U.S.C. § 2201. In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, 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. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. . 28 U.S.C. § 1343. The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (3) To redress the deprivation, under-color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . Rule 8, F.R.Civ.P. (a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of pleading shall be simple, concise, and direct. No technical" }, { "docid": "123921", "title": "", "text": "deprivation, under-color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . Rule 8, F.R.Civ.P. (a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. . Bule 8, F.B.Civ.P. (e)(1)." }, { "docid": "16500847", "title": "", "text": "STEWART, District Judge. The plaintiff filed this action claiming damages by reason of a breach of contract and of warranty on the part of the defendant. The case is before the court on defendant’s motion for a more definite complaint under Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C. The requirements with respect to particularity of a complaint under the Federal Rules of Civil Procedure are clear. Rules 8(a) and 8(e) govern claims for relief and provide, in part, as follows: “(a) Claims for Relief. A pleading which sets forth a claim for relief, * * * shall contain * * * (2) a short and plain statement of the claim showing that the pleader is entitled to relief * * *. “(e) Pleading To Be Concise and Direct; * * * (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. * * * ” A complaint which meets these requirements is sufficient except where, as provided in Rule 12(e), the pleading “ * * * is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading * * * ”. The theory of pleading under the Federal Rules of Civil Procedure has been stated by the courts on many occasions. The United States Court of Appeals for the Third Circuit, in Continental Collieries, Inc., v. Shober, Jr., 3 Cir., 1942, 130 F.2d 631, at page 635, expressed it as follows: “Under the Federal Rules of Civil Procedure the function of the complaint is to afford fair notice to the adversary of the nature and basis of the claim asserted and a general indication of the type of litigation involved. * * * Technicalities are no longer of their former importance, and a short statement which fairly gives notice of the nature of the claim is a sufficient compliance with the requirements of the rules.” This case has been followed frequently by the courts and recently in the case of United States v. Kornfeld, M.D.Pa.1950, 9 F.R.D. 675. It" }, { "docid": "4608687", "title": "", "text": "the defendants. It should be noted that the first three complaints did not contain a request for class certification. Discussion A. Rule 8 In pertinent part; Rule 8 provides that a pleading shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and that “each averment of a pleading shall be simple, concise, and direct.” Fed.R.Civ.Proc. 8(e)(1). The averments should be plain in order to give the adverse party fair notice of the claims asserted and they should be short because “[ujnneeessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)). Where a complaint .fails to meet the requirements of Rule 8, a court may strike those portions that are redundant or immaterial pursuant to Fed.R.Civ.P. 12(f), or it may dismiss the complaint, either granting leave to amend under Fed.R.Civ.P. 15(a) or dismissing outright. Salahuddin, 861 F.2d at 42. The court has the discretion to deny leave to amend “and its decision is not subject to review on appeal except for abuse of discretion....” Id. (quoting 3 Moore’s Federal Practice ¶ 15.08[4] at 15-64 (2d ed. 1987)). However, the Second Circuit emphasized that leave to amend “shall be freely given when justice so requires.” Id. at 42. In this vein and given the preference for adjudication of cases on their merits, the Second Circuit has stated it will generally be an abuse of discretion to deny leave to amend when dismissing a nonfrivolous original complaint on the sole ground that it does not constitute the short and plain statement required by Rule 8. Id. at 42. Notwithstanding, “where leave to amend has been given and the successive pleadings remain prolix,” the court could dismiss the complaint without leave to amend. Id., see Prezzi v. Schelter, 469 F.2d 691 (2d Cir.1972) (per" }, { "docid": "23483781", "title": "", "text": "a matter of state law, the plaintiffs were not entitled to recover. For the foregoing reasons, as well as those enunciated in the district court’s opinions, the entry of summary judgment is Affirmed. . The plaintiffs do not contend the complaint expressly alleged a cause of action for breach of contract. In the first paragraph of the complaint, the plaintiffs specifically enumerated the theories of recovery relied upon. While those theories included causes of action under state statute and common law, none included a cause of action for the breach of the franchise agreement. The plaintiffs’ argument is limited to the assertion that the complaint nevertheless alleged sufficient facts to notify the defendant that the lawsuit might encompass a cause of action for breach of contract. . In pertinent part, Fed.R.Civ.P. 8 provides: (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain S}! % tfc * # (2) a short and plain statement of the claim showing that the pleader is entitled to relief, (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. . As a final matter, the plaintiffs argue that their answers to the following interrogatory substantiates their contention that the claim was based on breach of contract: Please identify each and every act of the defendant contrary to the terms and conditions of the White Hen Pantry Franchise Agreement which was done subsequent to the alleged inducement. In response, the plaintiffs listed numerous grievances regarding the franchise relationship. Although answers to interrogatories are directly relevant to the disposition of a motion for summary judgment, Fed.R.Civ.P. 56(c), the district court did not err in declining to consider the plaintiffs’ answers here. The interrogatory was asked to clarify count three of the complaint. That claim was based on state antitrust statutes and had been voluntarily dis missed by the" } ]

[ { "docid": "22777146", "title": "", "text": "U. S. 244, and Rev. Stats., § 4901, protects by its penalties the inventor, but neither one contemplates the use of such a \"License Notice” as we have here and whatevér validity it has must be derived from the general and not from the patent law. The extent to which the use of the patented machine may validly be restricted to specific supplies or otherwise by special contract between the owner of a patent and the purchaser or licensee is a question outside the patent law' and with it we are not here concerned. Keeler v. Standard Folding Bed Co., 157 U. S. 659. The inquiry presented by this record, as we have stated it, is important and fundamental, and it requires that we shall determine the meaning of Congress when in Rev. Stats., § 4884, it provided that \"Every patent shall contain ... a grant to the patentee, his heirs or assigns, for the term'of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States, and the Territories thereof.” We are concerned only,with the right to \"use,” authorized to be granted by this statute, for it is under warrant of this right only that the plaintiff can and does claim validity for its warning notice. The words used in the statute are few, simple and familiar, they have not been changed substantially since they were first used in the Act of 1790, c. 7, 1 Stat. 109; Bauer v. O’Donnell, 229 U. S. 1, 9, and their meaning would seem not to be doubtfpl if we can avoid reading into them that which they really do not contain. In interpreting this language of the statute it will be of -service to keep in mind three rules long established by this court, applicable to the patent law and to the construction of patents, viz: 1st. The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification. These so mark where the progress claimed by the patent begins and" } ]

[ { "docid": "21282541", "title": "", "text": "Corp. (its model 4010). By way of its amended answer, defendant denied that it had possession of sufficient information concerning the nature and extent of the “alleged infringement,” but did admit purchasing systems from each of the above-listed corporations except Milgo Electronics Corp. It is hornbook law that the claims of a patent set forth the formal definitions of the invention and must be looked to in determining if there has been infringement. See Strumskis v. United States, 200 Ct. Cl. 668, 474 F. 2d 623 (1973), cert. denied, 414 U.S. 1067. However, while a claim cannot be limited or expanded to give a patentee something other than what is claimed, courts are not confined to the. language of the claims in interpreting their meanings. Young v. United States, 204 Ct. Cl. 867, 179 USPQ 801, cert. denied, 419 U.S. 1002 (1974). Indeed, it is necessary, in construing the meaning of claims, to resort to the patent specification, its drawings and its file wrapper. Autogiro Co. v. United States, 181 Ct. Cl. 55, 384 F. 2d 391, 155 USPQ 697 (1967). At the same time, claim interpretation should be done on a reasoned basis to avoid unjust results. Emery Industries, Inc. v. Schumann, 111 F. 2d 209, 45 USPQ 12 (7th Cir. 1940). With these 'guidelines and teachings in mind, we now consider whether plaintiff has shown an infringement of any of the claims at bar. Initially, it is important to point out that the parties have stipulated that drawing X500C, which accompanies finding 49, is representative of the problem check systems incorporated in the accused computers supplied to the Government. Defendant argues that the claims do not read on the accused representative system because: (1) they should be interpreted to cover devices which read the signals at the output of the integrator; (2) the accused system does not disconnect the output of the integrator’s operational amplifier from the rest of the closed loop as taught by the McCoy patent; (3) the accused system disconnects the summing junction of the integrator from the input of the integrator amplifier during problem" }, { "docid": "22720440", "title": "", "text": "Hogg v. Emerson, 47 U.S. (6 How.) 437, 482, 12 L.Ed. 505 (1848) (the specification is a “component part of the patent” and “is as much to be considered with the [letters patent] in construing them, as any paper referred to in a deed or other contract”); Bates v. Coe, 98 U.S. 31, 38, 25 L.Ed. 68 (1878) (“in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive portions of the specification to aid in solving the doubt or in ascertaining the true intent and meaning of the language employed in the claims”); White v. Dunbar, 119 U.S. 47, 51, 7 S.Ct. 72, 30 L.Ed. 303 (1886) (specification is appropriately resorted to “for the purpose of better understanding the meaning of the claim”); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 217, 61 S.Ct. 235, 85 L.Ed. 132 (1940) (“The claims of a patent are always to be read or interpreted in light of its specifications.”); United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966) (“[I]t is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.”). The importance of the specification in claim construction derives from its statutory role. The close kinship between the written description and the claims is enforced by the statutory requirement that the specification describe the claimed invention in “full, clear, concise, and exact terms.” 35 U.S.C. § 112, para. 1; see Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001) (“The claims are directed to the invention that is described in the specification; they do not have meaning removed from the context from which they arose.”); see also Markman v. Westview Instruments, Inc., 517 U.S. 370, 389, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (“[A claim] term can be defined only in a way that comports with the instrument as a whole.”). In light of the statutory directive that the inventor provide a “full” and “exact” description of the claimed invention, the" }, { "docid": "22036809", "title": "", "text": "and a transition section disposed between the first shaft section and the second shaft section, the transition section including a transition member comprising a metallic element of gradually diminished dimension, the transition member extending adjacent to the proximal guide wire lumen opening, and the transition member having gradually decreasing rigidity in the distal direction to provide a relatively smooth transition between the first shaft section and the second shaft section. SciMed argues at length that in construing the claims based on the written description, the district court has committed one of the cardinal sins of patent law— reading a limitation from the written description into the claims. See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186, 48 USPQ2d 1001, 1005 (Fed.Cir.1998). But that is not an accurate characterization of what the district court did. Instead, the district court properly followed the invocation that “[cjlaims must be read in view of the specification, of which they are a part.” Markman v. Westview Instruments, 52 F.3d 967, 979- 980, 34 USPQ2d 1321, 1329 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); see also United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572, 148 USPQ 479, 482 (1966) (“[C]laims are to be construed in light of the specifications and both are to be read with a view to ascertaining the invention.”); Slimfold Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116, 1 USPQ2d 1563, 1566 (Fed.Cir.1987) (“Claims are not interpreted in a vacuum, but are part of and are read in light of the specification.”). As this court has recently explained, “[o]ne purpose for examining the specification is to determine if the patentee has limited the scope of the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882, 56 USPQ2d 1836, 1839 (Fed.Cir.2000). Where the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough" }, { "docid": "15980609", "title": "", "text": "a narrow azimuth beam. The device has receiving circuits for reception of return pulses from a target object which include pulse compression circuits, as described in the findings, for separation of the direct and ground-reflected return pulses. An association control and range accumulator are responsive to the transmitting and receiving circuits so as to detect target range while a height counter detects time difference in response to the direct and ground-reflected return pulses. Time difference and target range are fed as digital signals to a digital computer, along with a signal representative of own aircraft altitude, and the computer calculates target height, which is suitably displayed for use by a computer indicator group. The accused device operates automatically and requires no manual operations. In determining the question of infringement, it has long been established that the claims of a patent define the metes and bounds of an invention and must be looked to in determining if there has been infringement. Strumskis v. United States, 200 Ct.Cl. 668, 474 F.2d 623, cert. denied, 414 U.S. 1067 (1973); Badowski v. United States, 143 Ct.Cl. 23, 27, 164 F.Supp. 252, 255 (1958). However, the scope and breadth of the claimed subject matter must necessarily be established before the question of infringement can be resolved. Tate Engineering, Inc. v. United States, 201 Ct.Cl. 711, 477 F.2d 1336 (1973). It is a corollary of the above that while the specification and drawings of a patent, may lend aid in interpreting the claims, Autogiro Co. of America v. United States, 181 Ct.Cl. 55, 384 F.2d 391 (1967), rehearing denied, 184 Ct.Cl. 801 (1968), the claims of a patent are not limited in scope to the best mode for practicing the invention or to any particular mode for practicing the invention that is described in the specification or drawings. National Dairy Products Corp. v. Swiss Colony, Inc., 176 USPQ 405, 419 (W.D. Wis. 1972). With these guidelines in mind, and having considered the file history of the Richter patent application as well as the evidence presented at trial that was not before the Patent Office, it is" }, { "docid": "22660140", "title": "", "text": "skilled in the art would interpret the claims, may also be used.” Fonar Corp. v. Johnson & Johnson, 821 F.2d 627, 631 (Fed.Cir.1987). In construing the claims in this case, all these sources, as well as extrinsic evidence in the form of West-view’s sales literature, were included in the record of the trial court proceedings. Claims must be read in view of the specification, of which they are a part. Autogiro, 384 F.2d at 397, 155 USPQ at 702; see Winans v. Denmead, 56 U.S. (15 How.) at 338; Bates v. Coe, 98 U.S. at 38-39. The specification contains a -written description of the invention that must enable one of ordinary skill in the art to make and use the invention. For claim construction purposes, the description may act as a sort of dictionary, which explains the invention and may define terms used in the claims. See In re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 621 (CCPA 1970) (“Occasionally the disclosure will serve as a dictionary for terms appearing in the claims, and in such instances the disclosure may be used in interpreting the coverage of the claim”)- As we have often stated, a patentee is free to be his own lexicographer. Autogiro, 384 F.2d at 397, 155 USPQ at 702. The caveat is that any special definition given to a word must be clearly defined in the specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388, 21 USPQ2d 1383, 1386 (Fed.Cir.1992). The written description part of the specification itself does not delimit the right to exclude. That is the function and purpose of claims. To construe claim language, the court should also consider the patent’s prosecution history, if it is in evidence. Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 701, 15 L.Ed.2d 545, 148 USPQ 459, 473 (1966). This “undisputed public record” of proceedings in the Patent and Trademark Office is of primary significance in understanding the claims. See Autogiro, 384 F.2d at 397, 155 USPQ at 702 (the “file wrapper” is “part[] of the patent”). The court has broad power" }, { "docid": "22117045", "title": "", "text": "v. United States, 558 F.2d 1000, 1007-08, 214 Ct.Cl. 672, 685-86, 195 USPQ 261, 267 (1977): [E]ach and every clause of a claimed invention is considered to be material and essential. See Strumskis v. United States, 474 F.2d 623, 627-28, 200 Ct.Cl. 668, 676, cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973). Accordingly, the absence of even one element and its equivalent function of a claimed invention places the accused device outside the coverage of the claims. Strumskis v. United States, 175 USPQ 243, 246 (Ct.Cl.Tr.Div.1972), adopted and aff'd per curiam, 474 F.2d 623, 627-28, 200 Ct.Cl. 668, 675-76, 177 USPQ 78, cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973): All the elements which make up the combination defined by claim 5 are considered to be material and necessary. Fay v. Cordesman, 109 U.S. 408, 420, 3 S.Ct. 236, 27 L.Ed. 979 (1883). Accordingly, the omission of any one of the elements making up the claimed combination avoids all charges of infringement. This last principle was announced by the Supreme Court, at least as early as 1842, in the case of Prouty v. Draper, 41 U.S. (16 Pet.) 336, 10 L.Ed. 985, and has been consistently followed by this court. Autogiro Co. v. United States, 384 F.2d 391, 403, 181 Ct.Cl. 55, 72, 155 USPQ 697, 707 (1967) (specifically analyzing a claim with means-plus-function elements): For there to be infringement, it is necessary that every element or its substantial equivalent be found in the accused structures. E.g., McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 145 USPQ 6 (10th Cir.1965), cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851, 148 USPQ 772 (1966); Texas Co. v. Anderson-Prichard Refining Corp., 122 F.2d 829, 50 USPQ 600 (10th Cir.1941); Alex Lee Wallau, Inc. v. J. W. Landenberger & Co., 121 F.Supp. 555, 101 USPQ 383 (S.D.N.Y.1954); Vollink v. Holland Celery Planter Co., 33 F.Supp. 203 (W.D.Mich.1938), aff'd 112 F.2d 576 (6th Cir.1940). See also Pacific Submarine & Earthquake Proof Wall Co. v. United States, 19 Ct.Cl. 234, 242-43 (1884). The" }, { "docid": "22407245", "title": "", "text": "Co. v. Coe, 324 U.S. 370, 385— 386 [65 S.Ct. 741, 748, 89 L.Ed. 1006] [64 USPQ 525, 532] (1945) (dissent); General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 368-372 [58 S.Ct. 899, 901-903, 82 L.Ed. 1402] [37 USPQ 466,468-70] (1938)), the specifications must in this instance be read to limit the claims. Hailes v. Van Wormer, 20 Wall. 353, 372, 22 L.Ed. 241 (1873); Dominion Magnesium Ltd. v. United States, 320 F.2d 388, 394 [138 USPQ 306, 310-11] (1963). The painstaking detail of plaintiff’s description indicates that the specifications reveal, not a mere example of his invention, but rather the precise nature of the claimed discovery. Thus, plaintiff’s claim must be limited to what appears in the description. Hailes v. Van Wormer, supra, 20 Wall, at 372 [22 L.Ed. 241] * * *. * * * [Emphasis supplied.] Again in Roberts Dairy v. United States the court referred to the specification to provide additional limitations to the claim and thus, preserve its validity: In Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510, 37 S.Ct. 416, 418, 61 L.Ed. 871 (1917), the Supreme Court stated that “The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification.” More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49 [86 S.Ct. 708, 713, 15 L.Ed.2d 572] [148 USPQ 479, 482] (1966), when it stated: “it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” See also, Tate Engineering, Inc. v. United States, [193 Ct.Cl. 1088] 477 F.2d 1336, 1340 [178 USPQ 365] (1973). Thus, a patentee is bound by his specification in interpreting his patent claims even when his specification requires a narrower interpretation of the claims than the patentee desires. Texsteam Corp. v. Blanchard, 352 F.2d 983, 147 USPQ 431 (5th Cir.1965), cert. denied, 387 U.S. 936 [87 S.Ct. 2064, 18 L.Ed.2d 1000] [153 USPQ 888]" }, { "docid": "22877250", "title": "", "text": "the ’080 patent, a question of law that we review de novo. Markman v. Westview Instruments, Inc., 52 F.3d 967, 978-80, 34 USPQ2d 1321, 1329 (Fed.Cir.1995) (in banc). A. Claim Construction Before turning to the parties’ contentions about the proper construction of the asserted claim, it is important to review some basic principles of claim construction. First, and most importantly, the language of the claim defines the scope of the protected invention. Yale Lock Mfg. Co. v. Greenleaf, 117 U.S. 554, 559, 6 S.Ct. 846, 847, 29 L.Ed. 952 (1886) (“The scope of letters-patent must be limited to the invention covered by the claim, and while the claim may be illustrated it cannot be enlarged by language used in other parts of the specification.”); Autogiro Co. of Am. v. United States, 384 F.2d 391, 396, 155 USPQ 697, 701 (Ct.Cl.1967) (“Courts can neither broaden nor narrow the claims to give the patentee something different than what he set forth [in the claim].”). See also Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 419, 28 S.Ct. 748, 751, 52 L.Ed. 1122 (1908); Cimiotti Unhairing Co. v. American Fur Ref. Co., 198 U.S. 399, 410, 25 S.Ct. 697, 702, 49 L.Ed. 1100 (1905). Accordingly, “resort must be had in the first instance to the words of the claim,” words to which we ascribe their ordinary meaning unless it appears the inventor used them otherwise. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759, 221 USPQ 473, 477 (Fed.Cir.1984). Second, it is equally “fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 713, 15 L.Ed.2d 572 (1966). See also Markman, 52 F.3d at 978-80, 34 USPQ2d at 1329-30 (“Claims must be read in view of the specification, of which they are a part.... For claim construction purposes, the [specification’s] description may act as a sort of dictionary, which explains the invention and may define terms used in the claims.”). We" }, { "docid": "22412101", "title": "", "text": "of the claims, they are not, however, confined to the language of the claims in interpreting their meaning. Courts occasionally have confined themselves to the language of the claims. When claims have been found clear and unambiguous, courts have not gone beyond them to determine their content. Keystone Bridge Co. v. Phoenix Iron Co., supra, at 278; Borg-Warenr Corp. v. Mall Tool Co., 217 F. 2d 850 (7th Cir. 1954); Zonolite Co. and Insulating Concrete Corp. v. United States, 138 Ct. Cl. 114, 149 F. Snpp. 953 (1957). Courts have also held that the fact that claims are free from ambiguity is no reason for limiting the material which may be inspected for the purpose of better understanding the meaning of claims. Warner & Swasey Co. v. Universal Marion Corp., supra, at 737. We find both approaches to be hypothetical. Claims cannot be clear and unambiguous on their face. A comparison must exist. The lucidity of a claim is determined in light of what ideas it is trying to convey. Only by knowing the idea, can one decide how much shadow encumbers the reality. The very nature of words would make a clear and unambiguous claim a rare occurrence. Writing on statutory interpretation, Justice Frankfurther commented on the inexactitude of words: They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision. If individual words are inexact symbols, with shifting variables, their configuration can hardly achieve invariant meaning or assured definiteness. Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 528 (1947). See, also, A Re-Evaluation of the Use of Legislative History in the Federal Courts, 52 Col. L. Rev. 125 (1952). The inability of words to achieve precision is none the less extant with patent claims than it is with statutes. The problem is likely more acute with claims. Statutes by definition are the reduction of ideas to print. Since the ability to verbalize is crucial in statutory enactment, legislators develop a facility with words not equally developed in inventors. An invention" }, { "docid": "22036810", "title": "", "text": "517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); see also United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572, 148 USPQ 479, 482 (1966) (“[C]laims are to be construed in light of the specifications and both are to be read with a view to ascertaining the invention.”); Slimfold Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116, 1 USPQ2d 1563, 1566 (Fed.Cir.1987) (“Claims are not interpreted in a vacuum, but are part of and are read in light of the specification.”). As this court has recently explained, “[o]ne purpose for examining the specification is to determine if the patentee has limited the scope of the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882, 56 USPQ2d 1836, 1839 (Fed.Cir.2000). Where the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question. Thus, in the Watts case, the claim in dispute recited pipe joints that could be “sealingly connected.” The court noted that the specification described only one method to achieve the sealing connection, that is, to misalign the taper angles of the respective threads of the joined pipes. The court pointed out that the specification “actually limits the invention to structures that utilize misaligned taper angles, stating that ‘the present invention utilizes [the varying taper angle] feature.’ ” 232 F.3d at 883, 56 USPQ2d at 1840. In light of that statement, the court construed the claim language as limited to connections effected by misaligned taper angles. Another case in which the claims were given a narrow construction in light of the written description is Wang Labs., Inc. v. America Online, Inc., 197 F.3d 1377, 53 USPQ2d 1161 (Fed.Cir.1999). In that case, the parties agreed that in general usage the claim term “frame” could be applied both to “bit-mapped display systems” and to “character-based systems.” The court, however, construed the claims" }, { "docid": "22660255", "title": "", "text": "U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). In Autogiro Co. of America v. United States, 384 F.2d 391, 397, 181 Ct.Cl. 55, 155 USPQ 697, 702 (1967) one of our predecessor courts remarked: “The very nature of words would make a clear and unambiguous [patent] claim a rare occurrence.” Justice Story explained the roles of judge and jury with respect to the meaning of “words of art, and technical phrases” in patent documents: In respect to another objection, viz. that the court was bound to state what in point of law the invention claimed by the paten-tee was, I agree, that this is generally true, so far as the construction of the words of the patent, and specification is concerned. But then this doctrine is to be received with qualifications, and sub modo, as the very opinion of Mr. Baron Parke, cited by the counsel, in the case of Neilson v. Har-ford, Webster Pat.Cas. 295, 370,[ ] abundantly shows; and the jury are to judge of the meaning of words of art, and technical phrases, in commerce and manufactures, and of the surrounding circumstances, which may materially affect, enlarge or control the meaning of the words of the patent and specification. Washburn v. Gould, 29 F.Cas. 312, 325 (C.C.D.Mass.1844) (emphasis added). Justice Story recognized that the meaning of words of art may depend on “the surrounding circumstances.” Indeed, the Federal Circuit recognized that words do not always have the same meaning when they are adapted to new uses. See Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 USPQ 1137, 1140 (Fed.Cir.1983) (patentee may be his own lexicographer). Inventors’ usages of words to describe their inventions, and the meaning thereby conveyed to persons skilled in the field, are questions of fact, not matters of law, in patent documents as in other written instruments. Disputes concerning the meaning and usage of technical terms and words of art arise in many areas of law. These disputes are resolved by the triers of fact, whether judge or jury, in their established roles in the adjudicatory process. For" }, { "docid": "8857403", "title": "", "text": "More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 713, 15 L.Ed.2d 572, 148 USPQ 479, 482 (1966), when it stated: “it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” See also, Tate Engineering, Inc. v. United States, 477 F.2d 1336, 1340, 201 Ct.Cl. 711, 719 (1973). Thus, a patentee is bound by his specification in interpreting his patent claims even when his specification requires a narrower interpretation of the claims than the patentee desires. Texsteam Corp. v. Blanchard, 352 F.2d 983, 147 USPQ 431 (5th Cir. 1965), cert. denied, 387 U.S. 936, 87 S.Ct. 2064, 18 L.Ed.2d 1000 (1967). In the present case, although the pasteurization step of claim 1 of the ’872 patent in no way limits the manner in which it is to be carried out, the patent specification indicates that the maximum pasteurizing temperature is not to be achieved by contact of the egg product with hot metallic surfaces. Specifically, the patent, by way of the language found at column 3, lines 33-44, clearly limits the way in which pasteurization is to be carried out, in the following manner: The present novel pasteurizing process rests upon the discovery that additives are not necessary to raise the coagulating temperature of albumen if the egg material is first reduced to a state of fine dispersion and the maximum pasteurizing temperature is not applied by hot metallic surfaces. When the egg material is reduced to a colloidal or homogenous state, it may be raised to a sufficient temperature for a sufficient time by a vaporous heating medium such as steam to kill or render substantially impotent all pathogenic organisms and undesirable bacteria without impairing the functional properties of any part of the egg material. Further evidence of the patentees’ concern that application of the pasteurization heat by hot metallic plate contact with the egg product would result in an alteration of the natural characteristics of the egg is found" }, { "docid": "21282540", "title": "", "text": "previously noted, because of settlements reached in suits brought by plaintiff against two of the defendant’s suppliers, the validity of claims 7,8 and 13 is no longer contested by the Government. Defendant agrees that the validity of claims 7, 8 and 13 of the McCoy patent was fully litigated in Reeves Instrument Corp. v. Beckman Instruments, Inc., supra. Infringement Plaintiff urges that the inventions covered by claims 7, 8 and 13 of the McCoy patent have been used or manufactured by or for defendant without license from plaintiff or lawful right. Plaintiff’s petition states that analog computers manufactured for defendant by the following companies embody the invention as described and covered by the claims of the McCoy patent: (a) Beckman Instruments, Inc. (its 1100, 2100 and 2200 series computers); (b) Electronic Associates, Inc. (its models 16-231R, 16-221R, 680 and 8800, as well as some late versions of 16-24D, 16-31R and 16-131R); (c) Applied Dynamics, Inc. (its model AD-2-64PBC); (d) Comcor, Inc., a subsidiary of Astrodata, Inc.; (e) GPS Instrument Co., Inc.; and (f) Milgo Electronics Corp. (its model 4010). By way of its amended answer, defendant denied that it had possession of sufficient information concerning the nature and extent of the “alleged infringement,” but did admit purchasing systems from each of the above-listed corporations except Milgo Electronics Corp. It is hornbook law that the claims of a patent set forth the formal definitions of the invention and must be looked to in determining if there has been infringement. See Strumskis v. United States, 200 Ct. Cl. 668, 474 F. 2d 623 (1973), cert. denied, 414 U.S. 1067. However, while a claim cannot be limited or expanded to give a patentee something other than what is claimed, courts are not confined to the. language of the claims in interpreting their meanings. Young v. United States, 204 Ct. Cl. 867, 179 USPQ 801, cert. denied, 419 U.S. 1002 (1974). Indeed, it is necessary, in construing the meaning of claims, to resort to the patent specification, its drawings and its file wrapper. Autogiro Co. v. United States, 181 Ct. Cl. 55, 384 F." }, { "docid": "18188890", "title": "", "text": "determination to be made is whether there is literal infringement of the patent. In mating this determination, the words of the claim in the patent must be compared with the accused device. If the accused device is clearly within the claim, then infringement does exist. Graver Mfg. Co. v. Linde Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, [85 USPQ 328] (1950). The second test is the application of the doctrine of equivalents. The Supreme Court explained this doctrine in Graver, supra. Similarly, the Eighth Circuit stated in Farmhand, Inc. v. Craven, 455 E. 2d 609, 610, 173 USPQ 1, 2 (CA 8 1972): Assuming arguendo, no literal infringement of plaintiff’s claim 10(h), defendant still cannot prevail. The trail court in finding no literal infringement failed to discuss the next and necessary question— whether the two devices are basically equivalent in means, operation and result. The United States Court of Claims, in Tate Engineering v. United States, 477 F. 2d 1336, 1340, 178 USPQ 365 (Ct.Cl. 1973), adopted Trial Judge Joseph Colaianni’s opinion, in Tate Engineering v. United States, 175 USPQ 115, 118 (Ct.Cl. Trial Div. 1972), in which he applied the doctrine of equivalents: In considering the question of infringement, it is necessary to initially establish the scope and breadth of the patent claims allegedly violated. In this particular instance, it is therefore necessary to establish the scope of claims 5 and 6 of the Graham patent so as to determine if the claims can be “read” on the accused Severn panel. A claim must be read in light of the specification. Seymour v. Osborne, 78 U.S. 516, 547, 11 Wall. 516, 20 L.Ed. 33 (1870); United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed. 2d 572 (1966). Its scope, however, is not limited only to those specific embodiments actually disclosed, but is expanded under the doctrine of equivalents to include embodiments that perform substantially the same function in substantially the same way to produce substantially the same result as the disclosed invention. Graver Tank & Mfg. Co. v. Linde, 339 U.S. 605," }, { "docid": "15516300", "title": "", "text": "the next question requiring attention is whether the claims in suit cover only the joint invention. Defendant contends that the claims in suit not only cover the joint invention, but they cover as well the original Freeman invention. If the former is true, then there is no misjoinder. On the other hand, if the latter is found to be true, there is misjoinder. In any event, in order to properly resolve this issue, it becomes necessary to establish the scope of claims 7 and 8. In Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510 (1917), the Su preme Court stated that: “The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification.” More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49, 148 USPQ 479, 482 (1966), when it stated: “* * * it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” See also Tate Engineering, Inc. v. United States, 201 Ct. Cl. 711, 719, 477 F. 2d 1336, 1340 (1973). The Supreme Court has also stated that “* * * an invention is to be construed not only in light of the claims, but also with reference to the file wrapper or prosecution history in the Patent Office.” Graham v. John Deere Co., 383 U.S. 1, 33, 148 USPQ 459, 473 (1966). This direction has been followed by a number of courts, including: Ellipse Corp. v. Ford Motor Co., 452 F. 2d 163, 171 USPQ 513 (7th Cir. 1971), cert denied, 406 U.S. 948 (1972); Waldon, Inc. v. Alexander Mfg. Co., 423 F. 2d 91, 165 USPQ 46 (5th Cir. 1970). Indeed, this court’s own pronouncement in Autogiro Co. of America v. United States, 181 Ct. Cl. 55, 384 F. 2d 391, 155 USPQ 697 (1967), stresses that the claims of a patent are necessarily construed in connection with the other parts of the patent" }, { "docid": "22412102", "title": "", "text": "can one decide how much shadow encumbers the reality. The very nature of words would make a clear and unambiguous claim a rare occurrence. Writing on statutory interpretation, Justice Frankfurther commented on the inexactitude of words: They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision. If individual words are inexact symbols, with shifting variables, their configuration can hardly achieve invariant meaning or assured definiteness. Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 528 (1947). See, also, A Re-Evaluation of the Use of Legislative History in the Federal Courts, 52 Col. L. Rev. 125 (1952). The inability of words to achieve precision is none the less extant with patent claims than it is with statutes. The problem is likely more acute with claims. Statutes by definition are the reduction of ideas to print. Since the ability to verbalize is crucial in statutory enactment, legislators develop a facility with words not equally developed in inventors. An invention exists most importantly as a tangible structure or a series of drawings. A verbal portrayal is usually an afterthought written to satisfy the requirements of patent law. This conversion of machine to words allows for unintended idea gaps which cannot be satisfactorily filled. Often the in vention is novel and words do not exist to describe it. Tbe dictionary does not always keep abreast of the inventor. It cannot. Things are not made for the sake of words, but words for things. To overcome this lag, patent law allows the inventor to be his own lexicographer. Chicago Steel Foundry Co. v. Burnside Steel Foundry Co., 182 F. 2d 812 (7th Cir. 1943); Stuart Oxygen Co. Ltd. v. Josephian, 162 F. 2d 857 (9th Cir. 1947); Universal Oil Products Co. v. Globe Oil & Refining Co., 137 F. 2d 3 (7th Cir. 1943), aff'd 322 U.S. 471 (1944). Allowing the patentee verbal license only augments the difficulty of understanding the claims. The sanction of new words or hybrids from old ones not only leaves one unsure" }, { "docid": "6540609", "title": "", "text": "vegetable oil, mixing the natural shelled egg and added material, preheating the mixture to approximately 135° F. to make the natural fats in the natural shelled eggs free flowing, reducing the mixture to a state of fine dispersion, heating said dispersion to a pasteurizing temperature of within the range of 150° F. to 170° F. by bringing the same into contact with the plates of a heat exchanger, and holding the dispersion at said temperature to desti’03' substantially all of the pathogenic bacteria contained in the egg product. Finally, claim 5 of the ’487 patent, which, is the only product claim involved in the suit, reads as follows: 5. The product resulting from the process of claim 1. IV. Interpretation of the ’87$ Patent In Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510 (1917), the Supreme Count stated thiat “The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification.” More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49, 148 USPQ 479, 482 (1966), when it stated: “itds fundamental that claims are to be construed in the light of the specification and both are to be read with a view to ascertaining the invention.” See also, Tate Engineering, Inc. v. United States, 201 Ct. Cl. 711, 719, 477 F. 2d 1336, 1340 (1973). Thus, a patentee is bound by his specification in interpreting his patent claims even when his specification requires a narrower interpretation of the claims than the patentee desires. Texsteam Corp. v. Blanchard, 352 F. 2d 983, 147 USPQ 431 (5th Cir. 1965), cert. denied, 387 U.S. 936 (1967). In the present case, although the pasteurization step of claim 1 of the ’872 patent in no way limits the manner in which it is to be carried out, the patent specification indicates that the maximum pasteurizing temperature is not to be achieved by contact of the egg product with hot metallic surfaces. Specifically, the patent, by way of the language found at" }, { "docid": "22117044", "title": "", "text": "S.Ct. 931, 933, 29 L.Ed. 950 (1886); McClain v. Ortmayer, 141 U.S. 419, 425, 12 S.Ct. 76, 78, 35 L.Ed. 800 (1891); Wright v. Yuengling, 155 U.S. 47, 52, 15 S.Ct. 1, 3, 39 L.Ed. 64 (1894); Black Diamond Coal Mining Co. v. Excelsior Coal Co., 156 U.S. 611, 617-18, 15 S.Ct. 482, 484, 39 L.Ed. 553 (1895); Cimiotti Unhairing Co. v. American Fur Ref. Co., 198 U.S. 399, 410, 25 S.Ct. 697, 702, 49 L.Ed. 1100 (1905). In accordance with the Supreme Court precedent, the Court of Claims, whose decisions are binding on this court, South Corp. v. United States, 690 F.2d 1368, 1370-71, 215 USPQ 657, 658 (Fed.Cir.1982), has consistently held: “[E]ach element of a patented combination is considered to be material and essential. Thus, the omission of any one of the elements of the claimed combination avoids infringement.” Interdent Corp. v. United States, 187 USPQ 523, 526 (Ct.Cl.Tr.Div.1975), adopted and aff'd per curiam, 531 F.2d 547, 552, 209 Ct.Cl. 301, 199 USPQ 191 (1976). To the same effect are: Teledyne McCormick Selph v. United States, 558 F.2d 1000, 1007-08, 214 Ct.Cl. 672, 685-86, 195 USPQ 261, 267 (1977): [E]ach and every clause of a claimed invention is considered to be material and essential. See Strumskis v. United States, 474 F.2d 623, 627-28, 200 Ct.Cl. 668, 676, cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973). Accordingly, the absence of even one element and its equivalent function of a claimed invention places the accused device outside the coverage of the claims. Strumskis v. United States, 175 USPQ 243, 246 (Ct.Cl.Tr.Div.1972), adopted and aff'd per curiam, 474 F.2d 623, 627-28, 200 Ct.Cl. 668, 675-76, 177 USPQ 78, cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973): All the elements which make up the combination defined by claim 5 are considered to be material and necessary. Fay v. Cordesman, 109 U.S. 408, 420, 3 S.Ct. 236, 27 L.Ed. 979 (1883). Accordingly, the omission of any one of the elements making up the claimed combination avoids all charges of infringement. This last principle was announced" }, { "docid": "22407246", "title": "", "text": "Co., 243 U.S. 502, 510, 37 S.Ct. 416, 418, 61 L.Ed. 871 (1917), the Supreme Court stated that “The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification.” More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49 [86 S.Ct. 708, 713, 15 L.Ed.2d 572] [148 USPQ 479, 482] (1966), when it stated: “it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” See also, Tate Engineering, Inc. v. United States, [193 Ct.Cl. 1088] 477 F.2d 1336, 1340 [178 USPQ 365] (1973). Thus, a patentee is bound by his specification in interpreting his patent claims even when his specification requires a narrower interpretation of the claims than the patentee desires. Texsteam Corp. v. Blanchard, 352 F.2d 983, 147 USPQ 431 (5th Cir.1965), cert. denied, 387 U.S. 936 [87 S.Ct. 2064, 18 L.Ed.2d 1000] [153 USPQ 888] (1967). Furthermore, this construction of claim 1 is required to distinguish it, as will be more fully discussed hereinafter, from the prior art and to thus avoid invalidity. Calico Scallop Corp. v. Willis Bros., Inc., 458 F.2d 390, 173 USPQ 321 (4th Cir. 1972); Tate Engineering, Inc. v. United States, supra. [Emphasis supplied.] It is clear that there is adequate Court of Claims precedent to support reference to the specification in order to save a claim. These two analytic approaches (majority and minority) would reach different results on the facts of the instant case. As in Decca, despite the breadth of the language of claim 10 standing alone, the specification provides adequate description of the invention to safely conclude that the reference and the invention operate in a substantially different manner and thus reflect different inventions. The specification discloses an extremely flexible control system for a data display device. Data is stored in “frames” corresponding to the visual display frames. The system is capable of randomly accessing both the memory and the display, although neither" }, { "docid": "8857402", "title": "", "text": "vegetable oil, mixing the natural shelled egg and added material, preheating the mixture to approximately 135° F. to make the natural fats in the natural shelled eggs free flowing, reducing the mixture to a state of fine dispersion, heating said dispersion to a pasteurizing temperature of within the range of 150° F. to 170° F. by bringing the same into contact with the plates of a heat exchanger, and holding the dispersion at said temperature to destroy substantially all of the pathogenic bacteria contained in the egg product. Finally, claim 5 of the ’487 patent, which is the only product claim involved in the suit, reads as follows: 5. The product resulting from the process of claim 1. IV. Interpretation of the ’872 Patent In Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510, 37 S.Ct. 416, 418, 61 L.Ed. 871 (1917), the Supreme Court stated that “The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification.” More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 713, 15 L.Ed.2d 572, 148 USPQ 479, 482 (1966), when it stated: “it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” See also, Tate Engineering, Inc. v. United States, 477 F.2d 1336, 1340, 201 Ct.Cl. 711, 719 (1973). Thus, a patentee is bound by his specification in interpreting his patent claims even when his specification requires a narrower interpretation of the claims than the patentee desires. Texsteam Corp. v. Blanchard, 352 F.2d 983, 147 USPQ 431 (5th Cir. 1965), cert. denied, 387 U.S. 936, 87 S.Ct. 2064, 18 L.Ed.2d 1000 (1967). In the present case, although the pasteurization step of claim 1 of the ’872 patent in no way limits the manner in which it is to be carried out, the patent specification indicates that the maximum pasteurizing temperature is not to be achieved by contact" } ]

[ { "docid": "16758382", "title": "", "text": "court ruled, without further opportunity for the parties to be heard, that the takings claim was dismissed. The court, citing Hughes Communications Galaxy, Inc. v. United States, 271 F.3d 1060 (Fed.Cir.2001), opined that, since there was a contract claim, the Government was acting in its commercial capacity and a separate constitutional takings claim could not lie. Stockton, 75 Fed.Cl. at 373-74. That is not a correct understanding of the law. It is true that there is language in earlier cases from this court to the effect that “[i]n general, takings claims do not arise under a government contract because ... the government is acting in its proprietary rather than its sovereign capacity, and because remedies are provided by the contract.” See St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (2008) (citing Hughes, 271 F.3d at 1070). But that language is nothing more than a passing comment about government contract law, and has to be understood in that context. It cannot be understood as precluding a party from alleging in the same complaint two alternative theories for recovery against the Government, for example, one for breach of contract and one for a taking under the Fifth Amendment to the Constitution. That is expressly permitted by the Federal Rules, and the fact that the theories may be inconsistent is of no moment. See Fed.R.Civ.P. 8(d)(3) (“A party may state as many separate claims ... as it has, regardless of consistency.”). On the other hand, it can be understood to mean that, when a case arises in which both a contract and a taking cause of action are pled, the trial court may properly defer the taking issue, as it did here, in favor of first addressing the contract issue. It has long been the policy of the courts to decide cases on non-constitutional grounds when that is available, rather than reach out for the constitutional issue. See Nw. Austin Mun. Util. Dist. No. One v. Holder, — U.S. -, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009). And of course when a plaintiff is awarded recovery for the alleged" } ]

[ { "docid": "13539869", "title": "", "text": "admit of no other reasonable interpretation’” Id. (quoting Merrion at 148, 102 S.Ct. 894). After discussing the Supreme Court’s divided opinion with respect to the application of the doctrine in Winstar, the Federal Circuit decided that: “Based on the reasoning contained in the Winstar opinions, we conclude that the unmistakability doctrine applies in the present case. This conclusion respects the views of the five justices who stated that the application of the doctrine is unrelated to the nature of the underlying contracts. In addition, our conclusion is in harmony with the views of the plurality justices. To be sure, the contracts at issue in the present case may be viewed as risk-shifting agreements, similar to those that the Winstar plurality found not to implicate the unmistakability doctrine.....Importantly, however, the plurality also expressly stated that application of the unmistakability doctrine turns on whether enforcement of the contractual obligation would effectively block the exercise of a sovereign power of the Government [emphasis added].....[T]he assessment at issue in the present case is a general, sovereign act. Although Yankee Atomic seeks money damages, its argument would effectively block the exercise of this sovereign power to tax____” Yankee Atomic at 1579. Thus, the Federal Circuit concluded that the unmistakability doctrine applied to the facts of Yankee Atomic. The court then had to decide “whether the contracts between Yankee Atomic and the Government unmistakably precluded the Government from subsequently exercising its sovereign power to assess a tax.” Id. It concluded that “no such promise existed in the contracts.” Id. The court reasoned that: “From examining the contracts, we decide that the fixed-price terms of the contract do not constitute an unmistakable promise on behalf of the Government that it will not impose a general assessment upon all utility companies that benefitted from the DOE’s uranium services. The language of the contract is directed at the prices charged for providing enriched uranium to Yankee Atomic, and not to any decontamination or decommissioning costs which may subsequently arise.....To the extent that the Court of Federal Claims implied an unmistakable promise from the legislative acts, we conclude that it" }, { "docid": "17213599", "title": "", "text": "act under that doctrine, then the ESA could not effectuate a taking here, as it did not take a right that the district possessed (i.e., the right to water as against the enforcement of the ESA). The Federal Circuit reached a similar conclusion in Yankee Atomic, supra. There, the court first held that the sovereign acts and unmistakability doctrines precluded the plaintiff utility from claiming that the assessment of an excise tax breached its prior contracts with the government for decommissioning services. 112 F.3d at 1579-80. It then went on to reject the utility’s takings claim, stating, id. at 1580 n. 8— Our conclusion on this point also resolves Yankee Atomic’s takings argument. Because the contracts did not contain an unmistakable promise against a future assessment, Yankee Atomic had no property right (via a vested contract right) which was subsequently taken by the assessment. At most, Yankee Atomic has a vested right to be immune from later attempts to retroactively increase the prices charged. This right has not been taken because, as explained in the sovereign acts discussion, the assessment is a general, sovereign act rather than a retroactive price increase. . Tulare has been the subject of intense criticism by commentators who, inter alia, have challenged the court’s application of a physical taking theory to what was a temporary reduction in water. See, e.g., Michael C. Blumm, Lucas Ritchie, \"Lucas’s Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses,” 29 Harv. Envtl. L.Rev. 321, 329 (2005); Cari S. Parobek, “Of Farmers’ Takes and Fishes’ Takings: Fifth Amendment Compensation Claims When the Endangered Species Act and Western Water Right Collide,” 27 Harv. Envtl. L.Rev. 177, 212-23 (2003); Brittany K.T. Kauffman, \"What Remains of the Endangered Species Act and Western Water Rights after Tulare Lake Basin Water Storage District v. United States,” 74 U. Colo. L.Rev. 837 (2003). . See Or.Rev.Stat. §§ 537.120, 537.160, 537.250; United States v. State of Or. Water Resources Dept., 774 F.Supp. 1568, 1573 (D.Or. 1991), aff'd, in part, and rev'd, in part, on other grounds, 44 F.3d 758 (9th Cir.1994) (\"Under the laws of" }, { "docid": "21022272", "title": "", "text": "that it was exempt from the assessment because its facilities had closed before passage of the Act. We review the Government’s appeal, and Yankee Atomic’s cross-appeal, from the judgment of the Court of Federal Claims pursuant to 28 U.S.C. § 1295(a)(3) (1994). Ill The decision of the Court of Federal Claims is driven by its characterization of the special assessment as a retroactive price increase rather than an exercise of the sovereign’s taxing power, and the parties’ dispute over this characterization frames the dispositive issue of this appeal. The Government’s principal argument is that the special assessment is entirely distinct from the prior contracts between the DOE and utility companies such as Yankee Atomic. The Government notes that those earlier contracts concerned uranium enrichment, whereas this assessment concerns decontamination and decommissioning. As a result, the Government asserts that the assessment cannot constitute a breach of those earlier contracts unless those contracts contained an express provision that precluded the Government from imposing an assessment to fund decontamination and decommissioning costs. Yankee Atomic disagrees with the Government’s characterization of the assessment and contends that it is directly related to the earlier contracts. Yankee Atomic contends that the fixed-price nature of those contracts expressly limited its obligation to the price already paid, and shifted the risk of any additional costs (including decontamination and decommissioning costs) onto the Government. Yankee Atomic argues that the assessment breaches those contracts by, in effect, retroactively increasing the price that it must pay for the previously supplied uranium enrichment services. Resolution of this disputed characterization requires us to consider and apply two related bodies of law: the sovereign acts doctrine and the unmistakability doctrine. We consider each in turn. IV The sovereign acts doctrine stems from a series of decisions by the Court of Claims, and was first recognized by the United States Supreme Court in Horowitz v. United States, 267 U.S. 458, 45 S.Ct. 344, 69 L.Ed. 736 (1925). In that case, Horowitz submitted a bid to buy certain Habutai silk offered for sale by the Government. The Government agreed that Horowitz would be given the opportunity" }, { "docid": "1546357", "title": "", "text": "the nature of the legislation alleged to have breached the contract in question is truly pivotal. c. More Recent Cases This court is not the first to draw these conclusions. In Yankee Atomic Electric Co. v. United States, 112 F.3d 1569 (Fed.Cir.1997), the first significant case to construe Winstar, the Federal Circuit was faced with an electric utility, which claimed that a federal assessment imposed by the Energy Policy Act of 1992 to help decommission uranium enrichment facilities, breached the government’s prior contract with the utility to supply enriched uranium at a fixed price. Distinguishing Lynch and Perry, the court began by noting that the Energy Policy Act “constitutes a general exercise of Congress’ taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services.” 112 F.3d at 1577. Having concluded, on that basis, that this assessment was a public and general act protected by the “sovereign acts” doctrine, the court next determined whether the unmistakability doctrine applied. Id. While noting that, under Winstar, the “application of the doctrine is unrelated to the nature of the underlying contracts,” the court observed that “[i]mportantly, however, the plurality also expressly stated that application of the unmistakability doctrine turns on whether enforcement of the contractual obligation would effectively block the exercise of a sovereign power of the Government.” Id. at 1579. Applying this analysis, the court observed that “the assessment at issue in the present case is a general, sovereign act,” that involved “the exercise of [the] sovereign power to tax.” Id, As such, in the court’s view, the unmistakability doctrine applied. Several subsequent cases in this court have construed Yankee Atomic as defining when an act of Congress qualifies for protection under the unmistakability doctrine. For example, in Coast-to-Coast Financial Corp. v. United States, 45 Fed.Cl. 796 (2000), this court construed the unmistakability doctrine in the course of resolving a discovery dispute. Focusing, in particular, on what constitutes a “sovereign power” under the doctrine, this court explained— In describing when the unmistakability doctrine should be applied," }, { "docid": "21022299", "title": "", "text": "6, 1992). Section 2297g-l(g) does not, however, sub silentio create an exception which takes certain utilities out of the reach of the assessment. Therefore, we conclude that Yankee Atomic is not exempt from the assessment by virtue of its nonoperating status at the time the Act was passed. The Act plainly defines the scope of the assessment, and Yankee Atomic has not cited any contrary intention by Congress. VII In conclusion, the provision of the Energy Policy Act which imposes the special assessment is a sovereign act because it is designed to spread the costs associated with the decontamination and decommissioning over all domestic utilities that used the DOE’s uranium enrichment services, rather than targeting only those utilities that had contracts with the Government. Moreover, the contracts between Yankee Atomic and the Government did not contain an unmistakable promise which precluded the Government from exercising this sovereign power. Finally, Yankee Atomic is not exempt from the assessment by virtue of the fact that it ceased operations before the Act’s passage. Accordingly, the judgment of the Court of Federal Claims is reversed. No costs. REVERSED. . These provisions were designed to take into account the secondary market that existed for uranium enrichment services, wherein some utilities purchased uranium enrichment work units from the Government and resold them to other utilities. Yankee Atomic purchased a portion of its uranium enrichment services through this secondary market, but does not assert any breach of contract, taking, or unlawful exaction claim concerning its monetary liability under the Act for those purchases. . Throughout its briefs, Yankee Atomic contends that the special assessment constitutes a breach of its contracts with the Government. Technically, however, this does not appear to be a case involving a breach of contract. Typically, a contract breach occurs while the contract is being performed, whereas the contracts in the present case have been fully performed by both parties. This appears to have been the view of the Court of Federal Claims, as indicated by the notable absence in its opinion of any reference to breach of contract. This distinction does not affect" }, { "docid": "13539865", "title": "", "text": "141 L.Ed.2d 735 (1998), as the only substantive application of the sovereign acts and unmistakability doctrines in the circuit since the Supreme Court’s opinion in Winstar. In Yankee Atomic an electric utility alleged that a federal assessment required by the Energy Policy Act (EPA) of 1992 based on the utility’s use of enriched uranium supplied by the Government breached the Government’s pri- or contract with the utility to supply the uranium at a fixed price. The EPA assessment was not a surcharge on the price the Government charged Yankee Atomic and other utilities for enriched uranium. Rather, it was a special assessment levied against all domestic utilities that purchased enriched uranium either directly or indirectly from the Government for the purpose of partially funding the clean-up (decontamination and decommissioning) of old uranium enrichment plants. In deciding the case the Federal Circuit applied the sovereign acts doctrine and the unmistakability doctrine in a sequential, two-step analysis. The court first considered whether the EPA legislation had the broad public purpose of a sovereign act (as opposed to an act by the Government-as-contractor). Only after concluding that the EPA qualified as a public and general “sovereign act” did the court proceed to determine whether the plaintiffs contract included an unmistakable promise by the Government that it would not exercise that sovereign power. In discussing the sovereign acts doctrine, the Federal Circuit quoted liberally from the Winstar plurality opinion and concluded that the doctrine “is not a hard and fast rule, but rather a case-specific inquiry that focuses on the scope of the legislation in an effort to determine whether, on balance, that legislation was designed to target prior governmental contracts.” Yankee Atomic at 1575. Turning to the case before it, the Federal Circuit stated: “Under the sovereign acts doctrine, therefore, we must decide whether the Government, in enacting the relevant provisions of the Energy Policy Act of 1992, was (i) acting for the purpose of retroactively increasing the price of its earlier contracts with Yankee Atomic (i.e., the legislation was passed for the benefit of the Government-as-contractor) or (ii) acting for the purpose" }, { "docid": "22578974", "title": "", "text": "the analysis prescribed by the Supreme Court’s decision in Winstar, we held that the imposition of the special assessments was a lawful exercise of Congress’s taxing power under the sovereign acts doctrine, and was not designed to retroactively increase the price of the government’s earlier contracts with Yankee Atomic. Id. at 1575. In other words, this court concluded that the special assessments constituted “a general exercise of Congress’s taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services.” Id. at 1577. We further held that because the contracts between the plaintiff in that case and the government “did not include an unmistakable promise that precluded the Government from later imposing an assessment upon all domestic utilities that employed the DOE’s uranium enrichment services,” id. at 1580, the special assessments imposed by the Act did not constitute a breach of contract. We similarly disposed of the plaintiffs takings claim by concluding that “[b]eeause the contracts did not contain an unmistakable promise against a future assessment, [the utility] had no property right (via a vested contract right) which was subsequently taken by the assessment.” Id. at 1580 n. 8. This court denied Yankee Atomic’s motion to rehear the case in banc, 112 F.3d 1569 (Fed.Cir.1997), and the Supreme Court denied certiorari, 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). We reject Edison’s request that we distinguish our decision in Yankee Atomic. There is no meaningful difference between the contract theories asserted here and in Yankee Atomic, and we therefore agree with the Court of Federal Claims’ conclusion that Edison’s claims based on its contracts with the government are barred by that decision. This also disposes of Edison’s argument that the Act constitutes a taking of Edison’s supposed contract rights to be free of future government assessments. IV The third area of judicial review occurs where a regulation is retroactive and accordingly implicates the Due Process Clause. The Supreme Court has made clear that federal legislation is to be construed to avoid retroactivity. No" }, { "docid": "21022298", "title": "", "text": "42 U.S.C. § 2297g-1(e). The Act further states that a utility is responsible for contribution to the Decontamination and Decommissioning Fund if it purchased uranium enrichment services from the DOE, either directly or indirectly, but utility company. 42 U.S.C. §§ 2297g-l(e)(l), (2). Thus, the plain language of the statute sets the parameters of its scope. Because Yankee Atomic purchased uranium enrichment services from the DOE, both directly and indirectly, it falls within the Act’s scope. The provision cited by Yankee Atomic, § 2297g-l(g), does not contradict this plain meaning. That provision merely addresses the issue of how the special assessment should be treated in determining utility rates. By defining the assessment as a current cost of fuel, Congress clears the path for the domestic utilities to pass through the assessment to current customers. This avoids any complications from the Federal Energy Regulatory Commission, which has ruled that although customers can be charged for current fuel costs, they cannot be charged for certain prior costs. See, e.g., Northern States Power Co., 58 FERC ¶ 61,-119 (Feb. 6, 1992). Section 2297g-l(g) does not, however, sub silentio create an exception which takes certain utilities out of the reach of the assessment. Therefore, we conclude that Yankee Atomic is not exempt from the assessment by virtue of its nonoperating status at the time the Act was passed. The Act plainly defines the scope of the assessment, and Yankee Atomic has not cited any contrary intention by Congress. VII In conclusion, the provision of the Energy Policy Act which imposes the special assessment is a sovereign act because it is designed to spread the costs associated with the decontamination and decommissioning over all domestic utilities that used the DOE’s uranium enrichment services, rather than targeting only those utilities that had contracts with the Government. Moreover, the contracts between Yankee Atomic and the Government did not contain an unmistakable promise which precluded the Government from exercising this sovereign power. Finally, Yankee Atomic is not exempt from the assessment by virtue of the fact that it ceased operations before the Act’s passage. Accordingly, the judgment of the" }, { "docid": "21022294", "title": "", "text": "on behalf of the Government that it will not impose a general assessment upon all utility companies that benefited from the DOE’s uranium enrichment services. The language of the contract is directed at the prices charged for providing enriched uranium to Yankee Atomic, and not to any decontamination or decommissioning costs which may subsequently arise. Thus, the contract states that “[t]he charges [are] to be paid to the Commission for enriching services provided,” and sets a ceiling price of $30 per Kg unit “for separation of U-235 from U-238.” The Government complied with this provision by providing the enriched uranium at the agreed-upon price. At that point, the contract was fully performed by both parties. This gave Yankee Atomic a vested contract right which would then bar the Government from deliberately attempting to charge more for performance of those contracts. As explained above in the sovereign acts doctrine discussion, however, the subsequent assessment is not a deliberate retroactive increase in the price of those contracts. Instead, it is the Government’s way of spreading the costs of the later discovered decontamination and decommissioning problem on all utilities that benefited from the Government’s service, whether or not those services were acquired by contract from the Government. The opinion of the Court of Federal Claims is not clear as to whether or not it discerned an unmistakable promise that barred the subsequent special assessment. On the one hand, after reciting several unmistakability doctrine cases, the court stated: “But even where a contract does not contain language securing protection from the potentially disruptive effects of subsequent legislation, exercise of the sovereign power does not proceed unchecked.” 33 Fed. Cl. at 584. The underscored portion of this statement indicates that the court viewed the contracts as containing no unmistakable promise that precluded the Government from later imposing an assessment. On the other hand, the court’s opinion can be read to indicate that it found such an unmistakable promise. The court explained that the congressional acts required the AEC to charge prices that assured reasonable compensation to the Government, which was later defined as recovery of" }, { "docid": "6619110", "title": "", "text": "OPINION WIESE, Judge. Title 42 of the United States Code, section 2297g-1(c) (1988 & Supp. IV 1992), authorizes the Secretary of Energy to collect a special annual assessment from those domestic utilities which, in prior years, had utilized enriched uranium, produced by the Government, as a fuel in the operation of their nuclear-powered electricity generating facilities. The assessment is paid into a fund intended to meet the costs of decontaminating and decommissioning the industrial facilities that the Government used in producing the enriched uranium. Plaintiff is among the utilities subject to this special assessment; its suit here seeks recovery of a portion of the approximately $3,000,000 it has thus far paid the Govern ment. Three theories of recovery are advanced. First, plaintiff maintains that the assessment amounts to a breach of contract, in that it retroactively increases the cost of the Government’s uranium enrichment services, thereby violating the “fixed-price” character of the contracts under which those services initially were obtained. Second, even if imposition of the assessment does not amount to a breach of contract, plaintiff claims, it constitutes the deprivation of a contract-based advantage and hence, the taking of a property right. Finally, putting both contract and taking theories aside, plaintiff argues that Congress intended the assessment to apply only to those domestic utilities able to recover the cost involved through their rate base, that is, as a pass-through of a necessary and reasonable cost of fuel. And inasmuch as plaintiff ceased operations in early 1992, some eight months prior to the passage of the legislation authorizing the special assessment, it argues that the assessment represents an unlawful exactitude. Defendant disagrees with these contentions; it maintains that the assessment represents a legitimate exercise of legislative authority that does not transgress plaintiffs contract rights or implicate the Takings Clause of the Fifth Amendment or violate the terms of the statute authorizing the special assessment. Both sides have moved for summary judgment supported by written briefs, later supplemented by oral argument. At the conclusion of the argument, heard June 1,1995, the court issued a tentative ruling in plaintiffs favor and indicated" }, { "docid": "3688768", "title": "", "text": "OPINION WIESE, Judge. In the Energy Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776 (codified as amended in various sections of 42 U.S.C.), Congress directed the collection of a special fee from all domestic electric utility companies that previously had purchased enriched uranium from the Government for the generation of electrical energy. The fee, which is to remain in effect for fifteen years following the Act’s enactment or until $2.5 billion has been collected, is deposited into a special fund, the Uranium Decontamination and Decommissioning Fund (the “D & D Fund”), to be used to meet the clean-up costs of the Government facilities where the uranium enrichment activities were carried out. The lawfulness of this fee was the subject of a legal challenge in Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569 (Fed.Cir.1997), rev’g 33 Fed.Cl. 580 (1995), cert. denied - U.S. -, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). In that case, a similarly-situated plaintiff argued that the Government’s imposition of the fee violated the fixed-price character of the contracts under which the enriched uranium had been sold to the utility companies. While the trial court initially accepted the plaintiffs argument, the Federal Circuit reversed, holding that the fee constituted “a general exercise of Congress’s taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the.price charged to contracting parties for uranium enrichment services.” Id. at 1577. The same fee is once again brought under attack in this case. The arguments we encounter now are that the imposition of the fee amounts to an unconstitutional taking of property, a violation of substantive due process and a denial of equal protection. The Government has moved to dismiss for failure to state a claim on which relief can be granted. Plaintiffs oppose. The parties have filed extensive briefs and oral argument was heard on May 18, 1999. We now decide in defendant’s favor. FACTS Beginning in the 1940s, the Government, acting originally through the Atomic Energy Commission and later through the Department of Energy (DOE), owned ahd operated a number" }, { "docid": "17720712", "title": "", "text": "court then reassigned the opinion to the panel for revision. Because the Court of Federal Claims can offer an adequate remedy in this case, this court now reverses and remands. I. Con Ed sued the Government, challenging the constitutionality of EPACT. Before EPACT, Con Ed contracted with the Government for uranium enrichment ser vices under a series of fixed-price agreements. After enactment of EPACT in 1992, the Government began decontaminating and decommissioning several of its uranium processing facilities. EPACT stipulated that the Government would pay sixty-eight percent of the decontamination and decommissioning costs; annual assessments on domestic nuclear utilities would supply the remaining thirty-two percent. EPACT made the Department of Energy responsible for computing each utility’s share of the assessment in proportion to that utility’s use of Government enrichment services in the past. 42 U.S.C. § 2297g 1(c) (1994) (amended 1998). After making initial payments under EPACT, Con Ed, and other nuclear utilities not parties to this suit, sued the Government in the Court of Federal Claims seeking refunds of those payments. The lawsuits before the Court of Federal Claims asserted many of the same constitutional grounds as this lawsuit. In one such case, this court reversed the Court of Federal Claims’ grant of summary judgment in favor of a nuclear utility, concluding that collection of the assessments under EPACT did not violate the utility’s contract under which it had purchased the enriched uranium from the government, nor constituted a taking of the utility’s contract rights. Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569 (Fed.Cir.1997), cert. denied, 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). After several subsequent nuclear utility losses in the Court of Federal Claims, Con Ed filed this suit in the district court. Instead of seeking refunds of assessments, however, Con Ed sought a declaratory judgment that EPACT was unconstitutional on several grounds and an injunction on enforcement of the EPACT assessments. By taking this procedural posture, Con Ed sought a hearing in another forum. To achieve this objective, Con Ed drew its complaint to avoid prayers for relief actionable in the Court" }, { "docid": "13539870", "title": "", "text": "Atomic seeks money damages, its argument would effectively block the exercise of this sovereign power to tax____” Yankee Atomic at 1579. Thus, the Federal Circuit concluded that the unmistakability doctrine applied to the facts of Yankee Atomic. The court then had to decide “whether the contracts between Yankee Atomic and the Government unmistakably precluded the Government from subsequently exercising its sovereign power to assess a tax.” Id. It concluded that “no such promise existed in the contracts.” Id. The court reasoned that: “From examining the contracts, we decide that the fixed-price terms of the contract do not constitute an unmistakable promise on behalf of the Government that it will not impose a general assessment upon all utility companies that benefitted from the DOE’s uranium services. The language of the contract is directed at the prices charged for providing enriched uranium to Yankee Atomic, and not to any decontamination or decommissioning costs which may subsequently arise.....To the extent that the Court of Federal Claims implied an unmistakable promise from the legislative acts, we conclude that it erred. Put simply, a specific promise implied from general legislative acts is not an unmistakable one.” Id. at 1580. Plaintiff’s Arguments Applying Yankee Atomic to the case at bar, plaintiff argues that Sec. 808 of the FY 98 Authorization Act does not meet the definition of a “public and general” act, as set forth in Winstar, because it narrowly targets existing government contractual obligations in order to save money. The executive compensation cap applies only to a certain class of government contractors (with cost-type or fixed-price incentive contracts), plaintiff points out, and has no general applicability to entities that do not contract with the Government. In addition, the statutory cap serves no broader public purpose since its sole aim is to limit the amount of money paid by the Government to its contractors. In short, plaintiff asserts that the executive compensation cap is not a “public and general” act within the meaning of the sovereign acts doctrine. Accordingly, the Government cannot invoke this doctrine as a defense to excuse its liability for the breach of" }, { "docid": "21022271", "title": "", "text": "sovereign acts doctrine would have some force if the ease involved a general tax that fell on all utilities alike, it had no impact in the present case which involves an assessment that “reaches only those utility companies that previously had contracted with the Government for the purchase of uranium enrichment services.” Accordingly, the court viewed the special assessment as a unilateral retroactive increase in the price previously charged by the Government for its uranium enrichment services. The court explained that such a retroactive price increase would constitute an unlawful exaction in view of the prior contracts between the Government and Yankee Atomic. Because those prior contracts specified a fixed price for the uranium enrichment services, the “economic benefit which [Yankee Atomic] gained by virtue of the Government’s promise, being a benefit enforceable at law, thus became a property interest that fell beyond the reach of the Government’s power to take away.” 33 Fed. Cl. at 585. Based on this conclusion, the court granted Yankee Atomic’s motion for summary judgment without addressing Yankee Atomic’s argument that it was exempt from the assessment because its facilities had closed before passage of the Act. We review the Government’s appeal, and Yankee Atomic’s cross-appeal, from the judgment of the Court of Federal Claims pursuant to 28 U.S.C. § 1295(a)(3) (1994). Ill The decision of the Court of Federal Claims is driven by its characterization of the special assessment as a retroactive price increase rather than an exercise of the sovereign’s taxing power, and the parties’ dispute over this characterization frames the dispositive issue of this appeal. The Government’s principal argument is that the special assessment is entirely distinct from the prior contracts between the DOE and utility companies such as Yankee Atomic. The Government notes that those earlier contracts concerned uranium enrichment, whereas this assessment concerns decontamination and decommissioning. As a result, the Government asserts that the assessment cannot constitute a breach of those earlier contracts unless those contracts contained an express provision that precluded the Government from imposing an assessment to fund decontamination and decommissioning costs. Yankee Atomic disagrees with the Government’s" }, { "docid": "17213598", "title": "", "text": "that \" 'sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign’s jurisdiction, and will remain intact unless surrendered in unmistakable terms.’\" Bowen v. Pub. Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986) (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982)); see also Cuyahoga Metr. Hous. Authority, 57 Fed.Cl. at 764-74. Of course, a prerequisite for invoking the unmistakability doctrine is that a sovereign act must be implicated. See Centex Corp., 395 F.3d at 1307; Cuyahoga Metr. Housing Authority, 57 Fed.Cl. at 774-75. Whether the unmistakability doctrine applies here depends, in the first instance, upon whether the passage of the ESA may be viewed as a sovereign act and thus must also be resolved in determining whether an actual breach of the district contracts occurred here. . If the contract rights possessed by the district were subject to the sovereign acts doctrine, and the ESA were viewed as a sovereign act under that doctrine, then the ESA could not effectuate a taking here, as it did not take a right that the district possessed (i.e., the right to water as against the enforcement of the ESA). The Federal Circuit reached a similar conclusion in Yankee Atomic, supra. There, the court first held that the sovereign acts and unmistakability doctrines precluded the plaintiff utility from claiming that the assessment of an excise tax breached its prior contracts with the government for decommissioning services. 112 F.3d at 1579-80. It then went on to reject the utility’s takings claim, stating, id. at 1580 n. 8— Our conclusion on this point also resolves Yankee Atomic’s takings argument. Because the contracts did not contain an unmistakable promise against a future assessment, Yankee Atomic had no property right (via a vested contract right) which was subsequently taken by the assessment. At most, Yankee Atomic has a vested right to be immune from later attempts to retroactively increase the prices charged. This right has not been taken because, as explained in the" }, { "docid": "22578973", "title": "", "text": "756 (citing United States v. Sperry Corp., 493 U.S. 52, 62 n. 9, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989)). In short, while a taking may occur when a specific fund of money is involved, the mere imposition of an obligation to pay money, as here, does not give rise to a claim under the Takings Clause of the Fifth Amendment. Ill The second area, represented by the Supreme Court’s decision in United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), involves contracts in which the government has agreed to pay damages if it engages in certain types of regulation. A similar contract claim was made with respect to the present contracts and rejected by this court in Yankee Atomic. In that case, this court was confronted with a claim that the special assessments imposed under EPACT breached the utility’s fixed-price contracts with the government by, “in effect, retroactively increasing the price that it must pay for the previously supplied uranium enrichment services.” 112 F.3d at 1573. Relying on the analysis prescribed by the Supreme Court’s decision in Winstar, we held that the imposition of the special assessments was a lawful exercise of Congress’s taxing power under the sovereign acts doctrine, and was not designed to retroactively increase the price of the government’s earlier contracts with Yankee Atomic. Id. at 1575. In other words, this court concluded that the special assessments constituted “a general exercise of Congress’s taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services.” Id. at 1577. We further held that because the contracts between the plaintiff in that case and the government “did not include an unmistakable promise that precluded the Government from later imposing an assessment upon all domestic utilities that employed the DOE’s uranium enrichment services,” id. at 1580, the special assessments imposed by the Act did not constitute a breach of contract. We similarly disposed of the plaintiffs takings claim by concluding that “[b]eeause the contracts did not contain an" }, { "docid": "3688772", "title": "", "text": "& D Fund are, from plaintiffs’ perspective, worthy of note. First, the fee imposed by the Energy Policy Act applies only to the end-users of the uranium. Thus, a utility that had contracted with the Government for the purchase of uranium but then had resold the uranium to another utility would not be subject to the fee. As a result, the list of utilities responsible for the fee is strikingly similar to, but not entirely coincident with, the list of utilities that had contracted with the Government. Second, the special assessments are imposed only on those utilities that purchased government-enriched uranium prior to the Energy Policy Act’s 1992 enactment, and thus do not apply to domestic customers who purchased USEC services any time after 1992. Finally, the Act specifies that foreign utilities, despite having represented 25% of DOE’s pre-1992 commercial customer base, are not subject to the fee. Under the Act, the fee itself is based on the percentage of uranium enrichment work units each utility had previously purchased from the Department of Energy, relative to the total number of work units produced by DOE over the life of the enrichment facilities. That contribution scheme — apportioning liability for the fee on the basis of prorata consumption of uranium — was first challenged in Yankee Atomic, 112 F.3d 1569 as a violation of the utilities’ fixed-price contracts for the purchase of uranium. The Federal Circuit, as we earlier noted, rejected Yankee Atomic’s claim that the Energy Policy Act impermissibly raised the price of uranium in breach of the parties’ fixed-price contracts with the Government. Characterizing the fee as a “general exercise of Congress’s taxing power,” the Federal Circuit concluded that the assessment was “not a deliberate retroactive increase in the price of those contracts,\" but was instead “the Government’s way of spreading the costs of the later discovered decontamination and decommissioning problem on all utilities that benefited from the Government’s service.” Id. at 1577, 1580. The plaintiffs now before this court— Maine Yankee Atomic Power Company, Sacramento Municipal Utility District and Omaha Public Power District — each signed enrichment contracts" }, { "docid": "3688773", "title": "", "text": "to the total number of work units produced by DOE over the life of the enrichment facilities. That contribution scheme — apportioning liability for the fee on the basis of prorata consumption of uranium — was first challenged in Yankee Atomic, 112 F.3d 1569 as a violation of the utilities’ fixed-price contracts for the purchase of uranium. The Federal Circuit, as we earlier noted, rejected Yankee Atomic’s claim that the Energy Policy Act impermissibly raised the price of uranium in breach of the parties’ fixed-price contracts with the Government. Characterizing the fee as a “general exercise of Congress’s taxing power,” the Federal Circuit concluded that the assessment was “not a deliberate retroactive increase in the price of those contracts,\" but was instead “the Government’s way of spreading the costs of the later discovered decontamination and decommissioning problem on all utilities that benefited from the Government’s service.” Id. at 1577, 1580. The plaintiffs now before this court— Maine Yankee Atomic Power Company, Sacramento Municipal Utility District and Omaha Public Power District — each signed enrichment contracts with the Government which, in their original form, were largely identical to the contracts between Yankee Atomic and the Government. As a result of the uranium purchases made under those contracts, plaintiffs, like Yankee Atomic, have been subject to the assessment outlined in the Energy Policy Act. As of the date of suit in this court, Omaha Public Power District had paid approximately $7.4 million of the $19 million it is projected to owe under the Energy Policy Act for purchases of uranium made from 1969 until 1992; Maine Yankee Atomic Power Company had paid $9,815,718.57 of its estimated $25 million liability on uranium purchases from 1970 until 1986; and Sacramento Municipal Utility District had paid more than $5.8 million of its projected $8 million liability for uranium purchased from 1969 until 1981. Of the three utilities, only one — Maine Yankee — has abandoned the electricity generating business entirely, closing down its sole electricity generating facility permanently in 1996. DISCUSSION In the first count of their amended complaints, plaintiffs assert that the imposition of" }, { "docid": "1546356", "title": "", "text": "the contract,” id. at 878 n. 22, 116 S.Ct. 2432, exhibiting, as Justice Breyer wrote, “unique features of sovereignty” warranting “special caution,” id. at 918,116 S.Ct. 2432; they are those that Justice Scalia described as “needful for the public good,” id. at 921, 116 S.Ct. 2432, and, according to sampling of the opinions, include the police and taxing powers, the power of eminent domain and of navigational servitude. Fourth, each opinion plainly excludes from the doctrine’s protection legislation modifying what Congress simply perceives as a bad deal — the “sovereign powers” doctrine thus is not invoked by an enactment that targets for elimination the “essential bargain of the contract at issue,” id. at 924, 116 S.Ct. 2432 (Scalia, J.), “the very right that [the] sovereign explicitly granted by contract,” id. at 917,116 S.Ct. 2432 (Breyer, J.), or a “statute authorizing the payment of money pursuant to a contractual agreement,” id. at 933, 116 S.Ct. 2432 (Rehnquist, C.J.). In the end, then, Winstar confirms that, in deciding whether the unmistakability doctrine applies in a given case, the nature of the legislation alleged to have breached the contract in question is truly pivotal. c. More Recent Cases This court is not the first to draw these conclusions. In Yankee Atomic Electric Co. v. United States, 112 F.3d 1569 (Fed.Cir.1997), the first significant case to construe Winstar, the Federal Circuit was faced with an electric utility, which claimed that a federal assessment imposed by the Energy Policy Act of 1992 to help decommission uranium enrichment facilities, breached the government’s prior contract with the utility to supply enriched uranium at a fixed price. Distinguishing Lynch and Perry, the court began by noting that the Energy Policy Act “constitutes a general exercise of Congress’ taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services.” 112 F.3d at 1577. Having concluded, on that basis, that this assessment was a public and general act protected by the “sovereign acts” doctrine, the court next determined whether the unmistakability doctrine applied. Id." }, { "docid": "13539864", "title": "", "text": "the FY 98 Authorization Act fails to meet the “public and general” test, plaintiff asserts, insofar as it aims to curtail the Government’s existing contractual obligations with respect to allowable executive compensation costs. The impact of this legislation falls squarely on a limited class of government contractors (with cost-type or fixed-price incentive contracts), plaintiff notes, thus involving the Government strictly in its contracting capacity. Though the compensation cap may be seen as serving the general public interest in saving money, the “Government may not forc[e] some people alone to bear public burdens which ____ should be borne by the public as a whole.” Winstar at 896-97, 116 S.Ct. 2432 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). Federal Circuit’s opinion in Yankee Atomic Plaintiff expanded its legal argumentation (in its Reply to Defendant’s Opposition to Plaintiffs Motion for Partial Summary Judgment) by citing the Federal Circuit’s opinion in Yankee Atomic Electric Company v. United States, 112 F.3d 1569 (Fed.Cir.1997), cert. denied, 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998), as the only substantive application of the sovereign acts and unmistakability doctrines in the circuit since the Supreme Court’s opinion in Winstar. In Yankee Atomic an electric utility alleged that a federal assessment required by the Energy Policy Act (EPA) of 1992 based on the utility’s use of enriched uranium supplied by the Government breached the Government’s pri- or contract with the utility to supply the uranium at a fixed price. The EPA assessment was not a surcharge on the price the Government charged Yankee Atomic and other utilities for enriched uranium. Rather, it was a special assessment levied against all domestic utilities that purchased enriched uranium either directly or indirectly from the Government for the purpose of partially funding the clean-up (decontamination and decommissioning) of old uranium enrichment plants. In deciding the case the Federal Circuit applied the sovereign acts doctrine and the unmistakability doctrine in a sequential, two-step analysis. The court first considered whether the EPA legislation had the broad public purpose of a sovereign act (as opposed to" } ]

[ { "docid": "3456371", "title": "", "text": "imprisonment. On 27 August 1997, the trial judge sentenced Ladd to death. In October 1999, the Texas Court of Criminal Appeals affirmed Ladd’s conviction and sentence. Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Ladd had earlier filed for post-conviction relief in state court; on 11 June 1999, the trial court conducted an evidentiary hearing on his application. On 15 December 1999, the Texas Court of Criminal Appeals adopted the trial court’s proposed findings of fact and conclusions of law and denied the application. Ex Parte Ladd, No. 42,639-01 (Tex.Crim.App.1999). Ladd filed for habeas relief in federal district court in January 2001. The district court rejected, inter alia, Ladd’s jury-shuffle and ineffective assistance claims and denied habeas relief. II. From the numerous COA requests by Ladd, the district court granted a COA on two: (1) the jury-shuffle denied him the right to a fair and impartial jury; and (2) he received ineffective assistance at trial. Along this line, Ladd asserts: (1) the Equal Protection Clause and the right to a fair and impartial jury were violated when the State was granted the shuffle of potential jurors prior to jury selection; and (2) he received ineffective assistance at the sentencing phase. The district court’s legal conclusions are reviewed de novo; its factual findings, for clear error. E.g., United States v. Williams, 264 F.3d 561, 571 (5th Cir.2001). Of course, review is through the strictures imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The federal habeas statute, as amended by AEDPA, requires a great deal of deference to state court proceedings. A federal court may not grant habeas relief to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim [in state court]— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or - (2) resulted in a decision that was based on" } ]

[ { "docid": "19344909", "title": "", "text": "presented in the sections that follow. II. The district court granted COA on the first two issues raised by Dorsey in this petition and then denied Dorsey’s petition for habeas relief. In a federal habeas corpus appeal, we review factual findings for clear error and legal issues de novo. Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.2001). Dorsey’s petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a set of material indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Without a direct conflict, a writ should be granted only if the state court identifies the correct governing legal principle but unreasonably applies the principle to the facts of the prisoner’s case. Id.; Evans v. Cockrell, 285 F.3d 370, 374-75 (5th Cir.2002). A. In his first claim for relief, Dorsey contends that he was denied due process of law and his right to be free from cruel and unusual punishment by the trial court’s denial of his motion for mistrial after the jury wrongly considered State’s Exhibit No. 123. The exhibit consisted of a Dallas Morning News reporter’s interview transcript in which Dorsey described numerous extraneous offenses, which the trial court had admitted into evidence for record purposes only. During guilt-innocence deliberations, one of Dorsey’s jurors discovered the full transcript of the interview Dorsey had given to the reporter, Jason Sickles. Sickles had interviewed Dorsey and recorded the entire conversation. The transcript was 88 pages long and contained numerous admissions of bad acts and extraneous offenses. The full'transcript was admitted for record purposes as Exhibit 123. A redacted version absent the admissions, Exhibit 110, was admitted for all purposes and played for the jury. During deliberations, in response to a jury request for “all" }, { "docid": "962938", "title": "", "text": "separate criminal proceedings against Davenport. Concluding that there was a reasonable probability of a different result had these materials been properly disclosed, the panel granted relief on Bell’s Brady claim. The panel affirmed the denial of Bell’s ineffective assistance of counsel claim. The Warden successfully sought rehearing en banc, and the original panel decision was vacated. II. A. In assessing the correctness of the district court’s decision on Bell’s petition, we evaluate the district court’s factual findings for clear error and review the district court’s ultimate refusal to grant habeas relief de novo. Combs v. Coyle, 205 F.3d 269, 277 (6th Cir.2000). As to the standard applicable to any relevant state court rulings, Bell asserts that the highly deferential review standard set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), does not apply to his claims because he filed his initial petition before the enactment of the statute. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Warden responds that the district court dismissed Bell’s original petition without prejudice, and Bell’s amended petition was filed after AEDPA’s effective date. Therefore, argues the Warden, AEDPA applies. The parties’ dispute is immaterial. In the present case, AEDPA’s applicability is relevant only to the extent that we must review a state court’s ruling on Bell’s claims. As explained infra, Bell failed to present either of his claims to the state courts, and there is, therefore, no state court decision on these issues for us to review. We accordingly apply de novo review to Bell’s constitutional claims. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir.2006). B. Bell seeks habeas relief on the ground that the prosecution failed to turn over impeachment materials relating to William Davenport, a government witness. In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”" }, { "docid": "23098676", "title": "", "text": "court did, however, grant a COA on the following issues: 1. Whether Busby’s appellate attorney’s decision not to appeal the trial court’s denial of Busby’s motion to exclude the letters constituted ineffective assistance of counsel? 2. Whether the trial court’s denial of Busby’s motion to suppress the letters violated the First Amendment? 3. Whether the trial court’s denial of Busby’s motion for a change of venue deprived him of a fair trial? 4. Whether the change of venue/fair trial issue was exhausted? ' As we have already denied Busby’s request for a COA on additional issues, Busby v. Cockrell, 73 Fed.Appx. 49 (5th Cir. 2003), today’s decision considers only the three issues listed above. II. DISCUSSION A. Standard for Granting Relief In a habeas corpus appeal, we review the district court’s findings of fact for clear error and its conclusions of law de novo, applying the same standards to the state court’s decision as did the district court. Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001). Busby’s habeas petition is governed by the standards established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,110 Stat. 1214 (1996). Under AEDPA, we may not grant relief on a claim that the state courts have adjudicated on the merits “unless the adjudication of the claim ... 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) (2000). A state court’s decision is deemed “contrary to” clearly established federal law if it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision runs afoul of the “unreasonable application” prong of § 2254(d)(1) “if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case.” Bell v. Cone," }, { "docid": "23703197", "title": "", "text": "parte Henderson, No. 37,658-02 (Tex.Crim.App.1999) (unpublished). Henderson then filed an amended petition for federal habeas relief. The district court conducted an evidentiary hearing, at which Williams, the prosecutors, Henderson’s trial counsel, and others testified. Consistent with the statements given to federal habeas counsel’s investigator, Williams testified at the federal habeas evidentiary hearing that he had not told the truth when he testified at Henderson’s trial, and that he had testified falsely at trial because he wanted to please the prosecutors and get a better deal for himself. Immediately prior to the hearing, the State turned over its trial file to Henderson’s federal habeas counsel, who had requested it only a few days earlier. Among the documents in that file were notes made by the prosecutors and Williams’s “Plea Negotiation Agreement,” which included a provision granting him derivative use immunity. The Plea Negotiation Agreement was signed by Williams, Williams’s trial counsel, Clayton Hall, and Red River County prosecutor Jack Her-rington, and it was dated May 9, 1994, the first day of jury selection in Henderson’s trial. Henderson filed a post-hearing brief in which he asserted a claim based on the State’s failure to disclose the derivative use immunity provision in Williams’s plea agreement. Henderson claimed that the derivative use immunity provision would have barred Williams’s prosecution for the aggravated robbery in Dallas and the unauthorized use of Lennox’s vehicle. Henderson also claimed that the prosecutor’s notes reflected that Williams did not talk about Henderson’s gang affiliation until after he was promised derivative use immunity. The district court denied habeas relief, but granted a COA for two issues: (1) whether trial counsel rendered ineffective assistance by failing to move for a mistrial at the close of the State’s case-in-ehief after the prosecutor had failed to introduce into evidence the two incriminating statements by Henderson to which the prosecutor had referred in his opening statement; and (2) whether trial counsel rendered ineffective assistance by failing to object to the introduction of gang evidence at the guilt-innocence phase of trial. Henderson seeks a COA for one additional issue encompassing two sub-claims: Whether the prosecution" }, { "docid": "5962129", "title": "", "text": "Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penny I”), and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Penry II”). Coble v. Cockrell, 80 Fed.Appx. 301 (5th Cir.2003). II “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Because Co-ble filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district court’s federal ha-beas review was governed by AEDPA. Under AEDPA, habeas relief is not available to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “Under AEDPA, our duty is to determine whether the state court’s determination was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court at the time that [Coble’s] conviction became final” in 1994. Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir.2006) (en banc) (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision is contrary to clearly established Supreme Court precedent if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams, 529 U.S. at 406, 120 S.Ct. 1495. A state" }, { "docid": "14134047", "title": "", "text": "ineffective assistance by failing to investigate and to present mitigating evidence. The district court denied both of these motions. On January 4, 2001, the district court denied Foster habeas relief. After the district court denied his motion for reconsideration, Foster timely filed a notice of appeal to this court and requested a COA from the district court on each of his ihef-fective-assistance-of-counsel claims and his Eighth Amendment claim. The district court granted a COA on Foster’s claim that he was denied effective assistance of counsel at sentencing because of Farrow’s deficient performance with respect to mitigating evidence (“ineffective-assistance/mitigation claim”), but denied a COA on each of his remaining claims. Foster now appeals the district court’s denial of habeas relief on his ineffective-assistance/mitigation claim and requests a COA from this court on the remaining claims raised in his federal habeas petition. II. FEDERAL HABEAS STANDARD OF REVIEW “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Because Foster filed his petition for federal habeas corpus relief after the date of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132,100. Stat. 1214 (codified as amended at 28 U.S.C. § 2254 (Supp. V 1999)) (“AEDPA”), the district court’s federal habeas review was governed by AEDPA. See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Under § 2254(d) of AEDPA, habeas relief is not available to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the" }, { "docid": "14038848", "title": "", "text": "this court followed. II. DISCUSSION This opinion addresses two issues raised by Nixon on which COA has been granted: his ineffective assistance claim, and his claim regarding the introduction of a prior violent felony conviction before the jury as an aggravator. We first set forth the applicable standards of review and then turn to these two issues. A. Standard of Review Because Nixon’s original federal habeas petition was filed in 1995, before the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), pre-AEDPA standards apply to the district court’s review of the petition as well as to appellate review. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); see also Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000) (noting that “Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court’s ruling, for cases commenced there pre-AEDPA”). In evaluating the district court’s resolution on the merits of issues presented to it, we review the district court’s findings of fact for clear error and its conclusions of law de novo. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001). We review its determination of a procedural bar de novo. Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir.1999). B. Ineffective Assistance of Counsel Claim Nixon first contends he received ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), at both the guilt/innocence and sentencing phases of his trial. In Nixon’s state post-conviction application, the Mississippi Supreme Court held his ineffective assistance claim proee-durally barred based on Miss.Code. Ann. § 99-39-21. See Nixon, 641 So.2d at 756. Under Mississippi law, as it existed at the time of Nixon’s trial, a petitioner waives his ineffective assistance claim when he uses different counsel on direct appeal and fails to raise the ineffective assistance claim on direct review. Evans v. State, 485 So.2d 276, 280-81 (Miss.1986); Lockett v. State, 614 So.2d 888 (Miss.1992); see also Sones v. Hargett, 61 F.3d 410, 416" }, { "docid": "18153780", "title": "", "text": "habeas relief, and the district court appointed counsel. Coble filed his habeas petition, alleging twenty-five claims, and the district court stayed his execution pending resolution of the petition. The district court denied Coble’s request for an evidentiary hearing and denied the writ. The district court did, however, grant COA on the issue of ineffective assistance of counsel. Coble then petitioned for COA from this court on eleven additional grounds. We granted COA on the issue of whether the “special issue” interrogatories in the Texas capital sentencing instruction precluded effective consideration of Coble’s mitigating evidence in violation of the mandates of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penry I”), and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Penry II”). Coble v. Cockrell, 80 Fed.Appx. 301 (5th Cir.2003). II “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Because Coble filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district court’s federal ha-beas review was governed by AEDPA. Under AEDPA, habeas relief is not available to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,”" }, { "docid": "23703199", "title": "", "text": "knowingly presented perjured testimony and whether the prosecution had failed to disclose exculpatory information to the defense. II We will address first those claims for which the district court granted a COA, and then consider Henderson’s request for a COA. A Standard of Review We review the district court’s factual findings for clear error and its legal conclusions de novo, applying the same standard of review to the state court’s decision as the district court. Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.2002); Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Henderson argues that the district court erred by applying the deferential standard of review set forth in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996). As Henderson notes, the Supreme Court rejected that standard in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), decided more than a year prior to the district court’s opinion. Although Henderson is correct, the district court’s error is harmless, because Henderson is not entitled to relief under the correct standard of review. Because Henderson filed his federal ha-beas petition after the effective date of the Anti-terrorism and Effective Death Penalty Act (AEDPA), AEDPA governs our re view of his claims. With respect to those claims that were adjudicated on the merits in state court, Henderson is not entitled to relief unless the state court’s adjudication of the claims (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States ... if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially" }, { "docid": "23703198", "title": "", "text": "Henderson filed a post-hearing brief in which he asserted a claim based on the State’s failure to disclose the derivative use immunity provision in Williams’s plea agreement. Henderson claimed that the derivative use immunity provision would have barred Williams’s prosecution for the aggravated robbery in Dallas and the unauthorized use of Lennox’s vehicle. Henderson also claimed that the prosecutor’s notes reflected that Williams did not talk about Henderson’s gang affiliation until after he was promised derivative use immunity. The district court denied habeas relief, but granted a COA for two issues: (1) whether trial counsel rendered ineffective assistance by failing to move for a mistrial at the close of the State’s case-in-ehief after the prosecutor had failed to introduce into evidence the two incriminating statements by Henderson to which the prosecutor had referred in his opening statement; and (2) whether trial counsel rendered ineffective assistance by failing to object to the introduction of gang evidence at the guilt-innocence phase of trial. Henderson seeks a COA for one additional issue encompassing two sub-claims: Whether the prosecution knowingly presented perjured testimony and whether the prosecution had failed to disclose exculpatory information to the defense. II We will address first those claims for which the district court granted a COA, and then consider Henderson’s request for a COA. A Standard of Review We review the district court’s factual findings for clear error and its legal conclusions de novo, applying the same standard of review to the state court’s decision as the district court. Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.2002); Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Henderson argues that the district court erred by applying the deferential standard of review set forth in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996). As Henderson notes, the Supreme Court rejected that standard in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), decided more than a year prior to the district court’s opinion. Although Henderson is correct, the district court’s error is harmless, because Henderson is not entitled to relief under the correct standard of review." }, { "docid": "7767823", "title": "", "text": "the district court granted a COA and challenges the district court’s denial of his motion for investigatory funds. II. STANDARD OF REVIEW Because Riley filed his habeas petition on April 1, 1998, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to his appeal. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir.2002) (citing Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (noting that the AEDPA applies to all federal habeas petitions filed on or after April 24, 1996)). According to the AED-PA, habeas relief cannot be granted unless the challenged state court proceeding resulted in (1) “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); or (2) “a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under subpart (d)(1) of § 2254, “unreasonable” does not mean merely incorrect. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003). “[A]n application of clearly established Supreme Court precedent must be incorrect and unreasonable to warrant federal habeas relief.” Id. (internal quotations omitted); accord Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A claim of ineffective assistance of counsel presents a mixed question of law and fact. Lockett v. Anderson, 230 F.3d 695, 710 (5th Cir.2000). The district court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir.2001). This Court reviews a district court’s denial of investigative funds pursuant to 21 U.S.C. § 848(q) under an abuse of discretion standard. Clark v. Johnson, 202 F.3d 760, 769 (5th Cir.2000). III. DISCUSSION A. Ineffective Assistance of Counsel To establish a claim of ineffective assistance of counsel, a habeas petitioner must satisfy Strickland v. Washington’s, two-prong test: first, the petitioner must affirmatively show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional" }, { "docid": "5962128", "title": "", "text": "115 S.Ct. 101, 130 L.Ed.2d 50 (1994). Coble filed an application for a state writ of habeas corpus, alleging twenty-six claims for relief. The trial court held an evidentiary hearing on five of these claims, but recommended that relief be denied. The TCCA agreed, adopted the trial court’s findings of fact and conclusions of law, and denied relief in an unpublished order. Ex parte Coble, No. 39,707-01 (Tex.Crim.App.1999). Coble then applied for federal habeas relief, and the district court appointed counsel. Coble filed his habeas petition, alleging twenty-five claims, and the district court stayed his execution pending resolution of the petition. The district court denied Coble’s request for an evidentiary hearing and denied the writ. The district court did, however, grant COA on the issue of ineffective assistance of counsel. Coble then petitioned for COA from this court on eleven additional grounds. We granted COA on the issue of whether the “special issue” interrogatories in the Texas capital sentencing instruction precluded effective consideration of Coble’s mitigating evidence in violation of the mandates of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penny I”), and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Penry II”). Coble v. Cockrell, 80 Fed.Appx. 301 (5th Cir.2003). II “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Because Co-ble filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district court’s federal ha-beas review was governed by AEDPA. Under AEDPA, habeas relief is not available to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" }, { "docid": "11115015", "title": "", "text": "competency evaluation during the punishment phase of the trial— were not exhausted before the state courts and were therefore procedurally defaulted. Wood, 386 F.Supp.2d at 839-48, 863-65. As for Wood’s exhausted claim — that his trial attorneys were ineffective because they complied with his instructions and failed to present any mitigating evidence during the punishment phase — the district court found that Wood failed to establish that he was prejudiced by counsel’s failure to put on a mitigation case. Because Wood had not shown prejudice, the district court declined to decide whether counsel’s performance was deficient. Id. at 849-53. II. Standard of Review This court reviews the district court’s findings of fact for clear error and its legal conclusions de novo, applying the same standards as the district court. See, e.g., Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Wood’s application for section 2254 relief is governed by the Antiterrorism and Effective Death Penalty Act ■ of 1996 (“AEDPA”). Under AEDPA, a federal habeas court may not grant relief to a prisoner serving a state sentence with respect to any claim adjudicated on the merits in a state court unless the state court ruling “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). A state decision is “contrary to” clearly established federal law if the state court applies a rule that is “substantially different from” or “contradicts” governing Supreme Court precedent, or if the state court reaches a decision opposite that reached by the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision involves an “unreasonable application” of federal law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. An “unreasonable application” of federal law must be something more than a mere incorrect application. Id. at 410-11, 120 S.Ct. 1495 (“[A]" }, { "docid": "1815127", "title": "", "text": "order on March 2, 2000. On December 7, 2000, the district court denied Crawford’s motion to alter and amend the judgment. On January 8, 2001, Crawford filed a timely notice of appeal and application for certificate of appealability (“COA”). The district court granted a COA with respect to Crawford’s ineffective assistance of counsel claims, and we granted an order expanding the COA to include Crawford’s Brady claim and his juror misconduct claim. II. ISSUES 1. Whether Crawford is entitled to relief based on his claim that he received ineffective assistance of counsel during either the guilt-innocence phase or the penalty phase of his trial. 2. Whether Crawford is entitled to relief based on his claim that exculpatory Brady evidence was not provided to him by the prosecution. 3. Whether Crawford is entitled to relief based on the alleged juror misconduct. III. STANDARD OF REVIEW When reviewing a district court’s judgment in a habeas case, “we traditionally review the district court’s findings of fact for clear error and its legal conclusions and mixed questions of law and fact de novo.\" Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir.2002) (quoting Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir.2001)). In cases''such as this one that challenge, pursuant to 28 U.S.C. § 2254, a petitioner’s conviction or sentence in the state courts, and that are subject to the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, both the district court’s review and our review is greatly circumscribed and is highly deferential to the state courts. See Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 1518-23, 146 L.Ed.2d 389 (2000). We recently explained the standards applicable to our review under these circumstances, stating: First, § 2254(e)(1) provides for a highly deferential standard of review for factual determinations made by a state court: “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Second, § 2254(d) allows federal habeas" }, { "docid": "19344908", "title": "", "text": "Dorsey v. Texas, 539 U.S. 944, 123 S.Ct. 2607, 156 L.Ed.2d 631 (2003). Dorsey filed a petition for state writ of habeas corpus on May 6, 2002. The Court of Criminal Appeals adopted the trial court’s findings and conclusions and, on its own review, denied relief in an unpublished order on February 18, 2004. Ex parte Dorsey, No. 58,161-01 (Tex.Crim.App.2004). Dorsey timely filed his federal habeas petition on December 17, 2004. The Director filed his answer on March 2, 2005. On July 31, 2006, the district court denied Dorsey’s petition for federal habeas relief. Thereafter, on September 12, 2006, the district court granted Dorsey’s request for a COA on two claims. Dorsey appealed the denial of habeas relief on those two certified issues. He also filed an application for COA in this Court on an additional claim alleging trial court error in the denial of his challenges for cause to four members of the venire, a claim upon which the trial court did not grant COA. C. Additional facts necessary to the issues will be presented in the sections that follow. II. The district court granted COA on the first two issues raised by Dorsey in this petition and then denied Dorsey’s petition for habeas relief. In a federal habeas corpus appeal, we review factual findings for clear error and legal issues de novo. Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.2001). Dorsey’s petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a set of material indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Without a direct conflict, a writ should be granted only if the state court identifies the correct governing legal principle but unreasonably applies the principle to the facts of" }, { "docid": "23368616", "title": "", "text": "the convictions but granted a certificate of appealability only as to whether (1) Jackson’s defense counsel’s repeated racially derogatory remarks during trial deprived him of a fair trial; (2) defense counsel impermissibly compelled him to stand trial in jail clothing despite his desire to wear civilian apparel; (3) the trial court erred in admitting irrelevant and highly prejudicial evidence of Ott’s sexual assault and his defense attorney was ineffective in failing to object to this evidence; (4) the introduction of prerecorded testimony by Larry Rushing and Debria Lewis violated his Sixth Amendment right to confrontation; and (5) the cumulative effect of these errors rendered his trial fundamentally unfair. II. STANDARD OF REVIEW Because Jackson’s federal petition for writ of habeas corpus was filed before the effective date of the Anti-Terrorism and Effective Death Penalty Act (AED-PA), the general AEDPA provisions are inapplicable. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). However, the certificate of appealability requirements of AEDPA do apply, Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); therefore, Jackson’s appeal is limited to those claims that the district court certified for appeal. 28 U.S.C. § 2253(c). We review the district court’s decision to grant habeas relief de novo. Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). We review de novo questions of law and mixed questions of law and fact, whether decided by the district court or the state courts. Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir.2006); Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.2002); Williams v. Taylor, 529 U.S. 362, 400, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring) (“[Pre-AEDPA], a federal habeas court owed no deference to a state court’s resolution of such questions of law or mixed questions.”). The district court’s factual findings are reviewed for clear error. We therefore accept its findings “absent a definite and firm conviction that a mistake has been committed.” Hovey, 458 F.3d at 900 (internal quotation marks omitted). State court factual findings are entitled to a presumption of correctness, subject to" }, { "docid": "19934713", "title": "", "text": "Bower a COA on his ineffective assistance of counsel and cumulative Brady claims. Bower sought COAs on the remaining claims in his writ petition, which this court denied. Bower v. Dretke, 145 Fed.Appx. 879 (5th Cir.2005). In the instant appeal, Bower argues that Buckner’s performances at the guilt/innocence phase and the punishment phase of his trial were unreasonably deficient. He also argues that the state failed to turn over material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). II. STANDARD OF REVIEW Bower filed his appeal on April 14, 1992, prior to the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”); accordingly, pre-AEDPA standards apply in this case. Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under pre-AEDPA. standards, whether counsel was deficient and whether any deficiency prejudiced the petitioner are legal conclusions and are, therefore, reviewed de novo. Moore v. Johnson, 194 F.3d 586, 603-04 (5th Cir.1999). “Claims that the government violated Brady are mixed questions of law and fact that we review de novo.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006). Because the state ha-beas judge did not preside over the trial or conduct an evidentiary hearing, the state habeas court’s factual findings are not entitled to a presumption of correctness. See Perillo v. Johnson, 79 F.3d 441, 445-46 (5th Cir.1996). Here, however, the federal district court held its own evidentiary hearing. It was an extensive hearing with both sides presenting numerous witnesses and several exhibits. The factual findings, including credibility determinations, made by the district court from that hearing are reviewed under the clearly erroneous standard. See, e.g., Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001). III. DISCUSSION . . A. Ineffective Assistance of Counsel at the Guilt/Innocence Phase A defendant’s Sixth Amendment rights are violated if counsel’s assistance was deficient and the defendant was therefore prejudiced. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There are two prongs to the" }, { "docid": "21439445", "title": "", "text": "ANALYSIS A. Standard of review and legal framework “In a habeas corpus appeal, we review a district court’s legal conclusions de novo, but will not set aside its factual findings unless they are clearly erroneous.” Dyer v. Bowlen, 465 F.3d 280, 283-84 (6th Cir.2006). The standard for reviewing for state-court determinations, by contrast, is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d). Under the AED-PA standard, a federal court may not grant a writ of habeas to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ... or (2) the state court’s decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007) (quotation marks omitted). A state-court decision is considered “contrary to ... clearly established federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted). Alternatively, to be deemed an “unreasonable application of ... clearly established Federal law,” a state-court decision on the merits must be “objectively unreasonable,” not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495. Findings of fact made by the state court are presumed to be correct unless rebutted by “clear and convincing evidence.” Benge, 474 F.3d at 241. The AEDPA standard of review, however, applies only to “any claim that was adjudicated on the merits in State court proceedings.” Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006). Consequently, where a state court has not previously ruled on the merits of a claim, we apply the de novo standard of review. Id. B. Ineffective assistance of counsel during the penalty phase The first COA issue is whether Hartman’s defense counsel rendered ineffective assistance during the penalty phase of the trial. Hartman’s" }, { "docid": "23703202", "title": "", "text": "v. Johnson, 178 F.3d 381, 384 (5th Cir.1999). In making that determination, we consider three factors: “(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination on the merits.” Id. Under Texas law, “usually a denial of relief rather than a ‘dismissal’ of the claim by the Court of Criminal Appeals disposes of the merits of a claim.” Id. AEDPA’s standards apply, however, when the state’s highest court rejects a claim without giving any indication of how or why it reached that decision. See Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir.1999), aff'd, 528 U.S. 225, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). With respect to claims that were not adjudicated on the merits in state court, the deferential AEDPA standards of review do not apply. See Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir.2002) (if state court misunderstood the nature of a properly exhausted claim and thus failed to adjudicate that claim on the\" merits, AEDPA’s deferential standards of review are inapplicable). Instead, we review those claims under pre-AEDPA standards of review. See Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir.1998) (applying de novo standard of review to ineffective assistance of counsel claims that were raised in state court, but not adjudicated on the merits); see also Chadwick v. Janecka, 312 F.3d at 605-06; Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir.2001); Weeks v. Angelone, 176 F.3d at 258. B Ineffective Assistance of Counsel Henderson claims that his trial counsel rendered ineffective assistance in two re- speets: First, by failing to move for a mistrial at the close of the prosecution’s case-in-chief; and, second, by failing to object to the admission of gang-related evidence during the guilt-innocence phase of trial. “To establish an ineffective assistance of counsel claim, [Henderson] must show both that his counsel’s performance was deficient and that the deficient performance" }, { "docid": "5563856", "title": "", "text": "Supreme Court stated that “[t]he trial court could have concluded that Pearl was not ineffective in not opening the door to this potentially devastating rebuttal evidence.” Id. V. FEDERAL HABEAS PROCEEDINGS' On April 30, 1999, Robinson filed a petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254, reasserting that Pearl was ineffective during resen-tencing. In denying relief, the district court concluded that the Florida courts’ application of Strickland was neither contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Robinson timely appealed the denial of his § 2254 pétition. This Court granted a certificate of appealability (“COA”) as to whether Robinson received ineffective assistance of counsel during his resentencing. VI. STANDARD OF REVIEW “In appeals involving claims of ineffective assistance of counsel, we traditionally review the district court’s findings of fact for clear error and its legal conclusions and mixed questions of law and fact de novo.” Fugate v. Head, 261 F.3d 1206, 1215 (citing Williams v. Head, 185 F.3d 1223, 1226-27 (11th Cir.1999)), cert. denied, — U. S. -, 122 S.Ct. 2310, 152 L.Ed.2d 1065 (2002). In this case, however, both this Court and the district court are reviewing, pursuant to 28 U.S.C. § 2254, a final state judgment on Robinson’s claim. Section 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, establishes a highly deferential standard for reviewing state court judgments. See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, § 2254(e)(1) provides for a highly deferential standard of review for factual determinations made by a state court: “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Fugate, 261 F.3d at 1215; Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.2000), cert. denied, — U.S. -, 122 S.Ct. 357, 151 L.Ed.2d 270 (2001). Second, §" } ]

[ { "docid": "22222324", "title": "", "text": "need for power, we conclude that the PNPC sponsoring companies will be able to use HMS power as soon as it is available.” 31 F. P. C., at 273. On rehearing, the Commission stated that “HMS power will be needed on a regional basis by 1970-1971 _” 31 F. P. C. 1051, 1052. The question whether the proponents of a project “will be able to use” the power supplied is relevant to the issue of the public interest. So too is the regional need for the additional power. But the inquiry should not stop there. A license under the Act empowers the licensee to construct, for its own use and benefit, hydroelectric projects utilizing the flow of navigable waters and thus, in effect, to appropriate water resources from the public domain. The grant of authority to the Commission to alienate federal water resources does not, of course, turn simply on whether the project will be beneficial to the licensee. .Nor is the test solely whether the region will be able to use the additional power. The test is whether the project will be in the public interest. And that determination can be made only after an exploration of all issues relevant to the “public interest,” including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife. The need to destroy the river as a waterway, the desirability of its demise, the choices available to satisfy future demands for energy — these are all relevant to a decision under § 7 and § 10 but they were largely untouched by the Commission. On our remand there should be an exploration of these neglected phases of the cases, as well as the other points raised by the Secretary. We express no opinion on the merits. It is not our task to determine whether any dam at all should be built or whether if one is authorized it should be private or public. If the ultimate ruling" } ]

[ { "docid": "12076373", "title": "", "text": "resources, the record simply cannot support FERC’s conclusion that the Sayles Flat project does not have a potential for adverse cumulative impacts on the environment. Accordingly, FERC’s decision not to prepare an EIS on the project’s cumulative impacts was unreasonable. C. The Federal Power Act LaFlamme contends that by granting this license, FERC violated 16 U.S.C. § 803(a) (amended 1986), which requires that projects be “best adapted to a comprehensive plan for improving or developing a waterway ... for other beneficial public uses, including recreational purposes.... ” The statute’s requirement of a comprehensive plan underscores “Congress’ commitment to coordinated study and comprehensive planning along an entire river system before hydroelectric projects are authorized.” National Wildlife Federation v. F.E.R.C., 801 F.2d at 1507. “Each particular dam project should be given consideration not only with a view to the locality where constructed but with reference to the entire water system of which it constituted a part.” Id. FERC argues that it satisfied this requirement of developing a comprehensive plan by examining in its order denying LaFlamme’s petition for rehearing, the need for this project, its economic feasibility, its fishery, visual, recreational, and other environmental impacts, and its impact on cultural resources. We “must conduct a ‘searching and careful’ inquiry into the record in order to assure [ourselves] that the agency has examined the relevant data and articulated a reasoned explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Id. at 1512, n. 16 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). FERC has an affirmative duty to develop a complete record, inquiring into and considering all relevant facts. Confederated Tribes and Bands of The Yakima Indian Nation v. F.E.R.C., 746 F.2d 466, 472 (9th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985). Therefore, because FERC may only grant licenses which are in “the public interest,” the record must establish that FERC has explored all issues relevant to the public interest, including “future power demand and supply, alternative" }, { "docid": "16821881", "title": "", "text": "the fees were unreasonable. FERC denied the Coalition’s complaint , and its request for rehearing. The Coalition now petitions for review of FERC’s decision, reiterating the arguments it made before FERC as well as some additional ones. We deny review. The Federal Water Power Act of 1920 authorized the Federal Power Commission (now the Federal Energy Regulatory Commission) to issue licenses to public or private licensees to build hydropower projects on navigable waters of the United States. 16 U.S.C. § 797(e) (2000). The Water Power Act was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted. First Iowa Hydro-Elec. Co-op. v. Fed. Power Comm’n, 328 U.S. 152, 180, 66 S.Ct. 906, 90 L.Ed. 1143 (1946). Congress later added the requirement that FERC, in considering whether to license a project, take into account not only the “power and de velopment purposes for which licenses are issued,” but also “the purposes of energy-conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.” 16 U.S.C. § 797(e) (as amended by Pub.L. No. 99-495, § 3(a) (1986)) (emphasis added). To promote recreational use of hydro-power projects, FERC has adopted a regulation placing responsibility on project licensees to develop their project’s recreational resources and permitting licensees to recruit the help of public agencies and private interests in this endeav- or. 18 C.F.R. § 2.7 (2001). Specifically, the regulation states: “The Commission will not object to licensees and operators of recreational facilities within the boundaries of a project charging reasonable fees to users of such facilities in order to help defray the cost of constructing, operating, and maintaining such facilities.” Id. Article 41 of" }, { "docid": "23014396", "title": "", "text": "unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . 33 C.F.R. § 320.4(a) provides as follows: (a) Public interest review. (1) The decision whether to issue a permit will be based on an evaluation of the probable impact of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of the general balancing process (e.g., see 33 CFR 209.400, Guidelines for Assessment of Economic, Social and Environmental Effects .of Civil Works Projects). That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered; among those are conservation, economics, aesthetics, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, and, in general, the needs and welfare of the people. No permit will be granted unless its issuance is found to be in the public interest. (2) The following general criteria will be considered in the evaluation of every application: (i) The relative extent of the public and private need for the proposed structure or work; (ii) The desirability of using appropriate alternative locations and methods to accomplish the objective of the proposed structure or work; (iii) The extent and permanence of the beneficial and/or detrimental effects which the proposed structure or work may have on the public and private uses to which the area is suited; and (iv) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated" }, { "docid": "13565140", "title": "", "text": "and maintain the chemical, physical, and biological integrity of the Nation’s waters” and, among other things, declares as a national goal the elimination of the discharge of pollutants into navigable waters by the year 1985. 33 U.S.C. § 1251(a)(1) (1976); see, e.g., Train v. New York, 420 U.S. 35, 37, 95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975); United States v. Earth Sciences, Inc., 599 F.2d 368, 372-373 (10th Cir. 1979). Further, “a basic policy of the FWPCA is the protection of our nation’s wetlands and the important functions they serve.” Avoyelles Sportsmen’s League v. Alexander, 473 F.Supp. 525, 533 (W.D.La. 1979). 3. The implementing regulations adopted by the Corps of Engineers pursuant to its statutory authority have grown increasingly complex and rigorous since the late 1960’s. This, for us, is the key legal event in the case at bar. Until 1968, the Corps administered the Rivers and Harbors Act solely in the interest of navigation and the navigable capacity of the nation’s waters. However, on December 18, 1968, in response to a growing national concern for environmental values and related federal legislation, the Corps revised its regulations to implement a new type of review termed “public interest review.” Besides navigation, the Corps would consider the following additional factors in reviewing permit applications: fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest. On April 4, 1974, the Corps published further revised regulations so as to: a) incorporate new permit programs under Section 404 of the FWPCA; b) incorporate the requirements of new federal legislation by adding to the factors to be weighed in the public interest review, including: economics; historic values; flood damage prevention; land-use classification; recreation; water supply and water quality; c) adopt further criteria to be considered in the evaluation of each permit application, including the desirability of using appropriate alternatives; the extent and permanence of the beneficial and/or detrimental effects of the proposed activity; and the cumulative effect of the activity when considered in relation to other activities in the same general area; d) institute a full-fledged wetlands policy to protect wetlands subject to" }, { "docid": "12076374", "title": "", "text": "for rehearing, the need for this project, its economic feasibility, its fishery, visual, recreational, and other environmental impacts, and its impact on cultural resources. We “must conduct a ‘searching and careful’ inquiry into the record in order to assure [ourselves] that the agency has examined the relevant data and articulated a reasoned explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Id. at 1512, n. 16 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). FERC has an affirmative duty to develop a complete record, inquiring into and considering all relevant facts. Confederated Tribes and Bands of The Yakima Indian Nation v. F.E.R.C., 746 F.2d 466, 472 (9th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985). Therefore, because FERC may only grant licenses which are in “the public interest,” the record must establish that FERC has explored all issues relevant to the public interest, including “future power demand and supply, alternative sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife.” Udall v. F.P.C., 387 U.S. 428, 450, 87 S.Ct. 1712, 1724, 18 L.Ed.2d 869 (1967). The record does not support FERC’s conclusion that they satisfied FPA’s requirement of developing a comprehensive plan. Although FERC did consider the feasibility and need for power and the project’s impact on fishery and cultural resources, and did recognize that there were visual and recreational resources to consider in the Sayles Flat Area, at no point was any reference made to the entire water system of which the Sayles Flat project constitutes, a part, to the Sayles Flat project’s impact on other projects in the basin, or to the other projects’ impact on the Sayles Flat project. To fulfill its obligation of exploring all issues relevant to the public interest, this type of comprehensive analysis must be performed on the record. National Wildlife Federation v. F.E.R.C., 801 F.2d at 1513;" }, { "docid": "23264332", "title": "", "text": "could be expected to exert was interpreted to create express statutory protection for the public’s interest in conservation of environmental resources, and organizations with a demonstrated concern for those resources could claim that statutory protection for the public. The Rivers and Harbors Act has no review provisions corresponding to those in the Federal Power Act. Nevertheless, persons “aggrieved” by agency action pursuant to that statute are entitled to review on similar terms by the Administrative Procedure Act. We agree with the conclusion of Judge McLean in Road Review League v. Boyd, 270 F.Supp. 650, 661 (S.D.N.Y.1967) that the meaning of “aggrieved” in one act is not different from its meaning in the other. Section 702 of the Administrative Procedure Act provides that a person “aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” These plaintiffs, alleging that the Corps and the Secretary of the Army ignored their environmental concerns, are “aggrieved” within the meaning of at least three “relevant statute[s].” The Department of Transportation Act declares “the national policy that special effort should be made to preserve the natural beauty of the countryside * * and requires consideration of recreational resources and historical values before the Secretary can approve projects under its jurisdiction. The Hudson River Basin Compact Act, P.L. 89-605, 89 Stat. 847 (1966) embodies the conclusion of Congress that the Hudson River basin contains resources of “immense economic, natural, scenic, historic and recreational value to all the citizens of the United States,” and instructs all agencies to consider those resources in planning or approving activities affecting the area. One of the regulations under which the Corps of Engineers issued the present permit provides the following: * * * the decision as to whether a permit will be issued must rest on an evaluation of all relevant factors, including the effect of the proposed work on navigation, fish, and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest. 33 CFR 209.120(d). Thus administrative as well as congressional concern for natural resources in the present exercise of federal authority is evident." }, { "docid": "22222323", "title": "", "text": "for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes . . . .” 49 Stat. 842, 16 U. S. C. § 803 (a). The issues of whether deferral of construction would be more in the public interest than immediate construction and whether preservation of the reaches of the river affected would be more desirable and in the public interest than the proposed development are largely unexplored in this record. We cannot assume that the Act commands the immediate construction of as many projects as possible. The Commission did discuss the Secretary of Interior’s claim that, due to alternate power sources, the region will not need the power supplied by the High Mountain Sheep dam for some time. And it concluded that “[o]f more significance . . . than the regional power situation are the load and resources of the [Pacific Northwest Power Company] companies themselves,” which could use the power in the near future. 31 F. P. C., at 272. It added, “In summary as to the need for power, we conclude that the PNPC sponsoring companies will be able to use HMS power as soon as it is available.” 31 F. P. C., at 273. On rehearing, the Commission stated that “HMS power will be needed on a regional basis by 1970-1971 _” 31 F. P. C. 1051, 1052. The question whether the proponents of a project “will be able to use” the power supplied is relevant to the issue of the public interest. So too is the regional need for the additional power. But the inquiry should not stop there. A license under the Act empowers the licensee to construct, for its own use and benefit, hydroelectric projects utilizing the flow of navigable waters and thus, in effect, to appropriate water resources from the public domain. The grant of authority to the Commission to alienate federal water resources does not, of course, turn simply on whether the project will be beneficial to the licensee. .Nor is the test solely whether the region will be able to use the additional power." }, { "docid": "15944600", "title": "", "text": "“in accordance with the laws, rules, and regulations applicable to the national forests for public outdoor recreation in a manner compatible with ... objectives” such as: (2) conservation of scenic, wilderness, cultural, scientific, and other values contributing to the public benefit; (3) preservation, especially in the area generally known as Hells Canyon, of all features and peculiarities believed to be biologically unique including, but not limited to, rare and endemic plant species, rare combinations of aquatic, terrestrial, and atmospheric habitats, and the rare combinations of outstanding and diverse ecosystems and parts of ecosystems associated therewith; [and] (4) protection and maintenance of fish and wildlife habitat[.] Hells Canyon Act § 7, 16 U.S.C. § 460gg-4. The WSRA instituted a “national wild and scenic rivers system” in order to implement a national policy, 16 U.S.C. § 1271, that “certain selected rivers ... which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values ... be preserved in free-flowing condition, and ... be protected for the benefit and enjoyment of future generations.” 16 U.S.C. § 1271. To achieve this end, the WSRA requires that a river designated as wild and scenic be managed “in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values.” 16 U.S.C. § 1281(a). “[P]rimary emphasis” is to be given to “protecting ... esthetic, scenic, historic, archaeological, and scientific features.” Id. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an EIS is required for all “major Federal actions significantly affecting the quality of the human environment,” id. § 4332(2)(C), to ensure that agencies possess and consider “detailed information concerning significant environmental impacts” and to guarantee “that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109" }, { "docid": "18538118", "title": "", "text": "flood control, or power production. After this decision, the Corps began the long process of changing its regulations governing permit application evaluations. See 42 Fed. Reg. 37122 (1977) (describing historical background of the agency’s practice). In 1976, the Corps issued regulations interpreting its statutory authority as empowering it to take into account a full range of economic, social, and environmental factors. See 33 CFR § 209.120(f)(1). The regulations at issue in this lawsuit, therefore, reflect a broad interpretation of agency power under § 10 that was consistent with the language used by Congress and was well settled by this Court and the Army Corps of Engineers. With respect to the breadth of the Corps’ public interest review, these regulations are substantially the same as those adopted in 1976 and provide: “(a) Public Interest Review. (1) The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process. That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.” 33 CFR § 320.4(a)(1) (1991). These regulations guide the Secretary’s consideration of “public" }, { "docid": "5891952", "title": "", "text": "chemical, physical, and biological integrity of the Nation’s waters” and, among other things, declares as a national goal the elimination of the discharge of pollutants into navigable waters by the year 1985. 33 U.S.C. § 1251(a)(1) (1976); see, e.g., Train v. New York, 420 U.S. 35, 37 (1975); United States v. Earth Sciences, Inc., 599 F.2d 368, 372-373 (10th Cir. 1979). Further, \"a basic policy of the FWPCA is the protection of our nation’s wetlands and the important functions they serve.” Avoyelles Sportsmen’s League v. Alexander, 473 F.Supp. 525, 533 (W.D. La. 1979). 3. The implementing regulations adopted by the Corps of Engineers pursuant to its statutory authority have grown increasingly complex and rigorous since the late 1960’s. This, for us, is the key legal event in the case at bar. Until 1968, the Corps administered the Rivers and Harbors Act solely in the interest of navigation and the navigable capacity of the nation’s waters. However, on December 18, 1968, in response to a growing national concern for environmental values and related federal legislation, the Corps revised its regulations to implement a new type of review termed \"public interest review.” Besides navigation, the Corps would consider the following additional factors in reviewing permit applications: fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest. On April 4, 1974, the Corps published further revised regulations so as to: a) incorporate new permit programs under Section 404 of the FWPCA; b) incorporate the requirements of new federal legislation by adding to the factors to be weighed in the public interest ■ review, including: economics; historic values; flood damage prevention; land-use classification; recreation; water supply and water quality; c) adopt further criteria to be considered in the evaluation of each permit application, including the desirability of using appropriate alternatives; the extent and permanence of the beneficial and/or detrimental effects of the proposed activity; and the cumulative effect of the activity when considered in relation to other activities in the same general area; d) institute a full-fledged wetlands policy to protect wetlands subject to the Corps’ jurisdiction from unnecessary destruction. The inauguration" }, { "docid": "14209499", "title": "", "text": "the measures it believed merited consideration, and their relationship to the objectives of the project. Of course, if energy conservation generally were already being considered in an EIS, more detailed comments might be required to focus the Commission’s attention on specific techniques. See North Carolina v. FPC, supra note 6. Energy conservation was clearly a “color-able” alternative relevant to the goals of the project. The FPC routinely requires that applications to build hydroelectric facilities include an environmental report discussing “the potential for accomplishing the proposed objectives through energy conservation” as well as through alternative energy sources. 18 C.F.R. App. A § 8.2 (1975), 38 Fed.Reg. 15946, 15949 (June 19, 1973). Moreover scholars and government officials are almost unanimous that energy conservation will have an important, although not decisive, role in overall energy policy in coming decades. It follows that energy conservation was not to be dismissed by the Commission without inquiry or explanation. Nor are we persuaded by the argument advanced by the Appeal Board that energy conservation was implicitly considered in the cost-benefit analysis or demand projections. See supra p.-of 178 U.S.App.D.C., pp. 625-626 of 547 F.2d. In enacting §§ 102(C)(iii) and 102(D) of NEPA Congress required explicit consideration of “alternatives to the proposed action.” Express consideration of other approaches to a problem places a proposed action in perspective for both the immediate decisionmaker and the public. We hold that rejection of energy conservation on the basis of the “threshold test” was capricious and arbitrary for the reasons heretofore stated. Remand for further pro ceedings on this and other issues discussed hereafter is therefore necessary. II A. Saginaw also contends that the Commission erred by refusing to permit inquiry into the safety conclusions of the Advisory Committee on Reactor Safeguards [ACRS]. ACRS is a group of outside experts charged by statute to “make reports . . . with regard to the hazards of proposed or existing reactor facilities and the adequacy of proposed reactor safety standards.” 42 U.S.C. § 2039 (1970). See Siegel v. AEC, 130 U.S.App.D.C. 307, 400 F.2d 778, 780 (1968). Pursuant to 42 U.S.C. § 2232(b)," }, { "docid": "22191407", "title": "", "text": "of the Federal Power Act, 16 U.S.C. § 803 (a), does not require analysis of future projects which are not presented in license applications. PASNY adopts the benign position that it has disclosed the feasibility studies presently in progress and that the Commission should take them into account in considering the Gilboa-Leeds line. We cannot agree with petitioners that the Commission erred when it did not require PASNY to supplement its impact statement. NEPA places the onus of formulating the statement solely on the Commission, and, unless there is any indication that the Commission’s procedures will not allow it to comply with its statutory duty this Court should defer to the Commission’s discretion as to the proper information gathering techniques. In an effort to avoid any confusion or misunderstanding on remand, we are constrained to comment on the Commission’s planning responsibility. Under Section 10(a) of the Federal Power Act, the Commission cannot issue a license unless the project is “best adapted to a comprehensive plan . . . for the improvement and utilization of waterpower development and for other beneficial public uses, including recreational purposes; . . . ” In Scenic Hudson I we commented that the Commission’s failure to inform itself of Consolidated Edison’s future interconnection plans “cannot be reconciled with its planning responsibility under the Federal Power Act.” 354 F.2d at 622. And, less than two years later, Justice Douglas writing for the Supreme Court in Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967), made it clear that the Federal Power Act does not command the immediate construction of as many projects as possible and that the determination whether to license any one project “can be made only after an exploration of all issues relevant to the ‘public interest,’ including future power demand and supply, alternate sources of power, [and] the public interest in preserving reaches of wild rivers and wilderness areas. . . . ” Id. at 450, 87 S.Ct. at 1724. Although these decisions may not have established long-range planning requirements, they evi dence a clear intent that the" }, { "docid": "22191408", "title": "", "text": "development and for other beneficial public uses, including recreational purposes; . . . ” In Scenic Hudson I we commented that the Commission’s failure to inform itself of Consolidated Edison’s future interconnection plans “cannot be reconciled with its planning responsibility under the Federal Power Act.” 354 F.2d at 622. And, less than two years later, Justice Douglas writing for the Supreme Court in Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967), made it clear that the Federal Power Act does not command the immediate construction of as many projects as possible and that the determination whether to license any one project “can be made only after an exploration of all issues relevant to the ‘public interest,’ including future power demand and supply, alternate sources of power, [and] the public interest in preserving reaches of wild rivers and wilderness areas. . . . ” Id. at 450, 87 S.Ct. at 1724. Although these decisions may not have established long-range planning requirements, they evi dence a clear intent that the Commission at least should consider all available and relevant information in performing its functions. The Commission’s “hands-off” attitude is even more startling in view of the explicit requirement in NEPA that the Commission “recognize the worldwide and long-range character of environmental problems” and interpret its mandate under the Federal Power Act in accordance with the policies set forth in NEPA. NEPA §§ 102(1), (2) (E), 42 U.S.C.A. §§ 4332(1), (2) (E). Any doubt about the intent of these provisions is obviated by the following statement in the Senate Report accompanying the Act: “Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Important decisions concerning the use and the shape of man’s future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades.” S.Rep.No.91-296, 91st Cong., 1st Sess. 5 (1969). The Commission has indicated that the June 6, 1969, license of the Blenheim-Gilboa Project did not commit it to authorize construction of the Gilboa-Leeds line. But" }, { "docid": "6217141", "title": "", "text": "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C). Agencies were authorized, under guidelines promulgated by the Council on Environmental Quality (“OEQ”), to create categorical exclusions for actions which do not individually or cumulatively have a significant effect on the human environment. 40 C.F.R. §§ 1507.3, 1508.4. FERC adopted such a category of exclusions, including one for merger approvals such as the one at issue in this case. That regulation states in pertinent part: (a) General rule. Except as stated in paragraph (b) of this section, neither an environmental assessment nor an environmental impact statement will be prepared for the following projects or actions: (16) Approval of actions under sections 4(b), 203, 204, 301, 304, and 305 of the Federal Power Act relating to issuance and purchase of securities, acquisition or disposition of property, merger, interlocking directorates, jurisdictional determinations and accounting orders. 18 C.F.R. § 380.4(a)(16). An agency need not issue a “finding of no significant impact” in cases concerning matters that fall into a categorical exclusion. 40 C.F.R. §§ 1501.3, 1501.4, 1508.13. CEQ guidelines also required agencies adopting categorical exclusions to “provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” 40 C.F.R. § 1508.4. FERC made such provision in its regulations: (b) Exceptions to categorical exclusions. (1) In accordance with 40 CFR 1508.4, the Commission and its staff will independently evaluate environmental information supplied in an application and in comments by the public. Where circumstances indicate that an action may be a major Federal action significantly affecting the quality of the human environment, the Commission: (1) May require an environmental report or other additional environmental information, and (ii)Will prepare an environmental assessment or an environmental impact statement. (2) Such circumstances may exist when the action may have an effect on one of the following: (i) Indian lands; (ii) Wilderness areas; (iii) Wild and scenic rivers; (iv) Wetlands; (v) Units of the National Park System, National Refuges, or National Fish Hatcheries; (vi) Anadromous fish or endangered species; or (vii)" }, { "docid": "11794037", "title": "", "text": "there is any feasible and prudent alternative to using that resource. If no feasible and prudent alternative is available, the FHWA must find pursuant to 4(f)(2) that the plans for the project minimize the harm to. the protected resource. The Clean Water Act The Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., prohibits the discharge of pollutants, including dredged spoil, into waters of the United States, except in compliance with various sections of the CWA, including Section 404. See 33 U.S.C. § 1311(a). “Waters of the United States” is defined by regulation to include wetlands. 33 C.F.R. § 328.3(a), (b). Section 404(a) authorizes the Secretary of the Army (“Secretary”), acting through the Corps, to issue permits for the discharge of dredged or fill material into waters of the United States (“Section 404 Permit”). See 33 U.S.C. § 1344(a). Section 404(b) provides that, in reviewing each permit application, the Secretary must apply guidelines developed by the Environmental Protection Agency (“EPA”) in conjunction with the Secretary. 33 U.S.C. § 1344(b). The guidelines developed pursuant to Section 404(b) (“404 guidelines”) are published at 40 C.F.R. § 230.1 et seq. If the Corps finds that the permit application complies with the 404 guidelines, the Corps must issue the permit “unless the district engineer determines that it would be contrary to the public interest.” 33 C.F.R. § 320.4(a)(1). The Corps’ “public interest review” evaluates “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” Id. The Corps must then balance “benefits which reasonably may be expected to accrue from the proposal” against the proposal’s “reasonably foreseeable detriments.” Id. Among the factors to be considered by the Corps in its public interest review are: conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people. Id. The regulations that govern the Corps’ issuance" }, { "docid": "23264333", "title": "", "text": "national policy that special effort should be made to preserve the natural beauty of the countryside * * and requires consideration of recreational resources and historical values before the Secretary can approve projects under its jurisdiction. The Hudson River Basin Compact Act, P.L. 89-605, 89 Stat. 847 (1966) embodies the conclusion of Congress that the Hudson River basin contains resources of “immense economic, natural, scenic, historic and recreational value to all the citizens of the United States,” and instructs all agencies to consider those resources in planning or approving activities affecting the area. One of the regulations under which the Corps of Engineers issued the present permit provides the following: * * * the decision as to whether a permit will be issued must rest on an evaluation of all relevant factors, including the effect of the proposed work on navigation, fish, and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest. 33 CFR 209.120(d). Thus administrative as well as congressional concern for natural resources in the present exercise of federal authority is evident. We hold, therefore, that the public interest in environmental resources — an interest created by statutes affecting the issuance of this permit — is a legally protected interest affording these plaintiffs, as responsible representatives of the public, standing to obtain judicial review of agency action alleged to be in contravention of that public interest. Scenic Hudson Preservation Conf. v. F. P. C., supra; State of Washington Dept. of Game v. F. P. C., 207 F.2d 391 (9th Cir. 1953); Road Review League v. Boyd, supra. III. The federal defendants challenge the standing of the Village of Tarry-town on a somewhat different ground. Conceding that the Village may have standing to challenge construction of the Expressway itself, they contend that issuance of the fill permit could not have a direct effect on the Village and therefore no standing exists to challenge the permit. This argument ignores the realities confronting the Village of Tarrytown. It is true that the Corps of Engineers cannot affirmatively control the entire Expressway project, as the Federal Power Commission controlled the project" }, { "docid": "10449346", "title": "", "text": "proposed action, the less extensive the search for alternatives is to be expected of the agency. River Road Alliance, Inc., 764 F.2d at 452. B. PUBLIC INTEREST REVIEW AND OTHER CORPS REGULATIONS In addition to the regulations implementing NEPA, the Corps has adopted regulations which serve as guidelines for the evaluation of all regulatory permit applications; 33 C.F.R. pt. 320 (1986). Chief among these regulations is 33 C.F.R. § 320.4(a) which requires the Corps to undertake a general “public interest review” to decide whether a permit should issue. In this review the Corps must evaluate a proposal’s overall impact on the public interest, balancing the “benefits which reasonably may be expected to accrue ... against its reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a). In weighing the public interest, the Corps is to evaluate the following general criteria: (1) the relative extent of a public and private need for the proposed project; (2) where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed project; and, (3) the extent and permanence of the beneficial and/or detrimental effects which the proposed project may have on the public and private uses to which the area is suited. 33 C.F.R. § 320.-4(a)(2). Furthermore, ¿11 factors which may be relevant to the proposal must be considered, including but not limited to “conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people.” 33 C.F.R. § 320.4(a)(1). The decision whether to issue the permit depends on the outcome of this balancing of factors. A permit is to be granted unless the district engineer determines that it will be contrary to the public interest. 33 C.F.R. § 320.4(a)(1). When the decision on the permit application is made the district engineer must include the results of his public interest review in" }, { "docid": "10449347", "title": "", "text": "the proposed project; and, (3) the extent and permanence of the beneficial and/or detrimental effects which the proposed project may have on the public and private uses to which the area is suited. 33 C.F.R. § 320.-4(a)(2). Furthermore, ¿11 factors which may be relevant to the proposal must be considered, including but not limited to “conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people.” 33 C.F.R. § 320.4(a)(1). The decision whether to issue the permit depends on the outcome of this balancing of factors. A permit is to be granted unless the district engineer determines that it will be contrary to the public interest. 33 C.F.R. § 320.4(a)(1). When the decision on the permit application is made the district engineer must include the results of his public interest review in the Statement of Findings, a document which must be prepared in all permit decisions not requiring preparation of an EIS. 33 C.F.R. § 325.-2(a)(6) (1986). Corps regulations require that the district engineer consult with the directors of the United States Fish and Wildlife Service, the National Marine Fishery Service and the agency responsible for wildlife for the state in which the work is to be performed and accord “great weight” to their views on fish and wildlife conservation. 33 C.F.R. § 320.4(c); Hough v. Marsh, 557 F.Supp. 74, 81 (D.Mass.1982). Also the district engineer must consider all comments received in response to public notice regarding the permit application. 33 C.F.R. § 325.2(a)(3). Due consideration must also be given to the official views of the state, regional or local agencies having an interest over the particular activity as “a reflection of local factors of the public interest.” 33 C.F.R. § 320.4(j)(l). The district engineer must conduct an independent evaluation of the permit application and be responsible for the accuracy of information submitted by the applicant. 33" }, { "docid": "671118", "title": "", "text": "the regulation for the Rivers and Harbors Act, 33 U.S.C. § 403, which is found at 33 C.F.R. 320.4. It provides: (a) Public Interest Review (1) The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process. That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people. For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the Environmental Protection Agency’s 404(b)(1) guidelines. Subject to the preceding sentence and any other applicable guidelines and criteria (see §§ 320.2 and 320.3), a permit will be granted unless the district engineer determines that it would be contrary to the public interest. 33 C.F.R. 320.4 (emphasis added). This language demonstrates that as to the issuance of the subject permit, by virtue of the language of the regulation, this decision was a policy judgment left to the Corps to balance a myriad of factors, including flood hazards as opposed to the needs and welfare of the people. The context" }, { "docid": "12076375", "title": "", "text": "sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife.” Udall v. F.P.C., 387 U.S. 428, 450, 87 S.Ct. 1712, 1724, 18 L.Ed.2d 869 (1967). The record does not support FERC’s conclusion that they satisfied FPA’s requirement of developing a comprehensive plan. Although FERC did consider the feasibility and need for power and the project’s impact on fishery and cultural resources, and did recognize that there were visual and recreational resources to consider in the Sayles Flat Area, at no point was any reference made to the entire water system of which the Sayles Flat project constitutes, a part, to the Sayles Flat project’s impact on other projects in the basin, or to the other projects’ impact on the Sayles Flat project. To fulfill its obligation of exploring all issues relevant to the public interest, this type of comprehensive analysis must be performed on the record. National Wildlife Federation v. F.E.R.C., 801 F.2d at 1513; Confederated Tribes and Bands of the Yakima Indian Nation v. F.E.R.C., 746 F.2d at 472. Therefore, we conclude that the present record does not support FERC’s conclusion that they had satisfied the FPA’s requirement of developing a comprehensive plan. III. Remedy The license for the Sayles Flat Project as issued by FERC on September 26, 1983, and as amended is suspended and FERC’s order denying LaFlamme’s petition for rehearing is set aside. The matter is remanded to FERC for further consideration of the issues raised by petitioner LaF-lamme concerning the Sayles Flat Project recreational use and visual quality, cumulative impact and need for a comprehensive plan. FERC shall consider the requirements of the Federal Power Act, the National Environmental Policy Act and all applicable regulations, and FERC shall not reinstate the license for the Sayles Flat Project or allow its operation until such time as the issues concerning the Project, recreation use and visual quality, cumulative impact and need for a comprehensive plan have been satisfied consistent with this opinion. The license suspension will have" } ]

[ { "docid": "1547861", "title": "", "text": "right to maintain this proceeding, in its final analysis, depends upon whether or not her claim that she was defrauded in the purchase of the stock is one provable in bankruptcy. Undoubtedly, claims such as that asserted by the petitioner in this case may properly be made the basis of a pure tort action, but the authorities are too well settled to admit of doubt that where a tortious act has resulted in the unjust enrichment of the tort-feasor, tile tort may be disregarded and an action maintained on the theory of an equitable quasi contract. Schall v. Camors, supra; Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 27 S. Ct. 493, 51 L. Ed. 762; Clarke v. Rogers, 228 U. S. 534, 33 S. Ct. 587, 57 L. Ed. 953; Friend v. Talcott, 228 U. S. 27, 33 S. Ct. 505, 57 L. Ed. 718; McIntyre v. Kavanaugh, 242 U. S. 138, 37 S. Ct. 38, 61 L. Ed. 205. Section 63 (4) of the Bankruptcy Act (11 USCA § 103(4) enumerates among the debts declared to be provable against a bankrupt estate claims “founded upon an open account, or upon a contract express or implied.” As this section has been construed by tho Supreme Court in numerous eases, I have no doubt that the claim asserted by the petitioner is one provable in bankruptcy. Schall v. Camors, supra; Crawford v. Burke, supra; Tindle v. Birkett, supra; Clarke v. Rogers, supra; Friend v. Talcott, supra. I cannot agree with the second contention of the respondent, that a defrauded stockholder in an ordinary trading corporation, such as the respondent, will in no ease be permitted to rescind after insolvency or bankruptcy intervenes. The eases most frequently cited on this general proposition are Upton v. Tribilcock, 91 U. S. 45, 50, 23 L. Ed. 203, and Chubb v. Upton, 95 U. S. 665, 667, 24 L. Ed. 523, but a careful reading of these two cases will demonstrate that they do not sustain the contention of the" } ]

[ { "docid": "4346944", "title": "", "text": "by the leases, and the trustee in fact repudiated them,” and they urge that they should be allowed to amend their claims, if necessary, and prove these facts together with the liquidation of their damages. We shall assume for purposes of further discussion that the leases have been or could still be terminated by the lessors in one or the other of the methods provided for. When the petition in bankruptcy was filed, which is the critical date as of whieh a provable claim must exist (Zavelo v. Reeves, 237 U. S. 625, 33 S. Ct. 365, 57 L. Ed. 676, Ann. Cas. 1914D, 664), it is apparent that the claim was contingent. The date when it would become due was contingent on termination of the lease, and if, before termination, the tenant should be evicted by title paramount or the budding be destroyed within the last year of the term, no liability would ever arise. Claims based on similar covenants to restore were disallowed in McDonnell v. Woods, 298 F. 434 (C. C. A. 1), and In re Amstein, 101 F. 706 (D. C. S. D. N. Y.). See, also, In re Schulte United, 2 F. Supp. 285 (D. C. S. D. N. Y.); In re Jorolemon-Oliver Co., 213 F. 625 (C. C. A. 2). Compare In re Barton Co., 34 F.(2d) 517 (D. C. D. N. H.); Trust Co. of Georgia v. Whitehall Holding Co., 53 F.(2d) 635 (C. C. A. 5); In re Desnoyers Shoe Co., 227 F. 401, 402 (C. C. A. 7). The two eases last citad are perhaps distinguishable from those where the claims were held nonprovable; in the Whitehall Case it is said that the contract contained clauses “voiding the lease in the event of bankruptcy,” and in the Desnoyers Shoe Co. Case the lease was to cease at the option of the lessor “if the lessee becomes insolvent or bankrupt.” The eases which have denied provability to claims based upon a covenant to restore alterations at the termination or expiration of a lease have stressed the language of section 63a (1) of" }, { "docid": "13277986", "title": "", "text": "re Smith Lumber Co. (D. C.) 132 F. 620,13 Am. Bankr. Rep. 118. The second claim arises out of the allegation that the silk company, while insolvent, drew and delivered its checks aggregating $50,000 to Stipp within four months of the filing of the petition in bankruptcy against it. Stipp, being president of the silk company, is charged with knowledge of its condition. If the silk company owed him $50,000 the payment was preferential, and if the company did not owe it, the payment was in fraud of creditors, and may be recovered. In either ’case, Stipp is under obligation to pay the money to the trustee of the silk company. Whether or not this obligation is a provable claim depends upon the nature of the obligation. Counsel says that this obligation isj at best, “but a quasi contract.” This definition of the relation between the parties is accepted by the trustee, who says that a breadth of meaning should be given to “implied” contracts which will include “quasi contracts” which will support a provable claim. Reynolds v. New York Trust Co. (C. C. A.) 188 F. 611, 616, 39 L. R. A. (N. S.) 391. Contracts are express when their terms are stated by the parties. They are “implied” when they are not so stated. The term “implied contracts” has been used in two senses: Contracts “implied in law” and contracts “implied in fact.” A - contract implied in law is sometimes called a “constructive contract,” but a better term is “quasi contract,” for strictly speaking it is not a contract at all. Elliot on Contracts, vol. 1, § 18; vol. 2, § 1355; Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 97 N. E. 280, Ánn. Cas. 1913A, 471. They are called contracts by a legal fiction adopted for the purpose of doing justice between the parties and for the sake of the remedy, to enforce obligations created by law, by actions, in form, ex contractu, as where one party has paid or received something which the other, in justice, ought to have paid or" }, { "docid": "15740620", "title": "", "text": "or implied. Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Kreitlein v. Ferger, 238 U.S. 21, 24, 35 S.Ct. 685, 59 L.Ed. 1184; In re E. J. Arnold & Co. (D.C.) 133 F. 789; In re Filer (D.C.) 125 F. 261. In cases of fraud not involving an express contract, but resulting in unjust enrichment, an implied obligation to pay may be created. Schall v. Camors, 251 U.S. 239, 40 S.Ct. 135, 64 L.Ed. 247. As stated in Clarke v. Rogers (C.C.A.) 183 F. 518, 522, affirmed 228 U.S. 534, 33 S.Ct. 587, 57 L.Ed 953: “This, of course, is a mere fiction of law; but, like all other such fictions, it is effectual when it will- accomplish the ends of justice.” Thus, apart from the question of liquidation or contingency, the government had a provable claim in 1923. The fact that it was unliquidated would not bar its existence as a provable debt in bankruptcy, since section 63b (two subsections are designated b) of the Bankruptcy Act (11 U.S.C. A. § 103(b) provides for liquidation of claims. The debt was not. contingent, since all of the facts were in existence of which proof would be required to settle the liability. It is thus found that under the Bankruptcy Act a debt upon which a claim could have been filed did exist in favor of the government in 1923. Prior to the effective date of section 55-a of the Insurance Law of the State of New York, Consol.Laws, c. 28 (March 31, 1927) which made the avails of an insurance policy payable to a beneficiary named therein exempt from debts of the insured, they were liable for such debts where the insured had the right to change the beneficiary. Section 55-a did not affect debts incurred prior to its effective date. In re Messinger (C.C.A.) 29 F.(2d) 158, 68 A.L.R. 1205; In re Sturdevant (D.C.) 29 F.(2d) 795; In re Firestone (D.C.) 2 F.Supp. 96; Addiss v. Selig, 264 N.Y. 274, 190 N.E. 490; Cecilian Operating Corp. v. Berkwit, 151 Misc. 814, 272 N.Y.S. 291. When" }, { "docid": "14356870", "title": "", "text": "by 11 U.S.C.A. § 35(a) (2). Under the Bankruptcy Act, a discharge may release the bankrupt only from his provable debts. 11 U.S.C.A. § 35 (emphasis supplied). The Act enumerates the classes of debts which may be proved, 11 U.S.C.A. § 103; if a particular claim does. not fall within one of these categories, it is not provable. Since there is no general inclusion of tort claims, it is well settled that these are not provable unless they fall within a specific statutory category. See 3 Collier on Bankruptcy p. 1862 (14th- Ed.). Defendant contends that plaintiff’s claim was provable as a claim founded upon “an open account, or a contract express or implied.” 11 U.S.C.A. § 103, sub. a (4). It has been held, in somewhat analogous situations, that, when an ele-? ment of unjust enrichment is present, giving rise to an obligation on the part of the tort-feasor to account to the in jured party, a contract will be implied in law, thus rendering the claim provable to the extent of the unjust enrichment. See, e. g., Crawford v. Burke, 1904, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Schall v. Camors, 1920, 251 U.S. 239, 251, 40 S.Ct. 135, 64 L.Ed. 247. It is sought here to apply this concept to cases of patent infringement, in which admittedly an element of unjust enrichment is present. Although one case has held a patent infringement claim provable on this theory, Schiff v. Hammond Clock Co., 7 Cir., 69 F.2d 742, reversed on other grounds 1934, 293 U.S. 529, 55 S.Ct. 146, 79 L.Ed. 639, Judge Patterson, when sitting as a District Judge in this District squarely dealt with the question, and ruled that such a claim was not provable. In re Paramount Publix Corp., D.C.S.D.N.Y.1934, 8 F.Supp. 644, Judge Patterson commented: “It has accordingly been decided that claims for conversion, fraud, recovery of voidable preference, and even defalcation as trustee are provable where the bankrupt realized value from the transactions. * * * “But this is the limit. An obligation imposed by law where there is no contract" }, { "docid": "4346945", "title": "", "text": "1), and In re Amstein, 101 F. 706 (D. C. S. D. N. Y.). See, also, In re Schulte United, 2 F. Supp. 285 (D. C. S. D. N. Y.); In re Jorolemon-Oliver Co., 213 F. 625 (C. C. A. 2). Compare In re Barton Co., 34 F.(2d) 517 (D. C. D. N. H.); Trust Co. of Georgia v. Whitehall Holding Co., 53 F.(2d) 635 (C. C. A. 5); In re Desnoyers Shoe Co., 227 F. 401, 402 (C. C. A. 7). The two eases last citad are perhaps distinguishable from those where the claims were held nonprovable; in the Whitehall Case it is said that the contract contained clauses “voiding the lease in the event of bankruptcy,” and in the Desnoyers Shoe Co. Case the lease was to cease at the option of the lessor “if the lessee becomes insolvent or bankrupt.” The eases which have denied provability to claims based upon a covenant to restore alterations at the termination or expiration of a lease have stressed the language of section 63a (1) of the Bankruptcy Act, 11 US CA § 103 (a) (1) requiring the bankrupt’s debt to be “a fixed liability * * * absolutely owing at the time of the filing of the petition against him, whether then payable or not.” McDonnell v. Woods, supra, was decided after the Supreme Court had announced in Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, the doctrine that bankruptcy is an anticipatory breach of the bankrupt’s executory contracts, although it gives little or no consideration to the language of section 63a (4), 11 USCA § 103 (a) (4) whieh permits proof of a debt “founded * * * upon a contract express or implied.” That claims provable under the latter subdivision need not be abso lutely owing at the time of the filing of the petition is made clear by the recent opinion of Mr. Justice Stone in Maynard v. Elliott, 283 U. S. 273, 51 S. Ct. 390, 75 L. Ed. 1028. It" }, { "docid": "7699915", "title": "", "text": "appear. Hence the proof was sufficient that the charterer was liable for loss of cargo due to the scow’s unseaworthiness. See The Harper No. 145, 42 F.(2d) 161 (C. C. A. 2); S. C. Loveland Co. v. Bethlehem Steel Co., 33 F.(2d) 655 (C. C. A. 3). This liability is a proper element of damage in its suit against the owner upon the latter’s covenant. Pendleton v. Benner Line, supra. There remains the question whether the Cullen Company may limit liability upon its covenant. The scow was chartered under the usual oral contract arranged by telephone. The covenant of seaworthiness is an implied covenant and the authorities are not in accord as to whether such an implied obligation is to be deemed the personal contract of the owner in such sense as to preclude limitation of liability under the doctrine declared in Pendleton v. Benner Line, 246 U. S. 353, 38 S. Ct. 330, 62 L. Ed. 770. In this circuit it has been given the same effect as an express contract. The Loyal, supra; see The Soerstad, 257 F. 130 (D. C. S. D. N. Y.); cf. The Ice King, 261 F. 897, 899 (C. C. A. 2). The opposite view was taken in Pocomoke Guano Co. v. Eastern Transp. Co., 285 F. 7 (C. C. A. 4). See, also, Quinlan v. Pew, 56 F. 111, 119 (C. C. A. 1). Capitol Transportation Co. v. Cambria Steel Co., 249 U. S. 334, 39 S. Ct. 292, 63 L. Ed. 631, actually dealt with an implied warranty, as appears from the district court’s opinion (The Benjamin Noble [D. C.] 232 F. 382, 389), although the Supreme Court did not allude to this fact and apparently treated the case as governed by Pendleton v. Benner Line, supra, and Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U. S. 139, 39 S. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522, where the warranties were express. See comment on these cases in The No. 34, 25 F.(2d) 602, 607 (C. C. A. 2). We adhere to our own former" }, { "docid": "4346931", "title": "", "text": "24 hours. i The appellee asserts that appellants’ claims do not sufficiently show an exercise of the option to terminate the lease. In Central Trust Co. v. Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, it was held that bankruptcy was an anticipatory breach of an executory contract giving rise to a provable claim. It distinguished a number of cases arising out of the relation of landlord and tenant where it was held that future rents and other obligations of the lessee were not provable against a bankrupt estate. The cases disclose that some obligations of the lessee found in a lease, unlike rents unaccrued when the petition is filed, are provable. In re Marshall’s Garage, 68 F.(2d) 759 (C. C. A. 2); Trust Co. of Ga. v. Whitehall Holding Co., 53 F.(2d) 635 (C. C. A. 5); In re Desnoyers Shoe Co., 227 F. 401 (C. C. A. 7); In re Barton (D. C.) 34 F.(2d) 517. In each case it must be determined whether the claim is so contingent and speculative as to make it uncertain whether liability would ever attach. As pointed out in the case of In re Roth & Appel (C. C. A.) 181 F. 667) 31 L. R. A. (N. S.) 270 (C. C. A. 2), the claim for future rent is fatally contingent. And in the case of In re Jorolemon-Oliver Co., 213 F. 625 (C. C. A. 2), this court applied the same rule as the Roth Case and held that certain claims under a lease of machinery were not provable because the lease was terminated, not by bankruptcy, but by the option of the landlord who “served notice upon the trustee in bankruptcy terminating the leases.” The claims there disallowed were not for future rents, but for repairs, freight, and return charges on the leased chattels. In the case of In re Desnoyers Shoe Co., 227 F. 401 (C. C. A. 7), the court, Mack, J., allowed claims similar to those rejected in the Jorolemon Case, supra. The court said that" }, { "docid": "15740619", "title": "", "text": "others. Following a determination of the question of fraud, an accounting was had, and a decree awarding judgment was entered July 25, 1929. In • fixing the time when a claim of this nature becomes a debt, reference may be had to the laws relating to insolvency and bankruptcy. Until final fixation of the amount of liability, the claim was unliquidated. People v. Metropolitan Surety Co., 205 N.Y. 135, 98 N.E. 412, Ann.Cas.1913D, 1180. An unliquidated claim for damages occasioned by fraud is not a provable debt under the Bankruptcy Law (section 63 [11 U.S.C.A. § 103]) ; and tort claims not reduced to judgment are not provable in bankruptcy. In re Kroeger Bros. Co. (D.C.) 262 F. 463; In re Cunningham (D.C.) 253 F. 663. The rule is the same even though the claim was reduced to judgment after the filing of the petition in bankruptcy. In re Crescent Lumber Co. (D.C.) 154 F. 724. An exception is made, however, when the tort is waived and proof can be made on a contract, express or implied. Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Kreitlein v. Ferger, 238 U.S. 21, 24, 35 S.Ct. 685, 59 L.Ed. 1184; In re E. J. Arnold & Co. (D.C.) 133 F. 789; In re Filer (D.C.) 125 F. 261. In cases of fraud not involving an express contract, but resulting in unjust enrichment, an implied obligation to pay may be created. Schall v. Camors, 251 U.S. 239, 40 S.Ct. 135, 64 L.Ed. 247. As stated in Clarke v. Rogers (C.C.A.) 183 F. 518, 522, affirmed 228 U.S. 534, 33 S.Ct. 587, 57 L.Ed 953: “This, of course, is a mere fiction of law; but, like all other such fictions, it is effectual when it will- accomplish the ends of justice.” Thus, apart from the question of liquidation or contingency, the government had a provable claim in 1923. The fact that it was unliquidated would not bar its existence as a provable debt in bankruptcy, since section 63b (two subsections are designated b) of the Bankruptcy Act (11 U.S.C. A." }, { "docid": "22865354", "title": "", "text": "include claims arising purely ex delicto. Such claims might easily have been mentioned if intended to be included.Upon every consideration, we are clear that claims based upon a mere tort are not provable. Where the tortious act constitutes at the same time a breach of contract' a different question may be raised, with which we have no present concern; and where, by means of the tort, the tort-feasor obtains something of value for which an' equivalent price, •ought to be paid, even if the tort as such be forgiven, there may be a provable claim quad ex contractu. Crawford v Burke, 195 U. S. 176, 187; Tindle v. Birkett, 205 U. S. 183, 186; Clarke v. Rogers, 183 Fed. Rep. 518, 521-522; affd. 228 U. S. 534, 543. Of course, §§ 63 and 1 < are to be read together. . The reference in the latter section to “provable debts,”, defined in the former, would-be sufficient to show tins. See Crawford v. Burke, 195 U. S. 176, 193; Tindle v. Birkett, 205 U. S. 183, 186; Friend v. Talcott, 228 U. S. 27, 39; Clarke v. Rogers, 228 U. S. 534, 548. It is petitioners’ contention that § 17 as amended in 1903 (Act of February -5, 1903, c.. 487, § 5; 32 Stat. 797, 798), amounts to a.legislative construction admitting tort claims to proof. The section as it stood before, and the nature of the amendment, are set forth in the margin.. We are referred to the Committee’s report (House Rep. No. 1698, 57th Cong., 1st sess., pp. 3, 6) as indicating that by the law as it stood, in the opinion of the Committee, claims created by fraud but not reduced to judgment were discharged; reference having been made to In re Bhutassel, 96 Fed. Rep. 597, and In re Lewensohn, 99 Fed. Rep. 73 (affd., 104 Fed. Rep. 1006), as contradictory decisions upon the point. But neither the report of the Committee nor the language of the amendment gives the least suggestion of an intent to enlarge the description of provable claims as set forth in §" }, { "docid": "14356871", "title": "", "text": "enrichment. See, e. g., Crawford v. Burke, 1904, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Schall v. Camors, 1920, 251 U.S. 239, 251, 40 S.Ct. 135, 64 L.Ed. 247. It is sought here to apply this concept to cases of patent infringement, in which admittedly an element of unjust enrichment is present. Although one case has held a patent infringement claim provable on this theory, Schiff v. Hammond Clock Co., 7 Cir., 69 F.2d 742, reversed on other grounds 1934, 293 U.S. 529, 55 S.Ct. 146, 79 L.Ed. 639, Judge Patterson, when sitting as a District Judge in this District squarely dealt with the question, and ruled that such a claim was not provable. In re Paramount Publix Corp., D.C.S.D.N.Y.1934, 8 F.Supp. 644, Judge Patterson commented: “It has accordingly been decided that claims for conversion, fraud, recovery of voidable preference, and even defalcation as trustee are provable where the bankrupt realized value from the transactions. * * * “But this is the limit. An obligation imposed by law where there is no contract implied by law * * * does not give rise to a provable claim. * * * We must not overlook the fact that it is a statute that we are construing, and that the statutory language is ‘contract, express or implied’. “Infringement of patent is essentially a tort. * * * [Tjhere is nothing of a contractual character in the situation, nor has the law ever resorted to the fiction of a contract on the part of the infringer to pay over his profits to the pat-entee. I know of no authoritative case sustaining an action of assump-sit to recover such profits.” 8 F. Supp. at pages 645-646. The defendant argues that the Bankruptcy Act has since been amended, and that the amendments all show a trend toward greater provability of claims. While such a trend is undeniable, Congress has made the changes it felt necessary by adding to or clarification of the specific categories of 11 U.S.C.A. § 103. Thus, in 1934, claims for negligence instituted prior to the filing of the petition" }, { "docid": "4336033", "title": "", "text": "each petition alleges a pure tort claim for unliquidated damages caused by fraudulent misrepresentations. Such a claim is, of course, not prov.able in bankruptcy. Schall v. Camors, 251 U. S. 239, 40 S. Ct. 135, 64 L. Ed. 247. It is true the allegations are sufficient to charge liability in tort for fraud, but they are also sufficient to show bability in contract. One who sells a bond with an absolute representation that it is secured by a first mortgage, may well be found to have given a warranty to this effect. See Burtch v. Child, Hulswit & Co., 207 Mich. 205, 174 N. W. 170'; Menard v. Clarence E. Thompson & Sons, 90 Conn. 30, 96 A. 177; 9 C. J. 60. That a claim on a warranty is provable, even though in ease of fraud there might be an independent claim purely in tort, is expressly stated in Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445, 449, 29 S. Ct. 332, 53 L. Ed. 591. We believe that the petitions sufficiently allege a breach of warranty. But in any event they sufficiently allege a quasi contractual liability for unjust enrichment. Such a claim is provable. See Crawford v. Burke, 196 U. S. 176, 187, 25 S. Ct. 9, 49 L. Ed. 147; Schall v. Camors, 251 U. S. 239, 251, 40 S. Ct. 135, 64 L. Ed. 247; Cawthon v. Banco-Kentucky Co., 52 F.(2d) 851 (D. C. W. D. Ky.). It is urged that the petition cannot be treated as asserting a claim for recovery of the purchase price of the bonds because there is no offer to return them. In a suit in equity the decree may make suitable provision for restitution. In re American Knit Goods Mfg. Co., 173 F. 480 (C. C. A. 2); MacNamee v. Bankers’ Union, 25 F. (2d) 614, 618 (C. C. A. 2); Williston, Contracts, § 1460. Proceedings in courts of bankruptcy are in the nature of proceedings in equity, so that the failure to tender restitution before the filing of the petition in bankruptcy is not" }, { "docid": "22712708", "title": "", "text": "11 U. S. C. § 103a. If its grievance was the sale, it might have proved “ upon a contract, express or implied,” § 63 (4), waiving the tort and standing upon the implied assumpsit. Crawford v. Burke, 195 U. S. 176, 193; Tindle v. Birkett, 205 U. S. 183. What it did is not decisive. Crawford v. Burke, supra; Tindle v. Birkett, supra. Enough that a method of proof had been provided to be used at its election. The debt being provable, the next inquiry must be whether the liability back of it is within one of the excepted classes. For present purposes, only two of the exceptions, § 17 (2) and (4), will have to be considered. The others by concession have no relation to this case. Subdivision 2 excludes from the release “liabilities for . . . willful and malicious injuries to the person or property of another.” Subdivision 4 excludes the liabilities of a bankrupt “ created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity.” The respondent contends that the petitioner was liable for a wilful and malicious injury to the property of another as the result of the sale and conversion of the car in his possession. There is no doubt that an act of conversion, if wilful and malicious, is an injury to property within the scope of this exception. Such a case was McIntyre v. Kavanaugh, 242 U. S. 138, where the wrong was unexcused and wanton. But a wilful and malicious injury does not follow as of course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice. Boyce v. Brockway, 31 N. Y. 490, 493; Laverty v. Snethen, 68 N. Y. 522, 527; Wood v. Fisk, 215 N. Y. 233, 239; 109 N. E. 177; Stanley v. Gaylord, 1 Cush. (Mass.) 536, 550; Compau v. Bemis, 35 Ill. App. 37; In re De Lauro, 1 F. Supp. 678, 679. There may be an" }, { "docid": "13277985", "title": "", "text": "or upon a contract express or implied.” Unless the claim of Doran may be proved under this provision, it is not provable. Admittedly there was no open account or express contract between them. The claim is therefore limited to an .“implied contract.” The first claim is based upon the mortgage of $40,000 given to pay or secure the personal debt of Stipp. The validity of this mortgage has been attacked in the state court on the ground that it was ultra vires and so null and void. This question will ultimately be settled in that court, and we do not need to pass upon it here. It would seem, however, that the bankrupt corporation did not have power to pay or secure the personal debt of Stipp and so the execution of the mortgage was ultra vires. If this is so, the mortgage is invalid and may not be used as the basis of a provable claim. In re Liquor Dealers’ Supply Co. (C. C. A.) 177 F. 197, 24 Am. Bankr. Rep. 399; In re Smith Lumber Co. (D. C.) 132 F. 620,13 Am. Bankr. Rep. 118. The second claim arises out of the allegation that the silk company, while insolvent, drew and delivered its checks aggregating $50,000 to Stipp within four months of the filing of the petition in bankruptcy against it. Stipp, being president of the silk company, is charged with knowledge of its condition. If the silk company owed him $50,000 the payment was preferential, and if the company did not owe it, the payment was in fraud of creditors, and may be recovered. In either ’case, Stipp is under obligation to pay the money to the trustee of the silk company. Whether or not this obligation is a provable claim depends upon the nature of the obligation. Counsel says that this obligation isj at best, “but a quasi contract.” This definition of the relation between the parties is accepted by the trustee, who says that a breadth of meaning should be given to “implied” contracts which will include “quasi contracts” which will support a provable" }, { "docid": "22865355", "title": "", "text": "186; Friend v. Talcott, 228 U. S. 27, 39; Clarke v. Rogers, 228 U. S. 534, 548. It is petitioners’ contention that § 17 as amended in 1903 (Act of February -5, 1903, c.. 487, § 5; 32 Stat. 797, 798), amounts to a.legislative construction admitting tort claims to proof. The section as it stood before, and the nature of the amendment, are set forth in the margin.. We are referred to the Committee’s report (House Rep. No. 1698, 57th Cong., 1st sess., pp. 3, 6) as indicating that by the law as it stood, in the opinion of the Committee, claims created by fraud but not reduced to judgment were discharged; reference having been made to In re Bhutassel, 96 Fed. Rep. 597, and In re Lewensohn, 99 Fed. Rep. 73 (affd., 104 Fed. Rep. 1006), as contradictory decisions upon the point. But neither the report of the Committee nor the language of the amendment gives the least suggestion of an intent to enlarge the description of provable claims as set forth in § 63: On the contrary, the purpose was to limit more narrowly the effect of a discharge by enlarging the'class of provable debts that were to be excepted from it. By the terms of the section, both before and after amendment, the scope of the exception was qualified by the fact that the discharge released the bankrupt only from “provable debts.” And if the excepting clause as amended might seem to extend to some claims not otherwise provable, its own force must be deemed to be limited by referring to § 63 for the definition of provability. It is not admissible to give to this amendment, confessedly. designed to restrict the scope of a discharge in bank- . ruptcy, the effect of enlarging the class of provable claims. Aside from § 17 or the amendment thereof, it has been held by the federal courts generally that § 63 does not authorize the liquidation and proof of claims árising ex delicto and unaffected by contract express or implied. In re Hirschman, 104 Fed. Rep. 69, 70—71; In" }, { "docid": "3023515", "title": "", "text": "fact; or, third, contracts implied in law, enforceable by action ex contractu or quasi contract. But the obligation imposed by law where the remedy is other than by action on contract expressed or implied does not give rise to a claim for debts as used in the Bankruptcy Act. Schall v. Camors, 251 U. S. 239, 40 S. Ct. 135, 64 L. Ed. 247. Implied contracts, as used in the Bankruptcy Act, do not include every obligation which the law may impose. Alimony in arrears, ah obligation imposed by law, is not founded on contract, express or implied, but rather upon the natural and legal duty to support a wife. It results from a decree of the court of appropriate jurisdiction. Audubon v. Shufeldt, 181 U. S. 575, 21 S. Ct. 735, 45 L. Ed. 1009. The obligation of alimony, like the obligation to pay compulsory compensation, rests upon the relation or the idea of status which exists between the parties. There is a contract of marriage as there is a contract of employment creating the respective relationship to which the law attaches the duties commanded by the state. It is not a duty fixed by the agreement of the parties. The alimony is decreed by a court of competent jurisdiction; the award, by the compensation commissioner. Compensation Act, §§ 22, 123. See In re Cotton, 6 Fed. Cas. 617, No. 3,269; In re N. Y. Tunnel Co. (C. C. A.) 159 F. 688. Congress in the passage of the Bankruptcy Act, years before this new social legislation came into existence, did not foresee and provide for obligations thus imposed. It did not provide for such claims to be provable or dischargeable in bankruptcy pursuant to the provisions of section 63a (11 USCA § 103(a). It is clear that the obligation is not a quasi contractual one of the character which Congress intended to be provable and dischargeable under the 1898 act. If wisdom dictates that these claims should be provable in bankruptcy and priority given, it is a matter for Congress and not for the courts, but as yet" }, { "docid": "13277990", "title": "", "text": "contracts, being included in the term \"implied contracts,” are provable in bankruptcy. When the statute provided that debts founded “upon contracts express or implied” may be proved, it used the term “implied contracts” in its usual sense. In quasi contractual obligations, the tort may be waived and the claim proved in bankruptcy. 3 Williston on Contracts, § 1896; Clarke v. Rogers (C. C. A.) 183 F. 518; Reynolds v. New York Trust Co. (C. C. A.) 188 F. 611, 616, 39 L. R. A. (N. S.) 391; Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 27 S. Ct. 493, 51 L. Ed. 762. To repeat, if the $50,000 delivered in cheeks to Stipp was due and owing to him by the silk company, it was paid within four months of the filing of the petition in bankruptcy against it, and may be recovered, or if the silk company did not owe him that money and the payment was intended to delay, hinder, (and defraud creditors, it may be recovered. There was, in either ease, a quasi contractual obligation on the part of Stipp to return the money, anR the trustee who represents creditors has a provable claim. The decree is affirmed." }, { "docid": "6108205", "title": "", "text": "date when the defendant became bankrupt. In Crawford v. Burke, supra, the plaintiff had a claim for property wrongfully converted by a broker. The plaintiff might have sued in assumpsit on such a claim. He elected not to do so, but to proceed .in tort. It was held, nevertheless, that the claim was provable and was discharged. This case has been recognized as establishing the principle that, as stated by Collier on Bankruptcy, “if a party has a cause of action which at his election he may maintain either upon contract or in tort, then such cause of action becomes a provable debt.” 13th Ed. p. 1406, citing eases. The defendant’s estate in bankruptcy was increased by the amount which he received as a preference from Ponzi. While the right of the Ponzi trustees to recover it did not in actual fact rest upon any contract express or implied but was of purely statutory character, it could have been asserted in an action of assumpsit, being in this respect like torts by which a bankrupt’s estate has been enriched. Clarke v. Rogers, 183 F. 518, 106 C. C. A. 64 (C. C. A. 1st). It was therefore barred. Decree for defendant." }, { "docid": "13226766", "title": "", "text": "on a verbal contract which is not enforceable under section 5081, supra. It is well settled that where one person has transferred property to- another under a contract which is non-emforceable because of the statute of frauds, and the transferee relying upon the statute of frauds declines to perform his part of the contract, the transferor may recover upon an implied contract the reasonable value of the property transferred. Day v. New York Cent. R. Co., 51 N. Y. 583; Basford v. Pearson, 9 Allen (Mass.) 387, 389, 392, 85 Am. Dec. 764; Cromwell v. Norton, 193 Mass. 291, 79 N. E. 433, 118 Am. St. Rep. 499; Kemp v. Kemp, 248 Mass. 354, 142 N. E. 779; Booker v. Wolf, 195 Ill. 365, 63 N. E. 265; Jelleff v. Hummel, 56 N. D. 512, 218 N. W. 227; Nelson v. McElroy, 140 Minn. 429, 168 N. W. 179, 587; Earl of Falmouth v. Thomas, 1 Cromp. & M. 88 ; Talbert v. United States, 25 Ct. Cl. 141, 156; Franklin v. Matoa Gold Min. Co. (C. C. A. 8) 158 F. 941, 948, 949, 16 L. R. A. (N. S.) 381, 14 Ann. Cas. 302; Clark v. United States, 95 U. S. 539, 542, 24 L. Ed. 518. In such a ease the contract is not illegal in the sense that it is malum iu se; it is merely malum prohibitum, or non-enforceable. A party to such a contract, who has received property thereunder and who has refused to perform on his part on the ground that the contract is non-enforceable, is liable upon an implied contract for the reasonable value of the property he has received. Logan County Nat. Bank v. Townsend, 139 U. S. 67, 75, 76, 11 S. Ct. 496, 35 L. Ed. 107; Parkersburg v. Brown, 106 U. S. 487, 503, 1 S. Ct. 442, 27 L. Ed. 238. Counsel for the Paint Corporation also assert that the evidence of Kramer afforded no competent proof of the value of the inventions and patent rights, and that the evidence bn the part of the Paint Corporation" }, { "docid": "13277989", "title": "", "text": "in which they are formed or in the mode of proof. The intention in such contracts is gathered, and the contract implied»' from acts, conduct and the surrounding circumstances. In contracts implied in law, the liability arises from the facts and circumstances independent of, and often contrary to, the understanding or presumed intention. In the one case, intention of the parties is the essence of the transaction and the basis of the obligation; in the other, it may he entirely disregarded, the obligation arising not from consent or intention, “but from the law or natural equity.” Quasi contracts come within the term, and are a part of, “implied contracts.” Elliott on Contracts, vol. 1, §§ 2, 18; vol. 2, §§ 1355-1358; 1 Williston on Contracts, § 3; Umlauf v. Umlauf, 103 Ill. 651; Chudnovski v. Eckels, 232 Ill. 312, 317, 83 N. E. 846; Harty Brothers v. Polakow, 237 Ill. 559, 86 N. E. 1085; Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 97 N. E. 280, Ann. Cas. 1913A, 471. Quasi contracts, being included in the term \"implied contracts,” are provable in bankruptcy. When the statute provided that debts founded “upon contracts express or implied” may be proved, it used the term “implied contracts” in its usual sense. In quasi contractual obligations, the tort may be waived and the claim proved in bankruptcy. 3 Williston on Contracts, § 1896; Clarke v. Rogers (C. C. A.) 183 F. 518; Reynolds v. New York Trust Co. (C. C. A.) 188 F. 611, 616, 39 L. R. A. (N. S.) 391; Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 27 S. Ct. 493, 51 L. Ed. 762. To repeat, if the $50,000 delivered in cheeks to Stipp was due and owing to him by the silk company, it was paid within four months of the filing of the petition in bankruptcy against it, and may be recovered, or if the silk company did not owe him that money and the payment was intended to delay," }, { "docid": "4336034", "title": "", "text": "petitions sufficiently allege a breach of warranty. But in any event they sufficiently allege a quasi contractual liability for unjust enrichment. Such a claim is provable. See Crawford v. Burke, 196 U. S. 176, 187, 25 S. Ct. 9, 49 L. Ed. 147; Schall v. Camors, 251 U. S. 239, 251, 40 S. Ct. 135, 64 L. Ed. 247; Cawthon v. Banco-Kentucky Co., 52 F.(2d) 851 (D. C. W. D. Ky.). It is urged that the petition cannot be treated as asserting a claim for recovery of the purchase price of the bonds because there is no offer to return them. In a suit in equity the decree may make suitable provision for restitution. In re American Knit Goods Mfg. Co., 173 F. 480 (C. C. A. 2); MacNamee v. Bankers’ Union, 25 F. (2d) 614, 618 (C. C. A. 2); Williston, Contracts, § 1460. Proceedings in courts of bankruptcy are in the nature of proceedings in equity, so that the failure to tender restitution before the filing of the petition in bankruptcy is not fatal to the existence of provable claims by the interveners. In re Bancunity Corp., 36 F.(2d) 595, 598 (D. C. S. D. N. Y.). Our own decision of In re Neve Drug Stores, 48 F.(2d) 693, is cited as contrary to this view. It should not be so construed. As the opinion indicates, the acts of the bankrupt were treated as creating only tort claims, but the facts are stated so briefly as not to present clearly the situation which was under consideration. Klein’s answer alleged the making of an agreement to sell his store for part cash and part shares of stock in the Neve Drug Stores (the bankrupt), and charged that “thereafter” the bankrupt and others by fraudulent acts caused the stoek to depreciate, so as to cheat Klein out of a large part of the consideration which he received for the sale of his store. This is quite different from the ease at bar. Here the fraud induced the purchase, and a claim in rescission is suggested by the allegation that the" } ]

[ { "docid": "20306323", "title": "", "text": "Plan does not provide for the proper interest rate to determine the present value of their claims based on “prime plus” interest. Given the lack of specificity, Debtors’ Plan’s provision for payment of them claims for payment in full, with interest, the Chapter 13 Trustee’s consent and absence of any evidence to the contrary, the Court finds that the Debtors’ Plan provides for payments to secured creditors totaling no less than the present value of their claims, and therefore that the Plan satisfies § 1325(a)(5)(B)(ii). Hungerford, 19 Mont. B.R. at 110, 2001 WL 36211305. D. 1325(a)(6) — Feasibility. Valley Bank and Chase object to confirmation contending that Debtors’ Plan is not feasible. Section 1325(a)(6) requires that “the debtor will be able to make all payments under the plan and to comply with the plan.” Debtors have the burden of proving that their Plan has a reasonable chance of success. Hungerford, 19 Mont. B.R. at 117, 2001 WL 36211305; In re Schaak, 17 Mont. B.R. 349, 357 (Bankr.D.Mont.1999) (Chapter 12 feasibility test). In Hunger-ford the Court noted that in a Chapter 11 case a bare proposal to pay upon the sale of property does not necessarily satisfy the feasibility requirement of § 1129(a)(11) as a matter of law. 19 Mont. B.R. at 117, 2001 WL 36211305, citing In re Thomas, 241 F.3d 959, 963 (8th Cir.2001). However, the court in Thomas recognized that “drop dead” provisions are entitled to be considered by a bankruptcy court when evaluating a plan’s prospects for success. 241 F.3d at 963. Debtors’ Plan has a “drop dead” provision in paragraph 1, which allows the Trustee to liquidate the Debtors’ real estate in Flathead County “(either residential or commercial)” himself through a court approved process, or else convert the case to Chapter 7 if the Debtors’ property-does not sell before October 29, 2010. The inclusion of the “drop dead” provision in Debtor’s Plan weighs in favor of a finding of feasibility. Debtors’ plan payment is $200, which exceeds their excess income of $198 shown on Schedule J by $2. Keith testified that the Debtors have made all" } ]

[ { "docid": "20306324", "title": "", "text": "noted that in a Chapter 11 case a bare proposal to pay upon the sale of property does not necessarily satisfy the feasibility requirement of § 1129(a)(11) as a matter of law. 19 Mont. B.R. at 117, 2001 WL 36211305, citing In re Thomas, 241 F.3d 959, 963 (8th Cir.2001). However, the court in Thomas recognized that “drop dead” provisions are entitled to be considered by a bankruptcy court when evaluating a plan’s prospects for success. 241 F.3d at 963. Debtors’ Plan has a “drop dead” provision in paragraph 1, which allows the Trustee to liquidate the Debtors’ real estate in Flathead County “(either residential or commercial)” himself through a court approved process, or else convert the case to Chapter 7 if the Debtors’ property-does not sell before October 29, 2010. The inclusion of the “drop dead” provision in Debtor’s Plan weighs in favor of a finding of feasibility. Debtors’ plan payment is $200, which exceeds their excess income of $198 shown on Schedule J by $2. Keith testified that the Debtors have made all plan payments to date, and that they will be able to scrape up another $2 per month to make the plan payment. His testimony is un-controverted and the Court finds that the Debtors will be able to make the monthly $200 payments. Section 1322(b)(8) allows a plan to be partially funded through the sale of property of the estate or property of a debtor, but issues of good faith, feasibility and adequate protection arise when a plan proposes only token monthly payments to the secured creditor. In re Lindsey, 183 B.R. 624, 627 (Bankr.D.Idaho 1995). The Debtors’ Plan in the instant case proposes no monthly payments on the secured claims, so the Debtors have the burden to produce evidence as to past marketing efforts, the state of the market for the subject asset, current sale prospects, the existence and maintenance of the market for the subject asset, the existence and maintenance of any equity cushion, and all other circumstances that bear on whether the creditor will see its way out of the case financially whole." }, { "docid": "20241786", "title": "", "text": "pays Pruyn’s and all other secured claims in full, while adequately protecting them with a sufficient cushion based on the $258,000 undisputed value. II. Confirmation Standards. It is well established law in this Circuit that for a bankruptcy court to confirm a plan, “each of the requirements of section 1325 must be present and the debt- or has the burden of proving that each element has been met.” (Barnes v. Barnes) In re Barnes, 32 F.3d 405, 407 (9th Cir.1994); In re Tuss, 360 B.R. 684, 690 (Bankr.D.Mont.2007); Andrews v. Loheit (In re Andrews), 49 F.3d 1404, 1408 (9th Cir.1995); Chinichian v. Campolongo, 784 F.2d 1440, 1443-44 (9th Cir.1986) (citing In re Elkind, 11 B.R. 473, 476 (Bankr. D.Colo.1981)) (emphasis added). Section 1325(a)(1) requires confirmation of a plan if “the plan complies with the provisions of this chapter and with the other applicable provisions of this title.” Therefore, debtors have the burden of proof on all elements of confirmation. Meyer v. Hill, (In re Hill), 268 B.R. 548, 552 (9th Cir. BAP 2001). The Chapter 13 Trustee has objected to confirmation of the Debtor’s Plan, which is entitled to significant weight against the Debtor’s burden of proof on confirmation. On the other hand, in her brief the Debtor clearly has abandoned her original Plan and proposes an amended Plan with a shortened sale deadline and “drop dead” date ending September 16, 2010, and Linda testified that if she fails to sell her residence by that date the creditors can have it, which this Court interprets as the Debtor’s commitment to vacate and surrender the property under the amended Plan. Turning first to feasibility, the Court deems Debtor’s concessions as decisive. Based on the Debtor’s admission the Court denies confirmation of Debtor’s original Plan, Docket No. 9. However, the Court finds no merit in the feasibility objections raised by Pruyn, Poteet and the Trustee. The only evidence in the record is that the Debtor is current on her monthly plan payments, that she will be able to make her monthly payments for the remaining plan term of less than one year." }, { "docid": "662043", "title": "", "text": "difficult question. The First Circuit has not addressed the issue, see In re Gusmao, 2010 WL 4918978, at *1, although the Ninth Circuit has held that where a secured creditor has accepted a Chapter 13 plan pursuant to Section 1325(a)(5), including by failing to object, the Chapter 13 Trustee cannot object to confirmation on this same basis. In re Andrews, 49 F.3d at 1409. Turning to the instant matter, this Court is not required to address this question because the Trustee did not object to the confirmation of the Proposed Plan under Section 1325(a)(5) — the only part of Section 1325(a) for which creditor acceptance is relevant. As the Trustee made clear, both before the Bankruptcy Court and in her subsequent brief, she did not object to the Proposed Plan’s treatment of the Mortgagee’s claims under Section 1325(a)(5). Bankr.Tr. 5:8-16; Trustee’s Br. 4. Instead, the Trustee argued that the Proposed Plan should not be confirmed because Austin’s failure to obtain a loan modification rendered it unfeasible, noting that because the Proposed Plan expired on September 15, 2013, Austin’s unpaid pre-petition arrears and outstanding mortgage principal would not be entitled to discharge under 11 U.S.C. section 1328(a). March 25, 2014 Transcript at 6:6-17. On this basis, this Court concludes that the Trustee had standing to object under Section 1325(a)(6). D. Feasibility The Trustee objected to the confirmation of the Proposed Plan under Section 1325(a)(6), alleging that the Proposed Plan as filed failed to meet the feasibility requirement necessary for confirmation. Trustee’s Br. 4. The determination of the feasibility of a Chapter 13 plan — a matter to which this Court will shortly turn — is a factual determination of the Bankruptcy Court and thus its conclusion shall not be over turned absent a demonstration of clear error. In re Fantasia, 211 B.R. at 422-23 (“Feasibility is a factual determination and the Bankruptcy Court’s decision will not be disturbed absent a firm conviction that clear error has been committed.” (citing Fed. R. Bankr.P. 8013)). In order for the Bankruptcy Court to confirm a Chapter 13 plan, it must satisfy itself that the" }, { "docid": "1572199", "title": "", "text": "Objection Under § 1325(a)(6): Plan is Feasible Ventures Trust argues that the Plan fails to comply with the requirement in § 1325(a)(6), commonly referred to as the feasibility requirement, meaning that “the debtor will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. § 1325(a)(6). To be feasible, the plan must have a reasonable likelihood of success as determined by the particular circumstances of the plan and the case. See In re Soppick, 516 B.R. 733, 748 (Bankr.E.D.Pa.2014) (collecting cases). “While the feasibility requirement is not rigorous, the plan proponent must, at minimum, demonstrate that the Debtor’s income exceeds expenses by an amount sufficient to make the payments proposed by the plan.” In re Bernardes, 267 B.R. 690, 695 (Bankr.D.N.J.2001) (internal citation omitted). “The Bankruptcy Court should be satisfied that the debtor has the present as well as the future financial capacity to comply with the terms of the plan.” In re Eckert, 485 B.R. 77, 85 (Bankr.M.D.Pa. 2013). In this case, the Objection first points to the adjustment to the condo association debt discussed earlier, which had been understated by about $100. However, minor adjustments in Debtor’s monthly expenses resolve any shortfall claimed by the Objection. Ventures Trust filed no Reply to respond to Debtor’s Response, and nothing on the record suggests that the earlier shortfall has not otherwise been remedied' so as to warrant denial of confirmation on feasibility grounds. With respect to the mechanics lien also discussed in the prior section, Ventures Trust claim that the debt being paid under the Plan is not supported by terms of the Plan, which does not provide for payment of any alleged lien. Nor does the Objection cite competent authority to support these claims. At this stage, it cannot be concluded that the Plan is unfeasible based only on the existence of a contested potential mechanics lien claim so as to warrant denial of confirmation under § 1325(a)(6). Remaining allegations do not show a clear inability to make the proposed Plan payments. Ventures Trust references pri- or adjustments in the Debtor’s expenses," }, { "docid": "1107356", "title": "", "text": "1986). Clearly, a Bankruptcy Court must refuse to confirm a Chapter 13 plan if it finds that the debtor will be unable to make all payments under the plan and otherwise comply with the proposed plan. 11 U.S.C. § 1325(a)(6). As the proponents of their respective plans, debtors bear the burden of proving that the requisite tests for confirmation outlined in § 1325(a) of the Code have been met. In re Crago, 4 B.R. 483 (Bankr.S.D.Ohio 1980); In re Goodavage, 41 B.R. 742 (Bankr.E.D.Va.1984); In re Smith, 39 B.R. 57 (S.D.Fla.1984); Matter of Ponteri, 31 B.R. 859 (Bankr.D.N.J.1983); In re Sellers, 33 B.R. 854 (Bankr.D.Colo.1983); In re Wolff, 22 B.R. 510 (Bankr. 9th Cir.1982); In re Elkind, 11 B.R. 473 (Bankr.D.Colo.1981). Thus, in the instant cases, debtors must prove that their partial liquidation plans meet the feasibility requirement of § 1325(a)(6). In re Olp, 29 B.R. 932, 936 (Bankr.E.D.Wis.1983) (burden of proving that all payments can be made and full compliance with plan can be achieved rests upon the debtor). In the cases before the Court, it is readily apparent that debtors have failed to satisfy their burden of proving that their proposed plans are feasible. Debtors introduced no evidence to establish that the sales and/or refinancings contemplated by their plans were reasonably likely to occur at the times specified in the plans. In fact, none of the debtors chose to attend the confirmation hearings to provide testimony or other evidence in support of their plans. Hence, the debtors’ bare assertions that they will sell or refinance their residences at or near the end of their Chapter 13 plans, standing alone, plainly does not satisfy the feasibility requirement of § 1325(a)(6). The Court notes that, even had the debtors chosen to appear and testify, it is difficult to envision any scenario in which such testimony could overcome the Court’s serious doubts concerning the feasibility of a Chapter 13 plan whose success depends entirely upon the occurrence of a contingency scheduled to occur some three to five years from the plan’s inception. Bankruptcy Courts have consistently denied con firmation of Chapter" }, { "docid": "214716", "title": "", "text": "the Debtor’s food expenses from $300 to $200 per month. The Defendant contended that the Debtor’s amended Schedule J was not submitted in good faith. The Defendant also argued that the Debtor’s proposed Chapter 13 plan cannot be premised upon a speculative recovery in the adversary proceeding. It cites The First Nat'l Bank of Boston v. Fantasia (In re Fantasia), 211 B.R. 420, 423 (1st Cir. BAP 1997) (“[T]o satisfy feasibility, a debt- or’s plan must have a reasonable likelihood of success, i.e., that it is likely that the debtor will have the necessary resources to make all payments as directed by the plan. 11 U.S.C. § 1325(a)(6)....,”) for the proposition that a feasible Chapter 13 plan cannot be based on speculation. 2. Applicable Law Section 706(a) provides: “[t]he debtor may convert a case under this chapter to a case under Chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title.” 11 U.S.C. § 706(a). Courts are split as to whether a conversion from Chapter 13 to Chapter 7 permits a debtor to convert back to Chapter 13. Some courts interpret § 706(a) to mean they have no discretion to convert a case back to Chapter 13 if it was previously converted to Chapter 7, frequently referencing the plain meaning of language utilized in that section. See, e.g., In re Fry, No. 04-16887, 2008 WL 4682266 at *2-3 (Bankr.D.Kan. Oct. 14, 2008); In re Muth, 378 B.R. 302, 302-04 (Bankr.D.Colo.2007); In re Hardin, 301 B.R. 298 (Bankr.C.D.Ill. 2003); In re Banks, 252 B.R. 399, 402 (Bankr.E.D.Mich.2000). Other courts permit reconversion under appropriate circumstance. See, e.g., In re Bange, No. 08-40156-7C, 2010 WL 3829632 at *1 (Bankr. D.Kan. Sept. 23, 2010); In re Johnson, 376 B.R. 763 (Bank.D.N.M.2007); In re Anderson, 354 B.R. 766, 768-69 (Bankr. D.S.C.2006); In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987). Courts permitting reconversion have determined that “§ 706(a) is phrased as a restriction on the debtor’s ability to convert a case ..." }, { "docid": "20241788", "title": "", "text": "Pruyn’s objection based on taxes and insurance is unsupported by any evidence and contradicted by Linda’s testimony, by her Schedule J, and by her Ex. A showing a major reduction in her property tax rate under the DOR’s Property Tax Assistance Program. Section 1325(a)(6) requires that “the debtor will be able to make all payments under the plan and to comply with the plan.” In re Thomas, 241 F.3d 959, 963 (8th Cir.Ark.2001). The court in Thomas recognized that “drop dead” provisions are entitled to be considered by a bankruptcy court when evaluating a plan’s prospects for success. 241 F.3d at 963. Debtor’s ability to make her monthly payment is undisputed by any competent evidence. Her ability to sell her home at below the median price range for Rattlesnake homes and within a shortened time period, which still exceeds the average days on market for Rattlesnake homes, is shown by Dauenhauer’s testimony that also is uncontroverted by any competent evidence. Pruyn did not call any witness, and did not dispute or impeach Dauen-hauer on cross examination. The Court finds that the Debtor’s proposed amended Plan shortening the “drop dead” and sale date would be feasible. Poteet and Dorman object to confirmation contending the Debtors’ Plan fails the requirements of § 1325(a)(5)(B)(ii) which provides that, with respect to each allowed secured claim provided for by the plan, “the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim.” Under this section a Chapter 13 plan must provide for payments to secured creditors totaling no less than the present value of the secured creditors’ claims. In re Hungerford, 19 Mont. B.R. 103, 111 (Bankr.D.Mont.2001). The Ninth Circuit Bankruptcy Appellate Panel noted in Trejos v. VW Credit, Inc., et al. (In re Trejos ), 374 B.R. 210, 220 n. 9 (9th Cir. BAP 2007): The text of § 1325(a)(5)(B)(ii) did not change under 9 BAPCPA . The phrase “as of the effective date” previously was recognized to require an interest component" }, { "docid": "1572198", "title": "", "text": "provision is implicated or cite other relevant authority in support of its argument. Accordingly, the Creditor had not shown that the plan fails to comply with any applicable provision in the Bankruptcy Code at this stage. Remaining alleged violations of § 521(a) are similarly unfounded. Claimed inaccuracies in the Debtor’s schedules or other papers filed in prior cases are not implicated by § 521(a)(1), which concerns the Debtor’s duties in this case. Claims that the Debtor’s expenses and other like representations have not been explained are speculative and undeveloped, show no clear violation of any applicable provision referenced or otherwise, see § 521(a)(l)(B)(ii) (requiring the debtor to file “a schedule of current income and current expenditures”), and fail to otherwise establish that the requirement in § 1325(a)(1) that “the plan compl[y] with the provisions of [Chapter 13] and with the other applicable provisions of this title” is not met. Accordingly, the Ventures Trust has not established that the Plan fails to comply with § 1325(a)(1). Objections to confirmation under § 1325(a)(1) will therefore be overruled. Objection Under § 1325(a)(6): Plan is Feasible Ventures Trust argues that the Plan fails to comply with the requirement in § 1325(a)(6), commonly referred to as the feasibility requirement, meaning that “the debtor will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. § 1325(a)(6). To be feasible, the plan must have a reasonable likelihood of success as determined by the particular circumstances of the plan and the case. See In re Soppick, 516 B.R. 733, 748 (Bankr.E.D.Pa.2014) (collecting cases). “While the feasibility requirement is not rigorous, the plan proponent must, at minimum, demonstrate that the Debtor’s income exceeds expenses by an amount sufficient to make the payments proposed by the plan.” In re Bernardes, 267 B.R. 690, 695 (Bankr.D.N.J.2001) (internal citation omitted). “The Bankruptcy Court should be satisfied that the debtor has the present as well as the future financial capacity to comply with the terms of the plan.” In re Eckert, 485 B.R. 77, 85 (Bankr.M.D.Pa. 2013). In this case, the Objection first points to" }, { "docid": "405626", "title": "", "text": "position, the trustee has suggested that the Code “requires” her to seek tax refunds in every case in which unsecured creditors are not paid 100% of their claims. She is mistaken. Section 1325(b)(1) states that if the trustee objects, the projected disposable income test applies. It permits her to object but does not require her to do so. Other chapter 13 trustees in this district exercise their discretion not to seek payment of these tax credits from low-income debtors. They violate no statutory or other duty in doing so. One trustee in this district does not usually seek refunds even in cases in which tax refunds are generated from overwithholding. The other two trustees allow all debtors to keep $2,000 of their tax refunds. Those debtors may then seek to modify the plan if they wish to keep larger amounts. The approach these trustees take is consistent with many opinions holding that chapter 13 debtors may keep all or a portion of tax refunds to cover a reasonable amount of unplanned expenses that debtors are likely to incur. See, e.g, In re Ramos, 494 B.R. 181, 187 (Bankr. D.P.R. 2013); In re Skougard, 438 B.R. 738, 741-42 (Bankr. D. Utah 2010); Michaud, 399 B.R. at 372; In re Spraggins, 386 B.R. at 226-28, supplemented, No. 07-24728-svk, 2008 WL 2073947 (Bankr. E.D. Wis. May 14, 2008) (permitting debtors to retain 50% of their tax refund “to help with unforeseen expenses and increased costs of living”). Rooted in all of these approaches is the sensible recognition that, to succeed in a chapter 13 case, a debtor must have some flexibility in his budget. III. Conclusion The trustee’s objection to confirmation on the basis that the debtor is required to pay her entire tax “refund” to the trustee is overruled. The debtor must file amended Schedules I and J prorating additional income and expenses. To the extent the expenses are reasonable, they may be deducted from the debtor’s CMI to determine the appropriate plan payment, and the plan will be confirmed without language requiring payment of expected tax credits. . The definition of" }, { "docid": "20306320", "title": "", "text": "1325(b)(3) their disposable income is not subject to the means test of 11 U.S.C. § 707(b)(2). Debtors’ plan payment of $200 per month exceeds their net income shown on Schedule J. Valley Bank failed to offer any evidence to show that the Debtors have greater disposable income than what they show in their Schedule I. Based on the Debtors’ Schedule J, Form B22C and Plan, and given the Chapter 13 Trustee’s consent to confirmation, the Court finds that Valley Bank’s objection based on § 1325(b)(ii) is without merit. C. 1325(a)(5)(B)(ii). Provident and Chase object to confirmation contending the Debtors’ Plan fails the requirements of § 1325(a)(5)(B)(ii) which provides that, with respect to each allowed secured claim provided for by the plan, “the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim.” Under this section a Chapter 13 plan must provide for payments to secured creditors totaling no less than the present value of the secured creditors’ claims. In re Hungerford, 19 Mont. B.R. 103, 111, 2001 WL 36211305 (Bankr.D.Mont.2001). The Ninth Circuit Bankruptcy Appellate Panel noted in Trejos v. VW Credit, Inc., et al. (In re Trejos), 374 B.R. 210, 220 n. 9 (9th Cir. BAP 2007): The text of § 1325(a)(5)(B)(ii) did not change under 9 BAPCPA . The phrase “as of the effective date” previously was recognized to require an interest component be paid so as to ensure that the creditor receive the present value of its claim. The Supreme Court addressed the calculation of present value interest under § 1325(a)(5)(B)(ii) in Till v. SCS Credit Corp., 541 U.S. 465, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004), and set “prime plus” as the proper method for determining the interest rate that would provide present value. Most courts that have considered the issue have held that, since § 1325(a)(5)(B)(ii) remains unchanged under BAPCPA, Till remains value under BAPCPA. Because the issue is not before us in this appeal, we save it for another day. The Debtors’" }, { "docid": "662044", "title": "", "text": "15, 2013, Austin’s unpaid pre-petition arrears and outstanding mortgage principal would not be entitled to discharge under 11 U.S.C. section 1328(a). March 25, 2014 Transcript at 6:6-17. On this basis, this Court concludes that the Trustee had standing to object under Section 1325(a)(6). D. Feasibility The Trustee objected to the confirmation of the Proposed Plan under Section 1325(a)(6), alleging that the Proposed Plan as filed failed to meet the feasibility requirement necessary for confirmation. Trustee’s Br. 4. The determination of the feasibility of a Chapter 13 plan — a matter to which this Court will shortly turn — is a factual determination of the Bankruptcy Court and thus its conclusion shall not be over turned absent a demonstration of clear error. In re Fantasia, 211 B.R. at 422-23 (“Feasibility is a factual determination and the Bankruptcy Court’s decision will not be disturbed absent a firm conviction that clear error has been committed.” (citing Fed. R. Bankr.P. 8013)). In order for the Bankruptcy Court to confirm a Chapter 13 plan, it must satisfy itself that the debtor has met all the confirmation requirements of Section 1325(a). See 11 U.S.C. § 1325(a)(1); In re Hamilton, 401 B.R. at 542 (“A bankruptcy court must confirm a chapter 13 plan that meets the criteria set forth in [Section] 1325(a).”). Thus, despite having satisfied the confirmation requirement of Section 1325(a)(5), Austin was also required to demonstrate to the Bankruptcy Court that she would be “able to make all payments under the plan and to comply .with the plan”&emdash;in plain language, that the Proposed Plan was feasible. 11 U.S.C. § 1325(a)(6); see also In re Fantasia, 211 B.R. at 423 (“The debtor carries the initial burden of showing that the plan is feasible.” (citing In re Felberman, 196 B.R. 678, 685 (Bankr.S.D.N.Y.1995); Matter of Endicott, 157 B.R. 255, 263 (W.D.Va.1993))). To satisfy the feasibility requirement, “a debtor’s plan must have a reasonable likelihood of success,” and the debtor must be able to demonstrate that she has both the present and future capacity to meet the requirements of the proposed plan. Id.; see also In re Lundahl," }, { "docid": "20306329", "title": "", "text": "securing Provident’s third lien. The $895,000 listing price for the Cottage Inn, by itself, if realized would provide more than sufficient funds to pay Provident in full and so would the $700,000 value of the Cottage Inn listed in Debtors’ Schedule A be enough to pay Provident’s $500,000 claim in full on the drop dead date, even if Provident must pay for insurance and taxes. Provident objects that Debtors’ valuation is overstated, but Provident offered no expert opinion on valuation to support its objection, and the Debtor’s estimate of value can be acceptable. Hungerford, 19 Mont. B.R. at 118, 2001 WL 36211305. Summarizing feasibility, the Debtors’ marketing efforts, current sale prospects, good location of the Cottage Inn, and substantial equity cushion throughout the case weigh in favor of a finding that the Debtors’ Plan is feasible under Lindsey, 183 B.R. at 627 (quoting Newton), while Debtors’ lack of monthly payments to the secured creditors, failure to pay insurance and taxes, and depressed state of the market for the subject asset weigh against. On balance, the Court finds that the Debtors have satisfied their burden under § 1325(a)(6) that they will be able to make their monthly payments under the plan and to comply with the Plan, and that because of the “drop dead” clause in their Plan and substantial equity cushion for all three secured creditors they have shown that creditors will see their way out of the case financially whole. E. § 1322(b)(2) — “Cure-by-Sale.” Valley Bank and Chase object to confirmation on the grounds the Debtors’ Plan violates 11 U.S.C. § 1322(b)(2) by modifying the rights of holders of secured claims which are secured only by a security interest in the Debtors’ principal residence. The Debtors’ Plan provides for a “cure-by-sale” of Debtors’ default to Chase and Valley Bank, which this Court decided may satisfy the confirmation requirements of 11 U.S.C. § 1322(b)(3), (b)(5) & (c)(1) . In re Siegfried, 16 Mont. B.R. 289, 301 (Bankr.D.Mont.1997). The United States District Court for the District of Montana has held that a debtor’s default may be cured by sale of" }, { "docid": "6931796", "title": "", "text": "of a chapter 13 plan.” 9 Collier on BaneruptCy ¶ 1325.07. Section 1325(a)(6) requires that the court determine whether “the debtor will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. § 1325(a)(6). Debtors have the burden to prove that their plans are feasible. See Tillman v. Lombard, 156 B.R. 156, 158 (E.D.Va.1993). Confirmation of a plan where the debtor proposes a lump sum payment at a future date “is suspect” and will be denied “[u]nless the debtor shows proof that he will be able to pay the balloon payment at the time it comes due.” In re Wagner, 259 B.R. 694, 700 (8th Cir. BAP 2001) (citation omitted). “A definite declaration as to the source and the amount of funds necessary to enable the debtor to make the plan payments is required.” Id.; see also In re Schenk, 67 B.R. 137 (Bankr.D.Mont.1986) (plan not feasible where debtor failed to explain how he would obtain the funds necessary to pay the later lump sum due on his proposed plan). Here, Debtor’s plan is not feasible because it is based in large part on a speculative lawsuit and the unlikely sale of an asset following the death of his healthy mother. 1. Debtor’s Plan Is Infeasible Because It Is Premised in Part on a Speculative Lawsuit A chapter 13 plan cannot be premised on the successful litigation of a claim. Ewald v. Nat’l City Mortgage Co. (In re Ewald), 298 B.R. 76 (Bankr.E.D.Va.2002) (§ 1325(a)(6) not satisfied where plan depends on favorable outcome in three-year-old lawsuit and debtor presented no evidence of a reasonable likelihood of success in that litigation); In re Reines, 30 B.R. 555 (Bankr.D.N.J.1983) (plan predicated in part upon “highly speculative return from a lawsuit” which the trustee declined to pursue not feasible). Bankruptcy courts in the Southern District of New York and elsewhere have converted chapter 11 cases to cases under chapter 7 where the debtor proposed to fund a plan out of the proceeds of potential litigation. See In re FRGR Managing Member LLC, 419 B.R. 576, 581-84" }, { "docid": "4675359", "title": "", "text": "not only listed as a debt, but Mr. Wilkinson’s delinquency on the debt was evidently reported to the Credit Bureau. FEASIBILITY OF PLAN Notwithstanding the court’s finding that Debtors are not personally liable on the mortgage and may not, then, cure the arrearage through Debtors’ plan, the court also finds that the Bank’s objection to confirmation of Debtors’ plan is well taken. The court notes, at this juncture, that the chapter 13 trustee did not recommend confirmation until a determination of liability was made. Statement of Fact at 2. Debtors’ proposed five year plan provides for a 100% dividend to unsecured creditors, arrearage of $5,368 to the Bank to be paid through the plan, funded by monthly payments to the chapter 13 trustee of $150.00, and regular mortgage payments as well as other secured creditors, to be paid outside the plan. Chapter 13 Plan (November 4, 1988). Debtors’ petition reflects monthly income of $2,268.86. Schedule of Current Income and Current Expenditures for Individual Debtor at 1 (November 4, 1988). Debtors’ petition reflects monthly expenditures of $2,070.26. Id. at 2. Assuming the accuracy of these amounts, the court finds that Debtors’ plan is not feasible. Debtors’ monthly income of $2,268.86 does not permit Debtors’ monthly expenses of $2,070.26, plus chapter 13 plan funding of $150.00 plus, excluding the Bank’s debt, payments to secured creditors outside the plan totalling $10,-038.00. 11 U.S.C. § 1325, governing confirmation of Debtors’ plan, sets forth six requirements that must be met before a plan may be confirmed. Subsection 6 states that “the court shall confirm a plan if the debt- or will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. § 1325(a)(6). As calculated, Debtors will not be able to comply with the plan and make all payments thereunder. Thus, Debtors’ plan should not be confirmed. See In re Anderson, 28 B.R. 628, 8 C.B.C.2d 1016 (S.D.Ohio 1982) (§ 1325(a)(6) means that a reviewing court should confirm a plan only if it appears under all circumstances that the plan has a reasonable likelihood of success); In re" }, { "docid": "2641763", "title": "", "text": "2013 and failure to commit all disposable income to fund the Plan. Weik testified that he does not know his current monthly income because he is employed part-time now, but he will be employed full-time soon. His $310 monthly expense for hay is to feed his horses used for his trail ride business. DISCUSSION I. Confirmation. It is well established law in this Circuit that for a bankruptcy court to confirm a plan, “each of the requirements of section 1325 must be present and the debt- or has the burden of proving that each element has been met.” (Barnes v. Barnes) In re Barnes, 32 F.3d 405, 407 (9th Cir.1994); In re Tuss, 360 B.R. 684, 690 (Bankr.D.Mont.2007); Andrews v. Loheit (In re Andrews), 49 F.3d 1404, 1408 (9th Cir.1995); Chinichian v. Campolongo, 784 F.2d 1440, 1443-44 (9th Cir.1986) (citing In re Elkind, 11 B.R. 473, 476 (Bankr.D.Colo.1981)) (emphasis added). Section 1325(a)(1) requires confirmation of a plan if “the plan complies with the provisions of this chapter and with the other applicable provisions of this title.” Therefore, the Debtor has the burden of proof on all elements of confirmation. Meyer v. Hill, (In re Hill), 268 B.R. 548, 552 (9th Cir. BAP 2001). The Chapter 13 Trustee’s objections to confirmation overlap in part with his Motion to Dismiss with Prejudice; the good faith and eligibility discussion will be discussed more fully in the following section. As far as MDOR’s priority claim for estimated taxes, in proposing a chapter 13 plan the Debtor has the burden of proving that his or her plan complies with the requirements for confirmation, including Section 1325(a)(3) which dictates that a plan must be “proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3); In re Carlascio, 16 Mont. B.R. 429, 437 (Bankr. D. Mont. 1998); Fidelity & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87, 93 (9th Cir. BAP 1988). In addressing good faith in Carlascio, this Court noted the BAP’s guidance in Street v. Lawson (In re Street), 55 B.R. 763, 764 (9th Cir." }, { "docid": "214720", "title": "", "text": "to dismiss a Chapter 13 case for “denial of confirmation of a plan under section 1325 of this title [...].” 11 U.S.C. § 1307(c)(5). In turn, section 1325 of the Bankruptcy Code provides that “the plan must be proposed in good faith” and that “the debtor will be able to make all payments under the plan and to comply with the plan,” commonly referred to as “feasibility” 11 U.S.C. § 1325(a)(4) and (6). Because subsection (d) provides Debtor with her only means of re-conversion, the Bankruptcy Court did not err in assessing §§ 109(e) and 1307(c), which includes feasibility. Case law also suggests that feasibility should be considered for re-conversion, specifically because motions for re-conversion are generally either granted or denied based on a feasibility analysis. See In re Green, 169 B.R. 480 (Bankr. S.D.Ga.1994). A Chapter 13 debtor, who converted her case to Chapter 7 and then re-converted back to Chapter 13, may not continue under her previously confirmed plan; rather, her new plan must be presented for confirmation, and must meet requirements of 11 U.S.C. § 1325. Id. 2008 WL 2132435 at *9 (footnotes omitted). For those courts which hold that the reconversion is within the discretion of the bankruptcy court under § 706(a), the debt- or bears the ultimate burden of proof. In re Manouchehri, 320 B.R. 880, 884 (Bankr. N.D.Ohio 2004). 3. Analysis Based upon the decisions cited above, this Court adopts the reasoning of courts such as Bange and Anderson and concludes that it has discretion to permit reconversion of the Debtor’s case to a case under Chapter 13 in appropriate circumstances. The debtor’s circumstances, however, must be closely scrutinized, see Anderson 354 B.R. at 769, and the debtor also must establish both good faith and the feasibility of any plan of reorganization. The Court concludes based upon the existing record that the Debtor has not satisfied her burden of proof. The Court begins with the observation that any plan proposed by the Debtor will not require the payment of unsecured debt. The Debtor received a Chapter 7 discharge on January 12, 2010. Accordingly, the" }, { "docid": "1107355", "title": "", "text": "not proposed plans which contemplate funding solely from the sale of assets pursuant to § 1322(b)(8). In each case, the debtors have regular employment and are submitting a portion of their monthly take-home pay to the trustee for distribution to their creditors. Accordingly, it is clear that each of the debtors has a regular source of income within the meaning of § 101(24) and, hence, meets the eligibility requirements of § 109(e) of the Code. B. Feasibility Having concluded that debtors’ partial-liquidation plans, as proposed, do not render them ineligible for Chapter 13 relief, the Court next will consider the issue of whether debtors’ plans meet the so-called feasibility requirement of 11 U.S.C. § 1325(a)(6). As Collier, another respected commentator, has noted, “the most important criterion for the confirmation of a chapter 13 plan ... is the requirement that the court determine whether the chapter 13 debtor will be able to make all payments under the plan and comply with all other provisions of the plan.” Collier on Bankruptcy, ¶ 1325.07 at 1325-40 (15th ed. 1986). Clearly, a Bankruptcy Court must refuse to confirm a Chapter 13 plan if it finds that the debtor will be unable to make all payments under the plan and otherwise comply with the proposed plan. 11 U.S.C. § 1325(a)(6). As the proponents of their respective plans, debtors bear the burden of proving that the requisite tests for confirmation outlined in § 1325(a) of the Code have been met. In re Crago, 4 B.R. 483 (Bankr.S.D.Ohio 1980); In re Goodavage, 41 B.R. 742 (Bankr.E.D.Va.1984); In re Smith, 39 B.R. 57 (S.D.Fla.1984); Matter of Ponteri, 31 B.R. 859 (Bankr.D.N.J.1983); In re Sellers, 33 B.R. 854 (Bankr.D.Colo.1983); In re Wolff, 22 B.R. 510 (Bankr. 9th Cir.1982); In re Elkind, 11 B.R. 473 (Bankr.D.Colo.1981). Thus, in the instant cases, debtors must prove that their partial liquidation plans meet the feasibility requirement of § 1325(a)(6). In re Olp, 29 B.R. 932, 936 (Bankr.E.D.Wis.1983) (burden of proving that all payments can be made and full compliance with plan can be achieved rests upon the debtor). In the cases before the" }, { "docid": "1107364", "title": "", "text": "Section 1325(a)(6) provides that a court shall confirm a Chapter 13 plan only if \"the debtor will be able to make all payments under the plan and to comply with the plan.\" This confirmation requirement is commonly referred to as the \"feasibility test\" or the \"feasibility requirement.” See, In re Gavia, 24 B.R. 573, 574 (Bankr. 9th Cir.1982). . The debtors’ respective sources of income and periodic payments to the trustee are outlined below: . Among the courts that have considered the issue, there is general agreement that, given the ordinary posture of the debtor as the proponent of the plan and the requirement of § 1325(a) that all confirmation criteria be met, the burden of proof should properly be assigned to the debtor at the hearing on confirmation of a Chapter 13 plan. However, where a creditor objects to confirmation, there is a split of authority as to the proper allocation of the burden of proof. Compare, In re Wolff, 22 B.R. 510, 512 (Bankr. 9th Cir.1982) (where creditor objects to confirmation, debtor, as proponent of the Chapter 13 plan, has the burden of proof as to its confirmation) with In re Mendenhall, 54 B.R. 44, 45-46 (Bankr.W.D.Ark.1985) (creditor, objecting to confirmation, as moving party, has the burden of proving that the plan should not be confirmed). . One Bankruptcy Court has held that, while § 1322(b)(8) permits a debtor to sell assets in order to fund a Chapter 13 plan, it does not allow for a refinancing. In re Whitten, 11 B.R. 333, 338 (Bankr.D.D.C.1981) (\"[wjhile it is undisputed that § 1322(b)(8) permits a debtor to liquidate his indebtedness by a sale of property, either from exempt or non-exempt sources ... a refinancing is not a ‘sale of property’\"). This Court believes that the Whitten court reads § 1322(b)(8) much too narrowly. The Court can perceive no practical difference between a debtor who sells exempt property to fund a plan and a debtor who pledges the exempt property as collateral to obtain a loan to gain funds to make payments under a Chapter 13 plan. See, In re" }, { "docid": "214711", "title": "", "text": "the Court to find “related-to” jurisdiction, the Court should exercise its discretion and abstain from hearing the adversary proceeding. The Court scheduled a hearing on the Motion to Dismiss for July 25, 2011. The Debtor filed an Opposition on July 13, 2011 in which she noted that she had filed a motion to convert her Chapter 7 case to a case under Chapter 13. III. DISCUSSION A. The Debtor’s Motion to Convert Case to Chapter IS 1. Positions of the Parties The Debtor argued that the Court has discretion to grant her Motion to Convert Case to Chapter 13, citing, among other cases, In re Bange, No. 08-40156-7C, 2010 WL 3829632 at *1 (Bankr.D.Kan. Sept. 23, 2010). She also argued that she is eligible to be a Chapter 13 debtor because she has a regular source of income, namely monthly Social Security payments. She relied upon In re Masterson, 141 B.R. 84 (Bankr. E.D.Pa.1992), for the proposition that her limited income should not bar reconversion of her case to Chapter 13. In Masterson, the court observed: Feasibility is one of the requirements, pursuant to 11 U.S.C. § 1325(a)(6), which must be satisfied to allow a Chapter 13 plan to be confirmed. However, in addressing the feasibility requirement in the context of a Chapter 13 case in In re Capodanno, 94 B.R. 62, 65 (Bankr. E.D.Pa.1988), this court stated as follows: [most] recent cases recognize that § 1325(a)(6) only requires that the Debtors’ budget appears realistic and that the “expectations of income are sufficiently realistic that they should be given an opportunity to carry out the plan they propose.” In re Compton, 88 B.R. 166, 167 (Bankr.S.D.Ohio 1988). See also In re Frey, 34 B.R. 607, 608-09 (Bankr.M.D.Pa.1983); In re Anderson, 18 B.R. 763, 765 (Bankr. S.D.Ohio 1982); and In re Perskin, 9 B.R. 626, 632-33 (Bankr.ND.Tex. 1981). Masterson, 141 B.R. at 88. The Debtor also maintained that a Chapter 13 plan would be feasible because, in addition to her regular source of income, she has a contingent form of income from the pending law suit against the Defendant. She stated" }, { "docid": "214719", "title": "", "text": "the debt- or or the court. Bange, 2010 WL 3829632 at *1. In addition to relying upon the language used in subsections 706(a), (c) and (d), courts permitting reconversion note that it fosters “the general bankruptcy policy of encouraging debtors to choose to pay their debts to the extent they can.” Id. (citing Hollar, 70 B.R. at 338). At least one court has determined that § 706(a) is inapplicable and that reconversion may only occur pursuant to § 706(d). See In re Buccolo, 2009 WL 2132435 at *9 (D.N.J. July 13, 2009). In Buccolo, the court stated: Section 706(d) allows Debtor to re-convert to a Chapter 13 case. A recent Supreme Court decision holds that an analysis of §§ 109(e) and 1307(c) of the Bankruptcy Code must occur when confronted with an application of § 706(d). Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 372-73, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007). Section 109(e) describes the parameters for a debtor to qualify as a debtor under Chapter 13. Section 1307(c)(5) provides that cause exists to dismiss a Chapter 13 case for “denial of confirmation of a plan under section 1325 of this title [...].” 11 U.S.C. § 1307(c)(5). In turn, section 1325 of the Bankruptcy Code provides that “the plan must be proposed in good faith” and that “the debtor will be able to make all payments under the plan and to comply with the plan,” commonly referred to as “feasibility” 11 U.S.C. § 1325(a)(4) and (6). Because subsection (d) provides Debtor with her only means of re-conversion, the Bankruptcy Court did not err in assessing §§ 109(e) and 1307(c), which includes feasibility. Case law also suggests that feasibility should be considered for re-conversion, specifically because motions for re-conversion are generally either granted or denied based on a feasibility analysis. See In re Green, 169 B.R. 480 (Bankr. S.D.Ga.1994). A Chapter 13 debtor, who converted her case to Chapter 7 and then re-converted back to Chapter 13, may not continue under her previously confirmed plan; rather, her new plan must be presented for confirmation, and must meet requirements of" } ]

[ { "docid": "23616683", "title": "", "text": "being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). The right to counsel of choice has been described as an “essential component” of the sixth amendment right to counsel. Linton v. Perini, 656 F.2d 207, 209 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982). The precise contours of this right, however, have not yet been determined. Indeed, the Supreme Court has rarely spoken about the right to choice of counsel in criminal proceedings. Therefore, we must analyze the nature and scope of the right to choice of counsel in light of the stated purposes served by the right and the lower court decisions construing it in specific cases. A defendant’s right to choose an attorney is a corollary of the right to decide what type of defense the accused will present. Wilson v. Mintzes, 761 F.2d 275, 279 n. 5 (6th Cir.1985); United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979). Indeed, it has been said that “the most important decision a defendant makes in shaping his defense is his selection of an attorney.” Laura, 607 F.2d at 56. A defendant learns about the charges against him, the weaknesses of the government’s case, and possible strategies through an attorney. Id. A defendant also allocates authority to make important decisions, some affecting constitutional rights, to an attorney. Id.; see also Morris v. Slappy, 461 U.S. 1, 21, 103 S.Ct. 1610, 1621 (1983) (Brennan, J., dissenting). A defendant, then, must have confidence in the attorney who will represent him or her. For “the basic trust between counsel and client ... is a cornerstone of the adversary system.” Linton, 656 F.2d at 209; but see Morris, 461 U.S. at 13-14, 103 S.Ct. at 1617-18 (the sixth amendment does not guarantee a “meaningful attorney-client relationship”). If all attorneys were the same, the choice of an attorney would be of no moment. However, “[attorneys are not fungible.” Laura, 607 F.2d at 56. Attorneys are different," } ]

[ { "docid": "22846482", "title": "", "text": "in retained counsel. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court discussed the dilemma of the Scottsboro rape defendants, for whom the entire county bar was appointed counsel. Before voiding this subterfuge, the Supreme Court observed that “It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Id. at 53, 53 S.Ct. at 58. The Eighth Circuit has also recognized this right: “In general, defendants are free to employ counsel of their own choice and the courts are afforded little leeway in interfering with that choice.” United States v. Cox, 580 F.2d 317, 321 (8th Cir. 1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979), cited with approval in United States v. Agosto, 675 F.2d 965, 969 (8th Cir.1982). The D.C. Circuit has stressed even greater recognition of this right. Although that Court denied a motion for continuance to secure counsel after the original counsel withdrew, it phrased in strong language the sixth amendment’s protection of non-indigents’ choice of counsel: An essential element of the Sixth Amendment’s protection of the right to the assistance of counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing. * * * An accused who is financially able to retain counsel must not be deprived of the opportunity to do so. United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). This right is generally regarded as a qualified right which “must be carefully balanced against the public’s interest in the orderly administration of justice.” Burton, 584 F.2d at 489. What is not so widely discussed, however, is whether a solvent defendant who is denied chosen counsel and who is not impeding the administration of justice, must show prejudice from this denial in order to obtain relief. Only the Ninth Circuit has addressed this issue directly. In United States v. Ray, 731 F.2d 1361," }, { "docid": "22109344", "title": "", "text": "retain counsel of his own choosing to conduct his defense in a criminal case. See In the Matter of Klein, 776 F.2d 628, 633 (7th Cir.1985); Ford v. Israel, 701 F.2d 689, 692 (7th Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 114, 78 L.Ed.2d 114 (1983). More than fifty years ago, the Supreme Court stated that “[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); see also Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Glosser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). However, the sixth amendment right is not solely, or even primarily, concerned with ensuring that a criminal defendant be pro vided with his counsel of choice. As the Supreme Court recently explained: The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” In United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932); United States v. Ash, 413 U.S. 300, 307, 93 S.Ct. 2568, 2572-73, 37 L.Ed.2d 619 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We have further recognized that the purpose of providing assistance of counsel “is simply to ensure that criminal defendants receive a fair trial,” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065," }, { "docid": "14373735", "title": "", "text": "with represented codefendants without the prior consent of their attorneys.” II Gonzalez-Lopez raises several arguments on appeal challenging his conviction and sentence. We address only the primary argument raised by the defendant challenging the district court’s denial of admission pro hac vice to the attorney he selected to represent him in the criminal proceeding. A non-indigent criminal defendant’s Sixth Amendment rights encompass the right to be represented by the attorney selected by the defendant. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). As a general rule, “ ‘defendants are free to employ counsel of their own choice and the courts are afforded little leeway in interfering with that choice.’ ” United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir.1985) (quoting United States v. Cox, 580 F.2d 317, 321 (8th Cir.1978)). “The right to privately retain counsel of choice derives from a defendant’s right to determine the type of defense he wishes to present.” United States v. Mendoza-Salgado, 964 F.2d 993, 1014 (10th Cir.1992) (citations omitted); United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979) (citations omitted). “Lawyers are not fungible, and often the most important decision a defendant makes in shaping his defense is his selection of an attorney.” Mendoza-Salgado, 964 F.2d at 1015-16 (internal quotations and citations omitted). Furthermore, “ ‘[a] defendant’s right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice.’ ” United States v. Ries, 100 F.3d 1469, 1471 (9th Cir.1996) (quoting United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir.1993)). Thus, “a decision denying a pro hac vice admission necessarily implicates constitutional concerns.” Panzardi-Alvarez v. United States, 879 F.2d 975, 980 (1st Cir.1989) (citation omitted). “[W]hile an accused who is financially able to retain counsel of his own choosing must not be deprived of a reasonable opportunity to do so, the right to retain counsel of one’s choice is not absolute.” United States v. Vallery, 108 F.3d 155, 157 (8th Cir.1997) (citing Urquhart" }, { "docid": "20863942", "title": "", "text": "at 53, 53 S.Ct. at 58. Although Powell was decided on due process grounds, a number of the Circuit Courts of Appeal, including this court, have held that the sixth amendment also provides a criminal defendant with a limited opportunity to secure counsel of his own choice. See, e.g., United States v. Rettaliata, 833 F.2d 361, 362 (D.C.Cir.1987); United States v. Wheat, 813 F.2d 1399, 1401-02 (9th Cir.1987), aff'd, — U.S. -, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Koblitz, 803 F.2d 1523, 1527-28 (11th Cir.1986); Wilson v. Mintzes, 761 F.2d 275, 279-80 (6th Cir.1985); Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984); United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978). The constitutional right to choice of counsel, however, is not absolute. One of the express limitations upon the right to choose one’s own attorney is that the criminal defendant be “financially able” to retain his counsel of choice. United States v. Burton, 584 F.2d at 489. See also United States v. Wheat, 813 F.2d at 1401 (criminal defendants who can afford retained counsel have a qualified right to counsel of their choice); United States v. Koblitz, 803 F.2d at 1527, quoting Linton v. Perini, 656 F.2d 207, 209 (6th Cir.1981) (sixth amendment provides defendant with opportunity to select his own counsel at his own expense), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982); Wilson v. Mintzes, 761 F.2d at 279-80 (defendant who is financially able to retain an attorney has qualified right to do so); Urquhart v. Lockhart, 726 F.2d at 1319 (accused who is financially able to retain counsel of his choice must not be deprived of a reasonable opportunity to do so). Thus, it is well settled that a defendant is not denied the right to choice of counsel if he is unable to afford the “best” counsel and must, as a consequence, settle for another, perhaps court-appointed attorney. See, e.g., Morris v. Slappy, 461 U.S. 1," }, { "docid": "10001798", "title": "", "text": "essential component of that right is the accused’s opportunity to obtain counsel of his own choice: “It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” 287 U.S. at 53, 53 S.Ct. at 58; accord Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4 (1954); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.1986); see also Morris v. Slappy, 461 U.S. 1, 21-23, 103 S.Ct. 1610, 1621-22, 75 L.Ed.2d 610 (1983) (Brennan, J., concurring) (discussing cases that protect a defendant’s right to choose his own counsel). The denial of a defendant’s right to choose his own counsel jeopardizes his sixth amendment guarantees because “a substantial risk [arises] that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut.” Wilson v. Mintzes, 761 F.2d 275, 279 (6th Cir.1985); Linton v. Perini, 656 F.2d 207, 209 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982). The sixth amendment right to counsel requires courts to pay considerable deference to a criminal defendant’s actual choice of counsel. United States v. Diozzi, 807 F.2d at 12; United States v. O’Malley, 786 F.2d 786, 789 (7th Cir.1986). Accordingly, a trial court’s denial of a criminal defendant’s request to retain out-of-state counsel implicates constitutional concerns. While the government’s interest in economy and efficiency may affect the scope of an indigent defendant’s right to be represented by counsel of his choice, see Morris v. Slappy, 461 U.S. at 23 n. 5, 103 S.Ct. at 1622 n. 5, “it is clear that when an accused is financially able to retain an attorney, the choice of counsel to assist him rests ultimately in his hands and not in the hands of the State.” Wilson v. Mintzes, 761 F.2d at 280. Panzardi never asked the District Court of Puerto Rico to appoint White as his counsel; he sought" }, { "docid": "23020950", "title": "", "text": "not fungible, and often “ ‘the most important decision a defendant makes in shaping his defense is his selection of an attorney.’ ” Collins, 920 F.2d at 625 (quoting Nichols, 841 F.2d at 1502). In situations where a defendant is able to privately retain counsel, “the choice of counsel rests in his hands, not in the hands of the state.” Id. In criminal cases, the right to retain counsel of choice becomes a question of fundamental fairness, “the denial of which may rise to a level of a constitutional violation.” Id. at 625; see also Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984). A conviction attained when a court “unreasonably or arbitrarily interferes with an accused[’s] right to retain counsel of choice ... cannot stand, irrespective of whether the defendant has been prejudiced.” Collins, 920 F.2d at 625. However, the courts have long recognized limits on the right to counsel of choice, stating “[t]he precise contours of this right ... have not yet been determined,” Nichols, 841 F.2d at 1501, and the “right to retain counsel of ... choice is not absolute,” Collins, 920 F.2d at 625; see also Nichols, 841 F.2d at 1502 (also noting in n. 7 at 1501, that the Supreme Court has never decided a case squarely on the basis of the right to counsel of choice); Powell, 287 U.S. at 53, 53 S.Ct. at 58 (defendant’s right to choose his own attorney is limited to “fair opportunity” to obtain counsel of choice). A defendant may not insist upon counsel of choice in a manner which obstructs orderly procedure in the courts or deprives courts of the exercise of their inherent powers to control the orderly course of justice. Collins, 920 F.2d at 625. While we recognize the right to choose and be represented by one’s preferred attorney is encompassed by the Sixth Amendment, the Supreme Court reminds us that the “essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the" }, { "docid": "23020949", "title": "", "text": "the accused shall ... have the assistance of counsel for his defense.” U.S. Const, amend. VI. As Mr. Garcia correctly points out, “[t]he right to counsel of choice has been described as an ‘essential component' of the sixth amendment right to counsel.” United States v. Nichols, 841 F.2d 1485, 1501 (10th Cir.1988). An accused should “ ‘be afforded a fair opportunity to secure counsel of his own choice,’ ” Collins, 920 F.2d at 624-25 (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932)), and “ ‘must be given a reasonable opportunity to employ and consult with counsel; otherwise the right to be heard by counsel would be of little worth.’ ” Id. at 625 n. 7 (quoting Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942)). The right to privately retain counsel of choice derives from a defendant’s right to determine the type of defense he wishes to present. Collins, 920 F.2d at 625; Nichols, 841 F.2d at 1502. Lawyers are not fungible, and often “ ‘the most important decision a defendant makes in shaping his defense is his selection of an attorney.’ ” Collins, 920 F.2d at 625 (quoting Nichols, 841 F.2d at 1502). In situations where a defendant is able to privately retain counsel, “the choice of counsel rests in his hands, not in the hands of the state.” Id. In criminal cases, the right to retain counsel of choice becomes a question of fundamental fairness, “the denial of which may rise to a level of a constitutional violation.” Id. at 625; see also Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984). A conviction attained when a court “unreasonably or arbitrarily interferes with an accused[’s] right to retain counsel of choice ... cannot stand, irrespective of whether the defendant has been prejudiced.” Collins, 920 F.2d at 625. However, the courts have long recognized limits on the right to counsel of choice, stating “[t]he precise contours of this right ... have not yet been determined,” Nichols, 841 F.2d" }, { "docid": "10001797", "title": "", "text": "with both White and Lopez Palmer. The district court refused to allow White to conduct the trial, sit at counsel table, or communicate with either Lopez Palmer or Panzardi during the trial. On November 15, the jury returned a guilty verdict on both counts against Panzardi. The district court sentenced Panzardi to consecutive terms of fifteen years for possession of heroin with intent to distribute, and five years for distribution of heroin. On appeal, Panzardi urges: that he was unconstitutionally denied the right to counsel of his choice; that the trial court erred in admitting two tapes into evidence; that government witnesses improperly commented upon the reliability of the confidential informant; and that consecutive sentences should not have been imposed. Because we find the first issue to be dispositive of this appeal, we do not consider Panzardi’s other contentions. ANALYSIS The sixth amendment guarantees criminal defendants the right to counsel. More than fifty years ago, the Supreme Court in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), recognized that an essential component of that right is the accused’s opportunity to obtain counsel of his own choice: “It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” 287 U.S. at 53, 53 S.Ct. at 58; accord Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4 (1954); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.1986); see also Morris v. Slappy, 461 U.S. 1, 21-23, 103 S.Ct. 1610, 1621-22, 75 L.Ed.2d 610 (1983) (Brennan, J., concurring) (discussing cases that protect a defendant’s right to choose his own counsel). The denial of a defendant’s right to choose his own counsel jeopardizes his sixth amendment guarantees because “a substantial risk [arises] that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut.” Wilson v. Mintzes, 761 F.2d 275, 279 (6th Cir.1985);" }, { "docid": "18762020", "title": "", "text": "discretion to order appellants to obtain substitute counsel. The sixth amendment to the United States Constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” It has long been recognized that a criminal defendant has a right to retain counsel of his choice. Chandler v. Fretag, 348 U.S. 3, 9-10, 75 S.Ct. 1, 4-5, 99 L.Ed. 4 (1954); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); Birt v. Montgomery, 725 F.2d 587, 592-93 (11th Cir.) (en banc), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984). The United States Court of Appeals for the Sixth Circuit has observed as follows: The right to choose one’s own counsel is an essential component of the Sixth Amendment because, were a defendant not provided the opportunity to select his own counsel at his own expense, substantial risk would arise that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut. Linton v. Perini, 656 F.2d 207, 209 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982). Stated in other words, the Constitution requires that a criminal defendant have “a fair or reasonable opportunity to obtain particular counsel, and [suffer from] no arbitrary action prohibiting the effective use of such counsel.” Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978) (quoting United States ex rel Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir.1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970)); see Birt, 725 F.2d at 593. The right to counsel of choice is not absolute. It must be balanced against the government’s interest in the fair, orderly, and effective administration of the courts which, in a given case, may require an accused to resort to his second choice of counsel. Birt, 725 F.2d at 593; Gandy, 569 F.2d at 1323; Wilson v. Mintzes, 761 F.2d 275, 280-81 (6th Cir.1985). In giving effect to this governmental interest, however, a trial judge must" }, { "docid": "22200259", "title": "", "text": "responded with a written motion reiterating the legal positions advanced in his previous motions and arguing that the district judge should re-cuse himself. After considering Dick-stein’s motion and the government’s response, the district court revoked Dick-stein’s admission pro hac vice and removed him from the case. Rec. vol. I, doc. 52. The court explained: The pleadings filed by Attorney Dick-stein in this case signal the Court that permitting his future participation will obscure the issues, engulf the ease with frivolity, and deflect the proceedings from their object — the orderly determination whether defendant has broken the law or not. Just as a court need not suffer the testimony of a purported expert witness that the moon is made of green cheese, it need not suffer the serving-up of legal swill by Attorney Dick-stein in this case. This is so even if defendant, who recites his approval of Attorney Dickstein’s pleadings, likes the recipe. Id. at 2. In a supplemental order, the district court found that Dickstein violated Oklahoma Rules of Professional Conduct by raising frivolous arguments before the court and failing to cite contrary authority. Rec. vol. I, doc. 57 at 6-9. In light of those violations, the court held “that the interests in the fair and proper administration of justice ... outweigh [defendant’s] interest in representation by the counsel of his choice.” Id. at 10. Dickstein unsuccessfully petitioned this court for a writ of mandamus, Dickstein v. Collins & Alley, No. 89-6225, unpub. order (10th Cir. Oct. 10, 1989), whereupon the federal public defender was substituted as defense counsel. A. The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense.” U.S. Const. am. VI. “It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). The right to retain counsel of choice stems from a defendant's right to decide what kind of defense he wishes to" }, { "docid": "22200260", "title": "", "text": "arguments before the court and failing to cite contrary authority. Rec. vol. I, doc. 57 at 6-9. In light of those violations, the court held “that the interests in the fair and proper administration of justice ... outweigh [defendant’s] interest in representation by the counsel of his choice.” Id. at 10. Dickstein unsuccessfully petitioned this court for a writ of mandamus, Dickstein v. Collins & Alley, No. 89-6225, unpub. order (10th Cir. Oct. 10, 1989), whereupon the federal public defender was substituted as defense counsel. A. The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense.” U.S. Const. am. VI. “It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). The right to retain counsel of choice stems from a defendant's right to decide what kind of defense he wishes to present. United States v. Nichols, 841 F.2d 1485, 1502 (10th Cir. 1988). “Attorneys are not fungible;” often “the most important decision a defendant makes in shaping his defense is his selection of an attorney.” United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979); Nichols, 841 F.2d at 1502. When a defendant is financially able to retain counsel, the choice of counsel rests in his hands, not in the hands of the state. United States v. Richardson, 894 F.2d 492, 496 (1st Cir.1990); Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.1985). A defendant’s right to retain counsel of his choice therefore represents “ ‘a right of constitutional dimension,’ ” United States v. Cunningham, 672 F.2d 1064, 1070 (2d Cir.1982) (quoting United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir.1973)), the denial of which may rise to the level of a constitutional violation, Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.) (en banc), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Wilson, 761 F.2d at 278-79. When a court" }, { "docid": "22840904", "title": "", "text": "again urged Mullen to seek Murphy’s advice. Mullen stood her ground and declined. Mullen’s trial went ahead as scheduled despite her express unwillingness to proceed pro se. Mullen took no part in the jury selection and made no opening statement. She did not cross-examine any of the government’s eight witnesses. She presented no evidence and made no closing argument. She did not consult with Murphy despite the court’s constant urging that she do so. The jury was quick in finding her guilty. She was sentenced to 220 months imprisonment and to five years supervised release, and she was fined $2,000. Mullen appeals the conviction, the sentence and the fine. II Mullen asserts that the district court erred when it refused to allow her to replace Murphy with a court-appointed lawyer. The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const, amend. VI. A defendant’s right to have a lawyer of his or her own choosing is an essential element of the Sixth Amendment right to assistance of counsel. United States v. Gallop, 838 F.2d 105, 107 (4th Cir.), cert. denied, 487 U.S. 1211, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). “[T]he right to counsel of choice, like the right to self-representation, is premised on respect for the individual_” Wilson v. Mintzes, 761 F.2d 275, 286 (6th Cir.1985). Cf. Flanagan v. United States, 465 U.S. 259, 267-68, 104 S.Ct. 1051, 1055-56, 79 L.Ed.2d 288 (1984) (the right to counsel of choice “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding”). Nevertheless, the defendant’s right to choose his or her lawyer is not absolute. Sampley v. Attorney General of North Carolina, 786 F.2d 610, 612 (4th Cir.), cert. denied, 478 U.S. 1008, 106 S.Ct. 3305, 92 L.Ed.2d 719 (1986). “Such right must not obstruct orderly judicial procedure and deprive courts of the exercise of their inherent" }, { "docid": "16135379", "title": "", "text": "motion to withdraw because Reyes wanted new counsel. It has long been recognized that a criminal defendant “should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This court has cautioned, however, that “although the right extends to indigent defendants, it does not afford them carte blanche in the selection of appointed counsel.” United States v. Myers, 294 F.3d 203, 206 (1st Cir.2002) (citing United States v. Machor, 879 F.2d 945, 952 (1st Cir.1989)). After a court “appoints an attorney to represent an accused, a subsequent decision to replace that attorney is committed to the informed discretion of the appointing court.” Id. We review the denial of a motion to withdraw for abuse of discretion. United States v. Woodard, 291 F.3d 95, 106-07 (1st Cir.2002); see also Myers, 294 F.3d at 207 (stating that the deferential standard makes “perfect sense” because “the trial court is in the best position to assess the qualitative aspects of the complex relationship between a defendant and his appointed counsel”). In evaluating whether a district court abused its discretion in deciding a motion to withdraw, this court considers the following factors: “the timeliness of the motion, the adequacy of the court’s inquiry into the defendant’s complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.” Woodard, 291 F.3d at 107 (quoting United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986)). 1. The motion to withdraw was untimely A defendant “has no right to representation by a particular attorney when such representation would require undue delay.” United States v. Hallock, 941 F.2d 36, 44 (1st Cir.1991) (internal citations omitted). In evaluating a motion to withdraw, a court must balance the “interest in retaining counsel of [the defendant’s] choice against the public’s interest in the prompt, fair and ethical administration of justice.” United States v. Richardson, 894 F.2d 492, 496 (1st Cir.1990) (internal citations and quotations omitted). Smith was appointed as Reyes’s" }, { "docid": "19406990", "title": "", "text": "Right to Assistance of Counsel The Sixth Amendment of the United States Constitution provides that in all criminal prosecutions \"the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.\" U.S. CONST. amend. VI. Two correlative rights emanate from the Sixth Amendment: (1) the right to retain counsel of one's choice, and (2) the right to \"representation that is free from conflicts of interest.\" See Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (\"It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.\"); Yeboah-Sefah v. Ficco, 556 F.3d 53, 68 (1st Cir. 2009) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) ). The essential aim of the Sixth Amendment, however, \"is to guarantee an effective advocate for each criminal defendant, rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.\" Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Mulero enjoys a presumption in favor of his choice of counsel. See Wheat, 486 U.S. at 159-60, 108 S.Ct. 1692. This presumption, however, \"may be overcome not only by a demonstration of actual conflict, but by a showing of serious potential for conflict.\" Wheat, 486 U.S. at 164, 108 S.Ct. 1692 ; see Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976) (\"The right to retain counsel of one's choice is not absolute.\"). Mulero's choice of counsel must comport with \"the public's interest in the prompt, fair and ethical administration of justice.\" United States v. Panzardi-Álvarez, 816 F.2d 813, 817. The Court possesses \"wide latitude in balancing the right to counsel of choice against the needs of fairness.\" United States v. González-López, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (citing Wheat, 486 U.S. at 163-64, 108 S.Ct. 1692 ). The conflict of interest analysis is \"left primarily to the informed judgment of the trial court.\" United States" }, { "docid": "22200261", "title": "", "text": "present. United States v. Nichols, 841 F.2d 1485, 1502 (10th Cir. 1988). “Attorneys are not fungible;” often “the most important decision a defendant makes in shaping his defense is his selection of an attorney.” United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979); Nichols, 841 F.2d at 1502. When a defendant is financially able to retain counsel, the choice of counsel rests in his hands, not in the hands of the state. United States v. Richardson, 894 F.2d 492, 496 (1st Cir.1990); Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.1985). A defendant’s right to retain counsel of his choice therefore represents “ ‘a right of constitutional dimension,’ ” United States v. Cunningham, 672 F.2d 1064, 1070 (2d Cir.1982) (quoting United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir.1973)), the denial of which may rise to the level of a constitutional violation, Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.) (en banc), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Wilson, 761 F.2d at 278-79. When a court unreasonably or arbitrarily interferes with an accused right to retain counsel of his choice, a conviction attained under such circumstances cannot stand, irrespective of whether the defendant has been prejudiced. United States v. Novak, 903 F.2d 883, 886 (2d Cir.1990); Fuller v. Diesslin, 868 F.2d 604, 606 (3d Cir.1989); United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.1987), aff'd, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Panzardi Alvarez, 816 F.2d 813, 818 (1st Cir. 1987); Wilson, 761 F.2d at 281. However, a defendant’s right to retain counsel of his choice is not absolute and “may not ‘be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.’ ” United States v. Gipson, 693 F.2d 109, 111 (10th Cir.1982) (quoting United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979)), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218," }, { "docid": "20863941", "title": "", "text": "relies solely upon the Constitution in arguing for the release of the forfeited assets. Specifically, Friedman contends that the sixth amendment right to counsel and the due process clause of the fifth amendment mandate that assets genuinely to be paid to counsel for attorney’s fees on appeal be exempted from forfeiture pursuant to 18 U.S.C. § 1963. Friedman is indeed correct when he asserts that the sixth amendment right to counsel and the due process clause of the fifth amendment vest in the criminal de fendant a limited right to the choice of counsel. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court reviewed state convictions in a capital case where the defendants were afforded neither the time nor the opportunity to retain counsel on their own. The Court reversed the convictions on due process grounds, observing that “[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Id. at 53, 53 S.Ct. at 58. Although Powell was decided on due process grounds, a number of the Circuit Courts of Appeal, including this court, have held that the sixth amendment also provides a criminal defendant with a limited opportunity to secure counsel of his own choice. See, e.g., United States v. Rettaliata, 833 F.2d 361, 362 (D.C.Cir.1987); United States v. Wheat, 813 F.2d 1399, 1401-02 (9th Cir.1987), aff'd, — U.S. -, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Koblitz, 803 F.2d 1523, 1527-28 (11th Cir.1986); Wilson v. Mintzes, 761 F.2d 275, 279-80 (6th Cir.1985); Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984); United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978). The constitutional right to choice of counsel, however, is not absolute. One of the express limitations upon the right to choose one’s own attorney is that the criminal defendant be “financially able” to retain his counsel of choice." }, { "docid": "23020948", "title": "", "text": "but only if he obtained a continuance to allow them time to prepare for trial. On the day of trial, the district court refused to hear either Mr. Jewkes or Mr. Boaz on the subject of a continuance, although they stressed Mr. Garcia’s original attorney could try the case within a week. The district court also refused to let Mr. Garcia speak on his own behalf, noting “I’m not going to hear anything on the continuance ... and I really don’t care what Mr. Garcia has to say.” Immediately thereafter, the case proceeded. Mr. Garcia contends the district court denied his Sixth Amendment right to counsel of choice when it forced him to trial represented by counsel whom he met only four days earlier, and whom he wanted to fire. The government counters that Mr. Jewkes appeared as co-counsel on June 7, 1990, and therefore Mr. Garcia was indeed represented by counsel of choice. The government also asserts defendant had adequate time to prepare his defense. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense.” U.S. Const, amend. VI. As Mr. Garcia correctly points out, “[t]he right to counsel of choice has been described as an ‘essential component' of the sixth amendment right to counsel.” United States v. Nichols, 841 F.2d 1485, 1501 (10th Cir.1988). An accused should “ ‘be afforded a fair opportunity to secure counsel of his own choice,’ ” Collins, 920 F.2d at 624-25 (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932)), and “ ‘must be given a reasonable opportunity to employ and consult with counsel; otherwise the right to be heard by counsel would be of little worth.’ ” Id. at 625 n. 7 (quoting Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942)). The right to privately retain counsel of choice derives from a defendant’s right to determine the type of defense he wishes to present. Collins, 920 F.2d at 625; Nichols, 841 F.2d at 1502. Lawyers are" }, { "docid": "23421373", "title": "", "text": "district court may properly rely exclusively on the PSR for drug quantity when the drug quantity contained therein is not in dispute. C. Sixth Amendment Right to Counsel Treadway’s second claim implicates his Sixth Amendment right under the United States Constitution, which provides that: “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. The Supreme Court has interpreted the right to assistance of counsel to include the right to have counsel of one’s choosing. See Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 99 L.Ed. 4 (1954) (“[A] defendant must be given a reasonable opportunity to employ and consult with counsel.”); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (stating that a criminal defendant deserves an opportunity to choose his own counsel). Although Sixth Amendment law is often concerned with issues impacting indigent criminal defendants, the amendment applies equally to financially-capable defendants. Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.1985) (“[I]t is clear that when an accused is financially able to retain an attorney, the choice of counsel to assist him rests ultimately in his hands and not in the hands of the State.”). With respect to the rationale behind such a right, we previously have stated: The right to choose one’s own counsel is an essential component of the Sixth Amendment because, were a defendant not provided the opportunity to select his own counsel at his own expense, substantial risk would arise that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut. Linton v. Perini, 656 F.2d 207, 209 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1086, 71 L.Ed.2d 318 (1982). Thus, the Sixth Amendment prohibits a court from unreasonably denying a defendant his counsel of choice. See Wilson, 761 F.2d at 278-79; id. at 280 (explaining that the right to choose one’s own counsel is not an absolute right because it is tempered by considerations of “prompt and efficient administration of justice”). The" }, { "docid": "22243968", "title": "", "text": "for Appellant, assisted by Oteri. The government alleged, and the court agreed, that Roberto Aspuru’s previous contacts with Weinberg and Oteri provided grounds for the disqualification of the firm as Appellant’s counsel in this case. A trial court’s decision to disqualify the defendant’s counsel is reviewed for abuse of discretion. Wheat v. United States, 486 U.S. 153, 163, 164, 108 S.Ct. 1692, 1699-1700, 100 L.Ed.2d 140 (1988). The Sixth Amendment guarantees criminal defendants that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” More than sixty years ago, the Supreme Court recognized that an essential part of that right is the accused’s ability to select the counsel of his choice. See Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.”). Thus, a criminal defendant has a presumptive right to counsel of choice, Wheat, 486 U.S. at 164, 108 S.Ct. at 1700, and courts should hesitate to disqualify defense counsel. Notwithstanding the importance of the right to counsel of choice, that right is not absolute. In determining whether or not to disqualify defense counsel, the court must balance two Sixth Amendment rights: (1) the right to be represented by counsel of choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest. Id. at 160, 108 S.Ct. at 1697. The need for fair, efficient, and orderly administration of justice overcomes the right to counsel of choice where an attorney has an actual conflict of interest, such as when he has previously represented a person who will be called as a witness against a current client at a criminal trial. See United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir.1991). When an actual conflict of interest exists, the client is denied effective assistance of counsel, and the attorney may be disqualified. United States v. Martinez, 630 F.2d 361," }, { "docid": "22109343", "title": "", "text": "that the statute does not reach legitimate attorneys’ fees, some courts have focused on other language in the Senate Report expressing concern with sham or fraudulent transactions that defeat forfeiture. See United States v. Ianniello, 644 F.Supp. 452, 455-56 (S.D.N.Y.1985); United States v. Rogers, 602 F.Supp. 1332, 1347 (D.Colo.1985). We do not think the Senate Report can be read so narrowly. Certainly, Congress’ manifest concern with sham transactions does not indicate that its focus was narrowed exclusively to these abuses —especially when the language of the statute itself protects only the bona fide purchaser who purchases “reasonably without cause to believe that the property was subject to forfeiture____” 21 U.S.C. § 853(n)(6). See Nichols, 841 F.2d at 1494. Accordingly, we conclude that the statute as written applies to attorneys’ fees. d. We turn therefore to the argument that the application of the statute to attorneys’ fees violated Orlando’s sixth amendment right to counsel by depriving him of his counsel of choice. It is not in dispute that a criminal defendant has a qualified right to retain counsel of his own choosing to conduct his defense in a criminal case. See In the Matter of Klein, 776 F.2d 628, 633 (7th Cir.1985); Ford v. Israel, 701 F.2d 689, 692 (7th Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 114, 78 L.Ed.2d 114 (1983). More than fifty years ago, the Supreme Court stated that “[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); see also Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Glosser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). However, the sixth amendment right is not solely, or even primarily, concerned with ensuring that a criminal defendant be pro vided with his counsel of choice. As the Supreme Court recently explained: The Sixth Amendment to the Constitution guarantees that “[i]n all" } ]

[ { "docid": "12710540", "title": "", "text": "next day the agents went there, and as they approached the house they detected the odor of liquor and heard the still in operation. This court stated: “If the information which had reached the officers prior to the arrest and search, that is, prior to the opening of the door of the dwelling house, and the knowledge they had gained through their senses of smell and hearing, was sufficient to give them probable cause to believe that a felony was being committed in their presence, they were entitled to enter the dwelling and make the arrest, United States v. Borkowski (D. C.) 268 F. 408; McBride v. United States (C. C. A.) 284 F. 416; Janus v. United States (C. C. A.) 38 F.(2d) 431, 436; 28 USCA § 504, and, as an incident thereof, search the premises, United States v. Borkowski, supra (D. C.) 268 F. 408; Vachina v. United States (C. C. A.) 283 F. 35; McBride v. United States, supra (C. C. A.) 284 F. 416. See, also, Garske v. United States (C. C. A.) 1 F.(2d) 620, and cases there collated. That they had reasonable cause to believe that a felony was being committed in their presence is clear, and they therefore had a right to enter the premises for the purpose of making an arrest, and, as an incident thereto, to seize property found in appellant’s control, which it was unlawful for him to have.” Citing cases. Likewise, in the case at bar, the officers had reasonable cause for believing that a crime was being committed in their presence and therefore had a right to enter the premises and arrest the attendant without first obtaining a warrant. As incident thereto, they had the right to search the premises and seize property used in the commission of the crime. As stated in Pong Ying v. U. S. (C. C. A. 3) 66 F.(2d) 67, 68: “To throw a shield of constitutional protection over a lawbreaker who has himself created the evidence on the outside of his premises that the law is being violated within such premises" } ]

[ { "docid": "2901390", "title": "", "text": "A. 6); Billingsley v. United States (C. C. A.) 16 F.(2d) 754, 756; Lee Kwong Nom v. United States, 20 F.(2d) 470, 472 (C. C. A. 2); State v. District Court, 72 Mont. 77, 231 P. 1107. Cf. Murby v. United States, 293 F. 849, 852 (C. C. A. 1). These search warrant cases the appellants attempt to distinguish upon the ground that in them the arresting officers had evidence of crime committed in their presence, rather than probable cause to believe that the person arrested had previously, committed a felony. The logie of the attempted distinction is not apparent, and we regard these cases as authorities against the appellants’ first contention. See, also, Salisbury v. Commonwealth, 79 Ky. 425, involving an invalid warrant of arrest. Cases where a warrant is necessary to gain lawful entry to the premises are distinguishable and have no application to the present situation. The legality of the arrest is next attacked upon the ground that O’Brien had no authority to arrest without warrant, because (1) a prohibition agent is not a peace officer; (2) the Treasury Regulations under which prohibition agents act do not sanction it unless crime is committed in the agent’s presence; and (3) if the agent relies only upon the right of a private individual to arrest without warrant, he did not have probable cause to believe that Gowen and Bartels had committed the felony for which they were arrested. We pass at once to the third branch of the argument, for, if this is decided adversely to the appellants, it will be unnecessary to consider the other two. The New York Code of Criminal Procedure provides: “§ 183. A private person may arrest another: * * * “2. When the person arrested has committed a felony, although not in his presence.” This in effect is declaratory of the common law, which concededly permits a peace officer or a private individual to arrest without warrant where a felony has in fact been committed by the person arrested and the person making the arrest had probable cause for so believing. See Carroll" }, { "docid": "17149244", "title": "", "text": "“search or seize,” but the arrest merely serves the function of a search warrant. Not every arrest is lawful. A person may be lawfully arrested by an officer on a valid warrant for arrest; or where such person is committing crime in the presence of the officers. This court has further held that where the officer has knowledge that a felony has been committed by a person, such person may be lawfully arrested by such officer. And the rule is extended still further, as shown by the following quotation from Carroll v. United States, supra, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543, 39 A.L.R. 790: “The usual rule .is that a police of-' ficer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if commirted in his presence.” And so it is held that where there is probable cause to arrest for a felony, the arrest is lawful and valid even though made on an invalid warrant for the arrest. Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. See, also, United States v. Lefkowitz, supra, 285 U.S. 452, 462, 52 S.Ct. 420, 76 L.Ed. 877, 82 A. L.R. 775. The probable cause, which must exist to enable an officer to arrest for the commission of past felonies, is defined in Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, as follows: “If the facts and circumstances before the officer are such as to warrant a man ■of prudence and caution in believing that the offence has been committed, it is sufficient.” See, also, Carroll v. United States, supra, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Kwong How v. United States (C.C.A. 9) 71 F.(2d) 71. The second element which must exist in order to bring a case within the exception to the general rule is that in addition to a lawful arrest, the search must be incident to the" }, { "docid": "5813850", "title": "", "text": "the law of the state where the offender may be,” Judge Hand refused to attribute to Congress an intent to restrict enforcement to federal government officials or to the administrative machinery set forth in the federal statute at issue. Id.; see United States v. Polito, 583 F.2d 48, 51 (2d Cir.1978) (citing Marsh for the proposition that “New York police officers are authorized to arrest for state and federal offenses”). Subsequently, we elaborated upon the proposition alluded to in Marsh that, in the absence of a federal statute authorizing an arrest by any officer (federal or state), “ ‘the law of the state where an arrest without warrant takes place determines its validity.’ ” United States v. Viale, 312 F.2d 595, 599 (2d Cir.), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963); United States v. Swarovski, 557 F.2d 40, 43 (2d Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978) (both quoting United States v. Di Re, 332 U.S. 581, 589, 591, 68 S.Ct. 222, 92 L.Ed. 210 (1948)); see also Swarovski, 557 F.2d at 48 (“The United States Supreme Court ... has ruled that ... one must look to state law to find the authority for a state peace officer or a private person to arrest someone who has committed a federal felony....”). We held in Viale that the officers were authorized to arrest for violation of a federal misdemeanor under the New York State statute that allows a private citizen to arrest for misdemeanors committed in his or her presence, see 312 F.2d at 600-01, and in Swarovski that “the statutory provisions of the State of New York which authorize arrests by private persons of another person who is in the act of committing or has in fact just committed a felony in the State of New York, include felonies under the laws of the United States as well as those under the laws of New York,” 557 F.2d at 47. In light of our precedents, it is clear that Haskin is incorrect in his assertion that, in the absence" }, { "docid": "4014105", "title": "", "text": "and seizures. . . .” Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). “This Court, in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. Miller v. United States [357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958)]; United States v. Di Re, 332 U.S. 581 [, 68 S.Ct. 222, 92 L.Ed. 210] (1948); Johnson v. United States, 333 U.S. 10, 15 n. 5 [, 68 S.Ct. 367, 370, 92 L.Ed.2d 436] (1948). A fortiori, the lawfulness of these arrests by state officers for state offenses is to be determined by California law.” Id. at 37, at 1632 of 83 S.Ct. The Arizona arrest statute, A.R.S. § 13-1403 (1956), provided at the time of appellant’s arrest: “A peace officer, may without a warrant, arrest a person: 3. When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it.” This portion of the Arizona statute is somewhat narrower than the California statute, Penal Code, § 836 (1970). Arizona case law is in line with Ker, supra. State v. Pederson, 102 Ariz. 60, 424 P.2d 810 (1967); State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). Appellant contends the police officer did not intend to make an arrest. Whether or not an arrest occurred is governed by the facts of the incident and not the subjective intent of the officer. Lowe v. United States (9 Cir. 1969) 407 F.2d 1391, 1396-7; United States v. Smith (9 Cir. 1971) 441 F.2d 539, 540; United States v. Pellegrini (S.D.N.Y.1970) 309 F.Supp. 250, 255. See also, United States v. Hall (2 Cir. 1969) 421 F.2d 540, 544, cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970); Williams v. United States (9 Cir. 1967) 381 F.2d 20, 22. A certain set of facts may constitute an arrest whether or not the officer intended to make" }, { "docid": "23525531", "title": "", "text": "eye Section 2470 of the Mississippi Code: “2470. Arrests — when made without warrant. An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.” (Emphasis added.) Because Lathers bases his first contentention entirely, and most strenuously, on Mississippi jurisprudence, we pause to dispose of this claim on his own battlefield. However, in section (b) infra we will move to the appropriate arena of decision. Lathers construes Section 2470 as requiring absolute knowledge that a felony has been committed. Reasonable grounds, he asserts, are not enough. His interpretation, though having plausible acceptability, does not comply with the following interpretation reached by the Mississippi Supreme Court: “An officer without a warrant may arrest a person when he has reasonable cause to believe that a felony has been committed, and reasonable cause to believe that such person committed it. These criteria existed here, under Mississippi, Louisiana and federal constitutional law. Miss.Code Ann. § 2470 (1956); La.Rev.Stats. § 15:60 (1950); Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).” (Emphasis added.) Bradshaw v. State, 1966, Miss., 192 So. 2d 387, 388, cert. den., 1967, 389 U.S. 941, 88 S.Ct. 299, 19 L.Ed.2d 293. See also Nash v. State, 1968, Miss., 207 So. 2d 104, 107 (at [1]); Craft v. State, 1947, 202 Miss. 43, 30 So.2d 414, 415-416. Cf. Barnett v. United States, 5 Cir. 1967, 384 F.2d 848," }, { "docid": "5970659", "title": "", "text": "(2d Cir. 1944) (Circuit Judges Swan, A. Hand, and Clark, writer of the opinion); Marsh v. United States, 29 F.2d 172 (2d Cir. 1928) (opinion by L. Hand with Swan and A. Hand, Circuit Judges). In Marsh, Judge L. Hand said, among other things: “The only thing left is whether the trooper had authority by virtue of the state law to arrest the defendant for a federal misdemeanor, of whose commission in his presence he had lawfully obtained the evidence. Section 177 of the New York Code of Criminal Procedure provides that ‘a peace officer may, without a warrant, arrest a person, * * * for a crime, committed or attempted in his presence,’ thus including all misdemeanors, whether or not they be breaches of the peace. Whether the power so conferred includes federal crimes has never, so far as we can find, been directly ruled by the state courts. On the other hand, it has been a universal practice of police officers in New York to arrest for federal crimes, regardless of whether they are felonies or misdemeanors, and to bring the offenders before a commissioner. The distinction between the two classes is irrelevant, unless we assume that there is a common law of federal criminal procedure, fixed as of 1789. At any rate, no such distinction has been made, and the practice is strong evidence of the understanding of the state officials as to the meaning of the state law.” 29 F.2d 172, at 173. In Lindenfeld, Judge Clark said: “Initially, there can be no doubt that defendant was lawfully arrested, even though the agents possessed no warrant. The law is clear that any person, law enforcement officer or private citizen, can make an arrest where a felony has in fact been committed, and the person making the arrest has probable cause for so believing. United States v. Gowen, 2 Cir., 40 F.2d 593, reversed on other grounds in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39" }, { "docid": "22879782", "title": "", "text": "law insofar as the arrest is not violative of the Constitution. Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 1201, 22 L.Ed.2d 474 (1969). The constitutional validity of an arrest is dependent upon the existence of probable cause. E. g., Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Under South Dakota law, a peace officer may arrest without a warrant: (1) for a public offense committed or attempted in his presence; (2) when a felony has in fact been committed, and the officer has “reasonable cause” for believing the person arrested to have committed it; and (3) at night on “reasonable cause” even though it afterwards appears that a felony has not been committed. S.D.Code § 34.1609 (Supp.1960). “Reasonable cause”, as used in the above statute, is equated with the Fourth Amendment’s requirement of probable cause. See, e. g., Reed v. United States, 401 F.2d 756 (8th Cir. 1968); Theriault v. United States, supra. Probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy, information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); see also, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Beck v. State of Ohio, 379 U.S. 89, 98, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Gullett v. United States, 387 F.2d 307, 311 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968). Fourth Amendment protection requires that courts" }, { "docid": "8126836", "title": "", "text": "Salli, 2 Cir., 115 F.2d 292. Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118, 73 L.Ed. 275; Gouled v. United States, 255 U.S. 298, 312, 313, 41 S.Ct. 261, 65 L.Ed. 647. Rules of Criminal Procedure, 18 U.S. C.A. following section 687. Notes of the Committee, p. 32. CLARK, Circuit Judge (dissenting). The ground of my dissent may be shortly stated. It is that police officers cannot be held unreasonable in declining to view as a mere bystander one who accompanies a criminal to a crime rendezvous. Surely rarely, if at all, will innocence be accorded such opportunity; the instigators of the meeting may seek helpers, but hardly onlookers, i.e., potential talebearers. This reaction of common sense is here supported by the other circumstances, notably the absence of any natural outcry, protest, or denunciation of his associates by DiRe on his apprehension. Less significant, hut quite consistent, is the fact that DiRe was clad in ordinary work clothes. That a felony \"was involved is conceded. In truth there was not only the felony of conspiracy, Blumenthal v. United States, 9 Cir., 158 F.2d 883, but also the substantive felony of possessing and passing the counterfeit coupons. United States v. Serpico, 2 Cir., 148 F.2d 95. The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269. Now the general and traditional rule of arrest without a warrant by a peace officer is aptly stated in the N.Y. Code of Criminal Procedure, § 177, as applicable in three situations: “1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.” Since the Serpico case shows the later finding of the counterfeit coupons upon DiRe to be a felony, it might well be contended that the" }, { "docid": "2800365", "title": "", "text": "arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.” . Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, 384, certiorari denied sub. nom. O’Kelley v. United States, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429; United States v. Heitner, 2 Cir., 149 F.2d 105, certiorari denied sub nom., Cryne v. United States, 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432, rehearing denied 326 U.S. 809, 66 S.Ct. 164, 90 L.Ed. 494. In the Heitner ease the court, through Judge L. Hand, 149 F.2d stated at page 106, “It is well settled that an arrest may be made upon hearsay evidence; [citing cases] and indeed, the ‘reasonable cause’ necessary to support an arrest cannot demand the same strictness of .proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.” And see Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, “Probable cause ‘is a reasonable ground for belief of guilt’ ”, citing many cases and authorities. . McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170. . In Janus v. United States, 9 Cir., 38 F.2d 431, 437, this court found that a detention during the night and until the magistrate opened his office the following morning was reasonable." }, { "docid": "2800364", "title": "", "text": "U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, 154 A.L.R. 982; Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, supra. Lotto v. U. S., 8 Cir., 157 F.2d 623, 625; Losieau v. U. S., 8 Cir., 177 F.2d 919, 923. . California Health and Safety Code, §§ 11531, 11712. . California Penal Code, § 836. “Arrests by peace-officers: A peace-officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person: 1. For a public offense committed or attempted in his presence. 2. When a person arrested has committed a felony, although not in his presence. 3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. 4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested. 5. At night, when there is reasonable cause to believe that he has committed a felony. § 837. “Arrest by private persons: A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.” . Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, 384, certiorari denied sub. nom. O’Kelley v. United States, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429; United States v. Heitner, 2 Cir., 149 F.2d 105, certiorari denied sub nom., Cryne v. United States, 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432, rehearing denied 326 U.S. 809, 66 S.Ct. 164, 90 L.Ed. 494. In the Heitner ease the court, through Judge L. Hand, 149 F.2d stated at page 106, “It is well settled that an arrest may be made upon hearsay evidence;" }, { "docid": "12845358", "title": "", "text": "bullets and the pistol on the basis of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See, 53 Minn.L.Rev. 652 (1969). . The statutory law of Minnesota (M.S.A. § 629.34) provides that a peace officer may make an arrest without a warrant as follows: “A peace officer may, without warrant, arrest a person: “(1) Eor a public offense committed or attempted in his presence; “ (2) When the person arrested has committed a felony, although not in his presence; “(3) When a felony has in fact been committed, and he has reasonable cause tor believing the person arrested to have committed it; or “(4) Upon a charge made upon reasonable cause of the commission of a felony by the person arrested. “To make such arrest the officer may break open an outer or inner door or window of a dwelling house if, after notice of his office and purpose, he shall be refused admittance.” See, State v. Stewig, 281 Minn. 331, 161 N.W.2d 673 (1968); State v. Fish, 280 Minn. 163, 159 N.W.2d 786 (1968); State v. Bean, 280 Minn. 35, 157 N.W.2d 736 (1968); State v. Harrison, 279 Minn. 310, 156 N.W.2d 763 (1968); State v. Purdy, 278 Minn. 133, 153 N.W.2d 254 (1967); State v. Sorenson, 270 Minn. 186, 134 N.W.2d 115 (1965). . See, Jackson v. United States, 408 F.2d 1165 (8th Cir. March 26, 1969); Reed v. United States, 401 F.2d 756 (8th Cir. 1968); Schook v. United States, 337 F.2d 563 (8th Cir. 1964). . Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Jackson v. United States, supra; Harris v. United States, 389 F.2d 727, 730 (5th Cir. 1968); Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308 (1967). . However, in Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 (1963), the Court stated: “ * * * [W]hile California law does not require that an arrest precede an incidental search as long as probable cause exists at the outset, * * *. The California" }, { "docid": "5970660", "title": "", "text": "are felonies or misdemeanors, and to bring the offenders before a commissioner. The distinction between the two classes is irrelevant, unless we assume that there is a common law of federal criminal procedure, fixed as of 1789. At any rate, no such distinction has been made, and the practice is strong evidence of the understanding of the state officials as to the meaning of the state law.” 29 F.2d 172, at 173. In Lindenfeld, Judge Clark said: “Initially, there can be no doubt that defendant was lawfully arrested, even though the agents possessed no warrant. The law is clear that any person, law enforcement officer or private citizen, can make an arrest where a felony has in fact been committed, and the person making the arrest has probable cause for so believing. United States v. Gowen, 2 Cir., 40 F.2d 593, reversed on other grounds in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Brady v. United States, 6 Cir., 300 F. 540, certiorari denied 266 U.S. 620, 45 S.Ct. 99, 69 L.Ed. 472; Pritchett v. Sullivan, 8 Cir., 182 F. 480; cf. also 5 U.S.C.A. § 300a, codifying the common law with regard to arrests by agents of the Federal Bureau of Investigation, and A.L.I. Code of Criminal Procedure, 1930, § 21, and commentary, pp. 231-238. And the agents here certainly had more than probable cause for believing that defendant had just committed a felony.” 142 F.2d 829, at 831-2. (Footnote omitted.) (This case concerned an arrest and prosecution for illicit sales of morphine, but took place long before the enactment of 26 U.S.C. § 7607 on July 18, 1956.) Of the remaining Second Circuit cases cited by the Government, Burgos, Viale and Heliczer were all decided before the amendment of September 1, 1967 to the Code of Criminal Procedure when the words “an offense” were substituted for the existing words “a crime”, and before the Penal Code was amended on the same day to redefine" }, { "docid": "2800363", "title": "", "text": "its seizure, and his offer, when confronted with these facts, to assist the agents in apprehending the seller. To the foregoing may be added the fact that the capture included bulk marihuana contained in twelve Prince Albert tins and 213 marihuana cigarettes. This evidence is entirely inconsistent with a contention that he had paid the tax, and although circumstantial, was of such compelling significance as to create an inescapable inference of guilt. The evidence before the court clearly justified its conclusion that the entire transaction was illegal and that appellant had not paid the transfer tax. We think that the judgment and sentence on count one finds overwhelming support in the record and should be affirmed. Affirmed. 1948 Revised Criminal Code, 18 U.S.C.A. § 545. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. .520.; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, 154 A.L.R. 982; Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, supra. Lotto v. U. S., 8 Cir., 157 F.2d 623, 625; Losieau v. U. S., 8 Cir., 177 F.2d 919, 923. . California Health and Safety Code, §§ 11531, 11712. . California Penal Code, § 836. “Arrests by peace-officers: A peace-officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person: 1. For a public offense committed or attempted in his presence. 2. When a person arrested has committed a felony, although not in his presence. 3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. 4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested. 5. At night, when there is reasonable cause to believe that he has committed a felony. § 837. “Arrest by private persons: A private person may" }, { "docid": "14209046", "title": "", "text": "motel room was searched; that search of the truck was not undertaken until after the arrest and, as to some items, until after the defendant had been taken to the police station; and that his warrantless arrest was not on probable cause. We look first at Theriault’s arrest, Its lawfulness is to be determined by state law insofar as it is not violative of the federal constitution. Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The applicable Arkansas statute, Ark.Stat.Ann. § 43-403 (Repl.1964), reads: “43-403. Peace officer, when may arrest. — A peace officer may make arrest: >Jc % % % % “Second. Without a warrant, where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony.” We equate this statutory standard .of reasonableness with probable cause. Trotter v. Stephens, 241 F.Supp. 33, 40 (E.D.Ark.1965), aff’d. 361 F.2d 888, 892 (8 Cir. 1966), cert. denied 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113. The Supreme Court and this court on many occasions have enunciated the standard of probable cause applicable for a warrantless arrest. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Feguer v. United States, 302 F.2d 214, 245-248 (8 Cir. 1962), cert. denied 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110; Schook v. United States, 337 F.2d 563, 565 (8 Cir. 1964); Cotton v. United States, 361 F.2d 673 (8 Cir. 1966); Rodgers v. United States, 362 F.2d 358, 361 (8 Cir. 1966), cert. denied 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454; Gullett v. United States, 387 F.2d 307, 309 (8 Cir. 1967). Some or all of the arresting" }, { "docid": "14498115", "title": "", "text": "Seize Evidence and Obtain Statements? 1. Was Awadallah Unlawfully Arrested? Under the Fourth Amendment, there are only two grounds on which the police may arrest an individual if they do not have a warrant: (1) if the arresting officer has “reasonable ground” to believe that the individual has committed a felony, or (2) if the officer, has probable cause to believe that an individual committed a misdemeanor in the officer’s. presence. See Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (emphasis added)); United States v. Watson, 423 US. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (“The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.”); Carroll v. United States, 267 U.S. 132, 156-57, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (“The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence....\") On September 20, 2001, when the agents first approached Awadallah, they did not have a warrant. Nor did they have any evidence or even reasonable suspicion that had committed any crime, misdemean- or otherwise. At most, they believed he was a material witness in their investigation. There is no authority, however, for conclusion that having “reasonable suspicion” that a person is a material witness sufficient to permit a warrantless arrest. The agents could certainly initiate a voluntary encounter with Awadallah, which the government claims they did. See United States v. Tehrani, 49 F.3d 54, 58 (2d Cir.1995). But the" }, { "docid": "8126837", "title": "", "text": "felony of conspiracy, Blumenthal v. United States, 9 Cir., 158 F.2d 883, but also the substantive felony of possessing and passing the counterfeit coupons. United States v. Serpico, 2 Cir., 148 F.2d 95. The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269. Now the general and traditional rule of arrest without a warrant by a peace officer is aptly stated in the N.Y. Code of Criminal Procedure, § 177, as applicable in three situations: “1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.” Since the Serpico case shows the later finding of the counterfeit coupons upon DiRe to be a felony, it might well be contended that the second subdivision is applicable. See Wilgus, Arrest without a Warrant, 22 Mich.L.Rev. 541, 685; Holley v. Mix, 3 Wend., N.Y., 350, 20 Am.Dec. 702; 18 U.S.C.A. § 53a, last clause. But accepting the third subdivision of the statute as stating the more accepted federal principle, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; United States v. Lindenfeld, 2 Cir., 142 F.2d 829, 831, certiorari denied 323 U.S. 761, 65 S.Ct. 89, 89 L.Ed. 609; 5 U.S.C.A. § 300a, there would seem to be “reasonable cause” for the officers to believe that DiRe had participated in the crime admittedly being committed by Buttitta and Reed. (Actually, as later events showed, he was quite clearly a source of supply, a reserve bank, so to speak, for Buttitta in the latter’s sales.) The cases have always held that it is not certainty, but only a reasonable deduction from the circumstances and positions of the parties, which justifies the arrest. See cases collected in the commentaries to the A.L.I. Code of" }, { "docid": "2856573", "title": "", "text": "they reached the second floor one of the agents told the defendant he thought he had a still located in the premises. The defendant answered: “Maybe — what about it?” The agent walked toward the attic and the defendant said: “O.K., you got it.” The agent went to the attic and there found and seized the still. The Government contends that the agents were authorized to enter the house without a search warrant because there existed probable cause to believe that a felony was being committed in their presence. Kwong How v. United States, 9 Cir., 71 F.2d 71; Rocchia v. United States, 9 Cir., 78 F.2d 966; Cardinal v. United States, 6 Cir., 79 F.2d 825; Wida v. United States, 8 Cir., 52 F.2d 424. In view of the rulings in Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Leubbert v. United States, 8 Cir., 74 F.2d 357, and Raniele v. United States, 8 Cir., 34 F.2d 877, there is some doubt as to the existence of probable cause; hut if we assume that it did exist, it only authorized an entry for the purpose of making an arrest. It did not authorize an entry for the purpose of making a search. A person’s house can not lawfully be searched without a- search warrant, except as an incident to a lawful arrest therein. Agnello v. United States, 269 U.S. 20, 32, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. In that case the Supreme Court said: “Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” That case, as well as others, recognizes the right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed. But that right is limited" }, { "docid": "14792407", "title": "", "text": "364; The George, 1 Mason 24, Fed.Cas.No.5,328; The Thompson, 3 Wall. 155, 18 L.Ed. 55. It was laid down by Chief Justice Shaw, in Commonwealth v. Carey, 12 Cush., Mass., 246, 251 that ‘if a constable or other peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspeets one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful.’ Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868; Rohan v. Sawin, 5 Cush., Mass., 281, 285. In McCarthy v. DeArmit, 99 Pa. [St.] 63, at page 69, the Supreme Court of Pennsylvania sums up the definition of probable cause in this way: “ ‘The substance of all the definitions is a reasonable ground for belief in guilt.’ “In the case of the Director General of Railroads v. Kastenbaum, 263 U.S. 25, at page 28, 44 S.Ct. 52, 53, 68 L.Ed. 146, which was a suit for false imprisonment, it was said by this Court: “ ‘But, as we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the Director General’s agent, which in the judgment of the court would make his faith reasonable.’ ” The term “reasonable ground” was subjected to judicial evaluation in United States v. Bell, D.C.Cal.1943, 48 F.Supp. 986, 992 and we think the interpretation sponsored there is sound. . For example, see: United States v. Li Fat Tong, 2 Oir., 1945,152 F.2d 650, 652: “But it is contended that it [an arrest without a warrant] was unlawful because based upon hearsay evidence obtained from the Chicago Ofiico [of the Narcotic Bureau] and through informers whose names were not divulged. We recently held, however, in United States v. Heitner, 2 Cir., 149 F.2d 105, 106 that an arrest may be made upon hearsay evidence, and cited as authority the ruling" }, { "docid": "8889763", "title": "", "text": "in the nature of a trespass, nor was such entry in violation of the pertinent provisions of the Fourth Amendment. Cf. Stein v. United States, 9 Cir., 1948, 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768. Although we have responded to appellant’s assertion that the entry to his apartment was a trespass and that therefore the subsequent search and seizure were illegal, we do not mean to intimate that the mere fact that there has been a trespass by law officers results in making any subsequent search and seizure invalid and the evidence obtained thereby inadmissible. See Koth v. United States, 9 Cir., 1926, 16 F.2d 59, 61; Giacona v. United States, 5 Cir., 1958, 257 F.2d 450, 456, certiorari denied 1958, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104. The Fourth Amendment only proscribes unreasonable searches and seizures, and the determination of each case necessarily depends on its own particular facts and circumstances. United States v. Rabinowitz, 1950, 339 U.S. 56, 65-66, 70 S.Ct. 430, 94 L.Ed. 653. Was the arrest of appellant without a warrant lawful? Title 26 U.S.C.A. § 7607 permits agents of the Federal Bureau of Narcotics to make arrests without warrant for violation of any laws of the United States relating to narcotic drugs where the violation is committed in the presence of the person making the arrest, or where such person has reasonable ground to believe that the person to be arrested has committed or is committing such violation. A police officer of the State of California, under the provisions of Section 836 of the Penal Code of the State of California, is authorized to arrest a person without a warrant when a person arrested has committed a felony or when a felony has been committed and the arresting officer has reasonable cause for believing the person arrested to have committed it. The arrest was made by an agent of the Federal Bureau of Narcotics and a deputy sheriff of the County of Los Angeles assigned to the narcotics detail. Draper v. United States, 358 U.S. 307," }, { "docid": "11939880", "title": "", "text": "Bressler did see the still in full operation while he was standing on the retaining wall, without entering the house. There .is no denial of the facts for the defendants did not offer any testimony. Ralph Feldman was arrested while attempting to escape after the felonies, which they had committed and were committing, had been discovered. The evidence of the commission of the crimes which the agents discovered without entering the house would alone have sustained a conviction. The agents did not. enter the house to discover whether or not a crime had been committed. This they already knew. The crime was being committed in their presence. They saw the still in operation; they smelled the odor from the cooking mash as it came from the house and filled the atmosphere surrounding it. Under the circumstances the arrest of the defendants was lawful. In the case of Agnello et al. v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, 51 A.L. R. 409, the court said: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well aS weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 [39 A.L.R. 790], Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177.” The search and seizure in the case at bar were contemporaneous with the arrest and were legal. Agnello v. United States, supra; Parks v. United States, 5 Cir., 76 F.2d 709; United States v. Lee, 2 Cir., 83 F.2d 195; Papani v. United States, 9 Cir., 84 F.2d 160; United States v. 71.41 Ounces Gold Filled Scrap et al., 2 Cir., 94 F.2d 17. The syllabus in Rocchia v. United States, 9 Cir., 78 F.2d 966, summed" } ]

[ { "docid": "14670414", "title": "", "text": "to make further findings concerning the quantum of damages and the costs of Eric’s future care. This was a bench trial, and Fed.R.Civ.P. 52(a) requires the court to make findings of fact and conclusions of law on all material, disputed issues. He made none on these two. (The plaintiffs request us to make the findings and awards. We are not authorized to do this. See Icicle and Anderson. ) An expert witness testified that wages historically have increased about 2.2%, net of inflation, per year. The court used this figure to project the earnings Eric would have received but for his injury. The court found that the long term interest rate is 11.5% and the long term inflation rate 7.5%, for a real discount rate of 4% per year. The assumption that wages increase 2.2% after inflation led the court to apply a discount rate of 1.8% per annum to Eric’s assumed initial earnings of $13,600 per year for 38 years. The methodology is appropriate. O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-1201 (7th Cir.1982); Comment, Inflation, Productivity, and the Total Offset Method of Calculating Damages for Lost Future Earnings, 49 U.Chi.L.Rev. 1003, 1014-18 (1982). But the 2.2% change in earnings vanished when the judge discounted to present value the cost of Eric’s care. The court assumed that for the rest of his life Eric would need two full-time health care providers as surrogates for his parents, at $18,000 per year apiece, and a manager (in the nature of a guardian ad litem) at $10,000 a year. No one gave an expert view of the probable movement of the salaries of these three people (net of inflation), but the 2.2% estimate for wages in the economy as a whole may be the best guess. The court said: “Using the same formula as above for reducing the award to present cash value and electing not to factor in the 2.2% annual real salary growth for the surrogate personnel, the Court hereby awards Eric Nemmers funds for his future care and maintenance in the amount of $1,173,729.15.” 612 F.Supp. at 935." } ]

[ { "docid": "23272175", "title": "", "text": "actual calculations are much better than hypothetical ones, but a calculation based on actual bids is an actual number. Bids on the table establish the value of a lost business opportunity. As in condemnation cases proof of offers by willing buyers trumps calculations based on cash flows, cf. In re Chicago, M. St.P. & P. R.R., 799 F.2d 317, 324 (7th Cir.1986), so here actual bids should trump cash flow computations. The cash flow computations are larded with estimates and hypothetical calculations, inevitably so. IBI’s cost of capital, and the opportunity cost of IBI’s and CPSC’s capital, are unknowns. We cannot know them because, among other things, CPSC lent money to itself. Changing the estimates by even a few percentage points will double or wipe out the damages. Computations of value based on cash flows are notoriously malleable; we have mocked them because of their imprecision. E.g., Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 834-36 (7th Cir.1985); cf. Olympia, 797 F.2d at 382-83. The majority ultimately is “forced to hypothesize” (maj. op. at 558) IBI’s cost of capital, on which most of its recovery depends. All the more reason to compute damages based on actual bids— they are the only real numbers, lost profits being judicial reconstructions. The award of lost profits here is based on the proposition that CPSC’s gain is IBI’s loss. All the “profits” refer to CPSC’s operating results. There would be an identity of gain and loss if CPSC’s costs of doing business were computed accurately and subtracted from the cash flows, and if all elements of value attributable to CPSC’s efforts were stripped from the computation. They have not been, however, and there lies the difference in the valuations produced by the two processes. There are several principal sources of differences. 1. Suppose the whole NBA did better than people expected in 1972. Then the owner of the Bulls would realize profits; the price of $3.3 million would turn out to be a bargain. There is some evidence of this in the prices of comparable franchises, which increased through the decade of the" }, { "docid": "23272193", "title": "", "text": "less useful in increasing the damages defendants expect to pay. The expected damages are the deterrent. Today’s decision reduces that deterrent. Suppose IBI was denied a “bargain” in 1972 worth, say, $1 million in the discounted present value of the flow of profits. The damages should be $1 million (or on the majority’s view, the profit flow worth $1 million when discounted to 1972 dollars, which is the same thing). One million dollars invested at 10% rate of return in 1972 would be worth $3.8 million in 1986 — more than $1 million trebled. If the cost of capital in the stock market is 15%, a plausible figure meaning that money invested (with dividends reinvested) grows at this rate, than $1 million in hand in 1972 would grow to $7.08 million in 1986. The trebling keeps pace with interest only when the rate is 8.16% per annum or less. (For example, at a rate of 5% the million grows to $1.98 million in 1986 and is exceeded by the $3 million trebled damages.) To turn this around, if the rate of return on investment is 10%, an award of a dollar today gives the plaintiffs only 26.3% of the damages they actually suffered; a trebled award gives them only 79% of their actual damages. Of course, the way the district court computed damages, some were suffered as late as 1982. The effects of compound interest are less spectacular when the injury is so recent. But 10% compound interest for four years is substantial nonetheless. A million lost in 1982 would be worth $1.46 million in 1986, and if the rate is 15% (more realistic for available investments, considering that regulated utilities are allowed more than 10%) it would be worth $1.75 million. The denial of prejudgment interest systematically undercompen-sates victims and underdeters putative offenders. We should allow, indeed require, such awards. VIII I concur in the following portions of the opinion and the judgment: Part I.B (defining the, or at least a, market as professional basketball in Chicago); Part I.E (holding that the NBA’s rejection of IBI, and the lobbying" }, { "docid": "23272186", "title": "", "text": "there should be no damages. If damages are to be computed from discounting cash flows, however, the calculation of the flows should use as the cost the interest CPSC would have paid, without guarantees, for all of its capital. Realistic cost computations also should allow CPSC to retain any elements of value that IBI could have duplicated (such as value attributable to a general increase in the popularity of NBA basketball). VII The principle that we should compute damages to take account of the opportunity cost of money cuts both ways. It helps CPSC by requiring the use of a risky rate. It helps IBI by requiring the award of prejudgment interest. IBI was injured in 1972 (if we use a capitalization method) or throughout 1972-82 (if we use the district court’s method of computing profits lost year by year). In either event, a dollar paid in 1986 does not make up for a dollar lost in 1972 or 1982. “In the typical case an award of prejudgment interest is necessary to ensure that the [victim] is placed in as good a position as he would have been in” had the defendant complied with the law. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655, 103 S.Ct. 2058, 2062, 76 L.Ed.2d 211 (1983) (holding that there is a presumption in favor of prejudgment interest under the patent laws). Interest “merely serves to make the [victim] whole, since his damages consist not only of the value of the [profits lost] but also of the forgone use of the money”. 461 U.S. at 656,103 S.Ct. at 2062. See also Waite v. United States, 282 U.S. 508, 509, 51 S.Ct. 227, 227, 75 L.Ed. 494 (1931) (presumption in favor of prejudgment interest in patent law); Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933) (prejudgment interest is an essential ingredient of “just compensation” under the fifth amendment because necessary to make the private party whole). Cases in this circuit after Devex regularly award prejudgment interest when the statute in question is silent. E.g., Hunter v. Allis-Chalmers Corp.," }, { "docid": "22296575", "title": "", "text": "be permitted to be the last one even if the judge has accurately recounted his own mental state. We conclude, however, that the judge’s word is sounder than the objectors’ speculations and miles from an abuse of discretion under the appropriate, highly deferential, standard. Much other evidence in the record supported Levy’s valuation. The district judge pointed out that “there was substantial ‘real world’ justification for the 8% real rate of return on equity assumed by Levy — the real rate of return was supported by studies of Walsh and Deacon and of the Federal Petroleum [sic; should be Power] Commission as well as industry reports — and for Levy’s 10% inflationary expectations.” (Levy built 9-11% inflation into both TransOcean’s future earnings and the discount rate. This is a permissible way to discount a cash flow to present value. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 538-47, 103 S.Ct. 2541, 2551-55, 76 L.Ed.2d 768 (1983); O’Shea v. Riverway Towing Co., 677 F.2d 1194 (7th Cir.1982). Much therefore turned on the assertion that 8% was close to the real rate of return on equity demanded in the oil and gas industry in 1979.) Levy’s estimate was not the sole support of the settlement. The stock market also offered valuable information, because TransOcean stock was trading at $20 or less in 1979. The price of an actively traded stock reflects the value placed on it by the professional investors who follow a firm closely. It is a “valuation” that includes the information of many professionals, not just one. It is therefore an unusually reliable source of information when the essential conditions (liquid markets, public information, and a following by professional investors) are met. The price at which people actually buy and sell, putting their money where their mouths are, is apt to be more accurate than the conclusions of any one analyst. See Richard Brealey, An Introduction to Risk and Return from Common Stocks (2d ed. 1983); Ronald J. Gilson & Reinier H. Kraakman, The Mechanisms of Market Efficiency, 70 Va.L.Rev. 549 (1984). This is why we recognized in" }, { "docid": "23272178", "title": "", "text": "should not have been used as benchmarks to compute IBI’s damages, either.) 2. Suppose the Bulls did better than the rest of the league. In that event we must determine why. If the difference is random, or caused by factors peculiar to Chicago, then CPSC’s gain does match IBI’s loss. But if the abnormal team-specific gain came from entrepreneurial efforts of CPSC, then there is no match. IBI might not have produced these gains. CPSC, its owners and employees are entitled to compensation for their efforts; this includes compensation for extraordinary entrepreneurial gains, just as it includes hourly wages for floor sweepers. CPSC is entitled to keep any gains of this sort (although there do not appear to be any). 3. Suppose the Bulls appeared profitable because of bookkeeping transfers. Because CPSC and the Stadium were under common control, the Stadium had no incentive to drive hard bargains for rental. It made no difference whether the money appeared on CPSC’s books or the Stadium’s. (This is not quite right because the ownership of the two differed somewhat, but the principle holds nonetheless.) A lower rent means higher \"profits” for the Bulls. But again CPSC’s gain is not IBI’s loss. If IBI had owned the team, the Stadium would have bargained with it at arms’ length. CPSC or the Stadium is entitled to keep any “profit” that appeared on CPSC’s books because of a rent lower than the maximum the Stadium could have negotiated. 4. Suppose the accounting profit on the Bulls’ books includes items that are real costs of doing business — costs IBI also would have borne. This is what the “opportunity cost” and interest rate calculations are about. Capital must be hired, just like labor or any other input. It may be hired on the market (borrowed) or hired out of other uses the investors have (diverted). If CPSC had hired capital at 15% interest from a bank, the interest would have been an explicit cost of doing business. So if in 1975 CPSC had $10 million of a bank’s money in use, it would have paid $1.5" }, { "docid": "23272199", "title": "", "text": "own decision hardly shows that I am wrong. . Part of the value of a team is publicity for the owner and tax advantages for the investors. Part of the $3.3 million price compensated Rich for surrendering these benefits of ownership. The district court said that it was awarding Fishman and IBI nothing for the lost publicity and tax benefits. The implication is that the value of the profit stream expected from the Bulls was less than $3.3 million. The price was therefore not a bargain; it was a premium. . There is a related problem of selection bias. Plaintiffs sue only when the price rises. If defendants must pay the full value when the price goes up, but swallow their losses when the price falls, then on average they expect to pay more than their gains: sometimes they pay the plaintiffs, sometimes they pay through business losses. Then defendants as a group are penalized more than their expected profits from the violation; there is too much deterrence. . To put this a little differently, banks lent to CPSC, with guarantees, for prime plus one-half percent because if CPSC had gone belly up the guarantees would have made the banks whole. If CPSC had failed no one was going to make its investors whole; their risk (and the appropriate rate of interest) was therefore the same as the banks would have demanded without the guarantees. . The majority observes that by 1975 CPSC’s lenders released the guarantees. But by 1975 CPSC’s investors had a great deal of equity in the venture. This equity was the debt investors’ \"cushion”, enabling them to charge lower rates. (Releasing a guarantee is one way to lower the rate.) CPSC’s cost of capital includes the cost of all of its capital, debt and equity alike, just as a utility’s cost of capital looks at all sources of capital. \"Opportunity cost” refers to the implicit cost of the equity investment in CPSC. That cost always exceeds the price the banks charged for their safer debt investments. (The interest actually paid to banks is subtracted as an" }, { "docid": "23272179", "title": "", "text": "differed somewhat, but the principle holds nonetheless.) A lower rent means higher \"profits” for the Bulls. But again CPSC’s gain is not IBI’s loss. If IBI had owned the team, the Stadium would have bargained with it at arms’ length. CPSC or the Stadium is entitled to keep any “profit” that appeared on CPSC’s books because of a rent lower than the maximum the Stadium could have negotiated. 4. Suppose the accounting profit on the Bulls’ books includes items that are real costs of doing business — costs IBI also would have borne. This is what the “opportunity cost” and interest rate calculations are about. Capital must be hired, just like labor or any other input. It may be hired on the market (borrowed) or hired out of other uses the investors have (diverted). If CPSC had hired capital at 15% interest from a bank, the interest would have been an explicit cost of doing business. So if in 1975 CPSC had $10 million of a bank’s money in use, it would have paid $1.5 million in return. This would have been subtracted from its income before a computation of profits. What actually happened is that CPSC’s investors supplied most of the money. They want to pay themselves for this money at the rate lenders charged for risky, arms’ length investments. This is how “opportunity cost” has been used — the amount of the Bulls’ income that is assigned as the “cost of capital” and subtracted from profits. If the investors had $10 million in the Bulls in 1975, they say, they are entitled to 15 or 20% return. The district court, on the other hand, allowed them only the rate of interest the United States was paying on Treasury Bills at the time. This risk-free rate was much lower than the rate paid to investors in high-risk businesses. So to keep the figures simple, in 1975 the district court allowed only $500,000 as the cost of capital, while CPSC says the allowance should have been $1.5 million. The differ ence between the risky rate of interest and the safe," }, { "docid": "23272174", "title": "", "text": "the team fetched $3.3 million. If the Stadium was really an essential facility, then it had the power to extract all the profits in the market by charging a monopoly rent, leaving the owner of the Bulls with little or nothing. A legal monopolist may charge what the traffic will bear. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 294 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); cf. Los Angeles Memorial Coliseum Commission v. NFL, 791 F.2d 1356, 1366-75 (9th Cir. 1986). This element of value therefore belonged to the Stadium all along. (Of course, the fact that the Bulls had a substantial capital value may indicate that the Stadium was not a bottleneck.) The best guess is that the Bulls were worth what the bidders were offering. Fishman and IBI therefore lost no bargain element, no unique opportunity, in 1972, and they have no damages. My brethren reply that recoveries ought to be based on actual rather than hypothetical calculations (maj. op. at 552). Now actual calculations are much better than hypothetical ones, but a calculation based on actual bids is an actual number. Bids on the table establish the value of a lost business opportunity. As in condemnation cases proof of offers by willing buyers trumps calculations based on cash flows, cf. In re Chicago, M. St.P. & P. R.R., 799 F.2d 317, 324 (7th Cir.1986), so here actual bids should trump cash flow computations. The cash flow computations are larded with estimates and hypothetical calculations, inevitably so. IBI’s cost of capital, and the opportunity cost of IBI’s and CPSC’s capital, are unknowns. We cannot know them because, among other things, CPSC lent money to itself. Changing the estimates by even a few percentage points will double or wipe out the damages. Computations of value based on cash flows are notoriously malleable; we have mocked them because of their imprecision. E.g., Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 834-36 (7th Cir.1985); cf. Olympia, 797 F.2d at 382-83. The majority ultimately is “forced to hypothesize” (maj. op. at" }, { "docid": "23272185", "title": "", "text": "say that the district court on remand should “err on the side of conservatism” (maj. op. 559) because it is not appropriate to demand that IBI take substantial risks to mitigate its damages. This is where the choice between capital as a cost to CPSC and as an opportunity for IBI to reinvest has its bite. I agree with my colleagues that if this is a problem in “mitigation” the district court should be conservative. A disappointed bidder need not mitigate by taking risks greater than those it had planned to take if it purchased the assets. But it is not a problem in mitigation. We are simply trying to calculate CPSC’s true “profits,” net of its full costs of doing business. IBI gets the profits, trebled. The opportunity cost is a real cost. It is the largest difference between CPSC’s gain and IBI’s loss. To sum up: The right way to compute damages is to determine the bargain element, if there was one, of which IBI was deprived in 1972. There was none, so there should be no damages. If damages are to be computed from discounting cash flows, however, the calculation of the flows should use as the cost the interest CPSC would have paid, without guarantees, for all of its capital. Realistic cost computations also should allow CPSC to retain any elements of value that IBI could have duplicated (such as value attributable to a general increase in the popularity of NBA basketball). VII The principle that we should compute damages to take account of the opportunity cost of money cuts both ways. It helps CPSC by requiring the use of a risky rate. It helps IBI by requiring the award of prejudgment interest. IBI was injured in 1972 (if we use a capitalization method) or throughout 1972-82 (if we use the district court’s method of computing profits lost year by year). In either event, a dollar paid in 1986 does not make up for a dollar lost in 1972 or 1982. “In the typical case an award of prejudgment interest is necessary to ensure that the" }, { "docid": "22848966", "title": "", "text": "victims and the tortfeasor both use internal financing. All of this is just the flip side of discounting to present value in a tort case for future loss. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533-53, 103 S.Ct. 2541, 2548-58, 76 L.Ed.2d 768 (1983); O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-1201 (7th Cir.1982). As prepaid damages must be reduced at a market rate that takes account of inflation, so postpaid damages must be increased. What, then, is the market rate? Some of the district judge’s discussion, coupled with his use of the rate on Treasury securities as of the date of his opinion, implies that the court thought that the market rate is the rate for safe securities at the end of the case. Yet as we pointed out in Goren-stein, when expressly disapproving use of the postjudgment rate for prejudgment interest, 874 F.2d at 436-37, an involuntary tort creditor is not safe. The defendant may go out of business (or encounter less serious reverses), or hide assets, during the litigation. Any market interest rate reflects three things: the social return on investment (that is, the amount necessary to bid money away from other productive uses), the expected change in the value of money during the term of the loan (i.e., anticipated inflation), and the risk of nonpayment. The best estimate of these three variables is the amount the defendant must pay for money, which reflects variables specific to that entity. Amoco has publicly traded notes and debentures; a court could draw an interest rate directly from them. As we suggested in Goren-stein, 874 F.2d at 437, unless it engages in such refined rate-setting, a court should use the “prime rate” — that is, the rate banks charge for short-term unsecured loans to creditworthy customers. This rate may miss the mark for any particular party, but it is a market-based estimate. Although Gorenstein did not elaborate on this, it should be plain that the market rate in question is the one during the litigation — when the defendant had the use of money that" }, { "docid": "23272173", "title": "", "text": "sets to work. IBI, however, did not plan to make or build a basketball team. It wanted to buy an existing team. To buy, IBI had to compensate Rich for the expected profits Rich was giving up. Un less the Bulls were underpriced (the owner was not selling the team for the value of the profits), IBI suffered no loss even if the Bulls were highly profitable. Rich put the Bulls up for bid. He attracted three bids around $3.3 million. The value of a thing is what people will pay for it. There is no hint that IBI viewed the Bulls as a bargain at $3.3 million. If IBI could have turned around and sold the Bulls in 1972 for $5 million, then its damages would have been $1.7 million, tripled, plus interest (see Part VII below). But there was no visible bargain element, no reason why Rich would have sold the team for less than it was worth. This was not an “unusually successful investment” (maj. op. at 553). The surprise is that the team fetched $3.3 million. If the Stadium was really an essential facility, then it had the power to extract all the profits in the market by charging a monopoly rent, leaving the owner of the Bulls with little or nothing. A legal monopolist may charge what the traffic will bear. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 294 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); cf. Los Angeles Memorial Coliseum Commission v. NFL, 791 F.2d 1356, 1366-75 (9th Cir. 1986). This element of value therefore belonged to the Stadium all along. (Of course, the fact that the Bulls had a substantial capital value may indicate that the Stadium was not a bottleneck.) The best guess is that the Bulls were worth what the bidders were offering. Fishman and IBI therefore lost no bargain element, no unique opportunity, in 1972, and they have no damages. My brethren reply that recoveries ought to be based on actual rather than hypothetical calculations (maj. op. at 552). Now" }, { "docid": "23272198", "title": "", "text": "implementation of the settlement including dismissal of these lawsuits if appropriate. Each side shall bear its own costs in this court. The mandate shall issue seven days from the date hereof. . Although the majority is right to point out that a patent does not always create a monopoly, or even market power, the court in Riegel assumed that the patent in question created an absolute monopoly. . Whether it would work is an open question. See Richard Schmalensee, The Control of Natural Monopolies 68-73 (1979); Oliver E. Williamson, Franchise Bidding for Natural Monopolies— In General and with Respect to CATV, 7 Bell J.Econ. 73 (1976). . The majority writes as if I were making the dissent’s points in Otter Tail, so that the majority’s failure to respond somehow refutes me. The dissenting Justices were arguing that Otter Tail should not be held liable. I am trying to find out why Otter Tail was held liable. My approach supplies a coherent reason. That the majority in Otter Tail did not offer a reason for its own decision hardly shows that I am wrong. . Part of the value of a team is publicity for the owner and tax advantages for the investors. Part of the $3.3 million price compensated Rich for surrendering these benefits of ownership. The district court said that it was awarding Fishman and IBI nothing for the lost publicity and tax benefits. The implication is that the value of the profit stream expected from the Bulls was less than $3.3 million. The price was therefore not a bargain; it was a premium. . There is a related problem of selection bias. Plaintiffs sue only when the price rises. If defendants must pay the full value when the price goes up, but swallow their losses when the price falls, then on average they expect to pay more than their gains: sometimes they pay the plaintiffs, sometimes they pay through business losses. Then defendants as a group are penalized more than their expected profits from the violation; there is too much deterrence. . To put this a little differently," }, { "docid": "22848965", "title": "", "text": "holding of Gorenstein — one almost compelled by Devex and West Virginia — that compound prejudgment interest is the norm in federal litigation. Interest at what rate? Surely the market rate. That is what the victim must pay — either explicitly if it borrows money or implicitly if it finances things out of cash on hand — and the rate the wrongdoer has available to it. To return to the trust fund example, if the market rate were 12% it would be unthinkable to set a prejudgment rate of interest at 7.5%, order Amoco to turn over $154 million to the victims (the value of $60 million invested at 7.5% compound interest for 13 years), and authorize Amoco to retain the other $108 million. The victims would owe their creditors $108 million, and the tortfeasor would be the wealthier. Yet that would be the upshot of computing prejudgment interest at less than the market rate — an effect that does not depend on the existence of an express trust but is as powerful if the victims and the tortfeasor both use internal financing. All of this is just the flip side of discounting to present value in a tort case for future loss. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533-53, 103 S.Ct. 2541, 2548-58, 76 L.Ed.2d 768 (1983); O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-1201 (7th Cir.1982). As prepaid damages must be reduced at a market rate that takes account of inflation, so postpaid damages must be increased. What, then, is the market rate? Some of the district judge’s discussion, coupled with his use of the rate on Treasury securities as of the date of his opinion, implies that the court thought that the market rate is the rate for safe securities at the end of the case. Yet as we pointed out in Goren-stein, when expressly disapproving use of the postjudgment rate for prejudgment interest, 874 F.2d at 436-37, an involuntary tort creditor is not safe. The defendant may go out of business (or encounter less serious reverses), or hide assets, during" }, { "docid": "23272172", "title": "", "text": "whether we look directly for a bargain or compute (and discount) the cash flows; the result is the same, and the process is identical to the one used to generate awards in tort cases. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533-52, 103 S.Ct. 2541, 2548-58, 76 L.Ed.2d 768 (1983); Nemmers v. United States, 795 F.2d 628, 633-34 (7th Cir.1986); O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-1201 (7th Cir.1982). The majority agrees with me (maj. op. 552) that capital loss and lost profits usually are the same. The capital value is the value of the profit stream. That equation is the basis of the majority’s election to look at the profit stream, the better to compensate IBI for actual loss by reference to actual experience. The problem is that IBI isn’t an ordinary entrant. In most frustrated-entry cases, the putative entrant planned to buy some widely-sold items at their market price and go into business. A would-be maker of widgets rents a plant, buys the parts, hires labor, and sets to work. IBI, however, did not plan to make or build a basketball team. It wanted to buy an existing team. To buy, IBI had to compensate Rich for the expected profits Rich was giving up. Un less the Bulls were underpriced (the owner was not selling the team for the value of the profits), IBI suffered no loss even if the Bulls were highly profitable. Rich put the Bulls up for bid. He attracted three bids around $3.3 million. The value of a thing is what people will pay for it. There is no hint that IBI viewed the Bulls as a bargain at $3.3 million. If IBI could have turned around and sold the Bulls in 1972 for $5 million, then its damages would have been $1.7 million, tripled, plus interest (see Part VII below). But there was no visible bargain element, no reason why Rich would have sold the team for less than it was worth. This was not an “unusually successful investment” (maj. op. at 553). The surprise is that" }, { "docid": "23272171", "title": "", "text": "the lost profit the firm experiences. There may be other losses, such as the lost opportunity to earn monopoly profits, but these are not compensable. See Brunswick v. Pueblo and Local Beauty v. LaMaur. A firm that is prevented from purchasing productive assets has none of the usual losses. The entrepreneur can go on to other things. If these are equally remunerative, he loses nothing. The district court found that Fishman made more money running a real estate business than he would have made as president of the Bulls. He therefore suffered no loss and did not appeal on this score. IBI had neither sunk assets nor a period in which assets stood idle. The most one can say is that IBI lost an opportunity to buy an asset. That imposes loss only if the price of the asset was a bargain. It is a bargain if the discounted expected cash flows from owning the team, after paying all costs, exceed the capital value of $3.3 million in 1972. It should not make any difference whether we look directly for a bargain or compute (and discount) the cash flows; the result is the same, and the process is identical to the one used to generate awards in tort cases. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533-52, 103 S.Ct. 2541, 2548-58, 76 L.Ed.2d 768 (1983); Nemmers v. United States, 795 F.2d 628, 633-34 (7th Cir.1986); O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-1201 (7th Cir.1982). The majority agrees with me (maj. op. 552) that capital loss and lost profits usually are the same. The capital value is the value of the profit stream. That equation is the basis of the majority’s election to look at the profit stream, the better to compensate IBI for actual loss by reference to actual experience. The problem is that IBI isn’t an ordinary entrant. In most frustrated-entry cases, the putative entrant planned to buy some widely-sold items at their market price and go into business. A would-be maker of widgets rents a plant, buys the parts, hires labor, and" }, { "docid": "23272046", "title": "", "text": "Beech Aircraft Corp., 432 F.2d 1080, 1087 (7th Cir.1970), cert. denied, 401 U.S. 923, 91 S.Ct. 872, 27 L.Ed.2d 923 (1971) (“Where the alleged damages are the result of acts occurring prior to the filing of the complaint, there can be no doubt that they may be recovered even though they may have accrued following such filing.”). Finally, there is an important reason for not limiting a plaintiff’s damages to the presumed present value of a future loss as of the date of the injury. Defendants argue that IBI’s loss is the difference between the fair market value of the Bulls in July 1972 (which they peg at CPSC’s offer, $3.35 million) and the $3.3 million that IBI contracted to pay for the franchise. But this approach is premised on the assumption that a competitor is always free to acquire an asset by illegal means because the victim is similarly free to go spend its money elsewhere. However, if a victim is deprived of what may turn out to be an unusually successful investment, his damages should reflect that fact. Like the defendants, the dissent argues that the plaintiffs should be limited to the difference between the price at which the plaintiffs contracted to buy the Bulls and the price paid for the franchise by CPSC; the dissent’s analysis, however, differs in form, if not in fundamental substance, from that of the defendants. Essentially, the dissent argues that IBI could have “covered” once it was foreclosed from buying the Bulls by the defendants’ illegal conduct. While IBI lost one business opportunity, it could go out and invest in the next best business opportunity. IBI should thus be awarded only the bargain element of its contract with Rich, i.e., the amount at which IBI would have been able to buy the Bulls below their “market” price. Infra p. 579. We find the dissent’s analysis unpersuasive insofar as it may suggest that IBI should have invested promptly in another basketball team. Infra pp. 579-80. The dissent seems to treat basketball teams as fungible commodities. But the record does not disclose that there" }, { "docid": "23272176", "title": "", "text": "558) IBI’s cost of capital, on which most of its recovery depends. All the more reason to compute damages based on actual bids— they are the only real numbers, lost profits being judicial reconstructions. The award of lost profits here is based on the proposition that CPSC’s gain is IBI’s loss. All the “profits” refer to CPSC’s operating results. There would be an identity of gain and loss if CPSC’s costs of doing business were computed accurately and subtracted from the cash flows, and if all elements of value attributable to CPSC’s efforts were stripped from the computation. They have not been, however, and there lies the difference in the valuations produced by the two processes. There are several principal sources of differences. 1. Suppose the whole NBA did better than people expected in 1972. Then the owner of the Bulls would realize profits; the price of $3.3 million would turn out to be a bargain. There is some evidence of this in the prices of comparable franchises, which increased through the decade of the 1970s. This, however, is a gain to CPSC not matched by a loss to IBI, which could have purchased one of these franchises and participated in the upturn. This is related to cover in a contract case. One who is disappointed by a failure of his seller to deliver must cover if he wants to participate in the market. See UCC §§ 2-711(l)(a), 2-712, 2-713. He cannot sit on the sidelines, hoping that if the price rises he will get damages, and if the price falls he will avoid a loss. To get the market reward for risk-taking, he must take risk. His damages are limited to the difference between the contract and market prices, whether he covers or not. IBI’s proof that other comparable franchises were sold shows that it could have covered. It is not entitled to any element of value created by a general rise in the market for pro basketball teams. (Of course, if the other opportunities are not comparable, IBI could not have covered, but the sales of other teams" }, { "docid": "23272184", "title": "", "text": "362-64 (D.C.Cir.1985) (Scalia, J.); City of Charlottesville v. FERC, 774 F.2d 1205, 1213-23 (D.C.Cir.1985) (Scalia, J.), cert. denied, — U.S. -, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986). This shows why opportunity cost here, too, goes into the computation of profit. It is not properly an item of “mitigation” — an analogy that has led my brethren to look at IBI’s opportunities rather than CPSC’s true costs. Had IBI owned the Bulls, it would have supplied the risk-bearing service for itself. It did not, and it did not lose anything as a result. Payment for bearing risk is not a profit of any sort. It is simply a cost of doing business. Players’ salaries were subtracted from the Bulls’ income to get its profits; the implicit expense of risk-bearing also must be subtracted. IBI was of course free to bear risk if it wanted. It could have bought another pro sports team, or gone into another (risky) line of business. Then it could have reaped any rewards from bearing risk, but it didn’t. My colleagues say that the district court on remand should “err on the side of conservatism” (maj. op. 559) because it is not appropriate to demand that IBI take substantial risks to mitigate its damages. This is where the choice between capital as a cost to CPSC and as an opportunity for IBI to reinvest has its bite. I agree with my colleagues that if this is a problem in “mitigation” the district court should be conservative. A disappointed bidder need not mitigate by taking risks greater than those it had planned to take if it purchased the assets. But it is not a problem in mitigation. We are simply trying to calculate CPSC’s true “profits,” net of its full costs of doing business. IBI gets the profits, trebled. The opportunity cost is a real cost. It is the largest difference between CPSC’s gain and IBI’s loss. To sum up: The right way to compute damages is to determine the bargain element, if there was one, of which IBI was deprived in 1972. There was none, so" }, { "docid": "23272170", "title": "", "text": "of the violation. Just as a person wrongly fired must take a new job and loses only the difference between the old salary and the new, just as a person aggrieved by a broken contract loses only the amount of the price difference between the contract price and the cover price, so a person excluded from a market by an antitrust violation loses only the difference in the profits of this opportunity and the next-best business opportunity. When an antitrust violation forces a going concern out of the market, there are at least three kinds of loss. The entrepreneur loses the opportunity to make the best use of his skills. The firm loses the value of its sunk assets — the difference between the value of the assets to a going business and their value if put to some new employment. The firm also loses the full value of its assets for the time it takes to get into the new line of business. If the calculation is done right, these will sum up to the lost profit the firm experiences. There may be other losses, such as the lost opportunity to earn monopoly profits, but these are not compensable. See Brunswick v. Pueblo and Local Beauty v. LaMaur. A firm that is prevented from purchasing productive assets has none of the usual losses. The entrepreneur can go on to other things. If these are equally remunerative, he loses nothing. The district court found that Fishman made more money running a real estate business than he would have made as president of the Bulls. He therefore suffered no loss and did not appeal on this score. IBI had neither sunk assets nor a period in which assets stood idle. The most one can say is that IBI lost an opportunity to buy an asset. That imposes loss only if the price of the asset was a bargain. It is a bargain if the discounted expected cash flows from owning the team, after paying all costs, exceed the capital value of $3.3 million in 1972. It should not make any difference" }, { "docid": "23272029", "title": "", "text": "actual financial experience from 1972 until 1982. It supported that decision with two findings: (1) IBI and CPSC had similar investment objectives for the Bulls; and (2) the financial success of the Bulls during the relevant ten years was not “attributable to any skill or resources contributed to the business by CPSC.” Id. at 859. We will outline the steps that the district court took in calculating IBI’s damages and then will discuss the objections raised to both its methodology and results, both by defendants and by IBI in its cross-appeal. The district court started with the proposition: The financial benefits specifically realized by CPSC flowed (i) from the increasing going concern value of the business and (ii) from the cash generated from operation. These are the same sources that NBA owners generally attempt to exploit and are the sources IBI specifically intended to exploit. Id. at 861. Thus, the court determined that IBI should receive as damages its lost financial gain, which could be computed by determining the net value of CPSC’s assets on May 31, 1982 (i.e., the fair market or going-concern value of the assets minus all liabilities) and then subtracting the net contributions made to CPSC by its shareholders. This “yardstick” figure would then be adjusted by a series of predictable differences in value attributable to IBI rather than CPSC ownership to determine a hypothetical “total financial gain” for IBI. The first and most difficult step was to determine the fair market value of the Chicago Bulls franchise in 1982. This was accomplished by looking at recent sales prices of “comparable” NBA franchises. The plaintiffs and defendants disagreed as to how the “sales price” of a professional sports franchise should be computed. A common way to pay for a professional sports team is to tender cash and notes and also assume the liabilities of the franchise. The district court agreed with the plaintiffs that assumed liabilities properly comprise part of the “price” of a franchise. But it did not adopt the plaintiffs’ proposed valuation method in its entirety because one class of assumed liability — liability" } ]

[ { "docid": "6318041", "title": "", "text": "a claim upon which relief can be granted under the Reporting and Disclosure Act, nor does it state a state cause of action. The only remaining question with respect to the union’s motion concerns count two of the complaint. This cause seeks damages and certain injunctive relief as a result of the breach by the union of its duty to fairly represent the plaintiff at the arbitration hearing, or to bargain with the company to secure the reinstatement of plaintiff as an employee of the company. The concept of fair representation is not particularly a new subject to the commentators or to the courts. However, this case presents problems which have not previously been considered and which deserve close attention. In brief, the statutory duty deals with the obligation of a union to represent all the employees fairly in bargaining, and also in the contract grievance procedure. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). In Vaca v. Sipes, a union member alleged that he had been discharged from his employment at Swift and Company in violation of the collective bargaining agreement. The basis of his discharge by the company was that he was medically unfit to work. The union processed his grievance through the fourth step of the grievance procedure but the company persisted in its refusal to reinstate him. Thereafter, the union sent plaintiff to a doctor at its own expense in an attempt to amass medical evidence to establish plaintiff’s fitness for work. After an unfavorable report, the union determined that arbitration would be fruitless and refused to take the case to an arbitrator. The state trial judge overruled the union’s motions for directed verdict and the jury returned a verdict for plaintiff. The Supreme Court reversed the decision of the State Supreme Court which had affirmed the trial court. The court reaffirmed that the duty of fair representation applied to the grievance procedure, and held that even though an action based on the union’s alleged breach of" } ]

[ { "docid": "9895934", "title": "", "text": "denied its Rule 19, Fed.R.Civ.P., motion to dismiss for failure to join an indispensable party, the Union. We again affirm the district court’s ruling. This action is, in essence, an action by the employees against their employer for back pay. In such a suit, the Union cannot be considered an indispensable party. For without joining the Union, the employees can nonetheless be accorded the relief they seek from Schwerman, with no Union interest impaired, and without forcing Schwer-man to face the risk of inconsistent obligations. Therefore, joinder of the Union is not necessary for just adjudication of this action. Moreover, we note that the Supreme Court has implicitly recognized this holding in Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967), when it held that an employee, seeking enforcement of rights accorded him under a collective bargaining agreement, could sue the employer and union in separate actions. Accord, United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 73, 101 S.Ct. 1559, 1569 n. 2, 67 L.Ed.2d 732 (1981) (Stevens, J., concurring in part and dissenting in part). Schwerman’s final two contentions are that the employees’ complaint failed to state a claim for relief, and that the district court committed reversible error in sua sponte enforcing the arbitrator’s award without holding a trial. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Here, the employees alleged that Schwerman breached the collective bargaining agreement’s provision on employee wages; that they objected to this breach; that the Union and Schwerman submitted the matter to arbitration; that the arbitrator sustained the employees’ grievances; that Schwerman refused to comply with the arbitrator’s decision; and that the Union did not enforce the arbitrator’s decision, breaching its duty of fair representation. Because these" }, { "docid": "13278900", "title": "", "text": "PER CURIAM: Upon being discharged from her job by Pam Pam, appellant filed a grievance against her union, claiming that the discharge was without sufficient cause and in violation of the Collective Bargaining Agreement between the union and Golden Gate Restaurant Association, of which Pam Pam is a member. Pursuant to the terms of the Agreement, the grievance was submitted to arbitration. After a hearing, the arbitrator made a final award against appellant. Utilizing the provisions of § 301 of the Labor Management Relations Act [29 U.S.C. § 185], appellant filed a complaint alleging Pam Pam had wrongfully discharged her and that the unions had breached their duty to “ . . . properly and adequately represent plaintiff and acted in bad faith and with dishonesty of purpose in presenting plaintiff’s case to the . . . arbitrator . ” and that in so doing, the unions “ . . . violated their statutory duty to fairly represent plaintiff.” She charged that as a direct result of the unions’ “ . . . arbitrary, discriminatory and perfunctory representation, plaintiff lost the arbitration case.” Relying upon the arbitrator’s final decision, Pam Pam moved to dismiss for failure to state a claim. The district court granted the motion. Margetta v. Pam Pam Corp., 354 F.Supp. 158 (N.D.Cal.1973). Hence, this appeal. We have said that an employee may not attack a final arbitration decision, “ . . . except on the grounds of fraud, deceit or breach of the duty of fair representation unless the grievance was a ‘sham, substantially inadequate or substantially unavailable.’ ” Andrus v. Convoy Co., 480 F.2d 604, 606 (CA9 1973) [Emphasis supplied], quoting from Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (CA5 1971). Without doubt, the circumstances outlined in appellant’s complaint fall within these narrowly drawn exceptions. Consequently, the district court had jurisdiction to review the merits of the wrongful discharge claim. Steinman v. Spector Freight System, Inc., 441 F.2d 599, 603 (CA2 1971). Although Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), involved a state court action against" }, { "docid": "13278902", "title": "", "text": "the union alone, rather than a § 301 action against the union and the employer, and even though the arbitration there involved was not prosecuted to a final award, nonetheless, Justice White’s in-depth discussion of an employee’s rights, in circumstances such as these, must be given persuasive consideration. To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation. The grievance procedure is nothing less than a “sham”. A similar problem was involved in Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). While there may be a distinction between an award issued by a joint committee as in Humphrey and one issued by an arbitrator, the distinction is far less than fundamental. In each situation, the union has complete control of the employee’s grievance and in either can effectively control the outcome of the proceedings through its action or lack of action. In accord, see parts II and III, Beriault et al. v. Local 40, Super Cargoes & Checkers of the International Longshoremen’s & Warehousemen’s Union, et al., 501 F.2d 258 [CA9 1974], The fundamental teaching of Vaca is that somewhere along the judicial trail, the employee is entitled to a fair hearing on her grievance and, if wrongfully discharged, a judgment for adequate compensation or other relief. To suggest that she may sue her union is no answer. Relief against the union would not restore her job with Pam Pam. As indicated in Vaca, in these circumstances, adequate relief may be obtained only by joining the union and the employer. The judgment of the district court is vacated and the cause remanded for trial on the merits. . Waitresses, Cafeteria and Dairy Lunch Girls Workers Union, Local 48, San Francisco Local Joint Executive Board of Culinary Workers, Bartenders and Hotel, Motel and Club Service Workers. . * * * * “We cannot believe" }, { "docid": "891118", "title": "", "text": "subject it to multiple or inconsistent adjudication. Neither an employer nor a union is an indispensable party in an action against the other by an employee-union member when the action against the employer is based on a violation of the terms of the collective bargaining agreement and the action against the union is based on the statutory duty of fair representation. In his amended complaint which the district court forced the plaintiff to file or suffer dismissal based upon Rule 19, plaintiff’s cause of action against his former employer was contractual. He alleged that the employer discharged him in violation of the provisions of the collective bargaining agreement between the union and his employer which was in effect at the time of his discharge. In such a cause of action, the union is not an indispensable party since the sole wrongdoer is the employer. The employer may allege as a possible defense that the collective bargaining agreement was void or invalid or unenforceable. In that event, the employer may be required to join the union as a party under Rule 19. However, those matters were not presented in this case. On the other hand, the cause of action against the union pleaded by the plaintiff is a statutory right based upon the union’s duty to fairly represent him. A breach of that statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The sole actor in such a cause of action is the union. The employer is not a participant in the alleged wrong unless, of course, the employee alleges that his union and his employer conspired against him. The union’s duty of fair representation, first enunciated by the Supreme Court in Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), requires the exclusive bargaining representative “to serve the interest of all members without hostility or discrimination toward any.” Vaca v. Sipes," }, { "docid": "2238063", "title": "", "text": "rationales for allowing such actions under the NLRA and the RLA is equally applicable to actions such as the present one. The rationale is that the administrative boards set up under the various labor acts are more concerned with broad questions of policy than with individuals, so that if individuals are not allowed to enforce the duty of fair representation in court, they may gain no practical benefit from the labor laws. See Vaca v. Sipes, supra, 386 U.S. at 182-83, 87 S.Ct. at 912-913. The subordination of the individual’s interests to the interest of the group by the administrative board is precisely what has occurred in plaintiff’s case. The FLRA settled his unfair practices charge against the union instead of issuing a complaint; and the settlement granted no relief to plaintiff in connection with what FLRA did conclude was an unfair labor practice by the union. The board was concerned only with preventing future abuses by the union. Plaintiff, then, lacks an adequate administrative remedy as did the petitioner in Vaca v. Sipes. He should be allowed to seek relief against the union in this court for the same reason that aggrieved employees in the private sector are allowed to sue their unions in federal court for breaches of the duty of fair representation. Accordingly, we hold that there is implicit in the Civil Service Reform Act a duty of fair representation owed by a union to the members of the bargaining unit, and that we have federal question jurisdiction over actions arising from breaches of this duty. Defendants’ motion to dismiss the First Cause of Action is therefore denied. Defendant union’s alternative motion for summary judgment is likewise denied. 2. Alleged breach of the collective bargaining agreement by DLI. Under the NLRA and the RLA, dual-pronged actions are allowed, in which an aggrieved employee sues the union for breach of the duty of fair representation and the employer for breach of the collective bargaining agreement. We have discussed the first prong of such actions above and will now discuss the second. In NLRA suits, the second prong of" }, { "docid": "5810677", "title": "", "text": "that the district court had jurisdiction over his claim against the railroad and that the arbitration award was not binding on him. He also contended that the manner in which the union handled his grievance amounted to a breach of its duty of fair representation. On defendants’ motion for summary judgment, the district court found that the record disclosed no genuine issue of fact on either of Franklin’s claims and that the defendants were entitled to summary judgment. We agree. Adjustment boards were established by the Railway Labor Act. 45 U.S.C. § 151 et seq. Normally they have exclusive jurisdiction over claims for lost wages, Andrews v. Nashville & Louisville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), but there are exceptions. The Supreme Court in Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969), recognized that an aggrieved employee has the right to bypass the adjustment board and bring a wrongful discharge action in district court when his union is guilty of a breach of the duty of fair representation. The employee retains that right even where his grievance has already been arbitrated. Margetta v. Pam Pam, 501 F.2d 179 (9th Cir. 1974). Franklin is entitled to proceed with his action against the railroad only if he establishes a genuine issue of material fact on the issue of whether the union breached its duty of fair representation. Franklin was required to adduce evidence from which the district court could infer either hostility, arbitrariness, or bad faith in the union’s representation of him. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1966). Franklin contends that Thornton’s letter to him and his attorney show hostility and bad faith. There is no merit in this contention or in his contention that the union’s failure to present certain medical records to the Board shows bad faith and arbitrary representation. At most, such a failure would be negligence. Franklin’s counsel conceded with commendable frankness that negligence does not amount to a breach of DFR. NLRB v. General Truck" }, { "docid": "6771064", "title": "", "text": "1278 (7th Cir. 1977). We also note that in Keppard v. International Harvester Co., 581 F.2d 764 (9th Cir. 1978), our court affirmed the dismissal of an employee’s claim against his union because he had failed to exhaust his intra-union remedies, but reached the merits of the employee’s claim against his employer for back pay. There is no indication, however, that the company attempted to raise Keppard's failure to exhaust as a defense. The opinion does not refer to, much less reject, any reliance by the employer on an internal exhaustion defense. . Most of those parts of Vaca v. Sipes concerning employee section 301 actions for wrongful discharge are dicta. See 386 U.S. at 199-202, 87 S.Ct. at 921-923 (Fortas, J., concurring). The holding in Vaca concerned only the federal courts’ jurisdiction of employee causes of action against a union for failure to represent. But we have indicated that we agree with Vaca’s discussions relating to claims against an employer. Margetta v. Pam Pam Corp., 501 F.2d 179, 180 (9th Cir. 1974). . The Seventh Circuit recognized and thoughtfully described the reasons for allowing the employers to raise a qualified intraunion exhaustion defense in Harrison v. Chrysler Corp., 558 F.2d 1273 (7th Cir. 1977): We are not persuaded, however, that exhaustion of intraunion remedies is never a legitimate concern of the employer. In Orphan v. Furnco Construction Corp., [466 F.2d 795] supra at 801, we gave serious consideration to an employer’s argument that permitting it to raise the defense would facilitate the national labor policy in favor of the private adjustment of grievances. That argument has some merit. Under certain circumstances an employee’s appeal within the union, after a union official’s bad faith refusal to press his grievance, might place the grievance procedure back on its proper course. A rule requiring such action would directly and substantially benefit the employer by enabling it to rely on the integrity of the grievance procedure in all cases in which it has not been irretrievably spoiled by the union’s unfair representation. “The question presented is whether the employee owes an obligation to" }, { "docid": "13278901", "title": "", "text": "and perfunctory representation, plaintiff lost the arbitration case.” Relying upon the arbitrator’s final decision, Pam Pam moved to dismiss for failure to state a claim. The district court granted the motion. Margetta v. Pam Pam Corp., 354 F.Supp. 158 (N.D.Cal.1973). Hence, this appeal. We have said that an employee may not attack a final arbitration decision, “ . . . except on the grounds of fraud, deceit or breach of the duty of fair representation unless the grievance was a ‘sham, substantially inadequate or substantially unavailable.’ ” Andrus v. Convoy Co., 480 F.2d 604, 606 (CA9 1973) [Emphasis supplied], quoting from Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (CA5 1971). Without doubt, the circumstances outlined in appellant’s complaint fall within these narrowly drawn exceptions. Consequently, the district court had jurisdiction to review the merits of the wrongful discharge claim. Steinman v. Spector Freight System, Inc., 441 F.2d 599, 603 (CA2 1971). Although Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), involved a state court action against the union alone, rather than a § 301 action against the union and the employer, and even though the arbitration there involved was not prosecuted to a final award, nonetheless, Justice White’s in-depth discussion of an employee’s rights, in circumstances such as these, must be given persuasive consideration. To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation. The grievance procedure is nothing less than a “sham”. A similar problem was involved in Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). While there may be a distinction between an award issued by a joint committee as in Humphrey and one issued by an arbitrator, the distinction is far less than fundamental. In each situation, the union has complete control of the employee’s grievance and in either can effectively" }, { "docid": "9895935", "title": "", "text": "J., concurring in part and dissenting in part). Schwerman’s final two contentions are that the employees’ complaint failed to state a claim for relief, and that the district court committed reversible error in sua sponte enforcing the arbitrator’s award without holding a trial. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Here, the employees alleged that Schwerman breached the collective bargaining agreement’s provision on employee wages; that they objected to this breach; that the Union and Schwerman submitted the matter to arbitration; that the arbitrator sustained the employees’ grievances; that Schwerman refused to comply with the arbitrator’s decision; and that the Union did not enforce the arbitrator’s decision, breaching its duty of fair representation. Because these allegations, if proven, state a claim against Schwerman, see, e.g., Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903,17 L.Ed.2d 842 (1967), we conclude that the district court properly denied Schwerman’s motion to dismiss for failure to state a claim for relief. The district court erred, however, in summarily disposing of the case because a factual issue remained as to one element of the employees’ claim—whether the Union breached its duty of fair representation. As the courts have made clear, when an employee sues his employer under section 301 for breach of uniquely personal rights created by a collective bargaining agreement, after the employer has settled the controversy with the employee’s union representative pursuant to binding grievance procedures in the collective bargaining agreement, the employee is “required in some way to show that the Union’s duty to represent him fairly ... [has] been breached before he [is] entitled to reach the merits of his contract claim.” United Parcel Services, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981); accord," }, { "docid": "1851127", "title": "", "text": "for breach of the duty to fairly represent without regard to the presence of a contract breach. Mumford v. Glover, 503 F.2d 878, 883 (5th Cir. 1974). Here the complaint alleges under Section 1337 the failure of the union to adequately represent the class of former union members in negotiations with Swift on the vacation pay claim. The charge is the union recognized the validity of the claim, represented it would in good faith submit the claim to arbitration and then, without notice or representation to the former union members, totally disregarded the rights of the class by asserting the grievance was “the property of the union” and trading it for benefits to the few remaining union members — benefits which by the way were not recognized or set forth in the collective bargaining agreement in any way. Discussion of the factual elements of this bad faith charge appears in part III of this dissent, but for now suffice it to say, this claim, which Judge Larson found to be valid, is totally independent of any breach of contract by Swift. Even under Section 301, however, an employee need not prove a breach of the collective bargaining agreement as an essential element of his suit against the union for its alleged failure to provide fair representation. See, e. g., Czosek v. O’Mara, 397 U.S. 25, 28, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970); Vaca v. Sipes, 386 U.S. 171, 182-83, 190-98, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Kaiser v. Local 83, 577 F.2d 642, 645 (9th Cir. 1978); Minnis v. International Union, UAW, 531 F.2d 850, 854 (8th Cir. 1975). Indeed, our court recently held that a discharged employee who had absolutely no contract right to reinstatement could nevertheless bring suit against the union for its alleged inadequate representation of his reinstatement claim in grievance procedures. Id. In Minnis the employee had presented evidence tending to demonstrate that if the union had processed his grievance, as it agreed to do, then the employer would have reinstated the employee. Notwithstanding the admitted absence of a contract breach, we held the" }, { "docid": "22727515", "title": "", "text": "integrity. In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings. Wrongfully discharged employees would be left without jobs and without a fair opportunity to secure an adequate remedy. Except for this case the Courts of Appeals have arrived at similar conclusions. As the Court of Appeals for the Ninth Circuit put it in Margetta v. Pam Pam Corp., 501 F. 2d 179, 180 (1974): “To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation.” Petitioners, if they prove an erroneous discharge and the Union’s breach of duty tainting the decision of the joint committee, are entitled to an appropriate remedy against the employer as well as the Union. It was error to affirm the District Court’s final dismissal of petitioners’ action against Anchor. To this extent the judgment of the Court of Appeals is reversed. So ordered. Mb. Justice Stevens took no part in the consideration or decision of this case. Two of the original petitioners, Burtice A. Hines and Arthur D. Cartwright, are deceased. Charles A. Hines and Chyra J. Cartwright have been substituted as party petitioners. 423 U. S. 816, 982 (1975). The contractual grievance procedure is set out in Art. 7 of the Central Conference Area Supplement to the National Master Automobile Transporters Agreement. App. 226-233. Grievances were to be taken up by the employee involved and if no settlement was reached, were then to be considered by the business agent of the local union and the employer representative. If the dispute remained unresolved, either party had the right to present the case for decision to the appropriate joint area arbitration committee. These committees are organized on a geographical area basis and hear grievances in panels made up of an" }, { "docid": "891121", "title": "", "text": "in the collective bargaining agreement between his employer and his union, and therefore the employer could exercise its right to discharge him for causes it deemed reasonable. The employee had violated company rules by stopping a company truck during working hours and fighting with pedestrians. The employee is thus precluded from obtaining any damages against his employer. This does not, however, imply that he does not have a valid cause of action against his union for refusing in bad faith to file grievance procedures on his behalf. See Cammarata v. Ice Cream Drivers & Employees Union, Local 757, 441 F.Supp. 696 (E.D.N.Y. 1977). At trial, the court may determine that the union did not violate any duty to fairly represent the employee. That issue was never presented in this proceeding since the district court held that if an employer is not liable under the employment contract for discharging the employee, then the union as a matter of law cannot be held liable under its statutory duty of fair representation even if it had acted in bad faith. The district court has misconstrued Vaca v. Sipes. There the court stated “[tjhough the union has violated a statutory duty in-failing to press the grievance, it is the employer’s unrelated breach of contract which triggered the controversy and which caused this portion of the employee’s damage. The employee should have no difficulty recovering these damages from the employer, who cannot, as we have explained, hide behind the union’s wrongful failure to act: in fact, the employer may be (and probably should be) joined as a defendant in the fair representation suit . . . .” Vaca v. Sipes, supra, 386 U.S. at 197, 87 S.Ct. at 920. The Court did not state that an employee is an indispensable party in a fair representation suit against the union. The Court was explaining its holding that the employer who wrongfully discharged an employee should not be able to avoid his liability when the union has acted in bad faith in not fairly representing the employee. In Vaca and Czosek v. O’Mara, 397 U.S. 25, 90" }, { "docid": "23518955", "title": "", "text": "with the recognition that Appellants’ complaint asserted claims against both the union and the company. The complaint against the union is predicated on the “statutory duty of fair representation.” See Vaca, 386 U.S. at 177, 87 S.Ct. at 910. The duty of fair representation is inferred from the union’s exclusive authority under the National Labor Relations Act, 29 U.S.C. § 159(a), to represent all employees in a bargaining unit and “to act fairly when dealing with an employer on behalf of a member.” Moore v. Local Union 569 of the Int’l Bhd. of Elec. Workers, 989 F.2d 1534, 1541 (9th Cir.1993), cert. denied — U.S. -, 114 S.Ct. 1066, 127 L.Ed.2d 385 (1994). The complaint against Moore, the employer, is based on Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), which authorizes suits between employers and labor organizations for contract violations. The parties agree that the action against Moore can succeed only if “the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Vaco, 386 U.S. at 186, 87 S.Ct. at 914; see also Johnson v. United States Postal Serv., 756 F.2d 1461, 1467 (9th Cir.1985). Our inquiry, therefore, is limited to whether Local 404 breached its duty of fair representation owed to the Appellants. In Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910, the Court defined the duty of fair representation: [T]he exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Regarding the scope of the duty, the Court stated: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. Id. at 191, 87" }, { "docid": "14947060", "title": "", "text": "both counts pursuant to Rule 12(b) (6), Fed.R.Civ.P. Count I The company argues that Count I, as amended, does not materially differ from original Count I, the dismissal of which was affirmed by the Court of Appeals. Plaintiff, although not saying so precisely, may fairly be said to indicate that the addition of an allegation of breach of a duty of fair representation by the union makes this count good, under Vaca v. Sipes, supra,. This is an important question, the answer to which will determine whether an employee, although failing to comply with grievance procedures, can sue his company for breach of contract by alleging merely that the union failed in its duty of fair representation, or whether he must actually allege a conspiracy between the union and the company. In short, can an employee recover from his company even though the company did not play a part in preventing him from exhausting contractual remedies ? The Court of Appeals did not pass specifically on this question, since Count I originally did not allege a breach of the duty of fair representation, and Count II alleged a conspiracy. The language of Vaca clearly supports the view that, at least in some cases, an allegation of breach of the duty of fair representation will suffice: “For these reasons, we think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” 386 U.S. at 186 It is important to note, however, that this statement was made in a case where plaintiff charged the union with breaching its duty of fair representation by refusing to take plaintiff’s claim to arbitration, the last step in the grievance procedure. In other words, the alleged breach by the union of its duty to represent fairly made it impossible to complete the contractual grievance procedure. Thus, it is possible that under Vaca the union’s conduct actually must" }, { "docid": "22154095", "title": "", "text": "It argues that “GM, if any party, would be solely liable to plaintiff.” Appellant’s complaint asserts that GM and the Unions are jointly and severally liable for his injury. This is not true. When a union breaches its duty of fair representation, the employer remains liable for any damages “attributable solely to the employer’s breach of contract,” i. e., the wrongful discharge. Vaca, 386 U.S. at 197, 87 S.Ct. at 920. When a breach of the duty of fair representation is shown, however, the Union is liable for that portion of Appellant’s injury representing “increases if any in those damages [chargeable to the employer] caused by the union’s refusal to process the grievance.” Vaca, 386 U.S. at 197-98, 87 S.Ct. at 921. Thus, upon a finding of unfair representation, “the court must fashion an appropriate remedy,” 386 U.S. at 187, 87 S.Ct. at 915, compensating Appellant from the Union’s pocket for those expenses he incurred because of the Union’s failure to process his grievance properly. Since none of the grounds urged in Local 166’s cross-appeal requires dismissal of Appellant’s complaint against it, we reverse the District Court’s judgment in its favor and remand for a finding of appropriate relief. Our holding that the Local breached its duty of fair representation requires reversal of the District Court’s dismissal of Appellant’s claim against GM. When the Union has failed in its duty to fairly represent an employee, the employer may not invoke the Union’s failure to follow procedures set forth in the collective bargaining agreement as a defense to the action of the employee. Vaca v. Sipes, 386 U.S. at 185, 87 S.Ct. 903. GM has filed a cross-appeal which asserts that dismissal of Appellant’s claim against it should nonetheless be affirmed on two alternativve grounds. First, it argues that the complaint raises no factual issues and that it is entitled to summary judgment on the merits. Second, GM contends that dismissal should have been granted because of Appellant’s failure to exhaust his intra-Union remedies. The District Court rejected both arguments in pre-trial orders. The second ground is quickly rejected. As we" }, { "docid": "6771058", "title": "", "text": "fair representation. It could neither reinstate Clayton nor reinstate his petition and prosecute his grievance action. We conclude that Clayton’s claim against ITT was not barred by failure to exhaust such insuffi cient remedies. See Winter v. Local 639, Int’l Brotherhood of Teamsters, 569 F.2d 146, 150-51 (D.C.Cir.1977); Harrison v. Chrysler Corp., supra. Accord, Margetta v. Pam Pam Corporation, 501 F.2d 179, 180 (9th Cir. 1974); Fruit & Vegetable Packers, Local 760 v. Morley, 378 F.2d 738, 745 (9th Cir. 1967). Conditioning the employer’s use of the internal exhaustion defense on the adequacy of internal union remedies produces an anomaly. Where the employer raises the affirmative defense of failure to exhaust the contract’s dispute resolution machinery, and where the employee has failed to exhaust internal union procedures, the employer will be required to defend the union’s representation of its members. In an action from which the union has been dismissed, ITT, to prevail on its affirmative defense, must defend the UAW’s good faith in declining to prosecute Clayton’s grievance. We are aware of the anomaly. But we have not been directed to any authority that would permit the employer to escape liability if the trier eventually finds that the employee did not receive the minimum representation his union owed him. On the contrary, the cases compel the result we reach. In Vaca, the Supreme Court said that the union’s wrongful refusal to process a grievance could not defeat the employee’s right to judicial relief against the employer, even though “the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement.” 386 U.S. at 185, 87 S.Ct. at 914. This means that the protection afforded to an employer by the collective bargaining agreement is conditional on the union’s discharge of its duty to represent an employee fairly. Hines v. Anchor Motor Freight, Inc., 424 U.S. at 571, 96 S.Ct. at 1059. The Court recognized that this in turn means courts will have to pass on whether there has been a breach of the duty of" }, { "docid": "22727525", "title": "", "text": "to Anchor Motor, holding that the Union’s breach of its duty to its members voided an otherwise valid arbitration decision in favor of the company. I find this result to be anomalous and contrary to the longstanding policy of this Court favoring the finality of arbitration awards. In Vaca v. Sipes, 386 U. S. 171 (1967), this Court held that, where the union has prevented the employee from taking his grievance to arbitration, as provided in the collective-bargaining agreement, he may then turn to the courts for relief. This decision bolstered the consistent policy of this Court of encouraging the parties to settle their differences according to the terms of their collective-bargaining agreement. Steelworkers v. American Mfg. Co., 363 U. S. 564, 566 (1960). By subjecting the employer to a damages suit due to the union’s failure to utilize the arbitration process on behalf of the employees, the Vaca decision put pressure on both employers and unions to make full use of the contractual provisions for settling disputes by arbitration. The decision in this case will have the exact opposite result. Here the Court has cast aside the policy of finality of arbitration decisions and established a new policy of encouraging challenges to arbitration decrees by the losing party on the ground that he was not properly represented. The majority cites Margetta v. Pam Pam Corp., 501 F. 2d 179, 180 (CA9 1974), for the proposition that “it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee.” Ante, at 572. To the contrary, I believe that the existence of a final arbitration decision is the crucial difference between this case and Vaca. The duty of “fair representation” discussed in Vaca was the duty of the union to put the case to a fair and neutral arbitrator, a step which the employee could not take by himself. 386 U. S., at 185. Here the case was presented to a concededly" }, { "docid": "8723498", "title": "", "text": "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. . We note that this case is distinguishable from Sear, which involved a fairly conducted arbitration proceeding, defined by the First Circuit as \"a proceeding untainted by any union failure to represent its members in good faith.” 654 F.2d at 7. Unlike Sear, Freeman has alleged that the union breached its duty of fair representation in the grievance-arbitration process. We do not address the issue whether a union owes an employee a duty of fair representation in deciding not to seek judicial review of a fairly conducted arbitration proceeding. . Section 9(a) provides: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 29 U.S.C. § 159(a) (1982). . The reason for implying a duty of fair representation is to provide a \"bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, 386 U.S. at 182, 87 S.Ct. at 912. See also DelCostello, 103 S.Ct. at 2290 n. 14. . See 29 U.S.C. § 185(a) (providing for suits" }, { "docid": "6771059", "title": "", "text": "But we have not been directed to any authority that would permit the employer to escape liability if the trier eventually finds that the employee did not receive the minimum representation his union owed him. On the contrary, the cases compel the result we reach. In Vaca, the Supreme Court said that the union’s wrongful refusal to process a grievance could not defeat the employee’s right to judicial relief against the employer, even though “the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement.” 386 U.S. at 185, 87 S.Ct. at 914. This means that the protection afforded to an employer by the collective bargaining agreement is conditional on the union’s discharge of its duty to represent an employee fairly. Hines v. Anchor Motor Freight, Inc., 424 U.S. at 571, 96 S.Ct. at 1059. The Court recognized that this in turn means courts will have to pass on whether there has been a breach of the duty of fair representation in actions for breach of the employment contract. Vaca v. Sipes, 386 U.S. at 187, 87 S.Ct. at 915. To hold here that Clayton has no cause of action against ITT because of his union’s failure to proceed to arbitration would run counter to the basic principles of Vaca and Hines. We must therefore remand this case. ITT will be liable only if (a) the union’s withdrawal of its demand for arbitration was wrongful, as that term has been construed in Vaca, Hines, and other cases, and (b) Clayton’s discharge was a breach of contract. See Hines v. Anchor Motor Freight, Inc., 424 U.S. at 570-71, 96 S.Ct. at 1059-60. We note also that, although the union will incur no liability because of Clayton’s failure to exhaust internal remedies, the extent of the union’s wrong (if any) can affect the relief granted against ITT. “If a breach of duty by the union and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. Presumably, in at least" }, { "docid": "11608949", "title": "", "text": "MEMORANDUM and ORDER ELFVIN, District Judge. Plaintiff commenced this action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging that he was wrongfully discharged and that a subsequent decision rendered by a joint arbitration committee upholding such discharge was improper and should be vacated. Defendant has moved to dismiss on the grounds that plaintiff’s complaint is time-barred by CPLR § 7511(a) and that it does not state a claim upon which relief can be granted because it fails to allege breach of the duty of fair representation. Plaintiff submits that CPLR § 213(2) is the appropriate statute of limitations and moves for leave to amend his complaint. A union has a duty to represent employees fairly, honestly and in good faith throughout the grievance and arbitration process. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It is well settled that in a Section 301 action seeking to vacate a joint arbitration committee’s decision, the employee must allege and prove not only that his discharge was contrary to the contract but also that the union breached its duty of fair representation. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Failure to allege a breach of such duty — i. e., that the union’s actions were arbitrary, discriminatory or in bad faith — is fatal to an employee’s suit under Section 301 seeking damages against his former employer for his allegedly wrongful discharge. Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir. 1973); Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir. 1970). Where a complaint fails to allege that the union has engaged in any wrongdoing or has failed properly to represent the employee, the claim must be dismissed. Alfieri v. General Motors Corp., 367 F.Supp. 1393 (W.D.N.Y.1973), aff’d, 489 F.2d 731 (2d Cir. 1973). In the instant case, plaintiff’s original complaint does not allege that he was inadequately represented by the union during the grievance and arbitration process. It merely alleges that the defendant employer joined in an arbitration proceeding" } ]

[ { "docid": "23590524", "title": "", "text": "546 F.2d 851, 857 (10th Cir.1976) (motion to recuse pursuant to section 144). Under the circumstances shown by this record, the district court did not abuse its discretion in denying the motion for recusal pursuant to section 144. C. Untimeliness On several occasions, Dorothy Willner requested that Judge Rogers recuse himself on the ground that his participation in the University of Kansas alumni activities demonstrated actual bias or would cause a reasonable person to question his impartiality. Dorothy Willner has failed to present any facts that would support an inference that Judge Rogers was actually biased against her as the result of his leadership position in the University of Kansas’ alumni affairs. The law of this circuit does not require recusal on the basis of mere speculation that such activities would cause him to harbor prejudice against her. Hinman, 831 F.2d at 939-40. A motion to recuse under section 455(a) must be timely filed. See Singer v. Wadman, 745 F.2d 606, 608 (10th Cir.1984) (motion to recuse under both 28 U.S.C. §§ 144 and 455(a) was untimely) cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 785 (1985); see also Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) (section 455(a) has a timeliness requirement); United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.1983) (same), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1164 n. 3 (5th Cir.1982) (same), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed. 2d 83 (1983); In re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir.1980) (same). In the instant matter, the complaint was filed on December 1, 1982. The first motion to recuse based on Judge Rogers’ alumni activities was not filed until October 11, 1983. Discovery would have been completed by this time except for Dorothy Winner’s recalcitrance in ignoring the defendants’ requests for more complete answers to their interrogatories. Granting a motion to recuse many months after an action has been filed wastes judicial resources and encourages manipulation of" } ]

[ { "docid": "10459845", "title": "", "text": "analogous ease, the American Honda Motor Company removed a case from a Florida state court, alleging that the complaint satisfied jurisdictional thresholds. Id. at 356. After the district court transferred the case to the District of New Jersey, Honda sought dismissal, alleging that the complaint did not satisfy the same jurisdictional thresholds. Id. at 357. After completing review of unrelated issues, the Third Circuit suggested: The odyssey to which Mr. Bloom and his counsel have been subjected as a result of the inconsistent positions taken by Honda with respect to jurisdictional amount suggests that consideration by the district court of an award of excess costs, expenses, and attorneys’ fees pursuant to 28 U.S.C. § 1927 (1982) may be appropriate. Id. at 358. We recognize that Bloom is legally inapposite, since we do not rest our award of sanctions on § 1927. We hold today only that a plaintiff’s similar inconsistency during removal proceedings warrants a remedial award under § 1447(e). See also Barraclough v. ADP Automotive Claims Services, Inc., 818 F.Supp. 1310, 1310-1311 (C.D.Cal.1993). 2. Awards to Defendants Mary also argues that § 1447(e) does not permit an award of costs and fees to defendants. She quotes favorable language from Fowler v. Safeco Insurance Co., 915 F.2d 616, 618 (11th Cir.1990), in which the Eleventh Circuit counseled: The statute itself appears to contemplate the imposition of costs only on the defendant, not on the plaintiff. Costs are assessed in a case of “improvident removal.” As it is the defendant who removes, it logically must be the defendant who would act improvidently and be assessed just costs. Id. Unfortunately, Mary relies on a case that interpreted a version of § 1447(c) that is no longer the law. Although decided in 1990, Fowler explicitly relied on § 1447(c) as it stood before ité' revision in 1988. See Fowler, 915 F.2d at 617 n. 1. Before 1988, § 1447(c) stated: If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs." }, { "docid": "21236202", "title": "", "text": "witness, Mr. O’Donnell. However, since the decision regarding which version to believe is crucial to the proper resolution of this case, it is essential that the defendant’s version also be presented and each of the above factors discussed in turn. C. Defendant’s Version of Facts Defendant’s position with regard to the scenario of events surrounding plaintiffs bid mistake claim is based substantially upon the testimony of Mr. Frank O’Donnell. Mr. O’Donnell testified that on June 20, 1973, after having received plaintiffs letter of June 19 which alleged a mistake in its bid, he personally called the plaintiff, acknowledged receipt of the letter, and asked for supporting documentation and evidence. Although no follow-up letter was written to the plaintiff, Mr. O’Donnell presented at trial a brief note that he had written at the time of the call to record what had transpired. Mr. O’Donnell then stated that on the morning of June 22 Howard and Melvin Bloom and their father appeared at his office without an appointment. Although he was busy, he agreed to meet with them. O’Donnell did not specifically recall whether he asked the Blooms for their supporting documentation at the meeting, but he was certain that no such evidence was offered. O’Donnell stated that he told them he could not correct their bid, because of his office’s $300,000 limitation, but that they would be allowed to withdraw their bid with proper substantiation of the error. Thereupon, according to O’Donnell, the Blooms decided that they were willing to accept an award, withdrew their bid mistake claim, and volunteered to exclude Item C from any award in order that the contract amount be under $300,000. O’Donnell stated that he did not have the engineer’s recommendation at the time and, therefore, did not initiate the suggestion that Item C be eliminated. Moreover, the Blooms did not, according to Mr. O’Donnell’s testimony, request that the Base Bid (Item 1) be excluded instead. Mr. O’Donnell further testified that since he had not yet received the engineer’s recommendation, the award of the contract had not yet been determined and, thus, the possibility of default" }, { "docid": "3179334", "title": "", "text": "courts throughout the county. In her application, Bloom requested modification of the position so that she would not have to work in the old courthouse. Judge Priest informed Bloom that she was not eligible for the swing position because her medical condition would preclude her from relieving court reporters in the old courthouse. Rather than return to work in the 73rd Judicial District Court, Bloom resigned her position. In June, 1994, after filing and losing a worker’s compensation claim, Bloom filed suit in federal court, alleging that Bexar County had discriminated against her in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213 (1997), and the Civil Rights Act of 1991, 42 U.S.C. § 1981 (1997). Bloom’s complaint alleged that her medical conditions qualified as a disability under the ADA, thereby obligating Bexar County to accommodate her disability. Bloom alleged that Bexar County’s failure to accommodate her disability and failure to enforce city and county ordinances prohibiting smoking in the courthouse constituted a constructive discharge which amounted to discrimination. Bloom’s complaint sought compensatory damages and a permanent injunction requiring Bexar County to rehire her as a court reporter in the Justice Center or in a comparable position that accommodates her disability. The federal district court denied Bexar County’s first motion to dismiss or, in the alternative, for summary judgment. Following the exchange of discovery requests and the designation of witnesses, Bexar County again moved for summary judgment, arguing that Bexar County was not Bloom’s employer for purposes of the ADA and, therefore, could not have discriminated against her. The district court found that Bexar County could not have discriminated against Bloom in violation of the ADA because, under Texas law, Bexar County had no authority with regard to the hiring, firing, or assigning of court reporters. The court went on to find that, at any rate, Bloom had not demonstrated a “disability” as defined in the ADA. Accordingly, the district court issued a summary judgment in favor of Bexar County. That same day, the district court denied Bloom’s motion for leave to amend her complaint. Discussion A." }, { "docid": "16816497", "title": "", "text": "New Jersey had statutory authority under 28 U.S.C. § 1447(c) to determine that the case was “removed improvidently and without jurisdiction.” Moreover the court properly applied the “legal certainty” test with respect to jurisdictional amount announced in Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In applying that test, however, the court looked to New Jersey law to determine both what Bloom might recover for breach of warranty and whether he could recover the punitive damages which he seeks. No reference was made to the law of Florida. Reliance on New Jersey law was improper, for a section 1404(a) transfer does not result in a change in the governing law. Van Dusen, United States District Judge v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). In a removed diversity ease the federal court for the Southern District of Florida was obliged, with respect to state law claims, to look to the law of Florida, including Florida’s choice of law rules. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties have not in the briefs filed here addressed the question whether, under Florida state law, it appears to a legal certainty that Bloom could not recover more than $10,000. Because the order remanding to a New Jersey court was entered without legal authority it must be vacated. The district court may thereafter reconsider whether, under Florida law, it appears to a legal certainty that Bloom may recover no more than $10,000. If so, an order remanding the instant case to the Florida state court should be entered pursuant to 28 U.S.C. § 1447(c). The odyssey to which Mr. Bloom and his counsel have been subjected as a result of the inconsistent positions taken by Honda with respect to jurisdictional amount suggests that consideration by the district court of an award of excess costs, expenses, and attorneys’ fees pursuant to 28 U.S.C. § 1927 (1982) may be appropriate. The petition for mandamus will be granted. We have" }, { "docid": "4440334", "title": "", "text": "tying arrangement unreasonably restrained competition in the tied (PEP products) market. Jefferson Parish Hospital, 466 U.S. at 29, 104 S.Ct. at 1567. Plaintiff’s evidence with respect to this element is totally lacking. Plaintiff has failed to make any showing that the “tying arrangement” resulted in an unreasonable restraint of competition in PEP products. In summary, Plaintiff has failed to produce evidence demonstrating a genuine issue of material fact concerning: 1) Plaintiff’s market power in video games; 2) the arrangement’s effect on more than an insubstantial volume of commerce in PEP products; 3) or the arrangement’s impact on competition in PEP products. Accordingly, summary judgment on this claim should be granted. B. Robinson-Patman Price Discrimination Act Plaintiff has alleged two separate claims under the Robinson-Patman Price Discrimination Act (“Robinson-Patman”). 15 U.S.C. § 13. Mattel has filed for summary judgment in only one of those claims; therefore, we only address one. The Robinson-Patman Act prohibits discrimination in favor of one purchaser against another purchaser of goods in furnishing of services or facilities connected with sale. The purpose of the Act is to prevent large buyers from using their economic power to gain favorable terms from manufacturers and, thus, gain an unfair advantage over smaller competitors who can not buy in bulk. Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319 (6th Cir.1983). Plaintiff asserts that Mattel granted certain preferential treatment to other Intellivision purchasers in violation of the Act. The factual predicate for Plaintiff’s claim is again found in the deposition testimony of Mr. Kenneth A. Bloom. The pertinent parts of Mr. Bloom’s deposition establishes that, after Mattel sold its Intellivision division, three of Mattel’s customers balked at repaying their outstanding balances. The three are Toys-R-Us, Best Products, and M.W. Kasch Company. According to Mr. Bloom, he recommended to his superiors that Mattel bring legal action against these three companies to secure full payment of their outstanding balances; however, the superiors decided not to. Although the record is not perfectly clear, viewed generously, it appears that these three were either allowed to return unsold products for credit, or Mattel simply did not" }, { "docid": "21236203", "title": "", "text": "them. O’Donnell did not specifically recall whether he asked the Blooms for their supporting documentation at the meeting, but he was certain that no such evidence was offered. O’Donnell stated that he told them he could not correct their bid, because of his office’s $300,000 limitation, but that they would be allowed to withdraw their bid with proper substantiation of the error. Thereupon, according to O’Donnell, the Blooms decided that they were willing to accept an award, withdrew their bid mistake claim, and volunteered to exclude Item C from any award in order that the contract amount be under $300,000. O’Donnell stated that he did not have the engineer’s recommendation at the time and, therefore, did not initiate the suggestion that Item C be eliminated. Moreover, the Blooms did not, according to Mr. O’Donnell’s testimony, request that the Base Bid (Item 1) be excluded instead. Mr. O’Donnell further testified that since he had not yet received the engineer’s recommendation, the award of the contract had not yet been determined and, thus, the possibility of default could not have been and was not ever discussed. He stated that there was no threat of any adverse action against the plaintiff at the meeting. As a result of the meeting, Mr. O’Donnell was of the opinion that the Blooms had withdrawn their bid mistake claim although he never requested or obtained a formal withdrawal of the claim from plaintiff. He testified that after the meeting he crossed out the personal note that he made to himself, regarding the initial telephone call to the Blooms, because he thought the whole issue had been resolved. D. Factors Supporting Plaintiffs Version of Facts 1. Defendant’s Version Raises Questions Which have no Logical Answers Perhaps the strongest point in plaintiffs favor is that defendant’s scenario raises questions which simply defy logical explanation. Why, for example, would the Blooms initiate the idea of eliminating Item C from any potential award? It would not take a very astute businessman to note that Item C was one of the only items for which plaintiff had bid substantially higher than the" }, { "docid": "10459844", "title": "", "text": "a plaintiff is the mistress of her complaint. See, e.g., Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2426, 2429, 96 L.Ed.2d 318 (1987) (“The [well-pleaded complaint] rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”). It is also well-settled that a court must take the facts of the complaint as true at the time of removal. See, e.g., Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987). In short, to the contrary of Mary’s assertions, it became “obvious” that Allen R. was not a nominal defendant only after we so ruled. Finally, Mary’s argument does not fully describe the facts of the removal. We consider an award of costs and fees appropriate not only because she labeled her son “nominal” — after all, Mary might mistakenly have thought that Allen R. could be a nominal defendant — but also because of her inconsistency. In Bloom v. Barry, 755 F.2d 356 (3d Cir.1985), an analogous ease, the American Honda Motor Company removed a case from a Florida state court, alleging that the complaint satisfied jurisdictional thresholds. Id. at 356. After the district court transferred the case to the District of New Jersey, Honda sought dismissal, alleging that the complaint did not satisfy the same jurisdictional thresholds. Id. at 357. After completing review of unrelated issues, the Third Circuit suggested: The odyssey to which Mr. Bloom and his counsel have been subjected as a result of the inconsistent positions taken by Honda with respect to jurisdictional amount suggests that consideration by the district court of an award of excess costs, expenses, and attorneys’ fees pursuant to 28 U.S.C. § 1927 (1982) may be appropriate. Id. at 358. We recognize that Bloom is legally inapposite, since we do not rest our award of sanctions on § 1927. We hold today only that a plaintiff’s similar inconsistency during removal proceedings warrants a remedial award under § 1447(e). See also Barraclough v. ADP Automotive Claims Services, Inc., 818 F.Supp. 1310, 1310-1311 (C.D.Cal.1993). 2." }, { "docid": "22356886", "title": "", "text": "judge, the jurymen will not have witnessed or suffered the alleged contempt, nor suggested prosecution for it. However, the tradition of nonjury trials for contempts was more firmly established than the view that States could dispense with jury trial in normal criminal prosecutions, and reliance on the cases overturned by Bloom v. Illinois was therefore more justified. Also, the adverse effects on the administration of justice of invalidating all serious contempt convictions would likely be substantial. Thus, with regard to the Bloom decision, we also feel that retroactive application is not warranted. For these reasons we will not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court’s decisions in Duncan v. Louisiana and Bloom v. Illinois. The petitions for writs of certiorari are granted and the judgments are affirmed. R is w order&± Mr. Justice Harlan and Mr. Justice Stewart would deny certiorari for the reasons stated in Mr. Justice Harlan’s dissenting opinions in Duncan v. Louisiana, 391 U. S. 145, 171, and Bloom v. Illinois, 391 U. S. 194, 215. Petitioner DeStefano was ordered released on bail by Mr. Justice Clark pending his direct appeals in the Illinois courts and his first petition for a writ of certiorari. He was again granted release on bail by Mr. Justice Clark pending his appeal to the Court of Appeals from the District Court’s denial of habeas corpus relief; this second bail order has continued in force pending consideration of the present petition. Prior to the first bail order, and between the first denial of certiorari and the second bail order, petitioner served a total of 207 days of his concurrent one-year sentences. We see no basis for a distinction between convictions that have become final and cases at various stages of trial and appeal. See Stovall v. Denno, supra, at 300-301. Mr. Justice Douglas, with whom Mr. Justice Black joins, dissenting. 1 am of the view that the deprivation of the right to a trial by jury should be given retroactive effect, as I thought should have been" }, { "docid": "8837720", "title": "", "text": "intent to defraud the City Bank and that check-kiter Bloom was aware of Cades’ intent to defraud City Bank. It was stated, at 1168: “Certainly, Bloom intended to defraud City Bank by his own actions. That intent might, assuming other elements of the crime are proven, suffice to convict Bloom of a substantive crime such as ‘mail fraud’.” (Note omitted). We went on to say: “We assume in analyzing the sufficiency of the evidence that the government may meet its burden by showing (1) Cades’ intent to defraud City Bank, (2) Bloom’s awareness of it, and (3) subsequent actions by Bloom facilitating such fraud; from this evidence, we presume that the jury could reasonably infer Bloom’s intent to aid and abet Cades’ violation of § 656. After carefully searching the record, we are unable to find such evidence.” It cannot reasonably be asserted under the circumstances at bar that Cades is applicable; for without employing inference or inferences, the jury could reasonably find as it did that there was a clear intention and effectuation of purpose by the appellants to violate §§ 656 and 371. , III. ERRORS AND ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL (UP TO THE CHARGES) Alleged Bias of Trial Judge Gallagher, and indeed the other appellants, allege that the trial judge was unfair and biased and did not conduct the trial in a fair or judicious manner; in fact, that the trial judge’s conduct of the trial was biased as to them. Trial counsel for Gallagher opened to the jury with the following statement: “MR. WILLIAMSON [Gallagher’s trial counsel]: . . . [W]hen a defendant walks into a courtroom the cards are basically stacked up against him. He doesn’t have the budget of the federal government. MR. SUMINSKI [Assistant United States Attorney]: Your Honor, I object. THE COURT: Mr. Williamson, this is quite improper. It’s not opening. And it’s not true either. MR. WILLIAMSON: What isn’t true? THE COURT: Your statement is completely untrue. MR. WILLIAMSON: What did I say that’s untrue to this jury? THE COURT: I have just ruled. Go ahead and" }, { "docid": "413300", "title": "", "text": "this claim, dismissed it on the pleadings, holding that the matter was res judicata due to the earlier litigation. Bloom again appealed, and once again, the Court of Appeals upheld the trial court, holding, inter alia, that Bloom had failed to state a claim against Sutton. Bloom once more applied for reconsideration and his motion was overruled. He then appealed that decision to the Ohio Supreme Court, and such appeal was dismissed sua sponte on January 8, 1976. At the same time that Bloom filed his second action in the Geauga County Common Pleas Court, he filed a companion case, substantially similar to the Geauga County action, in the United States District Court, Northern District of Ohio, Eastern Division, seeking $100,000.00 compensatory and $3,000,000.00 punitive damages, alleging that the Suttons had conspired with others to purchase the real estate in question. The district court (Thomas, J.) dismissed the complaint for failure to state a claim under 42 U.S.C. § 1983. Bloom then moved for a new trial or for a rehearing. That motion was denied. Bloom appealed from the district court’s decision to this Court. This Court rejected the appeal, concluding that “. . . this action is nothing more than an attempt to utilize jurisdiction for the purpose of reversing or modifying the civil judgment of the state court.... ” The Suttons maintain that, “[t]he ultimate result of all of the actions of the Appellant and the complex web of legal maneuvers was to deprive the Suttons of actual possession of their home for an entire year, to harrass [sic] and annoy them for many months thereafter and to cost them legal fees exceeding $15,000.00.” Brief of Appellees at 6. On July 30, 1976, the Suttons filed the instant action alleging that their constitutional rights guaranteed by 42 U.S.C. §§ 1981, 1982 and 1985 had been violated, and further, that they had been victims of a course of malicious prosecution. The claim of malicious prosecution was dismissed. The evidence at trial showed that Bloom had been motivated in his actions by his desire to prevent blacks from moving into" }, { "docid": "3179347", "title": "", "text": "that the district court properly granted summary judgment against Bloom on her ADA claims. The allegations in Bloom’s proposed amendment would not change our analysis regarding summary judgment; therefore, we hold that the district court did not abuse its discretion in denying leave to amend. Conclusion Viewing the evidence in the light most favorable to Bloom, the non-movant, we find that the district court properly granted summary judgment on Bloom’s ADA claims. Bexar County’s lack of control over state district court reporters precludes liability under ADA Title I because Bexar County was not Bloom’s employer and because Bexar County could not have discriminated against Bloom in the manner proscribed by ADA Title I. ADA Title III does not apply to public entities; therefore, Bexar County cannot be held liable for Bloom’s ADA Title III claims. Furthermore, the district court did not abuse its discretion in denying Bloom’s motion for leave to amend. Accordingly, we AFFIRM the district court’s summary judgment. . Bloom does not appeal the district court's summary judgment on her § 1981 claims, which the court granted because Bloom's complaint failed to allege racial or ethnic animus as required by § 1981. . It is worth noting here that the authority that Carparts and State of Illinois relied upon for the proposition that a defendant need not be the direct employer of the plaintiff to be liable under ADA Title I have since become questionable at best. The Seventh Circuit expressly overruled the primary Title VII case that the district court relied upon in State of Illinois, which the First Circuit also cited in Carparts. See Alexander v. Rush North Shore Med. Ctr., 101 F.3d 487 (7th Cir.1996) (overruling Doe v. St. Joseph’s Hosp. of Fort Wayne, 788 F.2d 411 (7th Cir.1986)), cert. denied, - U.S. -, 118 S.Ct. 54, - L.Ed.2d - (1997). Additionally, the primary Title VII case that the First Circuit relied on in Carparts was Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), a D.C. Circuit case decided before the D.C. Circuit's decision in Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979). Spirides established" }, { "docid": "22770381", "title": "", "text": "a complaint on December 3, 1992, in the Northern District of New York, alleging four causes of action: (1) false arrest, under § 1983; (2) malicious prosecution, under § 1983; (3) conspiracy to violate his civil rights, under § 1983; and (4) a supplemental state claim for malicious prosecution. The complaint alleges generally that all the above acts were in violation of his rights under the First, Fourth and Fourteenth Amendments to the U.S. Constitution. By consent of the parties and pursuant to 28 U.S.C. § 636(c), the matter was referred to Magistrate Judge David N. Hurd. Motions were filed and, in an order dated October 4, 1994, the court: (1) granted motions for summary judgment filed by the Village of Northville, Sheldon Ginter (mayor of North-ville), James Groff, the Fulton County Sheriffs Department, the Fulton County Sheriff, Deputy James Hillman, Deputy Hillier, and Deputy Martin Rested; (2) dismissed the complaint, sua sponte, against Stewart’s Ice Cream Co., Raymond Shuler, and Andrea Nicollela; (3) denied motions by the Village of Northville, Sheldon Ginter, and James Groff for sanctions against Singer; (4) denied the motion by Singer for sanctions against the various defendants; and (5) denied motions by various parties for attorney’s fees. Singer now appeals each aspect of the judgment of the district court. After careful consideration of all the arguments raised by the parties, we affirm. Discussion The district court dismissed the complaint on a variety of grounds, all of which are contested by Singer. We confine our discussion to those issues which have at least some merit. We review the grant of a motion for summary judgment de novo, drawing all inferences in the light most favorable to the non-moving party. Viola v. Philips Medical Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). Our standard of review of the district court’s decision not to exercise jurisdiction over a pendent state claim is that of abuse of discretion. See Greene v. Town of Blooming Grove, 935 F.2d 507, 510 (2d Cir.), cert. denied, 502 U.S. 1005, 112 S.Ct. 639, 116 L.Ed.2d 657 (1991). A. Malicious Prosecution. The" }, { "docid": "19602448", "title": "", "text": "the sort of pleadings he files. This is no excuse here. When he brought this lawsuit in the Baldwin County Circuit Court, Mr. Lay knew that the case would be removed to federal district court because the complaint contained causes of action based on federal statutes. And he knew the District Court would require a repleader, which would inexorably lead to additional delay. In light of this Circuit's precedent, Mr. Lay's appeal of the dismissal of his incomprehensible amended complaint is frivolous. The prosecution of an incomprehensible amended complaint with repeated requests for extensions in the District Court and the prosecution of a frivolous appeal with repeated requests for extensions in this Court, taken together, reveal Mr. Lay's motive in filing this lawsuit. His motive was, and is, to delay or prevent the completion of Mellon's foreclosure. This constitutes an abuse of judicial process, a \"deliberate use of a legal procedure, whether criminal or civil, for a purpose for which it was not designed.\" Dykes v. Hosemann , 776 F.2d 942, 950 (11th Cir. 1985). The procedures of the federal courts were not designed for the purpose of accommodating Mr. Lay's objective. We accordingly affirm the judgment of the District Court. We also instruct Mr. Lay to show cause why we should not order him to pay the Appellees double costs and their expenses, including the attorney's fees they incurred in defending these appeals. See Pelletier , 921 F.2d at 1523 ; Cramer , 117 F.3d at 1265 & n.17. He shall show such cause in the form of a letter addressed to the Clerk of this Court within twenty-one days of the issuance of this opinion. SO ORDERED. BLOOM, District Judge, specially concurring: I concur in the Court's judgment but I write separately to provide guidance to the district courts when faced with a shotgun pleading following a grant of leave to replead and resurrection of a similarly improper pleading. Here, the amended complaint fared no better than the initial pleading, and counsel took no action to remedy the deficiencies pointed out in either the unopposed motion for a" }, { "docid": "5950349", "title": "", "text": "486 F.Supp. at 38. The analysis by the court in that case is applicable here. The precise issues raised by the plaintiffs have already been determined not to present a substantial federal question by the highest court in the land— that decision is controlling. See McCarthy v. Philadelphia Civil Service Comm., 424 U.S. 645, 646, 96 S.Ct. 1154, 1155, 47 L.Ed.2d 366 (1976). Plaintiffs also allege a cause of action against the defendants under the Civil Rights statutes, specifically 42 U.S.C. § 1983. Even giving the complaint the liberal construction which federal notice pleading requires, it does not allege facts against any of the defendants which are actionable under 1983. The defendant State of Nebraska is, of course, not amenable to suit under the statute. Aubuchon v. Missouri, 631 F.2d 581, 582 (8th Cir. 1980), cert. denied 450 U.S. 915, 101 S.Ct. 1358, 67 L.Ed.2d 341; Meyer v. New Jersey, 460 F.2d 1252, 1253 (3rd Cir. 1972). The Cass County Attorney, Ronald D. Moravec “enjoys absolute immunity with respect to initiating a prosecution and presenting the State’s case.” White v. Bloom, 621 F.2d 276, 280 (8th Cir. 1980). See Imbler v. Pachtman, 424 U.S. 409, 410, 96 S.Ct. 984, 985, 47 L.Ed.2d 128 (1975). And there is no allegation in the complaint that Mr. Moravec’s involvement in this matter is not limited to his official capacity. With regard to the defendant Cass County, there is nothing in the complaint which identifies any action, custom or policy of the county which allegedly deprived the plaintiffs of their constitutional rights. There is not even a specific reference to the County in plaintiffs’ allegations. See generally, Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). Accordingly, the Court finds that the plaintiffs’ 1983 claims should be dismissed. The Supreme Court of the United States has considered the issues raised here and found they lack a substantial federal question. No cause of action under 1983 is stated in the complaint. THEREFORE, IT IS HEREBY ORDERED that the defendants’ motions are sustained and the complaint is dismissed. . In" }, { "docid": "7952518", "title": "", "text": "violated the Due Process Clause of the Fifth Amendment, (Plaintiff’s complaint, II 14b), they assert a constitutional claim not generally subject to the Social Security Act’s exhaustion requirement in § 405(g). See Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Liberty Alliance, 568 F.2d at 345-46. On the other hand, plaintiffs’ claims for interim benefits or readjudication of individual plaintiffs’ claims are not collateral to any individual’s claim for benefits, nor are they the type of claims that render exhaustion futile. Accordingly, plaintiffs’ claims for interim benefits and readjudication will be dismissed as this court lacks any basis for subject matter jurisdiction over them. However, plaintiffs’ claim in connection with the Secretary’s violation of the Administrative Procedures Act will proceed as a result of this Court’s jurisdictional bases pursuant to 28 U.S.C. § 1361 and pursuant to 42 U.S.C. § 405(g). IV. Mootness The Secretary contends that, as a result of his publishing in the Federal Register for public comment proposed rules for evaluating disability in connection with HIV infection and AIDS, the instant case is moot. Federal courts lack jurisdiction to decide moot cases because their constitutional authority under Article III extends only to actual cases or controversies. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). That the dispute between the parties was “very much alive when suit was filed ... cannot substitute for the actual case or controversy that an exercise of this Court’s jurisdiction requires.” Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Rather, “a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision,” Iron Arrow Honor Society, 464 U.S., at 70, 104 S.Ct. at 375. On December 18, 1991, the Secretary published in the Federal Register for public comment proposed rules governing the determination of disability in connection with persons infected by the HIV virus, including those who have developed AIDS. 56 Fed.Reg. 65702-16 (December 18, 1991). The summary introducing the proposed regulations reads in relevant part as follows:" }, { "docid": "23575322", "title": "", "text": "decided by the Court of Appeals, we have no “persuasive data that the highest court of the state would decide otherwise.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). Given the split of authority on this issue among the states, see supra notes 5 and 6 and the special importance of the control of corporate governance in state law, we refuse to predict that the Colorado Supreme Court will part ways with the Colorado Court of Appeals, thereby creating a sea change in Colorado corporate law, on the issue of close corporation shareholders’ standing to sue. Therefore, we find that Mr. Combs lacks individual standing to sue Ms. Bennett for breach of fiduciary duty. II. MOTION TO AMEND Two issues confront us on the motion to amend appeal. First, Ms. Bennett contends that mootness and lack of appellate jurisdiction mandate that we dismiss Mr. Combs’ motion to amend appeal. Second, Mr. Combs urges that the District Court abused its discretion by denying his motion. We start with Ms. Bennett’s contentions. A. Motion to Dismiss A motion to dismiss that is originally filed in this Court is proper when the case is moot or when we lack jurisdiction. See 10th Cir. R. 27.2(A)(1). Ms. Bennett asserts the presence of both circumstances. We disagree. Ms. Bennett first contends that, because the District Court determined that the motion to amend was moot, we must also dismiss the appeal of that determination for mootness. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (“Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.”). Nevertheless, we have jurisdiction to determine our own jurisdiction. Gschwind v. Cessna Aircraft Co., 232 F.3d 1342, 1346 (10th Cir.2000). As such, the District Court’s conclusion that Mr. Combs’ Fed.R.Civ.P. 15(a) motion was moot when filed below is not grounds for summary dismissal in this Court, because we have the requisite jurisdictional font to determine for ourselves whether the motion below was, in" }, { "docid": "13308570", "title": "", "text": "emergency ex parte hearing, which it held later that day. The court also held a hearing on that same day at which Mr. McRoberts was present and testified. In that proceeding, the court verbally ordered Mr. McRoberts not to remove Travis from the jurisdiction or seek any state court order. On October 2, 2001, the court held another hearing on Ms. Fawcett’s petition, at which Mr. McRoberts again presented the only testimony. On October 11, the district court granted Ms. Fawcett’s petition and ordered that Travis be taken into custody by the Bed-ford County Department of Social Services and returned to the jurisdiction of the Sheriff Court in Ayr, Scotland. Fawcett v. McRoberts, 168 F.Supp.2d 595 (W.D.Va.2001). Mr. McRoberts complied with this order and Travis was returned to Scotland. The court also ordered Mr. McRoberts to pay costs and Ms. Fawcett’s attorney’s fees. Mr. McRoberts filed a timely appeal from both orders. II. As a threshold matter, we must determine whether Mr. McRoberts’s appeal is moot. We have “no authority’ to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before’ ” us. Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). Though Ms. Fawcett does not contend that the case is moot, a court must resolve issues such as mootness, that concern its own jurisdiction, even when the parties do not raise such issues. 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); Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). Of course, “compliance [with a trial court’s order] does not [ordinarily] moot an appeal [of that order] if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action.” 13A Charles A. Wright, et al., Federal Practice &" }, { "docid": "413299", "title": "", "text": "Appeals heard the case on its merits and affirmed the trial court. Bloom once again moved for a reconsideration, and once again the Court of Appeals affirmed the trial court’s decision. Thereafter, Bloom moved the Court of Appeals for an order certifying the case to the Ohio Supreme Court on the ground that there was a conflict between its decision and that of another Court of Appeals in Ohio. The Court of Appeals overruled the motion to certify, and Bloom appealed to the Supreme Court of Ohio. The Ohio Supreme Court, sua sponte, disposed of Bloom’s appeal on October 24, 1975. After that line of litigation, Bloom commenced two others. In May 1974, Bloom filed an action in the Geauga County Common Pleas Court against the Suttons seeking, inter alia, $100,000.00 in actual damages and $3,000,000.00 in punitive damages on the basis of an alleged willful, malicious, intentional and illegal participation in a “conspiracy” to deprive Bloom of his constitutional and statutory right to purchase the subject property. The trial court, finding no merit in this claim, dismissed it on the pleadings, holding that the matter was res judicata due to the earlier litigation. Bloom again appealed, and once again, the Court of Appeals upheld the trial court, holding, inter alia, that Bloom had failed to state a claim against Sutton. Bloom once more applied for reconsideration and his motion was overruled. He then appealed that decision to the Ohio Supreme Court, and such appeal was dismissed sua sponte on January 8, 1976. At the same time that Bloom filed his second action in the Geauga County Common Pleas Court, he filed a companion case, substantially similar to the Geauga County action, in the United States District Court, Northern District of Ohio, Eastern Division, seeking $100,000.00 compensatory and $3,000,000.00 punitive damages, alleging that the Suttons had conspired with others to purchase the real estate in question. The district court (Thomas, J.) dismissed the complaint for failure to state a claim under 42 U.S.C. § 1983. Bloom then moved for a new trial or for a rehearing. That motion was denied." }, { "docid": "23073820", "title": "", "text": "They urge we adopt the district court’s holding that the individual defendants have derivative immunity stemming from the absolute immunity of the city officials, see Harley v. Oliver, 404 F.Supp. 450, 454 (W.D.Ark.1975), aff’d on other grounds, 539 F.2d 1143, 1145-46 (8th Cir. 1976); but see White v. Bloom, 612 F.2d 276, 281 (8th Cir. 1980) (declining to adopt a per se rule of derivative immunity). Defendants suggest we could also affirm on the basis that the complaint fails to allege defendants’ conspiratorial behavior with sufficient specificity. See, e.g., White v. Bloom supra, at 281; Grow v. Fisher, 523 F.2d 875, 878-79 (7th Cir. 1975). We do not reach either of these possible grounds of affirmance, however, for we adopt the district court’s holding that the private citizens and their lawyer were absolutely privileged by the First Amendment to petition for the zoning amendment that caused plaintiffs’ damages. This holding follows from principles recognized in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The Noerr Court held that mere attempts to influence the enforcement or passage of legislation are not actionable under the Sherman Act. The Court relied in large part on the desirability of avoiding the “important constitutional questions” that would arise if it imputed to Congress an intent to regulate activity covered by the First Amendment’s guarantee of the right to petition government for redress of grievances. Id. at 138, 81 S.Ct. at 530. Lower federal courts have adopted this deference to the right to petition not only in antitrust cases but in other cases involving civil lia bility. In various contexts, these courts have held individual defendants constitutionally immune from liability for exercising their right to petition. E.g., Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1342-46 (7th Cir. 1977) (42 U.S.C. § 1985(1)) (sending to governmental employee’s superiors complaints that are known to be false); Sawmill Products, Inc. v. Town of Cicero, 477 F.Supp. 636, 642 (N.D.Ill.1979) (section 1983) (protesting presence of plaintiff’s sawmill which was then shut down by town ordinance); Weiss v." }, { "docid": "16816491", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge. Herbert Bloom, in October 1983, commenced in a Florida state court a suit charging American Honda Motor Co., Inc. (Honda) with breach of warranty. The, claim also sought relief pursuant to the Magnuson-Moss Warranty Act. Under that statute there is no United States District Court federal question jurisdiction unless the amount in controversy exceeds $50,000. 15 U.S.C. § 2310(d)(3)(B) (1982). On December 5, 1983, Honda filed a verified petition pursuant to 28 U.S.C. § 1441(a) (1982) and 28 U.S.C. § 1332 (1982) alleging that there was diversity of citizenship between the parties and that the amount in controversy exceeded $10,000, thereby removing the case to the United States District Court for the Southern District of Florida. Simultaneously Honda moved the federal court to transfer the case to the District of New Jersey pursuant to 28 U.S.C. § 1404(a) (1982). Bloom opposed the transfer motion with an affidavit and a memorandum of law, both dated December 19,1983. However, prior to that date, by an order dated December 15, 1983 and filed December 16, 1983, the District Court for the Southern District of Florida transferred the case to the District of New Jersey. After the transfer, Honda moved to dismiss the complaint on the ground that the federal court lacked subject matter jurisdiction. Honda pointed out that the federal court lacked jurisdiction over the Mag-nuson-Moss Warranty Act claim because it was for less than $50,000, and that the state law warranty claim to a legal certainty could not result in a judgment in excess of $10,000. The district court did not dismiss the action. Instead, on June 26, 1984, it ordered “that the motion [to dismiss] is denied, and the case is remanded to the Superior Court of New Jersey, Middlesex County.” Bloom now petitions this court, pursuant to 28 U.S.C. § 1651 (1982), for a writ of mandamus directing the district court to vacate the June 26, 1984 order. We hold that the district court lacked authority to enter that order. I. Reviewability If the trial court had granted the motion to dismiss the" } ]

[ { "docid": "12544420", "title": "", "text": "burden of proof to his employer to show nondiscrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). That case has doubtful application in a discharge situation, and it is in any event of no value to appellant in this case since a legitimate nondiscriminatory reason— King’s poor driving record — has been found to be the true reason for the discharge. See Naraine v. Western Electric Co., supra, 507 F.2d at 594. See also Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Nor does appellant’s use of statistics to support his case compel a different result. Statistics may be used to prove a claim of racial discrimination in a class action, see Reed v. Arlington Hotel Co., 476 F.2d 721, 723 (8th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973); Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 426, but this case involves no class claim. Although statistical evidence of a pattern or practice of discrimination is of probative value in an individual discrimination case for the purpose of showing motive, intent, or purpose, cf. Marquez v. Omaha District Sales Office, Ford Division of Ford Motor Co., 8 Cir. 1971, 440 F.2d 1157, it is not determinative of an employer’s reason for the action taken against the individual grievant. Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir. 1972). Here, as in Terrell, the record contains ample evidence to support the conclusion that King was discharged for nondiscriminatory reasons. The judgment of the District Court is affirmed. . The Honorable H. Kenneth Wangelin, United States District Court for the Eastern District of Missouri. . King was hired as a \"casual” or temporary driver in September, 1968, but became a permanent employee in March, 1969. . When a Yellow driver has an accident, the company investigates the circumstances of the occurrence; and if it determines that the driver could have prevented the accident, it issues a warning letter. Under the terms of its contract with the Teamsters" } ]

[ { "docid": "2685300", "title": "", "text": "of the defendants in this action, not some larger group of all school districts throughout the State of Mississippi who have not appointed women as athletic directors. The alleged discriminatory practice of requiring the Athletic Director to serve also as Head Football Coach is applied only to prospective employees of Columbus Schools. Robinson v. City of Dallas, 514 F.2d 1271, 1273-1274 (5th Cir.1975). This relevant class of individuals includes but one applicant, plaintiff Wynn herself. The statistical significance of one individual in terms of its predictive or inferential value is virtually non-existent. As the Eighth Circuit has noted: “Statistical evidence derived from an extremely small universe ... has little predictive value and must be dis regarded____” Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir.1975) (citing Robinson v. City of Dallas, 514 F.2d at 1273). The Supreme Court also indicated in a recent decision that where a small number of applicants is involved, it may well be “that the relevant data base is too small to permit any meaningful statistical analysis____” Watson v. Fort Worth Bank and Trust, supra — U.S. at-, 108 S.Ct. at 2791. The court is also of the opinion that discriminatory impact cannot be established by one isolated decision such as the one involved here. See Coe v. Yellow Freight System, Inc., 646 F.2d 444, 451 (10th Cir.1981); see also Price v. Denison Independent School Disk, 694 F.2d 334, 377 (5th Cir.1982) (court should not create a prima facie case of employment discrimination on too narrow a statistical sample). In view of the fact that Wynn is the only female coach who has ever applied for the position of Athletic Director within the Columbus Schools, the court concludes that she has failed to establish a prima facie case of disparate impact inasmuch as she has failed to establish a causal connection between the requirement that Athletic Director also serve as Head Football Coach and any actual effect of excluding a disproportionate number of members of a protected class from employment opportunities. Plaintiff has shown no pattern and practice on the part of Columbus" }, { "docid": "7026989", "title": "", "text": "aliens, a protected class). . Payless divides its employee positions into three departments for payroll administration: cashier/office, sales/receiving, and yard. Appellant testified that she applied for sales because Ms. Rooks, a cashier, told her that a position was open in plumbing and electrical sales. Ms. Rooks contradicted appellant’s testimony. Further, the Payless store manager stated, and the trial court found, that Ms. Rooks lacked any authority in hiring and that, therefore, she was not qualified to give information about employment practices. Thus, we cannot say that the trial court was clearly erroneous in finding that Payless was not seeking applicants for sales positions. . The evidence reveals only one exception to this policy. Before appellant applied for a job with Payless, it hired a man to work in plumbing and electrical sales who had one year of experience as electrical department manager for Montgomery Ward. His experience may explain why Payless made an exception to employ him directly. A single exception does not convince us that the trial court’s finding of a legitimate promotion-from-within policy is clearly erroneous. . Appellant objects to the trial court’s failure to find discriminatory practices based on statistics offered at trial that show the number of-women employed in each department of Pay-less. The trial court admitted into evidence the statistical data offered by appellant. Under Terrell v. Feldstein Co., Inc., 468 F.2d 910, 911 (5th Cir. 1972), this is all it need do: “Although statistical evidence of a pattern or practice of discrimination is of probative value in an individual discrimination case ... it is not determinative of an employer’s reason for the action taken against the individual grievant.” See also Davis v. Califano, 613 F.2d 957, 962 (D.C. Cir. 1979). The trial court must have viewed appellant’s statistics as less probative of discrimination against her since she was neither an employee seeking advancement nor a female applicant for a position in the yard." }, { "docid": "17525937", "title": "", "text": "record discloses that Dommermuth was better qualified than Morita for the position. In arriving at this conclusion,- we agree with an observation made recently by the Eighth Circuit, “The purpose of Title VII is to eliminate discrimination, not to saddle management with unqualified employees.” Wright v. Stone. Container Corp., supra, 524 F.2d at 1063. As an additional argument on appeal, Morita contends that he has made out a prima facie ease by showing on the basis of statistics that he had been subjected to racial discrimination. He argues that since 1959, eight persons, with less seniority than he, had been promoted to senior X-ray technicians and that seven of the eight were white. Defendant argues that only six of the eight promoted to senior technician were white. This Circuit has recognized that disparities in the numbers of minority and other employees may establish the plaintiffs prima facie case. United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.) cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Here, plaintiffs statistical proof is unpersuasive. If we were to adopt the defendant’s contention that two of the promoted employees were members of racial minorities, there would be no such disparity in the ratio between minority and white employees. But even if we were to accept the plaintiff’s assertion that only one promotion was to a minority employee, his argument must still fail. In reaching this conclusion, we need not consider whether a showing of promotions to seven white workers as compared to one minority worker establishes a prima facie case. Rather, our holding is premised on the obvious fact that plaintiff’s use of only eight persons in his statistical analysis is much too small to have any significant benefit to his position. Hence, “statistical evidence derived from an extremely small universe, as in the present case, has little predictive value and must be disregarded.” Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975). Accord, Robinson v. City of Dallas, 514 F.2d 1271, 1273 (5th Cir. 1975). The last argument which Morita raises on" }, { "docid": "17151638", "title": "", "text": "than another and cannot be justified by business necessity.’ ” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 1705, 123 L.Ed.2d 338 (1993) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977)). To prove discrimination under this theory, a plaintiff must identify challenge a facially-neutral employment practice, demonstrate a disparate impact upon the group to which he or she belongs, and prove causation. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827, 994-95 (1988). For a prima facie case, plaintiffs “must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Id. Aerospace contends that disparate-impact claims are not cognizable under the ADEA. We disagree. Although the Supreme Court has yet to rule on this legal question, see Hazen Paper, 507 U.S. at 610, 113 S.Ct. at 1706, our circuit continues to recognize the viability of such claims under the ADEA. Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1470 (8th Cir.1996). Nonetheless, we agree with the district court in both cases that the claimants have not presented statistical evidence of the kind or degree necessary to establish a prima facie ease of age discrimination. The sample size of three nonbargaining-unit employees over the age of fifty is simply too small independently to support a discrimination claim. See MacDissi, 856 F.2d. at 1058 (explaining that statistical evidence for a disparate impact claim must be much stronger than circumstantial evidence to support a disparate treatment claim); Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir.1975) (sample of five too small). Because we have determined that the claimants failed to establish a prima facie case, we need not address the business justifications offered by Aerospace for its decisions. Accordingly, we affirm the grant of summary judgment for Aerospace on both disparate impact claims. III. Based on the" }, { "docid": "3146638", "title": "", "text": "which the statistics must be drawn, is too small to have predictive value. Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir. 1975). Additionally, in King v. Yellow Freight Systems, Inc., 523 F.2d 879 (8th Cir. 1975), the court stated that statistical evidence in an individual discrimination suit may be useful to show motive, intent or purpose but “is not determinative of an employer’s reason for the action taken against the individual grievant”. Id. at 882, citing Terrell v. Feldstein Company, Inc., 468 F.2d 910, 911 (5th Cir. 1972). Thus, the Court concludes that the statistical evidence offers no support for plaintiff’s claim. Plaintiff also claims that since Ms. Moody’s decision was based in part on plaintiff’s use of “babe” and “honey” in reference to another female employee, the decision was discriminatory as a matter of law. See Marquez v. Omaha District Sales Office, 440 F.2d 1157 (8th Cir. 1971). Plaintiff supports this claim with the testimony of Dr. Robert Williams who testified that blacks are more likely to use terms such as “dear” and “honey” innocuously in a work environment. It is not disputed that the law forbids use of neutral policies having discriminatory impact upon blacks. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The Court, however, refuses to conclude that such is the case herein. The Court has been unable to find, and counsel was not presented, any cases in which a court found discrimination in a situation analogous to the one herein. Every cultural and racial group, indeed every individual, has idiosyncracies peculiar to it. Not every action of a member of a minority can be viewed as a minority characteristic deserving of protection under the law. The goal of 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981 is equality under the law, not the protection of minorities against the imposition of standards of conduct for employees. Accordingly, the Court con- eludes that the determination to discharge plaintiff while a probationary employee in part because plaintiff used the terms “babe” and “honey” in referring" }, { "docid": "5289045", "title": "", "text": "1968, one side of the bathhouse was used by white employees and another side was used by black employees. 2. The bathhouse was integrated in 1968 by the reassignment of lockers in order of the seniority of employees. 3. Following the integration of the bathhouse in 1968, various evasive tactics were tried by certain employees, such as attempts to swap lockers and to construct private showers in the plant. These tactics were halted by the Company. 4. The plaintiff has testified that his complaint regarding the bathhouse had reference to the period before the integration of the bathhouse in 1968 and that he has no complaint on the subject since that time. B. CONCLUSIONS OF LAW: The Company’s action in integrating the bathhouse by the reassignment of lockers in seniority order in 1968 and in stopping attempts to swap lockers and build private shower facilities resulted in compliance with the legal obligation of an employer to provide non-segregated employee facilities. Witherspoon v. Mercury Freight Lines, 457 F.2d 496, 498 (5th Cir. 1972). VII. PATTERN OR PRACTICE CLAIMS The plaintiff has relied on allegations concerning such matters as the racial composition of jobs. It would not be appropriate to resolve these matters in the present case, both because this is not a class action and because the resolution of these matters could entail consideration of the question of the extent to which they have been resolved by conciliation agreements which the Company entered into with the Equal Employment Opportunity Commission in 1968 and 1970. However, they have been considered for the purpose authorized by the Courts. The applicable principle, as expressed by the Fifth Circuit, is that “Although statistical evidence of a pattern or practice of discrimination is of' probative value in an individual discrimination case for the purpose of showing motive, intent, or purpose, ... it is not determinative of an employer’s reason for the action taken against the individual grievant.” Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir. 1972). Having done so, the Court is of the opinion that even viewing these matters in the light argued" }, { "docid": "3146636", "title": "", "text": "Ms. Moody discharged plaintiff because she felt that he would not be an adequate employee. She reached this determination because of an unauthorized use of equipment, a discussion concerning plaintiff’s paycheck, and complaints by female co-employees. 7. According to Ms. Moody, one of these female employees commented that plaintiff engaged in conversation with her, swept under her feet and reached over her shoulder for the purpose of getting an ashtray to empty. Ms. Moody did not ask this employee why she made her comments but construed the comments to mean the plaintiff was interfering with this employee’s ability to perform her job. 8. The second female employee told Ms. Moody that plaintiff had referred to her in conversation as “babe” and “honey”. 9. Dr. Robert L. Williams, a professor of psychology at Washinton University, St. Louis, Missouri, testified that it was his opinion that blacks are more likely than whites to use terms such as “dear” and “honey” innocuously in the work environment. 10. Ms. Moody had considered two other incidents in initiating plaintiff’s discharge: use of a fork-lift without her permission and a discussion with plaintiff about the propriety of his paycheck. 11. Plaintiff did not testify. Nor did he present any evidence regarding employment since the date of discharge. Defendant’s evidence tended to show that plaintiff had earnings since discharge of approximately $7,000.00 and additionally that plaintiff had received unemployment compensation benefits during this period. 12. Ms. Moody’s decision to discharge plaintiff was not based, in whole or in part, upon plaintiff’s race. CONCLUSIONS OF LAW This Court has jurisdiction over the subject matter and parties to this action in accordance with 42 U.S.C. § 2000e et seq. and 28 U.S.C. § 1343. This Court has found that plaintiff was not discharged because of his race. Plaintiff argues that the statistical evidence establishes a prima facie case of discrimination, thus shifting the burden to defendant to justify its use of subjective criteria in connection with the retention or dismissal of probationary employees. The Court disagrees. At the outset, the Court notes that the pool of probationary employees, from" }, { "docid": "17666957", "title": "", "text": "had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date . . Although Appellant’s hiring in the context of this case constituted an isolated and completed act, her allegations of discriminatory promotion practices and related acts, and her allegations of harassment and retaliation, constitute continuing violations not subject to the normal time limitations for filing. See Macklin v. Spector Freight Systems, Inc., 156 U.S.App. D.C. 69, 478 F.2d 979 (D.C. Cir. 1973); Loo v. Gerarge, 374 F.Supp. 1338 (D.Hawaii 1974). In any event, it appears that Appellant has abandoned her hiring claims on appeal. . Conclusions of Law No. 3. . Conclusions of Law No. 2. . Dr. Davis also presented to the trial court evidence of numerous specific instances of discrimination, and the Defendant-Appellee introduced opposing evidence. This need not be detailed in view of this court’s determinations herein. . Hackley v. Roudebush, 171 U.S.App.D.C. 376, 426, 520 F.2d 108, 158 (D.C. Cir. 1975); Kinsey, supra, 181 U.S.App.D.C. at 216, 557 F.2d at 839. . See Kaplan v. International Alliance of Theatrical and Stage Employees and Motion Picture Machine Operators, 525 F.2d 1354, 1358 (9th Cir. 1975); Muller v. United States Steel Corporation, 509 F.2d 923 (10th Cir. 1975). In each of the Eighth Circuit cases relied upon by Appellee and the trial court, there was evidence of a legitimate, nondiscriminatory basis for the employment action, or that the statistical proof was unreliable, suggesting that the holding in those cases was that the employer had carried its burden of rebuttal. See Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir. 1975); King v. Yellow Freight System, Inc., 523 F.2d 879 (8th Cir. 1975); Terrell v. Feldstein Co., 468 F.2d 910 (5th Cir. 1972). However, to the extent that language in those decisions suggests that statistical proof might establish a prima facie case in a class action only, we reject that position. . Appellant Dr. Davis established these elements before the trial court. See pages-- - of 198 U.S.App.D.C., pages 958-959" }, { "docid": "17666958", "title": "", "text": "U.S.App.D.C. at 216, 557 F.2d at 839. . See Kaplan v. International Alliance of Theatrical and Stage Employees and Motion Picture Machine Operators, 525 F.2d 1354, 1358 (9th Cir. 1975); Muller v. United States Steel Corporation, 509 F.2d 923 (10th Cir. 1975). In each of the Eighth Circuit cases relied upon by Appellee and the trial court, there was evidence of a legitimate, nondiscriminatory basis for the employment action, or that the statistical proof was unreliable, suggesting that the holding in those cases was that the employer had carried its burden of rebuttal. See Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir. 1975); King v. Yellow Freight System, Inc., 523 F.2d 879 (8th Cir. 1975); Terrell v. Feldstein Co., 468 F.2d 910 (5th Cir. 1972). However, to the extent that language in those decisions suggests that statistical proof might establish a prima facie case in a class action only, we reject that position. . Appellant Dr. Davis established these elements before the trial court. See pages-- - of 198 U.S.App.D.C., pages 958-959 of 613 F.2d, supra. . [The plaintiffs] initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers ... At the initial, “liability” stage of a pattern or practice suit the [plaintiff] is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiff’s] proof is either inaccurate ' or insignificant. . If an employer fails to rebut the inference that arises from the [plaintiff’s] prima facie case, a trial court may then conclude that a violation has occurred and determined the appropriate remedy. Without any further evidence from the [plaintiff], a court’s finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive" }, { "docid": "9333396", "title": "", "text": "sufficient that the employer’s conduct produced discriminatory results. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In Rowe v. General Motors Corporation, 457 F.2d 348, 355 (5th Cir. 1972), the Court stated: It is clearly not enough under Title VII that the procedures utilized by employers are fair in form. These procedures must in fact be fair in operation. Likewise, the intent of employers to utilize such discriminatory procedures is not controlling since “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Griggs v. Duke Power Company, supra, 401 U.S. at 432, 91 S.Ct. 848. It is therefore clear that employment practices which operate to discriminate against people because of their race, col- or, religion, sex or national origin, violate Title VII, even though the practices are fair on their face and even though the employer had no subjective intention to discriminate.14 (Emphasis in the original, footnote omitted). U.S. Elevator’s contention that statistics have no probative value in this case is also wrong as a matter of law. While statistics are not determinative' in an individual action alleging racial discrimination, as they are in a' class action, statistical evidence does have probative value in an individual discrimination ease for the purpose of showing motive, intent, and purpose. Terrell v. Feldstein Company, 468 F.2d 910 (5th Cir. 1972); Marquez v. Omaha District Sales Office, Ford Division of Ford Motor Company, 440 F.2d 1157 (8th Cir. 1971). See also State of Alabama v. United States, 304 F.2d 583, 587 (5th Cir. 1962), aff’d per curiam, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962); Brooks v. Beto, 366 F.2d 1, 9 (5th Cir. 1966), cert. den., 1967, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135. In the instant case, the statistics show that at the time Randolph was hired, there were no Black “70%” elevator constructor mechanic’s helpers employed by U.S. Elevator. The statistics further show that during the time of Randolph’s employment, thirty-one elevator constructor mechanic’s helpers “70%” were hired and of these twenty-seven" }, { "docid": "17790468", "title": "", "text": "295, 58 L.Ed.2d 216 (1978); Fumco Constr. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). . McDonnell Douglas Corp. v. Green, supra note 14, 411 U.S. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679. . Id. at 804-805, 93 S.Ct. at 1825, 36 L.Ed.2d at 679. . 181 U.S.App.D.C. 207, 557 F.2d 830 (1977). . Id. at 216, 557 F.2d at 839. . Id. . Although in this case we need determine only the admissibility of a single “other act” of discrimination in a suit brought by an individual, the result would be no different if several acts were involved constituting a pattern and practice or statistical evidence of discrimination. The District Court’s apparent reliance on this distinction was therefore erroneous. See note 5 supra. . Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 329 (5th Cir. 1978) (“[t]his Court has always recognized the strong probative value of statistics in proving race discrimination cases”); Adams v. Reed, 567 F.2d 1283, 1287 (5th Cir. 1978), quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396, 417 (1977) (“ ‘statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue”); Corley v. Jackson Police Dep’t., 566 F.2d 994, 999-1001 (5th Cir. 1978) (under McDonnell Douglas, evidence of a history of racial discrimination by the defendant “is not merely collateral; it is an indispensable element of the plaintiffs burden of proof and must be confronted by the district court in finding for either party”); Terrell v. Feldstein Co., Inc., 468 F.2d 910, 911 (5th Cir. 1972) (“statistical evidence of a pattern or practice of discrimination is of probative value in an individual discrimination case for the purpose of showing motive, intent, or purpose”); King v. Yellow Freight Sys. Inc., 523 F.2d 879, 882 (8th Cir. 1975) (same); Marquez v. Omaha Dist. Sales Office, 440 F.2d 1157, 1160-1161 (8th Cir. 1971) (“[w]hile this case was not tried as a typical pattern discrimination case, the" }, { "docid": "23342118", "title": "", "text": "at 554. Although subjective practices may provide “ready mechanisms for discrimination,” Smith v. Union Oil Co., 17 Fair Empl.Prac.Cas. (BNA) 960, 991 (N.D.Cal.1977), their relevance to proof of a discriminatory intent is weak. Honorable employers frequently use subjective criteria also. Indeed, in many situations they are indispensable to the process of selection in which employers must engage. In any event, after nearly two years of discovery Sengupta has been unable to amass any evidence indicating that Dorling, or any other M-K supervisor, used the subjective evaluation to mask unlawful and pretextual discrimination. Sengupta primarily relies upon statistical evidence to thrust upon M-K the burden of going forward with evidence to show the non-discriminatory reasons for his discharge. He asserts that discriminatory intent can be inferred from the fact that four of the five persons laid off from Department 222 were black. Although statistics have a place in a disparate treatment case, see Diaz v. American Tel. & Tel., 752 F.2d 1356, 1363 (9th Cir.1985), their utility “depends on all of the surrounding facts and circumstances,” International Bhd. of Teamsters, 431 U.S. at 340, 97 S.Ct. at 1857. Sengupta’s ability to prove discriminatory intent based on statistical evidence depends upon selecting the proper labor pool. The issue is whether that pool is the entire Mining Group or Department 222. First, Department 222 is too small. It had only 28 employees at the time of Sengupta’s discharge. In Monta v. Southern California Permanente Medical Group, 541 F.2d 217 (9th Cir.1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765 (1977), this court stated that “ ‘statistical evidence derived from an extremely small universe’ ... ‘has little predictive value and must be disregarded.’ ” Id. at 220 (quoting Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir.1975)); see also International Bhd. of Teamsters, 431 U.S. at 340 n. 20, 97 S.Ct. at 1856 n. 20 (considerations such as small sample size may detract from the value of statistical evidence). The problem with small labor pools is that slight changes in the data can drastically alter appearances. Consequently, in" }, { "docid": "23373030", "title": "", "text": "the Supreme Court has set out the prima facie case the plaintiff must prove, from which a court may infer intentional discrimination. In, for instance, a suit alleging sex discrimination in an employer’s failure to hire or promote, the plaintiff generally must prove (1) that she was a member of a protected group, (2) that she applied for a position for which she was qualified, (3) that she was rejected, and (4) that after she was rejected, the position remained open and the employer continued to seek applications from persons with the plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973). The plaintiff may also, however, use other methods of proof from which a court may infer the employer’s intent to discriminate. As the Supreme Court noted when it laid out the aforementioned elements of a prima facie case, “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [plaintiff] is not necessarily applicable in every respect to differing situations.” Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677-78 n. 13. The plaintiff may introduce in an individual disparate treatment case statistics evidencing an employer’s pattern and practice of discriminatory conduct, which “may be helpful to a determination of whether” the alleged discriminatory act against the plaintiff “conformed to a general pattern of discrimination against” members of a protected group. Id. at 805, 93 S.Ct. at 1825, 36 L.Ed.2d at 679. Although statistics are “of probative value in an individual discrimination case for the purpose of showing motive, intent, or purpose,” that evidence is “not determinative of an employer’s reason for the action taken against the individual grievant.” Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir.1972). It may well be questionable whether in an action grounded on a classic unequal pay for equal work claim, such statistics could ever suffice to make a prima facie case, if the proofs were otherwise insufficient, for purposes of an individual Equal Pay Act or" }, { "docid": "1175034", "title": "", "text": "Plaintiff in this action alleges that defendant, in violation of 42 U.S.C. § 2000e, et seq., and § 1981, reprimanded and transferred plaintiff to another department because of his race; maintained segregated job classifications on the basis of race; refused to promote plaintiff because of his race; retaliated against plaintiff for opposing discriminatory pay practices made unlawful by Title VII; and constructively discharged plaintiff because of his race. 5. This Court concludes that plaintiff has failed to establish that defendant has discriminated against him in employment because of his race. 6. In order to establish a prima facie case of discrimination, thereby shifting the burden to defendant to justify the challenged action or practice by showing its legitimate business necessity, it is necessary for plaintiff to show that he belongs to a racial minority, that he applied for and was qualified for a job opening, that he was rejected, and that the employer continued to seek applications for the opening. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the case of a failure to promote, it has been held that a prima facie ease can also be made by showing “. . . (i) that plaintiff belongs to a racial minority, (ii) that he was qualified for promotion and might have reasonably expected selection for promotion under the defendant’s on-going competitive promotion system, (iii) that he was not promoted, and (iv) the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against members of the involved minority.” Pettit v. United States, 488 F.2d 1026, 1033, 203 Ct.Cl. 207 (1973). See Taylor v. Safeway Stores, Inc., 365 F.Supp. 468 (D.Colo.1973). Statistics may also be used to support an individual claim of discrimination. McDonnell Douglas Corp. v. Green, supra. However, statistics are not “. . .a determinative factor in an individual, as opposed to a class action.” Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975). 7. The Eighth Circuit in Green v. Missouri Pacific R.R., 523 F.2d 1290" }, { "docid": "16742205", "title": "", "text": "Cir.2008)). The requisite showing creates a presumption of unlawful discrimination, rebuttable through the showing of a legitimate nondiscriminatory reason for the action. Id. Then, the plaintiff may still demonstrate the employer’s proffered reason was pretextual and unlawful discrimination was a motivating factor in the adverse employment decision. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860-61 (8th Cir.2009). Tyler’s gender discrimination claim suffers from the same — if not greater — infirmities as his claim of retaliation. First, Tyler cannot establish causation between his gender and the University’s refusal to hire. Second, he cannot get past the nondiscriminatory explanation offered by the University for its choice. And third, even if nondiscriminatory explanation were a pretext, Tyler has not offered any evidence to suggest the University discriminated against him on the basis of gender. Pausing briefly on the latter issue, we concede the two top contenders for the job happened to be female. However, because the sample consists of only six applicants, this is not the type of statistical disparity that can support an inference of discriminatory intent. Compare Meyer v. Missouri State Highway Comm’n, 567 F.2d 804, 810 (8th Cir.1977) (finding intentional sex discrimination where none of the department’s 2,000 employees were females), with Eubanks v. Pickens-Bond Constr. Co., 635 F.2d 1341, 1350 (8th Cir.1980) (ten finishers proved to be too small a sample to infer intentional discrimination from the statistical disparities in promotion of finishers); see generally Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir.1975) (stating that “statistical evidence derived from an extremely small universe ... has little predictive value and must be disregarded”). Moreover, the record shows that six out of the nine members on the OOP’s Executive Committee were men. Far from supplying the evidence that his gender was a “motivating” factor in the University’s decisionmaking, Tyler does not produce a shred of evidence that would tip the scales in favor of finding gender discrimination. Accordingly, the district court did not err in rejecting this claim on the merits. Ill For these reasons, we affirm. . The Honorable J. Leon" }, { "docid": "9378860", "title": "", "text": "matter of law on Siler-Khodr’s claims alleging violations of Title VII and the EPA. Title VII states that it is unlawful “to discriminate against any individual with respect to his compensation ... because of such individual’s sex.” 42 U.S.C. § 2000e-2(a). Hence, a Title VII claim alleges “individual, disparate treatment.” Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1135 (5th Cir.1983). Because the facts in a particular Title VII case will differ, the evidence necessary to prove a prima facie case of discrimination under Title VII will vary. Id. However, this Court has noted that although a plaintiff may present: statistics evidencing an employer’s pattern and practice of discriminatory conduct, which “may be helpful to a determination of whether” the alleged discriminatory act against the plaintiff “conformed to a general pattern of discrimination against” members of a protected group .... that evidence is “not determinative of an employer’s reason for the action taken against the individual grievant.” Id. (citing McDonnell Douglas Coty. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir.1972)). In contrast, the EPA has a higher threshold, requiring that an employer not discriminate “between employees on the basis of sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). In short, it demands that equal wages reward equal work. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Once a plaintiff has made her prima facie case by showing that an employer compensates employees differently for equal work, the burden shifts to the defendant to “prove by a preponderance of the evidence that the wage differential is justified under one of the four affirmative defenses set forth in the Equal Pay Act: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any other factor than sex.” Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th" }, { "docid": "3146639", "title": "", "text": "“dear” and “honey” innocuously in a work environment. It is not disputed that the law forbids use of neutral policies having discriminatory impact upon blacks. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The Court, however, refuses to conclude that such is the case herein. The Court has been unable to find, and counsel was not presented, any cases in which a court found discrimination in a situation analogous to the one herein. Every cultural and racial group, indeed every individual, has idiosyncracies peculiar to it. Not every action of a member of a minority can be viewed as a minority characteristic deserving of protection under the law. The goal of 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981 is equality under the law, not the protection of minorities against the imposition of standards of conduct for employees. Accordingly, the Court con- eludes that the determination to discharge plaintiff while a probationary employee in part because plaintiff used the terms “babe” and “honey” in referring to other female employees does not constitute discrimination under the law. Plaintiff also contends that the use of subjective criteria, in reaching the decision to discharge him, is racially impermissible. While subjective criteria must be closely scrutinized by the courts, United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973), plaintiff’s sole argument in this regard is the consideration by Ms. Moody of the comments of the female employees. One comment was interfering with the performance of another employee’s job. The import of the comments concerning modes of address was not discussed by Ms. Moody but the Court presumes that the employee found such terms of address to be offensive. The Court concludes that consideration of these remarks was not discriminatory herein. The close scrutiny required does not compel a conclusion of discrimination. Ms. Moody had several reasons for determining that plaintiff should not be retained and the Court finds that none of these reasons had a discriminatory basis or impact under the circumstances of this case. Judgment will be entered for defendant." }, { "docid": "9854097", "title": "", "text": "her the position of quality control chemist. See Finding of Fact No. 13. It is a factual finding of this court that even though the plaintiff was assigned a lower grade, for a short period of time, her performance review and salary increase were based upon her previous grade. In addition, within a four month period the plaintiff was promoted and restored to her previous grade. See Finding of Fact No. 15. Therefore, the plaintiff’s initial reassignment will not be considered a demotion that needs to be addressed separately by this court. The plaintiff’s transfer to the research and development department will be discussed in the context of the plaintiffs retaliation claim. . The plaintiff introduced into evidence a substantial number of general statistics in an attempt to prove that the defendant discriminated against her on the basis of sex. The Eighth Circuit has held: Although statistical evidence of a pattern or practice of discrimination is of probative value in an individual discrimination case for the purpose of showing motive, intent, or purpose, cf. Marquez v. Omaha District Sales Office, Ford Division of Ford Motor Co., 8 Cr. 1971, 440 F.2d 1157, it is not determinative of an employer’s reason for the action taken against the individual grievant. King v. Yellow Freight System, 523 F.2d 879, 883 (8th Cir.1975) (citing Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir.1972). See also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1255 (8th Cir.1980) (demographic statistics are helpful in establishing a pattern or practice of discrimination; however, without additional evidence the connection between the statistics and employer’s acts are too attenuated to compel a finding of discriminatory motive). It is the belief of this court that the plaintiff ultimately failed to make out a case because she failed to prove by a preponderance of the evidence that the defendant was motivated by a discriminatory intent." }, { "docid": "3146637", "title": "", "text": "use of a fork-lift without her permission and a discussion with plaintiff about the propriety of his paycheck. 11. Plaintiff did not testify. Nor did he present any evidence regarding employment since the date of discharge. Defendant’s evidence tended to show that plaintiff had earnings since discharge of approximately $7,000.00 and additionally that plaintiff had received unemployment compensation benefits during this period. 12. Ms. Moody’s decision to discharge plaintiff was not based, in whole or in part, upon plaintiff’s race. CONCLUSIONS OF LAW This Court has jurisdiction over the subject matter and parties to this action in accordance with 42 U.S.C. § 2000e et seq. and 28 U.S.C. § 1343. This Court has found that plaintiff was not discharged because of his race. Plaintiff argues that the statistical evidence establishes a prima facie case of discrimination, thus shifting the burden to defendant to justify its use of subjective criteria in connection with the retention or dismissal of probationary employees. The Court disagrees. At the outset, the Court notes that the pool of probationary employees, from which the statistics must be drawn, is too small to have predictive value. Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir. 1975). Additionally, in King v. Yellow Freight Systems, Inc., 523 F.2d 879 (8th Cir. 1975), the court stated that statistical evidence in an individual discrimination suit may be useful to show motive, intent or purpose but “is not determinative of an employer’s reason for the action taken against the individual grievant”. Id. at 882, citing Terrell v. Feldstein Company, Inc., 468 F.2d 910, 911 (5th Cir. 1972). Thus, the Court concludes that the statistical evidence offers no support for plaintiff’s claim. Plaintiff also claims that since Ms. Moody’s decision was based in part on plaintiff’s use of “babe” and “honey” in reference to another female employee, the decision was discriminatory as a matter of law. See Marquez v. Omaha District Sales Office, 440 F.2d 1157 (8th Cir. 1971). Plaintiff supports this claim with the testimony of Dr. Robert Williams who testified that blacks are more likely to use terms such as" }, { "docid": "17790469", "title": "", "text": "of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396, 417 (1977) (“ ‘statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue”); Corley v. Jackson Police Dep’t., 566 F.2d 994, 999-1001 (5th Cir. 1978) (under McDonnell Douglas, evidence of a history of racial discrimination by the defendant “is not merely collateral; it is an indispensable element of the plaintiffs burden of proof and must be confronted by the district court in finding for either party”); Terrell v. Feldstein Co., Inc., 468 F.2d 910, 911 (5th Cir. 1972) (“statistical evidence of a pattern or practice of discrimination is of probative value in an individual discrimination case for the purpose of showing motive, intent, or purpose”); King v. Yellow Freight Sys. Inc., 523 F.2d 879, 882 (8th Cir. 1975) (same); Marquez v. Omaha Dist. Sales Office, 440 F.2d 1157, 1160-1161 (8th Cir. 1971) (“[w]hile this case was not tried as a typical pattern discrimination case, the past record of [the defendant’s] actual experience in hiring members of a minority race . . . may be considered in evaluating plaintiffs claim of discrimination as to him”); Carey v. Greyhound Lines, Inc., 380 F.Supp. 467, 472 (E.D.La.1973) (“[t]here is no merit to [defendant’s] suggestion that statistical evidence is of no probative value in an individual’s Title VII case”). Cf. Bobb v. Andrus, 430 F.Supp. 522, 523 (D.D.C.1977) (if the case had been a class action, statistical evidence presented would have been most relevant and convincing; even though case at bar is individual suit, all evidence presented had been considered). . See notes 27-31 infra and accompanying text. See also Weathers v. Peters Realty Corp., supra note 15, 499 F.2d at 1201-1202 (“[i]n cases construing [the Fair Housing Act] statistics have often been used to aid in establishing the existence of racial discrimination”). Smith v. Anchor Bldg. Corp., supra note 10, 536 F.2d at 234 — 235 & nn.2 & 7 (“[e]vidence of the experience of checkers [persons posing as apartment applicants] has been" } ]

[ { "docid": "12292385", "title": "", "text": "be supplemented or supplanted by varying state laws. 481 U.S. at 56, 107 S.Ct. at 1557. Claims relating to ERISA plans must therefore invoke the specific remedies of ERISA § 502, 29 U.S.C. § 1132 (1982 & Supp. V 1987). Appellants’ second point of attack is that this circuit permits “state-law claims [to be] recharacterized as federal claims if federal law ‘provides both a superseding remedy replacing the state law cause of action and preempts that state law cause of action.’ ” Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.1986) (quoting Williams v. Caterpillar Tractor Co., 786 F.2d 928, 932 (9th Cir.1986), aff'd, 482 U.S. 386, 391, 107 S.Ct. 2425, 2425, 96 L.Ed.2d 318 (1987)). They then assert that Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), authorizes the federal courts to develop a “federal common law of rights and obligations under ERISA-regulated plans.” Id. 109 S.Ct. at 954 (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987)). Accordingly, they suggest that the Supreme Court intended to authorize a “federal common law for ERISA” by permitting ordinary common law claims. We are not convinced. Courts confronting claims analogous to those raised by the pilots in this case have uniformly held them preempted by ERISA. See Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985) (holding that state common law claims for breach of contract and implied contract, promissory estoppel, estoppel by conduct, and fraud and deceit are preempted under ERISA); see also Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1215-16 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981) (holding that “[i]f Congress has already provided a remedy for the violation of the former executives’ benefit plans, then once Congress has expressed its intention to occupy the field, the state law is preempted, regardless of whether or not a conflict exists which involves a direct interference by" } ]

[ { "docid": "23352277", "title": "", "text": "for whose benefit the legislation was intended [plan participants and beneficiaries], and clearly, ERISA was enacted to protect plan participants and beneficiaries, not former fiduciaries such as Sovran. 29 U.S.C. § 1001. Such an analysis is too simplistic, however, for the problem before us. Here, we are not dealing with the usual “right of action”, and it would be misleading to so characterize a defendant’s right of contribution. A plaintiff who brings an action does not care whether the defendant has a right of contribution against others, as long as the plaintiff recovers the amount to which he is entitled. Contribution deals with allocating obligations among co-defendants and/or third parties. The “right of action” for contribution is no more than a procedural device for equitably distributing responsibility for plaintiff’s losses proportionally among those responsible for the losses, and without regard to which particular persons plaintiff chose to sue in the first instance. The four tests of Cort v. Ash are not well-designed to ferret out congressional intent at this level of dispute resolution. The next question, whether federal courts have power to fashion a federal common law under ERISA, need not detain us very long. The Supreme Court has left no doubt that “courts are to develop a ‘federal common law of rights and obligations under ERISA-regulated plans.’ ” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987)). It has stated: “ERISA abounds with the language and terminology of trust law. * * * ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions, 29 U.S.C. §§ 1101-1114, ‘codify and make applicable to ERISA fiduciaries certain principles developed in the evolution of the law of trusts.’ ” Firestone, 489 U.S. at 110, 109 S.Ct. at 954 (citations omitted). See also Donovan v. Bierwirth, 754 F.2d 1049, 1055 (2d Cir.1985) (“We thus look to principles developed under the common law of trusts, which in large measure remain applicable under ERISA.”); Eaves v." }, { "docid": "11808488", "title": "", "text": "written plan would no longer be the benchmark in an action under ERISA. Id. at 56. Similarly, in Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992), we held that “resort to federal common law generally is inappropriate when its application would conflict with the statutory provisions of ERISA, discourage employers from implementing plans governed by ERISA, or threaten to override the explicit terms of an established ERISA benefit plan.” This is so because ERISA demands adherence to the written terms of an employee benefit plan.... Federal common law does not provide a backdoor through which these statutory requirements may be evaded, and attempts to import state common law principles such as equitable or promissory estoppel to alter and undermine written obligations have been consistently rebuffed by the courts. Id. at 1453-54 (Wilkinson, J., concurring). I have no quarrel with any of these prior decisions in their proper context. However, here the Plan was created subsequent to the contract, so no such Plan existed when the contract came into existence. Hence, no comparison of the two was possible. The contract when made could not threaten the integrity of the written plan. Moreover, the contract in no way departed from Cone Mills’ intention to create a binding obligation. Only the determination of the date as of which the surplus should be valued was in issue. I have attempted to demonstrate that the result is that same whichever date is used to value the surplus: $69,000,000 less $54,796,638. We have recently recognized that, in enacting ERISA, Congress “intended that the courts would develop a federal common law of rights and obligations under ERISA-regulated plans.” Id. at 1452 (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)) (quotations and internal citations omitted); see also Holland v. Burlington Indus. Inc., 772 F.2d 1140, 1147 n. 5 (4th Cir.1985) (Congress intended for courts to borrow from state law when appropriate in fashioning federal common law to govern ERISA), aff'd sub nom. Brooks v. Burlington Indus. Inc., 477 U.S. 901, 106 S.Ct. 3267, 91" }, { "docid": "22857994", "title": "", "text": "as Statewide directors as well as ESOP fiduciaries made impartial decision-making regarding whether to pursue an action on behalf of the ESOP impossible. See infra, at 572-73. Moreover, -unlike the situation in Struble, the Committee’s investment decision was squarely in keeping with the purpose of all ESOP plans. While Struble does not directly control, we must inquire whether its reasoning properly may be expanded to the facts here after Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), a case in which the Supreme Court addressed the standard of review governing claims for benefits under 29 U.S.C. § 1132(a)(1)(B). We turn to that case now. The Firestone Court began its analysis by addressing ERISA decisions borrowing the LMRA standard of review. The Court pointed out-that the arbitrary and capricious standard of review under the LMRA arose in large part because the LMRA did not provide for judicial review of decisions of LMRA trustees. Thus, the courts adopted the deferential standard of review “as a means of asserting jurisdiction over suits under § 186(c) by beneficiaries of LMRA plans who were denied benefits by trustees.” Id. at 109, 109 S.Ct. at 953. ERISA, on the other hand, explicitly authorizes private causes of action. Therefore, “the raison d’etre for the LMRA arbitrary and capricious standard ... is not present in ERISA.” Id. at 110, 109 S.Ct. at 954. However, after declining to 'apply the LMRA caselaw, the Firestone Court did not assume that the strict standards of ERISA necessarily should be applied in a de novo fashion. To the contrary, the Court proceeded’to point out that “ERISA abounds with the language and terminology of trust law” and that “ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions ... ‘codif[y] and mak[e] applicable to [ERISA] fiduciaries certain principles developed in the evolution of the law of trusts.’ ” Id. (citation omitted) (ellipses added). The Court previously had interpreted the statute and its legislative history as authorizing courts to develop a “ ‘federal common law of rights and obligations under ERISA-regulated plans,’ ” id. (quoting" }, { "docid": "23352278", "title": "", "text": "question, whether federal courts have power to fashion a federal common law under ERISA, need not detain us very long. The Supreme Court has left no doubt that “courts are to develop a ‘federal common law of rights and obligations under ERISA-regulated plans.’ ” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987)). It has stated: “ERISA abounds with the language and terminology of trust law. * * * ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions, 29 U.S.C. §§ 1101-1114, ‘codify and make applicable to ERISA fiduciaries certain principles developed in the evolution of the law of trusts.’ ” Firestone, 489 U.S. at 110, 109 S.Ct. at 954 (citations omitted). See also Donovan v. Bierwirth, 754 F.2d 1049, 1055 (2d Cir.1985) (“We thus look to principles developed under the common law of trusts, which in large measure remain applicable under ERISA.”); Eaves v. Penn, 587 F.2d 453, 462-63 (10th Cir.1978) (“In developing a law of remedies, the Congress intended the federal courts to draw on principles of traditional trust law.”). We thus hold that the federal courts have been authorized to develop a federal common law under ERISA, and in doing so, are to be guided by the principles of traditional trust law. We must next determine whether traditional trust law provides for a right of contribution among defaulting fiduciaries. Indisputably, it does. Chemung and Fairway do not seriously contend to the contrary, nor could they, because the right of contribution among co-trustees has been for over a century, and remains, an integral and universally-recognized part of trust doctrine. See Restatement (Second) of Trusts § 258 (1959); Bogert, The Law of Trusts and Trustees, § 701 (2d ed. rev. 1982) (citing Perry v. Knott, 4 Beav. 179 (1842); Sherman v. Parish, 53 N.Y. 483 (1873)). We thus conclude that the traditional trust law right to contribution must also be recognized as a part of ERISA. By so concluding," }, { "docid": "1764603", "title": "", "text": "emotional distress). Plaintiff attempts to forestall this result by arguing that his state and common law claims against CDH may be “absorbed” by ERISA and converted into federal claims. In Lea v. Republic Airlines, Inc., 903 F.2d 624 (9th Cir.1990), the Ninth Circuit rejected this very argument. In Republic Airlines, five former airline pilots challenged as violative of ERISA an agreement in which the retirement plan to which they belonged was terminated. In addition, the pilots claimed that their former employer had committed negligence and fraud and breached its contract with them in entering into the termination agreement. Notwithstanding ERISA’s preemption of their state-law claims, the pilots claimed that such claims may be “recharacterized as federal claims if federal law provides both a superseding remedy replacing the state law cause of action and preempts that state law cause of action,” and accordingly urged the appellate court to make good on the Supreme Court’s promise in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) to develop a federal common law of rights and obligations under ERISA-regulated plans. Id. 903 F.2d at 632, (citations omitted). In rejecting this argument, the Republic Airlines court concluded that the Supreme Court’s ruling in Pilot Life, supra, does not permit state law claims in addition to those actionable under ERISA. Moreover, the federal common law that the court envisioned in Firestone Tire relates to rights and obligations under the ERISA plan and not to causes of actions specifically rejected by the court in Pilot Life and Metropolitan Life Insurance Company v. Taylor. Republic Airlines, supra, at 632 n. 11. For the reasons explained in Republic Airlines, the plaintiffs “absorption” argument here must also fail. Accordingly, CDH’s motion to dismiss for failure to state a claim is granted. Conclusion For the reasons stated above, the plaintiffs motion to remand is denied, and CDH’s motion to dismiss is granted. The plaintiff’s pendent state law claim against Dr. Podrasky is remanded to the state court for further proceedings. SO ORDERED. . Defendant CDH administers an employee welfare benefit plan for" }, { "docid": "17082769", "title": "", "text": "specifically held that § 502(a)(1)(B) provided for equitable remedies with no right to a jury trial. In asserting the right to jury trial, the Plaintiff argues that his claims involve common law jury issues such as punitive damages and compensatory relief. The Plaintiff relies on Ingersoll-Rand to support the punitive damages claim, and cites the trend toward a “federal common law” for ERISA claims. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. at 56, 107 S.Ct. at 1557; Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989). For reasons discussed above, the punitive damages claim has been dismissed. This leaves Plaintiffs’ claims for lost wages and lost benefits. Based on the 4th Circuit cases of Berry, Quesinberry, and Wise, this Court does not believe there is a right to jury trial on these issues. The majority of courts have held that § 502(a) provides only for equitable relief, and the express language of § 502(a)(3) supports this interpretation. The Court disagrees with Plaintiffs arguments regarding the federal common law. Federal “common law,” as used in Dedeaux and Bruch, still arises from the statutory provisions of ERISA. Since § 502(a) is limited to equitable relief, any federal common law arising from § 502(a) must also be limited to equitable relief. Thus there is no right to jury trial on Plaintiffs aetion for lost wages and lost benefits. Because the relief involved arises in equity, there also is no 7th ■ Amendment issue. Accordingly, this court DENIES Plaintiffs request for a jury trial, and ORDERS that Plaintiffs claim for punitive damages be dismissed." }, { "docid": "3565591", "title": "", "text": "1073, 1075 (7th Cir.1992) (“[A] complaint reciting that the claim depends on the common law of contracts is really based on [ERISA] if the contract in question is. a pension plan_ [A] complaint about pensions rests on federal law no matter what label its author attaches”). “[Federal preemption] knocks out any effort to use state law, including state common law, to obtain benefits under such a plan.” Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 127 (7th Cir.1992). Plaintiff therefore filed an amended complaint in fed eral court that was purportedly based on federal common law: She would like this Court to hold that by sending Mr. Thomason letters apparently referring to continuing life insurance coverage, Aetna waived its right to rely on the express terms of its “extended coverage” provision. This requires the Court to determine whether such common law principles of waiver are applicable in the ERISA context. Analysis That ERISA preempts state law, including state common law, does not mean that all common law concepts are automatically inapplicable in the ERISA context. On the contrary, Congress in passing the statute expected that “a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39; accord Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80; Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275, 281 (7th Cir.1990) (en bane), certiorari denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41. Courts may develop such a federal common law only where ERISA itself “does not expressly address the issue before the court.” Nachwalter v. Christie, 805 F.2d 956, 959 (11th Cir.1986). Where the statute is silent, courts must construct a common law that effectuates the policies underlying ERISA. Black v. TIC Investment Corp., 900 F.2d 112, 114 (7th Cir.1990). In so doing, they may use state common law as a basis for new federal common law, but only to the extent that state law is not inconsistent" }, { "docid": "15753550", "title": "", "text": "dismiss Count Three of the complaint. 3. The Plaintiffs Motion for Summary Judgment The plaintiff asserts that the long-term disability plan, when “properly construed,” provides physical disability benefits for bipolar disorders. (See Pl.’s Mot. for Partial Summ. J. at 12.) The plaintiff advances two theories in support of this assertion. First, she argues that bi-polar disorder constitutes a physical disorder. Second, she argues that the plan’s definition for “mental illness” could mean a disability caused purely by a behavioral disturbance with no demonstrable organic or physical basis. (See PL’s Mem. for Partial Summ. J. at 12-13.) The court will analyze these allegations under ERISA and the “federal common law of rights and obligations under ERISA-regulated plans.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The first step in the analysis of an ERISA action is the so-called “Standard of Review” issue, i.e., the manner in which the court shall review the claim. Mark Ostrich, ERISA Litigation: What to Do About Standard of Revieio?, 38 La. B.J. 327, 327 (1991). In Firestone, the seminal case on the standard of review for deciding ERISA claims, the Supreme Court held that when a plan participant brings suit challenging the denial of benefits, the court must review the decision de novo unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. See Firestone, 489 U.S. at 115, 109 S.Ct. 948. To determine whether the administrator has discretion, the D.C. Circuit has instructed the courts to review the plan documents themselves. See Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1453-54 (D.C.Cir.1992). “(I)t ... need only appear on the face of the plan documents that the fiduciary has been given (the) power to construe disputed or doubtful terms — or to resolve disputes over benefits eligibility— in which case the trustee’s interpretation will not be disturbed if reasonable.” Pitney Bernes, 952 F.2d at 1453-54 (quoting de Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989) (internal quotations omitted)). In Firestone" }, { "docid": "4324376", "title": "", "text": "claim that is only tangentially related to ERISA and, as such, federal jurisdiction does not exist under ERISA’s jurisdictional provisions codified at 29 U.S.C. § 1132. Section 1132(e)(1) extends federal court jurisdiction to “civil actions under [ERISA] brought by the Secretary or by a participant, beneficiary, or fiduciary.” 29 U.S.C.A. § 1132(e)(1) (West 1985 & Supp.1990) (emphasis added). Furthermore, defendant argues, 29 U.S.C. § 1132(a)(3) is the only ERISA provision that extends jurisdiction to a fiduciary. Under § 1132(a)(3), a fiduciary may bring suit only for injunctive or equitable relief— not to recover benefits or monies due. Plaintiff responds that its cause of action is not brought pursuant to § 1132, but is brought pursuant to 28 U.S.C. § 1331 — federal question jurisdiction. Plaintiffs contend that jurisdiction is based upon federal common law, and a claim based upon federal common law can be properly brought under federal question jurisdiction. See Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (section 1331 supports claims brought pursuant to federal common law as well as statutory law). Under ERISA, Congress intended that federal courts create federal common law. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (“Given [ERISA’s] language and history, we have held that courts are to develop a ‘federal common law of rights and obligations under ERISA-regulated plans.’ ”) (quoting Pilot Life Ins. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987)). Thus, a litigant may properly bring a claim, which does not fall under 29 U.S.C. § 1132(a)’s grant of jurisdiction, pursuant to 28 U.S.C. § 1331. See Whitworth Bros. Storage v. Central States, S.E. & S.W. Areas Pension Fund, 794 F.2d 221, 233-36 (6th Cir.1986); Soft Drink Industry Local Union No. 744 Pension Fund v. Coca-Cola Bottling, 679 F.Supp. 743, 744-45 (N.D.Ill.1988) (claim asserting a right created by a federal statute presents a federal question). It must, therefore, be determined whether resolution of this dispute mandates application of federal law to plaintiffs’ contract claim." }, { "docid": "11808523", "title": "", "text": "equitable relief (i) to redress such violations [of this subchap-ter] or (ii) to enforce any provisions of this subchapter or the terms of the plan. 29 U.S.C. § 1132(a)(3)(B) (emphasis added). Thus, the equitable relief which is authorized under this section is limited to (1) redressing or enforcing the provisions of ERISA, or (2) enforcing the terms of a plan. The Supreme Court, interpreting this very provision authorizing “other appropriate equitable relief,” stated that the provision “does not, after all, authorize ‘appropriate equitable relief at large, but only ‘appropriate equitable relief for the purpose of ‘redress[ing any] violations or ... enforcing] any provisions’ of ERISA or an ERISA plan.” Mertens v. Hewitt Associates, — U.S.-,-, 113 S.Ct. 2063, 2067, 124 L.Ed.2d 161 (1993). There is no claim here that there was a violation of ERISA or that the equitable estoppel theory was required to enforce any terms of the plan. In fact, as this court’s opinion notes, the December 15 letter did not constitute a plan or any portion of a plan. Thus, 29 U.S.C. § 1132’s “equitable relief’ provision could not serve as a basis for affording relief to the plaintiffs in this case. Although Congress intended for courts to develop a “federal common law of rights and obligations under ERISA-regulated plans,” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989), this did not give “carte blanche” authority for the courts to develop claims at large. Thus, in relying on 29 U.S.C. § 1132(a)(3)(B) to provide a basis for creating an equitable estoppel claim, the district court also erred. Ill The concurring opinion of Judge Murna-ghan apparently recognizes the difficulties that exist with the district court’s theories, since his opinion does not rest on the authorities cited by the district court. Rather, to support the claim based on the December 15 letter, Judge Murnaghan would fashion a common law theory of promissory estoppel, rather than equitable estoppel, to create a new contractual obligation under ERISA. Under this theory, Judge Murnaghan would have the management bear the obligation to fund" }, { "docid": "2774698", "title": "", "text": "relief” is also plainly answered by the text of the statute, when considered as a coherent whole. We agree with the Nieto court’s reminder that “[permitting recovery of damages under section 502(a)(3) would render section 409(a) superfluous, a result contrary to a fundamental canon of statutory construction.” Nieto, 845 F.2d at 873. Accordingly, we, like the Ninth Circuit, decline to so broadly interpret an isolated section of the statute as to render it inconsistent with the ERISA scheme as a whole. Our accord with the holding in Nieto does not indicate a wholesale adoption of that decision’s rationale. The most important reason for our departure from Nieto is that we now decide this question with the benefit of the Supreme Court’s opinion in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), in which Justice O’Connor explicitly authorized the development of a federal common law under ERISA drawing upon the traditional law of trusts. Citing the trust law principle whereby courts construe trust agreements without deference to the interpretation of either party, the Court held in Firestone that the fiduciary’s termination of benefits to a participant was subject to de novo review. Laying the groundwork for the incorporation of this procedural rule into ERISA, the Court explained: ERISA abounds with the language and terminology of trust law. ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions “co-dif[y] and mak[e] applicable to [ERISA] fiduciaries certain principles developed in the evolution of the law of trusts.” Given this language and history, we have held that courts are to develop a “federal common law of rights and obligations under ERISA-regulated plans.” Id. at 110, 109 S.Ct. at 954 (quoting H.R.Rep. No. 533, 93rd Cong., 2d Sess. 11, reprinted in 1974 U.S.C.C.A.N. 4639, 4649; Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987)) (other citations omitted). The Nieto court proceeded without the benefit of the Firestone opinion and its invitation to the incorporation of procedural trust law principles; not surprisingly, then, Nieto emphasized the restrictive strains" }, { "docid": "4324377", "title": "", "text": "common law as well as statutory law). Under ERISA, Congress intended that federal courts create federal common law. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (“Given [ERISA’s] language and history, we have held that courts are to develop a ‘federal common law of rights and obligations under ERISA-regulated plans.’ ”) (quoting Pilot Life Ins. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987)). Thus, a litigant may properly bring a claim, which does not fall under 29 U.S.C. § 1132(a)’s grant of jurisdiction, pursuant to 28 U.S.C. § 1331. See Whitworth Bros. Storage v. Central States, S.E. & S.W. Areas Pension Fund, 794 F.2d 221, 233-36 (6th Cir.1986); Soft Drink Industry Local Union No. 744 Pension Fund v. Coca-Cola Bottling, 679 F.Supp. 743, 744-45 (N.D.Ill.1988) (claim asserting a right created by a federal statute presents a federal question). It must, therefore, be determined whether resolution of this dispute mandates application of federal law to plaintiffs’ contract claim. If the answer is “yes,” the claim arises under federal law and jurisdiction is proper under § 1331. The only issue involved in this case is the amount of money due to the Fund under the subrogation provision. Defendant admits the validity of plaintiffs’ claim. The sole issue presented is whether plaintiffs’ claim for reimbursement of medical expenses and disability is limited to the jury's award of medical expenses or whether the Fund may be reimbursed from the total amount of the verdict regardless of how the jury apportioned the verdict. In short, the question is whether the subrogation provision covers amounts received from third parties for pain and suffering, disability and disfigurement, and lost earnings. At first blush, the controversy appears to be a state law contract dispute subject to state law rules of interpretation. The Fund, however, is an ERISA regulated plan, and ERISA preempts state laws that “relate to any employee benefit plan.” 29 U.S.C. § 1144(a). State law contract claims are preempted by ERISA when the contract relates to employee benefit" }, { "docid": "2428501", "title": "", "text": "two criteria set forth in Pilot Life. Accordingly, plaintiffs’ claims for “bad faith” set forth in Counts XII and XIII will be dismissed. C. Claims under federal common law Plaintiffs contend that this Court should recognize claims for “tortious breach of contract,” “fraud/misrepresentation,” breach of fiduciary duty, unjust enrichment and conversion under federal common law. Defendant responds that none of these causes of action are cognizable under federal common law because ERISA provides a remedy for the alleged wrongs. Specifically, defendant contends that plaintiffs may assert “equitable, federal common-law breach of contract claim[s] for restitution.” (Defendant’s reply brief at 32). It is well-settled that Congress has authorized federal courts to develop common law under ERISA. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101,110,109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989); Plucinski v. I.AM. National Pension Fund, 875 F.2d 1052, 1056 (3d Cir.1989); Van Orman v. American Insurance Co., 680 F.2d 301, 311 (3d Cir.1982). In Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 146, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96 (1985), however, the Supreme Court explained: The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly. The assumption of inadvertent omission is rendered especially suspect upon close consideration of ERISA’s interlocking, interrelated, and interdependent remedial scheme, which is in turn part of a “comprehensive and reticulated statute.” Id. (emphasis in original). In his concurrence, Justice Brennan criticized these “remarks about the constrictive judicial role in enforcing ERISA’s remedial scheme.” Russell, 473 U.S. at 155, 105 S.Ct. at 3097. Justice Brennan, joined by Justices White, Marshall and Blackman, concluded that “ERISA was not so ‘carefully integrated’ and ‘crafted’ as to preclude further judicial delineation of appropriate rights and remedies; far from barring such a process, the statute explicitly directs that courts shall undertake it.” Id. at 157, 105 S.Ct. at 3098. Despite Justice Brennan’s criticism, however, the Supreme Court has repeatedly suggested that federal courts exercise restraint in developing" }, { "docid": "6910003", "title": "", "text": "263, 265 (E.D.N.Y.1993) (ERISA preempts common-law claims of promissory estoppel, breach of contract, or fraud). Ludwig’s claim for breach of contract is moreover not resuscible under the construct of federal common law. As the above discussion has shown, the expansiveness of ERISA’s preemption clause is so great that it leaves a regulatory vacuum as to the rights and obligations of ERISA plans, fiduciaries, non-fiduciaries, and employees and their beneficiaries where such matters are not directly addressed by the Act. Accordingly, the Supreme Court has held that the courts are to fill in the interstices of ERISA by developing “a federal common law of rights and obligations under ERISA-regulated plans.” Pilot Life, 481 U.S. at 56, 107 S.Ct. at 1558; see also Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24 n. 26, 103 S.Ct. 2841, 2854 n. 26, 77 L.Ed.2d 420 (1983) (“ ‘[A] body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans.’ ”) (quoting 120 Cong.Rec. 29,942 (1974) (remarks of Sen. Javits)); Hashimoto v. Bank of Haw., 999 F.2d 408, 412 (9th Cir.1993) (recharacterizing state cause of action as a federal cause of action in light of the totality of ERISA’s preemption provision) (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67, 107 S.Ct. 1542, 1547-48, 95 L.Ed.2d 55 (1987)). Nevertheless, “[t]he authority of courts to develop a ‘federal common law1 under ERISA is not the authority to revise the text of the statute.” Mertens v. Hewitt Assocs., — U.S. -, -, 113 S.Ct. 2063, 2070, 124 L.Ed.2d 161 (1993) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989)). Further to this point, the Supreme Court has noted that “[t]he six carefully integrated civil enforcement provisions found in [ERISA] § 502(a) ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Metropolitan Mut. Life Ins. Co. v. Russell; 473 U.S. 134, 146, 105 S.Ct. 3085, 3092, 87" }, { "docid": "3565592", "title": "", "text": "context. On the contrary, Congress in passing the statute expected that “a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39; accord Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80; Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275, 281 (7th Cir.1990) (en bane), certiorari denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41. Courts may develop such a federal common law only where ERISA itself “does not expressly address the issue before the court.” Nachwalter v. Christie, 805 F.2d 956, 959 (11th Cir.1986). Where the statute is silent, courts must construct a common law that effectuates the policies underlying ERISA. Black v. TIC Investment Corp., 900 F.2d 112, 114 (7th Cir.1990). In so doing, they may use state common law as a basis for new federal common law, but only to the extent that state law is not inconsistent with congressional policy concerns. Nachwalter, 805 F.2d at 960. “The ultimate objective is not to fulfill policy objectives of state law but to fulfill the congressional command embodied in the language and structure of the federal statute.” Fox Valley, 897 F.2d at 284 (Ripple, J., dissenting). The emerging ERISA common law will not always provide a substitute federal remedy for the preempted state law claim. Pohl, 956 F.2d at 128; Lister v. Stark, 890 F.2d 941, 946 (7th Cir.1989) (“the availability of a federal remedy is not a prerequisite for federal preemption”), certiorari denied, 498 U.S. 1011, 111 S.Ct. 579, 112 L.Ed.2d 584. In this case, if waiver is inapplicable in the ERISA context Mrs. Thomason will be without a remedy for her alleged harms, since her state law claims have been preempted. However, “[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.”" }, { "docid": "9589744", "title": "", "text": "a new federal common law right of recovery under ERISA; i.e., a right under federal common law to deduct from a subrogation lien a pro rata share of attorneys’ fees incurred in pursuing a claim, despite explicit contrary language in the Plan’s subrogation clause. Federal Express appeals the order of the district court granting summary judgment in favor of the Ryans. II. We have jurisdiction pursuant to 28 U.S.C. § 1291. The district court exercised jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132. Our review of the order of the district court granting the Ryans’ motion for summary judgment is plenary. Bixler v. Central Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1297 (3d Cir. 1993). Motions for summary judgment must be granted if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). As there are no material facts in dispute, the disposition of this case rests upon whether the district court was empowered to tailor a common-law rule under ERISA to cover this situation. III. ERISA requires that all employee benefit plans be “established and maintained pursuant to a -written instrument,” 29 U.S.C. § 1102(a)(1), and that plan administrators act consistently with the Plan’s written terms. Plan fiduciaries must discharge their “duties with respect to a plan solely in the interests of the participants and beneficiaries and ... in accordance with the documents and instruments governing the plan----” Id. § 1104(a)(1)(D). It is uncontroverted that the Plan met the requirements of ERISA. It is also undisputed that the Plan administrators did not violate their fiduciary responsibilities. It is well established that federal courts have the power under appropriate circumstances to apply common-law doctrines in ERISA actions. The Supreme Court has instructed federal courts “to develop a ‘federal common law of rights and obligations under ERISA-regulated plans’ ... guided by principles of trust law.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (quoting Pilot Life Ins. Co." }, { "docid": "12520360", "title": "", "text": "the assets of the plan, and does not render investment advice with respect to any money or other property of the plan and has no authority or responsibility to do so. 29 C.F.R. § 2509.75-8 D-2 (1991). Sun Life performed only ministerial functions with respect to the plan. The mere payment of claims is insufficient to give Sun Life discretionary control over the management of plan assets or the administration of the plan. See Associates in Adolescent Psychiatry v. Home Life Ins. Co., 729 F.Supp. 1162 (N.D.Ill.1989). Kenney’s affidavit fails to support the Flacches’ argument; selling Hills an annuity contract does not constitute investment advice. See American Fed’n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assur. Soc’y, 841 F.2d 658 (5th Cir.1988). Sun Life is not a fiduciary under ERISA’s statutory definitions. The Flacches next offer an attenuated argument. They claim that Ohio common law defines a fiduciary as one who has a duty, created by an undertaking, to act primarily for the benefit of another in matters connected with the individual’s undertaking. They believe that this definition reaches Sun Life’s activities in connection with the plan. Further, they argue, ERISA contemplates the evolution of a federal common law of employee benefit plans, and federal common law traditionally is drawn from state common law. Therefore, the Flacches argue, this court should adopt the Ohio common-law definition of a fiduciary as federal common law, controlling under ERISA. This reasoning leads to their conclusion that Sun Life is a common-law fiduciary, under ERISA, with respect to the plan. Even assuming, arguendo, that Sun Life might qualify as a fiduciary under Ohio’s common-law definition, we reject the Flacches’ argument that Sun Life should be here considered a fiduciary by applying Ohio common-law principles. The term “fiduciary” is defined by 29 U.S.C. § 1002(21). Although the Supreme Court has held that courts are to develop a “federal common law of rights and obligations under ERISAregulated plans,” see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989), this directive does not" }, { "docid": "9589745", "title": "", "text": "empowered to tailor a common-law rule under ERISA to cover this situation. III. ERISA requires that all employee benefit plans be “established and maintained pursuant to a -written instrument,” 29 U.S.C. § 1102(a)(1), and that plan administrators act consistently with the Plan’s written terms. Plan fiduciaries must discharge their “duties with respect to a plan solely in the interests of the participants and beneficiaries and ... in accordance with the documents and instruments governing the plan----” Id. § 1104(a)(1)(D). It is uncontroverted that the Plan met the requirements of ERISA. It is also undisputed that the Plan administrators did not violate their fiduciary responsibilities. It is well established that federal courts have the power under appropriate circumstances to apply common-law doctrines in ERISA actions. The Supreme Court has instructed federal courts “to develop a ‘federal common law of rights and obligations under ERISA-regulated plans’ ... guided by principles of trust law.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987)). See also Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257 n. 8 (3d Cir.1993) (“Firestone authorizes the federal courts to develop federal common law to fill gaps left by ERISA.”). In deciding whether it is appropriate to apply principles of federal common law, “the inquiry is whether the judicial creation of a right ... is ‘necessary to fill in interstitially or otherwise effectuate the statutory pattern enacted in the large by Congress.’ ” Plucinski v. I.AM. Nat’l Pension Fund, 875 F.2d 1052, 1056 (3d Cir.1989) (citations omitted). We have admonished district courts that they “should not easily fashion additional ERISA claims and parties outside congressional intent under the guise of federal common law.” Curdo v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235 (3d Cir.1994). As the Supreme Court has explained, “[t]he authority of courts to develop a ‘federal common law' under ERISA ... is not the authority to revise the text of the statute.” Mertens v." }, { "docid": "1644907", "title": "", "text": "411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A.S.G. seeks to dismiss Count I of the amended complaint on the grounds that the only stated cause of action is preempted by ERISA or states a claim not available under ERISA. Likewise, Trigon seeks to dismiss Counts III, IV, and V of the amended complaint on the grounds that these causes of action are preempted by ERISA or seek remedies not available under ERISA. Trigon claims LeBeau’s remedy is limited to an enforcement action under ERISA § 502(a), 29 U.S.C. § 1132(a), a remedy LeBeau alleges in Count II of the amended complaint. Count I: Equitable Estoppel Count I alleges that A.S.G., Le-Beau’s employer, intentionally and knowingly failed to inform LeBeau that Le-Beau’s health plan would be cancelled, and after it was cancelled, failed to inform LeBeau that it had been cancelled. It further alleges that A.S.G. made false representations of material facts with the intent to mislead LeBeau, that A.S.G. knew or should have known LeBeau would reasonably and detrimentally rely upon these misrepresentations, and that LeBeau did in fact rely upon them and suffer damages as a direct and proximate result of such reliance. The parties agree the health plan at issue is an ERISA-regulated plan. When Congress enacted ERISA, it created a federal statutory scheme to govern employee benefit plans. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). However, Congress intended courts to fill in the statute’s gaps by developing a federal common law of rights and obligations under ERISA-regu-lated plans. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Supreme Court and the Fourth Circuit have authorized federal courts to develop this federal common law when ERISA fails to address an issue and the state law governing that issue has been preempted. Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 560 (4th Cir.1994). Although ERISA broadly preempts state laws, courts may look to state" }, { "docid": "1644908", "title": "", "text": "have known LeBeau would reasonably and detrimentally rely upon these misrepresentations, and that LeBeau did in fact rely upon them and suffer damages as a direct and proximate result of such reliance. The parties agree the health plan at issue is an ERISA-regulated plan. When Congress enacted ERISA, it created a federal statutory scheme to govern employee benefit plans. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). However, Congress intended courts to fill in the statute’s gaps by developing a federal common law of rights and obligations under ERISA-regu-lated plans. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Supreme Court and the Fourth Circuit have authorized federal courts to develop this federal common law when ERISA fails to address an issue and the state law governing that issue has been preempted. Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 560 (4th Cir.1994). Although ERISA broadly preempts state laws, courts may look to state common law in fashioning federal common law for ERISA claims. Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992). “Courts must be conscientious to fashion federal common law only when it is ‘necessary to effectuate the purposes of ERISA.’ ” Id. (quoting Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 992 (4th Cir.1990)). One of the purposes of ERISA is “to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Although A.S.G. concedes that federal common law may be applied in certain circumstances when considering ERISA claims, A.S.G. asserts that “the subject of equitable estoppel is not one of those circumstances.” Reply to June C. LeBeau’s Resp. to Mot. of A.S.G., Inc. to Dismiss Am. Compl., at 1-2. A.S.G. is incorrect in its categorical assertion. Multiple federal courts of appeals have determined that, in some circumstances, equitable estoppel principles are applicable in fashioning federal common law for ERISA claims. See" } ]

[ { "docid": "21955394", "title": "", "text": "If so, we decide whether “that right was clearly established such that a reasonable person in the defendant’s position would have known that [his] conduct violated that right.” Christiansen v. City of Tulsa, 332 F.3d 1270, 1278 (10th Cir.2003) (citation omitted). “[W]e need not reach the question of whether the individual defendants are entitled to qualified immunity if we determine, after a de novo review, that plaintiffs failed to sufficiently allege the violation of a constitutional right.” Id. The Graves’ claim against Officer Ford and Chief Thomas in their official capacities is actually a claim against the town of Haskell (Haskell). They allege Haskell’s failure to adequately train and discipline Officer Ford contributed to his eagerness to engage in the high-speed chase. However, as a municipality, Has-kell will not be held liable under § 1983 solely because its employees inflicted injury. Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, to establish municipal liability, a plaintiff must show: 1) the existence of a municipal policy or custom and 2) a direct causal link between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). When the claim is a failure to act, the plaintiff must demonstrate the municipality’s inaction was the result of “ ‘deliberate indifference’ to the rights of its inhabitants.” Id. at 389, 109 S.Ct. 1197. In addition, a municipality may not be held liable where there was no underlying constitutional violation by any of its officers. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). II. Background Haskell, Oklahoma, is a small town of approximately 2,000 people. On November 6, 2000, Josh Ford was hired as a police officer upon the recommendation of Police Chief Thomas. Officer Ford was CLEET certified at the time he was hired and had previously worked as a. deputy sheriff for the Muskogee County Sheriffs Office. Not long after Ford began working as a" } ]

[ { "docid": "4127069", "title": "", "text": "the deprivation of the plaintiff’s constitutional rights. Id., at 590. The court cited as support for the requirement of participation in the unconstitutional act Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The court took the “deliberate indifference” formulation from Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Combining Estelle’s “deliberate indifference” and Rizzo’s “authorization or approval” standards, the court eventually achieved this formulation: If a municipality completely fails to train its police force, or trains its officers in a reckless or grossly negligent manner so • that future police misconduct is almost inevitable, the municipality exhibits a “deliberate indifference” to the resulting violations of a citizen’s constitutional rights. In such a case, the municipality may fairly be termed as acquiescing in and implicitly authorizing such violations. A relevant standard for determining municipal liability under Monell can be drawn from Rizzo: There must be an “affirmative link” between “the adoption of any plan or policy by [a municipality] — express or otherwise — showing [its] authorization or approval of such misconduct” and police misconduct (alleged in this case to be intentional violation of Fourth Amendment rights). However, “deliberate indifference” is not an apt standard for defining the degree of municipal culpability required under Mo-nell. In Estelle v. Gamble, the Court applied the Eighth Amendment in a section 1983 action involving the “government’s obligation to provide medical care for those whom it is punishing by incarceration.” That the Court was particularly directing the standard of “deliberate indifference” to that situation is shown by the court’s conclusion “that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ Gregg v. Georgia, supra, [428 U.S. 153] at 183, 96 S.Ct. at 2925 . . ., [96 S.Ct. 2909, 49 L.Ed.2d 859] proscribed by the Eighth Amendment.” Because this court believes that the “deliberate indifference” standard of Estelle v. Gamble should be confined to Eighth Amendment applications, this court declines to adopt it in fashioning a Monell standard applicable to a police training case. Moreover, this court does" }, { "docid": "20907899", "title": "", "text": "after Ashcroft v. Iqbal: A plaintiff may ... succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also: Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving .force behind the injury of which the plaintiff complains. Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n." }, { "docid": "2259802", "title": "", "text": "the motion to dismiss stage, therefore, the question, is whether the factual allegations contained in the pleading, taken as true, can' plausibly link Greffet’s unconstitutional acts, and CCA’s and/or Hickson’s alleged deliberate or con scious adoption of any plan or policy— express or otherwise. The Tenth Circuit in Dodds v. Richardson gave as an example to illustrate this principle Rizzo v. Goode, where the plaintiff sought to hold a mayor, police commissioner, and other city officials liable under 42 U.S.C. § 1983 for constitutional'-violations that unnamed individual police officers committed. See Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit noted that the Supreme Court in that case found a sufficient link between the police misconduct and the city officials’ conduct, because there was a deliberate plan by some of the named defendants to “crush the nascent labor organizations.” Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371, 96 S.Ct. 598). In a scenario with allegations strikingly similar to Pefia’s, the Honorable Duross Fitzpatrick, United States District Court Senior Judge for the Middle District of Georgia, in Brown v. Smith, 5:05-CV-475 (DF), 2006 WL 1890192 (M.D.Ga. July 10, 2006), concluded that the inmate’s allegations that the defendant “improperly and inadequately trained and supervised his staff, [and] failed to investigate incidents of alleged sexual assaults ...,” sufficiently pleaded facts that would establish violation of clearly established law to overcome the defendant’s assertion of qualified immunity, under § 1983 for the inmate’s alleged sexual assault by a prison guard. 2006 WL 1890192, at *7. Judge Fitzpatrick relied on the Eleventh Circuit’s decision in LaMarca v. Turner, 995 F.2d 1526 (11th Cir.1993), to reason that any reasonable prison or jail supervisor would conclude that his failure to implement training and supervisory measures to prevent sexual assaults by his own employees .... [and] a prison supervisor’s failure to respond to numerous reports signaling an atmosphere within the prison that subjected inmates to the continuous threat of violence, including sexual assault, was unlawful, and could subject him to supervisory liability under § 1983. 2006 WL 1890192, at *7." }, { "docid": "4127068", "title": "", "text": "of culpability a municipality must exhibit in order to be liable under section 1983” for inadequate police training. Recognizing that “a municipality can only act through its high level, supervisory officials,” but that “a municipality cannot be held liable under section 1983 on the theory of respondeat superior,” the court determined that “a municipality may be held liable if it acts ‘directly’ through those officials who set and supervise municipal policy.” The court then reasoned: Because a municipality acts through its high level officials and occupies a supervisory position, this Court may determine the scope of municipal liability by relying upon those precedents which discuss the degree of culpability required under section 1983 by one in a supervisory position. 463 F.Supp. at 589. With respect to the degree of culpability required when supervisory officials are sued under section 1983, the court drew this standard from the precedents considered: [T]he supervisory official must have participated in some way in the alleged constitutional deprivation or acted in such a way as to exhibit a “deliberate indifference” to the deprivation of the plaintiff’s constitutional rights. Id., at 590. The court cited as support for the requirement of participation in the unconstitutional act Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The court took the “deliberate indifference” formulation from Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Combining Estelle’s “deliberate indifference” and Rizzo’s “authorization or approval” standards, the court eventually achieved this formulation: If a municipality completely fails to train its police force, or trains its officers in a reckless or grossly negligent manner so • that future police misconduct is almost inevitable, the municipality exhibits a “deliberate indifference” to the resulting violations of a citizen’s constitutional rights. In such a case, the municipality may fairly be termed as acquiescing in and implicitly authorizing such violations. A relevant standard for determining municipal liability under Monell can be drawn from Rizzo: There must be an “affirmative link” between “the adoption of any plan or policy by [a municipality] — express or otherwise — showing [its]" }, { "docid": "2259731", "title": "", "text": "the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains. Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotations omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise— showing their authorization or approval of such misconduct.’ ” 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). LAW REGARDING FIRST AMENDMENT RETALIATION CLAIMS “Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right.’ ” Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (quoting Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)). It is therefore “settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out.” Hartman v. Moore, 547 U.S. at 256, 126 S.Ct. 1695 (internal citation omitted). In addition to prohibitive laws, the Constitution also proscribes “[g]overnment retaliation ... in as much as retaliatory actions tend to chill individuals’ exercise of constitutional rights.” How v. City of Baxter Springs, 217 Fed.Appx. 787, 797 (10th Cir.2007) (unpublished). In line with Hartman v. Moore, to establish a claim of retaliation for exercising the right to associate guaranteed under the First Amendment, the Tenth Circuit has required a plaintiff establish three, elements: (1) that the plaintiff was engaged in constitutionally protected activity;" }, { "docid": "20907900", "title": "", "text": "itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving .force behind the injury of which the plaintiff complains. Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ” Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). 4. Municipal Liability. A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy , or. custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for" }, { "docid": "2259801", "title": "", "text": "614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). See Gallagher v. Shelton, 587 F.3d at 1069 (noting that supervisors are not liable under 42 U.S.C. § 1983 unless there is “an affirmative link bétween the constitutional deprivation and either the supervisor’s personal participation, [] exercise of control or direction, or [ ] failure to supervise”)(quoting Green v. Branson, 108 F.3d at 1302)(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08. Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at. 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable To the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was. the ‘moving force’ behind the injury alleged.” (emphasis in original)). At the motion to dismiss stage, therefore, the question, is whether the factual allegations contained in the pleading, taken as true, can' plausibly link Greffet’s unconstitutional acts, and CCA’s and/or Hickson’s alleged deliberate or con scious adoption of any plan or policy— express or otherwise. The Tenth Circuit in Dodds v. Richardson gave as an example to illustrate this principle Rizzo v. Goode, where the plaintiff sought to hold a mayor, police commissioner, and other city officials liable under 42 U.S.C. § 1983 for constitutional'-violations that unnamed individual police officers committed. See Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit noted that the Supreme Court in that case found a sufficient link between the police misconduct and the city officials’ conduct, because there was a deliberate plan by some of the named defendants to “crush the nascent labor organizations.” Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371, 96 S.Ct. 598). In a scenario with allegations strikingly similar to Pefia’s, the Honorable Duross Fitzpatrick, United States District Court" }, { "docid": "11211122", "title": "", "text": "See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986). Municipal Liability The Tenth Circuit has recently summarized the law concerning municipality liability under § 1983: A municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, [2037] 56 L.Ed.2d 611 (1978). Rather, to establish municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom, and 2) that there is a direct casual link between the policy or custom and the injury alleged. City of Canton v. Harris, 489 U.S. 378, 385, 103 L.Ed.2d 412, 109 S.Ct. 1197 [1203] (1989). When the asserted policy consists of the failure to act, the plaintiff must demonstrate that the municipality’s inaction was the result of “ ‘deliberate indifference’ to the rights of its inhabitants.” Id. at 389 [109 S.Ct. at 1205]. The district court granted summary judgment to Hinton on the ground that the city’s failure to train its officers or adopt written policies was not the result of deliberate indifference. Given our conclusion that Myer and White’s conduct was not constitutionally excessive, however, we do not need to reach the issue of whether the city acted with deliberate indifference. A municipality may not be held liable where there was no underlying constitutional violation by any of its officers. City of Los Angeles v. Heller, 475 U.S. 796, 799, 89 L.Ed.2d 806, 106 S.Ct. 1571 [1573] (1986); Apodaca v. Rio Arriba County Sheriff's Dept., 905 F.2d 1445, 1447-48 (10th Cir.1990); Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir.1988). In Heller, for example, the Supreme Court held that a jury verdict acquitting a Los Angeles police officer of a charge of excessive force precluded the imposition of liability on the City of Los Angeles for adopting a policy condoning the use of excessive force. The Court reasoned that where a municipality is “sued only because [it was] thought legally responsible” for the" }, { "docid": "22294502", "title": "", "text": "Grandstaff. III. Municipal Liability The City of Borger enjoys governmental immunity from the state tort claim. The liability of the City therefore depends upon the scope of 42 U.S.C. § 1983. There is no respondeat superior liability of a municipality for the negligence, gross or ordinary, of an officer. There must be (1) a policy (2) of the city’s policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.1984) (en banc), cert. denied, — U.S. -, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985); Webster v. City of Houston, 735 F.2d 838 (5th Cir.) (en banc), rev’d. on other grounds, 739 F.2d 993 (5th Cir.1984) (en banc). There was a deprivation of a constitutional right, as held above, when the officers took the life of James Grandstaff without due process of law. And the policymaker for the City is clearly identified; the City does not deny that the police chief was its sole policymaker. Our remaining inquiry is this: was there some policy or custom or action attributable to the police chief that was a cause of Grandstaff’s death? By properly identifying the policy, we decide the inquiry in the affirmative. (a) Inadequate training as cause: In Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Supreme Court held that past constitutional violations by subordinates are not necessarily sufficient to prove a policy of the supervisor causally linked to subsequent constitutional deprivations. The Court could find “no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by [certain named defendants] — express or otherwise — showing their authorization or approval of such misconduct.” Id. at 371, 96 S.Ct. at 604, 46 L.Ed.2d at 569. The Supreme Court has elaborated on the causal requirement by holding that the connection must be more than de facto; the policy must be “the moving force of the" }, { "docid": "2259727", "title": "", "text": "“an affirmative link between the constitutional deprivation and either the supervisor’s personal participation, [ ] exercise of control or direction, or [] failure to supervise.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)). The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at **25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held: Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution.... ” 614 F.3d at" }, { "docid": "2259729", "title": "", "text": "1199. The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal: A plaintiff may [ ] succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Bd. of Cnty. Comm’rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof the third prong has been met also: Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by" }, { "docid": "20907901", "title": "", "text": "8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ” Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). 4. Municipal Liability. A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy , or. custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality’s inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218. LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS The Fourteenth Amendment’s Due Process Clause provides that “no State shall ... deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiffs due process rights and not for third parties’ acts. See Robbins v. Oklahoma, 519 F.3d at 1251 (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). “[NJothing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause" }, { "docid": "4401319", "title": "", "text": "constitutional rights results from a municipal policy, practice, or custom. Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The plaintiff in a § 1983 action must show an “affirmative link” between the occurrence of police misconduct and the municipality’s policy or custom. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); accord Stoneking, 882 F.2d at 731; Agresta, 694 F.Supp. at 122; La Plant v. Frazier, 564 F.Supp. 1095, 1098 (E.D.Pa.1983). If the alleged policy, practice or custom is a failure by the municipality to adequately train its police officers, plaintiff must show that the failure to train amounts to deliberate indifference to the rights. of persons with whom the police come into contact. Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The only employees of defendant Township of Aston who are alleged to have violated plaintiff’s constitutional rights are the fictitiously named police officers John Doe and Richard Roe. Because the complaint has been dismissed as to these fictitiously named defendants, it must also be dismissed as to defendant Township of Aston. A municipality cannot be held liable under § 1983 for violating an individual’s civil rights as a result of a municipal policy or practice unless one of the municipality’s employees “is primarily liable under section 1983 itself.” Williams v. West Chester, 891 F.2d 458, 467 (3rd Cir.1989); accord, Simmons v. Philadelphia, 947 F.2d 1042, 1055-56 (3rd Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992). Thus, the only claims for municipal liability under § 1983 which may possibly be viable are those against the City of Chester. The complaint alleges that defendant City of Chester “as a matter of policy and practice, ha[s], with deliberate indifference failed to adequately discipline, train or otherwise direct police officers concerning the rights of citizens, thereby causing the defendant officers in this case to engage in the unlawful conduct [of falsely arresting and detaining plaintiff].” Complaint If 22. This language seems to state the factors needed to find municipal liability" }, { "docid": "8392654", "title": "", "text": "take the trailer, we would have a different situation; however, this is not the case at hand. Because Smith has not “clearly established” that defendants should have known that they were violating his Fourth Amendment rights against search and seizure nor could it fairly be concluded from the facts that the deputies acted in disregard of his rights, defendants Winkler and Austin are entitled to qualified immunity on both issues of their entry onto the lot and the seizure of the trailer. B. Sheriff Walsh and the Cleveland County Board of Commissioners Smith argues that defendant Walsh in his capacity as sheriff of Cleveland County, along with the Cleveland County Board of Commissioners, should be held liable for the seizure of the trailer. Plaintiff asserts that the seizure “was made under color of law and pursuant to the policies, customs and usages of the Sheriff of Cleveland County.” Response to Motion for Summary Judgment of John Walsh, et al, at 3. “[Municipalities and their supervisory personnel are not liable for civil rights violations caused by individual police officers employed by the municipalities unless the plaintiff demonstrates ‘[a]n affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy — express or otherwise — showing their authorization or approval of such misconduct.’” D.T. v. Independent School Dist. No. 16 of Pawnee County, Okla., 894 F.2d 1176, 1187 (10th Cir.1990) (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976)), cert. denied, 498 U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172 (1990). Thus, there can only be liability if the plaintiff demonstrates a “direct causal link between municipal policy or custom, and the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989). In order to support his claim, Smith does little more than assert that the actions of Austin and Winkler in seizing the trailer were pursuant to official policy. Plaintiffs assertion rests on the basis of Austin’s and Winkler’s references to the practice of" }, { "docid": "2259799", "title": "", "text": "the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255. Thus, a government actor may be liable for the constitutional violations that another committed, if the actor “set[s] in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d at 1046. The Tenth Circuit has explained that § 1983 liability should be “ ‘read against the background of • tort liability that makes a man responsible for the natural consequences of his actions.’ ” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. at 187, 81 S.Ct. 473). The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at **25-26 (citing Dodds v. Richardson, 614 F.3d at 1185). The Tenth Circuit has set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal: A plaintiff may [] succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d at 1199— 1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. At the heart of this three-part test is the requirement that the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by the[ ] [supervisor’s] subordinates and the[] [supervisor’s] ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ”" }, { "docid": "14878662", "title": "", "text": "iii. Failure to train Plaintiff contends that the Borough of Sharpsburg and the Borough of Etna violated Nykiel’s Fourteenth Amendment rights by showing “deliberate indifference” to persons suffering a cocaine overdose, cocaine-induced excited delirium, and seizures by failing to adequately train their officers. Plaintiff further contends that had Officers Duffy and Mitchell been adequately trained to deal with an arrestee who was overdosing on cocaine, they would not have tasered him or allegedly broken his neck. Defendants contend plaintiff has failed to produce any evidence of a policy from the Borough of Sharpsburg or the Borough of Etna that was deliberately indifferent, designed to cause, and actually caused a deprivation of any of Nykiel’s constitutional rights. Defendants also assert that none of plaintiffs experts, including her police procedures expert, Van Blaricom, claims the existence of such a policy in his report. When an action against a municipality is based on Section 1983, the municipality can only be liable when the alleged constitutional violation consists of the implementation or execution of a policy, regulation, or decision that has been officially adopted by the municipality or informally adopted by custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 659, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, although there can be no liability for the municipality based on vicarious liability, it can be held responsible in and of itself when injury is caused by its adopted policy or custom. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citing Monell, 436 U.S. at 694-96, 98 S.Ct. 2018). To establish a Section 1983 claim for a municipality’s failure to train and supervise employees, a plaintiff must (1) identify, with particularity that what the supervisory officials failed to do demonstrates “deliberate indifference,” and (2) [show] a close causal link between the alleged failure and the alleged injury. Daniels v. Delaware, 120 F.Supp.2d 411, 423 (D.Del.2000) (citations omitted); see Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir.1997). A plaintiff alleging failure to train is also required to allege facts “demonstrat[ing] a ‘plausible nexus’ or ‘affirmative" }, { "docid": "2259800", "title": "", "text": "1185). The Tenth Circuit has set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal: A plaintiff may [] succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d at 1199— 1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. At the heart of this three-part test is the requirement that the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by the[ ] [supervisor’s] subordinates and the[] [supervisor’s] ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ” 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). See Gallagher v. Shelton, 587 F.3d at 1069 (noting that supervisors are not liable under 42 U.S.C. § 1983 unless there is “an affirmative link bétween the constitutional deprivation and either the supervisor’s personal participation, [] exercise of control or direction, or [ ] failure to supervise”)(quoting Green v. Branson, 108 F.3d at 1302)(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08. Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at. 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable To the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was. the ‘moving force’ behind the injury alleged.” (emphasis in original)). At" }, { "docid": "2259730", "title": "", "text": "297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Bd. of Cnty. Comm’rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof the third prong has been met also: Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains. Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotations omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise— showing their authorization or approval of such misconduct.’ ” 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). LAW REGARDING" }, { "docid": "9650067", "title": "", "text": "her theory of liability as to the city is direct misfeasance or nonfeasance in failing to train, supervise, and review and discipline members of the police force. Plaintiff further argues that deposition testimony indicates that the city’s conduct is so inadequate as to amount to gross negligence or reckless disregard of public safety and constitutional deprivation. While the allegations in the complaint concerning the city are largely premised on respondeat superior theory, Count V (incorporating Counts I and III which allege violation of § 1983), may be construed to allege the direct liability theories. The Monell Court cited Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), for the principle that a city may not be held vicariously liable. Therefore, although Rizzo involved injunctive relief and not damages as in the instant case, it is relevant in analyzing what actions of the city subject it to liability under § 1983. The Supreme Court in Rizzo held that defendant municipalities and supervisory personnel cannot be found liable for civil rights violations perpetrated by individual police officers absent an “affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by [the defendants]— express or otherwise — showing their authorization or approval of such misconduct.” Id. at 371, 96 S.Ct. at 604. The finding of fact in Rizzo that the instances of police misconduct were not rare or isolated was not enough to establish the “causal connection” between the defendants and the constitutional violations. See also Lewis v. Hyland, 554 F.2d 93, 101 (3rd Cir.), cert. denied, 434 U.S, 931, 98 S.Ct. 419, 54 L.Ed.2d 291 (1977) (an “unfortunate insensitivity” on the part of supervisory personnel to constitutional violations by state police did not establish “causal link” needed to support injunctive relief against supervisors). Thus, according to Monell and Rizzo, to establish municipal liability, a plaintiff must prove either (a) an official policy or custom which results in constitutional violations or (b) conduct by officials in authority evincing implicit authorization or approval or acquiescence in the unconstitutional conduct. Where" }, { "docid": "20907897", "title": "", "text": "at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)). The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held: Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution.... ” 614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983" } ]

[ { "docid": "221594", "title": "", "text": "in bias toward the party.” Burt, 765 F.2d at 1368 (citations omitted); see also United States v. Kelley, 314 F.2d 461, 464 (6th Cir.1963) (holding that the trial judge’s threat to hold the defendant's lawyer in contempt in the presence of the jury was prejudicial and deprived the defendant of a fair trial). . The majority in Sacher also recognized this need for closer scrutiny in circumstances where issuance of the contempt order is deeply intertwined with the judge’s own pride. Specifically, the Court stated: That contempt power over counsel, summary or otherwise, is capable of abuse is certain. Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is heir. Most judges, however, recognize and respect courageous, forthright lawyerly conduct. They rarely mistake overzeal or heated words of a man fired with a desire to win, for the contemptuous conduct which defies rulings and deserves punishment. They recognize that our profession necessarily is a contentious one and they respect the lawyer who makes a strenuous effort for his client. 343 U.S. at 12, 72 S.Ct. 451. . The majority asserts that \"the nature of the specific curative instruction given to the jury to mitigate any prejudice resulting from counsel’s removal” was a \"unique circumstance,” which excepted this case from the general rule of inherent prejudice. Maj. Op. at 521. As discussed later, there is no exception to this general rule. Furthermore, even assuming that instructions could cure the inherent prejudice, the instructions given in this case were clearly insufficient. The District Judge’s vague instruction that the jury was not to draw any inferences against a side to whom an admonition or sanction was imposed by the Court did not address the severity of his statements that Kallins was \"disrespecting” the Court, \"trashing” the United States, and acting like a child. . In Fulminante, the Supreme Court distinguished between cases that involve “trial error,” in which the harmless error rule applies, and cases that involve fundamental \"structural defects”, in which the rule does not apply. 499 U.S. at 307-10," } ]

[ { "docid": "20007919", "title": "", "text": "shooting was over, Bennett was given immediate first aid before being pronounced dead at a nearby hospital. These facts are essentially uncontested. While the result is tragic, we cannot conclude that the officers’ actions were so deficient that no reasonable officer in their position would have made the same choices under these circumstances. In the Fourth Amendment context, the use of deadly force is not excessive if an objectively reasonable officer in the same circumstances would have believed that an individual “posed a ‘threat of serious physical harm either to the officer or others.”’ Young v. City of Providence ex reí. Napolitano, 404 F.3d 4, 23 (1st Cir.2005) (quoting Tennessee v. Garner, 471 U.S. 1, 12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Moreover, “[w]e must remember that the reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Napier, 187 F.3d at 188; see also Anderson v. Russell, 247 F.3d 125, 131 (4th Cir.2001) (holding that an officer did not employ excessive force in shooting a suspect who turned out to be unarmed because, at the time of the shooting, the officer had a reasonable belief that the suspect posed a threat and was armed). In this case, reasonable officers in Wainwright and Baker’s position, faced with an armed mentally ill man, who had already shot at them once, could reasonably believe that they were faced with imminent and grave physical harm that justified resort to deadly force. The fact that officers Wainwright and Baker fired multiple shots at Bennett, and might even have reloaded their weapons, does not change our assessment. In Be-rube we found that the actions of an officer who continued to fire at a suspect after he fell to the ground could not be found “unreasonable” because the officer failed to “perfectly calibrate the amount of force required to protect herself.” Berube v. Conley, 506 F.3d 79, 85 (1st Cir.2007). Rather, we found that the officer made “a split-second judgment in responding to an imminent threat,” and" }, { "docid": "23242264", "title": "", "text": "removed and that a trial judge must exhaust every other possible cure before removing a defendant from the courtroom. But the Allen Court found that the Sixth Amendment does not “so handicap a trial judge in conducting a criminal trial.” Allen, 397 U.S. at 342, 90 S.Ct. 1057. The Court commented that, as inherently onerous as their options are, trial judges might choose to handle obstructive defendants with binding and gagging, contempt citations, or removal of the defendant, without treading on the Constitution. See id. at 344-46, 90 S.Ct. 1057. But the Court did not make removal a last resort. Instead, the Court put its faith in trial courts to choose the best method to maintain the dignity and decorum of the proceedings in a case-by-case fashion, based on the unique circumstances presented by the defendant and the trial, while preserving the rights of criminal defendants. “We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.” Id. at 343, 90 S.Ct. 1057. Ultimately, the Allen Court held that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. See id. That is exactly what occurred here. There was no constitutional error. 3. Rule JpS We now shift gears from the Constitution to the more demanding provisions of Federal Rule of Criminal Procedure 43. The defendants argue that Rule 43 requires that a defendant may be removed only if he is physically present at the beginning of jury selection, is seriously disruptive once, is then warned that further disruptive behavior will result in removal, and then persists in misbehavior. As the defendants read the rule, a trial court may not issue an order" }, { "docid": "8186646", "title": "", "text": "request for habeas relief. iii. Shock Sleeve Ochoa contends he was denied a fundamentally fair mental retardation proceeding because he was forced to wear a shock sleeve during trial. In support of this assertion, Ochoa relies on the Supreme Court’s decision in Deck v. Missouri, which held that “the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is justified by an essential state interest— such as the interest in courtroom security — specific to the defendant on trial.” 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (quotation omitted). The OCCA resolved this issue on the merits on direct appeal, concluding the trial court erred in requiring Ochoa to wear the shock sleeve but the error was harmless. Ochoa, 136 P.3d at 669-70. In so doing, the OCCA specifically concluded the procedural protections animating the Supreme Court’s decision in Deck applied to Oklahoma’s system of holding jury trials to determine the issue of mental retardation. Id. at 669. Nevertheless, the OCCA held Ochoa was not entitled to relief because (1) there was nothing in the record indicating the shock sleeve was visible to the jury and (2) Ochoa did “not claim the shock sleeve prevented him from physically or mentally assisting his counsel at the mental retardation hearing.” Id. at 670. The OCCA’s resolution of this claim is neither contrary to nor an unreasonable application of Deck. As .Deck makes clear, it is the potential impact on the jury of visible restraints that implicates the fundamental fairness of a jury trial proceeding. 544 U.S. passim, 125 S.Ct. 2007 (focusing on the use of “visible” restraints); see also United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir.2000) (refusing to presume prejudice where defendants were forced to wear stun belts at trial, but belts were not visible to jurors); United States v. Baker, 432 F.3d 1189, 1245-46 (11th Cir.2005) (concluding district court’s failure to justify shackling was not an abuse of discretion where, among other things, shackles were not visible to jurors); Mendoza v." }, { "docid": "22443371", "title": "", "text": "because of the public’s competing interest in courtroom security and the just administration of law.” Id. at 722 (citing Illinois v. Allen, 397 U.S. at 344, 90 S.Ct. at 1061). Because of the potential for prejudice, however, due process requires that shackles be used only as a “last resort.” Illinois v. Allen, 397 U.S. at 344, 90 S.Ct. at 1061. In this circuit, it is a denial of due process if a trial court orders a defendant shackled without first engaging in a two-step process. Castillo v. Stainer, 983 F.2d 145, 147-48 (9th Cir.1992), as amended by, 997 F.2d 669 (9th Cir.1993). “First, the court must be persuaded by compelling circumstances ‘that some measure [is] needed to maintain security of the courtroom.’ ” Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.) (quoting Spain v. Rushen, 883 F.2d at 720), cert. denied, 498 U.S. 832, 111 S.Ct. 95, 112 L.Ed.2d 67 (1990). “Second, the court must ‘pursue less restrictive alternatives before imposing physical restraints.’ ” Id. (quoting Spain, 883 F.2d at 721). See also United States v. Baker, 10 F.3d 1374, 1401 (9th Cir.1993). In this case, the state trial court did not abide by either criteria. The state trial court summarily overruled Duckett’s objection to the shackles. There is no indication in the record that the court considered whether any less restrictive alternatives were available and would be adequate. The court’s only stated reason for requiring Duckett to appear in shackles during the penalty phase of the ease was that he had just been convicted of two counts of murder. A defendant’s status as a convicted felon may justify a trial judge’s concern for security. Wilson v. McCarthy, 770 F.2d at 1482. Standing alone, however, this is not sufficient reason to impose physical restraints. Rhoden v. Rowland, 10 F.3d 1457, 1458 (9th Cir.1993). See also State v. Young, 853 P.2d 327, 350-51, 351 n. 97 (Utah 1993) (holding that a murder conviction alone is not a sufficient basis for shackling a defendant at sentencing). In all the cases in which shackling has been approved, there has also been evidence" }, { "docid": "23702405", "title": "", "text": "trial” constitute such an interest. Id. at 633, 125 S.Ct. 2007. Consistent with the principles confirmed in Deck, we have recognized the district court’s legal obligation to consider individualized factors in determining whether to deviate from the general rule prohibiting physical restraints. Hack, 782 F.2d at 868. In particular, the district court should consider “the [defendant’s] record, the crime charged, his physical condition, and other available security measures.” Id. Of course, the “extent to which the security measures are needed should be determined by the trial judge on a case-by-case basis.” Id. We believe that these principles should apply to stun belts because, as numerous circuits have recognized, “[t]he use of stun belts, depending somewhat on their method of deployment, raises all of the traditional concerns about the imposition of physical restraints.” Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir.2003); see, e.g., Durham, 287 F.3d at 1306. If seen or activated, a stun belt “might have a significant effect on the jury’s feelings about the defendant.” Allen, 397 U.S. at 344, 90 S.Ct. 1057. It also challenges “the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id. Put simply, we recognize that requiring a defendant in a criminal trial to wear a visible stun belt, like restraining him with visible shackles, may erode a defendant’s constitutional presumption of innocence. However, despite this potential for prejudice, we have approved the use of a stun belt at trial under certain circumstances. In United States v. McKissick, 204 F.3d 1282 (10th Cir.2000), we found no abuse of discretion in a district court’s refusal to grant a mistrial after the defendant’s attorney learned that his client, who was charged with firearm and drug possession, was forced to wear a stun belt underneath his clothes. Id. at 1286, 1299. We noted that the district court clearly articulated its reasons for the safety measure, including one intimately related to the security of the courtroom — the possibility of gang members seeking to disrupt the trial proceedings. Id. We then reasoned that the belt was inconspicuous and that “there [was]" }, { "docid": "17584608", "title": "", "text": "due process. Nearly all of the litigation concerning shackled defendants arises in the context of proceedings in front of a jury. See, e.g., Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (extending the general prohibition on the use of shackles to the penalty phase of a jury trial); Duckett v. Godinez, 67 F.3d 734 (9th Cir.1995); Jones v. Meyer, 899 F.2d 883 (9th Cir.1990); Spain v. Rushen, 883 F.2d 712 (9th Cir.1989). These cases turn in large part on fear that the jury will be prejudiced by seeing the defendant in shackles. See Deck, 544 U.S. at 630, 125 S.Ct. 2007; Duckett, 67 F.3d at 748; see also Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Thus, the general rule is that a court may not order a defendant to be physically restrained unless the court is “ ‘persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom,’ ” and “ ‘the court must pursue less restrictive alternatives before imposing physical restraints.’ ” Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir.2003) (quoting Duckett, 67 F.3d at 748). In the present case, however, fear of prejudice is not at issue, as a judge in a pretrial hearing presumably will not be prejudiced by seeing defendants in shackles. See United States v. Zuber, 118 F.3d 101, 104 (2d Cir.1997) (“We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors.”). In Deck, the Supreme Court stated that. “[t]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.” Deck, 544 U.S. at 626, 125 S.Ct. 2007. In discussing the “deep roots” of this rule, however, the Court noted that “the rule did not apply at ‘the time of arraignment,’ or like proceedings before the judge.” Id. Presumably, the reason the rule did not apply during proceedings before the judge is that the primary concern, expressed throughout the Court’s opinion, is the effect on" }, { "docid": "23702403", "title": "", "text": "(10th Cir.1986). Freedom from restraint helps to preserve, among other constitutional guarantees, “the due process right to a fair and impartial trial.” United States v. Apodaca, 843 F.2d 421, 430-31 (10th Cir.1988). A district court, however, retains the discretion to take measures to maintain order and security within its courtroom. See Deck v. Missouri, 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (recognizing the “need to give trial courts latitude in making individualized security determinations”); Hack, 782 F.2d at 867 (acknowledging the significant deference given to the trial court in determining whether security measures are necessary regarding a particular defendant). The decision to impose a security measure that physically restrains a defendant during trial “will not be disturbed on appeal unless that discretion was clearly abused.” Hack, 782 F.2d at 867. Nonetheless, because of the various constitutional concerns that flow from such a decision, it triggers “close judicial scrutiny.” Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); see also United States v. Durham, 287 F.3d 1297, 1306 (11th Cir.2002) (applying close judicial scrutiny to the use of stun belts). The standard for determining whether a district court abused its discretion — and, in the process, violated a defendant’s constitutional rights — hinges on the nature and effect of the restraint. For instance, the Supreme Court has deemed visible shackling to be an inherently prejudicial practice, see Deck, 544 U.S. at 635, 125 S.Ct. 2007 (sentencing); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (trial), because it undermines three fundamental legal principles of constitutional origin: (1) the presumption of innocence; (2) a defendant’s ability to participate in his or her own defense; and (3) the dignity of the trial process. Deck, 544 U.S. at 630-32, 125 S.Ct. 2007. Thus, because of the presumed prejudice of visible shackling, id. at 635, 125 S.Ct. 2007, it may only be used when it serves an “essential” interest “specific” to a particular case. Id. at 628, 633, 125 S.Ct. 2007. Security needs or escape risks “related to the defendant on" }, { "docid": "17584607", "title": "", "text": "the defendant. The Supreme Court has held, for example, that an order to deny bail and require pretrial detention cannot effectively be reviewed on appeal. Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Similarly, we have held that involuntary commitment of a defendant is effectively unreviewable on appeal, because there would be no appellate review if the defendant was found not competent to stand trial or acquitted. Friedman, 366 F.3d at 979. We find this case to be analogous. An acquittal in this case would favorably terminate the prosecution of the defendant, but would not affect the deprivation of liberty that occurred during the pretrial hearing. See Sell, 539 U.S. at 176-77, 123 S.Ct. 2174; Friedman, 366 F.3d at 979. Therefore, defendants’ claims are effectively unreviewable on appeal from a final judgment. The district court’s order reviewing the magistrate judges’ determinations is an appealable collateral order. MERITS This court has not decided whether a general policy of shackling a defendant for a proceeding in front of a judge violates due process. Nearly all of the litigation concerning shackled defendants arises in the context of proceedings in front of a jury. See, e.g., Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (extending the general prohibition on the use of shackles to the penalty phase of a jury trial); Duckett v. Godinez, 67 F.3d 734 (9th Cir.1995); Jones v. Meyer, 899 F.2d 883 (9th Cir.1990); Spain v. Rushen, 883 F.2d 712 (9th Cir.1989). These cases turn in large part on fear that the jury will be prejudiced by seeing the defendant in shackles. See Deck, 544 U.S. at 630, 125 S.Ct. 2007; Duckett, 67 F.3d at 748; see also Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Thus, the general rule is that a court may not order a defendant to be physically restrained unless the court is “ ‘persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom,’ ” and “ ‘the court must pursue less restrictive alternatives before" }, { "docid": "20162642", "title": "", "text": "be shackled, and that shackling would impede his ability to walk around while he conducted the trial. We conclude, therefore, that the court did not abuse its discretion when it permitted Cooper to represent himself, and that Cooper must be held to the choice he made. 2. Shackling. The decision whether to shackle a defendant is one that a court must make on grounds that have nothing to do with his right to self-representation. On the one hand, a criminal defendant has the right to a presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); see also United States v. Van Sach, 458 F.3d 694, 699 (7th Cir.2006). The defendant thus has the right to appear before the jury free from restraints or garb that imply that he is a dangerous or guilty person. Allen, 397 U.S. at 344, 90 S.Ct. 1057; Roche v. Davis, 291 F.3d 473, 483 (7th Cir.2002). On the other hand, the Supreme Court has held that “[t]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.” Deck v. Missouri 544 U.S. 622, 626, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The right to be free from visible shackles, however, “may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum.” Id. at 628, 125 S.Ct. 2007. Cooper’s biggest problem with respect to this argument is that he failed to raise it before the district court. Both parties assume that this was a forfeiture, rather than a waiver, and thus that we may review the point for plain error. United States v. Luepke, 495 F.3d 443, 448 (7th Cir.2007). Although the Supreme Court follows a different rule for cases in which a defendant fails to object to prison garb, see Estelle v. Williams, 425 U.S. 501, 512-13, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (holding" }, { "docid": "23702404", "title": "", "text": "1306 (11th Cir.2002) (applying close judicial scrutiny to the use of stun belts). The standard for determining whether a district court abused its discretion — and, in the process, violated a defendant’s constitutional rights — hinges on the nature and effect of the restraint. For instance, the Supreme Court has deemed visible shackling to be an inherently prejudicial practice, see Deck, 544 U.S. at 635, 125 S.Ct. 2007 (sentencing); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (trial), because it undermines three fundamental legal principles of constitutional origin: (1) the presumption of innocence; (2) a defendant’s ability to participate in his or her own defense; and (3) the dignity of the trial process. Deck, 544 U.S. at 630-32, 125 S.Ct. 2007. Thus, because of the presumed prejudice of visible shackling, id. at 635, 125 S.Ct. 2007, it may only be used when it serves an “essential” interest “specific” to a particular case. Id. at 628, 633, 125 S.Ct. 2007. Security needs or escape risks “related to the defendant on trial” constitute such an interest. Id. at 633, 125 S.Ct. 2007. Consistent with the principles confirmed in Deck, we have recognized the district court’s legal obligation to consider individualized factors in determining whether to deviate from the general rule prohibiting physical restraints. Hack, 782 F.2d at 868. In particular, the district court should consider “the [defendant’s] record, the crime charged, his physical condition, and other available security measures.” Id. Of course, the “extent to which the security measures are needed should be determined by the trial judge on a case-by-case basis.” Id. We believe that these principles should apply to stun belts because, as numerous circuits have recognized, “[t]he use of stun belts, depending somewhat on their method of deployment, raises all of the traditional concerns about the imposition of physical restraints.” Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir.2003); see, e.g., Durham, 287 F.3d at 1306. If seen or activated, a stun belt “might have a significant effect on the jury’s feelings about the defendant.” Allen, 397 U.S. at 344, 90 S.Ct. 1057." }, { "docid": "10069716", "title": "", "text": "cited by Stevens do not, however, go so far. They hold instead that a defendant’s general right to be free of restraints in the courtroom is not absolute, but rather it is based on a balancing of the defendant’s right not to be viewed in a prejudicial light by the jury against the court’s need for security. See Deck v. Missouri, 544 U.S. 622, 633, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (noting that although “courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding,” this constitutional requirement “is not absolute” and so a judge may take account of “special circumstances ... that may call for shackling”); Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (holding that “the conspicuous ... deployment of security personnel in a courtroom during trial” must be evaluated on a “case-by-case” basis); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (declining to hold that the binding and gagging of a criminal defendant is unconstitutional “under any possible circumstances”). In keeping with this line of cases, we have described the use of a stun belt as a “method[ ] of restraint that minimize^] the risk of prejudice” because it is hidden beneath a defendant’s clothing. United States v. Brooks, 125 F.3d 484, 502 (7th Cir.1997). Stevens’s final argument is that the district court erred by refusing to permit him to conduct discovery into an alleged pre-trial deal between prosecutors and state witness Tracy Eastin, in which prosecutors were going to give Eastin a letter requesting leniency in exchange for his testimony against Stevens. Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts states that “[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” The district court concluded that discovery" }, { "docid": "7507619", "title": "", "text": "that these statements prove the jury’s awareness of his restraints and that they had an “undeniable effect” on jurors’ perception of him. The Supreme Court has held that three considerations militate against the use of shackles during a criminal trial: (1) the presumption that the defendant is innocent until proved guilty; (2) the right to counsel and to secure a meaningful defense; and (3) a dignified courtroom process. See Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Coffin v. United States, 156 U.S. 432, 458-59, 15 S.Ct. 394, 39 L.Ed. 481 (1895); see also Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The right to a presumption of innocence is relative to other rights, namely the safety of jurors, courtroom personnel, and trial spectators. See United States v. Samuel, 431 F.2d 610, 615 (4th Cir.1970). Thus, the right to freedom of movement in the courtroom is not an absolute, unqualified right, although if the trial judge exercises the discretion to implement safety measures, she must articulate reasons for such actions on the record and outside the presence of the jury. Id.; Brewster v. Bordenkircher, 745 F.2d 913, 916 (4th Cir.1984) (applying rule to state criminal proceedings). Here, because Bell’s substantive claim regarding his being shackled in view of the jury venire was found procedurally defaulted by the Supreme Court of Virginia, I may afford Bell relief only if he shows cause and prejudice sufficient to overcome the default. Bell asserts that his counsel’s ineffectiveness at trial provides adequate cause. However, I may adopt Bell’s reasoning only if I find that the Supreme Court of Virginia, in ruling on the merits of Bell’s ineffective assistance claim, acted contrary to or unreasonably applied clearly established federal law, or unreasonably determined the facts in light of the evidence presented to that court. 28 U.S.C.A § 2254(d). I find that Bell fails to meet his burden. As explained previously, Strickland sets out a two-pronged test for proving ineffective assistance" }, { "docid": "22760824", "title": "", "text": "argument that the jury might be able to see the shackles through a gap between the bunting and the floor, determining that the bunting would effec tively prevent the jury from seeing the leg irons from the jury box. It further stated that there was little chance that the bunting would look out of place in the courtroom, and thus suggest to the jury that it was concealing something of importance, because: (1) the bunting’s color matched the courtroom’s carpeting; and (2) the bunting was placed around the government counsel’s table, too, as well as on the railing that separated both counsel tables from the courtroom gallery. The court concluded that the bunting was as “unobtrusive” as possible given the circumstances and would not arouse the jury’s curiosity as it was not “focused on any one side of the room”. A review of the pertinent case law, including the Supreme Court’s most recent foray into this area in Deck v. Missouri, — U.S.-, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), yields these important principles: First, the decision to use shackles to restrain a defendant at trial should rarely be employed as a security device. United States v. Mayes, 158 F.3d 1215, 1225 (11th Cir.1998). The Supreme Court has observed that “no person should be tried while shackled ... except as a last resort.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Second, the act of shackling a defendant implicates a defendant’s right to a fair trial. Among the important interests implicated by shackling are the presumption that a defendant is innocent until proven guilty, Deck, 125 S.Ct. at 2013, the right of the accused to secure a meaningful defense, id., and the need to maintain a judicial process that is not an affront to the dignity and decorum of the proceeding itself. Id.; Mayes, 158 F.3d at 1225. Third, if a judge intends to shackle a defendant, he must make a case specific and individualized assessment of each defendant in that particular trial. Deck, 125 S.Ct. at 2015. That assessment may include consideration of," }, { "docid": "10069715", "title": "", "text": "be required to wear stun belts in Indiana courtrooms, see Wrinkles v. Indiana, 749 N.E.2d 1179 (Ind.2001), the court concluded that Stevens was not prejudiced by being forced to wear the device because the jurors were not aware that he had it on and because juror testimony at the post-conviction hearing did not indicate that the device had a significant effect on Stevens’s demeanor. The Indiana Supreme Court’s analysis of this claim is not unreasonable. Although the six jurors who testified at the post-conviction hearing stated that Stevens appeared emotionally withdrawn at trial, Stevens also appeared withdrawn in the videotaped confession in which he was not wearing any restraint. It is thus impossible to know whether Stevens’s demeanor at trial was a result of being forced to wear the stun belt or just reflective of his more general state of mind and the emotions he was experiencing in the courtroom. In an attempt to salvage this claim, Stevens contends that the use of a stun belt during a criminal trial is inherently prejudicial. The cases cited by Stevens do not, however, go so far. They hold instead that a defendant’s general right to be free of restraints in the courtroom is not absolute, but rather it is based on a balancing of the defendant’s right not to be viewed in a prejudicial light by the jury against the court’s need for security. See Deck v. Missouri, 544 U.S. 622, 633, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (noting that although “courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding,” this constitutional requirement “is not absolute” and so a judge may take account of “special circumstances ... that may call for shackling”); Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (holding that “the conspicuous ... deployment of security personnel in a courtroom during trial” must be evaluated on a “case-by-case” basis); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (declining to hold that the binding" }, { "docid": "20516528", "title": "", "text": "an attack on La- Fond. The district court did not err when it refused to give this instruction. D. The Constitution Does Not Prohibit the Shackling of a Defendant During a Sentencing Hearing before a District Judge. Widdison argues that the district court abused its discretion when it ordered that his hands remain shackled during his sentencing hearing. Widdison argues that, even though “a jury was not present,” he suffered “an indignity” that “his conduct did not merit”; that “shackling is ‘inherently prejudicial’ ”; and that he was prejudiced because “he was unable to write during the sentencing hearing.” Widdison’s argument fails. The rule against shackling “has deep roots in the common law.” Deck v. Missouri, 544 U.S. 622, 626, 125 S.Ct. 2007, 2010, 161 L.Ed.2d 953 (2005). The common law “forb[ade] routine use of visible shackles during the guilt phase,” and “a version of th[at] rule forms part of the Fifth ... Amendment[s] due process guarantee.” Id. at 626-27, 125 S.Ct. at 2010-11 (citing Illinois v. Allen, 397 U.S. 337, 343—44, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970)). For that reason, the Supreme Court held in Deck that “the Fifth ... Amendment ] prohibits] the use of physical restraints visible to the jury absent a trial court determination ... that they are justified by a state interest specific to a particular trial.” Id. at 629, 125 S.Ct. at 2012. Widdison’s argument fails because his sentencing hearing occurred before only a district judge, not when a jury was present. Blackstone, for example, explained that the common-law rule applied only at trial: [I]t is laid down in our ancient books that, though under, an indictment of the highest nature, [a defendant] must be brought to the bar without irons.... But ... a difference was taken between the time of arraignment and the time of trial; and accordingly the [defendant] stood at the bar in chains during the time of his arraignment. 4 William Blackstone, Commentaries *321 (footnotes omitted); see also Trial of Christopher Layer, 16 How. St. Tr. 94, 100-01 (K.B. 1722) (“No doubt when he comes upon his trial," }, { "docid": "8186629", "title": "", "text": "his custodial status and he should not have been “forced” to proceed at trial in prisoner clothing and the shock sleeve. Ochoa relies upon Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), and argues he was deprived of due process and a fundamentally fair trial when the jury observed him in obvious restraint without being told why he was in custody. The jury’s knowledge that Ochoa was in custody, that he had previously been convicted, and that the proceeding was related to a criminal matter was not violative of Lambert v. State, 71 P.3d 30 (Okla.Crim.App.2003). While evidence relating to his criminal conviction and sentence of death are not relevant to the proceeding, the jury’s knowledge that the proceeding was related to a criminal matter and that Ochoa was in custody and had been convicted of a crime does not create the prejudicial effect Lambert sought to avoid. It is error to compel an accused to appear before a jury in prison clothing where a timely request has been made for civilian clothing. However here, the record shows Ochoa’s decision to appear before the jury in jail dress was his own. He was compelled by no one but himself. We find no Fourteenth Amendment violation where Ochoa himself made the decision to appear in jail dress and no request for civilian clothing appears in the record. Estelle v. Williams, 425 U.S. 501, 512-513, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). . Ochoa’s presence before the jury in the shock sleeve is a more .difficult matter.... The Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to a jury absent a trial court determination, in the exercise of its discretion, that the restraints are justified by a state interest specific to a particular trial. Deck, 544 U.S. at 629 [125 S.Ct. 2007]. The Supreme Court extended this legal principle beyond guilt/innocence proceedings and reversed a death sentence reached by a jury in a trial where a defendant was shackled with leg irons, handcuffs, and a belly chain during the penalty stage of trial. Id." }, { "docid": "4392109", "title": "", "text": "In Crittenden’s subsequent federal habeas proceedings, the district court determined that the shackling was not unconstitutional in light of Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), which clarified that the requirement of considering less restrictive alternatives to shackling was not clearly established Supreme Court law at the time. We agree. Before trial, the court held a hearing to determine whether to implement security measures during the trial. An assistant marshal for the Placer County Sheriffs Office and a criminal investigator for the Butte County District Attorney’s Office testified. After escaping from jail in May 1987, Crittenden entered a house and took the resident at gunpoint, with what was later identified as a toy gun, and forced him to drive to Sacramento, where police apprehended Crittenden. Several months later, Crittenden attempted another escape with two other inmates. Crittenden grabbed a guard and slammed him against cell bars. Additional correctional staff intervened and foiled the attempted escape. Both the assistant marshal and criminal investigator also testified that Crittenden had not had any behavioral problems in his previous court appearances during which security arrangements were limited to physical restraints while he was escorted into the courtroom, which were released when he sat down at counsel table. The criminal investigator testified that he believed Crittenden was an escape risk. The assistant marshal proposed security arrangements for the trial, which included escorting Crittenden into and out of the courtroom in leg irons and handcuffs, outside of the jury’s presence, and placing him in a security chair and using a chain to secure him to the chair when seated at the counsel table. The chain would be hidden by loose clothing and the leg irons and handcuffs would be removed before the jury entered the courtroom. He stated that Crittenden would need to be chained or handcuffed to the security chair to prevent him from being free to move about, but that he intended “not to have Mr. Crittenden appear in any sort of restraints in the presence of the jury,” and that the jury not see the chain. The" }, { "docid": "20162643", "title": "", "text": "hand, the Supreme Court has held that “[t]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.” Deck v. Missouri 544 U.S. 622, 626, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The right to be free from visible shackles, however, “may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum.” Id. at 628, 125 S.Ct. 2007. Cooper’s biggest problem with respect to this argument is that he failed to raise it before the district court. Both parties assume that this was a forfeiture, rather than a waiver, and thus that we may review the point for plain error. United States v. Luepke, 495 F.3d 443, 448 (7th Cir.2007). Although the Supreme Court follows a different rule for cases in which a defendant fails to object to prison garb, see Estelle v. Williams, 425 U.S. 501, 512-13, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (holding that “the failure to make an objection to the court as to being tried in such clothes ... is sufficient to negate the presence of compulsion necessary to establish a constitutional violation”), the overall tenor of Deck (a case in which counsel did object to shackling) suggests that shackling is a much more serious step than the use of prison garb. The Court saw nothing even potentially benign in shackles, nor did it suggest that a jury might feel sympathy rather than fear or aversion for a shackled defendant. In any event, the government made no effort to equate shackling to prison garb in this case, and so we proceed with plain-error review. The Supreme Court’s most recent statement of the plain error standard appears in Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009): ... [Federal] Rule [of Criminal Procedure] 52(b) review — so-called “plain-error review” — involves four steps, or prongs. First, there must be an error or defect — some sort of deviation from a legal rule" }, { "docid": "17599098", "title": "", "text": "2007, then preservation of that dignity is most important when deciding whether a man lives or dies. The sentencing of Comer without such dignity or decorum is unacceptable. Comer’s condition during sentencing also diminished his ability to communicate with his counsel. Not only were his hands bound, but as the jail psychiatrist later testified, Comer was exhausted, which had an unquantified effect on his mental processes. And just as shackles may confuse and embarrass a defendant, so too certainly does being wheeled into a courtroom while nearly naked and exhausted. Finally, with respect to the fifth consideration, Comer suffered physical pain from his visible lacerations. As the foregoing demonstrates, the due process considerations that militate against the routine use of shackles during the trial and sentencing of defendants apply with even greater force to the circumstances under which Comer was sentenced. If those circumstances had been different — if Comer had been handcuffed, yet fully clothed and physically inviolate, when he attended the sentencing — then we would need to inquire further into the reasons for Comer’s condition because even shackling may be justified by special circumstances such as security concerns. Deck, 544 U.S. at 633, 125 S.Ct. 2007; Howard, 429 F.3d at 851. We cannot conceive of any reasonable justification, however, for escorting a naked and bleeding defendant into a courtroom for a capital sentencing hearing. We hold that Comer’s due process rights were violated when he was sentenced while shackled, nearly naked, bleeding, and exhausted. Additionally, the circumstances of Comer’s sentencing were so inherently prejudicial and their impact so difficult to divine from the trial transcript, that, as in the shackling cases, Comer “need not demonstrate actual prejudice to make out a due process violation.” Deck, 544 U.S. at 635, 125 S.Ct. 2007. When life and death are at stake, subjective considerations such as the humanity and dignity of a defendant will always influ ence the sentencing decision, whether it is made by judge or jury. The effect of Comer’s diminished ability to communicate with his counsel, and the mental impact of his nakedness, exhaustion, and shackling, are" }, { "docid": "2303805", "title": "", "text": "“must be limited to cases urgently demanding that action,” id. We have recently underscored that this standard can be translated into two steps that the trial court must take. First, the court must be persuaded by compelling circumstances “that some measure was needed to maintain the security of the courtroom.” Spain, 883 F.2d at 720. Second, the court must “pursue less restrictive alternatives before imposing physical restraints.” Id. at 721; see also Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970) (stating that shackling should only be used as a “last resort”). To satisfy this second requirement, the trial court must begin by “assessing] the extent of the limitations that would be present if shackles were applied.” Spain, 883 F.2d at 721. These limitations include the following: (1) shackles may reverse the presumption of innocence by causing jury prejudice; (2) shackles may impair the defendant’s mental faculties; (3) shackles may impede communication between the defendant and his counsel; (4) shackles may detract from the decorum of the judicial proceeding; (5) shackles may cause pain to the defendant. After considering these factors, the trial judge “must weigh the benefits and [these] burdens of shackling against other possible alternatives.” Id. We agree with the district court below that the state trial judge had ample justification for taking steps to maintain security in the courtroom. According to the trial judge, petitioner was handcuffed to his wheelchair during trial because he had threatened physical injury to a codefendant, the bailiff, and his own counsel. Additionally, the trial judge was aware of Jones’s previous murder conviction, and had also been informed by the bailiff that petitioner had been involved in a jail altercation during jury selection. Petitioner disputed many of these contentions during the evidentiary hearing, but the district court found his testimony unconvincing. The district court’s factual findings aligned with the trial judge’s testimony; they were not clearly erroneous. The only remaining question is whether the trial judge pursued less restrictive alternatives before imposing physical restraints. It seems obvious that he did. The judge decided that the best" } ]

[ { "docid": "22302246", "title": "", "text": "The district court found it unnecessary to make factual findings on whether AED-PA was available to Bryant prior to April 2, 1999. Instead, the district court assumed that the statute of limitations was tolled until April 2, 1999, at which point Bryant undisputedly had access to the text of AEDPA. Because the limitations period expired a year later in April 2000, the district court concluded that the March 2001 habeas petition was time-barred. The district court further determined that equitable tolling was not warranted because Bryant did not pursue his petition with diligence. The district court certified for appellate review “the issue of whether the limitations period of [AEDPA] was tolled by the Arizona Department of Corrections’ failure to provide the petitioner with case law interpreting and explaining the limitations period.” II. STANDARD OF REVIEW We review de novo the district court’s dismissal of a habeas petition as time-barred. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). We review the district court’s findings of fact for clear error. Id. In a claim for equitable tolling, if the underlying facts are undisputed, the question of whether the statute should be equitably tolled is reviewed de novo. Id. III. DISCUSSION A. Statutory Tolling AEDPA established a one-year period of limitations for federal habeas petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1). With exceptions not relevant here, the limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Because Bryant’s direct appeal proceedings ended before AEDPA took effect, the limitations period started running the day after AEDPA’s effective date and expired on April 24, 1997. Patterson, 251 F.3d at 1246; Beeler, 128 F.3d at 1287 (9th Cir.1997). The limitations period is statutorily tolled if the petitioner’s delay was attributable to “[an] impediment to filing an application created by State action in violation of the Constitution or laws of the United States , if the applicant was prevented from filing by such State action.” 28 U.S.C. § 2244(d)(1)(B) (emphasis added). The" } ]

[ { "docid": "22452287", "title": "", "text": "Gaston argues that he is entitled to equitable tolling based on his self-representation on direct appeal and his physical and mental disabilities. “Equitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997), overruled in part on other grounds, Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Kelly), 163 F.3d 530, 540 (9th Cir.1998). Gaston bears the burden of showing that equitable tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.2002). Gaston has not shown any causal connection between his self-representation on direct appeal and his inability to file a federal habeas application. It is true that his failure to file an appellate brief while he represented himself caused his appeal to be dismissed, but he has not shown that his self-representation on appeal caused him to delay filing his federal habeas application. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (petitioner must show that extraordinary circumstances were the cause of his untimeliness). Gaston’s argument based on self-representation is therefore unpersuasive. Gaston’s argument that his physical and mental disabilities constituted an “extraordinary circumstance” is also unpersuasive. The magistrate judge believed, assuming no tolling was available, that the statute of limitations expired on April 23, 1997. On this assumption, the magistrate judge’s report, adopted by the district court, found the following: [Gaston] alleges that he was physically and mentally incapable of filing a petition on time. However, on July 11, 1995, [Gaston] filed a state habeas petition in the California Court of Appeal. Thus it is clear that [Gaston] was physically and mentally capable of preparing and filing a petition on that date. [Ga-ston] filed a state habeas petition in the Los Angeles County Superior Court on June 9, 1997. Thus, [Gaston] was capable of preparing and filing a petition on that date. [Gaston] does not allege that his physical or" }, { "docid": "22382108", "title": "", "text": "a certificate of appealability “as to the issue whether the district court erred by dismissing the petition as untimely under 28 U.S.C. § 2244(d)(1), including the question whether appellant was entitled to equitable tolling.” We also appointed counsel to represent him in this appeal. II. STANDARD OF REVIEW The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo. Brambles, 330 F.3d at 1201. If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Id. Otherwise, findings of fact made by the district court are to be reviewed for clear error. Miles v. Prunty, 187 F.3d 1104, 1105(9th Cir.1999). III. DISCUSSION We have held that the one-year statute of limitations for filing a habeas petition may be equitably tolled if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Brambles, 330 F.3d at 1202. The prisoner must show that the “extraordinary circumstances” were the cause of his untimeliness.” Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.2003) (petitioner entitled to equitable tolling “since prison officials’ misconduct proximately caused the late filing.”). Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000)(holding that the prisoner is required “to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing”). Equitable tolling is justified in few cases, though. “Indeed, the threshold necessary to trigger equitable tolling [under AED-PA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotation marks and citation omitted). Spitsyn “bears the burden of showing that this extraordinary exclusion should apply to him.” Id. Determining whether equitable tolling is warranted is a “fact-specific inquiry.” Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc)). The cases in which we have to date concluded that equitable tolling of the limitations period under AEDPA for filing a habeas petition is appropriate" }, { "docid": "11676397", "title": "", "text": "Tolling Gaston argues that he is entitled to equitable tolling based on his self-representation on direct appeal and his physical and mental disabilities. “Equitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds, Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Kelly), 163 F.3d 530, 540 (9th Cir.1998). Gaston bears the burden of showing that equitable tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.2002). Gaston has not shown any causal connection between his self-representation on direct appeal and his inability to file a federal habeas application. It is true that his failure to file an appellate brief while he represented himself caused his appeal to be dismissed, but he has not shown that his self-representation on appeal caused him to delay filing his federal habeas application. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (petitioner must show that extraordinary circumstances were the cause of his untimeliness). Ga-ston’s argument based on self-representation is therefore unpersuasive. Gaston’s argument that his physical and mental disabilities constituted an “extraordinary circumstance” is also unpersuasive. The magistrate judge believed, assuming no tolling was available, that the statute of limitations expired on April 24, 1997. On this assumption, the Report, adopted by the district court, found the following: [Gaston] alleges that he was physically and mentally incapable of filing a petition on time. However, on July 11, 1995, [Gaston] filed a state habeas petition in the California Court of Appeal. Thus it is clear that [Gaston] was physically and mentally capable of preparing and filing a petition on that date. [Ga-ston] filed a state habeas petition in the Los Angeles County Superior Court on June 9, 1997. Thus, [Gaston] was capable of preparing and filing a petition on that date. [Gaston] does not allege that his physical or" }, { "docid": "22377548", "title": "", "text": "report and recommendation, which the magistrate judge addressed by minute order before the district court ruled on them, the magistrate judge found that Laws’s claims of illiteracy and mental illness “do not make a convincing case for equitable tolling.” Construing the objections as a motion for a hearing, the magistrate judge denied that request. The district court summarily adopted the magistrate judge’s report and recommendation and denied Laws’s request for a certificate of appealability (COA). A judge of this court granted a COA, limited to Laws’s eligibility for equitable tolling or for an evidentiary hearing thereon. II A We review the district court’s denial of habeas corpus for untimeliness de novo. Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001). Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time” and “the extraordinary circumstances were the cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (internal quotation marks and citation omitted). Grounds for equitable tolling under § 2244(d) are “highly fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc). Whether the limitations period for federal habeas should be equitably tolled for Laws depends on whether his mental illness between April 23, 1996 (when AEDPA came into effect) and May 16, 2000 (when he filed his first state habeas) constituted the kind of extraordinary circumstances beyond his control, making filing impossible, for which equitable tolling is available. We hold that the district court abused its discretion by denying the petition without ordering the development of the factual record on Laws’s eligibility for tolling. B We have already held that a “putative habeas petitioner’s mental incompetency [is] a condition that is, obviously, an extraordinary circumstance beyond the prisoner’s control,” so “mental incompetency justifies equitable tolling” of the AEDPA statute of limitations. Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc). We have also suggested that “[t]he firmly entrenched common law right to competence persisting" }, { "docid": "22570433", "title": "", "text": "as a matter of federal law by defining voluntary manslaughter as requiring intent prior to Lasko; and nothing prevented him from preparing and filing a habeas petition at any time. His argument, rather, is that the state court prevented him from prevailing on a federal habeas claim, because, before Lasko, the federal courts would have had to accept the California courts’ understanding of their own law. Shannon’s argument thus calls for an unprecedented extension of the principle of equitable tolling. We have stated, however, that “[e]quitable tolling is justified in few cases,” and that “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Spitsyn, 345 F.3d at 799 (alteration in original). Moreover, just like Shannon’s previous arguments, this argument would open the door for any state prisoner to file a habeas petition anytime a state court issues -a clarification of state law. Such an interpretation cannot be squared with the goals of finality that are central to AEDPA. Shannon is not entitled to equitable tolling. Ill Because Shannon’s petition for writ of habeas corpus was untimely, the district court was correct to dismiss it. We need not reach — and take no position on — -the merits of Shannon’s constitutional claim. The judgment of the district court dismissing the petition as untimely is AFFIRMED. . The prosecution alleged that Shannon acted with malice aforethought because he intended to kill Stack or, in the alternative, behaved with wanton disregard for human life by brandishing a gun he knew was dangerous. The defense argued that the shooting was an accident. . We initially granted the certificate only as to the question of untimeliness, but subsequently expanded it to include the question whether the voluntary manslaughter instruction violated Shannon's constitutional rights. . We review de novo the dismissal of a habeas petition on grounds of untimeliness. See Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir.2003). Legal determinations regarding equitable tolling are- also reviewed de novo. See Malcom v. Payne, 281 F.3d 951, 956 (9th Cir.2002). . Section 2244(d)(1)(B) also requires that the \"impediment”" }, { "docid": "9660777", "title": "", "text": "and requested that Figler address his concerns “with simple communication.” Figler did not respond. On December 20, Gibbs wrote to the Supreme Court again, requesting copies of its order affirming the denial of his petition and the remittitur. Finally, on February 7, 2011, Gibbs wrote to Figler terminating him as counsel and requesting that he return Gibbs’s documents within five days. “By failing to inform me you have put me in a terrible position,” Gibbs wrote. “[U]nskilled in law” and with “little access to a full law library service,” he explained that he now faced the “daunting task” of preparing his own federal habeas petition. Three weeks later, on February 28, Gibbs’s sister acquired a “banker’s box” of files from Fi-gler. Gibbs mailed his federal habeas petition on May 3, 2011, approximately sixty-five days after his sister procured his files from Figler. The Warden moved to dismiss, arguing that Gibbs’s petition was untimely. Gibbs countered that his attorney’s misconduct entitled him to equitable tolling such that the petition was timely. The district court granted the motion to dismiss, ruling that equitable tolling was not merited because Gibbs had “not demonstrated that his counsel was ... incompetent,” but only that “he had trouble communicating with the attorney and that he was not timely informed that his appeal had been decided.” After the district court issued a certificate of appealability on the equitable tolling question, Gibbs brought this appeal. II. We review de novo the dismissal of a federal habeas petition as untimely. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Otherwise, findings of fact made by the district court are to be reviewed for clear error.” Id. (citation omitted) (citing Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner ordinarily has one year from the date his state conviction becomes final to file a habeas corpus petition in" }, { "docid": "22377547", "title": "", "text": "and memorandum in support thereof. The memorandum, evidently prepared by another inmate, argued that Laws’s “psychotic d[y]sfunction” precluded his timely filing. Laws also contended he was able to file his federal and state petitions in 2000-2002 only with the help of a jailhouse lawyer. Attached to the Traverse were, inter alia, Laws’s original verified state petition and 1993-94 psychiatric and medical records. Laws’s petition was referred to a magistrate judge, whose report and recommendation considered Laws’s eligibility for both statutory and equitable tolling. Statutory tolling of the one-year period is available while state collateral proceedings are pending. See § 2244(d)(2). But because Laws did not file his first state petition until after his eligibility for federal habeas had already lapsed, statutory tolling cannot save his claim in the first instance, as the magistrate judge held. The magistrate judge recommended against allowing equitable tolling because “the record does not show that [Petitioner’s] mental problems made it ‘impossible’ for Petitioner to file a habeas petition before the limitations period expired.” In responding to Laws’s objections to the report and recommendation, which the magistrate judge addressed by minute order before the district court ruled on them, the magistrate judge found that Laws’s claims of illiteracy and mental illness “do not make a convincing case for equitable tolling.” Construing the objections as a motion for a hearing, the magistrate judge denied that request. The district court summarily adopted the magistrate judge’s report and recommendation and denied Laws’s request for a certificate of appealability (COA). A judge of this court granted a COA, limited to Laws’s eligibility for equitable tolling or for an evidentiary hearing thereon. II A We review the district court’s denial of habeas corpus for untimeliness de novo. Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001). Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time” and “the extraordinary circumstances were the cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (internal" }, { "docid": "22921146", "title": "", "text": "In fact, he filed without them. This appeal followed. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court’s denial of the habeas corpus petition based upon untimeliness de novo. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003). Moreover, if the underlying facts on a claim for equitable tolling are undisputed, we review the equitable tolling decision de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). “Otherwise, findings of fact made by the district court are ... reviewed for clear error.” Id. DISCUSSION It is undisputed that Battles filed his habeas corpus petition too late unless the transcript delivery delays entitled him to equitable tolling or the delays entitled him to relief on the basis that the facts on which he founds his claims could not have been discovered earlier through the use of due diligence. 28 U.S.C. § 2255(4). A. Equitable Tolling Before we can rule on Battles’ claim for equitable tolling, we must determine whether that doctrine applies to the one year time limitation in § 2255. It does, of course, apply to the time limitation in 28 U.S.C. § 2254. See Spitsyn, 345 F.3d at 799; Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc). However, we have not held that equitable tolling applies to § 2255. See United States v. Schwartz, 274 F.3d 1220, 1224 n. 4 (9th Cir.2001). We do so now. The two sections have the same operative language and the same purpose. We fail to see any reason to distinguish between them in this respect. Other courts of appeals have noted the congruence. See United States v. Riggs, 314 F.3d 796, 799 n. 6 (5th Cir.2002) (holding that for purposes of equitable tolling, the sections are interpreted similarly); Green v. United States, 260 F.3d 78, 82 (2d Cir.2001) (holding that § 2255 is similar to § 2254 and that equitable tolling is similarly available); Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001)" }, { "docid": "22226271", "title": "", "text": "sent to the Arizona prison facility. There is also much in dispute regarding other aspects of the Arizona prison law library. While Trent Axen, the Library Coordinator at the Oregon State Penitentiary, testified about an elaborate series of materials available at the library in Arizona, and about a correspondence system permitting prisoners to request materials not in Arizona, the affidavits submitted by the inmates in Arizona disagree with this on almost every level. Y Because we find that Roy and Kephart have made sufficient allegations regarding their diligence and the extraordinary circumstances they faced while at the Arizona prison, we remand to the district court for an evidentiary hearing on their equitable tolling claim. PETITION GRANTED AND REMANDED. . This court has found equitable tolling potentially warranted in several AEDPA cases, but has focused almost exclusively on whether the relevant \"extraordinary circumstances\" were present rather than whether the habeas petitioner had pursued their rights diligently. See Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir.2003); Spitsyn v. Moore, 345 F.3d 796 (9th Cir.2003); Stillman v. LaMarque, 319 F.3d 1199 (9th Cir.2003); Corjasso v. Ayers, 278 F.3d 874 (9th Cir.2002); Jorss v. Gomez, 311 F.3d 1189 (9th Cir.2002); Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000), Miles v. Prunty, 187 F.3d 1104 (9th Cir.1999); Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283 (9th Cir.1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc). . Of course, we do not hold that a federal Arizona prison facility must employ an Oregon-trained legal assistant, nor do we hold that the lack of such a legal assistant could alone satisfy the \"extraordinary circumstance1’ requirement for equitable tolling. Nevertheless, the fact that Roy timely filed a lawsuit alleging deficiencies in the Arizona facility is evidence of his diligence in trying to secure his rights. We leave for the district court to consider, after an evidentiary hearing, whether any lack of personnel or materials in the Arizona facility constituted a sufficiently \"extraordinary circumstance” such that Roy and Kephart could not timely file their petitions." }, { "docid": "22570432", "title": "", "text": "file the petition on time.” Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir.2003). “Extraordinary circumstances exist when ... wrongful conduct prevents a prisoner from filing.” Id. (internal quotation marks omitted). Equitable tolling has been applied, for example, where the prison library was inadequate, Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc); where the prisoner was denied access to his files, Lott v. Mueller, 304 F.3d 918, 925 (9th Cir.2002); and where an attorney’s egregious misconduct prevented timely filing, Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.2003). Each of the cases in which equitable tolling has been applied have involved wrongful conduct, either by state officials or, occasionally, by the petitioner’s counsel. See Stillman, 319 F.3d at 1202 (9th Cir.2003) (“Extraordinary circumstances exist when ... wrongful conduct prevents a prisoner from filing.” (internal quotation marks omitted)). Moreover, in each case, the misconduct has actually prevented the prisoner from preparing or filing a timely petition. Shannon’s case meets neither of those criteria. He does not argue that the California courts acted “wrongfully]” as a matter of federal law by defining voluntary manslaughter as requiring intent prior to Lasko; and nothing prevented him from preparing and filing a habeas petition at any time. His argument, rather, is that the state court prevented him from prevailing on a federal habeas claim, because, before Lasko, the federal courts would have had to accept the California courts’ understanding of their own law. Shannon’s argument thus calls for an unprecedented extension of the principle of equitable tolling. We have stated, however, that “[e]quitable tolling is justified in few cases,” and that “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Spitsyn, 345 F.3d at 799 (alteration in original). Moreover, just like Shannon’s previous arguments, this argument would open the door for any state prisoner to file a habeas petition anytime a state court issues -a clarification of state law. Such an interpretation cannot be squared with the goals of finality that are central to AEDPA. Shannon is not entitled to equitable tolling. Ill" }, { "docid": "22921145", "title": "", "text": "FERNANDEZ, Circuit Judge. Brian Battles appeals the district court’s denial of his motion to reconsider its sua sponte order dismissing his motion for post-conviction relief on the basis that it was barred by the statute of limitations. See 28 U.S.C. § 2255. We affirm in part, reverse in part, and remand. BACKGROUND Battles was found guilty of drug offenses and was sentenced. We affirmed his conviction, he petitioned the Supreme Court for certiorari, and that petition was denied on October 5, 1998. On October 12,1999, Battles filed for § 2255 relief, but the district court denied the petition sua sponte because it was filed more than one year after the date of denial of certiorari. Battles, then, requested reconsideration on the basis that he had not been able to obtain the trial transcripts from his attorney, who was improperly withholding them and refusing to cooperate. The district court denied the motion on the basis that, as it turned out, Battles did not actually need those transcripts in order to file his petition with the court. In fact, he filed without them. This appeal followed. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court’s denial of the habeas corpus petition based upon untimeliness de novo. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003). Moreover, if the underlying facts on a claim for equitable tolling are undisputed, we review the equitable tolling decision de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). “Otherwise, findings of fact made by the district court are ... reviewed for clear error.” Id. DISCUSSION It is undisputed that Battles filed his habeas corpus petition too late unless the transcript delivery delays entitled him to equitable tolling or the delays entitled him to relief on the basis that the facts on which he founds his claims could not have been discovered earlier through the use of due diligence. 28 U.S.C. § 2255(4). A. Equitable Tolling Before we can rule on Battles’ claim for equitable" }, { "docid": "9660778", "title": "", "text": "motion to dismiss, ruling that equitable tolling was not merited because Gibbs had “not demonstrated that his counsel was ... incompetent,” but only that “he had trouble communicating with the attorney and that he was not timely informed that his appeal had been decided.” After the district court issued a certificate of appealability on the equitable tolling question, Gibbs brought this appeal. II. We review de novo the dismissal of a federal habeas petition as untimely. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Otherwise, findings of fact made by the district court are to be reviewed for clear error.” Id. (citation omitted) (citing Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner ordinarily has one year from the date his state conviction becomes final to file a habeas corpus petition in federal court. 28 U.S.C. § 2244(d)(1)(A). By statute, the limitations period is tolled while a properly filed state post-conviction petition is pending. Id. § 2244(d)(2). Excluding the statutorily tolled period when Gibbs’s post-conviction petition was before the Nevada courts, both parties, and the district court, agree that Gibbs accrued 257 untolled days before the Nevada Supreme Court denied his PCR appeal. Absent equitable tolling, then, Gibbs had 108 days to file his federal habeas petition, with the limitations period expiring October 22, 2010. Gibbs did not file his federal petition until May 3, 2011, 193 days late. AEDPA’s one-year statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A litigant seeking equitable tolling bears the burden of establishing two elements: (1) “ ‘that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). For Gibbs’s" }, { "docid": "22362986", "title": "", "text": "Foster believed Bills was competent to stand trial. B. Magistrate Judge’s Recommendation Based on the testimony and affidavits presented, the magistrate judge recommended the district court deny equitable tolling. The magistrate judge concluded that Bills’s repeated legal filings and his pro se representation in the state trial showed he was competent during the AEDPA limitations period. In addition, the discrepancies between the psychologists’ submissions and testimony and Bills’s demeanor when testifying at the hearing cut in favor of finding Bills competent. The magistrate judge observed, “petitioner on occasion appeared to undermine his own credibility in his effort to convince the court of his deficiencies.” Finding that Bills failed to establish he “was unable by reason of mental defect to understand his need to timely file a habeas petition and unable to take steps to effectuate that filing” (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)), the magistrate judge rejected equitable tolling. The district eourt adopted the magistrate judge’s findings and recommendations in full. We granted a certificate of appealability (COA) on whether the district court applied the correct legal standard in denying equitable tolling. II. Analysis Bills makes two arguments on appeal. First, he argues the district court identified and applied the incorrect legal standard for equitable tolling due to mental deficiencies. Second, Bills challenges the district court’s conclusion that his mental condition was not so severe as to prevent him from filing a timely petition. “The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo. If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Otherwise, findings of fact made by the district eourt are to be reviewed for clear error.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). We review the district court’s finding of competency for clear error. See Comer v. Schriro, 480 F.3d 960, 962 (9th Cir.2007) (en banc) (per curiam). Before addressing Bills’s arguments, we begin with some background principles that" }, { "docid": "22226255", "title": "", "text": "See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc). Equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Beeler, 128 F.3d at 1288 (internal quotation marks omitted). These extraordinary circumstances must be “the cause of [the] untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). A habeas petitioner like Roy or Kephart should receive an evidentiary hearing when he makes “a good-faith allegation that would, if true, entitle him to equitable tolling.” Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir.2003) (emphasis added). Roy and Kephart must demonstrate that they have “been pursuing [their] rights diligently ... [and] that some extraordinary circumstance stood in [their] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). We therefore must first address whether Roy and Kephart made sufficient allegations of diligence to be entitled to an evidentiary hearing, and our precedents do not provide us much guidance regarding what diligence might mean in the AEDPA context. Because both Roy and Kephart filed their habeas petitions pro se, allege specific efforts they pursued in order to file habeas petitions, and because both filed their claims within a reasonable period of time after they were transferred back to the Oregon facility and the extraordinary circumstances were removed, we find that Roy and Kephart presented sufficient evidence of their diligence to warrant an evidentiary hearing. A As an initial matter, we consider it highly relevant that Roy and Kephart were proceeding pro se until appointed counsel by the district court. We must “construe pro se habeas filings liberally.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir.2005); see also Belgarde v. State of Montana, 123 F.3d 1210, 1213 (9th Cir.1997) (“We construe a pro se litigant’s habeas petition with deference.”). Because Roy and Kephart were proceeding pro se, we construe their allegations regarding diligence liberally. It is clear that pro se status, on" }, { "docid": "22423979", "title": "", "text": "• On July 11, 2003, Ramirez was given back his legal work. • On July 31, 2003, Ramirez delivered an extensive fifteen-page motion and four-page declaration in federal district court seeking equitable tolling of the AEDPA limitations period from the time of his attack forward. The motion was filed on August 5, 2003. • On September 30, 2003, Ramirez filed a successful discovery motion in the California Superior Court. • On October 1, 2003, Ramirez was released from administrative segregation and returned to the general prison population. • On December 28, 2003, Ramirez filed a second state habeas petition in California Superior Court. The petition was filed on January 2, 2004 and remained pending in the California courts until March 2, 2005, when the California Supreme Court denied the petition. • On June 14, 2004, Ramirez filed the present § 2254 federal habeas petition. • On September 28, 2006, the district court denied the petition as untimely, rejecting Ramirez’s claims for equitable and statutory tolling; Ramirez timely appealed. II. STANDARD OF REVIEW We review de novo the denial of a § 2254 habeas petition as untimely. See, e.g., Gaston v. Palmer, 417 F.3d 1030,1034 (9th Cir.2005), amended by 447 F.3d 1165 (9th Cir.2006). Underlying findings of fact are reviewed for clear error. Id. III. DISCUSSION A. Equitable Tolling AEDPA sets a one-year statute of limitations for filing a federal habeas petition seeking relief from a state court judgment. 28 U.S.C. § 2244(d)(1). This limitations period is subject to equitable tolling. See, e.g., Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006). To receive equitable tolling, “ ‘[t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.’ ” Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir.2007) (quoting Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir.2006)). The petitioner must additionally show that “ ‘the extraordinary circumstances were the cause of his untimeliness,’ ” id. (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003)), and that the “‘extraordinary circumstances ma[de] it impossible to" }, { "docid": "23021523", "title": "", "text": "would be time-barred under a strict application of Pace, but argued that he was entitled to equitable tolling of the statute of limitations because he relied on controlling Ninth Circuit precedent in waiting to file his federal habeas petition. The magistrate judge issued a report and recommendation concluding that the petition was time-barred and that Harris was not entitled to equitable tolling. The district court adopted the report and recommendation and dismissed Harris’ petition. Harris timely appeals. Ill We review de novo the denial of a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001). The facts underlying this claim for tolling of AEDPA’s limitations period are undisputed. We review de novo whether the statute of limitations should be tolled. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.2005). IV The sole question presented is whether we should strictly apply the Supreme Court’s rule announced in Pace on a retroactive basis, or whether we should grant equitable tolling given Harris’ reliance on our controlling precedent in Dicta-do. We hold that equitable tolling should be granted under these circumstances. A The parties first dispute which standard we should apply to determine whether equitable tolling is justified in habeas cases such as this one. The State refers to our observation that equitable tolling is available only when “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” See, e.g., Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir.2003). Harris argues that the Supreme Court articulated a new and less strict standard in Pace. In Pace, the Supreme Court says that a habeas petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance has stood in his way.” Pace, 544 U.S. at 418, 125 S.Ct. 1807; see also Lawrence v. Florida, — U.S. —, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007). Our cases since Pace have not settled on a consistent standard. Compare, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir.2006) (citing Pace and" }, { "docid": "23326194", "title": "", "text": "equitable tolling of the one-year statute of limitations on habeas petitions.”). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Roberts argues that he has dili gently pursued his rights and that his mental incompetence was an extraordinary circumstance beyond his control that caused his untimeliness. He further argues that since he alleged mental incompetency in a verified pleading, we should remand for an evidentiary hearing to determine if equitable tolling is warranted. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006) (noting that a habeas petitioner should “receive an evidentiary hearing when he ‘makes a good faith allegation that would, if true, entitle him to equitable tolling’ ”) (quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir.2003)). A petitioner seeking equitable tolling bears the burden of showing both that there were “extraordinary circumstances,” and that the “extraordinary circumstances were the cause of his untimeliness.” Bryant v. Ariz. Att’y Gen., 499 F.3d 1056, 1061 (9th Cir.2007) (emphasis added). This court has consistently held mental incompetence to be an extraordinary circumstance beyond the prisoner’s control. See Laws, 351 F.3d at 923. Therefore, where “a habeas petitioner’s mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an extraordinary circumstance beyond [his] control.” Id. (internal quotation marks omitted). Roberts argues that this case is controlled by our holding in Laws, and that he is entitled to an evidentiary hearing to determine whether his mental incompetence warrants equitable tolling. In Laws, the pro se petitioner alleged, in a verified pleading, that his “delay in filing was attributable to psychiatric medication which deprived [him] of any kind of consciousness.” Id. at 921 (internal quotation marks omitted). The district court dismissed the petition. On appeal, we vacated the district court’s order and remanded for “further factual development of his claim that the limitations period should be tolled" }, { "docid": "22382107", "title": "", "text": "regret for not following through with the case and returned the Spitsyns’ payment. Huffhines did not return Spitsyn’s file until April 4, 2001, almost three months after Spitsyn requested it, more than two months after the limitations period had run, and not until after a disciplinary investigation was commenced by the bar. The Washington State Bar Association ultimately reprimanded Huff-hines for violating state Rules of Professional Conduct 1.3(requiring lawyers to act with reasonable diligence in representing clients) and 1.4(a) and (b)(requiring lawyers to keep their clients reasonably in formed about the status of their matters and to explain the matters to the extent reasonably necessary for clients to make informed decisions). Proceeding pro se, Spitsyn finally filed his habeas petition with the district court on September 25, 2001, some 226 days after the statute of limitations had run. Thus, absent tolling of the statute of limitations, Spitsyn’s petition was untimely. The district court dismissed the petition for that reason. The district court then denied Spitsyn’s motion for a certificate of appealability. This court granted Spitsyn a certificate of appealability “as to the issue whether the district court erred by dismissing the petition as untimely under 28 U.S.C. § 2244(d)(1), including the question whether appellant was entitled to equitable tolling.” We also appointed counsel to represent him in this appeal. II. STANDARD OF REVIEW The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo. Brambles, 330 F.3d at 1201. If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Id. Otherwise, findings of fact made by the district court are to be reviewed for clear error. Miles v. Prunty, 187 F.3d 1104, 1105(9th Cir.1999). III. DISCUSSION We have held that the one-year statute of limitations for filing a habeas petition may be equitably tolled if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Brambles, 330 F.3d at 1202. The prisoner must show that the “extraordinary circumstances” were the cause of" }, { "docid": "22362987", "title": "", "text": "certificate of appealability (COA) on whether the district court applied the correct legal standard in denying equitable tolling. II. Analysis Bills makes two arguments on appeal. First, he argues the district court identified and applied the incorrect legal standard for equitable tolling due to mental deficiencies. Second, Bills challenges the district court’s conclusion that his mental condition was not so severe as to prevent him from filing a timely petition. “The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo. If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Otherwise, findings of fact made by the district eourt are to be reviewed for clear error.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). We review the district court’s finding of competency for clear error. See Comer v. Schriro, 480 F.3d 960, 962 (9th Cir.2007) (en banc) (per curiam). Before addressing Bills’s arguments, we begin with some background principles that apply to equitable tolling. A. Equitable Tolling AEDPA commands that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (2006). When can that limitation period be tolled for circumstances beyond a prisoner’s control? Just this year, the Supreme Court joined the eleven circuit courts that have considered the question in holding the one-year statute of limitations for filing a habeas petition may be equitably tolled if extraordinary circumstances beyond a prisoner’s control prevent the prisoner from filing on time. See Holland v. Florida, 560 U.S. -, -, -, 130 S.Ct. 2549, 2554, 2562, 177 L.Ed.2d 130 (2010). In Holland, the Court recognized equitable tolling of the AEDPA one-year limitations period when the prisoner can show “(1) that he has been pm-suing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669" }, { "docid": "22382109", "title": "", "text": "his untimeliness.” Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.2003) (petitioner entitled to equitable tolling “since prison officials’ misconduct proximately caused the late filing.”). Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000)(holding that the prisoner is required “to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing”). Equitable tolling is justified in few cases, though. “Indeed, the threshold necessary to trigger equitable tolling [under AED-PA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotation marks and citation omitted). Spitsyn “bears the burden of showing that this extraordinary exclusion should apply to him.” Id. Determining whether equitable tolling is warranted is a “fact-specific inquiry.” Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc)). The cases in which we have to date concluded that equitable tolling of the limitations period under AEDPA for filing a habeas petition is appropriate have not involved attorney misconduct. Rather, we have, for example, tolled the deadline for filing a habeas petition when a district court permitted a petitioner to dismiss a petition without prejudice, in order to exhaust certain claims in state court, without advising the petitioner that because the one-year limitations period for his federal habeas petition had already expired, any later effort to refile in federal court would be untimely. Brambles, 330 F.3d at 1203. We have also held that equitable tolling was appropriate when a district court in correctly dismissed a petition filed by a pro se prisoner for reasons of form and then subsequently lost the body of his petition when he sought to refile it. Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir.2002). Failures on the part of prison officials to prepare a check for the filing fee or to obtain a petitioner’s signature have also been held to constitute “extraordinary circumstances” beyond the petitioner’s control that have warranted equitable tolling. Miles, 187 F.3d at 1107; Stillman, 319 F.3d at 1202. We" } ]

[ { "docid": "22715710", "title": "", "text": "Mr. Justice Douglas announced the judgment of the Court and delivered the following opinion, in which the Ceciep Justice, Mr. Justice Black and Mr. Justice Reed concur. This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia. The arrest was made late at night at Hall’s home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court-house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court-house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to “get” him. An indictment was returned against petitioners — one count charging a violation of § 20 of the Criminal Code, 18 U. S. C. § 52 and another charging a conspiracy to violate § 20 contrary to § 37 of the Criminal Code, 18 U. S. C. § 88. Sec. 20 provides: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties," } ]

[ { "docid": "103369", "title": "", "text": "in the fight that followed both Norris and Humphrey were shot and killed. At this time the city police chief by radio ordered the arrest of appellant at his home. Two FBI agents who followed appellant saw him come out of his home with his wife; they approached him, identified themselves and asked him if he would talk to them. He asked if he was under arrest and they told him he was not but asked him to talk to them in their car, which he did. They did not know the city police had been notified to arrest him. When they had talked to him inconclusively some 15 to 30 minutes, three city police officers drove up and said they were sent to arrest him. They did so, and the FBI agents handed over to the city officers appellant’s wallet which he had voluntarily handed one Federal agent when he asked for identification Appellant was taken to the City Hall, which also houses the city police department and jail, and was signed in at 6:45 p. m. The arrest card showed he was arrested for “investigation.” He was not then nor at any time later, taken before a state magistrate, but on May 1st, at 1:45 p. m. he was taken by the city police to the office of the United States Commissioner, and there turned over to the Federal officers for arraignment on the Federal charge of conspiracy of bank robbery. The appellant did not testify either on the trial or on the voir dire to determine the merits of his motion to suppress evidence of his admissions while at the city jail. Thus the testimony of the officials is undisputed to the following effect: he was first questioned at about 10:30 a. m. on the 30th by police officers and FBI agents, who requested police permission to interview them. He was told of his constitutional rights not to answer and to have counsel; he was offered no rewards and was subjected to no threats. There were three interviews, the first about 45 minutes which produced nothing damaging" }, { "docid": "12785297", "title": "", "text": "CUMMINGS, Circuit Judge. Plaintiffs are five black residents of Milwaukee, Wisconsin. Two of the defendants are Milwaukee police officers, and the third is a Milwaukee fireman. The City of Milwaukee was an additional defendant but was dismissed as a party. Count I of the amended complaint filed on November 12, 1973, was brought under Section 1983 of the Civil Rights Act (42 U.S.C. § 1983). Count I alleged that police officers Cary Cameron and Dennis Murphy, and Michael Murphy acting in concert with them, were driving north on North 27th Street in Milwaukee in the early morning of Saturday, June 24, 1972, while four of the plaintiffs were driving in their car directly behind defendants. Defendants taunted plaintiffs with racial epithets and subsequently assaulted them and James Ingram, a bystander and additional plaintiff. Thereafter the five plaintiffs were arrested and taken to jail. Although defendants sought to bring various charges against plaintiffs, they were never formally charged. The complaint asserts that defendants, “without legal justification and without warrants and without probable cause and under color of law,” deprived plaintiffs of their rights to be free from unlawful seizures, arrests and assaults as guaranteed by the Fourth and Fourteenth Amendments. Plaintiffs also claim that defendants’ malicious attempt to have false criminal charges placed against plaintiffs violated their Fourteenth Amendment rights. They assert that without legal cause defendants used malicious, unlawful, excessive, unreasonable and violent force in seizing and assaulting plaintiffs, in violation of their Fourth and Fourteenth Amendment rights. The willful and unlawful assaults inflicted on plaintiffs were also said to contravene their rights to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. The Thirteenth Amendment was said to have been violated because defendants summarily inflicted punishment upon plaintiffs as a result of their Afro-American ancestry. The defendants were charged with acting under color of state law and under color of city ordinances. The second cause of action based on 42 U.S.C. § 1985(2) and (3) has been abandoned because of the one-year statute of limitations contained in 42 U.S.C. § 1986. (See defendants’ Br. 8.)" }, { "docid": "17484666", "title": "", "text": "CLARK, Circuit Judge: Randy Dowsey, the appellant, brought this action founded upon 42 U.S.C.A. §§ 1983, 1985(3), and 1986 against the Sheriff of Baldwin County, Alabama, and the Chief of Police of Fairhope, Alabama. The District Court granted the motion of defendants-appellees for a directed verdict on all counts upon the conclusion of the presentation of Dowsey’s proof. We reverse as to the cause of action predicated on Section 1983 and affirm the remainder of the trial court’s action. Dowsey, seventeen years old at the time of the events complained of, was in the company of three other youths when one of his companions, Robberson, became suddenly ill. Shortly after the car the group was using had been parked on a high school campus, the principal of the school came to investigate the reason for their presence. Upon detecting that Robberson could not be aroused, he called the Bay Mi-nette, Alabama police department. Officers took the stricken and then unconscious youth to a hospital. At the request of the Bay Minette police, Dowsey went along to the hospital where he was examined by a doctor. The doctor found no evidence that Dowsey had taken any drugs and he was released. Early that same afternoon an officer of the nearby Fairhope, Alabama police department picked up Dowsey and his companions at the home of one of the boys in Fairhope and took them to the Fairhope police station. Several hours of questioning by the Sheriff and the Chief of Police followed, which focused upon whether any of the group had knowledge which might aid in the treatment of the unconscious Robberson, who doctors suspected was the victim of some type of drug. Later in the afternoon Dowsey’s mother, upon learning that her son was at the police station, came to the station and was permitted to talk to her son. During the process of questioning by the Sheriff and his mother, Dowsey suddenly ran from the police station. The Sheriff shouted, “Stop that boy!” A City of Fairhope policeman, who is not a party to this action, was just alighting from" }, { "docid": "23571265", "title": "", "text": "K.K. HALL, Circuit Judge: Thomas Edward Cobb, Ronald Bradley Hatcher, Howard Steven Sears, and Larry Dale Keaton, all former law enforcement officers, appeal from their convictions for depriving Kenneth Wayne Pack of his civil rights by wilfully subjecting him to an excessive use of force, in violation of 18 U.S.C. § 242; and for obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3). Keaton also appeals from a separate conviction for witness tampering, in violation of 18 U.S.C. § 1512(b)(3). We affirm the convictions of appellants Hatcher, Sears, and Keaton. However, finding that the trial court denied appellant Cobb his Sixth Amendment right to counsel, we reverse his convictions. I. In early 1987, Keaton was the Chief of Police for the City of Hinton, located in Summers County, West Virginia. Cobb was a city patrolman. Hatcher was the Chief Deputy Sheriff of Summers County, and Sears was a deputy sheriff. On the night of April 24, 1987, Sears, Keaton, and Hatcher arrested Pack for public intoxication outside the Wagon Wheel, a bar in Hinton. Pack was handcuffed and transported to City Hall. Once there, the officers escorted him to a holding area, known as the “booking room,” where they were met by Officer Cobb. Pack and the officers exchanged insults and a heated argument ensued. Keaton struck Pack on the head with a slapjack, knocking him to the floor. The officers then proceeded to beat Pack for almost two hours, insulting and ridiculing him the entire time. Pack remained handcuffed throughout the attack. At no point did he attempt to strike any of the officers. While Pack was in the booking room, each of the four officers executed affidavits swearing that Pack had assaulted him. Keaton also intimidated John Plumley, a part-time police dispatcher who witnessed the beating, into signing a similar affidavit. Later that evening, arrest warrants based on the affidavits, as well as on a charge of public intoxication, were issued by a city judge and immediately served on Pack. Just before midnight, Keaton and Hatch-er took Pack to the hospital for treatment of the injuries he" }, { "docid": "9559533", "title": "", "text": "WILLIAM E. MILLER, Circuit Judge. On November 25, 1970 Elmer Davis, Jr. and Ralph Wynn, Jr. were tried by a jury on a charge of possessing an unregistered firearm (sawed-off shotgun) in violation of 26 U.S.C. § 5861(d). Statements previously given by each defendant were introduced into evidence at the joint trial. Neither defendant testified or offered evidence. The two defendants were convicted and sentenced to five years imprisonment. They appeal separately on different grounds. The activity leading to the arrest of the appellants began in Detroit, Michigan. Davis and Wynn obtained an automobile, vehicle registration card, and credit cards from one Paul Hunter. The companions then drove through Ohio on their way to visit friends of Davis in Kentucky. According to statements later given by the men, the car had a flat tire in Ohio, and when they opened the car trunk to get the spare tire, they discovered and examined a sawed-off shotgun. After arriving in Kentucky, the appellants spent several days visiting various people. On June 11, 1969, they drove to the house of Enos Banks. Earlier that day, Davis had made disparaging remarks about Banks. Davis and Banks began to argue and according to Banks’ testimony, Wynn reached into the open car trunk, pulled out the shotgun and pointed it at him. Banks claims that he then left and went to his brother-in-law’s house to get a pistol. He later observed Wynn carrying the weapon into the building which was sectioned into several apartments, including Banks’. Apparently some occupant of the building threw the weapon out a window where it was later retrieved by a child and given to police. About 9:30 P.M. in the evening following the incident with Banks, state police arrested Davis and Wynn on a suspicion of automobile theft. The suspects were detained in the Perry County jail near Hazard, Kentucky. Later that night the police notified the nearest federal agents, located 80 miles away in Pineville, Kentucky, of possible firearms and Dyer Act violations. Sometime during the following morning, June 12, 1969, a federal agent came to Hazard from Pineville. After" }, { "docid": "23008659", "title": "", "text": "two policemen enter the tavern, Hall said, “I knew youse were coming.” He then said to the proprietress, “Mary, they think I did it.” These remarks by Hall were made before any statement to him by the police officers or before any indication was given by them that he was a murder suspect. In fact, it does not appear that he was actually under suspicion until he made these statements. Hall willingly accompanied the officers, at their request, to the Essex police station for investigation and questioning and they arrived there at approximately six thirty in the evening of July 16. Hall stated that he had recently come from New Jersey and was staying at the Ritz Hotel in Baltimore, but the officers ascertained that there was no such hotel in Baltimore and so informed Hall. Other discrepancies developed in his statements, but he made no incriminating admissions. The interrogation continued and shortly after midnight Hall agreed to go with the police and point out the hotel where he was actually staying. Following Hall’s directions, two detectives drove him to the Edison Hotel in the City of Baltimore. En route Hall pointed out a restaurant where he had eaten on the day of the crime. He then said to the officers, “I am not going to show you any more. I have told you enough. I think I ought to see a lawyer.” One of the officers responded, “That is your privilege,” but the subject does not appear to have been further mentioned or pursued. Before they had reached the hotel, however, Hall said to the officers, “I would like to see a minister,” to which one replied, “Sure.” A few minutes later Hall said, “You fellows have been nice to me. I will show you where the apartment, where the hotel room is.” When they arrived at the hotel the “evidence squad,” which had been following in another car, went to the room, located and numbered as indicated by Hall, and searched it while Hall remained with the officers in the patrol car on the street below. While awaiting" }, { "docid": "21910636", "title": "", "text": "GOLDBERG, Circuit Judge: The plaintiff-appellant brought this civil rights damage action against two police officers who allegedly subjected him to arrest and detention without probable cause. Following a trial in federal district court, a jury found that the plaintiff’s arrest was based upon probable cause. Accordingly, judgment was entered in favor of the defendant police officers. The plaintiff then brought this appeal, arguing that there had been numerous errors in the trial proceedings. Our review of the record reveals that the defendant police officers asserted their “good-faith” as a bar to personal liability and that the plaintiff failed to rebut this affirmative defense. We therefore conclude that insofar as these defendants were cloaked by the special protections afforded by a qualified immunity, the judgment dismissing the plaintiff’s claims must be affirmed. I. FACTS This appeal arises from events that transpired during the late evening hours of February 15,1976 in the south Texas city of McAllen. That night, plaintiff-appellant Jose Saldana was standing near his home, drinking beer and listening to a car stereo along with his father and his sister’s fiance. At approximately 11:00 p. m., police officers Antonio Garza and Ricardo Olvera were on routine patrol in the neighborhood, cruising in an area approximately one-and-a-half blocks from the Saldana property. Hearing loud music, shouting, and “gri-tos,” the two officers followed the sounds in an effort to investigate. At the end of this aural trail, Officers Garza and Olvera found the Saldana trio. Officer Garza stepped out of the patrol car, approached the revelers, and attempted to read the McAllen noise ordinance to them. He then told the three to quiet down and lower their stereo. Saldana’s response was hostile. Just what Saldana said to Officer Garza remains unclear, but both police officers testified that Saldana was definitely angry and appeared to be drunk as well. Officer Garza insisted that Saldana calm down, stop yelling and turn down his radio. When Saldana refused, Garza proceeded to place him under arrest. Saldana resisted and a brief struggle ensued, however he was quickly restrained and placed in the patrol car. Saldana was" }, { "docid": "14392388", "title": "", "text": "under 18 U.S.C. § 1512. We will mention that assertion only briefly as we have already disposed of that claim in the appeal taken by one of Tyler’s companions. For the reasons that follow, we will reverse the district court’s order denying suppression of the statement Tyler gave after being given his Miranda warnings, and remand for proceedings consistent with this opinion. I. In April 1992, David Tyler was to be tried in the Court of Common Pleas in Cumberland County, Pennsylvania on criminal charges related to drug trafficking. Doreen Proctor, a government informant for the TriCounty Drug Task Force in Central Pennsylvania, was scheduled to testify against him. Ms. Proctor had previously testified against several individuals, including David Tyler, during a preliminary hearing in state court in Carlisle, Pennsylvania. However, the day before David Tyler’s trial was to begin, David Tyler and his cohorts severely beat, stabbed, and shot Proctor. Her mangled body was discovered the next day. On July 9, 1992, police arrested Willie Tyler for the murder of Proctor and took him to the Carlisle Borough Police Department. After an officer gave Tyler his Miranda warnings, Tyler stated that he did not wish to make a statement, and the officers refrained from further interrogation. Tyler was then taken to the State Police Barracks in Gettysburg, Pennsylvania for re-arraignment. Detective Ronald Egolf of the Carlisle Police Department was assigned to guard and process him. Upon arriving at the barracks, Tyler was taken to a small room and, at about 10:00 pm, he and Detective Egolf engaged in a discussion that included hunting, Tyler’s education, and Tyler’s mother’s health. Although it is clear that the police and Tyler were engaged in a discussion up until 10:55 pm, it is not clear how many police were involved, nor exactly what was said. It is clear, however, that at approximately 10:55 pm, Tyler began to cry, and the police again warned him of his Miranda rights. This time Tyler gave an ineul-patory statement that was introduced against him at his trial. Eleven days later, on July 20, police obtained another statement" }, { "docid": "14001644", "title": "", "text": "that it was not unusual for blacks to be seen in this area of the city, that when he followed the men in a marked car they made no attempt to flee, and that he did not stop them for violating any traffic laws. Richberg first talked with appellant Rias’s companion, who stated that his sister had had a flat tire and that the men had gone to help her. Rias, who had been driving the automobile, was then questioned. Ke produced a valid driver’s license to establish his identity, and told the officer that he had been to see an attorney. When informed of the discrepancy in their stories, Rias explained that he was a postal employee and “didn’t want anybody to know where he was going and that his friend was just scared to tell [the officer] the truth.” Following a fruitless pat-down of the men, Richberg secured them in the back of the police car and informed them of their rights, although he did not advise them of any specific charge. He then searched the vehicle and discovered in the closed glove compartment a number of blank, personalized checks, which became the basis of the indictment against Rias. In a non-jury trial, Rias was convicted of possession of stolen mail. He received a two-year suspended sentence, and an eighteen-month term of probation conditioned on his participation in a 24-hour drug rehabilitation program. The only issues presented to this court on appeal concern the trial court’s denial of the defendant’s motion to suppress the checks and their subsequent admission into evidence. Rias challenges the admissibility of the evidence on three bases; (1) the authority to stop the automobile; (2) the legality of the warrantless search once the automobile had been stopped; and (3) the constitutionality of the loitering and prowling ordinance under which he was initially charged. Because we have determined that the officer had neither authority to stop the car in the first instance, nor probable cause to arrest the occupants or search the vehicle, we hold that the search was illegal and the fruits thereof subject" }, { "docid": "18345723", "title": "", "text": "RIVES, Circuit Judge. The indictment charged that the defendant, appellant here, transported a stolen motor vehicle from New Orleans, Louisiana, to Birmingham, Alabama, well knowing that it had been stolen in violation of the Dyer Act, 18 U.S.C.A. § 2312. The motor vehicle was a 1955 Ford automobile owned by George E. Wood, Jr., and his wife?, Josephine Wood. On the morning of March 13, 1957, Mr. Wood had its custody and left it at about 8:30 A.M. in a parking lot about one block from his place of work in New Orleans. He got off from work at 5:30 P.M. and called for the car about a half hour later, when he found it missing. Mr. Wood had given no one permission to take it from the parking lot. The automobile was returned to him by his insurance company a week or ten days later. There was testimony that on March 14, 1957, the day after the car was missed, one John Hugh Donald drove a 1955 Ford automobile bearing a Louisiana license tag into a filling station in Birmingham, Alabama, and, after having the tank filled with gasoline, drove off without paying. The filling station operator identified the appellant as Donald’s companion on that occasion. Donald was arrested about 7:00 P.M. of that same day, and the missing automobile, identified by its motor number, was re•covered from him. Two days later, on Saturday, March 16, 1957, between 4:00 and 4:50 P.M., the appellant was arrested by police officers of the City of Birmingham and was lodged in the city jail on charges of vagrancy and “failing and refusing pay a licensed house.” The jail slip showed also that he was to be held for warrant on the Dyer Act. He remained in the city jail from the time of his arrest, Saturday afternoon, until Monday morning when he was questioned for about an hour by two city detectives and an F. B. I. agent. Before questioning him, the F. B. I. agent informed him of his legal rights. At the time of that interview, the appellant had not" }, { "docid": "2310031", "title": "", "text": "HOLLOWAY, Circuit Judge. This is an appeal from the conviction and sentence under 18 U.S.C. § 3 of defendant-appellant Beverly Ann Popejoy as an accessory after the fact on a charge that she did receive, relieve, comfort and assist Kenneth Ray Johnston and Huey V. Griffin in order to hinder or prevent their apprehension, trial or punishment for bank robbery. Defendant Popejoy appeals, claiming error mainly in the admission in evidence of statements obtained from her by F.B.I. agents during interrogation while she was in custody of Oklahoma City police following her allegedly unlawful arrest by the police. Different issues and facts relating to the appeal of defendant Johnston are treated in our separate opinion which affirms his conviction. On this appeal from defendant Popejoy’s conviction we are bound to consider the evidence in the light most favorable to the Government, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), and thus viewed there was evidence tending to show the following circumstances: The Bank of Newcastle in Newcastle, Oklahoma was robbed at about noon on October 20, 1976, by two armed robbers. They took $9,466 from the bank and fled in an old General Motors car. At 5:00 p. m. the day of the robbery, Officer Hogue of the Oklahoma City Police Department was advised that the Bank of Newcastle had been robbed, was given a description of the suspects, and was told that the robbers left the bank in a 1968 Oldsmobile, white over light blue or aqua, bearing tag number UWG 733, California. Later that evening, spotting a car matching the description of the vehicle used in the robbery, he arrested Johnston and Popejoy and transported them to Oklahoma City Police headquarters. Shortly after 11:00 p. m., while defendant Popejoy was still in custody of the Oklahoma City police, an F.B.I. agent read her a Miranda statement of her constitutional rights and then questioned her about the robbery. During this interrogation Popejoy said that Johnston lived with her, that they had spent most of the day when the robbery occurred together at her home except for some" }, { "docid": "17504332", "title": "", "text": "lost it and returned to his original location. When, about twenty minutes later, he again sighted the vehicle traveling in the opposite direction, he followed for about seven blocks and then signaled the driver to pull over. The officer testified that it was not unusual for blacks to be seen in this area of the city, that when he followed the men in a marked car they made no attempt to flee, and that he did not stop them for violating any traffic laws. Richberg first talked with appellant Rias’s companion, who stated that his sister had had a flat tire and that the men had gone to help her. Rias, who had been driving the automobile, was then questioned. He produced a valid driver’s license to establish his identity, and told the officer that he had been to see an attorney. When informed of the discrepancy in their stories, Rias explained that he was a postal employee and “didn’t want anybody to know where he was going and that his friend was just scared to tell [the officer] the truth.” Following a fruitless pat-down of the men, Richberg secured them in the back of the police car and informed them of their rights, although he did not advise them of any specific charge. He then searched the vehicle and discovered in the closed glove compartment a number of blank, personalized checks, which became the basis of the indictment against Rias. In a non-jury trial, Rias was convicted of possession of stolen mail. The facts of this case, when compared to those of Rias, are even less indicative of criminal activity than those we found insufficient to form a basis for reasonable suspicion to stop in Rias. In Rias the officer at least knew that a similar vehicle had been used in robberies in the fairly recent past which could at least connect — albeit by a very thin thread — the defendant’s conduct with criminal activity. Here, all the policeman knew was that they observed a new car in a poor neighborhood which resembled a police vehicle. Of course," }, { "docid": "4978397", "title": "", "text": "MEMORANDUM OPINION LEWIS, District Judge. Plaintiff Charles M. Marshall, Adminis- • trator of the Estate of Raymond G. Percia-valle, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth, Fifth, Sixth, Eighth Ninth and Fourteenth Amendments to the United States Constitution, and asserting pendent state law claims for false arrest, wrongful death and survival. Title 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights or 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. To establish a violation of section 1983, plaintiff must prove two elements: first, that the decedent was deprived of a right secured by the Constitution and laws of the United States, and second, that defendants deprived the decedent of this right acting under color of any statute of the Commonwealth of Pennsylvania. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Presently before the court are cross-motions for summary judgment filed by plaintiff and defendants the Borough of Am-bridge, the Ambridge Borough Police Department, Police Officers Robert Appel and Robert Kuzma, (former) Chief of Police George Kyrargyros and Mayor Walter Pa-nek. FACTS The events which gave rise to this case are undisputed. On August 29, 1989, Robert Dickenson reported to the Ambridge Borough Police Department that an individual had pointed a gun at him and his companion while they were standing in a parking lot. Dickenson provided the police with a description of the suspect and the car that the person was driving. From the description, several police officers concluded that Raymond G. Perciavalle (the “decedent”) was the individual involved in the incident. The decedent had grown up in Ambridge and had had several previous encounters" }, { "docid": "11316980", "title": "", "text": "time. It is admitted that appellant weighed 130 pounds and his companion 160 pounds at the time, and their combined weight exceeded the snow or ice weight the cable was designed to carry. It was also proved that such hanging and swinging on the cable could impair its efficiency for use for train movements. Gabbert testified that as he crossed the footbridge the cable stopped swaying and he heard rocks hitting the steel girders of the bridge, sounding like hammer blows, and that upon looking over the side of the bridge he saw the boys throwing rocks at the cable. He requested a stranger who was walking across the bridge to telephone the police department to send down a scout car and gave him the J^lephone number and a quarter for the purpose. He further testified that he went about two-thirds of the way down the embankment and asked the boys what they were doing. On their reply that they didn’t think they were doing any harm, Gabbert showed them his badge as watchman of appellee company and told them they were under arrest and to come along with him. Appellant’s testimony that Gabbert said he would shoot them in the back if they tried to run was flatly denied by Gab-bert. Gabbert preceded appellant and his companion up the embankment and they walked to a spot some distance east of the footbridge where they waited five or ten minutes for a patrol car from the city police department. After proceeding some distance further, they met the patrol car and Gabbert told the officers to take appellant and Manson to the station and hold them for juvenile officers. The boys were placed in the cell block but were not booked nor charged with any offense. Police records at the 11th District Station show only that they were taken into custody. They had been turned over to the officers at about 3:45 P. M. and were released to their parents at 5:00 P. M. On the following morning appellant reported to the juvenile officer and received a lecture on the dangers" }, { "docid": "23156262", "title": "", "text": "MATHES, Senior District Judge. Charles E. Lester and Edward Anthony Buccieri appeal from the judgment entered upon a jury verdict finding them guilty as charged, in count one of an indictment, which alleged that appellants and another private citizen, one Carinci, conspired together and with three members of the police force of Newport, Kentucky, to commit an offense against the laws of the United States, in violation of 18 U.S.C. § 371. The offense averred to be the object of this conspiracy was to violate 18 U.S.C. § 242 by willfully depriving one George W. Ratterman, under color of State law, “of rights, privileges and immunities secured to him and protected by the Fourteenth Amendment to the Constitution of the United States; namely, the right not to be deprived of liberty without due process of law, the right to be free from arrest by an officer acting * * * without legal justification * * * and the right not to be denied the equal protection of the law.” It is further alleged in the indictment that: “It was the plan and purpose of the conspiracy that [the three defendant police officers] * * *, while acting * * * under color of law, would arrest and imprison George W. Ratterman, charge him with a violation of law, and cause his conviction, all knowing him to be innocent.” In count two of the indictment, the police officers were accused of the commis sion of the substantive offense which was the asserted object of the conspiracy; while appellants and Carinci were charged with aiding and abetting the police officers in their violation of 18 U.S.C. § 242. The jury convicted both appellants of the conspiracy charged in count one, but acquitted them of the substantive offense charged in count two. All other defendants, including the three police officers, were acquitted by jury verdict of all charges — both the conspiracy and the substantive offense. As grounds for reversal of their conviction on the conspiracy count, appellants contend: (1) that the evidence was insufficient to support the conviction; (2) that in giving" }, { "docid": "379667", "title": "", "text": "be brought by boat from Colombia, South America and delivered to an off-loading site supplied by Carlisle near Freeport, Florida. Capo wanted to keep a low profile in the operation and told Car-lisle he would send a man using the name “Jake” to handle the arrangements. “Jake”, identified at trial as appellant Tim Williams, met with Carlisle and an agent a few days later and discussed in detail arrangements for the delivery. But the initial plan did not work out; the boat to Colombia returned empty. Capo, in a recorded phone conversation, told Carlisle not to worry because another load would probably arrive in a week or so. A few days later “Jake” told Carlisle he had a load for him, and the two made new delivery arrangements. Carlisle would supply “Jake” with a truck to be loaded with marijuana and returned to Carlisle at his motel in DeFuniak Springs, Florida. Carlisle telephoned Capo and told him that “Jake” had gotten Carlisle some marijuana to which Capo replied, “I know.” The next day the truck was dispatched and returned that night with approximately 4000 pounds of marijuana. This marijuana had been brought in from Jamaica in a boat owned by Capo’s son-in-law Danny Stewart and stored overnight in a warehouse near Panama City, Florida. “Jake” (Williams), appellant Booker who was seen earlier driving the truck, Vern Oblisk, and others were arrested at a motel when the delivery was made. Capo- was arrested the following day. On the night of the delivery a marine patrol officer was conducting surveillance of the Panama City warehouse where the marijuana was stored. The officer saw appellant Amos Lisenby get out of a van looking hot and sweaty. After Amos left the van, the officer approached and saw what appeared to be marijuana residue on the bumper. The officer searched the van and found more residue inside. Amos was arrested the following afternoon and charged with simple possession of marijuana in violation of 21 U.S.C. § 844. This charge was later dropped and Lisenby was indicted along with the other appellants. Oblisk, a lookout in" }, { "docid": "11316981", "title": "", "text": "appellee company and told them they were under arrest and to come along with him. Appellant’s testimony that Gabbert said he would shoot them in the back if they tried to run was flatly denied by Gab-bert. Gabbert preceded appellant and his companion up the embankment and they walked to a spot some distance east of the footbridge where they waited five or ten minutes for a patrol car from the city police department. After proceeding some distance further, they met the patrol car and Gabbert told the officers to take appellant and Manson to the station and hold them for juvenile officers. The boys were placed in the cell block but were not booked nor charged with any offense. Police records at the 11th District Station show only that they were taken into custody. They had been turned over to the officers at about 3:45 P. M. and were released to their parents at 5:00 P. M. On the following morning appellant reported to the juvenile officer and received a lecture on the dangers of playing around the railroad tracks in the park. What final disposition of the case was made by the juvenile court does not appear in the record because under the law of Missouri such proceedings are cloaked with secrecy and cannot, with certain exceptions, be used as evidence in other cases. For the purposes of this appeal it is undisputed that appellant was taken into custody and temporarily deprived of his liberty, so that an actual arrest was effected. Appellant has assigned a large number of errors in the giving and refusing of instructions and in the admission and exclusion of testimony, and especially he contends that the court erred in refusing his request for peremptory instruction in his favor, on the ground that the arrest was unlawful because Gabbert had no authority to make an arrest. The trial court charged the jury, \" * * * on said occasion Gabbert was a private watchman, by commission from the St. Louis Board of Police Commissioners, and as such had the power to arrest under said" }, { "docid": "12019282", "title": "", "text": "HILL, Circuit Judge. The appellant, Glenn John Holbrook, was tried to a jury and convicted of the unlawful transportation of a stolen motor vehicle from Wilson, Kansas, to Denver, Colorado, in violation of 18 U.S.C. § 2312. On this direct appeal, appellant contends that an automobile ignition key obtained from his person at the time of his arrest was obtained by means of an unlawful search and seizure and should not have been admitted into evidence. He further contends that a confession that was obtained during his subsequent incarceration in the Denver city jail was involuntarily given and likewise inadmissible. The events leading up to the arrest and search of the appellant began late on the night of September 20, 1967. At that time, two Denver police officers were walking a patrol assignment on Larimer Street in that city when they were approached by a man who identified himself as being one James Gibson. He informed the officers that while hitchhiking to Denver he had secured a ride in a grey-blue 1963 Chevrolet station wagon whose driver had boasted of having eluded the police after a high-speed chase somewhere in Kansas. The officers relayed this information to other police officers and then resumed their normal duties. Approximately one hour later, the officers observed the vehicle in question parked in front of a local tavern. Upon approaching the automobile, they were again met by James Gibson who told them that was the car he had referred to previously. After further stating that the driver was inside the tavern, Gibson proceeded to point through a tavern window and identify the appellant. The officers then accosted the appellant, placed him under arrest, and upon searching him discovered the ignition key that was later admitted into evidence. The officers escorted the appellant to Denver police headquarters where he was there confined in the city jail. The following morning, after having various discussions with local authorities, the appellant conferred with two F.B.I. agents who had been notified that the appellant was being held for investigation of automobile theft. The agents obtained a signed waiver of" }, { "docid": "22079621", "title": "", "text": "Mr. Justice Stewart delivered the opinion of the Court. The petitioner was brought to trial in the Circuit Court of Jefferson County, Alabama, upon a complaint charging him with violating two sections of the General Code of the City of Birmingham, Alabama. After trial without a jury, the court found him “guilty as charged in the Complaint,” and imposed a sentence of imprisonment for 180 days at hard labor and an additional 61 days at hard labor in default of a $100 fine and costs. The judgment of conviction was affirmed by the Alabama Court of Appeals, 42 Ala. App. 296, 161 So. 2d 796, and the Supreme Court of Alabama declined review. 276 Ala. 707, 161 So. 2d 799. We granted certiorari to consider the petitioner’s claim that under the Fourteenth Amendment of the United States Constitution his conviction cannot stand. 380 U. S. 905. The two ordinances which Shuttlesworth was charged with violating are §§ 1142 and 1231 of the Birmingham General City Code. The relevant paragraph of § 1142 provides: “It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.” Section 1231 provides: “It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer.” The two counts in the complaint were framed in the words of these ordinances. The evidence was in conflict, but the prosecution’s version of the facts can be briefly summarized. On April 4, 1962, at about 10:30 a. m., Patrolman Byars of the Birmingham Police Department observed Shuttlesworth standing on a sidewalk with 10 or 12 companions outside a department store near the intersection of 2d Ave. and 19th St. in the City of Birmingham. After observing the group for" }, { "docid": "10768537", "title": "", "text": "LYNNE, District Judge: The clean cut question presented by this appeal is whether the district court erred in overruling appellant’s motion to suppress evidence obtained as an incident to his arrest. We hold that it did and reverse. Certain dispositive facts were developed by the evidence adduced upon the hearing conducted by the court out of the presence of the jury. For the purpose of this opinion they may be severely capsulated. Sometime prior to January 13, 1977, appellant, a man of many aliases, was arrested in the City of Mobile, Alabama, for shoplifting in violation of a municipal ordinance. For his failure to appear in the municipal court to answer such charge, writs of attachment were issued by a judge of such court on January 13, 1977, and on January 20,1977, respectively, which were outstanding as of April 16, 1977. On the night of April 16,1977, police officer, James Mayo, while on patrol, observed appellant and his companion, Frank Cole, seated in an automobile parked in an alley between two streets. He recognized appellant, was aware of the facts underlying the shoplifting charge, and knew there was an outstanding attachment for his arrest on such charge. By radio he directed officer Bailey to drive down the alley, lined with buildings on either side, to the front of appellant’s car when he positioned his vehicle to its immediate rear. Appellant and his companion jumped out of their car, whose movement was thus blocked. His companion was observed to have in his possession a sawed-off shotgun which he threw back into the car when confronted by the officers. Neither officer had a writ for the arrest of appellant at this time nor had any offense been committed in their presence before they effectively blocked the movement of appellant’s automobile. The strategy conceived by Mayo in the deployment of the police cars was for the avowed purpose of arresting appellant, which purpose he communicated to Bailey. Twin critical questions arise under the foregoing facts: whether there was an arrest and, if so, whether it was lawful under Alabama law. The first is" } ]

[ { "docid": "6343763", "title": "", "text": "forum have determined that the law of the state where the discovery dispute is being resolved controls. See, Roberts v. Carrier Corp., 107 F.R.D. 678, 685-86 (N.D.Ind. 1985). See also, Palmer v. Fisher, 228 F.2d 603 (7th Cir.1955), rev’d on other grounds (applying Illinois privilege law to CPA subpoenaed in Illinois in a Florida lawsuit); In re Ramaekers, 33 F.Supp.2d 312, 316 (S.D.N.Y.1999) (federal courts presiding over discovery disputes related to litigation in a different forum have “uniformly applied the law of the circuit in which the subpoena issued.”) The Court agrees that Illinois has a significant interest in applying its laws to discovery disputes in its courts. See generally, CSX Trans, v. Lexington Ins. Co., 187 F.R.D. 555, 558-59 (N.D.Ill.1999) (applying Illinois law to discovery issue in coverage dispute between insured and insurer even though Florida law governed substantive issues.). Therefore, Illinois law, which recognizes that the attorney-client privilege applies to communications between insureds and insurers, applies in this case. B. The Attorney-Client Privilege and Work-product Doctrine Under Illinois law, the attorney-client privilege protects confidential communications between an insured and an insurer. Il.Sup.Ct.R. 201(b)(2); People v. Ryan, 30 Ill.2d 456, 460-61, 197 N.E.2d 15, 17-18 (1964). The privilege protects communications originating from either the insurer or the insured. Midwesco-Paschen Joint Venture v. IMO Indus. Inc., 265 Ill.App.3d 654, 660-61, 202 Ill.Dec. 676, 638 N.E.2d 322, 327 (1994). The party seeking to assert the privilege bears the burden of establishing 1) the identity of the insured; 2) the identity of the insurance carrier; 3) the duty to defend the lawsuit; and 4) that a communication was made between the insured and the agent of the insurer. Rapps, 195 Ill.Dec. 354, 628 N.E.2d at 822. DPIC and Ms. Swanson have satisfied their burden of establishing that the privilege applies to the communications at issue, as claimed. Similarly, the work-product doctrine protects many of the documents that Urban Outfitters seeks to discover. Although state law controls attorney-client privilege issues, federal law governs the work-product doctrine. F.R.C.P. 26(b)(3). Absent a showing of substantial need, the work-product doctrine protects documents prepared in anticipation of" } ]

[ { "docid": "13966676", "title": "", "text": "that two of the letters, those dated October 12 and November 24, 1989, are privileged counsel communications. Canada further claims that the letters were inadvertently disclosed to Sause Brothers; that it did not learn of the disclosure until counsel for Sause Brothers asked questions concerning the letters in a deposition on September 19 and 20, 1991; and that Canada’s counsel promptly asserted privilege at that time. Sause Brothers argues that any privileges were waived by Canada’s disclosure of the letters. DISCUSSION A. Canada’s Motion for Protective Order Regarding Privileged Documents Canada moves for an order requiring Sause Brothers to return the Wruck letters because they are protected by the attorney-client privilege and the work product doctrine. The federal common law of privileges governs in federal question cases. Fed.R.Evid. 501; Weil v. Investment/Indicators Research and Management, Inc., 647 F.2d 18, 24 (9th Cir.1981). The party asserting a privilege has the burden of establishing it, and doing so with respect to a given communication requires demonstrating that the privilege has not been waived. United States v. Zolin, 809 F.2d 1411, 1415 (9th Cir.1987) aff'd in part and vacated in part, 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989); see also Weil, 647 F.2d at 25. The requirements of waiver ordinarily differ between the attorney-client privilege and the work product doctrine, but there is no distinction where, as here, the alleged waiver was by a disclosure to the privilege holder’s opponent in litigation. Transamerica Computer Co. v. International Business Machines Corp., 573 F.2d 646, 647 n. 1 (9th Cir.1978); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 328 (N.D.Cal.1985). Canada’s own briefs recognize that two fundamentally different views exist among federal courts regarding waiver of privilege through inadvertent disclosures of documents in discovery. Some courts reject the view that inadvertent disclosures can ever constitute waiver. Other courts, inclined to construe privileges more narrowly, find that inadvertent disclosures can effect waiver, and view the lack of a subjective intent to disclose as merely one factor to consider in a case-by-case waiver analysis. The former view rejecting inadvertent waiver is held by" }, { "docid": "1819409", "title": "", "text": "Waiver The work product doctrine protects the attorney’s materials, and consequently, the attorney may waive the benefit of the privilege. Carte Blanche (Singapore) PTE, Ltd. v. Diners Club Int’l, Inc., 130 F.R.D. 28, 32 (S.D.N.Y.1990). Although the client can also waive the privilege as to non-opinion work product, the attorney may still contest the waiver as to opinion work product. See Buck v. Aetna Life & Casualty Co., Civ. A. No. 91-2832, 1992 WL 130024 at *2 (E.D.Pa. June 5, 1992). The work product privilege, unlike the attorney-client privilege, does not depend upon an expectation or intent that the communication will remain confidential. See 8 Chaeles A. Weight, Arthur R. Miller & Riohard L. Marcus, Federal Praotice & Procedure: Civil 2d § 2024 (2d ed. 1994)(“Wright & Miller”). A waiver will occur when the information is voluntarily disclosed to an adversary. United States v. Nobles, 422 U.S. at 239, 95 S.Ct. 2160; Salomon Bros. Treasury Litig. v. Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir.1993); In re John Doe Corp., 675 F.2d 482, 489 (2d Cir.1982). Conversely, no waiver attends a disclosure that has not “substantially increased the opportunities for potential adversaries to obtain information.” United States v. Stewart, 287 F.Supp.2d 461, 468 (S.D.N.Y.2003)(quoting 8 Wright & Miller § 2024)(internal quotation marks omitted); accord In re Pfizer Inc. Sec. Litig., No. 90 Civ. 1260, 1993 WL 561125, at *6 (S.D.N.Y. Dec.23, 1993). 3. The Insider E-mails and Hard Copy Documents Assuming that the Insider Emails are otherwise privileged under the work product doctrine, the Trustee maintains, as he did earlier, that the transmission of the Insider E-mails over Asia Global’s e-mail system waived the privilege. (Trustee’s Memorandum, at 4.) In addition, he contends that the Insiders waived the privilege in the Hard Copy Documents by leaving them behind at Asia Global’s premises. The Insiders replied in their declarations that any disclosure was inadvertent. In deciding whether the disclosure is inadvertent, courts consider “(1) the reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure of privileged documents; (2) the volume of discovery versus the extent of" }, { "docid": "8510179", "title": "", "text": "Precautions The mere fact of disclosure does not establish that a party’s precautions undertaken to protect the privileged evidence were unreasonable. See Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96 Civ. 7590, 1997 WL 736726, at * 5 (S.D.N.Y. Nov. 26, 1997); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 443 (S.D.N.Y.1995). Rather, a court must examine whether “the procedure[s] followed in maintaining the confidentiality of the documents] [were] ... so lax, careless, inadequate or indifferent to consequences as to constitute a waiver.” Martin v. Valley National Bank of Arizona, No. 89 Civ. 8361, 1992 WL 196798, at *3 (S.D.N.Y. Aug. 6, 1992) (citations omitted). Inadvertent production will not waive the privilege unless the conduct of the producing party or its counsel evinced such extreme carelessness as to suggest that they were not concerned with the protection of the privilege. See Lloyds Bank PLC, 1997 WL 96591, at *3 (citations omitted). Here, the Paul Weiss attorney overseeing the production gave specific instructions to the document production team concerning which documents were to be produced, which documents were to be withheld and which documents were to be redacted. Kaplan Aff., 1118; Supplemental Affidavit of Roberta Kaplan, sworn to October 16, 2000, H 5. In addition, the production team performed an additional, final, review of the documents pri- or to completion of the production. Kaplan Aff., K 20. The Court finds that Paul Weiss took reasonable precautions to prevent inadvertent disclosure. These procedures were not so lax, careless, inadequate or indifferent to consequences as to render inadvertent production of the Disputed Documents a waiver. Time Taken to Rectify the Error The relevant correction period begins when the party realizes that ah • error has been made. Lloyds Bank PLC, 1997 WL 96591 at *5. Here, Paul Weiss discovered the error while checking the production on June 23, 2000 and June 24, 2000. Kaplan Aff., ¶ 20. The attorney in charge reviewed the 17 documents at issue on June 26, 2000 and notified opposing counsel of the inadvertent production on June 27, 2000. Kaplan Aff., ¶ 22. The Court" }, { "docid": "18197943", "title": "", "text": "production is drawn from http://www.uyseg.org/greener—industiy; http://en.wikipedia.org/wiki/Sulfuric—acid; and http://www.answers.com/topic/suIfuric-acid. . Compare United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989)(the attorney-client privilege is often \"[n]arrowly defined, riddled with exceptions, and subject to continuing criticism.”). Bentham was perhaps the most acerbic and unrelenting critic of the privilege. See VIII Wigmore, Evidence, § 2291 at 549 (McNaughton rev.1961). . The table of contents to the report likewise lists as a heading \"Legal Issues (Privileged)*”. . The parties' briefs relating to pages 9-11 do not discuss explicitly the contents of those pages, which were filed under seal pursuant to Local Rule 26.2. I have reviewed pages 9-11 in camera. I am mindful of the Seventh Circuit’s decision in Hicklin Engineering L.C. v. R.J. Bartell, 439 F.3d 346, 351 (7th Cir.2006). . The indiscriminate use of the phrase \"joint defense doctrine\" is a perfect example of the analytical difficulty that results from the uncritical repetition of labels and catch words. Cf. Holmes, Law In Science And Science In Law, 12 Harv. L.Rev. 443, 455 (1899); Meridian Security Insurance Co. v. Sadowski, 441 F.3d 536 (7th Cir.2006)(“the phrase [reasonable probability] acquired a life of its own.”; \"the turn of the phrase was infelicitous.\"). . Where clients share a common lawyer, there is little question that otherwise privileged communications from or to one client may be shared with the other without a waiver of the privilege, inter se. Indeed, the common lawyer has an equal fiduciary obligation to both clients. . Absent the clarity provided by a protective order, questions of inadvertent disclosure become complicated. See, e.g., Urban Outfitters, Inc. v. DPIC Co., 203 F.R.D. 376, 380 (N.D.Ill.2001)(employing five-part balancing test). . See VLT Corp. v. Unitrode Corp., 194 F.R.D. 8, 10 (D.Mass.2000)(party held to have \"learned” or \"discovered\" inadvertent production when opponent used document in a brief); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96-7590, 1997 WL 736726, *2 (S.D.N.Y. Nov.26, 1997)(party held to have \"learned” of inadvertent production when opponent notified it that the document had been produced). . In United States v. Davis, 1 F.3d 606, 609 (7th Cir.1993), the Seventh Circuit" }, { "docid": "8510181", "title": "", "text": "finds that there was no material delay by Paul Weiss in asserting the privilege once the error was realized. The Scope of the Production and the Extent of the Inadvertent Disclosure Approximately 15,000 pages of documents were produced by RLM. Of this amount, RLM claimed privilege with respect to 583 documents; of that number 17 documents were produced inadvertently. The Court finds that the number of documents inadvertently produced in RLM’s production was relatively small in comparison with the total production and is well within margin of error that courts have found acceptable. See, e.g., Baker’s Aid v. Hussmann Foodservice Co., No. 87 Civ. 0937, 1988 WL 138254, at *5 (E.D.N.Y. Dec. 19, 1988) (noting that “[c]ourts have routinely found that where a large number of documents are involved, there is more likely to be an inadvertent disclosure than a knowing waiver”); Lois Sportswear, 104 F.R.D. at 105 (where twenty-two documents out of 16,000 pages reviewed, and out of 3,000 pages requested, were claipied to be privileged, the Court held that disclosure did not constitute a waiver); Data Systems of New Jersey, Inc. v. Philips Business Data Systems, Inc., No. 78 Civ. 6015, slip op. (S.D.N.Y. Jan. 8, 1981) (where one document was privileged among the several thousand produced, the Court held that the privilege was not waived); Desai, 1992 WL 110731 (where seventeen documents were privileged out of a “large production”, the court held that privilege was not waived). Fairness Overall issues of fairness weigh in favor of RLM. Plaintiffs have not demonstrated that they would be prejudiced by maintaining the privilege of the Disputed Documents. Depriving a party of information in an otherwise privileged document is not prejudicial. See Prescient Partners, 1997 WL 736726, at * 7. However, finding waiver would be prejudicial to RLM because the documents involve attorney-client communications about case strategy. Id. Based on the foregoing, the Court finds that production of the Disputed Documents was inadvertent and that it did not result in waiver of the privilege and work-product protection claimed by RLM in the Privilege Log with respect to the Disputed Documents or" }, { "docid": "18197881", "title": "", "text": "not, however, a separate privilege. It is rather an “extension” of the attorney-client privilege. Evans, 113 F.3d at 1467; Hanson, 372 F.3d at 292; Schwimmer, 892 F.2d at 243. Because the attorney-client privilege is not limited to litigation, neither should be its “extension.” Thus construed, there need be no fear that the “common interest” doctrine will prevent business documents and information from being discoverable. (Memorandum in Support of Plaintiffs’ Motion, at 4-5; Plaintiffs’ Reply Memorandum, at 7-8). The attorney-client privilege, itself, excludes from its ambit even confidential communications with a lawyer about business or other non-legal matters. Simon v. G.D. Searle & Co., 816 F.2d 397, 402 (8th Cir.1987); Burden-Meeks, 319 F.3d at 899; Rehling, 207 F.3d at 1019; Evans, 113 F.3d at 1463. While Noranda and Falconbridge shared a common business interest, they also shared a common legal interest regarding compliance with antitrust and other laws affecting the sale of sulfuric acid. A review of the relevant portion of the 1994 report makes clear that it involves confidential communications between lawyer and his common clients relating to requests for legal advice regarding antitrust and other laws. Accordingly, the attorney-client privilege as to the pages at issue is not waived because the advice was revealed to Noranda and Falconbridge. b. Inadvertent Disclosure Generally, the burden of proving inadvertent disclosure is on the party asserting the privilege. Harmony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113, 116 (N.D.Ill.1996). That burden has been sustained by the Noranda defendants through the declaration of one of their attorneys regarding the precautions that were taken during the review of the 422 boxes containing approximately 800,000 documents. The 1994 report was produced on four previous occasions, with pages 9-11 redacted. Obviously, the production of the single unredacted copy was inadvertent. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126-27 (7th Cir.1997). Where discovery is extensive, mistakes are inevitable and claims of inadvertence are properly honored so long as appropriate precautions are taken. Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc., 132 F.R.D. 204, 207 (N.D.Ind.1990)(14,000 documents). This alone might be enough to" }, { "docid": "18197886", "title": "", "text": "production. Quite the contrary. There would have been no need for the inadvertent production clause if that was their design. The obvious purpose of the protective order was to avoid the uncertainty that would have existed without it. See, e.g., Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1 (S.D.Ind. May 29, 2001)(production of 25,000 documents under the mistaken assumption that they had been reviewed and redacted would ordinarily constitute waiver, but protective order foreclosed application of inadvertent production case law); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96-7590, 1997 WL 736726, *4 (S.D.N.Y. Nov.26, 1997)(parties drafted this provision to provide for the out-of-court resolution of inadvertent production issues and to avoid litigating these issues). See generally, Douglas R. Richmond, Key Issues In The Inadvertent Release And Receipt Of Confidential Information, 12, Def.Couns.J. 110, 117 (April 2005)(recommending use of “claw back” agreements—to be incorporated in judicial orders—where there are large numbers of documents involved). In Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1 (S.D.Ind. May 29, 2001), the language of the provision in the protective order was identical to the one at issue here: “No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production.” 2001 WL 699850, *1. Although the plaintiff produced the documents in December of 2000, and did not notify defendants of its mistake until March 21, 2001, the court found that the plaintiffs could maintain the privilege as to the documents because the plaintiffs did not learn of the inadvertent production until the defendants employed one of the documents in a deposition on March 8, 2001. By informing defendants 13 days later on March 21st, plaintiffs met the 30-day deadline. 2001 WL 699850, *1-2. “Discovery,” then, in the ordinary sense and in the context of protective orders such as that in this ease, means “obtaining knowledge for the first time.” Often the discovery stems from notification from the other side that" }, { "docid": "607492", "title": "", "text": "the important policy of fostering “full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The attorney-client privilege does this by “encourag[ing] people who find themselves involved in actual or potential legal disputes to be candid with any lawyer they retain to advise them.” United States v. Frederick, 182 F.3d 496, 500 (7th Cir.1999). At the same time, the Seventh Circuit has recognized that this important benefit does not come without a serious cost: “when the privilege shelters important knowledge, accuracy declines. Litigants may use secrecy to cover up machinations, to get around the law instead of complying with it. Secrecy is useful to the extent it facilitates the candor necessary to obtain legal advice. The privilege extends no further.” In re Michael Feldberg, 862 F.2d 622, 627 (7th Cir.1988). As a result, the Seventh Circuit has directed that the scope of the privilege must be “strictly confined within the narrowest possible limits.” Lawless, 709 F.2d at 487 (quoting 8 Wigmore, Evidence § 2291 (McNaughton Rev.1961)). In line with these principles, courts within this jurisdiction have held that not all communications from a client to his attorney are privileged. Because the privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege,” In re Carl Walsh, 623 F.2d 489, 494 (7th Cir.1980), documents prepared for both legal and non-legal review are not privileged. See, e.g., Frederick, 182 F.3d at 500; In re Air Crash Disaster at Sioux City, Iowa, 133 F.R.D. 515, 518 (N.D.Ill.1990). Just as documents prepared for a business purpose are not privileged, see e.g., In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir. 2000), documents concerning “advice on political, strategic or policy issues, valuable as it may have been, would not be shielded from disclosure by the attorney-client privilege.” In Re Lindsey, 148 F.3d 1100, 1106 (D.C.Cir. 1998); see also Republican Party of North Carolina v." }, { "docid": "2908609", "title": "", "text": "Feb. 2, 1995). “The crime-fraud exception to the attorney-client privilege applies when a person consults an attorney to further a continuing or future crime, fraud or other misconduct.” Stopka v. Alliance of Am. Insur., 1996 WL 204324, at *9 (N.D.Ill. April 25, 1996). The exception does not apply just because “a person consults an attorney in an effort to receive legal advice or assistance.” Id. Moreover, the exception does not apply just because “ ‘it relates to a crime or fraud or because it would help to prove one existed.’ ” Id. (quoting Sound Video Unltd., Inc. v. Video Shack, Inc., 661 F.Supp. 1482, 1486 (N.D.Ill.1987)). “[T]o drive away the privilege under the fraud/crime exception ‘there must be something to give colour to the charge;’ there must be ‘prima facie evidence that it has some foundation in fact.’ When that evidence is supplied, the ‘seal of secrecy is broken.’ ” U.S. v. Davis, 1 F.3d 606, 609 (7th Cir.1993), cert. denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 563 (1994) (quoting Matter of Feldberg, 862 F.2d 622, 625 (7th Cir.1988) (quoting another case)). The Seventh Circuit “noted that ‘prima facie evidence’ did not mean ‘enough to support a verdict in favor of the person making the claim.’ ” Id. (quoting Feldberg, 862 F.2d at 626). “Instead, we held that a party has established a prima facie case whenever it presents evidence sufficient ‘to require the adverse party, the one with the superior access to the evidence and in the best position to explain things, to come forward with that explanation.’” Id. (quoting Feldberg, 862 F.2d at 626). This is a “lax standard! ].” Feldberg, 862 F.2d at 626. Also, “[t]he moving party must also establish ‘some relationship between the communications at issue and the alleged offense.’” Stopka, 1996 WL 204824, at 9 (quoting Sound Video, 661 F.Supp. at 1486). “The moving party need not make a specific showing of the client’s intent in consulting the attorney, but the evidence must support the inference that the attorney’s representation or advice assisted the client in committing the alleged offense.” Sound Video," }, { "docid": "763462", "title": "", "text": "out of 75,000 justifies a finding of non-waiver of attorney-client privilege even in the absence of a description of precautionary procedures). Therefore, the court concludes that the disclosure of the letter was truly inadvertent and not the product of some conscious but erroneous decision; or worse, a sly attempt to gain advantage using truth garbling tactics. Kansas-Nebraska Natural Gas, 109 F.R.D. at 21. Golden Valley tries to throw the court a curve with its citation to Abbott Lab. v. Baxter Travenol Lab., Inc., 676 F.Supp. 831 (N.D.Ill.1987) to establish waiver of the attorney-client privilege. This attempt misses the plate, however, because Abbott Lab. involved a partial voluntary disclosure of privileged attorney-client communications. Voluntary disclosure, as opposed to inadvertent disclosure, waives the privilege as to remaining documents of that subject matter. See 4 Moore’s Federal Practice H 26.60[2], page 26-201-202 (1989). Laying aside for the moment the question of whether the attorney-client privilege has been waived as to the letter, the court could find no cases where unintentional or inadvertent disclosure of a privileged document resulted in the wholesale waiver of the attorney-client privilege as to undisclosed documents concerning the same subject matter. “It is a far different matter ... to treat the inadvertent disclosure as a waiver with respect to other material that was not turned over. Although the inadvertent disclosure works something of a windfall by giving the opponent materials he would not otherwise have, there is no need to take the much greater step and treat it as a waiver. It is simply an inadvertent disclosure of evidence that could have been held back.” (footnotes omitted). Marcus, supra note 8, at 1636. Indeed, whenever the question has been considered by the courts this expansive view of waiver has been rejected. See, Bud Antle, Inc. v. Gro Tech, Inc., 131 F.R.D. 179 (N.D.Cal.1990); ICI Americas, Inc. v. John Wanamaker of Philadelphia, No. 88-1346, 1989 WL 38647 (E.D.Pa. Apr. 18, 1989) (LEXIS, Genfed Library, Dist. file) (Applying Pennsylvania law); International Digital Systems v. Digital Equipment Corp., 120 F.R.D. 445, 446 n. 1 (D.Mass.1988); Parkway Gallery, 116 F.R.D. at 52; Standard" }, { "docid": "6017240", "title": "", "text": "Fleet Nat’l Bank, 150 F.R.D. at 13). Judge Young describes this third approach as the “middle test.” Id. Although this court would be inclined to apply the middle test to the case at bar, it does not believe that a choice among the three is necessary given one distinct feature of this particular dispute. Unlike the situation in Amgen, the parties here have chosen to have the issue of inadvertent disclosure governed by the stipulated protective order which provides, in applicable part, that the “[ijnadvertent production of documents subject to ... the attorney-client privilege shall not constitute a waiver of the ... privilege.” Accordingly, the parties have stipulated to a rule that is close to the “no waiver” rule. This is not an uncommon occurrence. See, e.g., Eutectic Corp. v. Metco, Inc., 61 F.R.D. 35, 42 (E.D.N.Y.1973) (refusing to order production where protective order provided that there would be no waiver of any privilege unless expressed in writing); United States v. Pepper’s Steel & Alloys, Inc., 742 F.Supp. 641, 644-45 (S.D.Fla.1990) (similar); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., 1997 WL 736726, at *4 (S.D.N.Y.1997) (noting that parties drafted confidentiality agreement “to provide for the out-of-court resolution of inadvertent production issues and to avoid litigating these issues”). Now that the issue of inadvertent disclosure has been brought to its attention, the court must address three questions pursuant to the stipulated protective order: (1) whether Plaintiffs have established that there has been an “[i]nadvertent production of documents,” (2) whether the documents in question “are subject to the ... attorney-client privilege,” and (3) whether Plaintiffs “promptly notified [Unitrode] in writing of the inadvertent production. If all three questions are answered in the affirmative, then pursuant to the stipulated protective order Unitrode must return or destroy all copies of the documents as Plaintiffs have requested.” B. WAS THERE AN INADVERTENT ' PRODUCTION? The stipulated protective order does not define what constitutes an “inadvertent disclosure of documents.” Nevertheless, in the court’s opinion, Plaintiffs have established that their methodology, while leaving much to chance, resulted in the unintended rather than the purposeful or grossly negligent" }, { "docid": "18197942", "title": "", "text": "being redacted to exclude portions reflecting legal advice concerning sales proposals. As such, the redaction is proper, much like the redaction of material in the 1994 Prime report. Other entries are described as reflecting legal advice or client confidences regarding the joint venture between Noranda and DuPont: 405, 634, 863, 951, 1128. Dated after the joint venture began, these are adequately described to warrant protection as privileged under the common interest doctrine. But the doctrine does not protect documents described as having been shared among Noran-da and DuPont employees and that are not described as concerning joint venture legal matters: 626, 704, 706, 713. These documents must be produced for in camera inspection. CONCLUSION For the foregoing reasons, the plaintiffs’ motion for determination of the privilege [# 144] is GRANTED in part and DENIED in part. . In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 351 (N.D.Ill.2005); Id., 230 F.R.D. 527; id., 231 F.R.D. 331; Id., 231 F.R.D. 320; Id., 2005 WL 1994105. . The very basic discussion of the processes employed in sulfuric acid production is drawn from http://www.uyseg.org/greener—industiy; http://en.wikipedia.org/wiki/Sulfuric—acid; and http://www.answers.com/topic/suIfuric-acid. . Compare United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989)(the attorney-client privilege is often \"[n]arrowly defined, riddled with exceptions, and subject to continuing criticism.”). Bentham was perhaps the most acerbic and unrelenting critic of the privilege. See VIII Wigmore, Evidence, § 2291 at 549 (McNaughton rev.1961). . The table of contents to the report likewise lists as a heading \"Legal Issues (Privileged)*”. . The parties' briefs relating to pages 9-11 do not discuss explicitly the contents of those pages, which were filed under seal pursuant to Local Rule 26.2. I have reviewed pages 9-11 in camera. I am mindful of the Seventh Circuit’s decision in Hicklin Engineering L.C. v. R.J. Bartell, 439 F.3d 346, 351 (7th Cir.2006). . The indiscriminate use of the phrase \"joint defense doctrine\" is a perfect example of the analytical difficulty that results from the uncritical repetition of labels and catch words. Cf. Holmes, Law In Science And Science In Law, 12 Harv. L.Rev. 443, 455 (1899); Meridian Security Insurance Co." }, { "docid": "18197945", "title": "", "text": "refused to overrule its earlier decision in Feldberg, 862 F.2d 622, 626 (7th Cir.1988), which had held that a party has established a prima facie case to dispel the privilege whenever it presents evidence sufficient to require the adverse party, the one with superior access to the evidence, to come forward with an explanation. . Mattenson did not refer either to the Seventh Circuit’s Davis decision (which came after Zolin) or to the Feldberg decision (which preceded Zolin). It did not discuss whether its adoption of the Second Circuit’s probable cause standard in In re Richard Roe, Inc., 68 F.3d 38, 40 (2nd Cir.1995) marked a sea change in the Seventh Circuit’s crime-fraud jurisprudence. Under its \"probable cause” standard, the Second Circuit requires the party wishing to invoke the crime-fraud exception to demonstrate \"that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.” Id. at 87. . This formulation, at least in terms, is similar to the definition of probable cause to support an issuance of an administrative warrant in OSHA cases. See In the Matter of Establishment Inspection of Midwest Instruments Co., 900 F.2d 1150, 1153 (7th Cir.1990)(“ 'probable cause’ will be found to support an OSHA warrant if the warrant application supports a reasonable belief or leads to a reasonable suspicion that the OSH Act or its regulations have been violated.”). . The standards by circuit are collected in In re BankAmerica Corp. Securities Litigation, 270 F.3d 639, 643 (8th Cir.2001); Triple Five of Minnesota, Inc. v. Simon, 213 F.R.D. 324, 327 (D.Minn.2002), aff'd, 2002 WL 1303025 (D.Minn.2002). Despite the semantic variations, there are probably not practical differences between the standards. In re Antitrust Grand Jury, 805 F.2d at 165-66. . Ordinarily, the plaintiffs would have had to have been successful in the first portion of their crime-fraud argument before there would have been discretion to review the document in camera. Here, the document was inadvertently produced—or more accurately, the portion in" }, { "docid": "5435172", "title": "", "text": "certain correspondence on grounds of attorney/elient privilege. However, he did not request that the Disclosed Documents be withheld. Similarly, at the hearing, KSH’s counsel, whom Timothy Hanna had hired to “defend [KSH] in a suit brought against it by [KFI]” (Timothy Hanna Dep. at 258), “plead ignorance” to McLaughlin’s role in the history of this case and the significance of the letters. As a result, he had assented to the Estate’s producing the letters. Despite their lack of objection prior to producing the documents, the Opposing Parties contend the Estate “inadvertently” produced the documents and, further, that the stipulated protective order in this ease (the “Protective Order”) requires KFI to return the documents. KFI argues the Estate voluntarily produced the documents. As detailed herein, this court finds the documents were not inadvertently disclosed. When parties stipulate to a protective order requiring the return of inadvertently produced documents, the agreement is enforceable if the proponent actually produced the document(s) inadvertently and otherwise complies with the terms of the order. See VLT Corp. v. Unitrode Corp., 194 F.R.D. 8, 11-12 (D.Mass.2000) (holding stipulated protective order mandated return of two documents inadvertently produced with approximately 25,000 intentionally produced pages; proponents “established that the production of the materials at issue was not a considered or grossly negligent decision, but the result of inattention, i.e., inadvertence”). Absent an agreement, courts have applied three different approaches to determine if production waives privilege: (1) “the ‘never waived’ approach which holds that a disclosure that was merely negligent can never effect a waiver because, a fortiori, the holder of the privilege lacks a subjective intent to forgo production,” (2) the “strict accountability” rule which “effects a waiver of the privilege regardless of the privilege holder’s intent or inadvertence,” or (3) a middle ground by which the court considers various circumstances relating to the inadvertent production before deciding whether the privilege has been waived, including “(1) the reasonableness of the precautions taken to prevent inadvertent disclosure, (2) the amount of time it took the producing party to recognize its error, (3) the scope of the production, (4) the extent" }, { "docid": "18197885", "title": "", "text": "(Plaintiffs’ Reply Memorandum, at 15). But this overly facile generalization tacitly begs the question, and is more a statement of the obvious than an informative argument. Cf., Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905)(Holmes, J., dissenting)(“[G]eneral propositions do not decide concrete cases.”). The presumption that terms be accorded their ordinary meaning, among other things, simplifies the litigation of contract disputes. Beanstalk Group, 283 F.3d at 859. Yet, the interpretation of “discovery” contended for by the plaintiffs would complicate the inquiry by requiring a determination of when the Noranda defendants ought to have discovered their inadvertent production, with the further, unavoidable dispute about what criteria should be used to decide that question. In the statute of limitations context, the inquiry is fact-intensive and almost always a question for the jury. Massey v. United States, 312 F.3d 272, 276 (7th Cir.2002). There is nothing to suggest that in crafting the agreed protective order the parties intended to infuse into that agreement such complexity and uncertainty regarding questions of inadvertent production. Quite the contrary. There would have been no need for the inadvertent production clause if that was their design. The obvious purpose of the protective order was to avoid the uncertainty that would have existed without it. See, e.g., Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1 (S.D.Ind. May 29, 2001)(production of 25,000 documents under the mistaken assumption that they had been reviewed and redacted would ordinarily constitute waiver, but protective order foreclosed application of inadvertent production case law); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96-7590, 1997 WL 736726, *4 (S.D.N.Y. Nov.26, 1997)(parties drafted this provision to provide for the out-of-court resolution of inadvertent production issues and to avoid litigating these issues). See generally, Douglas R. Richmond, Key Issues In The Inadvertent Release And Receipt Of Confidential Information, 12, Def.Couns.J. 110, 117 (April 2005)(recommending use of “claw back” agreements—to be incorporated in judicial orders—where there are large numbers of documents involved). In Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1" }, { "docid": "6017241", "title": "", "text": "v. Fieldcrest Cannon, Inc., 1997 WL 736726, at *4 (S.D.N.Y.1997) (noting that parties drafted confidentiality agreement “to provide for the out-of-court resolution of inadvertent production issues and to avoid litigating these issues”). Now that the issue of inadvertent disclosure has been brought to its attention, the court must address three questions pursuant to the stipulated protective order: (1) whether Plaintiffs have established that there has been an “[i]nadvertent production of documents,” (2) whether the documents in question “are subject to the ... attorney-client privilege,” and (3) whether Plaintiffs “promptly notified [Unitrode] in writing of the inadvertent production. If all three questions are answered in the affirmative, then pursuant to the stipulated protective order Unitrode must return or destroy all copies of the documents as Plaintiffs have requested.” B. WAS THERE AN INADVERTENT ' PRODUCTION? The stipulated protective order does not define what constitutes an “inadvertent disclosure of documents.” Nevertheless, in the court’s opinion, Plaintiffs have established that their methodology, while leaving much to chance, resulted in the unintended rather than the purposeful or grossly negligent disclosure of two documents. This contrasts with the conduct described by Judge Young in Amgen where two hundred privileged documents constituting thousands of pages were wrongly produced. Amgen, 190 F.R.D. at 292-93. Plaintiffs’ explanation of the inadvertency for their disclosure has been made more specific over the course of this dispute. Initially, Plaintiffs’ attorney asserted that, “[b]e-fore producing the documents, [his firm] engaged in a standard screening process to eliminate privileged documents from those that would be produced to Unitrode.” (Kolo-dey Decl. H 3.) In particular, counsel explained, he instructed a knowledgeable paralegal case manager to review the responsive documents which had been collected and to remove for his review “all documents which constitute communications to, from or between Vicor, Vicor’s U.S. attorneys (i.e., [Fish & Richardson]), and Vicor’s foreign patent attorneys and agents.” (Id.) When the paralegal assured counsel that all such documents had'been removed, he authorized her to produce the remaining materials. Later, when challenged by Unitrode’s attorney at the hearing before Judge Karol as to how “inadvertent” the disclosure really was, Plaintiffs’" }, { "docid": "18197944", "title": "", "text": "v. Sadowski, 441 F.3d 536 (7th Cir.2006)(“the phrase [reasonable probability] acquired a life of its own.”; \"the turn of the phrase was infelicitous.\"). . Where clients share a common lawyer, there is little question that otherwise privileged communications from or to one client may be shared with the other without a waiver of the privilege, inter se. Indeed, the common lawyer has an equal fiduciary obligation to both clients. . Absent the clarity provided by a protective order, questions of inadvertent disclosure become complicated. See, e.g., Urban Outfitters, Inc. v. DPIC Co., 203 F.R.D. 376, 380 (N.D.Ill.2001)(employing five-part balancing test). . See VLT Corp. v. Unitrode Corp., 194 F.R.D. 8, 10 (D.Mass.2000)(party held to have \"learned” or \"discovered\" inadvertent production when opponent used document in a brief); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96-7590, 1997 WL 736726, *2 (S.D.N.Y. Nov.26, 1997)(party held to have \"learned” of inadvertent production when opponent notified it that the document had been produced). . In United States v. Davis, 1 F.3d 606, 609 (7th Cir.1993), the Seventh Circuit refused to overrule its earlier decision in Feldberg, 862 F.2d 622, 626 (7th Cir.1988), which had held that a party has established a prima facie case to dispel the privilege whenever it presents evidence sufficient to require the adverse party, the one with superior access to the evidence, to come forward with an explanation. . Mattenson did not refer either to the Seventh Circuit’s Davis decision (which came after Zolin) or to the Feldberg decision (which preceded Zolin). It did not discuss whether its adoption of the Second Circuit’s probable cause standard in In re Richard Roe, Inc., 68 F.3d 38, 40 (2nd Cir.1995) marked a sea change in the Seventh Circuit’s crime-fraud jurisprudence. Under its \"probable cause” standard, the Second Circuit requires the party wishing to invoke the crime-fraud exception to demonstrate \"that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.” Id. at 87. . This formulation," }, { "docid": "8510182", "title": "", "text": "a waiver); Data Systems of New Jersey, Inc. v. Philips Business Data Systems, Inc., No. 78 Civ. 6015, slip op. (S.D.N.Y. Jan. 8, 1981) (where one document was privileged among the several thousand produced, the Court held that the privilege was not waived); Desai, 1992 WL 110731 (where seventeen documents were privileged out of a “large production”, the court held that privilege was not waived). Fairness Overall issues of fairness weigh in favor of RLM. Plaintiffs have not demonstrated that they would be prejudiced by maintaining the privilege of the Disputed Documents. Depriving a party of information in an otherwise privileged document is not prejudicial. See Prescient Partners, 1997 WL 736726, at * 7. However, finding waiver would be prejudicial to RLM because the documents involve attorney-client communications about case strategy. Id. Based on the foregoing, the Court finds that production of the Disputed Documents was inadvertent and that it did not result in waiver of the privilege and work-product protection claimed by RLM in the Privilege Log with respect to the Disputed Documents or other documents identified in the Privilege Log. RLM’s Privilege Log Plaintiffs contend RLM has not set forth sufficient information in the Privilege Log to support work-product immunity. “The standard for testing the adequacy of the privilege log is whether, as to each document, it sets forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity claimed. The focus is on the specific descriptive portion of the log, and not on the conclusory invocations of the privilege or work-product rule Golden Trade v. Lee Apparel Company, et al., Nos. 09 Civ. 6291, 90 Civ. 6292, 1992 WL 367070 at *5 (S.D.N.Y. Nov. 20, 1992). Rule 45(d)(2) of the Federal Rules of Civil Procedure provides that: When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding" }, { "docid": "18197882", "title": "", "text": "clients relating to requests for legal advice regarding antitrust and other laws. Accordingly, the attorney-client privilege as to the pages at issue is not waived because the advice was revealed to Noranda and Falconbridge. b. Inadvertent Disclosure Generally, the burden of proving inadvertent disclosure is on the party asserting the privilege. Harmony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113, 116 (N.D.Ill.1996). That burden has been sustained by the Noranda defendants through the declaration of one of their attorneys regarding the precautions that were taken during the review of the 422 boxes containing approximately 800,000 documents. The 1994 report was produced on four previous occasions, with pages 9-11 redacted. Obviously, the production of the single unredacted copy was inadvertent. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126-27 (7th Cir.1997). Where discovery is extensive, mistakes are inevitable and claims of inadvertence are properly honored so long as appropriate precautions are taken. Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc., 132 F.R.D. 204, 207 (N.D.Ind.1990)(14,000 documents). This alone might be enough to sustain the defendants’ burden. But there is more. Recognizing the inevitability of mistakes in a case like this, the parties entered into an agreement that defined what was to be done in the event of inadvertent production in discovery; The inadvertent production of any document, thing or information in the Litigation shall be without prejudice to any claim that such material is privileged under the attorney-client privilege, or protected from discovery as work product. No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production. (Appendix to Plaintiffs’ Motion, Ex. 9, Agreed Protective Order, § 2). The parties agree that the joint protective order was essentially a contract, and rules of contract interpretation govern. Judges have no way of crawling into peoples’ minds; they must act on the basis of external signs. Pos-ner, Overcoming Law, 276 (1995). Thus, the search here, as with other contracts, is for the parties’ intent based on" }, { "docid": "8510178", "title": "", "text": "Inadvertent Production/Waiver Plaintiffs contend that the Disputed Documents should be produced because RLM- waived any claim to privilege by producing them. However, “inadvertent production will not waive the privilege unless the conduct of the producing party or its counsel evinced such extreme carelessness as to sug gest that it was not concerned with the protection of the asserted privilege.” Lloyds Bank PLC v. Republic of Ecuador, No. 96 Civ. 1789, 1997 WL 96591 at *3 (S.D.N.Y. Mar. 5, 1997), quoting Desai v. American International Underwriters, No. 91 Civ. 7735, 1992 WL 110731 at *1 (S.D.N.Y. May 12, 1992). Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103,105 (S.D.N.Y.1985), aff'd, 799 F.2d 867 (2d Cir.1986), identifies the following factors for consideration in determining whether inadvertent production constitutes waiver of a claim of privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure, (2) the time taken to rectify the error, (3) the scope of the production, (4) the extent of the disclosure, and (5) overriding issues of fairness. The Reasonableness of Precautions The mere fact of disclosure does not establish that a party’s precautions undertaken to protect the privileged evidence were unreasonable. See Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96 Civ. 7590, 1997 WL 736726, at * 5 (S.D.N.Y. Nov. 26, 1997); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 443 (S.D.N.Y.1995). Rather, a court must examine whether “the procedure[s] followed in maintaining the confidentiality of the documents] [were] ... so lax, careless, inadequate or indifferent to consequences as to constitute a waiver.” Martin v. Valley National Bank of Arizona, No. 89 Civ. 8361, 1992 WL 196798, at *3 (S.D.N.Y. Aug. 6, 1992) (citations omitted). Inadvertent production will not waive the privilege unless the conduct of the producing party or its counsel evinced such extreme carelessness as to suggest that they were not concerned with the protection of the privilege. See Lloyds Bank PLC, 1997 WL 96591, at *3 (citations omitted). Here, the Paul Weiss attorney overseeing the production gave specific instructions to the document production team concerning which documents were" } ]

[ { "docid": "23283116", "title": "", "text": "issued him a certificate of title for a car on April 10, 1991, and two identification cards in June 1990 and March 1996. Santana-Albarran also submitted rent receipts from January 1993 to November 1994 and again from January 1996 to December 1997. Thus, there existed several large gaps within the ten-year period during which Santana-Al-barran could not prove through documentary evidence that he was in the United States: from October 30, 1987 to December 19, 1989; from December 19, 1989 to June 1990; from June 1990 to April 10, 1991; from April 10, 1991 to January 1993; and from November 1994 to January 1996. To prove his presence during these gaps, Santana-Albarran submitted several affidavits from acquaintances attesting to the fact that he was in the United States. None of the affidavits, however, accounted for any time prior to April 1990, and therefore, gaps still remained in the required ten-year continuous period. Based on those gaps and the absence of any other corroborating evidence, the IJ concluded that Santana-Albarran “offers only his testimony to prove that he has been physically present in the United States for the required ten years.” J.A. at 105 (IJ Decision & Order). Therefore, the IJ ruled that Santana-Albarran failed to prove a prima facie case for cancellation of removal and denied Santana-Albarran’s application. On March 4, 2003, the BIA affirmed the IJ’s decision without an opinion. Santana-Albarran petitioned this court for review. II. ANALYSIS Before proceeding to the merits of Santana-Albarran’s claims, we must first address our jurisdiction to entertain his petition for review. The INA specifically divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). The denial of relief based on the ground that the alien has failed to demonstrate a continuous physical presence, however, is a non-discretionary factual determination and properly subject to appellate review. Elnemr v. INS, 95 Fed.Appx. 121, 2004 WL 515858, at *4 (6th Cir. Mar.15, 2004); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001); Escudero-Corona v. INS, 244 F.3d 608, 612 (8th Cir.2001); Bernal-Vallejo" } ]

[ { "docid": "11703937", "title": "", "text": "of the ten-year period. Proceeding under the view that “[t]he instructions to the application for cancellation of removal ... require an applicant to document physical presence in the United States,” the IJ considered the witnesses’ testimony, without documentary evidence, insufficient to establish continuous presence and denied the applications. Under its streamlining procedures, 8 C.F.R. § 3.1(a)(7) (2002), the BIA affirmed the IJ’s decision without opinion. Jurisdiction Eligibility for cancellation of removal is based upon both discretionary and non-discretionary factors. 8 U.S.C. § 1229(b)(b). We do not have jurisdiction to review “decisions by the BIA that involve the exercise of discretion.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). We retain jurisdiction, however, to review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence. Cf. Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997) (holding that we have jurisdiction to review the BIA’s finding of lack of continuous presence for the purposes of suspension of deportation). We must determine, as a threshold matter, whether the BIA’s decision is properly subject to our review. Where, as here, the BIA adopts the decision of the IJ through its streamlining procedures, the decision of the IJ becomes the final decision of the BIA for purposes of our review. See 8 C.F.R. § 3.1(a)(7)(iii); Fajardo v. INS, 300 F.3d 1018, 1019 n. 1 (9th Cir. 2002). Although the IJ referenced discretionary factors, such as hardship and equity interests, she failed to resolve these issues definitively and did not rest her decision on these grounds. In contrast, the IJ left no doubt that she came to a definitive conclusion on the issue of continuous presence, and that this conclusion served as the basis of her decision, stating “the Court must conclude that the respondents have not met the physical presence requirement of the statute and therefore will fail in their applications for cancellation of removal.” Ultimately, the IJ’s decision to deny cancellation of removal was based solely on the determination that the Lopezes failed to establish ten years of continuous physical presence, a determination subject to review by this court." }, { "docid": "20683524", "title": "", "text": "within Mexico was impossible. Indeed, according to the BIA, Maldonado’s “fail[ure] to show that internal relocation within Mexico is impossible” constituted the very “circumstances” under which the IJ “properly found that the respondent failed to satisfy the requirements for eligibility for deferral of removal under [CAT].” The BIA’s conclusion demonstrates that failure to meet the burden stated in Lemus-Galvan was the determinative blow to Maldonado’s petition. Because Lemus-Galvan’s interpretation of the CAT regulations is no longer controlling, we grant the petition for review and remand to the BIA for reconsideration of Maldonado’s claim for deferral of removal. PETITION GRANTED and REMANDED. . Because the IJ deemed Maldonado credible, we take his testimony as true for purposes of this opinion. See, e.g., Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir.2014). . Although Maldonado's declaration in support of his CAT claim states that he was ordered deported \"[i]n or around 1998,” he testified that he did not leave the United States until 2000. The government, however, clarified that he was ordered removed on June 17, 1997, and was actually removed on November 7, 1998. .Maldonado used these English-language terms along with two additional Spanish-language terms, \"judiciales” and \"policiales,” to describe the corrupt Mexican police officers who seized him. . In Nuru v. Gonzales, we also explained that we have jurisdiction to review a claim for CAT relief under the Foreign Affairs Reform and Restructuring Act of 1998 (\"FARRA”), Pub. L. No. 105-277, Div. G, Tide XXII, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231). 404 F.3d 1207, 1215 (9th Cir.2005). . We disagree with Judge Gould's dissent that this case warrants dismissal under the prudential mootness doctrine for several reasons. See Gould dissent 1165-66. First, if Maldonado ultimately prevails before the agency, he will obtain meaningful relief — deferral of removal to Mexico. Second, we have not adopted prudential mootness per se. Hunt v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th Cir.2009) (noting that some of our sister circuits have adopted the prudential mootness doctrine and, even assuming we could apply it, declining to do so)." }, { "docid": "22142823", "title": "", "text": "a violent turf war with members of Lemus-Galvan’s extended family in the northern border regions of Mexico. In 1999, an IJ granted reopening but denied deferral of removal under the CAT, finding that it was more likely than not that Lemus-Galvan could safely relocate to another part of Mexico. Lemus-Galvan appealed the IJ’s denial of deferral of removal, and the BIA, without ruling on the merits of his CAT claim, remanded on the basis of a change in the law concerning eligibility for § 212(c) waivers. See 8 C.F.R. § 212.3(g) (allowing aliens whose deportation proceedings began before April 24, 1996, to apply for § 212(c) relief). On remand, the IJ denied Lemus-Gal-van’s request for a § 212(c) waiver. Expressly incorporating his reasoning from the 1999 decision, the IJ again denied Le-mus-Galvan’s request for deferral of removal under the CAT and ordered removal on the basis of his aggravated felony conviction. The BIA summarily affirmed the IJ’s opinion. Lemus-Galvan now seeks review of the BIA’s denial of his deferral of removal claim. ANALYSIS We must first decide whether we are barred from reviewing Lemus-Gal-van’s petition by 8 U.S.C. § 1252(a)(2)(C), which states that we may not review “any final order of removal against an alien who is removable by reason of having committed” certain criminal offenses, including aggravated felonies. Attempted second degree murder, the offense for which Le-mus-Galvan was convicted, is an aggravated felony. See id. § 1227(a)(2)(A)(iii). Because the IJ expressly premised removal on this conviction, the government argues that we are precluded from reviewing Le-mus-Galvan’s petition. We disagree. The jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive us of jurisdiction over denials of deferral of removal under the CAT, which are always decisions on the merits. See Morales, 478 F.3d at 980. It is significant that Lemus-Galvan seeks review only of the IJ’s denial of deferral of removal. There are two forms of relief under the CAT: withholding of removal and deferral of removal. See 8 C.F.R. §§ 208.16(c), 208.17(a). If an IJ determines that an aggravated felony constitutes a “particularly serious crime,” and denies withholding" }, { "docid": "5348067", "title": "", "text": "in support of the racketeering conspiracy charge. If we assume, without deciding, that the government’s decision to show Galvan a number of sets of photographs with recurring images of Bolton was impermissibly suggestive, the question is whether the circumstances surrounding Galvan’s choice of Bolton created “a very substantial likelihood of ... misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. at 2254. This question requires us to weigh the likelihood that Galvan could make an accurate identification against “the corrupting effect” of the suggestive procedure. Id. Galvan’s identification of Bolton was not as solid as it might have been, but the five factors set out in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972) indicate that there was some reason to believe that Galvan’s identification could be reliable. First, Galvan had ample opportunity to observe Bolton at the time of his alleged crimes. Second, he was likely to focus on the man demanding bribes. Third, so far as we know, Galvan gave no prior descriptions of Bolton to be weighed against his identification. See Kubat, 867 F.2d at 358-59 n. 5. The fourth and fifth factors weigh against the admission of the evidence: Galvan’s identification was tentative, and he did not pick Bolton out of a photo spread until more than a year after the incident. Although the relative weakness of the identification might have led to a different result in another case, in this case it must be weighed against an identification procedure that was not very suggestive. Bolton would have us suppose that Galvan picked his picture out of the six-man photo spread because his was the only picture that Gal-van had seen before. But Galvan had seen pictures of Bolton many months earlier, among 80-odd black and white photos and 50-odd color photos. Under the circumstances, it was reasonable for the district court to conclude that Galvan’s familiarity with Bolton’s face had more to do with Galvan’s unpleasant encounter with Bolton than with his exposure to the photo books. D. Best Evidence To corroborate the testimony of the victims and of" }, { "docid": "20683522", "title": "", "text": "not limited to the possibility of relocation within the country of removal. Section 1208.16(c)(2) does not place a burden on an applicant to demonstrate that relocation within the proposed country of removal is impossible because the IJ must consider all relevant evidence; no one factor is determinative. See § 1208.16(c)(3)(i)-(iv); Kamalthas, 251 F.3d at 1282. Nor do the regulations shift the burden to the government because they state that the applicant carries the overall burden of proof. To the extent that Hasan, Lemus-Galvan, Singh, and Perez-Ramirez conflict with the plain text of the regulations, they are hereby overruled. In its supplemental briefs the government argues that there may be certain terms in the regulations that the BIA may ultimately need' to clarify, but the government stresses that clarification should be the task of the BIA in the first instance. We do not quarrel with that principle. Indeed, we have said that “interpretation of BIA- regulations is ‘a matter that is placed primarily in agency hands.’ ” Brezilien v. Holder, 569 F.3d 403, 413 (9th Cir.2009) (quoting I.N.S. v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)) (brackets omitted). If the BIA were to provide a new interpretation of the regulations, we would give that interpretation an appropriate level of deference. See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Indeed, the BIA is not precluded from reading § 1208.16(e)(3) as requiring a CAT petitioner to show that he is unable to safely relocate within the country of removal. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (“an agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted”) (internal quotation marks omitted). Here, the BIA relied on Lemus-Galvan in affirming the denial of CAT relief, reasoning that Maldonado failed to show that internal relocation within Mexico was impossible. Although the BIA performed its own analysis, it ultimately affirmed the IJ’s decision precisely because Maldonado failed to prove that relocation" }, { "docid": "22561979", "title": "", "text": "sales efforts if Mr. Galvan would allow him to do that. The court also specifically found LaBeff “to be substantially less than credible, primarily because of the demeanor on the witness stand.” In “marked contrast,” the court found, was Galvan, “someone who came in from the prison system and who has nothing further to gain ..., but Galvan, unless he is just a grade A actor, which I find no reason to believe, gave testimony which was very coherent and understandable, and with the demeanor that was frankly quite persuasive.” The court also declined to award LaBeff three points for acceptance of responsibility, based on its conclusion that he had not been forthcoming on the stand. From a range of 78 to 97 months, LaBeff received a sentence of 80 months’ imprisonment. LaBeff argues that the only evidence that he was involved in the conspiracy for a year was the testimony of Galvan and the November 1993 incident. He insists that Galvan’s testimony is highly suspect because Galvan felt that his own legal problems stemmed entirely from LaBeffs statements, and there is no evidence that the November 1993 incident is linked with the conspiracy since it occurred eight months before his alleged April 1994 involvement. While the evidence that LaBeff was involved for a year is not impressive, the district court’s finding on that score is not clearly erroneous. We have elsewhere observed, in a case where, as here, the defendant challenged the amount of drugs attributed to him, that “the real issue raised by [the] defendant ... is the credibility of [the witness’s] testimony, which is an issue that belongs to the finder of fact.” United States v. Bingham, 81 F.3d 617, 630 (6th Cir.), cert. denied, — U.S. -, 117 S.Ct. 250, 136 L.Ed.2d 177 (1996); see United States v. Corrigan, 128 F.3d 330, 336 (6th Cir.1997). Thus, the district court’s credibility findings are basically unassailable; its observations regarding demeanor and LaBeffs nonrespon-siveness are rational and reasonable, and there is no basis for rejecting them. Moreover, the conclusion that Galvan is telling the truth about what LaBeff said," }, { "docid": "22625247", "title": "", "text": "of Immigration Appeals (“BIA”) erred in affirming the IJ’s decision. We therefore grant the petition for review and remand for consideration of the discretionary determinations of exceptional and extremely unusual hardship and moral character. Background In 1997, Hugo Lopez-Alvarado, a native and citizen of Guatemala, along with his wife Maria Lizardo de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause exceptional and extremely unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion of the ten-year period. Proceeding under the view that “[t]he instructions to the application for cancellation of removal ... require an applicant to document physical presence in the United States,” the IJ considered the witnesses’ testimony, without documentary evidence, insufficient to establish continuous presence and denied the applications. Under its streamlining procedures, 8 C.F.R. § 3.1(a)(7) (2002), the BIA affirmed the IJ’s decision without opinion. Jurisdiction Eligibility for cancellation of removal is based upon both discretionary and non-discretionary factors. 8 U.S.C. § 1229(b)(b). We do not have jurisdiction to review “decisions by the BIA that involve the exercise of discretion.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). We retain jurisdiction, however, to review for substantial evidence the BIA’s non-discretionary" }, { "docid": "2619609", "title": "", "text": "claims, must be considered ‘in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices.’ ” Ruiz, 860 F.2d at 617 (quoting United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988)). Galvan’s contention is based on Herrera’s no longer serving as a government informer at the time she shot him. She emphasizes that those activities had ceased as of his arrest in November 1988 and that the FBI no longer treated him as a cooperating witness. Therefore, she contends, the jury could not have concluded that she possessed the intent to prevent Herrera’s future communication of information regarding the commission of a federal crime. However, viewing the evidence in the light most favorable to the government, we note that the jury could have inferred that Galvan intended to prevent Herrera from revealing any additional information about their prior drug negotiations. And further, because Galvan and Herrera continued to associate with each other after they were released on bond, it was possible for the jury to infer that Galvan intended to prevent Herrera from communicating information he gleaned from contacts with her after his arrest. Moreover, the statute focuses on the defendant’s intent: whether she thought she might be preventing Herrera’s future communication of information. The jury was entitled to conclude that Gal-van believed that she was preventing communication, regardless of the actual likelihood that Herrera would communicate information. In sum, no manifest miscarriage of justice has occurred; the record is not devoid of evidence on count 2, and a conviction based on that evidence is not shocking. C. Galvan challenges her two firearm convictions, again on appeal asserting, for the first time, that the evidence was insufficient that the weapons traveled in interstate commerce. Likewise, because Gal-van did not move for a directed verdict or judgment of acquittal on the basis of insufficiency of the evidence, we review her conviction under the manifest miscarriage of justice standard. Both 18 U.S.C. §§ 922(g)(1) and (n) require that the weapon involved have “been shipped or transported in interstate or foreign commerce.” As" }, { "docid": "22142822", "title": "", "text": "McKEOWN, Circuit Judge: Gustavo Lemus-Galvan seeks review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial of deferral of removal under the Convention Against Torture (“CAT”). Notwithstanding that Lemus-Galvan was ordered removed on the basis of an aggravated felony, we have jurisdiction over his deferral of removal claim under the CAT. See Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007). BACKGROUND Lemus-Galvan is a native and citizen of Mexico who has been a legal permanent resident of the United States since 1982. He was convicted of attempted second degree murder. On the basis of that conviction, he was denied relief under § 212(c) of the Immigration and Nationality Act and ordered deported in 1996. After the BIA dismissed his appeal of that order, Lemus-Galvan moved to reopen proceedings to apply for deferral of removal under the CAT. He alleged that if he were returned to Mexico, it was more likely than not that he would be tortured by the Pimental family, a drug cartel that had been involved in a violent turf war with members of Lemus-Galvan’s extended family in the northern border regions of Mexico. In 1999, an IJ granted reopening but denied deferral of removal under the CAT, finding that it was more likely than not that Lemus-Galvan could safely relocate to another part of Mexico. Lemus-Galvan appealed the IJ’s denial of deferral of removal, and the BIA, without ruling on the merits of his CAT claim, remanded on the basis of a change in the law concerning eligibility for § 212(c) waivers. See 8 C.F.R. § 212.3(g) (allowing aliens whose deportation proceedings began before April 24, 1996, to apply for § 212(c) relief). On remand, the IJ denied Lemus-Gal-van’s request for a § 212(c) waiver. Expressly incorporating his reasoning from the 1999 decision, the IJ again denied Le-mus-Galvan’s request for deferral of removal under the CAT and ordered removal on the basis of his aggravated felony conviction. The BIA summarily affirmed the IJ’s opinion. Lemus-Galvan now seeks review of the BIA’s denial of his deferral of removal claim. ANALYSIS We must" }, { "docid": "20683521", "title": "", "text": "a well-founded fear of persecution: In cases in which the persecutor is a government or is government-sponsored, or the applicant has’established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate. 8 C.F.R. § 1208.13(b)(3)(ii); see Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.2013) (en banc). The regulations governing CAT deferral, unlike the asylum regulation, do not call for any burden shift ing. As in Hasan, Lemus-Galvan, and Singh, our interpretation of § 1208.16(c)(3) in Perez-Ramirez departs substantially from the text of the regulation. Hasan, Lemus-Galvan, Singh, and Perez-Ramirez run afoul of the regulations at issue here. Section 1208.16(c)(2) provides that an applicant for deferral of removal must demonstrate that it is more likely than not that he or she will be tortured if removed. In deciding whether the applicant has satisfied his or her burden, the IJ must consider all relevant evidence, including but not limited to the possibility of relocation within the country of removal. Section 1208.16(c)(2) does not place a burden on an applicant to demonstrate that relocation within the proposed country of removal is impossible because the IJ must consider all relevant evidence; no one factor is determinative. See § 1208.16(c)(3)(i)-(iv); Kamalthas, 251 F.3d at 1282. Nor do the regulations shift the burden to the government because they state that the applicant carries the overall burden of proof. To the extent that Hasan, Lemus-Galvan, Singh, and Perez-Ramirez conflict with the plain text of the regulations, they are hereby overruled. In its supplemental briefs the government argues that there may be certain terms in the regulations that the BIA may ultimately need' to clarify, but the government stresses that clarification should be the task of the BIA in the first instance. We do not quarrel with that principle. Indeed, we have said that “interpretation of BIA- regulations is ‘a matter that is placed primarily in agency hands.’ ” Brezilien v. Holder, 569 F.3d 403, 413 (9th Cir.2009)" }, { "docid": "22142825", "title": "", "text": "of removal under the CAT on the basis of the conviction, § 1252(a)(2)(C) bars our review of the denial of withholding. See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.2005) (holding that where denial of withholding of removal is not predicated on petitioner’s aggravated felony conviction, we have jurisdiction to review). However, even if an alien has been convicted of a “particularly serious crime,” and is ineligible for withholding of removal under the CAT, an IJ is required to grant deferral of removal if the alien can establish the likelihood of torture upon return. See 8 C.F.R. § 208.17(a). The jurisdictional wrinkle here is that although the IJ ordered removal on the basis of Lemus-Galvan’s felony conviction, he denied Lemus-Galvan’s request for deferral of removal under the CAT because Lemus-Galvan failed to establish that internal relocation within Mexico was impossible. Morales provides helpful guidance on this point: Absent a procedural defect, because the determination of the likelihood of torture is a decision on the merits, we have jurisdiction over petitions seeking review of such decisions. Morales, 478 F.3d 972. In Morales, the IJ ordered Morales’s removal on the basis of a crime involving moral turpitude, and denied her applications for asylum and withholding of removal on the basis that her offense was a “particularly serious crime.” Id. at 975. The IJ also denied Morales’s request for deferral of removal under the CAT because she had not shown that it was more likely than not that she would be tortured if she returned to Mexico. The BIA affirmed. On appeal, we concluded that we had jurisdiction over Morales’s claim for CAT relief: “[W]hen an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions— § 1231(b)(3)(B), § 1252(a)(2)(B)(ii), or § 1252(a)(2)(C)—apply to divest this court of jurisdiction.” Id. at 980. Because the IJ denied Lemus-Galvan’s request for deferral of removal on the merits, we have jurisdiction over his petition. Id. Lemus-Galvan failed to establish that internal relocation within Mexico was impossible. See 8 C.F.R. § 208.16(c)(3)(ii);" }, { "docid": "22625248", "title": "", "text": "IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion of the ten-year period. Proceeding under the view that “[t]he instructions to the application for cancellation of removal ... require an applicant to document physical presence in the United States,” the IJ considered the witnesses’ testimony, without documentary evidence, insufficient to establish continuous presence and denied the applications. Under its streamlining procedures, 8 C.F.R. § 3.1(a)(7) (2002), the BIA affirmed the IJ’s decision without opinion. Jurisdiction Eligibility for cancellation of removal is based upon both discretionary and non-discretionary factors. 8 U.S.C. § 1229(b)(b). We do not have jurisdiction to review “decisions by the BIA that involve the exercise of discretion.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). We retain jurisdiction, however, to review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of con tinuous presence. Cf. Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997) (holding that we have jurisdiction to review the BIA’s finding of lack of continuous presence for the purposes of suspension of deportation). We must determine, as a threshold matter, whether the BIA’s decision is properly subject to our review. Where, as here, the BIA adopts the decision of the IJ through its streamlining procedures, the decision of the IJ becomes the final decision of the BIA for purposes of our review. See 8 C.F.R. § 3.1(a)(7)(iii); Fajardo v. INS, 300 F.3d 1018, 1019 n. 1 (9th Cir.2002). Although the IJ referenced discretionary factors, such as hardship and equity interests, she failed to resolve these issues definitively and did not rest her decision on these grounds. In contrast, the IJ left no doubt that she came to a definitive conclusion on the issue of continuous presence, and that this conclusion served as the basis of her decision, stating “the Court must conclude that the respondents have not" }, { "docid": "20683538", "title": "", "text": "that it is more likely than not that Mr. Singh will be tortured upon returning to India.” 439 F.3d at 1113. Moreover, we noted that: If Mr. Singh’s fear is based on the mistaken belief of police in a certain area, he would presumably be safe in another area of India where the police do not take him for a separatist. The record contains no evidence that simply being an apolitical Sikh would cause police to torture Mr. Singh if they do not believe he is a separatist. Id. In Lemus-Galvan, the petitioner sought CAT relief, alleging that if he were returned to Mexico, he would be tortured by a drug cartel family because they “had been involved in a violent turf war with members of Lemus-Galvan’s extended family in the northern border regions of Mexico.” 518 F.3d at 1083. On appeal, we concluded: Lemus-Galvan failed to establish that internal relocation within Mexico was impossible. See 8 C.F.R. § 208.16(c)(3)(ii); see also Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir.2004). Substantial evidence .therefore supports the IJ’s decision to deny deferral of removal under the CAT. See Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir.2003). Id. at 1084. “Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured” is one of four non-exhaustive factors that the immigration judge shall consider in assessing “all evidence relevant to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3) (emphasis added). Lemus-Galvan does not stand for the proposition that the ability to relocate is dispositive of a CAT petitioner’s claim. The BIA did not reject Maldonado’s claim solely because he failed to prove that internal relocation within Mexico was impossible. The majority overstates the issue when it says that, “[According to the BIA, Maldonado’s ‘failure] to show that internal relocation within Mexico is impossible’ constituted the very ‘circumstances’ under which the IJ' ‘properly found that the respondent failed to satisfy the requirements for eligibility for deferral of removal under [CAT].’ ” Instead, the BIA cited Maldonado’s failure to refute" }, { "docid": "11703936", "title": "", "text": "de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion of the ten-year period. Proceeding under the view that “[t]he instructions to the application for cancellation of removal ... require an applicant to document physical presence in the United States,” the IJ considered the witnesses’ testimony, without documentary evidence, insufficient to establish continuous presence and denied the applications. Under its streamlining procedures, 8 C.F.R. § 3.1(a)(7) (2002), the BIA affirmed the IJ’s decision without opinion. Jurisdiction Eligibility for cancellation of removal is based upon both discretionary and non-discretionary factors. 8 U.S.C. § 1229(b)(b). We do not have jurisdiction to review “decisions by the BIA that involve the exercise of discretion.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). We retain jurisdiction, however, to review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence. Cf. Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997) (holding that we have jurisdiction to review the BIA’s finding of lack of continuous presence for the purposes of suspension of deportation). We must determine, as a threshold matter, whether the BIA’s decision is properly subject" }, { "docid": "20683523", "title": "", "text": "(quoting I.N.S. v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)) (brackets omitted). If the BIA were to provide a new interpretation of the regulations, we would give that interpretation an appropriate level of deference. See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Indeed, the BIA is not precluded from reading § 1208.16(e)(3) as requiring a CAT petitioner to show that he is unable to safely relocate within the country of removal. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (“an agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted”) (internal quotation marks omitted). Here, the BIA relied on Lemus-Galvan in affirming the denial of CAT relief, reasoning that Maldonado failed to show that internal relocation within Mexico was impossible. Although the BIA performed its own analysis, it ultimately affirmed the IJ’s decision precisely because Maldonado failed to prove that relocation within Mexico was impossible. Indeed, according to the BIA, Maldonado’s “fail[ure] to show that internal relocation within Mexico is impossible” constituted the very “circumstances” under which the IJ “properly found that the respondent failed to satisfy the requirements for eligibility for deferral of removal under [CAT].” The BIA’s conclusion demonstrates that failure to meet the burden stated in Lemus-Galvan was the determinative blow to Maldonado’s petition. Because Lemus-Galvan’s interpretation of the CAT regulations is no longer controlling, we grant the petition for review and remand to the BIA for reconsideration of Maldonado’s claim for deferral of removal. PETITION GRANTED and REMANDED. . Because the IJ deemed Maldonado credible, we take his testimony as true for purposes of this opinion. See, e.g., Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir.2014). . Although Maldonado's declaration in support of his CAT claim states that he was ordered deported \"[i]n or around 1998,” he testified that he did not leave the United States until 2000. The government, however, clarified that he was ordered removed on June 17, 1997," }, { "docid": "11703935", "title": "", "text": "McKEOWN, Circuit Judge. We reaffirm here the principle that “the time element of an alien’s residency ... may be shown by credible direct testimony or written declarations.” Vera-Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir.2003). To qualify for the discretionary relief of cancellation of removal, an alien must, as a threshold matter, have been physically present in the United States for a continuous period of no less than ten years immediately preceding the date of the application. 8 U.S.C. § 1229b(b)(l). In denying the Lopezes’ application for cancellation of removal, the Immigration Judge (“IJ”) improperly required documentary evidence, despite substantial evidence supporting continuous presence and the lack of an adverse credibility finding. Because the IJ did not advance legitimate reasons for rejecting the testimony, the Board of Immigration Appeals (“BIA”) erred in affirming the IJ’s decision. We therefore grant the petition for review and remand for consideration of the discretionary determinations of extreme hardship and moral character. Background In 1997, Hugo Lopez-Alvarado, a native and citizen of Guatemala, along with his wife Maria Lizardo de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion" }, { "docid": "22625246", "title": "", "text": "his wife receives cancellation of removal, their son may be eligible for this or some other form of relief. 3. On slip op. 8015 Change “unusual hardship” to “exceptional and extremely unusual hardship” 4. On slip op. 8023 Change “extreme hardship” to “exceptional and extremely unusual hardship” OPINION McKEOWN, Circuit Judge. We reaffirm here the principle that “the time element of an alien’s residency ... may be shown by credible direct testimony or written declarations.” Vera-Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir.2003). To qualify for the discretionary relief of cancellation of removal, an alien must, as a threshold matter, have been physically present in the United States for a continuous period of no less than ten years immediately preceding the date of the application. 8 U.S.C. § 1229b(b)(1). In denying the Lopezes’ application for cancellation of removal, the Immigration Judge (“IJ”) improperly required documentary evidence, despite substantial evidence supporting continuous presence and the lack of an adverse credibility finding. Because the IJ did not advance legitimate reasons for rejecting the testimony, the Board of Immigration Appeals (“BIA”) erred in affirming the IJ’s decision. We therefore grant the petition for review and remand for consideration of the discretionary determinations of exceptional and extremely unusual hardship and moral character. Background In 1997, Hugo Lopez-Alvarado, a native and citizen of Guatemala, along with his wife Maria Lizardo de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause exceptional and extremely unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The" }, { "docid": "22142824", "title": "", "text": "first decide whether we are barred from reviewing Lemus-Gal-van’s petition by 8 U.S.C. § 1252(a)(2)(C), which states that we may not review “any final order of removal against an alien who is removable by reason of having committed” certain criminal offenses, including aggravated felonies. Attempted second degree murder, the offense for which Le-mus-Galvan was convicted, is an aggravated felony. See id. § 1227(a)(2)(A)(iii). Because the IJ expressly premised removal on this conviction, the government argues that we are precluded from reviewing Le-mus-Galvan’s petition. We disagree. The jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive us of jurisdiction over denials of deferral of removal under the CAT, which are always decisions on the merits. See Morales, 478 F.3d at 980. It is significant that Lemus-Galvan seeks review only of the IJ’s denial of deferral of removal. There are two forms of relief under the CAT: withholding of removal and deferral of removal. See 8 C.F.R. §§ 208.16(c), 208.17(a). If an IJ determines that an aggravated felony constitutes a “particularly serious crime,” and denies withholding of removal under the CAT on the basis of the conviction, § 1252(a)(2)(C) bars our review of the denial of withholding. See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.2005) (holding that where denial of withholding of removal is not predicated on petitioner’s aggravated felony conviction, we have jurisdiction to review). However, even if an alien has been convicted of a “particularly serious crime,” and is ineligible for withholding of removal under the CAT, an IJ is required to grant deferral of removal if the alien can establish the likelihood of torture upon return. See 8 C.F.R. § 208.17(a). The jurisdictional wrinkle here is that although the IJ ordered removal on the basis of Lemus-Galvan’s felony conviction, he denied Lemus-Galvan’s request for deferral of removal under the CAT because Lemus-Galvan failed to establish that internal relocation within Mexico was impossible. Morales provides helpful guidance on this point: Absent a procedural defect, because the determination of the likelihood of torture is a decision on the merits, we have jurisdiction over petitions seeking review of such" }, { "docid": "19797397", "title": "", "text": "He sought relief in the form of cancellation of removal and adjustment of status pursuant to INA § 240A(b)(1), which permits the Attorney General to cancel removal and adjust the status of an otherwise deportable alien who, among other conditions, “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [his] application.” 8 U.S.C. § 1229b(b)(1)(A). The government moved to “pretermit” Guamanrrigra’s application for cancellation of removal, arguing that Guamanrrigra had not been physically present in the United States for a continuous period of ten years immediately prior to his January 2009 application for relief, because the service of the April 2000 NTA had stopped the accrual of time of continuous presence in accordance with the stop-time rule of § 240A(d)(1)(A). In response, Guamanrrigra’s counsel argued that the failure of the Department of Homeland Security (“DHS”) to include the date and time of the projected hearing in the April 2000 NTA, as required under § 239(a)(1)(G)(i), rendered the document fatally defective, and therefore service of the April 2000 NTA had not terminated Guamanrrigra’s accrual of time of “continuous” presence. Following briefing and a September 2009 merits hearing, the IJ issued an oral decision denying Guamanrrigra’s application for cancellation of removal and ordering him removed to Ecuador. The IJ found that “personal service of the [April 2000 NTA] on [Guamanrrigra] revealing to him that he is in proceedings [and] the consequences of failing to appear in proceedings,” constituted proper service under § 239(a)(1), notwithstanding the fact that the April 2000 NTA did not specify the date and time of the projected hearing. Moreover, the IJ found that Guamanrrigra’s concerns that “service [of the April 2000 NTA] was not properly consummated” under § 239(a)(1) were mitigated by the fact that he indisputably received a Notice of Hearing on May 1, 2000, that specified the date, time, and location at which his hearing would be held. Accordingly, the IJ found that Guamanrrigra’s “continuous presence in the United States was tolled as of April 12, 2000, when [he] was properly served" }, { "docid": "22561941", "title": "", "text": "was not even mentioned. c. Limitation of Cross-Examination of Galvan and Míreles Edward next complains that he was wrongly prohibited from two lines of cross-examination. First, he wanted to question Galvan as to whether Galvan thought that a Texas charge of attempted murder would be dropped as a result of his testimony in this case. The AUSA objected, contending that there was no basis for thinking this was the case; the court agreed. Outside the presence of the jury, Galvan testified that he had been charged with attempted murder in Texas, but that the charges were still pending. He further testified that he did not expect any benefit with respect to that charge from testifying in this case. The court then ruled that the defendants would not be permitted to question Galvan on this topic in front of the jury. As a general matter, “[a] proper area of inquiry on cross-examination is a witness’ motivation in testifying and possible bias.” United States v. Clark, 988 F.2d 1459, 1464 (6th Cir.1993). However, it is within a court’s discretion to reject bias evidence on the ground that it is only remotely relevant. See United States v. Phillips, 888 F.2d 38, 41 (6th Cir.1989); United States v. Meyer, 803 F.2d 246, 249 (6th Cir.1986). The government argues that Galvan’s proffer demonstrated that cross-examination of Galvan would have revealed nothing in the way of bias, but would have served only the improper purpose of making the jury aware of the charge, which itself had no relevance to this prosecution. We agree. The district court did not abuse its discretion by prohibiting defense counsel from pursuing the proposed line of inquiry. Edward’s second complaint is with respect to the cross-examination of Míreles, whom he wished to question regarding a statement allegedly made to her by Joseph, to the effect that Herb Akin attempted to pick up the package of marijuana from Computer-land, a line of inquiry he was foreclosed from pursuing. Our review of the record indicates that Scott Maliszewski’s attorney was in fact permitted to ask Míreles about this: Q Who did you believe" } ]