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[ { "docid": "19929163", "title": "", "text": "OPINION IRENAS, Senior United States District Judge. Richard Martin Pulyer (hereafter “Pu-lyer” or “Defendant”), appeals his sentence of 78 months imposed after he pleaded guilty to 26 counts of mail fraud (in violation of 18 U.S.C. § 1341) and access device fraud (in violation of 18 U.S.C. § 1029(a)(2)). Pulyer’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), along with a Motion to Withdraw as Counsel, while Pulyer has filed a pro se brief in support of his appeal. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over the sentencing order pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we will affirm the sentence and grant counsel’s request to withdraw. I. Pursuant to a written plea agreement with the United States, Pulyer pled guilty to 26 counts of mail fraud and access device fraud on June 7, 2004. The Second Revised Pre-sentencing Investigation Report recommended a Sentencing Guideline offense level of 24, including enhancements of four points because the offense involved fifty or more victims and two points for abusing a position of trust. (App. at pp. 148-49). The Probation Department also recommended a criminal history category of III. (App. at p. 151). Although the plea was taken before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the discretion granted to the District Court by this decision applied to Pulyer’s sentencing, which occurred thereafter. On January 27, 2005, Pulyer filed a Notice of Motion for Downward Departure, in which U.S.S.G. § 5K2.13 (Diminished Capacity) was cited as the sole basis for the departure. (App. at p. 116). However, the brief in support of this motion argued, inter alia, that (i) the offense level calculations, including those for number of victims, loss amount, and abuse of position of trust, were erroneous; (ii) the criminal history score was overstated; (iii) the loss amount overstated the seriousness of the offense (Application Note 10 to U.S.S.G. § 2F1.1, since deleted); (iv) a" } ]

[ { "docid": "19002602", "title": "", "text": "felony convictions for kidnaping, rape and possession of cocaine, the district court calculated a guidelines range of 235 to 293 months. The court, however, sentenced Mr. McGee below that range to 200 months’ imprisonment, five years of supervised release and a $100 special assessment. Mr. McGee filed a notice of appeal, but the appointed lawyer representing him at that time concluded that the appeal was frivolous and moved to withdraw under Anders. We granted counsel’s motion and dismissed the appeal. United States v. McGee, 216 Fed.Appx. 580 (7th Cir.2007). Meanwhile, Mr. McGee helped the Government apprehend his supplier, and thus the Government filed a motion, pursuant to Rule 35(b), asking the district court to reduce his sentence as a reward for his substantial assistance. The court granted that motion and gave Mr. McGee a chance to speak on his own behalf before imposing a new sentence. The court then reduced Mr. McGee’s original sentence by 40 months and imposed a 160-month term of imprisonment. The court entered a new judgment reflecting the reduced term. II DISCUSSION Mr. McGee filed a notice of appeal from the new judgment. Once again, his appointed lawyer seeks to withdraw under Anders because he cannot find a nonfrivo-lous basis for appeal. We invited Mr. McGee to respond to counsel’s motion, see Cir. R. 51(b), but he has not done so. Counsel’s brief is facially adequate, so we confine our review to the potential issue identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel ultimately concludes that Mr. McGee’s appeal is frivolous because, in United States v. McDowell, 117 F.3d 974, 978 (7th Cir.1997), we held that this court lacks jurisdiction to review a revised term of imprisonment entered in response to a motion from the Government under Rule 35(b). See also United States v. Moran, 325 F.3d 790, 792 (6th Cir.2003); United States v. McMillan, 106 F.3d 322, 324 n. 4 (10th Cir.1997); United States v. Doe, 93 F.3d 67, 68 (2d Cir.1996); United States v. Pridgen, 64 F.3d 147, 149-50 (4th Cir.1995); United States v. Arishi, 54 F.3d" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "14850545", "title": "", "text": "also had a prior drug-related felony conviction. On December 3, the district court sentenced him to 380 months in prison after finding that he was responsible for fifteen kilograms or more of methamphetamine and enhancing his sentence for possessing a firearm and for obstructing justice. Garcia filed his notice of appeal on December 10. Garcia’s counsel, unable to discern a non-frivolous basis for appeal, moved to withdraw. Counsel supports his motion with a thorough brief filed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia did not respond to his counsel’s submission, and we therefore confine our review of the record to the potential issues raised in his counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). After reviewing the record and counsel’s well-written Anders brief, we agree that there are no non-frivolous issues for appeal. Counsel first raises the district court’s evidentiary rulings regarding two witnesses, but Garcia forfeited his challenges by failing to object at trial, see United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009), and we find no plain error in the court’s rulings. Counsel also addresses the sufficiency of the evidence to convict Garcia, but he correctly highlights more than enough evidence from which a reasonable jury could have found Garcia guilty. See Moses, 513 F.3d at 733. Counsel next calls our attention to the denial of Garcia’s requests for a new attorney. The court below held ex parte hearings to determine whether the requests should be granted, applied the proper criteria, and did not abuse its discretion in finding that new counsel was inappropriate. See United States v. Ryals, 512 F.3d 416, 419-20 (7th Cir.2008) (explaining the applicable standard when considering a motion for new counsel); United States v. Best, 426 F.3d 937, 947 (7th Cir.2005) (same). Finally, counsel notes multiple issues regarding Garcia’s sentence. After reviewing each of them, we agree that the district court properly calculated the drug quantity for which Garcia was held responsible and did not err by imposing enhancements for possession of a firearm and" }, { "docid": "23571427", "title": "", "text": "PER CURIAM. Immigration officials caught up with Clemente Cano-Rodriguez, a Mexican citizen, while he was serving time for a drug conviction in an Illinois state prison. Unfortunately for Cano-Rodriguez, he had been deported once before, and so upon his release from state prison he was charged in federal court and pleaded guilty to being in the United States without permission. See 8 U.S.C. § 1326(a). Cano-Rodriguez appeals, but his appointed lawyer has moved to withdraw because he cannot discern any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). Cano-Rodriguez was notified about counsel’s motion, see Cir. R. 51(b), and he responded by requesting the appointment of new counsel. Counsel’s supporting brief is facially adequate, so we limit our review to the potential issues he identifies. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). At sentencing, Cano-Rodriguez argued that the district court should decline to assess him an additional two criminal history points for committing his immigration crime while in prison. See U.S.S.G. § 4Al.l(d). Cano-Rodriguez asserted that DEA agents participated in the investigation that led to his state drug conviction, and so federal authorities should have immediately charged him with violating § 1326(a) instead of waiting for his state sentence to expire. The court rejected this argument, observing that Cano-Rodri-guez had provided no evidence whatsoever that the federal government knew from the moment of his arrest that he was in the country illegally. The court therefore began with a base offense level of 8, see U.S.S.G. § 2L1.2, and added 16 levels because Cano-Rodriguez had been deported after committing a drug trafficking offense for which he received a six-year sentence, see id. § 2L1.2(b)(l)(A). The court then subtracted three levels for acceptance of responsibility, resulting in a total offense level of 21. See id. § 3E1.1. Finally, the court added the two extra criminal history points, yielding a criminal history category of IV and an imprisonment range of 57 to 71 months. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court sentenced Cano-Rodriguez" }, { "docid": "19055745", "title": "", "text": "of Garrett in this case. . Although we ultimately hold that the factual record below is incomplete as a matter of law, we briefly review the factual findings of the trial court to assist the district court on remand. . Mrs. Chatterjee still asserts on this appeal that counsel for the shipowners should have suspected the authority and credentials of Ghosal, and that given their conduct, there was overreaching on the part of the shipowners. She argues that counsel for the shipowners was present when Ghosal was paid $15,000 in cash, which is now unaccounted for; counsel for the shipowners knew that Ghosal provided no written bill or receipt and nonetheless wired for the settlement funds to be sent; the shipowners settled without a personal representative under Fed.R.Civ.P. 25(a); and the settlement was made without approval of the settlement terms by a district court. (Appellant’s Brief at 17-24). We will not address these contentions in view of our holding. . The district court reviewed the testimony and concluded that this record was of no assistance on the issue of Mrs. Chatterjee’s credibility. The district judge viewed the case as one involving an underlying family quarrel and therefore he wanted the opportunity to view the demean- or of Mrs. Chatterjee and the other family members. Thus, even though the depositions contain certain factual allegations, which, if accepted as true, would establish that Ghosal forged the powers of attorney and fraudulently represented that he acted on behalf of the family members, the district court determined that this testimony was inadmissible. . Rule 804(a) provides that unavailability includes situations where the declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of his statement; or (4) is unable to be present or testify at the hearing because of death or then existing physical or mental" }, { "docid": "14850544", "title": "", "text": "elect to pursue one sentencing argument while also choosing to forego another, and when the defendant selects as a matter of strategy, he also'waives those arguments he decided not to present.’ ” United States v. Kindle, 453 F.3d 438, 442 (7th Cir.2006) (quoting Jaimes-Jaimes, 406 F.3d at 848). Our duty when considering waiver is to divine from the record an intent to forego an argument, and counsel’s statement, in light of the other circumstances in this case, provides more than a sufficient basis for doing so. We find that Decker waived his challenge to the district court’s drug quantity calculation. III. Saul Garcia — Counsel’s Motion to Withdraw Garcia was another Indianapolis drug dealer who purchased methamphetamine from Baltista on multiple occasions. Following Garcia’s arrest on January 19, 2007, police found a drug ledger showing money owed to Garcia for fronted drugs, as well as cash and two rifles. Coconspirators also testified regarding Garcia’s drug transactions. On September 18, a jury found Garcia guilty of conspiracy to distribute more than 500 grams of methamphetamine; Garcia also had a prior drug-related felony conviction. On December 3, the district court sentenced him to 380 months in prison after finding that he was responsible for fifteen kilograms or more of methamphetamine and enhancing his sentence for possessing a firearm and for obstructing justice. Garcia filed his notice of appeal on December 10. Garcia’s counsel, unable to discern a non-frivolous basis for appeal, moved to withdraw. Counsel supports his motion with a thorough brief filed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia did not respond to his counsel’s submission, and we therefore confine our review of the record to the potential issues raised in his counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). After reviewing the record and counsel’s well-written Anders brief, we agree that there are no non-frivolous issues for appeal. Counsel first raises the district court’s evidentiary rulings regarding two witnesses, but Garcia forfeited his challenges by failing to object at trial, see United States v." }, { "docid": "8625661", "title": "", "text": "PER CURIAM. Hubert Davenport decided to show off his gun to his friends at a bar one night. A bar employee observed him and called the police, and Mr. Davenport, a felon on probation, was arrested and charged with violating 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced as an armed career criminal to 192 months’ imprisonment. See id. § 924(e). Mr. Davenport then filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Davenport has not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by addressing whether Mr. Davenport could challenge his conviction. Although she neglects to say whether she complied with this court’s requirement that she first ask him whether he wants his guilty plea set aside, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious," }, { "docid": "19055736", "title": "", "text": "fate, find their lives, liberty or property in the hands of the courts of the United States. III. Accordingly, we will vacate the order of the district court denying the petition to set aside the settlement and release and we will remand this matter to the district court with directions to invoke a commission for the purpose of taking testimony in India, pursuant to rule 28(b) of the federal rules of civil procedure. . The answer and claim listed the \"survivors and claimants of the late Pratik Chatterjee” as follows: Mrs. Prava Chatterjee (lawful mother) [decedent’s lawful father predeceased him], Mrs. Arati Ghosal (lawful sister), Sri Prasanta Chatterjee (lawful brother), and Sri Probir Chatterjee (lawful brother). Appendix (Earlier appeal, No. 80-1338) at 10a-19a. This court, by Order dated January 26, 1983 dispensed with an appendix in this appeal. An abbreviated appendix was filed. We are now, however, asked to consider the documents in No. 80-1338, an earlier appeal from a denial of the petition to vacate and set aside the release and settlement. In re Complaint of Banker’s Trust Co., 636 F.2d 37 (3d Cir.1980), as part of the present appeal. Transcript of Oral Argument at 6. Appendix (\"App.”) will refer to the appendix filed in the earlier appeal, No. 80-1338. Abbreviated Appendix (“Abb.App.”) will refer to the appendix filed by the appellant in this appeal. . The shipowners allege that their counsel alerted counsel for claimants that \"in the event one person is selected as the representative or attorney in fact, a suitable Power of Attorney must be prepared and executed, with translation of that document.” (Appellee’s Brief at 3). The shipowners further allege that their counsel required that the settlement documents be approved in India before an Indian judge. Two documents were purportedly signed by Mrs. Chatterjee — an undated \"power of attorney” and a \"special power of attorney.” The special power of attorney in issue is in English and a duplicate is in Mrs. Chatterjee’s own language. It appears to bear the signatures of the appropriate family members — Mrs. Prava Chatterjee, Mrs. Arati Ghosal, Sri Prasanta" }, { "docid": "23630580", "title": "", "text": "The district court weighed Vallar’s testimony against the government agents’ and concluded that Vallar lacked credibility. We find no clear error in this conclusion. See United States v. Ofcky, 237 F.3d 904, 910 (7th Cir.2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the testimony of the defendant against that of others and determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29 (7th Cir.1993). We affirm the district court’s application of the obstruction enhancement. G. Anders Brief in the Case of Tyrail Curry Curry pled guilty to Count One, the conspiracy charge, on September 6, 2006. He admitted to participating in Iniguez’s drug enterprise by assisting in the receipt and distribution of cocaine in Kentucky. The district court sentenced Curry to 210 months of imprisonment, the lowest within-guidelines sentence, and five years of supervised release. Curry’s counsel, a Federal Public Defender in the Central District of Illinois, concludes that Curry’s case is without merit and submits an Anders brief seeking permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g.," }, { "docid": "22694774", "title": "", "text": "in an Anders brief, the degree to which we rely on counsel to determine whether an appeal is warranted requires sufficient indicia in the brief that counsel has made a sound judgment. We find such to be lacking in the present case. We now turn to Reginald Dale’s ease where he was found guilty, by a jury, of being a felon in possession of a firearm. 18 U.S.C. § 922(g). The district judge sentenced him to a term of 72 months. Dale filed a timely notice of appeal, and his appointed counsel has filed a brief indicating that there is no nonfrivolous ground for appeal. Dale, like Tabb, has filed a response. Although this case is factually a lot simpler than Tabb’s, we conclude that the Anders brief here is inadequate. In the brief, counsel states that Dale wanted him to file an appeal and to raise certain issues, namely, that the trial judge erred in admitting a key piece of evidence and that the evidence was insufficient to support Dale’s conviction. Counsel then states, in a footnote, his belief that neither of these issues nor any others could provide a basis for a nonfrivolous appeal. But then, rather than explaining why these issues would be frivolous, counsel argues the issues advanced by Dale as though they had merit (having disclaimed the arguments as his own, and indicating he was making them only because his client requested that he do so). The approach taken here is not sufficient for us to grant counsel’s motion to withdraw. He simply makes the arguments that Dale requested and then states his belief that other arguments are frivolous, as though this were readily apparent. We do not think it is, and therefore we must deny counsel’s motion to dismiss the appeal and withdraw from the case. If counsel believes that this case involves no nonfrivolous ground for appeal, he should file another Anders brief explaining why any potential arguments have no merit. Counsel for Mr. Tabb should do the same thing. Counsel’s motion to withdraw and to dismiss the appeal in each case is" }, { "docid": "22694769", "title": "", "text": "if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we will have a sufficient basis for confidence in the lawyer’s competence to forego scrutiny of the rest of the record. Then, if we agree with the brief, we will grant the attorney’s request to withdraw as counsel and dismiss the appeal as meritless. We took this approach because a lawyer submitting an Anders brief is, in essence, offering an expert opinion that the appeal is devoid of merit. If the brief, on its face, is adequate, we think we can comfortably rely on the professional opinion it offers. We are also influenced by a defendant’s response, if any, to the Anders brief which must be served on the defendant. 7th Cir. R. 51(b). And although we do not attach conclusive weight to a defendant’s failure to respond to an Anders brief, it may, in fact, be an acknowledgment that the appeal should be abandoned as hopeless. Wagner at 552. The two eases before us today involve Anders briefs, and we have consolidated them because in each we find the brief to be inadequate. We hope, by issuing this written opinion, to provide further guidance to the Bar when submitting requests to withdraw coupled with an Anders brief. A jury found Clarence Tabb guilty of conspiring to distribute crack cocaine and a substantive count of possession of crack with the intent to distribute. 21 U.S.C. §§ 841(a)(1), 846. The district judge sentenced Tabb to concurrent prison sentences of 168 months on each of the two counts. Tabb’s appointed counsel has filed an Anders brief indicating that there is no nonfrivolous ground for appeal, and Tabb has filed a response. In his brief, counsel mentions both the defendant’s conviction and his sentence. He notes two possible grounds for appealing the sentence and discusses why these would be frivolous. We conclude that the discussion of these issues indicates an adequate review of the sentencing issues. We conclude, however, that counsel’s discussion of the possible grounds for appealing the defendant’s conviction does" }, { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "6971315", "title": "", "text": "appointed counsel filed an Anders brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aguirre did not initially respond, but we allowed him to file a late response. Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002) (counsel should not explore possible Rule 11 challenges in an Anders brief in the absence of a request by the defendant to withdraw his guilty plea). Counsel notes that in his plea agreement, Aguirre accepted the PSR’s guidelines calculations and reiterated at sentencing that he had no challenge to those calculations; any challenge to the court’s calculation of the advisory range would therefore be frivolous. Finally, counsel notes that although a below-guidelines sentence would have been reasonable in this case, Aguirre’s 235-month sentence — at the low end of the advisory range — is presumptively reasonable and there are no nonfrivolous arguments that might rebut that presumption. Aguirre now claims that he did not make any demands of the victim’s family and was not a leader or organizer of this kidnapping, but that conflicts with the facts he admitted when he entered his guilty plea. We agree with Aguirre’s counsel that there are no nonfrivolous arguments to pursue on appeal. For the foregoing reasons, we Affirm the judgment in Vizcarra’s case (No. 09-1174). In Aguirre’s case (No. 09-2457), we Grant counsel’s motion to withdraw and Dismiss the appeal. . We note that U.S.S.G. § 2J1.1, application note 2, was amended effective November 2011 and now explicitly provides that the enhancement in § 2B 1.1 (b)(9)(C) for violating a court order does not apply to failure to pay child support; this amendment was a response to our decision in United States v. Bell, 598 F.3d 366 (7th Cir.2010). See U.S.S.G. §" }, { "docid": "22720525", "title": "", "text": "it, how much or to whom they sold, what type they sold, or how many dealers could sell at Jocko’s at any given time. Moreover, the dealers were free to sell drugs elsewhere. Schuh’s participation in the dealing was limited. He was not a regular dealer, although he occasionally steered customers to the dealers and sometimes sold cocaine for the others. There is no evidence that Schuh recruited accomplices, and, although Schuh received cocaine from the dealers, he never claimed a larger share of the fruits of the crime in relation to the dealers. Therefore, because Schuh played no greater role in the offense than any of the other participants, see Must-read, 42 F.3d at 1103, we vacate Schuh’s sentence and remand for resentencing without an adjustment for being an organizer or leader. B. Lisa Nolen and Curtis Lane The attorneys for Nolen and Lane each move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that there are no non-frivolous grounds for appeal. We invited Nolen and Lane to respond to their attorney’s respective motion, see Cir. R. 51(b), but only Lane replied. Thus, we confine our review of the record to the potential issues raised in each attorney’s facially-adequate brief and Lane’s Rule 51(b) response. ' United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per cu-riam). 1. Nolen Nolen’s counsel first considers whether Nolen may argue that her guilty plea was not knowing and voluntary, but concludes that such an argument would be frivolous because the district court complied with Federal Rule of Criminal Procedure 11. Nolen did not move to withdraw her guilty plea, so we would review her Rule 11 plea colloquy only for plain error. See United States v. Vonn, — U.S. -, -, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Although we note one Rule 11 omission — the court failed to inform her of the effect of supervised release — it would not constitute plain error because Nolen’s 70-month prison term, when combined with her 3-year term of supervised release, is still" }, { "docid": "2547746", "title": "", "text": "the parties have briefed this issue, and we have the record before us, we will resolve it. Reiswitz, 941 F.2d at 495. But arguing and resolving the issue here precludes any subsequent challenge under 28 U.S.C. § 2255. Febus contends that his counsel should have asked Ken Eto (a government witness who narrowly survived an assassination attempt in which he sustained gunshot wounds to his head) about his head wounds and whether he was fit to testify. Eto was associated with organized crime in Chicago where he ran the bolita’s Illinois operation until he became an informant for the FBI in 1983 after the assassination attempt. Febus’s counsel cross-examined Eto, but declined to ask him about his gunshot wounds and risk opening the door for the government to inform the jury about his participation in organized crime. That was a reasonable strategy. See Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir.1997). E. Jose Santos Jose Santos’s appellate counsel seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he believes that there are no nonfrivolous issues for appeal. Pursuant to Circuit Rule 51(b), Santos filed a response to counsel’s motion. Because counsel’s Anders brief is adequate on its face, we consider only those issues raised in the brief and Santos’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). And our “duty is merely to determine whether counsel is correct in believing those grounds frivolous.” United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first considers whether Santos could argue that there was insufficient evidence to support Santos’s convictions for conspiracy, in violation of 18 U.S.C. § 371, and for aiding and abetting the bolita’s operation, in violation of 18 U.S.C. § 1955 and § 2. Santos “bears an extremely heavy burden” on this issue, as we will reverse a conviction only if “we determine that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Vega, 72 F.3d at 513. To establish a violation of § 1955, the" }, { "docid": "14537602", "title": "", "text": "did, the government put pressure on Mason’s counsel to decide quickly whether his client might have any nonfriv-olous ground for appeal. Rule 27(a)(3)(A) allows only eight business days to respond to a motion, though the time can be extended by the court. Id. Eight days (ten, if the weekend is included) is a short time for a defendant’s lawyer to comply with the duty imposed by the Anders decision, which is not just to assert that there are no nonfrivolous grounds of appeal but to substantiate the assertion by discussing any ground of appeal conceivably supported by the record. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). The client, moreover, is entitled to respond to his counsel’s motion to withdraw, id.; 7th Cir. R. 51(b), since the normal sequel to the grant of the Anders motion is to affirm the judgment summarily. So by filing the motion to dismiss, the government effectively shortened by several months (barring such extensions of time as the court might grant) the time that counsel had in which to assess Mason’s case and file a brief that, if he believed Mason’s appeal waiver unarguably valid, would comply with Anders. Yet despite this handicap, counsel was able to prepare a response that is the full equivalent of an Anders brief. He states in the response that he has reviewed the entire record and given the case thorough consideration, and his statement is corroborated by the detailed discussion in the response of the facts of the case, of the language of the appeal waiver, and of the Rule 11 colloquy. The response discusses several potential challenges to the waiver but concludes that all would be frivolous. It would be the height of formalism to refuse to treat the response to the motion to dismiss as an Anders brief merely because it is not labeled a brief and was not filed when the opening brief in the appeal was due. United States v. Gomez-Perez, 215 F.3d 315, 320-21 (2d Cir.2000)" }, { "docid": "13263098", "title": "", "text": "of knowing whether Mr. Maeder is aware of the potential Rule 11 violations. Nor do we know what choices he would have made had he known. Although counsel’s failure in Knox to advise his client of potential Rule 11 violations did not prevent us from granting the motion to withdraw, the situation presented here is different. In Knox, the Rule 11 violations which counsel missed appeared harmless: the failure to advise the defendant that he could plead not guilty appeared harmless because he already knew he had that right given that he had originally pleaded not guilty, id. at 670; the failure to advise him of the effects of supervised release appeared harmless because the combined terms of incarceration and supervised release did not exceed the statutory maximum, Schuh, 289 F.3d at 974. Therefore, even if counsel had recognized the Rule 11 lapses and had discussed them with his client, we could be reasonably certain that the defendant would still not have sought to withdraw his plea. Here, however, the failure to advise Mr. Maeder of the effects of supervised release may not have been harmless, and, as far as we can tell, he does not know about this potential nonfrivolous issue for appeal. Therefore, unlike the situation presented in Knox, the Rule 11 violation Mr. Maeder may not know about is a potentially nonfrivolous issue for appeal, and we do not know whether Mr. Maeder would want to withdraw his plea if he knew about the issue. Accordingly, we direct counsel to evaluate the two potential Rule 11 violations identified above and, within 14 days, either file an amended brief addressing why any challenge of his plea based upon them would be frivolous, or if counsel concludes that a challenge would not be frivolous, withdraw the Anders motion and request a briefing schedule. If counsel amends his brief, he must state in the brief whether he has advised Mr. Maeder of the ramifications of withdrawing his plea, and must serve the amended brief on Mr. Maeder under Circuit Rule 51(b). Mr. Maeder may then respond. Cir. R. 51(b)." }, { "docid": "16307265", "title": "", "text": "HAMILTON, Circuit Judge. In 2012 Cardell Brown pled guilty to failing to register as a sex offender, see 18 U.S.C. § 2250(a), and was sentenced to 18 months in prison followed by 60 months of supervised release. Within months of being released from prison, Brown was arrested by Illinois authorities for violating the state’s sex-offender registration law, 730 ILCS 150/3(a). He pled guilty and was sentenced to 18 months in state prison. Brown’s federal probation officer then petitioned the district court to revoke his supervised release, see 18 U.S.C. § 3583(e)(3), citing Brown’s state case and his failure to submit timely supervision reports on five occasions. Brown admitted the allegations. The district court revoked his supervised release, ordered him to serve an additional 12 months in prison (consecutive to his new state sentence) and imposed a 10-year term of supervised release. Brown filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). There is no constitutional right to counsel in a revocation proceeding when, as here, the defendant admits violating the conditions of his supervision and neither challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 41Í U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). The An-ders safeguards thus do not govern our review of counsel’s motion to withdraw, see Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); United States v. Wheeler, 814 F.3d 856, 857 (7th Cir.2016), though we follow them to ensure consideration of potential issues. We invited Brown to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that' explains the nature of the case and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be" }, { "docid": "14537601", "title": "", "text": "States v. Keresztury, 293 F.3d 750, 759-60 (5th Cir.2002). Ordinarily the government urges waiver of appeal after the defendant has filed either a merits brief or an Anders brief. But in this case the government decided not to wait for the opening brief to be filed (which is when an Anders brief would be due), instead moving to dismiss the appeal only a month after it was docketed and three months before Mason’s opening brief was due. The government cannot be faulted for proceeding thus. It has a right to file a motion to dismiss an appeal before briefing is completed, or for that matter begun. Rule 27 of the Federal Rules of Appellate Procedure, which governs motions in appeal proceedings, does not specify when a motion to dismiss can be filed; and appellees are urged to move to dismiss frivolous appeals before briefing, in order to save the parties’ money and the court’s time. Brooks v. Allison Division of General Motors Corp., 874 F.2d 489 (7th Cir.1989) (chambers opinion). However, by moving as it did, the government put pressure on Mason’s counsel to decide quickly whether his client might have any nonfriv-olous ground for appeal. Rule 27(a)(3)(A) allows only eight business days to respond to a motion, though the time can be extended by the court. Id. Eight days (ten, if the weekend is included) is a short time for a defendant’s lawyer to comply with the duty imposed by the Anders decision, which is not just to assert that there are no nonfrivolous grounds of appeal but to substantiate the assertion by discussing any ground of appeal conceivably supported by the record. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). The client, moreover, is entitled to respond to his counsel’s motion to withdraw, id.; 7th Cir. R. 51(b), since the normal sequel to the grant of the Anders motion is to affirm the judgment summarily. So by filing the motion to dismiss, the government effectively shortened by several months (barring" }, { "docid": "14583957", "title": "", "text": "PER CURIAM. Alan King used stolen social security numbers to poach Hurricane Katrina relief funds, student-loan money, Pell Grant money, and credit at various banks and retailers. King pleaded guilty to stealing government property, 18 U.S.C. § 641, loan fraud, id. § 1014, false representation of social security numbers, 42 U.S.C. § 408(a)(7)(B), and federal student financial aid fraud, 20 U.S.C. § 1097(a). The district court sentenced King to a total of 105 months’ imprisonment, along with five years’ supervised release, $183,845 in restitution, and a $400 special assessment. King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir.2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an An-ders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). King has responded to counsel’s facially adequate brief, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel and King. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We begin with King’s belated contention that he was not of “sound mind” when he pleaded guilty because he had ingested twice his morning dose of Elavil, a drug used to treat depression and anxiety. But other than saying that the antidepressant elevated his mood, King has not explained how it possibly could have impaired his rational faculties. See, e.g., United States v. Grimes, 173 F.3d 634, 636-37 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 n. 2 (7th Cir.1993). Moreover, King has given us no reason to doubt the veracity of his sworn statements that, notwithstanding his ingestion of the drug, he understood the charges against him, the rights that he was relinquishing by pleading guilty, and the consequences of his plea. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.2007); United States v. Fuller, 15 F.3d 646, 650 & n. 3 (7th Cir.1994). Indeed, only a few minutes after he entered his plea, King delivered" } ]

[ { "docid": "7936575", "title": "", "text": "conflict of interest but criticizing the majority for reaching that question unnecessarily and taking an unnecessarily limited view on the availability of discovery); Johnson v. Conn. Gen. Life Ins. Co., 324 Fed.Appx. 459, 466-67 (6th Cir.2009) (unpublished) (indicating that Glenn is consistent with the Sixth Circuit’s prior case law that permits discovery related to a dual role conflict of interest and procedural irregularities); Wilcox v. Wells Fargo & Co. Long Term Disability Plan, 287 Fed.Appx. 602, 603-04 (9th Cir.2008) (unpublished) (explaining that Glenn permits “consideration of evidence outside of the administrative record to determine the appropriate weight to accord the conflict of interest factor”). For the reasons we have discussed above, then, we conclude that our case law prohibits courts from considering materials outside the administrative record where the extra-record materials sought to be introduced relate to a claimant’s eligibility for benefits. See Sandoval, 967 F.2d at 380. Our cases and the Supreme Court’s decision in Glenn, however, contemplate that this general restriction does not conclusively prohibit a district court from considering extra-record materials related to an administrator’s dual role conflict of interest. Therefore, discovery related to the scope and impact of a dual role conflict of interest may, at times, be appropriate, and we now turn to elucidating the standard for addressing discovery requests related to a dual role conflict of interest. B. Standard for discovery related to a dual role conflict of interest Just as our cases have not clearly delineated between supplementation of the record with evidence of a claimant’s eligibility for benefits and supplementation .with evidence of the seriousness of a conflict of interest, our cases have also failed to articulate in plain terms the standard for discovery beyond the administrative record related to a dual role conflict of interest of an ERISA plan administrator. The Supreme Court in Glenn counseled against special procedural and evidentiary rules in this context. 128 S.Ct. at 2351. We take that counsel to apply also to discovery rules, which in this case will then be governed by the familiar standards of Federal Rule of Civil Procedure 26(b). As stated previously," } ]

[ { "docid": "5384510", "title": "", "text": "decision or between the found facts and the decision.” Meditrust, 168 F.3d at 215 (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996)); see Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 (5th Cir.1999) (en banc) (observing that there only need be “concrete evidence in the administrative record that supports the denial of the claim”), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Holland, 576 F.3d at 247 (“Our ‘review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall somewhere on a continuum of reasonableness—even on the low end.’ ”) (quoting Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007)). In deciding whether there was an abuse of discretion, we also consider whether the plan administrator has a conflict of interest. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). A plan administrator has a conflict of interest if it “both evaluates claims for benefits and pays benefits claims.” Glenn, 554 U.S. at 112, 128 S.Ct. 2343. “[Conflicts are but one factor among many that a reviewing judge must take into account.” Id. at 116, 128 S.Ct. 2343. “[A]ny one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance.” Id. at 117, 128 S.Ct. 2343. “The conflict of interest ... should prove more important (perhaps of great importance) where circumstances suggests a higher likelihood that it affect ed the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.” Id.; see Holland, 576 F.3d at 248 (observing that “the specific facts of the conflict will dictate its importance”). “It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote" }, { "docid": "5584495", "title": "", "text": "without reason, unsupported by substantial evidence or erroneous as a matter of law.’ ” Fuller v. J.P. Morgan Chase & Co., 423 F.3d 104, 107 (2d Cir. 2005) (quoting Pagan, 52 F.3d at 442). “Substantial evidence” is defined as “such evidence that a reasonable mind might accept as adequate to support the conclusion reached.... [It] requires more than a scintilla but less than a preponderance.” Miller, 72 F.3d at 1072 (citation omitted). Where, as here, the administrator of an ERISA plan “both evaluates claims for benefits and pays benefits” there is a “structural” conflict of interest. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). When a plan administrator “is operating under a conflict of interest, that conflict must be weighed as a ‘faetor[] in determining whether there is an abuse of discretion.’ ” Firestone, 489 U.S. at 115, 109 S.Ct. 948 (quoting Restatement (Second) of Trusts § 187 cmt. d (1959)). The Supreme Court has determined “that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.” Glenn, 554 U.S. at 108, 128 S.Ct. 2343 (citing Firestone, 489 U.S. at 115,109 S.Ct. 948). The Second Circuit, however, has held that “[n]o weight is given to a conflict in the absence of any evidence that the conflict actually affected the administrator’s decision.” Durakovic, 609 F.3d at 140 (citing Hobson, 574 F.3d at 83). DISCUSSION I. Defendants’ Motion to Strike “[A] district court’s review under the arbitrary and capricious standard is limited to the administrative record.” Miller, 72 F.3d at 1071; see also Rund v. JPMorgan Chase Grp. Long Term, Disability Plan, No. 10 Civ. 5284, 2012 WL 1108003, at *1, 2012 U.S. Dist. LEXIS 48525, at *3 (S.D.N.Y. Mar. 30, 2012) (“When a court reviews an administrator’s discretionary decision determining eligibility for benefits under a discretionary standard of review, the court may not consider" }, { "docid": "12062218", "title": "", "text": "determining whether there is- an abuse of discretion.” Salomaa, 642 F.3d at 674 (internal quotation . marks omitted).- However, structural conflicts do not divest the administrator of his delegated discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115-16, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Rather, they weigh more or less heavily as factors in the abuse of discretion calculus. Lee v. Kaiser Found. Health Plan Long Term Disability Plan, 563 Fed.Appx. 530, 530-31 (9th Cir.2014) (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948); see also Abatie, 458 F.3d at 967 (“We read Firestone to require abuse of discretion review whenever an ERISA plan grants discretion to the plan administrator, but a review informed by the nature, extent, and effect on the decision-making process of any conflict of interest that may appear in the record.”). In Montour v. Hartford Life & Acc. Ins. Co, the Ninth Circuit provided guidance for applying the abuse of discretion standard when there is a structural conflict of interest. 588 F.3d 623, 629-30 (9th Cir.2009). A determination of whether a plan administrator abused its discretion turns on a consideration of “numerous case-specific factors.” Id. at 630. The reviewing court must consider, as one of those factors, the existence of a conflict of interest and should assign weight to the conflict of interest based on the apparent degree to which the conflict improperly influenced the administrator’s decision. Id. Other factors that “frequently arise” in ERISA cases include: (1) the quality and quantity of medical evidence; (2) whether the plan administrator subjected the claimant to an in-person medical evaluation or merely relied on a paper review of the claimant’s existing medical records; (3) whether the administrator provided its independent experts with all of the relevant evidence; and (4) as applicable, whether the administrator considered a contrary Social Security Administration (“SSA”) disability determi nation. Id. at 630. Courts are directed to “reach a decision as to whether discretion has been abused by weighing and balancing [the] factors.” Id. Here, Defendant does not dispute that it plays a dual role as claims administrator and insurer. Accordingly," }, { "docid": "20039549", "title": "", "text": "v. Kaiser Steel Retirement Plan, 947 F.2d 1412, 1417 (9th Cir.1991)). However, where the administrator of the benefits plan has a conflict of interest, the abuse of discretion review is further modified and the Court must review the benefits decision “skeptically.” A conflict of interest arises where: the same entity makes the coverage decisions and pays for the benefits. This dual role always creates a conflict of interest, [citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) ], but it is “more important ... where circumstances suggest a higher likelihood that it affected the benefits decision.” [Glenn, 554 U.S. at 117, 128 S.Ct. 2343]. The conflict is less important when the administrator took “active steps to reduce potential bias and to promote accuracy,” id., such as employing a “neutral, independent review process,” or segregating employees who make coverage decisions from those who deal with the company’s finances. [Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 n. 7 (9th Cir.2006) (en banc).] The conflict is given more weight if there is a “history of biased claims administration.” Glenn, 554 U.S. at 117, 128 S.Ct. 2343. Our review of the administrator’s decision is also tempered by skepticism if the administrator gave inconsistent reasons for a denial, failed to provide full review of a claim, or failed to follow proper procedures in denying the claim, (citations omitted). Harlick v. Blue Shield, 656 F.3d 832, 839 (9th Cir.2011). The “skeptical” abuse of discretion standard has been explained by the Ninth Circuit as follows: [W]e consider whether application of a correct legal standard was “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” [quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) ]. That standard makes sense in the ERISA context, so we apply it, with the qualification that a higher degree of skepticism is appropriate where the administrator has a conflict of interest. Salomaa, 642 F.3d at 676. A. Discretion is Conferred on Met-Life Here, the Administrative Record" }, { "docid": "7936569", "title": "", "text": "(stating that “the district court generally may consider” only materials contained in the administrative record) (emphasis added). While Woolsey used more absolute language, as stated previously, it used that language in the context of addressing a district court’s consideration of substantive evidence of eligibility not included in the record. 934 F.2d at 1460. And like both Woolsey and Sandoval, most of our subsequent cases have employed this restriction with respect to substantive evidence of eligibility, or simply reiterated the restriction in rote form without substantive discussion of its scope. See, e.g., Holcomb, 578 F.3d at 1192 (reciting general proposition that a court’s review is limited to the administrative record without further comment); Weber, 541 F.3d at 1008 n. 7, 1011 (refusing to consider extra-record materials offered to prove substantive eligibility for benefits); Flinders, 491 F.3d at 1190— 91 (explaining that district court could review reasonableness only of rationale for denying claim that is asserted in the administrative record because the restriction on review of extra-record materials also prevents an administrator from submitting extra-record materials or theories); Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212-14 (10th Cir.2006) (noting court’s limitation to the record under abuse of discretion review without further comment); Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 767-68 (10th Cir.2004) (same); Allison v. UNUM Life Ins. Co. of Am., 381 F.3d 1015, 1021 (10th Cir.2004) (same); Finley v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 379 F.3d 1168, 1176 (10th Cir.2004) (same); Nance, 294 F.3d at 1269 (rejecting claimant’s argument that district court should consider substantive evidence of his disability submitted after administrator had issued its final decision); Hall, 300 F.3d at 1201 (same); Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir.1999) (same); Chambers v. Family Health Plan Corp., 100 F.3d 818, 824 (10th Cir.1996) (holding that Sandoval prevents review of substantive extra-record evidence regarding claimant’s eligibility for benefits and declining to address whether procedural irregularities affect a district court’s scope of review). Specifically, the broad language prohibiting extra-record discovery is potentially misleading in cases involving a dual role conflict of" }, { "docid": "15682575", "title": "", "text": "abused its discretion varies based upon the extent to which the decision appears to have been affected by a conflict of interest. Id. Under ERISA, Unum has a duty to process claims “solely in the interests of the [plan’s] participants and beneficiaries.” Glenn, 554 U.S. at 106, 128 S.Ct. 2343 (alteration in original) (internal quotation marks omitted). But because Unum “both decides who gets benefits and pays for them, ... it [also] has a direct financial incentive to deny claims.” Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 868 (9th Cir.2008); see also Glenn, 554 U.S. at 105, 114-15, 128 S.Ct. 2343; Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 966 (9th Cir.2006) (en bane). Unum’s dual role as plan administrator, authorized to determine the amount of benefits owed, and insurer, responsible for paying such benefits, creates a structural conflict of interest. See Glenn, 554 U.S. at 105, 114-15, 128 S.Ct. 2343. While not altering the standard of review itself, the existence of a conflict of interest is a factor to be considered in determining whether a plan administrator has abused its discretion. Id. at 108, 128 S.Ct. 2343. The weight of this factor depends upon the likelihood that the conflict impacted the administrator’s decisionmaking. Where, for example, an insurer has “taken active steps to reduce potential bias and to promote accuracy,” the conflict may be given minimal weight in reviewing the insurer’s benefits decisions. Id. at 117, 128 S.Ct. 2343. In contrast, where “circumstances suggest a higher likelihood that [the conflict] affected the benefits decision,” the conflict “should prove more important (perhaps of great importance).” Id. The district court held that “Unum’s conflict of interest did not weigh heavily upon its decision-making process in this case and therefore does not tip the scale towards a finding of an abuse of discretion.” In reaching this conclusion, the district court erred by failing to apply traditional principles of summary judgment; denying Stephan’s motion to compel discovery of certain internal memoranda between Unum’s claim analyst and its in-house counsel; and ignoring evidence that Unum" }, { "docid": "7936564", "title": "", "text": "F.3d at 1003); Fought, 379 F.3d at 1003 (citing Hall v. UNUM Life Ins. Co. of Am., 300 F.3d 1197, 1201 (10th Cir.2002)); Hall, 300 F.3d at 1201 (citing Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380-81 (10th Cir.1992), and Woolsey v. Marion Labs., 934 F.2d 1452, 1460 (10th Cir.1991)); Sandoval, 967 F.2d at 380 (citing out-of-circuit cases); Woolsey, 934 F.2d at 1460 (citing out-of-circuit cases). Because we generally restrict district courts’ review of an administrator’s decision to the administrative record and because Federal Rule of Civil Procedure 26(b)(1) permits discovery only where it “appears reasonably calculated to lead to the discovery of admissible evidence,” extra-record discovery would generally seem inappropriate. However, even as we have told district courts to limit their analysis to the administrative record, we have also instructed the district courts to assess the effect of a dual role conflict of interest in a manner that seems incompatible with a flat prohibition on extra-record discovery and supplementation. If an administrator operates under a dual role conflict of interest, the district court must always weigh the conflict of interest in its abuse of discretion analysis, but it must allocate the conflict more or less weight depending on its seriousness. See Weber, 541 F.3d at 1010. But, without discovery, a claimant may not have access to the information necessary to establish the seriousness of the conflict. Similarly, the administrator may not be fully able to rebut a claim of conflict by showing that it “has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances.” Glenn, 128 S.Ct. at 2351. And, if the district court cannot consider material beyond the administrative record, it may not be able to fulfill its judicial task of allocating the proper weight to the conflict of interest. If the administrative record does not specifically address these issues and if we flatly prohibited the consideration and discovery of information outside the administrative record, the district court may not be able to make a fully informed analysis that" }, { "docid": "14923500", "title": "", "text": "619 F.3d at 1163. We trust that district courts will guard against abusive discovery. We decline to address at this time whether Blue Cross complied with ERISA’s procedural requirements, whether Blue Cross abused its discretion, and whether the administrative record is complete. Following adequate discovery consistent with this opinion, the parties may raise these issues before the district court. The mandate shall issue forthwith. VACATE and REMAND. . Generally, this court is without jurisdiction to review a magistrate judge’s decision to deny discovery because the decision is not a final order under 28 U.S.C. § 1291. See Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 219-20 (5th Cir.2000). However, because Crosby timely challenged the court's discovery denial in her motion for reconsideration and the district court denied the motion, we have jurisdiction to consider the magistrate's discovery denial. See id. at 220. . 188 F.3d 287 (5th Cir.1999) (en banc), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), as recognized in Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 n. 3 (5th Cir.2009). . 215 F.3d 516 (5th Cir.2000). . Estate of Bratton, 215 F.3d at 521 (indicating that a claimant may contest whether the identified administrative record is complete). . Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 150 (5th Cir.2009) (remanding the case to the district court to further remand to the plan administrator because the plan administxator failed to comply with ERISA’s procedural requirements). .Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) (defining conflict of interest as a factor for the court to consider when evaluating whether the plan administrator abused its discretion)." }, { "docid": "7936574", "title": "", "text": "Nw. U.L.Rev. at 1317-21. This type of pressure was most apparent in cases of “subjective illnesses” that did not show up on x-rays, MRIs, and other objective medical tests (e.g., “mental illness, chronic pain, migraines, or even Parkinsons”). Id. at 1319 (quotation omitted). Although the Supreme Court did not explicitly state that the district court could consider extra-record materials or that a claimant could discover extra-record materials, it must have contemplated that, at least in some eases, discovery and consideration of extra-record materials may be necessary and appropriate as an administrative record is not likely to contain the details of a history of biased administration of claims as discussed in Langbein’s article. See Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d 1, 10 (1st Cir.2009) (“The majority opinion in Glenn fairly can be read as contemplating some discovery on the issue of whether a structural conflict has morphed into an actual conflict.”) (dicta); see also id. at 11 (Lipez, J., concurring) (agreeing with majority that Glenn contemplates discovery related to a dual role conflict of interest but criticizing the majority for reaching that question unnecessarily and taking an unnecessarily limited view on the availability of discovery); Johnson v. Conn. Gen. Life Ins. Co., 324 Fed.Appx. 459, 466-67 (6th Cir.2009) (unpublished) (indicating that Glenn is consistent with the Sixth Circuit’s prior case law that permits discovery related to a dual role conflict of interest and procedural irregularities); Wilcox v. Wells Fargo & Co. Long Term Disability Plan, 287 Fed.Appx. 602, 603-04 (9th Cir.2008) (unpublished) (explaining that Glenn permits “consideration of evidence outside of the administrative record to determine the appropriate weight to accord the conflict of interest factor”). For the reasons we have discussed above, then, we conclude that our case law prohibits courts from considering materials outside the administrative record where the extra-record materials sought to be introduced relate to a claimant’s eligibility for benefits. See Sandoval, 967 F.2d at 380. Our cases and the Supreme Court’s decision in Glenn, however, contemplate that this general restriction does not conclusively prohibit a district court from considering extra-record materials related" }, { "docid": "3492760", "title": "", "text": "if there are indications of improprieties on the part of an administrator, such as conflicts of interest or procedural irregularities. Abatie, 458 F.3d at 959, 972. As to structural conflicts of interest, it is frequently the case that “the same entity that funds an ERISA benefits plan also evaluates claims, as is the case here.” Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 631 (9th Cir.2009) (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008)). The Ninth Circuit has instructed that the “level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history.” Abatie, 458 F.3d at 968. On the other hand, however, a court also may weigh a conflict more heavily if: the administrator provides inconsistent reasons for denial; fails to investigate a claim adequately or ask the plaintiff for necessary evidence; fails to credit a claimant’s reliable evidence; has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly; or by making decisions against the weight of evidence in the record. Id. at 968-69. As to procedural irregularities, the Ninth Circuit applied the same framework in asserting that “[w]hen an administrator can show that it has engaged in an ongoing, good faith exchange of information between the administrator and the claimant, the court should give the administrator’s decision broad deference notwithstanding a minor irregularity.” Id. at 972. However, “[a] more serious procedural irregularity may weigh more heavily.” Id. Prior to the September 28, 2010 hearing, the parties disputed whether an abuse of discretion standard of review or a de novo standard should apply in this case. According to Lavino’s original trial brief, “where an ERISA administrator fails to render a decision on a claim in compliance with the time frames required by the Plan and/or the ERISA Regulations, the claimant is deemed to have exhausted administrative remedies and discretion, if any, is lost.” (PI. Trial Brief at 11)." }, { "docid": "12976404", "title": "", "text": "parties proceeded with discovery, and on December 2, 2008, Garvey served Defendants with discovery requests relating to a potential conflict of interest in Standard’s claim denial. Specifically, Garvey sought information regarding (1) the identities and compensation of Standard’s employees and other third-parties responsible for reviewing and denying his claim; (2) Standard’s policies and procedures; (3) statistics as to approval/denial/termination rates under the Plan; and (4) Standard’s financial information. Defendants objected to all of these requests, insisting that Garvey is not entitled to anything other than the administrative record. Garvey responded with a motion to compel, and the district court has referred the matter to this court for resolution. DISCUSSION When, as here, a plan administrator has discretionary authority to make benefits determinations, courts generally limit discovery to the administrative record. Vallone v. CNA Financial Corp., 375 F.3d 623, 629 (7th Cir.2004). The Seventh Circuit has cautioned that “discovery is normally disfavored in the ERISA context” and is only available in “exceptional circumstances.” Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 814-15 (7th Cir.2006). Specifically, the Seventh Circuit has allowed “limited discovery” where a plaintiff can both “identify a specific conflict of interest or instance of misconduct,” and “make a prima facie showing that there is good cause to believe limited discovery will reveal a procedural defect in the plan administrator’s determination.” Id. at 815. A. The Glenn Decision The question presented here is whether the Supreme Court’s recent decision in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), has any effect on these special discovery rules. The plan in Glenn “grant[ed] MetLife (as administrator) discretionary authority to determine whether an employee’s claim for benefits [wa]s valid; it simultaneously provided] that MetLife (as insurer) w[ould] itself pay valid benefit claims.” Id. at 2346. The Court found that this dual role creates a structural conflict of interest that “must be weighed as a ‘factor in determining whether there is an abuse of discretion.’” Id. at 2348 (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948," }, { "docid": "7936565", "title": "", "text": "the district court must always weigh the conflict of interest in its abuse of discretion analysis, but it must allocate the conflict more or less weight depending on its seriousness. See Weber, 541 F.3d at 1010. But, without discovery, a claimant may not have access to the information necessary to establish the seriousness of the conflict. Similarly, the administrator may not be fully able to rebut a claim of conflict by showing that it “has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances.” Glenn, 128 S.Ct. at 2351. And, if the district court cannot consider material beyond the administrative record, it may not be able to fulfill its judicial task of allocating the proper weight to the conflict of interest. If the administrative record does not specifically address these issues and if we flatly prohibited the consideration and discovery of information outside the administrative record, the district court may not be able to make a fully informed analysis that properly weighs the conflict of interest. This seeming tension in our case law, however, naturally resolves itself if we recall the origins of our language that speaks in terms of a flat rule against a district court’s consideration of extra-record information. Our first two cases to adopt this restriction from other circuits were Woolsey v. Marion Laboratories, 934 F.2d 1452, 1460 (10th Cir.1991) (citing Perry v. Simplicity Engineering, 900 F.2d 963, 966 (6th Cir.1990), and Voliva v. Seafarers Pension Plan, 858 F.2d 195, 196 (4th Cir.1988)), and Sandoval v. Aetna Life & Casualty Insurance Co., 967 F.2d 377, 380-81 (10th Cir.1992) (citing Perry, 900 F.2d at 967, and Voliva, 858 F.2d at 196). In both Sandoval and Woolsey, we articulated the rule against extra-record supplementation in the context of rejecting a claimant’s efforts to supplement the record with substantive evidence of his eligibility for benefits, such as additional evidence of disability. See Sandoval, 967 F.2d. at 380-81 (rejecting district court’s consideration of psychological evaluations not submitted to the plan administrator and explaining that “[i]n effect" }, { "docid": "7936585", "title": "", "text": "128 S.Ct. at 2351) (further quotation omitted). Because we emphasized that we “will always apply an arbitrary and capricious standard” of review even where dual role conflicts exist, we have interpreted our pre-Glenn approach as consistent with Glenn. Weber, 541 F.3d at 1010-11 (quotation omitted) (describing the two approaches as mirroring each other). However, because we have occasionally used the phrase “dial back our deference” to describe our analysis in cases of dual role conflicts, see id. at 1010, we pause to emphasize that this language means only that we will weigh the conflict of interest as a factor in our abuse of discretion analysis, and we will weigh it more or less heavily depending on the seriousness of the conflict, see id. at 1011 (\"[W]e still employ the arbitrary and capricious standard, but we will weigh [an administrator’s] conflict of interest as a factor in determining the lawfulness of the benefits denial.”). . To the extent these materials are not contained in the record, both the administrator and the plan participant will suffer an inability to present evidence related to the conflict. However, the administrator has better access to information regarding the steps it has taken and could include these materials in the administrative record if it so chooses. So the greater prejudice of prohibiting extra-record discovery falls on the claimant. . An administrator, however, may be found to have abused its discretion where it refuses to consider materials submitted for its review by the plan participant. Cf. Nance v. Sun Life Assurance Co. of Canada, 294 F.3d 1263, 1269 (10th Cir.2002) (rejecting claimant’s argument that a district court should consider substantive evidence of his disability submitted after administrator had issued its final denial of benefits because claimant had not shown the administrator acted in arbitrary and capricious manner by declining to reopen the claim based on claimant’s additional submissions). . Even in ERISA cases where we review the administrator's decision de novo, as for example where the plan does not vest discretion in the administrator to interpret the plan, we have \"emphasize[d] that ERISA policy strongly disfavors expanding" }, { "docid": "7936571", "title": "", "text": "interests or procedural irregularities. In fact, some of our cases contemplate the possibility that a district court may permit extra-record discovery related to a dual role conflict of interest. In Wolberg v. AT & T Broadband Pension Plan, 123 Fed.Appx. 840 (10th Cir.2005) (unpublished), the plan participant argued that the plan administrator had a standard conflict of interest, which meant that the plan participant bore the burden to prove the conflict existed and jeopardized the administrator’s decisionmaking process. Id. at 845. Although we reiterated the general principle that “[i]n ERISA cases [our] review is confined to the administrative record,” id. at 844-45, we explicitly criticized the plan participant for failing to seek discovery that could have proven the seriousness of the conflict of interest. Id. at 846 n. 3. Because we would not have criticized the plan participant for failing to seek discovery on the conflict of interest if discovery and supplementation of the record on that issue were never available, we necessarily implied that, at least in some circumstances, discovery related to a conflict of interest may be available. Cf. Weber, 541 F.3d at 1011 (noting, in a ease involving an administrator with an inherent dual role conflict of interest, that the court was left to its “own analytic devices” in assessing the administrator’s reasonableness in lights of its conflict, in part, because “the record reveal[ed] little about [the administrator’s] claims assessment process”). And district courts within our circuit have recognized that “limited discovery for the purpose of determining the scope of a conflict of interest” may be appropriate. Paul v. Hartford Life and Accident Ins. Co., No. 08-cv-00890, 2008 WL 2945607, *2 (D.Colo. July 28, 2008) (unreported) (compiling cases and concluding that “while it would not be proper to allow Plaintiff to conduct discovery directed to the factual merits of his claim, this Court will permit limited discovery related to the alleged conflict of interest in this case and to the policies and procedures used by [the administrator] to make its decision”); see also, e.g., Kohut, 710 F.Supp.2d at 1150-53, 2008 WL 5246163, *10-*13 (interpreting Tenth Circuit law" }, { "docid": "14031093", "title": "", "text": "granted in part and denied in part (R. 20). II. Legal Standard In order to succeed on a motion for reconsideration, the movant must establish a clear error of law; present newly discovered evidence; show that there has been an intervening change in controlling law; or show that absent relief, a manifest injustice will result. GenCorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999); Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998). Such motions are not an opportunity for the losing party to offer additional arguments in support of its position. Engler, 146 F.3d at 374. III. Analysis The plaintiff requests that the court reconsider its previous discovery order in light of a recent Supreme Court decision, Metropolitan Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). The plaintiff argues that he is now entitled to additional discovery. As discussed in the court’s previous order, generally, a district court bases its review of the denial of benefits solely upon the administrative record. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir.1998). A court may consider evidence outside the administrative record if that evidence “is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part,” but discovery should be limited to such procedural challenges. Wilkins, 150 F.3d at 619. Although courts differ as to what showing is required to justify discovery under this limited exception, it is clear that “a mere allegation of bias is insufficient to ‘throw open the doors of discovery’ in an ERISA case.” Likas v. Life Ins. Co. of North America, 222 Fed.Appx. 481, 486 (6th Cir.2007); see also Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 431 (6th Cir.2006) (“[UJntil a due process violation is at least eolorably established, additional discovery beyond the administrative record into a plaintiffs denial of benefits claim is impermissible.”). In Glenn, the Supreme Court held that a reviewing court must consider any conflict" }, { "docid": "7936572", "title": "", "text": "of interest may be available. Cf. Weber, 541 F.3d at 1011 (noting, in a ease involving an administrator with an inherent dual role conflict of interest, that the court was left to its “own analytic devices” in assessing the administrator’s reasonableness in lights of its conflict, in part, because “the record reveal[ed] little about [the administrator’s] claims assessment process”). And district courts within our circuit have recognized that “limited discovery for the purpose of determining the scope of a conflict of interest” may be appropriate. Paul v. Hartford Life and Accident Ins. Co., No. 08-cv-00890, 2008 WL 2945607, *2 (D.Colo. July 28, 2008) (unreported) (compiling cases and concluding that “while it would not be proper to allow Plaintiff to conduct discovery directed to the factual merits of his claim, this Court will permit limited discovery related to the alleged conflict of interest in this case and to the policies and procedures used by [the administrator] to make its decision”); see also, e.g., Kohut, 710 F.Supp.2d at 1150-53, 2008 WL 5246163, *10-*13 (interpreting Tenth Circuit law to permit discovery related to the seriousness of a conflict of interest). More to the point, the Supreme Court’s decision in Glenn contemplates the possibility of extra-record discovery related to a dual role conflict of interest. In Glenn, the Supreme Court explained that a conflict of interest weighs more heavily against an administrator where it has a history of biased claims administration. 128 S.Ct. at 2351. As an example of this situation, Glenn cited to a law review article by John Langbein that detailed the history of one company’s biased administration of claims. See id. (citing John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. U.L.Rev. 1315, 1317-21 (2007)). That article details how various investigations and lawsuits unrelated to benefit denial claims (e.g., wrongful termination claims by former employees) revealed that an insurer pressured its employees and physicians to deny claims without proper analysis yet instructed them to use language that a court would find adequate to support the denial. Langbein, supra, 101" }, { "docid": "7936570", "title": "", "text": "theories); Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212-14 (10th Cir.2006) (noting court’s limitation to the record under abuse of discretion review without further comment); Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 767-68 (10th Cir.2004) (same); Allison v. UNUM Life Ins. Co. of Am., 381 F.3d 1015, 1021 (10th Cir.2004) (same); Finley v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 379 F.3d 1168, 1176 (10th Cir.2004) (same); Nance, 294 F.3d at 1269 (rejecting claimant’s argument that district court should consider substantive evidence of his disability submitted after administrator had issued its final decision); Hall, 300 F.3d at 1201 (same); Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir.1999) (same); Chambers v. Family Health Plan Corp., 100 F.3d 818, 824 (10th Cir.1996) (holding that Sandoval prevents review of substantive extra-record evidence regarding claimant’s eligibility for benefits and declining to address whether procedural irregularities affect a district court’s scope of review). Specifically, the broad language prohibiting extra-record discovery is potentially misleading in cases involving a dual role conflict of interests or procedural irregularities. In fact, some of our cases contemplate the possibility that a district court may permit extra-record discovery related to a dual role conflict of interest. In Wolberg v. AT & T Broadband Pension Plan, 123 Fed.Appx. 840 (10th Cir.2005) (unpublished), the plan participant argued that the plan administrator had a standard conflict of interest, which meant that the plan participant bore the burden to prove the conflict existed and jeopardized the administrator’s decisionmaking process. Id. at 845. Although we reiterated the general principle that “[i]n ERISA cases [our] review is confined to the administrative record,” id. at 844-45, we explicitly criticized the plan participant for failing to seek discovery that could have proven the seriousness of the conflict of interest. Id. at 846 n. 3. Because we would not have criticized the plan participant for failing to seek discovery on the conflict of interest if discovery and supplementation of the record on that issue were never available, we necessarily implied that, at least in some circumstances, discovery related to a conflict" }, { "docid": "14031094", "title": "", "text": "administrative record. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir.1998). A court may consider evidence outside the administrative record if that evidence “is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part,” but discovery should be limited to such procedural challenges. Wilkins, 150 F.3d at 619. Although courts differ as to what showing is required to justify discovery under this limited exception, it is clear that “a mere allegation of bias is insufficient to ‘throw open the doors of discovery’ in an ERISA case.” Likas v. Life Ins. Co. of North America, 222 Fed.Appx. 481, 486 (6th Cir.2007); see also Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 431 (6th Cir.2006) (“[UJntil a due process violation is at least eolorably established, additional discovery beyond the administrative record into a plaintiffs denial of benefits claim is impermissible.”). In Glenn, the Supreme Court held that a reviewing court must consider any conflict of interest arising from the dual role of an entity as an ERISA plan administrator and payer of plan benefits as a factor in determining whether the plan administrator abused its discretion in denying benefits. 128 S.Ct. at 2346. Such a conflict of interest exists when the entity that administers an ERISA plan, such as an employer or insurance company, determines whether an employee is eligible for benefits under the plan and pays those benefits out of its own funds. Id. Certain circumstances may “suggest a higher likelihood that [the conflict of interest] affected the benefits decision.” Id. at 2351. In its previous order, this court found that “discovery is not warranted on the issue of whether a conflict of interest exists because LINA both determines eligibility for benefits under this ERISA plan and also pays those benefits from its own funds.” See R. 20, p. 6. The court reasoned that the plaintiff had presented the court only its suspicion of a conflict of interest and had not, as required, demonstrated that such discovery would" }, { "docid": "7936561", "title": "", "text": "Walker explained that Dr. Ziyalan had previously diagnosed Ms. Murphy’s depression as in full remission and that while Ms. Murphy had been subsequently hospitalized for suicidal ideation, her failure to follow-up with a psychiatrist left uncertainties as to the ongoing seriousness of the depression and anxiety Ms. Murphy suffered. (Id.) Ms. Murphy subsequently filed this action in federal court seeking a review of MetLife’s decision and both parties consented to proceed before a magistrate judge. Ms. Murphy initially sought discovery, which it describes as limited to MetLife’s dual role conflict as administrator and payor of the Plan, but the magistrate judge denied the discovery request. The magistrate judge then granted Met-Life and the Plan’s motion for summary judgment. Ms. Murphy now appeals those orders. DISCUSSION I. Discovery We first address Ms. Murphy’s claim that the district court erred in denying her request for discovery related to MetLife’s dual role conflict of interest. She argues that the Supreme Court’s recent decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), changed the legal landscape for discovery in ERISA cases involving dual role conflicts of interest, and the district court failed to apply this new approach. We review de novo whether the district court employed the correct legal standard for discovery. See Neiberger v. Fed Ex Ground Package Sys., Inc., 566 F.3d 1184, 1189 (10th Cir. 2009) (reiterating the general proposition that we review de novo whether the district court applied the proper legal standard at issue). Although we disagree with Ms. Murphy’s proposition that Glenn changed our standard for discovery, we believe the lack of clarity in our case law on this issue and the Glenn decision suggest we should clarify the appropriate standard for discovery related to a dual role conflict of interest. A. Supplementation of the Administrative Record Generally In an ERISA case where, as here, the plan “ ‘gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,’ ” we review the administrator’s decision for an abuse of discretion. Holcomb" }, { "docid": "12976405", "title": "", "text": "Cir.2006). Specifically, the Seventh Circuit has allowed “limited discovery” where a plaintiff can both “identify a specific conflict of interest or instance of misconduct,” and “make a prima facie showing that there is good cause to believe limited discovery will reveal a procedural defect in the plan administrator’s determination.” Id. at 815. A. The Glenn Decision The question presented here is whether the Supreme Court’s recent decision in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), has any effect on these special discovery rules. The plan in Glenn “grant[ed] MetLife (as administrator) discretionary authority to determine whether an employee’s claim for benefits [wa]s valid; it simultaneously provided] that MetLife (as insurer) w[ould] itself pay valid benefit claims.” Id. at 2346. The Court found that this dual role creates a structural conflict of interest that “must be weighed as a ‘factor in determining whether there is an abuse of discretion.’” Id. at 2348 (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). The Court confirmed that the standard of review remains deferential, but stressed that the reviewing judge must “take account of the conflict when determining whether the trustee, substantively or procedurally, has abused his discretion.” Id. at 2350. See also Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 861 (7th Cir.2009). The Court went on to explain that “conflicts are but one factor among many that a reviewing judge must take into account.” Id. at 2351. In the Court’s view, “[t]he conflict of interest ... should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.” Id. At the same time, the conflict “should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy.” Id. The Court found that the Court of Appeals properly set aside MetLife’s discretionary decision" } ]

[ { "docid": "20484600", "title": "", "text": "to make [its] meaning doubtful.” Corona Coal Co. v. United States, 263 U.S. 537, 540, 44 S.Ct. 156, 68 L.Ed. 431 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed.Cir.1988), cert, denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989). Those words speak in terms of subject matter jurisdiction and, as later described by the Supreme Court, “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene Corp. v. United States, 508 U.S. 200, 209, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether this statute applies here, the court must answer two fundamental questions: (i) whether the district court action was “pending” at the time jurisdiction under section 1500 is measured; and (ii) if so, whether the claims presented to the district court were the same as those in the instant ease. See Griffin v. United States, 85 Fed.Cl. 179, 184 (2008), aff'd, 621 F.3d 1363 (Fed.Cir.2010); Firebaugh Canal Water Dist. v. United States, 70 Fed.Cl. 593, 597 (2006). The answer to first of these questions is controlled by Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct.Cl.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). In that ease, the plaintiffs were displeased with the progress of their case before the Court of Claims and decided to take their dispute elsewhere. They filed suit in a district court and then sought to dismiss their earlier-filed Court of Claims case under section 1500, claiming that the latter court lost jurisdiction once the plaintiffs elected to bring suit in district court. Id. at 946. The Court of Claims disagreed, holding that the later-filed district court suit did not oust it of jurisdiction to hear the prior-filed Tucker Act claim — a holding sometimes referred to as the “order-of-filing rule.” The court observed that this construction of section 1500 was consistent with “[t]he" } ]

[ { "docid": "4549591", "title": "", "text": "68 L.Ed. 431 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed.Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989). Those words speak in terms of subject matter jurisdiction and “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene Corp., 508 U.S. at 209, 113 S.Ct. 2035; see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether this statute applies here, the court must answer two fundamental questions: (i) whether the district court action was “pending” at the time jurisdiction under section 1500 is measured; and (ii) if so, whether the claims presented to the district court were the same as those in the instant ease. See Kaw Nation of Oklahoma v. United States, 103 Fed.Cl. 613, 617 (2012); Griffin v. United States, 85 Fed.Cl. 179, 184 (2008), aff'd, 621 F.3d 1363 (Fed.Cir.2010). Plaintiffs “Restated Second Amended Complaint” rehashes many of the facts that were asserted in its initial complaint in this court. Count II of that complaint avers that the United States effectuated a temporary takings of ninety-one servitudes by issuing mineral leases to parties that effectively blocked Petro-Hunt from engaging in any activity on the servitudes and precluded Pe-tro-Hunt from itself engaging in any leasing activity. Count III of the complaint avers that the United States effectuated a similar temporary takings of five (or six) servitudes during the pendency of the quiet title action. Finally, Count VIII of this complaint avers that the Fifth Circuit’s decision that ninety-six mineral servitudes “belonging to Petro-Hunt as established in Nebo Oil, and by contract with the United States, were subject to prescription was contrary to its prior decision in Nebo Oil and resulted in a judicial taking of Petro-Hunt’s established property rights.” For reasons that will become apparent, the two-pronged section 1500 analysis must be applied twice in this case — once to plaintiffs temporary takings claims and, again, to its more" }, { "docid": "16266324", "title": "", "text": "United States, 124 F.3d 1462, 1465 (Fed.Cir.1997) (citations omitted); see also Bell Atl. Corp., 127 S.Ct. at 1964-65. In particular, the plaintiff must establish that the court has subject matter jurisdiction over its claims. Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Hansen v. United States, 65 Fed.Cl. 76, 94 (2005). Here, defendant claims that jurisdiction is lacking owing principally to the application of 28 U.S.C. § 1500. A. Section 1500 of Title 28 provides: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. “The words of the statute are plain,” the Supreme Court long ago stated. Corona Coal Co. v. United States, 263 U.S. 537, 540, 44 S.Ct. 156, 68 L.Ed. 431 (1924). They speak in terms of subject matter jurisdiction and, as later described by the Supreme Court, “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene, 508 U.S. at 209, 113 S.Ct. 2035; see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether this statute applies here, the court must answer two questions: (i) whether the district court action was “pending” at the time the action in this case is deemed to have arisen; and (ii) if so, whether the claims presented to the district court action were the same as those in the instant case. See Firebaugh Canal Water Dist. v. United States, 70 Fed.Cl. 593, 597 (2006). In doing so, account must be given to the fact that this lawsuit arose under 28 U.S.C. § 1631. The express terms of that" }, { "docid": "16213826", "title": "", "text": "later- in this opinion. However, the current judicial interpretation of 28 U.S.C. § 1500 is a monumental “trap for the unwary.” See, e.g., Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256, 262 (2008); Vaizburd v. United States, 46 Fed.Cl. 309, 310 (2000). With due respect to appellate precedent, this statute was never intended to be applied in a way that leaves Lan-Dale with no forum that will hear its claims. Discussion As indicated, the Court is troubled by the application of 28 U.S.C. § 1500 to this ease. The current text of this statute is as follows: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in any respect thereto, acting or professing to act, directly or indirectly under- the authority of the United States. 28 U.S.C. § 1500. As others have noted, this statute stems from the post-Civil War era when Southern cotton growers sought to recover- the value of property they had been forced to abandon during the war. The purpose of the statute was to prevent plaintiffs from requiring the United States to defend itself in multiple courts regarding the same issue. See Keene Corp. v. United States, 508 U.S. 200, 206-07, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Griffin, 85 Fed.Cl. at 188-89; Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). The sponsor of the legislation, Senator George Edmunds, explained its pur-pose in 1868: The object of this amendment is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary of the Treasury and the other agents of the Government in more than a hundred suits that are now pending, scattered over the country here and there, and who are here at the same time endeavoring to prosecute their claims, and have filed them" }, { "docid": "16301600", "title": "", "text": "2013, the parties shall file a joint status report indicating how this case should proceed, with a proposed schedule. The status report shall reference with specificity the issues that this court must address in response to the Federal Circuit’s remand decision, and jointly propose a proper procedural course for dealing with those issues. IT IS SO ORDERED. . See, e.g., Lower Brule Sioux Tribe v. United States, 102 Fed.Cl. 421, 424 n. 4 (2011); Griffin v. United States, 85 Fed.Cl. 179, 181 (2008), aff'd, 590 F.3d 1291 (Fed.Cir.2009); Nat'l Union Fire Ins. Co. v. United States, 19 Cl.Ct. 188, 190 (1989); Dwyer v. United States, 7 Cl.Ct. 565, 567 (1985); A.C. Seeman, Inc. v. United States, 5 Cl.Ct. 386, 389 (1984); see also Keene Corp. v. United States, 508 U.S. 200, 217, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (\"The trial judge in this case was not the first to call this statute anachronistic.”); Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256, 262 (2008), aff'd, 426 Fed.Appx. 916 (Fed.Cir.2011) (\"The jurisdictional bar in § 1500 has been much criticized for being an awkward tool that has outlived its original purpose.”); see generally Griffin v. United States, 621 F.3d 1363, 1366 (Fed.Cir.2010) (Plager, J., dissenting from denial of petition for rehearing); Eric C. Bruggink, \"A Modest Proposal,” 28 Pub. Cont. L.J. 529, 539 (1999) (“Section 1500 remains something of a judicial coelacanth, still swimming around despite its Civil War era rationale.”); David Schwartz, \"Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents,” 55 Geo. L.J. 573 (1967) (hereinafter “Schwartz”). . See, e.g., Low v. United States, 90 Fed.Cl. 447, 455 (2009); Berry v. United States, 86 Fed.Cl. 24, 29 (2009); Lan-Dale Co. v. United States, 85 Fed.Cl. 431, 433 (2009); Griffin, 85 Fed.Cl. at 181; d’Abrera v. United States, 78 Fed.Cl. 51, 56 n. 10 (2007); Vaizburd v. United States, 46 Fed.Cl. 309, 309-10 (2000); see also Emily S. Bremer & Jonathan R. Siegel, \"Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500,\" 65 Ala. L.Rev. 1, 37-38 (2013) (hereinafter “Bremer" }, { "docid": "4561558", "title": "", "text": "Plaintiff asserts that because the district court here lacked jurisdiction over its takings claims, section 1500 is, therefore, inapplicable. In fact, though, a number of cases have held that the prohibition under section 1500 applies regardless of whether the district court has jurisdiction over the other action. See Frantz Equipment v. United States, 98 F.Supp. 579, 580 (Ct.Cl.1951) (“The applicability of See. 1500 ... is not conditioned upon the question of whether the District Court had jurisdiction of the claim asserted by the plaintiff therein_”); see also Pellegrini v. United States, 103 Fed.Cl. 47, 52 (2012) (“Even if a claim is ultimately dismissed for lack of subject-matter jurisdiction, it was pending from the time it was filed until dismissal.”); Brandt v. United States, 102 Fed.Cl. 72, 77 n. 4 (2011) (holding that this jurisdictional argument “is without merit”); Forsgren v. United States, 73 Fed.Cl. 135, 142—43 (2006) (same). These eases proceed from the notion that a lawsuit is “pending” under section 1500 whether vel non a district court has jurisdiction. See, e.g., Pellegrini v. United States, 103 Fed.Cl. at 52. To be sure, the Federal Circuit cast doubt on the continuing viability of Frantz Equipment in Eastern Shawnee Tribe of Oklahoma, but its decision in that case was, in turn, reversed by the Supreme Court on the authority of the latter’s opinion in United States v. Tohono O’odham Nation, — U.S. -, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011). See Eastern Shawnee Tribe of Oklahoma v. United States, 582 F.3d 1306, 1312 n. 4 (Fed.Cir.2009), denying rehearing, 598 F.3d 1326 (Fed.Cir.2010), vacated, — U.S. -, 131 S.Ct. 2872, 179 L.Ed.2d 1184 (2011); see also UNR Indus. Inc. v. United States, 962 F.2d 1013, 1022 (Fed.Cir.1992) (overruling Brown v. United States, 358 F.2d 1002, 1004 (Ct.Cl.1966)), aff'd, Keene Corp. v. United States, 508 U.S. 200, 216 n. 12, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). To the extent that Love-ladies Harbor may be read as establishing an analysis that hinges not on whether the prior district court action was still “pending,” but rather on whether that court had jurisdiction over the" }, { "docid": "16301525", "title": "", "text": "that takings actions and breach of contract actions are both covered by this grant of jurisdiction. See Keene Corp., 508 U.S. at 205, 113 S.Ct. 2035; Bywaters v. United States, 670 F.3d 1221, 1224 (Fed.Cir.2012). Defendant, however, claims that jurisdiction is lacking here because of 28 U.S.C. § 1500. Section 1500 of Title 28 provides: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 28 U.S.C. § 1500. “[T]he words of the statute are plain,” the Supreme Court stated nearly ninety years ago, “with nothing in the context to make [its] meaning doubtful.” Corona Coal Co. v. United States, 263 U.S. 537, 540, 44 S.Ct. 156, 68 L.Ed. 431 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed.Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989). Those words speak in terms of subject matter jurisdiction and “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene Corp., 508 U.S. at 209, 113 S.Ct. 2035; see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether section 1500 applies here, the court must answer three questions: (i) whether, and to what extent, “the plaintiff[s] or [their] assignee[s]” in this case are the same as those in the district court; (ii) whether the district court action was “pending” at the time jurisdiction under section 1500 is measured; and (iii) if so, whether the claims presented to the district court were the same as those in the instant case. See Brandt v. United States, 710 F.3d 1369, 1373-74" }, { "docid": "20170576", "title": "", "text": "and Griffin filed an amended “transfer complaint” in the Court of Federal Claims on June 19, 2007, according to Rule 3.1(a)(2) of the Rules of the United States Court of Federal Claims (2002). See Griffin, 85 Fed.Cl. at 183. Her transfer complaint re-pleaded her EPA claim and added a new, second claim under the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3). The Government then moved to dismiss the case for lack of juris diction. The Court of Federal Claims held that the Northern District of Georgia’s grant of summary judgment against her retaliation claim (one of her four original claims) precluded her new Fair Labor Standards Act claim as res judicata. Id. at 186 n. 4. Griffin does not appeal that result. The Court then observed that under § 1631, Griffin’s transferred EPA claim was filed by operation of law on February 4, 2005, at the same time she filed her district court complaint. See § 1631 (stating that the transferred claim “shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred”). In County of Cook, we explained that “on the date upon” in § 1631 means “simultaneously.” 170 F.3d at 1090. Thus, the court receiving a transferred claim must treat the claim as if it were filed at the same moment the claim was filed originally in the first court. Under 28 U.S.C. § 1500, a plaintiff cannot file a claim in the Court of Federal Claims if she “has pending” the same claim against the Government in district court, even if the district court claim has since been adjudicated. See Keene Corp. v. United States, 508 U.S. 200, 207-09, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). This court has held that “has pending” includes claims filed “simultaneously” under § 1631. County of Cook, 170 F.3d at 1090-91. Therefore, if a plaintiff files multiple related claims in district court, and the court transfers one of those claims to the" }, { "docid": "4086433", "title": "", "text": "of action where, at the time of filing, a suit respecting the same claim was pending in another court: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 28 U.S.C. § 1500. See Keene Corp. v. United States, 508 U.S. 200, 209, 212, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (applying Section 1500); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed.Cir.1994) (en banc) (same). . The court’s jurisdictional findings are entered pursuant to Rule 52(a) of the Rules of the Court of Federal Claims (\"RCFC”). Those findings are briefly set out in this background section; more detailed findings of fact and rulings on questions of mixed fact and law are set out in the analysis. . Citations to the transcript of the evidentiary hearing held on August 5, 2008 are to \"Tr. ______.\" . In pertinent part, 28 U.S.C. § 1631 provides that [w]henever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed, and the action ... shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred. 28 U.S.C. § 1631 (emphasis added). . Based on its understanding of the apparent purposes of Section 1500, the Federal Circuit concluded that, where simultaneous filing of claims in this and another court arose “by operation of § 1631,” the non-transferred" }, { "docid": "16213830", "title": "", "text": "dismiss, courts now look to the sequence of filing to determine whether any other eouit action was pending at the time the plaintiff filed suit in the Court of Federal Claims. Cases such as Keene, 508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118, and United States v. County of Cook, Illinois, 170 F.3d 1084 (Fed.Cir.1999), hold that the Court of Federal Claims lacks subject matter jurisdiction if the same suit was pending in another court or filed simultaneously with a suit filed in the Court of Federal Claims. This interpretation can result in a plaintiff forfeiting its claim and having no place for the merits to be heard, as it did for Lan-Dale. Thus, a plaintiff may lose its right to be heard on the merits in the Court of Federal Claims, even if the Court of Federal Claims is the only court in which the suit could have been brought. This was not the intention of Congress when it enacted 28 U.S.C. § 1500 in 1868. In the aftermath of Keene and County of Cook, our Court has analyzed 28 U.S.C. § 1500 in abundant detail, searching for ways to apply an awkward statute in a reasonable fashion. See Griffin, 85 Fed.Cl. 179 (Allegra, J.); Nez Perce Tribe, 83 Fed.Cl. 186 (Lettow, J.); Passamaquoddy Tribe, 82 Fed.Cl. 256 (Bush, J.) (on appeal); Ak-Chin Indian Community v. United States, 80 Fed.Cl. 305 (2008) (Hewitt, J.). As Judge Allegra noted in Griffin, a plaintiff who files on Monday in a district court and on Tuesday in the Court of Federal Claims will have its suit dismissed, whereas if the order of filing is reversed, “all is jurisdictionally well.” Griffin, 85 Fed.Cl. at 181-82. In the latter example, the separate eases may go forward even though the plaintiff most assuredly is running contrary to the intent of 28 U.S.C. § 1500 by pursuing two similar actions against the United States in two different courts. To be sure, Lan-Dale’s former counsel made “a disastrous procedural error” in filing the two lawsuits simultaneously in different courts, in apparent ignorance of 28 U.S.C. §" }, { "docid": "4549590", "title": "", "text": "takings actions are covered by this grant of jurisdiction. See Keene Corp. v. United States, 508 U.S. 200, 205, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Bywaters v. United States, 670 F.3d 1221, 1224 (Fed.Cir.2012). Defendant, however, claims that jurisdiction is lacking here owing to the application of 28 U.S.C. § 1500. Section 1500 of Title 28 provides: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under, the authority of the United States. 28 U.S.C. § 1500. “[T]he words of the statute are plain,” the Supreme Court long ago stated, “with nothing in the context to make [its] meaning doubtful.” Corona Coal Co. v. United States, 263 U.S. 537, 540, 44 S.Ct. 156, 68 L.Ed. 431 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed.Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989). Those words speak in terms of subject matter jurisdiction and “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene Corp., 508 U.S. at 209, 113 S.Ct. 2035; see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether this statute applies here, the court must answer two fundamental questions: (i) whether the district court action was “pending” at the time jurisdiction under section 1500 is measured; and (ii) if so, whether the claims presented to the district court were the same as those in the instant ease. See Kaw Nation of Oklahoma v. United States, 103 Fed.Cl. 613, 617 (2012); Griffin v. United States, 85 Fed.Cl. 179, 184 (2008), aff'd, 621 F.3d 1363 (Fed.Cir.2010). Plaintiffs “Restated Second" }, { "docid": "16301526", "title": "", "text": "L.Ed. 431 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed.Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989). Those words speak in terms of subject matter jurisdiction and “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene Corp., 508 U.S. at 209, 113 S.Ct. 2035; see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether section 1500 applies here, the court must answer three questions: (i) whether, and to what extent, “the plaintiff[s] or [their] assignee[s]” in this case are the same as those in the district court; (ii) whether the district court action was “pending” at the time jurisdiction under section 1500 is measured; and (iii) if so, whether the claims presented to the district court were the same as those in the instant case. See Brandt v. United States, 710 F.3d 1369, 1373-74 (Fed. Cir.2013); Kaw Nation of Oklahoma v. United States, 103 Fed.Cl. 613, 616-17 (2012); Griffin v. United States, 85 Fed.Cl. at 184. Defendant argues that, under section 1500, all the claims filed by all the plaintiffs in this action should be dismissed for lack of jurisdiction. In defendant’s view, it is irrelevant that only three of the Kandra plaintiffs are also plaintiffs in this ease because, in its view, the Kandra plaintiffs were assignees of all the plaintiffs herein. In arguing for dismissal, defendant also fails to draw any meaningful distinction between the takings and breach of contract claim in this case. It contends that both claims are based upon substantially the same operative facts as the claims in Kandra. The court will address defendant’s assertions seriatim. A. The threshold question here is whether “the plaintiffis] or [their] assignee[s]” in this case are the same as those in the district court. Of course, three of the named plaintiffs in this case were also Kandra plaintiffs — KID, TID and Mr. Baley. For them, application of" }, { "docid": "16266329", "title": "", "text": "court and “ ‘protecting] the United States from having to defend two lawsuits over the same matter simultaneously.’ ” Id. at 1091. Based upon this analysis, the court then stated— These policies are promoted by precluding jurisdiction in the Court of Federal Claims over claims which had been previously filed in the district courts, and nothing suggests that these policies would not similarly be promoted by precluding jurisdiction in the simultaneous filing context. Accordingly, we hold that the “filing” of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500. Id. The Federal Circuit followed this holding in Harbuck, 378 F.3d at 1328, a case with facts remarkably similar to those in the ease sub judice. Both County of Cook and Harbuck thus compel this court to conclude that the district court complaint here was “pending” when plaintiffs EPA claim was deemed filed under section 1631. See also Nez Perce Tribe, 83 Fed.Cl. at 191-92; d’Abrera, 78 Fed.Cl. at 56. The court must next determine whether that EPA claim was the “same” as one or more of plaintiffs other claims in the district court. “Deciding if the claims are the same or distinctly different requires a comparison between the claims raised in the Court of Federal Claims and in the other lawsuit.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed.Cir.1994) (en banc); see also Keene, 508 U.S. at 210-13, 113 S.Ct. 2035; Harbuck, 378 F.3d at 1328; Schrader v. United States, 75 Fed.Cl. 242, 246-47 (2007). For such claims to be the “same,” they “must arise from the same operative facts, and must seek the same relief.” Loveladies Harbor, 27 F.3d at 1551; see also County of Cook, 170 F.3d at 1091. On the one hand, “[c]laims are the same where they arise from the same operative facts even if the operative facts support different legal theories which cannot all be brought in one court.” Harbuck, 378 F.3d at 1329 (quoting Johns-Manville Corp. v. United States, 855 F.2d" }, { "docid": "16301539", "title": "", "text": "that Tohono indicated that courts ought not interpret section 1500 in a way that would render that statute “nugatory through construction.” Tohono, 131 S.Ct. at 1729-30. That language, however, is no invitation to contort the words of section 1500 to reach every situation in which there are successive lawsuits involving similar subject matters. As the Supreme Court itself said in Tohono, “considerations of policy divorced from the statute’s text and purpose could not override its meaning,” Tohono, 131 S.Ct. at 1731. This admonition is a two-way street, aptly-applied to attempts both to constrict and expand the statute beyond its proper scope. One must assume that Congress’ choice of words was “not an uninformative consequence of the limited scope of the statute, but rather manifestation of a considered congressional judgment.” United States v. Fausto, 484 U.S. 439, 448-49, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). While this court “enjoy[s] no ‘liberty to add an exception [to section 1500] to remove apparent hardship,’ ” Keene, 508 U.S. at 217-18, 113 S.Ct. 2035 (quoting Corona Coal, 263 U.S. at 540, 44 S.Ct. 156), it neither can augment the statute’s scope, converting it into a purse seine that indiscriminately sweeps in not only relevant catch, but hosts of other case species. See Petro-Hunt, 105 Fed.Cl. at 47 (“Congress did not intend section 1500 to be all-encompassing, that is, to prevent all forms of redundant litigation, however encountered.”). Accordingly, the court concludes that none of the Kandra plaintiffs were assignees of the plaintiffs here. Thus, only the three plaintiffs both cases hold in common — KID, TID, and Mr. Baley — are potentially subject to section 1500. B. There is little dispute that the district court action was still “pending” within the meaning of section 1500 at the time that the original complaint in this case was filed. See Griffin, 85 Fed.Cl. at 186; Nez Perce Tribe, 83 Fed.Cl. at 189. The “pending” requirement is examined as of the date of the filing of the complaint, making it irrelevant that the district court suit was later dismissed. Keene, 508 U.S. at 207, 113 S.Ct. 2035;" }, { "docid": "20484684", "title": "", "text": "gives effect to the ordinary meaning of the text of the statute. . See, e.g., The Haudenosaunee v. United States, 2009 WL 775399, at *1 (Fed.Cl.2009); Berry, 86 Fed.Cl. at 27-30; Keetoowah Band of Cherokee Indians in Okla. v. United States, 86 Fed.Cl. 183, 191 (2009); Nez Perce Tribe v. United States, 83 Fed.Cl. at 191; Salt River Pima-Maricopa Indian Cmty. v. United States, 2008 WL 1883170, at *4-5 (Fed.Cl. Apr. 24, 2008); Ak-Chin Indian Cmty. v. United States, 80 Fed.Cl. 305, 308 n. 4 (2008); Breneman v. United States, 57 Fed.Cl. 571, 575-77 (2003). . Title 28, section 1631 states that, upon transfer, \"the action ... shall proceed as if it had been filed in ... the court to which is transferred on the date upon which it was actually filed in ... the court from which it is transferred.” 28 U.S.C. § 1631. County of Cook treated claims transferred to the Court of Federal Claims as filed simultaneously with those in the district court and held that such simultaneous filings triggered section 1500. 170 F.3d at 1090. . See, e.g., Vero Technical Support, Inc. v. United States, 94 Fed.Cl. 784 (2010); Low v. United States, 90 Fed.Cl. 447 (2009); Woodson v. United States, 89 Fed.Cl. 640 (2009); Lan-Dale Co., 85 Fed.Cl. at 431. . Defendant has long-believed that the district courts lack jurisdiction over tribal trust matters like the case at issue. See, e.g., Cobell v. Babbitt, No. 1:96CV01285 RCL, Defendant’s Consolidated Motion and Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiff’s Claim for Retrospective Relief (D.D.C. June 30, 1998) (arguing, inter alia, that the APA does not authorize a suit for an accounting); see also Notice, Kaw Nation of Okla. v. United States, No. 06-934L (Nov. 25, 2011) (confirming this remains defendant’s view). Nevertheless, defendant leaves the impression that, jurisdictionally speaking, it is hamstrung by the views of the regional circuits as to whether a given case is more properly brought under the Tucker Act or the APA. But, of course, if defendant moved to transfer these district court cases to this court" }, { "docid": "16213827", "title": "", "text": "28 U.S.C. § 1500. As others have noted, this statute stems from the post-Civil War era when Southern cotton growers sought to recover- the value of property they had been forced to abandon during the war. The purpose of the statute was to prevent plaintiffs from requiring the United States to defend itself in multiple courts regarding the same issue. See Keene Corp. v. United States, 508 U.S. 200, 206-07, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Griffin, 85 Fed.Cl. at 188-89; Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). The sponsor of the legislation, Senator George Edmunds, explained its pur-pose in 1868: The object of this amendment is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary of the Treasury and the other agents of the Government in more than a hundred suits that are now pending, scattered over the country here and there, and who are here at the same time endeavoring to prosecute their claims, and have filed them in the Court of Claims, so that after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims. The object is to put that class of persons to their election either to leave the Court of Claims or to leave the other couits. I am sure everybody will agree to that. Griffin, 85 Fed.Cl. at 188-89 (quoting Cong. Globe, 40th Cong., 2d Sess. 2769 (1868)) (emphasis added). Putting the language of the statute together with the sponsoring Senator’s explanation, plaintiffs simply were required to make an election of the court in which they wanted to pursue their claims against the United States. Thus, if a plaintiff had two suits raising the same issue against the United States in two different courts, the Government could invoke 28 U.S.C. § 1500 as a basis to dismiss the Court of Federal Claims action and thereby force plaintiff to make an election. If, at the time of ruling upon" }, { "docid": "16266326", "title": "", "text": "provision require this court to treat the transferred claim “as if it had been filed ... on the date upon which it was actually filed in ... the court from which it is transferred.” 28 U.S.C. § 1631. By operation of this provision, the EPA claim transferred by the district court to this court and those claims decided by the district court are deemed to have been filed concurrently because they were part of the same complaint, originally filed in the district court. In similar circumstances, the Federal Circuit has held that transferred and non-transferred claims be treated, for purposes of section 1500, as being filed “simultaneously,” that is, at exactly the same time. See County of Cook, 170 F.3d at 1090; see also d’Abrera, 78 Fed.Cl. at 56. But, does that mean that the district court action here should be deemed “pending” at the time the transferred claim was filed, so as to trigger section 1500? Tecon Engineers v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966), would suggest otherwise. The Court of Claims there concluded that “the only reasonable interpretation of [section 1500] is that it serves to deprive this court of jurisdiction of any claim for or in respect to which plaintiff has pending, in any other court any suit against the United States, only when the suit shall have been commenced in the other court before the claim was filed in this court.” Id. at 949 (emphasis added). The Federal Circuit repudiated Tecon in its era banc decision in UNR Indus. Inc. v. United States, 962 F.2d 1013 (Fed.Cir.1992). But, when the latter decision was affirmed, sub nom., by the Supreme Court in Keene, the Supreme Court found it “unnecessary” to consider Tecon. Keene, 508 U.S. at 216, 113 S.Ct. 2035. Thereafter, in Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed.Cir.1995), the Federal Circuit declared unequivocally that “Tecon Engineers remains good law and binding on this court.” See also Nez Perce Tribe, 83 Fed.Cl. at 190. Under Tecon," }, { "docid": "16301599", "title": "", "text": "sufficient to provide yet another basis upon which to conclude that both claims involved substantially the same operative facts. s¡: »¡: sfs % Based on the foregoing, the court concludes that the takings claims in this case are not “for or in respect to” the claims filed in the district court. As such, section 1500 does not apply to them. However, the court is compelled to conclude that the breach of contract claims asserted by the three Kandra plaintiffs in question are “for or in respect to” the breach claims those same plaintiffs filed in the district court. Consequently, as to those plaintiffs, their breach of contract claims must be dismissed for lack of jurisdiction. V. This court need go no farther. Based on the foregoing, the court hereby GRANTS, in part, and DENIES, in part, defendant’s motion to dismiss. Specifically, the court dismisses the breach of contract claims insofar as they relate to the following three plaintiffs: the Klamath Irrigation District, the Tulare Irrigation District and Mr. Lon Baley. On or before December 9, 2013, the parties shall file a joint status report indicating how this case should proceed, with a proposed schedule. The status report shall reference with specificity the issues that this court must address in response to the Federal Circuit’s remand decision, and jointly propose a proper procedural course for dealing with those issues. IT IS SO ORDERED. . See, e.g., Lower Brule Sioux Tribe v. United States, 102 Fed.Cl. 421, 424 n. 4 (2011); Griffin v. United States, 85 Fed.Cl. 179, 181 (2008), aff'd, 590 F.3d 1291 (Fed.Cir.2009); Nat'l Union Fire Ins. Co. v. United States, 19 Cl.Ct. 188, 190 (1989); Dwyer v. United States, 7 Cl.Ct. 565, 567 (1985); A.C. Seeman, Inc. v. United States, 5 Cl.Ct. 386, 389 (1984); see also Keene Corp. v. United States, 508 U.S. 200, 217, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (\"The trial judge in this case was not the first to call this statute anachronistic.”); Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256, 262 (2008), aff'd, 426 Fed.Appx. 916 (Fed.Cir.2011) (\"The jurisdictional bar in § 1500" }, { "docid": "16266325", "title": "", "text": "States, 263 U.S. 537, 540, 44 S.Ct. 156, 68 L.Ed. 431 (1924). They speak in terms of subject matter jurisdiction and, as later described by the Supreme Court, “bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court ‘for or in respect to’ the same claim.” Keene, 508 U.S. at 209, 113 S.Ct. 2035; see also Nez Perce Tribe v. United States, 83 Fed.Cl. 186, 189 (2008). To determine whether this statute applies here, the court must answer two questions: (i) whether the district court action was “pending” at the time the action in this case is deemed to have arisen; and (ii) if so, whether the claims presented to the district court action were the same as those in the instant case. See Firebaugh Canal Water Dist. v. United States, 70 Fed.Cl. 593, 597 (2006). In doing so, account must be given to the fact that this lawsuit arose under 28 U.S.C. § 1631. The express terms of that provision require this court to treat the transferred claim “as if it had been filed ... on the date upon which it was actually filed in ... the court from which it is transferred.” 28 U.S.C. § 1631. By operation of this provision, the EPA claim transferred by the district court to this court and those claims decided by the district court are deemed to have been filed concurrently because they were part of the same complaint, originally filed in the district court. In similar circumstances, the Federal Circuit has held that transferred and non-transferred claims be treated, for purposes of section 1500, as being filed “simultaneously,” that is, at exactly the same time. See County of Cook, 170 F.3d at 1090; see also d’Abrera, 78 Fed.Cl. at 56. But, does that mean that the district court action here should be deemed “pending” at the time the transferred claim was filed, so as to trigger section 1500? Tecon Engineers v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976," }, { "docid": "15847407", "title": "", "text": "United States.” 28 U.S.C. § 1500. The purpose of Section 1500 is to “bar ... the claim of a plaintiff who, upon filing, has an action pending in any other court ‘for or in respect to’ the same claim.” Keene, 508 U.S. at 209, 113 S.Ct. 2035. “Thus, [Sjection 1500 divests this court of subject matter jurisdiction when a plaintiff has elected to file the same claim in another court prior to filing suit in this [ejourt.” Cooke v. United States, 77 Fed.Cl. 173, 176 (2007). Whether another claim is “pending” for purposes of Section 1500 is determined at the time at which the suit is filed in this court, not the time at which the government moves to dismiss the action. Loveladi.es Harbor, 27 F.3d at 1548. However, this court is not divested of jurisdiction when a claim that was first filed here is subsequently brought in another court. Hardwick Bros., 72 F.3d at 886; Tecon Eng’rs, 343 F.2d at 949. Because the Smithsonian suit was filed sixteen days prior to the time plaintiffs brought their initial case in this court, Section 1500 might potentially bar the action subsequently filed here. A further issue is engendered by the transfer of the Smithsonian action from the District Court for the Southern District of New York to this court. When an action is transferred under 28 U.S.C. § 1631, the statute provides that “the action or appeal shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.” A question under Section 1500 arises where more than one count is involved and all counts are not transferred. In this circumstance, the Federal Circuit has ruled that “the ‘filing’ of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500.” United States v. County of Cook, 170 F.3d 1084, 1091 (Fed.Cir.1999). Under County of Cook’s simultaneous-filing rule, plaintiffs’ Lanham" }, { "docid": "20170577", "title": "", "text": "the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred”). In County of Cook, we explained that “on the date upon” in § 1631 means “simultaneously.” 170 F.3d at 1090. Thus, the court receiving a transferred claim must treat the claim as if it were filed at the same moment the claim was filed originally in the first court. Under 28 U.S.C. § 1500, a plaintiff cannot file a claim in the Court of Federal Claims if she “has pending” the same claim against the Government in district court, even if the district court claim has since been adjudicated. See Keene Corp. v. United States, 508 U.S. 200, 207-09, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). This court has held that “has pending” includes claims filed “simultaneously” under § 1631. County of Cook, 170 F.3d at 1090-91. Therefore, if a plaintiff files multiple related claims in district court, and the court transfers one of those claims to the Court of Federal Claims, the original claims are “pending” at the time the transferred claim is considered filed, and § 1500 may deprive the Court of Federal Claims of jurisdiction over the transferred claim. “For the Court of Federal Claims to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed.Cir.1994) (en banc). Here, the Court compared Griffin’s transferred EPA claim to her district court Title VII claim and concluded that both claims arose from the same operative facts and sought the same relief. Griffin, 85 Fed.Cl. at 185-86. Therefore, the Court dismissed Griffin’s remaining claim for lack of jurisdiction. Griffin appeals, and we have jurisdiction under 28 U.S.C. § 1295(a)(3) (2006). DISCUSSION “We review de novo whether the Court of Federal Claims properly dismissed the ease for lack of jurisdiction.” Bianchi v. United States, 475 F.3d 1268, 1273 (Fed.Cir.2007). On appeal, Griffin contends that the" } ]

[ { "docid": "10830651", "title": "", "text": "proof of an agreement between two or more persons to commit an offense ... knowledge of the existence of a conspiracy; and an intent to participate in the unlawful enterprise.” Irizarry v. United States, 508 F.2d 960, 966 (2d Cir.1974). Here, Judge Munson was informed by Galloway’s attorney that he had explained the plea agreement and the indictment to Galloway. The Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), however, held that an attorney’s representation that he explained a charge to the defendant is not enough to demonstrate that the defendant understands the nature of that charge. See id. at 466-67, 89 S.Ct. 1166. Rather, a district court judge must personally question the defendant to confirm that he possesses the requisite understanding. Id. In making this inquiry, “[a] court is not required to follow any particular formula....” United States v. Andrades, 169 F.3d 131, 135 (2d Cir.1999). It is enough for the district court to “ ‘describ[e] the elements of the offense in the court’s own words’ or [to] ‘provide that information by reading the indictment to the defendant where the pertinent count spells out the elements of the offense and the circumstances indicate that this will be sufficient.’ ” Id. (citations omitted). Finally, “[i]f defendant’s recitation of his own conduct insufficiently supports the relevant charge, then Rule 11(c)(1) nonetheless is satisfied where the charging instrument plainly describes the offense and defendant acknowledges that he read, understood, and discussed with his attorney that legal document.” Id. The district court here never asked Galloway whether he understood the nature of the offense to which he was entering a guilty plea. The court, moreover, did not itself explain the elements of the conspiracy to Galloway, nor did it read the indictment to him. Finally, the court did not ask the defendant to describe his participation in the offense, and the defendant therefore did not provide the court with sufficient information to establish that he understood the meaning of his plea. For these reasons, we are not satisfied that Galloway’s guilty plea was knowing," } ]

[ { "docid": "23573841", "title": "", "text": "with her attorney and that she understood its contents. While the contents of a plea agreement do not in any way absolve the district court of its responsibilities to make a personal inquiry in open court pursuant to Rule 11(c)(1), the issue before this Court is whether the district court adequately ensured that Appellant understood the direct consequences of her plea. In concluding that the district court sufficiently satisfied this core objective of Rule 11, we note that at no time during the Rule 11 colloquy or since has Appellant expressed any actual confusion as to the mandatory sentence of incarceration to which she was subject under Count Five of the indictment. The mistake by the district court, adding 300 years to the maximum possible sentence of incarceration, was clearly an inadvertent error and so far above any reasonable sentence that it cannot be said to have likely confused Appellant, particularly when the plea agreement contained the correct maximum sentence, the district court explicitly questioned Appellant as to her understanding of the contents of the plea agreement, and Appellant never expressed any confusion as to the possible maximum sentence she faced. See Jones, 143 F.3d at 1420 (holding no reversible error where the district court failed to inform defendant that he faced fifteen years’ mandatory minimum incarceration but where written plea agreement accurately described sentence and district court specifically referred to written plea agreement during Rule 11 colloquy). Therefore, the district court’s mistake in stating the incorrect maximum term of incarceration faced by Appellant did not impair Appellant’s substantial rights and, thus, was not plain error mandating reversal of her conviction. B. Appellant finally asserts that the district court failed to ensure that she understood the direct consequences of her plea because the district court neglected to inform her during the Rule 11 colloquy that if the court declined to follow the recommendations contained in the plea agreement concerning sentencing, she would nevertheless not be able to withdraw her plea. According to Appellant, this oversight by the district court was a violation of Rule 11(e)(2) and a failure to satisfy" }, { "docid": "1933830", "title": "", "text": "ESCHBACH, District Judge. Defendant-appellant David D. Johnson pleaded guilty on December 6, 1972, to both counts of a two-count indictment. The indictment charged in Count I that on November 18, 1971, Johnson violated Title 26, U.S.C. § 5861(d), by having in his possession a sawed-off shotgun which was not properly registered. Count II charged Johnson with possession of a different unregistered weapon on January 7, 1972, also in violation of Title 26, U.S.C. § 5861(d). On appeal, the defendant-appellant raises essentially three issues. We affirm. The first question presented by this appeal is whether the trial judge followed the procedures mandated by Rule 11, Fed.R.Crim.P. when he accepted Johnson’s guilty pleas. We are satis fied that the procedures set forth in Rule 11 were followed. I. Defendant-appellant argues that the district court totally failed to explain the elements of the offense of knowingly and unlawfully possessing an unregistered sawed-off shotgun as set forth in Count I of the indictment. As a result, it is argued that the defendant-appellant did not understand the charge against him and that the district court failed to personally inquire whether the defendant-appellant understood the nature of the charge. Rule 11 expressly directs the district judge to make a personal inquiry to determine whether a defendant who pleads guilty understands the nature of the charge against him and to determine whether he is aware of the consequences of his plea. McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Rule 11 also requires that the district judge satisfy himself that there is a factual basis for the plea. The judge must decide that the conduct which the defendant admits constitutes the offense charged in the indictment. McCarthy v. United States, Id. at 467, 89 S.Ct. at 1171. The character of the defendant’s understanding relates to the question of whether the plea was entered voluntarily while the requirement that the court be satisfied that there is a factual basis for the plea entered relates to the question of the guilt or innocence of the defendant. Arias v. United States, 484" }, { "docid": "9891286", "title": "", "text": "PER CURIAM. This is an appeal from a district court order denying the petition of appellant James Arthur Kriz for vacation of judgment and sentence under 28 U.S.C. § 2255. Kriz has initiated this appeal to challenge his conviction on these three grounds: (1) the court failed to inform him of the nature of the charge to which he was pleading guilty, in violation of Fed.R.Crim.P. 11; (2) the court failed to develop an adequate factual basis for the plea, also in violation of Fed.R.Crim.P. 11; and (3) his counsel rendered ineffective assistance. We deny relief on all three grounds and thus affirm the district court. Kriz first alleges noncompliance with Rule 11 in that the record does not reflect that he understood the nature of the charge to which he pled guilty. Specifically, Kriz contends that he was not informed that two of the elements of conspiracy are (1) knowledge of the existence of a conspiracy and (2) intent to participate in an unlawful enterprise. The count of the indictment to which Kriz pled guilty (conspiracy to distribute cocaine) was not read during the Rule 11 proceeding, nor was appellant asked whether he had read the indictment and whether he understood it. Kriz was asked, however, inter alia, if he understood the nature of the charge against him, and if he understood that a conspiracy involves two men agreeing to commit a crime. As this court stated in Sappington v. United States, 468 F.2d 1378 (8th Cir. 1972), cert, denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973), Rule 11 demands an understanding of the nature of the charge. It is not always necessary to formally explain the “elements” of the offense in order to convey this. Sappington v. United States, supra, 468 F.2d at 1379. Although the Second Circuit in Irizarry v. United States, 508 F.2d 960, 965-66 (2d Cir. 1974), states that “[cjonspiracy is a somewhat complicated crime, and * * * the court * * * must at least set out the bare bones elements of the offense,” the court in Irizarry also pointed" }, { "docid": "6236789", "title": "", "text": "had reviewed the indictment and the plea agreement with his attorney, that his attorney had explained those documents to him, and that he understood those documents. This testimony cames such a strong presumption of accuracy that a distinct court does not, absent a substantial reason to find otherwise, abuse its discretion in discrediting later self-serving and contradictory testimony as to whether a plea was knowingly and intelligently made. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.1997); United States v. Gonzalez, 970 F.2d 1095, 1100-01 (2d Cir.1992). There is no substantial reason for finding otherwise in the present case. Finally, appellant’s reliance on the district court’s failure to read the indictment is frivolous because he expressly waived the reading of the indictment at the allocution. Second, appellant contends that his plea lacked an adequate factual basis because he never admitted knowing that his acts were illegal at the time he committed them. Appellant claims that his statements at the allocution at best demonstrated that he had reason to suspect that the surety bonds were fraudulent but then ignored the suspicion rather than inquiring further. However, even with the gloss he puts on these statements, they provided a sufficient basis for his plea. Rule 11(f) requires only that the trial court “determine that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.” United States v. Livorsi, 180 F.3d 76, 79 (2d Cir.1999) (internal quotation marks and citations omitted). Appellant’s description of his involvement in the fraudulent scheme, his use of fax machines to effect the sale of the fraudulent bond, and his admission that he “deliberately failed to heed the red flag that federal law enforcement officers brought to [his] attention,” provide a sufficient factual basis for the plea. Were a jury to find as fact each of the acts and omissions described in the allocution, the evidence of his conscious avoidance would suffice to provide the" }, { "docid": "188066", "title": "", "text": "district court asked, “All right [sic]. Approximately three grams of crack cocaine. You understand, sir, that the amount of cocaine, crack cocaine, that you had in your possession, that you agreed was in your possession, can control the amount of your sentence in this case.” (Transcripts at 6). McCreary-Redd responded, ‘Yes, I have grown to understand that, your honor.” Id. The district court’s inquiry about the elements of the charge ended here. Even though McCreary-Redd waived the reading of the indictment, the district court violated Rule 11(b)(1)(G) by not determining whether McCreary-Redd had knowledge and understood the intent to distribute element of the offense. See United States v. Pena, 314 F.3d 1152, 1156 (9th Cir.2003) (holding that “a ‘waiver of the reading of the indictment does not excuse the district court’s obligation to explain the nature of the charges against [the defendant].”’) (alteration in original) (citation omitted); United States v. Blackwell, 199 F.3d 623, 626 (2d Cir.1999) (vacating and remanding the defendant’s plea agreement because of the district court’s failure to determine whether the defendant understood the nature of the charges even though defendant waived the reading of the indictment). The district court did not question McCreary-Redd to determine if he understood the intent element of the drug charge. In fact, intent to distribute, an element that is essential to McCreary-Redd’s charge, was not discussed at any point during the entire plea proceeding. Thus, McCreary-Redd’s guilty plea was unknowing. See Goldberg, 862 F.2d at 108-09 (holding that the district court’s failure to inquire about or establish a clear factual basis for an element of the crime charged “reduced [the defendant’s] guilty plea to an unknowing plea.”). Therefore, we are not satisfied that the district court established a factual basis in compliance with Rule 11(b)(3), and to the extent that it was established, the district court failed to determine whether McCreary-Redd understood the nature of the charges against him, in violation of Rule 11(b)(1)(G). Accordingly, we conclude that the district court’s failure to comply with Rule 11 constitutes error that is plain. See Murdock, 398 F.3d at 497. 2. McCreary-Redd’s substantial" }, { "docid": "23396822", "title": "", "text": "guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” Although the factual basis is generally supplied by the defendant’s admissions, United States v. Frye, 738 F.2d 196, 199 (7th Cir.1984), “Rule 11(f) does not require the district judge to engage in a colloquy with the defendant to establish a factual basis for a guilty plea. A judge may find the factual basis from anything that appears on the record, which includes the government’s proffer.” Musa, 946 F.2d at 1302 (citation omitted); see also United States v. Ivory, 11 F.3d 1411, 1415 (7th Cir.1993) (“Rule 11 does not distinguish between factual material supplied by the defendant and that supplied by the prosecutor”). “Thus a sufficient factual basis can be found even when the court engages in the most rudimentary questioning of the defendant if the indictment and statement of the prosecution’s evidence are sufficiently specific to make clear to the defendant exactly what is being admitted.” Ray, 828 F.2d at 406 (citations omitted). The district court did engage LeDonne in a limited colloquy regarding his admission of relevant facts. The court also inquired and received LeDonne’s acknowledgment that he had read the information and discussed it with his attorney. When asked by the court whether he had any difficulty understanding the charges, LeDonne responded that he did not. Generally a defendant’s independent prior reading of the charges is considered inadequate to ascertain whether he understood the nature of the charges except in the simplest cases, Ray, 828 F.2d at 410, but the effort to determine whether LeDonne’s plea was knowing was not so limited in this ease. The district court directed the assistant U.S. Attorney to explain the government’s theory as to each count and to state the evidence it would offer to support those charges. Instead of directly questioning LeDonne to determine if he agreed with the facts as proffered by the government, the court requested that defense counsel examine LeDonne about the facts which formed the basis of his criminal" }, { "docid": "1933831", "title": "", "text": "and that the district court failed to personally inquire whether the defendant-appellant understood the nature of the charge. Rule 11 expressly directs the district judge to make a personal inquiry to determine whether a defendant who pleads guilty understands the nature of the charge against him and to determine whether he is aware of the consequences of his plea. McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Rule 11 also requires that the district judge satisfy himself that there is a factual basis for the plea. The judge must decide that the conduct which the defendant admits constitutes the offense charged in the indictment. McCarthy v. United States, Id. at 467, 89 S.Ct. at 1171. The character of the defendant’s understanding relates to the question of whether the plea was entered voluntarily while the requirement that the court be satisfied that there is a factual basis for the plea entered relates to the question of the guilt or innocence of the defendant. Arias v. United States, 484 F.2d 577, 579 (7th Cir. 1973). In this direct appeal we are concerned with both of these Rule 11 Requirements. The transcript reflects that a clear and complete explanation of both charges in the indictment was made to the defendant-appellant and that he fully understood the essence of the indictment. In addition, the transcript reveals that the court by personal interrogation of the defendant-appellant did elicit from him a factual basis to support the guilty plea. The court first explained the indictment to the defendant-appellant who indicated that he understood it. The court then determined that the guns in question were not registered. The court next inquired of defendant-appellant whether he was in possession of the guns on the dates in question. The defendant implied that he had been in possession of the one gun charged in Count I but that he did not have actual possession of the gun involved in Count II at the time of his arrest. The court interrogated the defendant-appellant further to ascertain whether in fact the defendant did have" }, { "docid": "22042121", "title": "", "text": "871 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993), and DeFusco, 949 F.2d at 119, (4th Cir.1991)), we held that Rule 11(c)(1) does not require a district court to advise the defendant about the applicable guideline range before accepting a guilty plea. We emphasized, however, that Rule 11(e)(1) does require that the court “clearly advise a defendant of the statutory maximum and mandatory minimum.” Good, 25 F.3d at 223. Although DeFusco did not address a district court’s failure to inform the defendant of the mandatory minimum sentence, the ease provides insight into how this court has dealt with Rule 11 violations. In DeFusco, the defendant argued that the trial court violated Rule 11 by failing to explain the nature of the charges against him and the elements of each offense. 949 F.2d at 117. On appeal, we noted that the defendant had read both the information and the plea agreement, had reviewed both documents and the elements of each offense with his attorney, and had discussed potential defenses with counsel. Id. Under these circumstances, we found that the trial court did not abuse its discretion in “relying on DeFusco’s review of the plea' agreement and criminal information with his attorney, and his verbal statements in open court that he understood the nature of the charges against him.” Id. Other circuits that have specifically addressed violations of Rule ll’s mandatory minimum requirement have likewise found harmless error in those cases in which the defendant knew of the mandatory minimum, despite the court’s failure to mention it during the Rule 11 colloquy. United States v. Johnson, 1 F.3d 296, (5th Cir.1993) (en banc); United States v. Young, 927 F.2d 1060, 1062 (8th Cir.1991), cert. denied, 502 U.S. 943, 112 S.Ct. 384, 116 L.Ed.2d 334 (1991). In reviewing the defendant’s plea, the courts have focused upon three main elements. The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant’s" }, { "docid": "1073455", "title": "", "text": "L.Ed.2d 418 (1969). In analyzing whether this knowledge is attained by a defendant, we have stated that the district court “should address the problem on the assumption that the defendant is ignorant of the nature of the charges,” Coronado, supra, at 172. In this case, the record clearly shows that the appellant was informed of the nature of the charges against him. The charge here is relatively simple. There are no technical terms likely to be unfamiliar to lay persons. Likewise, there are no particularly subtle aspects of this offense which must be grasped before one can understand the charge. In relatively simple cases of this sort, we have held that “a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice.” Dayton, supra, at 938. Here, the indictment was read to appellant and the district judge inquired thereafter into appellant’s understanding of the charge. Appellant was sufficiently informed of the nature of the charge against him. At appellant’s initial arraignment, before the Rule 11 proceeding, the record shows that appellant was asked by the district judge whether he had spoken with counsel and appellant replied that he had. The judge directly addressed the appellant and asked whether appellant understood the charges. Appellant replied affirmatively. At his re-arraignment, where he pleaded guilty and the Rule 11 proceeding transpired, appellant was read the charges against him. He was twice asked if he understood the charges and he twice replied that he did. When asked, appellant stated that he had discussed the charge against him with his attorney. The district judge also inquired whether appellant had any questions about the charge, and the appellant replied in the negative. Further, appellant signed a “Factual Resume” that identified each and every element of the crime with which he was charged. The judge also asked appellant’s counsel whether he thought appellant understood the charge. Counsel replied affirmatively. We find that the district judge more than adequately informed appellant of the nature and scope of the charge against him. Voluntariness of Plea Appellant also asserts that his" }, { "docid": "1059521", "title": "", "text": "his sentence. This motion was denied, and he did not appeal (allegedly through ignorance of his appellate rights). The present application for post-conviction relief was filed in 1982, some seven months after Patterson’s motion for reduction of sentence was denied. The district court dismissed his petition without an evidentiary hearing. It found that the transcript of the plea proceedings negated the contention that the plea was involuntary, and that the indictment defects were waived by the plea of guilty. The district court did not address Patterson’s third contention that his sentence was grossly and unfairly disproportionate. I. The district court’s conclusion that the transcript of the guilty plea proceeding conclusively showed that Patterson’s guilty plea was intelligently made was not error. For reasons to be shown, we conclude that the district court adequately determined that Patterson understood “the nature of the charges to which the plea” was offered, and failure to comply literally with Fed.R. Crim.P. 11(c)(1) does not require vacating the sentence. Although it is clear that the district judge’s failure to comply with the letter of Rule 11(c)(1) would have entitled Patterson to reversal on direct appeal, United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc), this appeal arises from a post-conviction collateral attack. Section 2255 relief can be obtained on this issue only upon a showing of prejudice by the defendant. Keel v. United States, 585 F.2d 110, 113 (5th Cir.1978) (en banc). We hold that the defendant has not shown prejudice by the trial judge’s noncompliance with Rule 11(c). Patterson claims that his plea was unintelligently entered, and hence involuntary, because the district court failed to explain the nature of the charges to him. In this Rule 11 proceeding, the district court questioned Patterson’s attorney about his client’s understanding of the indictment, the charges and the penalties. The court then questioned Patterson personally under oath. He received assurances that Patterson had read and discussed the indictment with his attorney, that he understood the charges and possible penalties, and that he believed his attorney was fully advised and informed as to the matters mentioned in" }, { "docid": "23573829", "title": "", "text": "the Government on an aiding and abetting theory. While the Government may, in fact, have planned to introduce evidence to support a conviction under the aiding and abetting theory of criminal liability, the aiding and abetting theory of criminal liability was not an essential element of the offense and the district court’s explanation of the offense was consonant with the charge as recited in both the indictment and the plea agreement. Finally, while the district court did not explicitly ask Appellant whether she understood the nature of the charge against her, it did ask Appellant whether she was “in fact guilty of what [she was] pleading to,” to which she replied, “Yes.” (R. Vol. 4 at 3.) Appellant, who was represented by counsel, never voiced any confusion about the charge to which she was pleading, nor did she object to the district court’s handling of the Rule 11 inquiry. Considering all of the circumstances in this case, then, we conclude that “the record provides a basis for the [district] court’s finding that the defendant understood what [s]he was admitting and that what [s]he was admitting constituted the crime [of possession of cocaine with intent to distribute].” Lopez, 907 F.2d at 1099. Our conclusion is buttressed by this Court’s decision in DePace. In DePace, two brothers were convicted after pleading guilty to using and carrying a handgun during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2, notwithstanding the fact that neither brother actually possessed the handguns at issue. See DePace, 120 F.3d at 236. In charging the DePace brothers, the Government was relying exclusively on an aiding and abetting theory of liability. See id. Although neither the indictment, the plea agreement, nor the district court’s explanation of the charge explained the aiding and abetting theory that linked the DePace brothers to the firearms carried and used by their co-defendants, we said that the district court’s explanation of the charge satisfied the second core objective of Rule 11. See id. at 236-37. In deciding that the district court’s explanation of" }, { "docid": "23703491", "title": "", "text": "CYR, Senior Circuit Judge. Appellant José A. Marrero Rivera (“Mar-rero”) contends that the district court erred in denying his motion to withdraw his guilty plea, see Fed.R.Crim.P. 32(e), and miscalculated the quantity of cocaine for which he was held criminally responsible at sentencing. We affirm the district court judgment. I BACKGROUND Appellant Marrero, owner and operator of a small “cafeteria,” employed one Jesús Flette Hidalgo (“Flette”). After unwittingly negotiating with undercover DEA agents and a confidential informant, Flette agreed to supply them with ten kilograms of cocaine, then transmitted a message to Marrero’s beeper stating that “ten jet skis” should be prepared. Flette later emerged from the Marrero business establishment carrying a box containing one kilogram of cocaine. Shortly thereafter, Marrero was arrested in possession of the beeper to which Flette had transmitted the “ten jet skis” message. Marrero initially entered a “not guilty” plea to the charge of conspiring with Flette to possess, with intent to distribute, ten kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. Thereafter, Marrero’s lead counsel, José Aguayo, Esquire, advised that a plea agreement would be in Marrero’s best interests and tried to persuade him to plead guilty. Later, on July 19, 1996, confronted with a 5:00 p.m. deadline for informing the government whether he would change his plea, and after consulting with a second attorney, Marrero ultimately decided to plead guilty. A. The Rule 11 Hearing On July 22, 1996, Marrero pled guilty pursuant to a plea agreement and the district court conducted a comprehensive Rule 11 hearing. See Fed.R.Crim.P. 11. The court inquired, inter alia, into Marrero’s educational and employment background. Mar-rero stated that he had read, signed, and understood the plea agreement, after discussing it with counsel. He further acknowledged that he was satisfied with Attorney Aguayo’s representation, that he understood the indictment discussed with him by counsel, and that he understood his legal rights as explained by the court. The district court then went through the indictment in abbreviated fashion. Marrero acknowledged that he understood the potential penalties attending the conspiracy charge and explicitly agreed that he was" }, { "docid": "17353850", "title": "", "text": "the plain error standard is a heavy one. Plain error requires not only an error affecting substantial rights but also a finding by the court that the error had seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir.2000). Ramirez-Benitez’s first attack on his plea implicates one of Rule ll’s core concerns, namely that the court properly instruct the defendant as to the nature of the charges against him. Gandia-Mayso-net, 227 F.3d at 3. However, the district court’s description of the offense charged was adequate for Ramirez-Benitez to have understood the elements of the offense. The district court read Count I of the indictment and asked whether Ramirez-Benitez understood the charges. The court also explained the indictment in lay terms and asked that Ramirez-Benitez describe his involvement. In cases with charges lacking in complexity, simply reading the indictment to a defendant, as was done here, can satisfy Rule ll’s requirements. See Fed. R.Crim.P. 11 advisory committee’s notes to 1974 Amendments. This was such a case. The charge against Ramirez-Benitez was not complicated; it did not contain “esoteric terms unfamiliar to the lay mind.” Mack v. United States, 635 F.2d 20, 25 (1st Cir.1980). The terms of the indictment alone sufficed to put Ramirez-Benitez on notice of the charge to which he was pleading guilty. Ramirez-Benitez admitted he understood the charge and the court found him competent to plead. Ramirez-Benitez also acknowledged his involvement in the conspiracy stating that he was a “distributor” of the heroin brought into Puerto Rico by a co-defendant. United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir.1995) (concluding defendant’s admission that the allegations are true is sufficient evidence that he understood charge). As a corollary to this admission in court, the plea agreement included a statement of facts, endorsed by Ramirez-Benitez, outlining his conduct. We find no error, let alone plain error. United States v. Perez-Carrera, 243 F.3d 42, 43 n. 2 (1st Cir.2001). Ramirez-Benitez also argues that, pursuant to Rule 11(f), the district court should have inquired into the applicability of the" }, { "docid": "23428815", "title": "", "text": "Additionally, the court explained the meaning of the term “enterprise” as used in the count and the mental state required for the offense. Both defendants stated that they fully understood the plea agreement, had discussed the plea and possible defenses with their attorneys, fully understood the RICO count, and believed that the government could prove them guilty of the RICO count beyond a reasonable doubt. Because we find that the Rule 11 hearing sufficiently apprised the defendants of the crime to confirm that they understood the nature of the offense to which they were pleading, we reject appellants’ contention that the trial court erred by not reading all of the predicate RICO acts to the defendants or by not describing the elements of the RICO offense in greater detail. Cf. Holmes v. United States, 876 F.2d 1545, 1550 (11th Cir.1989) (Rule 11 record similar to that in present case found adequate); Byrd, 804 F.2d at 1206-08 (Rule 11 record more ambiguous than that in present case found satisfactory where defendant assured court he understood charges). Although a recitation of all the predicate racketeering acts as well as a greater explication of the relationship between the RICO offense and these predicate acts would have been preferable, we conclude that viewing the record as a whole there was a sufficient showing of the defendants’ knowledge of the offense to satisfy Rule 11. We also reject as meritless appellants’ contention that the trial court should have elicited an admission to each predicate RICO act alleged in the indictment. In this case, the record indicates that the charge was adequately understood and plead to by the defendants, obviating the need for the court to elicit an admission to each separate element of the offense. The appellants’ final challenge to the district court’s Rule 11 hearing is that the court failed to conduct a sufficient inquiry into the factual basis for the plea. The Supreme Court has instructed that a judge accepting a plea must determine whether “the conduct which the defendant admits constitutes the offense ... to which the defendant has pleaded guilty.” McCarthy," }, { "docid": "23350913", "title": "", "text": "to establish a factual basis for a simple crime, when a defendant is facing a complex conspiracy charge, a mere reading of the indictment followed by an admission is not enough. Id. The court explained: “[w]e don’t know the connection between defendant and the conspiracy and we don’t know whether defendant understood the government had to prove a connection.” Id. Thus, the court held that no factual basis had been established. Viewing the circumstances surrounding Appellant’s plea in light of these eases, it is clear that Judge Matia did more to establish a factual basis than to simply rely on a reading of the indictment. In addition to being informed of the charges against him, Baez was also presented with a fairly detailed written summary of the conduct in which he was alleged to have engaged. Because Baez does not speak fluent English, the court appointed an interpreter to read the entire plea agreement to Baez before the plea hearing began. During the hearing, Judge Matia specifically drew the defendant’s attention to the paragraphs setting forth the factual basis for the charges against him. In responding to the Judge’s questions, Baez admitted that he had read the paragraphs in question and that they accurately described his actions. Courts from other circuits have held that a factual basis set forth in a plea agreement is sufficient to satisfy Rule 11(f). In United States v. Abdullah, 947 F.2d 306 (8th Cir.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1969, 118 L.Ed.2d 569 (1992), the Eighth Circuit found that where a plea agreement contained a factual basis supporting the counts to which defendant pled guilty, and both defendant and his attorney agreed to the paragraph’s accuracy, a sufficient factual basis had been presented. The Abdullah court stated: Because the plea agreement’s description of the essential facts underlying the charge supports a finding of guilty, we hold that [defendant’s] acknowledgment of the accuracy of the plea agreement’s provisions satisfied Rule ll’s requirement that the court establish a factual basis for defendant’s guilt. Id. at 309. See also United States v. Guichard, 779 F.2d 1139," }, { "docid": "23573831", "title": "", "text": "the charge satisfied the second core objective of Rule 11 and the dictates of Rule 11(c)(1), this Court noted that one of the brothers, Steven DePace, was arrested in the hotel room which contained the three loaded weapons at issue. Because of his clear involvement in the substantive crime and his proximity to the weapons, we concluded that the degree of complexity added by the aiding and abetting theory was minimal in his case. See id. at 237. With respect to the other brother, Carlton DePace, we acknowledged that he was outside in a van when the drug trafficking offense occurred, making his liability more difficult for a lay person to understand without an explanation of the aiding and abetting theory. See id. Nevertheless, because Carlton DePace admitted during the Rule 11 colloquy that he had assisted in the underlying drug trafficking offense and expected to benefit financially from the transaction, that he was represented by counsel, and that he had reviewed the plea agreement and indictment with his counsel, and because he never objected or expressed any confusion throughout the proceeding, even when asked by the district court whether he had questions, we concluded that there was nothing in the record to contradict the district court’s conclusion that Carlton De-Pace adequately comprehended the basis for his plea. See id. at 238; see also Wiggins, 131 F.3d at 1442-43 (upholding district court’s factual determination that defendant understood nature of charge where district court failed to explain elements of offense but where defendant admitted to robbing banks, pled guilty unequivocally, and stated that he understood the charges against him). In this case, as in the case of Steven DePace, it was not clear from the Government’s factual proffer that Appellant actu ally possessed the cocaine for which she was charged with possession with intent to distribute. Nevertheless, as with Steven DePace vis a vis the weapons at issue in his case, Appellant was in close proximity to the cocaine at the time it was seized. Additionally, the factual proffer suggested that she was the person who arranged for the purchase of" }, { "docid": "21876927", "title": "", "text": "HARLINGTON WOOD, Jr., Circuit Judge. Defendant-appellant Anthony Leonard Cusenza was indicted with co-defendants James Robert Srader and Christopher Scott Goodson for his participation in a conspiracy to purchase and distribute marijuana. After negotiating with the United States Attorney, Cusenza pled guilty on August 1, 1983 to Counts I (conspiring to possess marijuana with an intent to distribute), V (traveling in interstate commerce to further an illegal activity), and XII (using a communications device in furtherance of a conspiracy). On September 30, 1983, the district court imposed a twelve-year sentence on Count I, a four-year sentence on Count V, and a four-year sentence on Count XII — the sentences to run concurrently. Cusenza challenges both the convictions and the sentences. He argues that his guilty plea was invalid because the district court did not comply with Rule 11(c)(1) of the Federal Rules of Criminal Procedure. He also asserts that the sentencing hearing violated his due process rights because he had no notice that the United States Attorney intended to call a surprise witness and, therefore, no time to prepare meaningful rebuttal testimony. We reject both claims and affirm the judgment of the district court. I. Rule 11(c)(1) requires that the district court, before accepting a guilty plea, inform the defendant of the nature of the charge and determine whether the defendant understands the charge. Fed.R. Crim.P. 11. In the present case, the district court asked Cusenza if he had read the indictment, if he understood the indictment, and if he had ample time to discuss the charges with his lawyer. Cusenza answered “yes” to each of these questions. Later, after the United States Attorney had recited the factual basis for the charges, the following colloquy occurred: The Court: Now, Mr. Cusenza, you understand that basically that’s what you are admitting to, that’s what you are pleading guilty to? A. Yes, sir. The Court: Is that what you are admitting to? A. Yes sir. Defendant asserts on appeal that this procedure did not satisfy Rule 11(c)(1) because the district court neither read the indictment to Cusenza nor explained the legal definition of" }, { "docid": "22765422", "title": "", "text": "court’s finding that the defendant understood the nature of the charges to which he pleaded guilty, is entitled to consider the entire record. See, e.g., United States v. Parkins, 25 F.3d at 118. Notwithstanding the detailed requirements of Rule 11(c), Rule 11 also contains a harmless-error provision: (h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded. Fed.R.Crim.P. 11(h). Though the kinds of Rule 11 violations that can properly be considered harmless error are “fairly limited,” it is clear that one of the purposes of this provision was to permit rejection of a Rule 11(c) challenge where the record plainly shows that the defendant understood the nature of the charges despite a flawed inquiry by the court, for the advisory committee stated that harmless error could properly be found where the judge’s compliance with subdivision (c)(1) was not absolutely complete, in that some essential element of the crime was not mentioned, but the defendant’s responses clearly indicate his awareness of that element. Fed.R.Crim.P. 11 Advisory Committee Note (1983) (Rule 11(h)). In the present case, although the district court’s statements could have been more detailed in explaining the elements of money laundering, the record plainly reveals that each defendant understood the nature of the charges to which he was pleading guilty and that the alleged error in the court’s performance of its Rule 11(c) duties was entirely harmless. After the recess on November 6, 1995, the government and defendants submitted to the court the respective plea agreements. Each defendant also submitted his own written Petition To Enter Plea of Guilty (“Plea Petition”) which he signed in the presence of his attorneys and in open court and in which he acknowledged having certain information and answered certain questions in his own words and in his own handwriting. For example, each petition contained a form paragraph that stated I have received a copy of the Indictment (Information) before being called upon to plead, and have read and discussed it with my attorney, and believe and feel that I understand every accusation made" }, { "docid": "23208995", "title": "", "text": "argue that the district court did not ensure that they understood the nature of the charge of using and carrying a handgun during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(e). Appellants never actually possessed handguns but were charged with aiding and abetting their co-defendants who had used handguns in the attempted theft of the marijuana from the undercover D.E.A. Agent. The government counters that the colloquy satisfied Rule 11 and alternatively that any Rule 11 violation was harmless. A review of the Rule 11 colloquy as a whole reveals that the district court did inquire into the DePaces’ understanding of the charges to which they were pleading guilty. The district court first inquired into the De-paces’ educational background. They responded as follows: MR. C. DePACE: I also finished high school and have about forty college credits. MR. S. DePACE: I graduated High School, and I have college credits and technical school. This inquiry established that the DePaces were intelligent people fully capable of understanding the nature of the charges against them. See Bell, 776 F.2d at 969 (holding similar inquiry established that defendant was sufficiently intelligent to understand charges). The district court then confirmed that the DePaces had received a copy of the indictment, had discussed it thoroughly with counsel, and were satisfied with counsel. The district court then read the indictment in full. Count Three, the weapons charge at issue, read as follows: On or about October 20th, 1993 ... the defendants ... did knowingly use and carry a firearm, that is a handgun during and in relation to a drug trafficking crime. The district court also enumerated and confirmed that the DePaces understood the essential elements of the offenses and had read the Plea Agreement and discussed it thoroughly with counsel before signing it. Neither the indictment, the essential elements nor Plea Agreement, however, explained the aiding and abetting theory that linked the DePaces to the firearms carried and used by their co-defendants. When asked whether they had any questions about the proceedings both DePaces responded that they did not." }, { "docid": "21876928", "title": "", "text": "time to prepare meaningful rebuttal testimony. We reject both claims and affirm the judgment of the district court. I. Rule 11(c)(1) requires that the district court, before accepting a guilty plea, inform the defendant of the nature of the charge and determine whether the defendant understands the charge. Fed.R. Crim.P. 11. In the present case, the district court asked Cusenza if he had read the indictment, if he understood the indictment, and if he had ample time to discuss the charges with his lawyer. Cusenza answered “yes” to each of these questions. Later, after the United States Attorney had recited the factual basis for the charges, the following colloquy occurred: The Court: Now, Mr. Cusenza, you understand that basically that’s what you are admitting to, that’s what you are pleading guilty to? A. Yes, sir. The Court: Is that what you are admitting to? A. Yes sir. Defendant asserts on appeal that this procedure did not satisfy Rule 11(c)(1) because the district court neither read the indictment to Cusenza nor explained the legal definition of conspiracy to him. In United States v. Gray, 611 F.2d 194 (7th Cir.1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1846, 64 L.Ed.2d 264 (1980), we rejected “a construction of 11(c)(1) which literally requires that the judge personally address the defendant and inform him of the nature of the charge” and instead adopted “a flexible and practical approach, which emphasizes whether the purpose to be served by the Rule has been furthered by the particular procedure utilized by the district court.” Id. at 199. We noted that the colloquy necessary to satisfy Rule 11 “will vary from case to case depending on the complexity of the charges and the personal characteristics of the defendant — including age, education, intelligence, alacrity of his responses, and whether he is represented by counsel.” Id. at 200 (citing United States v. Wetterlin, 583 F.2d 346 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979)). The defendant, citing United States v. Frazier, 705 F.2d 903 (7th Cir.1983), argues that this court has adopted a per" } ]

[ { "docid": "22100397", "title": "", "text": "not have been litigated in the Tenth Circuit. It may be fair to say that if the second claim could not have been brought in the same court as the first, it is a different “demand.” Cf. Montana, supra, at 153 (collateral estoppel is “central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions”) (emphasis added). In addition, there are considerations of comity in the state/federal situation that are not present as between two circuits. See, e. g., Allen v. McCurry, 449 U. S. 90, 95-96 (1980). I do not rely on this conception of the same “demand,” however. For even if Montana’s delineation of the same “demand” does extend beyond jurisdictional boundaries, there is no justification for applying collateral estoppel, which is a flexible, judge-made doctrine, in situations where the policy concerns underlying it are absent. The notion of the “same demand” is at most a guide to identifying instances where policy does support preclusion. The Montana Court itself was very careful to examine general policy reasons for and against preclusion. 440 U. S., at 155, 158-164. Its decision was anything but an inflexible application of preclusion. Because the two suits were on the same demand, the unmixed question of law exception did not apply; but Montana neither began nor ended with this question, and neither should the Court here. Preclusion must be evaluated in light of the policy concerns underlying the doctrine. 1 — 1 1 — 1 Collateral estoppel is generally said to have three purposes: to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, swpra, at 94. It is plain that all three purposes are served by foreclosing further litigation on this issue between these parties in the Tenth Circuit, and that Stauffer should therefore be fully insulated against relitigation there. The Government argues that even in the Tenth Circuit it is entitled to attempt to inspect Stauffer with private contractors and to relitigate this issue “after an appropriate time,”" } ]

[ { "docid": "14964102", "title": "", "text": "with counsel, that González had not been assigned tasks between 1999 and 2000, but was assigned tasks in 2000. The court denied the motion to reconsider on March 31, 2004. González appeals, arguing that the district court erred in (1) applying res judica-ta and collateral estoppel, (2) determining that he failed to establish a prima facie case of political discrimination, and (3) denying his motion to reconsider based on new evidence. We address these issues in turn. II. Analysis A. Res Judicata and Collateral Estop-pel González first argues that the district court erred in applying res judicata and collateral estoppel in dismissing his political discrimination claims. .We disagree. Res judicata is an issue of law over which this court exercises plenary review. Pérez-Guzmán v. Gracia, 346 F.3d 229, 233 (1st Cir.2003). Under this doctrine, “a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were raised or could have been raised in that action.” Breneman v. United States ex rel. F.A.A., 381 F.3d 33, 38 (1st Cir.2004) (citation omitted). Specifically, res judicata applies when the following exist: “(1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two actions.” Id. This doctrine, also known as claim preclusion, serves the purpose' of “relieving] parties of the cost and vexation of multiple lawsuits, conserving] judicial resources, and ... encouraging] reliance on adjudication.” Id. (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). Here, the district court allegedly erred in applying res judicata because the instant allegations of political discrimination involve subsequent conduct, and thus lack “sufficient identicality of causes of action” with the earlier suit. Specifically, González argues that Defendants’ post-reinstatement harassment and failure to assign work constitute “[s]ubsequent conduct, [that,] even if it is of the same nature as the conduct complained of in a prior lawsuit, may give rise to an entirely separate cause of action.” Kilgoar v. Colbert County" }, { "docid": "5721351", "title": "", "text": "potentially dangerous. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the Supreme Court refused to prohibit offensive collateral estoppel altogether, saying instead that “the preferable approach ... is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied.” 439 U.S. at 331, 99 S.Ct. at 651. Recently, the Court again acknowledged the existence of offensive collateral estoppel, at least against non-governmental defendants. See United States v. Mendoza, — U.S.-, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (holding that offensive collateral estoppel cannot be used against the government). Under the judicially-developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation____ Collateral estoppel ... serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Id. at 571 (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980)). Thus, it is beyond peradventure that the doctrine of offensive collateral estoppel or issue preclusion is firmly fixed in the firmament of federal jurisprudence. Briefly stated, three conditions must be satisfied before a party can use issue preclusion to estop a party from relitigating an identical issue previously decided. (1) [T]he issue must have been actually litigated, that is contested by the parties and submitted for determination by the court. (2) [T]he issue must have been “actually and necessarily determined by a court of competent jurisdiction” in the first trial. (3) [Preclusion in the second trial must not work an unfairness. Otherson v. Department of Justice, INS, 711 F.2d 267, 273 (D.C.Cir.1983); see also Nations v. Sun Oil Co. (Delaware), 695 F.2d 933, 938 (5th Cir.), cert. denied, — U.S. -, 104 S.Ct. 239, 78 L.Ed.2d 229 (1983); Luben Industries, Inc. v. United States, 707 F.2d 1037, 1039 (9th Cir.1983); Deweese v." }, { "docid": "4905762", "title": "", "text": "justified as a matter of law * * * and (3) that the Bank was entitled to the dismissal of the Dannhausens’ counterclaims for an improper restraining order because “no act [relating to the restraining order] was improper.” First National Bank of Sturgeon Bay v. Stagecoach Junction, No. 3948, at 4-5 (Cir. Ct.Wis. Feb. 5, 1979). The related doctrines of res judicata and collateral estoppel are intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, encourage reliance on adjudication by preventing inconsistent decisions, and promote the comity between state and federal courts. Allen v. McCurry, 449 U.S. 90, 94-96, 101 S.Ct. 411, 414—415, 66 L.Ed.2d 308 (1980). This Court is required to give preclusive effect under the doctrines of res judicata and collateral estoppel to state court judgments whenever the courts of the state from which the judgment emerged would do so. Huron Holding Corp. v. Lincoln Mine Operations, 312 U.S. 183, 193, 61 S.Ct. 513, 517, 85 L.Ed. 725 (1941). The bar imposed by the doctrine of res judicata precludes parties or their privies from relitigating issues that were or could have been raised in that action. Allen v. McCurry, supra, 449 U.S. at 94, 101 S.Ct. at 414, citing Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877); Northwestern National Casualty Co. v. State Automobile & Casualty Underwriters, 35 Wis.2d 237, 244, 151 N.W.2d 104 (1967). Under the doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first action. Allen v. McCurry, supra, 449 U.S. at 94, 101 S.Ct. at 414, citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); McCourt v. Algiers, 4 Wis.2d 607, 91 N.W.2d 194 (1958). But one general limitation on use of the doctrine of collateral estoppel is that this doctrine cannot apply when the party against whom the earlier decision is asserted did" }, { "docid": "23183222", "title": "", "text": "claim in a civil proceeding before the federal court. A. Unavailability or Impropriety of Collateral Estoppel Against the State Government In United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), the Supreme Court held that nonmutual offensive collateral estoppel may not be invoked against the government. While the collateral estoppel sought in this case is defensive and the petitioner seeks to invoke it against a state government rather than the federal government, we hold that the policy rationale behind Mendoza applies to the facts of this case, Under the doctrine of collateral estoppel, the resolution by a court of an issue of fact or law necessary to its judgment precludes the relitigation of that issue in a subsequent suit based on a different cause of action involving a party to the prior litigation. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). As stated by the Supreme Court: Collateral estoppel, like the related doctrine of res judicata, serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Mendoza, 104 S.Ct. at 571, quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (footnote omitted). The courts have broadened the scope of this doctrine in recent years by abandoning the requirement of mutuality of parties. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). However, the Supreme Court has long recognized that the government is not in the same position as a private litigant, given the geographical breadth of government litigation and the nature of the issues litigated by the government. See Mendoza, 104 S.Ct. at 572. In ruling that nonmutual collateral estoppel should not be applied against the government, the Supreme Court in Mendoza cited several considerations. The Court noted that not only is the government frequently involved in legal questions of substantial public importance but that the government is more likely than private litigants to be" }, { "docid": "15122937", "title": "", "text": "gave up hope of ever getting their scale from defendant. Some made demands for refunds, but defendant never returned any down payment. From the evidence produced at trial, when viewed in the light most favorable to the verdict, a rational trier of fact could have found that the Government proved the elements of the crimes charged beyond a reasonable doubt. Therefore, defendant’s sufficiency of the evidence claim fails. III. COLLATERAL ESTOPPEL Defendant’s claim that collateral estoppel should prevent the Government from pursuing the criminal prosecution requires more detailed examination. Defendant’s argument presupposes two conditions: first, that an initial administrative decision merits collateral estoppel effects; and, second, that a dismissal for collateral estoppel is a decision on the merits. We need not, however, decide whether a collateral estop-pel dismissal is equivalent to a decision on the merits because, as explained below, the first condition to defendant’s argument is not satisfied. The doctrine of collateral estoppel is a judicially developed mechanism to “relieve parties of the post and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). In two recent decisions, the Supreme Court has discussed the limitations of the doctrine. In United States v. Stauffer Chemical Co., — U.S. —, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984), the Court determined that collateral estop-pel applied against the Government when the Government had lost a previous case involving both the same adverse party and the same controlling issue. Although the Government was not a named party in the first case, it had controlled the entire litigation on behalf of the named party. Thus, there was mutuality between the parties, the nature of the two civil proceedings was similar, and both involved the same determinative issue. In United States v. Mendoza, — U.S. —, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), the Court unanimously held that a petitioner for naturalization could not assert collateral estoppel against the Government when he was not a party to the earlier judgment. The Court held that" }, { "docid": "4313723", "title": "", "text": "or claims not presented to the bankruptcy court.”). Although there are circumstances in which an appellate court is justified in resolving an issue not passed on below, Barry has failed to argue, much less establish, that this is such a case. See Singleton v. Widff, 428 U.S. 106, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (“[i]t is the general rule ... that a federal appellate court does not consider an issue not passed upon below,” but acknowledging the existence of exceptions when “the proper resolution is beyond any doubt,” or “injustice might otherwise result”). Alternatively, the court concludes that Barry has failed to carry his burden of proof on this issue. Res judicata is a judicially-created doctrine applied by courts to prevent repeated litigation of the same claims and issues by the same parties. In addition to protecting litigants from the burden of multiple lawsuits, the doctrine fosters judicial economy and promotes the finality and certainty of judgments. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (res judicata serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication”). The doctrine embraces two distinct preclusion concepts: claim preclusion (res judicata) and issue preclusion (collateral estoppel). Id. at 414. “Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Id. “Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relit-igation of the issue in a suit on a different cause of action involving a party to the first case.” Id. The burden is on the party seeking to invoke res judicata to prove that the doctrine bars the second action. See Matter of Braniff Airways, Inc., 783 F.2d 1283, 1289 (5th Cir.1986). Barry has asserted that the “Final Order in the Trustee’s Adversary Proceeding was both res judicata and collateral estoppel as to the Trustee’s fees" }, { "docid": "10008430", "title": "", "text": "district court would have been obliged to submit the legal claim under section 1981 to a jury. Moreover, in deciding whether to grant equitable relief under Title VII, the district court would have been prohibited from reconsidering any issues necessarily and actually decided by the jury. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.1986); Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 844 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); see also Lincoln, 697 F.2d at 934; Heyman v. Kline, 456 F.2d 123, 131 (2d Cir.), cert. denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972). B. Collateral Estoppel Collateral estoppel is a “judicially developed doctrine,” United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984), which, when properly applied, can “relieve parties of the cost and vexation of multiple law suits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Oshkosh Truck argues that, despite the prohibitions of the seventh amendment and the concerns noted in Beacon Theatres, the Supreme Court’s holding in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), requires us to apply collateral estoppel in this case. The issue in Parklane Hosiery was “whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party.” Id. at 324, 99 S.Ct. at 648. The Supreme Court stated that it had already held in Katchen v. Tandy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), that “an equitable determination can have collateral estoppel effect in a subsequent legal action and this estoppel does not violate the Seventh Amendment.” Id. 439 U.S. at 335, 99 S.Ct. at 653. The Court found this principle implicit in the Beacon Theatres holding: It is thus clear" }, { "docid": "8562936", "title": "", "text": "of riparian owners were fully litigated in the prior proceeding in Stupakr-Thrall I and that the doctrines of res judicata and collateral estoppel preclude this Court from revisiting these issues. Although “res judicata” is generally understood to bar the relitigation of the same claim or cause of action and “collateral estop-pel” is generally understood to bar the relit-igation of the same issue, Drummond v. Comm’r of Social Sec., 126 F.3d 837, 840 (6th Cir.1997), this Court will follow the recommendation of the Sixth Circuit Court of Appeals and refer to these concepts as “claim preclusion” and “issue preclusion.” Heyliger v. State Univ. & Comm. College Sys., 126 F.3d 849, 852 (6th Cir.1997) (quoting Barnes v. McDowell, 848 F.2d 725, 728 n. 5 (6th Cir.1988) cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 780 (1989)). Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Id. (quoting Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984)). Both concepts are intended to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Drummond, 126 F.3d at 840 (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980)). Claim preclusion has four elements: 1.A final decision on the merits in the first action by a court of competent jurisdiction; 2. The second action involves the same parties, or their privies, as the first. 3. The second action raises an issue actually litigated in the first action or which should have been litigated in the first action; and 4. An identity of the causes of action. Sanders Confectionery Products v. Heller Financial," }, { "docid": "9669134", "title": "", "text": "on April 28,1982 we provisionally denied that motion. Appellant subsequently filed a pro se reply brief, and the case was set for oral argument on September 23, 1982. Following appointed counsel’s renewal of his motion to withdraw, we granted the motion and removed the case from the oral argument calendar. The case now reaches us for decision on the briefs and record alone. II. The doctrines of res judicata and collateral estoppel “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). “Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Id. (citations omitted). Although defendants-appellees in this case assert that the claim is res judicata, it would appear that technically both res judi- cata and collateral estoppel are involved. In terms of the parties, we have not only a final prior judgment in a suit between the same parties (Mr. Warren and the Parole Commission), but new parties (the Warden at Marion and the various Parole Commission officials) as defendants in the civil rights suit. In terms of the claim, the issues asserted in the two cases are identical; there is no suggestion that Mr. Warren is barred from asserting any claim that he failed to raise earlier, so the broader reach of res judicata is not at issue. The choice of labels is of no practical significance here. We must in either ease determine whether the same cause of action, and the same parties (or others entitled to use collateral estoppel) were involved, and whether the prior action resulted in a final judgment on the merits. See" }, { "docid": "1713119", "title": "", "text": "L.Ed.2d 552 (1979). The doctrine has generally been applied against persons who were either parties to a prior suit or in privity with such parties. Plaintiffs assert that collateral estoppel should only be applied against persons who were either parties to a prior suit or in strict privity with such parties. The plaintiffs’ argument is not without merit. In United States v. Mendoza, 464 U.S. 154, 158-159 n. 3, 4, 5, 104 S.Ct. 568, 571-72 n. 3, 4, 5, 78 L.Ed.2d 379, the Supreme Court said: Under the judicially developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153 [99 S.Ct. 970, 973, 59 L.Ed.2d 210] (1979). Collateral estoppel, like the related doctrine of res judicata, serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 [101 S.Ct. 411, 414-415, 66 L.Ed.2d 308] (1980). In furtherance of those policies, this Court in recent years has broadened the scope of the doctrine of collateral estoppel beyond its common-law limits. Ibid. It has done so by abandoning the requirement of mutuality of parties. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 [91 S.Ct. 1434, 28 L.Ed.2d 788] (1971), and by conditionally approving the “offensive” use of collateral estoppel by a nonparty to a prior lawsuit. Parklane Hosiery, supra. In Standefer v. United States, 447 U.S. 10, 24 [100 S.Ct. 1999, 2008, 64 L.Ed.2d 689] (1980), however, we emphasized the fact that Blonder-Tongue and Parklane Hosiery involved disputes over private rights between private litigants. We noted that “[i]n such cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and [that] there is no sound reason for burdening the courts with repetitive litigation.” 447 U.S. at" }, { "docid": "23197988", "title": "", "text": "case involving a weighing of conflicting questions of motive and intent, summary judgment is proper where the plaintiff presents no indications of motive and intent supportive of his position.”). In any event, even if the Donalds could show that the defendants acted fraudulently or in bad faith, their claims would nevertheless be barred by the doctrine of collateral estop-pel. The district court found that the doctrine of collateral estoppel barred the Donalds’ claims. The doctrine of collateral estoppel, also called issue preclusion, generally prevents a party from relitigating an issue the party has previously litigated and lost. This policy promotes judicial efficiency and prevents inconsistent decisions while affording each party one fair opportunity to litigate an issue. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980); Appley v. West, 832 F.2d 1021, 1025 (7th Cir.1987); Gilldom Sav. Ass’n v. Commerce Sav. Ass’n, 804 F.2d 390, 392-93 (7th Cir.1986). In Allen v. McCurry, the United States Supreme Court specifical ly held that the doctrine of collateral estop-pel applies to cases brought under 42 U.S. C. § 1983. A federal court must give the same preclusive effect to a state court ruling as would a court in the rendering state. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Allen, 449 U.S. at 96, 101 S.Ct. at 415. Therefore, the Wisconsin rules governing collateral estoppel apply to this case. Wisconsin law bars parties from relitigating issues that were “litigated, determined, and necessary to the decision in the prior proceeding.” Reckner v. Reckner, 105 Wis.2d 425, 314 N.W.2d 159, 165 (Wis.App.1981) (citing State ex rel. Flowers v. Department of Health & Social Servs., 81 Wis.2d 376, 260 N.W.2d 727, 734 (1978)); Guenther v. Holmgreen, 738 F.2d 879, 884 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). Wisconsin courts do not require mutuality of parties where collateral estoppel is “asserted defensively to prevent a party from relitigating an issue which has been conclusively resolved against that party in a prior" }, { "docid": "3567839", "title": "", "text": "doctrine of offensive collateral estoppel, we must also take care to construe the requirements for this doctrine in a manner that furthers its purpose. As noted by the Supreme Court, offensive and defensive collateral estoppel serve “to ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984)(quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). The majority’s rigid construction of “necessary,” however, runs contrary to these purposes. Indeed, the majority’s rigid construction of “necessary” frustrates these purposes. Very few findings, while a material element of a prior judgment, can be considered indispensable. Consequently, under the majority’s construction of “necessary,” litigants and courts will be forced to reconsider an issue that constituted or was a material element of a prior judgment even though that issue was fully contested and resolved in a previous proceeding. For instance, a finding during a dispute concerning the amount of a contractor’s lien on real property that the contract in question contains a provision placing a limit on the contractor’s compensation is not indispensable because it does not determine the actual amount of thé contractor’s lien. Nonetheless, such a finding is a material element of the judgment because it establishes that the compensation to which the contractor is entitled cannot exceed a certain amount. Accordingly, the parties should be precluded in a subsequent suit from relitigating whether the contract in question placed a limit on the contractor’s compensation if this issue was fully and fairly contested during the initial proceeding. Allowing this issue to be relitigated defeats the purposes of collateral estoppel, which, as previously noted, are “to ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” Id. W As a means of drawing an appropriate balance between the costs and purposes of offensive collateral estoppel, I believe a finding should be deemed “necessary” to a prior judgment" }, { "docid": "10004117", "title": "", "text": "Lastly, Exxon asserts that the doctrines of collateral estop-pel and stare decisis notwithstanding, it presented evidence at trial establishing that the Texas Gulf Coast/East Texas region was the relevant market area in 1975. As noted above, the Government’s position is simply that the entire State of Texas was the relevant market area in 1975. We have already held herein that the Government’s position cannot be sustained, given its failure to present a statewide gas comparability study. Nonetheless, in the following discussion, the court shall consider whether the Government, in fact, presented any evidence tending to rebut Exxon’s case with respect to the relevant market area determination. C. Discussion 1. Collateral Estoppel Under the doctrine of collateral estoppel, also known as issue preclusion, “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). See also Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); Commissioner v. Sunnen, 333 U.S. 591, 597-98, 68 S.Ct. 715, 92 L.Ed. 898 (1948); Texas Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1568 (Fed.Cir.1996), cert. denied, 520 U.S. 1228, 117 S.Ct. 1818, 137 L.Ed.2d 1027 (1997). The purpose of the doctrine of collateral estoppel is to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). However, justice and fairness mandate that the doctrine of collateral estoppel is not a blunt, ponderous tool given to indiscriminate application. Difficulty sometimes arises ... in delineating the issue on which litigation is, or is not, foreclosed. The problem involves a balancing of important interests: on the one hand a desire not to deprive a litigant of an adequate day in court; on the other hand, a desire to prevent repetitious litigation of what is" }, { "docid": "23183223", "title": "", "text": "the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Mendoza, 104 S.Ct. at 571, quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (footnote omitted). The courts have broadened the scope of this doctrine in recent years by abandoning the requirement of mutuality of parties. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). However, the Supreme Court has long recognized that the government is not in the same position as a private litigant, given the geographical breadth of government litigation and the nature of the issues litigated by the government. See Mendoza, 104 S.Ct. at 572. In ruling that nonmutual collateral estoppel should not be applied against the government, the Supreme Court in Mendoza cited several considerations. The Court noted that not only is the government frequently involved in legal questions of substantial public importance but that the government is more likely than private litigants to be involved in lawsuits against different parties that involve the same legal issues. Moreover, the Court noted that given the government’s frequent involvement in litigation that its conduct in such litigation differs from that of a private litigant because while a private litigant will rarely forego an appeal if there is a chance of ultimately prevailing, the government traditionally considers a variety of factors before appealing, such as limited government resources and the crowded dockets of the courts. Mendoza, 104 S.Ct. at 573. The Court found that applying the doctrine of nonmutual estoppel- against the government would force it to abandon its policy of limited appeal and force it to appeal every adverse decision to prevent foreclosure of further review. The concern of the Supreme Court as to this matter is reflected in the present case as the DPR chose not to appeal the final order of the Board of Pilot Commissioners. The Court was also cognizant of the fact that the Executive Branch over the course of time may find it prudent to take differing" }, { "docid": "18901991", "title": "", "text": "a copy of the malpractice complaint and the judgments entered in that case have been admitted into evidence. See supra note 1. Debtor testified that he filed an Answer to the malpractice complaint, but did not receive notice of Brill’s motion for summary judgment and therefore he did not file any opposition to that motion nor did he appear at the hearing on that matter. The Answer in that case was not offered into evidence. This raises the question of whether the issues upon which judgments on Counts I-VI were entered were “actually litigated” in the state court such that collateral estop-pel would bar litigation of those issues in this proceeding. Collateral estoppel “relieves parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). “The same person may demand a judicial determination of the same issue only once.” IB Moore’s Federal Practice (2nd ed.) .443[1] at 758. The situation most clearly contemplated by the “actually litigated” standard is the resolution of a dispute following a full trial on the merits. Entry of judgment pursuant to motion for summary judgment or motion for failure to state a claim satisfies the “actually litigated” standard only if the party against whom judgment was entered had proper incentive to and did in fact fully contest the motion on the merits. United States Life Title Insurance Co. v. Dohm, 19 B.R. 134, 138 (N.D.Ill.1982). See Bucci, 905 F.2d at 1112-13 (noting that inadequate incentive to litigate may prevent collateral estoppel from applying). In those situations the benefits from precluding further litigation outlined above provide compelling reasons not to give a party a second bite at the apple. The “actually litigated” element, however, indicates that concern for judicial economy is tempered by need for some assurance that resolution of issues in the first proceeding is reliable. The traditional approach in our legal system for assuring that resolution of factual disputes and legal issues are accurate and fair is to have" }, { "docid": "1912484", "title": "", "text": "the state court findings collateral estoppel effect, the practical result of the decision in Sorlucco is the same: absent fraud or collusion, the property division established by the dissolution, judgment, and decree preclude the debtor from arguing lack of reasonably equivalent value under § 548(a)(2)(A). As did Judge Yacos in In re Sorlucco, I realize that the approach taken in this order is not supported by existing case law. However, I believe the policies underlying collateral estoppel and the development of the doctrine in recent years support the conclusion reached. Courts have long-recognized the public policy considerations in favor of liberally applying collateral estop-pel. In Allen v. McCurry, the United States Supreme Court noted that “res judi-cata and collateral estoppel relieve parties of the cost and vexation of multiple suits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). See also Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). The doctrine also serves to “promote the comity between state and federal courts that has been recognized as the bulwark of the federal system.” Allen v. McCurry, 449 U.S. at 96, 101 S.Ct. at 415. In light of these strong public policies, the United States Supreme Court has moved toward abandoning the strict elements of the doctrine in favor of a “fairness” approach to its application. See, e.g., Oldham v. Pritchett, 599 F.2d 274, 278 (8th Cir.1979). Two Supreme Court decisions are particularly illustrative of this trend. In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), the Supreme Court eliminated the requirement of mutuality of parties, and in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the court allowed collateral estoppel to be used offensively for the first time. Both cases evidence a rejection of a strict adhesion to the traditional elements of collateral estop-pel in situations which promote the public policies mentioned above. Extension of the doctrine in this proceeding" }, { "docid": "18901990", "title": "", "text": "some courts, because of the bankruptcy courts’ exclusive jurisdiction in determining discharge-ability, give no collateral effect to state court proceedings. However, it specifically rejected this position, stating that “[wjhere a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments.” Id. at 1295 (emphasis added). See also Cohen v. Bucci, 905 F.2d 1111 (7th Cir.1990). The Klingman opinion then outlined four elements that must be met for the collateral estoppel doctrine to be applicable: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) the determination must have been essential to the final judgment, and (4) the party against whom estoppel is invoked must have been fully represented in the prior action. Klingman, 831 F.2d at 1295. In this case, the details of what transpired in the state court malpractice suit are very sketchy. Only a copy of the malpractice complaint and the judgments entered in that case have been admitted into evidence. See supra note 1. Debtor testified that he filed an Answer to the malpractice complaint, but did not receive notice of Brill’s motion for summary judgment and therefore he did not file any opposition to that motion nor did he appear at the hearing on that matter. The Answer in that case was not offered into evidence. This raises the question of whether the issues upon which judgments on Counts I-VI were entered were “actually litigated” in the state court such that collateral estop-pel would bar litigation of those issues in this proceeding. Collateral estoppel “relieves parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). “The same person may demand a judicial determination of the same issue only once.” IB Moore’s Federal Practice (2nd ed.) .443[1] at 758. The situation" }, { "docid": "15122938", "title": "", "text": "preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). In two recent decisions, the Supreme Court has discussed the limitations of the doctrine. In United States v. Stauffer Chemical Co., — U.S. —, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984), the Court determined that collateral estop-pel applied against the Government when the Government had lost a previous case involving both the same adverse party and the same controlling issue. Although the Government was not a named party in the first case, it had controlled the entire litigation on behalf of the named party. Thus, there was mutuality between the parties, the nature of the two civil proceedings was similar, and both involved the same determinative issue. In United States v. Mendoza, — U.S. —, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), the Court unanimously held that a petitioner for naturalization could not assert collateral estoppel against the Government when he was not a party to the earlier judgment. The Court held that there was no nonmutual offensive collateral estoppel against the Government. The applicability of collateral estoppel to criminal cases is of fairly recent origin. The Supreme Court has stated that “the doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal case, whereas the prior proceedings were civil in nature.” Yates v. United States, 354 U.S. 298, 335, 77 S.Ct. 1064, 1085, 1 L.Ed.2d 1356 (1957). The Court did not preclude the Government from prosecuting defendant, however, because the issues involved in the criminal case were not identical to those in the civil denaturalization case, in which defendant had prevailed. Id. More recently, the Court has again discussed the applicability of collateral es-toppel to criminal cases. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). With reference to the fact that the Government cannot appeal from a judgment of acquittal, the Court stated that it did not “suggest that the availability of appellate review is always an essential predicate of estoppel. The estop-pel doctrine, however," }, { "docid": "23638198", "title": "", "text": "to resolve the present dispute, instead of an analysis that relies on a feather’s weight of Ohio authority and a misplaced marketplace metaphor. In footnote 2 of its opinion, the Court states that there was no waiver in this case because the Court of Claims held that the “discharge was in accordance with the law, not against the law.” The Court seems to ignore the fact that before any such “finding” by the Court of Claims can have pre-clusive effect in this action, it must be judged by principles of res judicata and collateral estoppel. Under res judicata, or claim preclusion, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). The related doctrine of collateral estoppel, or issue preclusion, dictates that “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Id.; see also id. at 94 n. 5, 101 S.Ct. at 415 n. 5 (citing Restatement (Second) of Judgments § 74 (Tent. Draft No. 3, Apr. 15, 1976) for use of term “claim preclusion” as equivalent to res judicata and “issue preclusion” for collateral estop-pel). Collateral estoppel cannot apply, however, unless the party against whom the earlier decision is asserted had a “full and fair opportunity” to litigate the issue in the earlier case. See Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983); Allen v. McCurry, 449 U.S. at 95, 101, 101 S.Ct. at 415, 418; Restatement (Second) of Judgments § 29 (1982). The rationale behind claim and issue preclusion is to relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and to encourage reliance on adjudication by preventing inconsistent decisions. See Allen v. McCurry, 449 U.S. at 94, 101 S.Ct. at 415 (citing" }, { "docid": "22320998", "title": "", "text": "the merits of Mendoza’s constitutional claim. The District Court concluded that the Government could not relitigate the due process issue because that issue had already been decided against the Government in In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (ND Cal. 1975) (hereinafter 68 Filipinos), a decision which the Government had not appealed. Noting that the doctrine of nonmutual offensive collateral estoppel has been conditionally approved by this Court in Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979), the Court of Appeals concluded that the District Court had not abused its discretion in applying that doctrine against the United States in this case. 672 F. 2d 1320, 1322 (1982). The Court of Appeals rejected the Government’s argument that Parklane Hosiery should be limited to private litigants. Although it acknowledged that the Government is often involved in litigating issues of national significance where conservation of judicial resources is less important than “getting a second opinion,” it concluded that litigation concerning the rights of Filipino war veterans was not such a case. 672 F. 2d, at 1329-1330. For the reasons which follow, we agree with the Government that Parklane Hosiery's approval of nonmutual offensive collateral estoppel is not to be extended to the United States. Under the judicially developed doctrine of collateral estop-pel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U. S. 147, 153 (1979). Collateral estoppel, like the related doctrine of res judicata, serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U. S. 90, 94 (1980). In furtherance of those policies, this Court in recent years has broadened the scope of the doctrine of collateral estoppel beyond its common-law limits. Ibid. It has done so by abandoning the requirement of mutuality of parties, Blonder - Tongue Laboratories, Inc. v. University" } ]

[ { "docid": "5604771", "title": "", "text": "as “awake, alert, and oriented,” were also introduced before the trial court. Although petitioner now objects to the significance and interpretation given some of this evidence by the trial court, he has not suggested that the state suppression hearing was so inadequate as to remove the presumption of correctness given state court factual findings. See 28 U.S.C. § 2254(d) (1988). 2. Evidentiary hearing More troubling is the District Court’s apparent belief that it was without discretion to hold an evidentiary hearing to inquire into petitioner’s factual allegations. While we have ruled that the District Court properly declined to issue a writ on the record before it, the District Court was not limited to that record. At one time, district courts were required to hold evidentiary hearings in habeas cases whenever “for any reason not attributable to the inexcusable neglect of petitioner, evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing.” Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963) (citation omitted). This aspect of Townsend was recently overruled by Keeney v. Tamayo-Reyes, — U.S. -, -, 112 S.Ct. 1715, 1717, 118 L.Ed.2d 318 (1992). A hearing is now required only when the petitioner can establish cause for his failure to develop an adequate factual record below and prejudice resulting from that failure; it no longer suffices to show merely that he did not deliberately bypass the opportunity to present facts to the state forum. But Townsend also made clear that a District Court retained the power to hold a hearing even though one was not required: The purpose of the test is to indicate the situations in which the holding of an evidentiary hearing is mandatory. In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge. If he concludes that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, he may, and ordinarily should, accept the facts as found in the hearing." } ]

[ { "docid": "14423672", "title": "", "text": "Court had made an implied finding of fact on this issue, and, second, in failing to defer to the Superior Court’s implied finding itself. We therefore reverse. I. The Presumption of Correctness Under 28 U.S.C. § 2254(d). Where a person in custody pursuant to a judgment of a state court petitions for a writ of habeas corpus and alleges facts which, if proven, would be sufficient to gain him relief, the district court may, in its discretion, hold an evidentiary hearing on petitioner’s claim. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). Congress, however, has established certain parameters for such hearings. Mindful of the friction that may develop between federal and state courts, and seeking to promote the interests of comity, see Sumner v. Mata, 449 U.S. 539, 547, 550, 101 S.Ct. 764, 769, 770, 66 L.Ed.2d 722 (1981), Congress has enacted 28 U.S.C. § 2254(d) which requires that federal courts hearing a habeas claim defer to state co.urt findings of fact. Under 28 U.S.C. § 2254(d), federal courts conducting a habeas proceeding must give a “presumption of correctness” to “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction,” unless the conditions for one of the seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. See Sumner, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Where the presumption applies, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d); see also Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 1205, 35 L.Ed.2d 637 (1973); Jarrett v. Headley, 802 F.2d 34," }, { "docid": "2035275", "title": "", "text": "U.S.C. § 2254(d) (1976). Section 2254(d) provides that in federal habeas corpus proceedings instituted by a state prisoner, “a determination after a hearing on the merits of a factual issue made by a State court of competent jurisdiction” and “evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct” unless the federal court finds that (a) one of the seven enumerated factors listed in § 2254(d) exists; or (b) “such factual determination is not fairly supported by the [state court] record”; or (c) the habeas petitioner has established by “convincing proof that the factual determination by the state court was erroneous.” See Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The § 2254(d) restrictions on federal court review of habeas petitions apply only to “issues of fact” as found by the state courts. The term “issues of fact” applied in the section 2254(d) context “refer[s] to what are termed basic, primary, or historical facts: ‘facts (in the sense of a recital of external events and the credibility of their narrators).’ ” Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, J.)); see Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980). Section 2254(d) does not apply to federal court review of state court decisions regarding either purely legal questions or mixed questions of law and fact. See generally Taylor v. Cardwell, 579 F.2d 1380, 1383 (9th Cir. 1978) (“While federal courts defer to proper state findings of historical fact, the federal court itself must determine the legal effect of these facts, and it must apply the proper federal legal standard in doing so.”); Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980) (mixed questions of law and fact require “the application of legal" }, { "docid": "1977026", "title": "", "text": "overrules Ground 19. VII. EVIDENTIARY HEARING With respect to Morales’ request for an evidentiary hearing with respect to certain of the claims asserted in the Application, the enactment of the AEDPA, which applies in this case, substantially altered the standards used by federal courts to determine whether a request for an evidentiary hearing should be granted. Prior to the enactment of the AEDPA, the disposition of a federal habeas petitioner’s request for an evidentiary hearing was controlled by Rule 8(a) of the Rules Governing § 2254 Cases, and by the Supreme Court’s decision in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Townsend defined the circumstances in which a federal evi-dentiary hearing was mandatory, while emphasizing that federal courts retain discretion in many cases to grant or deny a hearing. Townsend. 372 U.S. at 312-13, 83 S.Ct. 745. The Townsend Court held that a federal court is empowered to grant an evidentia-ry hearing if “an applicant for a writ of habeas corpus allege[d] facts which, if proved, would entitle him to relief.” 372 U.S. at 312, 83 S.Ct. 745. The Court concludes that even under this more “lenient” standard of Townsend, Morales is not entitled to an evidentiary hearing with respect to any of the grounds asserted in the Application, since he has failed to allege facts which, if proved, would entitle him to relief. Under the AEDPA, a determination of a factual issue made by a State court shall be presumed to be correct, and the applicant for a writ of habeas corpus has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Court concludes that Morales has not met this burden, nor has he otherwise shown that he is entitled to an evidentiary hearing pursuant to § 2254(e)(2). VIII. CONCLUSION For the foregoing reasons, the Court hereby DENIES Alfred Morales’ Petition Under 28 U.S.C. § 2254 For A Writ Of Habeas Corpus For A Person In State Custody" }, { "docid": "14423673", "title": "", "text": "courts conducting a habeas proceeding must give a “presumption of correctness” to “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction,” unless the conditions for one of the seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. See Sumner, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Where the presumption applies, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d); see also Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 1205, 35 L.Ed.2d 637 (1973); Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir.1986). The presumption, thus, “is not irrebuttable. If a state court determination is fairly supported by the record, and thus presumed correct, petitioner in a federal evidentiary hearing may nonetheless prevail by shouldering the burden of establishing ‘by convincing evidence that the factual determination by the State court was erroneous.’ ” Lafferty v. Cook, 949 F.2d 1546, 1549 n. 1 (10th Cir.1991) (quoting 28 U.S.C. § 2254(d)). Section 2254(d) requires federal courts to accord deference to implied as well as express findings of fact, Marshall v. Lonberger, 459 U.S. 422, 433-34, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983), and to the findings of state appellate courts as well as state trial courts, Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Saccomanno v. Scully, 758 F.2d 62, 65 (2nd Cir.1985). While section § 2254(d) does not require deference to state court findings on mixed issues of fact and law such as whether a plea agreement was entered into voluntarily, Lonberger, 459 U.S. at 431-32, 103 S.Ct." }, { "docid": "19805308", "title": "", "text": "penalty statute is unconstitutional under the Eighth and Fourteenth Amendments to the Constitution of the United States. (12) The trial court erred in allowing the state to present evidence of an armed robbery at petitioner’s trial on the charge of first degree murder. (13) Petitioner was denied effective assistance of counsel when his attorneys failed to suppress a taped confession and other inculpatory statements. There is no need for an evidentiary hearing in this case. The state court record is attached. In reviewing a state prisoner’s application for writ of habeas corpus, the federal court is bound by the provisions set forth in 28 U.S.C. § 2254(d) and the standards set forth in Sumner v. Mata, - U.S. -, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Thus, in a federal habeas corpus proceeding instituted by a state prisoner, a determination after a hearing on the factual issues made by a state court of competent jurisdiction and evidenced by a written finding, written opinion or other reliable and adequate written indicia shall be presumed to be correct unless one of the seven specified conditions set forth in 28 U.S.C. § 2254 is found to exist or unless the habeas corpus court concludes that the relevant state court determination is not fairly supported by the record. Sumner v. Mata, supra. Both the Louisiana Supreme Court and the state district court have made determinations of factual issues which have been reduced to writing in a written opinion. In the absence of the enumerated factors set forth in 28 U.S.C. § 2254, “the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish ‘by convincing evidence that the factual determination of the state court was erroneous.’ 28 U.S.C. § 2254(d). Thus, Congress meant to insure that a state finding not be overturned merely on the basis of the usual ‘preponderance of the evidence’" }, { "docid": "10529872", "title": "", "text": "four § 2254(d) prerequisites. There was a hearing on the merits of a factual issue (the underlying facts of Reese’s claim of ineffective assistance of counsel), made by a state court of competent jurisdiction, in a proceeding to which both Reese and the respondent were parties, and evidenced by a written finding. Moreover, the Supreme Court’s standards under 28 U.S.C. § 2254(d) set forth that the burden rests on that party attempting to rebut the presumption of correctness, not the party assuming it. In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the Court explained that Congress enacted subsection (d) in 1966 to alleviate the friction created between state and federal courts as a result of federal habeas corpus. Id. at 550, 101 S.Ct. at 770. But it is clear that in adopting the 1966 amendment, Congress [intended also] that the findings made by the state-court system “shall be presumed to be correct” unless one of seven conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state-court determination is not “fairly supported by the record,” [under § 2254(d)(8)] “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” (Emphasis supplied.) Id. at 550-51, 101 S.Ct. at 770-71. In turn, Sumner states that § 2254(d) provides no specific procedural requirements for there to be a “hearing on the merits of a factual issue,” other than that the petitioner and respondent be parties to the state proceeding and that the state-court decision be “evidenced by a written finding, written opinion, or other reliable and adequate written indicia.” Id. at 546-47, 101 S.Ct. at 768-69 (citing § 2254(d)). Recent cases concerning a habeas petitioner’s entitlement to an evidentiary hearing have held to the Sumner standard. See, e.g., Lesko v. Lehman, 925 F.2d 1527, 1538 (3d Cir.1991) (stating that 28 U.S.C. § 2254(d) “provides that a habeas court shall accord a" }, { "docid": "18434077", "title": "", "text": "were denied. Defense counsel’s motion to suppress an identification because of an improper lineup was also denied. At the trial, Standifer gave testimony which corroborated Jones’ preliminary hearing testimony. Gayden was convicted of armed robbery, armed violence and aggravated battery and was sentenced to two 10-year concurrent terms of imprisonment. The Illinois Appellate Court affirmed the trial court’s decision. The Illinois Supreme Court denied Gayden’s petition for leave to appeal. Gayden then filed the instant habeas corpus petition with this Court. I. Scope of Review A federal court’s power of review in a habeas corpus proceeding is limited. The federal court must base its decision on the same record considered by the state appellate court. Underlying factual determinations of the state appellate court are presumed to be correct unless it is established that the determination falls within one of the exceptions of 28 U.S.C. § 2254(d). If none of the exceptions of 28 U.S.C. § 2254(d) is applicable, then a federal court must defer to the state court findings and the burden is on the petitioner to show by convincing evidence that the state court’s factual determination was erroneous. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1184 (7th Cir.1982). Though perhaps unclear at times, there is a distinction between factual determinations, which warrant the presumption of correctness, and mixed determinations of fact and law, which do not. The phrase “issues of fact” refers “to what are termed basic, primary or historic facts; facts ‘in the sense of a recital of external events and the credibility of their narrators____’” Townsend v. Sain, 372 U.S. 293, 309, 83 S.Ct. 745, 755, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.); United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1184 (7th Cir.1982). However, if the issue is one requiring an application of legal principles to the historical facts of the case, the presumption does not apply and the" }, { "docid": "13829647", "title": "", "text": "539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981), should not attach to the state’s finding. Ross, 538 F.Supp. at 106; see 28 U.S.C. § 2254(d). After a hearing to determine the necessity for an evidentiary hearing, the court concluded that appellant did not satisfy any of the statutory exceptions in 28 U.S.C. § 2254(d) so as to negate the statutory presumption of correctness. As discussed supra, the Supreme Court’s decision in Townsend v. Sain governs a determination of when a federal evidentiary hearing must be held: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Townsend v. Sain, 372 U.S. at 313, 83 S.Ct. at 757. This court previously has recognized: [Sumner v.] Mata in no way speaks to the issues of if and when a federal court may hold an evidentiary hearing. Moreover, § 2254(d) contemplates that in some cases the federal court will hold an evidentiary hearing for the purpose of determining whether to apply the presumption of correctness to the state court findings . . . Thus neither [Sumner v.] Mata nor § 2254(d) can be read to require the federal court to determine § 2254(d)’s applicability prior to holding a hearing on the federal habeas claims. In Re Wainwright, 678 F.2d 951, 953 (11th Cir.1982) (emphasis in original). The Townsend analysis governs the question whether an evidentiary hearing must be held; section 2254(d) controls the burden of proof at such hearings. Spencer v. Zant, 715 F.2d 1562 at 1579-1580 (11th Cir.1983); Thomas v. Zant, 697 F.2d at 984, 986. Appellant categorizes his claim as falling into" }, { "docid": "23687192", "title": "", "text": "the defendant had available alternatives that were “substantially equivalent” to a transcript, no constitutional rights were violated. 404 U.S. at 230, 92 S.Ct. at 435; see Jefferies v. Wainwright, 794 F.2d 1516 (11th Cir.1986) (upholding denial of habeas relief where petitioner had functional alternatives to transcript of preliminary hearing). Similarly, in this case, both the Alabama Criminal Court of Appeals and the Alabama Supreme Court determined on direct appeal that the transcript of appellant’s second trial demonstrated that appellant had available adequate substitutes that permitted him to engage in an effective defense. These determinations by the state appellate courts are factual findings entitled to a presumption of correctness in a federal habeas corpus proceeding. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); see Jackson v. Estelle, 672 F.2d 505, 508 (5th Cir.1982) (state appellate court finding regarding denial of transcript presumed correct under Sumner v. Mata). Appellant, moreover, has failed to establish the applicability of any of the statutory exceptions to this presumptive correctness. See 28 U.S.C. § 2254(d)(1)-(8). Despite appellant’s contention that the state court has not held an evidentiary hearing on the claim, the appellate process itself constitutes a “hearing” within the meaning of the federal habeas corpus statute. Sumner v. Mata, supra. And although appellant claims that the trial court record “is replete with difficulties encountered by his attorneys in the inability to retrieve testimony from the first trial,” we conclude that the Alabama appellate court findings are fairly supported by the transcript of the second trial. See 28 U.S.C. § 2254(d)(3). As noted by the district court below, the alternatives available to appellant’s trial counsel compare favorably to those held adequate in Britt. As in Britt, the same attorneys represented appellant at both trials and the same court reporter recorded the testimony. Moreover, in contrast to Britt, appellant’s attorneys had access to portions of the actual transcripts of the first trial. Accordingly, based upon the factual findings of the Alabama appellate courts, we conclude that appellant’s claim concerning the denial of a transcript of his first trial was properly denied. Y." }, { "docid": "13051153", "title": "", "text": "of execution and the date of execution was set for September 18, 1981. Having exhausted his state court remedies, Roach filed his petition for federal habeas corpus relief. On September 4, 1981, the district court granted Roach’s petition for a stay of execution pending resolution of the issues stated in the petition. Proceedings in Roach’s federal habeas corpus petition were stayed, however, while Roach again sought direct review by the United States Supreme Court. When that Court again denied Roach’s petition for certiorari on January 25,1982, that stay of proceedings was dissolved. The case was referred to a United States Magistrate to review the pleadings and submit findings of fact and recommendations of disposition. Accordingly, the magistrate submitted his report recommending the entry of summary judgment in favor of respondents without an evidentiary hearing. The district court agreed that Roach’s federal constitutional claims were without merit and granted the State’s motion for summary judgment, from which Roach now appeals. While, for the most part, we consider Roach’s contentions in the order in which he has submitted the issues in his brief, a few of the issues have been consolidated for discussion. I. DISCOVERY REQUESTS AND REQUEST FOR AN EVIDENTIARY HEARING Roach alleged that an evidentiary hearing was mandatory under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and 28 U.S.C. § 2254(d). He asserts that a fair and adequate hearing was not held on any of his claims in the state courts and, in this respect, he has made several requests for discovery, appointments of experts, and appointments of investigators for the purpose of developing his constitutional claims. On federal habeas corpus review, a state court’s findings of fact are entitled to presumption of correctness, Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981), unless a petitioner can show that an evidentiary hearing on an issue of fact is mandatory under the criteria established in 28 U.S.C. § 2254(d) or in Townsend v. Sain, supra. Roach alleges that he meets several of these criteria for numerous reasons: (1) the" }, { "docid": "23265493", "title": "", "text": "highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question.” Sumner v. Mata, 449 U.S. 539, 543-44, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981) (Sumner I). Nevertheless, 28 U.S.C. § 2254(d) limits this authority by mandating a presumption that the factual determinations of the state courts are correct. This presumption is rebutted or inapplicable when one of the seven specified factors showing a denial of due process is present (§ 2254(d)(l)-(7)) or the federal court determines that the state’s findings are not fairly supported by the record (§ 2254(d)(8)). Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982) (Sumner II). It appears from the record that Bashor did receive due process of law in the state court proceedings and that the state’s findings are fairly supported by the record. We therefore, will accord the state’s factual findings the required presumption of correctness, as did the district court. Bashor has set forth numerous grounds for relief. We consider each contention and its pertinent facts under separate headings. 1. Denial of Evidentiary Hearing Bashor contends that the federal district court should have granted him an evidentiary hearing on his claims of: (1) insufficiency of the evidence, (2) erroneous admission of evidence of threats made by Bashor to Irgens, (3) ineffective assistance of counsel, and (4) improper jury instructions on self-defense. To be entitled to an evidentiary hearing, we must determine (1) whether petitioner’s allegations, if proved, would establish the right to relief, and (2) whether the district court was required to hold an evidentiary hearing to ascertain facts to establish the truth of the allegations. Townsend v. Sain, 372 U.S. at 309, 83 S.Ct. at 755; Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir.1982), cert. granted, — U.S. —, 103 S.Ct. 1425, 75 L.Ed.2d 787, and cert. denied, — U.S. —, 103 S.Ct. 1450, 75 L.Ed.2d 804 (1983). We have determined that a federal evidentiary hearing was not required. Although petitioner’s allegations, if proved, would entitle him to relief, there" }, { "docid": "5669454", "title": "", "text": "Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). That presumption is inoperative, however, if the merits of the factual dispute were not resolved in the state hearing. Townsend v. Sain, 372 U.S. at 293, 313, 83 S.Ct. at 745, 757, 9 L.Ed.2d 770. (1963); 28 U.S.C. § 2254(d). In such circumstances, the federal court must grant an evidentiary hearing to a habeas applicant. Id. Here, because the state hearing was conducted under a misapprehension of the controlling legal precepts, the findings ma'de were insufficient to ultimately resolve the conflict of interest question. To prove a conflict of interest violative of the sixth amendment, a claimant must prove (1) multiple representation that (2) created an actual conflict of interest that (3) adversely affected the lawyer’s performance. Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718. This test, however, was announced subsequent to the Pennsylvania Supreme Court’s decision. That court, therefore, never reached the heart of the conflict of interest inquiry. It simply rejected Sullivan’s conflict of interest claim by concluding that there was no multiple representation. It supported its conclusion by finding that DiBona made all the decisions relevant to the defense and by crediting DiBona’s statements that he had only Sullivan’s interests at heart when representing him. The court’s determination that no multiple representation existed was then rejected both by this court and the United States Supreme Court. Because the Pennsylvania Supreme Court determined that there was no multiple representation, we conclude that the state court record is devoid of factfinding on the issue of whether an actual conflict of interest adversely affected counsel’s performance. Although the Commonwealth argues that we should be bound by the court’s credibility determination that DiBona had no conflict of interest, we conclude that because DiBona and Peruto have been deemed counsel to both Sullivan and his co-defendants, the state court factfinding, contaminated by legal error as it is, is incomplete. “Under such circumstances, the district court [could not] ascertain whether the state court found the law or the facts adversely to the petitioner’s contentions.” Townsend, 372 U.S." }, { "docid": "5730903", "title": "", "text": "without reviewing necessary portions of the state court record. OPINION It is undisputed that the findings of state courts are presumed correct on habeas corpus review. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 547-50, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); White v. Finkbeiner, 570 F.2d 194, 201 (7th Cir. 1978); United States ex rel. Rebenstorf v. Pate, 417 F.2d 1222, 1225 (7th Cir. 1969). In attempting to meet his burden, Jones focuses primarily on the presumption-defeating factor listed in § 2254(d)(8), supra, note 1, asserting that the state court findings are not fairly supported by the state court trial record. Respect for the state courts and the fundamentals of federalism require a recognition that state courts are as capable, careful, and compassionate as are federal courts in enforcing compliance with the United States Constitution. Federal district and appellate courts do not exercise appellate jurisdiction over state courts. The federal habeas petitioner, however, is asserting a deprivation of liberty in violation of the Constitution. The impact of that assertion upon the concept of constitutionally-guaranteed freedoms has impelled the courts and the Congress to require a review of state court proceedings sufficient to insure against even those expectably rare instances in which the assertion might prove true. 28 U.S.C. § 2254. Hence the district court must review the state court trial record to determine whether the petitioner for federal habeas corpus relief had received the constitutionally required due process afforded by a full and fair hearing resulting in findings supported by the record, Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963), and may not dismiss the petition without determining that the state court findings are entitled to the presumption of correctness. United States ex rel. Worlow v. Pate, 437 F.2d 909 (7th Cir. 1971). The seeming conflict between a presumption of correctness and the requirement in § 2254(d)(8) for an independent review of the trial court has thus been legislatively resolved, insofar as the federal district court review" }, { "docid": "23617728", "title": "", "text": "an evidentiary hearing on that issue. In Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), the Supreme Court held that a habeas petitioner has a right to an evidentiary hearing in federal court, if, inter alia, “the material facts were not adequately developed at the state-court hearing.” Reasoning that the opportunity for federal redress of an alleged constitutional violation “presupposes the opportunity to be heard [and] to argue and present evidence,” id. at 312, 83 S.Ct. at 756, the Court concluded that “in every case in which the state court has not after a full hearing reliably found the relevant facts,” the federal habeas court has a duty to try the facts anew. Id. at 318, 83 S.Ct. at 759. The state appellate court, relying on evidence in the trial court record, made a finding of purpose to secure delay. 21 Wash.App. at 365, 585 P.2d at 180. We recognize that findings by state appellate courts, as well as state trial courts, are entitled to deference in a federal habeas proceeding. See Sumner v. Mata, 449 U.S. 539, 545-48, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1980). If, however, the material facts were not adequately developed in state court, or the state-court hearing was otherwise deficient, no deference is warranted, 28 U.S.C. §§ 2254(d)(3) & 2254(d)(6), and the petitioner is entitled to an evidentiary hearing in federal court. Townsend, 372 U.S. at 317-18, 83 S.Ct. at 759-60. Both the state presiding judge and the state trial judge held hearings on Fritz’s motion to defend himself. Neither judge made an express inquiry into Fritz’s purpose, however, focusing instead on the nature of the Faretta right and on Fritz’s ability to waive knowingly his right to counsel. To be sure, much of the evidence adduced at the hearings is pertinent to Fritz’s motivation. The evidence is incomplete, however, and material facts — such as when it became clear that Fritz and Olson had irreconcilable differences, and whether Fritz had a bona fide reason for not asserting his Faretta right before the morning of trial —" }, { "docid": "13051154", "title": "", "text": "submitted the issues in his brief, a few of the issues have been consolidated for discussion. I. DISCOVERY REQUESTS AND REQUEST FOR AN EVIDENTIARY HEARING Roach alleged that an evidentiary hearing was mandatory under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and 28 U.S.C. § 2254(d). He asserts that a fair and adequate hearing was not held on any of his claims in the state courts and, in this respect, he has made several requests for discovery, appointments of experts, and appointments of investigators for the purpose of developing his constitutional claims. On federal habeas corpus review, a state court’s findings of fact are entitled to presumption of correctness, Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981), unless a petitioner can show that an evidentiary hearing on an issue of fact is mandatory under the criteria established in 28 U.S.C. § 2254(d) or in Townsend v. Sain, supra. Roach alleges that he meets several of these criteria for numerous reasons: (1) the state factfinding procedures were not adequate to afford a full and fair hearing on Roach’s constitutional claims, see 28 U.S.C. § 2254(d)(2); (2) since the state court hearing was held, Roach has discovered, and now relies upon, substantial new evidence, see Townsend, 372 U.S. at 313, 83 S. Ct. at 757: (3) material facts were not adequately developed at the state court hearing, see 28 U.S.C. § 2254(d)(3); and (4) the state court’s factual determinations are not supported by the record as a whole, see Townsend, 372 U.S. at 313, 83 S.Ct. at 757. We do not agree with any of the arguments Roach advances. A. .Adequacy of the State factfinding procedures Roach contends that the state fact-finding procedures were inadequate in several respects and that, as a result, he was denied the opportunity to develop fully his constitutional claims in the state courts. In this regard, Roach claims that: the State did not, or could not, locate a material witness who might have been able to shed light on the possibility that Roach was" }, { "docid": "14423671", "title": "", "text": "the letter itself, the fact that it was mailed to petitioner by counsel he trusted, the fact that it was never discredited, and the fact that it was not flagrantly inconsistent with the plea agreement stated on the record before Judge DeMayo. These facts leave the Court convinced by a preponderance of the evidence that petitioner persisted in relying on the Yamin letter throughout the changes of plea and was not, in fact, aware of the actual sentencing possibilities facing him. Based upon the finding that at the plea allocution Ventura was not “aware of the actual sentencing possibilities facing him,” the district court granted Ventura’s habeas corpus petition. The State appeals this decision. DISCUSSION The central issue on appeal is whether the district court erred in failing to defer under 28 U.S.C. § 2254(d) to state court findings of fact as to the Yamin letter’s effect on Ventura’s decision to plead guilty. We hold that the district court erred, first, in neglecting to defer to the Appellate Court of Connecticut’s determination that the Superior Court had made an implied finding of fact on this issue, and, second, in failing to defer to the Superior Court’s implied finding itself. We therefore reverse. I. The Presumption of Correctness Under 28 U.S.C. § 2254(d). Where a person in custody pursuant to a judgment of a state court petitions for a writ of habeas corpus and alleges facts which, if proven, would be sufficient to gain him relief, the district court may, in its discretion, hold an evidentiary hearing on petitioner’s claim. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). Congress, however, has established certain parameters for such hearings. Mindful of the friction that may develop between federal and state courts, and seeking to promote the interests of comity, see Sumner v. Mata, 449 U.S. 539, 547, 550, 101 S.Ct. 764, 769, 770, 66 L.Ed.2d 722 (1981), Congress has enacted 28 U.S.C. § 2254(d) which requires that federal courts hearing a habeas claim defer to state co.urt findings of fact. Under 28 U.S.C. § 2254(d), federal" }, { "docid": "23211075", "title": "", "text": "“The Forces of Evil” but said he had been forced to do so by the organization. The next morning, at about eight, Hance was again advised of his rights, which he again waived. He was interviewed until about 3:15 p.m. when he signed a written statement concerning each murder. Throughout the two days of interrogation he was given breaks to eat and to use the restroom. Hance was also given coffee and allowed to smoke. At no time did petitioner request a lawyer or ask that the interview be terminated. I. STANDARD OF REVIEW The standard of review for habeas corpus petitions by prisoners in state custody is set out in 28 U.S.C.A. § 2254(d). A written determination after a hearing on the merits of a factual issue, made by a state trial or appellate court of competent jurisdiction, is presumed to be correct unless one of the conditions set forth in Section 2254(dXl)-(7) is found to exist. If none of these conditions is found, or unless the state-court determination is “not fairly supported by the record,” 28 U.S.C.A. § 2254(dX8), the petitioner must establish by convincing evidence that the factual determination by the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 546, 550, 101 S.Ct. 764, 768, 770, 66 L.Ed.2d 722 (1981). This presumption of correctness does not apply to legal findings or to mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). Factual issues involve “what are termed basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators ....•’ ” Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). On the other hand, mixed questions of law and fact involve “the application of legal principles to the historical facts of [the] case.” Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1714. As" }, { "docid": "8750696", "title": "", "text": "be accorded to them under 28 U.S.C. § 2254(d) (pages 402-403) ; (ii) the standards for evidentiary hearings and fact findings by federal district courts in habeas matters (pages 403-404) ; (iii) the application of these standards and the “presumption of correctness” under § 2254(d) to review of Witherspoon challenges (pages 404-407); (iv) the types of Witherspoon cases that can — and should — be resolved by evidentiary hearings in the federal district courts, and the cases supporting the conclusion that such Witherspoon evidentiary hearings are proper (pages 407-412); and (v) the application of these principles in the present case to Jurors Wells (pages 412-414) and Pfeffer (pages 414-416). Habeas Corpus Review: “Findings” by State Courts In all habeas corpus proceedings instituted by state prisoners under 28 U.S.C. § 2254, the federal district and appellate courts are bound by the provisions of § 2254(d) — which provide, in substance, that the findings of the state court “shall be presumed to be correct,” and that the petitioner has the burden of establishing that the factual determinations of the state court are “clearly erroneous.” Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Asper v. Estelle, 709 F.2d 356 (5th Cir.1983). The “factual determinations” covered by § 2254(d) are “basic, primary or historical facts: facts in the sense of a recital of external events and the credibility of their narrators.” Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Mr. Justice Frankfurter); Mason v. Balcom, 531 F.2d 717, 721-23 (5th Cir.1976). Thus, if a state court has made specific findings of fact or credibility determinations, these are binding upon a federal court in a subsequent habeas proceeding unless the federal court concludes — not with a “boilerplate” dismissal, but with “some reasoned written references to § 2254(d) and the state court findings” — that the findings or credibility determinations are clearly erroneous. Sumner v. Mata, 449 U.S. at 549-52, 101 S.Ct. at 770-71; Smith v. Phillips," }, { "docid": "23265492", "title": "", "text": "of thirty years, with ten years suspended. On appeal, the Montana Supreme Court affirmed Bashor’s conviction. State v. Bashor, 614 P.2d 470 (Mont.1980) (3-2 decision). On July 17, 1981, Bashor filed a petition for post-conviction relief in the Montana Supreme Court, which was denied on October 19, 1981. Having exhausted his state remedies, Bashor filed a petition for a writ of habeas corpus in the United States District Court. Bashor was granted leave to proceed in forma pauperis. The district court denied Bashor’s motion for appointment of counsel. The district court ordered an expansion of the record to include a copy of the jury instructions. Bashor’s petition was denied. ANALYSIS “State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). If the petitioner has a proper claim then “even a single federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question.” Sumner v. Mata, 449 U.S. 539, 543-44, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981) (Sumner I). Nevertheless, 28 U.S.C. § 2254(d) limits this authority by mandating a presumption that the factual determinations of the state courts are correct. This presumption is rebutted or inapplicable when one of the seven specified factors showing a denial of due process is present (§ 2254(d)(l)-(7)) or the federal court determines that the state’s findings are not fairly supported by the record (§ 2254(d)(8)). Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982) (Sumner II). It appears from the record that Bashor did receive due process of law in the state court proceedings and that the state’s findings are fairly supported by the record. We therefore, will accord the state’s factual findings the required presumption of correctness, as did the district court. Bashor has set forth numerous grounds for" }, { "docid": "16750070", "title": "", "text": "an attack on the judge’s impartiality. Considering the position retained counsel took at the hearing, the judge’s admonition not to “fill the record with a whole lot of gobble-degook” is understandable, even if the colloquial language used by the judge was out of place in that formal setting. The remainder of Shaw’s claim of bias and prejudice rests primarily on the district judge’s statements subsequent to denial of the recusal motion. There was, for example, what has now turned out to be an ill-advised attempt at humor in a remark about retained counsel’s organization, but the record as a whole does not establish prejudice against Shaw’s claim or bias against Shaw that was personal and extrajudicial. The judge therefore did not abuse his discretion in failing to disqualify himself, and Shaw was not denied a fair hearing in district court on that account. II. Denial of an Evidentiary Hearing in the District Court Shaw claims that he was improperly denied an evidentiary hearing in the district court. An evidentiary hearing in a federal habeas corpus proceeding on an issue of fact is mandatory only if the petitioner establishes one or more of the criteria mentioned in 28 U.S.C. § 2254(d) or in Townsend v. Sain, 372 U.S. 293, 312-18, 83 S.Ct. 745, 756-60, 9 L.Ed.2d 770 (1963). Otherwise, a state court’s findings of fact are presumed to be correct. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). Shaw claims he meets four of these criteria for essentially three reasons. He claims that he did not get a full and fair hearing and was otherwise denied due process in state court because of bias of the state habeas judge and extrajudicial influence upon the state sentencing judge; that he was unable to develop evidence of such bias adequately because he was not permitted to subpoena three state court judges; and that he has material facts as to dis crimination in the imposition of the death penalty in South Carolina which were not adequately developed in state court. See 28 U.S.C." } ]

[ { "docid": "22676054", "title": "", "text": "have had a right to appointed counsel if they had made the showing of indigence on which they now rely. Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but “there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present.” 411 U. S., at 790. This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category. Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. E. g., Cuyler v. Sullivan, 446 U. S. 335 (1980); Holloway v. Arkansas, 435 U. S. 475, 481 (1978). Here, petitioners were represented by their employer’s lawyer, who may not have pursued their interests single-mindedly. It was his duty originally at sentencing and later at the revocation hearing, to seek to convince the court to be lenient. On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected at the revocation hearing, or at earlier stages of the proceedings below. It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue. Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. The facts outlined above were all made known at that time. The court must have known that it had imposed disproportionately large fines — penalties that almost certainly were increased because of an assumption that the employer would pay the fines. The court did know that petitioners’ counsel had been provided by that employer" } ]

[ { "docid": "12084061", "title": "", "text": "the same complaint and argument about the joint representation that they continually wanted in advance of trial, but now, after conviction, claim to be error. All recognize that the Sixth Amendment to the Constitution requires that a defendant be afforded the effective assistance of counsel free of conflicts of interest. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). The conviction was reversed in Glasser because Glasser’s attorney was appointed, over Glasser’s objection, to also represent a co-defendant. It was clear that the dual representation in the particular circumstances of that case impacted adversely upon the joint attorney’s representation of Glasser. In the present case, however, there was no objection as both defendants actively sought representation by Mr. Kagan, and there was no adverse impact. In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the trial court appointed the same counsel to represent three codefendants over their objection that there was a conflict of interest that would deprive them of effective assistance of counsel. It was held that the joint attorney’s request on behalf of the defendants for appointment of separate counsel based on his representations regarding conflict of interest should have been granted. That counsel, the court noted, was in the best position professionally and ethically to make the conflicts determination. In the present case the joint attorney, Mr. Kagan, was in the same position as counsel in Holloway, except he had been privately retained by Alamo and Hernandez, not court-appointed. Mr. Kagan made definite representations to the court that no conflicts existed or could be foreseen. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), is cited by defendants, but in that case the trials of the codefendants were separate, and Sullivan did not object. The court found that a “defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” 446 U.S. at 348, 100 S.Ct. at 1718. In the present case there was not only no objection to joint representation, but" }, { "docid": "22477405", "title": "", "text": "actively represented conflicting interests.” Id. at 166, 122 S.Ct. 1237; see also Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In order to establish a Sixth Amendment violation under the Sullivan exception, the defendant must demonstrate that “an actual conflict of interest adversely affected his lawyer’s performance.” Sullivan, 446 U.S. at 348, 100 S.Ct. 1708. As clarified in Mickens, an actual conflict is not “something separate and apart from adverse effect.” 535 U.S. at 172 n. 5, 122 S.Ct. 1237. Rather, “[a]n ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.” Id. The Supreme Court’s recent decision in Mickens proves, determinative in the instant appeal. In Mickens, the Supreme Court dealt with a habeas claim in a capital case alleging ineffective assistance where counsel for the defendant also represented the victim, who was a defendant in an unrelated juvenile case. Id. at 164-65, 122 S.Ct. 1237. After being informed that the victim was deceased, the trial judge dismissed the juvenile charges against him. Id. The same trial judge appointed counsel in the defendant’s case. Id. at 165, 122 S.Ct. 1237. The precise issue facing the Court was “what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” Id. at 164,122 S.Ct. 1237. In answering this query, the Mickens Court clarified its conflict precedent and restated the parameters of its application. First, the Court discussed three seminal Supreme Court conflict cases: Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Sullivan, 446 U.S. at 346-49, 100 S.Ct. 1708; and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). After surveying precedent, the Mickens Court added an entire section to address the limited scope of its holding, and to explicitly cabin its conflict jurisprudence despite its expansive application by lower courts. 535 U.S. at 174-76, 122 S.Ct. 1237. The Court noted that circuit courts “have applied" }, { "docid": "23049455", "title": "", "text": "of counsel. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). In order to establish a violation of the sixth amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); United States v. Hoffman, 733 F.2d 596, 601-02 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-19. Conversely, a sixth amendment violation occurs when an accused timely raises an objection to joint representation based on the risk of a conflict of interest, and the trial judge fails either to appoint separate counsel or to take adequate steps to ascertain whether the risk is too remote to warrant individual representation. Holloway, 435 U.S. at 484, 98 S.Ct. at 1178. Thus, whenever a trial court improperly requires joint representation over timely objection based on possible conflicting interests, prejudice is presumed and reversal is automatic. Id. at 488-89, 98 S.Ct. at 1180-81. The record reveals that Sutton never objected to Auerbach’s joint representation before the trial court. He raises the issue of ineffective assistance of counsel and conflict of interest for the first time on this appeal. Therefore, Sutton must demonstrate that an actual conflict of interest adversely affected Auerbach’s performance in order to establish his sixth amendment claim. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718. When confronted with joint representation, the court has the duty of assuring itself that the defendants are aware of their right to separate counsel. Fed.R. Crim.P. 44(c). Rule 44(c) provides that “the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation.” The district court fully complied with Rule 44(c). Sutton was told that because" }, { "docid": "20735082", "title": "", "text": "at 692, 104 S.Ct. 2052. One such circumstance arises “when the defendant’s attorney actively represented conflicting interests.” Mickens, 535 U.S. at 166, 122 S.Ct. 1237; see also Moss v. United States, 323 F.3d 445, 455-56 (6th Cir.2003); Smith v. Hofbauer, 312 F.3d 809, 814 (6th Cir.2002). A presumption of prejudice is warranted because “joint representation of conflicting interests is inherently suspect, and because counsel’s conflicting obligations to multiple defendants ‘effectively sea[l] his lips on crucial matters’ and make it difficult to measure the precise harm arising from counsel’s errors.” Mickens, 535 U.S. at 168, 122 S.Ct. 1237 (quoting Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). Where, as here, thei;e was no timely objection to the dual or joint representation, the Supreme Court has held that prejudice is presumed only if the defendant demonstrates that “a conflict of interest actually affected the adequacy of his representation.” Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Strickland, 466 U.S. at 692, 104 S.Ct. 2052. B. Actual Conflict 1. Adjudicated on the Merits Petitioner argued in his motion for post-conviction relief that he was deprived of conflict-free counsel by counsel’s joint representation of petitioner and Boykin. The Kentucky Court of Appeals found that although the trial court failed to advise petitioner concerning the possible conflict of interest as required by Kentucky Rule of Criminal Procedure 8.30, “a violation of [Rule] 8.30 which does not result in any prejudice to the defendant does not entitle a defendant to post-conviction relief.” McElrath, 2004 WL 1858228, at *3. In seeking habeas relief, petitioner argued that the state court decision requiring prejudice was “contrary to” established Supreme Court precedent. Disagreeing, the district court found that the decision did not undertake a review of his federal constitutional claim and, therefore, that AEDPA deference did not apply. Although respondent contests this finding, we are satisfied that the state court rejected the conflict claim on state law grounds, only. The state court’s citation to Sullivan and Mickens was in support of the proposition that the failure to" }, { "docid": "20735081", "title": "", "text": "Cir.2003). A. Sixth Amendment The Sixth Amendment guarantees a criminal defendant’s right to “have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. “This right has been accorded, ... ‘not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.’ ” Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Derivative of the right to counsel under the Sixth Amendment is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Generally, a defendant alleging ineffective assistance of counsel must demonstrate prejudice by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 5.Ct. 2052, 80 L.Ed.2d 674 (1984). However, “[i]n certain Sixth Amendment contexts, prejudice is presumed.” Id. at 692, 104 S.Ct. 2052. One such circumstance arises “when the defendant’s attorney actively represented conflicting interests.” Mickens, 535 U.S. at 166, 122 S.Ct. 1237; see also Moss v. United States, 323 F.3d 445, 455-56 (6th Cir.2003); Smith v. Hofbauer, 312 F.3d 809, 814 (6th Cir.2002). A presumption of prejudice is warranted because “joint representation of conflicting interests is inherently suspect, and because counsel’s conflicting obligations to multiple defendants ‘effectively sea[l] his lips on crucial matters’ and make it difficult to measure the precise harm arising from counsel’s errors.” Mickens, 535 U.S. at 168, 122 S.Ct. 1237 (quoting Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). Where, as here, thei;e was no timely objection to the dual or joint representation, the Supreme Court has held that prejudice is presumed only if the defendant demonstrates that “a conflict of interest actually affected the adequacy of his representation.” Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Strickland, 466 U.S. at 692, 104 S.Ct. 2052." }, { "docid": "22477406", "title": "", "text": "him. Id. The same trial judge appointed counsel in the defendant’s case. Id. at 165, 122 S.Ct. 1237. The precise issue facing the Court was “what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” Id. at 164,122 S.Ct. 1237. In answering this query, the Mickens Court clarified its conflict precedent and restated the parameters of its application. First, the Court discussed three seminal Supreme Court conflict cases: Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Sullivan, 446 U.S. at 346-49, 100 S.Ct. 1708; and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). After surveying precedent, the Mickens Court added an entire section to address the limited scope of its holding, and to explicitly cabin its conflict jurisprudence despite its expansive application by lower courts. 535 U.S. at 174-76, 122 S.Ct. 1237. The Court noted that circuit courts “have applied Sullivan ‘unblinkingly’ to ‘all kinds of alleged attorney ethical conflicts,’ ” invoking it in cases involving interests of former clients, interests implicating counsel’s personal or financial interest, interests inherent in romantic relationships with opposing counsel, and interests implicated by counsel’s future or present employment with opposing counsel. Id. at 174, 122 S.Ct. 1237 (citation omitted). While acknowledging this expansion, the Court cautioned that its own conflict jurisprudence had not yet reached beyond joint representation: “the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application .... Both Sullivan itself [ ] and Holloway [] stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice. Not all attorney conflicts present comparable difficulties.” Id. at 175, 122 S.Ct. 1237 (internal citations omitted). The Court propounded that the conflict inquiry does not, and should not, entail weighing of professional ethical duties, and that the Sullivan exception is not intended to enforce and encourage compliance with codes of conduct: This is not to suggest that one" }, { "docid": "23460271", "title": "", "text": "v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). This presumption of prejudice arises in circumstances where: (1) there exists a “complete denial of counsel” or a denial of counsel “at a critical stage” of the defendant’s trial; (2) defense counsel fails to “subject the prosecution’s case to meaningful adversarial testing”; or (3) counsel “is called upon to render assistance where competent counsel very likely could not.” Cronic, 466 U.S. at 658-59, 104 S.Ct. 2039 (internal citations omitted). It is in the presence of these “circumstances of magnitude” where “the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens, 122 S.Ct. at 1241. The presumption of prejudice also arises where the defendant demonstrates that his attorney actively represented conflicted interests. Mickens, 122 S.Ct. at 1241-45 (examining with approval Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)). Indeed, where the defendant or his counsel objects to the conflict prior to, or during trial, the trial court must inquire as to the extent of the conflict or subject any subsequent conviction to automatic reversal. Holloway, 435 U.S. at 489-92, 98 S.Ct. 1173. See also Riggs v. United States, 209 F.3d 828, 831 n. 1(6th Cir.2000). In the absence of an objection, however, a showing of (1) an actual conflict; and (2) an adverse effect on his counsel’s performance will void the conviction. Mickens, 122 S.Ct. at 1245. 1. Joint representation On appeal, the petitioners assert that their “joint, overlapping, and contemporaneous” attorney-client relationships with Attorney Murphy created an actual conflict of interest that rendered Attorney Murphy unable to explore possible plea opportunities with AUSA Janice. Joint, or dual, representation occurs where a single attorney represents two or more co-defendants in the same proceeding. See Burger v. Kemp, 483 U.S. 776, 782, 107" }, { "docid": "11446311", "title": "", "text": "on to represent Mickens at the guilt phase of his murder trial and at sentencing. Although Saunders was assisted by court-appointed co-counsel, Saunders was responsible for about ninety percent of the workload. Saunders never disclosed to his co-counsel that he had represented Hall. Several years after Mickens had been sentenced to death, Mickens’s federal habeas counsel stumbled onto the fact that Saunders was representing the murder victim (Hall) at the time of the offense. That is the only reason we have this case today. II. The Sixth Amendment guarantees a defendant in a criminal case the right to effective assistance of counsel, and this includes the right to a lawyer who is free of conflicts of interest. See Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Trial judges have a special duty to enforce the right to conflict-free counsel. See generally Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (emphasizing that “ ‘[u]pon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused’ ”) (quoting Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). A series of three Supreme Court cases have clarified the duty of trial judges in policing conflict situations and have established what a defendant must show to obtain a new trial when the judge has ignored an apparent conflict. In Holloway a public defender representing three defendants in a robbery and rape case moved on conflict grounds to have separate counsel appointed before the trial began. The trial judge “failed to take adequate steps” to explore the risks of a conflict and denied the motion. Holloway, 435 U.S. at 487, 98 S.Ct. 1173. The Court held that when a trial judge fails to inquire in such a circumstance, prejudice to the accused is presumed, and automatic reversal is warranted. In other words, the defendants were not required to show that their lawyer labored under an actual conflict of interest or that an actual conflict adversely affected" }, { "docid": "6042066", "title": "", "text": "of co-defendants is not per se violative of constitutional guarantees of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). In Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980), the Supreme Court held that a trial judge must make an inquiry into the propriety of joint representation when the judge knows or reasonably should know that a conflict exists. Based upon our review of the record, we conclude that this is not a case in which the trial judge had an affirmative duty to make such an inquiry. Neither Roesevelt Hayes nor his trial attorney objected to proceeding to trial without separate counsel. Nor did trial counsel indicate to the court that he foresaw even the possibility of a conflict of interest. Mr. Hall testified at the evidentiary hearing that he perceived no conflict of interest in the dual representation and still believed, even upon reflection, that he was not impaired in any way in representing both defendants. Without an objection or other signal to the trial judge that a potential conflict exists, a habeas petitioner must demonstrate that his attorney’s performance was adversely affected by an actual conflict of interest. Id. at 348, 100 S.Ct. at 1718; Parker v. Parratt, 662 F.2d 479, 483-84 (8th Cir.1981), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 91 (1982), “An actual conflict occurs when counsel cannot use his best efforts to exonerate one defendant for fear of implicating the other.” United States v. Auerbach, 745 F.2d 1157, 1162 (8th Cir.1984). Hayes claims his attorney’s conflict of interest is clear since the defendants were incapable of exonerating themselves. This resulted in the attorney being unable to stress Hayes’ lesser culpability at sentencing. The district court adopted the magistrate’s finding that there was no actual conflict of interest which adversely affected counsel’s performance. We agree. Although we have previously stated that “there is no litmus test to determine whether an actual conflict exists,” we have also recognized that a “conflict of interest exists where the" }, { "docid": "12086836", "title": "", "text": "coercion. We will “indulge every reasonable presumption against the waiver of fundamental rights,” Allen, 831 F.2d at 1498 (emphasis added and citation omitted). However, given the facts and circumstances of this particular case we do not doubt that Garcia knowingly, intelligently, and voluntarily waived any rights even potentially implicated by Holmes’ announcement. See United States v. Jenkins, 943 F.2d 167, 176 (2nd Cir.) (Where court determined whether defendant had waived potential conflict arising from defense counsel’s pending application for employment as assistant U.S. attorney, “we are more concerned with whether the defendant appreciated his predicament and made a properly informed choice than we are with whether the trial judge recited any particular litany of questions.”), cert. denied, — U.S.-, 112 S.Ct. 659, 116 L.Ed.2d 751 (1991). B. Garcia contends that, far from waiving his Sixth Amendment right to conflict-free representation, he timely objected to Holmes’ conflict of interest, and that the trial court’s failure to inquire thus mandates reversal of his conviction. This question requires us to interpolate between two major Supreme Court pronouncements in the attorney-conflict area. Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180-81, 55 L.Ed.2d 426 (1978), requires automatic reversal “whenever a trial court improperly requires joint representation over timely objection.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), meanwhile, holds that “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler thus mandates a habeas inquiry that allows the defendant an opportunity to demonstrate the existence of an actual conflict. Garcia argues that Holloway created a rule of per se reversal on the basis of timely objection, and that through expressing his initial reservations about Holmes’ representation he did timely object, bringing his case within the supposed ambit of Holloway. Even if we assumed that Garcia did timely object, however, Holloway cannot bear the burden of Garcia’s argument. In Holloway, the Court faced a situation in which a single attorney had represented three co-defendants." }, { "docid": "7086676", "title": "", "text": "amendment right to effective assistance of counsel and to a fair trial as a result of their representation by a single attorney throughout the proceedings before the district court. The sixth amendment guarantees every criminal defendant the right to the assistance of counsel who is unhindered by conflicting interests. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.1987). Once the parties alert the trial judge to the possibility that counsel representing multiple clients in a single criminal proceeding may face such a conflict, the judge has a duty “either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interests is] ... too remote to warrant separate counsel.” Holloway, 435 U.S. at 484, 98 S.Ct. at 1178 (footnote omitted). “The Sixth Amendment requires automatic reversal only when a trial court fails to conduct an inquiry after either a timely conflict objection, or if the court ‘knows or reasonably should know a particular conflict exists’.” United States v. Burney, 756 F.2d 787, 791 (10th Cir.1985) (citing Holloway, 435 U.S. at 488, 98 S.Ct. at 1180) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980)). In the instant matter, the government requested a pretrial hearing on the conflict issue. The trial court conducted a hearing in which it sought to “ascertain whether the risk was too remote to warrant separate counsel.” Holloway, 435 U.S. at 484, 98 S.Ct. at 1178. The court inquired of counsel for the jointly represented defendants whether the joint representation created a risk of conflict. Counsel assured the court that he had discussed at length with his clients the subject of joint representation and the potential for conflict inherent in such an arrangement, that he did not see any conflict, and that both clients had reaffirmed their desire to have counsel represent them jointly. On the basis of counsel’s representations, the court concluded that separate representation would not be required. We believe that the trial court’s inquiry" }, { "docid": "15401694", "title": "", "text": "seeking additional payments through her congressman. A VA representative testified that no authorization for direct deposits to Mr. Poston’s credit was on file, and that the VA had done nothing to give the Postons the impression that a lump sum payment would be paid in April 1982. The Hearing Before the Magistrate A pretrial hearing was held before United States Magistrate Brian P. Short, pursuant to Rule 44(c) of the Federal Rules of Criminal Procedure. At this hearing, Magistrate Short advised Rosena, Bernard, and Lizzie Poston of the problems inherent in joint representation, and of their right to have separate counsel. He gave examples of conflicts and their potential impact on their attorney’s ability to mount an effective defense at trial. Magistrate Short questioned each of the defendants on these points, and each of them affirmatively stated they wished to continue joint representation. Discussion I. The Joint Representation Hearing The defendants argue that the hearing conducted by Magistrate Short fails to meet the standards established by Rule 44(c) of the Federal Rules of Criminal Procedure and by this court under United States v. Lawriw, supra, for a valid waiver of the defendants’ right to separate representation. Having argued the invalidity of the waiver, defendants further argue that there existed actual conflicts between the positions of the three defendants at trial which adversely affected their lawyer’s representation, thus compelling reversal. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); Parker v. Parratt, 662 F.2d 479, 483 (8th Cir.1981). Because we find that the waiver of the defendants’ right to separate representation was knowing, voluntary, and intelligent, we need not decide whether any actual conflicts existed. The Sixth Amendment right to assistance of counsel means the right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Representation clouded by conflict of interests arising from joint representation of several criminal defendants may constitute ineffective assistance of counsel, but joint representation is not per se a constitutional violation. Holloway v. Arkansas, 435 U.S. at 482, 98 S.Ct." }, { "docid": "22298251", "title": "", "text": "to conflict-free counsel. The Nevada Supreme Court concluded that no conflict existed, and to the extent one did exist, the trial court’s questioning alleviated it. The district court concluded in the § 2254 proceedings that “the jury had already been informed that Flamm had been involved in selling drugs with Alberni; thus, the defense stood to gain little by asking Flamm about his felony drug conviction.” Accordingly, the district court held that Mr. Buchanan’s performance was not adversely affected by the conflict. B “The Sixth Amendment right to counsel includes a correlative right to representation free from conflicts of interest.” Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir.2004). To establish a violation of the right to conflict-free counsel, the petitioner must show either that (1) in spite of an objection, the trial court failed to allow him the “opportunity to show that potential conflicts impermissibly imperil his right to a fair trial;” or (2) that an actual conflict of interest existed. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In several cases in which the Supreme Court has defined the right to conflict-free counsel, the defense attorney actively and concurrently represented conflicting interests. Mickens v. Taylor, 535 U.S. 162, 166-167, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (discussing earlier authority); see also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (attorney representing co-defendants); Cuyler, 446 U.S. at 337-38, 100 S.Ct. 1708 (same). In those cases, the Court created, in effect, a distinction between an actual conflict of interest, and a mere hypothetical one. It pointed out that dual representation by an attorney does not per se create a conflict of interest. Indeed, in many situations, dual representation may work in the defendant’s favor. Holloway, 435 U.S. at 482, 98 S.Ct. 1173; Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. Nevertheless, the Court concluded that “joint representation of conflicting interests is suspect” because of the effect it may have on counsel’s performance. Holloway, 435 U.S. at 489-490, 98 S.Ct. 1173. Accordingly, the Sixth Amendment does not protect against a" }, { "docid": "155837", "title": "", "text": "investigated by a separate U.S. Attorney’s office under the direction of the Department of Justice. Thus, Mr. Fabbri would have had no basis on which to fear that in representing Blake in a case being prosecuted within the Southern District of Illinois he would provide the U.S. Attorney's office in the Central District additional evidence about his own misconduct, or that he was somehow incented to pull punches in Blake’s defense. . Blake also argues that he is entitled to the automatic reversal of his conviction or a remand for an evidentiary hearing under Holloway v. Arkansas, 435 U.S. 475, 484-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), because the district court knew or should have known about Mr. Fabbri’s conflict of interest and failed to adequately address it. See Holleman v. Cotton, 301 F.3d 737, 742 (7th Cir.2002) (“Under Holloway and Cuyler, a trial court has the duty to inquire adequately into a trial counsel’s conflict of interest if it knows or reasonably should know that a particular conflict exists.”). However, we have recognized that \"[s]ubsequent Supreme Court decisions have limited the Holloway holding to situations in which the district court requires joint representation over a timely objection.” Lafuente, 426 F.3d at 897 (citing Mickens v. Taylor, 535 U.S. 162, 168-69, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002); Cuyler, 446 U.S. at 346, 100 S.Ct. 1708). In Blake’s case, Mr. Fabbri’s conflict did not arise from joint representation. And, in any event, even assuming the Holloway standard applied here, Blake has failed to show that the district court failed to adequately investigate a conflict it knew or reasonably should have known existed. Blake's misplaced reliance on Holloway is an outgrowth of his assertion that the trial judge had actual knowledge of Mr. Fabbri's conflict of interest as early as when Mr. Fabbri first entered his appearance on October 30, 2006, based on a prior instance in another case before that judge where a similar charge had been leveled against Mr. Fabbri. However, the most that can be said in terms of the trial judge's independent, prior knowledge of Mr." }, { "docid": "22298252", "title": "", "text": "(1980). In several cases in which the Supreme Court has defined the right to conflict-free counsel, the defense attorney actively and concurrently represented conflicting interests. Mickens v. Taylor, 535 U.S. 162, 166-167, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (discussing earlier authority); see also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (attorney representing co-defendants); Cuyler, 446 U.S. at 337-38, 100 S.Ct. 1708 (same). In those cases, the Court created, in effect, a distinction between an actual conflict of interest, and a mere hypothetical one. It pointed out that dual representation by an attorney does not per se create a conflict of interest. Indeed, in many situations, dual representation may work in the defendant’s favor. Holloway, 435 U.S. at 482, 98 S.Ct. 1173; Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. Nevertheless, the Court concluded that “joint representation of conflicting interests is suspect” because of the effect it may have on counsel’s performance. Holloway, 435 U.S. at 489-490, 98 S.Ct. 1173. Accordingly, the Sixth Amendment does not protect against a “mere theoretical division of loyalties.” Mickens, 535 U.S. at 171, 122 S.Ct. 1237. Rather, it protects against conflicts of interest that adversely affect counsel’s performance. Id. at 172 n. 5, 122 S.Ct. 1237. Indeed, in Mickens, the Court held that “actual conflict” is defined by the effect a potential conflict had on counsel’s pérformance. In Mickens, the Court explained, “[A]n actual conflict of interest [means] precisely a conflict that affected counsel’s performance — as opposed to a mere theoretical division of loyalties.” Id. at 171, 122 S.Ct. 1237; see also id. at 172 n. 5,122 S.Ct. 1237 (“[W]e have used ‘conflict of interest’ to mean a division of loyalties that affected counsel’s performance.”). When counsel objects to potentially conflicted representation, the trial court has an opportunity to eliminate the possibility of an impact on counsel’s performance through seeking a waiver from the defendant, appointing separate counsel, or taking adequate “steps to ascertain whether the risk [is] too remote to warrant separate counsel.” Holloway, 435 U.S. at 484, 98 S.Ct. 1173; Mickens, 535 U.S. at 173," }, { "docid": "11253839", "title": "", "text": "agreed with the Indiana Supreme Court that Ross had waived error by failing to correct the testimony at trial. Notwithstanding this waiver, the district court held that the prosecutor had an absolute duty to inform the fact-finder of any known false testimony. Ross v. Heyne, 483 F.Supp. 799 (N.D.Ind. 1980). II A The sixth amendment guarantees each criminal defendant the right to the effective assistance of counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The courts have long recognized that this right may be impaired when counsel represents multiple defendants in the same case. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). See also Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Nevertheless, multiple representation without a showing of conflict of interest is not in itself a violation of the sixth amendment. United States v. Mandell, 525 F.2d 671, 677 (7th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976). The typical conflict of interest claim arises when one attorney represents multiple defendants. See, e. g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 338 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976). This appeal, however, presents a claim of conflict of interest arising from a trial in which one attorney represented the defendant while his law partner represented co-defendants who testified for the prosecution. We find that an ineffective assistance of counsel claim arising from this type of multiple representation is sufficiently analogous to the typical multiple representation case to warrant application of the same principles and analysis. The Supreme Court has proposed an amendment to Rule 44 of the Federal Rules of Criminal Procedure that would require district court judges to inform co-defendants of their right to the effective assistance of" }, { "docid": "6042065", "title": "", "text": "of due process by the giving of the state’s requested instruction No. 2. Upon consideration of the record, briefs, and oral argument, we affirm the decision of the district court. Hayes first argues that he was deprived of his right to effective assistance of counsel guaranteed him by the sixth and fourteenth amendments to the Constitution because of the dual representation by his counsel of both he and his co-defendant. Hayes asserts that the confessions given by the defendants clearly indicated that each defendant perceived his or her role in the actual murder differently, both suggesting that the other defendant was primarily responsible. Hayes contends that neither the trial court nor the court-appointed public defender advised Hayes or Lewis of the risk and dangers inherent in the dual representation and their right to separate counsel. Therefore, Hayes argues the conflict of interest presented by the dual representation precluded trial counsel from presenting proof and argument that lessened Hayes’ role in the murder which could have led to the jury giving a reduced sentence. Joint representation of co-defendants is not per se violative of constitutional guarantees of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). In Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980), the Supreme Court held that a trial judge must make an inquiry into the propriety of joint representation when the judge knows or reasonably should know that a conflict exists. Based upon our review of the record, we conclude that this is not a case in which the trial judge had an affirmative duty to make such an inquiry. Neither Roesevelt Hayes nor his trial attorney objected to proceeding to trial without separate counsel. Nor did trial counsel indicate to the court that he foresaw even the possibility of a conflict of interest. Mr. Hall testified at the evidentiary hearing that he perceived no conflict of interest in the dual representation and still believed, even upon reflection, that he was not impaired in any way in representing both defendants." }, { "docid": "11707533", "title": "", "text": "happened Hall’s plea is best seen as a good deal in light of mounting evidence. My colleagues say, however, that a conflict of interest not only excuses any need to show prejudice to the defense — in other words, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”, Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) — but also eliminates any need to establish adverse effect. They rely on Enoch v. Gramley, 70 F.3d 1490 (7th Cir.1995), and Stoia v. United States, 22 F.3d 766 (7th Cir.1994), which read Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), to require collateral relief whenever counsel had a conflict of interest that created a potential for an effect on the conduct of the defense. Mickens rejects that understanding of Sullivan and its predecessor Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The Court concluded in Mickens that those decisions deal with situations in which the trial judge should have inquired into the conflict (as when one lawyer represents two defendants with inconsistent positions) or the judge rebuffs a protest by a lawyer assigned to represent multiple defendants. When no inquiry was required at trial, Mickens holds, then unless the petitioner establishes an adverse effect from the conflict no collateral relief is appropriate. What my colleagues have to say about Mickens is this: A showing of a conflict does not automatically entitle a petitioner to reversal. The Supreme Court in Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), requires that a petitioner also show adverse effect. However, we find no language in Mickens that requires a petitioner to engage in speculation pointing to an actual adverse effect. A petitioner demonstrates an adverse effect by showing that there is a reasonable likelihood that his counsel’s performance would have been different had there been no conflict of interest. Stoia, 22 F.3d" }, { "docid": "23284652", "title": "", "text": "v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.2000) (quoting Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999)). The California appellate court’s unpublished decision in Lockhart’s direct appeal addresses his claim that he was deprived of his right to effective assistance of counsel because of his attorney’s conflict of interest. That claim is therefore subject to the standard articulated in Williams and our subsequent cases. III We summarized the Supreme Court’s case law regarding an allegation of unconstitutional attorney conflict of interest in our decision in Allen, 831 F.2d at 1494-95: Under the [S]ixth [A]mendment, a criminal defendant has the right to be represented by counsel whose loyalties are undivided. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).... Although joint representation is not per se violative of the [S]ixth [A]mendment’s guarantee of effective assistance of counsel, Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), “a possible conflict [of interest] inheres in almost every instance of multiple representation.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).... .... Trial courts presented with a conflict have an affirmative duty to protect a defendant’s rights, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).... In every case of joint representation, if the court “knows or reasonably should know that a particular conflict exists” it must initiate an inquiry about that conflict. [Cuyler], 446 U.S. at 347, 100 S.Ct. 1708. Of course, a defendant may waive his right to the assistance of an attorney who is unhindered by conflicts, Holloway, 435 U.S. at 483 n. 5, 98 S.Ct. 1173, provided the waiver is given knowingly and intelligently. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Unconstitutional multiple representation “is never harmless error.” [Cuyler], 446 U.S. at 349, 100 S.Ct. 1708. If a defendant fails to object to representation by an attorney with a conflict, but shows on appeal that “an actual conflict of interest adversely affected his lawyer’s performance,” reversal is required. Id. at 348, 100" }, { "docid": "23059965", "title": "", "text": "general practice or felony litigation credentials. We find that Mr. McCullah was properly represented by counsel “learned in the law” under the former Section 3005. C. Conflict of Interest Mr. McCullah contends that his Sixth Amendment right to counsel was violated because of a conflict of interest on the part of his counsel. Rodger Emberson, a prospective government witness, was being represented by Mr. Nigh, another assistant in the same federal public defender office that represented Mr. McCullah. Mr. McCullah argues that this representation disqualified all members of that federal public defender office. He further contends that the prospect of Mr. Emberson’s trial testimony threatened Mr. McCullah’s counsel’s professional judgment on behalf of Mr. McCullah. The mere possibility of a conflict of interest “is insufficient to impugn a criminal conviction.” Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). “Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’.... ” Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). However, where the defendant makes a time ly objection pointing out a conflict of interest, prejudice is presumed if the trial court fails to make an adequate inquiry into the situation and take appropriate steps. Selsor v. Kaiser, 22 F.3d 1029, 1032-33 (10th Cir.1994) (citing Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178-79, 55 L.Ed.2d 426 (1978)). The trial court made adequate inquiry and found that no conflict existed, especially after it determined that Mr. Emberson’s testimony would not be admissible. Mr. McCullah has failed to demonstrate an actual conflict on the part of his counsel, nor has he adequately shown any adverse effects. There is no evidence suggesting that privileged information was shared between Mr. McCullah’s counsel and Mr. Nigh. Mr. Nigh’s representation of Mr. Emberson may have disqualified Mr. Nigh from also representing Mr. McCullah, but it was not Mr. Nigh who represented Mr. McCullah. Mr. McCullah was represented by other attorneys in the same federal public defender office, not by the same attorney as Mr. Emberson. Accord United States" } ]

[ { "docid": "22696227", "title": "", "text": "ruling on the merits of the claim, the others deal with procedural defects. Because 12(b)(6) results in a determination on the merits at an early stage of plaintiff’s case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing the case is then purely on the legal sufficiency of plaintiff’s case: even were plaintiff to prove all its allegations, he or she would be unable to prevail. In the interests of judicial economy it is not improper to dispose of the claim at that stage. If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiff’s allegations taken as true, with all their favorable inferences, the trial court cannot grant a summary judgment unless there is no genuine issue of material fact. The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. At the outset we must emphasize a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings. The facial attack does offer similar safeguards to the plaintiff: the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the ease — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover," } ]

[ { "docid": "6330320", "title": "", "text": "by, the well-established principle in this Circuit that premature dismissals of antitrust claims for lack of subject matter jurisdiction are not favored “where the factual and jurisdictional issues are completely inter-meshed . . .” McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, 363 (5th Cir.), cert. denied, 389 U.S. 896, 88 S.Ct. 216, 19 L.Ed.2d 214 (1967). See also Battle v. Liberty National Life Insurance Co., 493 F.2d 39, 47 (5th Cir. 1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975); Mortensen v. First Federal Savings & Loan Association, 549 F.2d 884, 892-96 (3d Cir. 1977). In such situations “the jurisdictional issues should be referred to the merits, for it is impossible to decide the one without the other.” 374 F.2d at 363. When jurisdictional issues are intertwined with the merits, the adjudication of the jurisdictional issue in accordance with the procedure under a 12(b)(1) motion fails to offer the procedural safeguards attendant upon proceedings under a 12(b)(6) motion or a motion for summary judgment under Rule 56. As the Third Circuit has stated: The basic difference among the various 12(b) motions is, of course, that 12(b)(6) alone necessitates a ruling on the merits of the claim, the others deal with procedural defects. Because 12(b)(6) results in a determination on the merits at an early stage of plaintiff’s case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing [of] the case is then purely on the legal sufficiency of plaintiff’s case: even were plaintiff to prove all its allegations, he or she would be unable to prevail. In the interests of judicial economy it is not improper to dispose of the claim at that stage. If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiff’s allegations tak en as true, with all their favorable" }, { "docid": "2433576", "title": "", "text": "then made a specific legal conclusion against the movant based upon the very factual grounds the movant argued warranted dismissal. This result more closely resembles the result of a Fed.R.Civ.P. 12(b)(1) analysis. Cf. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (noting a trial court may consider documents outside the complaint and conduct a limited evidentiary hearing without converting a Rule 12(b)(1) motion into a motion for summary judgment). The Court will construe D. Taylor’s motion as a challenge to subject matter jurisdiction under Rule 12(b)(1). See In re Cash Currency Exchange, Inc., 762 F.2d 542, 545-46 (7th Cir.1985) (determining challenges under Section 109(b)(2) are jurisdictional); Selcke v. MedCare HMO, 147 B.R. 895, 899 (N.D.Ill.1992) (same); In re Southern Industrial Banking Corp., 59 B.R. 978, 979-80 (E.D.Tenn.1986) (same); see also Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir.1990) (considering a Rule 12(b)(1) motion before a Rule 12(b)(6) motion because the latter becomes moot if a court lacks subject matter jurisdiction). “It is axiomatic that federal courts are courts of limited jurisdiction, and as such, are under a continuing duty to satisfy themselves of their jurisdiction before proceeding to the merits of any case.” Packard v. Provident National Bank, 994 F.2d 1039, 1049 (3rd Cir.1993). Under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction. Moir, 895 F.2d at 269; Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). A Rule 12(b)(1) motion may take two forms. First, if it attacks the face of the complaint, the plaintiffs burden “is not onerous.” Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996). In reviewing a facial attack, courts must consider the factual allegations as true. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). Second, if the motion attacks the factual basis for subject matter jurisdiction, a court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case ... [because] no presumptive truthfulness attaches to the plaintiffs allegations.” RMI Titanium, 78" }, { "docid": "6330321", "title": "", "text": "the Third Circuit has stated: The basic difference among the various 12(b) motions is, of course, that 12(b)(6) alone necessitates a ruling on the merits of the claim, the others deal with procedural defects. Because 12(b)(6) results in a determination on the merits at an early stage of plaintiff’s case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing [of] the case is then purely on the legal sufficiency of plaintiff’s case: even were plaintiff to prove all its allegations, he or she would be unable to prevail. In the interests of judicial economy it is not improper to dispose of the claim at that stage. If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiff’s allegations tak en as true, with all their favorable inferences, the trial court cannot grant a summary judgment unless there is no genuine issue of material fact. The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. At the outset we must emphasize a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings. The facial attack does offer similar safeguards to the plaintiff: the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations," }, { "docid": "4801392", "title": "", "text": "should be required to submit to retesting. (Id. ¶¶ 94, 105-06.) The only redress offered to the affected license holders was the option of retaking the CDL test, using their own tractor trailer during the test — an extremely difficult undertaking for those who do not own their own truck. (Id. ¶¶ 116,120, 124.) Plaintiffs filed the instant suit in the United States District Court for the Western District of Tennessee on May 7, 2009 and filed an amended complaint on January 25, 2010. Plaintiffs seek to have the case certified as a class action and allege causes of action under 42 U.S.C. § 1983 as well as under state law for unjust enrichment, negligence, breach of good faith and fair dealing, equitable, declaratory and injunctive relief, and breach of contract as to Plaintiffs as third-party beneficiaries. II. LEGAL STANDARD A. Legal Standard for Motion under Fed.R.Civ.P. 12(b)(1) A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure asserts that the court lacks subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction may challenge the sufficiency of the complaint itself — in which case it constitutes a facial attack — or it may challenge the factual existence of subject matter jurisdiction — in which case the motion constitutes a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). In ruling upon a facial attack, the court must take as true the allegations of the plaintiffs complaint and construe them in the light most favorable to the plaintiff, but in a factual attack, the court does not presume that the complaint’s allegations are true and instead considers other evidence bearing upon the question of subject matter jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004). When faced with a factual attack, the trial court may, at its discretion, consider affidavits and documents and even conduct a limited evidentiary hearing to resolve any disputes as to jurisdictional facts. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). The plaintiff bears the burden of proving" }, { "docid": "8788714", "title": "", "text": "for lack of subject matter jurisdiction attacks a plaintiffs cause of action in one of two ways: facially or factually. Fed. R.Civ.P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack challenges the sufficiency of the complaint itself. On such an attack, the court must take all material allegations in the complaint as true and construe them in a light most favorable to the non-moving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In contrast, a factual attack challenges the factual existence of subject matter jurisdiction. The court reviewing such a motion need not presume that the factual allegations set forth in the complaint are true. Id. Instead, the court may weigh any evidence properly before it. See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 918 (6th Cir.1986). In addressing a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a court must accept all allegations in the complaint as true and view them in a light most favorable to the party opposing the motion. Fed.R.Civ.P. 12(b)(6); Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983). The court may grant the motion only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Balderaz v. Porter, 578 F.Supp. 1491, 1494 (S.D.Ohio 1983). In the instant matter, Defendant refutes the factual allegations in Plaintiffs Complaint concerning the enforceability of the Agreement. In support of its Motion to Dismiss, Defendant submits a copy of the application Plaintiff signed on July 10, 1995 and a declaration from Pamela G. Parsons concerning that application and the Agreement. Apparently because the Agreement requires final and binding arbitration of all employment disputes, Defendant asserts that the Court lacks subject matter jurisdiction over Plaintiffs" }, { "docid": "7190205", "title": "", "text": "facial attack is a challenge to the sufficiency of the complaint. Id. When a party makes a facial attack, the court must consider all of the complaint’s material allegations as true and construe them in the light most favorable to the nonmoving party. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A factual attack is a challenge to the court’s authority and power to hear the case. Id. When a party makes a factual attack, the court does not presume the truthfulness of the complaint’s factual allegations. Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). The plaintiff, furthermore, must prove that the court has subject matter jurisdiction. Ohio Nat’l Life Ins., 922 F.2d at 324. The court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Ritchie, 15 F.3d at 598. It is within the district court’s discretion to accept affidavits and documents with the motion and conduct an evidentiary hearing. Ohio Nat’l Life Ins., 922 F.2d at 325. The district court is required to “weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist.” Id. Defendants state that federal statutory schemes deprive this court of jurisdiction, so that it does not have the power or authority to hear this case. Defendants, therefore, make a factual attack on subject matter jurisdiction, and plaintiffs have the burden of proving the existence of jurisdiction. Plaintiffs’ complaint alleges that defendants’ fraudulent and coercive misrepresentations abridged plaintiffs’ right to organize. (Doc. 1 at ¶ 25). Plaintiffs’ brief cites to § 2, Fourth of the Railway Labor Act (“RLA”), which states that an employ er may not interfere with employees’ right to organize. Plaintiffs contend that § 2, Fourth of the RLA controls because “[a]t the crux of Plaintiffs’ claim against Defendants is the allegation that Defendants conspired together in a pattern of racketeering activity to deny Plaintiffs their right of organization and interfered with this right in violation" }, { "docid": "22104402", "title": "", "text": "DISCUSSION A. STANDARD OF REVIEW APPLICABLE TO DISMISSALS UNDER FED. RCIV.PRO.im(l) The Westinghouse Defendants argue that the “clearly erroneous” standard is the appropriate standard of review applicable in reviewing dismissals for lack of jurisdiction under Fed. R. Civ. Pro. 12(b)(1). The Government and Plaintiff argue that Rule 12(b)(1) dismissals, as with dismissals under Rule 12(b)(6) and summary judgment under Fed. R. Civ. Pro. 56, call for de novo review. The various Rule 12 motions to dismiss on the pleadings (and the standards applicable to such motions) are often confused with each other. In the oft-quoted decision of the Third Circuit in Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 890 (3d Cir.1977), the court explained the distinction between dismissals under Rule 12(b)(1) and Rule 12(b)(6): The basic difference among the various 12(b) motions is, of course, that 12(b)(6) alone necessitates a ruling on the merits of the claim, the others deal with procedural defects. Because 12(b)(6) results in a determination on the merits at an early stage of plaintiffs case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing the case is then purely on the legal sufficiency of plaintiffs case: even were plaintiff to prove all its allegations he or she would be unable to prevail. In the interests of judicial economy it is not improper to dispose of the claim at that stage. If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiffs allegations taken as true, with all their favorable inferences, the trial court cannot grant a summary judgment unless there is no genuine issue of material fact. The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. At the outset we must emphasize a crucial distinction, often overlooked between 12(b)(1) motions that attack the complaint on its" }, { "docid": "18184433", "title": "", "text": "in good faith and fair dealing; (9) intentional or negligent misrepresentation; and (10) violations of the Investment Advisor Act, 15 U.S.C. §§ 80b-3, 80b-4, 80b-6, and 80b-15. An-staett now moves for dismissal of these claims under Fed.R.Civ.P. 12(b)(1) and (6). II. Motion to Dismiss Standard A. Fed.R.Civ.P. 12(b)(1) Generally, Fed.R.Civ.P. 12(b)(1) motions to dismiss -for lack of subject matter jurisdiction fall into two categories: facial attacks and factual attacks. Fed.R.CivP. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994). A facial attack challenges the sufficiency of the pleading itself. Upon receiving such a motion, the Court must take all of the material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974)). In contrast, a factual attack challenges the factual existence of subject matter jurisdiction. See Ohio Hosp. Ass’n v. Shalala, 978 F.Supp. 735, 739 (N.D.Ohio.1997), aff’d in part, rev’d in part, 201 F.3d 418 (1999). When a Court is inquiring about whether it has subject matter jurisdiction, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994) (internal citations omitted). See also RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir.1996). “In reviewing such a motion, a district court is to probe the facts and assess the validity of its own jurisdiction. In doing so, the Court has a wide discretion to consider affidavits and the documents outside the complaint, and may even conduct a limited evidentiary hearing if necessary.” Ohio Hosp. Ass’n v. Shalala, 978 F.Supp. 735, 739 (N.D.Ohio.1997) (relying on Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). Finally, the plaintiff bears the burden of demonstrating that the Court has and may appropriately exercise jurisdiction over the" }, { "docid": "22104403", "title": "", "text": "is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing the case is then purely on the legal sufficiency of plaintiffs case: even were plaintiff to prove all its allegations he or she would be unable to prevail. In the interests of judicial economy it is not improper to dispose of the claim at that stage. If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiffs allegations taken as true, with all their favorable inferences, the trial court cannot grant a summary judgment unless there is no genuine issue of material fact. The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. At the outset we must emphasize a crucial distinction, often overlooked between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings, the facial attack does offer similar safeguards to the plaintiff: the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.Pro. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed ' material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover the plaintiff will have the burden of proof that jurisdiction does in fact exist. 549 F.2d at 890-891 (emphasis added). See also, Thornhill Publishing Co. v. General Telephone & Electronics" }, { "docid": "15893378", "title": "", "text": "things, that the tort claims should be dismissed for lack of subject matter jurisdiction because Plaintiff has failed to exhaust her administrative remedies. ECF No. 19. Plaintiff counters that she timely filed her administrative claims and, in any event, exhaustion is futile. Because of the Court’s conclusion that it lacks subject matter jurisdiction over the torts articulated in the Fourth and Sixth Causes of Action, it need not address the Government’s other arguments. A. Motions to dismiss for lack of subject matter jurisdiction fall under one of two general categories, facial attacks or factual attacks. Fed.R.Civ.P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994); City of Olmstead Falls v. USEPA, 266 F.Supp.2d 718, 721-22 (N.D.Ohio 2003). A facial attack challenges the sufficiency of the pleading itself. Id. In reviewing such motion, the court must take the material allegations of the pleading as true and construe them in the light most favorable to the nonmoving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A factual attack, on the other hand, is a challenge to the factual existence of subject matter jurisdiction. Id. No presumption of truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). The Government’s Rule 12(b)(1) Motion to Dismiss the Tort Claims is a facial attack on the Court’s subject matter jurisdiction. ECF No. 19, at 4. B. “Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the “West-fall Act”), the United States may be substituted in a civil action for money damages brought against a federal employee who is alleged to have committed a common law tort while acting within the scope of his or her employment.” Gilbar v. U.S., 229 F.3d 1151, 2000 WL 1206538 at *2 n. 1 (6th Cir.2000) (citing RMI Titanium Co. v. Westinghouse Elec." }, { "docid": "8854206", "title": "", "text": "that Defendant’s delay in recognizing the fetal distress and timely delivering Tysai Jones caused him to suffer severe physical and mental impairment as a result. Id. at ¶ 9. Plaintiffs timely filed their claims in writing to the United States Department of Army. Id. at ¶ 5. The Army did not take any action for over six months, and Plaintiffs filed this action before this Court on October 20, 2009. Id. The Army subsequently denied Plaintiffs’ claims on January 28, 2010. (Docket Entry No. 44, Attachment 1). II. CONCLUSIONS OF LAW Fed.R.Civ.P. 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction that may consist of either a “facial attack” or a “factual attack.” O’Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir.2009). “A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading.” And, “[w]hen reviewing a fa cial attack, a district court takes the allegations in the complaint as true---If those allegations establish federal claims, jurisdiction exists.” However, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. at 375-76 (citations omitted). “A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading’s allegations, but a challenge to the factual existence of subject matter jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). On a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citation omitted). “[A] trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). The plaintiff bears the burden of proof that jurisdiction exists under 12(b)(1). RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). Defendant contends that the Court lacks subject matter jurisdiction because Plaintiffs’ claims are barred by Tennessee’s statute of repose" }, { "docid": "21090668", "title": "", "text": "the fourth cause of action for lack of jurisdiction. III. STANDARD OF REVIEW A. RULE 12(b)(1) Under Federal Rule of Civil Procedure 12(b)(1), a motion to dismiss based on subject matter jurisdiction can fall into two categories: facial attacks and factual attacks. See U.S. v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). Facial attacks question the sufficiency of the pleading. See id. Review of such a motion must take the allegations in the complaint as true and construe them in the light most favorable to the nonmoving party. See id. A factual attack, however, is a challenge to the factual existence of jurisdiction. See id. In considering a motion that questions the factual existence of subject matter jurisdiction, a court need not rely on a presumption of truthfulness in the pleading’s allegations. See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A party opposing a factual Rule 12(b)(1) motion has the burden of proving jurisdiction and may not rest on factual assertions in its pleadings. See Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990); Ohio Nat’l Life Ins. Co., 922 F.2d at 325. A court reviewing a factual attack must resolve any factual disputes by weighing the evidence that gives rise to the factual controversy. Moir, 895 F.2d at 269; Ohio Nat’l Life Ins. Co., 922 F.2d at 325. The court has discretion in establishing the factual predicate of whether subject matter jurisdiction exists. See U.S. v. Ritchie, 15 F.3d at 598; Ohio Nat’l Life Ins. Co., 922 F.2d at 325. To resolve jurisdictional facts in dispute, a court may, at its discretion, allow affidavits, documents and even a limited evidentiary hearing. Ohio Nat’l Life Ins. Co., 922 F.2d at 325. B. RULE 12(b)(6) AND SUMMARY JUDGMENT The Federal Rules of Civil Procedure provide that when a motion to dismiss brought under Rule 12(b)(6) includes “matters outside of the pleading,” that the motion should be treated as one for summary judgment under Rule 56(c). Fed. R. Civ. P. 12(b); see also Greenberg v. Life Ins. Co., 177 F.3d 507" }, { "docid": "8788713", "title": "", "text": "respect to any claims arising from or relating to may application or candidacy for employment, employment or cessation of employment with Circuit City. I then must arbitrate all employment-related claims, and I may not file a lawsuit in court. (Id.) Defendant now moves this Court to compel arbitration and stay these proceedings pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 3 and 4, or, in the alternative, to dismiss this case entirely pursuant to Rule 12(b)(1) or Rule 12(b)(6) of the Federal Rules of Civil Procedure, because Plaintiff and Defendant are parties to this Agreement requiring them to resolve this type of dispute through final and binding arbitration. Plaintiff responds that the Agreement is invalid and unenforceable because it fails to comply with common law principles of contract law and because it attempts to limit Plaintiffs substantive rights and remedies. Therefore, Plaintiff argues, the FAA does not require that the Court stay or dismiss this action and the Court thereby retains subject matter jurisdiction. STANDARD OF REVIEW A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction attacks a plaintiffs cause of action in one of two ways: facially or factually. Fed. R.Civ.P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack challenges the sufficiency of the complaint itself. On such an attack, the court must take all material allegations in the complaint as true and construe them in a light most favorable to the non-moving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In contrast, a factual attack challenges the factual existence of subject matter jurisdiction. The court reviewing such a motion need not presume that the factual allegations set forth in the complaint are true. Id. Instead, the court may weigh any evidence properly before it. See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 918 (6th Cir.1986). In addressing a Rule 12(b)(6) motion to dismiss for failure to state a claim" }, { "docid": "11770871", "title": "", "text": "extent defendant Standing Committee may consider evidence of his disabilities — identified by plaintiff as “physical and mental impairments of alcoholism and various personality disorders” — it will discriminate against him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Count II asserts a procedural due process claim. Plaintiff alleges that to the extent defendant will consider hearsay at the formal hearing, denying him the opportunity to cross-examine witnesses, it threatens to deprive him of liberty or property (licensure) without due process. In count III, plaintiff alleges defendant has failed to conduct a self-evaluation of its compliance with ADA regulations binding on public entities, in violation of 28 C.F.R. Part 35. Defendant moves for dismissal of all three claims under Fed.R.Civ.P. 12(b)(1) and (6). Defendant contends the Court lacks subject matter jurisdiction to determine the first two claims and plaintiff lacks standing to assert the third. Even if the Court concludes that it does have subject matter jurisdiction over the first two claims, defendant contends they must be dismissed for failure to state claims upon which relief can be granted. II. SUBJECT MATTER JURISDICTION Defendant’s motion to dismiss counts I and II under Rule 12(b)(1) is a “speaking motion,” inasmuch as it is supported by facts outside the pleadings. See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). When the Court reviews such a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. Id.; United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). The Court is free to weigh any affidavits, documents and other evidentiary matters presented and satisfy itself as to its power to hear the case. Id. Plaintiff bears the burden of demonstrating that the Court has jurisdiction over the subject matter. Ohio Nat’l, supra, 922 F.2d at 324; Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). Defendant relies on District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In Feldman, the" }, { "docid": "18184434", "title": "", "text": "aff’d in part, rev’d in part, 201 F.3d 418 (1999). When a Court is inquiring about whether it has subject matter jurisdiction, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994) (internal citations omitted). See also RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir.1996). “In reviewing such a motion, a district court is to probe the facts and assess the validity of its own jurisdiction. In doing so, the Court has a wide discretion to consider affidavits and the documents outside the complaint, and may even conduct a limited evidentiary hearing if necessary.” Ohio Hosp. Ass’n v. Shalala, 978 F.Supp. 735, 739 (N.D.Ohio.1997) (relying on Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). Finally, the plaintiff bears the burden of demonstrating that the Court has and may appropriately exercise jurisdiction over the subject matter. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). B. Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the function of the Court is to test the legal sufficiency of the complaint. In scrutinizing the complaint, the Court is required to accept the allegations stated in the complaint as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984), while viewing the complaint in a light most favorable to the plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). The Court is without authority to dismiss the claims unless it can be demonstrated beyond a doubt that the plaintiff can prove no set of facts that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.E.2d 80 (1957); Westlake, supra, at 858. See generally 2 James W. MooRE, MooRe’s Federal" }, { "docid": "4801393", "title": "", "text": "lack of subject matter jurisdiction may challenge the sufficiency of the complaint itself — in which case it constitutes a facial attack — or it may challenge the factual existence of subject matter jurisdiction — in which case the motion constitutes a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). In ruling upon a facial attack, the court must take as true the allegations of the plaintiffs complaint and construe them in the light most favorable to the plaintiff, but in a factual attack, the court does not presume that the complaint’s allegations are true and instead considers other evidence bearing upon the question of subject matter jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004). When faced with a factual attack, the trial court may, at its discretion, consider affidavits and documents and even conduct a limited evidentiary hearing to resolve any disputes as to jurisdictional facts. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). The plaintiff bears the burden of proving jurisdiction on a motion to dismiss under Rule 12(b)(1). Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986); see United Gov’t Sec. Officers of Am. v. Akal Sec., Inc., 475 F.Supp.2d 732, 736 (S.D.Ohio 2006). B. Legal Standard for Motion under Fed.R.Civ.P. 12(b)(6) A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure only tests whether a cognizable claim has been pled. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). To determine whether a motion to dismiss should be granted, the court examines the complaint, which must contain a short and plain statement of the claim showing that the pleader is entitled to relief. See Fed.R.Civ.P. 8(a)(2). It must also provide the defendant with fair notice of the plaintiffs claim as well as the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). While the complaint need not present detailed factual allegations, to" }, { "docid": "23392966", "title": "", "text": "were ultimately not true, there never was jurisdiction. Sherwin-Williams’s view that courts assess federal jurisdiction based solely on allegations in the complaint is not without exception. In Sherwin-Williams’s world, a defendant could lie about a fact that ere- ates a federal claim, a plaintiff could file a complaint based on that fact, and, ipso facto, federal jurisdiction would exist. Under this reasoning, a plaintiff could come up with its own lie to create federal jurisdiction and then file complaints in federal court, facing no jurisdictional problems. Though the parties do not explicitly say so, what really is at issue here is a jurisdictional challenge to the allegations in the complaint. Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a facial attack or a factual attack. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading. Id. When reviewing a facial attack, a district court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. Id. If those allegations establish federal claims, jurisdiction exists. Where, on the other hand, there is a factual attack on the subject-matter jurisdiction alleged in the complaint, no presumptive truthfulness applies to the allegations. Id. When a factual attack, also known as a “speaking motion,” raises a factual controversy, the district court must weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist. Id. In its review, the district court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve jurisdictional facts. Id. (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981) and Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). Questions of removal similarly may involve facial and factual inquiries. When ruling on a motion to remand, a court generally looks to the plaintiffs complaint, as it is stated at the time of removal, and the defendant’s notice" }, { "docid": "11770872", "title": "", "text": "for failure to state claims upon which relief can be granted. II. SUBJECT MATTER JURISDICTION Defendant’s motion to dismiss counts I and II under Rule 12(b)(1) is a “speaking motion,” inasmuch as it is supported by facts outside the pleadings. See Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). When the Court reviews such a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. Id.; United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). The Court is free to weigh any affidavits, documents and other evidentiary matters presented and satisfy itself as to its power to hear the case. Id. Plaintiff bears the burden of demonstrating that the Court has jurisdiction over the subject matter. Ohio Nat’l, supra, 922 F.2d at 324; Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). Defendant relies on District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In Feldman, the Supreme Court held, in the context' of a bar admission decision, that federal district courts do not have subject matter jurisdiction over challenges to state court decisions, in particular cases arising out of judicial proceedings, even if those challenges allege that the state court’s action was unconstitutional. Id., 460 U.S. at 486, 103 S.Ct. at 1316. In contrast, district courts do have jurisdiction over general challenges to state bar rules promulgated in non-judicial proceedings which do not require review of a final state court judgment in a particular case. Id. In determining whether the Feldman rule applies to defeat jurisdiction, the first question is whether the challenged proceedings of defendant are state court proceedings. Per statute, M.C.L. § 600.904, the Michigan Supreme Court has the power to regulate the investigation and examination of applicants for admission to the State Bar. This power is discharged in part through the Board of Law Examiners, M.C.L. §§ 600.922, 600.925, which functions subject to Supreme Court approval. Pursuant to Supreme Court Rules Concerning the State Bar, Rule 15, §" }, { "docid": "8854207", "title": "", "text": "conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. at 375-76 (citations omitted). “A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading’s allegations, but a challenge to the factual existence of subject matter jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). On a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citation omitted). “[A] trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). The plaintiff bears the burden of proof that jurisdiction exists under 12(b)(1). RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996). Defendant contends that the Court lacks subject matter jurisdiction because Plaintiffs’ claims are barred by Tennessee’s statute of repose applicable to medical malpractice actions. Plaintiffs argue that they timely filed their claims with the U.S. Army on February 2, 2001, that is within the FTCA’s two-year statute of limitations from the date their claims accrued on October 8, 1999, and that the Army did not take final action until January 28, 2010. Plaintiffs assert that the filing of their administrative claims perfected their tort claims against the United States and the date of that filing controls the determination of whether a private person in Tennessee would have been liable to plaintiffs under Tennessee law. Under the FTCA, an injured person can file an action against the United States for the negligent acts or omissions of a government employee acting within the scope of his or her official duties. 28 U.S.C. §§ 2674 and 2679(b)(1). See also Ward v. United States, 838 F.2d 182, 184 (6th Cir.1988); Henson v. NASA 14 F.3d 1143, 1147 (6th Cir.1994). The FTCA provides that: civil actions on claims against the United States, for money damages, accruing on and after" }, { "docid": "7190204", "title": "", "text": "be part of the Union to receive the same salary benefits as Union members. Plaintiffs allege that Norfolk Southern, through its defendant-employees, also represented: 1) plaintiffs would receive greater fringe benefits, equivalent wages, and credit for vacation time; 2) every supervisor would have an assistant supervisor with whom to work; 3) members would never have unpaid days; and 4) plaintiffs would retain their supervisory positions. Plaintiffs allege that members of the Union, relying on these representations, thereafter voted to decertify the Union. They claim that the representations were false and have not been fulfilled. Plaintiffs brought this suit alleging violations of RICO and unfair labor practices, under 29 U.S.C. §§ 157 and 158, for defendants’ alleged fraudulent and coercive misrepresentations resulting in the decertifi-cation of the Union. DISCUSSION I. Subject Matter Jurisdiction and the Railway Labor Act The Sixth Circuit has stated that motions to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) fall into two different categories: facial and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack is a challenge to the sufficiency of the complaint. Id. When a party makes a facial attack, the court must consider all of the complaint’s material allegations as true and construe them in the light most favorable to the nonmoving party. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A factual attack is a challenge to the court’s authority and power to hear the case. Id. When a party makes a factual attack, the court does not presume the truthfulness of the complaint’s factual allegations. Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). The plaintiff, furthermore, must prove that the court has subject matter jurisdiction. Ohio Nat’l Life Ins., 922 F.2d at 324. The court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Ritchie, 15 F.3d at 598. It is within the district court’s discretion to accept affidavits and documents with the motion and conduct" } ]

[ { "docid": "21629850", "title": "", "text": "of the administration of the death penalty in this case. First, the Panel has been informed for the first time of the prosecution’s position that the three defendants in this case are equally guilty of the murder of the victim. Second, we have been informed for the first time that the mother of the older female defendant, Avette Barrett, notified the authorities that she had threatened to kill her mother, her mother’s husband, and her sister and that they were terrified of her. In order to place these matters in context, a brief summary of the facts surrounding the murder are set forth. The petitioner, Bruce Morris, and two female co-defendants, Avette Barrett and Allison Eckstrom, were picked up as hitchhikers by Rickey Van Zandt. Van Zandt was murdered (now admitted to be equally murdered) by the three defendants. Petitioner was sentenced to death. Barrett was sentenced to three years for stealing Van Zandt’s automobile. Eckstrom, a juvenile, had all charges dismissed, without any juvenile proceeding against her. The concession by the prosecution that all three were “equally guilty” casts a new, and highly troubling, light on the state court’s refusal to present the following instruction to the jury at Morris’s penalty-phase trial: In determining the existence of mitigating circumstances you must take into account that the defendant’s accomplice Allison Eckstrom was allowed to plead guilty to a reduced charge and was promised a sentence of dismissal. Avette Barrett was promised three years or less. The prosecution’s position is that, of the three “equally guilty” perpetrators, one (Morris) deserves to be executed while the other two serve little or no time in prison. As Justice Brennan has noted, this sort of gross disparity in treatment of equally guilty defendants “highlights the utter failure of the elaborate sentencing schemes approved by the Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States.” DeGarmo v. Texas, 474 U.S. 973, 974-75, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985) (Brennan, J., dissenting from denial of petition for writ of certiorari). Although the Court has attempted to" } ]

[ { "docid": "3224320", "title": "", "text": "the administration of the death penalty in the United States will violate the guarantees of due process and freedom from cruel and unusual punishment enshrined in the Constitution. I. In 2004, the government informed this Court of its position that the three defendants in this case, Morris, Barrett, and Eckstrom, are equally guilty of the felony murder of Van Zandt. Morris v. U.S. Dist. Court (In re Morris), 363 F.3d 891, 895 n. 1 (9th Cir.2004) (per curiam) (Ferguson, J., concurring specially). The Roberts letter at issue in this appeal provides further evidence that Eckstrom is as guilty of Van Zandt’s murder as are Morris and Barrett. The Roberts letter is thus material to Morris’s penalty phase and should have been disclosed to the defense. Instead, the prosecution suppressed the letter and dropped all charges against Eck-strom, a minor, in return for her testimony against Morris. The prosecution also agreed to charge Barrett only for grand theft auto in exchange for her testimony against Morris. Of the three co-eonspira-tors, Morris alone was prosecuted for murder, and he alone was singled out for the death penalty. Barrett was ultimately sentenced to three years’ imprisonment for violating California Vehicle Code § 10851. Eck-strom was never prosecuted. Morris was sentenced to death. II. Over thirty years ago, the Supreme Court declared that death is different. The death penalty must be imposed fairly, without prejudice or whim, or it may not be imposed at all. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); see Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (interpreting Furman). In the years since Furman, legislatures and courts have struggled to meet this daunting challenge, yet “the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” Callins v. Collins, 510 U.S. 1141, 1144, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of writ of certiorari). The problems today are not identical to those of thirty years ago. Rather, those problems that were originally “pursued down one hole with procedural rules and verbal formulas have" }, { "docid": "3224327", "title": "", "text": "trial by the state's erroneous introduction of excluded evidence,” and whether Petitioner was competent to assist in his own defense. Morris I, 229 F.3d at 781. We remanded those issues to the district court. Monis II, 273 F.3d at 828, 843. During the discovery process leading up to the evidentiary hearing, Petitioner received documents that, he contends, show a Brady violation and a Mooney-Napue violation. See Monis III. The district court permitted amendment of the petition for habeas corpus. When the district court conducted the hearing, Petitioner presented evidence concerning, and argued, only those two new claims. After rejecting the two new claims, the district court granted a certificate of ap-pealability on both. Petitioner presented no evidence on the three previously remanded claims, nor are they addressed in his brief to this court. Therefore, those issues have been abandoned. See Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1052 (9th Cir.2003) (holding that issues abandoned in the district court will not be considered on appeal). . For more detailed summaries of the facts, see the California Supreme Court's decision on direct appeal, People v. Morris, 53 Cal.3d 152, 279 Cal.Rptr. 720, 807 P.2d 949 (1991), and this court's decisions in Monis I and Morris II. ' . “Pete V.” appears to refer to Pete Villareal, Barrett’s probation officer. He was interviewed by Petitioner’s counsel after the Roberts letter was discovered but had no recollection of the case. . Barrett's plea agreement provided that, in return for her complete and truthful testimo ny in all proceedings, the prosecution would dismiss all charges pending against her except \"grand theft auto.\" Originally, the agreement also specified that Barrett’s representation that she had not personally inflicted any injuries on Van Zandt had to be truthful. This condition was deleted before Petitioner’s trial. The government honored its agreement with Barrett. . We review de novo the district court's denial of the petition for habeas corpus. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.2004). Because this petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (\"AED-PA”), pre-AEDPA" }, { "docid": "3224297", "title": "", "text": "the next day. Among the items seized by police after the arrest were Petitioner’s blood-spattered jeans. Petitioner confessed to police that he had murdered Van Zandt. Later, while Petitioner was in custody, he sent a letter to Barrett stating, “I’ve killed once for you, and if I have to I’ll do it again!!! And you know that I can, and I don’t need a rock to do it either.” Petitioner also confessed to fellow inmates that he had murdered Van Zandt. At his trial, Petitioner claimed innocence. He testified that he did not see the killing; rather, he went fishing and re turned to the van to find Barrett and Eckstrom with blood on their clothing. According to Petitioner’s testimony, Barrett told him that Van Zandt had tried to rape her, and Eckstrom confessed to having killed him. Petitioner said that he then went to the van, found that Van Zandt was still alive, pulled him out, and moved him to the embankment. Later, Eckstrom saw that Van Zandt was moving and hit him with a stick. Petitioner testified that he falsely confessed to the murder in order to protect Barrett, who he believed was pregnant with his child, and Eckstrom. Barrett and Eckstrom testified at trial that Petitioner had killed Van Zandt. Both Barrett and Eckstrom were thoroughly cross-examined about inconsistent statements to police and prosecutors; both contradicted themselves on the stand; and both admitted to having lied in the past. Despite his testimony, the jury convicted Petitioner of first-degree murder and robbery. B. The Roberts Letter Barrett sent a letter to her mother, Michele Roberts, on November 1,1985, which was well before Petitioner’s 1987 trial. On November 6, 1985, Roberts forwarded the letter to Phil Lowe, the Sierra County District Attorney who was originally prosecuting the case against Petitioner. Her cover letter to Lowe contained the following statement: “I suppose Pete V. should see the letter also as I received a letter from him (Pete) saying Avette was saying Allison was as guilty as she and Bruce.” The letter from Barrett to Roberts was turned over to the" }, { "docid": "15883778", "title": "", "text": "argument, Petitioner sought to have the agreements admitted into evidence. The trial court admitted Eck-strom’s agreement and read to the jury Barrett’s agreement, which had been modified by the deletion of condition No. 1 (the requirement that Barrett not have injured Van Zandt) and condition No. 7 (the polygraph requirement). At trial, defense counsel cross-examined Barrett and Eck-strom about the agreements and discussed the agreements in jury arguments during both the guilt and penalty phases. Petitioner argued on direct appeal that the agreements were coercive and rendered Barrett’s and Eckstrom’s testimony unreliable and inadmissible. The California Supreme Court rejected that argument. Morris, 279 Cal.Rptr. 720, 807 P.2d at 970. As to Barrett, the court concluded that the agreement did not taint her testimony because the no-injury condition had been removed from the agreement before trial. The only remaining condition that bore on her testimony was the condition that she testify completely and truthfully, which condition, the court concluded, was neither coercive nor improper. Id. As to Eckstrom, the court declined to reach the question whether the no-injury provision in her agreement rendered the agreement impermissibly coercive. Instead, the court concluded that, even if her testimony was improperly admitted, Petitioner was not prejudiced by the error. In that regard, the court noted that Eck-strom’s testimony was not central to the state’s case against Petitioner. Instead, the court concluded: “[Petitioner’s] several detailed pretrial admissions of guilt were the cornerstone of the case against him.” Id. The court reasoned: Even if the accomplice testimony is set aside, it remains that [Petitioner] voluntarily and unequivocally confessed his guilt three times: once to a hitchhiker he picked up in Nebraska, once in a detailed statement to Nebraska law enforcement officers, and once in a letter to Avette Barrett. The remaining evidence corroborates the confessions.... [T]he evidence of [Petitioner’s] guilt was overwhelming and any error in admitting the accomplice testimony was harmless beyond a reasonable doubt. Id. at 971 n. 5. Petitioner argued in his federal habeas petition that the plea agreements induced Barrett and Eckstrom to give false testimony. The magistrate judge rejected that argument," }, { "docid": "3224303", "title": "", "text": "because it contains triple hearsay. Assuming that counsel could have overcome that hurdle, the letter, at most, might have lessened the credibility of Barrett’s and Eckstrom’s testimony, because they maintained that Petitioner was entirely responsible for the killing. Even if the Roberts letter had some exculpatory value, Petitioner suffered insufficient prejudice from the government’s failure to produce it. In order to make out a Brady violation, the evidence must be material, which means there must be “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), quoted in United States v. Alvarez, 86 F.3d 901, 904 (9th Cir.1996). The Roberts letter fails to meet that standard for two reasons. First, the defense already possessed, and presented at trial, significant impeachment evidence against Barrett and Eck-strom. Both admitted on the stand that they had lied to police and prosecutors. Even the prosecutor conceded in his closing argument that they were not reliable: “As to the testimony of Miss Barrett and Miss Eckstrom, I think[it] was very obvious that both girls were not totally honest. ... I have some problems with some of their testimony in this courtroom.” Thus, insofar as the Roberts letter would have shown that Barrett had made a statement inconsistent with her testimony at trial, it would have been cumulative. See United States v. Marashi, 913 F.2d 724, 732 (9th Cir.1990) (holding that where disclosure of impeachment evidence would not have enabled counsel to further discredit the witness, the evidence was “merely cumulative” and did not give rise to a Brady violation). Second, there was compelling evidence of Petitioner’s guilt. He had admitted to several different people that he had murdered Van Zandt. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (noting that a defendant’s confession may be the most probative and damaging evidence); Morris II, 273 F.3d at 836-37 (holding that" }, { "docid": "15883782", "title": "", "text": "that was the size of a softball, might have talked beforehand about killing him so as to steal the van, and had told Barrett and Eckstrom to leave while he finished killing Van Zandt with a stick. Not long after that, Petitioner wrote a letter to Barrett, which proclaimed: “I’ve killed once for you, and if I have to I’ll do it again!!! And you know that I can, and I don’t need a rock to do it either.” Then Petitioner told two fellow inmates that he had hit a man’s skull with a rock 13 times. Even if Barrett and Eckstrom had never testified, the jury would have been left to consider those admissions — and the corroborating physical evidence, such as Petitioner’s blood-spattered clothing — in the light of Petitioner’s proffered explanation that he had lied about committing the crime to protect Barrett. That explanation is particularly specious when applied to the statements that Petitioner made to Barrett herself. As the California Supreme Court majority noted, Petitioner’s own admissions were the “cornerstone” of the state’s case and constitute unusually strong evidence of guilt. Morris, 279 Cal.Rptr. 720, 807 P.2d at 970. In sum, we affirm the district court’s grant of summary judgment on this claim. Any error was harmless. B. Penalty-Phase Claim During the penalty phase, Petitioner requested that the court give an instruction concerning the jurors’ sentencing responsibilities. That instruction — special instruction 60 — contained a typographical error. As written, the instruction read: If you have a reasonable doubt as to which penalty to impose, death or life in prison without the possibility of parole, you must give the defendant the benefit of that doubt and return a verdict fixing the penalty of life in prison with the possibility of parole. (Emphasis added.) The emphasized word in the instruction should have been “without” — not “with”; life without parole and death are the only two sentences that California law authorized for aggravated murder under special circumstances. The trial court read the instruction, including the error, to counsel, during discussions about the penalty-phase instructions. Unfortunately, neither counsel" }, { "docid": "3224325", "title": "", "text": "973 (1978). In keeping with Lockett, the sentencing jury in this case must be permitted to consider the prosecutor’s grossly disparate treatment of Morris’s equally guilty co-defendants as a circumstance of the offense justifying a sentence less than death. As the reasoning in my earlier concurrence makes clear, see In re Morris, 363 F.3d at 896 (Ferguson, J., concurring specially), providing additional mitigation instructions to the capital jury as a means of cabining prosecutorial discretion also avoids a separation-of-powers issue. This Court in Redondo-Lemos determined that although an arbitrary exercise of prosecu-torial discretion violates the Due Process Clause, there is no judicial remedy available because courts generally may not inquire into prosecutors’ decision-making processes. 955 F.2d at 1299. The Redon-do-Lemos majority concluded that permitting courts to make such an inquiry would impermissibly entangle the judicial branch “in the core decisions of another branch of government.” Id. at 1300. In this case, introducing evidence of the sentences received by Morris’s co-defendants would not require the courts to investigate the internal chai-ging decisions of the prosecutor. Instead, it would compel the prosecution to live with the charging decisions it made: if the jury found that the exercise of discretion in seeking the death penalty against Morris was arbitrary, it would be free to use that fact as a mitigating factor. This Court has ordered a new penalty phase in this case. Morris v. Woodford, 273 F.3d 826, 843 (9th Cir.2001). During this second penalty phase, the jury must be permitted to consider, as a mitigating factor in its determination of whether to impose the death penalty, the government’s admission that it singled out Morris for capital punishment among three equally guilty perpetrators. . The prior decisions are Morris v. Woodford, 229 F.3d 775 (9th Cir.2000) (\"Morris I”); Morris v. Woodford, 273 F.3d 826 (9th Cir. 2001) (\"Morris 17”); and Morris v. U.S. Dist. Court (In re Morris), 363 F.3d 891 (9th Cir.2004) (per curiam) (\"Morris III\"). . In Moms I, we granted a certificate of ap-pealability on three issues: whether Petitioner received ineffective assistance of counsel, \"whether Petitioner was denied a fair" }, { "docid": "3224322", "title": "", "text": "come to the surface somewhere else, just as virulent and pernicious as they were in their original form.” Id. Even as the courts have tried to limit the jury’s discretion to impose the death penalty, “discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury.” DeGarmo v. Texas, 474 U.S. 973, 975, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985) (Brennan, J., dissenting from denial of writ of certiorari). Here, the prosecutor’s unbridled discretion to single out Morris for prosecution under the death penalty, when the guilt is equally spread among his co-defendants, is a rank example of “arbitrariness at an earlier point in the selection process.” Id. This sort of gross disparity in the treatment of equally guilty defendants “highlights the utter failure of the elaborate sentencing schemes approved by the [Supreme] Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States.” Id. at 974-75, 106 S.Ct. 337. Such arbitrariness in the administration of the death penalty violates the Eighth Amendment and the Due Process Clause. See Gregg, 428 U.S. at 188-89, 96 S.Ct. 2909 (arbitrary infliction of the death penalty violates the Eighth Amendment); United States v. Redondo-Lemos, 955 F.2d 1296, 1298-99 (9th Cir.1992), overruled on other grounds by United States v. Armstrong, 48 F.3d 1508 (9th Cir.1995), rev’d 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (arbitrary charging decisions violate due process). As a remedy to the constitutional violations in this case, I reiterate my position in In re Morris, 363 F.3d at 896 (Ferguson, J., concurring specially): Morris’s sentencing jury must be instructed that it may consider, as a mitigating factor, the fact that the prosecution pursued substantially more lenient punishment against Morris’s equally guilty co-defendants. Such instructions provide a mechanism for directing and limiting the prosecutor’s unbridled discretion to seek the death penalty. Through its regular functioning, the capital jury can account for and remedy an unconstitutionally arbitrary infliction of the death penalty' — by removing the threat of that ultimate penalty. See United States v." }, { "docid": "15883760", "title": "", "text": "the Sierra County jail, Petitioner told two fellow inmates that he had hit a man’s skull with a rock 13 times. Testifying in his own defense at trial, Petitioner denied killing Van Zandt and stated that he had admitted to the killing in an effort to protect Barrett and Eck-strom. His story was that he had returned to the van after fishing to find Barrett and Eckstrom upset. Both had blood on their dresses. Petitioner testified that Barrett told him she had struck Van Zandt with a rock in self-defense when he tried to rape her. According to Petitioner, he then found Van Zandt unconscious but alive in the van and pulled him out. Then Eckstrom struck Van Zandt with a stick, killing him. Petitioner also called an expert who testified that she had found traces of semen on Van Zandt’s underwear. The expert was unable to state, however, when or how the semen had been deposited. Finally, Petitioner called three female inmates who had been housed in the Nevada County jail with Barrett. Those inmates testified to statements by Barrett implying that Petitioner was accepting responsibility for Van Zandt’s killing out of love for Barrett. All conceded, however, that Barrett had made inconsistent statements about the killing. The jury found Petitioner guilty of first-degree murder and robbery and further found the special circumstance that Petitioner had committed the murder during the commission of the robbery. At the penalty phase, the jury sentenced Petitioner to death. The subsequent procedural history of the case is detailed in our earlier opinion. Moms, 229 F.3d at 777-78. STANDARD OF REVIEW This court reviews de novo a district court’s decision to deny a petition under 28 U.S.C. § 2254. McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999) (per curiam). Because Petitioner filed his petition before the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), the provisions of that Act do not apply to the merits of this appeal. Ainsworth v. Calderon, 138 F.3d 787, 790 (9th Cir.), amended on denial of reh’g, 152 F.3d 1223 (9th Cir.1998). DISCUSSION" }, { "docid": "21629856", "title": "", "text": "defendant’s character or of “the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Although the Ninth Circuit has held that a trial court does not violate Lockett by failing to permit consideration of co-defendant sentences as a mitigating factor, it did so in a case where the defendant facing the death penalty was “not situated similarly to his co-defendants” because “[h]e was the only defendant charged with the special circumstance of a previous murder, and he was the only one who physically participated in both California homicides.” Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir.2004). This case is distinguishable because, here, the prosecution specifically acknowledged that Morris, Eckstrom, and Barrett were equally guilty of Van Zandt’s murder; unlike the defendant in Beardslee, Morris is situated similarly with respect to his guilt in Van Zandt’s death. There would be no legal imposition of the death penalty without the ability of juries to consider mitigating evidence proffered by the capital defendant. See Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that Georgia’s revised death 4356 penalty sentencing scheme differed from that ruled unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), because it “focus[ed] the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant”); see also Lockett, 438 U.S. at 603, 98 S.Ct. 2954 (holding that juries may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers” (emphasis in original)). Where the prosecution has conceded that it has singled out one defendant among several equally guilty perpetrators to receive a death sentence, the defendant must be permitted to present that circumstance for consideration by the jury as a mitigating factor. . In its Answer to the Petition for Writ of Mandamus, at 8-9, the prosecution states that it \"was never disputed” that Morris, Barrett, and Eckstrom \"were equally guilty of the" }, { "docid": "3224295", "title": "", "text": "GRABER, Circuit Judge. A California jury found Petitioner Bruce Wayne Morris guilty of first-degree murder and robbery, and he was sentenced to death in 1987. We have considered his petition for a writ of habeas corpus, and a related mandamus petition, on three previous occasions and have already vacated Petitioner’s death sentence and ordered a new penalty-phase trial. In this fourth appeal, we consider the last two remaining guilt-phase issues: alleged failure of the prosecution 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), and alleged presentation of perjured testimony in violation of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). For the reasons that we explain below, we affirm Petitioner’s convictions. The case is remanded with instructions to grant the writ as to the penalty subject to the state’s retrying the penalty phase within a reasonable time. FACTUAL BACKGROUND A. The Crimes and the Trial In 1985, Petitioner, his girlfriend Avette Barrett, and Barrett’s sister Allison Eck-strom hitchhiked from Sacramento to Lake Tahoe, California. The victim, Rickey Van Zandt, picked them up in the Lake Tahoe area. They drove to a campsite some miles north of Lake Tahoe. Petitioner, Barrett, and Eckstrom discussed stealing Van Zandt’s van, and Barrett apparently suggested that Petitioner kill him. The prosecution’s theory was that while Van Zandt was sleeping, Petitioner hit him in the head with a rock approximately 13 times, then took his body from the van and dumped it down an embankment. Upon discovering that Van Zandt was still alive, Petitioner beat him several times with a stick. Petitioner, Barrett, and Eckstrom then cleaned the van and burned some bloody clothing and blankets. They drove through several states, making purchases with the victim’s credit cards. In Nebraska, they picked up a hitchhiker named Tom Logan. Petitioner confessed to Logan that he had killed Van Zandt. Logan fled and called the police, who arrested Petitioner, Barrett, and Eckstrom" }, { "docid": "3224318", "title": "", "text": "new trial is not automatically required when false evidence is discovered.”). The state argues that the reference to Barrett’s perjury in the Gumz status report was an “unremarkable” reference to the well-aired contradictions and lies that were exposed by cross-examination at trial and, accordingly, that Barrett’s perjury was not material. But, as we have explained, the absence of a contemporaneous and full investigation by the state requires us to assume that the “perjury” referred to something more. We are persuaded that Petitioner suffered insufficient prejudice from Barrett’s perjury, for much the same reasons that we conclude he suffered insufficient prejudice from the failure to turn over the Roberts letter. First, the jury already was shown that Barrett was completely inconsistent and dishonest, that is, that she was a liar in at least some respects. Second, even if the jury had been informed that Barrett’s testimony was perjured and should be disregarded entirely, or even if there had been a new trial at which Barrett did not testify, we are persuaded beyond any doubt that the outcome of the trial would have been the same. Petitioner testified in his own defense and implicated Barrett and Eckstrom in the crime, but the jury disbelieved him despite being told, by both defense counsel and the prosecutor, that Eckstrom and Barrett were unreliable. The physical evidence and Petitioner’s own, multiple confessions pointed to his guilt. Therefore, we reject Petitioner’s Mooney-Napue claim. Convictions AFFIRMED; case REMANDED with instructions to grant the writ with respect to the penalty subject to the state’s retrying the penalty phase within a reasonable time. FERGUSON, Circuit Judge, concurring: The Roberts letter at issue in this appeal is the latest piece of evidence that calls into question the administration of the death penalty in this case. I write separately to underscore the prosecutor’s abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state’s position that the three defendants are equally guilty of the felony murder of Van Zandt. As long as a prosecutor’s discretion in seeking the ultimate penalty — death—remains thus unbridled," }, { "docid": "3224298", "title": "", "text": "a stick. Petitioner testified that he falsely confessed to the murder in order to protect Barrett, who he believed was pregnant with his child, and Eckstrom. Barrett and Eckstrom testified at trial that Petitioner had killed Van Zandt. Both Barrett and Eckstrom were thoroughly cross-examined about inconsistent statements to police and prosecutors; both contradicted themselves on the stand; and both admitted to having lied in the past. Despite his testimony, the jury convicted Petitioner of first-degree murder and robbery. B. The Roberts Letter Barrett sent a letter to her mother, Michele Roberts, on November 1,1985, which was well before Petitioner’s 1987 trial. On November 6, 1985, Roberts forwarded the letter to Phil Lowe, the Sierra County District Attorney who was originally prosecuting the case against Petitioner. Her cover letter to Lowe contained the following statement: “I suppose Pete V. should see the letter also as I received a letter from him (Pete) saying Avette was saying Allison was as guilty as she and Bruce.” The letter from Barrett to Roberts was turned over to the defense before trial and is not at issue in this appeal, but the cover letter from Roberts to Lowe was not turned over until 2004. At the evidentiary hearing before the district court on federal habeas, Petitioner’s trial counsel, Tom Condit, testified that he “didn’t think [Roberts’ trial testimony] was very effective for our side, because she asserted that the inconsistencies that her daughter had made went to an issue that was not important.” He explained that, if he had possessed the Roberts letter, he would have “confronted her with this information and I think possibly gotten her to admit that there was more.” Overall, Condit opined that the letter “would have added support to our contention that Avette and Allison were the guilty parties in the killing of Rickey Van Zandt,” and “it would have altered the course of our investigation” in that the defense would have interviewed Villareal. Condit further asserted that the letter could have been used to impeach Barrett because Barrett’s testimony indicated that she was protecting Eckstrom, while the letter" }, { "docid": "21629857", "title": "", "text": "153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that Georgia’s revised death 4356 penalty sentencing scheme differed from that ruled unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), because it “focus[ed] the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant”); see also Lockett, 438 U.S. at 603, 98 S.Ct. 2954 (holding that juries may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers” (emphasis in original)). Where the prosecution has conceded that it has singled out one defendant among several equally guilty perpetrators to receive a death sentence, the defendant must be permitted to present that circumstance for consideration by the jury as a mitigating factor. . In its Answer to the Petition for Writ of Mandamus, at 8-9, the prosecution states that it \"was never disputed” that Morris, Barrett, and Eckstrom \"were equally guilty of the felony-murder of Rickey Van Zandt.” . As the concurrence noted, there was no need for such a broad pronouncement because the defendant in Redondo-Lemos had not been able to make out a prima facie Due Process claim. Id. at 1303 (Canby, J., concurring). It was thus \"unnecessary to go further and proclaim that there can never be a due process inquiry into the internal charging decisions of the prosecution.” Id." }, { "docid": "3224319", "title": "", "text": "outcome of the trial would have been the same. Petitioner testified in his own defense and implicated Barrett and Eckstrom in the crime, but the jury disbelieved him despite being told, by both defense counsel and the prosecutor, that Eckstrom and Barrett were unreliable. The physical evidence and Petitioner’s own, multiple confessions pointed to his guilt. Therefore, we reject Petitioner’s Mooney-Napue claim. Convictions AFFIRMED; case REMANDED with instructions to grant the writ with respect to the penalty subject to the state’s retrying the penalty phase within a reasonable time. FERGUSON, Circuit Judge, concurring: The Roberts letter at issue in this appeal is the latest piece of evidence that calls into question the administration of the death penalty in this case. I write separately to underscore the prosecutor’s abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state’s position that the three defendants are equally guilty of the felony murder of Van Zandt. As long as a prosecutor’s discretion in seeking the ultimate penalty — death—remains thus unbridled, the administration of the death penalty in the United States will violate the guarantees of due process and freedom from cruel and unusual punishment enshrined in the Constitution. I. In 2004, the government informed this Court of its position that the three defendants in this case, Morris, Barrett, and Eckstrom, are equally guilty of the felony murder of Van Zandt. Morris v. U.S. Dist. Court (In re Morris), 363 F.3d 891, 895 n. 1 (9th Cir.2004) (per curiam) (Ferguson, J., concurring specially). The Roberts letter at issue in this appeal provides further evidence that Eckstrom is as guilty of Van Zandt’s murder as are Morris and Barrett. The Roberts letter is thus material to Morris’s penalty phase and should have been disclosed to the defense. Instead, the prosecution suppressed the letter and dropped all charges against Eck-strom, a minor, in return for her testimony against Morris. The prosecution also agreed to charge Barrett only for grand theft auto in exchange for her testimony against Morris. Of the three co-eonspira-tors, Morris alone was prosecuted for murder," }, { "docid": "3224321", "title": "", "text": "and he alone was singled out for the death penalty. Barrett was ultimately sentenced to three years’ imprisonment for violating California Vehicle Code § 10851. Eck-strom was never prosecuted. Morris was sentenced to death. II. Over thirty years ago, the Supreme Court declared that death is different. The death penalty must be imposed fairly, without prejudice or whim, or it may not be imposed at all. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); see Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (interpreting Furman). In the years since Furman, legislatures and courts have struggled to meet this daunting challenge, yet “the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” Callins v. Collins, 510 U.S. 1141, 1144, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of writ of certiorari). The problems today are not identical to those of thirty years ago. Rather, those problems that were originally “pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.” Id. Even as the courts have tried to limit the jury’s discretion to impose the death penalty, “discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury.” DeGarmo v. Texas, 474 U.S. 973, 975, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985) (Brennan, J., dissenting from denial of writ of certiorari). Here, the prosecutor’s unbridled discretion to single out Morris for prosecution under the death penalty, when the guilt is equally spread among his co-defendants, is a rank example of “arbitrariness at an earlier point in the selection process.” Id. This sort of gross disparity in the treatment of equally guilty defendants “highlights the utter failure of the elaborate sentencing schemes approved by the [Supreme] Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States.” Id. at 974-75, 106 S.Ct. 337. Such arbitrariness in the administration of the death penalty" }, { "docid": "21629855", "title": "", "text": "it would compel the prosecution to live with the charging decisions it has made: if the jury found that the exercise of discretion in seeking the death penalty against Morris was arbitrary, it would be free to use that as a mitigating factor. See United States v. Bin Laden, 156 F.Supp.2d 359, 369 (S.D.N.Y.2001) (finding that, in enacting the statute under which the defendant was prosecuted, Congress intended for juries to consider, as a mitigating factor, that “another defendant or defendants, equally guilty in the crime, will not be punished by death” so as to “provide[] jurors with a means of improving the likelihood that the death penalty would not be administered in an arbitrary or random manner”). Permitting the jury to consider the disparate sentences pursued against equally guilty defendants would also be in keeping with Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held that the Eighth and Fourteenth Amendments require that capital juries not be precluded from considering, as mitigating factors, any aspects of a defendant’s character or of “the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Although the Ninth Circuit has held that a trial court does not violate Lockett by failing to permit consideration of co-defendant sentences as a mitigating factor, it did so in a case where the defendant facing the death penalty was “not situated similarly to his co-defendants” because “[h]e was the only defendant charged with the special circumstance of a previous murder, and he was the only one who physically participated in both California homicides.” Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir.2004). This case is distinguishable because, here, the prosecution specifically acknowledged that Morris, Eckstrom, and Barrett were equally guilty of Van Zandt’s murder; unlike the defendant in Beardslee, Morris is situated similarly with respect to his guilt in Van Zandt’s death. There would be no legal imposition of the death penalty without the ability of juries to consider mitigating evidence proffered by the capital defendant. See Gregg v. Georgia, 428 U.S." }, { "docid": "15883777", "title": "", "text": "the proceedings; (7) that Barrett would take and pass a he detector test; and (8) that Barrett would remain in California and inform the district attorney of her address. The agreement provided that if condition No. 1 were not met, or if Barrett violated any condition of the agreement, the agreement would be void. If Barrett complied with the terms of the agreement, the district attorney agreed that, after Petitioner’s trial, all charges against Barrett would be dropped, with the exception of a single count of felony vehicle theft to which Barrett would plead guilty. Eckstrom’s plea agreement was similar but not identical. She received transactional immunity in exchange for her testimony. The other major difference between her agreement and Barrett’s was that Eckstrom’s agreement did not require her to take a polygraph test. Before Barrett testified, the state amended her agreement to remove the condition that she not have personally inflicted any injuries on Van Zandt. That condition remained in Eckstrom’s agreement. After the prosecution and the defense both mentioned the agreements during opening argument, Petitioner sought to have the agreements admitted into evidence. The trial court admitted Eck-strom’s agreement and read to the jury Barrett’s agreement, which had been modified by the deletion of condition No. 1 (the requirement that Barrett not have injured Van Zandt) and condition No. 7 (the polygraph requirement). At trial, defense counsel cross-examined Barrett and Eck-strom about the agreements and discussed the agreements in jury arguments during both the guilt and penalty phases. Petitioner argued on direct appeal that the agreements were coercive and rendered Barrett’s and Eckstrom’s testimony unreliable and inadmissible. The California Supreme Court rejected that argument. Morris, 279 Cal.Rptr. 720, 807 P.2d at 970. As to Barrett, the court concluded that the agreement did not taint her testimony because the no-injury condition had been removed from the agreement before trial. The only remaining condition that bore on her testimony was the condition that she testify completely and truthfully, which condition, the court concluded, was neither coercive nor improper. Id. As to Eckstrom, the court declined to reach the question whether" }, { "docid": "3224304", "title": "", "text": "and prosecutors. Even the prosecutor conceded in his closing argument that they were not reliable: “As to the testimony of Miss Barrett and Miss Eckstrom, I think[it] was very obvious that both girls were not totally honest. ... I have some problems with some of their testimony in this courtroom.” Thus, insofar as the Roberts letter would have shown that Barrett had made a statement inconsistent with her testimony at trial, it would have been cumulative. See United States v. Marashi, 913 F.2d 724, 732 (9th Cir.1990) (holding that where disclosure of impeachment evidence would not have enabled counsel to further discredit the witness, the evidence was “merely cumulative” and did not give rise to a Brady violation). Second, there was compelling evidence of Petitioner’s guilt. He had admitted to several different people that he had murdered Van Zandt. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (noting that a defendant’s confession may be the most probative and damaging evidence); Morris II, 273 F.3d at 836-37 (holding that any possible error in admitting Barrett’s and Eck-strom’s testimony was harmless because Petitioner’s admissions were the “cornerstone” of the state’s case). Additionally, physical evidence, including Petitioner’s blood-spattered jeans, corroborated those confessions. In the circumstances, there simply is no reasonable likelihood that, had the defense known about the Roberts letter, the result of the trial would have been different. Petitioner counters that he was prejudiced by the government’s failure to turn over the Roberts letter because it “revealed the existence of a credible, independent witness.” In other words, had Petitioner known about the letter, he argues, he would have interviewed Pete Villareal. But Petitioner’s lawyers and investigator already had an incentive to speak to Villa-real. Their theory was that Barrett and Eckstrom were the killers, so they had every reason to contact Barrett’s probation officer, with whom she might have discussed the crime or acted as if she had something to hide. Petitioner’s lawyer also claims that the letter would have induced him to contact anyone to whom Barrett had talked, from the time of the" }, { "docid": "3224328", "title": "", "text": "California Supreme Court's decision on direct appeal, People v. Morris, 53 Cal.3d 152, 279 Cal.Rptr. 720, 807 P.2d 949 (1991), and this court's decisions in Monis I and Morris II. ' . “Pete V.” appears to refer to Pete Villareal, Barrett’s probation officer. He was interviewed by Petitioner’s counsel after the Roberts letter was discovered but had no recollection of the case. . Barrett's plea agreement provided that, in return for her complete and truthful testimo ny in all proceedings, the prosecution would dismiss all charges pending against her except \"grand theft auto.\" Originally, the agreement also specified that Barrett’s representation that she had not personally inflicted any injuries on Van Zandt had to be truthful. This condition was deleted before Petitioner’s trial. The government honored its agreement with Barrett. . We review de novo the district court's denial of the petition for habeas corpus. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.2004). Because this petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (\"AED-PA”), pre-AEDPA law applies. See Morris II, 273 F.3d at 830; Silva v. Brown, 416 F.3d 980, 985 (9th Cir.2005). Thus, we may set aside the state court conviction only if Petitioner proves that his \"detention violates the fundamental liberties of the person.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir.2005) (en banc) (internal quotation marks omitted). . Mooney originated the rule that a conviction obtained through the use of perjured testimony violates due process. Mooney, 294 U.S. at 112, 55 S.Ct. 340; Hayes, 399 F.3d at 983. Napue expanded Mooney to encompass false testimony bearing only on the credibility of a witness. Napue, 360 U.S. at 269, 79 S.Ct. 1173; Hayes, 399 F.3d at 983-84. For convenience, we refer to Petitioner’s argument as a \"Mooney-Napue claim.” See United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.2003) (discussing elements of a \"Mooney-Na-pue claim”). . Although the Supreme Court has suggested that the presentation of perjured testimony gives rise to a type of Brady claim, see United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct." } ]

[ { "docid": "9958005", "title": "", "text": "power generated. See the 1988 Act, H.R.S. § 196D-2. The facts of Thomas — timber project and access road — are analogous. Most significantly, there is no “independent utility” to the drilling of 25 commercial size wells to “verify” a geothermal resource (Phase III); that action is “irrational” absent imminent construction of a geothermal power plant (Phase IV). Accordingly, even if the Project is properly characterized as four separate phases, the court would hold that those four phases are “connected actions” under NEPA regulations, and should be the subject of a single EIS. B. Mootness Even though the actions are connected, Phases I and II have already been completed. Any attempt to have those actions considered in a comprehensive EIS is, therefore, moot. As discussed above in Section IV, NEPA’s function is to assure that adequate information is provided at the decision-making stage on a proposed action. [T]he basic function of an EIS is to serve as a forward-looking instrument to assist in evaluating “proposals” for major federal action.... National Wildlife Fed. v. Appalachian Reg. Commission, 677 F.2d 883, 889 (D.C. Cir.1981) (quoting Aertsen v. Landrieu, 637 F.2d 12, 19 (1st Cir.1980) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 20, 96 S.Ct. 2718, 2730 n. 20, 49 L.Ed.2d 576 (1975))) (emphasis supplied by the Appalachian court). Where the decision has already been made and carried out, and the action taken cannot be undone, there is absolutely no function or role for an EIS. Any suit to compel an EIS at that point is, perforce, moot. Sierra Club v. Penfold, 857 F.2d 1307, 1317-18 (9th Cir.1988) (suit challenging mining operations; the suit for an EIS is moot because “no adequate remedy exists _ [A] completed mining project cannot be moved,” distinguishing Columbia Basin Land Protection Assoc, v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir.1981) (suit over placement of power lines is not moot since the court could order that the power line be moved)); see also Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1378-79 (9th Cir.1978) (claim is moot because the challenged mining" } ]

[ { "docid": "7280709", "title": "", "text": "is prompting the preparation of the EIS, and in so doing concedes that nothing would prevent it from again changing its position. 2. The Inadequacy of the Actions Promised But even if DOE adheres to its latest decision, what it has “decided” and “promised” falls short of what plaintiffs have sought in this case. Plaintiffs allege, among other things, a. The government does not say when it will begin the EIS process— plaintiffs seek immediate preparation of an EIS; b. The government promises to prepare an EIS on Phases III and IV only “as finally proposed by the State of Hawaii” — this leaves open the possibility that the state may attempt to redefine the Project for NEPA purposes, or that DOE will postpone the EIS indefinitely, awaiting some kind of “final proposal” from the state; e. The government intends to continue to participate in the Interagency Group, to process federal permits, and to continue with unspecified “appropriate action” while the EIS is being prepared — plaintiffs seek to enjoin all federal participation until the EIS is complete; d. The government’s promise involves only DON — -plaintiffs seek to enjoin the participation of all defendants in the Project until the EIS is complete. Pointing out these shortcomings in the government’s promises, plaintiffs argue that such “illusory and nonspecific” promises cannot render the case moot. Plaintiffs’ Reply Memorandum at 10. 3. Application of the Mootness Doctrine The burden of demonstrating mootness is a heavy one. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988). The question of mootness “ ‘is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.’ ” Gordon, 849 F.2d at 1244-45 (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.1986) (emphasis provided in Gordon)). This is not a case in which the government has already prepared an EIS, or even commenced such preparation. Plaintiffs cite" }, { "docid": "7280706", "title": "", "text": "at 1466-67. The characterization of Phase III as “research work not development or project construction work” does not speak to the “major federal action” requirement as much as it would to the “significantly affecting the quality of the human environment” requirement. For the reasons articulated herein, Section IV.B.2 infra, the court finds that Phase III also satisfies that requirement. III. Motion to Dismiss for Mootness A. The Government’s Motion Although the government argues that the Conference Committee language directing the use of appropriated funds to prepare an EIS “is not binding on the agency,” Government’s Memorandum at 5, it now asserts that [t]he Department of Energy has decided to accede to the wishes of Congress and prepare an EIS on phases III and IV of the Hawaii Geothermal Project as finally proposed by the State of Hawaii. Government’s Memorandum at 2. The government also promises that it “will not participate in the Hawaii Geothermal Project, outside of the NEPA process, until completion of the EIS.” Id. Based on its decision to prepare an EIS, and its promise not to participate in the Project until the EIS is done, the government argues that the case is moot. In support of its argument, the government cites a series of cases defining mootness: S.E.C. v. Medical Committee for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 580, 30 L.Ed.2d 560 (1972) (there must be an actual case or controversy); Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974) (the controversy must exist at all stages of review); Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir.1989) (a case becomes moot when it loses its character as a live controversy); Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir.1986) (a case is moot if there is no meaningful relief available to plaintiffs). Its argument is that plaintiffs will get their EIS in any case, that the need for an EIS therefore is no longer a live issue because there is no meaningful relief the court can order beyond what the defendant DOE has" }, { "docid": "15665793", "title": "", "text": "action falls within one of its categorical exclusions.” Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir.1996) (“An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious.”). Under that standard, we will disapprove of an agency’s decision if it made “a clear error of judgment.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). A. Mootness Weyerhaeuser contends that we should dismiss this appeal as moot because construction for Stage 1 of the interchange has been completed. A case becomes moot whenever it “los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). According to the classic formulation, in order to be justiciable, a “controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy, admitting of a 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.” Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937) (citations omitted). As the Ninth Circuit has held, however, “[t]he burden of demonstrating mootness is a heavy one.” Northwest Envt’l Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Arnold v. United States, 816 F.2d 1806, 1809 (9th Cir.1987)). In Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585 (9th Cir.1981), we addressed mootness in the context of NEPA. Plaintiffs in Columbia Basin challenged the adequacy of an EIS prepared to review the environmental effects of a proposed power line running across their" }, { "docid": "7280712", "title": "", "text": "of the promised EIS. It does not bind any agency defendant other than DOE. It does not speak to the issue of continued federal participation in the Interagency Group, in issuing permits for various aspects of the Project, in advising and consulting with state and private interests working on the Project. All of this plaintiffs seek to enjoin; the suit cannot be moot as long as the government ignores these additional demands. 4. The “Voluntary Cessation” Exception to the Mootness Doctrine Even if DOE’s promises were sufficient to deprive the court of jurisdiction under traditional notions of mootness, these facts fall squarely within a well-established exception to the mootness doctrine: “the voluntary cessation of allegedly illegal conduct.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), quoted in County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The U.S. Supreme Court has recognized that, as a general rule, such voluntary cessation will not deprive the court of jurisdiction. Id.; see also Armster v. United States District Court, 806 F.2d 1347, 1357 (9th Cir.1986) (“a change of activity by a defendant under the threat of judicial scrutiny is insufficient to negate the existence of an otherwise ripe case or controversy”). The “voluntary cessation” exception is rooted in the policy that a party should not be able to insulate itself from any challenge to its illegal conduct simply by suspending the illegal activity whenever a legal action is brought; otherwise there would be no check on that party’s resumption of the conduct after dismissal of the legal action. Accordingly, in such cases, the matter can be deemed moot only if (1) “ ‘there is no reasonable expectation ... ’ that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (quoting Grant, 345 U.S. at 633, 73 S.Ct. at 898) (other citations omitted). As applied by the Supreme Court, this test imposes a" }, { "docid": "23635218", "title": "", "text": "F.2d 1372, 1373 (9th Cir.1986), quoting Matter of Combined Metals Reduction Co., 557 F.2d 179, 187 (9th Cir.1977). In the words of an authoritative modern treatise on this subject, a case is not moot if the court has the “ability to undo the effects of conduct that was not prevented by the time of the decision.” 13A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3533.3, at 278-79 (1984). The question thus becomes whether we can now give appellant effective relief which would “undo” the effects of the alleged retaliatory action, i.e., conditioning appellant’s employment upon a move to Detroit. What has happened since the district court's order is that the defendant has completed the acts which it threatened at the time the injunction was sought. This, however, does not render the matter moot. “It has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.” Porter v. Lee, 328 U.S. 246, 251, 66 S.Ct. 1096, 1099, 90 L.Ed. 1199 (1946). The Porter rule has been applied in a variety of contexts to defeat mootness arguments. See, e.g., National Forest Preservation Group v. Butz, 485 F.2d 408, 410-11 (9th Cir.1973) (appeal from denial of injunction against land swap not mooted by virtue of fact that land has been transferred to another party in the litigation); Padilla v. Ackerman, 460 F.2d 477, 479 n. 1 (9th Cir.1972) (appeal from denial of injunction against transfer of state prisoners out of a drug treatment program not moot even though transfer has occurred, because district court had power to restore the status quo by ordering the prisoners returned to the treatment program). The result which the appellant sought in the district court, and continues to seek here, is the continuation of his employment with the DEA in Los Angeles. An order reinstating him to his prior position would have precisely that effect, returning matters to the status quo that existed at the time the original claim for injunction was filed. In" }, { "docid": "12947501", "title": "", "text": "time and events, including the movement of societal opinion, outstripped the court processes. That is the short answer, but that alone will not do because this is an area rife with exceptions, qualifications, even quibbles. So we must go on. It is true, as Smith points out, that the Supreme Court has opined that when a party asserts that a ease has become moot, “[t]he burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). That does not mean that the burden cannot be borne, and it was in the just quoted case. See id. It is fair to' say, nonetheless, that courts are particularly cautious when a case has become moot because the defendant has voluntarily ceased to pursue the challenged course of action. Were it otherwise, 'the defendant’s “[m]ere voluntary cessation” would compel the courts to “leave ‘[t]he defendant ... free to return to his old ways.’ ” United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968) (citation omitted). Of course, that would be intolerable. But even when a cessation is voluntary, mootness can follow. Even then, the record may show that “(1) it can be said with assurance that ‘there is no reasonable expectation .... ’ that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted); see also Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir.1998). We, too, have recognized that the volun-tariness of the cessation is a factor, rather than a clincher. As we explained in Armster v. United States Dist. Ct., 806 F.2d 1347, 1358 n. 16 (9th Cir.1987), “it appears that the voluntariness of the cessation is relevant to the issue of the likelihood of recurrence.” And in a case where Congress had changed the statutory scheme, we reflected on the fact that “[ojrdinarily, voluntary cessation of challenged activity will" }, { "docid": "14169506", "title": "", "text": "case or controversy requirement of the Constitution requires that moot cases be dismissed; in a moot case, there is no longer the vitality and interest among the parties that our adversary system of justice requires. As the Supreme Court has made clear, the “burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). In County of Los An-geles v. Davis, the Supreme Court articulated a two part test for mootness: “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” We recognize that, as a general rule, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” But jurisdiction, properly acquired, may abate if the case becomes moot because (1) it can be said with assurance that “there is no reasonable expectation .. ” that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). Beyond this mootness test, there are also at least three exceptions to the mootness doctrine. “The first exception concerns a situation where the issues are capable of repetition, yet evading review.” B & B Chemical Co. v. United States Environmental Protection Agency, 806 F.2d 987, 990 (11th Cir.1986). With this test and exception to it in mind, we must consider the effect of the 1986 regulation on this litigation. 1. Claims of the Appellee Hospitals The Secretary argues that the hospitáis were only challenging the 1979 rule, and now that the 1979" }, { "docid": "9725712", "title": "", "text": "to four and one-half years. FLRA responded with statistics documenting its commitment to maintaining a timely docket. Somewhat disconcerting to the Court, however, was that evidence of this commitment was weakest in the area involved in this and the prior litigation — negotiability appeals, the only area of FLRA’s docket which Congress singled out for expedited consideration. Analysis As noted above, all the negotiability appeals listed in the petition have been decided. Thus Petitioners’ request for a writ of mandamus to decide these appeals within thirty days is moot. Similarly, a declaration by this Court that FLRA’s delays in deciding these appeals violated 5 U.S.C. § 7117(c)(6) and 5 U.S.C. § 555(b) would serve no useful purpose. Obviously such a declaration cannot form the predicate for an order requiring the FLRA to decide the listed negotiability appeals within thirty days, because the appeals have already been decided. Nor can such a declaration form the predicate for an order imposing a six month deadline on future negotiability appeals, because even if FLRA unlawfully delayed decisions on the listed negotiability appeals an injunction imposing a six month deadline would be inappropriate. We therefore decline to render an opinion on the legality of the delays. The request for a six month deadline is directed at future negotiability appeals that could not, by definition, be listed in the petition, so the mootness inquiry as to this aspect of the case is necessarily different. The test for mootness when allegedly illegal conduct has been voluntarily discontinued by the defendant is whether “it can be said with assurance that ‘there is no reasonable expectation’ that the alleged violation will recur.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). The burden of demonstrating mootness is on the defendant, here Respondent FLRA, and is a “heavy one.” Id. (quoting Grant, 345 U.S. at 632-33, 73 S.Ct. at 897); Mississippi River Transmission Corp. v. FERC, 759 F.2d 945, 952 n." }, { "docid": "20345154", "title": "", "text": "109, 114 (8th Cir.1981) (en banc)). No single factor is dispositive; the district court must consider all of the factors to determine whether the balance weighs toward granting the injunction. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 64 (8th Cir.1993). Defendant has characterized plaintiffs motion for a preliminary injunction as an attempt to prevent SensorMedics from challenging Medical Graphics’ product claims. SensorMedics asserts that the motion with respect to the documents it has distributed is moot because it is based upon incidents that have long since ceased. SensorMedics also argues that plaintiff has failed to satisfy the Dataphase factors with respect to the alleged representations. Finally, defendant contends that. Medieal Graphics has failed to identify what future conduct it wants enjoined, thus requesting relief that is overly broad, impermissibly vague and unmanageable. The Court will address the mootness issue first. I. Mootness Defendant argues that the preliminary injunction motion is moot in a jurisdictional sense. The Article III mootness doctrine is, in essence, “ ‘the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) (quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). In County of Los Angeles v. Davis, the Supreme Court held that a case or controversy may become moot when “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur ... and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (internal citations and quotations omitted). As the Supreme Court has noted, the burden of demonstrating the mootness of a ease or controversy is onerous. Id. The matter before this Court is a motion for temporary injunctive relief pending a determination of the legality of the defendant’s conduct. The defendant has adduced evidence" }, { "docid": "12947500", "title": "", "text": "purpose. In a word, that part of the controversy had become moot. Mootness is, of course, simply one facet of justiciability. See Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). Mootness is like standing, in that if it turns out that resolution of the issue presented cannot really affect the plaintiffs rights, there is, generally speaking, no case or controversy for the courts to adjudicate; no real relief can be awarded. As has sometimes been said: “Mootness is ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994) (citation omitted). In this case, the district court did find standing in the first place, but, again, it properly determined that it could give no relief of a prospective nature once the statute and its aftermath had accomplished all that a judgment could accomplish. As sometimes happens, time and events, including the movement of societal opinion, outstripped the court processes. That is the short answer, but that alone will not do because this is an area rife with exceptions, qualifications, even quibbles. So we must go on. It is true, as Smith points out, that the Supreme Court has opined that when a party asserts that a ease has become moot, “[t]he burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). That does not mean that the burden cannot be borne, and it was in the just quoted case. See id. It is fair to' say, nonetheless, that courts are particularly cautious when a case has become moot because the defendant has voluntarily ceased to pursue the challenged course of action. Were it otherwise, 'the defendant’s “[m]ere voluntary cessation” would compel the courts to “leave ‘[t]he defendant ... free to return to his old ways.’ ” United States v. Concentrated Phosphate Exp. Ass’n, 393" }, { "docid": "7280710", "title": "", "text": "EIS is complete; d. The government’s promise involves only DON — -plaintiffs seek to enjoin the participation of all defendants in the Project until the EIS is complete. Pointing out these shortcomings in the government’s promises, plaintiffs argue that such “illusory and nonspecific” promises cannot render the case moot. Plaintiffs’ Reply Memorandum at 10. 3. Application of the Mootness Doctrine The burden of demonstrating mootness is a heavy one. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988). The question of mootness “ ‘is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.’ ” Gordon, 849 F.2d at 1244-45 (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.1986) (emphasis provided in Gordon)). This is not a case in which the government has already prepared an EIS, or even commenced such preparation. Plaintiffs cite numerous cases for the proposition that a suit to compel future action is moot only after it has been “fully and irrevocably carried out.” E.g., University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175 (1981). To the court, this seems axiomatic. Accordingly, a suit to compel an EIS is rendered moot when the EIS is completed and filed. Romero-Barcelo v. Brown, 643 F.2d 835, 862 (1st Cir.1981); City of Newport Beach v. Civil Aeronautics Board, 665 F.2d 1280 (D.C.Cir.1981); Upper Pecos Association v. Stans, 500 F.2d 17 (10th Cir. 1974). Here, of course, the EIS process is not only unfinished, it has not begun. Moreover, there are a number of issues raised by the suit that the government has failed to address. See items (a)-(d) in Section III.B.2, supra. Had the government come forward with specific commitments on these points, its claim of mootness might have more force. In fact, DOE’s affidavit, from Deputy Assistant Secretary Robert L. San Martin, makes absolutely no commitment as to the timing" }, { "docid": "7248720", "title": "", "text": "to order it to do so.” (Motion to Reconsider at 22.) Defendants carry a heavy burden to establish mootness and must do more than voluntarily cease alleged illegal conduct. As . the Ninth Circuit recently explained: “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). “Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant ... free to return to his old ways.” United States v. Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Nevertheless, part or all of a case may become moot if (1) “subsequent events [have] made it absolutely clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur,” Concentrated Phosphate, 393 U.S. at 203, and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985) (quoting Davis, 440 U.S. at 631). Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260 (9th Cir.1998). Until the Corps, actually completes the consultations, there is still a live ESA controversy. For example, the Corps, and FWS appear to be at odds regarding the proper scope of the consultation. Defendants submitted that it had already entered into a programatic consultation with FWS which mooted the issue. In its previous Order, the Court did not reach the merits to determine whether the “may effect” standard had been met, as a matter of law, because it reasoned that Defendants’ decision to voluntarily enter into § 7 consultation must have been based on a “may effect” determination. Accordingly, IT IS ORDERED that Defendants’ Motion to Reconsider is DENIED and Defendants’" }, { "docid": "23225522", "title": "", "text": "merger was opposed by certain stockholders of Domestic in a derivative suit seeking temporary and permanent injunctions to prevent the merger. Both corporations were made parties defendant. Plaintiffs also sought to recover treble damages under the Anti-Trust Act from American for injury to Domestic through alleged illegal acts of American in exercising unlawful control of Domestic. Clayton Act, § 7, 15 U.S.C.A. § 18. After a hearing the district court denied the motion for temporary injunction. Plaintiffs appealed. Despite the appeal defendant corporations proceeded to complete the merger and in the process the assets of Domestic were transferred to American. The defendants then moved to dismiss the appeal as moot on the ground that the only act sought to be restrained, namely the merger, had been accomplished and no relief could be granted plaintiffs. In disposing of the motion to dismiss the appeal as moot this court, speaking through Judge Lindley, reviewed applicable authorities and quoted with approv al from Porter v. Lee, 328 U.S. 246, at page 251, 66 S.Ct. 1096, 90 L.Ed. 1199: \" ‘Where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.' \" [231 F.2d 336.] also from Turney v. Shriver, 269 Ill. 164, 109 N.E. 708: “ ‘Where a bill for an injunction has been filed, and the court has acquired jurisdiction of both the person and the subject-matter of the suit, and the defendant does any act which the bill seeks to enjoin, such party acts at his peril and subject to the power of the court to compel a restoration of the status, or to grant such other relief as may be proper under the particular circumstances of the case.’ ” After citing other similar cases the court said: “Applying these decisions we are able to formulate the question for determination where, as here, a cause for injunctive relief is met by a contention of mootness because the status of the parties and their relationship to the subject matter has changed. The decisive issue is whether the" }, { "docid": "20170983", "title": "", "text": "(Mar. 24, 2004). With a new statute on the books, a memorandum in the rulemaking dockets, and new agency representations to the court, we turn to the question of whether this case remains justiciable. II. Article III, section 2 of the Constitution limits federal court jurisdiction to cases or controversies, meaning that “a live controversy must exist at all stages of review.” Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C.Cir.1997). We will thus “refrain from deciding [a case] if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Id. (internal quotation marks omitted). Of significance to this case, however, defendants cannot usually shelter their actions from judicial scrutiny simply by claiming that they will stop the challenged conduct. As the Supreme Court has explained, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot” unless “(1) it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations and internal quotation marks omitted) (omission in original). Moreover, the “burden of demonstrating mootness is a heavy one.” Id. (internal quotation marks omitted). Arguing that the two agencies’ commitment to refrain from applying the challenged rules and 49 U.S.C. § 46111’s enactment moot this case, the government urges us to dismiss the Coalition’s petitions as non-justiciable. To assess this threshold jurisdictional issue, we apply the mootness standard to each of the Coalition’s claims. See Daingerfield Island Protective Soc’y v. Lujan, 920 F.2d 32, 37 (D.C.Cir.1990) (“[C]laim specific analysis [is] required before we [can] say that appellees have met the ‘heavy’ burden of demonstrating mootness.” (citing Davis, 440 U.S. at 631, 99 S.Ct. at 1383)). For its primary ground of attack, the Coalition" }, { "docid": "4229925", "title": "", "text": "Department’s Office of Hearings and Appeals concluded that a remedial order should issue against ARCO in the Property Case. Property Case, supra note 29 (Mar. 22, 1984). The agency stated that it did not make any findings adverse to ARCO because of the latter’s refusal to comply with the discovery order, id. at 135-137, and on this ground the Department argues that the Property Case is now moot. We do not agree. One of ARCO’s principal contentions is that the Department is wholly without power to promulgate a remedial order predicated upon price-control adjudication, and surely the case is not moot with respect to this issue. Nor can we say that the controversy over the discovery sanction, see text supra at note 33, has lost its vitality. As we recently pointed out, [t]wo conditions ... must be satisfied if a federal court is to dismiss a case as moot. First, the court must conclude \"with assurance that ‘there is no reasonable expectation ...’ that the alleged violation will recur” ... [and] second, ... it must be plain that \"interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Doe v. Harris, 225 U.S.App.D.C. 27, 29, 696 F.2d 109, 111 (1982), quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979) (citations omitted). The Department makes no effort to show that resort to a similar discovery order is unlikely in other ongoing departmental enforcement pro ceedings against ARCO. Moreover, ARCO asserts, without contradiction by the Department, that the effects of the sanctioning order already issued in the Property Case have not been \"irrevocably eradicated.” Letter from David L. Roll, counsel for ARCO, to George A. Fisher, Clerk, at 3 (Apr. 10, 1984). The burden was on the Department to demonstrate mootness, County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303, 1309 (1953), and this the Department has not done." }, { "docid": "5685693", "title": "", "text": "re Adoption ofM.C.D., 42 P.3d 873, 878, 881-82 (Okla.Civ.App.2001). It was irrelevant for purposes of determining eligibility that the individuals in the unmarried couple had filed separate petitions to adopt the child in question. The court specifically concluded that permitting two unmarried people to categorize themselves as “single individuals” in order to adopt would be contrary to legislative intent. Id. at 881-82 & n. 6. It seems highly unlikely that the Oklahoma legislature intended the adoption amendment at issue here to depart from that policy. OSDH has provided no authority to support its interpretation advanced only in litigation. Accordingly, we cannot conclude here that the statute does not apply to sequential adoptions by same-sex couples. Thus, OSDH’s argument that the Doels lack prudential standing fails. In addition, we must address whether OSDH’s position on the adoption amendment’s applicability renders the case moot. At oral argument, OSDH “conceded” that the adoption amendment does not apply to the Doels for the reasons stated above. The question is whether OSDH’s concession means that it has “ceased its offending conduct” in a way that would moot the appeal. Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222,120 S.Ct. 722,145 L.Ed.2d 650 (2000). “[T]he Supreme Court has said that a ease properly brought in the first instance only becomes moot where ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ ” Building & Constr. Dep’t, 7 F.3d at 1491 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). “The burden of demonstrating mootness is a heavy one,” County of Los Angeles, 440 U.S. at 631, 99 S.Ct. 1379 (quotation omitted), and it “lies with the party asserting mootness,” Ada-rand Constructors, 528 U.S. at 222, 120 S.Ct. 722 (quotation, emphasis omitted). An authoritative promise that the state of Oklahoma will not apply the adoption amendment to sequential adoptions theoretically could moot OSDH’s appeal. However, OSDH’s “concession” cannot be construed as such a promise, because it has not demonstrated the authority to act on behalf of the state in doing so. The" }, { "docid": "22571448", "title": "", "text": "Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). A case becomes moot whenever it “los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). In deciding a mootness issue, “the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Gordon, 849 F.2d at 1244-45 (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.1986)). We recently addressed mootness in the context of NEPA in West v. Secretary of the Department of Transportation, 206 F.3d 920 (9th Cir.2000). In West, we held that an action challenging an agency decision to exclude a two-stage highway interchange project from review under NEPA was not moot even though the first stage of the project was complete and the new interchange was carrying traffic. Pointing out that “[t]he central question of all mootness problems is whether changes in the circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief,” id. at 925 n. 4 (quoting Wright & Miller: 13A Federal Practice and Procedure § 3533.3 at 268 (1984)), we found that effective relief could still be granted in the form of requiring additional environmental review and conceivably ordering the interchange closed or taken down. Id. at 925. Similarly, in Gordon, we reversed the district court’s holding that a challenge to regulations governing the 1986 salmon fishing season was mooted by the close of the season. Gmdon, 849 F.2d at 1245. We held that “[t]he fact that the alleged violation has itself ceased is not sufficient to render a case moot. As long as effective relief may still be available to counteract the effects of the violation, the controversy remains live and present.” Id. at 1245. We found that the damage caused by the 1986 measures could be repaired or mitigated" }, { "docid": "22571447", "title": "", "text": "lack of standing with leave to amend. The birdwatchers then filed an amended complaint and two further unsuccessful ex parte applications for a temporary restraining order. By October, the City of Long Beach began to tear down the buildings and trees at the Naval Station in preparation for the marine container terminal. On December 8, the district court denied the birdwatchers’ motion for a preliminary injunction, and granted ap-pellees’ motion to dismiss for lack of standing without leave to amend. By the time appellants filed their brief in this appeal in May 1999, the historic buildings and bird habitats on the Naval Station had been destroyed. II. MOOTNESS Long Beach and the Navy contend that this appeal is moot because the historic buildings on the Naval Station have been destroyed and the trees and structures of the station have been razed in preparation for the construction of the marine container terminal. The burden of demonstrating mootness is a heavy one. Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). A case becomes moot whenever it “los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). In deciding a mootness issue, “the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Gordon, 849 F.2d at 1244-45 (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.1986)). We recently addressed mootness in the context of NEPA in West v. Secretary of the Department of Transportation, 206 F.3d 920 (9th Cir.2000). In West, we held that an action challenging an agency decision to exclude a two-stage highway interchange project from review under NEPA was not moot even though the first stage of the project was complete and the new interchange" }, { "docid": "2185788", "title": "", "text": "grounds on which defendants rely for dismissal are particularized herein as each is considered. It is first urged that the cause is moot and that, accordingly, the appeal should be dismissed. The argument on this point, in essence, is that the appeal is taken from an interlocutory order denying, plaintiffs’ prayer for a temporary injunction restraining implementation of the merger; that the merger has been completed under the controlling provisions of Delaware law, and that, inasmuch as the only act sought to be restrained has been accomplished since the judgment was entered, no relief can be granted plaintiffs. This argument must be examined in the light of the inherent power of a court of equity to afford mandatory relief. As stated in Porter v. Lee, 328 U.S. 246, at page 251, 66 S.Ct. 1096, at page 1099, 90 L.Ed. 1199, “where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.” Cf. Jones v. Securities & Exchange Commission, 298 U.S. 1, 17-18, 56 S.Ct. 654, 80 L.Ed. 1015. In Turney v. Shriver, 269 Ill. 164, 109 N.E. 708, the rule is framed thus: “Where a bill for an injunction has been filed, and the court has acquired jurisdiction of both the person and the subject-matter of the suit, and the defendant does any act which the bill seeks to enjoin, such party acts at his peril and subject to the power of the court to compel a restoration of the status, or to grant such other relief as may be proper under the particular circumstances of the case.” 269 Ill. at page 172, 109 N.E. at page 711. This mandatory power is a useful tool frequently employed by equity courts in conjunction with a final decision on the merits. E. g., Texas & N. O. R. Co. v. North Side Belt Ry. Co., 276 U.S. 475, 48 S.Ct. 361, 72 L.Ed. 661; Welton v. Forty East Oak Street Bldg. Corp., 7 Cir., 70 F.2d 377, certiorari denied Chicago Title & Trust Co. v. Welton, 293" }, { "docid": "7280711", "title": "", "text": "numerous cases for the proposition that a suit to compel future action is moot only after it has been “fully and irrevocably carried out.” E.g., University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175 (1981). To the court, this seems axiomatic. Accordingly, a suit to compel an EIS is rendered moot when the EIS is completed and filed. Romero-Barcelo v. Brown, 643 F.2d 835, 862 (1st Cir.1981); City of Newport Beach v. Civil Aeronautics Board, 665 F.2d 1280 (D.C.Cir.1981); Upper Pecos Association v. Stans, 500 F.2d 17 (10th Cir. 1974). Here, of course, the EIS process is not only unfinished, it has not begun. Moreover, there are a number of issues raised by the suit that the government has failed to address. See items (a)-(d) in Section III.B.2, supra. Had the government come forward with specific commitments on these points, its claim of mootness might have more force. In fact, DOE’s affidavit, from Deputy Assistant Secretary Robert L. San Martin, makes absolutely no commitment as to the timing of the promised EIS. It does not bind any agency defendant other than DOE. It does not speak to the issue of continued federal participation in the Interagency Group, in issuing permits for various aspects of the Project, in advising and consulting with state and private interests working on the Project. All of this plaintiffs seek to enjoin; the suit cannot be moot as long as the government ignores these additional demands. 4. The “Voluntary Cessation” Exception to the Mootness Doctrine Even if DOE’s promises were sufficient to deprive the court of jurisdiction under traditional notions of mootness, these facts fall squarely within a well-established exception to the mootness doctrine: “the voluntary cessation of allegedly illegal conduct.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), quoted in County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The U.S. Supreme Court has recognized that, as a general rule, such voluntary cessation will not deprive the court of" } ]

[ { "docid": "17376610", "title": "", "text": "reason” as the prevailing test for determining whether contracts or agreements violate the Sherman Act. Whether an agreement satisfies the rule of reason depends upon “the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption.” United States v. Topco Associates, Inc., 405 U.S. 596, 607, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972). But there are certain agreements “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 Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Agreements which are per se violations of the Sherman Act include agreements tying the sale of an unpatented article to the sale of a patented article (Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1944)), group boycotts (Fashion Originators’ Guild of America v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941)), horizontal price-fixing agreements (United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)), and vertical price-fixing agreements (United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960)). Of relevance to this case, horizontal market-dividing agreements are per se violations of the Sherman Act. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). But the rule of reason is applied to vertical market-dividing agreements. Sylvania, supra. The issue in this case is whether the market-dividing agreement between First Mississippi and Abadir is subject to rule of reason or per se treatment. B In the application of a recognized per se test, the Supreme Court has warned, “Literalness is overly simplistic and often over-broad.” Broadcast Music, Inc. v. Columbia Broadcasting Systems, Inc., 441 U.S. 1, 9, 99 S.Ct." } ]

[ { "docid": "16453840", "title": "", "text": "the Sherman Act’s ban against contracts, conspiracies, and combinations in restraint of trade, the Court has held that certain agreements or practices are so “plainly anti-competitive,” National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978); Continental TV, Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568 (1977), and so often “lack ... any redeeming virtue,” Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), that they are conclusively presumed illegal without further examination under the rule of reason generally applied in Sherman Act cases. Broadcast Music, Inc. v. Columbia Broadcasting Co., 441 U.S. 1, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979). (hereinafter cited as BMI) When a class of restraints is determined to fall within this category, a court’s task in evaluating its legality is considerably abbreviated. A court need not then inquire whether the restraint’s authors actually possess the power to inflict public injury, Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 845 n. 59, 84 L.Ed. 1129 (1940), nor will the court accept argument that the restraint in the circumstances is justified by any procompetitive purpose or effect. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 2557 n. 16, 53 L.Ed.2d 568 (1977); Klor’s, supra, 79 S.Ct. at 709; Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The per se rule is the trump card of antitrust law. When an antitrust plaintiff successfully plays it, he need only tally his score. Properly applied, the per se rule is “a valid and useful tool of antitrust enforcement.” BMI, supra, 99 S.Ct. at 1556. In light of the potency of the per se rule, however, the Supreme Court has recently re-emphasized that the invocation of this conversation-stopper must be limited to those situations which fairly" }, { "docid": "11796242", "title": "", "text": "v. Socony-Vacuum Oil Co., 310 U.S. 150, 210 [60 S.Ct. 811, 838, 84 L.Ed. 1129]; division of markets, United States v. Addyston Pipe & Steel Co., 85 F. 271, aff’d, 175 U.S. 211 [20 S.Ct. 96, 44 L.Ed. 136]; group boycotts, Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U.S. 457 [61 S.Ct. 703, 85 L.Ed. 949]; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392 [68 S.Ct. 12, 92 L.Ed. 20]. Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Dr. Pontius asserts that the defendants’ actions were per se unreasonable because they constituted a group boycott, unreasonably restrained trade under rule of reason analysis, or constituted an effort to exclude Dr. Pontius from an essential facility. We shall consider each claim in turn, starting with the group boycott claim. 2. Group Boycott The Supreme Court has held that a per se violation of section 1 occurs when a manufacturer terminates its relationship with a retailer in response to a request by a group of that retailer’s competitors. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). The involvement of the competitors transforms the manufacturer’s action from a possibly reasonable vertical restraint into a per se unlawful horizontal restraint. See Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 168 (3d Cir.1979). Courts have proscribed group boycotts that are initiated by competitors at the target firm because the anticompetitive effect of excluding a firm from the market is unacceptably severe and any benefit that would result from the boycott almost always can be achieved through less restrictive means. See Fashion Originators’ Guild of America, Inc. v. Federal Trade Commission, 312 U.S. 457, 467-68, 61 S.Ct. 703, 707-08, 85 L.Ed. 949 (1941); Sullivan § 85, at 240. The availability of a per se theory removes from the path of a plaintiff two obstacles that would confront him if he were proceeding on a rule of reason theory. A plaintiff who can prove the existence of a group boycott can recover" }, { "docid": "22007147", "title": "", "text": "637 (1978); United States v. Topco Assocs., Inc., 405 U.S. 596, 606, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); Chicago Bd. of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918). . Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); see National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 687-88, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978); Standard Oil Co. v. United States, 221 U.S. 1, 59-62, 31 S.Ct. 502, 55 L.Ed. 619 (1911). . Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); see National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978). . United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). . Doctor Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). . United States v. Topco Assocs., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). . Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). . United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Fashion Originators’ Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). But see Oreck Corp. v. Whirlpool Corp., 579 F.2d 126 (2d Cir. 1978) (en banc), cert. denied, - U.S. -, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). . Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557-2558, 53 L.Ed.2d 568 (1977); see id. at 50 n.16, 97 S.Ct. at 2558: Per se rules . . ." }, { "docid": "13359658", "title": "", "text": "credit this evidence. . Certain types of restraints, such as price fixing or some types of market division, are in and of themselves unreasonable restraints on trade; these restraints are referred to as per se violations of the antitrust statutes. See, e. g., United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972) (market division); Northern Pacific Railway v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) (tying arrangement); Fashion Originators’ Guild of America v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941) (collective refusal to deal); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (price fixing). The rationale underlying the concept of per se violations was explained in Northern Pacific Railway v. United States, supra, 356 U.S. at 5, 78 S.Ct. at 518. [T]here are 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. This principle of per se unreasonableness not only makes the type of restraints which are proscribed 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. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, [60 S.Ct. 811, 838, 84 L.Ed. 1129]; division of markets, United States v. Addyston Pipe & Steel Co., [6th Cir.,] 85 F. 271, aff’d, 175 U.S. 211, [20 S.Ct. 96, 44 L.Ed. 136]; group boycotts, Fashion Originators’ Guild v. Federal Trade Comm'n, 312 U.S. 457, [468, 61 S.Ct. 703, 708," }, { "docid": "22007148", "title": "", "text": "Assocs., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). . Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). . United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Fashion Originators’ Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). But see Oreck Corp. v. Whirlpool Corp., 579 F.2d 126 (2d Cir. 1978) (en banc), cert. denied, - U.S. -, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). . Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557-2558, 53 L.Ed.2d 568 (1977); see id. at 50 n.16, 97 S.Ct. at 2558: Per se rules . . . require the Court to make broad generalizations about the social utility of particular commercial practices. The probability that anticompetitive consequences will result from a practice and the severity of those consequences must be balanced against its pro-competitive consequences. Cases that do not fit the generalization may arise, but a per se rule reflects the judgment that such cases are not sufficiently common or important to justify the time and expense necessary to identify them. Once established, per se rules tend to provide guidance to the business community and to minimize the burdens on litigants and the judicial system of the more complex rule-of-reason trials, see Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); United States v. Topco Associates, Inc., 405 U.S. 596, 609-10, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972), but those advantages are not sufficient in themselves to justify the creation of per se rules. If it were otherwise, all of antitrust law would be reduced to per se rules, thus introducing" }, { "docid": "13359657", "title": "", "text": "S.Ct. 105, 86 L.Ed. 497 (1941). We find no error in the record and accordingly AFFIRM. . In our automobile-oriented society the vast majority of persons depend upon gasoline-powered vehicles not only to travel but also to engage in their livelihoods, which, in our complex and interrelated economic system, usually affect interstate commerce. Hence, a persuasive argument can be made that an agreement restraining the trade of gasoline must necessarily affect interstate commerce. However, because the Government presented evidence showing a nexus between the interstate travel of persons and the conspirator gasoline stations, we do not address the merits of the above argument. . Because we find that the evidence supports the finding that the conspiracy substantially affected interstate commerce, we have no need to address the issue whether the restraint occurred in the flow of commerce. . Part of appellants’ confusion is due to their consistent characterization of their conduct as being an exchange of prices. As we explained earlier, at trial the Government presented evidence of price fixing and the jury chose to credit this evidence. . Certain types of restraints, such as price fixing or some types of market division, are in and of themselves unreasonable restraints on trade; these restraints are referred to as per se violations of the antitrust statutes. See, e. g., United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972) (market division); Northern Pacific Railway v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) (tying arrangement); Fashion Originators’ Guild of America v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941) (collective refusal to deal); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (price fixing). The rationale underlying the concept of per se violations was explained in Northern Pacific Railway v. United States, supra, 356 U.S. at 5, 78 S.Ct. at 518. [T]here are 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" }, { "docid": "811156", "title": "", "text": "believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse, but because knowledge of intent may help the court to interpret facts and to predict consequences. Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918). There are, however, a limited number of practices which are conclusively presumed illegal “because of their pernicious effect on competition and lack of any redeeming virtue”. Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The per se violations include price-fixing agreements, see United States v. Socony-Vacuum, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), market allocations, see U.S. v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), certain type of tying arrangements, see International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), and group boycotts, see Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), Fashion Originator’s Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). Proof of the existence of one of these restraints results in an automatic finding of illegality without engaging in the elaborate inquiry mandated by the rule of reason. The rule of reason is supplanted by a per se rule, however, “only after courts have had considerable experience with the type of conduct challenged and application of the Rule of Reason has inevitably resulted in a finding of anticompetitive effects.” Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980). While the Supreme Court has consistently adhered to the position that group boycotts are illegal per se, there remains a great deal of confusion over the scope and operation of the per se rule against group boycotts. L. Sullivan, Antitrust, 229-230 (1977). One court defined a group boycott as a concerted attempt" }, { "docid": "1429782", "title": "", "text": "518, 2 L.Ed.2d 545 (1958); See Continental TV v. GTE Sylvania, Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). The Supreme Court has stressed, however, that “per se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive.” 433 U.S. at 49-50, 97 S.Ct. at 2557. To date, the rule of per se illegality has been applied to the following types of competitive restraints: horizontal and vertical price fixing agreements, see United States v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); horizontal division of markets between competitors, see Timkin Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); tying arrangements, see Northern Pacific Ry. Co. v. United States, supra; and concerted refusals to deal or group boycotts. See Fashion Originators Guild of America v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). Proof of the foregoing types of restraints results in automatic condemnation solely because of the obvious restrictive effects on competition. CAT contends that the restraint involved in the case before this court falls within that category of restraints referred to as concerted refusals to deal or group boycotts. It is well established that a merchant, whether he be a manufacturer, distributor, wholesaler, or retailer, may choose with whom he will do business and with whom he will not do business; such action generally does not violate the antitrust laws. Thus, the manufacturer can deal or not deal with customers “for reasons sufficient to itself.” Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 614, 34 S.Ct. 951, 955, 58 L.Ed. 1490 (1914); Universal Brands, Inc. v. Philip Morris, Inc., 546 F.2d 30, 33 (5th Cir.1977). This sort of arrangement, referred to as “exclusive dealing,” does not give rise to antitrust liability without proof of actual competitive injury. Implicit in the freedom to deal exclusively with one merchant," }, { "docid": "5530303", "title": "", "text": "U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), the Supreme Court stated, [T]here are 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. This principle of per se unreasonableness not only makes the type of restraints which are proscribed 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. See also Continental T. V., Inc. v. GTE Sylvania Inc., supra, 433 U.S. at 50, 97 S.Ct. 2549; United States v. Topco Associates, Inc., supra, 405 U.S. at 607, 92 S.Ct. 1126. Courts have been willing to classify specific types of business relationships as per se violations only after having had considerable experience in evaluating them. Broadcast Music, Inc. v. CBS, Inc.,-U.S.-, -, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979); White Motor Co. v. United States, supra, 372 U.S. at 263, 83 S.Ct. 696; Evans v. S.S. Kresge Co., 544 F.2d 1184, 1191 (3d Cir. 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977). Examples of activity held to be per se unlawful include price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), group boycotts, Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), and horizontal divisions of markets. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). The Court believes that this is not an appropriate case to apply a per se rule. There has not been extensive judicial experience with exclusivity clauses in shopping center leases. There have been only" }, { "docid": "21848567", "title": "", "text": "litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.”). Section 1 of the Sherman Act prohibits “[e]very contract, combination ..., or conspiracy” that unduly restrains interstate commerce. 15 U.S.C. § 1 (1982). Because of this concerted action requirement, unilateral or independent activity, no matter what its motivation, does not violate section 1. See, e.g., Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Thus, both Dills and Bonini may lawfully refuse to sell to Fragale, for whatever reason, so long as they act independently from any agreement between themselves or between each other and Emporium. See, e.g., Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 110-11 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981); Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 167 (3d Cir.1979). Even where concerted action exists, the standard of liability depends on the nature of the violation. Generally, concerted activity under section 1 is unlawful only if it violates the “rule of reason;” that is, “that the combination or conspiracy produces adverse, anti-competitive effects within relevant product and geographic markets____” Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). Some types of concerted activity, however, “because of their pernicious effect on competition and lack of any redeeming virtue,” are treated as per se violations of section 1, without any inquiry into the harm such activity may have caused in the relevant market. Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Examples of concerted business practices that courts have labeled as per se violations include price-fixing and classic group boycotts. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (price-fixing);" }, { "docid": "2870371", "title": "", "text": "or conspiracy, in restraint of trade.” 15 U.S.C. § 1. “Although this prohibition is literally all-encompassing, the courts have construed it as precluding only those contracts or combinations which ‘unreasonably’ restrain competition.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958) (citing Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1910)). The courts have deemed certain practices to be per se unreasonable, because of their pernicious effect on competition and lack of any redeeming virtue. Among the practices conclusively presumed to unreasonably restrain competition are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129 (1940), and group boycotts, Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). Where such practices are established by the evidence, they are considered per se violations of the Sherman Act “without elaborate inquiry as to the precise harm they have caused” to competition. Northern Pacific Railway, 356 U.S. at 5, 78 S.Ct. at 518. With respect to the combination or conspiracy requirement of § 1, it is well established that “solely unilateral conduct, regardless of its anti-competitive effects, is not prohibited.” Contractor Utility Sales v. Certainteed Products, 638 F.2d 1061, 1074 (7th Cir.1981). A company’s unilateral decision to change its distribution system is not, by itself, prohibited by the Sherman Act. Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 602 F.2d 1025,1030 (2d Cir.) cert. denied, 444 U.S. 917, 100 S.Ct. 232, 62 L.Ed.2d 172 (1979). Indeed, a company may contract with a new distributor and as a consequence terminate its relationship with a former distributor without running afoul of the Sherman Act, even if the effect of the new contract is to seriously damage the former distributor’s business. Dart Industries, Inc. v. Plunkett Co. of Oklahoma, 704 F.2d 496 (10th Cir.1983); Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245 (5th Cir.1975). And see Craig v. Sun Oil Co. of Pennsylvania, 515 F.2d 221 (10th Cir.1975)," }, { "docid": "20988513", "title": "", "text": "Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). . Northern Pac. R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). . Union Leader Corp. v. Newspapers of New England, Inc., 284 F.2d 582, 584 (1st Cir. 1960). . Cf. United States v. Besser Mfg. Co., 96 F.Supp. 304 (E.D.Mich.1951), aff’d 343 U.S. 444, 72 S.Ct. 838, 96 L.Ed. 1063 (1952) ; Lorain Journal Co. v. United States, 342. U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951). . United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). . Kiefer-Stewaft Co. v. Joseph E. Segram & Sons, 340 U.S. 211, 213, 71 S.Ct. 259, 95 L.Ed. 219 (1951). Cf. Plymouth Dealers Ass’n of No. Cal. v. United States, 279 F.2d 128 (9th Cir. 1960). . Northern Pac. R. Co. v. United States, sppra note 30, and American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). . Adams Dairy Company v. St. Louis Dairy Company, 260 F.2d 46, 54 (8th Cir. 1958).- . Frankfort Distilleries v. United States, 144 F.2d 824, 833 (10th Cir. 1944). . See United States v. Parke-Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1959). . Las Vegas Merchant Plumbers Ass’n. v. United States, 210 F.2d 732 (9th Cir. 1954), cert. denied 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645 (1954). . Page v. Work, 290 F.2d 323, 330, 332 (9th Cir. 1961), cert. denied 368 U.S. 875, 82 S.Ct. 121, 7 L.Ed.2d 76 (1961). . Supra note 40. . Cf. United States v. Yellow Cab Co., 332 U.S. 218, 233 67 S.Ct. 1560, 91 L.Ed. 2010 (1947). . See Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2nd Cir. 1964)." }, { "docid": "283126", "title": "", "text": "number of 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 the often elaborate inquiry into anticompetitive effect which is characteristic of rule of reason analysis. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Only after courts have had considerable experience with a particular type of conduct, and application of the rule of reason has inevitably resulted in a finding of anticompetitive effect, will the practice in question generally be deemed a per se violation. Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir. 1980); see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme Court has long characterized certain types of group boycotts as per se antitrust violations. For example, in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the Court held that the refusal of an organization of dress manufacturers and designers to do business with any retailer or manufacturer who sold copies of their original designs constituted a per se violation of the Sherman Act. Similarly, in Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), the Court condemned as a per se offense an agreement among a department store chain and as many as ten national manufacturers of household appliances to refuse to sell (or to sell only on highly unfavorable terms) to a retail outlet competing with the department store chain. Central to the Court’s holdings in both Fashion Originators’ Guild and Klor’s was its perception that the behavior in question represented a “naked restraint[ ] 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); see E. A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Committee, 467 F.2d 178, 179 (5th Cir. 1972), cert. denied," }, { "docid": "283125", "title": "", "text": "summary judgment, arguing inter alia, that its temporary refusal to admit Tolkan as a member did not constitute a per se antitrust violation, that Tolkan Datsun was not entitled to participate in the special 210 promotion and that, absent such an entitlement, Tolkan had suffered no competitive injury as a result of the Association’s actions or the operation of its by-laws. On February 12, 1981, the district court granted the Association’s motion for summary judgment and dismissed Tolkan’s complaint. The district court held that the Association’s conduct was not per se illegal, and that under the rule of reason, Tolkan had failed to allege sufficient anti-competitive injury to establish a violation of § 1 of the Sherman Act. On appeal, Tolkan challenges both of these conclusions. II. As this court recently re-emphasized, the rule of reason is the standard traditionally applied to most anticompetitive practices challenged under § 1 of the Sherman Act. United States Trotting Association v. Chicago Downs Association, 665 F.2d 781, 787 (7th Cir. 1981) (en banc). There are, however, a limited number of 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 the often elaborate inquiry into anticompetitive effect which is characteristic of rule of reason analysis. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Only after courts have had considerable experience with a particular type of conduct, and application of the rule of reason has inevitably resulted in a finding of anticompetitive effect, will the practice in question generally be deemed a per se violation. Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir. 1980); see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme Court has long characterized certain types of group boycotts as per se antitrust violations. For example, in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the" }, { "docid": "6144176", "title": "", "text": "Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1950); Fashion Originators’ Guild v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927). For restraints of trade outside the narrow band of the inherently anticompetitive, the rule of reason applies. Standard Oil Co. v. United States, 221 U.S. 1, 60, 31 S.Ct. 502, 55 L.Ed. 619 (1911). See National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978). Our task is to determine into which of these two categories the complained-of behavior falls. At the outset, we observe that joint ventures, without more, are judged against the standard of reasonableness rather than the per se rule. United States v. Penn-Olin Co., 378 U.S. 158, 168-72, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964). However, the nomenclature “joint venture” does not automatically exempt a combination from the per se rule which is found to have elements inherently offensive to the antitrust laws. 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. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 975, 95 L.Ed. 1199 (1951). Nor is it a per se violation to unilaterally grant an exclusive distributorship to a firm, even when that entails cutting off a former distributor. See United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), overruled on other grounds, Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 139 (2d Cir. 1978), cert. denied, 439 U.S. 946, 99" }, { "docid": "23678517", "title": "", "text": "as prohibiting only those combinations which unreasonably restrain competition. Northern Pacific Railway v. United States, 356 U.S. 1, 4-5, 78 S.Ct. 514, 517-18, 2 L.Ed.2d 545 (1958); Sitkin Smelting & Refining Co. v. FMC Corp., 575 F.2d 440, 446 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978). See Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir.1980). See also Apex Hosiery Co. v. Leader, 310 U.S. 469, 493 n. 15, 60 S.Ct. 982, 992 n. 15, 84 L.Ed. 1311 (1940) (The Sherman Antitrust Act addresses “business competition” and was designed to prevent restraints which had a significant effect on such competition). The “rule of reason” is the established standard of analysis for determining whether an antitrust violation has been stated. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977); United States v. Topco Associates, Inc., 405 U.S. 596 at 606-607, 92 S.Ct. 1126 at 1133, 31 L.Ed.2d 515; Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). Under this rule the fact finder weighs all the circumstances of a case to decide whether a restrictive practice should be prohibited as imposing an “unreasonable restraint on competition.” Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. at 49, 97 S.Ct. at 2557; United States v. Topco Associates, Inc., 405 U.S. at 607, 92 S.Ct. at 1133. It is necessary under the rule of reason to show anticompetitive effects, or actual harm to competition, to establish an antitrust violation and a cause of action. Independence Tube Corp. v. Copperweld Corp., 691 F.2d 310, 322 (7th Cir.1982); Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Association, 672 F.2d 1280, 1287 (7th Cir.1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d at 554-59. It is not the unfair means the defendants employed that is to be the focus of the inquiry, but whether those means “lessened competition.” Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Association, 672 F.2d at 1288;" }, { "docid": "1429781", "title": "", "text": "termination of CAT’s services as a transporter of rock from Rinker’s competing mines in the Miami area. Under either of these theories a rule of reason instruction would have been required. Since Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911), the Sherman Act prohibition against “every” agreement in restraint of trade has been interpreted by the federal courts to forbid only “unreasonable restraints.” Id. at 59-60, 31 S.Ct. at 515; see United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1362 (5th Cir.1980). However, in Standard Oil as well as subsequent cases the Supreme Court has declared some restraints “inherently unreasonable” or “per se unlawful.” Thus: there are 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 Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); See Continental TV v. GTE Sylvania, Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). The Supreme Court has stressed, however, that “per se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive.” 433 U.S. at 49-50, 97 S.Ct. at 2557. To date, the rule of per se illegality has been applied to the following types of competitive restraints: horizontal and vertical price fixing agreements, see United States v. Socony Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); horizontal division of markets between competitors, see Timkin Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); tying arrangements, see Northern Pacific Ry. Co. v. United States, supra; and concerted refusals to deal or group boycotts. See Fashion Originators Guild of America v. FTC, 312 U.S. 457, 61 S.Ct." }, { "docid": "966470", "title": "", "text": "which ‘unreasonably’ restrain competition. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). From this standard evolved a rule of per se unreasonableness in certain situations. “[T]here are 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. This principle of per se unreasonableness not only makes the type of restraints which are proscribed 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. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 84 L.Ed. 1129, division of markets, United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.” Northern Pacific Railway Co. v. United States, 356 U.S. at p. 5, 78 S.Ct. at p. 518. We do not find that the underlying considerations of the per se unreasonableness rule are present in this case and therefore look to the reasonableness of ACBL’s action with regard to BCA. In reaching this conclusion we refer to Joseph E." }, { "docid": "21848568", "title": "", "text": "Even where concerted action exists, the standard of liability depends on the nature of the violation. Generally, concerted activity under section 1 is unlawful only if it violates the “rule of reason;” that is, “that the combination or conspiracy produces adverse, anti-competitive effects within relevant product and geographic markets____” Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). Some types of concerted activity, however, “because of their pernicious effect on competition and lack of any redeeming virtue,” are treated as per se violations of section 1, without any inquiry into the harm such activity may have caused in the relevant market. Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Examples of concerted business practices that courts have labeled as per se violations include price-fixing and classic group boycotts. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (price-fixing); Malley-Duff & Assoc. v. Crown Life Ins. Co., 734 F.2d 133, 142 (3d Cir.1984) (group boycotts). In this case, Fragale alleges that defendants’ common scheme to keep Fragale out of the beer retail market constitutes a per se violation because the inferred purpose of defendants’ activity is to restrain price competition by forcing Fragale out of the relevant market, or alternatively that defendants’ activity, even if not motivated by price concerns, cannot pass scrutiny under the “rule of reason” test. Crucial to either theory, however, is proof of concerted activity, which the district court found wanting in this case. The Supreme Court recently discussed the evidentiary standard that a plaintiff must meet to establish unlawful concerted activity under section 1 in a refusal to deal case. In Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984), the Court held that an antitrust plaintiff must establish, either by direct or circumstantial evidence, that the defendants “had a conscious commitment to a common scheme designed to achieve an unlawful" }, { "docid": "4178447", "title": "", "text": "the ‘validity’ of its now invalid patent, and having obtained waivers regarding judicial action, Besly was able to, and did, monopolize the swaging tap market. Besly’s opportunity to monopolize was enhanced by its having commenced actions against alleged infringers or by threatening to so do.” Id. . “And if there was such patent misuse, it does not necessarily follow that the misuse embodies the ingredients of a violation of either § 1 or § 2 of the Sherman Act, . . .” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 140, 89 S.Ct. 1562, 1585, 23 L.Ed.2d 129 (1969). . The causes and effects of per se antitrust violations were capsulated in Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958) : “However, there are 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. This principle of per se unreasonableness not only makes the type of restraints which are proscribed 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. Among the practices which the courts have heretofore deemed to bo unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210 [, 60 S.Ct. 811, 838, 84 L.Ed. 1129] ; division of markets, United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271 [L.R.A.122], affirmed 175 U.S. 211 [, 20 S.Ct. 96, 44 L.Ed. 136] ; group boycotts, Fashion Originators’ Guild [of America] v. Federal Trade Comm., 312 U.S. 457 [, 61 S.Ct. 703, 85 L.Ed. 949] ; and" } ]

[ { "docid": "20331065", "title": "", "text": "who was a stockholder, employee, officer, and director of the firm. The widow alleged that the trustees and her late husband had reached an oral agreement to value his share of the plan’s net assets on a date that differed from the one specified in the plan. However, the Eleventh Circuit held that the trustees in Nachwalter could not be es-topped from enforcing the written terms of the plan. Nachwalter, 805 F.2d at 960. This case differs from Nachwalter, because this case involves an insurer's oral interpretation of a written plan, not an oral agreement to modify a plan. See also Lee v. E.I. Du Pont de Nemours & Co., 894 F.2d 755, 758 (5th Cir.1990); Davidian v. Southern California Meat Cutters Union & Food Employees Ben. Fund, 859 F.2d 134 (9th Cir.1988); Comprehensive Care Corp. v. Dough-try, 682 F.Supp. 516 (S.D.Fla.1988) (also on the preclusion of oral plan modifications by ERISA). . ERISA gives beneficiaries the right to recover contractual plan benefits under § 1132(a)(1)(B). The fiduciary obligations explicitly imposed by ERISA are “to the plan.” Massachusetts Mut. Life, 473 U.S. at 140, 105 S.Ct. at 3089 (1985). . Like plaintiffs contract claims against CGL, plaintiffs state promissory estoppel claim is preempted by ERISA, because it ”relate[s] to” the employee benefit plan and is not exempt from ERISA preemption under the “savings clause.” 29 U.S.C. § 1144(b)(2)(A). Furthermore, classifying promissory estoppel claims against insurers as state claims, not preempted by ERISA, would undermine Congress's aim “to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits” through federal law. Ft. Halifax, 482 U.S. at 8, 107 S.Ct. at 2216. Finally, classifying the breach of contract claim as a federal claim preempted by ERISA and the promissory estop-pel claim as a state claim not preempted by ERISA would be neither meaningful nor practical, because claims of equitable estoppel and claims of breach of contract tend to arise to gether from the same transactions among insurers, employees, and healthcare providers. . The Court concludes that PIW’s state law equitable estoppel" } ]

[ { "docid": "11113988", "title": "", "text": "Plans. The court found that, in fact, Appel-lees made sincere efforts to interpret and implement the Plans and to inform Appellants of their interpretations. This finding is not clear error. Appellants next beseech this Court to estop Appellees from denying them severance benefits, claiming that “[a]ll of FADA’s communications with them, including its policies, memos, and other statements,” modified the Plans and led them to believe they were entitled to severance benefits if they stayed until FADA’s termination. It is unclear to what “other statements” Appellants refer. To the extent Appellants’ claim is based on FADA’s purported oral communications, we reject it. An estoppel cause of action is not cognizable under ERISA in suits seeking to enforce rights to benefits based on purported oral modifications of plan terms. See, e.g., Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969, 971 (5th Cir.1991); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1297 (5th Cir.1989) (concluding that oral agreements or modifications to ERISA plan are contrary to express provisions of ERISA); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989) (declining to create federal common law in this area, reasoning that this power extends only to areas that federal law preempts but does not address and noting that Congress has addressed the question of amendment in 29 U.S.C. § 1102(a)(1), which expressly requires that every employee benefit plan be established and maintained pursuant to a written instrument). Whether an estoppel cause of action is cognizable under ERISA for written statements that purport to amend plan terms, however, is an issue not squarely addressed by this Court. We have considerable doubt as to whether such an action exists in the instant case. We need not resolve this issue, however, because even assuming, arguendo, that Appellants’ estoppel action does exist, we conclude it nonetheless fails. To recover benefits under an equitable estoppel theory, an ERISA beneficiary must establish a material misrepresentation, reasonable and detrimental reliance upon the representation, and extraordinary circumstances. In re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 58 F.3d 896, 907 (3d Cir.1995) (citations omitted) (reaching estoppel" }, { "docid": "14250154", "title": "", "text": "Life Insurance Co. v. Russell, 473 U.S. 134, 156, 105 S.Ct. 3085, 3097, 87 L.Ed.2d 96 (1985) (Brennan, J., concurring in judgment)). Additionally, a line of case law exists that imposes liability based upon reliance on misstatements or errors in the summary plan description, even when the misstatements conflict with the plan itself. See e.g., Edwards v. State Farm Mut. Auto Ins. Co., 851 F.2d 134 (6th Cir.1988). Although there is conflicting authority on this issue, the trend appears to be toward recognizing the applicability of estop-pel principles. Whether this recognition involves the application of state law principles or the adoption of estoppel principles as part of the federal common law of ERISA is not always clearly delineated. Despite what appears to be the trend, the courts have been reluctant in the application of estoppel principles and have emphasized the need to protect the actuarial soundness of benefit plans and ERISA’s requirement that plan provisions be in writing. It has been noted that the “policy behind the ‘written instrument’ clause in ERISA is to prevent collusive or fraudulent side agreements between employers and employees. But for the ‘written instrument’ clause, employees could discriminate in favor of certain plan participants to the detriment of others.” Williams v. Bridgestone/Firestone, Inc., 954 F.2d 1070, 1073 (5th Cir.1992) (quoting Cefalu v. B.F. Goodrich, 871 F.2d 1290, 1296 (5th Cir.1989)). Serious doubts have been expressed over the extension of plan eligibility through estoppel and the courts have placed various limitations on the use of these principles. The Court of Appeals for the Eleventh Circuit has held that claimant’s cannot succeed on estoppel arguments based on oral modifications of employee benefit plans. Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986). See also Straub v. Western Union Tel. Co., 851 F.2d 1262, 1263-64 (10th Cir.1988) (state common law claim of promissory estoppel based upon an oral modification to an ERISA plan preempted under 29 U.S.C. § 1144(a)). However, the courts are allowed to fashion a common law equitable estoppel in cases involving oral interpretations of ambiguities in such plans. Kane v. Aetna Life Insurance, 893 F.2d 1283," }, { "docid": "23313191", "title": "", "text": "and letter were not effective to modify the written terms of the plan. Id. at 1174-76. The Nachwalter court also rejected an attempt to apply federal common law so as to allow oral modifications of employee benefit plans. As the court stated: “A central policy goal of ERISA is to protect the interests of employees and their beneficiaries in employee benefit plans. This goal would be undermined if we permitted oral modifications of ERISA plans because employees would be unable to rely on these plans if their expected retirement benefits could be radically affected by funds dispersed to other employees pursuant to oral agreements. This problem would be exacerbated by the fact that these oral agreements often would be made many years before any attempt to enforce them.” 805 F.2d at 960 (citations omitted). See also Anderson, 830 F.2d at 875-77 (treating “policy” announced by employer as an employee benefit plan or part of plan; such policy must be in writing to be enforceable under ERISA or federal common law). Furthermore, we think this result is consistent with Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), in which the Supreme Court held that a fiduciary to an employee benefit plan could not be held liable under ERISA to a plan participant or beneficiary for extra-contractual compensatory or punitive damages caused by untimely processing of claims. The Court noted that ERISA’s civil “enforcement scheme [was] crafted with such evident care” that Congress did not intend for implied rights of action to supplement the express provisions. Id. at 147-48,105 S.Ct. at 3092-93. Similarly, we think that ERISA’s express requirement that the written terms of a benefit plan shall govern forecloses the argument that Congress intended for ERISA to incorporate state law notions of promissory estoppel. Because Straub is receiving the benefits to which he is entitled under the express terms of defendant’s employee benefit plan, he has no cause of action under ERISA. AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially" }, { "docid": "6910023", "title": "", "text": "absence of reliance by the promisee, a modification, in the context of contracts other than for the sale of goods governed by Article Two of the Uniform Commercial Code, requires fresh consideration, or a consideration substitute such as promissory estoppel, to bind the promisor. See Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1285-86 (7th Cir.1986) (contrasting common-law rule with U.C.C. § 2-209, pursuant to which an agreement modifying a sales contract needs no consideration to be binding provided that the modification is entered into in good faith); Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 451 N.Y.S.2d 663, 667-68, 436 N.E.2d 1265, 1269-70 (1982). Plaintiff is unable to establish a modification of the release. Plaintiffs affidavits and supporting exhibits fail to present the Court with any evidence whatsoever of any promise, or statement made to plaintiff, subsequent to his execution of the release, regarding plaintiffs portability status under the NYNEX employee benefit plans. Any alleged inconsistencies within NYNEX’s internal records — which plaintiff, moreover, does not allege that he even learned of until he commenced this action — is not, as plaintiff contends, a proper basis for overriding the written terms of the NYNEX Management Pension Plan. The use of estoppel to modify a valid contractual agreement, where such has the effect of overriding the written terms of an ERISA plan, is moreover precluded as a matter of federal common law. See Sandler v. Marconi Circuit Technology Corp., 814 F.Supp. 263, 265 (E.D.N.Y.1993) (“ ‘requirement that ERISA plan be maintained in writing precludes oral modifications of the Plans; the common law doctrine of estoppel cannot be used to alter this result’ ”) (quoting Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir.1986)). Courts in the Second Circuit “have routinely rejected claims based upon oral promises which purport to vary the terms of a written ERISA plan.” Sandler, 814 F.Supp. at 265; see, e.g., Weingord v. Western Union World Communications, Inc., No. 89 Civ. 7288 (KMW), 1991 WL 90742, 1991 U.S.Dist. LEXIS 6963, at *16 (S.D.N.Y. May 22, 1991) (Reliance upon “oral promises cannot modify" }, { "docid": "14250155", "title": "", "text": "collusive or fraudulent side agreements between employers and employees. But for the ‘written instrument’ clause, employees could discriminate in favor of certain plan participants to the detriment of others.” Williams v. Bridgestone/Firestone, Inc., 954 F.2d 1070, 1073 (5th Cir.1992) (quoting Cefalu v. B.F. Goodrich, 871 F.2d 1290, 1296 (5th Cir.1989)). Serious doubts have been expressed over the extension of plan eligibility through estoppel and the courts have placed various limitations on the use of these principles. The Court of Appeals for the Eleventh Circuit has held that claimant’s cannot succeed on estoppel arguments based on oral modifications of employee benefit plans. Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986). See also Straub v. Western Union Tel. Co., 851 F.2d 1262, 1263-64 (10th Cir.1988) (state common law claim of promissory estoppel based upon an oral modification to an ERISA plan preempted under 29 U.S.C. § 1144(a)). However, the courts are allowed to fashion a common law equitable estoppel in cases involving oral interpretations of ambiguities in such plans. Kane v. Aetna Life Insurance, 893 F.2d 1283, 1285-86 (11th Cir.), cert denied, — U.S. -, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990). The Kane case makes clear that the rule enunciated therein only comes into play when the terms of the plan are ambiguous and the communications constituted an interpretation of that ambiguity. Alday v. Container Corp. of America, 906 F.2d 660, 666 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 675, 112 L.Ed.2d 668 (1991). In Landro v. Glendenning Motorways, Inc., 625 F.2d 1344 (8th Cir.1980) the Court of Appeals for the Eighth Circuit applying Minnesota law upheld the application of estoppel principles to an ERISA plan. However, this case provides no indication of the view of the Eighth Circuit on the issue before this court because the acts or omissions at issue occurred before the effective date of ERISA’s preemption provision. Thus, no argument was or could have been presented regarding the possible preemption of equitable estoppel principles. In Phillips v. Kennedy, 542 F.2d 52 (8th Cir.1976) the Eighth Circuit made the following comments: We are urged to decide" }, { "docid": "22228724", "title": "", "text": "instrument describe the formal procedures by which the-plan can be amended, id. § 1102(b)(3). Based upon this statutory scheme, any modification to a plan must be implemented in conformity with the formal amendment procedures and must be in writing. Oral or informal written modifications to a plan, such as those alleged by Coleman in this case, are of no effect. Equitable estoppel principles, whether denominated as state or federal common law, have not been permitted to vary the written terms of a plan. Indeed, this circuit has said that “resort to federal common law generally is inappropriate when its application would ... threaten to override the explicit terms of an established ERISA benefit plan.” Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992); accord Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 n. 10 (3d Cir.1990); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296-97 (5th Cir.1989); Musto v. American Gen. Corp., 861 F.2d 897, 910 (6th Cir.1988); Straub v. Western Union Tel. Co., 851 F.2d 1262, 1265-66 (10th Cir.1988); Nachwalter, 805 F.2d at 959-61; see also Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir.1989) (rejecting claims because “they rest on an allegation that the pension plan was modified by informal and unauthorized amendment which, as a matter of law, is impermissible”). In an effort to avoid the prohibition against using equitable estoppel to modify the written terms of a plan, Coleman claims that Nationwide’s statements constituted an interpretation, not a modification, of the written plan. Based upon this construction of the facts, she argues that we should adopt the view of the Eleventh Circuit that estoppel principles may be invoked in ERISA cases when the statements at issue are interpretations of ambiguous plan provisions. See National Cos. Health Benefit Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558, 1571-72 (11th Cir.1991); Kane v. Aetna Life Ins., 893 F.2d 1283, 1286 (11th Cir.1990). We need not decide whether we agree with the view of the Eleventh Circuit, however, because this case involves an outright modification, not an interpretation of the plan." }, { "docid": "8732162", "title": "", "text": "is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lob by, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Because the Plan gave the EBC discretion to make the rulings in question, the district court properly reviewed the rulings under the arbitrary and capricious test. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). The district court’s holding that the ruling by the EBC was not arbitrary and capricious is a legal conclusion and our review of the court’s ruling, although not the underlying administrative decision, is plenary. Sandoval v. Aetna Life & Casualty Ins. Co., 967 F.2d 377, 380 (10th Cir.1992). The EBC’s actions will not be set aside if based on “a reasonable interpretation of the plan’s terms and ... made in good faith.” Torix v. Ball Corp., 862 F.2d 1428, 1429 (10th Cir.1988). IV A Plaintiffs’ Promissory Estoppel Claims As noted, the district court held that plaintiffs could not state a claim for promissory estoppel because “ ‘ERISA’s express requirement that the written terms of a benefit plan shall govern forecloses the argument that Congress intended for ERISA to incorporate state law notions of promissory estoppel.’” Averhart App. at 160 (quoting Peckham, 964 F.2d at 1050 (citing Straub, 851 F.2d at 1265-66)). As Straub notes, 29 U.S.C. § 1144(a) provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 851 F.2d at 1263. On appeal, plaintiffs argue that preemption is inapplicable to their estoppel claims here because those claims do not seek to alter, modify, or avoid any terms of the Pension Plan but, rather, to reinterpret the Plan in light of alleged employer representations concerning plaintiffs’ benefits thereunder. They urge that we apply a federal common law equitable estoppel principle to these facts and afford them relief. According to plaintiffs, our Peckham opinion did not foreclose the" }, { "docid": "7853187", "title": "", "text": "forecloses the argument that Congress intended ERISA to incorporate state law notions of promissory estoppel. 851 F.2d at 1265-66. Moreover, the Cefalu Court maintained in dicta that “[t]he validation and enforcement of oral agreement or modifications to pension plans through estoppel ... conflict[ ] with § 1102(a)(1).” Cefalu, 871 F.2d at 1297 n. 44. Following this line of cases, we held in Degan v. Ford Motor Go. that “ERISA precludes oral modifications to benefit plans and that claims of promissory estop-pel are not cognizable in suits seeking to enforce rights to pension benefits.” 869 F.2d at 895 (citations omitted). The Degan Court explained that Congress intended that federal courts should create federal common law when adjudicating disputes regarding ERISA. Id. (citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957)). The Court cautioned, however, that this power extends only to areas that federal law preempts but does not address. Id. (citing Wheeldin v. Wheeler, 373 U.S. 647, 651-52, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963)). ERISA specifically provides that its provisions preempt state laws that relate to any employee benefit plan. 29 U.S.C. § 1144(a). Moreover, Degan determined that ERISA addresses estoppel claims by requiring that “[ejvery employee benefit plan be established and maintained pursuant to a written instrument” and by requiring that the written plans “provide a procedure for amend[ments] ... and for identifying the persons who have the authority to amend the plan.” 869 F.2d at 895 (quoting 29 U.S.C. § 1102(a)(1) & (b)(3)). Accordingly, the Degan Court concluded that it was not free to fashion federal common law that recognized estoppel-based arguments. Id. The Court emphasized that “Mpplying the common-law concept of es-toppel would mean presenting retirement plan administrators with claims for pay ment from individuals, otherwise ineligible, who were parties to oral agreements that, ... have lain unsuspected and inert for years. That prospect would threaten the stability and solvency of many plans upon which so many other employees are dependent.” Id. No issue of material fact exists whether the plan’s written provisions excluded coverage for" }, { "docid": "5826528", "title": "", "text": "defendants breached any terms of the Optional Plan in denying her life insurance proceeds under it. The defendants are entitled to summary judgment on count one. COUNT TWO — WAIVER AND ESTOP-PEL In count two, the plaintiff alleges that by not rejecting Hector’s application within a reasonable period of time, by accepting the premium deducted from Hector’s salary, and by not returning the premium within a reasonable period of time, the defendants have accepted Hector’s application and eh- gibility and have waived and/or are es-topped from denying coverage under the Optional Plan! The plaintiff seeks the $90,-000 in proceeds under the Optional Plan. As the defendant argues, the Tenth Circuit has yet to recognize a federal common law estoppel claim under ERISA. See, e.g., Miller v. Coastal Corp., 978 F.2d 622, 624-25 (10th Cir.1992), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 152 (1993); Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1050 (10th Cir.1992). In Miller, the Tenth Circuit rejected the plaintiffs claim that the defendants should be equitably estopped from relying on the plan and denying him the retirement benefits as had been orally represented and calculated in the employee’s annual statements for the last ten years. The Tenth Circuit extended the rule from Straub v. Western Union Telegraph Co., 851 F.2d 1262, 1265 (10th Cir.1988), that “[a] employee benefit plan cannot be modified, ..., by informal communications, regardless of whether those communications are oral or written.” Miller, 978 F.2d at 624. Relying on the same rule from Straub, the Tenth Circuit in Peckham likewise rejected a promissory estoppel claim based on oral representations and an estoppel by conduct claim based on dilatory conduct in the processing of an employee’s request to extend medical insurance coverage. 964 F.2d at 1050-51. It is true that in recent cases the Tenth Circuit has been cautious in discussing the possibility of an equitable estoppel claim under ERISA. See, e.g., Cannon v. Group Health Service of Oklahoma, Inc., 77 F.3d at 1276-77 (“This court has neither adopted nor rejected an equitable estoppel rule in the ERISA context.”); Averhart" }, { "docid": "6575576", "title": "", "text": "procedures by which the plan can be amended, id. § 1102(b)(3). These two provisions are designed to give both the “plan’s participants and administrators a clear understanding of their rights and obligations,” Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296 (5th Cir.1989), and they do not authorize oral or implied modifications to a written plan. Indeed, even a written modification must be adopted in conformity with the amendment procedures set out in the plan in order to have effect. 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. See, e.g., Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 n. 10 (3d Cir.1990); Cefalu, 871 F.2d at 1296-97; Musto v. American Gen. Corp., 861 F.2d 897, 910 (6th Cir.1988); Straub v. Western Union Tel. Co., 851 F.2d 1262, 1265-66 (10th Cir.1988); Nachwalter, 805 F.2d at 959-61; see also Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir.1989) (rejecting claims because “they rest on an allegation that the pension plan was modified by informal and unauthorized amendment which, as a matter of law, is impermissible”). Importation of state common law principles to alter written obligations would not only conflict with the text of the statute, it would also undermine the purposes of ERISA. ERISA is designed” to promote the interests of employees and their beneficiaries in employee benefit plans,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983), as well as “to protect contractually defined benefits,” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985). These interests are hardly promoted if deviations from the written plan are freely allowed. Modifications to a written plan that do not conform to the formal amendment procedures threaten the actuarial soundness of the plan and thereby undercut the ability of plan participants to rely on their expected stream of" }, { "docid": "22846167", "title": "", "text": "assurances about rights to pension benefits, especially when repudiation comes after years of expectations. The problem, however, is one for Congress and not this court to resolve, for we are bound by ERISA’s emphatic preference for written agreements. ERISA expressly requires that “[ejvery employee benefit plan shall be established and maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1). In addition, the written plans must “provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan.” Id. § 1102(b)(3). Thus, ERISA mandates that the plan itself and any changes made to it were to be in writing. The reasons for Congress’s strictures in this area are obvious: Oral agreements would undermine Congress’s goal of fashioning a comprehensive system of federal law designed to strengthen and protect the interests of employees in their expected retirement benefits. See Shaw v. Delta Air Space, Inc., 463 U.S. at 90, 103 S.Ct. at 2896. (1983). Applying the common-law concept of es-toppel would mean presenting retirement plan administrators with claims for payment from individuals, otherwise ineligible, who were parties to oral agreements that, like the one before us, have lain unsuspected and inert for years. That prospect would threaten the stability and solvency of many plans upon which so many other employees are dependent. Hence, we join the other circuits that have held, consistently with the words of the statute, that ERISA precludes oral modifications to benefit plans and that claims of promissory estoppel are not cognizable in suits seeking to enforce rights to pension benefits. IV. Unhappy Denouement. Hence, summary judgment was proper here, but not for the reason given by the district court. First, any fair representation claim Degan may have against his union is time-barred. Second, his action to recover pension benefits is preempted by ERISA and, because it was predicated upon oral modifications to the pension plan and promissory estoppel, it is not a cognizable claim under that act. We express no view upon whether Degan could still prevail on discrete theories of recovery in a separate action. Though we are reluctant" }, { "docid": "5826529", "title": "", "text": "from relying on the plan and denying him the retirement benefits as had been orally represented and calculated in the employee’s annual statements for the last ten years. The Tenth Circuit extended the rule from Straub v. Western Union Telegraph Co., 851 F.2d 1262, 1265 (10th Cir.1988), that “[a] employee benefit plan cannot be modified, ..., by informal communications, regardless of whether those communications are oral or written.” Miller, 978 F.2d at 624. Relying on the same rule from Straub, the Tenth Circuit in Peckham likewise rejected a promissory estoppel claim based on oral representations and an estoppel by conduct claim based on dilatory conduct in the processing of an employee’s request to extend medical insurance coverage. 964 F.2d at 1050-51. It is true that in recent cases the Tenth Circuit has been cautious in discussing the possibility of an equitable estoppel claim under ERISA. See, e.g., Cannon v. Group Health Service of Oklahoma, Inc., 77 F.3d at 1276-77 (“This court has neither adopted nor rejected an equitable estoppel rule in the ERISA context.”); Averhart v. U.S. WEST Management Pension Plan, 46 F.3d 1480, 1486 (10th Cir.1994). The Tenth Circuit, however, does not seem inclined to recognize an equitable estoppel claim unless the circumstances are “egregious” or “extraordinary.” Kaferly v. U.S. West Technologies, 189 F.3d 478, 1999 WL 679682, at *9-*10 n. 8 (10th Cir. Sept.1, 1999) (“Miller left open the issue of whether estoppel might apply in limited, extraordinary circumstances, ..., and so do we here. Whether or not estoppel might apply in limited, extraordinary circumstances, there are no such circumstances here that require us to consider the issue.”) (Table); Miller, 978 F.2d at 625 (“[Miller] makes no allegations of lies, fraud, or intent to deceive on the part of the [defendants], Mr. Miller refers to the written representations simply as a ‘mistake’ made by the defendants. Although the mistake directly conflicted \"with the terms of the plan, which he suggests he never saw, he could have obtained ... the plan.”). The plaintiff here does not allege or offer evidence of any egregious or extraordinary circumstances. For that matter," }, { "docid": "7853185", "title": "", "text": "nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). We may affirm the grant of summary judgment regardless of the correctness of the district court’s ruling if we find in the record an adequate independent basis for that result. Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989). While our Court has not specifically addressed the equitable estoppel issue by name, it has held that it does not apply. In Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296 (5th Cir.1989), although the plaintiff did not argue estoppel, we rejected the argument that he was entitled to additional benefits based on the oral representation of his employer’s representative. We noted that ERISA provides that “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument.” Id. (quoting 29 U.S.C. § 1102(a)(1)). We adopted the reasoning of the Seventh and Eighth Circuits that ERISA’s writing requirement protects the plan’s actuarial soundness by preventing plan administrators from contracting to pay benefits to persons not entitled to them under the express terms of the plan. Id. (citing Cummings by Techmeier v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 389 (7th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 703 (1986); Phillips v. Kennedy, 542 F.2d 52, 55 n. 8 (8th Cir.1976) (pre-ERISA)). The Cefalu Court also noted that its conclusion was supported by the Tenth and Eleventh Circuits. Id. (citing Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986); Straub v. Western Union Tel. Co., 851 F.2d 1262 (10th Cir.1988)). In Nachwalter, the Eleventh Circuit held that § 1102(a)(1) of ERISA precluded the plaintiff’s argument that the trustees of a profit-sharing and pension plan were estopped from enforcing the written terms of a plan because of oral representations. 805 F.2d at 960. In Straub, the Tenth Circuit held that ERISA’s express requirement that the written terms of a benefit plan shall govern" }, { "docid": "14031355", "title": "", "text": "1183-84 (D.Kan.2000) (same). In Miller v. Coastal Corporation, the Tenth Circuit refused to “import notions of promissory estoppel into ERISA” and held that the unambiguous terms of an employee benefit plan could not be modified by informal communications, regardless of whether the communications were written or oral. 978 F.2d at 624-25. The Miller court left open, however, the possibility that estoppel might be applied in “egregioqs” or “extraordinary” circumstances, such as when the evidence demonstrated “lies, fraud, or intent to deceive” on the part of the defendant. 978 F.2d at 625; Kaferly, 1999 WL 679682, at *10 n. 8 (citing Miller, 978 F.2d at 625) (“Miller left open the issue of whether estoppel might apply in limited, extraordinary circumstances .... ”). Two years after Miller, the Tenth Circuit indicated in Averhart v. U.S. WEST Management Pension Plan that if an ERISA estoppel claim would be available at all, it would only apply with respect to an employer’s representations that constituted an interpretation of an ambiguous term of an employee benefit plan. 46 F.3d at 1486 (citations omitted). Thus, the Tenth Circuit’s opinions appear to indicate that if the court were to uphold a claim for estoppel under ERISA, it would do so only if: (1) the challenged representation concerned an unambiguous term of an employee benefits plan but was based on lies, fraud, intent to deceive or other egregious or extraordinary circumstances; or (2) the representation constituted an interpretation of an ambiguous term of an employee benefits plan. In this case, Defendant argues that Plaintiff has failed to allege any egregious or extraordinary circumstances sufficient to state a claim for estoppel under ERISA. The court agrees. Plaintiffs complaint contains no allegations that Defendant’s representations were based on lies, fraud, intent to deceive or other egregious or extraordinary circumstances. Accordingly, the court concludes that Plaintiff has failed to state a claim for estoppel under ERISA on that basis. Defendant also argues that Plaintiff has failed to allege any ambiguity in the Bendix Plan and that she can, therefore, not claim that Defendant’s representations constituted an interpretation of an ambiguous term of" }, { "docid": "8817290", "title": "", "text": "(1986). Importantly for this case, we “review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). ANALYSIS In Cefalu, we held that oral modifications to an employee benefit plan governed by ERISA could not form a basis for a breach of contract claim. Similarly, in Degan v. Ford Motor Co., 869 F.2d 889 (5th Cir.1989), we held that “ERISA precludes oral modifications to benefit plans and that claims of promissory estoppel are not cognizable in suits seeking to enforce rights to pension benefits.” Id. at 895 (citations omitted). Most recently, we held that plaintiffs could not succeed in an action attempting to alter the plain meaning of an employee benefit plan governed by ERISA based on a theory of equitable estoppel. Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969 (5th Cir.1991). We noted therein that “ERISA specifically provides that its provisions preempt state laws that relate to any employee benefit plan. 29 U.S.C. § 1144(a).” Id. at 971. Therefore, claimants may not recover based on a state law theory of estoppel. Moreover, while “[t]he Degan Court explained that Congress intended that federal courts should create federal common law when adjudicating disputes regarding ERISA, ... [t]he Court cautioned ... that this power extends only to areas that federal law preempts but does not address.” Id. [Citations omitted]. In Rodrigue, we noted the Degan Court’s recognition that 29 U.S.C. §§ 1102(a)(1) and (b)(1) require that employers establish and maintain benefit plans according to a written instrument which establishes procedures for amendment and specifies those authorized to make amendments. Id. Therefore, Congress has addressed the question of amendment and we “are not free to fashion federal common law that recognize[s] estoppel-based arguments.” Id. Williams, however, claims that he is not attempting to modify the terms of the Plan. Rather, he claims that because the Plan does not define “five years,” its meaning is open to interpretation. He does not deny that his service ended a few days before a calendar would have" }, { "docid": "14755831", "title": "", "text": "U.S.C. § 1022(a)(1); 29 C.F.R. § 2520.104b-10. Kuehl also cites to Hillis v. Waukesha Title Co., Inc., 576 F.Supp. 1103, 1109 (E.D.Wis.1983) as support, wherein the court precluded an employer from implementing a forfeiture clause that it had failed to provide to the employee. Even if Kuehl was not provided with copies of the SPD and SAR as he alleges, unlike the situation in Hillis, Kuehl accrued no benefits under the plan which are now being forfeited. The court finds no forfeiture of Kuehl’s retirement benefits under ERISA and therefore the defendants’ motion for summary judgment on Kuehl’s third claim for relief will be granted and this claim will be dismissed. C. Promissory Estoppel The defendants move for summary judgment on Kuehl’s fourth cause of action for promissory estoppel whereby Kuehl asserts that federal common law principles of estoppel apply to require Chrysler to provide the benefit of 348 months of service under the Chrysler Plan. The court initially notes that to the extent that Kuehl claims estoppel under Wisconsin law, that claim is preempted by ERISA as it relates to an ERISA pension plan. See Russo v. Health, Welfare & Pension Fund, 984 F.2d 762, 767 (7th Cir.1993). Under federal common law, “[a]n estoppel arises when one party has made a misleading representation to another party and the other has reasonably relied to his detriment on that representation.” Black v. TIC Investment Corp., 900 F.2d 112, 115 (7th Cir.1990). Estoppel decisions under ERISA can be categorized based on whether the underlying plan provision is ambiguous, the medium by which the representation is communicated, and the type of the plan. See Stephen R. Bruce, Pension Claims: Rights and Obligations 411 (2nd ed. 1993). The courts of every circuit have recognized that oral or written statements that offer interpretations of ambiguous plan provisions may form the basis for estoppel. Id. Many circuits have held that representations which contradict unambiguous requirements may form the basis of estoppel. See Bruch v. Firestone Tire & Rubber Co., 828 F.2d 134, 149 (3d Cir.1987), aff'd in part, rev’d in part, 489 U.S. 101, 109 S.Ct." }, { "docid": "7853186", "title": "", "text": "Seventh and Eighth Circuits that ERISA’s writing requirement protects the plan’s actuarial soundness by preventing plan administrators from contracting to pay benefits to persons not entitled to them under the express terms of the plan. Id. (citing Cummings by Techmeier v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 389 (7th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 703 (1986); Phillips v. Kennedy, 542 F.2d 52, 55 n. 8 (8th Cir.1976) (pre-ERISA)). The Cefalu Court also noted that its conclusion was supported by the Tenth and Eleventh Circuits. Id. (citing Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986); Straub v. Western Union Tel. Co., 851 F.2d 1262 (10th Cir.1988)). In Nachwalter, the Eleventh Circuit held that § 1102(a)(1) of ERISA precluded the plaintiff’s argument that the trustees of a profit-sharing and pension plan were estopped from enforcing the written terms of a plan because of oral representations. 805 F.2d at 960. In Straub, the Tenth Circuit held that ERISA’s express requirement that the written terms of a benefit plan shall govern forecloses the argument that Congress intended ERISA to incorporate state law notions of promissory estoppel. 851 F.2d at 1265-66. Moreover, the Cefalu Court maintained in dicta that “[t]he validation and enforcement of oral agreement or modifications to pension plans through estoppel ... conflict[ ] with § 1102(a)(1).” Cefalu, 871 F.2d at 1297 n. 44. Following this line of cases, we held in Degan v. Ford Motor Go. that “ERISA precludes oral modifications to benefit plans and that claims of promissory estop-pel are not cognizable in suits seeking to enforce rights to pension benefits.” 869 F.2d at 895 (citations omitted). The Degan Court explained that Congress intended that federal courts should create federal common law when adjudicating disputes regarding ERISA. Id. (citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957)). The Court cautioned, however, that this power extends only to areas that federal law preempts but does not address. Id. (citing Wheeldin v. Wheeler, 373 U.S. 647, 651-52, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963))." }, { "docid": "8732163", "title": "", "text": "Promissory Estoppel Claims As noted, the district court held that plaintiffs could not state a claim for promissory estoppel because “ ‘ERISA’s express requirement that the written terms of a benefit plan shall govern forecloses the argument that Congress intended for ERISA to incorporate state law notions of promissory estoppel.’” Averhart App. at 160 (quoting Peckham, 964 F.2d at 1050 (citing Straub, 851 F.2d at 1265-66)). As Straub notes, 29 U.S.C. § 1144(a) provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 851 F.2d at 1263. On appeal, plaintiffs argue that preemption is inapplicable to their estoppel claims here because those claims do not seek to alter, modify, or avoid any terms of the Pension Plan but, rather, to reinterpret the Plan in light of alleged employer representations concerning plaintiffs’ benefits thereunder. They urge that we apply a federal common law equitable estoppel principle to these facts and afford them relief. According to plaintiffs, our Peckham opinion did not foreclose the reliance they place on company representations, citing footnote 13 of the opinion which states: Where the written language of a plan is clear, as it is here, any representation that is contrary to [the written] language [of an ERISA plan] can be viewed only as a purported modification of the plan and, hence, preempted by ERISA, We do not address whether such a representation can be used to interpret an ambiguous term of the plan. 964 F.2d at 1050 n. 13 (emphasis added). Our Peckham opinion rejected an attempt to assert claims made against an ERISA employee welfare benefit plan. The plaintiff, Peckham, premised her estoppel claim on alleged statements by company representatives to hospital employees that a newborn child of Ms. Peckham’s was covered by the plan. We held that the “promissory estoppel claim is precluded under ERISA,” id. at 1050, and likewise that the doctrine of estop-pel by conduct is preempted by the statute. Id. We explained the rationale for these holdings: first, state laws — whether statutory or common law — may" }, { "docid": "8732159", "title": "", "text": "setting forth the bases for its rulings in a combined Opinion and Order in the Averhart/Sandquist cases and a separate Opinion and Order in the Sabell case. Averhart App. at 155; Sabell App. at 162. First, the court held that plaintiffs’ promissory estoppel theory is barred by ERISA’s preemption provisions. In support, the court cited our ruling that “ ‘ERISA’s express requirement that the written terms of a benefit plan shall govern forecloses the argument that Congress intended for ERISA to incorporate state law notions of promissory estop-pel.’ ” Averhart App. at 160 (quoting Straub v. Western Union Telegraph Co., 851 F.2d 1262, 1265-66 (10th Cir.1988), and citing Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1050 (10th Cir.1992)); Sabell App. at 166 (quoting Straub, 851 F.2d at 1265-66). Second, the court rejected plaintiffs’ claim that the EBC had arbitrarily and capriciously denied their request for 5 + 5 benefits. The court found the committee’s ruling was supported by the requirement in the 5 + 5 amendment that participants be “active employee[s] on the payroll as of February 28, 1991 or on a leave of absence with guaranteed reemployment.” (Emphasis in original.) Third, as to the company’s extension of 5 + 5 benefits to director-level employees who had left the payroll under the Directors’ Program, the court held this decision to be a matter of plan design beyond the scope of the EBC’s fiduciary responsibilities and therefore unreviewable, citing Fletcher v. Kroger Co., 942 F.2d 1137, 1139-40 (7th Cir.1991). Fourth, the court rejected as unsupported by the evidence the Sabell plaintiffs’ claim that the 5 + 5 amendment was not properly approved by the US WEST Board of Directors. The court noted that assuming ar-guendo no proper approval had been given, the entire 5 + 5 amendment would be invalid and no one — including plaintiffs — would be entitled to benefits thereunder. Fifth, the court denied the Sandquist plaintiffs’ claim for civil penalties from defendant Shea for his alleged failure to make a timely response to their written requests for documents. The court held that Mr. Shea" }, { "docid": "22228723", "title": "", "text": "common law cause of action based upon equitable estoppel has been preempted by ERISA, see 29 U.S.C. § 1144; Holland v. Burlington Indus., Inc., 772 F.2d 1140, 1146-47 (4th Cir.1985), aff'd mem. sub nom. Brooks v. Burlington Indus., Inc., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986), she nonetheless contends that these very same estoppel principles may be imported into ERISA in the name of federal common law. Federal common law, however, does not grant federal courts “carte blanche authority to ‘use state common law to re-write a federal statute.’ ” Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 992 (4th Cir.1990) (quoting Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir.1986)). Use of estoppel principles to effect a modification of a written employee benefit plan would conflict with “ERISA’s emphatic preference for written agreements.” Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989). The statute requires that all ERISA plans be “established and maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1), and that the written instrument describe the formal procedures by which the-plan can be amended, id. § 1102(b)(3). Based upon this statutory scheme, any modification to a plan must be implemented in conformity with the formal amendment procedures and must be in writing. Oral or informal written modifications to a plan, such as those alleged by Coleman in this case, are of no effect. Equitable estoppel principles, whether denominated as state or federal common law, have not been permitted to vary the written terms of a plan. Indeed, this circuit has said that “resort to federal common law generally is inappropriate when its application would ... threaten to override the explicit terms of an established ERISA benefit plan.” Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992); accord Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 n. 10 (3d Cir.1990); Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296-97 (5th Cir.1989); Musto v. American Gen. Corp., 861 F.2d 897, 910 (6th Cir.1988); Straub v. Western Union Tel. Co., 851 F.2d 1262, 1265-66 (10th Cir.1988); Nachwalter," } ]

[ { "docid": "8701562", "title": "", "text": "defendants’ agents, standing alone, is justified. The need for such relief is even more cogent when all of these kinds of evidence are considered together. United States v. Reddoch, supra, slip opinion at 27; United States v. Real Estate Development Corp., supra, 347 F.Supp. at 784. 18. Defendants claim that no injunctive relief is necessary in this case, as they claim to be ready to obey the law. The defendants’ good faith, however, does not justify the withholding of injunctive relief where, as here, the statutory prerequisites for an injunction have been met. United States v. West Peachtree Tenth Corp., supra; United States v. Real Estate Development Corp., supra. In the present case, the active discrimination was done by agents of the defendants. If the defendants are enjoined, their agents will be subject to the provisions of the decree and liable for contempt if they violate it. There would, however, be no effective control of the agents’ conduct if injunc-tive relief were withheld. Accordingly, the court will issue an injunction which, while keeping federal intrusion into defendants’ business practices to the minimum required to assure equal housing opportunity, will at the same time be sufficiently comprehensive to assure compliance by all concerned. United States v. West Peachtree Tenth Corp., supra, 437 F.2d at 229 et seq. 19. Any of the foregoing Conclusions of Law which should more properly be denominated a Finding of Fact may be so considered. JUDGMENT Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is hereby Ordered, Adjudged and Decreed that the defendant Youritan Construction Company, dba Tan Construction Company, and its owners, officers, agents, employees, successors and all persons in active concern or participation with any of them, are permanently enjoined with respect to the operations of all apartment buildings owned, managed or controlled by them now or in the future from: 1. Making unavailable or denying any dwelling to any person on account of race, color or national origin. 2. Discriminating against any person in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services" } ]

[ { "docid": "23138282", "title": "", "text": "other North-side offices, we do not think it clearly erroneous for the District Court to conclude that appellant Isakson acted within the scope of his duties when he spoke to customers at the office that he supervised and when he discussed sales policy with other people in the real estate business. Nor do we think the District Court was clearly erroneous in finding- that these activities were conducted with the intention of benefiting the corporation for which Isakson served as executive vice president. See Standard Oil Co. of Texas v. United States, supra, 307 F.2d 120, 5 Cir.” 474 F.2d at 1168. United States v. Youritan Construction Co., 370 F.Supp. 643 (N.D.Cal. 1973) involved discrimination in the renting of apartments, with the government seeking to enjoin the company owner, T. S. Tan, from further discrimination. In holding that the owner was vicariously liable, the District Judge said: “The discriminatory conduct of an apartment manager or rental agent, is as a general rule, attributable to the owner and property manager of the apartment complex, both under the doctrine of respondeat superior and because the duty to obey the law is non-delegable. United States v. Real Estate Development Corp., supra [D.C., 347 F.Supp. 776]; United States v. Reddoch, supra; Williamson v. Hampton Mgt. Co., 339 F.Supp. 1146 (N.D.Ill.1972); and United States v. Mitchell, 335 F.Supp. 1004, 1006 (N.D.Ga.1971). As the court stated in United States v. Real Estate Development Corp., supra, 347 F.Supp. at 785 (apartment case): The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can rent in no other capacity. Their acts and statements, made within the scope of their agency, are attributable to the defendants, whose duty to comply with the law is non-delegable. United States v. Reddoch, supra, slip opinion at 28; Williamson v. Hampton Mgt. Co., 339 F.Supp. 1146 (N.D.Ill.1972).” 370 F.Supp. at 649. See also United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972). At trial, appellee Arntz testified that the salesmen at the Rife Agency worked on a commission basis, and that" }, { "docid": "8701553", "title": "", "text": "constitutes a violation of. Section 3604(a) not only by those who impose these procedural roadblocks, Hall v. Freitas, 343 F.Supp. 1099, 1101 (N.D. Cal.1972); Stearns v. Fair Employment Practice Commission, 6 Cal.3d 205, 98 Cal.Rptr. 467, 490 P.2d 857 (1971), but also by top management and owners who fail to set forth objective and reviewable procedures for apartment application and rental. Failure to provide a black applicant with necessary and correct information concerning what he must do to become a tenant discourages and impedes his application and results in his exclusion from the apartments because of race. United States v. West Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971); United States v. Red-doch, supra, slip opinion at p. 24. 6. The discriminatory conduct of an apartment manager or rental agent is, as a general rule, attributable to the owner and property manager of the apartment complex, both under the doctrine of respondeat superior and because the duty to obey the law is non-delegab'le. United States v. Real Estate Development Corp., supra; United States v. Reddoch, supra; Williamson v. Hampton Mgt. Co., 339 F.Supp. 1146 (N.D.Ill.1972); and United States v. Mitchell, 335 F.Supp. 1004, 1006 (N.D. Ga.1971). As the court stated in United States v. Real Estate Development Corp., supra, 347 F.Supp. at 785 (apartment case): The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can rent in no other capacity. Their acts and statements, made within the scope of their agency, are attributable to the defendants, whose duty to comply with the law is non-delegable. United States v. Reddoch, supra, slip opinion at 28; Williamson v. Hampton Mgt. Co., 339 F.Supp. 1146 (N.D.Ill.1972). Owners and supervisors are responsible for the conduct of their agents; an injunction has been issued against principals for the unlawful conduct of their agents even where they instructed them to obey the law at regular staff meetings. United States v. Mitchell, 335 F. Supp. 1004 (N.D.Ga.1971). Accordingly, where, as here, management’s lack of supervision and failure to establish objective and reviewable procedural standards have" }, { "docid": "23138281", "title": "", "text": "salesmen worked on a commission basis, and it was found that of the 3000 homes sold since passage of the Act in 1968, none had been sold to blacks. The District Court determined that Isakson had violated the Act by “denying to a prospective black buyer that he, Isakson, sold real estate —without explaining that Northside Realty, of which he was Executive Vice-President, did, and then referring him to a black real estate agency; by showing an intention not to cooperate with a black realtor; and by various other acts.” In affirming the District Court’s finding of liability on the part of the corporate defendant, the Court of Appeals said: “In light of the fact that Ed Isakson (1) is the Executive Vice President of Northside Realty, (2) is the broker whose license inures to the benefit of the corporation and enables it to engage in the business of selling real estate, and (3) directly supervises one sales office of Northside Realty and is in charge of hiring or selecting the sales managers for the other North-side offices, we do not think it clearly erroneous for the District Court to conclude that appellant Isakson acted within the scope of his duties when he spoke to customers at the office that he supervised and when he discussed sales policy with other people in the real estate business. Nor do we think the District Court was clearly erroneous in finding- that these activities were conducted with the intention of benefiting the corporation for which Isakson served as executive vice president. See Standard Oil Co. of Texas v. United States, supra, 307 F.2d 120, 5 Cir.” 474 F.2d at 1168. United States v. Youritan Construction Co., 370 F.Supp. 643 (N.D.Cal. 1973) involved discrimination in the renting of apartments, with the government seeking to enjoin the company owner, T. S. Tan, from further discrimination. In holding that the owner was vicariously liable, the District Judge said: “The discriminatory conduct of an apartment manager or rental agent, is as a general rule, attributable to the owner and property manager of the apartment complex, both under" }, { "docid": "22864323", "title": "", "text": "not support the kind of nontraditional vicarious liability that the Ninth Circuit applied. See Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F. 2d 1086 (CA7 1992) (defendant corporation liable for the acts of its agents; shareholder directly, not vicariously, liable); Walker v. Crigler, 976 F. 2d 900 (CA4 1992) (owner of rental property liable for the discriminatory acts of agent, the property’s manager); Marr v. Rife, 503 F. 2d 735 (CA6 1974) (real estate agency’s owner liable for the discriminatory acts of his agency’s salespersons, but without statement of whether agency was a corporation). Nor does the language of these cases provide a convincing rationale for the Ninth Circuit’s conclusions. The Ninth Circuit further referred to an owner’s or officer’s “non delegable duty” not to discriminate in light of the Act’s “overriding societal priority.” 258 F. 3d, at 1131, 1132 (citing Chicago v. Matchmaker Real Estate Sales Center, Inc., supra, at 1096-1097, and Walker v. Crigler, supra, at 904-905). And it added that “[w]hen one of two innocent people must suffer, the one whose acts permitted the wrong to occur is the one to bear the burden.” 258 P. 3d, at 1132. “[A] nondelegable duty is an affirmative obligation to ensure the protection of the person to whom the duty runs.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 396 (1982) (finding no nondelegable duty under 42 U. S. C. § 1981). Such a duty imposed upon a principal would “go further” than the vicarious liability principles we have discussed thus far to create liability “although [the principal] has himself done everything that could reasonably be required of him,” W. Prosser, Law of Torts §71, p. 470 (4th ed. 1971), and irrespective of whether the agent was acting with or without authority. The Ninth Circuit identifies nothing in the language or legislative history of the Act to support the existence of this special kind of liability — the kind of liability that, for example, the law might impose in certain special circumstances upon a principal or employer that hires an independent contractor. Restatement §214; see" }, { "docid": "5040831", "title": "", "text": "has the right to determine how the commission is to be split if the sale is consummated as a result of the multiple listing (the most common split is 35% to the listing broker, 65% to the selling broker). Participants are, of course, prohibited from sharing listings obtained from MLS with non-participating brokers. The part played by MLS listings in the sale of residential properties within its business area is substantial. For the eleven-month period ending August 31, 1977, MLS listings accounted for the sale of over 9,000 homes, with sales prices totalling in excess of $400 million. From the inception of this lawsuit, MLS has maintained that it functions solely as a clearinghouse for information regarding residential properties listed with participating brokers, and that it is not otherwise involved with real estate transactions or sales activities within its jurisdiction. Plaintiffs, however, contend that MLS is more than an information exchange. Pointing to provisions in the MLS charter, by-laws, and rules and regulations, they argue that MLS exerts sufficient control over the sales practices of participating brokers to be held accountable, under Title VIII, for their acts of racial steering. Plaintiffs argue from a number of fronts that MLS is liable, both directly and vicariously, for the alleged racially discriminatory activities of the other defendants in this action, who make use of MLS listings in conducting their businesses. For the rea sons which follow, this court holds that there is no genuine dispute as to any material fact and that defendant MLS is entitled to judgment dismissing the complaint against it. Rule 56, F.R.Civ.P. MLS claims no share of the commissions earned on sales of listed properties. Its substantial revenues — over $800,000 in fiscal year 1976-1977 — derive solely from initiation and listing fees, dues, and charges for extra copies of daily listings ordered by participants. As noted above, listings submitted to MLS remain the property of the listing brokers, and it is left to the listing broker to set the commission split for sales effected through the MLS system. Furthermore, the rules MLS has adopted with respect to" }, { "docid": "5040838", "title": "", "text": "643 (N.D.Cal.1973), where the district court held the owner and operator of eleven apartment buildings liable for the discriminatory practices of its building managers and rental agents. Although respondeat superior provided an adequate basis for defendant’s liability, the court found additional support in its view that the duties imposed by Title VIII are “non-delegable.” 370 F.Supp. at 649. Application of this concept is somewhat strained on the facts of this case, however, since Youritan involved a situation where a principal failed “to exercise sufficient control over agents, with the effect that housing was made unavailable because of race.” Id. at 651. In Youritan, the defendant was himself subject to a duty, under § 3604, to make his apartments available to the public on a nondiscriminatory basis; the court held that his “perfunctory instructions” to his agents to comply with legal requirements were insufficient to discharge that duty. It is evident that here MLS is not a principal and has not been shown to have violated an express statutory duty. Plaintiffs have also invoked 42 U.S.C. §§ 1981 and 1982 in support of their claims. These statutes do not, in our view, support the broad theory of liability asserted by plaintiffs. Sections 1981 and 1982 jointly derive from § 1 of the Civil Rights Act of 1866, supplemented and re-enacted by §§ 16 and 18 of the Enforcement Act of 1870, and were codified into their present form in §§ 1977 and 1978 of the Revised Statutes of 1874. For nearly a century, the application of the prohibitions of §§ 1981 and 1982 to private acts of discrimination was ignored. During the past decade, however, the Supreme Court has recognized that § 1 of the 1866 Act “was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein . . . .” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436, 88 S.Ct. 2186, 2201, 20 L.Ed.2d 1189 (1968). See Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976);" }, { "docid": "8701552", "title": "", "text": "adversely affect the rental opportunities of applicants. Thus, laws prohibiting discrimination in housing because of race prohibit not only, for example, overt racial rejection of applicants, but subtle behavior as well. United States v. Mitchell, 327 F. Supp. 476 (N.D.Ga.1971) (reasonable man standard applied to “subtle” statements in fair housing case). 5. Section 804(a) of the 1968 Fair Housing Act (42 U.S.C. § 3604(a)), in addition to specifying that it shall be unlawful to refuse to rent or to refuse to negotiate for the rental ojf housing because of race, also makes (it unlawful to “otherwise make unavailable” housing, or to deny housing because of race. The foregoing phraseology appears to be as broad as Congress could have made it, and all practices which have the effect of denying dwellings on prohibited grounds are therefore unlawful. United States v. Real Estate Development Corp., supra; United States v. Grooms, 348 F.Supp. 1130 (M.D.Fla. 1972). The imposition of more burdensome application procedures, of delaying tactics, and of various forms of discouragement by resident managers and rental agents constitutes a violation of. Section 3604(a) not only by those who impose these procedural roadblocks, Hall v. Freitas, 343 F.Supp. 1099, 1101 (N.D. Cal.1972); Stearns v. Fair Employment Practice Commission, 6 Cal.3d 205, 98 Cal.Rptr. 467, 490 P.2d 857 (1971), but also by top management and owners who fail to set forth objective and reviewable procedures for apartment application and rental. Failure to provide a black applicant with necessary and correct information concerning what he must do to become a tenant discourages and impedes his application and results in his exclusion from the apartments because of race. United States v. West Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971); United States v. Red-doch, supra, slip opinion at p. 24. 6. The discriminatory conduct of an apartment manager or rental agent is, as a general rule, attributable to the owner and property manager of the apartment complex, both under the doctrine of respondeat superior and because the duty to obey the law is non-delegab'le. United States v. Real Estate Development Corp., supra; United States v." }, { "docid": "4921764", "title": "", "text": "to negotiate with plaintiffs was within his authority. If it was, then defendant is vicariously liable for the actions of Pate. Restatement, Agency 2d, § 7 provides the following definition of authority: Authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him. In the case at bar, Pate had express authority to enter into contractual relationships on behalf of defendant. In fact, that was the purpose of his employment by defendant. Under well-settled principles of agency law, a principal is liable to a third person upon a transaction conducted within the agent’s authority. See Restatement, Agency 2d, § 140. Thus an agent with Pate’s authority could contract to sell a house and bind the principal. In most instances, the application of vicarious liability for the failure to contract would not occur because a contract is a consensual relationship between parties. Generally, a duty to contract is antithetical to the consensual requirements of contract law. The Fair Housing Act, however, represents the unusual situation in which there is, under the circumstances promulgated by the Act, a duty to contract. If the agent is acting pursuant to his authority to contract, which is clearly established here, and he refuses to contract because of the race of the other party, it must follow that the principal would therefore be liable just as if the agent had entered into a contract pursuant to his authority. The liability accrues to the principal in this situation, as in the situation where a contract is in fact made, from the exercise of the agent’s authority to contract. Thus defendant is liable in the present case for Pate’s failure to meet his duty to contract or at least enter into the negotiations therefor. This conclusion conforms with the result reached by several other courts. In United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972), the Court stated: The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can" }, { "docid": "4921765", "title": "", "text": "Act, however, represents the unusual situation in which there is, under the circumstances promulgated by the Act, a duty to contract. If the agent is acting pursuant to his authority to contract, which is clearly established here, and he refuses to contract because of the race of the other party, it must follow that the principal would therefore be liable just as if the agent had entered into a contract pursuant to his authority. The liability accrues to the principal in this situation, as in the situation where a contract is in fact made, from the exercise of the agent’s authority to contract. Thus defendant is liable in the present case for Pate’s failure to meet his duty to contract or at least enter into the negotiations therefor. This conclusion conforms with the result reached by several other courts. In United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972), the Court stated: The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can rent in no other capacity. Their acts and statements, made within the scope of their agency, are attributable to the defendants, whose duty to comply with the law is non-delegable. . [citations omitted] See also Stevens v. Dobs, Inc., 483 F.2d 82 (4th Cir. 1973), a case in which neither the manager nor the defendant president and actual owner of defendant corporation ever saw the plaintiff, but the corporation and its owner were held responsible for discrimination by their agents and employees. In Marr v. Rife, 503 F.2d 735 (6th Cir. 1974), the Court held the proprietor of a real estate agency liable for acts of his salesman whether or not such person acted with the approval of the broker or at his direction and where there was no evidence that the owner joined in any discriminatory acts. This liability was imposed by looking to the purpose behind the Fair Housing Act and applying federal law and rejecting the lower court’s application of state law. Finally, defendant is liable for the actions of Pate under" }, { "docid": "5040837", "title": "", "text": "employees. See Marr v. Rife, 503 F.2d 735 (6 Cir. 1974); United States v. Reddoch, P.H.E.O.H. Rptr. ¶ 13569 (S.D.Ala.), aff’d, 467 F.2d 897 (5 Cir. 1972); Moore v. Townsend, 525 F.2d 482 (7 Cir. 1975); Collins v. Spasojcevic, P.H.E.O.H. Rptr. ¶ 13654 (N.D.Ill.1974). See also United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972). Each of these cases addressed a situation in which there existed between the defendant and the person who had actively engaged in the discriminatory practice the kind of relationship that has traditionally supported vicarious liability. On the uncontroverted facts here presented, it is clear that participating brokers do not act on behalf, at the behest, or for the benefit of MLS. Such control as MLS does exercise is exercised not with respect to the sales activities of participants, but rather is directed at the terms upon which the services provided by MLS will be made available to qualified brokers. The second theory of vicarious liability offered by plaintiffs relies on language in United States v. Youritan, 370 F.Supp. 643 (N.D.Cal.1973), where the district court held the owner and operator of eleven apartment buildings liable for the discriminatory practices of its building managers and rental agents. Although respondeat superior provided an adequate basis for defendant’s liability, the court found additional support in its view that the duties imposed by Title VIII are “non-delegable.” 370 F.Supp. at 649. Application of this concept is somewhat strained on the facts of this case, however, since Youritan involved a situation where a principal failed “to exercise sufficient control over agents, with the effect that housing was made unavailable because of race.” Id. at 651. In Youritan, the defendant was himself subject to a duty, under § 3604, to make his apartments available to the public on a nondiscriminatory basis; the court held that his “perfunctory instructions” to his agents to comply with legal requirements were insufficient to discharge that duty. It is evident that here MLS is not a principal and has not been shown to have violated an express statutory duty. Plaintiffs have also invoked 42 U.S.C." }, { "docid": "8701563", "title": "", "text": "into defendants’ business practices to the minimum required to assure equal housing opportunity, will at the same time be sufficiently comprehensive to assure compliance by all concerned. United States v. West Peachtree Tenth Corp., supra, 437 F.2d at 229 et seq. 19. Any of the foregoing Conclusions of Law which should more properly be denominated a Finding of Fact may be so considered. JUDGMENT Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is hereby Ordered, Adjudged and Decreed that the defendant Youritan Construction Company, dba Tan Construction Company, and its owners, officers, agents, employees, successors and all persons in active concern or participation with any of them, are permanently enjoined with respect to the operations of all apartment buildings owned, managed or controlled by them now or in the future from: 1. Making unavailable or denying any dwelling to any person on account of race, color or national origin. 2. Discriminating against any person in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color or national origin. 3. Making, printing, or publishing, or causing to be made, printed, or published, any notice, statement, or advertisement, with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, or national origin. 4. Representing to any person because of race, color, or national origin that any dwelling is not available for inspection or rental when such dwelling is in fact available. 5. Failing or refusing to hire, assign, promote or recruit any employee or prospective employee on account of race, color, religion or national origin, or engaging in any discriminatory employment practice within the meaning of 42 U.S.C. § 2000e et seq. It is further Ordered that the defendants shall forthwith adopt and implement an affirmative program of compliance with the provisions of the Fair Housing Act in order to insure that in the future all apartments will be available for inspection by and rental to black and other nonwhites on the same basis that" }, { "docid": "5040836", "title": "", "text": "236-41 (4th Ed. 1971). Plaintiffs’ more serious contention is that MLS has failed to perform affirmative duties it bears both because of its role in the real estate market and because of the nature of its relationship with participating brokers. Plaintiffs are here at least on firmer ground, for it is conceded by MLS that several of the properties it listed were the subject of alleged acts of racial steering in the Wheatley Heights area. Nonetheless, the facts offered by plaintiffs to support this aspect of their claim are insufficient to hold MLS liable under Title VIII. Plaintiffs here argue for a two-pronged theory of vicarious liability under the Fair Housing Act. The first component of their argument proceeds on the notion that the quantum of control MLS exercises over participant brokers is adequate to hold MLS liable for discriminatory acts of these brokers under the doctrine of respondeat superior. Plaintiffs rely on a series of Title VIII cases which have held principals and employers liable for the racially discriminatory practices of their agents and employees. See Marr v. Rife, 503 F.2d 735 (6 Cir. 1974); United States v. Reddoch, P.H.E.O.H. Rptr. ¶ 13569 (S.D.Ala.), aff’d, 467 F.2d 897 (5 Cir. 1972); Moore v. Townsend, 525 F.2d 482 (7 Cir. 1975); Collins v. Spasojcevic, P.H.E.O.H. Rptr. ¶ 13654 (N.D.Ill.1974). See also United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972). Each of these cases addressed a situation in which there existed between the defendant and the person who had actively engaged in the discriminatory practice the kind of relationship that has traditionally supported vicarious liability. On the uncontroverted facts here presented, it is clear that participating brokers do not act on behalf, at the behest, or for the benefit of MLS. Such control as MLS does exercise is exercised not with respect to the sales activities of participants, but rather is directed at the terms upon which the services provided by MLS will be made available to qualified brokers. The second theory of vicarious liability offered by plaintiffs relies on language in United States v. Youritan, 370 F.Supp." }, { "docid": "8701560", "title": "", "text": "black and Mexican-American applicants are imputable to the defendants and constitute a discriminatory course of conduct, which satisfies the pattern or practice requirements of 42 U.S.C. § 3613. United States v. Reddoch, supra; United States v. West Peachtree Tenth Corp., supra; United States v. Alexander and Cloutier Realty Co., C.A.No.13805, supra (policy admissions). This is true both as to the direct instructions to discriminate, such as those given by Mrs. Boatwright to several employees, and as to statements and conduct which, while not specifically ordering discrimination, are reasonably calculated to cause subordinates to discriminate. 15. Even though specific acts of agents were in themselves violations of other sections of the Act (e. g. agents violated Section 3604(d) by telling black rental applicants that no apartments were available when one in fact was available), the paramount concern of the Court in a pattern or practice case of this kind must be the underlying violation of Section 3604(a) by the principal —failure to exercise sufficient control over agents, with the effect that housing was made unavailable because of race. Principals who provide an atmosphere in which agents may and do, easily and without supervision or control, make housing unavailable because of race engage in a pattern or practice of discrimination even though no specific instructions were given to agents to do so and even though management gives perfunctory instructions to “treat everyone alike” without any effective effort to insure that the instructions are carried out. 16. The “second alternative” of 42 U.S.C. § 3613 authorizes injunctive relief in favor of the government where there has been a denial of rights granted by the Act to any group of persons and where the Attorney General had determined that such denial raises an issue of general public importance. United States v. Reddoch, supra; United States v. Real Estate Development Corp., supra; United States v. Hunter, supra. 17. Injunctive relief is appropriate in this ease on the sole basis of defendants’ discriminatory treatment of blacks through their agents. Similarly, an injunction based on the extrajudicial admissions of a discriminatory policy and instructions to discriminate by" }, { "docid": "5040832", "title": "", "text": "participating brokers to be held accountable, under Title VIII, for their acts of racial steering. Plaintiffs argue from a number of fronts that MLS is liable, both directly and vicariously, for the alleged racially discriminatory activities of the other defendants in this action, who make use of MLS listings in conducting their businesses. For the rea sons which follow, this court holds that there is no genuine dispute as to any material fact and that defendant MLS is entitled to judgment dismissing the complaint against it. Rule 56, F.R.Civ.P. MLS claims no share of the commissions earned on sales of listed properties. Its substantial revenues — over $800,000 in fiscal year 1976-1977 — derive solely from initiation and listing fees, dues, and charges for extra copies of daily listings ordered by participants. As noted above, listings submitted to MLS remain the property of the listing brokers, and it is left to the listing broker to set the commission split for sales effected through the MLS system. Furthermore, the rules MLS has adopted with respect to the use of information disseminated by the service are generally concerned with preserving the rights of the parties involved — that is, seller, listing broker, and selling broker, or with making the services it offers more attractive to eligible brokers. Plaintiffs, however, insist that those provisions which relate to conduct of participating brokers indicate that MLS “controls” their selling practices. None of these provisions, however, is inconsistent with MLS’s contention that it functions as an information exchange. It is evident that without rules of this kind, the ability of MLS to achieve its professed objective — to provide an efficient medium for the marketing of residential properties listed with participating brokers — would be seriously impaired. Plaintiffs allege no facts which contradict the purposes set forth in the Preamble to the MLS “Rules and Regulations”: “Multiple Listing is meant to provide a means for Realtors to give maximum service to the buying and selling public, and through this cooperative effort to serve their community best. The Multiple Listing Service is not itself a selling organization," }, { "docid": "5040835", "title": "", "text": "alleged steering activities of the other defendants in this action. While it is true that the multiple listing concept is conceivably susceptible to abuses which may in some instances make it easier for unethical brokers to perpetuate or exploit segregated housing patterns, we think it equally true that the concept can be an effective tool for promoting integrated housing by providing a means of widely circulating home listings. Accordingly, plaintiffs’ attempt to predicate liability on an a priori showing of discriminatory impact really proceeds on little more than a sine qua non or “but for” theory of causation. “An action brought under statutes forbidding racial discrimination is fundamentally for the redress of a tort,” Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 517 F.2d 1141, 1143 (4 Cir. 1975), citing Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), and a mere showing that' an injury would not have occurred but for the conduct complained of is never alone a sufficient basis for liability in tort. See Prosser, Torts, § 41 at 236-41 (4th Ed. 1971). Plaintiffs’ more serious contention is that MLS has failed to perform affirmative duties it bears both because of its role in the real estate market and because of the nature of its relationship with participating brokers. Plaintiffs are here at least on firmer ground, for it is conceded by MLS that several of the properties it listed were the subject of alleged acts of racial steering in the Wheatley Heights area. Nonetheless, the facts offered by plaintiffs to support this aspect of their claim are insufficient to hold MLS liable under Title VIII. Plaintiffs here argue for a two-pronged theory of vicarious liability under the Fair Housing Act. The first component of their argument proceeds on the notion that the quantum of control MLS exercises over participant brokers is adequate to hold MLS liable for discriminatory acts of these brokers under the doctrine of respondeat superior. Plaintiffs rely on a series of Title VIII cases which have held principals and employers liable for the racially discriminatory practices of their agents and" }, { "docid": "19698078", "title": "", "text": "and also because the duty not to discriminate under Title VIII is nondelegable. While I have no real disagreement with plaintiff’s legal theories, I find that they simply are not applicable here. Contrary to the factual patterns involved in the case law cited by the plaintiff, there was absolutely no evidence adduced at trial showing that Mona Fox was a rental agent for the Church; on the contrary, she appears to be an independent contractor. She procured a rooming house license in her own name from the City of Columbus and thus was not running the house in the name of the Church. Nor did the Church have any control over her with regard to the rent she set or the persons to whom she would or would not rent. In fact, at one point the Church attempted to get one of their elderly members a room at the house but Mona Fox refused, stating she felt this individual too incapacitated. The Church under its agreement with her had no power or authority to insist on the rental. Moreover, Mona Fox in no way represented the Church nor was she authorized to do so. In United States v. Real Estate Development Corporation, 347 F.Supp. 776 (N.D.Miss.1972), the Court in holding a property owner responsible for the discriminatory act of its rental agent summed up the supporting case law: The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can rent in no other capacity. Their acts and statements, made within the scope of their agency, are attributable to the defendants, whose duty to comply with the law is non-delegable. (Emphasis supplied.) United States v. Real Estate Development Corporation, supra, at 785. This type of relationship and the resulting control of one over the other does not exist between defendants Fox and Neil Avenue Baptist Church. The only connection between them arises from the Church’s ownership of the property and its rental of it to Fox; the relationship between them is one of landlord and tenant, not principal and agent. Plaintiff" }, { "docid": "19698079", "title": "", "text": "on the rental. Moreover, Mona Fox in no way represented the Church nor was she authorized to do so. In United States v. Real Estate Development Corporation, 347 F.Supp. 776 (N.D.Miss.1972), the Court in holding a property owner responsible for the discriminatory act of its rental agent summed up the supporting case law: The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can rent in no other capacity. Their acts and statements, made within the scope of their agency, are attributable to the defendants, whose duty to comply with the law is non-delegable. (Emphasis supplied.) United States v. Real Estate Development Corporation, supra, at 785. This type of relationship and the resulting control of one over the other does not exist between defendants Fox and Neil Avenue Baptist Church. The only connection between them arises from the Church’s ownership of the property and its rental of it to Fox; the relationship between them is one of landlord and tenant, not principal and agent. Plaintiff has cited no case nor has this Court’s own research produced any which support the conclusion that mere ownership without knowledge, control, or responsibility is sufficient to hold one liable for the discriminatory acts of another. To do so would be tantamount to making one an absolute insurer in this regard. Despite the fact that “an examination of the Act, 42 U.S.C. §§ 3601-12, reveals a broad legislative plan to eliminate all traces of discrimination within the housing field,” Marr v. Rife, 503 F.2d 735, 740 (6th Cir. 1974), I decline to extend the concept of duty under the act in such a way as to make a property owner, by reason of ownership alone, an insurer of his property for purposes of Title VIII. The final question to be resolved herein concerns the damages owed the plaintiff by defendant Fox. The uncontradicted testimony of Ms. Walker established that she suffered out-of-pocket expenses totalling $308.00. Further Ms. Walker also testified — again this was uncontradicted — that she suffered emotional and mental anguish because of" }, { "docid": "22453014", "title": "", "text": "decision in General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982), requires us to reverse the finding of agency. In General Building, the Court held' that respondeat superior was not available where plaintiffs had presented no evidence that certain trade associations and construction employers controlled a union and a training committee. Here, however, as we have seen, plaintiffs presented evidence that the landlords dictated the qualifications for prospective tenants, and conditioned the realtor’s receipt of future apartment listings on its abiding by the landlords’ specifications. These facts also distinguish this ease from Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., 447 F.Supp. 838 (E.D.N.Y.1978), a case in which the District Court ruled that no agency relationship existed between brokers and a real estate multiple listing service. The Court held that a service that provided property listings to brokers was not responsible for the brokers’ racial steering because the brokers did not “act on behalf, at the behest, or for the benefit” of the listing service, and because the service did not control the sales of the brokers, but only conditioned its provision of listings to the brokers. Id. at 842. Unlike Wheatley Heights, the brokers in the instant case acted pursuant to the landlords’ directives to refer only acceptable tenants and the landlords benefited from the brokers’ service by renting their vacant apartments. Furthermore, the landlords not only conditioned the receipt of future apartment listings, but also required the brokers to perform various services, including screening applicants according to the landlords’ rental criteria, showing them available apartments, and shepherding them through the application process. Plaintiffs presented sufficient evidence regarding the existence of an agency relationship to take the issue to the jury. The landlords further argue that the brokers could not have been their agents because the brokers earned their commissions from prospective tenants, not from the landlords. The fact that the tenants paid the broker does not preclude a finding that the broker acted as the owner’s agent in renting the apartment. The District Court presented the question of agency to the" }, { "docid": "5040827", "title": "", "text": "MEMORANDUM AND ORDER NEAHER, District Judge. This is a class action brought to redress alleged violations of section 804 of the Fair Housing Act of 1968 (Title VIII), 42 U.S.C. § 3604; 42 U.S.C. §§ 1981 and 1982; and the thirteenth amendment. Jurisdiction is based on 42 U.S.C. § 3612 and 28 U.S.C. § 1343. Plaintiffs, the Wheatley Heights Neighborhood Coalition, an ad hoc group of white and black residents of the Wheatley Heights area of the Town of Babylon, New York, and individual homeowners in that area, assert that defendants, three .real estate brokerage firms and their employees, and the Multiple Listing Service of Long Island, Inc. (“MLS”), have engaged in acts of “racial steering,” acts which plaintiffs charge are unlawful and racially discriminatory. At the outset of this action, defendant MLS moved for summary judgment dismissing the complaint, claiming, in effect, that plaintiffs had failed to state a cause of action against it. MLS at that time argued that plaintiffs’ theory of liability, based essentially on the doctrine of respondeat superior, was unsupportable because MLS does not control the conduct of its participating brokers. By memorandum order, dated May 3, 1976, this court denied the MLS motion as premature, because it could not then be said that plaintiffs would be unable, through discovery, to adduce facts requiring the imposition of liability on MLS. At that stage in the litigation it was not clear whether or to what extent MLS controls or shares responsibility for the conduct of participating brokers. Plaintiffs now having had ample opportunity to conduct discovery, MLS has renewed its motion for summary judgment, asserting that plaintiffs have failed to develop a factual basis for their action against MLS. For purposes of this motion, MLS does not controvert any of the factual allegations set forth by plaintiffs in their opposing papers; it is the position of MLS that on the facts alleged it is entitled to judgment as a matter of law. MLS is a wholly-owned subsidiary of the Long Island Board of Realtors, Inc. (“LIBOR”), incorporated under section 402 of New York’s Business Corporation Law." }, { "docid": "23138283", "title": "", "text": "the doctrine of respondeat superior and because the duty to obey the law is non-delegable. United States v. Real Estate Development Corp., supra [D.C., 347 F.Supp. 776]; United States v. Reddoch, supra; Williamson v. Hampton Mgt. Co., 339 F.Supp. 1146 (N.D.Ill.1972); and United States v. Mitchell, 335 F.Supp. 1004, 1006 (N.D.Ga.1971). As the court stated in United States v. Real Estate Development Corp., supra, 347 F.Supp. at 785 (apartment case): The resident managers and managers of the defendants, as agents of the defendants, are authorized to represent the defendants and can rent in no other capacity. Their acts and statements, made within the scope of their agency, are attributable to the defendants, whose duty to comply with the law is non-delegable. United States v. Reddoch, supra, slip opinion at 28; Williamson v. Hampton Mgt. Co., 339 F.Supp. 1146 (N.D.Ill.1972).” 370 F.Supp. at 649. See also United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972). At trial, appellee Arntz testified that the salesmen at the Rife Agency worked on a commission basis, and that except for floor time — time spent at the agency — they selected their own working hours. He also testified that Rife did have certain controls over salesmen, though most rules established by Rife were due to the broker-salesman relationship. “These are the things that when you take the real estate license commission examination pretty much establish the results.” No contracts were signed by salesmen, for example, because their license was “through the broker.” Appellee Simmons’ testimony was similar to Arntz’ in that the only control which Rife exercised over the salesmen, other than that provided by law, was the requirement of spending time on the floor. We also note the following from appellee Rife’s testimony: “[Question] In what capacity are they [the salesmen] engaged in the sale of real estate of Douglas Rife? “[Answer] They list homes, make appointments, sell homes. They are real estate sales people. “Question: Are they under your general supervision? “Answer: Yes. “Question: Do you give your final approval on contracts or are you consulted in regard to various purchase" } ]

[ { "docid": "9715401", "title": "", "text": "Virginia. Burt testified that Riddick was in New Jersey on the day Badger died and that Riddick had told Burt that he had had a confrontation with Badger, that Badger was armed, and that he had taken the gun from Badger. Id. at 20a. Riddick did not testify. The jury found Riddick guilty of manslaughter and possession of a handgun without a permit. IV. Before a United States district court can entertain a state prisoner’s petition for a writ of habeas corpus pursuant to § 2254, the prisoner must exhaust state remedies. See 28 U.S.C.A. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The district court did not explicitly deal with the exhaustion issue, but proceeded to the merits. We are, however, satisfied that Riddick exhausted state remedies in this case. All of the issues he raised in the district court had been raised before the Appellate Division of the Superior Court of New Jersey as well as in his petition for certification to the Supreme Court of New Jersey. This is not a case in which the claims were raised before a state supreme court for the first time on a petition for discretionary review. See Castille v. Peoples, — U.S. -, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (raising a claim for the first and only time to the state's highest court on discretionary review does not satisfy the fair presentation requirement of the exhaustion doctrine). We have plenary review over Riddick’s contention that the district court erred in finding that his waiver of the Sixth Amendment right to counsel was knowing and voluntary. See Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985) (“ ‘voluntariness’ is a legal question requiring independent federal determination”). In reviewing the district court’s decision to dismiss, without an evidentiary hearing, Riddick’s claim that the prosecutor violated his Fourteenth Amendment equal protection rights by using peremptory challenges to jurors in a racially discriminatory manner, we must decide whether the record before the district court shows, on its face, that" } ]

[ { "docid": "9715402", "title": "", "text": "of New Jersey. This is not a case in which the claims were raised before a state supreme court for the first time on a petition for discretionary review. See Castille v. Peoples, — U.S. -, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (raising a claim for the first and only time to the state's highest court on discretionary review does not satisfy the fair presentation requirement of the exhaustion doctrine). We have plenary review over Riddick’s contention that the district court erred in finding that his waiver of the Sixth Amendment right to counsel was knowing and voluntary. See Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985) (“ ‘voluntariness’ is a legal question requiring independent federal determination”). In reviewing the district court’s decision to dismiss, without an evidentiary hearing, Riddick’s claim that the prosecutor violated his Fourteenth Amendment equal protection rights by using peremptory challenges to jurors in a racially discriminatory manner, we must decide whether the record before the district court shows, on its face, that the state trial judge fairly and adequately considered the matter and, after that consideration, that the trial judge’s finding that the prosecutor’s peremptory challenges were not racially motivated is fairly supported by the record. See 28 U.S.C.A. §§ 2254(a) & (d). V. Having already determined that probable cause for an appeal exists under Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), we proceed to analyze the merits of the two issues Riddick raises on this appeal. A. Riddick contends that he was denied counsel at a critical stage in the criminal proceedings against him in violation of the Sixth Amendment, as incorporated against the states by the Fourteenth Amendment. Specifically, he argues that the failure to inform him that he had been indicted for murder when the investigators questioned him in Virginia precluded him from making a knowing, voluntary and intelligent waiver of his Sixth Amendment right to counsel. He acknowledges that he was advised of his Fifth Amendment right to counsel before responding to custodial interrogation, but states that" }, { "docid": "9715398", "title": "", "text": "year custodial term, with a seven and one-half year period of parole disqualification, on the manslaughter charge and a concurrent four year custodial term on the weapons charge. He was also assessed a fine of $50.00. Riddick appealed these convictions to the Superior Court of New Jersey, Appellate Division. There he raised the several grounds for relief that were the subject of his habeas corpus action in the district court. The appellate division affirmed the trial court per curiam. Id. at 17a. Rid-dick then petitioned the Supreme Court of New Jersey for certification, again raising the issues he later presented to the district court. The Supreme Court of New Jersey denied certification. Id. at 25a. Riddick then brought an action for a writ of habeas corpus under § 2254 in federal district court. III. Riddick’s convictions arose out of a dispute over money with a person named Dewey Badger (Badger). In June of 1984, Badger was shot and left lying in a vacant lot in Jersey City, New Jersey. Badger later died from the wounds caused by the shooting. Before he died, Badger identified the person who shot him by the names “James” and “Gump.” Riddick’s nickname is Gump. After Riddick had been arrested for killing Badger in Suffolk, Virginia, and had waived extradition, two New Jersey investigators were sent to Virginia to return him to New Jersey. In Virginia, upon first seeing Riddick, these investigators greeted him with the name “Gump.” Riddick re sponded to this greeting and expressed confusion as to why he was arrested. The investigators then informed Riddick orally and in writing of his constitutional rights, in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and proceeded to question him about the homicide charge. Riddick responded by raising a claim of alibi, claiming that he did not even know Badger and saying that the accusation of murder was unjust. Riddick sought to suppress his statements but, after a suppression hearing, the New Jersey trial court ruled that they were admissible. At trial, the prosecutor put Riddick’s" }, { "docid": "6843425", "title": "", "text": "OPINION OF THE COURT STAPLETON, Circuit Judge. In 1990, a New Jersey jury convicted Lester Lewis, the Petitioner in this habeas proceeding, of two counts of first-degree attempted murder, two counts of second-degree aggravated assault, two counts of third-degree aggravated assault with a deadly weapon, and second-degree possession of a firearm with the purpose to use it unlawfully against another. Lewis was sentenced and thereafter exhausted his right to direct appeal in the New Jersey state courts. In 1994, Lewis’s first petition for a writ of habeas corpus to the United States District Court for the District of New Jersey was dismissed for failure to exhaust state remedies. Lewis then petitioned the New Jersey Superior Court for collateral relief. Among other things, Lewis alleged that the state court failed to honor his request that the jury be instructed that it was to draw no adverse inference from Lewis’s decision not to testify. The Superior Court denied the petition, finding that the claim should have been raised on direct appeal. The New Jersey Superior Court, Appellate Division, affirmed the judgment. It first concluded that Lewis was entitled to the requested instruction pursuant to Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), and that the instruction was not given. The court then noted that the issue had not been raised on direct appeal. It affirmed the denial of relief, however, on the ground that the failure to give the instruction “was not such as to be capable of producing an unjust result.” App. at 39. The court observed that Lewis did, in effect, testify at trial because he represented himself and the trial judge gave him wide latitude in presenting his version of events while examining other witnesses and during opening and summation. The court also noted that identity was not a significant issue in this case since Lewis was well known to his victims, who had identified him as their attacker. The New Jersey Supreme Court denied the Appellant’s petition for certification. In 1999, Lewis again unsuccessfully petitioned the United States District Court for the District" }, { "docid": "17858992", "title": "", "text": "to seven years to be served at the New Jersey State Prison. On Gibson’s appeal from the convictions and sentences, the New Jersey Superior Court, Appellate Division, affirmed all but one of the convictions, vacated the conviction for breaking and entering with intent to carnally abuse, required the prison terms on the other two breaking and entering convictions to be served concurrently with the indeterminate term sentences, held that the private lewdness count merged for sentencing with the counts charging impairing the morals of a minor and assault with intent to commit carnal abuse, and modified the length of the indeterminate terms. State v. Gibson, 150 N.J. Super. 351, 375 A.2d 1191 (App.Div.1977). The New Jersey Supreme Court denied certification on July 12, 1977. State v. Gibson, 75 N.J. 20, 379 A.2d 251 (1977). Gibson filed a petition for post-conviction relief seeking to withdraw his guilty pleas on the ground that he was not guilty of one of the crimes to which he pled guilty but had entered the plea on counsel’s instructions. He also claimed that the consecutive sentences imposed were improper. The Law Division held that the sentencing contention had been resolved on direct appeal and interpreted Gibson’s remaining claim to constitute a claim of ineffective assistance of counsel, which it denied. The New Jersey Superior Court, Appellate Division, affirmed the denial of post-conviction relief. Gibson then filed his first petition for a writ of habeas corpus in federal court, asserting four claims. The district court denied Gibson’s petition on the ground that he had failed to exhaust available state remedies both because he had not presented three of the claims in his request for post-conviction relief to any state court and because he did not appeal the Appellate Division’s adverse decision to the state Supreme Court. Gibson then filed a second state court petition for post-conviction relief, this time alleging the same four claims he had raised in his federal habeas petition. The petition was denied by the Superior Court, Law Division. Gibson’s request for appointment of counsel in order to appeal the denial of post-conviction relief" }, { "docid": "22645196", "title": "", "text": "Pennsylvania. At the Department’s request, the Superior Court issued a bench warrant for respondent’s arrest. The warrant was lodged as a detainer with the appropriate corrections officials in Pennsylvania. Beginning on April 13, 1979, respondent sent a series of letters to New Jersey officials requesting final disposition of the probation-violation charge. The State of New Jersey failed to bring respondent “to trial” on the probation-violation charge within 180 days after Art. Ill was invoked. On March 6, 1980, respondent filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania seeking dismissal of the probation-violation charge on the basis of the State’s noncompliance with Art. III. The case was transferred, pursuant to 28 U. S. C. § 1406(a), to the United States District Court for the District of New Jersey. App. to Pet. for Cert, in No. 84-776, p. 101. That court stayed respondent’s federal action pending exhaustion of state-court remedies. Id., at 81. Respondent then petitioned for a writ of habeas corpus in New Jersey Superior Court. The Superior Court denied respondent’s motion to dismiss the probation-violation charge, ruled that respondent’s Pennsylvania convictions constituted a probation violation, and ordered respondent to serve the two consecutive 18-month sentences on his New Jersey convictions, with credit for 249 days respondent had served in 1976 and 1977. The Appellate Division affirmed the trial court’s judgment, id., at 44, and the New Jersey Supreme Court denied certification. Id., at 43. Respondent then returned to the United States District Court for the District of New Jersey. On March 21, 1983, the District Court granted the petition for a writ of habeas corpus, vacated respondent’s probation revocation, and or dered his release from state custody. 558 F. Supp. 641 (1983). Petitioner Philip S. Carchman, the Mercer County prosecutor, took an appeal to the United States Court of Appeals for the Third Circuit. Petitioner State of New Jersey, Department of Corrections, at this point sought to intervene because the District Court’s decision invalidated its policy that parole- and probation-violation detainers do not fall within Art. Ill" }, { "docid": "9715397", "title": "", "text": "was without racial basis. The record supports this finding. Therefore, we hold that the district court did not err in refusing Riddick an evidentiary hearing. The decision of the district court will be affirmed. II. Riddick is a prisoner presently incarcerated at the Southern State Correctional Facility in Delmont, New Jersey. He was indicted by a Hudson County, New Jersey grand jury on November 9, 1984 for murder, possession of a weapon for an unlawful purpose, and unlawful possession of a handgun. On November 1, 1984, he was arrested in the State of Virginia on a warrant issued as a result of the alleged New Jersey crimes. There he signed a waiver of extradition on a form that stated he had been charged with murder in New Jersey. See Appendix of Appellant (App.) at 2a. On December 14, 1984, Riddick entered a plea of not guilty to all counts of the indictment. After a jury trial, he was convicted of voluntary manslaughter and unlawful possession of a handgun. He was sentenced to an extended fifteen year custodial term, with a seven and one-half year period of parole disqualification, on the manslaughter charge and a concurrent four year custodial term on the weapons charge. He was also assessed a fine of $50.00. Riddick appealed these convictions to the Superior Court of New Jersey, Appellate Division. There he raised the several grounds for relief that were the subject of his habeas corpus action in the district court. The appellate division affirmed the trial court per curiam. Id. at 17a. Rid-dick then petitioned the Supreme Court of New Jersey for certification, again raising the issues he later presented to the district court. The Supreme Court of New Jersey denied certification. Id. at 25a. Riddick then brought an action for a writ of habeas corpus under § 2254 in federal district court. III. Riddick’s convictions arose out of a dispute over money with a person named Dewey Badger (Badger). In June of 1984, Badger was shot and left lying in a vacant lot in Jersey City, New Jersey. Badger later died from the wounds" }, { "docid": "3202488", "title": "", "text": "GANEY, Circuit Judge. This is an appeal from an order dismissing a petition for a writ of habeas corpus. Appellant, William G. Thompson, contends that he was deprived of his right to a fair trial under the Federal Constitution because he was unduly prejudiced by (1) the introduction of incorrect anatomical measurements by the State at his trial, and (2) the instructions of the trial court concerning aiding and abetting. Thompson is being confined by the State of New Jersey as a result of his having been convicted of causing a miscarriage by instrument resulting in the death of the victim in violation of N.J.S. 2A:87-1, N.J.S.A. His conviction was reversed by the Superior Court of New Jersey, Appellate Division, on the ground that the trial court’s charge on aiding and abetting was fundamental error. That Court awarded him a new trial; one judge dissented. New Jersey v. Thompson, 56 N.J.Super. 438, 153 A.2d 364 (1959). On appeal by the State, the Supreme Court of New Jersey, in a per curiam decision, reinstated the conviction for the reasons expressed in the dissenting opinion of the Superior Court, Appellate Division, 31 N.J. 540, 158 A.2d 333 (1960). Thompson’s petition for rehearing was denied. Thereafter, without pursuing any of the collateral remedies that were available to him in the Courts of New Jersey, he filed a petition and supplemental petition for habeas corpus in the United States District Court for the District of New Jersey. That Court denied the petitions on their merits. Pursuant to authority granted by 28 U.S.C.A. § 2253, the Chief Judge of this Circuit issued a certificate of probable cause. At the outset, the respondent contends that the petition, as supplemented, should have been denied on the ground that Thompson has not exhausted the remedies available to him in the State Courts as required by § 2254 of the Judicial Code. It is sometimes difficult, as here, to determine whether a petitioner has exhausted the remedies available to him in the State Courts. Although the Supreme Court of New Jersey has not expressly passed on his first contention," }, { "docid": "861796", "title": "", "text": "an evidentiary hearing to demonstrate “prejudice.” At the conclusion of the hearing on March 22, 1973, the court ruled that “. . . no actual prejudice [was] caused by the delay in bringing the matter to trial . . .”, and denied Moore’s motion to dismiss the two indictments. Moore sought leave to appeal this order, first to the Appellate Division, and then to the New Jersey Supreme Court. Both applications for leave to appeal were denied; by the Appellate Division on May 10, 1973, and by the New Jersey Supreme Court on June 13, 1973. It was then (on June 19, 1973) that Moore filed his petition for a Writ of Habeas Corpus in the district court asserting denial of the right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments. He sought discharge from custody and a permanent injunction against all state proceedings with respect to Indictment Nos. 1004 — 71 (atrocious assault and battery), and 1005-71 (threat to kill). On June 21, 1974, the district court granted Moore’s petition for a Writ of Habeas Corpus and ordered that the state criminal proceedings be permanently stayed. This appeal followed. II. For state prisoners, federal habe-as corpus is substantially a post-convietion remedy, Peyton v. Rowe, 391 U.S. 54, 60, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1967); see 28 U.S.C. § 2254. Neverthe less, jurisdiction to issue the writ exists in the federal courts before a judgment is rendered in a state criminal proceeding. See 28 U.S.C. § 2241. In discussing exhaustion in the habeas corpus context, few cases discern between pre-trial and post-trial situations. With respect to state prisoners, it is only in the post-trial setting that exhaustion has been mandated by statute, 28 U.S.C. § 2254(b). 28 U.S.C. § 2241(c)(3), which empowers district courts to issue the writ before a judgment is rendered in a criminal proceeding, makes no reference to exhaustion. In this area, an exhaustion requirement has developed through decisional law, applying principles of federalism. The distinction between § 2241, pre-trial exhaustion, and § 2254, post-trial exhaustion, is recognized and discussed in Justice Rehnquist’s" }, { "docid": "23371396", "title": "", "text": "S.Ct. 1728, 144 L.Ed.2d 1 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). The Supreme Court’s decision in Baldwin suggests that to be fairly presented in the state courts, a claim must have been raised throughout the state appeals process, not just at the tail end in a prayer for discretionary review. As the Supreme Court said in Baldwin: Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. To provide the state with the necessary “opportunity,” the prisoner must “fairly present” his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Id. at 1349 (internal quotation marks and citations omitted) (emphasis added). Even before Baldwin, we had held that to exhaust a habeas claim, a petitioner must properly raise it on every level of direct review. See Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir.1992) (“The remainder of the petition was properly dismissed because five of the remaining six claims either were not raised on every level of direct review, or were raised for the first time on habeas. As stated above, only claim number twelve ... was raised on every level of direct review.”). Academic treatment accords: The leading treatise on federal habeas corpus states, “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998) (emphasis added). “Whether a claim is exhausted through a direct appellate procedure, a postconviction procedure, or both, the claim should be raised at all appellate stages afforded under state law as of right by that procedure.” Id. (citing Castille v." }, { "docid": "23371397", "title": "", "text": "a habeas claim, a petitioner must properly raise it on every level of direct review. See Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir.1992) (“The remainder of the petition was properly dismissed because five of the remaining six claims either were not raised on every level of direct review, or were raised for the first time on habeas. As stated above, only claim number twelve ... was raised on every level of direct review.”). Academic treatment accords: The leading treatise on federal habeas corpus states, “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998) (emphasis added). “Whether a claim is exhausted through a direct appellate procedure, a postconviction procedure, or both, the claim should be raised at all appellate stages afforded under state law as of right by that procedure.” Id. (citing Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989)). With this general principle in mind, we turn to the United States Supreme Court case, Castille v. Peoples, that in our view controls decision on the government’s argument that Casey did not fairly present his federal constitutional claims in state court before he filed a habeas petition in federal district court. In 1989, a unanimous Supreme Court held in Castille that a claim remains unexhausted for lack of “fair presentation” where, as here, it was raised for the first time on discretionary review to the state’s highest court and denied without comment. 489 U.S. at 351, 109 S.Ct. 1056. In Castille, after the Superior Court of Pennsylvania affirmed, on direct appeal, a defendant’s conviction, he raised federal claims for the first time in two “petitions for allocatur” to the Supreme Court of Pennsylvania. In Pennsylvania, an allocatur petition is a request for a certiorari-like form of discretionary review by the highest state court. The Supreme Court in Castille granted certiorari to decide “whether" }, { "docid": "5737450", "title": "", "text": "see whether the given case may possibly fall within the general criteria pursuant to which the Court of Criminal Appeals exercises its discretion, would impose an unnecessary and heavy burden on the federal courts. Without hesitation, therefore, we hold that a Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state’s highest court through collateral review provided by state habeas procedures. See Carter v. Estelle, 677 F.2d 427, 442 n. 10 (5th Cir.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983); but cf. Harris v. Beto, 280 F.Supp. 200 (N.D.Tex.1967) (because of availability of fact-finding procedures in lower courts, as required by post-conviction procedures available under article 11.07, habeas corpus filed originally in Texas Court of Criminal Appeals is not exhaustive of post-conviction remedies). Accordingly, the district court’s dismissal of the instant petition for failure to exhaust state remedies is AFFIRMED. . The jurisdiction of the Florida Supreme Court has been modified by an amendment to the Florida Constitution since our decisions in WilHams and Pressley, and now more clearly conforms to the Texas statutes. See Florida Rule of Appellate Procedure 9.030. . In so holding, we do not foreclose other avenues by which state remedies may be exhausted. A petitioner might request out-of-time discretionary review by the Court of Criminal Appeals or he might move the Court of Appeals to withdraw and then reenter its mandate, thereby enabling an in-time petition for discretionary review with the Court of Criminal Appeals. See Pressley v. Wainwright, 493 F.2d 894, 895-96 (5th Cir.1974) (neither alternative is specifically excluded by Texas statutes or rules of court). But see Carter v. Estelle, 677 F.2d 427, 443 (5th Cir.1982) (“the use of extraordinary writs or other abnormal or seldom-used avenues of relief is generally not considered a proper method of exhaustion when normal methods are available”), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983)." }, { "docid": "9715400", "title": "", "text": "statements into evidence as part of his case-in-chief. During jury selection in October 1985, Riddick, who is black, objected to the prosecutor’s use of a peremptory challenge to excuse Sheila Reynolds (Reynolds), a black secretary for the Jersey City Board of Education. Riddick claimed that she was the third black juror excused by the prosecutor. The prosecutor responded to Riddick’s objection by noting that he had pronounced the jury satisfactory several times when blacks were on the venire. The record confirms this. See App. at 262a. The prosecutor went on to specifically explain that he excused Reynolds because he had often been involved in investigations of the Jersey City Board of Education while she was employed there and he believed she recognized him. Id. With this explanation, the trial court rejected defense counsel’s claim that the state was using its peremptory challenges in a racially discriminatory way. Id. At trial, the state introduced the testimony of Riddick’s friend, John Burt (Burt), in addition to the statement Riddick had given to the New Jersey investigators in Virginia. Burt testified that Riddick was in New Jersey on the day Badger died and that Riddick had told Burt that he had had a confrontation with Badger, that Badger was armed, and that he had taken the gun from Badger. Id. at 20a. Riddick did not testify. The jury found Riddick guilty of manslaughter and possession of a handgun without a permit. IV. Before a United States district court can entertain a state prisoner’s petition for a writ of habeas corpus pursuant to § 2254, the prisoner must exhaust state remedies. See 28 U.S.C.A. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The district court did not explicitly deal with the exhaustion issue, but proceeded to the merits. We are, however, satisfied that Riddick exhausted state remedies in this case. All of the issues he raised in the district court had been raised before the Appellate Division of the Superior Court of New Jersey as well as in his petition for certification to the Supreme Court" }, { "docid": "15578340", "title": "", "text": "Subsequently, Scavullo identified one of Toul-son’s cohorts in a line-up. Hours later police arrested Toulson. Toulson was charged with five criminal counts in Atlantic County, New Jersey. Following a jury trial, Toulson was convicted of all charges and sentenced to forty-five years, with a twenty-year period of parole ineligibility. On appeal, the New Jersey Superior Court, Appellate Division, affirmed Toul-son’s convictions and sentence. The New Jersey Supreme Court denied Toulson’s petition for certification. Subsequently, the sentencing judge denied Toulson’s motion to reconsider the sentence. Toulson’s motion for post-conviction relief in state trial court was denied. Toulson then sought habeas corpus relief in the United States District Court for the District of New Jersey contending: (1) the admission at trial of statements made without assistance of counsel violated the Sixth and Fourteenth Amendments; (2) the admission at trial of certain statements violated his Miranda rights; (3) the trial court’s failure to give limiting instructions regarding Toulson’s statements constituted plain error and prejudiced the trial’s outcome; (4) the forty-five-year sentence with twenty-year parole disqualifier was “manifestly excessive”; and (5) the judge’s sentence was based on facts neither in the record nor in the pre-sentence report. Toulson had advanced each of these grounds before the Appellate Division but only grounds four and five on his petition to the New Jersey Supreme Court. The district court denied habeas relief on Toulson’s conviction, but remanded to the state trial court for resentencing after finding the sentence relied on facts not in the record. 792 F.Supp. 352. The State now appeals. II. The district court had jurisdiction over this matter under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. The question before us is whether petitioner exhausted state remedies in accordance with 28 U.S.C. § 2254(b). Our review is plenary. Ross v. Petsock, 868 F.2d 639, 640 (3d Cir.1989). III. A. The district court found Toulson failed to satisfy exhaustion requirements on grounds one, two, and three of the habeas petition because although presented to the Appellate Division, they were not presented to the New Jersey Supreme Court on the" }, { "docid": "11418129", "title": "", "text": "New Jersey, Appellate Division, which affirmed the trial court. The Supreme Court of New Jersey denied Burns’s petition for certification. Subsequently, Bums filed a pro se petition for post-conviction relief in the Law Division of the Superior Court. This petition was denied, but the Appellate Division reversed and remanded with an order for the appointment of counsel. On May 3, 1993, the Law Division denied Burns’s petition for post-conviction relief. Burns appealed, and the Appellate Division once again affirmed his conviction and sentence. On June 29, 1995, Burns filed a petition for certification with the Supreme Court of New Jersey. On September 21, 1995, the Supreme Court denied Burns’s petition. Burns’s petition for a writ of habeas corpus pursuant to § 2254, and accompanying application to proceed in forma pauperis, were received by the Clerk of this court on April 28, 1997. On May 5, 1997, Burns’s application to proceed in forma pauperis was approved and the Clerk duly filed his § 2254 petition as of that date. II. Discussion The Anti-Terrorism and Effective Death Penalty Act of 1996, which was signed by the President on April 24, 1996, amended the habeas corpus statute to include a limitations period. Persons in custody pursuant to the judgment of a State court are now required to file any petition for habeas relief in federal court within one year of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by • such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise" }, { "docid": "22713489", "title": "", "text": "Chief Justice Rehnquist delivered the opinion of the Court. Federal Rule of Appellate Procedure 23(c) provides that, when the Government appeals a decision granting a writ of habeas corpus, the habeas petitioner shall be released from custody “unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.” Federal Rule of Appellate Procedure 23(d) states that initial orders issued pursuant to Rule 23(c) shall “govern review in the court of appeals and in the Supreme Court unless for special reasons shown . . . the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.” In this case, we are asked to decide what factors these provisions allow a court to consider in determining whether to release a state prisoner pending appeal of a district court order granting habeas relief. In January 1981, respondent Dana Braunskill was convicted in the Superior Court of New Jersey, Law Division, of sexual assault and unlawful possession of a weapon, in violation of N. J. Stat. Ann. §§2C:14-2, 2C:39-5(d) (West 1982 and Supp. 1986-1987), and was sentenced to eight years’ imprisonment. The Appellate Division of the Superior Court affirmed the convictions, and the New Jersey Supreme Court denied review. Respondent then, in 1985, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. Finding that respondent’s Sixth Amendment rights had been violated at his trial, the District Court granted respondent’s petition and ordered that “a writ of habeas corpus shall issue unless within 30 days the State of New Jersey shall afford [respondent] a new trial.” 629 F. Supp. 511, 526 (1986). Petitioners subsequently moved the District Court to stay its order pending appeal. Relying on Carter v. Rafferty, 781 F. 2d 993, 997 (CA3 1986), the District Court determined that it could grant petitioners’ request only if they demonstrated that there was risk that respondent would not appear for subsequent proceedings. The court found that petitioners had" }, { "docid": "7875245", "title": "", "text": "OPINION OF THE COURT SLOVITER, Circuit Judge. This appeal raises the issue whether the statute of limitations applicable to a habe-as petition should be equitably tolled where a prisoner relies on the erroneous advice of counsel as to when his petition is due. We join the other courts of appeals that have addressed this issue and hold that in these circumstances equitable tolling is not available. I. BACKGROUND In 1993, Appellant Wade Johnson was convicted following a jury trial in New Jersey state court of murder and related offenses in connection with a drug-related shooting and was sentenced to life in prison. The New Jersey Superior Court, Appellate Division, affirmed his conviction and sentence. The New Jersey Supreme Court denied Johnson’s petition for certification on May 23, 1996. On April 1, 1997, Johnson filed a petition for post-conviction relief in state court, which was denied. The New Jersey Superior Court affirmed the denial of relief and the New Jersey Supreme Court denied Johnson’s petition for certification on March 30, 1999. Johnson’s counsel notified him by letter that he had one year from this date to file a habeas petition in federal court. This information was erroneous. On March 28, 2000, Johnson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Jersey. The State moved to dismiss the petition because it was filed beyond the one-year time limitation provided in 28 U.S.C. § 2244(d)(1). The District Court found Johnson’s habeas petition to be untimely and granted the motion to dismiss. It rejected Johnson’s claim that the statute of limitations should be equitably tolled because counsel incorrectly told him when his habeas petition was due. We granted Johnson’s application for a certificate of appealability to address the following question: “May a miscalculation of the statute of limitations by petitioner’s attorney be grounds for equitable tolling of the statute of limitations provided in 28 U.S.C. § 2244(d)(1)?” II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. This court" }, { "docid": "9715394", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. I. Appellant, James Riddick (Riddick), appeals an order of the United States District Court for the District of New Jersey denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C.A. § 2254 (West 1977). The petition sought a writ directed to appellees, Robert Edmiston (Ed-miston), Superintendent of the New Jersey State Prison in which Riddick is held, and the Attorney General of New Jersey. By order dated August 10, 1989, a motions panel of this Court granted Riddick’s motion for a certificate of probable cause. The case is now ready for decision, following submission on the merits on December 14, 1989. Riddick raises two issues. He contends first that the district court erred in finding that he had knowingly and intelligently waived his Sixth Amendment right to counsel when two investigators from the Hudson County, New Jersey prosecutor’s office gave him Fifth Amendment Miranda warnings without telling him that the State of New Jersey had already indicted him for murder. Second, Riddick argues that the district court erred in denying his equal protection claim based on the New Jersey prosecutor’s alleged racially discriminatory use of peremptory challenges contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), the United States Supreme Court concluded that there is no analytical distinction between the validity of a Fifth Amendment waiver and a Sixth Amendment one. Several of our sister courts of appeals have also rejected Riddick’s argument that a person cannot knowingly and intelligently waive his post-indictment Sixth Amendment right to counsel unless he is advised of the indictment beforehand. However, for support, Riddick cites a line of decisions in the Court of Appeals for the Second Circuit illustrated by United States v. Mohabir, 624 F.2d 1140, 1145-53 (2d Cir.1980), Carvey v. LeFevre, 611 F.2d 19, 21-22 (2d Cir.1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1858, 64 L.Ed.2d 276 (1980), and United States v. Satterfield, 558 F.2d 655 (2d Cir.1976), where the" }, { "docid": "17858993", "title": "", "text": "claimed that the consecutive sentences imposed were improper. The Law Division held that the sentencing contention had been resolved on direct appeal and interpreted Gibson’s remaining claim to constitute a claim of ineffective assistance of counsel, which it denied. The New Jersey Superior Court, Appellate Division, affirmed the denial of post-conviction relief. Gibson then filed his first petition for a writ of habeas corpus in federal court, asserting four claims. The district court denied Gibson’s petition on the ground that he had failed to exhaust available state remedies both because he had not presented three of the claims in his request for post-conviction relief to any state court and because he did not appeal the Appellate Division’s adverse decision to the state Supreme Court. Gibson then filed a second state court petition for post-conviction relief, this time alleging the same four claims he had raised in his federal habeas petition. The petition was denied by the Superior Court, Law Division. Gibson’s request for appointment of counsel in order to appeal the denial of post-conviction relief was denied by that court, and he did not file an appeal. Gibson then filed, his second petition for a writ of habeas corpus in federal court. Gibson asserted the same four grounds for relief he raised in his earlier petition: (1) he was subject to a suggestive lineup; (2) his two remaining convictions for breaking and entering should have been merged with his sex crime convictions; (3) he did not receive adequate Miranda warnings; and (4) ineffective assistance of counsel. He also included a previously unarticulated claim that counsel failed to protect his juvenile status. The district court denied the petition on the ground that Gibson had failed to exhaust his state remedies because he had not appealed the denial of his second motion for post-conviction relief and because he had never raised in a state court the ineffective assistance of counsel claim with respect to his juvenile status. Gibson appeals from the district court’s order. Discussion A state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal" }, { "docid": "11926767", "title": "", "text": "case does'not justify invoking the doctrine of Mapp v. Ohio * * *. Here the conviction was not predicated upon unlawfully seized evidence. The crucial exhibits— defendant’s knife and the victim’s wrist watch — were taken from the defendant incident to a valid arrest. The wallet, check and dollar bill found on the floor of the room on Mulberry Street were property belonging to the complaining witness. The police did not make an exploratory search of the premises. There is a complete absence of any bad faith or indifference to constitutional rights. A crime had been committed and the law enforcement officers were in fresh pursuit of the criminal. Mapp v. Ohio, supra, is inapplicable.” The Appellate Division affirmed petitioner’s conviction on January 25, 1963, and he thereafter sought relief from the New Jersey Supreme Court by a “Petition for Writ of Habeas Corpus” which the Supreme Court, on April 1,1963, treated as a peti tion for certification to the Appellate Division and denied for lack of merit. Raising the same questions here as in his appeals, petitioner has fully complied with the exhaustion of State remedies requirement of 28 U.S.C. § 2254. He did not have to petition the United States Supreme Court for certiorari after the affirmance by the New Jersey Supreme Court. Fay v. Noia (1963) 372 U.S. 391, 435-438, 83 S.Ct. 822, 9 D.Ed.2d 837. Nor did petitioner have to exhaust any other available New Jersey remedies, since he had fully pursued one course of State appellate review on these five grounds. Brown v. Allen (1953) 344 U.S. 443, 447-450, 73 S.Ct. 397, 97 L.Ed. 469. The primary question posed by the pending application for a writ of habeas corpus is whether the admission in evidence, upon the petitioner’s trial, of the articles of personal property found by the municipal police in the room in which the petitioner resided violated petitioner’s Federal constitutional rights under the doctrine of Mapp v. Ohio, supra. A second and subordinate question is presented in this connection: whether the failure of petitioner’s counsel to object to the admission of these exhibits" }, { "docid": "9944941", "title": "", "text": "parole ineligibility. Johnson pursued a timely direct appeal which challenged the voluntariness of his plea and the effectiveness of trial counsel, but which did not raise the claim that he was misinformed about his death eligibility. Instead, he contended that his trial counsel did not inform him of the thirty-year parole ineligibility. On November 29, 1984, the New Jersey Superior Court Appellate Division affirmed Johnson’s conviction and sentence. He did not seek discretionary review by the New Jersey Supreme Court. In 1987, Johnson filed a pro se petition for post conviction relief (PCR), which raised issues of the effectiveness of counsel and the voluntariness of his plea, and asserted that the sentencing proceedings were improperly conducted. This (first) PCR petition also failed to raise the death-eligibility mistake as a basis for relief. The petition was denied by the trial court and the Appellate Division affirmed. Johnson then sought certification from the New Jersey Supreme Court, where for the first time, he claimed that it had been error for the trial court to accept his plea because he had been misinformed about his death penalty eligibility for the felony murder count. The New Jersey Supreme Court denied certification in September 1989. Johnson then filed a pro se petition for a writ of habeas- corpus in the United States District Court for the District of New Jersey, which was dismissed without prejudice in February 1991 because it was a “mixed” petition, containing both exhausted and unexhausted claims. Returning to state court, Johnson filed a second PCR application in August 1991, in which he explicitly raised the death-eligibility issue as well as the unexhausted issue that he was suffering from Post Traumatic Stress Disorder at the time of the crime and his plea. The trial court denied his petition as untimely under Rule 3:22-12, which requires a PCR petition challenging a sentence to be filed within five years after the sentence is imposed. In June 1994, the Appellate Division affirmed and the New Jersey Supreme Court denied certification. Johnson, still proceeding pro se, then sought federal review of his state court conviction pursuant" } ]

[ { "docid": "14330930", "title": "", "text": "PER CURIAM. Action against the United States by the natural mother of a soldier to recover the $10,000.00 payment under the Servicemen’s Indemnity Act of 1951, Public Law 23, 82nd Congress, Chapter 39, 1st Session, 38 U.S.C.A. § 851 et seq., and which amount the Veterans Administration had awarded to the soldier’s aunt and uncle as persons standing in the relationship of parents. As a claim seeking judgment for the money, the District Court was right in its order of dismissal. Acker v. United States, 5 Cir., 226 F.2d 575. The assertion, now made on the appeal, that it was likewise an effort to review the correctness of the Administrator’s action under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., fares no better since Section 10, 5 U.S.C.A. § 1009, specifically excepts administrative actions when the “(1) statutes preclude judicial review * * While the Congressional intention to preclude judicial review of administrative action must be clearly and positively reflected, Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, cf. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, and Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107, that standard is met here both by the intrinsic nature of this as an act of pure gratuity from the sovereign’s grace, Acker v. United States, supra, and the categorical declaration that, except for certain specified matters for which a judicial remedy is created, the Administrator’s decision on all questions of law or fact concerning a claim for benefits or payments under any act administered by the Veterans Administration shall be final, conclusive and beyond the power of any court to review. 38 U.S.C.A. § 11a-2, Brasier v. United States, 8 Cir., 223 F.2d 762, and see Federal Power Commission v. Colorado Interstate Gas Company, 348 U.S. 492, 499, 500, 75 S.Ct. 467, 99 L.Ed. 583, 592, 593. Affirmed." } ]

[ { "docid": "11202512", "title": "", "text": "and with respect to all questions of law and fact, and not subject to review * * * by any court by mandamus or otherwise * * It follows that the dismissal of the complaint for want of jurisdiction was without error. At least since United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011 and Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561, it has been well settled that, when the government creates the right to assert a claim against it, it need not provide for a judicial remedy. That applies aptly to allowances to federal employees under this statute which are grants which Congress could make to beneficiaries who would be determined in whatever way it saw fit to provide. Calderon v. Tobin, 88 U.S.App.D.C. 134, 187 F.2d 514, certiorari denied 341 U.S. 935, 71 S.Ct. 854, 95 L.Ed. 1363; Hancock v. Mitchell, 3 Cir., 231 F.2d 652. It saw fit, without creating a right to sue the government' or to court review of agency action, to provide for the allowance of compensation benefits promptly to those employees of the government which a specially constituted agency determined were within the statutory category. Dahn v. Davis, 258 U.S. 421, 431, 42 S.Ct. 320, 66 L.Ed. 696. Though it may be informal, agency action which amounts to a genuine, fair consideration of a claim for benefits and not merely an arbitrary flouting of it, satisfies constitutional requirements and precludes further court review. The appellant appeared by her attorney at the hearing before the Appeals Board. Its decision and order as filed contains a comprehensive statement of the facts and of its plausible reasons for the affirmance of the denial of the claim. By no stretch can it be fairly said that its action was arbitrary or capricious. Since the court was without jurisdiction over the subject matter, we will not stop to consider any question of improper venue due to lack of indispensable parties. Affirmed." }, { "docid": "22799720", "title": "", "text": "is well established that without specific statutory authority, an individual has no right of action against the United States in the courts even though the statute creates rights in the individual against the United States. Congress may create rights without providing a remedy in the courts. Stark v. Wickard, 321 U.S. 288, 306, 64 S.Ct. 559, 88 L.Ed. 733; Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434; United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011. It is for Congress alone to say how the rights which it creates shall be enforced, and when one remedy is specified, it normally excludes another. Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L. Ed. 61. It may withhold all remedy or it may provide an administrative remedy only and make it exclusive. Dismuke v. United States, 297 U.S. 167, 172, 56 5. Ct. 400, 80 L.Ed. 561. In the Christensen Case, supra [207 F.2d 758], the statute authorized actions on National Service Life Insurance Policies in cases where there had been a disagreement as to a claim. We held that in such cases, “ * * * a disagreement is jurisdictional and a valid judgment may not be obtained without such disagreement.” We therefore hold that the district court was without jurisdiction to consider the merits of the claim or to order the Secretary to hold the hearing requested. Hodges contends that the regulation which requires a request for a hearing to be filed within six months after the mailing of the notice of a decision is contrary to the express provisions of the statute. We agree with this contention. 42 U.S.C.A. § 405(a) provides: “(a) The Administrator shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and" }, { "docid": "23236058", "title": "", "text": "money from the United States, it may “provide an administrative remedy and make it exclusive.” Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 403, 80 L.Ed. 561 (1936). Accord, United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 465, 63 L.Ed. 1011 (1919). That is what Congress did in § 8128(b). It is within the legislative power. Blanc v. United States, 244 F.2d 708 (2d Cir.1957); Hancock v. Mitchell, 231 F.2d 652 (3d Cir.1956); Calderon v. Tobin, 187 F.2d 514 (D.C.Cir.1951). Any argument that there is constitutional-claim exception to statutes like § 8128(b) cannot be traced to doubts about the power of Congress to restrict the jurisdiction of district courts — for until 1875 the inferior courts lacked any general federal-question jurisdiction, and until 1980 the federal-question jurisdiction was qualified by an amount-in-controversy requirement. No one thinks the Judiciary Act of 1789 a colossal violation of Article III on this account. Sovereign immunity, too, limits judicial competence; what role judges are to play is entirely in the hands of Congress, see FDIC v. Meyer, — U.S. -, -, 114 S.Ct. 996, 1004-06, 127 L.Ed.2d 308 (1994); the obligation to respect legislative decisions is not diminished by the constitutional basis of the claim (Meyer and many other sovereign-immunity cases deal with claims arising under the Constitution); and § 8128(b) invokes that immunity by restricting grants of judicial power that appear elsewhere in the United States Code. The proposition that a law making an administrative decision final can coexist with some judicial role has its provenance in Johnson v. Robison, 415 U.S. 361, 366-74, 94 S.Ct. 1160, 1165-69, 39 L.Ed.2d 389 (1974), and Traynor v. Turnage, 485 U.S. 535, 541-45, 108 S.Ct. 1372, 1378-80, 99 L.Ed.2d 618 (1988). These cases dealt with 38 U.S.C. § 211(a), which limited review of veterans’ benefits awards. Johnson and Traynor involved challenges, not to individual decisions on veterans’ claims, but to structural components of the system — in Johnson, to the constitutionality of the statute itself; in Tray-nor, to the statutory validity of a regulation. In each case the Court concluded" }, { "docid": "23236057", "title": "", "text": "respect to all questions of law or fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise. 5 U.S.C. § 8128(b). This statute does not distinguish among reasons for seeking review; it makes the administrative decision final. In Lindahl v. Office of Personnel Management, 470 U.S. 768, 779-80 & n. 13, 105 S.Ct. 1620, 1627 & n. 13, 84 L.Ed.2d 674 (1985), the Supreme Court gave § 8128(b) as an example of the “unambiguous and comprehensive” language that Congress uses “when [it] intends to bar judicial review altogether”. This description was reiterated in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90, 112 S.Ct. 486, 493, 116 L.Ed.2d 405 (1991). It is altogether apt. If § 8128(b)(1) were not enough, § 8128(b)(2) adds: “We really mean it!” The amicus curiae contends that we should whittle away at § 8128(b) to avoid a constitutional problem. There is none to avoid. Long ago the Supreme Court held that, when Congress creates a right to recover money from the United States, it may “provide an administrative remedy and make it exclusive.” Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 403, 80 L.Ed. 561 (1936). Accord, United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 465, 63 L.Ed. 1011 (1919). That is what Congress did in § 8128(b). It is within the legislative power. Blanc v. United States, 244 F.2d 708 (2d Cir.1957); Hancock v. Mitchell, 231 F.2d 652 (3d Cir.1956); Calderon v. Tobin, 187 F.2d 514 (D.C.Cir.1951). Any argument that there is constitutional-claim exception to statutes like § 8128(b) cannot be traced to doubts about the power of Congress to restrict the jurisdiction of district courts — for until 1875 the inferior courts lacked any general federal-question jurisdiction, and until 1980 the federal-question jurisdiction was qualified by an amount-in-controversy requirement. No one thinks the Judiciary Act of 1789 a colossal violation of Article III on this account. Sovereign immunity, too, limits judicial competence; what role judges are to play is entirely in the hands of Congress," }, { "docid": "1581821", "title": "", "text": "and the like’. Quite apart from the fact that in Section 601 (d) Congress uses virtually the quoted words in limiting review by administrative officers, we fail to see how the argument can aid petitioners here because the record does not show why their claims were denied. Since the record is silent on this point, such decisions as United States v. Williams, 278 U.S. 255, 49 S.Ct. 97, 73 L.Ed. 314, and Silberschein v. United States, 266 U.S. 221, 45 S.Ct. 69, 69. L.Ed. 256, are plainly distinguishable.” Except for section 601 (e), it is clear that this court would have jurisdiction to determine the plaintiff’s right to recover, because that right is “founded upon a law of Congress,” to wit, section 17 (a) of the Agricultural Adjustment Act, 48 Stat. 31, as amended, 7 U.S.C.A. § 617(a). Sec. 145 of Judicial Code, 28 U.S.C.A. § 250; United States v. Laughlin, 249 U.S. 440, 39 S.Ct. 340, 63 L.Ed. 696; Dismuke v. United States, 297 U.S. 167, 169, 56 S.Ct. 400, 80 L.Ed. 561. Nor will this section be construed to deprive the courts of jurisdiction unless the evidence of such an intention on the part of Congress is inescapable. In United States v. Laughlin, supra, suit was brought under section 2 of the act of March 26, 1908, 35 Stat. 48, 43 U.S.C.A. § 96, for an alleged excess payment for public lands. This section reads: “That in all cases where it shall appear to the satisfaction of the Secretary of the Interior that any person has heretofore or shall hereafter make any payments to the United States under the public land laws in excess of the amount he was lawfully required to pay under such laws, such excess shall be repaid to such person or to his legal representatives. [Italics ours.]” The Government contended that under this section the decision of whether or not there had been paid an amount in excess of the lawfully required amount was committed to the exclusive jurisdiction of the Secretary of the Interior. This contention was rejected by the court. It said:" }, { "docid": "23528433", "title": "", "text": "is 28 U.S.C. § 1346(a)(2), the Tucker Act, available to support the district court’s jurisdiction. For that section deals only with claims for monetary damages and does not confer upon the district courts jurisdiction to grant equitable relief unless it is in aid of a claim against the United States for a money judgment. Clay v. United States, 1954, 93 U.S.App.D.C. 119, 210 F.2d 686; Lynn v. United States, 5 Cir. 1940, 110 F.2d 586. Here there is no such monetary claim. The plaintiff is not aided by 5 U.S.C. §§ 701-706, which authorizes the judicial review of administrative agency orders, since no such order is here sought to be reviewed. Moreover, § 703 requires that the reviewing court must be one which is otherwise of competent jurisdiction. Getty Oil Co. (Eastern Operations) Inc. v. Ruckelshaus, 3 Cir. 1972, 467 F.2d 349; Pan Am World Airways, Inc. v. Civil Aeronautics Board, D.C.Cir.1967, 392 F.2d 483. The same is true of 12 U.S.C. § 1702, which makes the Secretary sua-ble in his official capacity in a court which is otherwise of competent jurisdiction. Here it is clear that the district court is not otherwise of competent jurisdiction to entertain this lawsuit. The judgment of the district court will be vacated and the cause remanded with directions to dismiss the complaint for want of jurisdiction." }, { "docid": "20330175", "title": "", "text": "right which the statute creates will be deemed to be curtailed only so far as authority to decide is given to the administrative officer.” In Tyson v. United States, 32 F.Supp. 135, page 137, 91 Ct.Cl. 139, the Court of Claims reached a conclusion similar to that which we have expressed in respect to the construction of Section 619, stating, “In our view it was the intent of Congress that the Secretary should have exclusive jurisdiction only to determine disputed questions of fact, and that, as in other administrative matters, his decision upon questions of law should be reviewable by the courts.” As an additional defense the United States asserts the plaintiffs should have proceeded by way of petitions for mandamus to compel the Secretary of the Treasury to make awards and that in the absence of such awards the suits cannot be maintained under the Tucker Act. In United States v. McLean, 95 U.S. 750, 753, 24 L.Ed. 579, a question analogous to that at bar was raised and the Supreme Court held that if an executive officer failed to do his duty he might be constrained to perform it by mandamus and that the courts could not perform executive duties or treat them as performed when they have been neglected. See also United States v. Crosthwaite, 168 U.S. 375, 18 S.Ct. 107, 42 L.Ed. 507. The answer to this question is suggested by the decision of the Supreme Court in the Dismuke case. See 297 U.S. at page 173, 56 S.Ct. 400, 80 L.Ed. 561. In the cited case, which arose under the Civil Service Retirement Act of June 16, 1933, 48 Stat. 283, 305, 5 U.S.C.A. § 692d, now 5 U.S.C.A. § 736a, the Supreme Court held that jurisdiction of suits for annuities payable under the Act were within the jurisdiction of the district courts under the Tucker Act. In the Dismuke case as in the case at bar the decision of the administrative officer turned squarely upon a question of law. Though the statute in the Dismuke case provides that the employee “shall be” entitled to" }, { "docid": "23528432", "title": "", "text": "does not arise under the laws of the United States even if federal law furnishes some necessary ingredient of the claim. Moreover, the fact that a contract is subject to federal regulation does not, in itself, demonstrate that Congress meant that all aspects of its performance or nonperformance are to be governed by federal law rather than by the state law applicable to similar contracts in businesses not under federal regulation. Ivy Broadcasting Co. v. American Tel. & Tel. Co., 2 Cir. 1968, 391 F.2d 486, 490, 493. Here the dispute between the parties is purely one as to the correct interpretation and effect of certain contractual documents, an ordinary contract dispute to be determined by the application of the principles of Pennsylvania contract law. The fact that these documents were subject to the regulations of the FHA is not significant, since we know of no federal statutory policy which would require federal law to determine their operation and effect. The case is, therefore, not one arising under the laws of the United States. Nor is 28 U.S.C. § 1346(a)(2), the Tucker Act, available to support the district court’s jurisdiction. For that section deals only with claims for monetary damages and does not confer upon the district courts jurisdiction to grant equitable relief unless it is in aid of a claim against the United States for a money judgment. Clay v. United States, 1954, 93 U.S.App.D.C. 119, 210 F.2d 686; Lynn v. United States, 5 Cir. 1940, 110 F.2d 586. Here there is no such monetary claim. The plaintiff is not aided by 5 U.S.C. §§ 701-706, which authorizes the judicial review of administrative agency orders, since no such order is here sought to be reviewed. Moreover, § 703 requires that the reviewing court must be one which is otherwise of competent jurisdiction. Getty Oil Co. (Eastern Operations) Inc. v. Ruckelshaus, 3 Cir. 1972, 467 F.2d 349; Pan Am World Airways, Inc. v. Civil Aeronautics Board, D.C.Cir.1967, 392 F.2d 483. The same is true of 12 U.S.C. § 1702, which makes the Secretary sua-ble in his official capacity in a" }, { "docid": "11202510", "title": "", "text": "PER CURIAM. The appellant claimed benefits for herself and for her minor children under the Federal Employees’ Compensation Act, 5 U.S.C.A. § 751 et seq., based on her contention that the death of her husband, who was a railway mail clerk in the Postal Transportation Service of the United States Post Office Department, was proximately caused by the performance of his duties while in the employ of the government. On December 17, 1950, while in Syracuse, N. Y., on what is called travel status he became ill and died two days later from what was diagnosed as acute anterior poliomyelitis. Following the administrative denial of her claim, the appellant brought this suit for a declaratory judgment and for what she calls equitable relief which would amount to a review of the agency proceedings and a reversal of the decision. Her complaint was dismissed for lack of jurisdiction and she has appealed. We find no merit in the appeal. The relief to which the appellant is entitled is no more than the enforcement of her claim made for benefits under the Federal Employees’ Compensation Act. The Tucker Act, 28 U.S.C. § 1346(a) (2), gives the district court no jurisdiction to enforce such a claim. The consent of the United States to be sued under the Tucker Act is limited to suits for the recovery of a money judgment and any incidental relief in equity in aid of such a judgment. United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686; Lynn v. United States, 5 Cir., 110 F.2d 586. Ñor does Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, confer jurisdiction where, as here, review by the courts of administrative action is expressly and clearly prohibited. Ford v. United States, 5 Cir., 230 F.2d 533. This prohibition, which is found in Section 42 of the Act, 5 U.S.C.A. § 793, provides that administrative action under the statute in allowing or denying beneficial payments “ * * * shall be final and conclusive for all purposes" }, { "docid": "6771863", "title": "", "text": "of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” This Act does not give consent to suits where only declaratory or other equitable relief is sought. It applies only to suits for recovery of money damages. United States v. Jones, 1889, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Blanc v. United States, 2 Cir., 1957, 244 F.2d 708, certiorari denied 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79; Clay v. United States, 1953, 93 U.S.App.D.C. 119, 210 F.2d 686. In the instant case, Congress gave appellant a “bounty” in that it afforded him a prior right to purchase the land covered by his lease and in addition allowed a deduction from the sales price of the value of any improvements he had made “When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. * * * It may limit the individual to administrative remedies.” Lynch v. United States, 1934, 292 U.S. 571, 583, 54 S.Ct. 840, 845, 78 L.Ed. 1434. It is evident that Congress so intended to limit the remedy of individual lessees with respect to rights the Atomic Energy Community Act creates. The purpose of Congress in enacting the provisions in said Act dealing with the disposal of property was to provide for expeditious and orderly sales by giving the A.E.C. authority to administer them. Judicial review of A.E.C. determinations would defeat that goal. Section 2309 of Title 42 U.S. C.A. reads: “Determinations . authorized by this chapter to be made by the Commission as to classification, priorities, prices, and terms and condi tions of sale of property disposed of under this chapter shall be subject to review only in accordance with such provisions for administrative review or reconsideration as the Commission may prescribe.” No provision appears which authorizes judicial review of determinations made by the Commission. We conclude that the full hearing before the Board of Appeals convened by the Commission exhausted appellant’s remedies." }, { "docid": "19058644", "title": "", "text": "PER CURIAM. William C. Clay, the appellant, brought suit in the District Court against the United States and certain named Government officials, seeking a judgment declaring void an assignment he had made to the United States of certain Letters Patent. On defendants’ motion the court dismissed the complaint, holding that it was without jurisdiction of .the subject matter and that the complaint did not state a claim upon which relief could be granted. A memorandum opinion filed by the court pointed out that in a suit against the United States under the Tucker Act, 28 U.S.C. § 1346(a) (2), this Act being the only basis relied upon to support jurisdiction, the District Court has jurisdiction only of a claim for damages not exceeding $10,000. The court said that the jurisdiction does not include a suit, such as this, solely for specific relief of an equitable character. We agree. The Tucker Act permits a suit against the United States only for a money judgment. Any equitable relief which might be granted in such a suit is in aid of the claim for money judgment. United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Lynn v. United States, 5 Cir., 110 F.2d 586. Affirmed. . It is not questioned that the action is one against the United States. . The court also held that the allegations of the complaint respecting duress alleged to have been exerted in the obtaining of the assignment did not state a cause of action, and, further, that the statute of limitations had run." }, { "docid": "7426295", "title": "", "text": "terms requested by the plaintiff would not be res judicata as against the United States, in case the plaintiff should subsequently sue for his back pay in the Court of Claims. If a declaratory judgment in the present suit would have such binding effect upon the United States, the conclusion would toe inescapable that the suit was in substance one against the United States. But the United States has not consented to be sued in a U. S. district court in this type of case. Cf. Payne v. Fite, 5 Cir.1950, 184 F.2d 977. In Lynch v. United States, 1934, 292 U.S. 571, 582, 54 S.Ct. 840, 845, 78 L.Ed. 1434, the Court said: “When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through t'he courts. United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 63 L.Ed. 1011. It may limit the individual to administrative remedies. Tutun v. United States, 270 U.S. 568, 576, 46 S.Ct. 425, 70 L.Ed. 738.” The Veterans’ Preference Act of 1944 -contains no provision for judicial enforcement of the rights conferred. The general jurisdictional provision in 28 U.S.C.A. § 1346 vesting original jurisdiction in the district courts, concurrent with the Court of Claims, in certain cases against the United States as defendant, is inapplicable here. For the above reasons we agree with the conclusion of Judge Driver in Palmer v. Walsh, D.C.D.Ore.1948, 78 F.Supp. 64, to the effect that a district court lacking jurisdiction by way of mandamus, is likewise without jurisdiction to give a declaratory judgment determining the reinstatement rights of a former U. S. government employee. See also Branham v. Langley, 4 Cir., 1943, 139 F.2d 115; Kohlman v. Smith, D.C.W.D.Pa.1947, 71 F.Supp. 73, 76; McCarthy v. Watt, D.C.D.Mass.1950, 89 F.Supp. 841; Breiner v. Kniskern, D.C.E.D.Pa.1950, 90 F.Supp. 9. The judgment of the District Court is affirmed. . It seems to be clear, and we do not understand that plaintiff contends to the contrary, that plaintiff’s discharge was in conformity with the terms of the regulation itself; but plaintiff’s contention is" }, { "docid": "8459573", "title": "", "text": "the first issue on the strength of section 11 of the Act of October 17, 1940, 54 Stat. 1197, 38 U.S. C.A. § 11a-2, which provides: “Notwithstanding any other provisions of law, except as provided in section 19 of the World War Veterans’ Act, 1924, as amended, and in section 817 of the National Service Life Insurance Act of 1940, the decisions of the Administrator of Veterans’ Affairs on any question of law or fact concerning a claim for benefits or payments under this or any other Act administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions.” Assuming the applicability of section 11 to the instant claim, the fact that plaintiff here questions a regulation of the Administrator, rather than a particular decision, would not except its claim from the effect of section 11. Slocumb v. Gray, 1949, 86 U.S.App.D.C. 5, 179 F.2d 31. Moreover, Congress expressly recognized the applicability of section 11 to payments under the Veterans’ Readjustment Assistance Act of 1952, argues the Government, by reason of § 261(a) of that Act, 38 U.S.C.A. § 971(a): “* * * Notwithstanding the provisions of section 11 of the Act of October 17, 1940, as amended (54 Stat. 1193), payments under this title shall be subject-to audit and review by the General Accounting Office as provided by the Budget and Accounting Act of 1921, as amended, and the Budget and Accounting Procedures Act of 1950.” While it is true that Congress has the- power to prohibit judicial review of administrative decisions, Swift and Company v. United States, 1941, 38 F.Supp. 435, 93 Ct.Cl. 705, 710; United States v. Babcock, 1919, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011, we are of the opinion that the scope of section 11 does not include the “payments” here in dispute. That Congress intended the bar of section 11 to apply only to gratuities seems clear. The purpose of section 11 was to insure that the provisions of existing law remained" }, { "docid": "19223387", "title": "", "text": "arising under Title II of the Social Security Act, except for judicial review in a timely action brought against the Secretary of Plealth, Education, and Welfare pursuant to section 205(g), would be just as clear even in the absence of the provisions of section 205(h) expressly denying any other jurisdiction. In McCrae v. Johnson, 84 F.Supp. 220, 221-222 (D.Md.1949), the Court said: “It is, of course, well known that federal courts are courts of limited jurisdiction; and the United States District Court has only that jurisdiction which is expressly conferred by Act of Congress, and within the constitutional grant of power of Article 3 of the Federal Constitution. Therefore when the jurisdiction of the court is challenged it is always necessary to be able to point to some federal statute which confers the jurisdiction in the particular case. * * •» ” It is well settled that, “The United States, as sovereign, is immune from suit save as it consents to be sued, * * * and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058. “In awarding a review of an administrative proceeding Congress has power to formulate the conditions under which resort to the courts may be had.” American Power and Light Co. v. S. E. C., 325 U.S. 385, 389, 65 S.Ct. 1254, 1256, 89 L.Ed. 1683. “* * * [W]here a statute creates a right and provides a special remedy, that remedy is exclusive.” United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 465, 63 L.Ed. 1011. In N. L. R. B. v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739, the Supreme Court said: “When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized. * * * ” It is clear from the above provisions of" }, { "docid": "22799719", "title": "", "text": "United States v. Christensen, 10 Cir., 207 F.2d 757, 758, and the cases there cited. It is within the power of Congress to provide the conditions under which an administrative proceeding may be reviewed in the courts and to determine their jurisdiction. Federal Power Commission v. Pacific Power & Light Co., 307 U.S. 156, 59 S.Ct. 766, 83 L.Ed. 1180; American Power & Light Co. v. Securities and Exchange Commission, 325 U.S. 385, 65 S. Ct. 1254, 89 L.Ed. 1683; N. L. R. B. v. Cheney California Lumber Co., 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739. The order which this action sought to review did not follow a hearing as contemplated by the statute and there was no record before the court to review except the order refusing a hearing. It is urged that if a prior hearing is jurisdictional to a court action, the Administrator may defeat the statutory right of review by denying the request for a hearing. The immunity rule in many instances may appear to be harsh, but it is well established that without specific statutory authority, an individual has no right of action against the United States in the courts even though the statute creates rights in the individual against the United States. Congress may create rights without providing a remedy in the courts. Stark v. Wickard, 321 U.S. 288, 306, 64 S.Ct. 559, 88 L.Ed. 733; Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434; United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011. It is for Congress alone to say how the rights which it creates shall be enforced, and when one remedy is specified, it normally excludes another. Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L. Ed. 61. It may withhold all remedy or it may provide an administrative remedy only and make it exclusive. Dismuke v. United States, 297 U.S. 167, 172, 56 5. Ct. 400, 80 L.Ed. 561. In the Christensen Case, supra [207 F.2d 758], the statute authorized actions on" }, { "docid": "13161990", "title": "", "text": "As relevant here, the Tucker Act, 28 U.S.C. § 1491(a)(1) (1982), gives the United States Claims Court jurisdiction (1) over contract claims against the United States, and (2) over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department,” while giving the district courts concurrent jurisdiction over both types of claims so long as they do not exceed $10,000. 28 U.S.C. § 1346(a)(2) (1982). It is settled law that the Tucker Act confers jurisdiction and consent to suit against the United States, United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983), but “does not create any substantive right enforceable against the United States for money damages.” Id. (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980)). The presence of Tucker Act jurisdiction may sometimes present an obstacle to relief against the United States under the APA because section 702’s waiver of federal sovereign immunity is withdrawn by the second proviso to section 702 where “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702 (1982). We break no new ground, then, by noting that the fact that a plaintiff’s substantive claim is cognizable under the Tucker Act may, at least in some circumstances, bar the plaintiff from obtaining, under the APA, either the relief that would be available under the Tucker Act or alternative forms of relief. See, e.g., H.R.Rep. No. 1656, supra, at 13, U.S.Code Cong. & Admin.News 1976, p. 6133 (stating that as to “specific performance of government contracts,” “a statute granting consent to suit, i.e., the Tucker Act, ‘impliedly forbids’ re lief other than the remedy provided by the Act”); Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C.Cir.1982) (court must determine whether a claim “so clearly presents a disguised contract action that jurisdiction over the matter is properly limited to the Court of Claims”); see also B.K. Instrument, Inc. v. United States, 715 F.2d 713, 725-28 (2d" }, { "docid": "23084219", "title": "", "text": "forbids relief on the impracticability claim but not the statutory claim. It thus precludes a § 702 waiver of sovereign immunity on the impracticability claim. Moreover, on the impracticability claim, we have been able to identify from the record in this case no claim of an official action or failure to act within the meaning of 5 U.S.C. § 702. In the absence of such a claim, § 702 does not waive immunity- The Tucker Act gives the United States Claims Court jurisdiction over “any claim against the United States founded ... upon any express or implied contract with the United States,” 28 U.S.C. § 1491(a)(1); it exercises this jurisdiction concurrently with the district courts for actions claiming less than $10,000. 28 U.S.C. § 1346(a)(2). The Act is more than just a grant of jurisdiction over government contract claims; it is also a limited waiver of sovereign immunity and a limita tion on the remedies available in actions on government contracts. Megapulse, Inc. v. Lewis, 672 F.2d 959, 967 (D.C.Cir.1982). The Tucker Act has been construed as permitting the Claims Court to grant money damages against the government in contract actions but not injunctive or declaratory relief. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (Court of Claims may not grant declaratory relief); United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90 (1889) (Court of Claims may not grant equitable relief). These restrictions on the relief that the Claims Court may grant also limit the relief that the district courts may grant when exercising their concurrent Tucker Act jurisdiction under 28 U.S.C. § 1346(a)(2). Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). Thus the Tucker Act “impliedly forbids” declaratory and injunctive relief and precludes a § 702 waiver of sovereign immunity in suits on government contracts. In fact, the legislative history of § 702 specifically mentions the Tucker Act as a statute that “impliedly forbids” relief within the meaning of § 702. H.R.Rep. No. 1656, 94th Cong., 2d Sess. 13, reprinted in 1976 U.S.Code Cong." }, { "docid": "21071987", "title": "", "text": "Finally the House of Representatives Committee in reporting out H.R. 181, 79th Congress, First Session, said: “The bill * * * does not lift the immunity of the United States from tort actions except as jurisdiction is specifically conferred upon the district courts by this bill.” As to the Tucker Act, with which this suit is comparable on the question at issue, the courts have definitely said that joinder of another party with the United States under the provisions of Rule 20 is not permissible. Lynn v. United States, 5 Cir., 110 F.2d 586; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; Manley v. Standard Oil Co., supra. In a long review of the Federal Tort Claims Act in “The Yale Law Journal”, Vol. 56, No. 3, page 555, after referring to the aforesaid Committee report, the Journal said: “This argument (referring to any distinction to the affect of the Tucker Act) is answered in part by reference to the committee report on the bill considered in 1942 which, citing the Sherwood case, interprets identical words (Tucker Act) to mean that no joinder is intended. Furthermore, serious procedural difficulties would be raised by permitting joinder of parties. * * * Therefore it seems inevitable that the rights of plaintiff and of the Government against others will have to be adjudicated in a separate controversy.” As indicating the intent of Congress to exempt the employee from suit, we find that Section 2676, Title 28 U.S.C.A., provides that in this type of suit judgment in the action bars action against employee. While it is believed that the consent to be sued is not sufficient as a consent to be sued with other- party, it is not necessary to the decision of this motion that the court pass upon the broad question of the right of joinder of the United States with other party. Section 2676, Title 28 U.S.C.A., reads: “The judgment in an action under section 1346(b) of this title shall 'constitute a complete bar to any action by the claimant, by reason of the same subject" }, { "docid": "11202511", "title": "", "text": "made for benefits under the Federal Employees’ Compensation Act. The Tucker Act, 28 U.S.C. § 1346(a) (2), gives the district court no jurisdiction to enforce such a claim. The consent of the United States to be sued under the Tucker Act is limited to suits for the recovery of a money judgment and any incidental relief in equity in aid of such a judgment. United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686; Lynn v. United States, 5 Cir., 110 F.2d 586. Ñor does Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, confer jurisdiction where, as here, review by the courts of administrative action is expressly and clearly prohibited. Ford v. United States, 5 Cir., 230 F.2d 533. This prohibition, which is found in Section 42 of the Act, 5 U.S.C.A. § 793, provides that administrative action under the statute in allowing or denying beneficial payments “ * * * shall be final and conclusive for all purposes and with respect to all questions of law and fact, and not subject to review * * * by any court by mandamus or otherwise * * It follows that the dismissal of the complaint for want of jurisdiction was without error. At least since United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011 and Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561, it has been well settled that, when the government creates the right to assert a claim against it, it need not provide for a judicial remedy. That applies aptly to allowances to federal employees under this statute which are grants which Congress could make to beneficiaries who would be determined in whatever way it saw fit to provide. Calderon v. Tobin, 88 U.S.App.D.C. 134, 187 F.2d 514, certiorari denied 341 U.S. 935, 71 S.Ct. 854, 95 L.Ed. 1363; Hancock v. Mitchell, 3 Cir., 231 F.2d 652. It saw fit, without creating a right to sue the government' or to court review of agency" }, { "docid": "6771862", "title": "", "text": "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.” It is well settled, however, that said Act does not of itself create jurisdiction; it merely adds an additional remedy where the district court already has jurisdiction to entertain the suit. See Brownell v. Ketcham Wire & Manufacturing Co., 9 Cir., 1954, 211 F.2d 121. It is appellant’s theory that the Tucker Act, 28 U.S.C.A. § 1346(a) (2), authorizes the present suit against the United States. That Act in relevant part reads: “(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: ****** “(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” This Act does not give consent to suits where only declaratory or other equitable relief is sought. It applies only to suits for recovery of money damages. United States v. Jones, 1889, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Blanc v. United States, 2 Cir., 1957, 244 F.2d 708, certiorari denied 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79; Clay v. United States, 1953, 93 U.S.App.D.C. 119, 210 F.2d 686. In the instant case, Congress gave appellant a “bounty” in that it afforded him a prior right to purchase the land covered by his lease and in addition allowed a deduction from the sales price of the value of any improvements he had made “When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. * * * It may limit the individual to" } ]

[ { "docid": "12229409", "title": "", "text": "17 USCMA 444, 38 CMR 242 (1968); United States v Chancelor, 16 USCMA 297, 36 CMR 453 (1966); United States v Thomas, 14 USCMA 223, 34 CMR 3 (1963). Thompson’s explanation during the plea proceedings and in mitigation and extenuation that the heroin had been secreted in his room without his knowledge and that his purpose in removing it was to rid himself of it conflicts with his plea of guilty to its wrongful possession. In United States v West, 15 USCMA 3, 6, 34 CMR 449 (1964), the Court recognized “there are . . . circumstances under which possession of narcotics is not unlawful, although the contrary is presumed, in the absence of any explanation.” It went on to state, at page 7: “The concept involved here is simply another aspect of the doctrine of mens rea, as applied to the offense of wrongful possession of narcotics, i.e., the wrongfulness involved. See United States v Hayes, 8 USCMA 627, 25 CMR 131; United States v Grover, supra; Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240 (1952).” Criminal liability cannot be imposed for possession of a forbidden substance that is truly planted evidence, when the accused’s sole purpose in controlling it for a few moments is to rid himself of it. The significant point was stated in Masters v United States, 42 App DC 350, 356 (1914): “. . . The word ‘wrongful,’ like the words ‘wilful,’ ‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word ‘wrongful’ implies the opposite of right, a perverted evil mind in the doer of the act.” Article 45 compels the entry of a plea of not guilty when an accused introduces information inconsistent with his plea of guilty. United States v Lewis, supra. The words of the statute manifest a congressional intent that guilt be acknowledged consistently from the plea through the sentence. United States v Thomas; United States v Chancelor, both supra. A strict application of Article 45 should end simultaneous pleas of guilty" } ]

[ { "docid": "22142841", "title": "", "text": "was something innocuous, such as sugar. This “mistake of fact,” too, is a defense to both possession and use charges and requires appropriate instructions when raised by the evidence. Id. at 215, 19 C.M.R. at 341. Having thus clearly established in Greenwood that knowledge is involved in both possession and use offenses, this Court again discussed the concept of inno cent possession in United States v. West, 15 U.S.C.M.A. 3, 34 C.M.R. 449 (1964). West, a pharmacy specialist, had testified that, in violation of Air Force regulations, when minor “overages” were found in routine inventories of pharmacy drugs, he would place them in a labeled bottle in a leather ease and place the case in an office safe. This ad hoc storehouse then could be drawn on if future inventories should reveal a shortage. One Friday, “he had secured the safe without” first putting away the leather case, so he had kept the bag himself for safekeeping, intending to return it Monday morning. Id. at 5, 34 C.M.R. at 451. Preliminarily, the Court observed that knowledge “is simply another aspect of the doctrine of mens rea, as applied to the offense of wrongful possession of narcotics, i.e., the wrongfulness involved.” In this context, the Court concluded that violating “Air Force regulations relating to the safeguarding of narcotics and their inventory simply does not establish the offense charged” because the accused’s acts “show a singular lack of wrongfulness of the kind contemplated by the offense in his possession of the narcotics involved.” Id. at 7, 34 C.M.R. at 453. Explaining, the Court quoted important language from Masters v. United States, 42 App.D.C. 350, 356 (1914): \"... [W]here the lawmakers have incorporated into the act a word or words descriptive of the crime which imply the necessity of ‘a’mind at fault before there can be a crime,’ criminal intent becomes an essential fact in establishing the guilt of a person accused of its violation. The crime here does not consist in mere conversion, but in wrongful conversion. The word ‘wrongful’ in its legal signification must be defined from a criminal standpoint, since" }, { "docid": "12029854", "title": "", "text": "134, UCMJ, 10 U.S.C. § 934, and paragraph 213g(5), Manual for Courts-Martial, United States, 1969 (Revised Edition) (Change 7), meant “the knowing use of marihuana without justification or authorization.” See United States v. Harper, 22 M.J. at 162. The legislative history of Article 112a does not suggest the word “wrongfully” as used in this new codal provision has a different meaning. S.Rep. No. 53, 98th Cong., 1st Sess. 29 (1983). See also 21 U.S.C. 844; United States v. Holloway, 744 F. 2d 527, 532 (6th Cir.1984). In proving wrongfulness, including knowledge, under Article 134 and paragraph 213<7 (5), Manual, supra, the prosecution could rely “on a permissive inference of wrongfulness which has long been recognized by military law as flowing from proof of the predicate fact of use of” the drug. United States v. Harper, supra at 162. The President, acting pursuant to his powers under Article 36, UCMJ, 10 U.S.C. § 836, has perpetuated this method of proof for drug cases under Article 112a. See Part IV, para. 37(c)(5), Manual for Courts-Martial, United States, 1984. This Manual provision states: (5) Wrongfulness. To be punishable under Article 112a, possession, use, distribution, introduction, or manufacture of a controlled substance must be wrongful. Possession, use, distribution, introduction, or manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Possession, use, distribution, introduction, or manufacture of a controlled substance is not wrongful if such act or acts are: (A) done pursuant to legitimate law enforcement activities (for example, an informant who receives drugs as part of an undercover operation is not in wrongful possession); (B) done by authorized personnel in the performance of medical duties; or (C) without knowledge of the contraband nature of the substance (for example, a person who possesses cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine). Possession, use, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception in any court-martial" }, { "docid": "12046567", "title": "", "text": "specifications added to the remaining specification, and those specifications are not dismissed. The word \"consolidated” is all that is necessary to show what happened to those offenses. See United States v. Campbell, 22 M.J. 99 (C.M.A.1986). . In United States v. Earhart, 14 M.J. 511 (A.F.C. M.R.1982), aff’d, 18 M.J. 421 (C.M.A.1984), the court concluded “that criminal culpability on the part of a transferee is not an element of the offense of transferring drugs” under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. This was based on the following cogent reasoning: The public policy that prohibits \"transfer\" of a drug to another person is not aimed solely at discouraging criminals from providing drugs to one another; rather, it is even more directly aimed at the protection of innocent victims of drug dealers who, without such prohibitions, might frequently not only come into unwitting possession of such illicit and harmful substances, but through unwitting use of the substances might become dependent upon them. 14 M.J. at 516. EVERETT, Chief Judge (concurring): Appellant was convicted of “distribution” of drugs in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. According to the Manual for Courts-Martial, United States, 1969 (Revised edition), “ ‘Distribute’ means to deliver to the possession of another.” Para. 213# (3) (emphasis added). Thus, appellant could not be properly convicted of “distribution” unless the two Germans who took his effects to Kreuzberg Kaserne had “possession” of the drugs. In defining the term “possess,” the Manual for Courts-Martial states, “Possession must be knowing and conscious.” Para. 213# (2) (emphasis added). What is the meaning of this requirement? “Knowledge” may have several possible meanings. Cf. United States v. Greenwood, 6 U.S.C. M.A. 209, 19 C.M.R. 335 (1955). (1) Someone may “know” that the powder he holds in his hand is cocaine, but not “know” that it is a controlled substance. (2) He may “know” that he has a powder in his hand but not “know” that it is cocaine. (3) He may “know” that he holds a box in his hand but not “know” anything" }, { "docid": "22142849", "title": "", "text": "the various Manuals in writing the provisions just discussed and those of the President in promulgating them are important, they are not binding on this Court in fulfilling our responsibility to interpret the elements of substantive offenses — at least, those substantive crimes specifically delineated by Congress in Articles 77 through 132 of the Code, 10 U.S.C. §§ 877-932, respectively. Ellis v. Jacob, 26 M.J. 90 (C.M.A.1988). See Art. 36, UCMJ, 10 U.S.C. § 836. Accordingly, aware of the development in the Manuals of the concept of knowledge in wrongful-use offenses which had been charged under Article 134, UCMJ, 10 U.S.C. § 934, we now must determine whether that concept is somehow involved as an element of wrongful use under Article 112a. In United States v. Harper, 22 M.J. 157 (C.M.A.1986), we inquired whether a laboratory report of urinalysis, alone, is sufficient as a matter of law to prove use of marijuana beyond a reasonable doubt. In the course of analyzing this issue, we discussed at some length the elements of the offense — use and wrongfulness — and what was involved in each. In part II of the opinion, we concluded that the element of use may be proved by evidence of chemical traces of the substance in the accused’s body coupled with “expert testimony that the chemical” is “not naturally produced by the body or any other substance except the drug” itself. Id. at 161. We made no mention at all of any type of knowledge with respect to the element of use. In the next part, however, addressing the element of wrongfulness, we discussed knowledge extensively. Indeed, that section of the opinion began with this paragraph: The prosecution was also required to prove beyond a reasonable doubt that appellant’s use of marihuana on each of the three occasions was wrongful. Para. 213g(5), Manual, supra. Wrongfulness in this context means the knowing use of marihuana without justification or authorization. Id.; see generally United States v. Grier, 6 U.S.C.M.A. 218, 19 C.M.R. 344 (1955); United States v. Greenwood, supra. See also United States v. West, 15 U.S.C.M.A. 3, 34" }, { "docid": "8275118", "title": "", "text": "of the proceeding to Mr. Wade, and the evidence of mitigating circumstances he presented, the three-member panel at least could have given the evidence and arguments a more rigorous review. The BCNR similarly gave Mr. Wade’s case only cursory treatment. Ultimately, the Navy’s case against Mr. Wade fails because the Navy did not prove that he knowingly ingested cocaine. Without a knowing consumption of a controlled substance, the ingestion could not have been wrongful. See Manual for Courts-Martial, United States, Part IV, ¶ 37.c, Article 112a—Wrongful use, possession, etc., of controlled substances: (6) Wrongfulness.... Possession, distribution, introduction, or manufacture of a controlled substance is not wrongful if such act or acts are: ... (C) without knowledge of the contraband nature of the substance (for example, a person who possesses cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine). Possession, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception in any court-martial or other proceeding under the code shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or introduction was wrongful. See also United States v. Mance, 26 M.J. 244 (C.M.A.1988) overruled on other grounds by United States v. Payne, 73 M.J. 19 (C.A.A.F.2014) (use of a controlled substance is not wrongful if the element of knowledge is lacking); United States v. Crumley, 31 M.J. 21 (C.M.A.1990) (knowledge by the accused is a necessary element of wrongful distribution). Here, Mr. Wade contested the Navy’s case against Mm, denying any knowledge of how evidence of cocaine got into Ms urine sample, and the Navy failed to meet its burden of proof to show knowledge or wrongful conduct. The BCNR should have identified the “existence of probable material error or injustice,” 32 C.F.R. § 723.3(e)(2), but it did not. Conclusion Considering the entire" }, { "docid": "22712793", "title": "", "text": "noted that “the pleading makes clear that accused did not, under unusual circumstances, jump overboard in the course of his legitimate duties as, possibly, to rescue a shipmate, or for some other purpose which might be completely innocent.” 14 C.M.A. at 465, 34 C.M.R. at 345. The Court stated that the critical inquiry for this clause 1 offense was “whether the act was palpably and directly prejudicial to the good order and discipline of the service” and that “such an allegation need not be made in a specification laid under the General Article.” 14 C.M.A. at 566, 34 C.M.R. at 346. Here, the specification was pleaded under Article 134, UCMJ, and alleged that a married man wrongfully engaged in sexual intercourse with a woman not his wife. This Court has long accepted the traditional meaning of the term wrongful: That the word [wrongful] has a well-defined meaning when used in criminal statutes is supported by Webster, who defines it as doing a thing “in a wrong manner; unjustly; in a manner contrary to moral lay [sic] or justice.” The word “wrongful” ... when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word “wrongful” implies the opposite of right. United States v. West, 15 C.M.A. 3, 7, 34 C.M.R. 449, 453 (C.M.A.1964); see United States v. Barner, 56 M.J. 131, 136 (C.A.A.F.2001) (a wrongful act is “one done without legal justification or with some sinister purpose”); accord United States v. Reeves, 61 M.J. 108, 111 (C.A.A.F.2005). Outside the military context, words of criminality alone might not provide such notice. In the military, however, not all adultery is or should be criminalized. The Manual for Courts-Martial contains a relatively lengthy list of factors to be considered in determining when such conduct is prejudicial to good order and discipline or service discrediting. MCM pt. IV, para. 62.C.2. In the military, the offense of adultery can only be prosecuted if it offends good order and discipline or is service discrediting. Thus, this specification was more than sufficient to meet the constitutional requirement. And what of other" }, { "docid": "22712794", "title": "", "text": "[sic] or justice.” The word “wrongful” ... when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word “wrongful” implies the opposite of right. United States v. West, 15 C.M.A. 3, 7, 34 C.M.R. 449, 453 (C.M.A.1964); see United States v. Barner, 56 M.J. 131, 136 (C.A.A.F.2001) (a wrongful act is “one done without legal justification or with some sinister purpose”); accord United States v. Reeves, 61 M.J. 108, 111 (C.A.A.F.2005). Outside the military context, words of criminality alone might not provide such notice. In the military, however, not all adultery is or should be criminalized. The Manual for Courts-Martial contains a relatively lengthy list of factors to be considered in determining when such conduct is prejudicial to good order and discipline or service discrediting. MCM pt. IV, para. 62.C.2. In the military, the offense of adultery can only be prosecuted if it offends good order and discipline or is service discrediting. Thus, this specification was more than sufficient to meet the constitutional requirement. And what of other offenses traditionally charged under Article 134, UCMJ? For instance, in the absence of language setting forth the terminal element of Article 134, UCMJ, can one charged with willfully and wrongfully seizing a person and holding him against his will reasonably assert that he is not on notice that the prosecution intends to proceed against him for kidnapping? See MCM pt. IV, para. 92. Furthermore, could one credibly claim, in the case of kidnapping, that he is not sufficiently apprised that such conduct is prejudicial to good order or service discrediting? Finally, the majority appears to conflate the requirement that a specification state an offense with an accused’s right to more specificity in the allegation. The majority takes the position that the specification was constitutionally deficient because it failed to inform the accused as to which theory of liability contained in the terminal element the Government intended to pursue. An accused does have a right to know under what statutory theory the government is proceeding against him in those instances where the statute provides alternative ways" }, { "docid": "22142864", "title": "", "text": "showing that marijuana had been present in appellant’s body. E In light of the earlier ambiguity in Manual provisions and in this Court’s opinions concerning the treatment of knowledge, it is appropriate to state that, henceforth, in prosecutions for wrongful use or wrongful possession, the military judge should instruct the court members that, in order to convict, the accused must have known that he had custody of or was ingesting the relevant substance and also must have known that the substance was of a contraband nature — regardless whether he knew its particular identity. The judge must give this instruction even absent a defense request, since the waiver provision in “R.C.M. 920(f) does not focus on ‘[rjequired instructions’ such as those on reasonable doubt, elements of the offenses, and affirmative defenses ...” Cf. United States v. Taylor, 26 M.J. 127, 128 (C.M.A. 1988). Without receiving such advice that there must exist “ ‘a perverted evil mind in the doer of the act,’ ” see United States v. West, supra at 7, 34 C.M.R. at 453, the court members might impose an absolute criminal liability because of the very presence of the controlled substance. In line with our opinions in Harper and Ford, the military judge may also instruct the court members that presence of the controlled substance authorizes a permissive inference under appropriate circumstances that the accused had the type of knowledge required to establish “possession” or “use,” as well as the type of “knowledge” required to establish “wrongfulness.” In this way the members will be fully informed as to the legal significance of the test results or other evidence tending to show presence of the controlled substance in the accused’s body. III The decision of the United States Air Force Court of Military Review is affirmed. . Curiously, though, instructions in the Military Judges’ Benchbook seem to continue the ambiguity that appeared in pre-1982 versions of the Manual. For instance, paragraph 3-76.1.6, which provides instructions on elements of the offense of wrongful possession of a drug, specifically notes that ”[p]ossession must be knowing and conscious.\" DA Pam. 27-9 (C.l)" }, { "docid": "10687522", "title": "", "text": "if the explanation is believed by the jury and shows a lawful possession of the drugs, the accused is entitled to be acquitted. United States v Feinberg, 123 F2d 425 (CA7th Cir) (1941). Violation of applicable Air Force regulations relating to the safeguarding of narcotics and their inventory simply does not establish the offense charged. Cf. United States v Sluss, 14 USCMA 388, 34 CMR 168; United States v Huggins, 12 USCMA 686, 31 CMR 272. If the accused’s testimony, as set forth above, was accorded credibility by the fact finders, it would show a singular lack of wrongfulness of the kind contemplated by the offense in his possession of the narcotics involved. Cf. United States v Singletary, 14 USCMA 146, 33 CMR 358. As was stated in Masters v United States, 42 App DC 350 (1914), at page 356: “. . . [W] here the lawmakers have incorporated into the act a word or words descriptive of the crime which imply the necessity of ‘a mind at fault before there can be a crime,’ criminal intent becomes an essential fact in establishing the guilt of a person accused of its violation. The crime here does not consist in mere conversion, but in wrongful conversion. The word ‘wrongful’ in its legal signification must be defined from a criminal standpoint, since it is here used in a penal statute to define a crime. That the word has a well-defined meaning when used in criminal statutes is supported by Webster, who defines it as doing a thing ‘in a wrong manner; unjustly; in a manner contrary to moral lay [sic] or justice.’ The word ‘wrongful,’ like the words ‘wilful,’ ‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word ‘wrongful’ implies the opposite of right, a perverted evil mind in the doer of the act.” It was error, therefore, for the law officer to refuse the defense request that she further enlighten the court-martial concerning the elements of the offense charged and embody the defense theory of the case in her" }, { "docid": "22142848", "title": "", "text": "in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception in any court-martial or other proceeding under the code shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or introduction was wrongful. (Emphasis added.) Thus, the drafters of this provision seem to have viewed lack of knowledge of the true nature of the substance possessed or used as an affirmative defense to the element of wrongfulness. The 1984 Manual continued this approach: In its view, knowledge of the presence of the drug is involved in the element of possession and (through the rationale of Greenwood) use, and knowledge of the true nature of the substance is an affirmative defense to the element of wrongfulness. See para. 37c(2) and (5), Part IV, Manual for Courts-Martial, United States, 1984. C Of course, while the views of the drafters of the various Manuals in writing the provisions just discussed and those of the President in promulgating them are important, they are not binding on this Court in fulfilling our responsibility to interpret the elements of substantive offenses — at least, those substantive crimes specifically delineated by Congress in Articles 77 through 132 of the Code, 10 U.S.C. §§ 877-932, respectively. Ellis v. Jacob, 26 M.J. 90 (C.M.A.1988). See Art. 36, UCMJ, 10 U.S.C. § 836. Accordingly, aware of the development in the Manuals of the concept of knowledge in wrongful-use offenses which had been charged under Article 134, UCMJ, 10 U.S.C. § 934, we now must determine whether that concept is somehow involved as an element of wrongful use under Article 112a. In United States v. Harper, 22 M.J. 157 (C.M.A.1986), we inquired whether a laboratory report of urinalysis, alone, is sufficient as a matter of law to prove use of marijuana beyond a reasonable doubt. In the course of analyzing this issue, we discussed at some length the elements of the offense — use" }, { "docid": "10687523", "title": "", "text": "criminal intent becomes an essential fact in establishing the guilt of a person accused of its violation. The crime here does not consist in mere conversion, but in wrongful conversion. The word ‘wrongful’ in its legal signification must be defined from a criminal standpoint, since it is here used in a penal statute to define a crime. That the word has a well-defined meaning when used in criminal statutes is supported by Webster, who defines it as doing a thing ‘in a wrong manner; unjustly; in a manner contrary to moral lay [sic] or justice.’ The word ‘wrongful,’ like the words ‘wilful,’ ‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word ‘wrongful’ implies the opposite of right, a perverted evil mind in the doer of the act.” It was error, therefore, for the law officer to refuse the defense request that she further enlighten the court-martial concerning the elements of the offense charged and embody the defense theory of the case in her instructions. United States v Acfalle, 12 USCMA 465, 31 CMR 51; United States v Smith, 13 USCMA 471, 33 CMR 3. Inasmuch as the accused’s testimony reasonably placed the question of innocent possession in issue, the error was prejudicial. United States v Grover, supra. We reiterate our concern with the continuing reliance of law officers almost solely upon form books for the preparation of instructions, with little or no attention to the evidence before them. Counsel, too, cannot escape merited criticism, for each advocate ought to prepare and submit instructions embodying his evidentiary and legal contentions to the law officer to the end that the fact finders will be aided in reaching a just conclusion on the matters presented. As Judge Kilday so succinctly declared for the Court in United States v Smith, supra, at page 474: “. . . What is contemplated is the affirmative submission of the respective theories, both of the Government and of the accused on trial, to the triers of fact, with lucid guideposts, to the end that they may" }, { "docid": "22142843", "title": "", "text": "it is here used in a penal statute to define a crime. That the word has a well-defined meaning when used in criminal statutes is supported by Webster, who defines it as doing a thing ‘in a wrong manner; unjustly; in a manner contrary to moral lay [sic] or justice.’ The word ‘wrongful,’ like the words ‘wilful,’. ‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word ‘wrongful’ implies the opposite of right, a perverted evil mind in the doer of the act.” Id. at 7-8, 34 C.M.R. at 453-54. On this basis, the Court held that the law officer had erred in refusing “the defense request that she further enlighten the court-martial concerning the elements of the offense charged and embody the defense theory of the case [i.e., innocent possession] in her instructions.” Id. at 8, 34 C.M.R. at 454. When the drafters of the Manual for Courts-Martial, United States, 1969 (Revised edition) began their task of writing that compendium, they of course had the benefit of the Greenwood and West opinions. Paragraph 213b of the 1969 version, then, expressly included three pertinent additions: First, in response to Greenwood, the 1951 language “was expanded to include use.” Second, pursuant to the same decision, “the third sentence was modified by substituting lack of knowledge for accident or mistake as an example of innocent possession or use.” Finally, a sentence was added as a result of West which stated, “If an issue is raised by the evidence as to whether possession or use by an accused charged with this offense was innocent on one of these grounds, a showing that it was not innocent on that ground becomes a requirement of proof.” Para. 2136, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition) (July 1970). Of course, the 1969 Manual continued the language found in the 1951 version, recognized in both Greenwood and West, that “[possession or use ... may be inferred to be wrongful unless the contrary appears.” As indicated earlier, the decisions of this Court, including" }, { "docid": "22142842", "title": "", "text": "knowledge “is simply another aspect of the doctrine of mens rea, as applied to the offense of wrongful possession of narcotics, i.e., the wrongfulness involved.” In this context, the Court concluded that violating “Air Force regulations relating to the safeguarding of narcotics and their inventory simply does not establish the offense charged” because the accused’s acts “show a singular lack of wrongfulness of the kind contemplated by the offense in his possession of the narcotics involved.” Id. at 7, 34 C.M.R. at 453. Explaining, the Court quoted important language from Masters v. United States, 42 App.D.C. 350, 356 (1914): \"... [W]here the lawmakers have incorporated into the act a word or words descriptive of the crime which imply the necessity of ‘a’mind at fault before there can be a crime,’ criminal intent becomes an essential fact in establishing the guilt of a person accused of its violation. The crime here does not consist in mere conversion, but in wrongful conversion. The word ‘wrongful’ in its legal signification must be defined from a criminal standpoint, since it is here used in a penal statute to define a crime. That the word has a well-defined meaning when used in criminal statutes is supported by Webster, who defines it as doing a thing ‘in a wrong manner; unjustly; in a manner contrary to moral lay [sic] or justice.’ The word ‘wrongful,’ like the words ‘wilful,’. ‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word ‘wrongful’ implies the opposite of right, a perverted evil mind in the doer of the act.” Id. at 7-8, 34 C.M.R. at 453-54. On this basis, the Court held that the law officer had erred in refusing “the defense request that she further enlighten the court-martial concerning the elements of the offense charged and embody the defense theory of the case [i.e., innocent possession] in her instructions.” Id. at 8, 34 C.M.R. at 454. When the drafters of the Manual for Courts-Martial, United States, 1969 (Revised edition) began their task of writing that compendium, they of course" }, { "docid": "1186874", "title": "", "text": "of proof as to knowledge. 26 M.J. at 253-254 (citations omitted). In this ease, the urinalysis was properly conducted, the chain of custody was maintained, and proper laboratory procedures were followed. The presence of the cocaine metabolite in Alford’s urine leads us to the permissible inference that he knowingly consumed the drug. Ultimately, we are satisfied that Alford’s wrongful use of cocaine was proven at trial. We are persuaded, beyond a reasonable doubt, that Alford is guilty of the charged offense. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987). II At the conclusion of evidence, the military judge held an Article 39(a), 10 U.S.C. § 839(a) session to discuss his instructions on findings. He advised counsel that he would give the members “the standard Mance instruction.” Both parties concurred. The “standard Mance instruction” is a modification to para. 3-76.4, DA Pam. 27-9, Military Judge’s Benchbook, Change 1 (15 February 1985), which conforms the pattern instruction to the Manee decision. See Mance, 26 M.J. at 256. The purpose of instructions “is to explain the law applicable to the case, in order that the court-martial may apply the law to the facts and return a verdict.” United States v. Noe, 7 U.S.C.M.A. 408, 410, 22 C.M.R. 198, 200 (1956). Following arguments by counsel, the military judge in this case instructed the members on findings as provided by R.C.M. 920. The critical issue was whether Alford had knowingly ingested the cocaine that resulted in his court-martial; this issue was to have been explained by the Mance instruction. The record discloses, however, that the military judge misstated a portion of his charge in this crucial area. After advising the members of the basic elements of the offense, the judge instructed as follows: Now use, as described in the first element, it must be a knowing and conscious use. Use is knowing and conscious when the accused is aware of the presence of the substance at the time of its use. Unless you’re satisfied, beyond a reasonable doubt, that the accused was not aware that he was using" }, { "docid": "12049248", "title": "", "text": "marijuana during the period of time alleged in the specification and that such use was wrongful. United States v. Harper, 22 M.J. 157 (C.M.A.1986). “Use” has been defined as the administration, ingestion or physical assimilation of drugs into one’s body or system. This may occur by smoking, snuffing, eating, drinking, or injecting the drug. Id. at 160. “The mere presence of the drug or its constituent elements in the body has not been expressly held by [the Court of Military Appeals] to be a fact sufficient to show use of that drug. Instead, [the Court has] additionally relied on expert testimony that the chemical traces of the drug are not naturally produced by the body or any other substance except the drug in question. The same principle applies to marihuana.” Id. at 161 (citations omitted). Wrongfulness in this context means the knowing use of marihuana without justification or authorization. In the absence of evidence to the contrary, the prosecution may meet this burden by reliance on a permissive inference of wrongfulness which has long been recognized by military law as flowing from proof of the predicate fact of use of a contraband drug. Id. at 162 (citations omitted). The Court of Military Appeals has identified three different types of “knowledge” relative to the wrongfulness of use of drugs. These types of knowledge are: 1) where the accused is aware that the substance is a drug but is unaware of its illegality (ignorance of the law); 2) where the accused is unaware of the presence of the drug in another, lawful substance such as where a drug is secretively placed by another in the accused’s drink (ignorance of fact); and 3) where the accused honestly believes that the substance is something innocuous when in fact it is a proscribed drug such as where the accused believes the white powder he places in his coffee is sugar when in fact it is a drug (mistake of fact). United States v. Mance, 26 M.J. 244 (C.M.A.), cert. denied, 488 U.S. 942, 109 S.Ct. 367, 102 L.Ed.2d 356 (1988). Only in the latter two" }, { "docid": "1186873", "title": "", "text": "consumed in some manner by Alford. At issue is whether the government proved that his use of cocaine was wrongful, as proscribed by Article 112a. In its discussion of “wrongfulness,” the Manual for Courts-Martial provides that “use ... of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary.” MCM, Part IV, paragraph 37c(5) (1984). In the landmark case of United States v. Mance, 26 M.J. 244 (C.M.A.1988), Chief Judge Everett noted that: ... a person does not possess a substance unless he is aware of its pres ence____ [I]f someone drops a controlled substance into a glass from which the servicemember is drinking but he is unaware that this has occurred, he lacks the “knowledge” which is required for “use.” In prosecutions for either possession or use of a controlled substance, the presence of that substance could permit a logical inference under appropriate circumstances that the accused had the requisite knowledge of its presence; and this permissive inference would be legally sufficient to satisfy the Government’s burden of proof as to knowledge. 26 M.J. at 253-254 (citations omitted). In this ease, the urinalysis was properly conducted, the chain of custody was maintained, and proper laboratory procedures were followed. The presence of the cocaine metabolite in Alford’s urine leads us to the permissible inference that he knowingly consumed the drug. Ultimately, we are satisfied that Alford’s wrongful use of cocaine was proven at trial. We are persuaded, beyond a reasonable doubt, that Alford is guilty of the charged offense. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987). II At the conclusion of evidence, the military judge held an Article 39(a), 10 U.S.C. § 839(a) session to discuss his instructions on findings. He advised counsel that he would give the members “the standard Mance instruction.” Both parties concurred. The “standard Mance instruction” is a modification to para. 3-76.4, DA Pam. 27-9, Military Judge’s Benchbook, Change 1 (15 February 1985), which conforms the pattern instruction to the Manee decision. See Mance, 26 M.J. at 256. The purpose of" }, { "docid": "12046656", "title": "", "text": "he and Jones were trying “to rid themselves of the” drug. 21 U.S.C.M.A. at 527, 45 C.M.R. at 301. By a divided vote, the Court held that the accused’s guilty pleas to possession of heroin were improvident. First, we observed that, if an accused pleaded guilty and then set up any matter inconsistent with his pleas, the military “judge has the duty” under Article 45 of the Code “to inquire [further] into the circumstances and, if the accused persists in his statements, to reject the plea” and proceed to trial as though he had pleaded not guilty. The Court then concluded that this should have been done, since “the accused explained his possession of the heroin in question in a manner consistent only with his innocence.” Indeed, the majority of the Court was of the view that [c]riminal liability cannot be imposed for possession of a forbidden substance that is truly planted evidence, when the accused’s sole purpose in controlling it for a few moments is to rid himself of it. The significant point was stated in Masters v. United States, 42 App DC 350, 356 (1914): “The word ‘wrongful,’ like the words ‘wilful,’ ‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in the doer of the act. The word ‘wrongful’ implies the opposite of right, a perverted evil mind in the doer of the act.” 21 U.S.C.M.A. at 528, 45 C.M.R. at 302 (emphasis added). In his dissenting opinion, Judge Quinn disagreed with the approach taken by the majority. Believing that, according to his own version of events, the accused had made clear that his intent was to return possession of the heroin to one Vanden bloom who had allegedly secreted the heroin in the wall, Judge Quinn reasoned: Possession for the purpose of transfer to an individual known to have no lawful right to receive it, as the accused concededly knew Yandenbloom had no right, is wrongful possession. Consequently, so far as appears from the accused’s account of the incident at the hearing before the trial judge, the facts demonstrate his guilt of" }, { "docid": "13649642", "title": "", "text": "evidence was legally sufficient to support the findings that Appellant was guilty of this offense. Assignments of Error In his most recent brief, Appellant resubmitted three earlier assignments of error for this Court to consider. We will address each in order. Assignment of Error I—Factual Insufficiency Appellant first contends that the military judge “erred” in convicting him of wrongful use of marijuana, because the defenses of innocent ingestion and good military character raised a reasonable doubt as to his guilt. In effect, he is asking this Court to set aside his conviction on the basis that the evidence of record must raise a reasonable doubt in our minds as to his guilt. Under our statutory obligations, before we can affirm a guilty verdict, we must determine both the legal and factual sufficiency of the evidence. Art. 66, UCMJ. The test for legal sufficiency “is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A.1987)(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The elements of wrongful use of a controlled substance are: (1) That the accused used a controlled substance; and (2) That the use by the accused was wrongful. Manual for Courts-Martial, United States (1984 ed.), Part TV, ¶ 37(b)(2). The Manual also provides: Knowledge of the presence of the controlled substance is a required component of [wrongful] use. Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence. This permissive inference may be legally sufficient to satisfy the government’s burden of proof as to knowledge. MCM, Part IV, ¶ 37c(10). See also United States v. Mance, 26 M.J. 244 (C.M.A.1988), cert. denied, 488 U.S. 942, 109 S.Ct. 367, 102 L.Ed.2d 356 (1988); United States v. Ford, 23 M.J. 331 (C.M.A.1987). Applying these principles to the facts of this case, we concluded earlier in this opinion that the evidence is legally" }, { "docid": "15879561", "title": "", "text": "thorough inquiry regarding this charge, we find the facts the appellant admitted to fairly met the requirements of the Manual for Courts-Mar-tial____ Simmons, No. NMCCA 200300528, slip op. at 2. Appellant challenges his conviction on the basis that he did not share CPL Schuknecht’s criminal intent when the latter assaulted PFC Whetstone in Appellant’s barracks room. According to Appellant, by affirming his conviction, the lower court failed to follow the mandate of Article 77, UCMJ, 10 U.S.C. § 877 (2000), and created a new standard of liability that ignores the concept of mens rea necessary to establish aider and abettor liability. Appellant, in his brief, concedes that he had a duty to intervene in the fight between CPL Schuknecht and PFC Whetstone. However, according to Appellant, federal law also requires knowledge on the part of the accused that he is sharing in the criminal venture and its purpose as an essential element of the crime of aiding and abetting. Appellant cites United States v. Jackson, 6 C.M.A. 193, 201, 19 C.M.R. 319, 327 (1955), for the proposition that mere inactive presence at the scene of a crime does not establish guilt. In response, the Government argues that Appellant’s failure to intervene served as encouragement, which is in and of itself sufficient to sustain the conviction for assault on the theory of aiding and abetting. In support of its position, the Government cites two lower court cases, United States v. Void, 17 M.J. 740, 743 (A.C.M.R.1983), and United States v. Toland, 19 C.M.R. 570 (N.B.R.1955). According to the Government, both cases stand for the proposition that inaction can lead to an inference of aid or encouragement and therefore liability as a principal under Article 77, UCMJ. Discussion “Pleas of guilty should not be set aside on appeal unless there is ‘a substantial basis in law and fact for questioning the guilty plea.’” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991) (quotation marks omitted)). “A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.” Id." }, { "docid": "22712741", "title": "", "text": "and specification necessarily implied the terminal element. An allegation of adulterous conduct cannot imply the terminal element. Article 134, if properly charged, would be constitutional as applied to Appellant’s adulterous conduct because, as discussed by the Supreme Court in Levy, tradition and custom give notice to servicemembers that adulterous conduct can give rise to a violation of the UCMJ. See 417 U.S. at 746-47, 94 S.Ct. 2547. But this only answers the question of whether adulterous conduct can constitutionally be criminalized under Article 134, not whether the wording of the charge and specification satisfies constitutional requirements. An accused cannot be convicted under Article 134 if the trier of fact determines only that the accused committed adultery; the trier of fact must also determine beyond a reasonable doubt that the terminal element has been satisfied. See Medina, 66 M.J. at 27. Because adultery, standing alone, does not constitute an offense under Article 134, the mere allegation that an accused has engaged in adulterous conduct cannot imply the terminal element. Likewise, the word “wrongfully” cannot of itself imply the terminal element. “Wrongfully” is a word of criminality and, though our ease law has been at times unclear, see United States v. Choate, 32 M.J. 423, 427 (C.M.A.1991), words of criminality speak to mens rea and the lack of a defense or justification, not to the elements of an offense, see United States v. King, 34 M.J. 95, 97 (C.M.A.1992); United States v. Fleig, 16 C.M.A. 444, 445, 37 C.M.R. 64, 65 (1966). Neither the word “wrongfully” nor similar words of criminality can be read to mean or be defined as, for example, a “disorder[ or] negleet[ ] to the prejudice of good order and discipline.” Therefore, while potentially necessary-depending on the nature of the alleged conduct — such words do not imply the terminal element in the charge and specification. In a contested case in which Appellant challenged the charge and specification at trial, the inclusion of “Article 134” in the charge does not imply the terminal element. The words “Article 134” do not, by definition, mean prejudicial to “good order and" } ]

[ { "docid": "20469773", "title": "", "text": "address each individually for the sake of clarity, if not brevity. A. Raphael Donnell Donnell argues that the district court improperly admitted into evidence (1) the wiretap recordings of his conversations with Seals, (2) the handwritten note describing his involvement in the conspiracy, and (3) his previous conviction for possession of marijuana. “Evidentiary rulings are reviewed for abuse of discretion, and we afford deference to the district judge who saw and heard the evidence.” United States v. Espinosa, 585 F.3d 418, 430 (8th Cir.2009) (quoting United States v. Davidson, 449 F.3d 849, 853 (8th Cir. 2006)). However, we will not reverse a conviction if an error was harmless. Id. “The test for harmless error is whether the erroneous evidentiary ruling ‘had a substantial influence on the jury’s verdict.’ ” United States v. Lupino, 301 F.3d 642, 645 (8th Cir.2002) (internal quotation marks omitted) (quoting Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995)). With respect to the wiretap recordings of his conversations with Seals, Donnell argues that they were of little probative value compared to the danger of unfair prejudice and that the entire recordings therefore should have been excluded under Federal Rule of Evidence 403. Donnell argues that the recorded conversations do not include any mention of drugs and that the firearms discussed had nothing to do with a drug distribution conspiracy, rendering the recordings minimally probative. The Government argues that the discussions involving firearms supported the conspiracy charge, since the firearms were being used to protect the drug business and were therefore probative of Donnell’s involvement in the conspiracy. While drugs are not discussed during the recordings, “[o]ur court recognizes the known correlation between drug dealing and weapons.” United States v. White, 356 F.3d 865, 870 (8th Cir.2004). “We have frequently observed that a firearm is a ‘tool of the trade’ for drug dealers.” United States v. Regans, 125 F.3d 685, 686 (8th Cir.1997). Donnell argues that the recordings were unfairly prejudicial because they include comments such as Seals’s statement about wanting to “put [his landlord] to sleep,” encouraging the jury to convict him based" } ]

[ { "docid": "19656421", "title": "", "text": "the months before the instant offenses; and Lucas admitted he had anhydrous ammonia in his backpack when he was arrested in Wisconsin on December 7, 2003. This evidence easily satisfies the preponderance of the evidence standard. See Thomas, 398 F.3d at 1062. Finally, the probative value of the evidence was not substantially outweighed by its prejudicial effect. We give substantial deference to the district court’s determination that the probative value of the evidence outweighed its prejudicial effect. See Walker, 470 F.3d at 1275 (citation omitted). A limiting instruction diminishes the danger of unfair prejudice. Id. The district court gave a thorough and accurate limiting instruction for Lucas. Lucas argues that, without the evidence of other criminal conduct, the jury may have disbelieved Knospe’s testimony that Lucas had borrowed her car, found Knospe had a motive to cover for her boyfriend, Bark, and concluded Bark was the driver. Put another way, Lucas suggests the jury may have found Knospe’s testimony incredible had the jury not been told of Lucas’s previous involvement with methamphetamine and possession of a firearm. Witness credibility is an issue for the jury to decide. See United States v. Rogers, 91 F.3d 53, 57 (8th Cir.1996) (citation omitted). We see minimal link between Lucas’s other criminal conduct and Knospe’s credibility, and no unfair prejudice to Lucas. The evidence of Lucas’s previous methamphetamine conviction, possession of a handgun, and manufacture of methamphetamine was highly probative of Lucas’s unmistakable knowledge and intent to manufacture methamphetamine and possess a firearm in the instant case. In addition, the district court gave a limiting instruction, both during trial and in the final jury instructions, thereby minimizing any prejudice Lucas might have suffered. We therefore conclude the district court did not abuse its discretion by determining the probative value of the contested evidence outweighed its prejudicial effect. B. OWI Conviction We review de novo a district court’s application of the advisory sentencing Guidelines. United States v. Spudich, 443 F.3d 986, 987 (8th Cir.2006) (per curiam). Lucas argues the district court erred in finding Lucas was a career offender under U.S.S.G. § 4B1.1 because Lucas’s" }, { "docid": "16434636", "title": "", "text": "either Grimaldo or Escobedo-Romero committed such an act in this case. Rosales did make some hearsay statements, but the court instructed the jury to consider only what he actually observed, not what he heard from other people. After reviewing Rosales’s testimony along with the court’s instructions, we find no abuse of discretion. The district court did improperly admit hearsay testimony from a member of the task force because it believed that he was testifying about what he heard on a surveillance tape of the June 12 transaction. Once the court became aware that the officer was relying on the statements of Brown and Carr, rather than, on the audiotape, it reversed its ruling and told the jury not to consider the testimony regarding the transaction as proof of the transaction. Later testimony from Brown and Carr regarding the same transaction was substantially similar to the officer’s testimony. We conclude that even if there was error, it was harmless beyond a reasonable doubt. The defendants’ remaining evidentiary challenges are similarly without merit and require no farther discussion. The district court did not abuse its discretion. VI. Finally, Escobedo-Romero and Grimaldo argue that the district court erred in its calculation of drug quantities attributable to them. We review determinations of drug quantity attributable to a defendant for clear error. See United States v. Sales, 25 F.3d 709, 711 (8th Cir. 1994). The district court found that sixty pounds of methamphetamine could be attributed to the entire conspiracy, but took into consideration the fact that Grimaldo was out of the country, for a large part of the conspiracy. The court also considered Rivas’s testimony about the quantity of methamphetamine stored at Escobedo- Romero’s apartment. We hold that the district court did not clearly err by attributing three pounds of methamphetamine to Grimaldo and two pounds of methamphetamine, plus 86.5 grams of cocaine, to Escobedo-Romero. For the foregoing reasons, we affirm the judgment of the district court. . The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa. . Rivas alleged that the substance was methamphetamine, but laboratory tests" }, { "docid": "9826151", "title": "", "text": "at 1992 WL 139360). The firearms, ammunition, some of the methamphetamine, and drug paraphernalia were found in the hatchback portion of the car. SEVERANCE OF UNLAWFUL FIREARMS POSSESSION COUNT Appellant next argues the district court abused its discretion in denying his motion to sever the unlawful firearms possession count (count IV). He argues that the joinder of the unlawful firearms possession count allowed the jury to hear otherwise inadmissible evidence about his prior convictions. Ordinarily, we review severance decisions for abuse of discretion. E.g., United States v. Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 251, 133 L.Ed.2d 176 (1995). However, because this motion was not timely filed within 20 days of the omnibus pretrial motions or der, we may reverse only for plain error. E.g., United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). We find no error was committed by the district court. First, the more prejudicial of the two prior convictions, that for possession of methamphetamine for sale, would have been admissible in a trial on the drug trafficking counts alone as other crimes evidence under Fed.R.Evid. 404(b) to prove intent and knowledge. See United States v. Shoffner, 71 F.3d 1429, 1431-32 (8th Cir.1995). The prior conviction for receiving stolen property would not have been admissible under Fed. R.Evid. 404(b); however, any prejudice was limited by the method of proof used. As noted above, the government read to the jury portions of court records that included information about the type of offense, the date of conviction, and the length of the sentence. In addition, there was little possibility that the jury was confused about the evidence related to each count in light of the cautionary instruction given by the district court. The cautionary instruction limited the jury’s consideration of the two prior felony convictions to the unlawful firearms possession count and of the conviction for possession of methamphetamine for sale to intent and knowledge with respect to the drug trafficking counts only. BAILEY ISSUE Appellant next argues the district court erred in instructing the" }, { "docid": "17024955", "title": "", "text": "of the drugs and drug paraphernalia on her property. Mata Trejo further contends that the district court abused its discretion in giving a deliberate ignorance or willful blindness instruction to the jury because the evidence could only support two conclusions — that she had actual knowledge of the alleged drug manufacturing and trafficking activity on her property, or that she had no such knowledge — and thus there is no support for the conclusion that she was willfully blind to such activity. Mata Trejo timely objected to the instruction in the district court. “We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless.” United States v. List-man, 636 F.3d 425, 431 (8th Cir. 2011) (internal citation omitted). “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.” United States v. Galimah, 758 F.3d 928, 931 (8th Cir. 2014) (quoting Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011)). “A willful blindness or deliberate indifference instruction is appropriate when there is evidence to support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts.” Id. (internal quotation marks and citation omitted). The instruction is “a mechanism for inference,” not “a substitute for knowledge.” Id. (internal quotation marks and citation omitted). Because the evidence at trial was sufficient to establish that Mata Trejo either had actual knowledge of the methamphetamine or deliberately failed to inquire about it, the willful blindness instruction was appropriate. Mata Trejo claimed that Camaro stored clothes on her property for $3,000, a steep price for storage of clothing, which could have led the jury to conclude the payment was for the storage of methamphetamine and that Mata Trejo was either aware or willfully ignorant" }, { "docid": "5808289", "title": "", "text": "in Des Moines, Chavez-Alvarez was directed to a drug store to meet Avalos. The two vehicles left the drug store and met at an auto parts store parking lot, where the exchange of MSM for money occurred. Chavez-Alvarez’s calm demeanor during the traffic stop immediately after the exchange was a matter for the jury to consider. The jury was entitled to weigh the evidence, and it reasonably found that if Chavez-Alvarez did not actually know that he was acting in furtherance of a methamphetamine distribution ring, his ignorance was based on his decision not to ask any questions about the suspicious circumstances of his employment. B. Willful Blindness Instruction Mireles’s and Chavez-Alvarez’s contention that there was no evidentiary basis for the willful blindness instruction fails for the same reasons their challenges to the sufficiency of the evidence fail. As discussed earlier, a willful blindness instruction is appropriate when a defendant claims a lack of guilty knowledge, but the evidence supports an inference of deliberate ignorance. Florez, 368 F.3d at 1044; United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir.1993). Ignorance is deliberate if the defendant was presented with facts that put him or her on notice that criminal activity was particularly likely, yet the defendant intentionally failed to investigate those facts. Florez, 368 F.3d at 1044; Barnhart, 979 F.2d at 652. As recounted above, the evidence indicated that the defendants were aware that criminal activity was likely afoot, although they did not obtain final confirmation from Martinez-Garcia or the other co-conspirators. Moreover, the instruction was complete: it stated that the jury could not find knowledge if the defendants were “merely negligent, careless or mistaken as to whether [they were] acting in furtherance of a conspiracy” or if they “actually believed that the horse supplement, MSM, that [they] purchased was going to be used for Alejandro Martinez-Garcia’s horse(s).” We conclude that the instruction was properly given and that it fairly submitted the issue of knowledge to the jury. C. Use of Transcripts in Jury Deliberations Chavez-Alvarez argues that the district court erred when it furnished the jurors with the English-language" }, { "docid": "18254932", "title": "", "text": "larger conspiracy ....”) (quotation omitted). Ironi, though, was charged with aiding and abetting possession with intent to distribute cocaine and methamphetamine, not conspiracy. We have not specifically held whether the buyer-seller instruction may also be used in an aiding and abetting case. See United States v. Johnson, 495 F.3d 951, 974 (8th Cir.2007), petition for cert. filed,—U.S.L.W.- (U.S. Feb. 19, 2008) (No. 07-9456). However, even assuming, without deciding, that a buyer-seller instruction in an aiding and abetting case could be appropriate, the district court did not abuse its discretion in refusing to give this instruction. A buyer-seller instruction is “not appropriate when there is evidence of multiple drug transactions, as opposed to a single, isolated sale.” United States v. Hester, 140 F.3d 753, 757 (8th Cir.1998). Also, the instruction is only proper “if the evidence support[s the defendant’s] theory.” United States v. Jones, 160 F.3d 473, 481 (8th Cir.1998). In this case, the ledger found in Ennen’s bedroom showed numerous drug transactions between Ennen and Ironi over a fifteen-month period. This evidence of multiple drug transactions prevented the district court from giving the buyer-seller instruction to the jury. See Hester, 140 F.3d at 757. As to Ironi’s theory that he was only a buyer who purchased drugs from Ennen, Ironi’s testimony at trial contradicted that theory because he testified that he gave drugs to other people. Giving drugs to others, even without receiving money in exchange, is distributing drugs under § 841(a)(1). Id. at 760-61 (“Sharing drugs with another constitutes ‘distribution’ under § 841(a)(1).”) (quotation omitted); see also United States v. Fregoso, 60 F.3d 1314, 1325 (8th Cir.1995). The evidence shows that Ironi was involved in multiple drug transactions and does not support Ironi’s theory that he was only a buyer of drugs. Therefore, the district court did not abuse its discretion in refusing to give the buyer-seller instruction to the jury. D. Sufficiency of the Evidence Ironi argues that the district court should have granted his motion for judgment of acquittal because there was insufficient evidence to support the jury’s verdict and the jury’s acquittal on the methamphetamine count" }, { "docid": "398727", "title": "", "text": "woods and being abused by Never Misses A Shot was consistent with previous disclosures where she mentioned others performing similar acts, but omitted Never Misses A Shot. Additionally, Never Misses A Shot elicited testimony from J.N.M.A.S.’s mother and grandmother, both stating that they were not aware that Never Misses A Shot had any contact with J.N.M.A.S. and that they believed J.N.M.A.S. to have an untruthful character. Despite the extensive impeachment of J.N.M.A.S., a reasonable jury could have found J.N.M.A.S. to be credible. On redirect, J.N.M.A.S. testified that she had not previously disclosed Never Misses A Shot’s abuse to counselors and law enforcement “because he was still out there” and “he wasn’t, like, in jail. He was out-out.” Never Misses A Shot countered by pointing out that J.N.M.A.S. disclosed her abuse at the hands of several men to counselors and law enforcement who were also not in jail. Nevertheless, the jury may have concluded J.N.M.A.S. did not feel as threatened by them. Appellate courts are not well-equipped to evaluate a jury’s reasoning when making its credibility findings. “ ‘The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.’ ” United States v. Listman, 636 F.3d 425, 430 (8th Cir.2011) (quoting United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004)). As such, a jury’s credibility determinations are “virtually unassailable on appeal.” United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir.2008) (quotation omitted). Further, “[o]n numerous occasions we have upheld jury verdicts based solely on the testimony of cooperating witnesses.” United States v. Samuels, 611 F.3d 914, 917 (8th Cir.2010) (quoting Vickers, 528 F.3d at 1120). As a result, we find there was sufficient evidence for the jury to convict on Counts I and II based on their reliance on J.N.M.A.S.’s testimony and credibility. C. Counts I-IV: Instructing the Jury on the Lesser-included Offense Next, Never Misses A Shot argues that the district court erred when it did not instruct the jury on the lesser-included offense of simple assault. We review the district court’s decision not to instruct the jury on a lesser-included offense" }, { "docid": "20373622", "title": "", "text": "for unfair prejudice; and (4) pursuant to Fed. R.Evid. 105, the trial court shall, upon request, instruct the jury that the evidence of similar acts is to be considered only for the proper purpose for which it was admitted.” United States v. Poole, 929 F.2d 1476, 1481 (10th Cir.1991) (quoting United States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir.), cert. denied, — U.S. -, -, 112 S.Ct. 238, 239, 116 L.Ed.2d 194 (1991)). We find that the trial court did not abuse its discretion in admitting the evidence under 404(b). Its decision met all four requirements for protection against unfair prejudice. First, the evidence was offered for a proper purpose. The theory of the defense at trial centered on defendant’s lack of knowledge and involvement in the drug activities charged in the indictment. The testimony was offered to show defendant knew of the methamphetamine distributions. Second, the testimony of Ms. Nowell was highly relevant to the charges of distribution and conspiracy because it concerned the defendant’s prior distributions of methamphetamine, the defendant’s solicitation of the witness to find buyers for the methamphetamine, and the defendant’s previous discussions with the witness regarding a “drug debt.” Ms. NoweU’s testimony allowed the jury to reasonably conclude that the defendant involved himself in the distribution of methamphetamine, and conspired to possess and distribute the drug. Third, the district court implicitly determined that the probative value of the testimony was not substantially outweighed by its potential for unfair prejudice. The trial court has broad discretion to determine whether prejudice inherent in otherwise relevant evidence outweighs its probative value. United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). The fourth requirement was satisfied when the trial court instructed the jury, at the time the evidence was admitted, to consider the testimony only for the limited purpose of showing the defendant’s motive, intent, knowledge, absence of mistake or accident, or the existence of a scheme or plan. This cautionary instruction, in combination with the court’s instruction at the conclusion of the testimony, was sufficient to protect the defendant from unfair prejudice. See United States v." }, { "docid": "21412004", "title": "", "text": "Des Moines. Upon her return to Iowa after one trip, Boatwright met Santamaría at a Des Moines hotel. After the other trip, Santamaría and Mendez came to her home. Boatwright’s testimony places Santama-ría in a pivotal role within the conspiracy, helping to coordinate the trafficking and distribution of methamphetamine between California and Iowa, traveling between the two states, and meeting with Boatwright in both states. Cruz, Johnson, and Gatewood also testified against Santamaría, describing a role for Santamaría in the conspiracy that was consistent with Boatwright’s testimony. This testimony, combined with the evidence collected from Santamaría and the red Jetta, more than suffices to support the jury’s verdict. 2. Santamaría: Willful Blindness Instruction The court submitted a willful blindness instruction to the jury without specific reference to any one of the four defendants, and no defendant objected generally or asked that the instruction be limited. Because there was no objection or request to limit the instruction, we review only for plain error. United States v. Bamberg, 478 F.3d 934, 939 (8th Cir.2007). “Plain error only exists if (1) there was an error, (2) the error was plain, (3) the error affected [the defendant’s] substantial rights, and (4) a failure to grant relief would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Falcon, 477 F.3d 573, 577 (8th Cir.2007) (citation and internal quotation marks omitted). The willful blindness instruction in this case was appropriate because one of Santamaria’s co-defendants, GasconGuerrero, claimed ignorance of the conspiracy. As explained below, however, the evidence strongly demonstrated that Gascon-Guerrero would have to have been deliberately ignorant not to appreciate the existence and activities of the conspiracy. See United States v. Florez, 368 F.3d 1042, 1044 (8th Cir.2004) (“A willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge, but the evidence supports an inference of deliberate ignorance.”) (citation and inter nal quotation marks omitted). Further, the government did not argue at closing that willful blindness was applicable to Santamaría. Where a willful blindness instruction is appropriate as to at least one of multiple co-defendants, we" }, { "docid": "19787149", "title": "", "text": "possessed methamphetamine. Both the evidence of the apparent heroin sale and the evidence of methamphetamine possession were relevant to show that Cockrell had the requisite intent for the crime charged — to possess heroin with an intent to distribute. Ignoring the testimony of both officers, Cockrell states that the quantity possessed was an amount sufficient for personal use. Presumably he wishes us to find that the only intent that could be inferred is an intent to use the drug, not to distribute. But the evidence was clear: 1.4 grams of methamphetamine was consistent with either personal use or distribution. Thus, one could reasonably infer an intent to possess the drug with an intent to distribute — the same intent that is charged in the current offense. Moreover, it is acceptable to infer such intent even where the prior offense drug is different from the drug charged in the current offense. See, e.g., Booker, 334 F.3d at 412 (admitting evidence of marijuana offense to show intent in crack cocaine conspiracy); Broussard, 80 F.3d at 1040 (admitting evidence of marijuana offense to show intent in cocaine conspiracy). We also find that the probative value of this evidence was not substantially outweighed by any unfair prejudice. The evidence regarding the telephone drug trans action and the distributable quantity of methamphetamine were contemporaneous with the heroin conspiracy with which Cockrell was charged. Moreover, the district court gave proper limiting instructions immediately following the testimony and again in the jury charge before deliberations. Although the jury could infer Cockrell’s intent through the testimony of a number of witnesses who purchased or received drugs from Cockrell, the government needed corroborative evidence of that intent. Most of the witnesses were indicted and unindicted co-conspirators, many of whom received immunity or plea agreements, a fact that the defense used to repeatedly attack credibility. Given Cockrell’s choice to defend in this manner, it was not an abuse of discretion to admit testimony regarding the events at the Farmer’s Branch police station for the purposes of showing intent and to support any inference of intent that might be drawn from" }, { "docid": "13303455", "title": "", "text": "indication as to the underlying factual circumstances. Because of the lack of evidence, we conclude that the prior acts are not close in time and have only facial similarities. Accordingly, the district court abused its discretion in admitting the evidence. The second Huddleston factor—relevance—is not met and, thus, as to the remaining Huddleston factors, the evidence necessarily is less probative than prejudicial and the district court’s cautionary instruction to the jury was of limited utility. Yet, this error is considered harmless “unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir.1996) (quoting United States v. Flanagan, 34 F.3d 949, 955 (10th Cir.1994)). In determining whether the error was harmless, we first note that, considering the defense theory that Becker used and possessed methamphetamine—but did not manufacture or distribute it—the evidence did have some probative value in rebutting Becker’s theory as to his intent. His claim that the equipment was used to produce hash oil instead of methamphetamine is unpersuasive. In addition, Becker’s admission that he used and possessed methamphetamine effectively informed the jury of his involvement with methamphetamine. While this admission diminished the necessity of admitting the prior acts, it also diminished the prejudice resulting from the admission because the evidence was cumulative. Moreover, the district court instructed the jury to consider the evidence only for the purpose for which it was admitted. “Where the evidence against a defendant is overwhelming, any error in mentioning a defendant’s criminal record is harmless.” United States v. Sloan, 65 F.3d 861, 865 (10th Cir.1996) (citing United States v. Van Scoy, 482 F.2d 347, 349 (10th Cir.1973)). Because there is overwhelming evidence absent Becker’s prior convictions to support a guilty verdict, we conclude that any error or prejudice resulting from the admission of his prior convictions and the search of his residence is harmless. V “Cumulative-error analysis applies where there are two or more actual errors.” Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir.1999) (internal quotation and citations omitted). Becker contends" }, { "docid": "22936109", "title": "", "text": "U.S. 891, 112 S.Ct. 256, 116 L.Ed.2d 210 (1991)). The evidence at trial showed that a search of Vaandering’s residence revealed not only 167 grams of methamphetamine, but also a methamphetamine lab complete with precursor chemicals, glassware, and scales. Furthermore, there was testimony, that Vaandering’s residence was a source of methamphetamine for the purpose of distribution. Significantly, McMillan failed to produce any evidence, other than the quantity of methamphetamine actually recovered, to support the proposition that the methamphetamine lab was used to produce methamphetamine sole ly for the personal use of the members of the conspiracy. We conclude a rational jury could not have convicted McMillan for conspiracy to possess without relying on the precise evidence establishing that the purpose of the conspiracy was the production and distribution of methamphetamine. In reaching this conclusion, we express no opinion as to whether 167 grams of methamphetamine, without more, is a sufficiently large quantity of drugs to preclude an instruction for simple possession. Our decision is based on the amount of methamphetamine recovered combined with the considerable amount of “other evidence” establishing distribution. The district court was within its discretion in denying McMillan’s request for a jury instruction on the lesser-included offense of conspiracy to possess. VIII Testimony of Coconspirator McMillan contends the district court erred by failing to strike the testimony of cocon-spirator Dunlap that he “figured” McMillan was providing chemicals for Vaandering because this constituted inadmissable lay opinion testimony. “We review claims of evidentiary error under an abuse of discretion standard.” United States v. Brook, 4 F.3d 1480, 1487 (9th Cir.1993). A district court’s ruling on the relevance of evidence is reviewed for an abuse of discretion. United States v. Rubio-Topete, 999 F.2d 1384, 1338 (9th Cir.1993). McMillan’s counsel first raised the issue of Dunlap’s actual knowledge of McMillan’s involvement in Vaandering’s drag operation during his cross-examination of Dunlap. McMillan’s counsel asked Dunlap whether, to his knowledge, McMillan had ever distributed, assisted in the manufacture of, or sold methamphetamine. On redirect examination the prosecutor asked Dunlap if he told the police that he believed McMillan was responsible for providing chemicals" }, { "docid": "14853286", "title": "", "text": "rather than admissibility, of the evidence. The fact that the note pad was taken from McFarland after defendants’ arrest is irrelevant to the question of admissibility of the evidence against Davis. The record indicates the note pad was dated November 11, 1983, at which time defendants were allegedly engaged in their conspiracy to manufacture methamphetamine. The note pad was seized from McFarland immediately after a meeting in which Davis and McFarland discussed at length the manufacturing process for methamphetamine. It contained references to quantities and corresponding prices. The note pad was relevant as circumstantial evidence of McFarland’s knowledge and familiarity with drug transactions. Therefore, its probative value outweighed the danger of prejudice, and it was properly admitted. Fed. R.Evid. 401, 403. See also Fed.R.Evid. 801(d)(2)(E); United States v. Federico, 658 F.2d 1337, 1341-42 (9th Cir.1981). VI. Defendant McFarland argues the district court erred in admitting evidence of sales of methamphetamine by Davis to Riley and his friend, Jerry Woods, which allegedly occurred prior to McFarland’s involvement in the events leading to the indictment in this case. McFarland contends the district court’s failure to caution the jury that the evidence was to be considered against Davis only at the time the evidence was introduced constitutes reversible error. We disagree. Under Fed.R.Evid. 404(b), evidence of crimes not charged in the indictment is relevant to prove intent and plan. United States v. Barbieri, supra, at 719; United States v. Ahern, 612 F.2d 507, 509 (10th Cir.1980), cert. denied, 449 U.S. 1093, 101 S.Ct. 890, 66 L.Ed. 822 (1981). Matters of intent and plan are particularly relevant in any conspiracy case. United States v. Herbst, 565 F.2d 638, 641 (10th Cir.1977). Evidence of past sales of methamphetamine by Davis to Riley was relevant to show Davis’s intent to manufacture methamphetamine. In light of cautionary instructions given to the jury that the evidence was relevant to Davis only, we find that its probative value outweighed the danger of prejudice; therefore, the district court did not abuse its discretion in admitting the evidence. Fed.R.Evid. 403. See also United States v. Barbieri, supra, at 719. The fact" }, { "docid": "17024950", "title": "", "text": "Trejo’s conviction. This appeal followed. II. On appeal, Mata Trejo argues that the district court erred in denying her motion for acquittal and abused its discretion in giving a deliberate ignorance instruction to the jury. We will consider these arguments in turn. A. “We review a motion for judgment of acquittal under a de novo standard of review.” United States v. Espinosa, 585 F.3d 418, 423 (8th Cir. 2009). Mata Trejo argues that the district court erred in denying her motion for acquittal because the evidence was insufficient to support her conviction on the conspiracy charge. Specifically, Mata Trejo argues that the jury’s acquittal as to the charge of possession with intent to distribute methamphetamine is inconsistent with the conclusion that the government met its burden of proof as to the elements of conspiracy to distribute methamphetamine. When considering a jury verdict that a party characterizes as inconsistent, we ask “whether the government presented sufficient evidence to support the conviction. We are reluctant to delve into the minds of the jurors to determine the reasons for apparently inconsistent verdicts.” United States v. Opare-Addo, 486 F.3d 414, 416 (8th Cir. 2007) (internal citations omitted). ‘We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor,, and accepting all reasonable inferences that support the verdict.” United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003) (citation omitted). “Reversal is appropriate only where a reasonable jury could not have found all the elements of the offense beyond a rea sonable doubt.” United States v. Armstrong, 253 F.3d 335, 336 (8th Cir. 2001). To prove a conspiracy to distribute drugs under 21 U.S.C. § 846, the government must show: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally or knowingly joined the conspiracy. United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009) (internal quotation marks and citation omitted); United States v. Pizano, 421 F.3d 707, 719 (8th Cir. 2005)." }, { "docid": "3199289", "title": "", "text": "district court erred in failing to grant a mistrial after a government witness violated an order in limine and testified that appellant was involved in the manufacture of methamphetamine. As a general rule, it is within the discretion of the district court to decide whether a trial has been so tainted by prejudicial testimony that a mistrial should be declared and the decision will only be reviewed for an abuse of discretion. United States v. Encee, 256 F.3d 852, 854 (8th Cir.2001). In addition, the admission of a prejudicial statement is “ ‘ordinarily cured by striking the testimony and instructing the jury to disregard the remark.’ ” United States v. Coleman, 349 F.3d 1077, 1087 (8th Cir.2003) (quoting United States v. Muza, 788 F.2d 1309, 1312 (8th Cir.1986)), cert. denied, 541 U.S. 1080, 124 S.Ct. 2432, 158 L.Ed.2d 996 (2004). However, even if a curative instruction is given, this court must still determine whether the verdict was “substantially swayed” by the prejudicial comment. Id. In making this determination, we must evaluate whether a curative instruction was sufficient in the context of the entire trial, and weigh the prejudice against the strength of the government’s evidence. Id. This court will affirm a conviction, despite the introduction of an inadvertent prejudicial comment, where there was “substantial evidence” of guilt. Id. Although the testimony about methamphetamine was improper, the district court took prompt remedial action to alleviate any possible prejudice by striking the testimony and giving a curative instruction immediately after the misconduct occurred. In addition, the deputy’s reference to appellant’s alleged drug involvement was an isolated incident. While appellant claims that the government elicited testimony about a video monitoring system outside appellant’s house and repeatedly discussed the search warrant for appellant’s residence, the jury never heard of any relationship between appellant’s alleged drug involvement and the monitoring system or search warrant. Thus, there is no reasonable basis to believe that these references could have improperly tainted the jury’s deliberation. Moreover, because there was substantial evidence of appellant’s guilt, any error in the failure to declare a mistrial was harmless. As noted previously," }, { "docid": "398728", "title": "", "text": "findings. “ ‘The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.’ ” United States v. Listman, 636 F.3d 425, 430 (8th Cir.2011) (quoting United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004)). As such, a jury’s credibility determinations are “virtually unassailable on appeal.” United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir.2008) (quotation omitted). Further, “[o]n numerous occasions we have upheld jury verdicts based solely on the testimony of cooperating witnesses.” United States v. Samuels, 611 F.3d 914, 917 (8th Cir.2010) (quoting Vickers, 528 F.3d at 1120). As a result, we find there was sufficient evidence for the jury to convict on Counts I and II based on their reliance on J.N.M.A.S.’s testimony and credibility. C. Counts I-IV: Instructing the Jury on the Lesser-included Offense Next, Never Misses A Shot argues that the district court erred when it did not instruct the jury on the lesser-included offense of simple assault. We review the district court’s decision not to instruct the jury on a lesser-included offense for abuse of discretion. See United States v. Tarnow, 705 F.3d 809, 815 (8th Cir.2013). “We will affirm so long as the instructions, taken as a whole, fairly and adequately submitted the issues to the jury.” United States v. Pumpkin Seed, 572 F.3d 552, 562 (8th Cir.2009) (quotation omitted). A district court acts within its discretion by giving an instruction on a lesser-included offense where: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of a lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or defense. Id. at 562 (quotation omitted). In Pumpkin Seed, we upheld the district court’s decision to instruct the jury of a" }, { "docid": "18254930", "title": "", "text": "F.3d 1111, 1114 (8th Cir.1998) (listing cases where prior acts from twelve and thirteen years ago were admissible). Third, the prior crimes are supported by sufficient evidence, as Ironi does not dispute the two convictions. Fourth, any potential unfair prejudice does not substantially outweigh the probative value of this evidence. The prior crimes had probative value because Ironi argued that he did not have knowledge of Ennen’s drug possession or drug dealings at his house and did not have the intent to participate in them. However, the prior possession convictions are relevant to establishing that Ironi had the intent and knowledge necessary for a jury to convict him of aiding and abetting possession with intent to distribute cocaine and methamphetamine. His prior convictions rebut his argument that he lacks intent to participate in the cocaine dealings and demonstrate that he had knowledge about cocaine and the types of materials and objects typically found in the presence of cocaine, such as scales, drug packaging materials and cocaine cutting agents. Furthermore, any prejudicial effect of admitting the prior crimes was reduced by the district court’s limiting instruction to the jury that it could only consider the prior crimes to determine Ironi’s intent. See Frazier, 280 F.3d at 848. Therefore, the district court did not abuse its discretion in admitting Ironi’s prior drug crimes. C. Buyer-Seller Instruction “We review a district court’s rejection of defendant’s proposed instruction for abuse of discretion, and we recognize that district courts are entitled to broad discretion in formulating the jury instructions.” United States v. Hayes, 518 F.3d 989, 994 (8th Cir.2008) (internal quotation and citations omitted). Ironi argues that the district court abused its discretion in refusing to submit his buyer-seller instruction to the jury. We have acknowledged that the use of the buyer-seller instruction in conspiracy cases may be appropriate. See United States v. Adams, 401 F.3d 886, 898 (8th Cir.2005); United States v. Jones, 160 F.3d 473, 481-82 (8th Cir.1998); United States v. Prieskom, 658 F.2d 631, 636 (8th Cir.1981) (“[Pjroof of a buyer-seller relationship, without more, is inadequate to tie the buyer to a" }, { "docid": "17024954", "title": "", "text": "men pour a liquid retrieved from the house into aluminum pans and place them under a flatbed trailer. He also indicated that he observed a man on the property digging in the ground. Notably, some of the methamphetamine that was obtained was packaged in dirt-encrusted Tupperware containers. The officers further testified that they observed Mata Tre-jo moving about the property, entering and leaving the residence and walking near the garage, which suggests that she was aware, or otherwise willfully ignorant, of the drug activity on her property. We agree with the district court that the totality of this evidence, viewed in the light most favorable to the verdict, is sufficient to justify the jury’s guilty verdict on the conspiracy to distribute charge. Accordingly, the district court did not err in denying Mata Trejo’s motion for acquittal. B. The statute at issue, conspiracy to distribute methamphetamine, requires that a defendant act knowingly. 21 U.S.C. § 846; see Pizano, 421 F.3d at 719. Mata Trejo claims that she did not act knowingly because she was not aware of the drugs and drug paraphernalia on her property. Mata Trejo further contends that the district court abused its discretion in giving a deliberate ignorance or willful blindness instruction to the jury because the evidence could only support two conclusions — that she had actual knowledge of the alleged drug manufacturing and trafficking activity on her property, or that she had no such knowledge — and thus there is no support for the conclusion that she was willfully blind to such activity. Mata Trejo timely objected to the instruction in the district court. “We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless.” United States v. List-man, 636 F.3d 425, 431 (8th Cir. 2011) (internal citation omitted). “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.” United" }, { "docid": "789155", "title": "", "text": "evidence suggesting Hernandez’s guilt, supports a finding of harmlessness. Here, there was overwhelming evidence that Hernandez was guilty of at least possession of methamphetamine and importation of more than fifty grams of methamphetamine. The package, which tested positive for more than 159 grams of methamphetamine, was found on Hernandez’s person as he was trying to enter the United States from Mexico. This evidence was uncontroverted at trial. Hernandez argues that because he had no knowledge that the drugs were in his left front pants pocket, the error was prejudicial because it commented on his knowledge that drugs were present. We disagree. Hernandez’s silence when asked about the package was not in itself inculpa-tory. His silence was not inconsistent with his defense theory that the driver planted the drugs on him. Moreover, given the overwhelming evidence against Hernandez, we are confident that a jury in the end would have ignored Hernandez’s improbable story that he did not know drugs were in his front pants pocket. We hold that the inclusion of testimony regarding Hernandez’s silence was harmless beyond a reasonable doubt. Ill A Hernandez next argues that his conviction for possession of methamphetamine with intent to distribute should be vacated because the district court refused to instruct the jury on the lesser included offense of simple possession. We review a district court’s refusal to instruct on a lesser included offense using a two part test. First, “the defendant must prove that the offense on which instruction is sought is a lesser-included offense of that charged.” United States v. Fejes, 232 F.3d 696, 703 (9th Cir.2000) (citation and internal quotation marks omitted). This is reviewed de novo. See United States v. Amt, 474 F.3d 1159, 1163 (9th Cir.2007). The government concedes that 21 U.S.C. § 844(a), simple possession of methamphetamine, is a lesser included offense of 21 U.S.C. § 841(a), possession of methamphetamine with intent to distribute. Second, to warrant a lesser included offense instruction “the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” Schmuck" }, { "docid": "2187939", "title": "", "text": "basis of their ethnic backgrounds or national origin.” Id. at 597. More recently, the Ninth Circuit considered a case in which a DEA agent testified about the roles of “Middle Easterners” and “Mexicans” in the production of methamphetamine. United States v. Nobari, 574 F.3d 1065, 1072 (9th Cir.2009). The defendants in the case, who were of either Middle Eastern or Mexican descent, had been charged in a methamphetamine conspiracy. Id. at 1070. In response to questions from the prosecution, the agent indicated that individuals of Middle Eastern descent are responsible for bringing pseu-doephedrine into the United States from Canada and that Mexican individuals are responsible for cooking the methamphetamine. Id. at 1072. The prosecution posed similar questions about the roles of certain ethnic groups to an informant who was called as a witness by the defense. Id. at 1071-72. The day after these witnesses testified, the defense attorney moved to strike the testimony containing ethnic generalizations. Id. at 1072. In stead, the court gave the jury an instruction not to consider a person’s ethnicity in determining whether he or she was likely to have engaged in criminal activity. Id. Despite this instruction, however, the prosecution returned to the ethnic generalizations during closing, emphasizing the importance of the roles in the manufacturing of methamphetamine. Id. at 1073. The Ninth Circuit concluded that any potential probative value of the ethnic generalization testimony was substantially outweighed by the danger of unfair prejudice. Id. at 1075. The court found that the district court had abused its discretion by admitting the testimony and allowing the prosecutor to reference the testimony during closing argument, but it ultimately found the error to be harmless. Id. at 1083. The Second, Eighth, and D.C. Circuits have also held that the introduction of evidence connecting the race or ethnicity of a defendant to racial or ethnic generalizations about a particular drug trade is improper. In Cruz, a case involving Hispanic defendants, the Second Circuit held that the district court erred in admitting a DEA agent’s description of the neighborhood in which the drug transactions at issue allegedly took place. Cruz," } ]

[ { "docid": "6932177", "title": "", "text": "§ 1291. DISCUSSION We affirm the decisions of the district court denying Tolle’s motion to voluntarily dismiss and granting CTI’s motion for summary judgment as to claims raised under §§ 502(a)(1)(B) and 503 of ERISA. Rule 41(a)(2) provides in relevant part that: Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. Fed.R.Civ.P. 41(a)(2). Permitting a plaintiff to voluntarily dismiss an action without prejudice, under Rule 41(a)(2) of the Federal Rules of Civil Procedure, is within the sound discretion of the district court. FDIC v. Knostman, 966 F.2d 1133, 1142 (7th Cir.1992). Inversely, the district court has the discretionary power to deny a plaintiffs request to voluntarily dismiss a claim without prejudice. Kapoulas v. Williams Ins. Agency, Inc., 11 F.3d 1380, 1383 (7th Cir.1993). Thus, we apply the abuse of discretion standard in reviewing the district court’s decision denying Tolle’s motion to dismiss. In the instant action, the district court did not abuse its discretion. At the time of Tolle’s motion to voluntarily dismiss, filed January 11, 1993, the ease had been pending since 1989, discovery had been completed for approximately twenty-two months, the district court had limited the contested issues in the matter by granting a partial summary judgment, we had remanded the case so that the district court could address the remaining issues regarding the claims raised under §§ 502(a)(1)(B) and 503, and the district court had issued specific directives instructing the parties to file cross-motions for summary judgment to address the matter expeditiously. Additionally, CTI objected to the voluntary dismissal of the claims without prejudice. Under these circumstances, the district judge, who was thoroughly familiar with the ease, did not abuse his discretion in denying Tolle’s Rule 41(a)(2) motion. Tolle’s argument that the district court erred in denying the motion to dismiss lacks support in the Seventh Circuit. Tolle contends that the district court should have granted the motion to dismiss because CTI utterly failed to establish its" } ]

[ { "docid": "3484849", "title": "", "text": "counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.” The question of the right of the plaintiff to dismiss after answer has been filed is discussed in 2 Barron & Holtzoff, Federal Practice & Procedure, § 912, and there is an annotation on the subject following the report of Bolten v. General Motors Corp., 7 Cir., 180 F.2d 379, 21 A.L.R.2d 623, the annotation beginning at 21 A.L.R.2d 627. The rule followed in most circuits is that “the matter is then within the sound discretion of the court, whose -order is reviewable only for abuse of discretion.” 2 Barron & Holtzoff, supra, p. 619. The annotation in 21 A.L.R.2d states, at page 631, that: “Most of the lower federal courts ■ take the view that the unqualified right to dismiss without prejudice . does not exist after the filing of an answer, but that an application to dismiss without prejudice after an answer has been filed is addressed to the sound discretion of the court. * * * »> • In New York C. & St. L. R. Co. v. Vardaman, 8 Cir., 181 F.2d 769, at page 770, the Court stated the rule as follows: “The basic principal [sic] of law involved here is stated in Federal Rules of Civil Procedure, Rule 41(a) (2), 28 U.S.C.A., that an action shall not be dismissed by the plaintiff save upon order of the court and ‘upon such terms and conditions as the court deems proper.’ The judicial discretion thus authorized has been construed to allow dismissal, upon payment of costs, “unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second law suit.’ Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 91 L.Ed. 849; Home Owners’ Loan Corporation v. Huffman, 8 Cir., 134 F.2d 314, 317. * * * ” Here none of the defendants and interveners will suffer any “plain legal prejudice.” Because of the substantial change in circumstances brought about by" }, { "docid": "3351455", "title": "", "text": "MEMORANDUM AND ORDER SAFFELS, District Judge. This matter is before the court on pro se plaintiffs “Petitions to Temporarily Dismiss Case” (Docs. 77 and 78). The court shall construe plaintiffs petitions as motions for voluntary dismissal without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). Plaintiffs lawsuit arises out of his termination from employment with Unified School District No. 501 (“US 501” or “the School District”) in May 1991. He claims that the School District based his discharge on his race or in retaliation for previously filing a charge of discrimination and that such discharge was in violation of his employment contract. Mr. Jenkins also claims that defendant falsely accused him of certain misconduct while employed. Fed.R.Civ.P. 41 provides that an action may be dismissed by the plaintiff up to the time of filing of an answer or a motion for summary judgment. Fed.R.Civ.P. 41(a)(1). Since the defendant in this case has filed its answer, Mr. Jenkins must look to Fed. R.Civ.P. 41(a)(2) for dismissal. A dismissal without prejudice under Fed.R.Civ.P. 41(a)(2) rests on the district court’s sound discretion and the movant’s acceptance of any proper terms and conditions set by the district court. American Nat. Bank and Trust Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991). “Conditions are designed to alleviate any prejudice a defendant might otherwise suffer upon refiling of an action.” (Id. at 1412.1991). The district court should exercise its discretion in light of the central purpose of Fed.R.Civ.P. 41(a)(2), which is to prevent voluntary dismissals which unfairly affect the opposing party and, where appropriate, to impose curative conditions. Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir.1993). “When considering a motion to dismiss without prejudice, ‘the important aspect is whether the opposing party will suffer- prejudice in the light of the valid interests of the parties.’” Clark, 13 F.3d at 1411 (quoting Barber v. General Electric Co. 648 F.2d 1272, 1275 (10th Cir.1981)). Courts ordinarily allow dismissal without prejudice except where the defendant would “suffer some plain legal prejudice other than the mere prospect of a second lawsuit.” Keal v. Monarch Life Ins. Co., 126 F.R.D." }, { "docid": "14149354", "title": "", "text": "the mere prospect of a second lawsuit.” Id. (citation omitted). In determining whether such prejudice would result, courts typically consider “the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether a motion for summary judgment has been filed by the defendant.” Id.; see also Doe v. Uro health Sys., Inc., 216 F.3d 157, 160 (1st Cir.2000). A Rule 41(a)(2) dismissal may be conditioned on whatever terms the district court deems necessary to offset the prejudice the defendant may suffer from a dismissal without prejudice. LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 685 (7th Cir.1998); McCants v. Ford Motor Co., 781 F.2d 855, 856 (11th Cir. 1986). While such conditions often involve the payment of costs incurred by a defendant, this court has expressly rejected the contention that the payment of defense costs is universally required for voluntary dismissal under Rule 41(a)(2). Specifically, in DWG, the defendant relied “on what it describe[d] as a nearly universal requirement that voluntary dismissals are to be accompanied by payment of defense costs.” 962 F.2d at 1202. This court held, however, that: “In fact, no such requirement or rule exists in this or in any other Circuit. Although courts frequently impose defense costs on plaintiffs granted a voluntary dismissal, no circuit court has held that such costs are mandatory.” Id. (citing Stevedoring Servs. of Am. v. Armilla Intern., 889 F.2d 919, 921 (9th Cir.1989)). Likewise, we resist defendants’ suggestion in this case that courts should necessarily require payment of defense costs before allowing a plaintiff to dismiss under Rule 41(a)(2). Nor are we persuaded that it was an abuse of discretion for the district court to decide not to require payment of defendants’ costs in these cases. Defendants specifically argue that the district court failed to heed this court’s rejection of a “one-size-fits-all” explanation for plaintiffs’ motions to dismiss these cases under Rule 41(a)(2). Actually, this court rejected the plaintiffs’ argument that the adverse decision" }, { "docid": "30579", "title": "", "text": "the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.” In McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.1985), we noted that “[a]s ... the language and history of Rule 41(a) imply, the general purpose of the rule is to preserve the plaintiff’s right to take a voluntary nonsuit and start over so long as the defendant is not hurt. Thus the plaintiff can dismiss without the court’s permission, and without prejudice to his being able to bring a new suit, if the defendant has not yet answered the complaint or moved for summary judgment (Rule 41(a)(l)(i)); or with the court’s permission, but again without prejudice unless the court specified that the dismissal is with prejudice, at any later time (Rule 41(a)(2)).” (Emphasis added). The dismissal of a plaintiff’s complaint without prejudice under Rule 41(a)(2) is within the sound discretion of the district court and may be reversed only if the appellant can establish that the court abused that discretion. Tyco Laboratories, Inc. v. Koppers Co. Inc., 627 F.2d 54 (7th Cir.1980); Stern v. Barnett, 452 F.2d 211, 213 (7th Cir.1971). “The district court abuses its discretion only when it can be established [that] the defendant will suffer ‘plain legal prejudice’ as the result of the district court’s dismissal of the plaintiff’s action.” United States v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986). DEC argues that it will suffer plain legal prejudice if Kovalic’s motion to dismiss is sustained here because it will lose its right to defend against the lawsuit in a federal, rather than state, forum. In Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir.1969), this court delineated several factors for courts to consider in determining whether the defendant has suffered “plain legal prejudice” as a result of the dismissal of an action without prejudice: “..." }, { "docid": "6899102", "title": "", "text": "endorsed by the Supreme Court and this Court. The district judge’s second order cannot be categorized as a permissible exercise of abstention merely because the dispute addressed in that order involves an unquestionably serious issue of consequence to labor relations in Illinois. B. Voluntary Dismissal Under Federal Rule of Civil Procedure 41(a)(2), a district court may allow a plaintiff to dismiss his or her complaint voluntarily without prejudice. That decision is left to the sound discretion of the trial court. Tyco Laboratories, Inc. v. Koppers, Inc., 627 F.2d 54, 56 (7th Cir. 1980) (per curiam). Rule 41(a)(2) is misused, however, when the district judge has already rendered a final adjudication clearly resolving the merits of the case and then allows the losing party to “voluntarily dismiss” that order in favor of a state tribunal. Cases of this Court, such as Kovalic v. DEC Int'l, Inc., 855 F.2d 471 (7th Cir. 1988), which address the need to establish prejudice to the defendant before reversal of a Rule 41(a)(2) dismissal is appropriate, are not relevant to this case because of the res judicata effect of the district judge’s first order. Villegas is unable to provide this Court with any reported case in which a district judge has successfully followed the path taken in this case: deciding a case on the merits and then vacating his decision in order to grant the losing party the opportunity to press the same case in state court. C. Amendment of Judgment Under Federal Rule of Civil Procedure 59(e), a district court may alter or amend a judgment, allowing the court “to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings.” Charles v. Daley, 799 F.2d 343, 348 (7th Cir. 1986). Vacation of a judgment is one form of altering a judgment pursuant to Rule 59(e). Sutliff, Inc. v. Donovan Cos., Inc., 727 F.2d 648, 652 (7th Cir.1984). In this case, however, the district judge cited no errors or changes of heart regarding the merits of the legal arguments, but instead decided to send the case to the Illinois courts" }, { "docid": "14149353", "title": "", "text": "we face is that the court’s silence prohibits us from examining the soundness of its discretionary judgment. There may well be convincing reasons for denying the motion for costs. But unless such grounds are made explicit we cannot know for sure.’ ” 481 F.3d at 930 (quoting DWG, 962 F.2d at 1202). Although the district court’s orders on remand remained brief, each order adopted the magistrate judge’s findings and conclusions and explicitly denied defendants’ request that attorney fees be imposed as a condition of dismissal under Rule 41(a)(2). We have no difficulty concluding that there was individual consideration of the cases and that the record is sufficient to allow appellate review of the soundness of the district court’s exercise of its discretion. Turning to the merits, the purpose of Rule 41(a)(2) is to protect the nonmovant, here the defendants, from unfair treatment. Grover, S3 F.3d at 718. “Generally, an abuse of discretion is found only where the defendant would suffer ‘plain legal prejudice’ as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit.” Id. (citation omitted). In determining whether such prejudice would result, courts typically consider “the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether a motion for summary judgment has been filed by the defendant.” Id.; see also Doe v. Uro health Sys., Inc., 216 F.3d 157, 160 (1st Cir.2000). A Rule 41(a)(2) dismissal may be conditioned on whatever terms the district court deems necessary to offset the prejudice the defendant may suffer from a dismissal without prejudice. LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 685 (7th Cir.1998); McCants v. Ford Motor Co., 781 F.2d 855, 856 (11th Cir. 1986). While such conditions often involve the payment of costs incurred by a defendant, this court has expressly rejected the contention that the payment of defense costs is universally required for voluntary dismissal under Rule 41(a)(2). Specifically, in DWG, the" }, { "docid": "7038216", "title": "", "text": "of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. After service of an answer or a motion for summary judgment, dismissal by plaintiff must be sought under Rule 41(a)(2), which provides, in part, that: Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. Therefore, once an adverse party has filed an answer or motion for summary judgment, plaintiff cannot dismiss without leave of court. Hamilton v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1535 (9th Cir.1987). Because defendant Wedow has filed both an answer (document # 8) and a motion for summary judgment (document # 21), our consideration of plaintiffs motion to dismiss without prejudice must be under Rule 41(a)(2). Generally, motions filed under Fed.R.Civ.P. 41(a)(2) should be liberally granted, as long as no other party is prejudiced. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). In the Ninth Circuit, the decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir.1980). The district court must consider whether the defendant will suffer some plain legal prejudice as a result of the dismissal. Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir.1982). Plain legal prejudice does not result simply when a “defendant faces the prospect of a second lawsuit,” or when plaintiff “merely gains some tactical advantage.” Id. Neither does plain legal prejudice arise from defendant’s missed opportunity for a legal ruling on the merits. In re Fed. Election Campaign Act Litigation, 474 F.Supp. 1051, 1052 (D.D.C.1979); Wainwright Sec., Inc. v. Wall St. Tran script Corp., 80 F.R.D. 103, 106 (S.D.N.Y.1978). Plain legal prejudice may be shown where actual legal rights are threatened or where monetary or other burdens appear to be extreme or unreasonable. For example," }, { "docid": "22769633", "title": "", "text": "Reform Order of Dismissal Without Prejudice.” When that effort failed, he brought this appeal. The fact that plaintiff has never, in so many words, sought to have the dismissal set aside is not dispositive. The record clearly indicates he has consistently expressed his desire to be relieved from the burdens of the order and has never actually acquiesced in or accepted the terms of the dismissal. II. The basic purpose of Rule 41(a)(2) is to freely permit the plaintiff, with court approval, to voluntarily dismiss an action so long as no other party will be prejudiced. The rule allows the plaintiff to withdraw his action from the court without prejudice to future litigation. Allowing the court to attach conditions to the order of dismissal prevents defendants from being unfairly affected by such dismissal. 9 Wright & Miller, Federal Practice & Procedure: Civil, § 2364, at 165 (1971). The plaintiff’s right to a voluntary dismissal without prejudice is not absolute. Rather, dismissal on motion under Rule 41(a)(2) is within the sound discretion of the court, and its order is reviewable only for abuse of discretion. Diamond v. United States, 267 F.2d 23 (5th Cir.), cert. denied, 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75 (1959). When considering a dismissal without prejudice, the court should keep in mind the interests of the defendant, for it is his position which should be protected. 9 Wright & Miller, Federal Practice & Procedure: Civil, §§ 2362, 2364, at 149, 165 (1971). Nevertheless, in most eases a dismissal should be granted unless the defendant will suffer some legal harm. Holiday Queen Land Corp. v. Baker, 489 F.2d 1031, 1032 (5th Cir. 1974), quoting Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967), recited the law to be applied in this Circuit: [We] follow the traditional principle that dismissal should be allowed unless the defendant will suffer some plain prejudice other than the mere prospect of a second lawsuit. It is no bar to dismissal that plaintiff may obtain some tactical advantage thereby. (Emphasis in original). It seems, therefore, that in ruling" }, { "docid": "21729591", "title": "", "text": "MEMORANDUM ORDER URBINA, District Judge. Granting the Plaintiff’s Motion to Dismiss This civil-rights action comes before the court on the pro se plaintiffs motion to dismiss his case. On April 9, 2002, Guy Robinson (“the plaintiff’) filed a complaint against his employer, the Secretary of the Navy (“the defendant”), claiming employment discrimination. On September 13, 2002, the defendant filed a motion to dismiss, or, in the alternative, for summary judgment. On October 10, 2002, the court issued an order directing the plaintiff to respond to the defendant’s motion by October 30, 2002 or face the possibility of the court granting the motion. On December 2, 2002, the plaintiff responded with an opposition to the defendant’s motion accompanied by a separate motion to dismiss his case. To date, the defendant has not filed a response to the plaintiffs motion to dismiss. Federal Rule of Civil Procedure 41(a) governs voluntary dismissal of an action. Fed.R.Civ.P. 41(a)(1). Under Rule 41(a)(1), a plaintiff may dismiss a civil action without an order of the court by filing a notice of dismissal before the adverse party files an answer or motion for summary judgment, or by filing a stipulation of dismissal signed by all parties. Id; Swift v. United States, 318 F.3d 250, 252 (D.C.Cir.2003). Otherwise, under Rule 41(a)(2), “an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.” Fed.R.Civ.P. 41(a)(2); Taragan v. Eli Lilly & Co., Inc., 838 F.2d 1337, 1339 (D.C.Cir.1988). Dismissals under Rule 41(a)(2) “generally [are] granted in the federal courts unless the defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical disadvantage.” Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C.Cir.1986); see also 9 Fed. Prac. & Proc. Civ.2d § 2364. ■ A court applying Rule 41(a)(2) therefore must consider whether the plaintiff seeks the motion for voluntary dismissal in good faith, and whether the dismissal would cause the defendant “legal prejudice” based on factors such as the defendant’s trial preparation efforts, any excessive delay or lack of diligence" }, { "docid": "23494293", "title": "", "text": "answer or of a motion for summary judgment, whichever first occurs, or (ii) by fifing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. ... (2) By Order of Court. Except as provided in paragraph (1) ... an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper_ Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. Whether dismissal should be granted under the authority of Rule 41(a)(2) is within the sound discretion of the district court. Barique de Depots v. National Bank of Detroit, 491 F.2d 753, 757 (6th Cir.1974). The primary purpose of the rule in interposing the requirement of court approval is to protect the nonmovant from unfair treatment. Ikos-pentakis v. Thalassic S.S. Agency, 915 F.2d 176, 177 (5th Cir.1990). Generally, an abuse of discretion is found only where the defendant would suffer “plain legal prejudice” as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947); Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 473 (7th Cir.1988). In determining whether a defendant will suffer plain legal prejudice, a court should consider such factors as the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether a motion for summary judgment has been filed by the defendant. Kovalic, 855 F.2d at 474 (citing Pace v. Southern Express Co., 409 F.2d 381, 334 (7th Cir.1969)). Under the circumstances of this case, these factors weigh in on defendant’s side of the controversy. This, coupled with the certification of a dispositive question of Ohio law to the Ohio Supreme Court, and then virtual disregard of the" }, { "docid": "9550458", "title": "", "text": "part, as follows: An action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper ... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. A dismissal under Rule 41(a)(2) is within the sound discretion of the court which should give primary consideration to whether the dismissal would prejudice the defendants. Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir.1985); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2364, at 161 (1971). In LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir.1976), the court explained that the basic purpose of Rule 41(a)(2) is to freely permit the plaintiff, with court approval, to voluntarily dismiss an action so long as no other party will be prejudiced. The rule allows plaintiff to withdraw his action from the court without prejudice to future litigation.... When considering a dismissal without prejudice, the court should keep in mind the interest of the defendant, for it is his position which should be protected.... Nevertheless, in most cases a dismissal should be granted unless the defendant will suffer some legal harm. LeCompte, 528 F.2d at 604. Thus, the purpose of Rule 41(a)(2) “is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.” Wright & Miller, supra, at 165 (quoting Alamance Indus, Inc. v. Filene’s, 291 F.2d 142, 146 (1st Cir.), cert. denied, 368 U.S. 831, 82 S.Ct. 53, 7 L.Ed.2d 33 (1961)). The prejudice to the defendant must be more than “the mere prospect of a second lawsuit,” LeCompte, 528 F.2d at 604, and it is not sufficient prejudice to the defendant simply that plaintiff may obtain some tactical advantage by dismissal, id.; Holiday Queen Land Corp. v. Baker, 489 F.2d 1031, 1032 (5th Cir.1974). Neither will mere litigation cost in and of itself amount to legal prejudice. Yoffe v. Keller Industries, Inc., 580 F.2d 126, 129-31 (5th Cir.1978). Dismissal without prejudice has been allowed in a removed action so that plaintiff might" }, { "docid": "23243887", "title": "", "text": "object to a settlement involving other parties to a lawsuit. The view of other courts is that a non-settling defendant, in general, lacks standing to object to a partial settlement. In re Viatron Computer Systems Corp. Litigation, 614 F.2d 11, 14 (1st Cir.1980); In re Beef Industry, 607 F.2d 167, 172 (5th Cir.1979). See also Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1232 (7th Cir.1983); In re Mid-Atlantic Toyota, 564 F.Supp. 1379, 1387 (D.Md.1983); Ampicillin Antitrust Litigation, 82 F.R.D. 652, 654-55 (D.D.C.1979); Seiffer v. Topsy’s Int’l Inc., 70 F.R.D. 622, 627 nn. 5 & 6, 631 n. 11 (D.Kan.1976); Wainwright v. Kraftco Corp., 53 F.R.D. 78, 81 (N.D.Ga.1971). This rule advances the policy of encouraging the voluntary settlement of lawsuits. See Quad/Graphics, 724 F.2d at 1233. Courts, however, are also charged with responsibility for safeguarding the rights of parties. See id. There is therefore a recognized exception to the general principle barring objections by non-settling defendants to permit a non-settling defendant to object where it can demonstrate that it will sustain some formal legal prejudice as a result of the settlement. Quad/Graphics, 724 F.2d at 1233; Mid Atlantic Toyota, 564 F.Supp. at 1387. This standard strikes a balance between the desire to promote settlements and the interests of justice. It also maintains consistency with Fed.R. Civ.P. 41(a)(2) which governs voluntary dismissals of lawsuits. In this circuit, as elsewhere, a district court should grant a motion for voluntary dismissal unless a defendant can show that it will suffer some plain legal prejudice as a result. Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir.1982). It would, as the Seventh Circuit has pointed out, “be incongruous for a non-settling defendant to have any less of a burden in attempting to prevent such a voluntary dismissal than he would if he were the party being dismissed.” Quad/Graphics, 724 F.2d at 1233. Courts who have addressed this issue have found the formal legal prejudice standard to have been met in a variety of situations. There is consensus that a non-settling defendant has standing to object to a partial settlement" }, { "docid": "13602750", "title": "", "text": "ELY, Circuit Judge. Appellant Firestone Tire & Rubber Co., Inc. [“Firestone”] appeals from the District Court’s dismissal, without prejudice, of appellee Hamilton’s wrongful death/products liability claim pursuant to Fed.R.Civ.P. 41(a)(2). Firestone contends that, because it had filed a counterclaim and cross-claim and had proceeded with discovery, the District Court erred in dismissing the complaint to allow Hamilton to pursue a pending parallel claim in Alabama state court. Firestone contends also that Hamilton should be estopped from requesting dismissal of this action and that the District Court erred in not applying the principles underlying 28 U.S.C. § 1404(a) and forum non conveniens. We affirm. Rule 41(a)(2) provides that Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. The Ninth Circuit has long held that the decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the District Court, and its order will not be reversed unless the District Court has abused its discretion. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980); Blue Mountain Construction Corp. v. Werner, 270 F.2d 305, 306 (9th Cir. 1959), cert. denied, 361 U.S. 931, 80 S.Ct. 371, 4 L.Ed.2d 354 (1960). See also Purer & Company v. Addo, 410 F.2d 871, 879 (9th Cir.), cert. denied, 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84 (1969). In ruling on a motion for voluntary dismissal, the District Court must consider whether the defendant will suffer some plain legal prejudice as a result of the dismissal. Hoffmann v. Alside, Inc., 596 F.2d 822, 823 (8th Cir. 1979); Durham v. Florida East Coast" }, { "docid": "8584176", "title": "", "text": "taxpayers from being saddled with the interim cleanup expense. The mere fact that the district court allowed the government to later pursue this second action seeking recovery costs is not in and of itself prejudicial to the defendants. See Quad/Graphics, Inc. v. Foss, 724 F.2d 1230, 1233 (7th Cir.1983); Puerto Rico Maritime Shipping Authority, 668 F.2d at 50; Stem, 452 F.2d at 214 (noting that “the prospect of a second lawsuit should not [in and of itself] bar a voluntary dismissal....”); cf. Restatement of Judgment (Second), § 26(l)(b) (noting that the principles of res judicata do not apply when the “court in the first action has expressly reserved the plaintiff’s right to maintain the second action____”). Since the district court’s final decision was to dismiss this action without prejudice upon the condition that the government and the State of Illinois execute a covenant not to sue for injunctive relief based upon the same fact situation, to reach the res judicata issue we would initially have to hold that the district court abused its discretion in dismissing the complaint without prejudice before reaching the issue of whether the dismissal with prejudice of the section 106 CERCLA claim would bar the section 107 cost recovery action. We previously held that the court did not abuse its discretion; thus, we need not reach the issue of whether the section 107 cost recovery action would be barred by res judicata. Further, since the district court never explicitly ruled on the res judicata issue as to the interrelationship between section 106 and 107, this issue is not properly before this court at this time. The decision of the district court is Affirmed and costs are awarded to the government on this appeal. . Fed.R.Civ.P. 41(a)(2) provides: \"(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him" }, { "docid": "23584567", "title": "", "text": "rule provides in pertinent part: Except as provided in paragraph (1) of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.... Fed.R.Civ.P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the district court’s sound discretion and the court’s order will not be disturbed unless the court has abused its discretion. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir.1980). The purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced, Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.1987), or unfairly affected by dismissal. McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856 (11th Cir.1986); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). Although costs and attorney fees are often imposed upon a plaintiff who is granted a voluntary dismissal under Fed.R. Civ.P. 41(a)(2), no circuit court has held that payment of the defendant’s costs and attorney fees is a prerequisite to an order granting voluntary dismissal. Moreover, several courts have specifically held that such payment is not required. In Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d 46 (1st Cir.1981), as in the present case, the defendants-appellants argued that the district court abused its discretion by granting the plaintiff’s motion for voluntary dismissal without prejudice while refusing to impose the defendants’ costs and attorney fees on the plaintiff. The court stated, “We do not read Rule 41(a)(2) as always requiring the imposition of costs as a condition to a voluntary dismissal, although it is usually considered necessary for the protection of the defendant.” Id. at 51; see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2366 (1971); New York, C. & St. L. R. Co. v. Vardaman, 181 F.2d 769, 771 (8th Cir.1950); Bready v. Geist, 85 F.R.D. 36, 37 (E.D.Penn.1979); Blackburn v. City of Columbus, Ohio, 60 F.R.D. 197, 198 (S.D. Ohio 1973). We hold that the district" }, { "docid": "10788681", "title": "", "text": "may be dismissed at the plaintiffs request only by court order, on terms that the court considers proper.” Fed R. Civ. P. 41(a)(2) (made applicable in this proceeding by Fed. R. Bankr.P. 7041). Such dismissal is without prejudice, unless the court orders otherwise. Id. Thus, voluntary dismissal under Rule 41(a)(2) is allowed at the trial court’s discretion. Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008) (citing Tyco Labs., Inc. v. Koppers, Co., 627 F.2d 54, 56 (7th Cir.1980)). “A ... court abuses its discretion only if the defendant shows that she will suffer ‘plain legal prejudice.’ ” Id. “[Pjlain legal prejudice is more than the mere prospect of a second lawsuit.” In re Smith, 227 B.R. 667, 672 (Bankr.N.D.Ill.1998) (Schmetterer, J.) (citing Stern v. Barnett, 452 F.2d 211, 213 (7th Cir.1971)). It maybe demonstrated by several factors, including “ ‘[t]he defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant.’ ” Kunz, 538 F.3d at 677 (quoting Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir.1969)). When a court allows a plaintiff to dismiss an action voluntarily, a typical condition of dismissal without prejudice is that the plaintiff pay the defendant’s expenses incurred in defending the suit, including reasonable attorneys’ fees. Marlow v. Winston & Strawn, 19 F.3d 300, 303 (7th Cir.1994). “[S]ueh terms and conditions ‘are the quid for the quo of allowing the plaintiff to dismiss his suit without being prevented by the doctrine of res judicata from bringing the same suit again.’ ” Id. (quoting McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.1985)). Dismissal with prejudice should be a condition of dismissal when a defendant would otherwise suffer legal prejudice. See Endo v. Albertine, 863 F.Supp. 708, 716 (N.D.Ill.1994) (Holderman, J.) (citing Ratkovich v. Smith Kline, 951 F.2d 155, 157 (7th Cir.1991)). Before a suit is dismissed with prejudice, however, a plaintiff who had" }, { "docid": "23494294", "title": "", "text": "would suffer “plain legal prejudice” as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947); Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 473 (7th Cir.1988). In determining whether a defendant will suffer plain legal prejudice, a court should consider such factors as the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether a motion for summary judgment has been filed by the defendant. Kovalic, 855 F.2d at 474 (citing Pace v. Southern Express Co., 409 F.2d 381, 334 (7th Cir.1969)). Under the circumstances of this case, these factors weigh in on defendant’s side of the controversy. This, coupled with the certification of a dispositive question of Ohio law to the Ohio Supreme Court, and then virtual disregard of the answer received, convinces us that the district court abused its discretion in dismissing the lawsuits without prejudice. The Grover lawsuit was initiated in December 1983. After litigating the case for five years, the Grover plaintiffs requested the certification of the question of whether their cause of action exists, assuring the district court that “the resolution of this issue of law will be determinative of this cause.” Defendant resisted certification, but was then forced to invest more time and money presenting the legal issue to the Ohio Supreme Court. In view of the extra delay and expense experienced by defendant, and plaintiffs’ defeat on the “determinative” legal issue certified to the Ohio Supreme Court, the district court’s order manifestly burdened defendant with clear legal prejudice. By the same token, the district court abused its discretion by granting the voluntary dismissal without prejudice to the Green plaintiffs. That lawsuit had also been in litigation for a considerable time before the motion to voluntarily dismiss without prejudice was filed. The Ohio Supreme Court’s answer to the certified question" }, { "docid": "1167695", "title": "", "text": "in one action is well recognized. See Fed.R.Civ.P. 20(a) (permitting joinder of all defendants subject to claim arising out of the same occurrence); 7 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1652 at 264-266 (1972). An arbitrary refusal by the District Court to permit the appellants to voluntarily dismiss the action in order to join Dr. Ong in state court would unjustifiably compel appellants to bring two separate actions and thereby squander limited judicial resources. Cf. In re Agent Orange Product Liability Litigation, 544 F.Supp. 808, 810 (E.D.N.Y. 1982) (in exercising its discretion under Rule 41(a)(2) district court “must consider the equities of all parties”) (citation omitted). Under these circumstances, it is not obvious to ús from applicable legal principles that appellants’ motion to dismiss should have been denied. Without assaying the lengths and depths of decisional law in this respect and without adopting any general rule of law for this Circuit, we simply observe that dismissals have generally been granted in the federal courts unless the defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical disadvantage. See generally 5 J. Moore, J. Lucas & J. Wicker, Moore’s Federal Practice H 41.05[1] at 41-62 (rev. 2d ed. 1985) (citing cases); 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2364 at 165 (1971) (citing eases). By virtue of the District Court’s silence, we cannot tell whether the court was embracing the view that appellants’ “tactical maneuvering” or Wyeth’s inconvenience of defending the lawsuit elsewhere alone sufficed to warrant the continued exercise of federal jurisdiction over this private civil action. Defendant’s Statement of Points and Authorities in Opposition to Plaintiffs’ Motion at 2 (arguing that plaintiffs’ “tactical maneuvering” warranted denial of their motion to dismiss). In federal practice, voluntary dismissals sought in good faith are ordinarily granted if the only harm suffered by the defendant is the expense of preparing a responsive pleading, since “he can be made whole if dismissal is conditioned upon reimbursement by the plaintiff.” Note, Exercise of Discretion in Permitting Dismissals Without Prejudice Under" }, { "docid": "20657912", "title": "", "text": "considerable skepticism” that non-diverse absent heirs' were, in fact, indispensable parties under Rule 19 to a wrongful death suit. See Jiménez, id. at 23. Because of the unique procedural posture of this case, i.e., the voluntary dismissal of the Aguayo plaintiffs’ claims, we need not rule at this time on the Rule 19 joinder issue. In exercising the survivor-ship action, the Torres-Aguayo heirs, as members of Torres-López’s estate, sought to recover his damages. However, later, they chose to voluntarily dismiss all their claims pursuant to Fed.R.Civ.P. 41(a)(2). Rule 41(a)(2) permits a plaintiff to request dismissal of an action “by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2); ColorirCabrera v. Esso Standard Oil Co. (Puerto Rico), Inc., 723 F.3d 82, 87 (1st Cir.2013). The rule allows a plaintiff to voluntarily dismiss his own case as long as “no other party will be prejudiced.” P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir.1981) (citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)) (internal quotation marks omitted). The court is responsible for ensuring that such prejudice will not occur. Colorir-Cabrera, 723 F.3d at 87; Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir.2000). Moreover, a district court should grant a motion for voluntary dismissal unless a defendant can show that it would suffer some plain legal prejudice as a result thereof, as opposed to facing the mere prospect of a second lawsuit. See Doe v. Urohealth Sys., Inc., 216 F.3d 157,161 (1st Cir.2000). Here, Defendants did not oppose the Aguayo plaintiffs’ request for voluntary dismissal, which included the claim by Torres-López’s estate. Pursuant to Local Rule of Civil Procedure 7(b), “[ujnless within (14) days after the service of a motion the opposing party files a written objection to the motion, incorporating a memorandum of law, the opposing party shall be deemed to have waived objection.” D.P.R. Civ. R. 7(b). Rather than opposing the request for voluntary dismissal filed by the Aguayo plaintiffs, Defendants’ response was limited to requesting the District Court not to exercise diversity jurisdiction over the claims brought by" }, { "docid": "23584566", "title": "", "text": "costs and attorney fees. The court explained that Armilla was not entitled to reimbursement for costs and attorney fees because (1) the defense costs incurred by Armilla were not undertaken unnecessarily, as the case involved a substantial preliminary issue of alter ego, (2) SSA pursued the action in good faith, with a realistic chance of success, (3) the imposition of costs and attorney fees might discourage future plaintiffs from seeking early dismissal of their actions and instead encourage them to take their chances at trial and (4) the imposition of costs and attorney fees would produce an anomalous result if defendants who could not recover costs and attorney fees if they prevailed at trial, which was the likely result in this case, could nonetheless recover costs and attorney fees upon a plaintiffs voluntary dismissal. Armilla timely appeals the order and judgment of the district court. We have jurisdiction under 28 U.S.C. § 1291. ANALYSIS Rule 41(a)(2) permits a plaintiff, with the approval of the court, to dismiss an action without prejudice at any time. The rule provides in pertinent part: Except as provided in paragraph (1) of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.... Fed.R.Civ.P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the district court’s sound discretion and the court’s order will not be disturbed unless the court has abused its discretion. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir.1980). The purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced, Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.1987), or unfairly affected by dismissal. McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856 (11th Cir.1986); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). Although costs and attorney fees are often imposed upon a plaintiff who is granted a voluntary dismissal under Fed.R. Civ.P. 41(a)(2), no circuit court has held that" } ]

[ { "docid": "23497722", "title": "", "text": "obtaining their jobs. Paragraph 56 charged a conspiracy between Eastern and ALPA to confer appellants’ jobs on ALPA pilots. The New York complaint also prayed for the same remedies sought here: “(4) Issue a mandatory injunction against Eastern ordering and directing it to offer to the striking flight engineers reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and ordering and directing Eastern to dismiss, if necessary, any employees hired to replace the striking Flight Engineers * * And, as in the suit here, it asked for huge damages covering back pay and fringe benefits. Thus the cause of action relied on in the Second Circuit litigation and the one here are identical. The remedy requested is also identical. True the identical words have not been used. The complaints were prepared by different lawyers. But essentially they are the same. What difference exists is in form, and we have long held that in determining res judicata it is the substance of the action that counts. “What is important and determinative now as to the identity of causes of action, is not identity of form, but of grounds.” Wilson Cypress Co. v. Atlantic Coast Line R. Co., 5 Cir., 109 F.2d 623, 627, cert. denied, 310 U.S. 653, 60 S.Ct. 1101, 84 L.Ed. 1418 (1940). In deciding whether the substances of two actions are for res judicata purposes the same, various tests have been advanced: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? See IB J. W. Moore, Federal Practice (1 0.410 [1], pp. 1157-1158 (2d ed. 1965), and cases there cited. Under any of these tests the cause of action in suit here is identical with the cause of action alleged in the New York complaint. There may be some difference in the legal theory supporting the actions, but the substance, for res judicata purposes at least, is the same. See Norman Tobacco & Candy Co. v. Gillette" } ]

[ { "docid": "23361793", "title": "", "text": "Specifically, plaintiff urges that, because the complaint in Cook did not allege “downgrading” practices such as layoffs, reductions in force, disciplinary suspensions, demotions or terminations, the prior consent decree involved a different cause of action from the present case. He argues that the complaint in Cook requested injunctive relief only against discriminatory “upgrading” practices in hire, promotion or transfers such as back pay and injunctive relief against further harassment. He also claims that the decree did not involve any question of class-wide harassment. We find these arguments unpersuasive. For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases. Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir. 1975). The last prong of this test is at issue in this case. Various tests have been advanced to determine whether the substance of two actions is the same for res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? Acree v. Air Line Pilots Association, 390 F.2d 199, 201 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968). This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. Stevenson v. International Paper Co., 516 F.2d 103, 109 (5th Cir. 1975). In applying the doctrine of res judicata, it is also important to keep in mind that res judicata is a principle of peace. “ ‘Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litiga-.tions are concluded’. . . . [T]he rule of res judicata does not go on whether the judgment relied on" }, { "docid": "22237514", "title": "", "text": "of two actions are the same for the purposes of res judicata. As this Court noted in Acree v. Air Line Pilots Assn., 390 F.2d 199 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968), various tests have been advanced, including Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? In conclusion, it is important to remember that “Res judicata is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded.” Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.” the rule of res judicata does not go on whether the judgment relied on was a right or a wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated. It, in short, is that one, who has permitted a final judgment to go against him is estopped, by that judgment, from contending elsewhere, against the parties to it and their privies that the fact or issue is otherwise than as there adjudged. Bennett v. Commissioner of Internal Revenue, 113 F.2d 837, 839-840 (5th Cir. 1940) (footnotes omitted). Where a second action between the same parties is upon a different cause of action, the principle of res judicata is applied much more narrowly. In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but only" }, { "docid": "4382161", "title": "", "text": "to suffer damages. It is settled, contrary to appellant’s contention, that a litigant may not split his claim and have two trials on the same alleged breach of duty. Basically, Norman claimed the same “right” in both suits — the right to purchase Gillette products direct from Gillette. The only wrong charged against Gillette was its refusal to continue to deal with Norman. We held in the contract case that Norman had not shown that Gillette wrongfully refused to deal with it. There, appellant relied upon the breach of Gillette’s supposed contractual relationship as the basis of its claim. Here, appellant relies upon the breach of the anti-trust laws as the basis for the alleged breach. But there was one breach and one only and appellant has had its day in court and has lost. It cannot litigate this same breach again. Ballard v. First National Bank of Birmingham, 5 Cir., 1958, 259 F.2d 681; Mendez & Company v. General Motors Corporation, 7 Cir., 1947, 161 F.2d 695, and Williamson v. Columbia Gas & Electric Company, 3 Cir., 1950, 186 F.2d 464, certiorari denied 1951, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355. The mere fact that in the case already decided Gillette’s refusal to sell was alleged to have been wrongful for one reason and, in the present case for another reason, does not alter the fact that the cause of action was for the same injury. Appellant cannot get away from the fact that there has been a violation of one right by a single legal wrong. Restatement, Judgments, Sec. 63. This court a number of years ago, Bennett et al. v. Commissioner of Internal Revenue, 5 Cir., 1940, 113 F.2d 837, 839-840, expounded the fundamental principles of res judicata: “Res judicata is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded. “Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally" }, { "docid": "10888713", "title": "", "text": "suits; and 3) the same cause of action is involved in both suits. , Wasoff v. American Automobile Insurance Co., 451 F.2d 767, 769 (5th Cir. 1971); Seaboard Coast Line Railroad v. Gulf Oil Corp., 409 F.2d 879, 881 (5th Cir. 1969). The Supreme Court has held that satisfaction of these criteria renders a judgment an absolute bar to a subsequent action, not only as to every matter which “was actually offered and received to sustain the demand, but also as to every ground of recovery which might have been presented.” Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 319, 47 S.Ct. 600, 602, 71 L.Ed. 1069 (1927), quoted in Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 960 (5th Cir. 1968). The High decree satisfies each of the three criteria set forth in Wasoff and Seaboard. There is no question that the United States District Court for the Western District of Texas had jurisdiction over the High parties and subject matter. Furthermore, there is sufficient identity of parties. Braniff was the defendant in both cases, and black applicants for reservationist, customer service agent, and cargo sales agent positions were members of both the High class and the proposed class in this case. Finally, both suits involve the same cause of action. The Fifth Circuit in Seaboard set forth the test for “the same cause of action:” the court must inquire into “whether or not the primary right and duty, and the delict or wrong are the same in each action.” Both cases present, inter alia, the question of whether Braniff discriminates on the basis of race in the hiring of reserva•tionists, customer service agents, and cargo sales agents. Thus they involve the 'Same “primary right” and “delict or wrong.” The fact that High and this case are class actions does not necessarily change the res judicata effect of the previous judgment. A final judgment in a class action binds all class members even though they may not be named parties in the suit. See Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81" }, { "docid": "7667337", "title": "", "text": "during the state proceedings of the issue as to the defendant’s power under Ga.Code Ann., Chapter 36-6A, to condemn the plaintiff’s property in fee simple. Such failure, however, cannot prevent operation of the doctrine of res judicata in regard to that issue. The rule is well-settled that “The judgment is conclusive, not only as to matters which were decided, but also as to all matters which might have been decided.” Clarke v. Redeker, 406 F.2d 883, 885 (8 Cir. 1969). Accord Harrison v. Bloomfield Bldg. Industries, Inc., 435 F.2d 1192 (6 Cir. 1970); Rankin v. State of Florida, 418 F.2d 482 (5 Cir. 1969), cert. denied 397 U.S. 1039, 90 S.Ct. 1358, 25 L.Ed.2d 650. The foregoing rule is operative if the two actions are based upon the same cause of action. The cause of action asserted here is the same as asserted in the condemnation action though it was asserted defensively there because of the peculiar procedural nature of such proceedings. In comparing causes of action upon the issue of their identity, guidance is provided by Seaboard Coast Line R.R. v. Gulf Oil Corp., 409 F.2d 879, 881 (5 Cir. 1969): “The principle test for comparing causes of action is whether or not the primary right and duty, and the delict or wrong are the same in each action.” The right allegedly violated is the same in both actions; viz., the right to own and hold property free from unlawful interference. Similarly, the wrong alleged is identical; that is, the unconstitutional taking of the plaintiff’s property. Thus, the court is compelled to conclude that the theory posited for the first time here, that the defendant acted beyond the scope of its statutory powers in condemning the plaintiff’s property, could have been litigated in the first suit. The principle of res judicata prevents its being litigated here. See Wasoff v. American Automobile Ins. Co., 451 F.2d 767 (5 Cir. 1971). The judgment barring this action was rendered by the Superior Court of Burke County on September 2, 1971. The procedure utilized by the defendant in obtaining that judgment is the" }, { "docid": "22650852", "title": "", "text": "opinion: “Upon principle, it is perfectly plain that the respondent [a seaman suing for an injury sustained while working aboard ship] suffered but one actionable wrong and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex. “A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. ‘The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear.’ ” Id,., at 321. Had the Court found a jurisdictional bar to reaching the state claim in Hum, we assume that the doctrine of res judicata would not have been applicable in any subsequent state suit. But the citation of Baltimore S. S. Co. shows that the Court found that the weighty policies of judicial economy and fairness to parties reflected in res judicata doctrine were in themselves strong counsel for the adoption of a rule which would permit federal courts to dispose of the state as well as the federal claims. With the adoption of the Federal Rules of Civil Procedure and the unified form of action, Fed. Rule Civ. Proc. 2, much of the controversy over “cause of action” abated. The phrase remained as the keystone of the Hum test, however, and, as commentators have noted, has" }, { "docid": "12599407", "title": "", "text": "S.S. Co. v. Phillips, 1926, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, the Supreme Court instructs us: “A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong.” 47 S. Ct. at 602, 71 L.Ed. at 1072. Applying this test to the case at bar, we find that in both the court below and the Florida courts the duty alleged was the obligation to indemnify for losses caused by fire, and the alleged breach of duty was Gulf’s failure to indemnify Coast Line in the amount of $100,000. We therefore conclude that the causes of action were the same. Wolfson v. Rubin, Fla.1951, 52 So.2d 344. Because of the complete identity of Coast Line’s causes of action, res judicata decrees that this litigation must end: “Res judicata is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded. “Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. ‘Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.’ ” “ * * * the rule of res judicata does not go on whether the judgment relied on was a right or a wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated. It, in short, is that one, who has permitted a" }, { "docid": "11965175", "title": "", "text": "this not having been done below, the defense may not be availed of here. Pointing out; that the purpose of the rule is to protect litigants and society in general from multiplicity of actions over the same issues, Southern Pacific R. R. Co. v. United States, 168 U.S. 1, at 49, 18 S.Ct. 18, 42 L.Ed. 355; United States v. California Bridge Co., 245 U.S. 337, at 341, 38 S.Ct. 91, 62 L.Ed. 332; that the decision of the District Court was entered June 1, 1939, over four months after the hearing before the Board had been closed; and that the District Court’s decision was not and could not have been introduced into the record on the hearing before the Board, he insists that petitioners did not, indeed could not have relied on res judicata in the hearing below and they should not be permitted to raise the point on appeal. Covington v. Com’r of Internal Revenue, 5 Cir., 103 F.2d 201; Helvering v. Salvage, 297 U.S. 106, 56 S.Ct. 375, 80 L.Ed. 511. It is true enough that petitioners could not plead and prove the judgment of the District Court as res judicata in the hearing before the Board, because that hearing was ended before the judgment relied on was entered, but this instead ■ of making against, makes for, their right, after the judgment had become final, to set it up and rely upon it as they did do in their motion for rehearing. “Res judicata-is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded.” Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled" }, { "docid": "13510276", "title": "", "text": "v. Koennecke, 239 U.S. 352, 354, 36 S.Ct. 126, 60 L.Ed. 324.” Clinchfield R. Co. v. Dunn, 6 Cir., 40 F.2d 586, 587. See also Werlein v. New Orleans, 177 U.S. 390, 20 S.Ct. 682, 44 L.Ed. 817. Plaintiff relies upon the test, sometimes applied, of identity of proof, that is, that only if the same evidence will sustain both actions will the doctrine of res judicata apply, and refers to various decisions applying that rule. We think this is not the applicable test under any and all circumstances. Thus in Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 602, 71 L.Ed. 1069, the court said: “A cause-of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong.” In United States v. United States Gypsum Co., D.C., 51 F. Supp. 613, 623, the court said: “These decisions put it beyond doubt that where in two successive actions between the same parties it is sought in the second to defeat, upon the ground that the causes of action are different, a plea of res judicata based upon the first, the test of identity, i. e., whether the same evidence will support each charge, must be applied not in terms of the mere facts, theories or pleadings specifically relied upon in each, but in terms of the ultimate wrong sued on. It is of course true that the question what wrong is sued on must be determined from the allegations in the respective plaintiff’s pleadings. But if from the four comers of the pleadings in each of the two cases it appears that the wrong sued on in each is the same, then the assertion in the second case of facts wholly different from those asserted in the first will not defeat the plea. In short, ‘the same" }, { "docid": "22768586", "title": "", "text": "a word, upon the same transaction. Moreover, the same right, to be free of intentional sex discrimination in employment, is claimed to have been infringed by the same wrong, that discrimination. The primary right and duty asserted and the primary wrong complained of are the same in each action. Only the legal bases advanced for relief are different. The test to be applied is settled in our circuit: For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases. Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir.1975). The last prong of this test is at issue in this case. Various tests have been advanced to determine whether the substance of two actions is the same for res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? Acree v. Air Line Pilots Association, 390 F.2d 199, 201 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968). This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. Stevenson v. International Paper Co., 516 F.2d 103, 109 (5th Cir.1975) Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir.1979). By these tests, it is patent that the “cause of action” sought to be asserted today by Ms. Nilsen is the same as that advanced in Nilsen II/III. That the issue presented here was never decided in the former case does not signify; according to general theories of judicial estoppel, to which “federal courts have traditionally ad-' hered,” it is black-letter law that res judicata, by contrast to narrower doctrines of issue preclusion, bars all claims that" }, { "docid": "747128", "title": "", "text": "1049, 1052 (5th Cir. 1979) stated: Various tests have been advanced to determine whether the substance of two actions is the same for res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair right under the first judgment? Would the same evidence sustain both judgments? . . . This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. . In applying the doctrine of res judicata, it is also important to keep in mind that res judicata is a principle of peace. . Under its influence an end in part to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded. “When a defendant is accused of successive but nearly simultaneous acts, or acts which though occurring over a period of time were substantially of the same sort and similarly motivated, fairness to the de fendant as well as the public convenience may require that they be dealt with in the same action.” Restatement of Judgments Second ¶ 61, Comment d (Tent. Draft No. 5, 1978). In cases involving contracts: [A] plaintiff is . . . generally required to include in a simple action all breaches that have occurred before the beginning of the suit. If he fails to do so, judgment will bar any later recovery for breaches which had occurred before the action began, if the defendant has not waived the point, and subject to one exception. If the contract is regarded as separable or divisible, then the breaches of one part may be sued on separately from the breaches of the other part. Contracts are rarely treated as separable or divisible for this purpose, and the concept of divisibility is not clearly defined. . [T]he only safe guide is to assume that the obligations under a single contractual transaction are not divisible unless some concrete fact points affirmatively and fairly unequivocably to the unusual intent to have divisibility. P. James" }, { "docid": "22237513", "title": "", "text": "958 (5th Cir. 1968). The principle difficulty in applying the doctrine of res judicata is determining whether the cause of action in the first suit is identical to that in the second. This court has recognized that “the principle test for comparing causes of action is whether or not the primary right and duty and delict or wrong are the same in each action.” Seaboard Coast Line R. R. Co. v. Gulf Oil Corp., 409 F.2d 879, 881 (5th Cir. 1969). In the Seaboard Coast Line case, the court quoted from Baltimore S. S. Co. v. Phillips, supra, A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. 409 F.2d at 881. There is no one test for deciding whether the substances of two actions are the same for the purposes of res judicata. As this Court noted in Acree v. Air Line Pilots Assn., 390 F.2d 199 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968), various tests have been advanced, including Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? In conclusion, it is important to remember that “Res judicata is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded.” Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by" }, { "docid": "9637881", "title": "", "text": "judgment. In the pleadings in the first case the appellants set forth the facts that Taylor was their tenant, that he had the option to purchase the land during the lease at any time before March 1, 1932, that he failed to exercise this option, as it is alleged, because of the unlawful interference of the appellees with the water appurtenant to the land, and it is further alleged in this first case that by reason of this failure of Taylor to exercise his option appellants had suffered loss, although no definite amount was stated and no damages asked on that account. These matters having transpired and having been specifically alleged in the first suit, appellants clearly had a right to make the demand for damages and litigate their claim in this first case had they seen fit so to do. “As the ground just described was available but not put forward the appellant must abide the rule that a judgment upon the merits in one suit is res judicata in another where the parties and subject-matter are the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end.” Grubb v. Public Utilities Comm., 281 U.S. 470, 479, 50 S.Ct. 374, 378, 74 L.Ed. 972. “A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action.” Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 321, 47 S.Ct. 600, 602, 71 L.Ed. 1069. “The rule against splitting causes of actions applies, without regard to whether the cause of action is founded on con tract or" }, { "docid": "13510275", "title": "", "text": "It complains of one wrongful act, namely, deprivation of that right. Its action is not • for recovery under the Sherman Act or for recovery under the Clayton Act but for recovery for the wrongful cancellation of its property right. The gist of its action is its injury arising from alleged wrongful deprivation of its contract right. Whether the cancellation was caused by any one or more allegedly illegal acts is a question which must be litigated and determined fully in one suit and not in separate suits. “It is not uncommon that a single cause of action in tort will rest both on omission of a statutory duty and on common-law negligence; the two bases do not necessarily multiply the causes of action.” Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 1140, 89 L.Ed. 1628. “That the cause of action is supported by a different law, or by application of different principles, under the amendment, does not show that a different cause of action is declared upon. Seaboard Air Line Ry. v. Koennecke, 239 U.S. 352, 354, 36 S.Ct. 126, 60 L.Ed. 324.” Clinchfield R. Co. v. Dunn, 6 Cir., 40 F.2d 586, 587. See also Werlein v. New Orleans, 177 U.S. 390, 20 S.Ct. 682, 44 L.Ed. 817. Plaintiff relies upon the test, sometimes applied, of identity of proof, that is, that only if the same evidence will sustain both actions will the doctrine of res judicata apply, and refers to various decisions applying that rule. We think this is not the applicable test under any and all circumstances. Thus in Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 602, 71 L.Ed. 1069, the court said: “A cause-of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong.” In United States" }, { "docid": "747127", "title": "", "text": "same parties or those in privity with them, upon the same claim or demand; and (2) that such a judgment constitutes an estoppel between the same parties or those in privity with them, as to matters that were necessarily litigated or determined although the claim or demand in the subsequent action is different. IB Moore’s Federal Practice ¶ 0.405[1] at 621 (2d ed. 1974). The first concept is often called res judicata, strictly defined, and the second concept, collateral estoppel. Under res judicata, strictly defined, the judgment applies as a bar, preventing relitigation of all grounds for recovery or defenses available in relation to the same “claims” before the judgment court regardless of whether all grounds for recovery or defenses were judicially determined. Moore, supra, at 622-23; see also Stevenson v. International Paper Co., Mobile, Alabama, 516 F.2d 103, 109 (5th Cir. 1975). Defining precisely the dimension of a “claim” or a single “cause of action” is difficult. Moore, supra, ¶ 0410[1] at 1154. The Fifth Circuit in Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir. 1979) stated: Various tests have been advanced to determine whether the substance of two actions is the same for res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair right under the first judgment? Would the same evidence sustain both judgments? . . . This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. . In applying the doctrine of res judicata, it is also important to keep in mind that res judicata is a principle of peace. . Under its influence an end in part to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded. “When a defendant is accused of successive but nearly simultaneous acts, or acts which though occurring over a period of time were substantially of the same sort and similarly motivated, fairness to the de fendant as well" }, { "docid": "4382162", "title": "", "text": "Company, 3 Cir., 1950, 186 F.2d 464, certiorari denied 1951, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355. The mere fact that in the case already decided Gillette’s refusal to sell was alleged to have been wrongful for one reason and, in the present case for another reason, does not alter the fact that the cause of action was for the same injury. Appellant cannot get away from the fact that there has been a violation of one right by a single legal wrong. Restatement, Judgments, Sec. 63. This court a number of years ago, Bennett et al. v. Commissioner of Internal Revenue, 5 Cir., 1940, 113 F.2d 837, 839-840, expounded the fundamental principles of res judicata: “Res judicata is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded. “Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. ‘Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.’ ” “ * * * the rule of res judicata does not go on whether the judgment relied on was a right or a wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated. It, in short, is that one, who has permitted a final judgment to go against him, is es-topped, by that judgment, from contending elsewhere, against the parties to it and their privies that the fact or issue is otherwise than as there adjudged.” Under these well established principles we think that the judgment rendered in the former case is res judicata of this one. On this ground as well as on" }, { "docid": "22237512", "title": "", "text": "employment opportunities. We agree with the plaintiffs. For a prior judgment to bar a subsequent action, it is firmly established (1) that the prior judgment must have been rendered by a court of competent jurisdiction; (2) that there must have been a final judgment on the merits; (3) that the parties, or those in privity with them, must be identical in both suits; and (4) that the same cause of action must be involved in both suits. Wasoff v. American Automobile Ins. Co., 451 F.2d 767 (5th Cir. 1971). If these elements are established, then the judg ment or decree upon the merits in the first case is an absolute bar to the subsequent action or suit, not only in respect of every matter which was actually offered and received to sustain the demand, but also as to every ground of recovery which might have been presented. Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927), as cited in Astron Industrial Associates v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir. 1968). The principle difficulty in applying the doctrine of res judicata is determining whether the cause of action in the first suit is identical to that in the second. This court has recognized that “the principle test for comparing causes of action is whether or not the primary right and duty and delict or wrong are the same in each action.” Seaboard Coast Line R. R. Co. v. Gulf Oil Corp., 409 F.2d 879, 881 (5th Cir. 1969). In the Seaboard Coast Line case, the court quoted from Baltimore S. S. Co. v. Phillips, supra, A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. 409 F.2d at 881. There is no one test for deciding whether the substances" }, { "docid": "23361794", "title": "", "text": "determine whether the substance of two actions is the same for res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? Acree v. Air Line Pilots Association, 390 F.2d 199, 201 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968). This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. Stevenson v. International Paper Co., 516 F.2d 103, 109 (5th Cir. 1975). In applying the doctrine of res judicata, it is also important to keep in mind that res judicata is a principle of peace. “ ‘Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litiga-.tions are concluded’. . . . [T]he rule of res judicata does not go on whether the judgment relied on was a right or a wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated.” Id., quoting Bennett v. Commissioner of Internal Revenue, 113 F.2d 837, 839-40 (5th Cir. 1940). It is against these principles that we must test the effect of the prior consent decree on the issues Kemp seeks to litigate in this case. Plaintiff relies principally on Stevenson v. International Paper Co., supra, in arguing that the cause of action here differs from that involved in Cook. Stevenson, although not directly on point, illustrates that it is important to examine whether the first judgment covered a narrower range of issues than did the second lawsuit. The Stevenson case was a class action brought by black employees of International Paper Company against their employer and various labor unions. The complaint asserted racial discrimination in two categories: first, transfer and promotion practices that were discriminatory and, second, practices that, although neutral on their face, perpetuated the" }, { "docid": "11965176", "title": "", "text": "is true enough that petitioners could not plead and prove the judgment of the District Court as res judicata in the hearing before the Board, because that hearing was ended before the judgment relied on was entered, but this instead ■ of making against, makes for, their right, after the judgment had become final, to set it up and rely upon it as they did do in their motion for rehearing. “Res judicata-is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded.” Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.” In Nachod’s case, supra, the Court saying [74 F.2d 166] : “It is settled by Tait v. Western Maryland Railway Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, that the doctrine of res judicata applies to cases in the courts under the tax laws, and that, where the parties are the same and the ques- • tion identical, the fact that different tax years are involved will not prevent its application. It is also settled (Hart Steel Co. v. Railway Supply Co., 244 U.S. 294, 37 S.Ct. 506, 61 L.Ed. 1148), that a decision of one court in a case involving the same parties and the same subject matter may be interposed in another court of coordinate jurisdiction, even though the latter first acquired jurisdiction of the controversy, and that a motion for affirmance seasonably made to the latter, supported by proofs establishing identity of subject matter and privity of parties, is a proper means of raising the defense of res judicata therein” ; denied the effort to plead" }, { "docid": "12599408", "title": "", "text": "this litigation must end: “Res judicata is a principle of peace. Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded. “Res judicata rests on a rule of public policy designed to put an end to mere contentious litigations. Under that rule an issue once finally settled by the judgment of a court of competent jurisdiction, remains settled. ‘Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.’ ” “ * * * the rule of res judicata does not go on whether the judgment relied on was a right or a wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated. It, in short, is that one, who has permitted a final judgment to go against him is estopped, by that judgment,. from contending elsewhere, against the parties to it and their .privies that the fact or issue is otherwise than as there adjudged.” Bennett v. Commissioner of Internal Revenue, 5 Cir. 1940, 113 F.2d 837, 839-840, 130 A.L.R. 369. See also Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., 5 Cir. 1961, 295 F.2d 362; Caldwell, etc., v. Massachusetts Bonding & Ins. Co., Fla.1947, 158 Fla. 677, 29 So.2d 694. The application of these fundamental principles is not altered in the least by the fact that the judgment in the Florida courts was a declaratory judgment. In National Mutual Ins. Co. v. Dotschay, Fla.Dist.Ct.App.1961, 134 So. 2d 248, 250-251, we read: “There can be do doubt that such a decree is as binding as any final judgment for res judicata purposes. 9 Fla. Jur., Declaratory Actions, § 56. That section reads as follows: ‘The court’s declaration in declaratory judgment proceedings has the force and effect of a final decree, judgment, or order. Where" } ]

[ { "docid": "18797478", "title": "", "text": "rate and to obtain the personal guarantees of Biehl and other shareholders as security for the loan. When the Company defaulted on the loan, Biehl paid $1,000,-000 to Lehman under his guarantee and received an assignment from Lehman in that amount. Second, also in December of 1969, Biehl personally guaranteed payment by Multiponics of a $400,000 note payable to Floyd L. McCalip. When the Company went into bankruptcy, Biehl paid McCalip $212,500 in satisfaction of his personal guaranty and obtained an assignment of McCalip’s claim. B. Our Standard— Equity, Fairness and Fiduciaries It is well established that a bankruptcy court has the authority to subordinate claims on equitable grounds. See Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281, 289 (1939); Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir. 1977). A Court’s conclusions of law are freely reviewable on appeal. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5 L.Ed.2d 268, 275 (1961); North Texas Production Credit v. Lee (In re Lee), 570 F.2d 1301, 1302 (5th Cir. 1978). As to all findings of fact, however, a reviewing court of a bankruptcy decision must accept the findings as found, unless they are clearly erroneous. F.R.Civ.P. 52, 53(e); Costello v. Fazio, 256 F.2d 903, 908 (9th Cir. 1958). Reversal may be particularly difficult where both a Special Master and a District Court concur in the findings. Comstock v. Group of Institutional Investors, 335 U.S. 211, 214, 68 S.Ct. 1454, 1456, 92 L.Ed. 1911, 1915 (1948) (“A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.” (Citations omitted)). Only recently we have rearticulated the proper test of error in subordination cases: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of" } ]

[ { "docid": "18603043", "title": "", "text": "1170 (5th Cir.1977), the Fifth Circuit extracted from existing case law three conditions that must be fulfilled before a Bankruptcy Court may exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii)Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. Id., 563 F.2d at 700 (citations omitted). As explained by the Fifth Circuit in Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), supra, 818 F.2d at 1143 (5th Cir.1987), and as Mobile Steel, supra, noted, three principles should be kept in mind in determining whether the three conditions have been met: First, inequitable conduct directed against the debtor or its creditors may be sufficient to warrant the subordination of the claim irrespective of whether the conduct was related to the acquisition or assertion of that claim. Second, “claims should be subordinated only to the extent necessary to offset the harm which the bankrupt and its creditors suffered on account of the inequitable conduct.” Third, with respect to the allocation of the burden of proof, a claim filed under section 501 of the Bankruptcy Code enjoys prima facie validity which may be overcome by the trustee’s presentation of evidence. Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), supra, 818 F.2d at 1143 (5th Cir.1987) (citations omitted). Rules of Bankruptcy Practice and Procedure Rule 3001(f) apparently allocates the burden of proof of the elements for equitable subordination on the party seeking subordination because there is a presumption of the validity of the proof of claim. The question before us is what kind of allegation or evidence is necessary to overcome this presumption to survive a Rule 12(b)(6) motion? Contrary to the position advanced by Dartmouth and USAC, their claim may be subordinated under § 510(c) in the absence of fraud. The standards governing the application of the doctrine are to be determined from the facts on a case" }, { "docid": "18562576", "title": "", "text": "the conclusion that the sale of the Dumas and Crestview homes to MBFA, and the assignment of-the management contracts owned by West Texas Home Management, Inc. to MBFA, were “insider” transactions. The Fifth Circuit affirmed the findings of this Court that Huffman was an insider as far as the transactions involving both the $74,-007.00 notes and the $88,860.00 notes were concerned. However, notwithstanding the fact that the “insider” transactions had the effect of making Huffman a “fiduciary”, the appellate court concluded that there were not adequate findings contained in the Memorandum and Order which met the triad test for equitable subordination of claims provided by Matter of Mobile Steel Company, 563 F.2d 692 (5th Cir.1977). The case was remanded to the bankruptcy court for additional findings. Under Mobile Steel the prerequisites to equitable subordination are findings that (1) the claimant engaged in some type of inequitable conduct, (2) the misconduct must have resulted in injury to the creditors of the debtor or conferred unfair advantage on the claimant, and (3) equitable subordination of the claim is not inconsistent with the provisions of the Bankruptcy Code. 563 F.2d at 699, 700. The thrust of the opinion by the Fifth Circuit on the earlier appeal was that mere proof of a fiduciary relationship is insufficient to support equitable subordination. While a claim arising out of dealings between a debtor and its fiduciary must be rigorously scrutinized by the courts, the claim still enjoys prima facie validity. See Rule 3001(f), Rules of Bankruptcy Procedure. A claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). The trustee, by objecting to the scheduled claim, has the burden of going forward with evidence of facts which overcomes the presumption of validity which attaches to all properly filed claims. The trustee can meet that burden by establishing the elements of the triad test set out by Mobile Steel. If the trustee meets that burden and thus overcomes the prima fa-cie showing the burden of going forward shifts to Huffman, the claimant, who has the ultimate burden of persuasion. See 712 F.2d at" }, { "docid": "18726121", "title": "", "text": "to adjudicate equities among creditors. H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1977) U.S.Code Cong. & Admin. News 1978, pp. 5787, 6315. Rather than specify the criteria to be used by Bankruptcy Courts in subordinating claims under § 510(c), Congress intended Bankruptcy Courts to be governed by judicially created principles of equitable subordination. S.Rep. No. 989, 95th Cong., 2d Sess. 74 (1978); U.S.Code Cong. & Admin. News 1978, pp. 5787, 5860; 124 Cong.Rec. S. 17,412 (Oct. 6, 1978); 124 Cong.Rec.H. 11,095 (September 28, 1978) (Statement of Rep. Edwards). See, e.g., Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), 818 F.2d 1135, 1142 (5th Cir.1987). In Benjamin v. Diamond (Matter of Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977), the Fifth Circuit extracted from existing case law three conditions that must be fulfilled before a Bankruptcy Court may exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. Id., 563 F.2d at 700 (citations omitted). As explained by the Fifth Circuit in Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), supra, 818 F.2d at 1143 (5th Cir.1987), and as Mobile Steel, supra, noted, three principles should be kept in mind in determining whether the three conditions have been met: First, inequitable conduct directed against the debtor or its creditors may be sufficient to warrant the subordination of the claim irrespective of whether the conduct was related to the acquisition or assertion of that claim. Second, “claims should be subordinated only to the extent necessary to offset the harm which the bankrupt and its creditors suffered on account of the inequitable conduct.” Third, with respect to the allocation of the burden of proof, a claim filed under section 501 of the Bankruptcy Code enjoys prima facie validity which may be overcome by the trustee’s presentation of evidence. Wilson" }, { "docid": "22850336", "title": "", "text": "monies from the debtor MBFA. The bankruptcy court found, inter alia, that Wall’s ownership or control of the debtor placed him within the definition of “insider of the debtor,” under 11 U.S.C. § 101(25)(B). Recognizing that Huffman’s connection with MBFA differed from Wall’s connection with MBFA, the bankruptcy court then considered whether Huffman could be characterized as an insider because of his business relationship with Wall and his stock ownership in West Texas Homes. The bankruptcy court found that MBFA’s acquisition of the Dumas and Crestview homes and West Texas Homes’ contractual position were effected by Wall on a less than arms-length basis. The court concluded that West Texas Homes was an affiliate of the debtor under 11 U.S.C. § 101(2)(B), and that the conveyance of the $88,860 note to Huffman was an insider transaction. Further, the court determined that the $74,007 indebtedness to Huffman, in his capacity as general partner of a partnership which controlled the debtor, likewise resulted from an insider transaction. Based on these findings, the bankruptcy court allowed the $119,005 claim but ordered it subordinated, under 11 U.S.C. § 510(c)(1), to those of the general unsecured creditors. The district court affirmed the bankruptcy court in all respects, concluding that there had been sufficient findings to justify the subordination of Huffman’s claim under the three-pronged test this court set out in Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977): (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. See id. at 700; accord Machinery Rental, Inc. v. Herpel (In re Multiponics, Inc.), 622 F.2d 709, 713 (5th Cir.1980). On appeal to this court, Huffman contended that the bankruptcy court erred in imputing insider status to him because of MBFA’s association with West Texas Homes and the Wall and Huffman partnership. Further, Huffman contended that there were insufficient findings to support the" }, { "docid": "18603042", "title": "", "text": "all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. 11 U.S.C. § 510(c). Section 510(c) is a codification of the Bankruptcy Court’s pre-Code equitable power to subordinate claims, interests, or relationships and to adjudicate equities among creditors. H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1977) U.S.Code Cong. & Admin.News, pp. 5787, 6315. Rather than specify the criteria to be used by Bankruptcy Courts in subordinating claims under § 510(c), Congress intended Bankruptcy Courts to be governed by judicially created principles of equitable subordination. S.Rep. No. 989, 95th Cong., 2d Sess. 74 (1978); U.S.Code Cong. & Admin.News 1978, pp. 5787, 5860; 124 Cong.Rec.S. 17,-412 (Oct. 6, 1978); 124 Cong.Rec.H. 11,095 (September 28, 1978) (Statement of Rep. Edwards). See, e.g., Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), 818 F.2d 1135, 1142, 16 CBC.2d 1461 (5th Cir.1987). In Benjamin v. Diamond (Matter of Mobile Steel Co.), 563 F.2d 692, 3 BCD 1170 (5th Cir.1977), the Fifth Circuit extracted from existing case law three conditions that must be fulfilled before a Bankruptcy Court may exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii)Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. Id., 563 F.2d at 700 (citations omitted). As explained by the Fifth Circuit in Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), supra, 818 F.2d at 1143 (5th Cir.1987), and as Mobile Steel, supra, noted, three principles should be kept in mind in determining whether the three conditions have been met: First, inequitable conduct directed against the debtor or its creditors may be sufficient to warrant the subordination of the claim irrespective of whether the conduct was related to the acquisition or assertion of that claim. Second, “claims should be subordinated only to the" }, { "docid": "17702536", "title": "", "text": "test, a claim is equitably subordinated if there is a showing by a preponderance of the evidence that (i) the claim holder engaged in some type of inequitable conduct, (ii) which injured the creditors of the debtor or conferred an unfair advantage on the claimant, and (iii) equitable subordination of the claim is not inconsistent with the provisions of the Bankruptcy [Code]. Id. at 700. See also In re Lifschultz Fast Freight, 132 F.3d 339, 344 (7th Cir.1997). “Equitable subordination is an unusual remedy which should be applied only' in limited circumstances.” Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1464 (5th Cir.1991). “A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts.” Id. at 1465 (citations omitted). Nonetheless, “the mere fact of an insider relationship is insufficient to warrant subordination.” Id. at 1467 (citing Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 210 (5th Cir.1983)). The initial burden of going forward with factual evidence to overcome the validity of the claimant’s proof of claim rests on the trustee or a fiduciary. Once the initial burden is met, it then shifts to the claimant “to demonstrate its good faith and the fairness of its conduct.” Id. at 212 (citing Mobile Steel, 563 F.2d at 701). Applying the “rigorous scrutiny” standard to review the LeRouxs’ conduct, we will now examine whether the LeRouxs engaged in misconduct which injured the Debtor’s creditors or conferred an unfair advantage on themselves. Three categories of misconduct have generally been recognized to constitute inequitable conduct: “(1) fraud, illegality, breach of fiduciary duties; (2) un-dercapitalization; and (3) claimant’s use of the debtor as a mere instrumentality or alter ego.” Fabricators, 926 F.2d at 1467; see also Lifschultz, 132 F.3d at 344 (quoting In re Missionary Baptist Foundation of America, 712 F.2d 206, 212 (5th Cir.1983)). Undercapitalization of the debtor alone, absent misconduct by the insider, is insufficient to justify equitable subordination of an insider’s debt claim. Id. at 343. The Debtor alleges that the LeRouxs’ claim" }, { "docid": "16530710", "title": "", "text": "U.S.C. § 101(2)(B), its conveyance of the $88,860 note to Huffman was an insider transaction. Further, the judge determined that the $74,007 indebtedness to Huffman, in his capacity as general partner of a partnership which controlled the debtor, likewise resulted from an insider transaction. Based on these findings, the bankruptcy judge allowed the $119,005 claim but ordered it subordinated, under 11 U.S.C. § 510(c)(1), to those of the general unsecured creditors. The district court affirmed the bankruptcy court in all respects, concluding that there had been sufficient findings to justify the subordination of Huffman’s claim under the three-pronged test we enunciated in Matter of Mobile Steel Co., 563 F.2d 692 (5th Cir.1977). On appeal, Huffman contends that the bankruptcy court erred in imputing insider status to him because of MBFA’s association with West Texas Homes and the Wall and Huffman partnership. He further contends that there were insufficient findings to support the application of the equitable subordination doctrine outlined in Matter of Mobile Steel Co. We disagree with the first contention and agree with the second. Standard of Review Findings of fact made in a bankruptcy proceeding will not be set aside unless clearly erroneous. See Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); In re Reed, 700 F.2d 986 (5th Cir.1983). A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Strict application of the clearly erroneous rule is particularly important where, as here, the district court has affirmed the bankruptcy judge’s findings. In re Garfinkle, 672 F.2d 1340 (11th Cir.1982) (citing DeMet v. Harralson, 399 F.2d 35 (5th Cir.1968)). This rigorous standard does not constrain appellate scrutiny of conclusions of law, which are subject to plenary review. In re Bubble Up Delaware, Inc., 684 F.2d 1259 (9th Cir. 1982); Matter of Multiponics, Inc.," }, { "docid": "18562575", "title": "", "text": "himself. No formal dissolution proceedings for West Texas Home Health Care, Inc. were filed with the Secretary of State of Texas. The payments provided by the $74,007.00 note were made by MBFA to Huffman through August 1980. After the August 1980 payment the records of MBFA reflected a balance owing to Huffman on the $74,007.00 note of $37,170.96. No prepetition payments had been made to Huffman on the $88,860.00 note. The| books and business records of the debtor reflected that those monies were owed to West Texas Home Health Care, Inc. The -schedules filed by the debtor, however, did indicate total indebtedness to Huffman on two notes in the total sum of $119,007.00. Debtor filed petition for order for relief under Chapter 11 of Title 11, United States Code on October 15, 1980. Two weeks later Robert B. Wilson was appointed trustee. The trustee timely challenged Huffman’s scheduled claim, contending that it was based on insider transactions and should be subordinated under § 510(c)(1). This Court’s order of July 12, 1982, contained findings which supported the conclusion that the sale of the Dumas and Crestview homes to MBFA, and the assignment of-the management contracts owned by West Texas Home Management, Inc. to MBFA, were “insider” transactions. The Fifth Circuit affirmed the findings of this Court that Huffman was an insider as far as the transactions involving both the $74,-007.00 notes and the $88,860.00 notes were concerned. However, notwithstanding the fact that the “insider” transactions had the effect of making Huffman a “fiduciary”, the appellate court concluded that there were not adequate findings contained in the Memorandum and Order which met the triad test for equitable subordination of claims provided by Matter of Mobile Steel Company, 563 F.2d 692 (5th Cir.1977). The case was remanded to the bankruptcy court for additional findings. Under Mobile Steel the prerequisites to equitable subordination are findings that (1) the claimant engaged in some type of inequitable conduct, (2) the misconduct must have resulted in injury to the creditors of the debtor or conferred unfair advantage on the claimant, and (3) equitable subordination of the claim" }, { "docid": "22850338", "title": "", "text": "application of the equitable subordination doctrine outlined in Mobile Steel. A panel of this court disagreed with Huffman’s first contention and agreed with his second. See Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206 (5th Cir.1983). The panel was persuaded that as to the $88,860 promissory note, Huffman was an insider of an affiliate within the meaning of 11 U.S.C. § 101(2). Further, the court found that by definition, an insider of an affiliate is an insider of the debtor under 11 U.S.C. § 101(25)(E). The panel held that because of the interrelationship of all transactions, the finding of Huffman’s insider status with respect to the $88,860 note was dis-positive also as to the $74,007 note, inasmuch as the components of Huffman’s claim were not sufficiently discrete to warrant separate treatment. Therefore, the panel affirmed the fact-finding that Huffman was an insider. However, because the bankruptcy court, upon its finding that Huffman was an insider, subordinated Huffman’s $119,005 claim without assigning specific reasons for the subordination, the panel found itself unable to conclude that the trustee had discharged his burden of proof under Mobile Steel. Thus, the panel found it necessary to remand the case to the bankruptcy court for the entry of findings required for application of this circuit’s equitable subordination formula. The panel directed the bankruptcy court, on remand, to set forth its findings and conclusions under the three prongs of the test set out in Mobile Steel. On remand, the bankruptcy court, after holding a hearing, filed a memorandum opinion and order on February 25, 1985. The court noted that “Huffman was not a director of the corporate debtor, he was not an officer of the corporate debtor, and, at least as far as any period of time relevant to this memorandum is concerned, he was not an employee of the corporate debtor.” Missionary Baptist, 48 B.R. at 888. Huffman’s statutory relationship as an insider of MBFA represented, in the court’s view, Huffman’s sole contacts with MBFA and Huffman had not used MBFA as a “mere instrumentality or alter ego.\" Id." }, { "docid": "16530718", "title": "", "text": "interrelationship of all transactions, this finding of Huffman’s insider status with respect to the $88,860 note is dispositive as to the $74,007 note, inasmuch as the components of Huffman’s claim are not sufficiently discrete to warrant separate treatment. Equitable Subordination Upon finding that Huffman played an insider’s role in the pertinent transactions with the debtor, the bankruptcy court subordinated his $119,005 claim pursuant to § 510(c), assigning no specific reasons therefor. Huffman asserts that the trustee failed to establish an adequate evidentiary basis for equitable subordination. Section 510(c) permits the bankruptcy court, in the exercise of its equitable jurisdiction, to apply pre-Code principles of equitable subordination. 3 Collier on Bankrupt cy ¶510.04 The courts have recognized three general categories of conduct considered sufficient to warrant equitable subordination: (1) fraud, illegality, breach of fiduciary duties; (2) undercapitalization; and (3) claimant’s use of the debtor as a mere instrumentality or alter ego. See Cohn, Subordinated Claims: Their Classification and Voting Under Chapter 11 of the Bankruptcy Code, 56 Am.Bank.L.J. 295 (1982); Note, Deep Rock in the Deep South — Equitable Subordination of Claims in Fifth Circuit Bankruptcy Proceedings, 11 Cumb.L.Rev. 619 (1980). We adopted a triad test for the equitable subordination of claims in bankruptcy in Matter of Mobile Steel Co.: (i) The claimant must have engaged in some type of inequitable conduct, (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy [Code]. 563 F.2d at 700 (citations omitted). Accord, Matter of Multiponics, Inc. A claim filed pursuant to § 501 enjoys prima facie validity which may be overcome by the trustee’s presentation of evidence. A claim arising out of dealings between a debtor and its fiduciaries is to be rigorously scrutinized by the courts, Matter of Multiponics; Matter of Mobile Steel Co., but mere proof of a fiduciary relationship is insufficient to invalidate a transaction. To sustain an objection, the trustee must overcome the presumption of validity which attaches to all properly" }, { "docid": "16530721", "title": "", "text": "of the Dumas and Crestview Homes and West Texas Homes’ contractual rights therein; (2) these transactions conferred an unfair advantage on both Huffman and Wall; and (3) the subordination of Huffman’s claim was consistent with the Bankruptcy Code. These findings, though perhaps inherent in the bankruptcy court’s ruling, were not enunciated. Though we agree that Huffman’s insider connection with the debtor compels close examination of his claim, we cannot conclude, in the absence of explicit findings by the bankruptcy court on each element of the Mobile test, that the trustee has discharged his burden of proof thereunder. Whether or not Huffman’s insider status, coupled with his receipt of the fruits of Wall’s manipulations, is tantamount to the unfairness, bad faith or unconscionable wielding of control for personal gain envisioned by Mobile and Multiponics is problematical, in light of our holding that “an objection on equitable grounds cannot be merely formal, but rather must contain some substantial factual basis to support its allegation of impropriety.” Matter of Mobile Steel Co., 563 F.2d at 701. Under the totality of the circumstances of this case, therefore, we are persuaded that a remand to the bankruptcy court for entry of the findings required for application of this circuit’s equitable subordination test is necessary. On remand, the bankruptcy court should set forth its relevant findings and conclusions under each element of the test we impressed in Matter of Mobile Steel Co. AFFIRMED in part, REVERSED and REMANDED for further proceedings. . The record reflects that four MBFA subsidiaries, all known as Associated Memorial Homes, were involved in the relevant transactions with Huffman, Wall, the Wall and Huffman partnership, and West Texas Homes. It is not clear which of the four, Associated Memorial Homes of West Texas, Inc., Associated Memorial Homes of Central Texas, Inc., Associated Memorial Homes of Lubbock, Inc., and Associated Memorial Homes of Greenbelt, Inc. became indebted to Huffman. To facilitate discussion we shall simply refer to the obligor on the Huffman promissory notes as “MBFA” or “the debtor.” . The bankruptcy judge stated: The divers proceedings to date in this Chapter 11" }, { "docid": "22850371", "title": "", "text": "not Huffman’s insider status, coupled with his receipt of the fruits of Wall’s manipulations, is tantamount to the unfairness, bad faith or unconscionable wielding of control for personal gain envisioned by Mobile and Multiponics is problematical, in light of our holding that \"an objection on equitable grounds cannot be merely formal, but rather must contain some substantial factual basis to support its allegations of impropriety.” Matter of Mobile Steel Co., 563 F.2d at 701. Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 212-13 (5th Cir.1983) (quoted in Missionary Baptist, 48 B.R. at 888-89). The court noted that, had it been considering a claim by Wall, it would have considered the full scope of his dealings with MBFA and would quickly conclude that the elements of the Mobile Steel test were met. Missionary Baptist, 48 B.R. at 889. However, with respect to Huffman, the court noted that notwithstanding the fact that Huffman was, by definition, an insider of MBFA, he was an insider only in connection with the transactions involving the Dumas and Crestview homes. “As insider with Wall any inequitable conduct on the part of Wall in connection with the transactions involving those two homes only should be imputed to Huffman.” Id. (emphasis added). . This section had no parallel under the former Bankruptcy Act. The section gives statutory authority for the subordination of claims. Section 510(c)(1) “is broad in scope and encompasses the case law developed by the courts under the general grant of equitable jurisdiction under the Act.\" 3 Collier on Bankruptcy jf 510.-01 at 510-2-510-3 (15th ed. 1987) [hereinafter cited as “Collier’s”]. The subsection \"provides for the subordination of claims that are otherwise allowable when principles of equity would be offended by the allowance of such claims on a parity with those of other creditors.\" Id. at 510-3. The subsection codifies prior case law. Id. Under the Act, there was no specific provision which expressly authorized subordination of a creditor’s claim. However, the courts found authorization under the Act to exercise the equitable power of subordination under sections 2a and 57k" }, { "docid": "16530709", "title": "", "text": "schedules reflected an aggregate balance on the two notes in favor of Huffman of $119,005. The trustee formally objected to Huffman’s claim, contending that MBFA was not indebted to him on the $88,860 note nor for the $37,170.96 balance, because the $74,-007 note was invalid as the product of an arrangement by Huffman and Wall designed to improperly extract monies from the debtor. The bankruptcy court found, inter alia, that Wall’s ownership or control of the debtor placed him within the definition of “insider of the debtor,” 11 U.S.C. § 101(25)(B). Recognizing that Huffman’s connection with MBFA differed from Wall’s, the bankruptcy court then addressed the question whether Huffman could be characterized as an insider because of his business relationship with Wall and his stock ownership in West Texas Homes. The bankruptcy judge found that MBFA’s acquisition of the Dumas and Crestview homes and West Texas Homes’ contractual position were effected by Wall on a less than arms-length basis. The judge concluded that because West Texas Homes was an affiliate of the debtor under 11 U.S.C. § 101(2)(B), its conveyance of the $88,860 note to Huffman was an insider transaction. Further, the judge determined that the $74,007 indebtedness to Huffman, in his capacity as general partner of a partnership which controlled the debtor, likewise resulted from an insider transaction. Based on these findings, the bankruptcy judge allowed the $119,005 claim but ordered it subordinated, under 11 U.S.C. § 510(c)(1), to those of the general unsecured creditors. The district court affirmed the bankruptcy court in all respects, concluding that there had been sufficient findings to justify the subordination of Huffman’s claim under the three-pronged test we enunciated in Matter of Mobile Steel Co., 563 F.2d 692 (5th Cir.1977). On appeal, Huffman contends that the bankruptcy court erred in imputing insider status to him because of MBFA’s association with West Texas Homes and the Wall and Huffman partnership. He further contends that there were insufficient findings to support the application of the equitable subordination doctrine outlined in Matter of Mobile Steel Co. We disagree with the first contention and agree with the" }, { "docid": "4768635", "title": "", "text": "transfer, and declared void pursuant to sections 547(b) and 548 of the Bankruptcy Code. EQUITABLE SUBORDINATION Section 510(c) of the Bankruptcy Code gives Bankruptcy Courts broad equitable powers to subordinate a claim on equitable grounds, and provides in relevant part, that: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. 11 U.S.C. § 510(c). The fundamental aim of equitable subordination is to “undo or offset any inequity in the claim position of a creditor that will produce injustice or unfairness to other creditors in terms of the bankruptcy results.” Bostian v. Schapiro (In re Kansas City Journal-Post Co.), 144 F.2d 791, 800 (8th Cir.1944). “It is intended that the term ‘principles of equitable subordination’ follow existing case law and leave to the court development of this principle.” 124 Cong.Rec. H. 11,095 (Sept. 28, 1978). A three pronged test has been developed for a court to determine whether to exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy [Code]. Benjamin v. Diamond (In re Mobil Steel Co), 563 F.2d 692, 700 (5th Cir.1977). Under the first element, three general categories of inequitable conduct have been recognized: (1) fraud, illegality and breach of fiduciary duties; (2) substitution of debt for capital when a company is undercapital-ized; and (3) the claimant’s use of the debtor as its alter ego or instrumentality. Wilson v. Huffman (In re Missionary Baptist Foundation of America), 712 F.2d 206, 212 (5th Cir.1983); In re Beverages" }, { "docid": "22850337", "title": "", "text": "but ordered it subordinated, under 11 U.S.C. § 510(c)(1), to those of the general unsecured creditors. The district court affirmed the bankruptcy court in all respects, concluding that there had been sufficient findings to justify the subordination of Huffman’s claim under the three-pronged test this court set out in Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977): (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. See id. at 700; accord Machinery Rental, Inc. v. Herpel (In re Multiponics, Inc.), 622 F.2d 709, 713 (5th Cir.1980). On appeal to this court, Huffman contended that the bankruptcy court erred in imputing insider status to him because of MBFA’s association with West Texas Homes and the Wall and Huffman partnership. Further, Huffman contended that there were insufficient findings to support the application of the equitable subordination doctrine outlined in Mobile Steel. A panel of this court disagreed with Huffman’s first contention and agreed with his second. See Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206 (5th Cir.1983). The panel was persuaded that as to the $88,860 promissory note, Huffman was an insider of an affiliate within the meaning of 11 U.S.C. § 101(2). Further, the court found that by definition, an insider of an affiliate is an insider of the debtor under 11 U.S.C. § 101(25)(E). The panel held that because of the interrelationship of all transactions, the finding of Huffman’s insider status with respect to the $88,860 note was dis-positive also as to the $74,007 note, inasmuch as the components of Huffman’s claim were not sufficiently discrete to warrant separate treatment. Therefore, the panel affirmed the fact-finding that Huffman was an insider. However, because the bankruptcy court, upon its finding that Huffman was an insider, subordinated Huffman’s $119,005 claim without assigning specific reasons for the subordination, the panel found" }, { "docid": "22850370", "title": "", "text": "25, 1985 opinion, the court found that payments were made to Huffman only under the $74,007 note. Huffman disputes that finding in this appeal. See discussion infra at II. . The court found unpersuasive the trustee’s argument with respect to inequitable conduct on the part of Huffman that subordination was proper because Huffman had no financial exposure in the two transactions, Huffman paid no money for an interest in the Dumas home, Huffman \"was the beneficiary of Wall’s munificence in acquisition of an equal share of the proceeds of sale of the Crestview home,” and Huffman was enriched by the two transactions. Missionary Baptist, 48 B.R. at 888. While finding those arguments to be factually correct, the court found that \"[s]omething more than those transactions alleged by the trustee is required before Huffman’s debts properly can be subordinated.” Id. This conclusion was apparently based on the bankruptcy court’s reading of this court’s first opinion in this case to require more for subordination under section 510(c), relying on the following language from that opinion: Whether or not Huffman’s insider status, coupled with his receipt of the fruits of Wall’s manipulations, is tantamount to the unfairness, bad faith or unconscionable wielding of control for personal gain envisioned by Mobile and Multiponics is problematical, in light of our holding that \"an objection on equitable grounds cannot be merely formal, but rather must contain some substantial factual basis to support its allegations of impropriety.” Matter of Mobile Steel Co., 563 F.2d at 701. Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 212-13 (5th Cir.1983) (quoted in Missionary Baptist, 48 B.R. at 888-89). The court noted that, had it been considering a claim by Wall, it would have considered the full scope of his dealings with MBFA and would quickly conclude that the elements of the Mobile Steel test were met. Missionary Baptist, 48 B.R. at 889. However, with respect to Huffman, the court noted that notwithstanding the fact that Huffman was, by definition, an insider of MBFA, he was an insider only in connection with the transactions involving" }, { "docid": "4768636", "title": "", "text": "term ‘principles of equitable subordination’ follow existing case law and leave to the court development of this principle.” 124 Cong.Rec. H. 11,095 (Sept. 28, 1978). A three pronged test has been developed for a court to determine whether to exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy [Code]. Benjamin v. Diamond (In re Mobil Steel Co), 563 F.2d 692, 700 (5th Cir.1977). Under the first element, three general categories of inequitable conduct have been recognized: (1) fraud, illegality and breach of fiduciary duties; (2) substitution of debt for capital when a company is undercapital-ized; and (3) the claimant’s use of the debtor as its alter ego or instrumentality. Wilson v. Huffman (In re Missionary Baptist Foundation of America), 712 F.2d 206, 212 (5th Cir.1983); In re Beverages International, Ltd., 50 B.R. 273, 281 (Bankr.D.Mass 1985). The burden of proof varies, depending on the status of the claimant. “Where the claimant is an insider or a fiduciary, the Trustee bears the burden of presenting material evidence of unfair conduct.” Estes v. N & D Properties, Inc. (In re N & D Properties, Inc.), 799 F.2d 726, 731 (11th Cir.1986); Machinery Rental, Inc. v. Herpel (In re Multiponics, Inc.), 622 F.2d 709, 714 (5th Cir.1980). Once this burden is met, the burden shifts to the claimant to prove the fairness of his conduct vis-a-vis the debtor and the other creditors. In re N & D Properties, Inc., supra. “If the claimant is not an insider or fiduciary, however, the Trustee must prove more egregious conduct such as fraud, spoliation or overreaching, and prove it with particularity.” Id. The Code defines an insider as an officer, director or person in control of the debtor. 11 U.S.C. § 101(30)(B). This definition, however, is merely illustrative, and the term “must be applied flexibly on a case by" }, { "docid": "22850376", "title": "", "text": "has no fiduciary responsibilities, his claims, while closely scrutinized, should only be subject to subordination on grounds that would apply equally to outsiders. Collier’s fl 510.05[3][a] at 510-14. But cf. In re Beverages Int'l Ltd., 50 B.R. 273, 280 (Bankr.D. Mass.1985) (stating that ”[w]here a claimant is an insider or an affiliate of the debtor, or where the creditor exercises control over or domination of the debtor, his dealings with the debtor are subject to strict scrutiny.”) (emphasis added). In this regard, we note that a reading of the prior panel opinion in this case might allow the inference that the prior panel believed that Huffman was, indeed, a fiduciary of MBFA. See Missionary Baptist, 712 F.2d at 212 n. 4. We believe, however, that a fair reading of that opinion does not support a conclusion that the panel considered or decided that question. Since, as we point out infra, such a determination did not form the basis of the bankruptcy court’s disposition of this case on remand, we need not decide the question whether insider status under the Code necessarily implies the existence of fiduciary responsibility or whether Huffman, for some reason other than his statutorily-defined status as an insider, is a fiduciary. . We note that the bankruptcy court, on remand, limited itself to consideration of Wall’s conduct that related to the transactions involving the Dumas and Crestview homes. The court noted that \"while the full scope of Wall’s dealings could be considered in making the subordination determination those dealings by Wall cannot be imputed to Huffman.” Missionary Baptist, 48 B.R. at 889. With regard to any claim by Wall, the court noted that it would not be necessary to limit the determination of inequitable conduct to the Dumas and Crestview transactions because this court in Mobile Steel stated that inequitable conduct directed against the debtor or its creditors may be sufficient to warrant subordination of a claim even if that conduct was not related to the acquisition or assertion of that claim. Id. n. 4 (citing Mobile Steel, 563 F.2d at 700). The bankruptcy court believed that" }, { "docid": "12973939", "title": "", "text": "applied only in limited circumstances. Holt v. Federal Deposit Insurance Corp. (In re CTS Truss, Inc.), 868 F.2d 146, 148-49 (5th Cir.1989). Moreover, the doctrine is remedial, not penal, and should be applied only to the extent necessary to offset the specific harm that the creditors suffered on account of the inequitable conduct. Trone v. Smith (In re Westgate-California Corp.), 642 F.2d 1174, 1178 (9th Cir.1981); Mobile Steel, 563 F.2d at 701. This Court has enunciated a three-prong test for equitable subordination: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. Mobile Steel, 563 F.2d at 700. In order to justify equitable subordination, the bankruptcy court is required to make specific findings and conclusions with respect to each of the requirements. Missionary Baptist I, 712 F.2d at 212. The burden of proof in this case is clear. The initial burden of going forward with factual evidence to overcome the validity of TFI’s verified proofs of claim rests on the trustee in this case. Once the trustee meets this initial burden, the burden then shifts to TFI to demonstrate its good faith and the fairness of its conduct. See Mobile Steel, 563 F.2d at 701. C. Insider Status A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts. In re N & D Properties, Inc., 799 F.2d 726, 731 (11th Cir.1986); see also Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 818 F.2d 1135, 1144 n. 8 (5th Cir.1987) (“Missionary Baptist II ”). If the claimant is not an insider, then evidence of more egregious conduct such as fraud, spoliation or overreaching is necessary. N & D Properties, 799 F.2d at 731. Accordingly, whether a claimant is an insider of the debtor can be fundamentally important in an equitable subordination case in that it effects the standard of" }, { "docid": "17702535", "title": "", "text": "in the form of installments, arose upon execution of the Purchase Agreement and related documents. The Debtor’s installment payments are not divisible transfers of the Debtor’s interest in property, separate from the Debtor’s execution of the Purchase Agreement and the granting of the LeRouxs’ security interest in the Debt- or’s furniture and fixtures. Accordingly, because the Debtor’s .transfer for section 547(b)(4)(B) purposes occurred on February 4, 1994, nearly three and one-half years before the filing of the Debtor’s bankruptcy petition, the Debtor’s first claim for relief is time-barred. II. Equitable Subordination Under Section 510(c) of the Bankruptcy Code The Debtor’s second claim for relief is to equitably subordinate the LeRouxs’ $60,836.20 claim under section 510(c) of the Bankruptcy Code on the grounds that the LeRouxs, as insiders, engaged in conduct that was unfair to creditors. To determine if conditions exist warranting the equitable subordination of an insider’s claim, most courts have followed and applied the criteria articulated by the court in In re Mobile Steel Co., 563 F.2d 692 (5th Cir.1977). Under the Mobile Steel test, a claim is equitably subordinated if there is a showing by a preponderance of the evidence that (i) the claim holder engaged in some type of inequitable conduct, (ii) which injured the creditors of the debtor or conferred an unfair advantage on the claimant, and (iii) equitable subordination of the claim is not inconsistent with the provisions of the Bankruptcy [Code]. Id. at 700. See also In re Lifschultz Fast Freight, 132 F.3d 339, 344 (7th Cir.1997). “Equitable subordination is an unusual remedy which should be applied only' in limited circumstances.” Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1464 (5th Cir.1991). “A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts.” Id. at 1465 (citations omitted). Nonetheless, “the mere fact of an insider relationship is insufficient to warrant subordination.” Id. at 1467 (citing Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 210 (5th Cir.1983)). The initial burden of going forward with factual" } ]

[ { "docid": "5679508", "title": "", "text": "been recorded in the property records, it may not be enforced, not even against the debtors themselves. See, e.g., Adams v. Harris, 190 S.W. 245, 246 (Tex.Civ.App.—Texarkana 1917, no writ). Other courts hold that the unrecorded waiver is unenforceable only against third parties, i.e., the debtors will not be permitted to urge that limitations has run if there is a waiver, even though the waiver is unrecorded. Watson v. First National Bank of Coleman, 285 S.W. 1050, 1051 (Tex.Com.App.—1926). The court at the conclusion of trial held that the latter rule of state law controls in this case. The lien can thus be avoided only if the debtors can employ the status of hypothetical bona fide purchasers for value available under Section 544(a)(3) of the Bankruptcy Code (the so-called “strong-arm powers”). The court then instructed the parties to brief this issue, as there is a split of authority over whether a Chapter 13 debtor can employ the avoidance powers of Chapter 5. Compare In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983); In re Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Freeman, 72 B.R. 850 (Bankr.E.D.Va.1987); In re Ottaviano, 68 B.R. 238 (Bankr.D.Conn.1986); In re Weaver, 69 B.R. 554 (Bankr.W.D.Ky.1987) (holding in general that the debtor can employ the avoidance powers) with In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.V.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987) (holding in general that the debtor in Chapter 13 lacks standing to bring avoidance actions). ANALYSIS In general, the provisions of Chapters 1, 3, and 5 of the Bankruptcy Code apply to cases pending under Chapters 7,11,12, and 13. 11 U.S.C. § 103(a). The debtor in Chapter 11 is authorized to exercise the avoidance powers, because, as debtor-in- possession, the debtor has the standing of a trustee. 11 U.S.C. § 1107. In chapter 13, by contrast, there is a separate trustee, though the trustee’s role is somewhat different than it would be in chapter 7 or even chapter 11. The essential role of a Chapter 13 trustee is to review plans, advise" } ]

[ { "docid": "10173437", "title": "", "text": "held that a Chapter 13 debtor lacks standing to bring avoidance actions. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wisc.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex.1989). This Court had an occasion to consider this issue in the case of In re Hall, 26 B.R. 10 (Bankr.M.D.Fla.1982), shortly after the enactment of the Code. In that case this Court held that the Chapter 13 Debtor may in fact utilize the special voiding power granted by Section 544 of the Bankruptcy Code. After careful reconsideration of this issue, this Court recedes from its earlier decision in In re Hall, supra, and is now satisfied that the Chapter 13 debtor lacks the power to use the lien avoidance power of Section 544 for the following reasons: The strong arm clause of the Code, 11 U.S.C. Section 544, is basically an adaptation of pre-Code law. It gives the trustee the power of an ideal judgment lien creditor who has a judicial lien on the property of the debtor as of the commencement of the case, in addition to the rights of a creditor who actually obtained the writ of execution against the property of the debt- or but it was returned unsatisfied. Section 1303 entitled “Rights and Powers of the Debtor” grants to the Chapter 13 debtor, exclusive of the trustee, the rights and powers of a trustee under Sections 363(b), (d), (e), (f) and (l). This Section, unlike Section 1107, does not include the power of avoidance granted by Section 544 of the Code. Even a cursory analysis of the voiding power granted to the trustee by Section 544 leaves no doubt that it was enacted by Congress in order to enable the trustee of the estate to enhance the assets in order to assure that the unsecured creditors’ reeov- ery is maximized. Section 544 was never intended to permit debtors to avoid liens on properties which they are retaining. In re Bruce, supra. Chapter 13 is designed as a relief chapter" }, { "docid": "10183404", "title": "", "text": "Court stated in Ron Pair, “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.’ ” 489 U.S. at 242, 109 S.Ct. at 1031. “In such cases, the intention of the drafters, rather than the strict language, controls.” Id. Section 547, in relevant part, provides: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property[.] 11 U.S.C. § 547 (emphasis added). The plain meaning of the language contained in § 547 provides that the trustee is the only party who has the authority to avoid a preference under § 547. The language contained in other provisions of the Code further indicates that Congress did not intend for debtors to have authority to avoid preferences under § 547. Section 1303 expressly grants powers to a chapter 13 debtor which would otherwise be reserved for the trustee. Section 1303 provides: Subject to any limitations on a trustee under this chapter, the debtor shall have, exclusive of the trustee, the rights and powers of a trustee under sections 363(b), 363(d), 363(e), 363(f), and 363(Z), of this title. The plain meaning of Section 1303 does not provide a chapter 13 debtor with any avoidance powers. See e.g., In re Redditt, 146 B.R. 693, 696 (Bankr.S.D.Miss.1992) (there is no specific statutory grant of power giving a chapter 13 debtor avoidance powers); In re Tillery, 124 B.R. 127, 128 (Bankr.M.D.Fla.1991) (§ 1303 does not include the power of avoidance granted by § 544). Although the legislative history provides that “[t]he section does not imply that the debt- or does not also possess other powers concurrently with the trustee,” legislative history may not alter the statute’s plain meaning. Bruce v. RepublicBank-South Austin (In re Bruce), 96 B.R. 717, 721 (Bankr.W.D.Tex.1989). A comparison with other Code provisions involving the exercise of avoidance powers by a debtor strengthens this conclusion. In contrast to § 1303, 11 U.S.C. § 1107 specifically gives" }, { "docid": "18507030", "title": "", "text": "vest in the Chapter 13 debtor. The Chapter 13 trustee has no need to pursue any avoiding powers to carry out any duties assigned to the Chapter 13 trustee by the Code. In re Einoder, 55 B.R. [319] at 323-24 [ (Bankr.N.D.Ill.1985) ]; accord In re Ciavarella, 28 B.R. 823, 827 (Bankr.S.D.N.Y.1983) and In re Freeman, 72 B.R. [850] at 854 [ (Bankr.E.D.Va.1987) ]. (footnote omitted). As compelling, practical and intensely equitable as these arguments might be, they are at bottom well-meaning forays into judicial legislation. They exceed the scope of a bankruptcy judge’s role, which is to interpret and apply the statute, not to rewrite it. (citations omitted). As the Seventh Circuit recently observed, Any change deemed desirable on policy grounds should be addressed to Congress rather than to this court. Our duty is simply to interpret the language of the statute. Matter of Bundles, 856 F.2d 815, 823 (7th Cir.1988). By the statute’s own terms, only the trustee has standing to exercise the strong-arm avoidance powers ... Legislative history, especially floor comments, may augment but may not amend the statute’s straightforward language. Section 1303 simply does not confer standing on the debtor to pursue avoidance actions. As the bankruptcy court pointed out In re Mast [79 B.R. 981 (Bankr.W.D.Mich.1987) ], there does not exist any statutory authority for a Chapter 13 debtor to utilize avoidance powers granted to the trustee.... If Congress intended to grant avoidance powers to a Chapter 13 debtor, it could have explicitly done so ... In re Mast, 79 B.R. at 982, n. 3. In re Bruce, 96 B.R. 717, 720-21 (Bankr.W.D.Tex.1989) (emphasis added). That Court went on the make further observations as follows: There would appear to be no reason why the debtors should not, as a general principle be allowed to seek authority to sue in the trustee’s name, as do creditors’ committees in Chapter 11 cases, (citation omitted). That course of action is not available to the debtors in this case, however. Even were this court to sidestep the “idle ceremony” of forcing the debtor to formally move for permission to" }, { "docid": "18507039", "title": "", "text": "Weaver, 69 B.R. 554 (Bankr.W.D.Ky.1987); In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982). However, many cases held that a Chapter 13 debtor lacks standing to bring avoidance actions. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wisc.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex.1989). This Court had an occasion to consider this issue in the case of In re Hall, 26 B.R. 10 (Bankr.M.D.Fla.1982), shortly after the enactment of the Code. In that case this Court held that the Chapter 13 Debtor may in fact utilize the special voiding power granted by Section 544 of the Bankruptcy Code. After careful reconsideration of this issue, this Court recedes from its earlier decision in In re Hall, supra, and is now satisfied that the Chapter 13 debtor lacks the power to use the lien avoidance power of Section 544 for the following reasons: The strong arm clause of the Code, 11 U.S.C. Section 544, is basically an adaptation of pre-Code law. It gives the trustee the power of an ideal judgment lien creditor who has a judicial lien on the property of the debtor as of the commencement of the case, in addition to the rights of a creditor who actually obtained the writ of execution against the property of the debtor but it was returned unsatisfied. Section 1303 entitled “Rights and Powers of the Debtor” grants to the Chapter 13 debtor, exclusive of the trustee, the rights and powers of a trustee under Sections 363(b), (d), (e), (f) and (I). This Section, unlike Section 1107, does not include the power of avoidance granted by Section 544 of the Code. Even a cursory analysis of the voiding power granted to the trustee by Section 544 leaves no doubt that it was enacted by Congress in order to enable the trustee of the estate to enhance the assets in order to assure that the unsecured creditors' recovery is maximized. Section 544 was never intended to permit debtors to avoid liens on properties which they are" }, { "docid": "1090877", "title": "", "text": "and there does not exist any statutory authority for a Chapter 13 debtor to utilize avoidance powers granted to the trustee, including those powers listed in Sections 544, 545, 547 and 548 of the Bankruptcy Code. If Congress intended to grant avoidance powers to a Chapter 13 debtor, it could have explicitly done so. There exists a split of authority regarding whether a Chapter 13 debtor may utilize a trustee’s avoidance powers. After careful consideration, this Court believes those cases which hold the Chapter 13 debt- or lacks the power to unilaterally set aside avoidable transfers are better reasoned and more persuasive than those cases decided to the contrary. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980) (Chapter 13 debtors lack § 544 “strong arm” power); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982) (Chapter 13 debtor lacked ability to exercise power to avoid preferential transfer under § 547); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986) (Chapter 13 debtor may not generally utilize the trustee’s Chapter 5 avoidance powers); cf. In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982) (Chapter 13 trustee has authority to avoid preferential transfers under § 547). Cases decided to the contrary recognize the “realities of bankruptcy practice” to justify a strained interpretation of the Bankruptcy Code and to conclude a Chapter 13 debtor is empowered to utilize a trustee’s avoidance powers. See, e.g., In re Ottaviano, 68 B.R. 238, 240 (Bankr.D.Conn.1986), and the cases cited therein. As a matter of practice, a Chapter 13 debtor may easily request that the Chapter 13 trustee utilize his powers to set aside avoidable transfers. If avoiding a transfer is in the interest of the estate, the trustee may unilaterally seek to avoid the transfer or consent to the debtor’s possible intervention as an additional party plaintiff pursuant to Bankruptcy Rule 7024. Alternatively, the Chapter 13 Plan may propose that the debtor, on behalf of the estate, and in conjunction with the trustee, utilize avoidance powers to assure equality of distribution and no unfair discrimination among creditors. In re Walls, supra at 704. The Court therefore concludes, as a matter of law, that" }, { "docid": "20916027", "title": "", "text": "and duties of a trustee. The debt- or’s powers are limited to those listed in 11 U.S.C. § 1303: \"the [chapter 13] debtor shall have, exclusive of the trustee, the rights and powers of a trustee under sections 363(b), 363(d), 363(e), 363(f), and 363(Z) of this title.” Consequently, the chapter 13 trustee, not the debtor, is the only appropriate plaintiff in a fraudulent transfer action. See In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986); Walls v. Appalachian Tire Products, Inc. (In re Walls), 17 B.R. 701 (Bankr.S.D.W.Va.1982); Colandrea v. Colandrea (In re Colandrea), 17 B.R. 568 (Bankr.D.Md.1982); In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980). I disagree, and accept the majority view that a chapter 13 debtor has standing to bring actions under the Bankruptcy Code’s avoidance powers. The legislative history accompanying § 1303 states that “[this] section does not imply that the debtor does not also possess other powers concurrently with the trustee.” 124 Cong.Rec.H. 11,106 (9/28/78); S. 17,423 (10/6/78). The courts have concluded that “the realities of bankruptcy practice” require allowing chapter 13 debtors to pursue avoidance power actions. See Willis v. Borg-Warner Acceptance Corp. (In re Willis), 48 B.R. 295, 302-03 (S.D.Tex.1985); Einoder v. Mount Greenwood Bank (In re Einoder), 55 B.R. 319, 321-24 (Bankr.N.D.Ill.1985); In re Chapman, 51 B.R. 663, 665 (Bankr.D.D.C.1985); Carr v. Demusis (In re Carr), 34 B.R. 653, 655 (Bankr.D.Conn.1983), aff'd 40 B.R. 1007 (D.Conn.1984); In re Boyette, 33 B.R. 10, 11 (Bankr.N.D.Tex.1983); Russo v. Ciavarella (In re Ciavarella), 28 B.R. 823, 827-28 (Bankr.S.D.N.Y.1983); In re Hall, 26 B.R. 10, 11 (Bankr.M.D.Fla.1982). B. Sorokin next argues that the doctrine of collateral estoppel precludes the debtor from litigating in this court issues decided by the Superior Court. Sorokin claims that the debtor’s Motion for Refund decided by the state court involved the same issues relitigated here. The effect of a state court judgment in a federal court is governed by the state’s rules of collateral estoppel. See 28 U.S.C. § 1738. Connecticut courts follow the general rule: “Collateral estoppel ... serves to estop the relitigation by [a party] of any right, fact or legal issue which" }, { "docid": "23269036", "title": "", "text": "363(e), 363(0 and 363(f), of this title.\" 11 U.S.C. § 1303. . The absence of statutory authorization for Chapter 13 debtors contrasts with the express statutory authorization for Chapter 11 debtors. As debtors-in-possession. Chapter 11 debtors have standing to exercise avoidance powers as trustees. 11 U.S.C. § 1107; see also In re Redditt, 146 B.R. 693, 695-96 (Bankr.S.D.Miss.1992); Bruce v. RepublicBank-South Austin (In re Bruce), 96 B.R. 717, 719-20 (Bankr.W.D.Tex.1989); In re Driver, 133 B.R. 476, 477 (Bankr.S.D.Ind.1991). . The bankruptcy courts reaching this result relied heavily on the legislative history of section 1303, including the following floor comment: [Section 1303] does not imply that the debtor does not also possess other powers concurrently with the trustee. For example, although Section 323 is not specified in section 1303, certainly it is intended that the debtor has the power to sue and be sued. 124 Cong. Rec. H11106 (Sept. 28, 1978)(re-marks of Rep. Edwards); S. 17423 (Oct. 6, 1978). The court in In re Einoder summarized the basis of these holdings, as follows: I agree with those courts that have extended the trustee’s full avoiding powers to Chapter 13 debtors.... [T]he Court should not be blind to the realities of bankruptcy practice. It is clear that the Chapter 13 debtor is the most appropriate party to seek such a recovery. While the trustee, as representative of the estate, usually is the only party to have standing to pursue the avoiding powers granted under the Bankruptcy Code, see II U.S.C. §§ 323, 544 — 553, it is also clear that in Chapter 13 cases the trustee rarely, if ever, pursues such actions because the trustee reaps little benefit for the amount of time and effort involved. The trustee would have to hire an attorney and litigate the action. Should the trustee succeed, any recovery becomes property of the estate and goes to the debtor.... Any other conclusion would be obviously unfair to the debtors. To say the trustee is the representative of the Chapter 13 estate is to raise legal formalism over reality____ [I]t is only reasonable that the bankruptcy court allow" }, { "docid": "15916807", "title": "", "text": "660 (Bankr. D.N.J.1985). Applying these legal precepts, the Debtor argues that because WAMCO did not levy on her West Orange property prior to the petition date, she may employ § 544 to avoid the WAMCO lien. The Debtor acknowledges that there is a split of authority regarding the standing of a Chapter 13 debtor to exercise the trustee’s avoidance powers, but urges the Court to follow those cases that find that the debtor may use the trustee’s powers. See Thacker v. United Cos. Lending Corp., 256 B.R. 724 (W.D.Ky.2000); In re Freeman, 12 B.R. 850 (Bankr.E.D.Va. 1987); In re Ottaviano, 68 B.R. 238 (Bankr.D.Conn.1986); In re Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985). The Debt- or further contends that if the Court finds that she does not independently have standing to utilize the trustee’s § 544 power, she may nonetheless achieve the same result under § 522(h) which grants a debt- or limited use of a trustee’s avoidance powers. WAMCO requests that the Court follow the line of case authority that finds that the Bankruptcy Code does not generally confer upon a Chapter 13 debtor the power to use a trustee’s avoidance powers. See In re Merrifield, 214 B.R. 362 (8th Cir.BAP1997); In re Wilkinson, 186 B.R. 186 (Bankr.D.Md.1995); In re Redditt, 146 B.R. 693 (Bankr.S.D.Miss.1992); In re Perry, 131 B.R. 763 (Bankr.D.Mass.1991); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex. 1989). Moreover, WAMCO argues that to the extent the Debtor seeks to avoid its hen under § 522(f), the Debtor’s mathematical computations are incorrect. WAMCO contends that its lien does not affect the Debtor’s claimed exemption, and its lien cannot be avoided. Finally, although not supported by any citation to authority, WAMCO argues that courts have held that for purposes of determining exemption impairment, the value of a debt- or’s residence is determined as of the confirmation date, rather than the petition date. On the issue of whether a Chapter 13 debtor is generally authorized to utilize the trustee’s avoidance powers, the Court finds that the cases relied upon by WAM-CO are persuasive. These cases apply a straightforward analysis of the language" }, { "docid": "12380720", "title": "", "text": "grant of avoidance power found in 11 U.S.C. § 522(h). See: In re Redditt, 146 B.R. 693, 697 (Bankr.S.D.Miss.1992); In re Perry, 131 B.R. 763, 769 (Bankr.D.Mass.1991); In re Tillery, 124 B.R. 127, 128 (Bankr.M.D.Fla.1991); In re Merrick, 151 B.R. 260, 262 (Bankr.D.Idaho 1993); In re Carter, 2 B.R. 321, 322 (Bankr.D.Colo.1980); In re Willis, 48 B.R. 295, 298-99 (Bankr.S.D.Tex.1985); In re Jernigan, 130 B.R. 879, 887 (Bankr.N.D.Okla.1991); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986); In re Radziunas, Bankr.E.D.Pa., 95-12104 Slip Opinion, dated December 22, 1995 (Sigmund J.). As noted, in In re Radziunas, other courts have held that Chapter 13 Debtors have broader rights. See In re Freeman, 72 B.R. 850 (Bankr.E.D.Va.1987); In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983). Even these Courts, however, condition the Chapter 13 Debtor’s resort to the Code’s strong arm powers on a showing that the benefit to be derived therefrom will inure to persons other than the Debtor. See In re Chapman, 51 B.R. 663, 666 (Bankr.D.D.C.1985). The Debtor’s argument fails when tested in this fashion. Other things being equal and absent this bankruptcy case, O’Hanlon is correct that state law would uphold the validity of the October 10, 1995 deeds as between the partners thereto. The Debtor, meanwhile, has only de minimus debt other than his mortgage. The rights of the mortgagee, PNC are not at risk by virtue of the Debtor’s deed to Hannett, Inc. Rather, the corporation is merely a terre tenant whose title can be divested through foreclosure just as the Debtor’s. Resort by the Debtor to the Bankruptcy Code’s avoidance powers for the purpose of undoing his deed to O’Hanlon thus stands to benefit the Debtor alone. The instant ease accordingly does not require this Court to reach a conclusion as to the general availability of Bankruptcy Code avoidance powers to a Chapter 13 debtor. Rather, the Court need only, and does, adopt the view that in circumstances such as those sub judi-ce, recourse to the avoidance powers which the Debtor would invoke is unavailable to him. Dismissal of his bankruptcy case consequently will do little to change whatever" }, { "docid": "23269015", "title": "", "text": "544(a)(3). Section 1303 of the Bankruptcy Code grants Chapter 13 debtors certain powers otherwise reserved to trustees. 11 U.S.C. § 1303. Section 1303 does not include trustees’ section 544 strong-arm avoidance powers. There is no specific statutory provision generally authorizing Chapter 13 debtors to exercise trustees’ avoidance powers. A number of bankruptcy courts have found that Chapter 13 debtors may exercise trustees’ strong-arm avoidance powers. See Freeman v. Eli Lilly Fed. Credit Union (In re Freeman), 72 B.R. 850, 854 (Bankr.E.D.Va. 1987); Ottaviano v. Sorokin & Sorokin (Matter of Ottaviano), 68 B.R. 238, 240 (Bankr.D.Conn.1986); Einoder v. Mount Greenwood Bank (In re Einoder), 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Boyette, 33 B.R. 10, 10-11 (Bankr.N.D.Tex.1983); In re Hall, 26 B.R. 10, 11 (Bankr.M.D.Fla.1982). In these cases, the courts emphasized the “reality” of Chapter 13 bankruptcies, the limited role of Chapter 13 trustees, and the perceived unfairness to Chapter 13 debtors of denying them standing under section 544. More recently, bankruptcy courts addressing the issue have receded from their earlier opinions and refused to use section 544 to allow Chapter 13 debtors to exercise strong-arm powers reserved for Chapter 13 trustees. See In re Redditt, 146 B.R. 693, 696-701 (Bankr.S.D.Miss.1992); In re Henderson, 133 B.R. 813, 816-17 (Bankr.W.D.Tex.1991); In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla.1991); In re Coan, 134 B.R. 670 (Bankr.M.D.Fla.1991); In re Driver, 133 B.R. 476 (Bankr.S.D.Ind.1991); Bruce v. RepublicBank-South Austin (In re Bruce), 96 B.R. 717, 720-23 (Bankr.W.D.Tex.1989); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987). These courts have acknowledged the “realities” of Chapter 13 bankruptcies and the trustees’ limited role, the factors emphasized by earlier courts. However, they have also noted the lack of “explicit statutory foundation for the debtor to seek avoidance.” In re Redditt, 146 B.R. at 701; In re Bruce, 96 B.R. at 720-21; cf. In re Pointer, 952 F.2d 82, 87-88 (5th Cir.), cert. denied, 505 U.S. 1222, 112 S.Ct. 3035, 120 L.Ed.2d 904 (1992) (relying on the “plain language of the Code,” the court denied standing to a Chapter 11 creditor seeking to invoke avoidance powers under section 549 of the Bankruptcy Code)." }, { "docid": "12380719", "title": "", "text": "was never signed by the Debtor. Rather, his counsel signed it for him, without attribution! The sum of the foregoing factors, coupled with the Debtor’s overall evasiveness at trial, and his ill conceived and facially infeasible Chapter 13 plan, overwhelmingly persuade the Court that it is the Debtor’s intention to manipulate the “system.” It would ill behoove the Court to sanction such abuse, and indeed it will not. The Debtor’s actions and omissions demonstrate a total lack of good faith on his part with respect to these proceedings. The request for dismissal of his bankruptcy case under 11 U.S.C. § 1307(c) will therefore be granted. While perhaps seemingly harsh, it is less than clear that this disposition works true prejudice on the Debtor. As previously noted, the Debtor’s effort to undo his transaction with O’Hanlon are premised upon resort to the Bankruptcy Code’s strong arm powers. Various courts have held that, despite the language found in 11 U.S.C. § 103(a), a Chapter 13 Debtor’s rights in this respect are limited to the sole specific statutory grant of avoidance power found in 11 U.S.C. § 522(h). See: In re Redditt, 146 B.R. 693, 697 (Bankr.S.D.Miss.1992); In re Perry, 131 B.R. 763, 769 (Bankr.D.Mass.1991); In re Tillery, 124 B.R. 127, 128 (Bankr.M.D.Fla.1991); In re Merrick, 151 B.R. 260, 262 (Bankr.D.Idaho 1993); In re Carter, 2 B.R. 321, 322 (Bankr.D.Colo.1980); In re Willis, 48 B.R. 295, 298-99 (Bankr.S.D.Tex.1985); In re Jernigan, 130 B.R. 879, 887 (Bankr.N.D.Okla.1991); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986); In re Radziunas, Bankr.E.D.Pa., 95-12104 Slip Opinion, dated December 22, 1995 (Sigmund J.). As noted, in In re Radziunas, other courts have held that Chapter 13 Debtors have broader rights. See In re Freeman, 72 B.R. 850 (Bankr.E.D.Va.1987); In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983). Even these Courts, however, condition the Chapter 13 Debtor’s resort to the Code’s strong arm powers on a showing that the benefit to be derived therefrom will inure to persons other than the Debtor. See In re Chapman, 51 B.R. 663, 666 (Bankr.D.D.C.1985). The Debtor’s argument fails when tested in this fashion. Other things being" }, { "docid": "16501364", "title": "", "text": "must then address the issue of whether the Mortgage was fatally defective such that a bona fide purchaser could have avoided it. The law is divided on the issue of whether Chapter 13 debtors may avail themselves of the § 544(a) strong-arm powers. A number of courts have held that a Chapter 13 debtor has standing to assert the avoiding power granted by § 544. In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla.1991). In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983); In re Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Ottaviano, 68 B.R. 238 (Bankr.D.Conn.1986); In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982). This Court joined with this line of cases in 1987. In re Weaver, 69 B.R. 554 (Bankr.W.D.Ky.1987). There is a contrary line of cases, however, reaching the opposite holding; i.e., that Chapter 13 debtors may not avail themselves of the trustee’s § 544(a) strong-arm avoidance powers. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex.1989). The Court continues to be unpersuaded by this line of cases. The Thackers are determined to have standing to assert the § 544(a) strong-arm avoidance powers granted to trustees. 11 U.S.C. § 544(a)(3) provides in relevant part: a. The Trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debt- or or any obligation incurred by the debtor that is voidable by— iii. A bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists. This language frames the inquiry here. It matters not whether the debtors personally knew of the mortgage. Rather, the inquiry focuses on whether a bona fide" }, { "docid": "16501363", "title": "", "text": "notice to subsequent purchasers. This Court finds it does not and that the Mortgage in this case is invalid. The bankruptcy court began its opinion with an analysis of the applicability of the strong-arm clause to this case. While the Appellees dispute the availability of these strong-arm powers to the Debtors, the Court disagrees and fully adopts the reasoning of the Bankruptcy Court: At the outset, the Court is asked to determine whether a Chapter 13 debtor has standing to utilize the avoiding powers granted to a bankruptcy trustee by the § 544(a)(3) strong-arm clause of the Bankruptcy Code. Section 544(a)(3) grants a trustee “the rights and powers of a bona fide purchaser of real property from the debtor if, at the time the bankruptcy is commenced, a hypothetical buyer could have obtained bona fide purchaser status.” In re Michigan Lithographing Co., 997 F.2d 1158 (6th Cir.1993); See also In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla.1991). If the Thackers are determined to have standing to assert the strong-arm avoiding powers under that section, the Court must then address the issue of whether the Mortgage was fatally defective such that a bona fide purchaser could have avoided it. The law is divided on the issue of whether Chapter 13 debtors may avail themselves of the § 544(a) strong-arm powers. A number of courts have held that a Chapter 13 debtor has standing to assert the avoiding power granted by § 544. In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla.1991). In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983); In re Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Ottaviano, 68 B.R. 238 (Bankr.D.Conn.1986); In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982). This Court joined with this line of cases in 1987. In re Weaver, 69 B.R. 554 (Bankr.W.D.Ky.1987). There is a contrary line of cases, however, reaching the opposite holding; i.e., that Chapter 13 debtors may not avail themselves of the trustee’s § 544(a) strong-arm avoidance powers. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987); In" }, { "docid": "10183405", "title": "", "text": "provides: Subject to any limitations on a trustee under this chapter, the debtor shall have, exclusive of the trustee, the rights and powers of a trustee under sections 363(b), 363(d), 363(e), 363(f), and 363(Z), of this title. The plain meaning of Section 1303 does not provide a chapter 13 debtor with any avoidance powers. See e.g., In re Redditt, 146 B.R. 693, 696 (Bankr.S.D.Miss.1992) (there is no specific statutory grant of power giving a chapter 13 debtor avoidance powers); In re Tillery, 124 B.R. 127, 128 (Bankr.M.D.Fla.1991) (§ 1303 does not include the power of avoidance granted by § 544). Although the legislative history provides that “[t]he section does not imply that the debt- or does not also possess other powers concurrently with the trustee,” legislative history may not alter the statute’s plain meaning. Bruce v. RepublicBank-South Austin (In re Bruce), 96 B.R. 717, 721 (Bankr.W.D.Tex.1989). A comparison with other Code provisions involving the exercise of avoidance powers by a debtor strengthens this conclusion. In contrast to § 1303, 11 U.S.C. § 1107 specifically gives chapter 11 debtors in possession the powers of a trustee, providing: (a) Subject to any limitations on a trustee serving in a case under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, except the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter. “It is a fundamental rule of statutory construction that inclusion in one part of a congressional scheme of that which is excluded in another part reflects a congressional intent that the exclusion was not inadvertent.” Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1197 (6th Cir.1983). A chapter 13 debtor, however, may avoid the transfer of property under § 522(h). Jardine v. Bennett’s Eastside Paint And Glass (In re Jardine), 120 B.R. 559, 561 (Bankr.D.Idaho 1990); see also In re Driver, 133 B.R. 476, 477" }, { "docid": "1151772", "title": "", "text": "creditors, id. at 666. Other courts that have addressed the issue have concluded that a Chapter 13 debtor does not share the trustee’s avoidance powers. The earliest case, In re Carter, 2 B.R. 321 (Bankr.D.Col.1980), observed that although the legislative history suggests some powers might be concurrently held by the debtor and the trustee, such as to sue and be sued, the recognition of that power does no violence to the role of the Chapter 13 trustee. Were lien avoidance power concurrently held, the trustee would effectively lose control over lien avoidance litigation. That result should be avoided, particularly if it is reachable only by implication. When Congress intended debtors to exercise the powers of a trustee in Chapter 11, it explicitly so stated in section 1107(a). Presumably, a section analogous to section 1107(a) would be present in Chapter 13 if that were the congressional intent. Id. at 322. Accord In re Driscoll, 57 B.R. 322, 325 (Bankr.W.D.Wis.1986); In re Colandrea, 17 B.R. 568, 583 (Bankr.D.Md.1982). The court in In re Jardine, 120 B.R. 559, 562 (Bankr.D.Idaho 1990), concluded that practicality dictates that the trustee control the right to assault transfers of property, since the trustee’s broader perspective as to the estate acts as a buffer against potential abuse. If the trustee refuses to act, in appropriate circumstances, the court may authorize another interested party to pursue an action on behalf of the estate. See id. In what appears to be the most recent case on the issue, In re Tillery, 124 B.R. 127, 129 (Bankr.M.D.Fla.1991), the court noted that it was intended that a Chapter 13 plan be funded through future income, not by pursuing voidable transactions, concluded that there was no apparent justification to permit a Chapter 13 debtor to avoid a transaction to which the debtor was a participating party when the avoidance would play no meaningful role in the debt- or’s ability to propose and consummate a plan, and therefore held that the debtor may not utilize the avoidance powers of section 544. The debate on this issue has focused in large part on the differences" }, { "docid": "10173436", "title": "", "text": "the strong-arm clause of the Bankruptcy Code, Section 544(a)(1). This Section arms the trustee with the voiding power of a fictitious ideal judgment lien creditor who, under the applicable local law would defeat any unperfected lien on properties owned by the Debtor; and, (2) in any event, even if the debtor in a Chapter 13 case has such power, the question still remains whether or not the lien claim is enforceable even though admittedly the Debtors did not sign a financing statement and none was recorded either in the Office of the Secretary of State or locally. Since the issue of standing was first addressed in 1980, courts did not develop a uniform resolution of this issue. For instance, several courts held that the Chapter 13 debtor may utilize the special voiding power granted by Section 544. In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983); In re Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Ottaviano, 68 B.R. 238 (Bankr.D.Conn.1986); In re Weaver, 69 B.R. 554 (Bankr.W.D.Ky.1987); In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982). However, many cases held that a Chapter 13 debtor lacks standing to bring avoidance actions. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wisc.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex.1989). This Court had an occasion to consider this issue in the case of In re Hall, 26 B.R. 10 (Bankr.M.D.Fla.1982), shortly after the enactment of the Code. In that case this Court held that the Chapter 13 Debtor may in fact utilize the special voiding power granted by Section 544 of the Bankruptcy Code. After careful reconsideration of this issue, this Court recedes from its earlier decision in In re Hall, supra, and is now satisfied that the Chapter 13 debtor lacks the power to use the lien avoidance power of Section 544 for the following reasons: The strong arm clause of the Code, 11 U.S.C. Section 544, is basically an adaptation of pre-Code law. It gives the trustee the power of an ideal judgment lien creditor who" }, { "docid": "18507038", "title": "", "text": "statu tory foundation. In an interesting decision from a Florida bankruptcy court, Judge Alexander Paskay held that a chapter 13 debtor lacks standing to use the trustee’s lien avoidance powers. In In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla.1991), the following was stated: It should be pointed out at the outset that a procedure to determine the validity, priority or extent of lien or other interest in property is an adversary proceeding governed by Part VII of the rules and it is improper to present the same by way of motion. Be that as it may, Sears did not object to the procedural defect and submitted for this Court’s consideration the ultimate issues Since the issue of standing was first addressed in 1980, courts did not develop a uniform resolution of this issue. For instance, several courts held that the Chapter 13 debtor may utilize the special voiding powers granted by Section 544. In re Boyette, 33 B.R. 10 (Bankr.N.D.Tex.1983); In re Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Ottaviano, 68 B.R. 238 (Bankr.D.Conn.1986); In re Weaver, 69 B.R. 554 (Bankr.W.D.Ky.1987); In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982). However, many cases held that a Chapter 13 debtor lacks standing to bring avoidance actions. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wisc.1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex.1989). This Court had an occasion to consider this issue in the case of In re Hall, 26 B.R. 10 (Bankr.M.D.Fla.1982), shortly after the enactment of the Code. In that case this Court held that the Chapter 13 Debtor may in fact utilize the special voiding power granted by Section 544 of the Bankruptcy Code. After careful reconsideration of this issue, this Court recedes from its earlier decision in In re Hall, supra, and is now satisfied that the Chapter 13 debtor lacks the power to use the lien avoidance power of Section 544 for the following reasons: The strong arm clause of the Code, 11 U.S.C. Section 544, is basically an adaptation of" }, { "docid": "1090876", "title": "", "text": "things, as a matter of law, a Chapter 13 Debtor lacks the authority to avoid a preferential transfer. At the hearings respecting the cross motions for summary judgment, both parties, through their counsel, presented argument regarding their respective legal positions. Because of the importance of the legal issues presented, the Court took the matter under advisement pending issuance of this written opinion. Section 547(b) of the Bankruptcy Code states “the trustee may avoid” a preferential transfer by proving the requisite elements. Section 1303 of the Bankruptcy Code explicitly enumerates the rights and powers of a Chapter 13 debtor. The debtor is empowered, exclusive of the trustee, to use, sell or lease property in accordance with Sections 363(b), 363(d), 363(e), 363(f) and 363(1) of the Bankruptcy Code. If a Chapter 13 debtor is engaged in business, Section 1304 grants additional powers to the debtor to enter into ordinary business transactions under Section 363(c) and to obtain credit pursuant to Section 364 of the Bankruptcy Code. The Court has carefully reviewed all provisions contained in Chapter 13 and there does not exist any statutory authority for a Chapter 13 debtor to utilize avoidance powers granted to the trustee, including those powers listed in Sections 544, 545, 547 and 548 of the Bankruptcy Code. If Congress intended to grant avoidance powers to a Chapter 13 debtor, it could have explicitly done so. There exists a split of authority regarding whether a Chapter 13 debtor may utilize a trustee’s avoidance powers. After careful consideration, this Court believes those cases which hold the Chapter 13 debt- or lacks the power to unilaterally set aside avoidable transfers are better reasoned and more persuasive than those cases decided to the contrary. In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980) (Chapter 13 debtors lack § 544 “strong arm” power); In re Walls, 17 B.R. 701 (Bankr.S.D.W.Va.1982) (Chapter 13 debtor lacked ability to exercise power to avoid preferential transfer under § 547); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis.1986) (Chapter 13 debtor may not generally utilize the trustee’s Chapter 5 avoidance powers); cf. In re Colandrea, 17 B.R. 568 (Bankr.D.Md.1982)" }, { "docid": "23269014", "title": "", "text": "to the property under 11 U.S.C. §§ 522(h) and 544(a)(3). On October 17, 1995, following a bench trial, the bankruptcy court divested Realty Portfolio of title to the property, revested title in Hamilton, and awarded Realty Portfolio a hen on the property in the amount of $3,600, the price Realty Portfolio paid for the property at the foreclosure sale. The district court affirmed the judgment of the bankruptcy court. Realty Portfolio appeals. II. THE STANDARD OF REVIEW This court reviews the bankruptcy court’s findings of fact for clear error and its conclusions of law due novo. In re Kemp, 52 F.3d 546, 550 (5th Cir.1995), cited in Traina v. Whitney Nat’l Bank, 109 F.3d 244, 245 (5th Cir.1997). III. DISCUSSION A A CHAPTER 13 DEBTOR’S POWERS OF AVOIDANCE The threshold issue is whether Hamilton, the Chapter 13 debtor, has standing to exercise the avoidance powers of a Chapter 13 trustee under the Bankruptcy Code. Section 544 of the Bankruptcy Code grants Chapter 13 trustees strong-arm powers to avoid certain prepetition property transfers. 11 U.S.C. § 544(a)(3). Section 1303 of the Bankruptcy Code grants Chapter 13 debtors certain powers otherwise reserved to trustees. 11 U.S.C. § 1303. Section 1303 does not include trustees’ section 544 strong-arm avoidance powers. There is no specific statutory provision generally authorizing Chapter 13 debtors to exercise trustees’ avoidance powers. A number of bankruptcy courts have found that Chapter 13 debtors may exercise trustees’ strong-arm avoidance powers. See Freeman v. Eli Lilly Fed. Credit Union (In re Freeman), 72 B.R. 850, 854 (Bankr.E.D.Va. 1987); Ottaviano v. Sorokin & Sorokin (Matter of Ottaviano), 68 B.R. 238, 240 (Bankr.D.Conn.1986); Einoder v. Mount Greenwood Bank (In re Einoder), 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Boyette, 33 B.R. 10, 10-11 (Bankr.N.D.Tex.1983); In re Hall, 26 B.R. 10, 11 (Bankr.M.D.Fla.1982). In these cases, the courts emphasized the “reality” of Chapter 13 bankruptcies, the limited role of Chapter 13 trustees, and the perceived unfairness to Chapter 13 debtors of denying them standing under section 544. More recently, bankruptcy courts addressing the issue have receded from their earlier opinions and refused to use section" }, { "docid": "23269016", "title": "", "text": "544 to allow Chapter 13 debtors to exercise strong-arm powers reserved for Chapter 13 trustees. See In re Redditt, 146 B.R. 693, 696-701 (Bankr.S.D.Miss.1992); In re Henderson, 133 B.R. 813, 816-17 (Bankr.W.D.Tex.1991); In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla.1991); In re Coan, 134 B.R. 670 (Bankr.M.D.Fla.1991); In re Driver, 133 B.R. 476 (Bankr.S.D.Ind.1991); Bruce v. RepublicBank-South Austin (In re Bruce), 96 B.R. 717, 720-23 (Bankr.W.D.Tex.1989); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich.1987). These courts have acknowledged the “realities” of Chapter 13 bankruptcies and the trustees’ limited role, the factors emphasized by earlier courts. However, they have also noted the lack of “explicit statutory foundation for the debtor to seek avoidance.” In re Redditt, 146 B.R. at 701; In re Bruce, 96 B.R. at 720-21; cf. In re Pointer, 952 F.2d 82, 87-88 (5th Cir.), cert. denied, 505 U.S. 1222, 112 S.Ct. 3035, 120 L.Ed.2d 904 (1992) (relying on the “plain language of the Code,” the court denied standing to a Chapter 11 creditor seeking to invoke avoidance powers under section 549 of the Bankruptcy Code). Under these cases, the debtor, Hamilton, would not have standing through section 1303. However, Congress has specifically authorized narrow exceptions to the general rule that Chapter 13 debtors lack standing to exercise the strong-arm powers of Chapter 13 trustees. In section 522(h), Congress granted debtors the authority to exercise section 544 avoidance powers under specific and limited circumstances. Section 522(h) specifically grants debtors standing to avoid certain involuntary transfers of exempt' property, such as homesteads, if the trustees have not themselves attempted to avoid the transfers. 11 U.S.C. § 522(h); see also DeMarah v. United States (In re DeMarah), 62 F.3d 1248 (9th Cir.1995); cf. In re Henderson, 133 B.R. at 817. The Ninth Circuit has identified a five-part test, that generally tracks section 522(h), to determine the power of a debtor to avoid a transfer of exempt property under section 522(h): (1) the transfer was not a voluntary transfer of property by the debtor; (2) the debtor did not conceal the property; (3) the trustee did not attempt to avoid the transfer; (4) the" } ]

[ { "docid": "22717013", "title": "", "text": "for dealing with the situation (which fortunately occurs infrequently) where cases have been unduly delayed in the district court. See, e.g., McDonnell Douglas Corp. v. Polin, 429 F.2d 30, 30-31 (3rd Cir.1970) (ordering district court not to defer ruling on a motion for transfer until all discovery was completed). We have also held that mandamus is the appropriate remedy when the district court ignores this Court’s mandate. Blasband v. Rales, 979 F.2d 324, 328-29 (3rd Cir.1992). In Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3rd Cir.1993), this Court held that mandamus is the proper way to seek review of a judge’s order refusing to recuse under 28 U.S.C. § 455 where the judge’s impartiality might reasonably be questioned. Mandamus in these instances serves not only to correct a harm to a litigant, but to preserve judicial integrity and public confidence. Review after final judgment might cure the harm to the litigant, but it would not cure the additional separate harm to the public confidence. Because mandamus petitions fall outside the plain meaning of the PLRA, see supra at 76-77, and the writ is an effective tool in exercising this court’s supervisory powers, bona fide mandamus petitions, regardless of the nature of the underlying actions, cannot be subject to the PLRA. c. A litigant should not be able to evade the PLRA by masking as a mandamus petition a paper otherwise subject to the Act. We will, therefore, require that any action improperly styled as mandamus must meet the fee requirements of the PLRA. It is the nature of the document, rather than the label attached by the litigant, that controls. This acknowledgment creates, however, a serious administrative problem in the processing of pro se litigation in the federal courts, particularly in the area of docketing. Where the PLRA applies, the petitioner must file an affidavit of poverty, a six-month account statement, and a form authorizing prison officials to withdraw money from his account; where it does not, the petitioner need only file an affidavit of poverty. Moreover, and more importantly, the Deputy Clerk receiving the papers, who is" } ]

[ { "docid": "22194419", "title": "", "text": "pursuant to 28 U.S.C. § 1292(b). This failure, however, does not preclude our consideration of their mandamus petition because we have yet to require, as a precondition for filing a mandamus petition conditioned upon a § 455(a) disqualification, that a prior § 1292(b) certification be sought. See School Asbestos Litigation, 977 F.2d at 774; see also Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 991 F.2d 1080, 1083 (3d Cir.1993) (section 1292(b) certification denied prior to filing of mandamus petition). . In School Asbestos Litigation, we stated that ordinarily wc review a district judge’s refusal to recuse himself pursuant to 28 U.S.C. § 455 for abuse of discretion. 977 F.2d at 778 n. 15; see Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir.1990). When the need for a writ of mandamus is determined by this court to be “clear and indisputable,” a district judge’s decision not to recuse himself or herself necessarily also will have been an abuse of discretion or a clear legal error. School Asbestos Litigation, 977 F.2d at 778 n. 15. While our holding in this case under our supervisory power invokes only the statutory principles of § 455(a) and does not constitute an interpretation of the statute itself, see infra part V, we nevertheless hold that because Judge Lechner’s impartiality could reasonably be questioned, his refusal to disqualify himself was an improper exercise of his discretion. . In this court's opinion reversing Judge Lech-ner’s summary judgment in favor of Primerica, Judge Mansmann, writing for the court, referred to witness May's testimony at a time prior to the surfacing of an apparent contradictory affidavit. Alexander v. Primerica Holdings, Inc., 967 F.2d at 96. However, May’s testimony was evidently of the same character and to the same effect as the testimony given by Judd H. Alexander, Sal J. Guidice, Lawrence Morrow, and Eugene Ecker— witnesses who will evidently be called by petitioners to testify to lifetime benefits. See id. . The proposed amendment to Rule 21 of the Federal Rules of Appellate Procedure, which was circulated in October 1993 and on which public hearings" }, { "docid": "3493549", "title": "", "text": "acoustical problems with the rooms of the grand jury area. III. Mandamus We have jurisdiction to consider the petition. We review all issues of law de novo. In re United States, 426 F.3d 1, 4 (1st Cir.2005). Subject to some exceptions, an applicant for the writ normally “must show both that there is a clear entitlement to the relief requested, and that irreparable harm will likely occur if the writ is withheld.” In re United States, 158 F.3d 26, 30 (1st Cir.1998) (internal quotation marks omitted) (quoting In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir.1995)); accord, e.g., In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir.1997). The irreparable harm standard is viewed in light of the fact that once the case does get to trial “the government has no ready way to appeal if there is an acquittal and no standing to appeal if there is a conviction.” In re United States, 426 F.3d at 5. The government seeks three forms of relief: that the district court be ordered to stop its investigation into potential prose-cutorial misconduct involving the grand jury, that the stay of trial be lifted, and that the district court judge be ordered to recuse himself from further involvement in this case. The strict standards for issuance of mandamus are relaxed when the government seeks a judge’s recusal in a criminal case, “[bjecause of the government’s inability to press an end-of-case appeal.” In re United States, 158 F.3d at 31; see also In re Boston’s Children First, 244 F.3d 164, 167 n. 6 (1st Cir.2001). This court has reviewed such decisions under the abuse of discretion standard, rather than the more exacting standard for mandamus. See In re United States, 158 F.3d at 31. Furthermore, under the recusal Standard, any reasonable doubts about the partiality' of the judge ordinarily are to be resolved in favor of recusal. Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” this court has repeatedly held that" }, { "docid": "5914498", "title": "", "text": "on two grounds. First, it contended that Rule 53 does not permit the appointment of a special master to hear dispositive legal motions. Second, Prudential asserted that Dean Manne’s prior work in the field suggests that he is unsympathetic to litigants such as Prudential and, therefore, incapable of dealing with a party in Prudential’s position in an impartial manner. By opinion dated October 13, 1992, the district court denied Prudential’s motion to vacate the reference to the special master, and Prudential subsequently moved to certify the issue for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and to stay the proceedings before Dean Manne pending appeal. The district court denied the motion by opinion and order of October 21, 1992 (A279-88), and on November 3, 1992, Prudential filed the instant petition. II. The standard for issuing a writ of mandamus is particularly stringent. A determination that the district court abused its discretion does not, in itself, warrant the issuance of the writ. Because of the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appeals, issuance of a writ of mandamus is limited to extraordinary cases. In re School Asbestos Litigation, 977 F.2d 764, 772 (3d Cir.1992); In re Pruitt, 910 F.2d 1160, 1167 (3d Cir.1990). However, despite the general reluctance to grant writs of mandamus, we may do so provided that the petitioner demonstrates that it lacks adequate alternative means to obtain the relief sought and that the petitioner’s right to the issuance of a writ is clear and undisputable. Our cases have also emphasized that mandamus must not be used as a mere substitute for appeal. Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1422 (3d Cir.1991); In re Pruitt, 910 F.2d at 1167. Travellers International AG. v. Sue L. Robinson, 982 F.2d 96, 98 (3d Cir.1992). The Supreme Court has recognized that it is ultimately within the sound discretion of the court of appeals to issue writs of mandamus in cases such as the one before us. La Buy v. Howes Leather Co., 352 U.S. 249, 255, 77" }, { "docid": "17201960", "title": "", "text": "Co., the Official Committee of W.R. Grace Asbestos Claimants, and the Unofficial Committee of Select W.R. Grace Asbestos Claimants. J.Hearing On December 12, 2003, we held the hearing scheduled by our order of November 21, 2003. Both parties and amici were heard and various arguments and representations urged, on the one hand, that we disqualify Judge Wolin and, on the other hand, that we deny disqualification. Among the representations which we have taken into consideration insofar as expediting our ruling and Judge Wolin’s ruling is Mr. Inselbuch’s representation that since the filing of these cases close to 30,000 asbestos claimants had died of mesothelio-ma and lung cancer and that 15 victims “will die today as a matter of statistics.” Hence, he claimed delay was fatal. II. We turn now to the governing legal standards. Kensington and D.K Acquisition Partners both seek Judge Wolin’s disqualification under 28 U.S.C. § 455(a). Kensington stated in its Petition for Mandamus that it was also seeking Judge Wo-lin’s disqualification under § 455(b)(1), but it has relied primarily on § 455(a). A. Standards Governing Writs of Mandamus We have the power to issue writs of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of them respective jurisdictions and agreeable to the usages and principles of law.” See Haines v. Liggett Group Inc., 975 F.2d 81 (3d Cir.1992). A writ of mandamus is, however, an extraordinary form of relief. See In re Federal-Mogul Global, Inc., 300 F.3d 368, 379 (3d Cir.2002). “As the adjective ‘extraordinary’ implies, ... courts of appeals must be chary in exercising that power: ‘[Mjandamus must not be used as a mere substitute for appeal.’ ” In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir.1992) (quoting Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir.1991)). If, in effect, an appeal will lie, mandamus will not. “Even when the petitioner shows that there is no other adequate means to obtain the desired relief, and" }, { "docid": "17201946", "title": "", "text": "OPINION OF THE COURT GARTH, Circuit Judge. We have before us two Emergency Petitions for a Writ of Mandamus. Both Petitions allege that a district court judge who has presided over five asbestos-related bankruptcies for the past two years has, through his association with certain advis-ors, created an appearance of partiality such that he must be disqualified from any further participation in those proceedings. The parties seeking the district court judge’s disqualification originally moved for recusal in the Bankruptcy Court, but filed Petitions for Mandamus in our Court after the district court judge withdrew the recusal motions from the Bankruptcy Court and stayed discovery on those motions. The District Court has yet to rule on the recusal motions. As originally filed, both Petitions asked us to issue an order directing the district court judge either to: (a) recuse himself pursuant to 28 U.S.C. § 455; or (b) expedite consideration of (including discovery on) the recusal motions pending before him. After carefully considering all of the written submissions from the parties and amicus curiae and following a sharply-contested hearing, we have decided to direct the district court judge to rule on the withdrawn recusal motions. In doing so, we will vacate the district court judge’s order staying discovery on the recusal motions and direct that expedited discovery proceed without interruption. Because of certain temporal exigencies explained later in this opinion, we will direct that all discovery and the district court judge’s ruling on the recusal motions be completed no later than January 31, 2004. We will retain jurisdiction over any further proceedings subsequent to the district court judge’s ruling. See In re Sch. Asbestos Litig., 977 F.2d 764, 774-78 (3d Cir.1992). We emphasize at the outset of this opinion that we are not ruling on the merits of the disqualification relief sought by the Petitioners. Our decision to remand the recusal motions to the district court judge is prompted by our overarching concern that we do not have an adequately developed evidentiary record before us. I. A. The Parties This case arises from five Chapter 11 asbestos-related bankruptcies involving the following" }, { "docid": "23176566", "title": "", "text": "maritime jurisdiction of the underlying action under 28 U.S.C. § 1333. Generally, “orders transferring venue are not immediately appealable.” Carteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 228 (3d Cir.1990); see McCreary Tire & Rubber Co. v. Ceat, S.p.A., 501 F.2d 1032, 1034 (3d Cir.1974) (“An order transferring an action pursuant to 28 U.S.C. § 1404(a) ... is interlocutory and unappealable under § 1291.”). Mandamus is therefore the appropriate mechanism for reviewing an allegedly improper transfer order. See Bloom v. Barry, 755 F.2d 356, 357 (3d Cir.1985); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168-69 (3d Cir.1982); Shutte v. Armco Steel Corp., 431 F.2d 22, 23 (3d Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971). We have plenary review of the legal determinations underlying the district court’s transfer order. See In re School Asbestos Litig., 977 F.2d 764, 778 n. 15 (3d Cir.1992). III. MANDAMUS Our review of the district court’s transfer order on a petition for a writ of mandamus is governed by familiar principles. A writ of mandamus is an extraordinary remedy, the issuance of which is generally committed to the sound discretion of the issuing court. Carteret, 919 F.2d at 232-33; In re School Asbestos Litig., 977 F.2d at 772. A writ will only issue when the party seeking the writ has no other adequate means of obtaining the relief sought. Carteret, 919 F.2d at 232-33. We have held that the possibility of an appeal in the transferee forum following a final judgment there is not an adequate alternative to obtain the relief sought. See Carteret, 919 F.2d at 233. Thus, petitioners have met this prerequisite to obtaining a writ of mandamus. Generally, a writ will only issue if the district court did not have the power to enter the order, and then “only if the party seeking the writ meets its burden to demonstrate that its right to the writ is clear and indisputable.” Id. at 232. Thus, we turn to whether or not the district court had the power to transfer this action. Petitioners allege that mandamus" }, { "docid": "13096772", "title": "", "text": "a writ of mandamus based on a district judge’s refusal to re-cuse himself requires that we consider both the standard for issuance of the writ and the standard for review of the recusal decision itself. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). “[I]t is well-settled that the exceptional remedy of mandamus will only be invoked where the petitioner has demon strated that its right to such relief is ‘clear and indisputable.’ ” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 18, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)) (emphasis omitted). The district judge has discretion “in the first instance to determine whether to disqualify himself.” Id. We will overturn the court’s determination in that regard only if it constitutes an abuse of discretion. Id. The recusal decision requires that the district court “carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid” the adverse consequences of his expected adverse decisions. Id. In order for us to issue the writ, the petitioner therefore “must ‘clearly and indisputably’ demonstrate that the district court abused its discretion. Absent such a showing, mandamus will not lie.” Id. at 1312-13. II. Whether the District Judge Abused His Discretion By Refusing To Re-cuse Himself A judge must recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “[T]his test deals exclusively with appearances. Its purpose is the protection of the public’s confidence in the impartiality of the judiciary.” United States v. Amico, 486 F.3d 764, 775 (2d Cir.2007). In applying this test, we consider the petitioner’s allegations of bias as well as the judge’s “rulings on and conduct regarding them,” id., and ask whether “an objective, disinterested observer[,] fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal,” id. (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992)) (internal quotation marks omitted)." }, { "docid": "23118457", "title": "", "text": "filed a motion for recusal of the presiding judge, the Honorable Wayne E. Alley, who had been randomly assigned to the case. Thereafter, Mr. Nichols filed his own recusal motion, arguing additional bases for recusal not presented by Mr. McVeigh. By order dated September 14, 1995, Judge Alley denied both recusal motions. Mr. Nichols then filed a petition for writ of mandamus with this court, seeking disqualification of all judges of the Western District of Oklahoma (including Judge Alley) or, in the alternative, an order directing Judge Alley to permit discovery and hold an evidentiary hearing regarding the factual bases for disqualification issues raised in the recusal motion. Thus, this matter is before us as an original proceeding in the nature of mandamus. An order denying a motion to recuse is interlocutory and is, therefore, not immediately appealable. Lopez v. Behles (In re American Ready Mix, Inc.), 14 F.3d 1497, 1499 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 77, 130 L.Ed.2d 31 (1994). It is established in this circuit, however, that mandamus is an appropriate vehicle by which to challenge a district court’s denial of a recusal motion. Id.; United States v. Cooley, 1 F.3d 985, 996 n. 9 (10th Cir.1993) (collecting and comparing cases). Although a district court’s denial of a motion to recuse is reviewed for an abuse of discretion, Maez v. Mountain States Tel. & Tel., Inc., 54 F.3d 1488, 1508 (10th Cir.1995), because we are reviewing the district court’s order by means of mandamus, the higher standard dictated by that writ governs our review, In re American Ready Mix, 14 F.3d at 1501. Mandamus is available only upon a showing of a clear and indisputable right to relief. Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir.1994). A petitioner seeking mandamus relief must demonstrate a clear abuse of discretion, or conduct by the district court amounting to a usurpation of judicial authority. Mallard v. United States District Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). “To ensure that mandamus remains an extraordinary remedy, petitioners must show" }, { "docid": "13805648", "title": "", "text": "v. Adamkus, 881 F.2d 352, 356 n. 3 (7th Cir.1989); Sunshine Beauty Supplies, Inc. v. U.S. Dist. Ct., 872 F.2d 310, 311 (9th Cir.1989); Hustler Magazine v. U.S. Dist. Ct., 790 F.2d 69, 70 (10th Cir.1986). Of course, review via mandamus necessarily is more circumscribed than review by appeal. As we have stated, “[M]andamus jurisdiction affords an appellate court less opportunity to correct district court error in the case before it and less opportunity to provide guidance for future cases. Moreover, comity between the district and appellate courts is best served by resort to mandamus only in limited circumstances.” Kelly v. Ford Motor Co. (In re Ford Motor Co.), 110 F.3d 954, 964 (3d Cir.1997). In reviewing a transfer order by mandamus, we recently observed, “While 28 U.S.C. § 1651(a) grants federal courts the general power to issue writs, it is widely accepted that mandamus is extraordinary relief that is rarely invoked.” United States, 273 F.3d at 385. In Sun belt, we described the standards for issuing mandamus with respect to a district court’s transfer order: Our review of the district court’s transfer order on a petition for a writ of mandamus is governed by familiar principles. A writ of mandamus is an extraordinary remedy, the issuance of which is generally committed to the sound discretion of the issuing court. Carteret, 919 F.2d at 232-33; In re School Asbestos Litig., 977 F.2d [764,] 772 [(3d Cir.1992)].... Generally, a writ will only issue if the district court did not have the power to enter the order, and then “only if the party seeking the writ meets its burden to demonstrate that its right to the writ is clear and indisputable.” [Carteret, 919 F.2d] at 232. Thus, we turn to whether or not the district court had the power to transfer this action. Sunbelt, 5 F.3d at 30. This court has on various occasions construed an appeal as a petition for a writ of mandamus. See, e.g., In re Nwanze, 242 F.3d 521, 524 (3d Cir.2001); Nascone, 735 F.2d at 773. Defendants request that we do so here, Reply Br. of Big" }, { "docid": "22805804", "title": "", "text": "a petition for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, which we have consolidated with its appeal. In brief, PGI asserts that we should issue a writ of mandamus to correct the district court’s errors in replacing the Gutmans with a guardian ad litem and disqualifying H & G from representing PGI. We have the power to issue a writ of mandamus pursuant to 28 U.S.C. § 1651(a), “in exceptional cases where the traditional bases for jurisdiction do not apply.” In re Pasquariello, 16 F.3d 525, 528 (3d Cir.1994). However, as we have explained, “mandamus is not a mere alternative to an appeal” and instead properly is viewed as a “safety valve in the final-judgment rule” providing a “drastic remedy ... only in extraordinary circumstances in response to an act amounting to a judicial usurpation of power.” In re Briscoe, 448 F.3d 201, 211 (3d Cir.2006) (internal quotation marks and citations omitted). But mandamus is an extraordinary remedy, and “[a]s the adjective ‘extraordinary’ implies ... courts of appeals must be chary in exercising that power,” so as to avoid having mandamus used as a substitute for appeal. In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir.1992). “Mandamus is disfavored because its broad use would threaten the policy against piecemeal appeals.” Id. (citing Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976)). Courts have used mandamus “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” In re Sch. Asbestos Litig., 977 F.2d at 773 (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). Mandamus may lie to prevent a district court from usurping a power that it lacks and to rectify clear abuses of discretion. Id.; see also Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir.1996) (mandamus constitutes a “drastic remedy that a court should grant only in extraordinary circumstances in response" }, { "docid": "23118458", "title": "", "text": "an appropriate vehicle by which to challenge a district court’s denial of a recusal motion. Id.; United States v. Cooley, 1 F.3d 985, 996 n. 9 (10th Cir.1993) (collecting and comparing cases). Although a district court’s denial of a motion to recuse is reviewed for an abuse of discretion, Maez v. Mountain States Tel. & Tel., Inc., 54 F.3d 1488, 1508 (10th Cir.1995), because we are reviewing the district court’s order by means of mandamus, the higher standard dictated by that writ governs our review, In re American Ready Mix, 14 F.3d at 1501. Mandamus is available only upon a showing of a clear and indisputable right to relief. Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir.1994). A petitioner seeking mandamus relief must demonstrate a clear abuse of discretion, or conduct by the district court amounting to a usurpation of judicial authority. Mallard v. United States District Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). “To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek....” Id. Mr. Nichols argues that Judge Alley’s recusal is mandated by 28 U.S.C. § 455(a), which states that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” In order to “promote public confidence in the integrity of the judicial process,” the statute was broadened in 1974 by replacing the subjective standard with an objective test. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2202 n. 7, 100 L.Ed.2d 855 (1988). “[W]hat matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, — U.S. -, -, 114 S.Ct. 1147, 1154, 127 L.Ed.2d 474 (1994). Given the statutory parameters, we must determine “ ‘whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.’ ” Cooley, 1 F.3d at 993 (quoting United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.1992) (further quotation omitted)); see also Maez, 54 F.3d at" }, { "docid": "17201972", "title": "", "text": "Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir.1990) (emphasis added). Accordingly, we require in order to discharge our judicial function that the evidentiary record in this case be developed. In its Reply brief, Kensington asserted that, in light of the extensive briefing and scheduled oral argument, there was “no need to remand this case for further fact-finding” and that we could “and should enter a recusal order on the existing record.” Briefs without an evidentiary basis and oral argument are, however, a poor substitute for a developed evidentiary record which can result from an adversarial discovery process. Among other things, discovery in this case may shed light on such matters as (i) the full extent of the Consultants’ activities in the Five Asbestos Cases; (ii) Messrs. Gross and Hamlin’s activities in G-I Holdings; (iii) the timeliness of the Petitions for Mandamus; and (iv) the extent to which recusal, if warranted in one of the bankruptcies, must be held to extend to the other bankruptcies. Because discovery is not an exercise which this Court can reasonably conduct, but is more the function of the District Court, we will vacate the stay Judge Wolin entered in his October 23, 2003 order and remand this matter to Judge Wolin so that his recusal ruling, which we direct that he make, may benefit from the discovery engaged in by the parties. Second, our decision to remand is impelled in large part by the standards governing the issuance of a writ of mandamus. It is well established that a writ of mandamus will issue only if the party seeking the writ has “no other adequate means to attain the desired relief.” In re Sharon Steel Corp., 918 F.2d 434, 436 (3d Cir.1990). Clearly that standard cannot be met where a motion seeking the district judge’s disqualification — the same relief sought in the mandamus petitions — is pending in the district court. Finally, our decision to remand this matter to Judge Wolin is guided by the principle that “[discretion is confided in the district judge in the first instance to determine whether to disqualify himself" }, { "docid": "22194418", "title": "", "text": "have not been described as ‘significant’ and have not been commented upon except as part of the cumulative discov ery that has taken place in this litigation since the Third Circuit's remand. Contrary to the Plaintiffs’ assertions, my decisions have not stated that, had the Circuit had the benefit of Forms A and B, the decision granting summary judgment in favor of defendants, see 25 July 1991 Decision, would have been affirmed. * * * Forms A and B may be 'significant' not because they arc dispositive of the merits of this litigation, but because they may indicate that class certification is not appropriate in this case. . Judge Lechner stated that his discussion of \"the incident with Mr. Liloia in another matter, the Mutual Benefit case — in addition to being accurate — was intended to illustrate the purpose and necessity of maintaining a written record at all times in this case.” . It has not escaped our notice that petitioners in this case had not moved for permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This failure, however, does not preclude our consideration of their mandamus petition because we have yet to require, as a precondition for filing a mandamus petition conditioned upon a § 455(a) disqualification, that a prior § 1292(b) certification be sought. See School Asbestos Litigation, 977 F.2d at 774; see also Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 991 F.2d 1080, 1083 (3d Cir.1993) (section 1292(b) certification denied prior to filing of mandamus petition). . In School Asbestos Litigation, we stated that ordinarily wc review a district judge’s refusal to recuse himself pursuant to 28 U.S.C. § 455 for abuse of discretion. 977 F.2d at 778 n. 15; see Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir.1990). When the need for a writ of mandamus is determined by this court to be “clear and indisputable,” a district judge’s decision not to recuse himself or herself necessarily also will have been an abuse of discretion or a clear legal error. School Asbestos Litigation, 977 F.2d at" }, { "docid": "22805805", "title": "", "text": "be chary in exercising that power,” so as to avoid having mandamus used as a substitute for appeal. In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir.1992). “Mandamus is disfavored because its broad use would threaten the policy against piecemeal appeals.” Id. (citing Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976)). Courts have used mandamus “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” In re Sch. Asbestos Litig., 977 F.2d at 773 (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). Mandamus may lie to prevent a district court from usurping a power that it lacks and to rectify clear abuses of discretion. Id.; see also Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir.1996) (mandamus constitutes a “drastic remedy that a court should grant only in extraordinary circumstances in response to an act amounting to judicial usurpation of power”) (internal quotation marks omitted). Three conditions must be satisfied for the issuance of a writ of mandamus: (1) there must be “no other adequate means to attain the relief sought;” (2) the right to issuance of the writ must be “clear and indisputable;” and (3) the issuing court, in the exercise of its discretion, must be satisfied that “the writ is appropriate under the circumstances.” In re Briscoe, 448 F.3d at 212 (citing Cheney v. United States Dist. Court, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 2587, 159 L.Ed.2d 459 (2004)). A. Appointment of Guardian ad litem PGI cannot demonstrate that its claimed right to a writ of mandamus is “clear and indisputable” with respect to the several orders replacing the Gutmans with a guardian ad litem for purposes of the litigation. PGI devotes a substantial portion of its briefs in this court to arguing that the district court improperly removed the Gutmans as Plan administrators absent any finding of substantial breach of fiduciary duty, as" }, { "docid": "9641404", "title": "", "text": "that ... may be fully addressed and remedied on appeal”). The parties agree that after his elevation to Special Master-Monitor status, Kieffer was serving as a judicial officer. Although this court does not seem to have ruled upon the propriety of seeking the recusal of a judicial officer by petition for a writ of mandamus, every circuit to have addressed the issue has found it proper. The First through Seventh Circuits and the Tenth Circuit have each issued the writ for this purpose, see In re Boston’s Children First, 244 F.3d 164 (1st Cir.2001); In re IBM Corp., 45 F.3d 641 (2d Cir.1995); In re Antar, 71 F.3d 97 (3d Cir.1995); In re Sch. Asbestos Litig., 977 F.2d 764 (3d Cir.1992); In re Rodgers, 537 F.2d 1196 (4th Cir.1976); In re Faulkner, 856 F.2d 716 (5th Cir.1988); In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir.1990) (en banc); In re Hatcher, 150 F.3d 631 (7th Cir.1998); In re Edgar, 93 F.3d 256 (7th Cir.1996); Nichols v. Alley, 71 F.3d 347 (10th Cir.1995), and the Eighth, Ninth, and Eleventh Circuits have suggested they would do so in an appropriate case. See Pfizer, Inc. v. Lord, 456 F.2d 532, 536-37 (8th Cir.1972) (holding mandamus is an appropriate avenue to review recusal decision but denying the writ on the facts presented); Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 999 (9th Cir.2003) (similar); In re Lopez-Lukis, 113 F.3d 1187, 1188 (11th Cir.1997) (denying writ seeking review of recusal decision because “petitioners have not carried their burden of showing their right to issuance of a writ of mandamus”). The Federal Circuit looks to the law of the regional circuit in which the officer to be recused sits. Baldwin Hardware Corp. v. Franksu Enter. Corp., 78 F.3d 550, 556-57 (1996); In re Solex Robotics, Inc., 56 Fed.Appx. 490 (Fed.Cir.2003) (unpublished). We join the unanimous view of our sister circuits and hold that we will issue a writ of mandamus compelling recusal of a judicial officer where the party seeking the writ demonstrates a clear and indisputable right to relief. We also" }, { "docid": "20880316", "title": "", "text": "in [TWA’s adversary proceeding].” (A19) On July 15, 1992, Travellers filed a motion asking the district court to withdraw TWA’s adversary proceeding from the bankruptcy court arguing (1) that it is entitled to a jury trial of the factual issues raised by TWA’s complaint (and Travellers’ defenses) and that the bankruptcy court has no authority to preside over a jury trial, and (2) that even if Travellers were not entitled to a jury trial, the adversary proceeding involves wholly private rights that can be adjudicated only by an Article III court. Travellers’ Brief at 7. In accordance with the district court’s procedure, the motion to withdraw was first submitted to the bankruptcy court to determine whether TWA’s adversary proceeding was a core or non-core proceeding pursuant to 28 U.S.C. § 157(b)(3). The bankruptcy court issued an order on July 31, 1992, holding that both the preference and turnover claims were core proceedings. Subsequently, by Memorandum Opinion and Order dated August 27, 1992, the district court denied Traveller’s motion to withdraw TWA’s adversary proceeding from the bankruptcy court. Travellers now petitions this court to issue a writ of mandamus directing the district court to withdraw the reference from the bankruptcy court for a jury trial in the district court. II. Because of the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appeals, issuance of a writ of mandamus is limited to extraordinary cases. In re School Asbestos Litigation, 977 F.2d 764, 772-73 (3d Cir.1992); In re Pruitt, 910 F.2d 1160, 1167 (3d Cir.1990). However, despite the general reluctance to grant writs of mandamus, we may do so provided that the petitioner demonstrates that it lacks adequate alternative means to obtain the relief sought and that the petitioner’s right to the issuance of a writ is clear and undisputable. Our cases have also emphasized that mandamus must not be used as a mere substitute for appeal. Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1422 (3d Cir.1991); In re Pruitt, 910 F.2d at 1167. Moreover, it is in our discretion to determine whether" }, { "docid": "17201961", "title": "", "text": "A. Standards Governing Writs of Mandamus We have the power to issue writs of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of them respective jurisdictions and agreeable to the usages and principles of law.” See Haines v. Liggett Group Inc., 975 F.2d 81 (3d Cir.1992). A writ of mandamus is, however, an extraordinary form of relief. See In re Federal-Mogul Global, Inc., 300 F.3d 368, 379 (3d Cir.2002). “As the adjective ‘extraordinary’ implies, ... courts of appeals must be chary in exercising that power: ‘[Mjandamus must not be used as a mere substitute for appeal.’ ” In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir.1992) (quoting Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir.1991)). If, in effect, an appeal will lie, mandamus will not. “Even when the petitioner shows that there is no other adequate means to obtain the desired relief, and also has shown a ‘clear and indisputable’ right to issuance of the writ, the exercise of our power is largely discretionary.” Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.1993) (quoting Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (citation omitted)). B. Mandamus as a Means For Disqualifying a Judge “Mandamus is a proper means for this court to review a district court judge’s refusal to recuse from a case pursuant to 28 U.S.C. § 455(a), where the judge’s impartiality might reasonably be questioned.” Alexander, 10 F.3d at 163. Indeed, “[vjirtually every court of appeals has recognized the necessity and propriety of interlocutory review of disqualification issues on petitions for mandamus ‘to en sure that judges do not adjudicate cases that they have no statutory power to hear.’ ” Alexander, 10 F.3d at 163 (quoting School Asbestos, 977 F.2d at 778). Less well established, however, is the inclination of a court of appeals to entertain a mandamus petition seeking a district court judge’s disqualification when the" }, { "docid": "21621096", "title": "", "text": "same result, would have had no application. At oral argument, we asked the parties to submit supplemental letters addressing the appropriate standard of review where, as here, a Petition for Mandamus seeking to disqualify a district court judge precedes a ruling by the district court. Having reviewed the submissions made by the parties, we now hold that Judge Wolin’s decision not to recuse himself must be reviewed for an abuse of discretion, as it is, in effect, no different than an appeal from a district court’s order denying recu-sal. See S. Rep. 93-419 (1973), H. Rep. 93-1453 (1974) (explaining that the addition of subsection (a) to § 455 was not intended to alter the abuse of discretion standard of review). ‘When the need for a writ of mandamus is determined by this court to be ‘clear and indisputable,’ a district judge’s decision not to recuse himself or herself necessarily also will have been an abuse of discretion or a clear legal error.” Alexander, 10 F.3d at 163 n. 9. V. DISCUSSION A. Standard for Disqualification Under § 155(a) Whenever a judge’s impartiality “might reasonably be questioned” in a judicial proceeding, 28 U.S.C. § 455(a) requires that the judge disqualify himself. The test for recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be questioned. Alexander, 10 F.3d at 164. “Under § 455(a), if a reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality under the applicable standard, then the judge must recuse.” In re Prudential Ins. Co. of America Sales Practices Litigation, 148 F.3d 283, 343 (3d Cir.1998) (internal quotations omitted); see Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir.1997) (“The standard for recusal is whether an ob jective observer reasonably might question the judge’s impartiality.”). Selkridge, 360 F.3d at 167. A party moving for disqualification under § 455(a) need not show actual bias because § 455(a) “concerns not only fairness to individual litigants, but, equally important, it concerns ‘the" }, { "docid": "17201962", "title": "", "text": "also has shown a ‘clear and indisputable’ right to issuance of the writ, the exercise of our power is largely discretionary.” Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.1993) (quoting Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (citation omitted)). B. Mandamus as a Means For Disqualifying a Judge “Mandamus is a proper means for this court to review a district court judge’s refusal to recuse from a case pursuant to 28 U.S.C. § 455(a), where the judge’s impartiality might reasonably be questioned.” Alexander, 10 F.3d at 163. Indeed, “[vjirtually every court of appeals has recognized the necessity and propriety of interlocutory review of disqualification issues on petitions for mandamus ‘to en sure that judges do not adjudicate cases that they have no statutory power to hear.’ ” Alexander, 10 F.3d at 163 (quoting School Asbestos, 977 F.2d at 778). Less well established, however, is the inclination of a court of appeals to entertain a mandamus petition seeking a district court judge’s disqualification when the district court judge has not yet ruled on a motion for recusal pending before him. C. Standard for Disqualification under § 4.55(a) Whenever a judge’s impartiality “might reasonably be questioned” in a judicial proceeding, 28 U.S.C. § 455(a) requires that the judge disqualify himself. The test for recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be questioned. Edelstein v. Wilentz, 812 F.2d 128 (3d Cir.1987). It is of no consequence that the judge is not actually biased because § 455(a) “concerns not only fairness to individual litigants, but, equally important, it concerns ‘the public’s confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted.’ ” Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir.1993) (quoting School Asbestos, 977 F.2d at 776) (emphasis added). In Haines v. Liggett Group Inc., 975 F.2d 81 (3d Cir.1992), where a mandamus petition filed by leading tobacco companies charged" }, { "docid": "20880317", "title": "", "text": "bankruptcy court. Travellers now petitions this court to issue a writ of mandamus directing the district court to withdraw the reference from the bankruptcy court for a jury trial in the district court. II. Because of the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appeals, issuance of a writ of mandamus is limited to extraordinary cases. In re School Asbestos Litigation, 977 F.2d 764, 772-73 (3d Cir.1992); In re Pruitt, 910 F.2d 1160, 1167 (3d Cir.1990). However, despite the general reluctance to grant writs of mandamus, we may do so provided that the petitioner demonstrates that it lacks adequate alternative means to obtain the relief sought and that the petitioner’s right to the issuance of a writ is clear and undisputable. Our cases have also emphasized that mandamus must not be used as a mere substitute for appeal. Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1422 (3d Cir.1991); In re Pruitt, 910 F.2d at 1167. Moreover, it is in our discretion to determine whether the writ should issue. In re School Asbestos Litigation, 977 F.2d at 772-73. Additionally, we have recently “reiterate[d] our preference for an explanation in the petition for why an interlocutory appeal is not an adequate alternative. Where interlocutory appeal seems a practical but untried avenue, we will ordinarily deny a petition for mandamus.” Id. at 774. III. In the case at hand, we need not address the various qualifications discussed above which determine whether a writ of mandamus should issue or whether the interlocutory or final appeals processes would have provided Travellers with an adequate alternative means to obtain the relief it seeks. As we have noted, an essential requirement for the issuance of a writ is that the petition must show a clear and undisputable right to the writ. This Travellers cannot do. Travellers is neither entitled to a jury trial nor is it entitled, in the alternative, to be heard by an Article III judge. Rather, by submitting a proof of claim to the debt- or’s estate, Travellers effectively waived its right to" } ]

[ { "docid": "6513309", "title": "", "text": "the burden-shifting to the defendant was “dictated” by the text of Rule 52(b). Olano, 507 U.S. at 734-36, 113 S.Ct. at 1778. . Because the district court actually made a finding (and the government produced conclusive evidence to show) that Gilbert’s disputed testimony was material, this case is different than cases in other circuits finding the prejudice element of Olano satisfied. See Viola, 35 F.3d at 43 (prejudice where insufficient evidence to prove all elements of crime); Rogers, 18 F.3d at 267-68 (prejudice where no finding (by either judge or juiy) on sufficiency of evidence for necessary element of crime); Jones, 21 F.3d at 172-73 (prejudice where government presented no evidence to establish necessary element of offense); Retos, 25 F.3d at 1232 (prejudice where evidence on essential element not conclusive). . Gilbert also argues his count 20 conviction under 18 U.S.C. 1503 for obstruction of justice should be reversed under Gaudin. He says the instruction on Count 25 (that the statements were material for section 1623 purposes) infected the conviction under section 1503. Because we presume that the jury followed its instruction to determine for itself whether the government proved beyond reasonable doubt that Gilbert’s testimony would be likely to have the natural and probable consequence of obstructing the 1990 trial, we reject this argument without relying on our affirmance of the count 25 perjury conviction. . Even where a defendant satisfies all three Olano prerequisites, an appellate court has only limited discretion to correct error. Olano, 507 U.S. at 736-37, 113 S.Ct. at 1779. Reversal under Olano may only be done, even where a defendant has carried the burden of showing prejudice, (1) where not to reverse would result in the conviction of a defendant actually innocent or (2) to protect the fairness, integrity or public reputation of judicial proceedings. Id. . We note that Gilbert was specifically acquitted of a RICO conspiracy charge, which means that the forfeiture must stand or fall solely on Gilbert's violation of the substantive RICO statute. Cf. U.S. v. Persico, 832 F.2d 705, 713-14 (2d Cir.1987) (distinguishing substantive RICO from RICO conspiracy for" } ]

[ { "docid": "2804227", "title": "", "text": "not reversible plain error; issue of materiality not seriously disputed at trial). “When the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error seriously affects the fairness, integrity, or public reputation of judicial proceedings before it may exercise its discretion to correct the error.” Johnson, at -, 117 S.Ct. at 1550 (internal quotations and brackets omitted). Whether or not their substantial rights were affected, defendants have not satisfied the fourth prong of the Olano test. In Johnson, a case involving similar facts, the Supreme Court observed that the evidence of materiality was “overwhelming,” materiality was “essentially uncontroverted at trial,” and the defendant had presented “no plausible argument” that her false statements were “somehow not material.” Id. The Supreme Court concluded: “On this record there is no basis for concluding that the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. Indeed, it would be the reversal of a conviction such as this which would have that effect.... No miscarriage of justice will result here if we do not notice the error, and we decline to do so.” Id. (internal quotations omitted). In the same manner, the evidence at trial that West Indies Transport’s representations were material was overwhelming and uncontroverted. On appeal, defendants have not presented a plausible argument that their statements were not material. The failure to submit materiality to the jury did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. For these reasons, we will affirm the convictions on visa fraud. B. Defendants contend their convictions for aiding and abetting visa fraud must be reversed because the district court did not instruct the jury that it must find “knowing subscription” or “knowing presentation” of false material. Not only did defendants fail to request such an instruction, their proposed instruction was remarkably similar to that actually delivered by the district court. “Thus, if there was any error at all, it was ‘invited error’ and cannot now be a basis for reversal.” United States v. Console, 13 F.3d 641, 661 (3d Cir.1993) (quoting" }, { "docid": "23201869", "title": "", "text": "The element was not seriously contested at trial and the error could not have affected the outcome. This case is similar to United States v. Prujansky, 415 F.2d 1045 (6th Cir. 1969), which involved an instruction that failed to include an element of an offense which required the government to prove that the goods were stolen from the place named in the indictment. The court refused to find plain error, stating that “ ‘[t]he verdict should not be reversed on account of a defect so obviously technical.’ ” Id. at 1048 (quoting Grandi v. United States, 262 F. 123, 124 (6th Cir.1920)). The element of the offense at issue here is “obviously technical.” Indeed, at trial, defendant did not dispute that the bank’s deposits were federally insured. Thus, we find that the instruction did not affect substantial rights of defendant. Moreover, even if we were to assume that there was plain error that affected substantial rights of defendant, we would decline to exercise our discretionary power under Rule 52(b). See Thomas, 11 F.3d at 630. The Supreme Court recently reiterated that “[w]hen the first the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error ‘ “seriously affeet[s] the fairness integrity or public reputation of judicial proceedings’” before it may exercise discretion to correct the error.” Johnson, at-, 117 S.Ct. at 1550 (alteration in original) (quoting Olano, 507 U.S. at 736, 113 S.Ct. at 1778-79 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))). Here, there is no dispute, and there was none at trial, that the bank’s deposits were federally insured. There is no possibility that this alleged error seriously affected the fairness or public reputation of the judicial proceedings. In sum, we find that no miscarriage of justice will result from our decision. Finally, we note that this case can be distinguished from Jones. In Jones, the district court instructed the jury: “[Y]ou will find that the government has established this element of the offense.” As Judge Ryan suggested in his concurrence to" }, { "docid": "18543362", "title": "", "text": "failure to submit an essential element of a criminal offense to the jury for determination cannot be harmless; it is necessarily prejudicial. United States v. Shetterly, 971 F.2d 67, 73 (7th Cir.1992); United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988). Where a defendant demonstrates this prejudice, the third part of the plain error analysis is satisfied. Thus, Ross has satisfied the prerequisites for plain error review by demonstrating that the district court erred, that the error is “plain,” and that the error affected his “substantial rights.” But exercise of the power to reverse under plain error review is permissive, not mandatory. The Supreme Court instructed in Olano that we should only reverse Ross’s conviction if, in our discretion, we find that the district court’s error seriously affects the fairness, integrity, and public reputation of judicial proceedings. 507 U.S. at 736-37, 113 S.Ct. at 1779. The Court further explained that merely because an error is “plain” and affects “substantial rights” does not, without more, satisfy this standard, else our discretion would be illusory. Id. Here, the government presented evidence sufficient to convince any rational factfinder that the defendants’ false statements were material. In fact, the issue of materiality was not even significantly disputed by the defendants at trial. Furthermore, the district court acted properly according to established precedent when it decided that the statements were material, rather than allowing the jury to come to the same obvious conclusion. It would be an unnecessary waste of judicial resources to retry this case based on the district court’s failure to submit overwhelming evidence of a barely disputed issue to the jury, especially given that the district court was following settled law at the time. As a result, we do not find that the district court’s error brings into question the fairness, integrity, or reputation of judicial proceedings, and we decline the invitation to grant Ross a new trial. 3. Misapplication On counts 16-29, Ross was convicted of violating 20 U.S.C. § 1097(a), which at the time of trial provided: Any person who knowingly and willfully embezzles, misapplies, steals, or obtains by" }, { "docid": "2804226", "title": "", "text": "bear this burden of proof. Id. Defendants here have not brought to our attention any facts suggesting that a jury might have reached a conclusion different from the district court on materiality. Defendants presented no evidence at trial that their statements were not material. More importantly, the government introduced substantial evidence proving the defendants’ representations were material. Indeed, had immigration officials known the true facts behind the Filipino workers’ applications for visas — defendants’ intention to employ as dock workers illegally underpaid foreign workers housed permanently on derelict barges — the visas never would have been granted. For these reasons, defendants have not met their burden of proving that the failure to submit the issue of materiality to the jury affected the outcome of the trial. See United States v. Kramer, 73 F.3d 1067 (11th Cir.) (Gaudin error not reversible plain error; defendant failed to show that error affected outcome of trial), cert. denied, — U.S. -, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); United States v. Ross, 77 F.3d 1525 (7th Cir.1996) (iGaudin error not reversible plain error; issue of materiality not seriously disputed at trial). “When the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error seriously affects the fairness, integrity, or public reputation of judicial proceedings before it may exercise its discretion to correct the error.” Johnson, at -, 117 S.Ct. at 1550 (internal quotations and brackets omitted). Whether or not their substantial rights were affected, defendants have not satisfied the fourth prong of the Olano test. In Johnson, a case involving similar facts, the Supreme Court observed that the evidence of materiality was “overwhelming,” materiality was “essentially uncontroverted at trial,” and the defendant had presented “no plausible argument” that her false statements were “somehow not material.” Id. The Supreme Court concluded: “On this record there is no basis for concluding that the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. Indeed, it would be the reversal of a conviction such as this which would have that effect.... No miscarriage of justice will result" }, { "docid": "7020678", "title": "", "text": "jury charge, but also whether the error requires reversal. See, e.g., United States v. Tandon, 111 F.3d 482, 488 (6th Cir.1997) (discussing the effect of the Gaudin decision on the many cases pending in circuits in which it was well established, at the time of the trial, that materiality was a question of law). The Supreme Court has recently held in Johnson v. United States, —— U.S.-, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), that where a defendant has failed to object, before Gaudin, to the district court’s refusal to submit the issue of materiality to the jury, plain error review under Federal Rule of Criminal Procedure 52(b) applies. See also United States v. Rogers, 118 F.3d 466 (6th Cir.1997) (applying plain error in light of Johnson). Plain error applies to the failure to object at trial even though, at the time of trial, the law was well-settled and such an objection would have been futile. Johnson, — U.S. at -, 117 S.Ct. at 1548 (“The seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure”); Rogers, 118 F.3d at 471. There are four prongs to the plain error analysis under Rule 52(b). United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Before this court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. 507 U.S. at 732, 113 S.Ct. at 1776-77; Fed.R.Crim.P. 52(b). If those three factors are met, then this court may exercise its discretion to notice a forfeited error (4) if the error “seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” 507 U.S. at 732, 113 S.Ct. at 1776-77. The first prong is clearly met in this ease because the failure to submit materiality to the jury is error under Gaudin, and under Griffith, a new rule for the conduct of criminal prosecutions is applied retroactively to all eases pending on direct review. Johnson, — U.S. at-, 117 S.Ct. at 1549. The second prong," }, { "docid": "22474679", "title": "", "text": "Sassanelli, 118 F.3d 495, 499 (6th Cir.1997)(under Johnson, Rule 52(b) applies to structural errors). Before an appellate court may correct an error not raised at trial, the defendant must satisfy a four-part test imposed by Rule 52(b). He must demonstrate that “(1) that the instruction was error; (2) that the error was plain; (3) that the plain error affected the defendant’s substantial rights; and (4) that the court should exercise its discretion to correct the error because the error ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.’ ” Sassanelli, 118 F.3d at 499 (quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776-77). In this case, the failure of the District Court to submit the issue of materiality to the jury was “error.” See Johnson, — U.S. at — , 117 S.Ct. at 1549. Further, the error was “plain,” because the law at the time of trial, which held that materiality was a question of law, see, e.g., United States v. Adams, 870 F.2d 1140, 1147 (6th Cir.1989), was both settled and clearly contrary to current law. See Johnson, — U.S. at-, 117 S.Ct. at 1549. Accordingly, Congo has satisfied the first two elements of the four-part test under Rule 52(b). Congo, however, cannot satisfy the fourth requirement, that the error “seriously affected the fairness, integrity or public reputation of judicial proceedings.” In Johnson, the defendant was unable to satisfy this final requirement because the evidence of materiality was “overwhelming;” the Court found that the defendant “presented no plausible argument” that her lying about the source of tens of thousands of dollars which she had used to improve her home was not material to the grand jury investigation, which in part concerned whether the defendant’s boyfriend had concealed his drug proceeds as real estate investments. See id. at-, 117 S.Ct. at 1550. Likewise, we believe that the evidence of materiality in this case was overwhelming. A statement is material under § 1623 “if it has ‘a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it is addressed.’” Sassanelli," }, { "docid": "15491707", "title": "", "text": "correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings. Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (internal quotations omitted). “Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Booker states the governing legal rule: “[a]ny fact (other than a prior conviction) 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.” 125 S.Ct. at 756. The district court deviated from this rule, and therefore erred, by enhancing Vincent’s sentence above that authorized by the jury’s verdict alone. An error is “plain” if it is clear or obvious. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Although the district court’s practice complied with then-prevailing Circuit law, Booker now makes that error obvious. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“it is enough that an error be ‘plain’ at the time of appellate consideration.”) Defendant therefore has satisfied the first two prongs of the plain error test. While the government concedes these points, it argues that Vincent can show neither that the error affects substantial rights nor that it affects the fairness, integrity, or public reputation of judicial proceedings. In most cases, an error affects substantial rights only if it is prejudicial: “[i]t must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Booker’s remedial holding permits the district courts to continue to make findings of fact, but directs them to apply the sentencing guidelines as advisory only. 125 S.Ct. at 764-65. Thus, Vincent was" }, { "docid": "3690633", "title": "", "text": "determination that the error was “plain.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Plain” for this purpose is defined as “clear” or “obvious.” Id. (internal quotation marks omitted). See also United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (noting that “the error must be so plain that the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it” (internal quotation marks omitted)). Because in this case the district court omitted an element of the witness retaliation offense in its charge to the jury, the error was clear and obvious and therefore plain. Indeed, without awareness of the government’s burden to prove that Davy had been in contact with federal authorities prior to being attacked, the jury may have quite reasonably convicted Hart and Draper pursuant to Davy’s numerous contacts with the local police. 3. Affected Substantial Rights and the Fairness, Integrity, or Public Reputation of Judicial Proceedings Although the jury instructions were in error, and the error was plain, the plain error standard is not met unless the error “affect[ed] substantial rights.” Olano, 507 U.S. at 734, 113 S.Ct. 1770 (internal quotation marks omitted). This means the error was “prejudicial” in that it “affected the outcome of the district court proceedings.” Id. Even then, however, we retain the discretion to decline to correct an error even if it affects substantial rights. Id. at 735, 113 S.Ct. 1770. The standard applied in making this determination is whether “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks and brackets omitted). In this matter, for example, had the government adduced sufficient evidence that Davy did, in fact, have contacts with federal agents prior to the beating, the inadequate jury charge might not have affected the defendants’ substantial rights, nor would the fairness of the judicial proceedings necessarily be called into question. In contrast, this Circuit has previously held that the “failure by the [government to adduce sufficient evidence ... is" }, { "docid": "23201870", "title": "", "text": "The Supreme Court recently reiterated that “[w]hen the first the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error ‘ “seriously affeet[s] the fairness integrity or public reputation of judicial proceedings’” before it may exercise discretion to correct the error.” Johnson, at-, 117 S.Ct. at 1550 (alteration in original) (quoting Olano, 507 U.S. at 736, 113 S.Ct. at 1778-79 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))). Here, there is no dispute, and there was none at trial, that the bank’s deposits were federally insured. There is no possibility that this alleged error seriously affected the fairness or public reputation of the judicial proceedings. In sum, we find that no miscarriage of justice will result from our decision. Finally, we note that this case can be distinguished from Jones. In Jones, the district court instructed the jury: “[Y]ou will find that the government has established this element of the offense.” As Judge Ryan suggested in his concurrence to the original panel’s decision, the constitutional error with the instruction was in telling the jury what it “will find” as opposed to telling the jury that the stipulated fact was “proved.” Here, the District Court simply instructed the jury that the bank’s deposits were federally insured. This reading would suggest that the instruction was not an error at all. However, since this approach can be criticized as mere semantics, we prefer to base our decision on our finding that the error was not plain and did not affect defendant’s rights. 3. Instruction that False Statements of Gross Income on Tax Returns Were Material as a Matter of Law Counts Six, Ten, and Twelve through Fifteen charged defendant with filing materially false income tax returns, in violation of 26 U.S.C. § 7206(1). The District Court instructed, inter alia: The question of the materiality of the allegedly false statements made in connection with the subscribing or signing of a tax return is a question of law for the Court. The Court instructs you that if you find" }, { "docid": "10053878", "title": "", "text": "v. Cotton, - U.S.-, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). After the Supreme Court spoke, this Court sua sponte directed the parties to brief the impact, if any, of the new Supreme Court authority. Having reviewed these submissions, we now reconsider the denial of the government’s petition for rehearing, and grant rehearing. Upon rehearing, we conclude that for reasons evident in Cotton and set forth below, defendant-appellant Guevara cannot establish that any error seriously affected the fairness of judicial proceedings within the meaning of Olano. We therefore alter the terms of our mandate and affirm the judgment of the district court. That done, we have no occasion to revisit the other holding of Guevara. I Pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure, “before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. at 467, 117 S.Ct. 1544 (internal quotation marks omitted) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). In Johnson, the Supreme Court used Olano’s plain error analysis to decide whether the trial court’s failure to instruct the jury on the element of materiality- — an Apprendi-type error — should be corrected, and ruled that the error did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” because the evidence on the omitted element of materiality was “overwhelming” and “essentially uncontroverted at trial.” Id. at 469^70, 117 S.Ct. 1544. In applying the Olano test to the Apprendi error in Guevara’s sentence, we did not believe that the weight of the trial evidence, under Johnson and Neder, had bearing on the fairness of the proceedings, because the Apprendi Court did not look to weight of the trial evidence" }, { "docid": "22897051", "title": "", "text": "] or defect[ ] affecting substantial rights.’” (quoting Fed.R.Crim.P. 52(b)) (alterations in original)). To establish plain error, Jackson must demonstrate that (1) the asserted defect in the trial was, in fact, error; (2) the error was plain; and (3) the error affected his substantial rights. See Fed.R.Crim.P. 52(b); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, — U.S. -,-, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (internal quotation marks omitted). Jackson satisfies the three-prong test of Olano . First, Jackson has demonstrated that the district court committed error. In Staples, the Supreme Court held that to obtain a conviction under § 5861(d), the Government has to prove that a defendant has knowledge of the physical characteristics of his weapon that bring it within the scope of the Act. at 603-05, 114 S.Ct. at 1796. The district court’s failure to instruct the jury in accordance with Staples, therefore, constitutes error. Second, the error must be plain. “An error is plain, at least, when the error is clear both at the time it occurred and at the time of appeal.” Cedelle, 89 F.3d at 185; see also United States v. David, 83 F.3d 638, 642 (4th Cir.1996). The Supreme Court decided Staples in May 1994 — more than a year prior to Jackson’s trial. Thus, the error was plain for purpose of Rule 52(b). Third, Jackson must show that the error affected his substantial rights. “[T]he failure to instruct on an element of the crime, where the jury never made the constitutionally required findings, ... satisfies Olano’s third prong.” David, 83 F.3d at 647; see also United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir. 1996) (holding that the district court’s failure to instruct the jury on an essential element of the crime was not subject to harmless-error analysis), cert." }, { "docid": "1404610", "title": "", "text": "137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Sanchez, 269 F.3d at 1281 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (other internal quotation marks and citation omitted). “[Wjhere the first two prongs of the plain error rule established by Olano are satisfied, the defendant bears the burden of demonstrating that the plain error ‘affec[tedj substantial rights.’ ” United States v. Mitchell, 146 F.3d 1338, 1343 (11th Cir.1998) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770) (internal quotation marks omitted). “In most cases, this means that the ‘error must have been prejudicial: It must have affected the outcome of the district court proceedings.’ ” Mitchell, 146 F.3d at 1343 (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). The government properly concedes that this jury instruction was erroneous because it included the words “or appears to be,” and that the error was plain. It submits, however, that the error did not affect Hall’s substantial rights and, alternatively, that affirming Hall’s convictions would not “seriously affect the fairness, integrity or public reputation of judicial proceedings.” We agree that Hall has not carried his burden as to either the third or fourth prong of plain error review. We reach this conclusion because (1) the evidence established that the children depicted in the pictures introduced at trial were actual children and (2) no one ever claimed, or even hinted, that the images were of virtual children. For example, Detective Dubord works with the Innocent Images Task Force, a federal task force investigating child exploitation on the Internet. Dubord testified that based on his training and experience, the images depicted minors. In addition, the pictures sent out to the jury are in the record before this court and they show actual children. In fact, there was no evidence at trial of any kind" }, { "docid": "14083743", "title": "", "text": "consideration. Thus, ■we will address this argument under the plain error standard provided in Rule 52(b). Under the plain error test of Rule 52(b), “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (internal quotation marks omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks omitted). “A plain error is an error so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” United States v. Gore, 154 F.3d 34, 43 (2d Cir.1998) (internal quotation marks and citation omitted). Vasquez bears the burden of persuasion to show that the district court’s charge amounts to plain error. United States v. Feliciano, 223 F.3d 102, 115 (2d Cir.2000). Effect on interstate or foreign commerce is the jurisdictional element of a VCAR offense; therefore, the government is required to provide evidence of such an effect. See id., 223 F.3d at 118. The Supreme Court has held that the Fifth and Sixth Amendments “give[ ] a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Following from this reasoning, the jury is constitutionally required to determine, as an element of a VCAR offense, whether the racketeering enterprise affected interstate or foreign commerce. On the other hand, we have also held that where “the [racketeering] enterprise’s business is narcotics trafficking, that enterprise must be viewed" }, { "docid": "2804225", "title": "", "text": "given the identical character of the materiality element in both perjury statutes. See Johnson v. U.S., — U.S. -, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (applying Gaudin to case involving perjury under 18 U.S.C. § 1623); United States v. DiRico, 78 F.3d 732 (1st Cir.1996) (applying Gaudin to perjury under 26 U.S.C. § 7206(1)). A “plain” error is an error which is “clear” or “obvious.” Johnson, at -, 117 S.Ct. at 1549; Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. Failure to send the issue of materiality to the jury is, in light of Gaudin, obvious or clear and therefore “plain” error. Johnson, at -, 117 S.Ct. at 1549. To satisfy the “substantial rights” prong of the plain error test, defendants usually must show that the error was “prejudicial” — “It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78; United States v. Turcks, 41 F.3d 893 (3d Cir.1994) (same), cert. denied, 514 U.S. 1074, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995). Defendants bear this burden of proof. Id. Defendants here have not brought to our attention any facts suggesting that a jury might have reached a conclusion different from the district court on materiality. Defendants presented no evidence at trial that their statements were not material. More importantly, the government introduced substantial evidence proving the defendants’ representations were material. Indeed, had immigration officials known the true facts behind the Filipino workers’ applications for visas — defendants’ intention to employ as dock workers illegally underpaid foreign workers housed permanently on derelict barges — the visas never would have been granted. For these reasons, defendants have not met their burden of proving that the failure to submit the issue of materiality to the jury affected the outcome of the trial. See United States v. Kramer, 73 F.3d 1067 (11th Cir.) (Gaudin error not reversible plain error; defendant failed to show that error affected outcome of trial), cert. denied, — U.S. -, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); United States v. Ross, 77 F.3d 1525 (7th Cir.1996) (iGaudin error" }, { "docid": "2804224", "title": "", "text": "affects the fairness, integrity or public reputation of the judicial proceedings.” Johnson, at -, 117 S.Ct. at 1549 (internal quotations and brackets omitted; citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993)). As the Supreme Court explained in Johnson, “in a case such as this — where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration.” Id. See also United States v. Retos, 25 F.3d 1220 (3d Cir.1994) (question is not whether error was plain at time of trial, but whether it is plain based on current law at time of direct appeal). Failure to submit the issue of materiality to the jury was error. Gaudin, at 522, 115 S.Ct. at 2320; Johnson, at -, 117 S.Ct. at 1549. That Gaudin involved perjury under 18 U.S.C. § 1001 rather than 18 U.S.C. § 1546, the relevant statute here, is not significant given the identical character of the materiality element in both perjury statutes. See Johnson v. U.S., — U.S. -, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (applying Gaudin to case involving perjury under 18 U.S.C. § 1623); United States v. DiRico, 78 F.3d 732 (1st Cir.1996) (applying Gaudin to perjury under 26 U.S.C. § 7206(1)). A “plain” error is an error which is “clear” or “obvious.” Johnson, at -, 117 S.Ct. at 1549; Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. Failure to send the issue of materiality to the jury is, in light of Gaudin, obvious or clear and therefore “plain” error. Johnson, at -, 117 S.Ct. at 1549. To satisfy the “substantial rights” prong of the plain error test, defendants usually must show that the error was “prejudicial” — “It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78; United States v. Turcks, 41 F.3d 893 (3d Cir.1994) (same), cert. denied, 514 U.S. 1074, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995). Defendants" }, { "docid": "7020679", "title": "", "text": "of it from the ambit of the Federal Rules of Criminal Procedure”); Rogers, 118 F.3d at 471. There are four prongs to the plain error analysis under Rule 52(b). United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Before this court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. 507 U.S. at 732, 113 S.Ct. at 1776-77; Fed.R.Crim.P. 52(b). If those three factors are met, then this court may exercise its discretion to notice a forfeited error (4) if the error “seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” 507 U.S. at 732, 113 S.Ct. at 1776-77. The first prong is clearly met in this ease because the failure to submit materiality to the jury is error under Gaudin, and under Griffith, a new rule for the conduct of criminal prosecutions is applied retroactively to all eases pending on direct review. Johnson, — U.S. at-, 117 S.Ct. at 1549. The second prong, that the error is plain, is also met. Plain is synonymous with “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. In Johnson the Supreme Court held that “in a case such as this — where the law at the time of the trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration,” and found that a Gaudin error was plain. — U.S. at-, 117 S.Ct. at 1549. Assessing the remaining two prongs is more difficult. An error “affecting the defendant’s substantial rights” has been described by the Olano court as “error ... [that has] affected the outcome of the district court proceedings.” 507 U.S. at 734, 113 S.Ct. at 1777-78. Even if the defendant in this case could establish the existence of such a prejudicial error, he would still be required to show that the error was so prejudicial that it “seriously a£feet[ed] the fairness, integrity, or public reputation of judicial proceedings.”" }, { "docid": "3828700", "title": "", "text": "materially different. Just as we have held that unwarranted reductions of sentences affect substantial rights, see United States v. Bostic, 371 F.3d 865, 876 (6th Cir.2004) (“A sentencing error affects substantial rights when ‘it affects the outcome of the case by substantially reducing the defendant’s sentence.’ ”) (citation omitted), we must hold that unconstitutional enhancements of sentences do so as well. Finally, we further conclude that it is proper for us to consider the merits of Sham’s admittedly forfeited claim' because, under Booker, sentencing a defendant on the basis of judicial fact-finding is an error that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). Significantly, this is not a case where a jury considered overwhelming evidence tending to attribute more than 50 grams of cocaine base to Sharn. Cf. Cotton, 535 U.S. at 633, 122 S.Ct. 1781 (finding no plain error where the evidence at trial “that the conspiracy involved at least' 50 grams of cocaine base was ‘overwhelming’ and ‘essentially uncontrovert-ed’ ”) (footnote omitted). Instead, like Booker, this is a case where the judge alone found the facts that determined the defendant’s sentence. See Booker, — U.S. at-, 125 S.Ct. at 751 (“The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence.”). As we have made clear, Sham’s sentence was materially enhanced as a result of a Sixth Amendment violation. We are satisfied that an error of this sort “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). See also Bostic, 371 F.3d at 876-77 (“[A] sentencing error that leads to a substantial departure affects the fairness and integrity of judicial proceedings because ‘permitting sentencing courts to disregard governing law would diminish the integrity and public reputation of the judicial system ....’”) (quoting United States v. Barajas-Nunez, 91 F.3d 826, 833 (6th Cir.1996)). Accordingly, we hold that" }, { "docid": "2804223", "title": "", "text": "under United States v. Console, 13 F.3d 641 (3d Cir.1993), cert. denied, 513 U.S. 812, 115 S.Ct. 64, 130 L.Ed.2d 21 (1994) and Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767 (3d Cir.1975). We decline to do so. Where a defendant submits proposed jury instructions in reliance on current law, and on direct appeal that law is declared constitutionally infirm, we will not apply the invited error doctrine. Instead, we will review for plain error under Fed.R.Crim.P. 52. See Johnson, at ---, 117 S.Ct. at 1548-49 (reviewing Gaudin error under plain error standard where defendant, relying on current law later declared unconstitutional, insisted at trial that materiality was an issue for the court, not jury, to decide). Under Rule 52, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity or public reputation of the judicial proceedings.” Johnson, at -, 117 S.Ct. at 1549 (internal quotations and brackets omitted; citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993)). As the Supreme Court explained in Johnson, “in a case such as this — where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration.” Id. See also United States v. Retos, 25 F.3d 1220 (3d Cir.1994) (question is not whether error was plain at time of trial, but whether it is plain based on current law at time of direct appeal). Failure to submit the issue of materiality to the jury was error. Gaudin, at 522, 115 S.Ct. at 2320; Johnson, at -, 117 S.Ct. at 1549. That Gaudin involved perjury under 18 U.S.C. § 1001 rather than 18 U.S.C. § 1546, the relevant statute here, is not significant" }, { "docid": "22474678", "title": "", "text": "115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)(assuming 18 U.S.C. § 1001 has materiality element, jury must decide issue). When a defendant did not object to the trial court deciding materiality, we apply Federal Rule of Criminal Procedure 52(b), which provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court,” in order to decide whether we should correct the error. See Johnson, — U.S. at-- -, 117 S.Ct. at 1548-49. Congo concedes that he did not object when the District Court decided the materiality of his statements. He nonetheless insists that the failure of the District Court to allow the jury to decide materiality necessarily requires reversal because such an error is “structural.” The Johnson Court, however, explicitly rejected this argument and held that Rule 52(b) applies when a defendant during a direct criminal appeal did not object before the trial court, regardless of whether the error claimed is structural. See id. at -, 117 S.Ct. at 1548; see also United States v. Sassanelli, 118 F.3d 495, 499 (6th Cir.1997)(under Johnson, Rule 52(b) applies to structural errors). Before an appellate court may correct an error not raised at trial, the defendant must satisfy a four-part test imposed by Rule 52(b). He must demonstrate that “(1) that the instruction was error; (2) that the error was plain; (3) that the plain error affected the defendant’s substantial rights; and (4) that the court should exercise its discretion to correct the error because the error ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.’ ” Sassanelli, 118 F.3d at 499 (quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776-77). In this case, the failure of the District Court to submit the issue of materiality to the jury was “error.” See Johnson, — U.S. at — , 117 S.Ct. at 1549. Further, the error was “plain,” because the law at the time of trial, which held that materiality was a question of law, see, e.g., United States v. Adams, 870 F.2d 1140, 1147 (6th Cir.1989), was both settled and" }, { "docid": "16483474", "title": "", "text": "that “[f]alse statements of income and assets are material for the purposes of these instructions.” Jury Instruction 40. Nash argues that the jury might have applied instruction 40 to the section 1344 counts as well as the section 1014 counts. As a result, he claims, the instruction improperly takes the matter from the jury in violation of Gaudin. Even if Nash is correct, though, we do not believe any Gaudin error in this context warrants reversal. In Johnson, the Supreme Court held that Gaudin-type errors not asserted at trial should be reviewed for plain error pursuant to Fed.R.Crim.P. 52(b), contrary to this circuit’s holding in United States v. Keys, 95 F.3d 874 (9th Cir.1996). — U.S. at —-—, 117 S.Ct. at 1548. Nash did not object to the materiality instruction at trial. As a result, before we can correct any deficiency in the instruction, we must find (1) an error that is (2) plain and (3) affects substantial rights. Even if these conditions were met, we may only exercise our discretion to correct the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson, — U.S. at —, 117 S.Ct. at 1548-49; United States v. Olano, 507 U.S. 725, 733-36, 113 S.Ct. 1770, 1777-79, 123 L.Ed.2d 508 (1993). Even if we accept that the instruction was erroneous, that the error was plain at the time of appellate consideration, as Johnson requires, see — U.S. at-, 117 S.Ct. at 1549, and that it affects substantial rights, Nash cannot meet the fourth prong of the plain error analysis: that the error seriously affected the fairness, integrity or reputation of the proceedings. There is no question that the representations on which the bank relied were material for purposes of section 1344. Nash grossly understated the lease revenue intended to secure the $4 million from Great Western Bank; he claimed that the building generated rents of more than $40,000 per month when in reality it only produced about $12,500 per month. The fact that one of the leases was month-to-month, rather than having a fixed term, would also have" } ]

[ { "docid": "23455740", "title": "", "text": "plaintiff has appealed, contending that the court erred in refusing to submit the case to the jury. The trial judge has stated the facts in detail and has made an admirable and painstaking analysis of the pertinent Iowa law. See D.C., 56 F.Supp. 455. In sub stance, his opinion is that a driver may not be adjudged guilty of “reckless operation” of an automobile, under the Iowa Guest Statute, unless the evidence will sustain a finding that he was aware of the danger confronting him and proceeded in disregard of it and without care or concern for consequences. The question which this court must decide is whether the trial court reached a permissible conclusion in 'determining that, under Iowa law, the plaintiff had not made out a case. The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a view contrary to that of the trial judge unless convinced of error. Magill v. Travelers Ins. Co., 8 Cir., 133 F.2d 709, 713; Roth v. Swanson, 8 Cir., 145 F.2d 262, 266, 268; Doering v. Buechler, 8 Cir., 146 F.2d 784, 788; Railway Mail Ass’n v. Chamberlin, 8 Cir., 148 F.2d 206. This does not mean that an appellant, in order to obtain a reversal of a judgment in a case such as this, must demonstrate error to a mathematical certainty, but it does mean that this court will not overrule a decision of a trial judge upon a question of state law except for cogent\" and convincing reasons. Compare Yoder v. Nu-Enamel Corporation, 8 Cir., 145 F.2d 420, 423-425; Roth v. Swanson, supra, page 269 of 145 F.2d; Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58, 62. All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the law. The factual situation disclosed by the plaintiff’s evidence is, in substance, as follows: On the" } ]

[ { "docid": "12157427", "title": "", "text": "were stated briefly by this court in Clarke Hybrid Corn Company, Inc., v. Stratton Grain Co., 8 Cir., 214 F.2d 7, as follows: “One of them [the rules] is that the prevailing party is entitled to have the evidence viewed in the aspect most favorable to it, and to have the benefit of all reasonable inferences deducible therefrom. Cleo Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 418 [150 A.L.R. 1056]. “A second rule is that this Court will not retry issues of fact or substitute its judgment for that of the trial court respecting such issues. Cleo Syrup Corporation v. Coca-Cola Co., supra, 139 F.2d 416, 417-418; Pendergrass v. New York Life Insurance Co., 8 Cir., 181 F.2d 136; Noland v. Buffalo Insurance Co., 8 Cir., 181 F.2d 735, 738. “A third rule is that the burden of demonstrating error is upon the appellant, and that in cases controlled by local law this Court will accept the considered views of the trial judge as to the applicable law unless convinced that his views are erroneous. Western Casualty & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40, 43; Kimble v. Willey, 8 Cir., 204 F.2d 238, 243.” See, also, Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Buder v. Becker, 8 Cir., 185 F.2d 311; Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, 936. It will be observed also that Honorable John E. Miller, judge in the Western District of Arkansas, before whom this case was tried, is the same judge before whom the Huffstettler case was tried; and his opinions in both cases disclose that he carefully reviewed the Arkansas statutes and decisions. See his findings and opinion in the Huffstettler case, Huffstettler v. Lion Oil Co., in D.C., 110 F.Supp. 222, and in this case in 116 F.Supp. 491. The statutes of Arkansas and the cases cited above sustain the contention of the appellees also that the remedies provided by the Arkansas Workmen’s Compensation Act are exclusive only where the employer-employee relationship exists. Appellant’s second contention is" }, { "docid": "11998143", "title": "", "text": "this is what reasonably would have, been done by the ordinary prudent person in similar circumstances. There has been pointed out to us no other Minnesota case, and our search has found none, that can be regarded as of controlling or indicative significance in the present situation. The most therefore that can possibly be said in plaintiff’s favor is that the question here may be doubtful. But we have repeatedly declared that on doubtful questions of state law, unless we have a clear conviction that the trial judge is in error, we will accept his considered appraisal of the local' law of his jurisdiction. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Globe Indemnity Co. v. Wolcott & Lincoln, 8 Cir., 152 F.2d 545, 547; Abbott v. Arkansas Utilities Co., 8 Cir., 165 F.2d 339, 340; Heikes v. New York Life Ins. Co., 8 Cir., 171 F.2d 460, 464; Mast v. Illinois Central R. Co., 8 Cir., 176 F.2d 157, 163; Brink’s Inc. v. Hoyt, 8 Cir., 179 F.2d 355, 359. And we have treated the question whether an issue is for the court or the jury under the law of a particular state as being within the application of this rule. Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330, 336. See also Gutierrez v. Public Service Interstate Transp. Co., 2 Cir., 168 F.2d 678. The trial judge’s view that under Minnesota law plaintiff was not entitled to go to the jury on the facts established is not without some supporting basis in state decision and from our careful consideration of the entire matter we have no clear conviction that this appraisal of the local law is erroneous. The judgment is affirmed." }, { "docid": "3737503", "title": "", "text": "question of state law with respect to which this Court is justified in accepting the views of the trial judge. In a somewhat analogous situation, this Court, in Russell v. Turner, 8 Cir., 148 F.2d 562, 564, said: “The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a.view contrary to that of the trial judge unless convinced of error. Magill v. Travelers Ins. Co., 8 Cir., 133 F.2d 709, 713; Roth v. Swanson, 8 Cir., 145 F.2d 262, 266, 268; Doering v. Buechler, 8 Cir., 146 F.2d 784, 788; Railway Mail Ass’n v. Chamberlin, 8 Cir., 148 F.2d 206. This does not mean that an appellant in order to obtain a reversal of a judgment in a case such as this, must demonstrate error to a mathematical certainty, but it does mean that this court will not overrule a decision of a trial judge upon a question of state law except for cogent and convincing reasons. Compare Yoder v. Nu-Enamel Corporation, 8 Cir., 145 F.2d 420, 423-425; Roth v. Swanson, supra, page 269 of 145 F.2d; Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58, 62. All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the law.” See, also, the following decisions of this Court: Globe Indemnity Co. v. Wolcott & Lincoln, Inc., 8 Cir., 152 F.2d 545, 547; Elder v. Dixie Greyhound Lines, Inc., 8 Cir., 158 F.2d 200, 204-205; E. I. DuPont de Nemours & Co. v. Frechette, 8 Cir., 161 F.2d 318, 322; Abbott v. Arkansas Utilities Co., 8 Cir., 165 F.2d 339, 340; Pearman v. Crain, 8 Cir., 166 F.2d 109, 115; Turner County, S. D. v. Miller, 8 Cir., 170 F.2d 820, 826; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015, 1019; Mast v. Illinois Central R. Co., 8 Cir., 176 F.2d 157, 163. We are not convinced" }, { "docid": "11817397", "title": "", "text": "error is upon the Casualty Company. In a case controlled by local law, that burden is a peculiarly heavy one. This Court is not an appellate court of the State of Missouri and establishes no rules of law for that State. We have repeatedly said that, in reviewing doubtful questions of local law, we would not adopt views contrary to those of the trial judge unless convinced of error, and that all that this Court reasonably can be expected to do in such cases is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the local law. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Buder v. Becker, 8 Cir., 185 F.2d 311, 315, and cases cited. If a federal district judge has reached a permissible conclusion upon a question of local law, we will not reverse, even though we may think the law should be otherwise.’ ” See, also, Kimble v. Willey, 8 Cir., 204 F.2d 238, 243; and compare Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330, 336; Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859. We have read and considered the opinions in the Iowa cases relied upon by counsel for the parties. We shall not attempt any analysis or reconciliation of them in this opinion. We think that the cases of Smith v. Darling & Co., 244 Iowa 133, 56 N.W.2d 47, and Hackman v. Beckwith, Iowa, 64 N.W.2d 275, support the views expressed by Judge Graven. We note that in the Hackman case, the Supreme Court of Iowa said, at page 279 of 64 N.W.2d: «* * * Practically all the debris came from appellants’ truck, which some evidence shows carreened on down the road from the point of collision to its final resting place. In any event, the deductions to be made from the positions of the vehicles as they come to rest after an accident, the tracks found on the roadway, and the location" }, { "docid": "12443215", "title": "", "text": "fairly deducible from such facts must be drawn in their favor. Gunning v. Cooley, 281 U.S. 90, 94, '50 S.Ct. 231, 74 L.Ed. 720; Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492; Illinois Power & Light Corporation v. Hurley, 8 Cir., 49 F.2d 681, 686; Columbian Nat. Life Ins. Co. v. Comfort, 8 Cir., 84 F.2d 291, 292; Svenson v. Mutual Life Ins. Co., 8 Cir., 87 F.2d 441, 442; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 439. Second. Effect must be given to the rule that issues depending upon the credibility of witnesses and the weight of the evidence are to be decided by the jury. Gunning v. Cooley, supra, page 94, 50 S.Ct. page 233; Svenson v. Mutual Life Ins. Co., supra, 87 F.2d page 443; Elzig v. Gudwangen, supra, 91 F.2d page 439. Third. Oral evidence which is opposed to physical facts conclusively established is not substantial evidence. Elzig v. Gudwangen, supra, 91 F.2d page 440 and cases cited. Fowrth. The weight of uncontradicted evidence and the credibility of the witnesses who gave it are usually for the jury to determine. Elzig v. Gudwangen, supra, 91 F.2d page 440. Fifth. It is only where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no doubt what the fact is, that the court should direct a verdict. People’s Savings Bank v. Bates, 120 U.S. 556, 562, 7 S.Ct. 679, 30 L.Ed. 754; Southern Pacific Co. v. Pool, 160 U.S. 438, 440, 16 S.Ct. 338, 40 L.Ed. 485; Gunning v. Cooley, supra, page 94, 50 S.Ct. 233; Svenson v. Mutual Life Ins. Co., supra, 87 F.2d page 443. Sixth. The question of negligence is usually one of fact for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence becomes one of law for the court. Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243, 248, and cases cited; Young v. Baldwin, 8 Cir.," }, { "docid": "13404615", "title": "", "text": "8 Cir., 203 F.2d 859, 860-861: “In considering the question of the sufficiency of the evidence to support the verdict, there are several general rules to be kept in mind. (1) All of the facts which the plaintiff’s evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts much be drawn in his favor. * * * (2) It is only where the evidence is all on one side or so overwhelmingly on one side as to leave no doubt what the fact is that the court should direct a verdict. * * * (3) The question of negligence is usually one of fact for the jury, and it is only where the evidence, even though it be uncontradicted, is such that all reasonable men must draw the same conclusion from it that the question of negligence becomes one of law for the court. * * * (4) Where inconsistent inferences reasonably may be drawn from the evidence, it is for the jury to determine which of the inferences shall be drawn. * * (5) When the sufficiency of the evidence to make a case for the jury presents a doubtful question of local law, this Court will accept the views of the trial court unless convinced of error. * * * (6) The burden of demonstrating error is upon the appellant. * * * ” Further, as this court has also noted, in United States Fire Insurance Co. v. Milner Hotels, Inc., 8 Cir., 253 F.2d 542, 546-547, questions of negligence and of proximate cause are, under North Dakota law, ordinarily for the jury: “In relation to what has been said, it must conformingly be borne in mind that under North Dakota law, as generally, negligence and proximate cause are not ordinarily questions which may be taken from the jury. ‘They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion therefrom’. Froh v. Hein, 76 N.D. 701, 39 N.W. 2d 11, 13; Geier v. Tjaden, N.D., 74" }, { "docid": "18276106", "title": "", "text": "a series of facts similar to those presented here, and found no proximate connection between the acts of the defendants and the alleged injury. “Assuming, however, that the conditions and injuries allegedly resulting from the medical society’s denial of membership to Dr. Riggall were all proximate results of that action of the medical society, there is nevertheless no showing of any violation of state law in that action or any conspiracy to violate any state law. Most of the injuries said to result to the plaintiff and to Dr. Riggall from his inability to obtain membership in the medical society relate to the alleged loss of patients of the hospital. These assertions are in essence specifications of the allegation that the defendants ‘imposed a professional boycott upon the plaintiff, and thereby prevented the plaintiff from receiving great numbers of patients from outside the State of Arkansas and elsewhere.’ These allegations, however, fall short of establishing a claim under Arkansas law.” Plaintiff here has utterly failed to demonstrate anything to the contrary and on this point cites but one case, Southwestern Publishing Co. v. Ney, 1957, 227 Ark. 852, 302 S.W.2d 538. Such case is no support for plaintiff’s contention. It is this court’s well established rule to accept the considered judgment of the trial judge on any matter of doubtful or disputed local law. Guyer v. Eiger, 8 Cir., 1954, 216 F.2d 537, 540, certiorari denied 348 U.S. 929, 75 S.Ct. 342, 99 L.Ed. 728; Barnard v. Wabash R. Co., 8 Cir., 1953, 208 F.2d 489, 493; Buder v. Becker, 8 Cir., 1950, 185 F.2d 311, 315-316; Northern Liquid Gas Co. v. Hildreth, 8 Cir., 1950, 180 F.2d 330, 336. We concur in the trial judge’s opinion that the complaint spelled out no right of action under the law of Arkansas. Next for consideration is whether a claim under the Sherman Anti-Trust Act has been alleged. Essential to jurisdiction is that the conspiracy complained of be “in restraint of trade or commerce among the several states * * * .” To establish this fact, plaintiff alleged that the wrongful exclusion" }, { "docid": "18276107", "title": "", "text": "cites but one case, Southwestern Publishing Co. v. Ney, 1957, 227 Ark. 852, 302 S.W.2d 538. Such case is no support for plaintiff’s contention. It is this court’s well established rule to accept the considered judgment of the trial judge on any matter of doubtful or disputed local law. Guyer v. Eiger, 8 Cir., 1954, 216 F.2d 537, 540, certiorari denied 348 U.S. 929, 75 S.Ct. 342, 99 L.Ed. 728; Barnard v. Wabash R. Co., 8 Cir., 1953, 208 F.2d 489, 493; Buder v. Becker, 8 Cir., 1950, 185 F.2d 311, 315-316; Northern Liquid Gas Co. v. Hildreth, 8 Cir., 1950, 180 F.2d 330, 336. We concur in the trial judge’s opinion that the complaint spelled out no right of action under the law of Arkansas. Next for consideration is whether a claim under the Sherman Anti-Trust Act has been alleged. Essential to jurisdiction is that the conspiracy complained of be “in restraint of trade or commerce among the several states * * * .” To establish this fact, plaintiff alleged that the wrongful exclusion of its Chief of Staff from the Washington County Medical Society so diminished his professional standing as to reduce the number of patients, both from within and without Arkansas, seeking treatment at plaintiff’s hospital. Plaintiff also alleged that it purchases from outside the State of Arkansas medical equipment and supplies, etc., for its use in operating its hospital. However, this fact need not be considered here as plaintiff has failed to assert that the conspiracy complained of interfered with these purchases. We think that the plaintiff’s operation of a hospital, to include rendition of hospital services to some persons who came from outside the state, is no more engaging in interstate commerce than was Dr. Riggall in rendering medical services to persons who likewise came from other states. The fact that some of plaintiff’s patients might travel in interstate commerce does not alter the local character of plaintiff’s hospital. If the converse were true, every country store that obtains its goods from or serves customers residing outside the state would be selling in interstate commerce." }, { "docid": "12443216", "title": "", "text": "and the credibility of the witnesses who gave it are usually for the jury to determine. Elzig v. Gudwangen, supra, 91 F.2d page 440. Fifth. It is only where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no doubt what the fact is, that the court should direct a verdict. People’s Savings Bank v. Bates, 120 U.S. 556, 562, 7 S.Ct. 679, 30 L.Ed. 754; Southern Pacific Co. v. Pool, 160 U.S. 438, 440, 16 S.Ct. 338, 40 L.Ed. 485; Gunning v. Cooley, supra, page 94, 50 S.Ct. 233; Svenson v. Mutual Life Ins. Co., supra, 87 F.2d page 443. Sixth. The question of negligence is usually one of fact for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence becomes one of law for the court. Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243, 248, and cases cited; Young v. Baldwin, 8 Cir., 84 F.2d 841, 843. The appellant contends that the testimony of the driver of the truck and of the man who sat beside him, that the collision was due to a sudden failure of the steering mechanism, was not substantial evidence. These men had a better opportunity than anyone to know exactly how and why this accident occurred. Their testimony is inconsistent with any theory other than that a sudden breakdown of the steering mechanism of the truck caused the collision. No physical fact which was conclusively proven demonstrates that their testimony was false. The steering mechanism was found to be disconnected after the crash. The appellant claimed that this disconnection was the result, and not the cause, of the collision. It introduced evidence tending to support that claim. It points to the bend in the steering connecting rod or drag link, the bend in the pitman arm and the sector shaft, the damage to the gears of the sector shaft and the worm gear on the steering post (indicating that the steering mechanism was" }, { "docid": "8110032", "title": "", "text": "158 Neb. 286, 63 N.W.2d 147. See, also, Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701. “The other, which is found in Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772, is the following: ‘In order for circumstantial evidence to be sufficient to require the submission of an issue of negligence to a jury it must be such that a reasonable inference of negligence arises from the circumstances established. If such evidence is susceptible to any other reasonable inference, inconsistent with the inference of negligence on the part of the party charged, it is insufficient to carry the case to the jury.’ ” The federal standard to be applied in determining the sufficiency of the evidence to support the verdict in a diversity case, as stated in Coca-Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, includes the following rules: (1) All facts which plaintiff’s evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts must be drawn in his favor; (2) the verdict should be directed only where all the evidence is on one side or so overwhelmingly on one side as to leave ano doubt what the fact is; (3) the question of negligence is usually one of fact for the jury, and it is only where the evidence, even though it be uncontradicted, is such that all reasonable men must draw the same conclusion from it that the question of negligence becomes one of law for the court; (4) where inconsistent inferences reasonably may be drawn from the evidence, it is for the jury to determine which of the inferences shall be drawn; (5) when the sufficiency of the evidence to make a case for the jury presents a doubtful question of local law, the court of appeals will accept the views of the trial court unless convinced of error; (6) the burden of demonstrating error is upon the appellant. See also Greene v. Werven, 8 Cir., 275 F.2d 134. Our court, in Ford Motor Company v. Mondragon, 8 Cir.," }, { "docid": "11817398", "title": "", "text": "8 Cir., 148 F.2d 562, 564; Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330, 336; Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859. We have read and considered the opinions in the Iowa cases relied upon by counsel for the parties. We shall not attempt any analysis or reconciliation of them in this opinion. We think that the cases of Smith v. Darling & Co., 244 Iowa 133, 56 N.W.2d 47, and Hackman v. Beckwith, Iowa, 64 N.W.2d 275, support the views expressed by Judge Graven. We note that in the Hackman case, the Supreme Court of Iowa said, at page 279 of 64 N.W.2d: «* * * Practically all the debris came from appellants’ truck, which some evidence shows carreened on down the road from the point of collision to its final resting place. In any event, the deductions to be made from the positions of the vehicles as they come to rest after an accident, the tracks found on the roadway, and the location of dirt and debris from collisions, are ordinarily for the jury. Slabaugh v. Eldon Miller, Inc. [244 Iowa 29], 55 N.W.2d 528.” The fact that in the instant case there was an absence of evidence of tire marks would not, in our opinion, make this rule inapplicable. Our conclusion is that Judge Graven reached a permissible conclusion, and probably the correct one, in determining that the issue of liability in this case was, under Iowa law, one of fact for the jury and not one of law for the court, and that his ruling in that regard was not induced by any misconception or misapplication of Iowa law. The judgment appealed from is affirmed. . Reimer v. Musel, 217 Iowa 377, 251 N.W. 863; Vandell v. Roewe, 232 Iowa 896, 6 N.W.2d 295; Potter v. Robinson, 233 Iowa 479, 9 N.W.2d 457; Hayes v. Stunkard, 233 Iowa 582, 10 N.W.2d 19; In re Goretska’s Estate, 234 Iowa 1080, 13 N.W.2d 432; Smith v. Darling & Co., 244 Iowa 133, 56 N.W.2d 47; Hackman v. Beckwith," }, { "docid": "3737502", "title": "", "text": "not, we think, beyond the bounds of the foreseeable, nor would the sudden appearance of such a car constitute, in our opinion, an independent intervening cause upon which the defendants could rely to relieve themselves of liability. See and compare, Wedel v. Johnson, 196 Minn. 170, 173, 264 N.W. 689, 691. It is, of course, true that if the instant cases were to be decided by the Supreme Court of Minnesota, that court might hold that Hildreth was guilty of contributory negligence as a matter of law and that his negligence, and not the negligence of the truck driver, was the sole proximate cause of the' accident. On the other hand, we think it not improbable that that court would rule, as the District Court did, that, under the peculiar circumstances of this case, the issues of contributory negligence and proximate cause were not free from doubt and were for the jury to decide. It is our conclusion that the question whether the issues were for the court or for the jury is a doubtful question of state law with respect to which this Court is justified in accepting the views of the trial judge. In a somewhat analogous situation, this Court, in Russell v. Turner, 8 Cir., 148 F.2d 562, 564, said: “The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a.view contrary to that of the trial judge unless convinced of error. Magill v. Travelers Ins. Co., 8 Cir., 133 F.2d 709, 713; Roth v. Swanson, 8 Cir., 145 F.2d 262, 266, 268; Doering v. Buechler, 8 Cir., 146 F.2d 784, 788; Railway Mail Ass’n v. Chamberlin, 8 Cir., 148 F.2d 206. This does not mean that an appellant in order to obtain a reversal of a judgment in a case such as this, must demonstrate error to a mathematical certainty, but it does mean that this court will not overrule a decision of a trial judge upon a question of state law except for cogent and convincing reasons. Compare" }, { "docid": "11316985", "title": "", "text": "84.330 does not contemplate nor include private watchmen. Further, that Section 84.-100 RSMo 1949, V.A.M.S., limits the number of policemen for the city of St. Louis and does not include private watchmen. And finally, that the sole purpose of the license granted under Section 84.-340 is to clothe the private watchman with immunity from arrest for carrying a gun. In the absence of controlling authority on this point, we must decline to hold that the charge given by the court below was an erroneous statement of the law. As this court has said many times, “The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a view contrary to that of the trial judge unless convinced of error. * * * All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the law.” Russell v. Turner, 8 Cir., 1945, 148 F.2d 562, 564. See also Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330; Nolley v. Chicago, M. St. P. & P. R. Co., 8 Cir., 183 F.2d 566; National Bellas Hess, Inc., v. Kalis, 8 Cir., 191 F.2d 739. In Buder v. Becker, 8 Cir., 1950, 185 F.2d 311, a case involving the construction of a Missouri statute, this court reiterated and reaffirmed the rule that it would not adopt a view contrary to that of the trial judge on a doubtful question of local law, unless clearly convinced of error. We are not so convinced that the lower court erred in stating the law in this case. On the contrary, its construction is strengthened when the wording of the license granted under Section 84.340 is considered. The oath taken by all private watchmen, which is recited in said license, provides, in part: “ * * *; that I will strictly obey all lawful orders of the Board of Police Commissioners, the Chief" }, { "docid": "11817396", "title": "", "text": "the evidence in this case the question as to whether or not the defendant invaded the traffic lane of George Eiger was properly one for jury determination.” Unless it can be demonstrated that Judge Graven clearly misconceived or misapplied the applicable Iowa law in reaching his conclusion that the plaintiff had made a case for the jury, the judgment must be affirmed. We again repeat what we said in National Bellas Hess, Inc., v. Kalis, 8 Cir., 191 F.2d 739, 741, relative to this Court substituting its judgment for that of a trial judge respecting a doubtful question of local law: “This Court has repeatedly ruled that it will accept the considered views of a District Judge as to doubtful questions of local law. Many of the cases in this Court and the Supreme Court which support that rule will be found in the case of Buder v. Becker, 8 Cir., 185 F.2d 311, 315-316. In Western Casualty & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40, 43, we said: ‘The burden of demonstrating error is upon the Casualty Company. In a case controlled by local law, that burden is a peculiarly heavy one. This Court is not an appellate court of the State of Missouri and establishes no rules of law for that State. We have repeatedly said that, in reviewing doubtful questions of local law, we would not adopt views contrary to those of the trial judge unless convinced of error, and that all that this Court reasonably can be expected to do in such cases is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the local law. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Buder v. Becker, 8 Cir., 185 F.2d 311, 315, and cases cited. If a federal district judge has reached a permissible conclusion upon a question of local law, we will not reverse, even though we may think the law should be otherwise.’ ” See, also, Kimble v. Willey, 8 Cir., 204 F.2d 238, 243; and compare Russell v. Turner," }, { "docid": "22996437", "title": "", "text": "will accept the considered view of a District Judge as to doubtful questions of local law. Many of the cases in this Court and the Supreme Court which support that rule will be found in the case of Buder v. Becker, 8 Cir., 185 F.2d 311, 315-316. In Western Casualty & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40, 43, we said: ‘The burden of demonstrating error is upon the Casualty Company. In a case controlled by local law, that burden is a peculiarly heavy one. This Court is not an appellate court of the State of Missouri and establishes no rules of law for that State. We have repeatedly said that, in reviewing doubtful questions of local law, we would not adopt views contrary to those of the trial judge unless convinced of error, and that all that this Court reasonably can be expected to do in such cases is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the local law. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Buder v. Becker, 8 Cir., 185 F.2d 311, 315, and cases cited. If a federal district judge has reached a permissible conclusion upon a question of local law, we will not reverse, even though we may think the law should be otherwise.’ ” The Supreme Court of Missouri decides each of these release cases upon its own facts. That court apparently has taken a realistic and unemotional view of a situation where a mature plaintiff, of sound mind, dealing at arm’s length with a defendant or his insurer, executes a release and thereafter seeks to repudiate it on the ground of having been misled. The District Court said in its memorandum and order on the defendant’s motion for judgment: “Plaintiff in this case finds herself in a position where the case law of Missouri, upon which this case was tried by both parties, will not permit her to avoid the legal consequences of her intentional and voluntary act in executing the release in question. Cf. Wood v." }, { "docid": "3546277", "title": "", "text": "cannot say that such an inference reasonably could not have been drawn by the jury. As stated by this Court in Anglen v. Braniff Airways, 8 Cir., 237 F.2d 736, 739, 740: “In a jury case, where conflicting inferences reasonably can be drawn from the evidence, it is the function of the jury to determine what inference shall be drawn.” Cf., Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 90 L.Ed. 916; Chicago & N. W. R. Co. v. Grauel, 8 Cir., 160 F.2d 820, 825-826; Gibson v. Elgin, Joliet & Eastern R. Co., 7 Cir., 246 F.2d 834, 836, certiorari denied 78 S.Ct. 270. It is only when the evidence is all one way, or so overwhelmingly one way as to leave no doubt what the fact is, that a court is justified in taking a case from the jury. Hoyt v. Clancey, 8 Cir., 180 F.2d 152, 154-155; Anglen v. Braniff Airways, supra, 8 Cir., 237 F.2d at page 740. Further, this court in National Lead Co. v. Schuft, 8 Cir., 176 F.2d 610, 614, held: “A theory of proximate cause resting in probative circumstances does not become a matter of speculation and con jecture by a mere suggestion of other possible causes which are unsupported by any proved facts.” Sears Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243, 247; Terminal Railroad Ass’n of St. Louis v. Farris, 8 Cir., 69 F.2d 779, 785. Defendant pleaded in its answer that a fellow employee of plaintiff attempted to adjust the scaffold by manually releasing the tension lock on the scaffold leg and thereby allowed the tubular leg to slide downward to the “down position” and caused the scaffold to tip over. But on the trial of the case no evidence was adduced to sustain this defense. Defendant argues that plaintiff was negligent when he did not inspect each leg and manually test each locking ring before he mounted the scaffold; that he failed to use the ordinary care which the law imposes on all persons; and that in view of plaintiff’s contributory negligence he is" }, { "docid": "3737504", "title": "", "text": "Yoder v. Nu-Enamel Corporation, 8 Cir., 145 F.2d 420, 423-425; Roth v. Swanson, supra, page 269 of 145 F.2d; Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58, 62. All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the law.” See, also, the following decisions of this Court: Globe Indemnity Co. v. Wolcott & Lincoln, Inc., 8 Cir., 152 F.2d 545, 547; Elder v. Dixie Greyhound Lines, Inc., 8 Cir., 158 F.2d 200, 204-205; E. I. DuPont de Nemours & Co. v. Frechette, 8 Cir., 161 F.2d 318, 322; Abbott v. Arkansas Utilities Co., 8 Cir., 165 F.2d 339, 340; Pearman v. Crain, 8 Cir., 166 F.2d 109, 115; Turner County, S. D. v. Miller, 8 Cir., 170 F.2d 820, 826; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015, 1019; Mast v. Illinois Central R. Co., 8 Cir., 176 F.2d 157, 163. We are not convinced that the district judge who tried this case clearly misconstrued or misapplied the applicable Minnesota law in ruling that the issues of fact were for the jury. The judgments are affirmed. . Jacobs v. Belland, 371 Minn. 338, 214 N.W. 55; Forster v. Consumers’ Wholesale Supply Co., 174 Minn. 105, 218 N.W. 249; Knutson v. Farmers Co-operative Creamery of Jenkins, 180 Minn. 116, 230 N.W. 270; Meehler v. McMahon, 180 Minn. 252, 230 N.W. 776; Ward v. Bandel, 181 Minn. 32, 231. N.W. 244; Wicker v. North States Construction Co., Inc., 183 Minn. 79, 235 N.W. 630; Ball v. Gessner, 185 Minn. 105, 240 N.W. 100; Geisen v. Luce, 185 Minn. 479, 242 N.W. 8; Olson v. Purity Baking Co., 385 Minn. 571, 212 N.W. 283; Brown v. Raymond Bros. Motor Transportation, Inc., 186 Minn. 321, 243 N.W. 112; Orrvar v. Morgan, 189 Minn. 306, 249 N.W. 42; Fleenor v. Rowley, 198 Minn. 163, 269 N.W. 370; Medved v. Doolittle, 220 Minn. 352, 19 N.W.2d 788; Barrett v. Nash Finch Co., 228 Minn. 156, 36" }, { "docid": "23698786", "title": "", "text": "years. This Court has repeatedly ruled that it will accept the considered views of a District Judge as to doubtful questions of local law. Many of the cases in this Court and the Supreme Court which support that rule will be found in the case of Buder v. Becker, 8 Cir., 185 F.2d 311, 315-316. In Western Casualty & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40, 43, we said: “The burden of demonstrating error is upon the Casualty Company. In a case controlled by local law, that burden is a peculiarly heavy one. This Court is not an appellate court of the State of Missouri and establishes no rules of law for that State. We have repeatedly said that, in reviewing doubtful questions of local law, we would not adopt views contrary to those of the trial judge unless convinced of error, and that all that this Court reasonably can be expected to do in such cases is to see that the determination of the trial court is not induced J)y a clear misconception or misapplication of the local law. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Buder v. Becker, 8 Cir., 185 F.2d 311, 315, and cases cited. If a federal district judge has reached a permissible conclusion upon a question of local law, we will not reverse, even though we may think the law should be otherwise.” The District Judge who tried this case gave painstaking consideration to the controlling issue of Missouri law. He reached not only a permissible conclusion, but, we think, the correct one. The judgment is affirmed." }, { "docid": "3460736", "title": "", "text": "had been some dislodging of this dust [which somewhere came in contact with a flame], each part of it took off and caused your puffs and explosions which continued to spread it over the entire building.” On these circumstances and testimony, we can not hold that the relationship of National Lead’s negligence as a proximate cause was a matter of mere speculation and conjecture. Inferences made from probative facts do not constitute legal speculations, if they can be said to be probabilities by the test of common judgment., Christie v. Callahan, 75 U.S.App.D.C., 133, 124 F.2d 825, 840. Nor is speculation involved merely because a choice of inferences is possible from the probative facts. Turner County, S. D. v. Miller, 8 Cir., 170 F.2d 820, 827. But National Lead contends that these principles are not controlling in the present situation, since South Dakota law does not permit a theory of liability to be established by circumstantial evidence alone, unless the facts shown are not only consistent with such theory but are also inconsistent with any other rational theory. The Supreme Court of South Dakota has said that “This * * * should be the rule whereby the weight of circumstantial evidence is determined in a civil case as well as in a criminal case.” Erickson v. Todd. 62 S.D. 280, 252 N.W. 879, 881. See also Honrath v. New York Life Ins. Co., 65 S.D. 480, 275 N.W. 258, 261, 112 A.L.R. 1272; Anderson v. Dunn, 68 S.D. 479, 4 N.W.2d 810, 812; Crilly v. Morris, 70 S.D. 584, 19 N.W.2d 836, 844; General Tire & Rubber Co. v. Hamm, 69 S.D. 72, 6 N.W.2d 442, 444: Hardware Mutual Ins. Co. of Minn. v. Jacob Heib, Inc., 8 Cir., 146 F.2d 447, 453. We do not, however, understand this to mean that proximate cause in a negligence case resting on circumstantial evidence is ordinarily a question for the court and not the jury, Nor have we so applied the rule in the South Dakota cases that have come before us. See e. g. Turner County, S. D. v. Miller, 8" }, { "docid": "11316986", "title": "", "text": "the law.” Russell v. Turner, 8 Cir., 1945, 148 F.2d 562, 564. See also Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330; Nolley v. Chicago, M. St. P. & P. R. Co., 8 Cir., 183 F.2d 566; National Bellas Hess, Inc., v. Kalis, 8 Cir., 191 F.2d 739. In Buder v. Becker, 8 Cir., 1950, 185 F.2d 311, a case involving the construction of a Missouri statute, this court reiterated and reaffirmed the rule that it would not adopt a view contrary to that of the trial judge on a doubtful question of local law, unless clearly convinced of error. We are not so convinced that the lower court erred in stating the law in this case. On the contrary, its construction is strengthened when the wording of the license granted under Section 84.340 is considered. The oath taken by all private watchmen, which is recited in said license, provides, in part: “ * * *; that I will strictly obey all lawful orders of the Board of Police Commissioners, the Chief of Police or any other officer placed in authority over me.” It further provides that the watchman will wear such dress, badge, or emblem as designated and will report to the Captain in charge of the police district to which he is assigned. These recitations in the oath lend support to the ruling of the trial court that a private watchman has the power to arrest. As we sustain the court’s conclusion that Gabbert had the power to arrest by virtue of his commission, it follows clearly under the authorities that he could arrest without a warrant, for the commission of a misdemeanor occurring in his presence. Garske v. United States, 8 Cir., 1 F.2d 620; Anderson v. Sager, 8 Cir., 1949, 173 F.2d 794; Leve v. Putting, Mo.App., 196 S.W. 1060; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 206, 130 S.W. 681, and cases cited. The next question considered is whether the circumstances shown by the evidence were such as to authorize the arrest of appellant by Gabbert. The court charged the jury that if" } ]

[ { "docid": "13574308", "title": "", "text": "N. E. 635; Dearing v. McKinnon Dash & Hardware Co., 165 N. Y. 78, 58 N. E. 773, 80 Am. St. Rep. 708. The law of New York had nothing to do with them, and section 230 could not make invalid what was beyond the reach of the state in any form. However, the certificates did come within the state, and indeed the only question is as to what effect its law now gives to the deed; that is to say, whether it creates any lien. No doubt it would have been possible for the law of New York at that time to deny any effect to the deed, because of what had earlier taken place in Mexico. That is a question of New York law, which might conceivably invafidate ■ a mortgage, though the mortgagee got possession immediately upon the entrance of th'e chattels within the state, for the reason that there had been a period whEe they were elsewhere during which the law of their situs created a Een divorced from possession. This would not give any extraterritorial effect to the law of New York, though it would be curiously gratuitous action for the state of New York, which is presumably concerned only with the protection of her own creditors. However that may be, any policy which might dictate such an interpretation must presuppose the existence in Mexico of a lien which might permit a false credit to the mortgagor. There is no proof that the Mexican law created any Een whatever, and we are relieved of speculating further. Certainly it would be preposterous to make the section destroy the Een, though none had arisen anywhere untE the certificates came within the state. • As there was no interval between the entrance of the certificates in New York and their deEvery to the mortgagee; the Een was good. We have assumed throughout that the receivers represented the interests of'the creditors and may invoke the section; we find it' unnecessary to pass upon that- question. The appellee has moved to dismiss the appeal upon the ground that it was" } ]

[ { "docid": "10863367", "title": "", "text": "affirmed a ruling that the chattel mortgage was invalid since it was not filed in compliance with Section 232 of the New York Lien Law. Although “strict compliance with the statute is required to create the lien”, In re National Browne Co., Inc., supra, nevertheless a court of bankruptcy is a court of equity and the lien should be recognized as valid in relation to the mortgaged chattels located in Bronx County, where the mortgage was properly filed. The proof has established which chattels- were situated in the Bronx. The purpose of the filing statute is to enable the public to know whether particular personal property is encumbered or not. The principal office of Regent Case Co., Inc. was in the Bronx. Filing the chattel mortgage in the Bronx was all the notice the statute required as to the chat-, tels in the Bronx. It would be unreasonable to hold that the fact that some of the chattels listed in the mortgage schedule were in the Borough and County of Queens should destroy the entire security and render the chattel mortgage void as against th'e other chattels located in the Bronx, in respect to which the filing sections of the Lien Law were fully satisfied. Hubbardston Lumber Co. v. Covert, 35 Mich. 25; In re Soldier’s Business Messenger & Dispatch Co., D.C.N.Y., 22 Fed.Cas.No.13,163, p. 781. The trustee contends that the chattel mortgage is totally invalid and void on a further ground. When the defendant loaned the bankrupt the $7,-500 it deducted $150 by way of prepaid interest upon the loan. It is the trustee’s position that this “interest in advance” was in violation of the New York General Corporation Law, Section 18, McK. Consol. Laws, c. 23, and the New York Banking Law, § 131 sub. 1, McK. Consol.Laws, c. 2, and that these viola tions voided and made invalid the chattel mortgage. But the New York Court of Appeals has expressly held that a business corporation may lend money on real and personal security without in any form conducting a banking business. Meserole Securities Co. v. Cosman, 253" }, { "docid": "14404822", "title": "", "text": "a lien is determined by the law of the place creating the lien, that Honduras law therefore controls, and by the affidavit of one Otto Schoenrich, an alleged expert on Honduran law, defendant seeks to demonstrate that the mortgage is valid under Honduran law. Plaintiffs, however, emphasize the fact that the mortgagor and mortgagee are both New York corporations; that the mortgage was exécuted in New York and that more than 85% of the liabilities of the bankrupt (as appears from claims on file with the Referee in Bankruptcy and the records of Seeling & Jarvis, Inc., the shipping agents) are due to New York creditors upon debts apparently contracted in New York. The domicile of the owner and not the registry, plaintiffs contend, determines the nationality of a vessel. It has been so held in Gerradin v. United Fruit Co., D.C.E.D.N.Y.1931, 51 F.2d 417, affirmed 2 Cir., 60 F.2d 927, certiorari denied 287 U.S. 642, 53 S.Ct. 92, 77 L.Ed. 556, where the court concluded that the Jones Act, 46 U.S.C.A. § 688, governed the right of a seaman to recover for injuries sustained on the high seas aboard a vessel owned by an American corporation registered under the flag. of Plonduras. Plaintiffs contend that, as in the Gerradin case, the Court found the law of the domicile to be controlling in its desire to extend Jones Act protection to American seamen faired by American owners, so here the law of the domicile should govern _ to accord to New York creditors the protection of the New York Lien Law. Plaintiffs further urge that if this ■Court should find that the law of the situs •controls (assuming the situs to be Honduras) that it be allowed to amend the complaint, if necessary, to allege that the defendant did not comply with the law- of the situs. Plaintiffs have submitted an affidavit •o-f Mr. Uno, said to be an expert on Honduran law, in opposition to the affidavit ■of Mr. Schoenrich. Plaintiffs also seek to to place in issue Mr. Schoenrich’s qualification as an expert on Honduran law because, as" }, { "docid": "23030298", "title": "", "text": "filed in one respect in which we think we were mistaken. We there stated that § 70, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. c, did not avail the Trustee because the record failed to show that the petition in bankruptcy had been filed prior to the actual recording of the mortgage. On further consideration we think that is not so in view of the provisions of § 230 of the N.Y. Lien Law, McK.Consol.Laws, c. 33, as construed by the New York Courts, making unrecorded chattel mortgages void as to simple contract creditors becoming such, without notice, prior to actual recording — see Karst v. Gane, 1892, 136 N.Y. 316, 323, 32 N.E. 1073; In re Shay’s Estate, Surrogate’s Court, Livingston Co., 1935, 157 Misc. 615, 285 N.Y.S. 379 — in contrast to the provisions of § 65 of the N.Y. Personal Property Law, McK.Consol.Laws, c. 41, making unrecorded conditional sales contracts void as to creditors, without notice, who have acquired liens on the goods prior to recording of the contract. Since an existing creditor without notice of the chattel mortgage, could have obtained a lien at the time of the filing of the petition in bankruptcy, and since under § 70, sub. c of the Bankruptcy Act the Trustee was entitled to be put in the position of an “ideal” hypothetical creditor — Hoffman v. Cream-O-Products, 2 Cir., 180 F.2d 649, certiorari denied 1950, 340 U.S. 815, 71 S.Ct. 44, 95 L.Ed. 599 — we think his position must prevail over that of the mortgagee-appellant. This leads us to correct our original opinion in this respect, and on this ground to affirm the judgment below. Petition for rehearing denied. Judgment below affirmed. . “§ 232. Where filed. * * * Every * * * chattel mortgage, or an instrument intended to operate as sueli, or a true copy thereof, must be filed * * * in the town or city where the mortgagor, if a resident of the state, resides at the time of the execution thereof, and if not a resident, * *" }, { "docid": "23030291", "title": "", "text": "estate was the diner which was sold by the Trustee for $22,150, against which proceeds Constance claims a valid lien to the extent of $15,650, the unpaid balance of the purchase price of the diner. The District Court, confirming the Referee in Bankruptcy, has held the chattel mortgage invalid as against the Trustee. The first question we have to decide is this: Was the effective filing date of this chattel mortgage shortly after November 25, 1949, when the Watervliet Clerk received the instrument and erroneously failed to file it, or on October 5, 1950, when the mortgage was actually filed at Watervliet? It is conceded that this question is to be determined under New York law. The New York Lien Law makes chattel mortgages which have not been filed as provided therein void as against creditors of the mortgagor and subsequent good faith purchasers and mortgagees for value, but specifies no time for filing. §§ 230, 232. The New York Courts hold that filing must be within a reasonable time after execution of the instrument. Tooker v. Siegel-Cooper Co., 1909, 194 N.Y. 442, 87 N.E. 773. Absent extenuating circumstances, it could scarcely be disputed that a delay of over ten months is not a filing within a reasonable time. It is argued, however, that this delay was excused by the mistake of the Watervliet Clerk, and we are referred to a number of cases in which it has been held that the failure or refusal of a public official to file an instrument required to be filed is not to be charged against one claiming under it. Manton v. Brooklyn & Flatbush Realty Co., 1916, 217 N.Y. 284, 111 N.E. 819; President etc. of the Manhattan Company v. Laimbeer, 1888, 108 N.Y. 578, 15 N.E. 712; New York County Nat. Bank v. Wood, 1st Dept. 1915, 169 App.Div. 817, 153 N.Y.S. 860, affirmed New York County Nat. Bank v. Peckworth, 222 N.Y. 662, 119 N.E. 1062; In re Labb, D.C.W.D.N.Y.1941, 42 F.Supp. 542. We think these cases are distinguishable from the one before us. In each of them the fault" }, { "docid": "14404823", "title": "", "text": "the right of a seaman to recover for injuries sustained on the high seas aboard a vessel owned by an American corporation registered under the flag. of Plonduras. Plaintiffs contend that, as in the Gerradin case, the Court found the law of the domicile to be controlling in its desire to extend Jones Act protection to American seamen faired by American owners, so here the law of the domicile should govern _ to accord to New York creditors the protection of the New York Lien Law. Plaintiffs further urge that if this ■Court should find that the law of the situs •controls (assuming the situs to be Honduras) that it be allowed to amend the complaint, if necessary, to allege that the defendant did not comply with the law- of the situs. Plaintiffs have submitted an affidavit •o-f Mr. Uno, said to be an expert on Honduran law, in opposition to the affidavit ■of Mr. Schoenrich. Plaintiffs also seek to to place in issue Mr. Schoenrich’s qualification as an expert on Honduran law because, as they say, it does not appear that he has been admitted to practice in Hon■duras. If this were a ground for disqualification, Mr. Uno, plaintiffs’ expert, would be similarly unacceptable as an expert for it does not appear that he is a member ■of the Bar of Plonduras. I do not believe, however, that this factor alone is sufficient to disqualify an expert. See Masocco v. Schaaf, App.Div. 3rd Dept. 1931, 234 App. Div. 181, 254 N.Y.S. 439, and authorities cited therein. Assuming that the amendment of ■the complaint would be allowed; this Court is therefore asked, on the papers before it, to decide whether New York or Honduras law applies and if the latter conclusion is reached, to determine whether there has been compliance with the laws of that jurisdiction. Counsel for plaintiffs and ■defendant appear to be in .agreement on but one point — that this a question of considerable commercial importance upon which there is a surprising dearth of authority. Interpretation of foreign law is a question of fact and not one," }, { "docid": "14404820", "title": "", "text": "IRVING R. KAUFMAN, District Judge.. Plaintiffs, Trustees in Bankruptcy, bring suit in nine causes of action against defendant (hereinafter referred to as “Bankers”), the mortgagee of ships of Honduran registry owned by the bankrupt. Defendant has moved to dismiss the first, second, third, fourth and eighth causes of action on the ground that they fail to state claims upon which relief can be granted, or in the .alternative for summary judgment on said causes of action. The motions will be considered together. The First Cause of Action The material allegations of the first cause of action may be summarized as follows: On November 9, 1951, the bankrupt corporation executed and delivered a mortgage to Bankers on two vessels, the Carmen and Isabel; the mortgage was executed in New York City; on November 9, 1951, at the moment of the execution and delivery of the mortgage one of the vessels was in Argentina and the other in Pennsylvania; the mortgage states that the vessels were registered under the flag of Honduras and that the bankrupt is' a New York corporation; the vessels never went to Honduras until October, 1952, nor was any copy of the mortgage recorded in New York. In November, 1952, a petition in bankruptcy was filed against the mortgagor and the mortgagor was adjudicated a bankrupt in December of 1952. In essence, therefore, the first cause of action seeks to set aside the mortgage on the theory that it is a chattel mortgage which under the New York Lien Law, McK.Consol.Laws, c. 33, §§ 230, 232, should have been recorded in New York and that the failure to so record invalidated the mortgage.- Defendant contends that the Honduras registry and the fact that the vessels were outside the State of New York at the time of the making of the mortgage renders New York law inapplicable. Cf. New York Trust Company v. Island Oil & Transport Co., 2 Cir., 1929, 33 F.2d 104, 79 A.L.R. 1007; In re Greene, D.C.Conn. 1904,134 F. 137; In re Nuckols, D.C.E.D. Tenn.1912, 201 F. 437. Defendant further urges that the validity of" }, { "docid": "22865395", "title": "", "text": "the office, but they could have no other effect. They were not intended to revive a defunct mortgage, and, if they had been, would have been unavailing for that purpose. It remains to consider whether the trustee can take advantage of the uoncompliance with the statute. It.has always been held by the courts of New York that only such creditors can take advantage of it as are armed with some legal process authorizing the seizure of the mortgaged property, and are thereby in a position to enforce a lien upon it (Jones v. Graham, 77 N. Y. 628; Button v. Rathbone, 126 N. Y. 187, 27 N. E. 266; Stephens v. Britannia Co., 160 N. Y. 178, 181, 54 N. E. 781), and that the mortgage is good as to creditors at large as well as between the- parties. Under the bankruptcy act of 1867 (14 Stat. 517), a failure to file a mortgage of goods and chattels in the manner prescribed by the law of the state, while rendering the mortgage void as against the creditors of the mortgagor if it was not accompanied by an immediate delivery and followed by an actual and continuous possession of the chattels, did not affect its validity as against the assignee of the mortgagor in bankruptcy. The assignee succeeded merely to the title of the mortgagor, and as-between the mortgagor and the mortgagee the validity of the mortgage was unaffected by the failure. Stewart v. Platt, 101 U. S. 731, 25 L. Ed. 816. Under the present act, however, by section 67, “claims which for want of record or for other reasons would not have-been valid liens as against the claims of the creditors of the bankrupt” are not liens against his estate (subdivision “a”), and by subdivision “b,” whenever a creditor is “prevented from enforcing his rights against a lien created or attempted to be created by his debtor, who afterwards becomes a bankrupt,” the trustee of the estate is sub-rogated to and may enforce the rights of such creditor for the benefit of the estate. And by section 70 (subd." }, { "docid": "10863365", "title": "", "text": "sum of $750. The mortgage recites that the mortgagor, Regent Case Co., Inc., had offices and a factory at 2926 White Plains Road, Borough of Bronx, and that the machinery, fixtures and chattels set forth in Schedule “A” annexed to the mortgage were “in the premises at 2926 White Plains Road, Bronx, New York, and in care of Otto Schreiber, 1947 Flushing Avenue, Brooklyn, New York.” The particular chattels at each location were not specified. The chattel mortgage was filed in the City Register’s office in the Borough and County of Bronx and in the Borough of Brooklyn, County of Kings. Street number 1947 Flushing Avenue, Brooklyn, was the actual and proper mailing address of Otto Schreiber, the person to whom some of the chattels, certain dies, had been delivered to do certain work for the bankrupt, and these chattels were located at Schreiber’s said place of business. However, although Schreiber’s premises were serviced by the Brooklyn post office, they were in fact located in the Borough and County of Queens, New York. The chattel mortgage was never filed in the Register’s office in the Borough and County of Queens. The trustee asserts that the defendant's failure to file the chattel mortgage in the County of Queens completely invalidates the mortgage for lack of compliance with Sections 230 and 232 of the New York Lien Law, McK.Consol. Laws, c. 33. The defendant contends that the mortgage is entirely valid; but that if its filing was defective as to chattels in Queens County, the mortgage should be held valid as to the chattels situated at the bankrupt’s place of business in Bronx County where the mortgage was properly filed. I have concluded that the chattel mortgage is invalid as to the chattels situated in Queens County. The problem as to the Queens chattels is answered by In re National Browne Co., Inc., 2 Cir., 151 F.2d 595, 596. In that case all the mortgage chattels were located at No. 1852 Flushing Avenue, which was actually within the County of Queens, although it had a Brooklyn post office number. The appellate court" }, { "docid": "23030290", "title": "", "text": "was where Reilly,’ the mortgagor, resided, and (b) the County Clerk of Albany County, in whichWatervliet was situated, had no office in Watervliet; and-the filing in the Albany County Clerk’s offiee was of no avails New York Lien Law § 232, McK.Con-sol.Laws, c. 33. Mr. Ehrenreich testified that he took the Watervliet Clerk’s notation to mean that Reilly had changed his residence to Albany, where the diner was located, and that he made no further effort to accomplish filing in Watervliet until October 5, 1950 — over ten months later— when he sent a representative to Water-vliet for that purpose. This time the Watervliet Town Clerk filed the instrument, and there was hearsay evidence, which was not objected to, that the Clerk then acknowledged that he had made an error in not filing the mortgage when he had originally received it in November 1949. It was found below that the Clerk had so erred. Reilly was adjudicated a bankrupt on October 23, 1951, and Arthur J. Harvey was appointed Trustee. The sole asset of the estate was the diner which was sold by the Trustee for $22,150, against which proceeds Constance claims a valid lien to the extent of $15,650, the unpaid balance of the purchase price of the diner. The District Court, confirming the Referee in Bankruptcy, has held the chattel mortgage invalid as against the Trustee. The first question we have to decide is this: Was the effective filing date of this chattel mortgage shortly after November 25, 1949, when the Watervliet Clerk received the instrument and erroneously failed to file it, or on October 5, 1950, when the mortgage was actually filed at Watervliet? It is conceded that this question is to be determined under New York law. The New York Lien Law makes chattel mortgages which have not been filed as provided therein void as against creditors of the mortgagor and subsequent good faith purchasers and mortgagees for value, but specifies no time for filing. §§ 230, 232. The New York Courts hold that filing must be within a reasonable time after execution of the instrument." }, { "docid": "17201130", "title": "", "text": "CHASE, Circuit Judge. After an attempted reorganization of the American Motor Products Corporation, commenced by petition approved on May 29, 1937, had proved to be futile, an order for liquidation under the provisions of the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., was entered on October 22, 1927, and the appellant in due course became the trustee. Certain personal property of the bankrupt was turned, over to the appellant by the trustee in the proceedings for reorganization that was subject to the lien of a consolidated chattel mortgage. The bankrupt is a New York corporation. The property was in New York and the mortgage is admittedly a valid lien upon it under New York law. It has been in existence too long to be affected by the bankruptcy of the mortgagor. It is also undisputed that the principal amount secured by the mortgage is $10,000 and that appellee is entitled to that with interest concerning which there is also no dispute. The appeal involves only the question of whether or not the mortgage lien covers an additional $1,500 to be added to the principal as an attorney’s fee. The referee decided that it did and the judge confirmed the order. The trustee in bankruptcy appealed on the ground that any fee for counsel to be added to the amount of the lien must be limited to what might be found fair and reasonable compensation for services necessarily performed The mortgage provided in the now important part that if the mortgagee “retains counsel for the purpose of collecting any moneys which may be due under the mortgage, or to recover the mortgaged property, or to protect his interest therein by reason of the happening of any of the contingencies set forth in the mortgage, that then and in that event the party of the first part (mortgagor) herein agrees to pay counsel fee, the amount of which is hereby expressly fixed at a sum which shall be equal to 15% of the balance or amount due and unpaid under this mortgage and such counsel fee shall be added to the" }, { "docid": "23030297", "title": "", "text": "had become creditors pri- or to October 5, 1950. So again we are not in a position to determine whether under § 70, sub. e the mortgage was valid or invalid as against the Trustee. In light of these controlling considerations, it becomes clear that on this record the order below cannot stand. However, rather than reversing for dismissal, we are constrained to remand the case to the District Court for further findings, with instructions to grant the appellant’s lien petition if it be found that the petition in bankruptcy was filed after October 5, 1950, and that none of the bankrupt’s creditors, having a provable claim, became a creditor prior to October 5, 1950, and otherwise to dismiss the petition. Reversed and remanded. On Petition for Rehearing PER CURIAM. Appellant’s Petition for Rehearing sets forth nothing which persuades us that we were wrong in concluding that the chattel mortgage was not timely filed. We must therefore deny the Petition for Rehearing. The Court, however, sua sponte takes this occasion to correct the opinion already filed in one respect in which we think we were mistaken. We there stated that § 70, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. c, did not avail the Trustee because the record failed to show that the petition in bankruptcy had been filed prior to the actual recording of the mortgage. On further consideration we think that is not so in view of the provisions of § 230 of the N.Y. Lien Law, McK.Consol.Laws, c. 33, as construed by the New York Courts, making unrecorded chattel mortgages void as to simple contract creditors becoming such, without notice, prior to actual recording — see Karst v. Gane, 1892, 136 N.Y. 316, 323, 32 N.E. 1073; In re Shay’s Estate, Surrogate’s Court, Livingston Co., 1935, 157 Misc. 615, 285 N.Y.S. 379 — in contrast to the provisions of § 65 of the N.Y. Personal Property Law, McK.Consol.Laws, c. 41, making unrecorded conditional sales contracts void as to creditors, without notice, who have acquired liens on the goods prior to recording of the" }, { "docid": "10863366", "title": "", "text": "mortgage was never filed in the Register’s office in the Borough and County of Queens. The trustee asserts that the defendant's failure to file the chattel mortgage in the County of Queens completely invalidates the mortgage for lack of compliance with Sections 230 and 232 of the New York Lien Law, McK.Consol. Laws, c. 33. The defendant contends that the mortgage is entirely valid; but that if its filing was defective as to chattels in Queens County, the mortgage should be held valid as to the chattels situated at the bankrupt’s place of business in Bronx County where the mortgage was properly filed. I have concluded that the chattel mortgage is invalid as to the chattels situated in Queens County. The problem as to the Queens chattels is answered by In re National Browne Co., Inc., 2 Cir., 151 F.2d 595, 596. In that case all the mortgage chattels were located at No. 1852 Flushing Avenue, which was actually within the County of Queens, although it had a Brooklyn post office number. The appellate court affirmed a ruling that the chattel mortgage was invalid since it was not filed in compliance with Section 232 of the New York Lien Law. Although “strict compliance with the statute is required to create the lien”, In re National Browne Co., Inc., supra, nevertheless a court of bankruptcy is a court of equity and the lien should be recognized as valid in relation to the mortgaged chattels located in Bronx County, where the mortgage was properly filed. The proof has established which chattels- were situated in the Bronx. The purpose of the filing statute is to enable the public to know whether particular personal property is encumbered or not. The principal office of Regent Case Co., Inc. was in the Bronx. Filing the chattel mortgage in the Bronx was all the notice the statute required as to the chat-, tels in the Bronx. It would be unreasonable to hold that the fact that some of the chattels listed in the mortgage schedule were in the Borough and County of Queens should destroy the entire" }, { "docid": "23030295", "title": "", "text": "date of bankruptcy.” By definition the “date of bankruptcy” is the “date when the petition was filed.” Bankruptcy Act, § 1(13), 11 U.S.C.A. § 1(13). But under New York law the filing of this chattel mortgage, even though belated, was good as to all creditors of Reilly who became such subsequent to the filing of the mortgage, whether belated or not. In re Myers, 2 Cir., 1928, 24 F.2d 349; In re Ideal Steel Wheel Co., 2 Cir., 1928, 25 F.2d 651. Hence under § 70, sub. c the Trustee did not have the status of a lien creditor with- respect to this property unless the petition in bankruptcy was filed prior to October 5, 1950, when the chattel mortgage was filed by the Watervliet Town Clerk. 4 Collier on Bankruptcy, pp. 1272, 1273, 1287-1293. • The record shows that Reilly was adjudicated a bankrupt on October 23, 1951, more than a year after the mortgage was filed, but it fails to show when the petition in bankruptcy was filed. Hence we are unable to determine whether under § 70, sub. c the belated filing by the mortgagee was valid or invalid as against the Trustee. Nor is the position of the Trustee aided by § 70, sub. e of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. e, making void as against a Trustee any “obligation incurred by a debtor adjudged a bankrupt * * * which, under any Federal or State law applicable thereto, is * * * voidable * * * by any creditor of the debtor, having a claim provable * * * ” against the estate. Under New York law this chattel mortgage was invalid only as to creditors of Reilly becoming such prior to October 5, 1950, when the mortgage was filed at Watervliet, and unless there was at least one such creditor the belated filing was nevertheless good as against the Trustee. See Zamore v. Goldblatt, 2 Cir., 1952, 194 F.2d 933; In re Myers, supra. Here again the record is deficient, since it fails to show that any of the bankrupt’s creditors" }, { "docid": "14404830", "title": "", "text": "of 1920 by its terms applies only to ships of United States registry. The S/S Guatemala, D.C.E.D.N.Y. 1946, 68 F.Supp. 894, modified sub. nom. Larsen v. New York Dock Co., 2 Cir., 1948, 166 F.2d 687. But a more cogent reason for holding the Ship Mortgage Act inapplicable is the fact that the Isabel became enrolled as a Honduran vessel on the same date that the mortgage was made. The contention that the mortgage was invalid because it was delivered and recorded on the same day but prior to an enrollment was considered by Judge Knox in In re The Fort Orange, D.C.S.D.N.Y.1933, 5 F.Supp. 833. In rejecting this contention, on all fours with that of the plaintiffs as contained in this third cause of action, Judge Knox said, 5 F.Supp. at page 840: “Under the facts of this case, it is my belief that the events of May 5, 1926, should be treated as having taken place simultaneously. This is in accordance with the general rule that acts done during a day are presumed to have been done at the same time. See 62 C.J. 978. To hold otherwise would be an abject surrender to form and an unholy disregard of substance.” Although plaintiffs reassert their doubts as to the qualifications of defendant’s expert, Otto Schoenrich whose affidavit 'supports defendant’s claim of a valid Honduran enrollment, plaintiffs do not dispute the fact that such enrollment took place nor do I believe they seriously question the fact of the validity of the enrollment. The essential facts therefore are undisputed and since they disclose that the plaintiffs’ third cause of action is without merit, defendant’s motion for summary judgment with respect thereto is granted. The Fourth Cause of Action Plaintiffs’ fourth cause of- action alleges that the mortgage note (as distinguished from the mortgage itself) was not executed by two officers of the bankrupt corporation as required by the by-laws. The noté was executed in the name of the corporation by the president. It is settled law that where there has been receipt of a valid consideration by the borrower and" }, { "docid": "21794127", "title": "", "text": "Company, to meet him in JDdgewood, N. J., just across the Hudson river from New York. When they met, upon his request she executed a bond and mortgage for $157,912.95, which had already been prepared, on a certain farm of 128 acres which she owned in Nor-wood, Bergen county, N. J. At that time Mrs. Dyer had many creditors. The execution of this mortgage rendered her insolvent. Her creditors have not been paid, and if the validity of the mortgage is sustained, they will never be paid. The mortgage was not recorded until December 15th following. On June 23,1923, an involuntary petition in bankruptcy was filed against Mrs. Dyer on which she was adjudicated a bankrupt on October 1, 1923. The cause was referred to George R. Beach, referee in bankruptcy, and on the 31st of that month Joseph M. Davis was elected trustee. The Holt Company assigned the mortgage to the Hudson Trust Company on April 12, 1924. In October, 1924, the trustee filed a petition in the bankruptcy proceedings attacking the validity of the mortgage on the grounds, among other things, that it was (a) fraudulent and void under the Uniform Fraudulent Conveyance Act of New Jersey, because it was given by the bankrupt without “fair consideration” and the making of it rendered her insolvent, and (b) in the alternative, if the mortgage is' controlled by the laws of New York and not New Jersey, it was void for usury, the interest provided in the mortgage being 8 per cent, and the legal rate of interest in New York being 6 per cent. The referee held the mortgage invalid under the New Jersey Uniform Fraudulent Conveyance Act as against both the original mortgagee and its assignee, the Hudson Trust Company. On review the District Court reversed the referee on the ground that the Hudson Trust Company was a purchaser of the mortgage for value without notice. From its order the trustee appealed to this court. The questions at issue are two: (1) Was the mortgage fraudulent and therefore void as between the mortgagee and creditors of the mortgagor" }, { "docid": "10838847", "title": "", "text": "of the bankrupt as security for the payment of the claim of the landlord. The marshal was in possession of the property of the bankrupt under a levy at the time the alleged agreement of pledge was made, having taken possession on October 21, 1932, and remained in possession until he turned it over to the receiver in bankruptcy, after the petition in bankruptcy was filed. The claimant did not enter into possession of such property. No change in the condition of the bankrupt took place between September, 1932, and October 27, 1932, the time of the filing of the petition in bankruptcy. The judgment obtained by the claimant, the landlord, was never paid, satisfied, or discharged, and is still of record. The referee saw and heard the witnesses, his findings of fact are supported by the evidence, and there is no manifest error in his findings of fact. I therefore accept them as decisive. General Order 47 in Bankruptcy (11 USCA § 53); In re C. J. McDonald & Sons (D. C.) 178 F. 487, affirmed Bank of Marion v. Norwood (C. C. A.) 184 F. 986. The consideration alleged by the claimant was an antecedent debt. There was no change of possession to the claimant, and no record of any transfer, and therefore no pledge, as the marshal was in possession and remained- in possession until he turned the property over to the receiver in bankruptcy. An oral agreement to execute a chattel mortgage would create no lien in favor of the claimant, as it would be simply an agreement and not a chattel mortgage; further, if the agreement to make a chattel mortgage was made, it was an agreement to make a mortgage covering both machinery and the merchandise of the bankrupt, which would be void under section 230-a of the Lien Law of the state of New York (Consol. Laws, e. 33); therefore the agreement would be unenforceable. Even if the oral pledge was made, the alleged consideration was an antecedent debt, and it was on the eve of bankruptcy, after the note made by the" }, { "docid": "22767837", "title": "", "text": "Mr. Justice Harlan delivered the opinion of the court. The objects of this suit, so far as they concern the appellants, were, — 1st, To obtain the distribution of the fund arising from the sale of furniture and other personal property in use in the Metropolitan Hotel, in the city of New York, at the commencement of the proceedings in bankruptcy. . The Lelands were lessees of that hotel under a written lease from A. T. Stewart, 'dated April 30, 1867, for a term of four years thereafter, at an annual rent of 179,186, payable in equal monthly instalments. Upon the property thus sold Stewart held, as security for rent reserved by the lease, several chattel mortgages executed by the Lelands, the validity of which was questioned in this suit, by the assignee in bankruptcy. 2d, To have a decree declaring sundry judgments against the bankrupts within four months prior to the adjudication in bankruptcy, as well as certain conveyances of real estate to Stewart, to be, as against the assignee, invalid under the provisions of the bankrupt law. Tbe first question to which we will direct our attention relates to those several chattel mortgages. The District and Circuit Courts concurred in opinion that they were not filed in the office designated by the statutes of New York, and, upon that ground, were ineffectual to give the security and lien contemplated by the parties, and void as against the assignee. By the laws of New York it is. provided that every mortgage or conveyance, intended to operate as a mortgage of goods and chattels, which should not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, should be absolutely void, as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed as directed in the act. The statute requires such mortgages to be filed in the town or city where the mortgagor, “ if a resident of that State, shall reside at" }, { "docid": "14404821", "title": "", "text": "a New York corporation; the vessels never went to Honduras until October, 1952, nor was any copy of the mortgage recorded in New York. In November, 1952, a petition in bankruptcy was filed against the mortgagor and the mortgagor was adjudicated a bankrupt in December of 1952. In essence, therefore, the first cause of action seeks to set aside the mortgage on the theory that it is a chattel mortgage which under the New York Lien Law, McK.Consol.Laws, c. 33, §§ 230, 232, should have been recorded in New York and that the failure to so record invalidated the mortgage.- Defendant contends that the Honduras registry and the fact that the vessels were outside the State of New York at the time of the making of the mortgage renders New York law inapplicable. Cf. New York Trust Company v. Island Oil & Transport Co., 2 Cir., 1929, 33 F.2d 104, 79 A.L.R. 1007; In re Greene, D.C.Conn. 1904,134 F. 137; In re Nuckols, D.C.E.D. Tenn.1912, 201 F. 437. Defendant further urges that the validity of a lien is determined by the law of the place creating the lien, that Honduras law therefore controls, and by the affidavit of one Otto Schoenrich, an alleged expert on Honduran law, defendant seeks to demonstrate that the mortgage is valid under Honduran law. Plaintiffs, however, emphasize the fact that the mortgagor and mortgagee are both New York corporations; that the mortgage was exécuted in New York and that more than 85% of the liabilities of the bankrupt (as appears from claims on file with the Referee in Bankruptcy and the records of Seeling & Jarvis, Inc., the shipping agents) are due to New York creditors upon debts apparently contracted in New York. The domicile of the owner and not the registry, plaintiffs contend, determines the nationality of a vessel. It has been so held in Gerradin v. United Fruit Co., D.C.E.D.N.Y.1931, 51 F.2d 417, affirmed 2 Cir., 60 F.2d 927, certiorari denied 287 U.S. 642, 53 S.Ct. 92, 77 L.Ed. 556, where the court concluded that the Jones Act, 46 U.S.C.A. § 688, governed" }, { "docid": "23030296", "title": "", "text": "determine whether under § 70, sub. c the belated filing by the mortgagee was valid or invalid as against the Trustee. Nor is the position of the Trustee aided by § 70, sub. e of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. e, making void as against a Trustee any “obligation incurred by a debtor adjudged a bankrupt * * * which, under any Federal or State law applicable thereto, is * * * voidable * * * by any creditor of the debtor, having a claim provable * * * ” against the estate. Under New York law this chattel mortgage was invalid only as to creditors of Reilly becoming such prior to October 5, 1950, when the mortgage was filed at Watervliet, and unless there was at least one such creditor the belated filing was nevertheless good as against the Trustee. See Zamore v. Goldblatt, 2 Cir., 1952, 194 F.2d 933; In re Myers, supra. Here again the record is deficient, since it fails to show that any of the bankrupt’s creditors had become creditors pri- or to October 5, 1950. So again we are not in a position to determine whether under § 70, sub. e the mortgage was valid or invalid as against the Trustee. In light of these controlling considerations, it becomes clear that on this record the order below cannot stand. However, rather than reversing for dismissal, we are constrained to remand the case to the District Court for further findings, with instructions to grant the appellant’s lien petition if it be found that the petition in bankruptcy was filed after October 5, 1950, and that none of the bankrupt’s creditors, having a provable claim, became a creditor prior to October 5, 1950, and otherwise to dismiss the petition. Reversed and remanded. On Petition for Rehearing PER CURIAM. Appellant’s Petition for Rehearing sets forth nothing which persuades us that we were wrong in concluding that the chattel mortgage was not timely filed. We must therefore deny the Petition for Rehearing. The Court, however, sua sponte takes this occasion to correct the opinion already" }, { "docid": "21519932", "title": "", "text": "SWAN, Circuit Judge. More than a year prior to its bankruptcy, Greeulio-Halliday Company had executed a mortgage to Dora Halliday on real estate in the city of New York. This mortgage was promptly recorded on April 3,1930. On May 5, 1931, the mortgagee commenced an action of foreclosure in the Supreme Court of New 'York county and on that date served upon the mortgagor a copy of the summons and complaint. Before the mortgagor’s appearance or answer was due, it was adjudicated bankrupt upon its voluntary petition filed May 18,1931. No receiver in bankruptcy was appointed and no trustee was elected until July 9, 1931. In the meantime, Halliday proceeded with her foreclosure action without disclosing to the state court that the mortgagor had been adjudicated bankrupt and without obtaining leave from the bankruptcy court. The mortgagor was defaulted, a foreclosure decree entered, a sale made thereunder, and a deed issued by a judicial officer to the mortgage© as purchaser. Apparently under this deed, or at least at some time after the adjudication in bankruptcy, Halliday took possession of the property, for the trustee’s petition prays that she he required to turn over possession all hough it alleges that the bankrupt was in possession at the date of adjudication. The trustee’s petition sets up the foregoing facts, and others intended to show that the mortgage waj invalid under state law. It asserts that the foreclosure proceedings are a cloud upon the trustee’s title and asks that they bo declared void. It also asks that Halliday deliver to the trastee possession of tho property and a deed therefor, that the mortgage be declared void, that the trustee he authorized to sell the property free and clou’ of the alleged mortgage, and that Halliday be restrained pendente lite from transferring or incumbering the title. She was served with an order to show cause why the petition should not bo granted returnable before the referee on August 3, 1931, and she appeared specially to- challenge jurisdiction. It must be admitted that Halliday was asserting bona fide a claim to property held adversely to" } ]

[ { "docid": "3590348", "title": "", "text": "SCHROEDER, Circuit Judge: This is a citizen suit brought under the Clean Water Act (“CWA” or “Act”) to compel the Environmental Protection Agency (“EPA”) to implement the Act’s provisions requiring the EPA to establish total maximum daily loads (“TMDLs”) for Aaskan waters in order to achieve desired standards of water quality. Plaintiffs in this suit are four environmental organizations and their members (collectively, “ACE”) who have alleged that they use Aaskan waters and are adversely affected by the EPA’s failure to establish the required TMDLs. The district court issued an injunction aimed at bringing about EPA compliance with the Act. The EPA appeals, challenging plaintiffs’ standing and certain remedial aspects of this injunction order. We affirm. I. Background. The background of this action and the statutory scheme of the CWA are excellently summarized in the district court’s first published opinion in this case granting partial summary judgment in favor of the plaintiffs and holding that the EPA was in flagrant violation of the mandatory requirements of the Act. Alaska Center for the Environment v. Reilly, 762 F.Supp. 1422 (W.D.Wa.1991) (“ACE I ”). As the district court explained, the CWA was passed in 1972 to “ ‘restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’” 762 F.Supp. at 1424 (quoting the CWA, 33 U.S.C. § 1251). Its laudable but unattained goal was to eliminate the discharge of pollutants into navigable waters by 1985. Id. To aid in enforcement of the Act, § 505(a) authorizes citizens to bring suit in federal court against the EPA for failing to perform a mandatory “act or duty” set forth in the CWA. 33 U.S.C. § 1365(a). The plaintiffs filed this suit pursuant to that section, alleging that the EPA had not performed mandatory duties under the statute to protect the waters of Alaska from further degradation. In their successful motion for partial summary judgment, plaintiffs demonstrated that the EPA had engaged in a pattern of total inaction in carrying out its duties under the CWA that extended over a period of approximately 12 years. The provisions of the CWA at issue" } ]

[ { "docid": "13177437", "title": "", "text": "MILAN D. SMITH, JR., Circuit Judge: Plaintiffs-Appellees, National Resources Defense Council (NRDC) and Waterkeep er Alliance Inc. (collectively, NRDC), sued Defendants-Appellants, the United States Environmental Protection Agency and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the Administrative Procedure Act (APA), seeking to compel the EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water pollution discharges caused by the construction and development industry (construction industry). The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-in-tervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA. The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision, CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2), denied Defendants’ motion to dismiss, granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry, and issued a permanent injunction compelling the EPA to do so. We have jurisdiction to review these decisions under 28 U.S.C. §§ 1291 and 1292(a), and we affirm. BACKGROUND A. Statutory Background Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of the CWA’s objective of eliminating the “discharge of pollutants into the navigable waters,” id., the Act prohibits the “discharge of any pollutant.” CWA § 301(a), 33 U.S.C. § 1311(a). The CWA defines the “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” CWA § 502(12), 33 U.S.C. § 1362(12). A “point source” is “any discernable, confined and discrete conveyance, including but not limited to[,] any pipe, ditch, channel ... from which pollutants are or may be discharged.” CWA § 502(14). Despite § 301(a)’s general prohibition on the discharge of pollutants, the CWA also establishes a permit system that authorizes the discharge of some pollutants — the National Pollutant Discharge Elimination System (NPDES). See CWA § 402, 33 U.S.C. §" }, { "docid": "4449097", "title": "", "text": "HARRISON L. WINTER, Chief Judge: Simkins Industries, Inc. (Simkins) appeals from a judgment entered against it in a citizen suit brought by Sierra Club pursu ant to § 505 of the Clean Water Act, 33 U.S.C. § 1365. The district court held that Simkins was liable under the Clean Water Act for failing to comply with the terms and conditions of Simkins’ National Pollutant Discharge Elimination System (NPDES) permit by failing to file quarterly reports from August 1, 1981, to March 31, 1984, Sierra Club v. Simkins Industries, Inc., 617 F.Supp. 1120 (D.Md.1985) (granting partial summary judgment on liability), and assessed civil penalties in the amount of $977,000 ($1,000 per day of violation). Simkins argues on appeal that Clean Water Act citizen suits may not be properly founded on such reporting violations and that citizen-plaintiff Sierra Club has not established a continuing violation within the meaning of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., — U.S. —, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). We disagree. We also perceive no merit in Simkins’ challenges to Sierra Club’s standing; the district court’s calculation of civil penalties; and the district court’s denial of Simkins’ belated motion for recusal. We therefore affirm the district court’s judgment on liability and civil penalties. I. The Clean Water Act (Act), 33 U.S.C. §§ 1251 et seq. (1982 and West Supp.1988), originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Section 301(a) of the Act, 33 U.S.C. § 1311(a), generally prohibits the discharge of pollutants into navigable waters unless the point source has obtained a permit from the Environmental Protection Agency (EPA). Under a procedure established by Congress in § 402 of the Clean Water Act, 33 U.S.C. § 1342, the EPA Administrator may delegate to a state the authority to administer the NPDES program with respect to point sources in that state, and the source state may set more stringent minimum effluent levels supplanting federal standards. A violation of an NPDES" }, { "docid": "17016822", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Eighteen petitioners from six consolidated actions seek review and reversal of a series of final effluent limitation guidelines for the coastal oil- and gas-producing industry, promulgated on January 15, 1997 by the United States Environmental Protection Agency (“EPA”) pursuant to Sections 301, 304, 306-OS, and 501 of the Clean Water Act (“CWA” or “Act”), 33 U.S.C. §§ 1311, 1314, 1316-18, 1361. Three of the petitioners also seek review of a general National Pollution Discharge Elimination System permit issued on January 9, 1995 by EPA Region 6 (“Region 6”) pursuant to Section 402 of the CWA, 33 U.S.C. § 1342. Petitioners challenge the EPA’s promulgation of zero discharge limits on produced water and produced sand, the EPA’s decision to set more lenient discharge limits for coastal facilities in Cook Inlet, Alaska than for other coastal facilities, and Region 6’s issuance of a general permit banning the discharge of produced water from coastal facilities in Texas. For reasons that follow, we uphold the EPA’s zero discharge limits for produced water and produced sand in the effluent limitation guidelines and its order setting more lenient discharge limits for produced water and drilling wastes in Cook Inlet. This decision makes it unnecessary for us to reach the challenges to the general permit. I. Congress enacted the CWA in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As part of this mission, the Act declared a national goal that the discharge of pollutants into the navigable waters be eliminated by 1985. 33 U.S.C. § 1251(a)(1). It was designed to achieve this goal through a system of effluent limitations guidelines (“ELGs”) and National Pollutant Discharge Elimination System (“NPDES”) permits that set technology-based discharge limits for all categories and subcategories of water pollution point sources. Although the statutory framework of the CWA has already been detailed at length by both the Supreme Court and this Court, see EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); Am. Petroleum Inst. v. EPA 661 F.2d 340" }, { "docid": "8656323", "title": "", "text": "to dismiss [# 17] and plaintiffs’ motion for a preliminary injunction and expedited hearing [# 51]. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that defendants’ motion to dismiss must be granted because this court lacks subject matter jurisdiction of this action. I. BACKGROUND In passing the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. §§ 1251-1387, Congress established a comprehensive regulatory scheme to control the discharge of waste and pollutants into the nation’s navigable waters. The Act’s objective is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. The Act makes unlawful any pollutant discharges into navigable waters, except as authorized by other provisions of the CWA, 33 U.S.C. §§ 1311(a), 1342, and requires the promulgation of effluent limitations which set the maximum allowable quantities, rates and concentrations of different pollutants that “point sources” may discharge into waters. 33 U.S.C. § 1362(11). Point sources are simply “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The EPA enforces the CWA through the National Pollutant Discharge Elimination System (“NPDES”). Under this system, the EPA has the discretion to issue permits for the discharge of otherwise prohibited pollutants, after a public hearing and subject to conditions set by the Administrator. 33 U.S.C. § 1342(a)(1). The Administrator may also authorize states to establish their own permit programs, which must conform with federal requirements. See 33 U.S.C. §§ 1314®, 1342(b). EPA has authorized forty-five states, including the states where plaintiffs are located, to issue permits. Permits in the remaining states are issued by EPA itself. Authorized states must issue NPDES permits in accord with the provisions of the CWA and are subject to EPA oversight. 33 U.S.C. § 1342(b)-(c). Specifically, within ninety days after a state issues an NPDES permit, the EPA Administrator, or EPA regional administrator, may object in writing to an issued permit, rendering it invalid. See 33 U.S.C. § 1342(d)(2); 40 C.F.R § 123.44. Under the Clean" }, { "docid": "5636319", "title": "", "text": "MEMORANDUM OPINION AND ORDER DIANA E. MURPHY, Chief Judge. Plaintiffs Sierra Club, North Star Chapter, Izaak Walton League of America, Inc., Minnesota Division, St. Paul Audubon Society and Project Environment Foundation (collectively the Sierra Club Group) sued Carol M. Browner, as Administrator of the United States Environmental Protection Agency (EPA) to compel her to comply with her duties under the Clean Water Act (the Act), 33 U.S.C. §§ 1251-1387. Plaintiffs seek declarations that the Administrator has violated the Act and the Administrative Procedure Act (APA) and injunctive relief. Plaintiffs and defendants now move for summary judgment. I. Congress passed the Act to restore “the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Under the Act, pollution sources are divided into two categories: point sources and non-point sources. A point source is “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged”. 33 U.S.C. § 1362(14). Nonpoint sources are any other source of pollution, such as agricultural runoff. No pollution may be released from a point source unless it satisfies requirements provided in the Act. 33 U.S.C. § 1311. Those requirements include the National Pollutant Discharge Elimination System (NPDES) permit process which sets quantitative limits on the amount of pollutants released from each point source. 33 U.S.C. § 1342. The Act leaves regulation of nonpoint pollution to the states. The Act also provides a water quality-based approach to achieving its goals. Section 303(a) of the Act requires each state to adopt water quality standards for its waters. The states must identify the uses of the waters and the amount of pollution that would impair the uses. 33 U.S.C. § 1313(a)-(c). After developing water quality standards, the state must identify waters which would not be able to meet the water quality standards even after other Act pollution controls, such as the NPDES permit process, are implemented. Such waters are water qualify limited segments (WQLSs). 33 U.S.C. § 1313(d). After the WQLSs are identified, the state must give them a priority ranking based on the severity of pollution and the uses of the" }, { "docid": "152847", "title": "", "text": "ORDER SHOOB, Senior District Judge. This action is brought pursuant to section 505(a)(2) of the Federal Water Pollution Control Act, as amended, otherwise known as the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA), and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (APA). Plaintiffs are environmental organizations seeking to compel the United States Environmental Protection Agency (EPA) to implement certain provisions of the Clean Water Act in Georgia that require EPA to identify environmentally impaired waters known as water quality limited segments (WQLSs) and to establish total maximum daily loads (TMDLs) of pollutants for the water quality limited segments to achieve the Clean Water Act’s water quality standards. The parties have filed cross-motions for summary judgment. The Court has thoroughly reviewed the record and conducted oral arguments. The undisputed facts show that Georgia has hundreds of heavily polluted waters that do not attain applicable water quality standards. Despite this fact, Georgia has failed for over sixteen years to comply with the Clean Water Act’s requirement that states identify total maximum daily loads of pollutants in waters that do not attain applicable standards. At its current pace, Georgia will take more than one hundred years to comply with the Clean Water Act. The Court concludes that EPA’s approval of Georgia’s totally inadequate TMDL submissions and schedule for submission of TMDLs is arbitrary and capricious in violation of the Administrative Procedures Act and, therefore, plaintiffs are entitled to summary judgment on the total maximum daily load issue. On the water quality limited segment issue, the Court denies both parties’ motions for summary judgment because the Court concludes that there is a genuine issue of material fact as to whether EPA’s approval of Georgia’s 1994 WQLS list was arbitrary and capricious in violation of the Administrative Procedures Act. Clean Water Act The Clean Water Act was passed in 1972 to “ ‘restore and maintain the chemical, physical and biological integrity of the nation’s waters.’ ” 33 U.S.C. § 1251. The Clean Water Act focuses on two potential sources of pollution: point sources and nonpoint sources. A point source" }, { "docid": "15368955", "title": "", "text": "HARLINGTON WOOD, Jr., Circuit Judge. American Paper Institute (API) and four paper and pulp mill owners challenge the federal Environmental Protection Agency’s (EPA’s) authority to object to permits proposed by the Wisconsin Department of Natural Resources (WDNR) and to promulgate antidegradation regulations under the water pollution control statute, 33 U.S.C. §§ 1251-1376. The EPA claims that this court lacks subject matter jurisdiction to review API’s claims. It argues in the alternative that the claims are not ripe for review. We agree with the EPA that we lack subject matter jurisdiction to hear either of API’s claims and do not reach either the question of ripeness or the substantive merits of API’s appeal. We therefore dismiss API’s petition. I. BACKGROUND A. Structure of the Clean Water Act Disturbed over the ineffectiveness of existing water pollution control, Congress restructured the Federal Water Pollution Control Act (FWPCA) in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In the 1972 amendments, Congress specifically outlined its goals: to have “fishable and swimmable” waters by 1983 and to eliminate all pollutant discharges into navigable waters by 1985. In 1977 Congress amended the stat ute again through the Clean Water Act but did not change the primary structure of the program implemented in 1972. Under the Act, the primary means of imposing water pollution control on dis-chargers or “point sources” is a permit system called the National Pollutant Discharge Elimination System (NPDES). Each point source must obtain a NPDES permit before it may emit identified pollutants into American waters. The NPDES permit restricts the quantity, rate, and concentration of pollutants that the point source may emit into the water and provides a schedule for compliance with the water quality standards and effluent limitations applicable to that point source. Any discharge without a NPDES permit is illegal. 33 U.S.C. § 1311(a). The EPA administers the NPDES program in each state unless the EPA previously authorized a state program to issue NPDES permits. 33 U.S.C. § 1342(b). Thirty-nine states presently have their own permit-issuing programs over which the" }, { "docid": "14202890", "title": "", "text": "FERGUSON, Circuit Judge: The American Mining Congress (“AMC”) challenges the Environmental Protection Agency’s (“EPA’s”) recent Clean Water Act (“CWA”) storm water discharge rule, National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed.Reg. 47,-990, 48,065 (1990) (to be codified at 40 C.F.R. § 122.26(b)(14)(iii)), because it requires storm water discharge permits for “inactive mining operations.” Id. at 48,-065. AMC contends that the rule contravenes Congressional intent, is arbitrary and capricious, is improperly retroactive, and was promulgated in violation of certain procedural requirements. We uphold EPA’s storm water rule. I BACKGROUND Congress enacted the CWA , 33 U.S.C.A. §§ 1251-1387 (West 1986 & Supp.1991), “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C.A. § 1251(a). See Rybachek v. EPA, 904 F.2d 1276, 1282 (9th Cir.1990). The Act seeks to accomplish this objective principally by controlling “point source” pollution. The Act prohibits the “discharge of any pollutant” from a point source except as authorized by a National Pollutant Discharge Elimination System (“NPDES”) permit. See CWA § 301(a), 33 U.S.C. § 1311(a); CWA § 402, 33 U.S.C. § 1342. The CWA authorizes EPA to issue an NPDES permit, containing conditions that implement various requirements of the Act. CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1). Storm water discharges are a significant source of environmental pollution. 55 Fed. Reg. at 47,990-92; see 132 Cong.Rec. 32,-381 (1986). Since 1973, EPA has issued several rules that have attempted to address the appropriate regulation of storm water runoff. Each rule has been the focus of substantial controversy. Following the enactment of the CWA in 1972, EPA promulgated NPDES permit regulations exempting uncontaminated storm water discharges from regulation on the basis of administrative infeasibility. These regulations were challenged and set aside in NRDC v. Costle, 568 F.2d 1369, 1377 (D.C.Cir.1977), on the ground that EPA could not exempt categories of point sources from the statute’s permitting requirements. Following this decision, EPA issued proposed and final rules covering storm water discharges in 1980, 1982,1984, 1985 and 1988. These rules were challenged at the administrative level and" }, { "docid": "18274441", "title": "", "text": "Inc., 299 F.3d 1007, 1016 (9th Cir.2002) (noting that, in 1972, “Congress passed the Clean Water Act amendments, 33 U.S.C. §§ 1251-1387, to respond to environmental degradation of the nation’s waters.”); Natural Resources Def. Council (“NRDC”) v. EPA, 822 F.2d 104, 109 (D.C.Cir.1987) (citing 33 U.S.C. § 1311(a)). In substantial part, EPIC alleges that PALCO has used a variety of “point sources,” see 33 U.S.C. § 1362(14), to discharge pollutants without first securing necessary NPDES permits. Absent such permits, EPIC claims, PAL-CO’s system conflicts with defendants’ CWA obligations. II. Statutory and Regulatory Background With the goal of “restoring] and maintaining] the chemical, physical, and biological integrity of the Nation’s waters,” Congress enacted the CWA in 1972. 33 U.S.C. § 1251(a) (originally codified as the Federal Water Pollution Control Act, 62 Stat. 1155); see Association to Protect Hammersley, 299 F.3d at 1016; Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir.2002) (observing that prior federal water pollution regulation “had proven ineffective”), cert. denied, 539 U.S. 926, 123 S.Ct. 2573, 156 L.Ed.2d 602 (2003). Built on a “fundamental premise” that the unauthorized “discharge of any pollutant by any person shall be unlawful,” NRDC v. EPA 822 F.2d at 109 (citing 33 U.S.C. § 1311(a)), the CWA “establishes a comprehensive statutory system for controlling water pollution.” Association to Protect Hammersley, 299 F.3d at 1009 (citation and internal quotation marks omitted). This broad statutory scheme includes, inter alia, a National Pollutant Discharge Elimination System (NPDES) for regulation of pollutant discharges into the waters of the United States. See 33 U.S.C. §§ 1311(a), 1342(a). Under the NPDES, permits may be issued by EPA or by states that have been authorized by EPA to act as NPDES permitting authorities. See 33 U.S.C. § 1342(a)-(b); see also Environmental Def. Ctr., Inc., 344 F.3d at 841 (holding that pollution dischargers must comply with “technology-based pollution limitations (generally according to the ‘best available technology economically achievable,’ or ‘BAT’ standard).”); NRDC v. EPA 822 F.2d at 110 (noting that, when necessary, water quality-based standards may supplement technology standards). California has been so authorized. Not all pollutants or pollution sources fall" }, { "docid": "9417382", "title": "", "text": "ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ROTHSTEIN, Chief Judge. THIS MATTER comes before the court on plaintiffs’ motion for partial summary judgment. Having reviewed the motion, together with all documents filed in support and in opposition, having heard oral argument and being fully advised, the court finds and rules as follows: Plaintiffs Alaska Center for the Environment, et al. (collectively “ACE”), move for partial summary judgment against defendants U.S. Environmental Protection Agency, et al. (collectively “EPA”), on the issue of liability under the Clean Water Act. If the motion is granted, plaintiffs indicate they will file a motion to compel the EPA to perform its duties under § 303(d) of the Act pursuant to a schedule developed by the court. I. FACTUAL BACKGROUND Plaintiffs have filed this citizen suit to compel the EPA to perform what plaintiffs believe is a mandatory duty to implement certain water quality protection measures under the Clean Water Act (“CWA” or “the Act”). A. Water Pollution Regulation Congress passed the Federal Water Pollution Control Act (commonly referred to as the CWA) in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Sec. 101(a), 38 U.S.C. § 1251. In order to achieve that objective, Congress declared as a “national goal” that “the discharge of pollutants into the navigable waters be eliminated by 1985.” Id., § 101(a)(1). EPA’s regulatory program for water protection focuses on two potential sources of pollution: point sources and nonpoint sources. Point source pollution was addressed in the 1972 amendments to the Act, where Congress prohibited the discharge of any pollutant from any point source into certain waters unless that discharge complies with the Act’s specific requirements. Secs. 301(a) and 502(12), 33 U.S.C. §§ 1311(a) and 1362(12). Under this approach, compliance is focused on technology-based controls for limiting the discharge of pollutants through the National Pollution Discharge Elimination System (“NPDES”) permit process. When these requirements are found insufficient to clean up certain rivers, streams or smaller water segments, the Act requires use of a water-quality based approach. States are required to identify such waters and" }, { "docid": "19594700", "title": "", "text": "of § 1311(a). The court, however, deferred to the VDEQ's understanding that the two conditions in Dominion's discharge permit identified in Sierra Club's complaint did not cover the groundwater contamination at issue and ruled against Sierra Club on the claims alleging breach of those conditions. Dominion appealed, and Sierra Club cross-appealed. Because we conclude that the landfill and settling ponds on the Chesapeake site do not constitute \"point sources\" as that term is defined in the Clean Water Act, we reverse the district court's ruling that Dominion was liable under § 1311(a) of the Act. We agree, however, with the district court's conclusion that the conditions in Dominion's discharge permit did not regulate the groundwater contamination at issue and affirm on those claims. I The Clean Water Act was enacted in 1972 with the stated objective \"to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.\" 33 U.S.C. § 1251(a). To those ends, the Act prohibits the \"discharge of any pollutant by any person\" into navigable waters unless otherwise authorized by the Act. Id . § 1311(a). The \"discharge of a pollutant\" is defined as \"any addition of any pollutant to navigable waters from any point source.\" Id . § 1362(12). And \"point source\" is defined as \"any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.\" Id . § 1362(14). Accordingly, the addition of pollutants to navigable waters from nonpoint sources does not violate § 1311(a). See Appalachian Power Co. v. Train , 545 F.2d 1351, 1373 (4th Cir. 1976) (\"Congress consciously distinguished between point source and nonpoint source discharges, giving EPA authority under the [Clean Water] Act to regulate only the former\"). As recognized in § 1311(a), the Act does provide for the issuance of permits authorizing the discharge of pollutants into navigable waters in compliance with specified effluent standards. In 50 U.S.C. § 1342(a), the Act established the National Pollutant Discharge Elimination System, under which the EPA may \"issue a permit for the discharge of any pollutant\" provided that the authorized discharge complies with the effluent standards specified" }, { "docid": "197291", "title": "", "text": "matter to the EPA for further proceedings consistent with these opinions. I. BACKGROUND A. Statutory and Regulatory Framework The Federal Water Pollution Control Act, commonly known as the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., “is a comprehensive water quality statute de signed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ ” PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (quoting 33 U.S.C. § 1251(a)). In passing the CWA, Congress sought to eliminate “the discharge of pollutants into the [nation’s] navigable waters” and to attain “an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a)(1)-(2). To achieve these goals, the CWA “provides for two sets of water quality measures.” Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). First, the CWA requires the EPA “to establish and enforce technology-based limitations on individual discharges into the country’s navigable waters from point-sources.” PUD No. 1 of Jefferson County., 511 U.S. at 704, 114 S.Ct. 1900 (citing 33 U.S.C. §§ 1311, 1314). These effluent limitations “restrict the quantities, rates, and concentrations of specified substances which are discharged from point sources.” Arkansas v. Oklahoma, 503 U.S. at 101, 112 S.Ct. 1046. In order to comply with the CWA, an individual point-source dis-charger must obtain and adhere to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued by the EPA or an EPA-authorized state agency. 33 U.S.C. § 1342(a)-(d). The EPA has authorized Kentucky to issue NPDES permits for waters within the Commonwealth, see Approval of Kentucky’s NPDES Program, 48 Fed.Reg. 45,597 (Oct. 6, 1983), under a program referred to as the Kentucky Pollution Discharge Elimination System (“KPDES”). 401 Ky. Admin. Regs. 5:050 (2007). Second, § 303 of the CWA “requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters.” PUD No. 1 of Jefferson County, 511 U.S. at 704, 114" }, { "docid": "9417383", "title": "", "text": "as the CWA) in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Sec. 101(a), 38 U.S.C. § 1251. In order to achieve that objective, Congress declared as a “national goal” that “the discharge of pollutants into the navigable waters be eliminated by 1985.” Id., § 101(a)(1). EPA’s regulatory program for water protection focuses on two potential sources of pollution: point sources and nonpoint sources. Point source pollution was addressed in the 1972 amendments to the Act, where Congress prohibited the discharge of any pollutant from any point source into certain waters unless that discharge complies with the Act’s specific requirements. Secs. 301(a) and 502(12), 33 U.S.C. §§ 1311(a) and 1362(12). Under this approach, compliance is focused on technology-based controls for limiting the discharge of pollutants through the National Pollution Discharge Elimination System (“NPDES”) permit process. When these requirements are found insufficient to clean up certain rivers, streams or smaller water segments, the Act requires use of a water-quality based approach. States are required to identify such waters and designate them as “water quality limited.” The states are then to establish a priority ranking for these waters, and in accordance with that ranking, to establish more stringent pollution limits called “total maximum daily loads” or “TMDLs.” 33 U.S.C. §§ 1313(d)(1)(A), (C). TMDLs are the greatest amount of a pollutant the water body can receive daily without violating a state’s water quality standard. The TMDL calculations help ensure that the cumulative impacts of multiple point source discharges are accounted for, and are evaluated in conjunction with pollution from other nonpoint sources. States are then required to take whatever additional cleanup actions are necessary, which can include further controls on both point and nonpoint pollution sources. As a recent GAO report concluded, the TMDLs process: provides a comprehensive approach to identifying and resolving water pollution problems regardless of the sources of pollution. If implemented, the TMDL process can provide EPA and the states with a complete listing of key water pollutants, the source of the pollutants, information on the amount of pollutants that need to be" }, { "docid": "16812274", "title": "", "text": "ORDER AND OPINION HUG, Circuit Judge. ORDER The Opinion filed on April 15, 2002, and reported at 287 F.3d 764, is withdrawn and the opinion attached to this order shall be filed in its place. With the filing of the opinion, the panel unanimously votes to deny the petition for rehearing. Judge Tashima votes to deny the petition for rehearing en banc and Judges Hug and Cudahy so recommend. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. Fed. R.App. P. 35(b). OPINION San Francisco BayKeeper, an environmental group, filed this action under the Clean Water Act (“CWA”), 33 U.S.C. § 1365(b), seeking a declaration that the State of California had failed to implement an adequate water pollution control program and failed to establish total maximum daily loads (“TMDL”) of pollutants which could be introduced into polluted waters. BayKeeper contended that California was years behind in implementing a TMDL program, and consequently the U.S. Environmental Protection Agency (“EPA”) had a non-discretionary duty to establish water pollution standards for California because the State had failed to make the required submissions. Bay-Keeper appeals the district court’s dismissal of this claim on partial summary judgment, certified pursuant to Fed. R.Civ.P. 54(b). BayKeeper also challenges the district court’s reliance on the EPA’s Program Review document. We affirm. I. BACKGROUND A. Statutory Background In 1972, Congress passed the Clean Water Act (“CWA” or “Act”) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. In order to attain this objective, Congress sought to eliminate the discharge of pollutants into the navigable waters by 1985. Id. The Act focuses on two possible sources of pollution: point sources and nonpoint sources. Congress dealt with the problem of point source pollution using the National Pollution Discharge Elimination System (“NPDES”) permit process. Under this approach, compliance rests on technology-based controls that limit the discharge of pollutants from any point source into certain waters unless that discharge complies with the Act’s specific requirements. 33" }, { "docid": "3509195", "title": "", "text": "TACHA, Chief Circuit Judge. This appeal presents a challenge by Appellant American Wildlands to the Environmental Protection Agency’s (“the EPA”) approval pursuant to the Clean Water Act of certain of Montana’s water quality standards. Specifically, two questions are presented to this court for review: (1) whether the EPA properly approved Montana’s statutory exemption from antidegradation review of nonpoint sources of pollution; and (2) whether the EPA properly approved Montana’s mixing zone policies and procedures. The district court held in favor of the EPA. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Statutory and Regulatory Scheme A. Point and Nonpoint Source Discharges The Clean Water Act (“the Act”) was adopted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve this goal, Congress prohibited the discharge from a point source of any pollutant into the waters of the United States unless that discharge met specific requirements set forth in the Act. 33 U.S.C. § 1311(a). “Point source” is defined by the Act to mean: “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Further, a “pollutant” is defined as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6). In order for point source discharges to be in compliance with the Act, such discharges must adhere to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to the Act. 33 U.S.C. § 1342. NPDES permits are issued by the EPA or, in certain jurisdictions, by state agencies authorized to do so by the EPA. 33 U.S.C. § 1342(a)-(d). Unlike point source discharges, nonpoint source discharges are not defined by the Act. One court has described nonpoint source pollution as “nothing more that a [water] pollution problem not involving a discharge from a point source.” Nat’l Wildlife Federation v. Gorsuch, 693 F.2d 156, 166 n." }, { "docid": "17252345", "title": "", "text": "and revised water quality standards without EPA’s prior approval and EPA’s continued incorporation and use of water quality standards that were disapproved by EPA on December 24, 1998 and January 26, 1999 is arbitrary, capricious, an abuse of discretion in violation of § 303(c)(3) of the CWA, 33 U.S.C. § 1313 and the APA. III.Jurisdiction. Jurisdiction exists under 33 U.S.C. § 1365(a)(2). “The district court shall have jurisdiction ... to enforce such an effluent standard or limitation, or such an order, or to order the administrator to perform such act or duty.” 33 U.S.C. § 1365(a)(2). “Where questions of due process and sufficiency of the evidence are raised on appeal from an agency’s final decision, the district court must review the agency’s decision making process and conduct a plenary review of the facts underlying the challenged action.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1565 (10th Cir.1994). IV.Background. A. Clean Water Act. Congress passed the CWA in an effort to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of these goals, § 1251(a)(7) states, “it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.” 33 U.S.C. § 1251(a)(7). In short, Congress prohibited the discharge from a point source of any pollutant into waters of the United States unless that discharge complied with specific requirements of the CWA. 33 U.S.C. § 1311(a). Compliance with these requirements may be achieved by obtaining and abiding by the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to § 402 of the CWA. 33 U.S.C. § 1342. When a state revises or adopts a new standard for water, such standards must be submitted to the Administrator of the EPA (“Administrator”), and shall be established taking into account their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and" }, { "docid": "12438355", "title": "", "text": "ORDER TIMOTHY M. BURGESS, District Judge. I. INTRODUCTION This is an action by two environmental groups—Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club (“Plaintiffs”)—against the Alaska Railroad Corporation and Aurora Energy Services, LLC (“Defendants”) for violations of the Clean Water Act at the Seward Coal Loading Facility. Plaintiffs and Defendants have filed cross motions for summary judgment on each of Plaintiffs’ claims. Each motion was fully briefed. On March 6, 2013, the parties presented oral argument on their motions. For the reasons discussed below, Plaintiffs’ motion for summary judgment is DENIED, and Defendants’ motion for summary judgment is GRANTED, in part, and DENIED, in part. Both parties have filed motions to strike certain documents from the opposing parties’ summary judgment motion. These motions are DENIED. II. BACKGROUND A. The Clean Water Act Congress enacted the Clean Water Act (“CWA”) in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Consistent with this purpose, the CWA prohibits “the discharge of any pollutant by any person” to navigable waters “except in compliance” with other provisions of the CWA, including the National Pollution Discharge Elimination System (“NPDES”) permitting requirements (codified at 33 U.S.C. § 1342). The NPDES “requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters.” The phrase “discharge of any pollutant” is “defined broadly” to mean “any addition of any pollutant to navigable waters from any point source.” “Pollutant” is defined “to include not only traditional contaminates but also solids such as dredged soil, ... rock, sand, [and] cellar dirt.” The , term “navigable waters” means “the waters of the United States, including territorial seas.” The combined effect of these provisions is that “[t]he CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.” The Environmental Protection Agency (“EPA”) is the regulatory authority tasked with administering the NPDES permitting system for each state. However, EPA may delegate its permitting authority to individual states, after which" }, { "docid": "17874955", "title": "", "text": "SEYMOUR, Chief Judge. Appellants Peter Maier, the Intermountain Water Alliance, the Atlantic States Legal Foundation, the Utah Wilderness Association, and Kay Henry petitioned the Environmental Protection Agency (EPA) to initiate rulemaking under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Mr. Maier contended that recent developments in municipal wastewater technology have rendered the EPA’s regulations for secondary treatment inadequate, and therefore the EPA must promulgate new standards. The EPA denied the petition, and Mr. Maier appealed to this court. We affirm. I. A. We start with an overview of the relevant statutory scheme. The CWA aims “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by reducing and eventually eliminating the discharge of pollutants. 33 U.S.C. § 1251(a), (a)(1). “[T]he basic structure of the [CWA] ... translates Congress’ broad goal of eliminating ‘the discharge of pollutants into the navigable waters’ into specific requirements that must be met by individual point sources.” EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 69, 101 S.Ct. 295, 300, 66 L.Ed.2d 268 (1980) (quoting 33 U.S.C. § 1251(a)(1)) (citations omitted). A “point source” is defined as “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The CWA prohibits the discharge of any pollutant from a point source unless that discharge complies with the CWA’s requirements. 33 U.S.C. § 1311(a). Compliance can be achieved by obtaining a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to 33 U.S.C. § 1342, which establishes technology-based controls and ensures compliance with state or federal water quality standards. 33 U.S.C. § 1311(b)(1)(C). These permits generally contain quantitative limits on the amounts of specified pollutants that may be discharged. See generally Oklahoma v. EPA, 908 F.2d 595, 597-98 (10th Cir.1990), rev’d on other grounds sub nom., Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). The CWA mandates varying standards of technology-based treatment as the minimum requirement for different categories of point sources. 33 U.S.C. §§ 1311, 1314. Under section 1311, “effluent limitations for point sources, other than publicly owned" }, { "docid": "152848", "title": "", "text": "daily loads of pollutants in waters that do not attain applicable standards. At its current pace, Georgia will take more than one hundred years to comply with the Clean Water Act. The Court concludes that EPA’s approval of Georgia’s totally inadequate TMDL submissions and schedule for submission of TMDLs is arbitrary and capricious in violation of the Administrative Procedures Act and, therefore, plaintiffs are entitled to summary judgment on the total maximum daily load issue. On the water quality limited segment issue, the Court denies both parties’ motions for summary judgment because the Court concludes that there is a genuine issue of material fact as to whether EPA’s approval of Georgia’s 1994 WQLS list was arbitrary and capricious in violation of the Administrative Procedures Act. Clean Water Act The Clean Water Act was passed in 1972 to “ ‘restore and maintain the chemical, physical and biological integrity of the nation’s waters.’ ” 33 U.S.C. § 1251. The Clean Water Act focuses on two potential sources of pollution: point sources and nonpoint sources. A point source is “any discernible, confined, and discrete conveyance,” including pipes, ditches, conduits, or vessels “from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). A non-point source of pollution is any non-discrete source, such as runoff from agriculture, forestry, and construction activity. Point source pollution is subject to technology-based controls imposed by the National Pollution Discharge Elimination System (NPDES) permit process, which sets quantitative limits on the amount of pollutants released from each point source. Under authority of the CWA, EPA has delegated its duties to establish and administer the NPDES permit program to Georgia, which operates the program through the Department of Natural Resources/Environmental Protection Division (EPD). 33 U.S.C. § 1342(b). Where those controls are insufficient to clean up water bodies, the CWA mandates use of a water quality based approach. 33 U.S.C. § 1313(d). Under the Act’s water quality based approach, states must adopt water quality standards based on the uses of the waters and the amount of pollution that would impair the uses. 33 U.S.C. § 1313(a)-(e). Each state must then" }, { "docid": "16812275", "title": "", "text": "(“EPA”) had a non-discretionary duty to establish water pollution standards for California because the State had failed to make the required submissions. Bay-Keeper appeals the district court’s dismissal of this claim on partial summary judgment, certified pursuant to Fed. R.Civ.P. 54(b). BayKeeper also challenges the district court’s reliance on the EPA’s Program Review document. We affirm. I. BACKGROUND A. Statutory Background In 1972, Congress passed the Clean Water Act (“CWA” or “Act”) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. In order to attain this objective, Congress sought to eliminate the discharge of pollutants into the navigable waters by 1985. Id. The Act focuses on two possible sources of pollution: point sources and nonpoint sources. Congress dealt with the problem of point source pollution using the National Pollution Discharge Elimination System (“NPDES”) permit process. Under this approach, compliance rests on technology-based controls that limit the discharge of pollutants from any point source into certain waters unless that discharge complies with the Act’s specific requirements. 33 U.S.C. §§ 1311(a), 1362(12). When the NPDES system fails to adequately clean up certain rivers, streams or smaller water segments, the Act requires use of a water-quality based approach. States are required to identify such waters, which are to be designated as “water quality limited segments” (“WQLS”). The states must then rank these waters in order of priority, and based on that ranking, calculate levels of permissible pollution called “total maximum daily loads” or “TMDLs.” 33 U.S.C. §§ 1313(d)(1)(A), (C). TMDLs are the maximum quantity of a pollutant the water body can receive on a daily basis without violating the water quality standard. The TMDL calculations are to ensure that the cumulative impacts of multiple point source discharges and nonpoint source pollution are accounted for. States may then institute whatever additional cleanup actions are necessary, which can include further controls on point and nonpoint pollution sources. Under the Act, states are required to submit lists of WQLSs and TMDLs to the EPA at certain times; the first such submission was due by June 26, 1979." } ]

[ { "docid": "18837446", "title": "", "text": "“agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(e) (emphasis added). As clearly shown by the legislative history, however, Congress intended to codify our earlier decision (interpreting more general predecessor language) in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). In that case, we held that the Office of Science and Technology (OST), a distinct entity within the Executive Office of the President, was a FOIA “agency.” Although we acknowledged that OST advised and assisted the President, we emphasized that OST also had inherited from the National Science Foundation “substantial independent authority, ’! such as evaluating federal programs, initiating and supporting research, and awarding scholarships. Id. at 1073-75 (emphasis added); see also Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). OST was a FOIA agency precisely because it could act directly and independently beyond advising and assisting the President. “By virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act.” Soucie, 448 F.2d at 1075. In Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Supreme Court followed the legislative history and held that the Act did not cover “ ‘the President’s immediate personal staff or units , in the Executive Office whose sole function is to advise and assist the President.’ ” Id. at 156, 100 S.Ct. at 971 (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974)) (emphasis added). Shortly after Kissinger, in Pacific Legal Found, v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980), we decided that the Council on Environmental Quality (CEQ), an entity within the Executive Office of the President, was a FOIA agency. But subsequently in Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985), we distinguished the Council of Economic Advisers (CEA) from the CEQ and exempted it from FOIA." } ]

[ { "docid": "5736918", "title": "", "text": "the same basis as ... the Council of Economic Advisers____” Soucie, supra, 448 F.2d at 1074. However, while this reorganization resulted in an administrative unit located, hierarchically, in the same position as CEA, there is no indication that the functional roles of CEA and OST were the same; and, critically, it was the functional role of the agency on which Soucie turned. In Soucie, the court concluded that “[b]y virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act.” Id. at 1075. The court reached this conclusion only after expressly taking into account the fact that OST had assumed the functions of the National Science Foundation; moreover, the court observed that OST was specifically authorized to evaluate the scientific research programs of federal agencies. The court stated: “If the OST’s sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President’s staff and not a separate agency.” It was, rather, the existence of the NSF functions, now vested in OST pursuant to the reorganization, that turned the tide. Those functions included the initiation and support of research, awarding scholarships, fostering the interchange of information and evaluating the status of the sciences in correlating the research and education programs undertaken by the Foundation. See 42 U.S.C. § 1482 (1982). Those functions clearly go beyond advice and assistance. In a word, OST could take direct action and thus was deemed to be an administrative agency. As we will discuss infra, the activities of the CEA and OST differ to the point that the status of CEA is not controlled by Soucie; but at the same time, the test formulated by Soucie is plainly the standard to be applied to determine the Council’s status. The second case from which appellant seeks to draw support is Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980). There, the Council on Environmental Quality (“CEQ”) was held to be an agency for FOIA and" }, { "docid": "13396309", "title": "", "text": "a requirement of “final and binding action”); J.H. Miles & Co., Inc. v. Brown, 910 F.Supp. 1138, 1159 (E.D.Va.1995) (holding that quasi-government fisheries council “is not an ‘authority' of the U.S. Government because it has no ‘authority’ to do anything”). Our cases have followed the same approach, requiring that an entity exercise substantial independent authority before it can be considered an agency for § 551(1) purposes. It is quite true that, apart from its roots in the language of § 551(1) and its legislative history, our “substantial independent authority” test both originated in a case involving an entity in the Executive Office of the President, Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971) (Office of Science and Technology), and has most often been applied in the case of such entities, see Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C.Cir.1996) (National Security Council); Meyer, 981 F.2d at 1291-98 (Task Force on Regulatory Reform); Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1040-43 (D.C.Cir.1985) (Council of Economic Advisers); Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1263 (D.C.Cir.1980) (Council on Environmental Quality); cf. Sweetland v. Walters, 60 F.3d 852 (D.C.Cir.1995) (Executive Residence of the President, deemed “analogous” to a unit of the Executive Office of the President). In such cases, naturally, much of the focus was on the independence aspect of the formula, since obviously the President exercises authority, and those who have his ear must at a minimum possess some degree of derivative authority. But the requirement of authority derives both from the statutory language itself and from legislative history characterizing the requisite type of authority (“final and binding,” see H.R. Rep. No. 1980, 79th Cong., 2d Sess., at 19 (1946), cited in Washington Research Project, 504 F.2d at 248-49 n. 15), and we have applied the requirement in at least two cases not involving presidential power at all. In Energy Research Foundation we applied it to the Defense Nuclear Facilities Safety Board, 917 F.2d at 584-85 (finding it covered because of its investigative and evaluative powers), and in Washington Research Project we held that" }, { "docid": "18933768", "title": "", "text": "we understand it to have recognized Congress’s intent to codify the entirety of the Soucie test for entities within the Executive Office of the President. We therefore consider both the “sole function” and “substantial independent authority” prongs of Soucie analysis in deciding whether the NSC is an agency subject to the FOIA. C. The D.C. Circuit’s Experience with Soucie Analysis Before ourselves applying Soucie analysis to the NSC, we acknowledge the considerable experience of the Court of Appeals for the District of Columbia Circuit in applying this analysis to various units within the Executive Office of the President. Since Soucie, that court has twice held such units to be agencies. See Pacific Legal Found, v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980) (Council on Environmental Quality); Sierra Club v. Andrus, 581 F.2d 895 (D.C.Cir.1978) (Office of Management and Budget), rev’d on other grounds sub nom. Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). Once, in the absence of any dispute on the point, that court appears to have assumed a unit’s agency status, while nevertheless holding the re quested document exempt from FOIA disclosure. See Center for Int’l Envtl. Law v. Office of U.S. Trade Representative, 718 F.3d 899 (D.C.Cir.2013) (Office of Trade Representative). In five other cases, however, the D.C. Circuit has held units within the Executive Office of the President-including the NSC — not to be agencies. See Citizens for Responsibility & Ethics in Washington v. Office of Admin., 566 F.3d 219- (D.C.Cir.2009) (Office of Administration); Armstrong v. Exec. Office of the President, 90 F.3d 553 (NSC) ; Sweetland v. Walters, 60 F.3d 852.(D.C.Cir.l995) (Executive Residence) ; Meyer v. Bush, 981 F.2d 1288 (Task Force on Regulatory Relief); Rushforth v. Council of Econ. Advisers, 762 F.2d 1038 (D.C.Cir.1985) (Council of Economic Advisers). In certain of these cases, including the one in which it concluded that the NSC was not an agency, the D.C. Circuit has conducted Soucie analysis by reference to three factors: (1) “how close operationally” the unit at issue “is to the President,” (2) “whether [the unit] has a" }, { "docid": "17881928", "title": "", "text": "be treated as an agency within the meaning of FOIA. As we pointed out in Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993), every one of the EOP units that we found to be subject to FOIA has wielded substantial authority independently of the President. Id. at 1292 (discussing eases). For example, in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), we held that the Office of Science and Technology was subject to FOIA because it had independent authority to evaluate federal scientific programs, initiate and support research, and award scholarships. See id. at 1075; Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). Similarly, in Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980), we held that the Council on Environmental Quality — an entity within the EOP with power to coordinate federal environmental programs and issue guidelines and regulations to federal agencies — was an agency for the purposes of FOIA. Id. at 1263. By contrast, in cases involving units of the Executive Office that lacked substantial independent authority, we have consistently rejected the claim that they were subject to FOIA. In Rushforth, for example, we concluded that because the Council of Economic Advisors had no regulatory power under its implementing statute or controlling executive orders, it was not an agency under FOIA. Rushforth, 762 F.2d at 1043. More recently, we held that President Reagan’s Task Force on Regulatory Relief was exempt from FOIA because it lacked “substantial independent authority to direct executive branch officials.” Meyer, 981 F.2d at 1297 (internal quotation marks omitted). The staff of the Executive Residence exercises none of the independent authority that we found to be critical in holding other entities that serve the President to be agencies subject to FOIA. This is self-evident from a description of the staff and its duties to which the parties have referred us: The Executive Residence staff provides for the operation of the Executive Residence. A staff of 36 domestic employees accomplish general housekeeping, prepare and serve meals, greet visitors, and provide services as required in support of official and ceremonial functions. A" }, { "docid": "18837477", "title": "", "text": "as presidential advisor,” when it provided for Senate confirmation of the OMB’s director and deputy director. Id. In 1980, this court applied the Soucie test to determine that the Council on Environmental Quality (“CEQ”), a unit within the Executive Office of the President, was an “agency” for purposes of the Government in the Sunshine Act, 5 U.S.C. § 552b(b), which adopted the FOIA definition of an agency. Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980). The CEQ was created by the NEPA, which authorized it to advise the President in preparing his annual environmental policy report; prepare studies on environmental conditions and trends for the President; review and appraise federal programs that affect the environment and make recommendations to the President about those programs; and recommend national environmental policies to the President. 42 U.S.C. § 4344. The CEQ’s mission was later expanded by several executive orders, which made it responsible for overseeing activities of federal agencies; for coordinating federal programs related to environmental quality and for issuing guidelines to federal agencies for preparing Environmental Impact Statements; for issuing regulations to federal agencies for implementing the procedural requirements of the NEPA; and for publishing and revising the national contingency plan for removing oil and hazardous substances from navigable waters. Pacific Legal Foundation, 636 F.2d at 1262. Relying on the Supreme Court’s determination in Soucie that the OST’s authority to evaluate federal programs was sufficient to qualify it as an agency, this court looked to the CEQ’s executive order authority to evaluate federal programs and likewise found it sufficient to qualify the CEQ as an agency. Id. at 1263. The only entity within the Executive Office of the President that this court has found not to be an agency under the “sole function” test is the President’s Council of Economic Advisors (“CEA”). Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C.Cir.1985). The CEA was created by statute, housed in the Executive Office of the President, and authorized to, among other things, advise and assist the President in formulating his economic policies; gather information concerning economic developments and" }, { "docid": "18933767", "title": "", "text": "1288, 1291 (D.C.Cir.1993) (same). Soucie construed the Administrative Procedure Act’s definition of “agency,” referencing government “authority,” to reach executive branch units that have “substantial independent authority in the exercise of specific functions,” 448 F.2d at 1073 (citing 5 U.S.C. § 551(1)), but not to reach units whose “sole function [is] to advise and assist the President,” id. at 1075. Soucie applied these two prongs of analysis to the Office of Science and Technology, a unit within the Executive Office of the President, and concluded that it was an agency subject to the FOIA because, in addition to advising and assisting the President, the Office had inherited program evaluation functions from the National Science Foundation that Congress had imposed as a delegation of “some of its own broad power of inquiry.” Id. It was based on the latter independent authority, derived from a source other than the President, that the Office was held to be an agency. See id. Thus, although the Supreme Court in Kissinger quoted only the “sole function” prong of the Soucie analysis, we understand it to have recognized Congress’s intent to codify the entirety of the Soucie test for entities within the Executive Office of the President. We therefore consider both the “sole function” and “substantial independent authority” prongs of Soucie analysis in deciding whether the NSC is an agency subject to the FOIA. C. The D.C. Circuit’s Experience with Soucie Analysis Before ourselves applying Soucie analysis to the NSC, we acknowledge the considerable experience of the Court of Appeals for the District of Columbia Circuit in applying this analysis to various units within the Executive Office of the President. Since Soucie, that court has twice held such units to be agencies. See Pacific Legal Found, v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980) (Council on Environmental Quality); Sierra Club v. Andrus, 581 F.2d 895 (D.C.Cir.1978) (Office of Management and Budget), rev’d on other grounds sub nom. Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). Once, in the absence of any dispute on the point, that court appears to have" }, { "docid": "17881926", "title": "", "text": "for the District of Columbia seeking declaratory and injunctive relief. The district court held that the Executive Residence was not an agency for the purposes of FOIA and, on that basis, granted Mr. Walters’ motion to dismiss on the grounds that the court lacked jurisdiction and that Mr. Sweetland had failed to state a claim on which relief could be granted. Mr. Sweetland appeals the dismissal of his complaint. II. Discussion FOIA directs agencies, as defined therein, to make certain information available to the public. 5 U.S.C. § 552. Mr. Sweetland argues that the district court erred when it concluded that the Executive Residence was not an “agency” for the purposes of FOIA. As amended in 1974, FOIA provides: For the purposes of this section, the term “agency” ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President ), or any other independent regulatory agency. 5 U.S.C. § 552(f) (emphasis added). The Supreme Court has held that “the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President” are not included within the term “agency” under the FOIA. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong.2d Sess. 15 (1974)). Although the Executive Residence is not a unit within the Executive Office of the President (“EOP”), see Reorganization Plan No. 1 of 1977, reprinted in 3 U.S.C. Ch. 2 note at 431, 434 (1994) (Message of the President) (listing units within the EOP), we believe it is analogous to an EOP unit for purposes of a FOIA analysis because the Residence staff, like units within the EOP, is responsible directly to the President and assists him by performing whatever duties he may prescribe. See 3 U.S.C. § 105(b)(1) (1994). Thus, we rely on FOIA cases dealing with the responsibilities of EOP units in determining whether the Executive Residence is to" }, { "docid": "18181714", "title": "", "text": "the plain language and relies instead upon the legislative history and judicial interpretations of FOIA’s definition of “agency”. See Dong, 125 F.3d at 879; Falwell, 113 F.Supp.2d at 969; 5 U.S.C. § 552(f). The Falwell court also relied on Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985), another D.C. Circuit case, which was cited, but distinguished, by the Alexander court. Specifically, the Falwell court cited Rushforth for the proposition that FOIA definitions, when incorporated into other statutes, apply exactly as they do under FOIA, inclusive of judicial interpretations. See Falwell, 113 F.Supp.2d at 969. Applying the FOIA definition of “agency” to the Sunshine Act, the Rushforth court held that “inasmuch as the Council of Economic Ad-visors is not an agency for FOIA purposes, it follows of necessity that the CEA is, under the terms of the Sunshine Act, not subject to that statute either ... [because] the Sunshine Act expressly incorporates the FOIA definition of agency.” Rushforth, 762 F.2d at 1043. The language in Rushforth gives the impression that the D.C. Circuit applied the FOIA definition of “agency” to the Sunshine Act exactly as the definition applies in FOIA. If the same logic were applied in the instant case, the White House Office would not be subject to the terms of the Privacy Act. The Alexander court distinguished Rushforth, however, on the basis that FOIA and the Sunshine Act serve parallel purposes, while FOIA and the Privacy Act do not. See Alexander, 971 F.Supp. at 607. To further its interpretation of the Privacy Act, the EOP argues, as it did in Barr, that the application of the Privacy Act to the President raises “substantial separation of powers concerns.” EOP’s Mem. at 26. After emphasizing that statutes must be construed so as to avoid constitutionally difficulties, see id. (quoting Almendarez-Torres v. United States, 523 U.S. 224, 237, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)), the EOP argues that to include the White House Office under the terms of the Privacy Act might amount to an unconstitutional interpretation. See EOP’s Mem. at 26-27. In particular, the EOP warns that extending" }, { "docid": "17881927", "title": "", "text": "that “the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President” are not included within the term “agency” under the FOIA. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong.2d Sess. 15 (1974)). Although the Executive Residence is not a unit within the Executive Office of the President (“EOP”), see Reorganization Plan No. 1 of 1977, reprinted in 3 U.S.C. Ch. 2 note at 431, 434 (1994) (Message of the President) (listing units within the EOP), we believe it is analogous to an EOP unit for purposes of a FOIA analysis because the Residence staff, like units within the EOP, is responsible directly to the President and assists him by performing whatever duties he may prescribe. See 3 U.S.C. § 105(b)(1) (1994). Thus, we rely on FOIA cases dealing with the responsibilities of EOP units in determining whether the Executive Residence is to be treated as an agency within the meaning of FOIA. As we pointed out in Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993), every one of the EOP units that we found to be subject to FOIA has wielded substantial authority independently of the President. Id. at 1292 (discussing eases). For example, in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), we held that the Office of Science and Technology was subject to FOIA because it had independent authority to evaluate federal scientific programs, initiate and support research, and award scholarships. See id. at 1075; Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). Similarly, in Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980), we held that the Council on Environmental Quality — an entity within the EOP with power to coordinate federal environmental programs and issue guidelines and regulations to federal agencies — was an agency for the purposes of FOIA. Id. at 1263. By contrast, in cases involving units of the Executive Office that lacked substantial independent authority, we" }, { "docid": "18181707", "title": "", "text": "congressional intent, the Supreme Court has held that the FOIA definition of “agency” does not include the “Office of the President,” also known as the White House Office. See Kissinger, 445 U.S. at 156, 100 S.Ct. 960. The Kissinger Court based this finding, in part, on the Conference Report for the 1974 FOIA Amendments which indicate that the term “agency” shall not apply to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” See id. (citing H.R. CONF. REP. NO. 93-1380, at 15 (1974)). Accordingly, the Court held that such staff and units “are not included within the term ‘agency’ under the FOIA.” Id. Following the Supreme Court’s opinion in Kissinger, the United States Court of Appeals for the District of Columbia Circuit recognized that “it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA.” United States v. Espy, 145 F.3d 1369, 1373 (D.C.Cir.1998). By the same rationale, the Court of Appeals noted that an entity within the EOP does not qualify as an “agency” unless it exercises “substantially independent authority.” Id. Accordingly, the court noted that the Chief of Staff or the President’s Counsel would not constitute an “agency” for FOIA purposes. Id.; see also Nat’l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990) (“The Supreme Court has made clear that the [White House Office] is not an ‘agency’ for purposes of the FOIA.”). While they concur that the White House Office is exempt from FOIA, the parties dispute its status under the Privacy Act. Both Plaintiff and the EOP argue that the Privacy Act is in some way “clear” on its face with regard to this issue. That is, the EOP argues that the statute clearly adopts the FOIA definition of “agency” and construes that statement as an adoption of the FOIA definition precisely as it has been applied and interpreted in FOIA actions. See EOP’s Mem. at 16-18. In contrast, Plaintiff argues that the plain text of the definition" }, { "docid": "18818561", "title": "", "text": "FOIA.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)), 1974 U.S.C.C.A.N. 6267. The Supreme Court test adopted in Kissinger for determining which entities within the EOP are agencies subject to the FOIA was originally developed by this court in Soucie v. David, 448 F.2d 1067 (1971). In Soucie, this court held that only entities whose “sole function [is] to advise and assist the President” are not separate agencies subject to the FOIA. Id. at 1075. Thus, the court concluded that the Office of Science and Technology (“OST”) — the precursor of the OSTP, one of the agencies whose guidelines are at issue in this appeal — was an agency subject to the FOIA because its duties went beyond advising the President and included evaluating federal scientific programs. Id. The legislative history of the PRA could not be clearer in indicating congressional intent to adopt the test articulated in Soucie to determine what entities are “agencies” subject to the FOIA: The [PRA] does not modify the applicability of the [FOIA] to White House and [EOP] records.... That is, it does not redefine the term agency to include entities not now covered by the FOIA. The Conference Report for the 1974 Freedom of Information Act amendments stated that “[w]ith respect to the meaning of the term ‘[EOP]’ the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 [(D.C.Cir.1971)]. The term is not interpreted as including the President’s immediate staff or units in the [EOP] whose sole function is to advise and assist the President.” H.R.Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 13 (1974)), reprinted in 1978 U.S.C.C.A.N. 5732, 5742. The FOIA Conference Report quoted in the PRA legislative history is the same report upon which the Supreme Court relied in Kissinger, 445 U.S. at 156, 100 S.Ct. at 971. This court has consistently applied the “sole function” test developed in Soucie and adopted in Kissinger in" }, { "docid": "10734262", "title": "", "text": "definition of “agency,” the court held that the Smithsonian was not an “agency” under the Privacy Act. See id. at 878-80. Similarly, in Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1040 (D.C.Cir.1985), this Circuit addressed whether the Council of Economic Advisers was an “agency” subject to the disclosure requirements of the Sunshine Act, 5 U.S.C. § 552b. Like the Privacy Act, the Sunshine Act expressly incorporates the FOIA definition of “agency.” See Sunshine Act, 5 U.S.C. § 552b(a)(l) (“[T]he term ‘agency’ means any agency as defined in [FOIA] section 552(e).... ”). Using the same rationale as followed in Dong, the Rushforth court held that “[ijnasmuch as the Council of Economic Advisers is not an agency for FOIA purposes, it follows of necessity that the CEA is, under the terms of the Sunshine Act, not subject to that statute either.” Rushforth, 762 F.2d at 1043 (emphasis added). Applying this same reasoning and analysis, this court holds that inasmuch as the EOP is not an “agency” subject to the FOIA, the EOP is not an “agency” subject to the Privacy Act. The Privacy Act expressly incorporates the FOIA’s definition of “agency,” see 5 U.S.C. § 552a(a)(l), and both the Supreme Court and this Circuit have held that the EOP’s White House Office is not an “agency” under the FOIA. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980); National Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990). The court sees no reason to reject this logic, particularly given that the Court of Appeals employed this same reasoning in Rushforth and Dong. The court, therefore, grants the EOP’s motion to dismiss, and denies Broaddrick’s cross motion for partial summary judgment. B. DOJ’s Motion to Dismiss In its motion to dismiss, DOJ argues that Broaddrick’s claim that DOJ denied her access to records should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) because Broaddriek does not allege that she submitted a Privacy Act request to DOJ. DOJ contends that the Privacy Act requires federal agencies" }, { "docid": "18837520", "title": "", "text": "court’s judgment, and dissent from my colleagues’ contrary conclusion. . Although this court has subsequently concluded that one of the House’s illustrative examples of a \"functional entity,” the Council of Economic Advisors, falls within the Soucie exception for units whose “sole function” is to advise and assist the President, Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C.Cir.1985), this does not undercut the congressional determination that entities created by executive orders can be “agencies” under the FOIA. After expressly providing that its substitute \"fol-lowfed] the House bill” — the bill that defined \"agency” to include establishments within the Executive Office of the President — the Conference Report merely imposed the additional requirement that this term be \"interpreted” according to the Soucie test. Conf.Rep. at 13, 14 (emphasis added). . It is worth noting that while the Senate bill did not expressly refer to entities within the Executive Office of the President, the Senate Committee on Government Operations contemplated that they would be included as “agencies” under the Soucie test: Section 3 expands on the definition of agency as provided in section 551(1) of title 5 [the APA]. That section defines \"agency” as “each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress, the courts, or the governments of the possessions, territories, or the District of Columbia.” This definition has been broadly interpreted by the courts as including \"any administrative unit with the substantial independent authority in the exercise of specific functions,” which in one case was held to include the Office of Science and Technology. Soucie v. David, 448 F.2d 1067, 1073 ([D.C.Cir.] 1971). S.Rep. No. 854, 93d Cong., 2d Sess. 32 (1974), reprinted in FOIA Source Book at 153, 185. . We did not apply the Soucie \"sole function\" test to the White House Counsel, but instead treated it as part of the President’s \"immediate personal staff.” See National Security Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990). . The OMB itself was a presidential creation. See Reorganization Plan No. 2" }, { "docid": "10734261", "title": "", "text": "be read to avoid constitutional questions, for reading “agency” to include the EOP might raise constitutional concerns about the President’s ability to obtain information and maintain Article II confidentiality. See id. at 5-6. The Court of Appeals for the District of Columbia Circuit has not decided whether the EOP is an “agency” subject to the Privacy Act, but this Circuit’s reasoning in other cases suggests that it is not. For example, in Dong v. Smithsonian Institution, 125 F.3d 877, 878-80 (D.C.Cir.1997), cert. denied, 524 U.S. 922, 118 S.Ct. 2311, 141 L.Ed.2d 169 (1998), the Court of Appeals addressed whether the Smithsonian Institution (“Smithsonian”) was an “agency” subject to the Privacy Act. The Dong court first recognized that the Privacy Act expressly “borrows the definition of ‘agency’ found in FOIA.” Id. at 878. “Hence, to be an agency under the Privacy Act, an entity must fit into one of the categories set forth either in [FOIA] § 552(f) or § 551(1).” Id. at 879 (emphasis added). Finding that the Smithsonian did not fit within the FOIA’s definition of “agency,” the court held that the Smithsonian was not an “agency” under the Privacy Act. See id. at 878-80. Similarly, in Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1040 (D.C.Cir.1985), this Circuit addressed whether the Council of Economic Advisers was an “agency” subject to the disclosure requirements of the Sunshine Act, 5 U.S.C. § 552b. Like the Privacy Act, the Sunshine Act expressly incorporates the FOIA definition of “agency.” See Sunshine Act, 5 U.S.C. § 552b(a)(l) (“[T]he term ‘agency’ means any agency as defined in [FOIA] section 552(e).... ”). Using the same rationale as followed in Dong, the Rushforth court held that “[ijnasmuch as the Council of Economic Advisers is not an agency for FOIA purposes, it follows of necessity that the CEA is, under the terms of the Sunshine Act, not subject to that statute either.” Rushforth, 762 F.2d at 1043 (emphasis added). Applying this same reasoning and analysis, this court holds that inasmuch as the EOP is not an “agency” subject to the FOIA, the EOP is not an" }, { "docid": "17223345", "title": "", "text": "in this case and the NEPDG were all a part of the deliberative process and should be protected under Exemption 5. See DOI and BLM Rep. at 14-15. The term “agency” is defined by the FOIA to mean “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1). The legislative history makes clear, however, that the term “agency” does not include “the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. at 156, 100 S.Ct. 960 (quoting H.R. Conf. Rep. No. 93-1380, 93 Cong., 2d Sess. at 15 (1974)) Whether an entity within the Executive Office of the President is an “agency” under the FOIA is determined by analyzing whether, in addition to advising and assisting the President, the entity also has “substantial independent authority.” Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). NEPDG would be considered an agency for FOIA purposes if “it could act directly and independently beyond advising and assisting the President.” Id.; see also Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1263 (D.C.Cir.1980) (Council on Environmental Quality is FOIA agency because it has the power to coordinate federal programs and to issue guidelines to federal agencies and the authority to promulgate regulations); cf. Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1043 (D.C.Cir.1985) (Council of Economic Advisers is not FOIA agency because its purpose is to appraise federal programs and make recommendations to the President; it has no regulatory power). Neither the U.S. Court of Appeals for this Circuit nor any judge of this Court has squarely addressed the issue of whether the NEPDG should be considered to be an agency for purposes of the FOIA, although the assumption is that it is not. See In re Cheney, 334 F.3d 1096, 1116 n. 2 (D.C.Cir.2003) (Randolph, J., dissenting) (“None of" }, { "docid": "18837445", "title": "", "text": "withholding of the eight documents. On a motion for summary judgment, the government claimed that the first seven documents were not “agency” documents, that the eighth was exempt, and that the search was adequate. Denying the motion, the district court held that the documents were Task Force documents, not the Vice President’s, and that the Task Force was an agency under FOIA. See Meyer v. Bush, Civil Action No. 88-3122, Mem. Op., 1991 WL 212215 (D.D.C. Sept. 30, 1991). According to the court, “the Task Force was not formed simply to advise and assist the President,” but rather “had substantial, independent, directorial authority.” Id. The court did not decide whether the government was obliged to search the Vice President’s files, and, upon the government’s motion, certified as appropriate for an interlocutory appeal the question whether the Task Force is an agency under FOIA. II. The district court applied the correct governing law in determining whether a body within the Executive Office of the President is a FOIA “agency.” As amended in 1974, the Act defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(e) (emphasis added). As clearly shown by the legislative history, however, Congress intended to codify our earlier decision (interpreting more general predecessor language) in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). In that case, we held that the Office of Science and Technology (OST), a distinct entity within the Executive Office of the President, was a FOIA “agency.” Although we acknowledged that OST advised and assisted the President, we emphasized that OST also had inherited from the National Science Foundation “substantial independent authority, ’! such as evaluating federal programs, initiating and supporting research, and awarding scholarships. Id. at 1073-75 (emphasis added); see also Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). OST was a FOIA agency precisely because it could act directly and independently beyond advising and assisting the President. “By virtue of its independent" }, { "docid": "18818564", "title": "", "text": "regulatory programs, issued guidelines for preparing environmental impact statements, and promulgated regulations for implementing the procedural provisions of the National Environmental Policy Act); Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985) (holding that the Council of Economic Advisers is not an agency under the FOIA because its sole function is to advise and assist the President); Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993) (holding that the President’s Task Force on Regulatory Relief “flails] within the Soucie test as an entity whose sole function is to advise and assist the President”). We hasten to add that our opinion in Armstrong I did not hold as a matter of law that the. NSC “produces both presidential and federal records” because the NSC “advises the President and has statutory obligations.” See Armstrong, 810 F.Supp. at 347-48, 349 (citing Armstrong I, 924 F.2d at 286 n. 2.). The passage on which the district court relied appears as a footnote in the “background” section of our Armstrong I opinion, without any of the legal exposition that would be expected to accompany a holding announcing the resolution of a previously unsettled legal question. See Maggard v. O’Connell, 703 F.2d 1284, 1290-91 (D.C.Cir.1983) (statements in the background discussion of an opinion should not be construed as deciding unresolved legal issues, especially where the court was only reviewing and reversing a grant of summary judgment). The footnote appears to be nothing more than a description of the position of the defendants-appellants as embodied in the EOP regulations. See Joint Statement ¶ 157 (“The records of the [NSC] staff are federal records if they were received or created in connection with the work of the statutorily-created [NSC].... The records of the NSC staff are presidential records if they were received or created for the President, the Assistant to the President for National Security, his Deputy, or a member of the White House staff independently of any meeting or policy and staff actions of the NSC or its various groups.”). Consequently, Armstrong I did not provide the legal basis for distinguishing federal and presidential records nor decide the" }, { "docid": "18818563", "title": "", "text": "its subsequent decisions. In Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), we rejected the argument that certain records of the Attorney General regarding judicial nominations were not subject to the FOIA because the Attorney General was acting in his independent capacity as an advisor to the President when he prepared the records in question. Id. at 788. The Court explained that Soucie did not intimate that the [OST] might be an agency only when performing its non-advisory functions, and still be a presidential staff component, or non-agency, when performing its other function of advising the President. In fact, the reports under consideration in Soucie were requested by the President precisely for advisory purposes, but we did not deem the [OST] to be a non-agency in that specific context. Id. (citing Soucie, 448 F.2d at 1075-76). See also Pacific Legal Foundation v. Council on Environmental Equality, 636 F.2d 1259 (D.C.Cir.1980) (holding that the Council on Environmental Equality (“CEQ”) is a FOIA agency because, in addition to advising the President, the CEQ coordinated federal environmental regulatory programs, issued guidelines for preparing environmental impact statements, and promulgated regulations for implementing the procedural provisions of the National Environmental Policy Act); Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985) (holding that the Council of Economic Advisers is not an agency under the FOIA because its sole function is to advise and assist the President); Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993) (holding that the President’s Task Force on Regulatory Relief “flails] within the Soucie test as an entity whose sole function is to advise and assist the President”). We hasten to add that our opinion in Armstrong I did not hold as a matter of law that the. NSC “produces both presidential and federal records” because the NSC “advises the President and has statutory obligations.” See Armstrong, 810 F.Supp. at 347-48, 349 (citing Armstrong I, 924 F.2d at 286 n. 2.). The passage on which the district court relied appears as a footnote in the “background” section of our Armstrong I opinion, without any of the legal exposition that would be" }, { "docid": "18818562", "title": "", "text": "entities are “agencies” subject to the FOIA: The [PRA] does not modify the applicability of the [FOIA] to White House and [EOP] records.... That is, it does not redefine the term agency to include entities not now covered by the FOIA. The Conference Report for the 1974 Freedom of Information Act amendments stated that “[w]ith respect to the meaning of the term ‘[EOP]’ the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 [(D.C.Cir.1971)]. The term is not interpreted as including the President’s immediate staff or units in the [EOP] whose sole function is to advise and assist the President.” H.R.Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 13 (1974)), reprinted in 1978 U.S.C.C.A.N. 5732, 5742. The FOIA Conference Report quoted in the PRA legislative history is the same report upon which the Supreme Court relied in Kissinger, 445 U.S. at 156, 100 S.Ct. at 971. This court has consistently applied the “sole function” test developed in Soucie and adopted in Kissinger in its subsequent decisions. In Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), we rejected the argument that certain records of the Attorney General regarding judicial nominations were not subject to the FOIA because the Attorney General was acting in his independent capacity as an advisor to the President when he prepared the records in question. Id. at 788. The Court explained that Soucie did not intimate that the [OST] might be an agency only when performing its non-advisory functions, and still be a presidential staff component, or non-agency, when performing its other function of advising the President. In fact, the reports under consideration in Soucie were requested by the President precisely for advisory purposes, but we did not deem the [OST] to be a non-agency in that specific context. Id. (citing Soucie, 448 F.2d at 1075-76). See also Pacific Legal Foundation v. Council on Environmental Equality, 636 F.2d 1259 (D.C.Cir.1980) (holding that the Council on Environmental Equality (“CEQ”) is a FOIA agency because, in addition to advising the President, the CEQ coordinated federal environmental" }, { "docid": "18818560", "title": "", "text": "clear but somewhat intricate set of references and cross-references. The FOIA provision mentioned in the PRA, 5 U.S.C. § 552(f), incorporates the definition of agency provided at 5 U.S.C. § 551(1): “agency means each authority of the Government of the United States, whether or not it is subject to review by another agency, but does not include ... the Congress ... [or] the courts of the United States.” 5 U.S.C. § 551(1). Section 552(f) itself adds an additional proviso: [AJgency ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the Presi dent), or any independent regulatory agency. 5 U.S.C. § 552(f). The Supreme Court has added still another layer of complexity, holding that for FOIA purposes, the EOP does not include the Office of the President. “ ‘[T]he President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)), 1974 U.S.C.C.A.N. 6267. The Supreme Court test adopted in Kissinger for determining which entities within the EOP are agencies subject to the FOIA was originally developed by this court in Soucie v. David, 448 F.2d 1067 (1971). In Soucie, this court held that only entities whose “sole function [is] to advise and assist the President” are not separate agencies subject to the FOIA. Id. at 1075. Thus, the court concluded that the Office of Science and Technology (“OST”) — the precursor of the OSTP, one of the agencies whose guidelines are at issue in this appeal — was an agency subject to the FOIA because its duties went beyond advising the President and included evaluating federal scientific programs. Id. The legislative history of the PRA could not be clearer in indicating congressional intent to adopt the test articulated in Soucie to determine what" } ]

[ { "docid": "15820161", "title": "", "text": "U.S. 319, 77 S.Ct. 376-377, 1 L.Ed. 356, that Indian Towing necessarily rejected anything to the contrary in Dalehite. The United States, as expected, takes the position that the Supreme Court decisions following Dalehite did not alter the Dalehite conception of the scope of the discretionary function exception of 28 U.S.C. 2680(a). It relies upon the following language in Blaber v. United States, 2 Cir., 1964, 332 F.2d 629: “Plaintiffs suggest that the Dalehite case has been weakened by subsequent developments, particularly Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, and Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. These cases did enlarge the scope of the United States’ liability as it might have been thought to exist after Dalehite, but they did not affect the scope of the discretionary function immunity. Indian Towing concededly involved negligence at only an. operational level, 350 U.S. at p. 64, 76 S.Ct. 122, and Rayonier overruled Dalehite to the extent of allowing recovery where negligence in fire fighting could be shown. The kind of negligence, not the kind of activity pursued, became the test for determining the liability of the United States.” 332 F.2d at 631. Judge Goldberg, a member of this Court, in Smith v. United States, 5 Cir. 1967, 375 F.2d 243, cert. denied 1967, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106, met the government’s citation in that case of this quote from Blaber with the following analysis, which carries convincing weight: “The description of a discretionary function in Dalehite permits the interpretation that any federal official vested with decision-making power is thereby invested with sufficient discretion for the government to withstand suit when those decisions go awry. Most conscious acts of any person whether he works for the government or not, involve choice. Unless government officials (at no matter what echelon) make their choices by flipping coins, their acts involve discretion in making decisions. If the Tort Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government" } ]

[ { "docid": "4264712", "title": "", "text": "§ 2680(a) (West 1965). The Supreme Court addressed the scope of the discretionary function exception to the FTCA in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite was a test case involving 300 separate personal and property claims stemming from the explosions of fertilizer with an ammonium nitrate base at Texas City, Texas. In Dalehite, the plaintiff argued that the government acted negligently in drafting and adopting its fertilizer export plan; that numerous phases of the manufacturing process were negligently performed; and that the government negligently failed to police the shipboard loading of the fertilizer. In holding that all challenged aspects of the government’s fertilizer export program were immune from liability under the discretionary function exception to the FTCA, the Court stated: It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. Id. at 35-36, 73 S.Ct. at 968. Cases decided subsequently to Dalehite have placed particular emphasis upon the Court’s statement that “[wjhere there is room for policy judgment and decision, there is discretion.” See, e.g., Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.1974). The most recent pronouncement by the Supreme Court on the scope of the discretionary function exception is contained in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. -, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (hereinafter cited as “Varig Airlines ”). In Varig Airlines, the Court rejected “the supposition that Dalehite no longer represents a valid interpretation of the discretionary function exception.” 467 U.S. at-, 104 S.Ct. at 2764, 81 L.Ed.2d" }, { "docid": "1930270", "title": "", "text": "L.Ed.2d 295 (1974) (“Policy considerations directly related to objectives which are, in the strictest sense of the term, governmental or political pervade every phase of planning and executing a riot control program,” 353 F.Supp. at 1258), and immune for an administrator’s decision not to distribute to federally funded clinics promulgated guidelines concerning sterilization, Relf v. United States, 433 F.Supp. 423 (D.D.C.1977), aff’d mem., 593 F.2d 1371 (1979). The multitude of cases applying the exception to a variety of fact situations are conveniently catalogued in Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978). Although the cases create more of a “patchwork quilt” than a “seamless web,” id. at 1167, there are persistent themes, e. g., holding the government responsible for any negligent execution of admittedly discretionary policy judgments where the decisions required for the execution did not themselves involve the balancing of public policy factors. Id. at 1179-80 n.28. Cases construing the exception in the law enforcement context have held it to exempt NLRB delay due to shortage of personnel in filing specification of back pay in connection with reinstatement order, J. H. Rutter Rex Mfg. Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976); failure of U. S. Attorney to prosecute a wrongdoer, Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); a State Department official’s advice to Puerto Rican officials that the United States did not object to the release to Venezuelan officials of a privately owned plane, Four Star Aviation v. United States, 409 F.2d 292 (5th Cir. 1969); and management of a crowd and surrounding campus population during the integration of a southern university, United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965). On the other hand, the exception has been rejected as applied to an FBI agent’s on-the-spot decision to fire at a hijacked plane, Downs v. United States, 522 F.2d 990 (6th Cir. 1975); and failure" }, { "docid": "16281328", "title": "", "text": "conscious balancing of policy considerations. J. H. Rutter Rex Manufacturing Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975); see Griffin v. United States, 500 F.2d 1059, 1064 (3rd Cir. 1974). See also Moyer v. Martin Marietta Corp., 481 F.2d 585, 597-98 (5th Cir. 1973). This would seem to be most particularly so with respect to those high-echelon decisions which by their very nature require the careful consideration of sensitive political and public policy factors. See Monarch Insurance, supra at 1258. Such was necessarily the nature of Dr. Cooper’s decision to withhold issuance of the sterilization guidelines. The evidence adduced shows without rebuttal that at the time of Dr. Cooper’s allegedly negligent failure to act there existed within OEO substantial public policy concerns about the use of federal funds for federally-authorized sterilizations. At the same time, he evidently was under heavy competing pressure to issue the guidelines and thus irrevocably deepen OEO’s commitment toward that controversial social policy. Whether or not Dr. Cooper’s decision was the wisest choice available — a determination which this Court is neither prepared nor is it required to make — it appears clear that it was by definition a choice alternately influenced and circumscribed by policy constraints and considerations of the public interest well within the parameters of the discretionary function exception. Indeed, even the affidavit testimony of plaintiffs’ chief witness, an OEO official under Dr. Cooper’s supervision who evidently took strong exception to his decision, lends corroborative support to the conclusion that Dr. Cooper based that decision upon an active (to the point of sustained direct challenge) consideration of pressing policy concerns. Affidavit of Dr. Warren Hern in Opposition to Defendants’ Motions for Summary Judgment at 4, 5. See also testimony of Dr. Hern before the Senate Health Subcommittee, July 10,1973, Exhibit # 9 to Plaintiffs’ Opposition Memorandum at 1. It seems to the Court that throughout the course of this litigation the plaintiffs have consistently misconceived the circumstances under which liability may properly be imposed upon the federal government under the Federal Tort Claims Act. Aside from their first theory of" }, { "docid": "5624507", "title": "", "text": "by the majority opinion focuses on the second part of the section dealing with the exercise of a discretionary function or duty. The opinion says that the exception covers de terminations made by executives or administrators in establishing plans, specifications or schedules of operations, and that under the standards applied in Dalehite and other cases, the BIA was engaged in exercising a discretionary function in its activities in question so that the Government is immune from suit. I must disagree. If the majority’s expansive interpretation is made of the exception and the Dalehite references to “plans, specifications or schedules of operations,” then it is hard to imagine an independent similar act by an engineer or other Government employee which would not be immunized from the possibility of relief under the Act. See Griffin v. United States, 500 F.2d 1059, 1063-64 (3d Cir.); Smith v. United States, 546 F.2d 872, 877 (10th Cir.). In my opinion, this is contrary to the intent of the statute, the Dalehite case, and numerous well-reasoned decisions. It is true that Dalehite says that more than the initiation of programs comes within the exception and that it includes “determinations made by executives or administrators in establishing plans, specifications or schedules of operations.” However, the opinion is clear in stating that it is “[wjhere there is room for policy judgment and decision [that] there is discretion. It necessarily follows that acts of subordinates in carrying out operations of government in accordance with official directions cannot be actionable.” Dalehite v. United States, supra, 346 U.S. at 36, 73 S.Ct. at 968. Thus, for the exception to apply the acts in question must be steps directed by a planning-level policy decision. See Seaboard Coast Line R.R. v. United States, 473 F.2d 714, 716 (5th Cir.); Driscoll v. United States, 525 F.2d 136, 138 (9th Cir.); compare Boyce v. United States, 93 F.Supp. 866, 868-69 (S.D.Iowa). Under the Dalehite test it is only those plans which involve such policy considerations that are protected by the exception, Dalehite, supra, 346 U.S. at 35-36, 73 S.Ct. 956, and the “plans” involved here" }, { "docid": "22430068", "title": "", "text": "discretion “[wjhere there is room for policy judgment and decision.” Dalehite, supra, 346 U.S. at 36, 73 S.Ct. at 968 (emphasis in Griffin, 500 F.2d at 1064). The Third Circuit noted that “[t]he decisions held discretionary in Dalehite involved, at minimum, some consideration as to the feasibility or practicability of Government programs,” 500 F.2d at 1064, and further observed that “[sjuch decisions involved considerations of public policy, calling for a balance of such factors as cost of Government programs against the potential benefit.” Id. In contrast, the evaluative judgment made by DBS in Griffin had no policyweighing components and was much more narrowly circumscribed in terms of programmatic impact. The judgment . . . was that of a professional measuring neurovirulence. It was not that of a policy-maker promulgating regulations by balancing competing policy considerations in determining the public interest. Neither was it a policy planning decision nor a determination of the feasibility or practicability of a government program. At issue was a scientific, but not policymaking, determination as to whether each of the criteria listed in the regulation was met and the extent to which each such factor accurately indicated neurovirulence. DBS’ responsibility was limited to merely executing the policy judgments of the Surgeon General. It had no authority to formulate new policy in the immunization program. Id. at 1066 (footnotes omitted). When judgments exercised by regulatory agency officials are professional or scientific in nature rather than policy oriented, the Griffin court was of the opinion that the courts are “fully capable of scrutinizing the processes and conclusions of the decision-maker by the usual standards applied to cases of professional negligence.” Id. at 1066-67 (quoting Griffin v. United States, 351 F.Supp. 10, 33 (E.D.Pa.1972)). Thus, the critical inquiry for the Third Circuit, as it must be for us, was “not merely whether judgment was exercised but also whether the nature of the judgment called for policy considerations.” Id. at 1064. In the context of the pleadings in these cases, we can conceive of facts, that, if proven at trial, would divest this court of jurisdiction under Griffin’s construction of" }, { "docid": "16281327", "title": "", "text": "Cooper’s decision to be outside of the exception because it was assertedly not “based on considerations of public policy.” However, the Court finds that Dr. Cooper’s decision not to officially issue and distribute the sterilization guidelines pending the resolution of existing policy concerns is exactly the type of decisionmaking which Congress had in mind when enacting the discretionary function exception to the Federal Tort Claims Act. See Monarch Insurance Co. of Ohio v. District of Columbia, 353 F.Supp. 1249, 1258 (D.D.C.1973), aff’d, 162 U.S.App.D.C. 97, 497 F.2d 684 (1974). As has been stated by the Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the discretionary function exception is properly construed to include “determinations made by executives or administrators in establishing plans, specifications or .schedules of operations. Where there is room for policy judgment and decision there is discretion.” Id. at 35-36, 73 S.Ct. at 968. Although this construction has been narrowed somewhat by later cases, the exception unquestionably applies to decisions which of necessity involve the conscious balancing of policy considerations. J. H. Rutter Rex Manufacturing Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975); see Griffin v. United States, 500 F.2d 1059, 1064 (3rd Cir. 1974). See also Moyer v. Martin Marietta Corp., 481 F.2d 585, 597-98 (5th Cir. 1973). This would seem to be most particularly so with respect to those high-echelon decisions which by their very nature require the careful consideration of sensitive political and public policy factors. See Monarch Insurance, supra at 1258. Such was necessarily the nature of Dr. Cooper’s decision to withhold issuance of the sterilization guidelines. The evidence adduced shows without rebuttal that at the time of Dr. Cooper’s allegedly negligent failure to act there existed within OEO substantial public policy concerns about the use of federal funds for federally-authorized sterilizations. At the same time, he evidently was under heavy competing pressure to issue the guidelines and thus irrevocably deepen OEO’s commitment toward that controversial social policy. Whether or not Dr. Cooper’s decision was the wisest choice available — a determination which" }, { "docid": "2483145", "title": "", "text": "15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite involved claims against the government arising from a disaster in the port of Texas City, Texas, in which hundreds of people were killed in an explosion of fertilizer-grade ammonium nitrate which had been loaded onto a ship for export. The victims brought suit under the FTCA. In a decision which explored the legislative history and policy of the “discretionary function” exception, the Supreme Court found that the exception did apply to the facts of the case before them. The governmental determinations which brought about the catastrophe were basic policy decisions concerning the program for manufacturing and exporting the fertilizer, made at a level where the “discretionary function” exception was intended to operate. The Court loosely defined the discretion protected by § 2680(a) as “the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law.” 346 U.S. at 34, 73 S.Ct. at 967. The Court refrained from stating precisely where discretion under § 2680(a) should end. Id. at 35, 73 S.Ct. 956. Its holding was limited to a determination that the particular governments acts in question occurred at the planning rather than at the operational level, and thus were within the “discretionary function” exception. 346 U.S. at 42, 73 S.Ct. 956. It is generally recognized that there is discretion involved in decisions made at any level of government, as to how best to accomplish the job at hand. Dalehite offers guidance on the question of when discretion is of the particular type meant to be excepted from the FTCA under § 2680(a). This is the issue commonly pursued in “discretionary function” cases. See, e. g., Downs v. United States, 522 F.2d 990 (6th Cir. 1975); Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); Dahlstrom v. United States, 228 F.2d 819 (8th Cir. 1956); Monarch Insurance Co. v. District of Columbia, 353 F.Supp. 1249" }, { "docid": "20317374", "title": "", "text": "on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. The leading case interpreting the discretionary function- exception is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In that case the Supreme Court stated: The “discretion” protected by the section is not that of the judge — a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law. 5¡C £ Sj! Sfc & It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion. 346 U.S. at 34, 35-36, 73 S.Ct. at 967-968 (footnotes omitted) (emphasis supplied). The numerous cases decided since Dalehite have not been consistent in determining the types of activities which come within the discretionary function exception. Some general principles have, however, emerged. Thus, some courts have looked to see if the governmental decision required a balancing of such policy factors as the cost of a program and its potential benefit. See, e.g., Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.1974). This analysis finds support in the previously quoted statement of" }, { "docid": "906978", "title": "", "text": "perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The discretionary function exception was originally given a broad sweep in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), where the Supreme Court relieved the United States of all liability for its actions in connection with the April 1947 Texas City disaster. But subsequent Supreme Court decisions substantially narrowed Dalehite’s reading of the discretionary function exception. See Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1056); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). The cases following Dalehite make clear that an absolutist interpretation of the discretionary function is improper. Smith v. United States, 375 F.2d 243 (5 Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). It is not sufficient for the government to demonstrate that some choice was involved in the decision-making process. That showing could be made in almost every case. Pigott v. United States, 451 F.2d 574 (5 Cir. 1971). The nature of the judgment must also call for the balancing of policy considerations. Griffin v. United States, 500 F.2d 1059 (3 Cir. 1974); Moyer v. Martin Marietta Corp., 481 F.2d 585 (5 Cir. 1973). The stipulations show that the NLRB assigned the compliance phase of the Rutter Rex case to Edward Champagne two days after the panel decision enforcing the Board’s order. (June 12, 1957). Champagne was told to handle the smaller Ozark Dam case first to gain experience. From June 12, 1957 through May, 1958, he spent twenty to twenty-five working days on the Rutter Rex case, then began working full time on the Ozark Dam case, completing it on March 24, 1959. From June 1, 1958 until August 31, 1959, no staff member worked on the Rutter Rex matter. Then a new compliance officer, John Immel, took over" }, { "docid": "3651412", "title": "", "text": "a valid cause of action otherwise exists for the inspector’s enhancement of risk under Illinois tort law and hence the FTCA, such a claim is barred under the “discretionary function” exception in the FTCA, 28 U.S.C. § 2680(a). We find this contention to be without merit. The Supreme Court has not comprehensively defined the scope of the “discretionary function” exception, other than to note that it “includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). The great weight of authority suggests that where, as here, the disputed conduct consists of merely implementing and enforcing mandatory regulations, the requisite halo of policy-making is not present. See, e.g., United Scottish Insurance Co. v. United States, 692 F.2d 1209, 1212 (F.A.A.’s negligent certification of aircraft not within discretionary function exception, noting “F.A.A. officials enforce the requirements by inspecting the aircraft, but cannot in any way change or waive safety requirements. Since no room for policy judgment or decision exists, a discretionary function is not being performed .... ”); Schindler v. United States, 661 F.2d 552, 556 (6th Cir.1981) (regulatory approval granted in conformance with federal regulatory criteria not discretionary function); Downs v. United States, 522 F.2d 990, 997-98 (6th Cir.1975) (exception only encompasses exercise of quasi-legislative or quasi-judicial function; mere fact that governing regulations permit choosing alternative courses of action does not invoke exception); Griffin v. United States, 500 F.2d 1059, 1066 (3d Cir.1974) (fact that implementation of regulation calls for some judgmental determination with reference to criteria in regulation does not invoke exception as such determinations are of expert rather than public policy character). Here, there is no dispute that the applicable MESA regulations compelled the erection of the handrail. 30 C.F.R. § 55.9-7 was a mandatory standard requiring that conveyors be either guarded or equipped with emergency stop devices; in this case, the inspectors knew that the handrail option had to be chosen. The inspectors were required" }, { "docid": "6442006", "title": "", "text": "Federal Tort Claims Act, the Court concluded that (T)he “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. Id. at 35-36, 73 S.Ct. at 967-968 (footnotes omitted). Courts have experienced considerable difficulty in applying Daiehite to determine whether particular actions are within the discretionary function exception. See Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980); Downs v. United States, 522 F.2d 990, 996 (6th Cir. 1975); Depass v. United States, 479 F.Supp. 373, 375 (D.Md.1979). In attempting to define and distinguish decisions made at the “planning level” from those made at the “operational level,” see Dalehite, supra, at 42, 73 S.Ct. at 971, courts have focused upon “the nature and quality” of the judgment involved. See Downs v. United States, supra, at 997 (citing Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967)); Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir. 1974). As the court in Downs v. United States recognized, “Judgment is exercised in almost every human endeavor. It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees.” 522 F.2d at 995. Although it is difficult to articulate a comprehensive standard for determining whether a particular judgment falls within the discretionary function exception, the test set forth in Barton v. United States, 609 F.2d 977 (10th Cir. 1979), provides guidance. In Barton, the court concluded that Generally speaking, á duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary if it involves enforcement or administration of" }, { "docid": "954937", "title": "", "text": "of governing. “Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions.” Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953). The bounds of this concept of important governmental functions have been marked by a distinction between “planning” level activity and “operational” level activity. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 971, 97 L.Ed. 1427 (1953). Planning activity involves the formulation of policy and program; operational activity, the more ministerial problems of implementation. Compare Mahler v. United States, 306 F.2d 713 (3rd Cir. 1962) and U.S. v. Hunsucker, 314 F.2d 98 (9th Cir. 1962) and White v. United States, 317 F.2d 13 (4th Cir. 1963) and United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965) and Sayre v. United States, 282 F.Supp. 175 (N.D.Ohio 1967) (planning activity) with Downs v. United States, 522 F.2d 990 (6th Cir. 1975) and Eastern Air Lines Inc. v. Union Trust Co., 95 U.S.App. D.C. 189, 221 F.2d 62 (D.C. Cir. 1955) and Am. Exch. Bank v. U.S., 257 F.2d 938 (7th Cir. 1958) (operational activity). The primary inquiry concerns the quality and character of the decision making involved: “whether the nature of the judgment called for policy considerations,” Griffin v. United States, 500 F.2d 1059, 1064 (3rd Cir. 1974); whether those considerations involved basic issues of governmental policy and the public interest; whether the deci sion called for was central to the realization of those policies; and whether the decision required informed judgment and expertise. See, e. g., Griffin v. United States, 500 F.2d 1059 (3rd Cir. 1974); Smith v. United States, 375 F.2d 243 (5th Cir. 1967). Cf. King v. Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974); Jones v. State, 33 N.Y.2d 275, 307 N.E.2d 236 (1973); E.U.B. v. State, 67 Wash.2d 246, 407 P.2d 440 (1965) (interpreting state law exceptions for discretionary functions). Additional considerations deemed relevant are whether a statute has granted an official discretionary authority, using language like “discretion,” “may,”" }, { "docid": "22430157", "title": "", "text": "discretionary function exception protects only decisionmaking laden with policy considerations, 552 F.2d at 997, refused to apply the exception to the case before it. The court noted that hijacking policy and guidelines had already been set by the appropriate agencies, id., and so the scope of authority of the agents on the scene was simply to execute that policy. If they did so negligently, the Sixth Circuit was of the opinion that the FTCA permitted suit. See also Swanner v. United States, 309 F.Supp. 1183 (M.D.Ala.1970) (discretionary function exception does not prevent suit under FTCA for negligent failure to protect informant after decision to investigate and prosecute had already been made). Cases involving regulatory activity seem to display the same characteristics just noted in criminal law enforcement cases. When policy considerations extend into regulatory enforcement judgments, the cases hold the judgments to be protected acts of discretion with notable consistency. For example, in a suit under the FTCA for damages allegedly caused by the NLRB’s delay in securing compliance with reinstatement orders, the Fifth Circuit found that the agency’s allocation of its enforcement caseload was a nonactionable discretionary function, for it involved “public policy considerations — balancing of various cost-benefit considerations to advance the public interest.” J. H. Rutter Rex Mfg. Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975), cert, denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976). The court, however, carefully noted the limitations on protected regulatory discretion: The cases following Dalehite make clear that an absolutist interpretation of the discretionary function is improper. It is not sufficient for the government to demonstrate that some choice was involved in the decision-making process. That showing could be made in almost every case. The nature of the judgment must also call for the balancing of policy considerations. Id. (citations omitted). Similarly, in Gercey v. United States, 409 F.Supp. 946 (D.R.I.), aff’d., 540 F.2d 536 (1st Cir. 1976), cert, denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977), parents of a boy who died when the boat from which he was fishing sank sued" }, { "docid": "23339389", "title": "", "text": "28 U.S.C. § 2672, is peppered with exceptions, however, which we are bound to apply rigorously. Sherwood, supra, 312 U.S. at 590, 61 S.Ct. at 771, 85 L.Ed.2d at 1063; Ware v. United States, 626 F.2d 1278, 1286 (5th Cir.1980). The district court held that appellant’s claims were not covered by the FTCA’s waiver because they fell into exceptions created by §§ 2680(a) and (h), and also that appellant had failed to satisfy the administrative exhaustion requirements of 28 U.S.C. § 2675(a). We address these findings in turn. (a) § 2680(a) One of the limitations in the FTCA upon the waiver of sovereign immunity is found in 28 U.S.C. § 2680(a), which provides that sovereign immunity shall not be waived with respect to: [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. The Supreme Court carefully examined the contours of this section of the FTCA in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), and concluded that: the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. 346 U.S. at 35-36, 73 S.Ct. at 968 (footnotes omitted). The scope of the exception was thus early interpreted so broadly that this Circuit was prompted to issue the following caveat: [i]f the Torts Claims Act is to have the corpuscular vitality to cover anything" }, { "docid": "22430158", "title": "", "text": "found that the agency’s allocation of its enforcement caseload was a nonactionable discretionary function, for it involved “public policy considerations — balancing of various cost-benefit considerations to advance the public interest.” J. H. Rutter Rex Mfg. Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975), cert, denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976). The court, however, carefully noted the limitations on protected regulatory discretion: The cases following Dalehite make clear that an absolutist interpretation of the discretionary function is improper. It is not sufficient for the government to demonstrate that some choice was involved in the decision-making process. That showing could be made in almost every case. The nature of the judgment must also call for the balancing of policy considerations. Id. (citations omitted). Similarly, in Gercey v. United States, 409 F.Supp. 946 (D.R.I.), aff’d., 540 F.2d 536 (1st Cir. 1976), cert, denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977), parents of a boy who died when the boat from which he was fishing sank sued the government for alleged negligence by the Coast Guard in performance of its certification and inspection duties. The boat had been decertified by the Coast Guard as unsafe, but no follow-up enforcement procedures had been instituted to ensure that the boat did not continue to take passengers to sea. The court held that the regulatory activity challenged was discretionary because of the activity’s particular attributes. Even if the Coast Guard were under an absolute duty ... to enforce affirmatively the inspection statutes, the Coast Guard’s choice of means by which to carry out that duty would be a completely discretionary, policy-making decision, and governmental agencies are generally free from liability resulting from such decisions. 409 F.Supp. at 953. See also Kiiskila v. United States, 466 F.2d 626 (7th Cir. 1972) (security exclusion from army base); Holmes v. Eddy, 341 F.2d 477 (4th Cir.) (SEC investigation), cert, denied, 382 U.S. 892, 86 S.Ct. 185, 15 L.Ed.2d 149 (1965); Goddard v. District of Columbia Redevelop. Land Agency, 109 U.S.App.D.C. 304, 287 F.2d 343 (institution and prosecution of" }, { "docid": "11250898", "title": "", "text": "The court granted this dismissal. The Federal Tort Claims Act waives the government’s sovereign immunity from suit for certain specified torts, and it vests exclusive jurisdiction in the federal district courts to adjudicate claims made thereunder. The Congress excepted from the waiver of immunity claims arising out of any act, either of commission or omission, involving a discretionary function or duty. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The discretionary function “includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Id. at 35-36, 73 S.Ct. at 968. Although in subsequent decisions, including Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), and Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), the Supreme Court narrowed the Dalehite guidelines, discretionary decision- making, as distinguished from nondiscretionary acts of execution, clearly remains subject to the exemption and outside the jurisdictional pale of the district court. Payton v. United States, 679 F.2d 475 (5th Cir.1982) (en banc). See also Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir.1981), and cases cited therein. The Supreme Court recently reaffirmed the basic Dalehite holding on the discretionary exception in United States v. S.A. Empresa de Viacao Aerea Rio Grandense, — U.S. -, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The DJ-5b jeep is classified as a light truck, a “quarter ton,” by the Department of Transportation and is so identified by a decal on its dashboard. These vehicles have been used by the Postal Service from the time they were first marketed in 1972. Under Postal Service practices and procedures once a vehicle reaches eight years of age or travels 40,000 to 50,000 miles, it is generally sold at a public surplus sale. The decision to sell — based on consideration of the economics of repair, time in service, use, and other factors pertinent to a decision about the useful life of a vehicle — is a" }, { "docid": "20100216", "title": "", "text": "Moreover, the affidavit reflects no facts concerning the installation and maintenance of the queuing system at the 90th Street postal station. . This narrow construction of the discretionary function exception is entirely consistent with the oft-quoted language of Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953): It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.\" (Emphasis added.) Administrative determinations which turn on the exercise of policy judgment may well be insulated from liability. On the other hand, choices made by officials at whatever level which do not turn on considerations of public policy are not protected by the exception for discretionary functions. . See also United States v. DeCamp, 478 F.2d 1188, 1192 (9th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 232, 38 L.Ed.2d 158 (1973) (decision \"not predicated upon considerations of public policy but upon general standards of safety. Accordingly, state tort law can capably measure the reasonableness of the engineer’s judgment in applying professional standards of safety____ [where] the merits of th[e] case are not laden with political questions or other elements suggesting nonjusticiability\"). . To the extent considerations of safety or efficiency are considered in such a choice, they are relevant in the same way as they are to any private entity which invites patrons onto its property. A balancing of such factors does not necessarily render a decision a policy choice. . Defendant cites Doe v. United States, 718 F.2d 1039, 1042 (11th Cir.1983), for the proposition that decisions of the Postal Service regarding location and operating hours of a station are discretionary acts for which liability cannot lie to a patron assaulted in the station’s lobby. While the" }, { "docid": "20317375", "title": "", "text": "or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion. 346 U.S. at 34, 35-36, 73 S.Ct. at 967-968 (footnotes omitted) (emphasis supplied). The numerous cases decided since Dalehite have not been consistent in determining the types of activities which come within the discretionary function exception. Some general principles have, however, emerged. Thus, some courts have looked to see if the governmental decision required a balancing of such policy factors as the cost of a program and its potential benefit. See, e.g., Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.1974). This analysis finds support in the previously quoted statement of the Supreme Court in Dalehite that “[w]here there is room for policy judgment and decision there is discretion.” 346 U.S. at 36, 73 S.Ct. at 196. Other courts have sought to determine whether the decision was made at a “planning” or at an “operational” level. See, e.g., Miller v. United States, 583 F.2d 857, 867 (6th Cir.1978). This approach emphasizes the finding in Dalekite that the exception applied because “[t]he decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program.” 346 U.S. at 42, 73 S.Ct. at 971. Still other courts have endeavored to look both for a “policy judgment” and a “planning level” decision in determining whether the government’s action is protected by the discretionary function exception. See, e.g., Madison v. United States, 679 F.2d 736, 739 (8th Cir.1982); Blessing v. United States, 447 F.Supp. 1160, 1167-86 (E.D.Pa.1978). The precise issue here presented has been determined by two other courts with conflicting results. In Stewart" }, { "docid": "16281326", "title": "", "text": "the omitted issuance of the sterilization guidelines, OEO Instruction 6130-2 (unissued), “was purely a ministerial act.” For support, plaintiffs point out that an appropriate judicial standard for determining the applicability of the discretionary function exception is the “planning vs. operations level” test. Several courts have held that the exception is not applicable where the challenged conduct is at an “operations level,” even though such conduct is required for the execution of a planning level decision. See Eastern Air Lines, Inc. v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, 78, aff’d per curiam sub nom. United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955); Swanson v. United States, 229 F.Supp. 217, 221 (N.D.Cal.1964). Plaintiffs therefore make the argument that Dr. Cooper’s decision to withhold distribution of the finalized and printed guidelines involved what was a mere operational implementation of the OEO policy change previously announced. Although plaintiffs have advanced scant factual analysis in support of this view, their ultimate conclusion is that this Court should find Dr. Cooper’s decision to be outside of the exception because it was assertedly not “based on considerations of public policy.” However, the Court finds that Dr. Cooper’s decision not to officially issue and distribute the sterilization guidelines pending the resolution of existing policy concerns is exactly the type of decisionmaking which Congress had in mind when enacting the discretionary function exception to the Federal Tort Claims Act. See Monarch Insurance Co. of Ohio v. District of Columbia, 353 F.Supp. 1249, 1258 (D.D.C.1973), aff’d, 162 U.S.App.D.C. 97, 497 F.2d 684 (1974). As has been stated by the Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the discretionary function exception is properly construed to include “determinations made by executives or administrators in establishing plans, specifications or .schedules of operations. Where there is room for policy judgment and decision there is discretion.” Id. at 35-36, 73 S.Ct. at 968. Although this construction has been narrowed somewhat by later cases, the exception unquestionably applies to decisions which of necessity involve the" }, { "docid": "6442005", "title": "", "text": "of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680. The government, therefore, is not liable for the loss of the dogs, and we must affirm the decision of the district court, if Ranger Bowen either was “exercising due care in the execution of a statute or regulation,” or was “perform(ing) a discretionary function or duty.” See Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956); Bernitsky v. United States, 620 F.2d 948 (3d Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980). A. In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the leading ease regarding the “discretionary function” exception of the Federal Tort Claims Act, the Court concluded that (T)he “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. Id. at 35-36, 73 S.Ct. at 967-968 (footnotes omitted). Courts have experienced considerable difficulty in applying Daiehite to determine whether particular actions are within the discretionary function exception. See Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980); Downs v. United States, 522 F.2d 990, 996 (6th Cir. 1975); Depass v. United States, 479 F.Supp. 373, 375 (D.Md.1979). In attempting to define and distinguish decisions made at the “planning level” from those made at the “operational level,”" } ]

[ { "docid": "9513787", "title": "", "text": "1956 amendment, should be liberally construed. Harper v. Flemming, supra; Henderson v. Flemming, supra. The trial court expressed the view that the only record of arrangement is to be found in the written lease. The court then goes on to say: “Because nearly all farm share-rental arrangements in this area do involve more than a bare rental of real estate, the decisive question to be determined is whether the 1956 amendments to the Act were intended by Congress to encompass most of these situations or only those which involve a substantial degree of landlord participation going considerably beyond the normal amount. The standards set forth by the Social Security Administration clearly require far more than the usual amount of the landlord participation in farm production.” 190 F.Supp. 928. We find no basis in the statute for such a standard. The Act provides coverage for material participation. As pointed out in the trial court’s opinion, Social Security coverage has been constantly broadened. We believe that it is the legislative intent as expressed by the words of the statute that a landlord will qualify for coverage if he materially participates in production or management of production regardless of whether many or few landlords qualify. The foregoing ■quotation from the trial court’s opinion reflects that the court places a qualification upon coverage not contemplated by the statute. Moreover, our examination of the lease, found at pages 928-929 of 190 F.Supp., and the comparison of such lease with others in general use, satisfies us that the lease here used, which was a form specifically prepared by the farm management company, gives the landlord Lroad management powers and contains provisions not contained in many leases. An important provision of the lease •reads: “[T]he Tenants agree, without expense to the Landlord, to furnish all necessary tools, machinery, equipment, livestock, crop seeds (including hybrid seed corn), and labor to operate and maintain the farm in a husbandlike manner and to put in such crops in such manner as the Landlord may direct * * Unquestionably the italicized portion ■of the provision just quoted gives the ■owner broad" } ]

[ { "docid": "1288130", "title": "", "text": "and some weekends from an automobile and checking for damage following major storms constituted inspecting the production activities of the farms. The lease agreements generally required the landlords to pay for one-half of the seed, the taxes on the land, and fire and wind insurance on the residence and all buildings used to store grain and machinery. Thus, the landlords did assume a substantial portion of the expense involved in the operation of the farms. All of the production machinery used to plow, disk, plant, and harvest the farmland was provided by the tenants. Although the landlords did provide some grain storage machinery, this clearly was not a \"substantial portion” of the machinery used for production. Petitioner argues that it was not the custom for landlords in Peoria County to furnish their crop-share tenants machinery used for production. Petitioner has not cited any authority suggesting that local customs are significant in applying the regulations, and his argument with respect to them is not persuasive. Based on the foregoing analysis of the factors specified in section 20.2032A-3(e)(2), Estate Tax Regs., we conclude that petitioner did not at any time relevant herein materially participate in the operation of the farmland. Petitioner argues, however, that the regulations under section 2032A are invalid to the extent that they \"impose a higher standard of activity to accomplish material participation” than the regulations under section 1402(a)(1). This argument is predicated upon the language of section 2032A(e)(6) directing that material participation is to be determined in a manner \"similar to” the manner used for purposes of section 1402(a)(1). Apparently petitioner interprets the \"similar to” language to mean \"identical to.” We need not decide here, however, whether the regulations promulgated under section 2032A impose a higher standard of activity to qualify as material participation than that contemplated by Congress, because petitioner did not materially participate in the operation of the farmland within the meaning of section 1402(a)(1). The pertinent part of section 1.1402(a)-4, Income Tax Regs., provides: Sec. 1.1402(a)-4. Rentals from real estate. (b) Special rule for includible farm rental income” — (1) In general. Notwithstanding the rules" }, { "docid": "9513789", "title": "", "text": "managerial powers which go far beyond a provision authorizing the owner to submit a farm plan. In ■our view this provision authorizes the landlord to direct and supervise the method of preparing the seed bed, the time ■and method of planting the seed, the amount of seed to be planted per acre, and related matters, which would appear to be substantial managerial functions which would have a material bearing upon production. While plaintiff urges that the words “as the landlord may ■direct” apply to the tenant’s obligation to operate and maintain the farm in a husbandlike manner, she observes that .she does not have to rely upon such broad interpretation to prevail. Accordingly, we will not pursue this rather close question of interpretation. Additional lease provisions give the landlord the right to approve seed planted, to designate fields upon which manure is to be spread as fertilizer, to determine whether meadows or pastures are to be plowed, to direct the clipping of newly sown clover, and the cutting of weeds, and determine whether to participate in Government farm programs. It is apparent to us that the provisions of the lease considered as a whole reserve to the landlord important managerial responsibilities which have a substantial effect upon production and that the exercise of such rights would collectively require numerous and periodical inspections and consultations. The proper seed bed to be prepared for each different crop, the method of seeding, the choice of type of seed best suited to the climate and the soil, the application of manure and other fertilizer at the place where it will prove most effective, the control of weeds, and the participation in Government programs, are items which materially affect the production of agricultural commodities. The trial court found some support for its views in Conley v. Flemming, D.C. S.D.Cal., 190 F.Supp. 906. This case was reversed upon appeal. Conley v. Ribicoff, 9 Cir., 294 F.2d 190. The opinion of the appellate court strongly supports the plaintiff’s position. Our case of Hoffman v. Ribicoff, 8 Cir., 305 F.2d 1, upon which the Secretary relies, is readily" }, { "docid": "1288132", "title": "", "text": "set forth in paragraph (a) of this section, there shall be included in determining net earnings from self-employment for taxable years ending after 1955 any income derived by an owner or tenant of land, if the following requirements are met with respect to such income: (i) The income is derived under an arrangement between the owner or tenant of land and another person which provides that such other person shall produce agricultural or horticultural commodities on such land, and that there shall he material participation by the owner or tenant in the production or the management of the production of such agricultural or horticultural commodities; and (ii) There is material participation by the owner or tenant with respect to any such agricultural or horticultural commodity. Income so derived shall be referred to in this section as \"includible farm rental income”. * * * * * * * (4) Actual participation. In order for the rental income received by the owner or tenant of land to be treated as includible farm rental income, not only must it be derived pursuant to the arrangement described in subpara-graph (1) of this paragraph, but also the owner or tenant must actually participate to a material degree in the production or in the management of the production of any of the commodities required to be produced under the arrangement, or he must actually participate in both the production and the management of the production to an extent that his participation in the one when combined with his participation in the other will be considered participation to a material degree. If the owner or tenant shows that he periodically advises or consults with the other person, who under the arrangement produces the agricultural or horticultural commodities, as to the production of any of these commodities and also shows that he periodically inspects the production activities on the land, he will have presented strong evidence of the existence of the degree of participation contemplated by section 1402(a)(1). If, in addition to the foregoing, the owner or tenant shows that he furnishes a substantial portion of the machinery," }, { "docid": "1288131", "title": "", "text": "20.2032A-3(e)(2), Estate Tax Regs., we conclude that petitioner did not at any time relevant herein materially participate in the operation of the farmland. Petitioner argues, however, that the regulations under section 2032A are invalid to the extent that they \"impose a higher standard of activity to accomplish material participation” than the regulations under section 1402(a)(1). This argument is predicated upon the language of section 2032A(e)(6) directing that material participation is to be determined in a manner \"similar to” the manner used for purposes of section 1402(a)(1). Apparently petitioner interprets the \"similar to” language to mean \"identical to.” We need not decide here, however, whether the regulations promulgated under section 2032A impose a higher standard of activity to qualify as material participation than that contemplated by Congress, because petitioner did not materially participate in the operation of the farmland within the meaning of section 1402(a)(1). The pertinent part of section 1.1402(a)-4, Income Tax Regs., provides: Sec. 1.1402(a)-4. Rentals from real estate. (b) Special rule for includible farm rental income” — (1) In general. Notwithstanding the rules set forth in paragraph (a) of this section, there shall be included in determining net earnings from self-employment for taxable years ending after 1955 any income derived by an owner or tenant of land, if the following requirements are met with respect to such income: (i) The income is derived under an arrangement between the owner or tenant of land and another person which provides that such other person shall produce agricultural or horticultural commodities on such land, and that there shall he material participation by the owner or tenant in the production or the management of the production of such agricultural or horticultural commodities; and (ii) There is material participation by the owner or tenant with respect to any such agricultural or horticultural commodity. Income so derived shall be referred to in this section as \"includible farm rental income”. * * * * * * * (4) Actual participation. In order for the rental income received by the owner or tenant of land to be treated as includible farm rental income, not only must" }, { "docid": "1288125", "title": "", "text": "parties agree that the requirements of section 2032A other than the \"material participation” requirement of section 2032A(b)(l)(C)(ii) have been met. Thus, the sole issue for determination is whether the decedent or a member of her family materially participated in the operation of the farmland. Section 2032A(e)(6) provides, \"Material participation shall be determined in a manner similar to the manner used for purposes of paragraph (1) of section 1402(a) (relating to net earnings from self-employment). ” (Emphasis supplied.) On July 28, 1980, pursuant to authority granted by section 7805(a), the Secretary adopted interpretative regulations under section 2032A. Although such regulations were adopted after the date of decedent’s death, assuming their validity, these regulations are applicable to decedent’s estate. See Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129 (1936); sec. 7805(b). The pertinent portions of section 20.2032A-3, Estate Tax Regs., provide: Sec. 20.2032A-3. Material participation requirements for valuation of certain farm and closely-held business real property. (a) In general. * * * Whether the required material participation occurs is a factual determination, and the types of activities and financial risks which will support such a finding will vary with the mode of ownership of both the property itself and of any business in which it is used. * * * ******* (e) Required activities — (1) In general. Actual employment of the decedent (or of a member of the decedent’s family) on a substantially full-time basis (35 hours a week or more) or to any lesser extent necessary personally to manage fully the farm or business in which the real property to be valued under section 2032A is used constitutes material participation. * * * In the absence of this direct involvement in the farm or other business, the activities of either the decedent or family members must meet the standards prescribed in this paragraph and those prescribed in the regulations issued under section 1402 (a)(1). * * * (2) Factors considered. No single factor is determinative of the presence of material participation, but physical work and participation in management decisions are the principal factors to be considered. As a minimum," }, { "docid": "1288135", "title": "", "text": "and fertilizer, and that petitioner did not consult with the tenants regarding most of the actual production decisions such as when to plow, fertilize, disk, plant, and harvest; (2) petitioner’s frequent drives past and through the three farms and his visits to the farms following major storms were not equivalent to inspecting the production activities on the land; (3) the tenants furnished all machinery other than some grain storage machinery; and (4) the landlords assumed a substantial portion of the financial responsibility involved in producing the crops. Giving appropriate weight to each of these four factors, we hold that petitioner did not participate in the management of the production of the agricultural commodities to a material degree within the meaning of section 1.1402(a)-4(b)(4), Income Tax Regs. The conclusion reached in this case is supported by the legislative history of the 1981 amendments to section 2032A. Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172. Effective for estates of decedents dying after December 31, 1981, the definition of \"material participation” was expanded, to include certain \"eligible qualified heirs” who \"actively managed” the farm or other business. Sec. 2032A(c)(7)(B). \"Eligible qualified heirs” include the surviving spouse of the decedent and qualified heirs who are under the age of 21, disabled, or students. Sec. 2032A(c)(7)(C). The Senate Committee report defines \"active management” as follows: Among the farming activities, various combinations of which constitute active management, are inspecting growing crops, reviewing and approving annual crop plans in advance of planting, making a substantial number of the management decisions of the business operation, and approving expenditures for other than nominal operating expenses in advance of the time the amounts are expended. Examples of management decisions are decisions such as what crops to plant or how many cattle to raise, what fields to leave fallow, where and when to market crops and other business products, how to finance business operations, and what capital expenditures the trade or business should undertake. [S. Rept. 97-144 (1981), 1981-2 C.B. 412, 464.] In their most favorable light, petitioner’s activities may be described as inspecting growing crops, approving" }, { "docid": "9513790", "title": "", "text": "in Government farm programs. It is apparent to us that the provisions of the lease considered as a whole reserve to the landlord important managerial responsibilities which have a substantial effect upon production and that the exercise of such rights would collectively require numerous and periodical inspections and consultations. The proper seed bed to be prepared for each different crop, the method of seeding, the choice of type of seed best suited to the climate and the soil, the application of manure and other fertilizer at the place where it will prove most effective, the control of weeds, and the participation in Government programs, are items which materially affect the production of agricultural commodities. The trial court found some support for its views in Conley v. Flemming, D.C. S.D.Cal., 190 F.Supp. 906. This case was reversed upon appeal. Conley v. Ribicoff, 9 Cir., 294 F.2d 190. The opinion of the appellate court strongly supports the plaintiff’s position. Our case of Hoffman v. Ribicoff, 8 Cir., 305 F.2d 1, upon which the Secretary relies, is readily distinguishable. We there determined that the only control the landlord reserved by the lease was to provide a crop plan. As we have heretofore pointed out, the lease before us gives the landlord far greater control. In Hoffman, the court found there was substantial evidentiary support for the finding of want of actual material participation. In our present case the Secretary does not urge that what Midland did does not constitute material participation. In Hoffman we stated that whether there is material participation contemplated by the statute “is a factual determination that can only be made on a case-to-case consideration.” We hold that the lease provided for an arrangement for material participation in the management of production and that the decision of the Secretary and the affirming opinion of the trial court to the contrary were induced by an erro neous interpretation of the statute and the lease. Our decision upon the foregoing issue makes it unnecessary to consider plaintiff’s additional contention that the practice of the tenant over a period of years to submit" }, { "docid": "1288119", "title": "", "text": "shall be the crops and varieties planted, and the fertility applied: For each succeeding year that this lease remains in effect, the two parties shall review Section 5, A and B, before the lease year begins, to decide upon (1) any changes in the cropping system, (2) varieties and acreages of each crop to be planted, and (3) kinds and amounts of fertilizer to be applied. The Landlord shall counsel with the Tenant at appropriate intervals on the best time for planting, working, and harvesting crops. [Emphasis supplied.] The portion of the \"1958 lease” for specifying the cropping system (i.e., section 5.B.) was never completed, and no written agreement concerning the cropping system was ever executed between petitioner and any of the three tenants. The system of crop rotation had been established by decedent’s father prior to 1950, and that pattern was generally followed by the tenants. Each year petitioner and the tenants discussed the planned crops for the succeeding year, especially when major changes in the rotation system were contemplated. From the time these leases were executed through the date of decedent’s death, the facts concerning the actual operation of the farms remained virtually constant. The tenants were experienced farmers and most production decisions, including when to plow, fertilize, disk, plant, and harvest, were made without consulting petitioner. Petitioner was consulted regarding improvements or major repairs to the property. The custom in Peoria County during the 8-year period preceding decedent’s death was for the crop-share tenants to provide the production machinery used to plow, disk, plant and harvest, and such machinery was supplied by the tenants. The landlords provided some machinery used for storing the grain. At no time during this period did decedent or a member of her family utilize any of the farmland as their principal residence. Petitioner was a full-time employee of the First National Bank of Chillicothe from 1948 through the date of decedent’s death, and he performed no physical work on any of the three farms. In his capacity as áttorney-in-fact and agent for the landlords, petitioner maintained detailed financial records concerning the landlords’" }, { "docid": "1288126", "title": "", "text": "activities and financial risks which will support such a finding will vary with the mode of ownership of both the property itself and of any business in which it is used. * * * ******* (e) Required activities — (1) In general. Actual employment of the decedent (or of a member of the decedent’s family) on a substantially full-time basis (35 hours a week or more) or to any lesser extent necessary personally to manage fully the farm or business in which the real property to be valued under section 2032A is used constitutes material participation. * * * In the absence of this direct involvement in the farm or other business, the activities of either the decedent or family members must meet the standards prescribed in this paragraph and those prescribed in the regulations issued under section 1402 (a)(1). * * * (2) Factors considered. No single factor is determinative of the presence of material participation, but physical work and participation in management decisions are the principal factors to be considered. As a minimum, the decedent and/or a family member must regularly advise or consult with the other managing party on the operation of the business. While they need not make all final management decisions alone, the decedent and/or family members must participate in making a substantial number of these decisions. Additionally, production activities on the land should be inspected regularly by the family participant, and funds should be advanced and financial responsibility assumed for a substantial portion of the expense involved in the operation of the farm or other business in which the real property is used. In the case of a farm, the furnishing by the owner or other family members of a substantial portion of the machinery, implements, and livestock used in the production activities is an important factor to consider in finding material participation. With farms, hotels, or apartment buildings, the operation of which qualifies as a trade or business, the participating decedent or heir’s maintaining his or her principal place of residence on the premises is a factor to consider in determining whether the" }, { "docid": "1288134", "title": "", "text": "implements, and livestock used in the production of the commodities or that he furnishes or advances funds, or assumes financial responsibility for a substantial part of the expense involved in the production of the commodities, he will have established the existence of the degree of participation contemplated by section 1402(a)(1) and this paragraph. [Emphasis added.] Petitioner did not participate in the production of any of the commodities on the farmland. We must consider, therefore, whether he actually participated to a material degree in the \"management of the production” of the commodities. The major difference between the factors mentioned in this regulation and those specified in section 20.2032A-3(e), Estate Tax Regs., is that the latter regulation includes as a factor to be considered whether the participating decedent or heir maintained his principal place of residence on the premises. The evidence here is that: (1) Petitioner’s advice to or consultation with the tenants regarding the operation-of the farms was generally limited to discussing the succeeding year’s planned crops and where to purchase the landlord’s share of seed and fertilizer, and that petitioner did not consult with the tenants regarding most of the actual production decisions such as when to plow, fertilize, disk, plant, and harvest; (2) petitioner’s frequent drives past and through the three farms and his visits to the farms following major storms were not equivalent to inspecting the production activities on the land; (3) the tenants furnished all machinery other than some grain storage machinery; and (4) the landlords assumed a substantial portion of the financial responsibility involved in producing the crops. Giving appropriate weight to each of these four factors, we hold that petitioner did not participate in the management of the production of the agricultural commodities to a material degree within the meaning of section 1.1402(a)-4(b)(4), Income Tax Regs. The conclusion reached in this case is supported by the legislative history of the 1981 amendments to section 2032A. Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172. Effective for estates of decedents dying after December 31, 1981, the definition of \"material participation” was expanded, to" }, { "docid": "1288128", "title": "", "text": "overall participation is material. Retention of a professional farm manager will not by itself prevent satisfaction of the material participation requirement by the decedent and family members. However, the decedent and/or a family member must personally materially participate under the terms of arrangement with the professional farm manager to satisfy this requirement. [Emphasis supplied.] Petitioner contends that his participation in the management of the farmland was \"material.” Petitioner was not, however, actually employed in these farms on a substantially full-time basis; thus, we must consider the applicable factors set forth in section 20.2032A-3(e)(2), Estate Tax Regs. Petitioner’s participation in management decisions was generally limited to discussing with the tenants the planned crops for the succeeding year, directing the tenants where to purchase the landlord’s share of the seed and fertilizer, and consulting with the tenants regarding improvements or major repairs to the property. At most, these decisions required attention on an infrequent basis. Although petitioner did speak with his long-time acquaintance and liaison to the other two tenants, Mr. Fogg, once or twice per week, he has not established the extent, if any, to which advice or consultation regarding the actual operation of farms transpired during these conversations. All of the tenants were experienced farmers, and most of the actual operating decisions regarding the farms were made by them without advice from or consultation with petitioner. These decisions included such key decisions as when to plow, fertilize, disk, plant, and harvest. Based on the weight of the evidence, we conclude that petitioner did not regularly advise or consult the tenants regarding the operation of the farms and that he did not participate in a substantial number of final management decisions, as required by the regulations. Petitioner frequently drove the roads adjacent to and dissecting the farmland on summer evenings and on some weekends. He also visited the farms following major storms to check for damage. The regulation, however, refers to the inspection of \"production” activities. Production activities include plowing, disking, planting, and harvesting. It would require at best a strained interpretation to conclude that petitioner’s viewing the farms on evenings" }, { "docid": "9513784", "title": "", "text": "such agricultural or horticultural commodities,” Social Security pamphlet OASI-33d, with respect to arrangement, states: “3. Must my arrangement with my tenant be in writing ? “It is not necessary that your arrangement be in writing. It may be oral. In this connection, however, you should bear in mind that you must be able to establish that your arrangement provides for material participation by you, and the existence of such a provision is easier to establish if written. “4. If I don’t have a written arrangement, how can I show that my participation was provided for or contemplated ? “The mutual understanding you had with your tenant is your arrangement. Your understanding is shown by your acts, those of your tenant, how you and your tenant acted in previous years on similar matters, common practices in the area, and statements by you, your tenant, or even third persons who may know the facts as to how you intended to operate.” We agree with the trial court’s view that the arrangement provision in the statute clearly contemplates that the landlord be authorized to materially participate in the production or management of production of agricultural commodities and that volunteer services or inspection on the part of the landlord in the absence of any arrangement therefor will not suffice. The important words in the controlling statute are “material participation.” The meaning of the word “participation” is not in dispute. The controversy arises with reference to the word “material.” The word “material” is a common word having a well-understood meaning. Webster’s New International Dictionary, 2d Ed., defines “material” as follows: “Of solid or weighty character; substantial; of consequence; not to be dispensed with; important.” “[T]he 1956 amendment does not demand that the owner settle all the problems or even all the important problems that arise in connection with the operation of the farm, for the word ‘participation’ denotes joint activity in the entire enterprise and its modifier ‘material’ only requires that the activity be of substantial value or importance.” Conley v. Ribicoff, supra, 294 F.2d 190, 195. “But the variables of our complex rural economy," }, { "docid": "9513782", "title": "", "text": "be planted and what type of seed shall be sown, but as to the planting, cultivation and harvesting, the lease merely provides that the tenant shall operate the farm and maintain it in a husbandlike manner.” The lease between the plaintiff and her tenant, the farm management contract between plaintiff and Midland Farm Management Company, a competent and reputable farm management agency, and reports as to Midland’s managerial activities in relation to the farm, as well as other pertinent facts, are fully set out in the trial court’s opinion reported at 190 F.Supp. 908, and we deem it unnecessary to set out in any detail such factual information. The standards for review of the Secretary’s decisions are fully and correctly set out with supporting authorities in the trial court’s opinion. The findings of the referee, which became the findings of the Secretary upon denial of request for review, cannot be upset if supported by substantial evidence. However, with respect to questions of law, including matters of statutory construction and the interpretation of leases or contracts, courts are not bound by the administrative interpretation. Conley v. Ribicoff, 9 Cir., 294 F.2d 190, 194; Henderson v. Flemming, 5 Cir., 283 F.2d 882, 884. The basic problems here confronting us are questions of law relating to the meaning to be attributed to the words “material participation” as found in 42 U.S.C.A. § 411(a) (1), and the interpretation of the provisions of the lease contract relating to the landlord’s participation in the management of production. If the Secretary has misinterpreted or misapplied the law, it is our duty to correct the error. With respect to arrangement, § 411(a) (1) provides that rentals from real estate shall not be considered self-employment income unless: “(A) such income is derived under an arrangement, between the owner or tenant and another individual, which provides that such other individual shall produce agricultural or horticultural commodities (including livestock, bees, poultry, and fur-bearing animals and wildlife) on such land, and that there shall be material participation by the owner or tenant in the production or the management of the production of" }, { "docid": "1288133", "title": "", "text": "it be derived pursuant to the arrangement described in subpara-graph (1) of this paragraph, but also the owner or tenant must actually participate to a material degree in the production or in the management of the production of any of the commodities required to be produced under the arrangement, or he must actually participate in both the production and the management of the production to an extent that his participation in the one when combined with his participation in the other will be considered participation to a material degree. If the owner or tenant shows that he periodically advises or consults with the other person, who under the arrangement produces the agricultural or horticultural commodities, as to the production of any of these commodities and also shows that he periodically inspects the production activities on the land, he will have presented strong evidence of the existence of the degree of participation contemplated by section 1402(a)(1). If, in addition to the foregoing, the owner or tenant shows that he furnishes a substantial portion of the machinery, implements, and livestock used in the production of the commodities or that he furnishes or advances funds, or assumes financial responsibility for a substantial part of the expense involved in the production of the commodities, he will have established the existence of the degree of participation contemplated by section 1402(a)(1) and this paragraph. [Emphasis added.] Petitioner did not participate in the production of any of the commodities on the farmland. We must consider, therefore, whether he actually participated to a material degree in the \"management of the production” of the commodities. The major difference between the factors mentioned in this regulation and those specified in section 20.2032A-3(e), Estate Tax Regs., is that the latter regulation includes as a factor to be considered whether the participating decedent or heir maintained his principal place of residence on the premises. The evidence here is that: (1) Petitioner’s advice to or consultation with the tenants regarding the operation-of the farms was generally limited to discussing the succeeding year’s planned crops and where to purchase the landlord’s share of seed" }, { "docid": "9513788", "title": "", "text": "the statute that a landlord will qualify for coverage if he materially participates in production or management of production regardless of whether many or few landlords qualify. The foregoing ■quotation from the trial court’s opinion reflects that the court places a qualification upon coverage not contemplated by the statute. Moreover, our examination of the lease, found at pages 928-929 of 190 F.Supp., and the comparison of such lease with others in general use, satisfies us that the lease here used, which was a form specifically prepared by the farm management company, gives the landlord Lroad management powers and contains provisions not contained in many leases. An important provision of the lease •reads: “[T]he Tenants agree, without expense to the Landlord, to furnish all necessary tools, machinery, equipment, livestock, crop seeds (including hybrid seed corn), and labor to operate and maintain the farm in a husbandlike manner and to put in such crops in such manner as the Landlord may direct * * Unquestionably the italicized portion ■of the provision just quoted gives the ■owner broad managerial powers which go far beyond a provision authorizing the owner to submit a farm plan. In ■our view this provision authorizes the landlord to direct and supervise the method of preparing the seed bed, the time ■and method of planting the seed, the amount of seed to be planted per acre, and related matters, which would appear to be substantial managerial functions which would have a material bearing upon production. While plaintiff urges that the words “as the landlord may ■direct” apply to the tenant’s obligation to operate and maintain the farm in a husbandlike manner, she observes that .she does not have to rely upon such broad interpretation to prevail. Accordingly, we will not pursue this rather close question of interpretation. Additional lease provisions give the landlord the right to approve seed planted, to designate fields upon which manure is to be spread as fertilizer, to determine whether meadows or pastures are to be plowed, to direct the clipping of newly sown clover, and the cutting of weeds, and determine whether to participate" }, { "docid": "3805714", "title": "", "text": "date of the decedent’s death. * * * * * * . The tax relief afforded by section 2032A goes beyond simply substituting actual use for highest and best use. Section 2032A(e)(7)(A) prescribes a capitalization of earnings approach, bottomed on the \"average gross cash rental for comparable land used for farming purposes.” Thus, even if farming is the optimal use of particular land, the nature of farming activities may be such that the current return is relatively low. Since the statute permits an executor to ignore the investment value of the land, and to look only to the current return, it paves the way for substantial write-downs of farm property for estate tax purposes. . The Regulations give additional content to these criteria, as follows (Treasury Regulations on Estate Tax, Sec. 20.2032A-3(e)(2)): While they need not make all final management decisions alone, the decedent and/or family members must participate in making a substantial number of these decisions. Additionally, production activities on the land should be inspected regularly by the family participant, and funds should be advanced and financial responsibility assumed for a substantial portion of the expense involved in the operation of the farm or other business in which the real property is used. In the case of a farm, the furnishing by the owner or other family members of a substantial portion of the machinery, implements, and livestock used in the production activities is an important factor to consider in finding material participation. Eight examples in the Regulations spell out variations on this theme and explain the approach of the Treasury to the differing factual situations. . Even if the fair market value of the timber itself were taken into account along with the timberland, the estate would still fall 17 percent short of reaching the 50 percent threshold. . The House Report on the 1976 Act provided in relevant part as follows: Qualifying Real Property. — Real property may qualify for special use valuation if it is located in the United States and if it is devoted to either (1) use as a farm for farming purposes, or" }, { "docid": "9513786", "title": "", "text": "well known to Congress, presented other situations in which the owner of the land did much more than furnish the land (and for which he would receive his rental). He might, under the arrangement, determine the crops to be planted, the areas to be cultivated, the time of planting, the fertilization program, and the maimer and time of harvesting. If these activities were of a material, i. e., substantial importance from a practical point of view, then the Amendment was to make such activities self-employment by the owner and the proceeds income from self-employment.” Henderson v. Flemming, supra, 283 F.2d 882, 888. The legislative history of the statute that we are considering is fully set out in the trial court’s opinion. We find nothing in the statute or the legislative history to establish a Congressional intention to give the words “material participation” a strict, unnatural or narnow construction. We believe that the word “material” should be given its common and well-understood meaning. Courts have generally taken the position that the Social Security Act, including the 1956 amendment, should be liberally construed. Harper v. Flemming, supra; Henderson v. Flemming, supra. The trial court expressed the view that the only record of arrangement is to be found in the written lease. The court then goes on to say: “Because nearly all farm share-rental arrangements in this area do involve more than a bare rental of real estate, the decisive question to be determined is whether the 1956 amendments to the Act were intended by Congress to encompass most of these situations or only those which involve a substantial degree of landlord participation going considerably beyond the normal amount. The standards set forth by the Social Security Administration clearly require far more than the usual amount of the landlord participation in farm production.” 190 F.Supp. 928. We find no basis in the statute for such a standard. The Act provides coverage for material participation. As pointed out in the trial court’s opinion, Social Security coverage has been constantly broadened. We believe that it is the legislative intent as expressed by the words of" }, { "docid": "1288127", "title": "", "text": "the decedent and/or a family member must regularly advise or consult with the other managing party on the operation of the business. While they need not make all final management decisions alone, the decedent and/or family members must participate in making a substantial number of these decisions. Additionally, production activities on the land should be inspected regularly by the family participant, and funds should be advanced and financial responsibility assumed for a substantial portion of the expense involved in the operation of the farm or other business in which the real property is used. In the case of a farm, the furnishing by the owner or other family members of a substantial portion of the machinery, implements, and livestock used in the production activities is an important factor to consider in finding material participation. With farms, hotels, or apartment buildings, the operation of which qualifies as a trade or business, the participating decedent or heir’s maintaining his or her principal place of residence on the premises is a factor to consider in determining whether the overall participation is material. Retention of a professional farm manager will not by itself prevent satisfaction of the material participation requirement by the decedent and family members. However, the decedent and/or a family member must personally materially participate under the terms of arrangement with the professional farm manager to satisfy this requirement. [Emphasis supplied.] Petitioner contends that his participation in the management of the farmland was \"material.” Petitioner was not, however, actually employed in these farms on a substantially full-time basis; thus, we must consider the applicable factors set forth in section 20.2032A-3(e)(2), Estate Tax Regs. Petitioner’s participation in management decisions was generally limited to discussing with the tenants the planned crops for the succeeding year, directing the tenants where to purchase the landlord’s share of the seed and fertilizer, and consulting with the tenants regarding improvements or major repairs to the property. At most, these decisions required attention on an infrequent basis. Although petitioner did speak with his long-time acquaintance and liaison to the other two tenants, Mr. Fogg, once or twice per week," }, { "docid": "1288129", "title": "", "text": "he has not established the extent, if any, to which advice or consultation regarding the actual operation of farms transpired during these conversations. All of the tenants were experienced farmers, and most of the actual operating decisions regarding the farms were made by them without advice from or consultation with petitioner. These decisions included such key decisions as when to plow, fertilize, disk, plant, and harvest. Based on the weight of the evidence, we conclude that petitioner did not regularly advise or consult the tenants regarding the operation of the farms and that he did not participate in a substantial number of final management decisions, as required by the regulations. Petitioner frequently drove the roads adjacent to and dissecting the farmland on summer evenings and on some weekends. He also visited the farms following major storms to check for damage. The regulation, however, refers to the inspection of \"production” activities. Production activities include plowing, disking, planting, and harvesting. It would require at best a strained interpretation to conclude that petitioner’s viewing the farms on evenings and some weekends from an automobile and checking for damage following major storms constituted inspecting the production activities of the farms. The lease agreements generally required the landlords to pay for one-half of the seed, the taxes on the land, and fire and wind insurance on the residence and all buildings used to store grain and machinery. Thus, the landlords did assume a substantial portion of the expense involved in the operation of the farms. All of the production machinery used to plow, disk, plant, and harvest the farmland was provided by the tenants. Although the landlords did provide some grain storage machinery, this clearly was not a \"substantial portion” of the machinery used for production. Petitioner argues that it was not the custom for landlords in Peoria County to furnish their crop-share tenants machinery used for production. Petitioner has not cited any authority suggesting that local customs are significant in applying the regulations, and his argument with respect to them is not persuasive. Based on the foregoing analysis of the factors specified in section" }, { "docid": "9513783", "title": "", "text": "courts are not bound by the administrative interpretation. Conley v. Ribicoff, 9 Cir., 294 F.2d 190, 194; Henderson v. Flemming, 5 Cir., 283 F.2d 882, 884. The basic problems here confronting us are questions of law relating to the meaning to be attributed to the words “material participation” as found in 42 U.S.C.A. § 411(a) (1), and the interpretation of the provisions of the lease contract relating to the landlord’s participation in the management of production. If the Secretary has misinterpreted or misapplied the law, it is our duty to correct the error. With respect to arrangement, § 411(a) (1) provides that rentals from real estate shall not be considered self-employment income unless: “(A) such income is derived under an arrangement, between the owner or tenant and another individual, which provides that such other individual shall produce agricultural or horticultural commodities (including livestock, bees, poultry, and fur-bearing animals and wildlife) on such land, and that there shall be material participation by the owner or tenant in the production or the management of the production of such agricultural or horticultural commodities,” Social Security pamphlet OASI-33d, with respect to arrangement, states: “3. Must my arrangement with my tenant be in writing ? “It is not necessary that your arrangement be in writing. It may be oral. In this connection, however, you should bear in mind that you must be able to establish that your arrangement provides for material participation by you, and the existence of such a provision is easier to establish if written. “4. If I don’t have a written arrangement, how can I show that my participation was provided for or contemplated ? “The mutual understanding you had with your tenant is your arrangement. Your understanding is shown by your acts, those of your tenant, how you and your tenant acted in previous years on similar matters, common practices in the area, and statements by you, your tenant, or even third persons who may know the facts as to how you intended to operate.” We agree with the trial court’s view that the arrangement provision in the statute clearly contemplates" } ]

[ { "docid": "23345303", "title": "", "text": "1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Domicile is determined as of the time the suit is filed, and once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedon Martinez, 806 F.2d at 1132; Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). II. In contesting Bank One’s assertion of diversity jurisdiction, Montle stated that before the date the complaint was filed, July 30, 1990, he had changed his domicile from Massachusetts to Texas — the same state of which Bank One was a citizen. Generally, once challenged, “the party invoking subject matter jurisdiction [here Bank One] has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” James W. Moore et al., Moore’s Federal Practice ¶ 0.71[5.—1] (2d ed. 1985); see also Lundquist, 946 F.2d at 10 (plaintiff must support allegation of jurisdiction by “competent proof”); O’Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982); Hawes, 598 F.2d at 702; Lugo-Vina v. Pueblo International, Inc., 574 F.2d 41, 44 (1st Cir.1978). There is, however, a presumption in favor of continuing domicile, Hawes, 598 F.2d at 701; see also Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1875) (“domicile once acquired is presumed to continue until it is shown to have been changed”). As Montle had unquestionably been a Massachusetts domiciliary, he bore an initial burden of producing sufficient evidence to support his assertion that he had changed his domicile from Massachusetts to Texas before suit was filed. See Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 955 (5th Cir.1966); Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980). Montle needed to do two things to effect a change in his domicile: he had (1) to be present in the new domicile, and (2) to intend to remain there. Valedon, 806 F.2d at 1132; Hawes, 598 F.2d at 701; see also 1 Moore’s Federal" } ]

[ { "docid": "4094120", "title": "", "text": "Leslie, 550 F.Supp. 77, 79, n. 3 (E.D.Pa.1982); “A person’s domicile is that place where he has his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” Michelson v. Exxon Research and Engineering Co., 578 F.Supp. 289, 290 (W.D.Pa.), aff'd 745 F.2d 47 (3d Cir.1984). “[CJitizenship is not necessarily lost by protracted absence from home, where the intention to return remains.” Butler v. Pollard, 482 F.Supp. 847, 851 (E.D.Okl.1979). Similarly, absence from one’s domicile because of overseas employment does not constitute a change of domicile. Maple Island Farm v. Bitterling, 196 F.2d 55, 58 (8th Cir.), cert. denied, 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952); White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986); Bell v. Bell, 326 Pa.Super. 237, 473 A.2d 1069, 1077 (1984). For a change in domicile to occur, the person whose citizenship is at issue must reside in the new domicile and “have no fixed and definite intent to return and make [his] home where [he was] formerly domiciled” District of Columbia v. Murphy, 314 U.S. 441, 454-55, 62 S.Ct. 303, 309, 86 L.Ed. 329 (1941) (footnote omitted). See also: Lew v. Moss, 797 F.2d 747, 749-750 (9th Cir.1986); Holmes v. Sopuch, 639 F.2d 431, 433 (8th Cir.1981). There is a presumption in favor of the old domicile, Lange v. Penn Mutual Life Insurance Co., 843 F.2d 1175, 1179 (9th Cir.1988), and the party asserting a change in domicile must do so by clear and convincing evidence. Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980); Herzog v. Herzog, 333 F.Supp. 477 (W.D.Pa.1971). “More evidence is required to ... establish a change of domicile from one nation to another than from one state to another_” Maple Island Farm v. Bitterling, supra., 196 F.2d at 59. The burden of persuasion as to diversity jurisdiction remains at all times on the proponent of jurisdiction. The effect of the presumption of prior domicile does not change the burden of proof, but merely shifts the burden of production onto" }, { "docid": "10811088", "title": "", "text": "Herrick argues, implicates the venerable rule that “[wjhere a change of domicile is alleged, the burden of proof rests upon the party making the allegation.” Desmare v. United States, 93 U.S. (3 Otto.) 605, 610, 23 L.Ed. 959 (1876). Herrick claims, in essence, that SCS/Swid’s offer of proof — which amounts to no more than publicity materials produced by Skadden claiming that the partners in question have worked at foreign offices since the late 1980’s or early 1990’s — is insufficient to carry SCS/Swid’s burden of establishing the change in domicile on which the lack of diversity depends. On the specific combination of facts before us — under which the allegation of diversity relies on old domiciles and the denial of diversity relies on changes in domicile — -the rules articulated by McNutt (that the party invoking federal jurisdiction bears the burden of proving diversity) and by Desmare (that the party alleging a change of domicile bears the burden of proving that change) cut in opposite directions. We must, therefore, decide how to resolve the tension between them. As it happens, this combination of circumstances, though somewhat unusual, is far from unprecedented. One response to the potential conflict between the McNutt and Desmare rules has been to hold that the ultimate burden of persuasion concerning diversity and hence domicile remains with the party invoking federal jurisdiction and to treat (at least when the two rules are in tension) the Desmare rule that the party alleging a change in domicile bears the burden of proving that change to refer to the onus of production only. Thus the Fifth Circuit has said that “[wjhile some opinions seem to imply that the burden of persuasion rests with the party attempting to show a change of domicile, this is an overstatement. The proper rule is that the party attempting to show a change assumes the burden of going forward on that issue. The ultimate burden on the issue of jurisdiction rests with the plaintiff or the party invoking federal jurisdiction.” Coury v. Prot, 85 F.3d 244, 250 (5th Cir.1996); see also Lew v. Moss," }, { "docid": "4504193", "title": "", "text": "does demand more from the party seeking to establish a new domicile — here, Hovensa and Triangle — than if that party were seeking to establish a continuing domicile. See 13B Wright et al., supra, § 3612 (“The effect of this presumption is to put a heavier burden on a party who is trying to show a change of domicile than is placed on one who is trying to show the retention of an existing or former one.”). This “heavier burden” involves “shifting to ... [the] party [that bears it] the burden of production regarding the change of domicile, not raising the standard of proof.” McCann, 458 F.3d 281 at 287 n. 3. When the party “claiming a new domicile is the opponent of federal jurisdiction,” as here, it “bears the initial burden of producing sufficient evidence to rebut the presumption in favor of the established domicile.” Id. at 288. If the opposing party — in this case, Washington — is successful, the presumption is defeated, the case proceeds, and “the party asserting jurisdiction bears the burden of proving diversity of citizenship.” Id. Here, while it is conceivable that defendants presented enough evidence to meet their burden of production, it is not clear from the District Court’s opinion that it even considered the presumption as it weighed the evidence. Where so many facts that our caselaw regards as important bolster the baseline presumption that Washington retained her established residence in Texas — from Washington’s home ownership, driver’s license, vehicle regis tration, bank account, cell phone, and primary care doctor in Texas to her employer’s per diem payments while she was in the V.I. — defendants have a substantial initial hurdle to overcome in introducing evidence that Washington was domiciled in the V.I. We are not convinced that, in light of the presumption of continued domicile, the District Court gave the facts supporting the presumption of Washington’s established domicile in Texas all the weight they deserved. While the District Court included these facts in its factual recitation, they do not appear to have been given any weight in its analysis. The" }, { "docid": "18330262", "title": "", "text": "paragraphs (2) through (6) as of the date of the filing of the complaint.”). Preston filed this class action lawsuit on October 6, 2005; therefore, Memorial must prove citizenship as of this date. The parties contest the quantum of proof necessary to sustain the moving party’s burden. Pursuant to well-settled principles of law, we hold that the party moving for remand under the CAFA exceptions to federal jurisdiction must prove the citizenship requirement by a preponderance of the evidence. Welsh, 186 F.2d at 17. This holding means that Memorial, as the mov-ant, must demonstrate by a preponderance of the evidence that at least one-third of the putative class members were citizens of Louisiana. In drafting CAFA, Congress explicitly and expressly delineated all deviations from traditional requirements of the general removal statute. For example, Congress eliminated the requirements for complete diversity and unanimous consent among the defendants to effectuate removal, such changes are clear from the plain language of the statute. Nothing in the statute suggests that Congress intended to impose a heightened burden of proof on parties attempting to remand a class action lawsuit to state court. In the context of diversity jurisdiction, once a person establishes his domicile in a particular state, he simultaneously establishes his citizenship in the same state. Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954). Someone acquires a “domicile of origin” at birth, and this domicile presumptively continues unless rebutted with sufficient evidence of change. Acridge, 334 F.3d at 448 (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir.2000)). [I]t is elementary that, to effect a change of one’s legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains.... When challenged as here, the burden rested on him [the plaintiff] to" }, { "docid": "4504192", "title": "", "text": "F.2d at 691 n. 4 (quoting Mitchell v. United States, 88 U.S. 350, 353, 21 Wall. 350, 22 L.Ed. 584 (1874)). “This principle,” we said in McCann, “gives rise to a presumption favoring an established domicile over a new one.” McCann, 458 F.3d at 286-87 (citing Acridge v. Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 448 (5th Cir.2003)); see also Gutierrez v. Fox, 141 F.3d 425, 427 (2d Cir.1998); State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 519 (10th Cir.1994); Holmes v. Sopuch, 639 F.2d 431, 434 (8th Cir.1981); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979); Stine v. Moore, 213 F.2d 446, 447 (5th Cir.1954); 13B Wright et al., supra, § 3612. This presumption does not shift the burden of proof to establish diversity of citizenship away from the proponent of federal jurisdiction; the party asserting diversity jurisdiction — here, Washington— retains the burden of proving that diversity of citizenship exists by a preponderance of the evidence. See Krasnov, 465 F.2d at 1301. Nevertheless, the presumption does demand more from the party seeking to establish a new domicile — here, Hovensa and Triangle — than if that party were seeking to establish a continuing domicile. See 13B Wright et al., supra, § 3612 (“The effect of this presumption is to put a heavier burden on a party who is trying to show a change of domicile than is placed on one who is trying to show the retention of an existing or former one.”). This “heavier burden” involves “shifting to ... [the] party [that bears it] the burden of production regarding the change of domicile, not raising the standard of proof.” McCann, 458 F.3d 281 at 287 n. 3. When the party “claiming a new domicile is the opponent of federal jurisdiction,” as here, it “bears the initial burden of producing sufficient evidence to rebut the presumption in favor of the established domicile.” Id. at 288. If the opposing party — in this case, Washington — is successful, the presumption is defeated, the case proceeds, and “the party asserting jurisdiction bears" }, { "docid": "18618082", "title": "", "text": "presumption against the existence of federal jurisdiction, a court may also apply certain corollary principles which either shift the burden of production to the party contesting the court’s jurisdiction or may raise the standard of proof which the party asserting jurisdiction must satisfy to establish the proper exercise of federal jurisdiction in a given case. One corollary which may be relevant in this case is the “presumption in favor of an original or former domicile as against an acquired one,” Hamlin v. Holland, 256 F.Supp. 25, 27 (E.D.Pa.1966); Herzog v. Herzog, 333 F.Supp. 477, 478 (W.D.Pa.1971); 13 C. Wright, A. Miller, & E. Cooper, supra, § 3612, at 720, or as it is alternatively described, “the presumption that a domicile, once established, continues until it is changed.” 13 C. Wright, A. Miller, & E. Cooper, supra, § 3611, at 711. Although some courts inaccurately describe the effect of this presumption as one of shifting the burden of proof to the party claiming that the individual in question has changed his citizenship from one state to another, Kaiser v. Loomis, 391 F.2d 1007, 1010 (6th Cir. 1968); Stine v. Moore, 213 F.2d 446, 447 (5th Cir. 1954), the more precise statement of the impact of this presumption is that it merely shifts the burden of production of evidence on the issue of the individual’s citizenship, and does not shift the burden of persuasion, which remains with the proponent of federal jurisdiction. Slaughter v. Toye Bros. Yellow Cab Company, 359 F.2d 954, 955 (5th Cir. 1966). Where the proponent is also the party contending that there has been a change of citizenship of one of the litigants, the effect of the presumption is to raise the standard of proof which that party must bear. 13 C. Wright, A. Miller & E. Cooper, supra, § 3612, at 721. The proponent must then prove that there has been a change of citizenship by clear and convincing proof. Herzog, supra, at 478. Having reviewed the principles allocating the burdens of production and persuasion, the court shall now review the definition of “citizenship” for the purpose" }, { "docid": "2132630", "title": "", "text": "[1] that the place where a person actually lives is his domicile and [2] that a domicile, once established, continues until a change is shown, so that the burden of proving a change of domicile rests on the party alleging it.” 196 F.2d 55, 58 (8th Cir.1952). Maple Island also held that “[t]he presumption is in favor of. an original or former domicile as against an acquired one, and of a domestic as against a foreign one,” and that “[p]roof of a change of domicile must be clear and convincing.” Id. at 58-59 (internal quotation marks omitted). The Damons focus on the second “rebuttable presumption” set forth in Maple Island and insist that Ms. Damon’s domicile was established in Maryland as of 1991 and the burden is on defendants to prove that Kenya is now her domicile. The Court finds, however, that placing the burden on defendants is inappropriate in this context. For one, it runs counter to the general rule that the party asserting jurisdiction bears the'burden of proving by a preponderance of the evidence that diversity jurisdiction exists. Clark v. Matthews Int’l Corp., 639 F.3d 391, 396 (8th Cir.2011); see also St. Onge v. McNeilus Truck & Mfg., Inc., 645 F.Supp. 280, 282 (D.Minn.1986) (“The party asserting jurisdiction ... has the burden of persuasion throughout to establish by a preponderance of evidence that the claimed diverse domicile has not been changed.”). Additionally, the first “rebuttable presumption” set forth in Maple Island, (that the place where a person actually lives is his domicile), would apply in favor of finding that Ms. Damon’s domicile at the time of filing was Kenya, or possibly Virginia, but not Maryland. Finally, placing a steep burden on defendants to establish by clear and convincing evidence that Ms. Damon’s once-established domicile in Maryland has changed is inconsistent with the Supreme Court’s instruction that “[t]he policy of the [diversity jurisdiction] statute calls for its strict construction.” Owen Equip. & Erec tion Co. v. Kroger, 437 U.S. 365, 377, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (internal quotation -marks omitted). Thus, the Court finds that the burden" }, { "docid": "15851735", "title": "", "text": "Construction Company, 357 F.2d 242, 245 (10th Cir.1966). The determination of diversity jurisdiction is generally made from the complaint. Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir.1972). When the allegations are challenged, the party asserting diversity jurisdiction has the burden of proving them by a preponderance of the evidence. Mid-Continent Pipe Line Co. v. Whiteley, 116 F.2d 871, 873 (10th Cir.1941); see McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). This raises mixed question of law and fact for the trial court to decide. Crowley, 710 F.2d at 678. In determining diversity jurisdiction, domicile is assessed as of the date the complaint is filed. Johnston v. Cordell National Bank, 421 F.2d 1310, 1311 (10th Cir.1970). If established at this critical time, it is immaterial that diversity is lost because of a subsequent change in domicile. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957). A presumption has been recognized favoring an established domicile over a newly acquired one. Lew v. Moss, 797 F.2d 747, 751 (9th Cir.1986); Abercrombie v. Sigler, No. 87-2358-S at 3, 1988 WL 212479 (D.Kan. Aug. 25, 1988). At the same time, courts have allowed a presumption of domicile upon proof of residency. Kelleam v. Maryland Casualty Co. of Baltimore, 112 F.2d 940, 943 (10th Cir.1940), rev’d on other grounds, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899 (1941). These presumptions only shift the burden of going forward with the evidence as the ultimate burden of proof always remains with the party asserting diversity jurisdiction. Lew, 797 F.2d at 751. Because the facts of the case sub judice meet both of these countervailing presumptions, their impact is limited with the focus instead directed to whether the plaintiff is able to sustain his ultimate burden of proof. When the plaintiff has recently changed residence before filing suit, the courts have applied some additional rules in their determination. The question of a new domicile is determined by the same two factors of residence and intent to remain" }, { "docid": "10811089", "title": "", "text": "tension between them. As it happens, this combination of circumstances, though somewhat unusual, is far from unprecedented. One response to the potential conflict between the McNutt and Desmare rules has been to hold that the ultimate burden of persuasion concerning diversity and hence domicile remains with the party invoking federal jurisdiction and to treat (at least when the two rules are in tension) the Desmare rule that the party alleging a change in domicile bears the burden of proving that change to refer to the onus of production only. Thus the Fifth Circuit has said that “[wjhile some opinions seem to imply that the burden of persuasion rests with the party attempting to show a change of domicile, this is an overstatement. The proper rule is that the party attempting to show a change assumes the burden of going forward on that issue. The ultimate burden on the issue of jurisdiction rests with the plaintiff or the party invoking federal jurisdiction.” Coury v. Prot, 85 F.3d 244, 250 (5th Cir.1996); see also Lew v. Moss, 797 F.2d 747, 751 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966). We have not wholly joined in this approach, noting that “it misconceives the purpose of [the] hallowed [Desmare] presumption, which, unlike evidentiary presumptions, is premised not on probabilities or on which party has more ready access to pertinent information, but rather on a judicial policy determination that in ascertaining diversity jurisdiction in a highly mobile society there is a need to fix domicile with some reasonable certainty at the threshold of litigation.” Gutierrez v. Fox, 141 F.3d 425, 427 n. 1 (2d Cir.1998) (internal citations omitted). And we concluded, in Gutierrez, that “[a]s a corollary to this presumption, the person alleging a change of domicile [in connection with ascertaining diversity] has the burden of proving it.” Id. at 427. The Gutierrez holding, however, is expressly tied to (indeed it is in explicitly a “corollary” of) the “purpose” it was designed to serve, namely the need, in a mobile society, “to fix domicile with some reasonable certainty" }, { "docid": "18330263", "title": "", "text": "on parties attempting to remand a class action lawsuit to state court. In the context of diversity jurisdiction, once a person establishes his domicile in a particular state, he simultaneously establishes his citizenship in the same state. Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954). Someone acquires a “domicile of origin” at birth, and this domicile presumptively continues unless rebutted with sufficient evidence of change. Acridge, 334 F.3d at 448 (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir.2000)). [I]t is elementary that, to effect a change of one’s legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains.... When challenged as here, the burden rested on him [the plaintiff] to show by a preponderance of the evidence that he was a citizen of that State. Welsh, 186 F.2d at 17 (internal citations omitted); see also Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638-39 (5th Cir.2003). Absent specific language in the statute specifying a different evidentiary standard, we employ the time-honored standard routinely applied to the fundamental question of citizenship: proof by a preponderance of the evidence. 3. Evidence Adduced to Prove Citizenship Requirement In an order dated August 22, 2006, the district court acknowledged that “limited discovery is required in order to determine whether it has jurisdiction, particularly in regards to Lifecare’s claim that removal is proper under ... [CAFA].” Accordingly, the district court ordered that Memorial “shall provide the Plaintiffs and Lifecare with patient information which will permit these parties to identify the patients who suffered personal injuries, including death, during the relevant period; these patients’ addresses and phone numbers; as well as next of kin.” In a second order, dated August 30, 2006, the district court required Memorial to" }, { "docid": "22969789", "title": "", "text": "as some courts articulate it, the absence of any intention to go elsewhere. 13B Wright-Miller-Cooper § 3613 n. 3. Thus, a person who has the clear intent to change domicile does not accomplish the change until he is physically present in the new location with that intent. On the other hand, mere presence in a new location does not effect a change of domicile; it must be accompanied with the requisite intent. In most cases, the difficult issue is not presence but whether the intent to change domicile can be shown. 1 J. Moore, Moore’s Federal Practice § 0.74[3.-1] (1996). A person’s domicile persists until a new one is acquired or it is clearly abandoned. Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Mas v. Perry, 489 F.2d 1396 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). There is a presumption in favor of the continuing domicile which requires the party seeking to show a change in domicile to come forward with enough evidence to that effect to withstand a directed verdict. Lew v. Moss, 797 F.2d at 751. While some opinions seem to imply that the burden of persuasion rests with the party attempting to show a change of domicile, this is an overstatement. The proper rule is that the party attempting to show a change assumes the burden of going forward on that issue. The ultimate burden on the issue of jurisdiction rests with the plaintiff or the party invoking federal jurisdiction. 1 J. Moore, Moore’s Federal Practice § 0.74[3-3], n. 8, (1996) citing Lew v. Moss, 797 F.2d 747, 751 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966); Gregg v. Louisiana Power & Light Co., 626 F.2d 1315 (5th Cir.1980). In determining a litigant’s domicile, the court must address a variety of factors. No single factor is determinative. The court should look to all evidence shedding light on the litigant’s intention to establish domicile. The factors may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal" }, { "docid": "22242242", "title": "", "text": "avoid a directed verdict. Id. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981) (involving Title VII case); Lowe v. City of Monrovia, 775 F.2d 998, 1006 n. 5 (9th Cir.1985) (same). A presumption which shifts the burden of proof, in contrast, requires the opponent of the presumption to prove or disprove the existence of the disputed fact. Weinstein’s, supra ¶ 300(01), at 300-2-3. In the present case, Moss conceded he lived in California at least until September of 1984. The presumption in favor of Moss’s established domicile (California) as against his allegedly newly acquired one (Hong Kong) plainly applies here. However, the presumption only shifted the burden of production of evidence. Lew continued to have the burden of proof. See, e.g., Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966); Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980); Wright & Miller, supra §§ 3611, 3612, at 524-25, 535-36; Moore’s, supra ¶ 0.74(3.3), at 707.60 n. 6 (citing authorities). Moss was required, however, to produce enough evidence to substantiate his claim of a change in domicile to withstand a motion for directed verdict. B. Evaluation of Facts in Light of Burden of Production In deciding whether Moss produced evidence sufficient to have survived a motion for directed verdict, we apply the same standard of review as we would apply in reviewing an order granting a motion for directed verdict. That standard is the same on appeal as it is in the district court. Othman v. Globe Indemnity Co., 759 F.2d 1458, 1463 (9th Cir.1985). A directed verdict is proper when the evidence permits only one reasonable conclusion as to the verdict. Shakey’s, Inc. v. Covalt, 704 F.2d 426, 430 (9th Cir.1983). It is not proper if there is substantial evidence to support a verdict for the non-moving party. We consider all of the evidence in the light most favorable to the non-moving party (Moss in this case) and draw all reasonable inferences in favor of that party. Moss failed to" }, { "docid": "18618083", "title": "", "text": "another, Kaiser v. Loomis, 391 F.2d 1007, 1010 (6th Cir. 1968); Stine v. Moore, 213 F.2d 446, 447 (5th Cir. 1954), the more precise statement of the impact of this presumption is that it merely shifts the burden of production of evidence on the issue of the individual’s citizenship, and does not shift the burden of persuasion, which remains with the proponent of federal jurisdiction. Slaughter v. Toye Bros. Yellow Cab Company, 359 F.2d 954, 955 (5th Cir. 1966). Where the proponent is also the party contending that there has been a change of citizenship of one of the litigants, the effect of the presumption is to raise the standard of proof which that party must bear. 13 C. Wright, A. Miller & E. Cooper, supra, § 3612, at 721. The proponent must then prove that there has been a change of citizenship by clear and convincing proof. Herzog, supra, at 478. Having reviewed the principles allocating the burdens of production and persuasion, the court shall now review the definition of “citizenship” for the purpose of determining the existence of diversity jurisdiction and discuss the factors which the court may consider in making such a determination. An individual is considered to be a “citizen” of a given state for the purpose of asserting diversity jurisdiction if he is (1) domiciled within that state; and (2) a citizen of the United States. 13 C. Wright, A. Miller & E. Cooper, supra, § 3611, at 697-98. Since there is no dispute as to plaintiff’s status as a United States citizen, the court need only address the issue of plaintiff’s qualifications under the first prong of this definition of citizenship, namely, whether the plaintiff was a domiciliary of the State of Delaware or the District of Columbia at the time he instituted this action. The examination of this question should begin with a review of the definition of domicile. One commentator described it as follows: Although variously expressed, the judicial standard of domicil is essentially equivalent to the lay idea of “home.” The first requirement, presenting no problem of proof, is simply some" }, { "docid": "22242241", "title": "", "text": "created a presumption in favor of an established domicile as against a newly acquired one. See, e.g., Holmes, 639 F.2d at 434; Hawes, 598 F.2d at 701; Janzen v. Goos, 302 F.2d 421, 425 (8th Cir.1962); Stine v. Moore, 213 F.2d 446, 447 (5th Cir.1954). Lew argues that this presumption shifted the burden of proof onto Moss to demonstrate a change of domicile. See Janzen, 302 F.2d at 425. The apparent conflict between these two principles, however, is resolved by resort to a third, well-established principle. The “burden” in a civil case involves not one but two elements: the burden of going forward with proof (the burden of “production”) and the burden of persuading the trier of fact (the burden of “proof”). J. Weinstein & M.A. Berger, Weinstein’s Evidence U 300(01), at 300-2-3 (1985) [hereinafter Weinstein’s ]; E. Cleary, McCormick on Evidence, § 336, at 947 (3d ed. 1984) (citing authorities). A presumption which shifts the burden of production has the sole effect of forcing the opponent of the presumption to produce enough evidence to avoid a directed verdict. Id. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981) (involving Title VII case); Lowe v. City of Monrovia, 775 F.2d 998, 1006 n. 5 (9th Cir.1985) (same). A presumption which shifts the burden of proof, in contrast, requires the opponent of the presumption to prove or disprove the existence of the disputed fact. Weinstein’s, supra ¶ 300(01), at 300-2-3. In the present case, Moss conceded he lived in California at least until September of 1984. The presumption in favor of Moss’s established domicile (California) as against his allegedly newly acquired one (Hong Kong) plainly applies here. However, the presumption only shifted the burden of production of evidence. Lew continued to have the burden of proof. See, e.g., Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966); Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980); Wright & Miller, supra §§ 3611, 3612, at 524-25, 535-36; Moore’s, supra ¶ 0.74(3.3), at 707.60" }, { "docid": "4446076", "title": "", "text": "there was no independent basis of federal jurisdiction. Here, there are no remaining federal claims against Durbin and Heddinger and the only basis for extending pendent jurisdiction involves the identical state law claims against defendants Bartle and Waldman for whom independent federal question jurisdiction does exist. As in Aldinger, the policy interest in consolidating all related claims in one trial does not encompass the stretch of federal jurisdiction that would be necessary to extend pendent jurisdiction to the state law claims against Durbin and Heddinger. The lack of any basis for federal question jurisdiction would not be fatal to the complaint, of course, if diversity jurisdiction existed. The complaint (114-8) alleges that diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a), exists as to all defendants, in that Hixon is a resident of Ohio and all defendants reside and work in Pennsylvania. However, residence is insufficient to establish citizenship for diversity purposes. Diversity requires that the non-resident be domiciled in another state at the commencement of the suit. Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980); Krasnov v. Dinan, 465 F.2d 1298 (3rd Cir. 1972); Fleming v. Mack Trucks, Inc., 508 F.Supp. 917 (E.D.Pa.1981). Residence is evidence of domicile, but it must be coupled with evidence of other factors which prove an intent to remain indefinitely, such as voting, payment of taxes or location of business. C. Wright, Federal Courts § 26, at 87 (2d ed. 1970). The burden of establishing domicile rests with the complainant, and the presumption is that a federal court lacks jurisdiction until such burden has been satisfied. Avins v. Hannum, 497 F.Supp. 930 (E.D.Pa.1980); Coggins v. Carpenter, 468 F.Supp. 270 (E.D. Pa.1979). The plaintiff here has simply alleged residence in Ohio which, even if true, is not of itself sufficient to establish domicile and thereby citizenship for diversity purposes. It is unclear whether there is a genuine factual issue as to where plaintiff is domiciled. If plaintiff used the term “residence” in the complaint as though it were the equivalent of “domicile,” a simple amendment can cure the jurisdictional flaw. I will therefore allow plaintiff" }, { "docid": "22242240", "title": "", "text": "maintained, however, that he changed his domicile to Hong Kong in September or October of that year (before Lew filed the present complaint). Lew argues that Moss should bear the burden of proving that he changed domicile from California to Hong Kong. Moss responds that the burden rests on Lew. Moss and Lew each point to established principles of jurisdiction to support their respective contentions. Moss cites cases which state that the proponent of jurisdiction bears the burden of proof. See, e.g., Resnik, 289 F.2d at 819; Wright & Miller, supra, § 3611, at 522-23 (citing authorities). As the Supreme Court stated: “The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure.” McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Lew’s rejoinder is equally compelling. He points out that the courts have created a presumption in favor of an established domicile as against a newly acquired one. See, e.g., Holmes, 639 F.2d at 434; Hawes, 598 F.2d at 701; Janzen v. Goos, 302 F.2d 421, 425 (8th Cir.1962); Stine v. Moore, 213 F.2d 446, 447 (5th Cir.1954). Lew argues that this presumption shifted the burden of proof onto Moss to demonstrate a change of domicile. See Janzen, 302 F.2d at 425. The apparent conflict between these two principles, however, is resolved by resort to a third, well-established principle. The “burden” in a civil case involves not one but two elements: the burden of going forward with proof (the burden of “production”) and the burden of persuading the trier of fact (the burden of “proof”). J. Weinstein & M.A. Berger, Weinstein’s Evidence U 300(01), at 300-2-3 (1985) [hereinafter Weinstein’s ]; E. Cleary, McCormick on Evidence, § 336, at 947 (3d ed. 1984) (citing authorities). A presumption which shifts the burden of production has the sole effect of forcing the opponent of the presumption to produce enough evidence to" }, { "docid": "10811090", "title": "", "text": "797 F.2d 747, 751 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966). We have not wholly joined in this approach, noting that “it misconceives the purpose of [the] hallowed [Desmare] presumption, which, unlike evidentiary presumptions, is premised not on probabilities or on which party has more ready access to pertinent information, but rather on a judicial policy determination that in ascertaining diversity jurisdiction in a highly mobile society there is a need to fix domicile with some reasonable certainty at the threshold of litigation.” Gutierrez v. Fox, 141 F.3d 425, 427 n. 1 (2d Cir.1998) (internal citations omitted). And we concluded, in Gutierrez, that “[a]s a corollary to this presumption, the person alleging a change of domicile [in connection with ascertaining diversity] has the burden of proving it.” Id. at 427. The Gutierrez holding, however, is expressly tied to (indeed it is in explicitly a “corollary” of) the “purpose” it was designed to serve, namely the need, in a mobile society, “to fix domicile with some reasonable certainty at the threshold of litigation.” Id. at 427 n. 1. And for this reason, a party seeking to challenge diversity by alleging a change of domicile does not, even under Gutierrez, bear the burden of proving that change if the party seeking to establish diversity has not carried its (prior) burden of establishing a specific initial domicile from which the change would be a departure. If the party invoking diversity jurisdiction has not established such an original (default) domicile, then placing the burden of proof on the party asserting a change will in no way help “to fix domicile with some reasonable certainty at the threshold of litigation.” Id. Indeed, and to the contrary, it will serve only to complicate and confuse judicial efforts to ascertain diversity jurisdiction, by engaging the parties and the court in an uncertain effort to determine an unclear departure from an unknown beginning. Even under Gutierrez, therefore, the party invoking diversity jurisdiction continues to bear, as McNutt teaches, the burden of persuasion in establishing specific initial domiciles that support the" }, { "docid": "22969788", "title": "", "text": "an advantage not enjoyed by native-born American citizens. Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980); Soghanalian v. Soghanalian, 693 F.Supp. 1091 (D.C.Fla.1988); Liakakos v. CIGNA Corp., supra. The latter conclusion is sound according to 1 Moore’s Federal Practice § 0.74[4], because the major purpose of alienage jurisdiction is to promote international relations by assuring other countries that litigation involving their nationals will be treated at the national level, and alienage jurisdiction is also intended to allow foreign subjects to avoid real or perceived bias in the state courts — a justification that should not be available to the dual citizen who is an American. See also 13B Wright-Miller-Cooper § 3621 (1984). A change in domicile typically requires only the concurrence of: (1) physical presence at the new location and (2) an intention to remain there indefinitely; 13B Wright-Miller-Cooper, Federal Practice and Procedure § 3613 (1984), citing, inter alia, Stine v. Moore, 213 F.2d 446 (5th Cir.1954); Paudler v. Paudler, 185 F.2d 901 (5th Cir.) cert. denied, 341 U.S. 920, 71 S.Ct. 742 (1950); or, as some courts articulate it, the absence of any intention to go elsewhere. 13B Wright-Miller-Cooper § 3613 n. 3. Thus, a person who has the clear intent to change domicile does not accomplish the change until he is physically present in the new location with that intent. On the other hand, mere presence in a new location does not effect a change of domicile; it must be accompanied with the requisite intent. In most cases, the difficult issue is not presence but whether the intent to change domicile can be shown. 1 J. Moore, Moore’s Federal Practice § 0.74[3.-1] (1996). A person’s domicile persists until a new one is acquired or it is clearly abandoned. Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Mas v. Perry, 489 F.2d 1396 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). There is a presumption in favor of the continuing domicile which requires the party seeking to show a change in domicile to come forward with enough evidence to that effect to withstand" }, { "docid": "4094121", "title": "", "text": "return and make [his] home where [he was] formerly domiciled” District of Columbia v. Murphy, 314 U.S. 441, 454-55, 62 S.Ct. 303, 309, 86 L.Ed. 329 (1941) (footnote omitted). See also: Lew v. Moss, 797 F.2d 747, 749-750 (9th Cir.1986); Holmes v. Sopuch, 639 F.2d 431, 433 (8th Cir.1981). There is a presumption in favor of the old domicile, Lange v. Penn Mutual Life Insurance Co., 843 F.2d 1175, 1179 (9th Cir.1988), and the party asserting a change in domicile must do so by clear and convincing evidence. Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980); Herzog v. Herzog, 333 F.Supp. 477 (W.D.Pa.1971). “More evidence is required to ... establish a change of domicile from one nation to another than from one state to another_” Maple Island Farm v. Bitterling, supra., 196 F.2d at 59. The burden of persuasion as to diversity jurisdiction remains at all times on the proponent of jurisdiction. The effect of the presumption of prior domicile does not change the burden of proof, but merely shifts the burden of production onto the party attacking jurisdiction. “Once the attacker comes forward with evidence that the domicile has changed, the burden of production shifts back to the party asserting jurisdiction. That party has the burden of persuasion throughout to establish by a preponderance of evidence that the claimed diverse domicile has not been changed.” St. Onge v. McNeilus Truck and Mfg., Inc., 645 F.Supp. 280, 282 (D.Minn.1986). A party’s domicile may be determined by a number of factors, including: “voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, ... driver’s license and automobile registration, and payment of taxes.” Lew v. Moss, 797 F.2d at 750. Plaintiff, by way of affidavit, has stated that he was employed with CIGNA with the understanding that he would return to the United States; that during 1986 he returned to this California to look for employment, but was unsuccessful in his attempt; that he “continued to own and maintain his home in California and to maintain [his] bank account, [his]" }, { "docid": "18618081", "title": "", "text": "to invoke the jurisdiction of a federal court must demonstrate that the case is within the competence of that court. The presumption is that a federal court lacks jurisdiction in a particular case until it has been demonstrated that jurisdiction over the subject matter exists. Thus the facts showing the existence of jurisdiction must be affirmatively alleged in the complaint. If these facts are challenged, the burden is on the party claiming jurisdiction to demonstrate that the court has jurisdiction over the subject matter. Id., § 3522, at 45-46 (footnotes omitted). Thus, the proponent of federal court jurisdiction bears the burden of persuasion, Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), and at least the initial burden of producing evidence in support of his claim of federal jurisdiction. See 13 C. Wright, A. Miller, & E. Cooper, supra, § 3611, at 710-13. Second, in applying the general presumption against the existence of federal jurisdiction, a court may also apply certain corollary principles which either shift the burden of production to the party contesting the court’s jurisdiction or may raise the standard of proof which the party asserting jurisdiction must satisfy to establish the proper exercise of federal jurisdiction in a given case. One corollary which may be relevant in this case is the “presumption in favor of an original or former domicile as against an acquired one,” Hamlin v. Holland, 256 F.Supp. 25, 27 (E.D.Pa.1966); Herzog v. Herzog, 333 F.Supp. 477, 478 (W.D.Pa.1971); 13 C. Wright, A. Miller, & E. Cooper, supra, § 3612, at 720, or as it is alternatively described, “the presumption that a domicile, once established, continues until it is changed.” 13 C. Wright, A. Miller, & E. Cooper, supra, § 3611, at 711. Although some courts inaccurately describe the effect of this presumption as one of shifting the burden of proof to the party claiming that the individual in question has changed his citizenship from one state to" } ]

[ { "docid": "14602538", "title": "", "text": "cite in support of their second contention; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Bard v. Bemidji Bottle Gas Co., D.C.Minn., 23 F.R.D. 299; Bock v. Spindler, 256 Minn. 543, 99 N.W.2d 670. . Arguing against jurisdiction, defendant cites: International Shoe Co. v. State of Washington, supra; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L.Ed.2d 223; Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 141; L. D. Reeder Contractors of Ariz. v. Higgins Industries, 9 Cir., 265 F.2d 768; Bard v. Bemidji Bottle Gas Co., supra; Mueller v. Steelcase, Inc., D.C. Minn., 172 F.Supp. 416; Kulberg v. Fraternal Union of America, 131 Minn, 131, 154 N.W. 748; Schilling v. Roux Distributing Co., supra; Hartmon v. National Heater Co., 240 Minn. 264, 60 N.W.2d 804; State v. Northwestern States Portland Cement Co., supra; Beck v. Spindler, supra. . Bard v. Bemidji Bottle Gas Co., supra; Mueller v. Steelcase, Inc., supra. . Northern Pacific Railway Co. v. Zontelli Bros., Inc., D.C., 161 F.Supp. 769, 773; Myers Motors v. Kaiser-Frazer Sales Corp., D.C., 80 F.Supp. 18, 22. . International Shoe Co. v. State of Washington, supra, 326 U.S. 310, 315, 66 S.Ct. 154, 157. . Id., 326 U.S. at page 317, 66 S.Ct. at page 158. . Tri. 326 U.S. at page 319, 66 S.Ct. at page 160. . Id., 326 U.S. at page 316, 66 S.Ct. at page 158. . McGee v. International Life Ins. Co., supra, 355 U.S. at page 222, 78 S.Ct. at page 201, Jung v. City of Winona, D.C. Minn., 71 F.Supp. 558, 559." } ]

[ { "docid": "14618835", "title": "", "text": "considered from the standpoint of progress in law, practice and procedure as gleaned from the decided cases. The trend toward liberality in construing statutes providing for jurisdiction over foreign corporations and service of process in connection therewith is creative of a “minimum contacts” rule as a prerequisite to the exercise of- power over nonresident defendants. A mere isolated act, depending upon the facts and circumstances of the case under consideration, may constitute doing business in the forum where process is served. The tortious act relied on by plaintiff was consummated in Minnesota. In the words of Mr. Justice Black, “ * * * a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” In my opinion the file contents of the case at bar satisfy the test required by Federal law. The motions to quash are denied. It Is So Ordered. An exception is allowed movants. . Movants cite: Atkins v. Jones & Laughlin Steel Corporation et al., Minn., 104 N.W.2d 888; Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S. Ct. 523, 57 L.Ed. 879; Mueller v. Steelcase, Inc., D.C.Minn., 172 F.Supp. 416. . Section 303.13, subd. 1(3) reads as follows: “If a foreign corporation makes a contract with a resident of Minnesota to be performed in whole or in part by either party in Minnesota, or if such foreign corporation commits a tort in whole or in part in Minnesota against a resident of Minnesota, such acts shall be deemed to be doing business in Minnesota by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary oí the State of Minnesota and his successors to be its true and lawful attorney upon whom may be served all lawful process in any actions or proceedings against the ■foreign corporation arising from or growing out of such contract or tort. Such process shall be served in duplicate upon the secretary of state, together with a fee of $6 and the secretary of state shall mail one copy thereof to" }, { "docid": "8393323", "title": "", "text": "to Minnesota wholesalers and retailers were sent by collect freight from the Eastern Metal Products Corporation factory and billings were also made from said factory. “Eastern Metal Products Corporation has and had no control over wholesalers and retailers in the State of Minnesota and has and had no contact with the ultimate consumers. Eastern Metal Products Corporation carried on no advertisement of its products within the State of Minnesota. “Seymour Troy” There is no showing by the plaintiffs as to any activities in this State by the defendant other than those stated in the above affidavit. Service was purportedly obtained by serving the Secretary of State and jurisdiction is based upon the following Minnesota statute, the pertinent portions of which read as follows (Sec. 303.13 subd. 1(3), Minn.Stat. Ann.): “If a foreign corporation * * commits a tort in whole or in part in Minnesota against a resident of Minnesota, such acts shall be deemed to be doing business in Minnesota by the foreign corporation and shall be deemed equivalent to the appointr ment by the foreign corporation of the secretary of the State of Minnesota * * * to be its true and lawful attorney upon whom may be served all lawful process in any actions or proceedings against the foreign corporation arising from or growing out of such * * * tort * * *» The question submitted is substantially the same as that which was before this Court in Mueller v. Steelcase Co., Inc., D. C., 172 F.Supp. 416. Since that decision, however, the Supreme Court of Minnesota has handed down three decisions, to wit, Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670; Atkins v. Jones & McLaughlin Steel Co., 258 Minn. 571, 104 N.W.2d 888 ; and Dahlberg Co. v. Western Hearing Aid Center, 259 Minn. 330, 107 N.W.2d 831. In Atkins v. Jones & McLaughlin Steel Co., supra, the Supreme Court upheld the constitutionality of the statute here involved and determined that the statute did not deny the defendant due process under the Federal Constitution. In that case the plaintiff was injured in this" }, { "docid": "23396406", "title": "", "text": "Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53, and United States v. Acri, 348 U.S. 211, 75 S.Ct. 239, 99 L.Ed. 264, were each concerned with an inchoate attachment lien. United States v. Scovil, 348 U.S. 218, 75 S.Ct. 244, 99 L.Ed. 271, involved a landlord’s distress lien. In United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071, the question was whether the administrative assessment of ad valorem taxes gave a town the status of a judgment creditor. United States v. Colotta, 350 U.S. 808, 76 S.Ct. 82, 100 L.Ed. 725; United States v. White Bear Brewing Co., Inc., 350 U.S. 1010, 76 S.Ct. 646, 100 L.Ed. 871, rehearing denied 351 U.S. 958, 76 S.Ct. 845, 100 L.Ed. 1480; United States v. Vorreiter, 355 U.S. 15, 78 S.Ct. 19, 2 L.Ed.2d 23; and United States v. Hulley, 358 U.S. 66, 79 S.Ct. 117, 3 L.Ed.2d 106, all involved mechanics’ liens. . R. F. Ball Construction Co. v. Jacobs, D.C.W.D.Tex.1956, 140 F.Supp. 60. . United States v. R. F. Ball Construction Co., 5 Cir., 239 F.2d 384. . First State Bank of Medford v. United States, D.C.Minn.1958, 166 F.Supp. 204, and Arthur Company v. Chicago Paints, Inc., D.C.Minn.1959, 175 F.Supp. 50. See also Three Mountaineers v. Ramsey, D.C.W.D.N.C.1956, 143 F.Supp. 888, and Massachusetts Bonding & Insurance Company v. Antonelli Construction Co., D.C.Mass.1959, 173 F.Supp. 391. . 166 F.Supp. 209. , A like contention was presented in Arthur Company v. Chicago Paints, Inc., supra, and . determined adversely to the assignor. . The judgment in favor of the inter-pleader was for attorney’s fee in the amount of $800.51 and costs of $15.00. . Mutual Life Ins. Co. of New York v. Bondurant, 6 Cir., 27 F.2d 464, 465, certiorari denied 278 U.S. 630, 49 S.Ct. 30, 73 L.Ed. 548; Treinies v. Sunshine Mining Co., 9 Cir., 99 F.2d 651, 655, affirmed 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85, rehearing denied 309 U.S. 693, 60 S.Ct. 464, 84 L.Ed. 1034; New York Life Ins. Co. v. Miller, 8 Cir., 139" }, { "docid": "3167615", "title": "", "text": "supra; United Barge Co. v. Logan Charter Service, Inc., 237 F.Supp. 624 (D.Minn.1964); Ehlers v. United States Heating & Cooling Mfg. Corp., supra; Adamek v. Michigan Door Co., supra; Beck v. Spindler, supra. But see, Pendzimas v. Eastern Metal Products Corp., 218 F.Supp. 524 (D.Minn.1961); Mueller v. Steelcase, Inc., 172 F.Supp. 416 (D.Minn.1959). . See also, Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (1965, Mr. Justice Goldberg, Circuit Justice), appeal dismissed 382 U.S. 1002, 86 S.Ct. 533, 15 L.Ed.2d 491 (1965). . In Shealy v. Challenger Manufacturing Company, 304 F.2d 102 (4th Cir. 1962), the Court stated: a * * * tlae defendant, like the maker of the better mousetrap, is fortunate enough to get the business without active solicitation, it does not gain immunity from an exercise of jurisdiction by those states in which it engages in substantial activity of a different sort. A foreign corporation, busily present in a state effecting direct deliveries of its wares to its customers, cannot escape the jurisdiction of the state upon the ground its orders were unsolicited. A seller’s distribution of his wares may be a substantial activity whether the precedent contracts were solicited by the buyers or by the seller.” Id. at 104. . In Travelers Health Association v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950), the Supreme Court rejected the argument that a state’s exercise of jurisdiction must be determined by the place of contracting: “ * * * Instead we accorded ‘great weight’ to the ‘consequences’ of the contractual obligations in the state where the insured resided and the ‘degree of interest’ that state had in seeing that those obligations were faithfully carried out.” Id. at 647-648, 70 S.Ct., at 930. . The fact that there was only one transaction between the parties is not controlling. See, Elkhart Engineering Corporation v. Dornier Werke, 343 F.2d 861 (5th Cir. 1965); Compania De Astral," }, { "docid": "13971395", "title": "", "text": "D.C., 8 F.R.D. 359; Therrien v. New England Tel. & Tel. Co., D.C., 102 F. Supp. 350. . 182 F.Supp. 12. . See United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 235, 78 S.Ct. 674, 2 L. Ed.2d 721. . Piedmont Interstate Fair Ass’n v. Bean, 4 Cir., 1954, 209 F.2d 942, 945; Wall v. Connecticut Mut. Life Ins. Co., D.C.S.D. Ga.1941, 2 F.R.D. 244. . Ockert v. Union Barge Line Corp., 3 Cir., 1951, 190 F.2d 303; Schopen v. Westwood Pharmacal Corp., D.C.W.D.N.Y.1951, 11 F.R.D. 555; Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y.1953, 15 F.R.D. 14; Cincinnati Traction Bldg. Co. v. Pullman-Standard Car Mfg. Co., D.C.D.Del.1938, 25 F.Supp. 322. . Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y.1953, 15 F.R.D. 14. . Lawson v. Moore, D.C., 29 F.Supp. 175. . Union Nat. Bank of Youngstown, Ohio v. Superior Steel Corp., D.C.W.D.Pa.1949, 9 F.R.D. 117. . 35 U.S.C. § 285. See Philadelphia Gear Works v. Kerotest Mfg. Co., D.O., 101 F.Supp. 820. . Gold v. Geo. T. Moore Sons, D.C.S.D.N.Y.1943, 3 F.R.D. 201; Mott v. Con necticut General Life Ins. Co., D.C., 2 F.R.D. 523; Taylor v. Swift & Co., D.C.S.D.Fla.1942, 2 F.R.D. 424; Ryer-son and Haynes, Inc. v. American Forging & Socket Co., D.C.E.D.Mich.1942, 2 F.R.D. 343; Welter v. E. I. Du Pont De Nemours & Co., D.C.Minn., 1 F.R.D. 551; McCann v. Bentley Stores Corporation, D.C.W.D.Mo., 34 F.Supp. 234; Federal Savings & Loan Ins. Corp. v. First Nat. Bank, etc., D.C.W.D.Mo.1945, 4 F.R.D. 313; New York, C. & St. L. R. Co. v. Vardaman, 8 Cir., 1950, 181 F.2d 769; United Industrial Corp. v. Hayes Aircraft Corp. (D.Del.1960), Unreported; 5 Moore Fed.Prac. P. 41.06. . Paul E. Hawkinson Co. v. Goodman, D.C., 32 F.Supp. 732." }, { "docid": "6943118", "title": "", "text": "service has been made on a foreign corporation in a personal action commenced against it. The State statute relied on in the present case must give way to the constitutional necessity of due process. There is a jurisdictional distinction between the preliminary moves short of doing business and the actual presence of Fort Worth that would permit of service of process. It is my opinion that the motion of Fort Worth Steel & Machinery Company for a dismissal must be granted and the complaint dismissed without prejudice, however, for lack of jurisdiction. It is so ordered. All parties are allowed an exception. . Atkins v. Jones & Laughlin Steel Corporation, 258 Minn. 571, 104 N.W.2d 888, and Hutchinson v. Boyd and Sons Press Sales, Inc., D.C.Minn., 188 F.Supp. 876, are not in point; McMenomy v. Wonder Building Corporation of America, D.C.Minn., 188 F.Supp. 213, is distinguishable in its facts. . Dahlberg Company v. American Sound Products, Inc., D.C.Minn., 179 F.Supp. 928; Pendzimas v. Eastern Metal Products Corporation, D.C.Minn., 218 F.Supp. 524. . People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587; Myers Motors v. Kaiser-Frazer Sales Corporation, D.C.Minn., 76 F.Supp. 291. . Myers Motors v. Kaiser-Frazer Sales Corporation, supra note 3." }, { "docid": "6943117", "title": "", "text": "if served personally within the State of Minnesota. As amended Laws 1955, c. 820, § 30; Laws 1957, c. 538, § 1.” The file contents make clear that plaintiff’s case is based on contract and that there was no privity between plaintiff and Fort Worth, a Texas corporation. The supporting affidavits relied on in this motion make no pretense to establish privity of contract between plaintiff and Fort Worth. The latter has designated no agent upon whom service of process may be made. The instant case does not sound in tort. It has to do with warranty. Fort Worth was not a party to plaintiff’s contract. The present case is not based on negligence. Plaintiff attempts to join two additional defendants, one of whom was consulted prior to the commencement of the principal action herein. A foreign corporation cannot be deprived of property without due process of law, notwithstanding the provisions of the quoted statutory law. It must be. emphasized too that a Federal court is required to determine, independently of State statute, whether valid service has been made on a foreign corporation in a personal action commenced against it. The State statute relied on in the present case must give way to the constitutional necessity of due process. There is a jurisdictional distinction between the preliminary moves short of doing business and the actual presence of Fort Worth that would permit of service of process. It is my opinion that the motion of Fort Worth Steel & Machinery Company for a dismissal must be granted and the complaint dismissed without prejudice, however, for lack of jurisdiction. It is so ordered. All parties are allowed an exception. . Atkins v. Jones & Laughlin Steel Corporation, 258 Minn. 571, 104 N.W.2d 888, and Hutchinson v. Boyd and Sons Press Sales, Inc., D.C.Minn., 188 F.Supp. 876, are not in point; McMenomy v. Wonder Building Corporation of America, D.C.Minn., 188 F.Supp. 213, is distinguishable in its facts. . Dahlberg Company v. American Sound Products, Inc., D.C.Minn., 179 F.Supp. 928; Pendzimas v. Eastern Metal Products Corporation, D.C.Minn., 218 F.Supp. 524. . People’s Tobacco Co." }, { "docid": "7504505", "title": "", "text": "conformity with State law. The attempted service herein occurred on December 29, 1952. The Minnesota law, 32 M.S.A. § 543.-08, respecting service of process on a corporation was superseded by Rule 4.-03(c) of the Rules of Civil Procedure for the District Courts, effective January 1, 1952. That rule provides that “Service of summons within the state shall be made * * * Upon a domestic or foreign corporation, by delivering a copy to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons * * Disregarding for the moment whether the acts of defendant’s distributors in Minnesota constitute “solicitation plus” sufficient for deeming that defendant is “doing business” in Minnesota, it would not seem that the controlling decisions could sustain any service made upon a distributor. The facts of the instant ease make clear that Nienaber was not a managing agent nor an employee of defendant. He was and is a distributor. Conceding that his activities partake to some extent of those peculiar to a sales manager, the controlling facts do not make Nienaber an “authorized” agent within the requirements of law. The case most nearly favoring the plaintiff is that of Marlow v. Hinman Milking Mach. Co., Inc., D.C.Minn., 7 F.R.D. 751, for in that case Judge Nordbye determined that the defendant was doing business in Minnesota through the activities of its distributors. However, service was made upon defendant’s sales manager in Minnesota, whose office was on the premises of a firm which merchandised and serviced defendant’s products. Service, it is to be noted, was not made upon a distributor as in the instant case. The service herein relied on was made on Nienaber, who was a distributor and not a sales manager, as was the fact in the Marlow case. Likewise distinguishable is the case of Myers Motors, Inc. v. Kaiser-Frazer Sales Corporation, D.C.Minn., 80 F.Supp. 18. In that case service was made upon defendant’s regional manager and not on the local Kaiser-Frazer dealer. A reading of the case discloses a clear factual distinction. Neither" }, { "docid": "22373043", "title": "", "text": "Minnesota employer of the injured plaintiff. Another defendant assembled the press. The court, citing Beck and Atkins, noted that the place of the tort is where the injury occurs; that, on the allegations, the defendants’ conduct was within the statute; and that an isolated act may constitute doing business in Minnesota, (c) Ewing v. Lockheed Aircraft Corp., supra, 202 F.Supp. 216 (D.Minn.1962, Judge Nordbye), was an action under the Indiana Wrongful Death Act and arose out of a crash in Indiana of a Northwest Airlines plane manufactured by Lockheed. Service on Lockheed was under the statute. The court held that the requirements of due process were satisfied. It relied in particular upon Lockheed’s maintenance in Minnesota of field service representatives, the substantiality of the California contract between Lockheed and Northwest, and the partial performance of the contract in Minnesota, as distinguished from “the mere isolated performance of an incidental phase of a contract within this State”. It granted the benefit of the statute even to a nonresident of Minnesota, (d) Carlson v. Chatfield Mach. Co., 228 F.Supp. 162 (D.Minn.1964, Judge Donovan), was an action for wrongful death of a Minnesota decedent killed when struck by a board alleged to have been negligently ejected by a machine saw. The decedent’s employer was a Minnesota corporation. The defendant was a foreign manufacturer. The case thus is strikingly like the present one. The court felt that the defendant’s activity in Minnesota was not of such little consequence as to avoid the liberal trend toward sustaining service, (e) Haldeman-Homme Mfg. Co. v. Texacon Indus., Inc., 236 F. Supp. 99 (D.Minn.1964, Judge Larson), was an action for false representations and breach of contract. The defendant corporation advertised sale of its folding door division. The plaintiff Minnesota corporation replied. The negotiations resulted in purchase by the plaintiff. All division assets were then moved to Minnesota. None of the negotiations were in Minnesota. The court held, after reference to some specific factors, that selling a going business to a Minnesota resident with knowledge that its assets and operations would be moved to Minnesota created sufficient contacts, (f)" }, { "docid": "14618837", "title": "", "text": "the corporation at its last known address, and the corporation shall have 20 days within. which to answer from the date of such mailing, notwithstanding any other provisions of the law. The making oí the contract or the committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the State of Minnesota.” . See paragraphs 3, 4, 5, 6 and 7 of the complaint. . See Atkins v. Jones & Laughlin Steel Corp., supra. . Atkins v. Jones & Laughlin Steel Corp., supra; Beck v. Spindler, 258 Minn. 543, 99 N.W.2d 870; Restatement, Conflict of Laws, §§ 377, 378. . International Shoe Co. v. State, of Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 90 L.Ed. 95; Atkins v. Jones & Laughlin Steel Corp., supra. . Atkins v. Jones & Laughlin Steel Corp., supra; McMenomy et al. v. Wonder Building Corporation of America, D.C., 188 F.Supp. 213. . Mueller v. Steelcase, Inc., D.C.Minn., 172 F.Supp. 416, 419 (The Mueller case is distinguished in that respect from the instant case.) . International Shoe Co. v. State of Washington, supra; McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223; Jung v. City of Winona, D.C.Minn., 71 F. Supp. 558, 559." }, { "docid": "5961434", "title": "", "text": "v. Iserson, D.C., 294 F. 289; Ellis v. Peak, D.C., 22 F.Supp. 908; Flas v. Illinois Central R.R. Co., D.C., 229 F. 319; Gillette Safety Razor Co. v. Chaffee-Shippers Service, Inc., D.C., 10 F.Supp. 898; Givens v. Wight, D.C.N.D.Tex., 247 F. 233; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 3055; Habermel v. Mang, 6 Cir., 31 F.2d 822, 67 A.L.R. 216; Hill v. Upper Mississippi Towing Corp., D.C., 141 F.Supp. 692; Hourcle v. Air France, 52 A.M.C. 1737, 1738; Jacobson v. Chicago, M., St. P. & P. R. Co., 8 Cir., 66 F.2d 688, 693; President and Directors of Manhattan Co. v. Monogram Associates, Ine., D.C., 81 F.Supp. 739; Strother v. Union Pacific R.R., D.C., 220 F. 731. . Bacon v. Felt, C.C.Iowa, 38 F. 870; Corrao v. Waterman Steamship Corp., D.C.E.D.N.Y.1948, 75 F.Supp. 482; Glens Falls Indemnity Co. v. Atlantic Building Corporation, 4 Cir., 1952, 199 F.2d 60; Greenleaf v. Huntingdon & B. T. M. R. & Coal Co., D.C., 3 F.R.D. 24; Jeub v. B/G Foods, Inc., D.C.Minn., 2 F.R.D. 238; Kratke v. Denver & R. G. W. R. Co., D.C., 15 F.R.D. 4; Kirby v. American Soda Fountain Co., 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911; The Lizzy M. Walker, 4 Cir., 3 F.2d 921; Lundberg v. Prudential Steamship Corporation (Triangle Ship Maintenance), Inc., D.C., 102 F.Supp. 115; O’Neill v. American Export Lines, D.C.S.D.N.Y.1946, 5 F.R.D. 182; Rappa v. Pittston Stevedoring Co., D.C., 48 F.Supp. 911; Summers & Oppenheim, Inc. v. Tillinghost Stiles Co., D.C.N.Y., 19 F.Supp. 230; Tevingtou v. International Milling Co., D.C., 71 F.Supp. 621; Thomas v. Malco Refineries, Inc., 10 Cir., 214 F.2d 881; Thompson v. American Export Lines, Inc., D.C.S.D.N.Y.1953, 15 F.R.D. 125; Trauffler v. Detroit & Cleveland Navigation Co., D.C., 383 F. 256; Tri-Cities Shell & Bldg. Material Supply Co,, Inc., v. Welch, D.C., 93 F.Supp. 944; Wheeler v. Glazier, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301. . His allegations also with reference to that matter are as follows: “Defendant is a corporation, organized and existing under and by virtue of law," }, { "docid": "5955948", "title": "", "text": "Constitution, Amendment XIV, See. 2. The criterion stated by our highest court for determining the constitutional limitations respecting service of process is that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milli-ken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L.Ed. 278.” International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95. It has been held that a foreign corporation cannot be served with process outside the forum under the due process clause when its only contacts with that state are the sending of goods which it manufactured into the state for resale, even if an agent on its behalf occasionally entered the state to solicit orders or for other business purposes. Mueller v. Steelcase, Inc., D.C.Minn.1959, 172 F. Supp. 416; Air Devices, Inc. v. Titus Mfg. Corp., D.C.N.J.1958, 167 F.Supp. 1; Springs Cotton Mills v. Machinecraft, Inc., D.C.W.D.S.C.1957, 156 F.Supp. 372; Harrison v. Robb Mfg. Co., D.C.Md.1953, 110 F.Supp. 848; Johns v. Bay State Abrasive Products Co., D.C.Md.1950, 89 F.Supp. 654; Truck Parts, Inc. v. Briggs Clarifier Co., D.C.Minn.1938, 25 F.Supp. 602; Colorado Builders’ Supply Co. v. Hinman Bros. Construction Co., 1956, 134 Colo. 383, 304 P.2d 892; see 18 Fletcher, Cyclopedia of the Law of Private Corporations, Sec. 8726 (Morton S. Wolfe 1955); accord, Le Vecke v. Griesedieck Western Brewery Co., 9 Cir., 1956, 233 F.2d 772; Berkelhammer v. Whitehall Pharmacal Co., D.C.S.D.N.Y.1956, 143 F.Supp. 71. Mueller v. Steelcase, Inc., D.C.Minn.1959, 172 F.Supp. 416, recently decided by this Court, is a representative case in point on this issue. The plaintiff therein brought an action to recover damages for personal injuries sustained when an office chair collapsed, the chair having been bought from a Minnesota dealer of a Michigan furniture manufacturing corporation. The Michigan corporation had an agent who solicited orders in" }, { "docid": "5955949", "title": "", "text": "F. Supp. 416; Air Devices, Inc. v. Titus Mfg. Corp., D.C.N.J.1958, 167 F.Supp. 1; Springs Cotton Mills v. Machinecraft, Inc., D.C.W.D.S.C.1957, 156 F.Supp. 372; Harrison v. Robb Mfg. Co., D.C.Md.1953, 110 F.Supp. 848; Johns v. Bay State Abrasive Products Co., D.C.Md.1950, 89 F.Supp. 654; Truck Parts, Inc. v. Briggs Clarifier Co., D.C.Minn.1938, 25 F.Supp. 602; Colorado Builders’ Supply Co. v. Hinman Bros. Construction Co., 1956, 134 Colo. 383, 304 P.2d 892; see 18 Fletcher, Cyclopedia of the Law of Private Corporations, Sec. 8726 (Morton S. Wolfe 1955); accord, Le Vecke v. Griesedieck Western Brewery Co., 9 Cir., 1956, 233 F.2d 772; Berkelhammer v. Whitehall Pharmacal Co., D.C.S.D.N.Y.1956, 143 F.Supp. 71. Mueller v. Steelcase, Inc., D.C.Minn.1959, 172 F.Supp. 416, recently decided by this Court, is a representative case in point on this issue. The plaintiff therein brought an action to recover damages for personal injuries sustained when an office chair collapsed, the chair having been bought from a Minnesota dealer of a Michigan furniture manufacturing corporation. The Michigan corporation had an agent who solicited orders in Minnesota, although his territory included several states in the Middlewest and he resided in Iowa. An attempt was made to obtain jurisdiction over the “person” of the Michigan corporation by serving process upon the Secretary of State for Minnesota pursuant to M.S.A. § 303.13, subd. 1(3). This Court held that jurisdiction was not obtained as the Michigan corporation did not have the requisite contacts with Minnesota to make it constitutionally amenable to substituted service of process. The vagueness and hearsay quality of plaintiff’s proof does not effectively show that American Sound Products had a local employee in this State, especially when the affidavit of Mr. Lubin, president of American Sound Products, is considered, wherein it is asserted that no employee of American Sound Products has entered Minnesota in recent years for business purposes. The cases above cited are controlling as it obviously follows from the principles established therein that if goods are sent into a forum state for resale purposes without other contacts with that state, then jurisdiction over the person of a non-resident foreign" }, { "docid": "22373039", "title": "", "text": "that in the interim the Supreme Court of Minnesota had decided Beck, Atkins, and Dahlberg. Despite these decisions, and although recognizing, p. 527, that “No doubt due process may be sustained where there is a single act transaction”, the court adhered to the views it expressed in Mueller and found it difficult to find support for the fiction that “by reason of a single sale * * * a negligent foreign corporation, without more, has * * * subjected itself to process herein because here the last event took place which would make it liable for its tort”. It felt that Atkins was out of harmony with Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and it placed reliance upon Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., supra, 239 F.2d 502 (4 Cir. 1956). Other Minnesota federal cases where substituted service was quashed are: (a) Bard v. Bemidji Bottle Gas Co., 23 F.R. D. 299 (D.Minn.1958, Judge Nordbye). The court seemed to recognize the propriety of substituted service when the foreign corporation defendant “committed a tort in whole or in part in Minnesota against a Minnesota resident”. It held, however, that when an explosion occurred which injured the plaintiffs no such tort was committed by the foreign corporation-third party defendant which furnished bottle gas to the defendant-third party plaintiff-Minnesota suppliers, (b) Dahlberg Co. v. American Sound Products, Inc., 179 F.Supp. 928 (D.Minn. 1959, Judge Nordbye), was a contract case which the court dismissed as to one defendant. It recognized the breadth of language of the Minnesota statute, observed that under certain circumstances substituted service “may be sufficient” for personal jurisdiction, and held that if goods are sent into the state for resale purposes without other contacts, such jurisdiction over a non-resident foreign manufacturing corporation cannot constitutionally be obtained, and that incidental transactions, such as warranties and point-of-sale advertising given by appliance manufacturers to dealers and customers, do not effectively enlarge contacts. (c) Thiele Eng’r. Co. v. Weldon Farm Products, Inc., 224 F.Supp. 809 (D.Minn.1963, Judge Donovan), was an action on an account stated." }, { "docid": "14618836", "title": "", "text": "Life Insurance Co., 228 U.S. 364, 33 S. Ct. 523, 57 L.Ed. 879; Mueller v. Steelcase, Inc., D.C.Minn., 172 F.Supp. 416. . Section 303.13, subd. 1(3) reads as follows: “If a foreign corporation makes a contract with a resident of Minnesota to be performed in whole or in part by either party in Minnesota, or if such foreign corporation commits a tort in whole or in part in Minnesota against a resident of Minnesota, such acts shall be deemed to be doing business in Minnesota by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary oí the State of Minnesota and his successors to be its true and lawful attorney upon whom may be served all lawful process in any actions or proceedings against the ■foreign corporation arising from or growing out of such contract or tort. Such process shall be served in duplicate upon the secretary of state, together with a fee of $6 and the secretary of state shall mail one copy thereof to the corporation at its last known address, and the corporation shall have 20 days within. which to answer from the date of such mailing, notwithstanding any other provisions of the law. The making oí the contract or the committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the State of Minnesota.” . See paragraphs 3, 4, 5, 6 and 7 of the complaint. . See Atkins v. Jones & Laughlin Steel Corp., supra. . Atkins v. Jones & Laughlin Steel Corp., supra; Beck v. Spindler, 258 Minn. 543, 99 N.W.2d 870; Restatement, Conflict of Laws, §§ 377, 378. . International Shoe Co. v. State, of Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 90 L.Ed. 95; Atkins v. Jones & Laughlin Steel Corp., supra. . Atkins v. Jones & Laughlin Steel Corp., supra; McMenomy et al. v. Wonder Building Corporation of" }, { "docid": "7504506", "title": "", "text": "peculiar to a sales manager, the controlling facts do not make Nienaber an “authorized” agent within the requirements of law. The case most nearly favoring the plaintiff is that of Marlow v. Hinman Milking Mach. Co., Inc., D.C.Minn., 7 F.R.D. 751, for in that case Judge Nordbye determined that the defendant was doing business in Minnesota through the activities of its distributors. However, service was made upon defendant’s sales manager in Minnesota, whose office was on the premises of a firm which merchandised and serviced defendant’s products. Service, it is to be noted, was not made upon a distributor as in the instant case. The service herein relied on was made on Nienaber, who was a distributor and not a sales manager, as was the fact in the Marlow case. Likewise distinguishable is the case of Myers Motors, Inc. v. Kaiser-Frazer Sales Corporation, D.C.Minn., 80 F.Supp. 18. In that case service was made upon defendant’s regional manager and not on the local Kaiser-Frazer dealer. A reading of the case discloses a clear factual distinction. Neither is the Minnesota case of Dahl v. Collette, 202 Minn. 544, 279 N.W. 561, most relied on by plaintiff, in point, for there service was made upon an actual employee of the defendant corporation. Perhaps the case of Nurmi v. J. I. Case Co., 218 Minn. 579, 17 N.W.2d 79, comes closer to the factual situation of the instant case than any of those cited in argument of counsel. In the Nurmi case, plaintiff attempted to serve the summons upon defendant by leaving a copy with the Secretary of Minnesota Motor Company, defendant’s dealer for part of Minnesota. Minnesota Motor Company had been appointed defendant’s dealer pursuant to a written agreement which gave the Motor Company the privilege of purchasing machinery and equipment from the defendant for resale to customers in its territory, with a warranty from the defendant to the purchaser, and which provided that the Motor Company was not an agent of defendant and had no authority to incur any obligations for it. Defendant was not only doing business in Minnesota, but was" }, { "docid": "23396407", "title": "", "text": "States v. R. F. Ball Construction Co., 5 Cir., 239 F.2d 384. . First State Bank of Medford v. United States, D.C.Minn.1958, 166 F.Supp. 204, and Arthur Company v. Chicago Paints, Inc., D.C.Minn.1959, 175 F.Supp. 50. See also Three Mountaineers v. Ramsey, D.C.W.D.N.C.1956, 143 F.Supp. 888, and Massachusetts Bonding & Insurance Company v. Antonelli Construction Co., D.C.Mass.1959, 173 F.Supp. 391. . 166 F.Supp. 209. , A like contention was presented in Arthur Company v. Chicago Paints, Inc., supra, and . determined adversely to the assignor. . The judgment in favor of the inter-pleader was for attorney’s fee in the amount of $800.51 and costs of $15.00. . Mutual Life Ins. Co. of New York v. Bondurant, 6 Cir., 27 F.2d 464, 465, certiorari denied 278 U.S. 630, 49 S.Ct. 30, 73 L.Ed. 548; Treinies v. Sunshine Mining Co., 9 Cir., 99 F.2d 651, 655, affirmed 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85, rehearing denied 309 U.S. 693, 60 S.Ct. 464, 84 L.Ed. 1034; New York Life Ins. Co. v. Miller, 8 Cir., 139 F.2d 657, 658; Globe Indemnity Co. v. Puget Sound Co., 2 Cir., 154 F.2d 249, 250. . Commercial Standard Insurance Co. v. Campbell, 5 Cir., 254 F.2d 432, 433; Narragansett Bay Gardens, Inc. v. Grant Construction Co., D.C.R.I.1959, 176 F.Supp. 451, 454-456; and Ford Motor Co. v. Hackart Construction Co., D.C.N.J. 1956, 143 F.Supp. 216, 218-219." }, { "docid": "22373040", "title": "", "text": "when the foreign corporation defendant “committed a tort in whole or in part in Minnesota against a Minnesota resident”. It held, however, that when an explosion occurred which injured the plaintiffs no such tort was committed by the foreign corporation-third party defendant which furnished bottle gas to the defendant-third party plaintiff-Minnesota suppliers, (b) Dahlberg Co. v. American Sound Products, Inc., 179 F.Supp. 928 (D.Minn. 1959, Judge Nordbye), was a contract case which the court dismissed as to one defendant. It recognized the breadth of language of the Minnesota statute, observed that under certain circumstances substituted service “may be sufficient” for personal jurisdiction, and held that if goods are sent into the state for resale purposes without other contacts, such jurisdiction over a non-resident foreign manufacturing corporation cannot constitutionally be obtained, and that incidental transactions, such as warranties and point-of-sale advertising given by appliance manufacturers to dealers and customers, do not effectively enlarge contacts. (c) Thiele Eng’r. Co. v. Weldon Farm Products, Inc., 224 F.Supp. 809 (D.Minn.1963, Judge Donovan), was an action on an account stated. In response to the defendant’s counterclaim alleging breach of warranty, the plaintiff attempted substituted service on a Texas corporation as third-party defendant. The court emphasized the contract nature of the case and the absence of privity, (d) Williams v. Connolly, 227 F.Supp. 539 (D.Minn. 1964, Judge Larson). A California resident sued for injuries received in an explosion in a Minnesota motel. The defendants were the motel owners and, among others, the foreign corporation-manufacturer of a heater. Service under the statute on the manufacturer was quashed because “we have not been presented with evidence from which we can make an analysis of the contacts * * * or of the applicability of the contract provisions of the Minnesota statute”. Judge Larson, however, in a detailed opinion, noted that the action necessarily sounded in contract because the tort side of the statute required that any tort be committed against a Minnesota resident; that Ewing v. Lockheed Aircraft Corp., infra, 202 F.Supp. 216 (D.Minn.1962), provided a persuasive analogy; that privity was on the wane in Minnesota; that “the" }, { "docid": "3167614", "title": "", "text": "part of the plaintiff’s. Any realistic treatment of the transaction must view the carrier bringing the shipment as the agent of one or both of the parties. As mentioned earlier, the One Act statute applies when an act of either party is to be performed in Minnesota.” Id. at 159-160. Under a literal interpretation of the One Act Statute, the Minnesota Supreme Court could have exercised jurisdiction over the nonresident buyers in Marshall Egg Transport and in Fourth Northwestern. The denial of jurisdiction in those cases indicates that the Minnesota Supreme Court requires something more than mere “partial performance by either party.” . These requirements closely parallel those necessary to satisfy due process requirements. They are discussed in more detail in a subsequent section of this opinion. See, Washington Scientific Indus., Inc. v. Polan Industries, Inc., 273 F.Supp. 344 (D.Minn.1967); Bonhiver v. Louisiana Brokers Exchange, Inc., 255 F.Supp. 254 (D.Minn.1966); Paulos v. Best Securities, Inc., supra; Dahlberg Co. v. Western Hearing Aid Center, Ltd., supra; Beck v. Spindler, supra. . Aftanase v. Economy Baler Company, supra; United Barge Co. v. Logan Charter Service, Inc., 237 F.Supp. 624 (D.Minn.1964); Ehlers v. United States Heating & Cooling Mfg. Corp., supra; Adamek v. Michigan Door Co., supra; Beck v. Spindler, supra. But see, Pendzimas v. Eastern Metal Products Corp., 218 F.Supp. 524 (D.Minn.1961); Mueller v. Steelcase, Inc., 172 F.Supp. 416 (D.Minn.1959). . See also, Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (1965, Mr. Justice Goldberg, Circuit Justice), appeal dismissed 382 U.S. 1002, 86 S.Ct. 533, 15 L.Ed.2d 491 (1965). . In Shealy v. Challenger Manufacturing Company, 304 F.2d 102 (4th Cir. 1962), the Court stated: a * * * tlae defendant, like the maker of the better mousetrap, is fortunate enough to get the business without active solicitation, it does not gain immunity from an exercise of jurisdiction by those states in which it engages in substantial activity of a" }, { "docid": "9437151", "title": "", "text": "First National Bank of Minneapolis, 8 Cir., 236 F.2d 853. . Minnesota Statutes Annotated, § 303.13, subd. 1(3) reads as follows: “If a foreign corporation makes a contract with a resident of Minnesota to be performed in whole or in part by either party in Minnesota, or if such foreign corporation commits a tort in whole or in part in Minnesota against a resident of Minnesota, such acts shall be deemed to be doing business in Minnesota by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of the State of Minnesota and his successors to be its true and lawful attorney upon whom may be served all lawful process in any actions or proceedings against the foreign corporation arising from or growing out of such contract or tort. Such process shall be served in duplicate upon the secretary of state, together wtih a fee of $6 and the secretary of state shall mail one copy thereof to the corporation at its last known address, and the corporation shall have 20 days within which to answer from the date of such mailing, notwithstanding any other provision of the law. The making of the contract or the committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state . shall be of the same legal force and effect as if served personally within the State of Minnesota.” . Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. . International Shoe Co. v. Washington, etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. . McMenomy v. Wonder Building Corporation of America, D.C.Minn., 188 F.Supp. 213; Hutchinson v. Boyd and Sons Press Sales, Inc., D.C.Minn., 188 F.Supp. 876. . McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223; International Shoe Co. v. Washington, etc., supra note 5; Atkins v. Jones & Laughlin Steel Corporation, 258 Minn. 571, 104 N.W.2d 888." } ]

[ { "docid": "22643140", "title": "", "text": "Mr. Justice Brennan delivered the opinion of the Court. This case requires us to determine whether a person released on his own recognizance is “in custody” within the meaning of the federal habeas corpus statute, 28 U. S. C. §§ 2241 (c)(3), 2254 (a). See Peyton v. Rowe, 391 U. S. 54 (1968); Carajas v. LaVallee, 391 U. S. 234 (1968); Jones v. Cunningham, 371 U. S. 236 (1963). Petitioner initiated this action in the United States District Court for the Northern District of California, challenging a state court conviction on First and Fourteenth Amendment grounds. The court denied relief, holding that since the petitioner was enlarged on his own recognizance pending execution of sentence, he was not yet “in custody” for purposes of the habeas corpus statute. The Court of Appeals for the Ninth Circuit agreed that release on one’s own recognizance is not sufficient custody to confer jurisdiction on the District Court, and affirmed the judgment. 453 F. 2d 1252 (1972). We granted certiorari, 409 U. S. 840 (1972), and we reverse. Convicted of a misdemeanor in California Municipal Court for violation of § 29007 of the California Education Code, petitioner was sentenced to serve one year in jail and pay a fine of $625. He appealed his conviction unsuccessfully to the Appellate Department of the Superior Court, and his efforts to have the conviction set aside on state court collateral attack have proved equally unavailing. It appears that petitioner exhausted all available state court remedies prior to filing this petition for federal habeas corpus. See 28 U. S. C. §2254 (b). At all times since his conviction petitioner has been enlarged on his own recognizance. While pursuing his state court remedies he remained at large under an order of the state trial court staying execution of his sentence. And the state trial court extended its stay, even after the Supreme Court of California declined to hear his application for postconviction relief, apparently to permit petitioner to remain at large while seeking habeas corpus in the United States District Court. Pending appeal from the District Court's denial of" } ]

[ { "docid": "23319486", "title": "", "text": "function such that petitioner is not in respondent’s custody at this time.” The court made no mention of the fact that Simmonds was under a final order of removal. On appeal, we appointed counsel and asked the parties to address two questions. First, was the petition ripe for review in light of Simmonds’ sentence of imprisonment in New York? Second, is Simmonds in the custody of the INS by virtue of his being under a final order of removal? Custody A jurisdictional prerequisite for the granting of a writ of habeas corpus under 28 U.S.C. § 2241 is that the petitioner be “in custody.” The provision relevant to this case states that the “writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Although Simmonds is not, literally, a prisoner of the INS, courts have long recognized that the writ is available to those who, although not actually imprisoned, suffer such a curtailment of liberty as to render them “in custody.” See Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The actions taken by the INS that may be argued to restrict Simmonds’ liberty include the filing of a “detainer” with state prison officials and the imposition of a final order of removal. The majority of circuits has held that the filing of a detainer, alone, does not create custody in the INS. See Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir.2003) (collecting cases and agreeing with the majority of circuits that, where there was no contention “that the INS actually has ordered [the alien’s] deportation,” the existence of an immigration detainer does not amount to custody). But this view has not been adopted unanimously. See Vargas v. Swan, 854 F.2d 1028 (7th Cir.1988). Our circuit has not yet resolved the issue. See Roldan v. Racette, 984 F.2d 85, 88-89 (2d Cir.1993) (noting the majority and minority views but not reaching the question because the petitioner" }, { "docid": "22369193", "title": "", "text": "if he is “in custody” under federal authority or for violation of federal law. 28 U.S.C. § 2241(c). As the Supreme Court recently noted, physical detention (or here, physical detention by federal, rather than state, authority) is no longer required for a petitioner to meet the custody requirement and obtain habeas relief. Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 2719, 159 L.Ed.2d 513 (2004) (“[Ojur understanding of custody has broadened to include restraints short of physical confinement!.]”); see also Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (recognizing that restraints on liberty other than physical confinement may constitute custody for habeas purposes). At least four circuits have held that a final deportation order subjects an alien to a restraint on liberty sufficient to place the alien “in custody.” Simmonds v. INS, 326 F.3d 351, 354 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995); cf. Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 541 (5th Cir.2003) (holding that, where the INS had not ordered the alien deported, an immigration detainer alone did not place him “in custody” under § 2241). We agree. The federal government has placed a significant restraint on Rosales’s liberty by issuing a final order of deportation against him. It must detain him once his removal period begins at his release from state prison. 8 U.S.C. § 1231(a)(1)(B)(iii), (a)(2). He is therefore “in custody” under § 2241. Simmonds, 326 F.3d at 354-55; cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (holding that a prisoner under the authority of State A may file an immediate habeas petition to attack future confinement by State B where State B has filed a detainer against the prisoner with State A). However, § 2241 is no longer the appropriate avenue for Rosales’s challenge. Before the judgment in this case was vacated and remanded by the Supreme" }, { "docid": "21023555", "title": "", "text": "(9th Cir.1995). The question presented in this case, however, is slightly different: Whether an individual who has already been removed from the United States at the time he files a habeas petition meets the custody requirement. We find that he does not. A petitioner who has been removed from the country is “not subject to restraints not shared by the public generally that significantly confine and restrain his freedom. [He] is subject to no greater restraint than any other non-citizen living outside American borders.” Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir.2001). See also Patel v. U.S. Attorney General, 334 F.3d 1259, 1263 (11th Cir.2003). As the Ninth Circuit explained in Miranda, “[n]o interpretation of § 2241 that is not utterly at war with its plain language permits us to exercise habeas corpus jurisdiction” when the petitioner has already been removed from the country. Id Accordingly, we hold that petitioners who have already been removed from the country do not satisfy the “in custody” requirement for habeas corpus jurisdiction. Because Kumarasamy had already been removed from the country when he filed his habeas petition, the District Court lacked jurisdiction to consider it. IV. CONCLUSION For the foregoing reasons, we will affirm the order of the District Court dismissing Kumarasamy’s habeas petition for lack of jurisdiction. .Although withholding of removal (a.k.a. restriction on removal) only prevents removal to the specified country and does not preclude removal to a third country, commentators have noted that \"[i]n practice, however, non-citizens who are granted restrictions on removal are almost never removed from the U.S.” Weissbrodt, David & Laura Danielson, Immigration Law and Procedure 303 (5th ed.2005). . The transcript of the hearing is not in the record. The government neither confirms nor denies Kumarasamy's description of what occurred and what was said. . Kumarasamy claims that he was not allowed to call his attorney or his wife prior to his deportation. . In such cases, we “vacate and disregard the District Court's opinion and address the claims raised in [the petitioner's] habeas peti tion as if they were presented before us in the" }, { "docid": "23319488", "title": "", "text": "had failed to object to the magistrate’s recommendation below); see also Waldron v. INS, 17 F.3d 511, 516 (2d Cir.1994). Nor should we in this case, because Simmonds’ final order of removal is sufficient, by itself, to establish the requisite custody. Were it not for the fact that Simmonds is now being held in state prison, this conclusion would be a simple one. In cases in which the aliens ordered removed were not incarcerated, various courts of appeals have agreed that subjecting an alien to a final order of removal is to place that alien in custody within the meaning of the habeas statute. See, e.g., Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). And we have held that an alien who has been released on bail from INS detention but is subject to a final order of removal is in INS custody. See Henderson v. INS, 157 F.3d 106 (2d Cir.1998). The government insists, however, that Simmonds is not “subject to” the outstanding removal order, because that order cannot be executed while Simmonds remains in state prison. See 8 U.S.C. § 1231(a)(4)(A) (forbidding the Attorney General from removing an alien who is serving a sentence of imprisonment until after the alien is released, while allowing the removal of aliens who are on parole or on supervised release). But in this respect, Simmonds’ position is the same as that of an ordinary habeas petitioner who seeks to attack a sentence of incarceration, in one jurisdiction, when that sentence was made consecutive to the one the petitioner is then serving in another jurisdiction. In such circumstances, it is well established that custody exists in both jurisdictions and hence that habeas may lie to attack the future sentence in such circumstances. In Frazier v. Wilkinson, 842 F.2d 42 (2d Cir.1988), we reviewed the history of the Supreme Court’s break from its previous rigid rule that habeas petitions may only be directed to the legality of a" }, { "docid": "23015640", "title": "", "text": "district court, if it becomes moot on appeal, we must dismiss the case unless “the relief sought would, if granted, make a difference to the legal interests of the parties.” Id. Because Rosales is still “in custody” for the purposes of 28 U.S.C. § 2241 and because the relief he seeks, if granted, would make a difference to his legal interests, we conclude that his appeal is not moot. The government argues that “if a prisoner is released from custody during the pendency of his case, his habeas petition becomes moot.” Gov’t Supp. Br. re Rosales at 19. In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), however, the Supreme Court held that a paroled prisoner was in the custody of his state parole board for the purposes of 28 U.S.C. § 2241. “While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute.... ” Jones, 371 U.S. at 243, 83 S.Ct. 373; see also DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140 (6th Cir.1993). Although Rosales’s parole was not based on a criminal conviction, it imposes similarly restrictive conditions. See Rosales Supp. J.A. at 4-5 (Conditions of Parole). Therefore, we conclude that even though he has been paroled into the United States, Rosales is still in the custody of the INS for the purposes of his habeas petition. Our inquiry into whether Rosales’s claim is moot cannot end, however, with a determination of custody. In Spencer v. Kemna, the Supreme Court determined that a petitioner’s release did not by itself moot his habeas petition, but the Court then explained that “[t]he more substantial question ... is whether petitioner’s subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Rosales petitioned" }, { "docid": "2663946", "title": "", "text": "(6th Cir.2003); Bannerman v. Snyder, 325 F.3d 722, 723 (6th Cir.2003). While an alien may file a § 2241 petition challenging his removal proceedings, an alien is not “in custody” for removal pur poses if he is detained pursuant to a sentence for a criminal conviction, even if the INS has filed a detainer order with the prison where the petitioner is incarcerated. Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir.2003) (collecting-cases); Prieto v. Gluch, 913 F.2d 1159, 1163-64 (6th Cir.1990), cert. denied, 498 U.S. 1092, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991). In this case, however, at the time Garcia-Echaverria filed his § 2241 petition, the INS had already reinstated Garcia-Echaverria’s prior Final Order of Removal. The IIRIRA requires the INS to take custody of and commence procedures to execute the removal of an alien who is subject to a final order of removal based upon a conviction for an “aggravated felony.” Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); see also Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022 n. 4 (6th Cir.1999). This requirement was strong evidence of the DHS’s intention to take custody of Garcia-Echaverria immediately following the conclusion of his sentence, and thus satisfies the custody requirement for a § 2241 petition. Because Garcia-Echaverria was in INS custody at the time he filed his habeas petition challenging the constitutionality of his confinement, the district court had jurisdiction pursuant to 28 U.S.C. § 2241. This court has jurisdiction over the appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Subsequent to this case being submitted on the briefs, Garcia-Echaverria completed his sentence for his § 1326(b) conviction, and Garcia-Echaverria is currently being detained by the DHS pending his removal. Garcia-Echaverria’s completion of his criminal sentence neither deprives us of jurisdiction over this appeal nor moots the claims asserted in the habe-as petition that we are reviewing in this appeal. Rosales-Garcia v. Holland, 322 F.3d 386, 394-96, 395 n. 6 (6th Cir.) (en banc), cert. denied, 539 U.S. 941, 123 S.Ct. 2607, 156 L.Ed.2d 627 (2003). We review de novo" }, { "docid": "2663945", "title": "", "text": "reenter from the Attorney General, in violation of 8 U.S.C. § 1326(b). After his motions to dismiss the indictment were denied, Garcia-Echaverria pleaded guilty on September 10, 2002, to the charge of unlawful reentry, and the district court sentenced him to thirty-seven months of imprisonment. Prior to pleading guilty, Garcia-Echaverria filed on May 3, 2002, in the Northern District of Ohio, a petition for a writ of habeas corpus challenging his current detention. On December 30, 2002, the district court denied Garcia-Echaver-ria’s petition for habeas corpus. Garcia-Echaverria filed a timely notice of appeal. II. JURISDICTION The district court had jurisdiction over Garcia-Echaverria’s habeas petition pursuant to 28 U.S.C. § 2241. Garcia-Echaverria filed both a direct appeal of his conviction for unlawful reentry and a habeas petition challenging his current detention. Typically, a federal prisoner may file a § 2241 petition contesting the legality of his detention only if his claim is such that he cannot obtain effective relief on direct appeal or through a § 2255 motion. Paulino v. United States, 352 F.3d 1056, 1060-61 (6th Cir.2003); Bannerman v. Snyder, 325 F.3d 722, 723 (6th Cir.2003). While an alien may file a § 2241 petition challenging his removal proceedings, an alien is not “in custody” for removal pur poses if he is detained pursuant to a sentence for a criminal conviction, even if the INS has filed a detainer order with the prison where the petitioner is incarcerated. Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir.2003) (collecting-cases); Prieto v. Gluch, 913 F.2d 1159, 1163-64 (6th Cir.1990), cert. denied, 498 U.S. 1092, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991). In this case, however, at the time Garcia-Echaverria filed his § 2241 petition, the INS had already reinstated Garcia-Echaverria’s prior Final Order of Removal. The IIRIRA requires the INS to take custody of and commence procedures to execute the removal of an alien who is subject to a final order of removal based upon a conviction for an “aggravated felony.” Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); see also Mustata v. U.S. Dep’t of Justice, 179" }, { "docid": "22145323", "title": "", "text": "the time the District Court granted his petition, Jordon was still in the physical custody of the Bureau of Prisons at the Allen-wood facility, not the physical custody of the INS. Nonetheless, physical detention is not required for a petitioner to meet the \"in custody” requirement of § 2241, see Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 2719, 159 L.Ed.2d 513 (2004) (\"[0]ur understanding of custody has broadened to include restraints short of physical confinement[.]”); Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (noting feat custody may be established by restraints on one’s liberty other than physical confinement), and there is authority in several of our sister circuits that one subject to a final deportation order issued by fee INS or its successor agency is thereby \"in custody” for § 2241 purposes. See Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). Thus, there was at least colorable authority to support the INS’s \"custody” over Jordon at fee time he filed his petition. For reasons discussed further below, we need not and do not decide whether a final deportation order issued by INS (or, now, BICE) places one \"in custody” of INS (or BICE) for § 2241 purposes. . Although, as noted above, we have substituted fee Attorney General of fee United States as fee appellant in this appeal, we will refer to fee appellant herein as BICE for purposes of historical accuracy. . We will assume without deciding feat Jor-don exhausted his derivative citizenship claim as required by 8 U.S.C. § 1252(d)(1). It is true that \"the exhaustion requirement of 8 U.S.C. § 1252(d) is jurisdictional,” Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir.2005), and that we are generally obligated to address jurisdictional questions. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting notion" }, { "docid": "22145322", "title": "", "text": "States Department of Justice. Its enforcement functions now reside in the Bureau of Immigration and Customs Enforcement (BICE) within the Department of Homeland Security. See also Vente v. Gonzales, 415 F.3d 296, 299 n. 1 (3d Cir.2005). . This detainer notice indicated that an \"[¡Investigation has been initiated to determine whether this person [Jordon] is subject to removal from the United States.” The notice stated that it was \"for notification purposes only” and that it did not limit the Allenwood facility's discretion with respect to any decision affecting Jordon. The notice also directed the Allenwood facility to notify the INS at least 30 days prior to Jordon’s release or in the event of his death or transfer. . The habeas statute provides, in pertinent part, that \"[t]he writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody under or by color of the authority of the United States; or .... in violation of the Constitution or laws or treaties of the United States....” 28 U.S.C. § 2241(c). . At the time the District Court granted his petition, Jordon was still in the physical custody of the Bureau of Prisons at the Allen-wood facility, not the physical custody of the INS. Nonetheless, physical detention is not required for a petitioner to meet the \"in custody” requirement of § 2241, see Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 2719, 159 L.Ed.2d 513 (2004) (\"[0]ur understanding of custody has broadened to include restraints short of physical confinement[.]”); Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (noting feat custody may be established by restraints on one’s liberty other than physical confinement), and there is authority in several of our sister circuits that one subject to a final deportation order issued by fee INS or its successor agency is thereby \"in custody” for § 2241 purposes. See Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack" }, { "docid": "17110342", "title": "", "text": "It is well settled that custody required for jurisdiction pursuant to 28 U.S.C. § 2241 does not necessarily mean physical custody. See generally Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). The term \"in custody\" has been broadly construed to apply to situations in which an alien is not suffering any actual physical detention, i.e., so long as he is subject to a final order of deportation, an alien is deemed to be \"in custody” for purposes of the INA, and therefore may petition a district court for habeas review of that deportation order. See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995); see also Motta v. District Director, INS, 869 F.Supp. 80, 85 (D.Mass.1994). . The AEDPA was signed on April 24, 1996. Section 440(d) of the AEDPA changed the last sentence of Section 212(c) of'the INA to provide as follows: This subsectipn shall not apply to an alien who is deportablq by reason of having committed any criminal offense covered in Section 241(a)(2)(A)(iii), (B),'(C), or (D), or any offense covered by Section 241 (a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by Section 241 (a)(2)(A)(i). . Prior to the enactment of Section 440(d) of the AEDPA, Section 212(c) of the INA read as follows: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelin-quished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) (other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b). The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least" }, { "docid": "7578100", "title": "", "text": "BRORBY, Circuit Judge. Appellants, Douglas Dry, Rosie Burli-son and Juanita McConnell, are Choctaw Indians charged with various violations of the Choctaw Criminal Code. After arraignment, the Court of Indian Offenses for the Choctaw Nation released Appellants on their own recognizance pending trial. Appellants then filed a petition for writ of habeas corpus in federal court, challenging the jurisdiction of the Court of Indian Offenses. The district court dismissed the petition, concluding Appellants were not “in custody” for purposes of 28 U.S.C. § 2241, and Appellants appealed. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and reverse. We review the district court’s dismissal of Appellants’ habeas petition de novo. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). Federal courts have jurisdiction to grant writs of habeas corpus to persons “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §> 2241(c)(3) (emphasis added). A petitioner must satisfy the “in custody” requirement as a prerequisite to habeas corpus jurisdiction. Carter v. United States, 733 F.2d 735, 736 (10th Cir.1984), cert. denied, 469 U.S. 1161, 105 S.Ct. 915, 83 L.Ed.2d 928 (1985). A petitioner need not show actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). A petitioner is in custody for purposes of the statute if he or she is subject to “severe restraints on [his or her] individual liberty.” Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). A restraint is severe when it is “not shared by the public generally.” Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). In this case, tribal authorities charged, arraigned, and released Appellants on their own recognizance pending trial. Although Appellants are ostensibly free to come and go as they please, they remain obligated to appear for trial at the court’s discretion. This is sufficient to meet the “in custody” requirement of the habeas statute. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-01, 104 S.Ct. 1805, 80" }, { "docid": "23481815", "title": "", "text": "United States____” See 28 U.S.C. § 2241. Both petitioners meet this requirement. Mojica is, at present, in physical custody. While Navas is not now held physically, he is subject to a final order of deportation and was issued a notice to surrender and is presently released on bond. The law is clear that these facts are sufficient to satisfy the “custody” requirement for purposes of habeas review. The writ of habeas corpus is not a formalistic remedy whose availability is strictly limited to persons in actual physical restraint. As the Supreme Court explained in holding that parolees satisfy the “custody” requirement: History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally ... sufficient ... to support the issuance of habeas corpus---- Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 375, 9 L.Ed.2d 285 (1963). It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. Jones, 371 U.S. at 243, 83 S.Ct. at 377; see also Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574 36 L.Ed.2d 294 (1973) (releasing petitioner on own recognizance pending appeal); Barry v. Brower, 864 F.2d 294, 296 (3d Cir.1988) (“probationary sentence remained open”); Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d Cir.1984) (released on parole and bail). In the immigration context courts have also held that physical restraint is not required for habeas jurisdiction. Where the petitioner is subject to a final order of deportation, the “custody” requirement is satisfied, particularly where the alien has been released on condition of posting a bond. See, e.g., Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995) (“so long as he is subject to a final order of deportation, an alien is deemed to be ‘in custody’ ”); Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir.1982) (petitioner released on bond" }, { "docid": "23319487", "title": "", "text": "curtailment of liberty as to render them “in custody.” See Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The actions taken by the INS that may be argued to restrict Simmonds’ liberty include the filing of a “detainer” with state prison officials and the imposition of a final order of removal. The majority of circuits has held that the filing of a detainer, alone, does not create custody in the INS. See Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir.2003) (collecting cases and agreeing with the majority of circuits that, where there was no contention “that the INS actually has ordered [the alien’s] deportation,” the existence of an immigration detainer does not amount to custody). But this view has not been adopted unanimously. See Vargas v. Swan, 854 F.2d 1028 (7th Cir.1988). Our circuit has not yet resolved the issue. See Roldan v. Racette, 984 F.2d 85, 88-89 (2d Cir.1993) (noting the majority and minority views but not reaching the question because the petitioner had failed to object to the magistrate’s recommendation below); see also Waldron v. INS, 17 F.3d 511, 516 (2d Cir.1994). Nor should we in this case, because Simmonds’ final order of removal is sufficient, by itself, to establish the requisite custody. Were it not for the fact that Simmonds is now being held in state prison, this conclusion would be a simple one. In cases in which the aliens ordered removed were not incarcerated, various courts of appeals have agreed that subjecting an alien to a final order of removal is to place that alien in custody within the meaning of the habeas statute. See, e.g., Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). And we have held that an alien who has been released on bail from INS detention but is subject to a final order of removal is in INS custody. See Henderson v. INS, 157 F.3d" }, { "docid": "10798275", "title": "", "text": "requires a petitioner to be “in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States.” “The custody requirement is jurisdictional.” Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009). We review de novo the legal question “as to the proper interpretation of the ‘in custody’ requirement of 28 U.S.C. § 2254.” Id. at 1138. We liberally construe Mr. Calhoun’s pro se filings. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.2003). A petitioner must satisfy the custody requirement at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). He need not, however, show actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). Habeas corpus is available for prisoners released on parole or personal recognizance. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 346, 353, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (personal recognizance). It is also available to prisoners serving consecutive sentences, Garlotte v. Fordice, 515 U.S. 39, 46-47, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), as well as to aliens seeking entry into the United States, Jones, 371 U.S. at 240 & n. 9, 83 S.Ct. 373, and persons “questioning the legality of an induction or enlistment into the military service,” id. at 240 & n. 11, 83 S.Ct. 373. Commitment to a mental institution or incarceration as the result of a civil contempt order may also meet the custody requirement. Duncan v. Walker, 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The writ is available in situations where a state-court criminal conviction has subjected the petitioner to “severe restraints on [his or her] individual liberty.” Hensley, 411 U.S. at 351, 93 S.Ct. 1571. A restraint is severe when it is “not shared by the public generally.” Jones, 371 U.S. at 240, 83 S.Ct. 373. But the remedy of a" }, { "docid": "22369192", "title": "", "text": "time on the Texas conviction. It filed an immigration detainer concerning Rosales with the Texas Department of Criminal Justice in March 2002. At Rosales’s immigration hearing in July 2002, the immigration judge (“IJ”) advised Rosales of his right to legal representation. Rosales waived that right, said he wished to be removed to Mexico, and elected to proceed with his hearing that day. He conceded the grounds for his removal, that he had been convicted of an aggravated felony. The IJ found Rosales ineligible for relief from removal and ordered him deported. Rosales appealed to the BIA, arguing that his hearing did not afford him due process because the IJ did not inform him of his right to contact his consulate under the Vienna Convention on Consular Relations, Dec. 24, 1969, art. 36, 21 U.S.T. 77. The BIA dismissed the appeal because it lacked jurisdiction to consider Rosales’s constitutional claim. Rosales then filed the present habeas suit. II. Analysis A. Rosales Is “In Custody” Under § 2211 An individual may seek habeas relief under § 2241 if he is “in custody” under federal authority or for violation of federal law. 28 U.S.C. § 2241(c). As the Supreme Court recently noted, physical detention (or here, physical detention by federal, rather than state, authority) is no longer required for a petitioner to meet the custody requirement and obtain habeas relief. Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 2719, 159 L.Ed.2d 513 (2004) (“[Ojur understanding of custody has broadened to include restraints short of physical confinement!.]”); see also Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (recognizing that restraints on liberty other than physical confinement may constitute custody for habeas purposes). At least four circuits have held that a final deportation order subjects an alien to a restraint on liberty sufficient to place the alien “in custody.” Simmonds v. INS, 326 F.3d 351, 354 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290," }, { "docid": "12088036", "title": "", "text": "the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.” The term “custody,” however, is not limited solely to physical confinement. For example, individuals on parole, probation, or bail may be in custody for purposes of sections 2241 and 2254. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973) (bail); United States v. Hopkins, 517 F.2d 420, 423-24 (3d Cir.1975) (probation). See Sevier v. Turner, 742 F.2d 262, 269 (6th Cir.1984) (dicta). But see Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.1970) (per curiam) (individual fined and subjected to driver’s license revocation not in custody). Courts determine whether a habeas corpus petitioner is in custody for purposes of sections 2241 and 2254 at the time that the application is filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968); Sevier, 742 F.2d at 268. Although the petitioner’s release from custody subsequent to the filing of the application may render his case moot, such a release does not impact the threshold question of custody. Id. at 268-69. Note, however, that this court has declined to exercise jurisdiction over claims in which the petitioner challenges a sentence which he has already fully served and in which he was not in state custody, even when the suit was first initiated in the district court. Ward v. Knoblock, 738 F.2d 134, 138 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985). See also Yoder v. Celebrezze, 856 F.2d 197 (6th Cir.1988) (because probationary period ended prior to filing of habeas corpus petition, there was no jurisdiction; permanent revocation of teaching certificate was collateral consequence (relevant to question of mootness only), not indicator of custody), petition for cert. filed, 57 U.S.L.W." }, { "docid": "23481816", "title": "", "text": "— the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. Jones, 371 U.S. at 243, 83 S.Ct. at 377; see also Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574 36 L.Ed.2d 294 (1973) (releasing petitioner on own recognizance pending appeal); Barry v. Brower, 864 F.2d 294, 296 (3d Cir.1988) (“probationary sentence remained open”); Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d Cir.1984) (released on parole and bail). In the immigration context courts have also held that physical restraint is not required for habeas jurisdiction. Where the petitioner is subject to a final order of deportation, the “custody” requirement is satisfied, particularly where the alien has been released on condition of posting a bond. See, e.g., Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995) (“so long as he is subject to a final order of deportation, an alien is deemed to be ‘in custody’ ”); Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir.1982) (petitioner released on bond after commencement of deportation proceedings “in custody”); Eltayeb v. Ingham, 950 F.Supp. 95, 99 n. 5 (alien released on own recognizance and subject to deportation order “in custody”); Parco v. Morris, 426 F.Supp. 976, 978 n. 4 (E.D.Pa.1977) (“where an order of deportation is outstanding the ‘custody’ requirement for habeas corpus jurisdiction is satisfied”). See also Flores v. U.S. Immigration and Naturalization Service, 524 F.2d 627, 629 (9th Cir.1975); Narayan v. Ilchert, 799 F.Supp. 1047, 1050 n. 3 (N.D.Cal.1992); Gur bisz v. U.S., 675 F.Supp, 436, 441 (N.D.Ill.1987). The government argues that this well-settled ease law defining “in custody” is inapplicable in the instant case because the AEDPA and the IIRIRA have eliminated this court’s habeas jurisdiction except to the extent required by the Constitution and that the Constitution, as informed by the common law, requires “actual physical detention.” On both points, the government is wrong. As discussed, supra, this court’s section 2241 jurisdiction is unaffected by the AEDPA and the IIRIRA because Congress failed to repeal or amend such jurisdiction explicitly. In addition, even" }, { "docid": "17110341", "title": "", "text": "extent: the ease is remanded to the Board of Immigration Appeals for a discretionary determination of the merits of petitioner’s application for relief under the old INA Section 212(c) without regard to Section 440(d) of AEDPA. Petitioner’s deportation is stayed pending consideration of his waiver application by an Immigration Judge. The Attorney General, through the Board of Immigration Appeals, of course, may still exercise her discretion whether to allow petitioner to avoid deportation. SO ORDERED. . In both his petition and at oral argument, petitioner argued that Section 440(d) cannot be applied retroactively to his case. The Court of Appeals for the First Circuit in Goncalves v. Reno, 144 F.3d 110, 112, 126 (1st Cir.1998) held that Section 440(d) did not apply retroactively to pending applications for Section 212(c) relief. In contrast, petitioner’s deportation proceedings were not initiated until February 14, 1997, well after the enactment of the AEDPA. The Court does not look beyond the narrow holding in Goncalves to address petitioner’s claim.because it is more persuaded by his equal protection violation argument. . It is well settled that custody required for jurisdiction pursuant to 28 U.S.C. § 2241 does not necessarily mean physical custody. See generally Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). The term \"in custody\" has been broadly construed to apply to situations in which an alien is not suffering any actual physical detention, i.e., so long as he is subject to a final order of deportation, an alien is deemed to be \"in custody” for purposes of the INA, and therefore may petition a district court for habeas review of that deportation order. See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995); see also Motta v. District Director, INS, 869 F.Supp. 80, 85 (D.Mass.1994). . The AEDPA was signed on April 24, 1996. Section 440(d) of the AEDPA changed the last sentence of Section 212(c) of'the INA to provide as follows: This subsectipn shall not apply to an alien who is deportablq by reason" }, { "docid": "21023553", "title": "", "text": "no removal order at all (even though, of course, one was issued, albeit belatedly). Accordingly, given the unusual circumstances of this case, we will not convert this appeal into a petition for review. “In reviewing [on appeal] a federal habeas judgment, we exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its findings of fact.” Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002) (internal quotation marks and citation omitted). III. DISCUSSION For a court to have jurisdiction over an immigration-related habeas corpus claim, the petitioner must be in the “custody” of the federal immigration agency. See 28 U.S.C. § 2241(c); Gordon, Charles, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 104.04 (2005). The District Court determined that exclusion from the United States did not constitute “custody” for the purposes of § 2241, and dismissed the petition for lack of jurisdiction. We agree that the District Court lacked jurisdiction. We agree with the District Court that Kumarasamy was not in custody when he filed his petition. An individual need not be incarcerated to be considered in custody for purposes of § 2241. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Jordon v. Attorney General, 424 F.3d 320, 325 n. 6 (3d Cir.2005). Indeed, in the criminal context, an individual who is on parole or released on his or her own recognizance is deemed in custody because of the significant restrictions imposed on his or her freedom. See Jones, 371 U.S. 236, 83 S.Ct. 373; Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). In the immigration context, several of our sister circuits have held that an individual subject to a final deportation order issued by the INS or its successor agency is in custody for § 2241 purposes. See Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293" }, { "docid": "21023554", "title": "", "text": "An individual need not be incarcerated to be considered in custody for purposes of § 2241. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Jordon v. Attorney General, 424 F.3d 320, 325 n. 6 (3d Cir.2005). Indeed, in the criminal context, an individual who is on parole or released on his or her own recognizance is deemed in custody because of the significant restrictions imposed on his or her freedom. See Jones, 371 U.S. 236, 83 S.Ct. 373; Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). In the immigration context, several of our sister circuits have held that an individual subject to a final deportation order issued by the INS or its successor agency is in custody for § 2241 purposes. See Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). The question presented in this case, however, is slightly different: Whether an individual who has already been removed from the United States at the time he files a habeas petition meets the custody requirement. We find that he does not. A petitioner who has been removed from the country is “not subject to restraints not shared by the public generally that significantly confine and restrain his freedom. [He] is subject to no greater restraint than any other non-citizen living outside American borders.” Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir.2001). See also Patel v. U.S. Attorney General, 334 F.3d 1259, 1263 (11th Cir.2003). As the Ninth Circuit explained in Miranda, “[n]o interpretation of § 2241 that is not utterly at war with its plain language permits us to exercise habeas corpus jurisdiction” when the petitioner has already been removed from the country. Id Accordingly, we hold that petitioners who have already been removed from the country do not satisfy the “in custody” requirement for habeas corpus jurisdiction. Because Kumarasamy had already been" } ]

[ { "docid": "22657635", "title": "", "text": "and sister, largely without incident. More specifically, Lata herself remained unmolested in Fiji for many months after this incident, with her assailants fully aware of her whereabouts. “Therefore,” the IJ concluded, “it would have to be assumed to have been an isolated incident.” Id. at 9. The Board of Immigration Appeals agreed. On July 9, 1998, the Board affirmed the IJ’s denial, expressly adopting the IJ’s decision. II Because the Board did not review the case de novo, we review the decision of the Immigration Judge. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998). We review the lower court decision that an alien has not established eligibility for asylum under the “substantial evidence” standard. See Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Therefore, the IJ’s determination that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence in the record. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In other words, Lata must show “that the evidence [s]he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 483-84, 112 S.Ct. 812. In order to conclude that Lata does not qualify for asylum under 8 U.S.C. § 1158, the IJ must find that she failed to demonstrate a well-founded fear of persecution, on account of statutorily protected grounds, that is both subjectively genuine and objectively reasonable. See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir.1986). Lata is not, however, required to show that an occurrence of the feared persecution is more likely than not. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.”). To reach the conclusion that Lata qualifies for withholding of deportation under 8 U.S.C. § 1253(h), the IJ must find that she has shown that there would be a “clear probability of persecution” if she were deported. INS" } ]

[ { "docid": "22723024", "title": "", "text": "treatment.” Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.2005) (internal citations omitted). The standard for such claims is distinct from the standard for asylum claims and withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.2003); see Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001) (under the Convention Against Torture, a petitioner “need not show that he or she would be tortured ‘on account of a protected ground”). The record evidence does not compel a finding that it is more likely than not that Mr. Singh will be tortured upon returning to India. Moreover, to be eligible for relief under the Convention Against Torture, Mr. Singh bears the burden of proving he “would be unable to live elsewhere in the country safely.” See Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir.2004) (petitioner feared mistreatment as retaliation for criticism of local politicians, but did not produce evidence of his inability to escape mistreatment by internally relocating and was thus ineligible for relief). 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. Therefore, substantial evidence, supports the BIA’s conclusion that Mr. Singh has not proffered prima facie evidence of his eligibility for relief under the Convention Against Torture. CONCLUSION We GRANT the petition for review of the BIA’s dismissal of Mr. Singh’s claims for asylum and withholding of removal and REMAND for further proceedings to determine whether, accepting his testimony as credible, he is eligible for relief. We DENY the petition for review of the BIA’s dismissal of his claim for relief under the Convention Against Torture. Costs on appeal are awarded to the petitioner. ' . The verbatim record of the asylum proceedings does not demonstrate that Mr. Singh's testimony was contradictory: Court: Well, your attorney is trying to find out why" }, { "docid": "22722999", "title": "", "text": "denied Mr. Singh’s asylum application and ordered him removed to India. The IJ found that Mr. Singh’s testimony was implausible and not credible. Alternatively, the IJ found that even if Mr. Singh’s testimony were accepted as truthful, he had not demonstrated that he had suffered past persecution because of imputed political opinion. The BIA affirmed in a per curiam decision dated February 25, 2003. The BIA’s opinion included á short footnote denying Mr. Singh’s claim under the Convention Against Torture because he had “not proffered prima facie evidence that it was more likely than not that he would be tortured if he returned to India.” Mr. Singh timely petitioned for review on March 24, 2003. We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). II Mr. Singh contends that his petition for review should be granted because substantial evidence does not support the IJ’s finding that his testimony was not credible. We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Chen v. Ashcroft, 362 F.3d 611, 616 (9th Cir.2004). Although this standard is deferential, the IJ or BIA must identify “specific, cogent reasons” for an adverse credibility finding, and the reasons must be substantial and legitimately connected to the finding. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996), superceded by statute on other grounds, 8 U.S.C. § 1252(g) (1996), Pub.L. No. 104-208, 110 Stat. 3009). This means that the reason identified must “strike at the heart of the claim” for asylum. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). “Minor inconsistencies ... that do not relate to the basis of an applicant’s alleged fear of persecution, [or] go to the heart of the asylum claim” do not generally support an adverse credibility finding. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003). An IJ must also afford petitioners a chance to" }, { "docid": "19744320", "title": "", "text": "was a Christian. She subsequently gave him a gold ring and he left without harming her. Lengkong stated that she believed all of the attacks were carried out by Muslims because of statements made by the attackers and reports she read in the newspapers. In her application and testimony, Leng-kong also described incidents involving other Christian friends and colleagues who had been attacked. She additionally submitted various reports and articles that contained country information and detailed the religious conditions and violence in Indonesia. The IJ denied all claims for relief, except voluntary departure, concluding that even though Lengkong and Rondonuwu appeared to be generally credible, they had failed to meet their burden of establishing that they had suffered past perse cution or that they had a well-founded fear of future persecution in Indonesia on account of their religion. The IJ additionally concluded that the petitioners had failed to show that it was more likely than not that they would be tortured if they return to Indonesia. The BIA affirmed the IJ’s decision. II. Lengkong and Rondonuwu contend that the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT. We review a BIA’s determination under the substantial evidence standard and will reverse only if “it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004). Because the BIA adopted the IJ’s decision and added reasoning of its own, we review both decisions together. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). A. To be eligible for asylum, an applicant must demonstrate that he or she is a refugee — a person who is unwilling or unable to return to his or her home country “ ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir.2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). Persecution has been generally defined as “ ‘the infliction or threat of" }, { "docid": "22694959", "title": "", "text": "any specific names. In addition, Nahrvani’s assertion is directly contradicted by the testimony of his wife, who stated that the police investigated the complaints, but were ultimately unable to solve the crimes. She also testified that racial issues in no way affected the police’s willingness to help Nahrvani. The evidence simply does not compel the conclusion thát the German government was unable or unwilling' to control those individuals harassing Nahrvani. Although Nahrvani’s fear of returning to Germany is sufficiently credible to satisfy the subjective component of the future persecution inquiry, the evidence must also compel a finding that future persecution is an objectively reasonable possibility. See Hoxha, 319 F.3d at 1182. For many of the same reasons discussed above, Nahrvani’s fear of future persecution in Germany is too speculative to support an asylum claim. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003) (declining to credit a speculative future persecution claim). Nahrvani did not substantiate his claim regarding the German government’s inability or unwillingness to control the asserted persecution from which he suffered. Thus, the evidence does not compel a finding that future persecution is an objectively reasonable possibility. See id. Because Nahrvani failed to establish eligibility for asylum from Germany, he necessarily failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Finally, substantial evidence supports the IJ’s denial for relief under the CAT, as Nahrvani has presented no evidence to demonstrate that it is more likely than not that he will be tortured if returned to Germany. See Zheng v. Ashcroft, 332 F.3d 1186, 1193-94 (9th Cir.2003). IV. THE BIA’s SUMMARY AFFIRMANCE We need not address Nahrvani’s argument that the BIA improperly streamlined his case pursuant to 8 C.F.R. § 1003.1(a)(7)(ii). Because we reached the merits of the IJ’s decision, it is “unnecessary and duplicative” for us to review the BIA’s decision to streamline. Falcon Car-riche, 350 F.3d at 855. V. CONCLUSION Substantial evidence supports the IJ’s conclusion that Nahrvani was firmly resettled in Germany and thus ineligible for asylum from Iran. Substantial evidence also supports the IJ’s conclusion" }, { "docid": "22583005", "title": "", "text": "that he suffered persecution or had objectively reasonable grounds for fearing persecution: his fine did not constitute economic persecution, he had avoided harm for over eleven years after it was assessed, and his wife and two children had remained in China unharmed during the intervening period. He was ineligible for withholding of removal under the INA, the BIA concluded, because an applicant for withholding must sustain a higher burden than for asylum. See 8 U.S.C. § 1231(b)(3); Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Likewise, He had not met the standard for being eligible for withholding of removal under the CAT, because he had not shown that it was “more likely than not” that he would face torture if he were returned to China. 8 C.F.R. § 1208.16(c)(2). He filed a timely petition for review. II. Discussion Our review of the BIA’s determination that an applicant has not established eligibility for asylum is “highly deferential.” Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006). We will affirm the BIA’s decision if it is supported by substantial evidence and may only grant a petition for review “if the applicant shows that the evidence compels the conclusion that the asylum decision was incorrect.” Id. We are without jurisdiction to hear arguments that a petitioner has not exhausted by raising and arguing in his brief before the BIA. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam). A. Substantial evidence supports the BIA’s decision A reasonable factfinder would not be compelled to find either that He offered resistance to China’s one-child policy or that he suffered persecution. Therefore, He’s petition fails on each independent ground. 1. Resistance He argued to the BIA that he engaged in resistance to China’s coercive family planning program by refusing to pay all of the fíne he was assessed. The BIA rejected this argument on the ground that He’s partial payment of the fine did not constitute “other resistance.” We agree. He testified that he would have paid all the fine if he were able and that" }, { "docid": "22057807", "title": "", "text": "made in order to find safety, Zakia testified that she no longer works in her chosen field. Instead, she has taken a job working for McDonald’s in Southern California. II. We have jurisdiction to consider Zakia’s petition for review pursuant to section 106 of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1105a(a)(1) (1996). We review the Immigration Judge’s (“IJ’s”) decision directly because the BIA adopted it as the final agency determination. Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir.2004). We review the IJ’s factual findings for substantial evidence. Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003). We must sustain factual findings that are supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review questions of law regarding the INA de novo. Ladha v. INS, 215 F.3d 889, 896 (9th Cir.2000). Although we give deference to the agency’s interpretation of the statute, we will not defer to agency decisions that conflict with circuit precedent. Id. III. In order to be eligible for a grant of asylum, Zakia must establish that she is unable or unwilling to return to Germany “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (1996). Zakia may meet her burden with evidence of (1) a past incident, or incidents, that rose to the level of persecution; (2) that was on account of one of the statutorily-protected grounds; and (3) that was committed by the government or forces the government was either unable or unwilling to control. Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000). Proof of past persecution gives rise to a presumption of a well-founded fear of future persecution and shifts the evidentiary burden to the government to rebut that presumption. Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001). A. Zakia has proved past persecution in this case with her credible account of a death threat, violence against family members, vandalism, economic harm" }, { "docid": "22341668", "title": "", "text": "it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir.2004). Similarly, we review for substantial evidence the factual findings underlying the BIA’s determination that Ahmed did not qualify for withholding of removal, see Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and the BIA’s finding that Ahmed is not eligible for protection under the Convention Against Torture, see Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). II. Asylum A. Applicable Legal Standard To be eligible for asylum, Ahmed must establish that he is a refugee — namely, that he is unable or unwilling to return to Bangladesh “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir.2004); 8 U.S.C. § 1101(a)(42)(A). The source of the persecution must be the government or forces that the government is unwilling or unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004). To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies the subjective compo-' nent by credibly testifying that[he] genuinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)). “The objective component can be established in two different ways.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999). One way to satisfy the objective component is to prove persecution in the past, giving rise to a rebuttable presumption that a well-founded fear of future persecution exists. The second way is to show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (internal quotations and citations omitted). While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft," }, { "docid": "22630768", "title": "", "text": "1482, 1487 (9th Cir.1997). Substantial evidence is also the governing standard of review for the determination that Petitioner has not established eligibility for asylum. See Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). The “substantial evidence” standard requires this court to uphold the IJ’s and BIA’s findings and decisions if supported by “reasonable, substantial, and probative evidence on the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). To prevail, Petitioner must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous. See Singh, 134 F.3d at 966. “This strict standard bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown.” Id. (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994)) (internal quotation marks omitted). Thus, Petitioner cannot prevail unless she demonstrates that any reasonable factfinder would have to conclude that she is eligible for relief from deportation. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996). B. Asylum Law Petitioner originally applied for relief from deportation proceedings in the form of both asylum and withholding of deportation. However, on appeal she does not challenge the decision to deny withholding of deportation. Therefore, discussion of Petitioner’s eligibility for relief from deportation proceedings will be limited to asylum. To establish eligibility for asylum, Petitioner bears the burden of proving that she is a “refugee.” See Sangha, 103 F.3d at 1487. The definition of “refugee” includes an alien who is unable or unwilling to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(A) (1999). Past persecution or a well-founded fear of future persecution is sufficient to demonstrate “refugee” status. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998). Once an applicant demonstrates past persecution, there is a presumption of a well-founded fear of future persecution. Id. at 1309 n. 4. The government may rebut this presumption by. showing" }, { "docid": "22386937", "title": "", "text": "reasonable probability that Sowe “would suffer other serious harm upon removal to Sierra Leone.” AR 3. Sowe argues this was error because his arguments relating to asylum and withholding of removal establish that he “faces a reasonable likelihood of other serious harm if forced to return to Sierra Leone.” We disagree. The evidence of changed country conditions effectively rebutted the presumption that he would suffer future persecution. Furthermore, to be eligible for asylum pursuant to section 1208.13(b)(l)(iii)(B), Sowe must show “ ‘other serious harm’ aside from persecution.” Recinos de Leon v. Gonzales, 400 F.3d 1185, 1190 (9th Cir.2005). Sowe has failed to show that the BIA erred in determining that he was not eligible for asylum pursuant to section 1208.13(b)(l)(iii)(B). E Sowe contends that he is eligible for withholding of removal. In Gonzalez-Hernandez, we concluded that the BIA correctly denied an asylum claim because “the INS rebutted the presumption that Gonzalez has a well-founded fear of future persecution.” 336 F.3d at 998. When the government rebuts an applicant’s well-founded fear of future persecution, it defeats the applicant’s asylum claim, and his or her claim for withholding of removal. See id. at 1001 n. 5 (holding that because the applicant and his family “do not have a well-founded fear of persecution, it necessarily follows that they do not qualify for withholding of removal”). Therefore, the BIA’s findings regarding changed country conditions also defeat Sowe’s withholding of removal claim. F Sowe argues that the BIA erred in denying his CAT claim. “[T]o be eligible for relief under [CAT], a petitioner must show ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001) (quoting 8 C.F.R. § 208.16(c)(2)). The BIA concluded that Sowe “has not established a fear of the Sierra Leonean government and current country conditions ... do not suggest that if the respondent is removed to Sierra Leone he will more likely than not be tortured.” AR 3. Sowe contends that, in reaching this conclusion, the BIA implicitly held" }, { "docid": "22398879", "title": "", "text": "family members’ living in the petitioner’s home country are not harmed.” Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir.2009) (citing Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001)). Here, because Tamang’s fear of future persecution rests solely upon threats received by his family, it is especially significant that his family voluntarily returned to Nepal and continues to live there unharmed, after being threatened by Maoists in 2002. Tamang’s fear of future persecution is further tempered by evidence showing changed country conditions in Nepal, as noted above. Specifically, the IJ noted that the Nepalese king reinstated the 1999 parliament which was democratically elected and led by Tamang’s political party. The IJ further noted that the Maoists declared a ceasefire in April 2006 and had joined other parties in parliament. Tamang, notably, conceded these facts. To rebut the evidence, Tamang cited to vague threats made against his family. Although a reasonable factfinder may find these threats relevant, the threats do not compel a finding of clear probability of future persecution. Therefore, we find that, when viewing the record as a whole, substantial evidence exists to support the IJ’s finding that Tamang’s perceived fear of future persecution is not objectively reasonable. III. CAT PROTECTION We finally turn to the IJ’s denial of CAT protection. To support his request for CAT protection, Tamang relies on the same evidence and arguments submitted in support of asylum and withholding of removal. To qualify for CAT protection, a petitioner must show it is more likely than not he or she would be tortured if removed to the country of origin. 8 C.F.R. § 208.16(c)(2); Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir.2007). The same “more likely than not” standard applies to CAT protection as it does to withholding of removal; however, for CAT protection, the harm feared must meet the definition of torture. Additionally, unlike withholding of removal under the Immigration and Nationality Act, withholding of removal under CAT is based entirely on an objective basis of fear; there is no subjective component to a petitioner’s fear of torture. Therefore, evidence of relevant country" }, { "docid": "22658988", "title": "", "text": "on her clothing and her occupation, rather than on her political views, as well as her claim that now, unlike in the past, she fears persecution from Muslim extremists. The record, therefore, does not compel the conclusion that Ramadan showed changed circumstances to excuse the late filing of her asylum application. We deny the petition for review with respect to the asylum claim. B To establish eligibility for mandatory relief of withholding of removal, an alien must show that it is “more likely than not” that he or she will suffer persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Chand v. INS, 222 F.3d 1066, 1079 (9th Cir.2000). Ramadan concedes that the harassment that she suffered in Egypt does not rise to the level of persecution, and that she is therefore not entitled to a presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.16(b)(l)(i). Instead, she argues that the threats made against her since her attendance at the San Francisco meeting are of a different character and are sufficiently severe that they compel us to find, in contrast to the IJ’s finding, that she has a well-founded fear of future persecution upon which to base her eligibility for withholding. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (holding that an agency determination is reversible on petition for review only if a reasonable fact-finder would be compelled to reach the contrary conclusion on the basis of the evidence contained in the record). “The problem with this argument is that the threat[s] [she has received since coming to the United States], at best, ‘support[ ] the inference — [they do] not compel it.” Ramadan, 427 F.3d at 1223 (citing Elias-Zacarias, 502 U.S. at 481 & n. 1, 112 S.Ct. 812). We therefore deny Ramadan’s petition for review with respect to withholding of removal. PETITION DENIED. . The IJ also denied Ramadan’s application for relief under the Convention Against Torture, but she does not challenge that decision here. . 8 U.S.C. §" }, { "docid": "22694960", "title": "", "text": "the evidence does not compel a finding that future persecution is an objectively reasonable possibility. See id. Because Nahrvani failed to establish eligibility for asylum from Germany, he necessarily failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Finally, substantial evidence supports the IJ’s denial for relief under the CAT, as Nahrvani has presented no evidence to demonstrate that it is more likely than not that he will be tortured if returned to Germany. See Zheng v. Ashcroft, 332 F.3d 1186, 1193-94 (9th Cir.2003). IV. THE BIA’s SUMMARY AFFIRMANCE We need not address Nahrvani’s argument that the BIA improperly streamlined his case pursuant to 8 C.F.R. § 1003.1(a)(7)(ii). Because we reached the merits of the IJ’s decision, it is “unnecessary and duplicative” for us to review the BIA’s decision to streamline. Falcon Car-riche, 350 F.3d at 855. V. CONCLUSION Substantial evidence supports the IJ’s conclusion that Nahrvani was firmly resettled in Germany and thus ineligible for asylum from Iran. Substantial evidence also supports the IJ’s conclusion that Nahrvani is not entitled to asylum, withholding of removal, or CAT relief from Germany. The petition is DENIED. . Neither the IJ or BIA addressed the issue of whether an alien may request asylum from a country of which he is not a citizen. At least one court has ruled that an alien may seek asylum from the country of resettlement. See Rife v. Ashcroft, 374 F.3d 606 (8th Cir.2004). We need not resolve this issue to decide this case. . Nahrvani appeals the denial of asylum from Germany on the basis that he had a well-founded fear of future persecution. . Although Nahrvani testified that he was chased by officials from the Iranian Consulate, he did not provide any details regarding the incident. . Because Nahrvani cannot establish past persecution, he does not receive the benefit of a rebuttable presumption that his fear of future persecution was well-founded. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002). B. FLETCHER, Circuit Judge, dissenting. I respectfully dissent from the denial of eligibility for asylum." }, { "docid": "22726859", "title": "", "text": "Notices to Appear by applying for political asylum, withholding of removal, and relief under the Convention Against Torture. Judge Hayward granted the petitioners asylum on March 24, 2000, citing a “pattern and practice” of persecution against ethnic Chinese in Indonesia. AR 60-61. The BIA disagreed with Judge Hayward’s “pattern and practice” assessment and reversed. AR 2-3. Sael timely petitioned for review. We have jurisdiction over Sael’s petition pursuant to 8 U.S.C. § 1252(a) (2004). Because the BIA issued a reasoned opinion after conducting its own review of the record, we review the BIA’s decision for substantial evidence. See Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). In doing so, we accept Sael’s testimony as true. See Navas v. INS, 217 F.3d 646, 652 n. 3 (9th Cir.2000) (“Where the BIA does not make an explicit adverse credibility finding, we must assume that the applicant’s factual contentions are true.”). II. In order to be eligible for asylum, Sael must establish that she is a refugee — a person unable or unwilling to return to Indonesia “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A) (1994)). “Persecution encompasses the infliction of suffering or harm upon those who differ in race, religion or political opinion in a way regarded as offensive.” Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004) (internal quotation marks omitted). An asylum applicant’s well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999). An applicant “satisfies the subjective component by credibly testifying that she genuinely fears persecution.” Id. Sael satisfied this requirement with her credible testimony that she fears being hurt, raped or killed in Indonesia. AR 129. An asylum applicant “generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution.” Id. In this" }, { "docid": "22160720", "title": "", "text": "must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review is DENIED." }, { "docid": "22723023", "title": "", "text": "655 (9th Cir.2000). The applicant must establish a “ ‘clear probability’ that he would be persecuted were he to be deported to his home country.” Id. The applicant must prove “it is. more likely than not that [he or she] will be persecuted on account of a statutorily-protected ground.” Id. (internal quotation marks omitted). Just as the evidence on record is insufficient to decide whether Mr. Singh was persecuted on account of a protected ground for the purposes of his asylum claim, so too is this issue unclear for the purposes of his withholding claim. YI The BIA held that Mr. Singh failed to present prima facie evidence of a Convention Against Torture claim. We review for substantial evidence the factual findings underlying the BIA’s determination that an applicant is not eligible for relief under the Convention Against Torture. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (2003). To be eligible for withholding of removal under the Convention Against Torture, the applicant must show “he is more likely than not to suffer intentionally-inflicted cruel and inhuman treatment.” Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.2005) (internal citations omitted). The standard for such claims is distinct from the standard for asylum claims and withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.2003); see Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001) (under the Convention Against Torture, a petitioner “need not show that he or she would be tortured ‘on account of a protected ground”). The record evidence does not compel a finding that it is more likely than not that Mr. Singh will be tortured upon returning to India. Moreover, to be eligible for relief under the Convention Against Torture, Mr. Singh bears the burden of proving he “would be unable to live elsewhere in the country safely.” See Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir.2004) (petitioner feared mistreatment as retaliation for criticism of local politicians, but did not produce evidence of his inability to escape mistreatment by internally relocating and was thus ineligible for relief). If Mr. Singh’s fear is based on the mistaken" }, { "docid": "22624290", "title": "", "text": "finding that Santos-Lemus does not have a well-founded fear of future persecution. We have considered the continuing safety of family members to be an important factor in determining whether a petitioner has a well-founded fear of future persecution. See, e.g., Hakeem v. INS, 273 F.3d 812, 817(9th Cir.2001) (affirming the Board’s decision denying petitioner’s application for withholding of removal and reasoning that his alleged fear of persecution on account of his religion was undermined by the fact that no one in his family had ever been charged, arrested, or harmed based on their religion). Where the claimed group membership is the family, a family member’s continuing safety is an even more persuasive factor in considering a petitioner’s well-founded fear. In Aruta v. INS, we affirmed the Board’s denial of asylum for a petitioner who claimed a well-founded fear of future persecution based on her father’s anti-terrorist activity. 80 F.3d 1389, 1396 (9th Cir.1996). Our conclusion was based in part on the fact that the petitioner’s sister, who was “identically situated in terms of the danger [petitioner] describefd] in her application and from which she [sought] asylum,” remained safely in petitioner’s city. Id. at 1393. We held there, as we have in other cases, that when similarly situated members of the petitioner’s family live without incident in the alleged danger zone, “such family evidence and the inferences drawn from it ... does substantially support the agency decision” denying asylum. Id. at 1395 (internal quotation marks omitted) (citing Mendez-Efrain v. INS, 813 F.2d 279, 282-83 (9th Cir.1987)); see also Estrada v. INS, 775 F.2d 1018, 1021-22(9th Cir.1985) (“The absence of harassment of an alien’s family tends to reduce the probability of persecution”). Here, too, where Santos-Lemus’s claim of persecution is based on his membership in the “particular social group” of his “family,” the fact that a family member has remained unharmed since he left El Salva dor is “substantial evidence” supporting the Board’s finding that Santos-Lemus lacks a well-founded fear of future persecution based on family membership. Santos-Lemus recognizes that ongoing family safety might mitigate a well-founded fear of future persecution, but" }, { "docid": "22663341", "title": "", "text": "of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT. The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal. When the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). III. A. Asylum Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion. To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution," }, { "docid": "22340859", "title": "", "text": "removal faces a more stringent burden than what is required on a claim for asylum.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004). In order to qualify for withholding of removal, the Litis “must establish that there is a clear proba bility that [they] will be subject to persecution if forced to return to [Albania].” Id. To establish a clear probability, the applicant must demonstrate that “it is more likely than not” that he or she will be persecuted upon return. 8 C.F.R. § 1208.16(b)(2). Because the Litis have failed to establish their eligibility for asylum, “it therefore follows that [they] cannot satisfy the more stringent standard for withholding of [removal]” as well. Koliada v. INS, 259 F.3d 482, 489 (6th Cir.2001). Similarly, the Litis petition for review of the BIA’s denial of relief under CAT. “Protection under the Convention exists in the form of withholding of removal to the country of torture.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir.2001). To obtain relief under CAT, the applicant bears the burden of establishing “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Once again, because the Litis failed to establish eligibility for asylum, they also cannot meet the heightened requirements for relief under CAT. Pilica, 388 F.3d at 955; Yu, 364 F.3d at 703 n. 3. Therefore, we conclude that the BIA’s decision denying the Litis’ claims for withholding of removal and relief under CAT was supported by substantial evidence. C. Asylum on Humanitarian Grounds The Litis also petition for review of the IJ’s denial of their request for asylum on humanitarian grounds pursuant to 8 C.F.R. § 1208.13(b)(l)(iii)(A). In the absence of a well-founded fear of future persecution, an alien may still be entitled to a discretionary grant of asylum if he or she “has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § -1208.13(b)(l)(iii)(A). In this case, the IJ denied the Litis’ claim under" }, { "docid": "22160719", "title": "", "text": "was put on notice of the possibility of staying in the United States by her cousin, yet when Loho learned that her cousin was too busy to assist her, she failed to take any additional steps to avoid returning to Indonesia. We are persuaded that Loho’s two voluntary returns to her home country support the IJ’s adverse credibility finding even though she was not specifically aware of the possibility of applying for asylum. What cuts against Loho’s credibility is not that she failed to submit an asylum application during her previous visits, but that after leaving her home country for the safety of the United States, Loho took minimal steps to investigate the availability of some means of avoiding a return to the country she claims to have feared. In light of the “extremely deferential” review of an IJ’s decision that applies, see Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.2003), such evidence is sufficient to support the IJ’s adverse credibility finding. See Don v. Gonzales, 476 F.3d 738, 743 (9th Cir.2007). Accordingly, we must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review" }, { "docid": "19744321", "title": "", "text": "Rondonuwu contend that the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT. We review a BIA’s determination under the substantial evidence standard and will reverse only if “it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004). Because the BIA adopted the IJ’s decision and added reasoning of its own, we review both decisions together. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). A. To be eligible for asylum, an applicant must demonstrate that he or she is a refugee — a person who is unwilling or unable to return to his or her home country “ ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir.2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). Persecution has been generally defined as “ ‘the infliction or threat of death, torture, or injury to one’s person or freedom, on account of one of the grounds enumerated in the refugee definition,” id. (quoting Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002)), and must be “inflicted either by the government ... or by persons or an organization that the government was unwilling or unable to control.” Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir.2001). If past persecution is established, the applicant is entitled to a presumption of a well-founded fear of future persecution, which can be rebutted by evidence that country conditions have changed. Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir.2004) (citing 8 C.F.R. § 1208.13(b)(1)® (2003)). Absent evidence of past persecution, an applicant must establish a well-founded fear of persecution that is “both subjectively genuine and objectively reasonable.” Eta-Ndu v. Gonzales, 411 F.3d 977, 983 (8th Cir.2005). The BIA concluded that the petitioners had failed to meet their burden of establishing past persecution. We cannot say that these findings were erroneous given the circumstances. First, as noted by the IJ, it" } ]

[ { "docid": "2652385", "title": "", "text": "unconscionable nor otherwise illegal or contrary to public policy. It has accordingly been said that, almost without limitation, what the parties agree upon is valid, the parties are bound by the agreement they have made, and the fact that a bargain is a hard one does not entitle a party from relief therefrom if he assumed it fairly and voluntarily. A contract is not unenforceable on the ground that it yields a return disproportionate to the expenditures in time and money, where there has been no mistake or unfairness and the party against whom it is sought to be enforced has received and enjoyed the benefits. Id. at 86 (citing 17 Am.Jur.2d Contracts § 192). More specifically, Texas courts have held that “[t]wo types of abuses must generally be present to produce a finding of unconscionability.” Id. First, Plaintiffs must show “procedural abuse” in the formation of the contract, such as a gross disparity in bargaining ability. See id. “A court may find procedural unconscionability if the plaintiff presents evidence of the seller’s ‘overreaching or sharp practices’ combined with the buyer’s ‘ignorance or inexperience.’” Arkwright Boston Mfr. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1184 (5th Cir. 1988) (citation omitted) (UCC context). Second, Plaintiffs must also demonstrate “substantive abuse”, or unfairness in the foimal terms of the contract. See Wade, 524 S.W.2d at 86. The Fifth Circuit has noted that “[a] court may find substantive unconscionability if the terms of the contract are one-sided or oppressive.” Arkwright, 844 F.2d at 1184 (citation omitted). To meet this burden, Plaintiffs must show that the terms of their contract with National Union are plainly oppressive. However, the Court notes that it has already determined that the regulatory exclusion provision of the National Union contract is not against public policy. This finding strongly militates in favor of the conclusion that Plaintiffs cannot show “substantive” unconscionability. See Restatement (Second) of Contracts § 208 cmt. a (1981) (“[Unconscionability] overlaps with the rules which render particular bargains or terms unenforceable on grounds of public policy.”). Moreover, the Court notes that the portion of the" } ]

[ { "docid": "8100357", "title": "", "text": "or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked .... the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. Id. at 690 (quoting Stirlen v. Supercuts, 51 Cal.App.4th 1519, 1533, 60 Cal.Rptr.2d 138 (1997) (other citations omitted)). A. The first prong is procedural unconscio-nability. The court focuses on whether the contract was one of adhesion. Was it “imposed on employees as a condition of employment”? Was there “an opportunity to negotiate”? Id. at 690, 60 Cal.Rptr.2d 138. “Procedural unconscionability concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. It focuses on factors of oppression and surprise.” Kin ney v. United Healthcare Services, 70 Cal. App.4th 1322, 83 Cal.Rptr.2d 348, 352-53 (1999). In support of procedural unconscionability, each Appellant submitted declarations stating, in pertinent part: 3. After accepting employment with Western-Southern, I was periodically presented with stacks of forms to sign by the District Manager, Peter Borrero. 4. I was not allowed time to read the documents. Therefore, I do not have any specific recollection of signing the Sales Manager Agreement or Sales Representative Agreement. 5. Neither Peter Borrero nor any other Western-Southern representative reviewed the terms of the Agreements with me. 6. I was not given the opportunity to discuss, negotiate or modify the terms of the Agreements. 7. I was not aware of any clause restricting the time in which I could commence an action. I did not explicitly agree to such limitation. In response, Western-Southern submitted declarations and deposition testimony indicating that the agreements were signed when Appellants began their employment (contradicting paragraph 3 of the declarations), but not specifically contesting the allegation that the terms were nonnegotiable. As for surprise, the district court reasoned that the clauses were not hidden and were in a normal font. Indeed, the provisions were in “standard” italics, uppercase, or boldface. The implication was that there was no surprise. Nevertheless," }, { "docid": "6711984", "title": "", "text": "and tortious interference as contractually waived and released by the agreement. (Docket No. 55, att. 1, pp. 5-7). Further, the ARRT cites contractual language in the agreement which requires Ms. Vistein to “indemnify and hold harmless, the ARRT ... from, against, and with respect to any and all claims, losses, costs, expenses, damages, and judgments (including reasonable attorney fees) arising from her pursuit of this litigation.” Id. at 5. Ms. Vistein maintains the agreement is an unconscionable contract of adhesion which is, accordingly, non-binding. (Docket No. 56 pp. 5-9). The R & R advises that because Ms. Vistein had not demonstrated both procedural and substantive unconscionability, the agreement does constitute a valid and enforceable waiver with respect to Ms. Vi-stein’s due process claims. (Docket No. 67, pp. 8-13). However, the R & R also recommends that the agreement does not bar Ms. Vistein from asserting intentional tortious interference, because a party cannot contractually limit its liability for intentional acts. Id. at 13. Ms. Vistein objects to the R & R’s determination that the contract was not unconscionable. Specifically, Ms. Vistein questions the application of the factors to determine procedurally unconscionability. (Docket No. 68, p. 2). Ms. Vistein asserts that “ARRT enjoyed the superior bargaining position, the terms were not explained [to her,] and [she] was not represented by counsel.” She further maintains these facts provide sufficient basis for a finding of procedural unconscionability, or at least raise a genuine issue of material fact. Ohio law characterizes unconscionability as an “absence of meaningful choice on the part of one of the parties to the contract, combined with contract terms that are unreasonably favorable to the other party.” Collins v. Click Camera & Video, Inc. 86 Ohio App.3d 826, 832, 621 N.E.2d 1294 (Ohio Ct.App.1993). Thus, to prove unconscionability the plaintiff must show two things: (1) individualized circumstances surrounding each of the parties to a contract such that no voluntary meeting of the minds was possible, i.e., “procedural unconscionability,” and (2) unfair and unreasonable contract terms, i.e., “substantive unconscionability.” Id. at 834, 621 N.E.2d 1294. To show unconscionability the plaintiff must satisfy" }, { "docid": "18694165", "title": "", "text": "549 P.2d 903 (1976). In addition, in order to find such a clause unconscionable, the party challeng ing the clause must show that there is no reasonable relation to the risks involved and that the terms are so one-sided as to be oppressive. W. L. May Co., Inc. v. PhilcoFord Corporation, supra. Careful consideration of the evidence in light of the applicable law convinces the Court that the plaintiff has failed to meet its burden of showing that Paragraph 7(g) of the agreement is unconscionable. There is no evidence that LeBlond abused its right to contract freely, and no evidence that the contract is “one-sided, oppressive and unfairly surprising.” Wille, supra. Nor is there any evidence that the manner in which the contract was entered was oppressive or misleading. After the parties reached an oral agreement, LeBlond sent the written contract to Phillips, and Raskin had ample opportunity to read it and to raise any objections he may have had. The fact that he failed to read it, under these circumstances, does not relieve Phillips from its terms. Bradford v. Plains Cotton Cooperative Association, 539 F.2d 1249 (10th Cir. 1976). Further, Raskin is not a consumer, but an experienced businessman. The limitation has a reasonable relationship to the risks involved and is equally applicable to both parties. While it is true that the term was not “conspicuous” or “negotiated”, neither was it hidden in fine print, and the few pages involved could have been easily read by a man of Mr. Raskin’s business experience. Plaintiff has argued that this clause cannot be enforced because it, in effect, deprives plaintiff of any effective remedy, and therefore the remedies provided by the contract fail of their essential purpose. The argument continues that the very reason for entering into such a contract is to make a profit, and therefore any exclusion of lost profits as a remedy for breach is unconscionable and contrary to public policy. This argument is unsound. The contract contains no limitation on damages other than lost profits. The fact that plaintiff does not claim other damages is immaterial. Further," }, { "docid": "16857145", "title": "", "text": "was executed by the parties. See Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 291, 408 N.E.2d 1370 (1980). It is a case-specific assessment. “Because there is no clear, all-purpose definition of ‘unconscionable,’ nor could there be, unconscio-nability must be determined on a ease by case basis, giving particular attention to whether, at the time of the execution of the agreement, the contract provision could result in unfair surprise and was oppressive to the allegedly disadvantaged party.” Id. 381 Mass, at 292-93, 408 N.E.2d 1370 (internal citations omitted) .... The principle of unconscionability is addressed in the Uniform Commercial Code, see U.C.C. § 2-302, and the Supreme Judicial Court has applied the principles of unconscionability articulated there to “situations outside the ambit of the code.” Waters v. Min Ltd., 412 Mass. 64, 67, 587 N.E.2d 231 (1992). Under Massachusetts law, the doctrine of unconscionability recognizes procedural and substantive unconscionability. See Zapatha, 381 Mass. at 292-93, 294 n. 13, 408 N.E.2d 1370. Procedural uncon-scionability evaluates the circumstances under which the contract was executed to determine if it is the product of unfair surprise. Substantive unconscionability evaluates the actual terms of the contract to determine if they are substantively unfair. “If the sum total of the provisions of a contract drive too hard a bargain, a court of conscience will not assist its enforcement.” Waters, 412 Mass. at 68, 587 N.E.2d 231 (citing Campbell Soup Co. v. Wentz, 172 F.2d 80, 84 [3d Cir.1948]).... * * * * * * The fact that this conduct constitutes an unfair or deceptive practice, however, does not mean that this conduct was unconscionable. 20 F.Supp.2d at 206-07. The district court reviewed both substantive and procedural unconscionability. With respect to substantive unconsciona-bility, the court focused on the disparity between the fees and the value Sargeant obtained as well as the violation of debt-to-income parameters. With respect to procedural unconscionability, it focused on the compensation method of the loan originators and the failure to follow disclosure requirements. While awarding the Debtor actual damages of $13,461.40, plus interest, for improper origination fees or points, as well as $4,150," }, { "docid": "2652386", "title": "", "text": "sharp practices’ combined with the buyer’s ‘ignorance or inexperience.’” Arkwright Boston Mfr. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1184 (5th Cir. 1988) (citation omitted) (UCC context). Second, Plaintiffs must also demonstrate “substantive abuse”, or unfairness in the foimal terms of the contract. See Wade, 524 S.W.2d at 86. The Fifth Circuit has noted that “[a] court may find substantive unconscionability if the terms of the contract are one-sided or oppressive.” Arkwright, 844 F.2d at 1184 (citation omitted). To meet this burden, Plaintiffs must show that the terms of their contract with National Union are plainly oppressive. However, the Court notes that it has already determined that the regulatory exclusion provision of the National Union contract is not against public policy. This finding strongly militates in favor of the conclusion that Plaintiffs cannot show “substantive” unconscionability. See Restatement (Second) of Contracts § 208 cmt. a (1981) (“[Unconscionability] overlaps with the rules which render particular bargains or terms unenforceable on grounds of public policy.”). Moreover, the Court notes that the portion of the National Union officers and directors liability insurance contract which Plaintiffs argue is unconscionable is, in fact, merely an exclusion from coverage. Exclusions from coverage in insurance contracts for particular occurrences are hardly unknown in the insurance field and cannot easily be characterized as per se unreasonable. Instead, the regulatory exclusion appeal's to be merely an allocation of the risk agreed to by two commercial entities. Finally, the Court notes that the regulatory endorsement is a separate, typed amendment to the Year 1 Policy, not a printed term on a form contract. This fact indicates that the exclusion was “voluntarily entered into,” and not the result of “mistake, fraud, or oppression.” See Wade, 524 S.W.2d at 86. Thus, the Court concludes that, as a matter of law, Plaintiffs cannot demonstrate substantive unfairness in the National Union contract. Under Texas law, Plaintiffs “must prove both substantive and procedural unconscionability to prevail on the unconscionability issue.” Arkwright, 844 F.2d at 1184 (emphasis in original). Therefore, since Plaintiffs cannot establish one of the necessary elements of unconscionability, Plaintiffs cannot" }, { "docid": "13294692", "title": "", "text": "or relating to: [the] loan ...; any previous loan from [First Family] ...; all the documents relating to this or any previous loan ...; any insurance purchased in connection with this or any previous loan ...; whether the claim or dispute must be arbitrated; the validity of this arbitration agreement; any negotiations between you and us; any claim or dispute based on an allegation of fraud or misrepresentation, including fraud in the inducement of this or any other agreement; [and,] any claim or dispute based on an alleged tort. Id. The United States Court of Appeals for the Fifth Circuit has held that such language is to be read very broadly. See Pennzoil Exploration and Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir.1998) (characterizing similar language as “capable of expansive reach”); Nauru Phosphate Royalties Inc. v. Drago Daic Interests Inc., 138 F.3d 160, 165 (5th Cir.1998), cert. denied 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998) (holding that “when parties include such a broad arbitration clause, they intend the clause to reach all aspects of the relationship.”) (citations omitted). Defendant neither contends, nor does the Court find, that her claims are not arbitrable claims. B. State Contract Law Objections Raised in Defendant’s Summary Judgment Motion 1. Procedural Unconscionability The second step m the Court’s analysis is to determine whether some rule of state contract law operates to make the arbitration agreement unenforceable. The Defendant argues that the arbitration agreement in this case was procedurally unconscionable. See Memorandum in Support of Summary Judgment. The De fendant may prove procedural unconscio-nability by showing “a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms.” Nauru, Phosphate Royalties, 138 F.3d at 165. Defendant contends that the arbitration agreement is procedurally unconscionable because Defendant did not voluntarily enter into it, did not have a chance to read it, was not given a chance to negotiate its terms, and because the" }, { "docid": "6420377", "title": "", "text": "(2000)); Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 893 (9th Cir.2002) (stating the same standards under California law concerning an arbitration agreement), cert. denied, — U.S. -, 122 S.Ct. 2329, 153 L.Ed.2d 160 (2002) (No. 01-1460). That court also explained that “[a] determination of unconscionability, though a question of law, involves various factual considerations, including the business conditions under which the contract was formed, the relative bargaining power of the parties, their reasonable expectations, and the commercial reasonableness of the risk allocation as provided in the agreement.” Id. (quoting Central Bank v. Kaiperm Santa Clara Fed. Credit Union, 191 Cal.App.3d 186, 205, 236 Cal.Rptr. 262 (1987), in turn citing A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 186 Cal.Rptr. 114 (1982)) (internal quotation marks omitted). Thus, as to “procedural” unconscionability, “oppression” consists of “ ‘an inequality of bargaining power resulting in no meaningful choice for the weaker party,’ ” while “surprise” “ ‘occurs when the supposedly agreed-upon terms are hidden in a document.’ ” Navellier v. Sletten, 262 F.3d 923, 940 (9th Cir.2001) (quoting A & M Produce Co., 135 Cal.App.3d at 486, 186 Cal.Rptr. 114), petition for cert. filed, 70 U.S.L.W. 3698 (April 30, 2002) (No. 01-1615). “Substantive” unconscionability “refers to an overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made,” i.e., terms so one-sided as to “ ‘shock the conscience.’ ” Id. (quoting Stirlen v. Supercuts, Inc., 51 Cal.App.4th 1519, 1532, 60 Cal.Rptr.2d 138 (1997), for the “shock the conscience” standard). Although “ ‘both [procedural and substantive unconscionability] [must] be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability ... they need not be present in the same degree.’ ” Soltani v. Western & Southern Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir.2001) (quoting Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 690). “ ‘Essentially a sliding scale is invoked: ... the more substantively oppressive the contract term, the less evidence of procedural unconscio-nability is required to come" }, { "docid": "23301837", "title": "", "text": "a heightened knowing and voluntary standard applicable to agreements'releasing substantive claims under the ADEA. Apply ing that standard here would be inconsistent with the FAA and Gilmer. Nothing short of a showing of fraud, duress, mistake or some other ground recognized by the law applicable to contracts generally would have excused the district court from enforcing Seus’s agreement. 2. Contract of Adhesion Seus suggests that the arbitration agreement in the Form U-4 is invalid as a contract of adhesion because of the disparity in bargaining power between her and her employer. This very argument was rejected in Gilmer, however. Unequal bargaining power is not alone enough to make an agreement to arbitrate a contract of adhesion. Moreover, even if we were to assume arguendo that the Form U-4 is a contract of adhesion, it would not be unenforceable. A contract of adhesion is invalid only where its terms unreasonably favor the other party. See e.g., Witmer v. Exxon Corp., 495 Pa. 540,434 A2d 1222, 1228 (1981). In order for a contract to be invalidated as a contract of adhesion, the plaintiff “must allege both a lack of meaningful choice about whether to accept the provision in question, and that the disputed provisions were so onesided as to be oppressive.” Stebok v. American Gen. Life & Accident Ins. Co., 715 F.Supp. 711, 714 (W.D.Pa.), aff'd 888 F.2d 1382 (3d Cir.1989). The district court found, however, that the terms of Seus’s Form U-4 were neither oppressive nor unconscionable. Similarly, the district court in Beauchamp v. Great West Life Assurance Co. concluded that the Form U-4 is not oppressive or unconscionable, explaining: The Gilmer court has held that plaintiff is not giving up substantive statutory rights through arbitration of her Title VII claim. Thus, her agreement to arbitrate is not substantively unconscionable. Nor is the language of the U-4 form unconscionable in that it misrepresents the existence or scope of the arbitration clause. The U-4 form clearly states that the applicant should read its provisions very carefully and that any claim between plaintiff and her firm would be arbitrated if required by the" }, { "docid": "3649969", "title": "", "text": "have not met their burden to establish that they entered into an agreement with Morvant to arbitrate his claims. Accordingly, the Court cannot compel Morvant to arbitrate his claims. B. Jean Andrews As to Andrews, the parties agree that Andrews and P.F. Chang’s entered into an Arbitration Agreement and that the claims at issue here are covered by the terms of that Arbitration Agreement. The parties dispute whether the terms of the Arbitration Agreement, particularly the class action waiver, render the agreement unen forceable as unconscionable or contrary to public policy. To be unenforceable as unconscionable, a contract must be both procedurally and substantively unconscionable. Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (Cal.2000). Procedural unconscionability concerns the manner in which the agreement was negotiated, while substantive unconscionability concerns the terms of the agreement itself. Both elements of unconscionability must be present to render a contract unenforceable, but they need not be present in the same degree. Id. “In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” Id.; see also Olvera v. El Pollo Loco, Inc., 173 Cal.App.4th 447, 454, 93 Cal.Rptr.3d 65 (Cal.Ct.App.2009). Plaintiffs argue that the agreement is both procedurally and substantively unconscionable and is therefore invalid and unenforceable. 1. Procedural Unconscionability Procedural unconscionability concerns the manner in which an agreement is negotiated, and is present if a contract is the product of oppression or surprise. Armendariz, supra, 24 Cal.4th at 114, 99 Cal.Rptr.2d 745, 6 P.3d 669. A contract is the product of oppression if it is a contract of adhesion, one in which there was an inequality of bargaining power denying the weaker party the opportunity to negotiate the terms of the contract. Id. at 113, 99 Cal.Rptr.2d 745, 6 P.3d 669. “[I]n the case of preemployment arbitration contracts, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and" }, { "docid": "23622952", "title": "", "text": "applied to invalidate arbitration agreements.” Doctor’s Assocs., 517 U.S. at 687, 116 S.Ct. at 1656. In this case, Appellant argues, and the district court found, the Arbitration Agreements signed by Jenkins are unconscionable. In deciding claims of unconscionability, Georgia courts generally consider a variety of factors, which have been divided into procedural and substantive elements. NEC Techs., Inc. v. Nelson, 267 Ga. 390, 478 S.E.2d 769, 771-72 (1996). “Procedural unconscionability addresses the process of making the contract, while substantive unconscionability looks to the contractual terms themselves.” Id. at 771. Factors relevant to the procedural unconscionability inquiry include the bargaining power of the parties, “the conspicuousness and comprehensibility of the contract language, the oppressiveness of the terms, and the pres ence or absence of a meaningful choice.” Id. (citations omitted). As for substantive unconscionability, courts consider “the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and similar public policy concerns.” Id. at 772 (citations omitted). On the procedural side of this analysis, the district court found that Defendants had superior bargaining power and that the Arbitration Agreements constituted adhesion contracts. On the substantive side of the analysis, the court provided two reasons for finding the terms of the Agreements to be unconscionable: (1) precluding class action relief was unfair because a class action is the most effective method for borrowers with'small claims to obtain relief; and (2) the Arbitration Agreements lacked mutuality of obligation because the provision providing access to a small claims tribunal would. only benefit the lender, FNB. The district court-explained that considered individually, these factors might not be enough to support a finding of uncon-seionability, but that considered together, they rendered the Arbitration Agreements unconscionable. We disagree. 1. Bargaining Power/Adhesion The district court found the Arbitration Agreements were “procedurally oppressive” because the “type of consumer loans that ' Defendants offer unquestionably places the consumer at a severe bargaining disadvantage.” Jenkins, 313 F.Supp.2d at 1374. The court stated “[c]onsumers who are willing tó borrow money at such [high] interest ratés would foreseeably sign anything.” Id. The" }, { "docid": "13269872", "title": "", "text": "AMAs provided that Virginia law shall control. Under Virginia law: As a general principle, one who accepts a written agreement or contract is presumed to know and assent to its contents. In addition, it is hornbook law that one who signs a written contract will normally be bound by its terms and that ignorance ... of the terms will not ordinarily affect the liability of such person under the contract. Virginia law, however, permits a court to void a contract if it is unconscionable: In Virginia, a contract is unconscionable if it is one that no man in his senses and not under a delusion would make, on the one hand, and that no fair man would accept on the other. The substantive terms of the contract must be so grossly inequitable that it shocks the conscience. The party asserting unconscionability of a contract has the burden of proving that the contract is unconscionable by clear and convincing evidence. Moreover, whether a contract is unconscionable is a question of law for a court to decide. Courts cannot relieve one of the consequences of a contract merely because it was unwise or rewrite a contract simply because the contact may appear to reach an unfair result. “A court may well find a substantive abuse in the form of harshness, evident either in an overall imbalance of the whole contract or in a particularly unreasonable provision that has been included in an agreement without the employment of any procedural abuse in • its formation.” “Under this rationale, oppression includes those provisions, however obtained, which result in oppressive effects.” As between substantive and procedural uncon-cionability, courts often employ a balancing approach: the greater the harshness or unreasonableness of the substantive terms, the less important the regularity of the process of contract formation that gave rise to the term becomes, and vice versa. “A court may void a contract on the grounds that it is unconscionable if the inequality is so gross as to shock the conscience.” Although Wilson was the more sophisticated of the two parties, and the Debtor testified that Wilson often" }, { "docid": "19857717", "title": "", "text": "Law, as embodied in Article 2 of the N.Y.U.C.C. (sales), were controlling. N.Y.U.C.C. § 2-302 mandates a finding of unconscionability only where there is an absence of meaningful choice for one party plus contract terms which unreasonably favor the other party. See note 14, supra. The absence of “meaningful choice,” or procedural unconscionability, turns on the contract formation process, e. g., whether the important terms of a contract were understood, whether high-pressure or deceptive sales practices were utilized, whether terms were hidden in fine print, and whether there was gross inequality of bargaining power. See, e. g., Nu Dimensions Figure Salons v. Becerra, 73 Misc.2d 140, 340 N.Y.S.2d 268 (Sup.Ct.1973). Plaintiffs’ argument that the termination provisions were imposed by virtue of “oppressive tactics” resulting from inequality of bargaining power finds no support in either the complaint nor the submitted affidavits; at best plaintiffs show that defendants enjoyed superior bargaining power , which by itself raises no claims of unlawful coercion or duress. See Note 14, supra. And the mere exercise of superior bargaining power does not indicate unconscionability. Official Comment 1 to § 2-302 (McKinney’s 1964). -Moreover, the record before me does not buttress the claim that any inequality of bargaining power resulted in plaintiffs being compelled to accept the provisions. The three months’ notice of termination was the topic of negotiation between the parties, Younghusband affidavit, [ffl 10-11, was certainly under stood by Fleischmann, Exhibit B to Young-husband affidavit, and the acceptance of that provision can only be characterized as a product of meaningful choice. Wile’s acceptance of the termination upon change of control provision, and its notice period, must also be ascribed to meaningful choice. ' Affidavits from both sides indicate that substantial negotiations often accompanied the succession of agreements between' 1935 and 1972, McCormack affidavit, ¶¶[ 8-12 and Exhibit B thereto; Blum affidavit ¶[¶[ 11, 13, 14, and on at least one occasion Wile specifically had the proposed contract reviewed by counsel. Exhibit A to McCormack affidavit. The change of control provision was first proposed to Wile in 1968, and Wile’s president said he had no objection" }, { "docid": "23636643", "title": "", "text": "term substantively reasonable?’ ” Rehmann, Robson & Co. v. McMahan, 187 Mich.App. 36, 466 N.W.2d 325, 329 (Mich.Ct.App.1991) (quoting Allen v. Michigan Bell Telephone Co., 18 Mich.App. 632, 171 N.W.2d 689, 692 (Mich.Ct.App.1969)). The party seeking to invalidate the provision must show both types of unconscionability: Even if the contract is adhesive under the first prong, the challenged term is still enforceable if substantively reasonable and not oppressive or unconscionable. “Thus, merely because the parties have different options or bargaining power, unequal or wholly out of proportion to each other, does not mean that the agreement of one of the parties to a term of a contract will not be enforced against him; if the term is substantively reasonable, it will be enforced. By like token, if the provision is substantively unreasonable, it may not be enforced without regard to the relative bargaining power of the contracting parties.” Id. (quoting Allen, 171 N.W.2d at 692) (internal citation omitted). Under Michigan law, unconscio-nability is a question of law for the court to decide. Citizens Ins. Co. of Amer. v. Proctor & Schwartz, 802 F.Supp. 133, 143 (W.D.Mich.1992) (citing Northwest Acceptance Corp. v. Almont Gravel, Inc., 162 Mich.App. 294, 412 N.W.2d 719, 722 (Mich.Ct.App.1987) (in turn quoting the Practice Commentary by Professor Roy L. Steinheimer, Jr., to Mich. Comp. Laws § 440.2302)). The issue is determined based on the facts and circumstances that existed when the contract was made, not those extant at the time of the suit. Id. at 143, 144; Mich. Comp. Laws Ann. § 440.2302(1). A reviewing court will uphold the trial court’s unconscionability determination unless it is clearly erroneous. Northwest Acceptance Corp., 412 N.W.2d at 720, 724; Gianni Sport Ltd. v. Gantos, Inc., 151 Mich.App. 598, 391 N.W.2d 760, 761 (Mich.Ct.App.1986). 1. Procedural Unconscionability. Horton Farms argues that the arbitration provisions are procedurally unconscionable because the bargaining-power disparity makes them “unduly oppressive, because The Andersons drafted the provisions and “buried” them in boilerplate instead of explicitly pointing to the terms and explaining to Horton Farms their significance, and because the provisions incorporate a set of rules that Horton" }, { "docid": "8100356", "title": "", "text": "the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. This statutory provision codified the tenet that a court can refuse to enforce a contractual clause it finds unconscionable. In Armendariz, the California Supreme Court applied section 1670.5(a) and held that mandatory contractual provisions requiring arbitration of wrongful termination discrimination claims were unconscionable and contrary to public policy. See id., 99 Cal.Rptr.2d 745, 6 P.3d at 694. Although the present appeal does not involve arbitration clauses, some of the principles explained in Armendariz are applicable here. Armendariz set forth well-accepted analysis for determining whether a contractual provision is unconscionable: [Ujnconscionability has both a “procedural” and a “substantive” element, the former focusing on “oppression” or “surprise” due to unequal bargaining power, the latter on “overly harsh” or “one-sided” results.... [B]oth [must] be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked .... the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. Id. at 690 (quoting Stirlen v. Supercuts, 51 Cal.App.4th 1519, 1533, 60 Cal.Rptr.2d 138 (1997) (other citations omitted)). A. The first prong is procedural unconscio-nability. The court focuses on whether the contract was one of adhesion. Was it “imposed on employees as a condition of employment”? Was there “an opportunity to negotiate”? Id. at 690, 60 Cal.Rptr.2d 138. “Procedural unconscionability concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. It focuses on factors of oppression and surprise.” Kin ney v. United Healthcare Services, 70 Cal. App.4th 1322, 83 Cal.Rptr.2d 348, 352-53 (1999). In support of procedural unconscionability, each Appellant submitted declarations stating, in pertinent part: 3. After accepting employment with Western-Southern, I was periodically" }, { "docid": "18694164", "title": "", "text": "question of unconscionability of clauses excluding lost profits in contracts between businessmen. In such cases, the courts generally examine the circumstances existing at the time the contract was made in the light of the general commercial background and the needs and practices of the particular trade involved. W. L. May Co., Inc. v. PhilcoFord Corporation, 273 Or. 701, 543 P.2d 283 (Or.1975). In County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300 (S.D.N.Y.1970), the court identified “typical” cases of unconscionability as “where one party has been misled as to the nature of the bargain, where there appears to have been a severe imbalance in bargaining power, or where specific terms appear ‘outrageous.’ ” There is no requirement that there be equality of bargaining power. The comments to § 2-302 make it clear that the section does not invalidate clauses simply because they allocate risks to the party having less bargaining power. There must be, in addition, some element of deception or substantive unfairness. Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, 549 P.2d 903 (1976). In addition, in order to find such a clause unconscionable, the party challeng ing the clause must show that there is no reasonable relation to the risks involved and that the terms are so one-sided as to be oppressive. W. L. May Co., Inc. v. PhilcoFord Corporation, supra. Careful consideration of the evidence in light of the applicable law convinces the Court that the plaintiff has failed to meet its burden of showing that Paragraph 7(g) of the agreement is unconscionable. There is no evidence that LeBlond abused its right to contract freely, and no evidence that the contract is “one-sided, oppressive and unfairly surprising.” Wille, supra. Nor is there any evidence that the manner in which the contract was entered was oppressive or misleading. After the parties reached an oral agreement, LeBlond sent the written contract to Phillips, and Raskin had ample opportunity to read it and to raise any objections he may have had. The fact that he failed to read it, under these circumstances, does not relieve Phillips" }, { "docid": "2652383", "title": "", "text": "to remain neutral regarding regulatory exclusions. See Conner, 973 F.2d at 1242. The court held that insureds “cannot rely on FIRREA as creating public policy against enforcement of the regulatory exclusion.” Id. at 1243. D. Is the National Union Contract Unconscionable? Plaintiffs have argued in their brief that National Union’s policies are unconscionable. Plaintiffs allege that the facts of this case will show that application of the regulatory endorsement would effect an unconscionable result, especially in light of the special relationship of trust Texas law has imposed in the insurance context. See Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex.1987). Preliminarily, the Court notes that other courts have held that “the issue of unconscionability must be pleaded to be considered by the court.” Guaranteed Foods of Nebraska, Inc. v. Rison, 207 Neb. 400, 299 N.W.2d 507 (1980); see also Lindemann v. Eli Lilly and Co., 816 F.2d 199, 203 (5th Cir.1987). However, no complaint filed in this case has alleged that the National Union contract is unconscionable. Nevertheless, since some Plaintiffs requested leave to amend their complaints to allege unconscionability, the Court will consider Plaintiffs’ unconscionability argument as though it had been raised in the pleadings. Generally, courts have indicated that uneonscionability is determined by an examination of the “entire atmosphere in which the contract was made, the alternatives, if any, which were available to the parties at the time of the making of the contract, the non-bargaining' ability of one party, whether the contract is illegal or against public policy, and whether the contract is oppressive or unreasonable.” Wade v. Austin, 524 S.W.2d 79, 86 (Tex.Civ.App. — Texarkana 1975, no writ). However, Plaintiffs must overcome courts’ traditional reluctance to decline to enforce contracts which are merely unwise or improvident: In the ábsence of any mistake, fraud, or oppression, the courts, as such, are not interested in the wisdom or impolicy of contracts and agreements voluntarily entered into between parties compos mentis and sui juris. Such parties to contracts have the right to insert any stipulations that may be agreed to, provided that they are neither" }, { "docid": "8140381", "title": "", "text": "burden of proof upon Defendant/Counterclaimant but merely determine whether we can find, as a matter of law, that the waiver provision was unconscionable. We cannot do so from the evidence before us. California’s leading case on unconscionability recognizes that unconscionability has two elements, a procedural and a substantive aspect. A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 186 Cal.Rptr. 114, 121, 122 (1982). The procedural element focuses on two factors: ‘oppression’ and ‘surprise.’ [Citations.] ‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and an ‘absence of meaningful choice.’ [Citations.] ‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms. [Citations.] Id. These two elements are alternative methods of demonstrating procedural unconscionability, not conjunctive. Id. The substantive element focuses on the existence of an overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made. [Citation.] Carboni v. Arrospide, 2 Cal.App. 4th 76, 2 Cal.Rptr.2d 845, 848 (1991). Both elements must be satisfied to justify a court in refusing to enforce a contractual provision as unconscionable. Id. at 848-49. A sliding scale however allows a strong showing of substantive unconscionability to compensate for a lesser showing of procedural unconscionability. Id. at 849. Neither of the alternative elements of procedural unconscionability are met. As discussed above, there is no evidence of an inequality of bargaining power resulting in no meaningful choice for the weaker party. While there may have been some disparity between the relative bargaining strengths, it has not been demonstrated to this court that Plaintiff occupied a position of such strength that Defendant had no meaningful choice but to accept loan terms as they were dictated by Plaintiff. Surprise refers to the situation which occurs when the disputed term of a contract is hidden in a prolix agreement. A & M Produce, 186 Cal.Rptr. at 122. Again we covered substantially the same element in the discussion of federal law. The waiver term" }, { "docid": "13269873", "title": "", "text": "Courts cannot relieve one of the consequences of a contract merely because it was unwise or rewrite a contract simply because the contact may appear to reach an unfair result. “A court may well find a substantive abuse in the form of harshness, evident either in an overall imbalance of the whole contract or in a particularly unreasonable provision that has been included in an agreement without the employment of any procedural abuse in • its formation.” “Under this rationale, oppression includes those provisions, however obtained, which result in oppressive effects.” As between substantive and procedural uncon-cionability, courts often employ a balancing approach: the greater the harshness or unreasonableness of the substantive terms, the less important the regularity of the process of contract formation that gave rise to the term becomes, and vice versa. “A court may void a contract on the grounds that it is unconscionable if the inequality is so gross as to shock the conscience.” Although Wilson was the more sophisticated of the two parties, and the Debtor testified that Wilson often asked him to sign the documents without giving him the opportunity to read them, any procedural imbalance in the execution of any of the AMAs is significantly overshadowed by the substantive provisions which, I find, are exceptionally harsh and oppressive against the Debtor. That would be so even if, as Wilson contends, the Debtor was fully informed of the provisions of the 2007 and 2008 AMAs. First, the term: The 2007 AMA extended the original term of three years with a four one-year options to twenty years with Wilson having four exclusive two-year renewal options. Although Wilson now says the insertion of “25” into the 2008 AMA was a typographical error, the 2008 AMA appears to have extended the term even further to 25 years from signing, with Wilson having the exclusive right to exercise options for up to an additional eight years, for a total of 83 years. In any event, neither the evidence nor the law supports the long terms under either the 2007 AMA or the 2008 AMA. First, Mickey Gilley testified" }, { "docid": "23636642", "title": "", "text": "id. 517 U.S. 681, 116 S.Ct. at 1655-56 (citations omitted); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995) (“When deciding whether parties agreed to arbitrate a certain matter ... courts generally should apply ordinary state-law principles that govern the formation of contracts.”) (citations omitted). Thus, unless the provisions are unenforceable under state law contract principles, the arbitration provisions in the nine contracts govern. B. Horton Farms asserts that Michigan’s general contract principles require that we hold unenforceable the arbitration clauses, either because the provisions are adhesive and their enforcement would be unconscionable, or because the provisions are excluded pursuant to the UCC’s “Battle of the Forms” rule. To determine whether a provision is an unenforceable contract of adhesion, Michigan applies a two-prong test of “procedural” and “substantive” unconscionability. The test inquires: “ ‘(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?;[ ] [and] (2) Is the challenged term substantively reasonable?’ ” Rehmann, Robson & Co. v. McMahan, 187 Mich.App. 36, 466 N.W.2d 325, 329 (Mich.Ct.App.1991) (quoting Allen v. Michigan Bell Telephone Co., 18 Mich.App. 632, 171 N.W.2d 689, 692 (Mich.Ct.App.1969)). The party seeking to invalidate the provision must show both types of unconscionability: Even if the contract is adhesive under the first prong, the challenged term is still enforceable if substantively reasonable and not oppressive or unconscionable. “Thus, merely because the parties have different options or bargaining power, unequal or wholly out of proportion to each other, does not mean that the agreement of one of the parties to a term of a contract will not be enforced against him; if the term is substantively reasonable, it will be enforced. By like token, if the provision is substantively unreasonable, it may not be enforced without regard to the relative bargaining power of the contracting parties.” Id. (quoting Allen, 171 N.W.2d at 692) (internal citation omitted). Under Michigan law, unconscio-nability is a question of law for the court to decide. Citizens Ins. Co." }, { "docid": "23129154", "title": "", "text": "Assocs., 517 U.S. at 686-87, 116 S.Ct. 1652. California courts have extended the doctrine of unconscionability to embrace franchise agreements. See Indep. Ass’n of Mailbox Ctr. Owners, Inc. v. Superior Court, 133 Cal.App.4th 396, 407, 34 Cal.Rptr.3d 659 (2005) (“Franchise agreements are not per se unenforceable, but their provisions can be examined to see if the characteristics of unconscionability are present in part or in whole.”). Because we exercise our diversity jurisdiction to entertain this contract dispute, we must apply California law to determine whether the arbitration provision in the MailCoups contract is unconscionable. See Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778, 782-83 (9th Cir.2002); see also Abramson v. Juniper Networks, Inc., 115 Cal.App.4th 638, 651, 9 Cal.Rptr.3d 422 (2004) (“Employing general contract law principles, [California] courts will refuse to enforce arbitration provisions that are unconscionable or contrary to public policy.” (internal quotation marks omitted)). California courts analyze contract provisions for both procedural and substantive unconscionability. See Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000). In California, the “prevailing view” is that procedural unconscionability and substantive uncon-scionability need not both be present to the same degree: “ ‘Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation ... in proportion to the greater harshness or unreasonableness of the substantive terms themselves.’ ” Id. (quoting 15 Williston on Contracts § 1763A, at 226-27 (3d ed.1972)). “In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” Id; see also Mercuro v. Superior Court, 96 Cal. App.4th 167, 175, 116 Cal.Rptr.2d 671 (2002) (“Given Countrywide’s highly oppressive conduct in securing Mercuro’s consent to its arbitration agreement, he need only make a minimal showing of the agreement’s substantive unconscionability.”). Procedural unconscionability analysis focuses on “ ‘oppression’ or ‘surprise.’ ” Flores v. Transamerica Home-First, Inc., 93 Cal.App.4th 846, 853, 113 Cal.Rptr.2d 376 (2001). “Oppression arises from an inequality of bargaining power that results in" } ]

[ { "docid": "22705356", "title": "", "text": "369 U. S. 350; 28 U. S. C. § 1253. Nor do they now challenge it. Thus there is not before us any question as to either the proper scope of the abstention doctrine or the propriety of its application to this case. Appellants’ petition in the Louisiana trial court appended a copy of the abstention order and opinion and recited that the state proceeding was brought “in pursuance of and obedience to” the abstention order. Like the complaint filed in the federal court, the petition sought both declaratory and injunctive relief. The allegations were that the Medical Practice Act was inapplicable to chiropractors and also “In the alternative, in the event the court should hold that the Medical Practice Act does apply to your plaintiffs . . . said Act is unconstitutional” because in violation of the Fourteenth Amendment. The petition challenged the statute’s validity under that Amendment in terms substantially identical to those in the federal court complaint. The trial court, on the basis of the same documentary evidence that had been submitted to the three-judge District Court, sustained appellees’ defense of “no cause of action.” Appellants made no attempt to obtain appellate review of the state court decision in this Court. See Lassiter v. Northampton County Board of Elections, 360 U. S. 45; NAACP v. Button, 371 U. S. 415; 28 U. S. C. § 1257 (2). At least this is true in a ease, like the instant one, not involving the possibility of unwarranted disruption of a state administrative process. Compare Burford v. Sun Oil Co., 319 U. S. 315; Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341. See Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F. R. D. 481, 487. The doctrine contemplates only “that controversies involving unsettled questions of state law [may] be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions,” City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639, 640; “that decision of the federal question be deferred until the" } ]

[ { "docid": "1968851", "title": "", "text": "in this court. The analysis for purposes of Pullman abstention, however, is not concerned with the issues in a hypothetical state court suit which theoretically could be brought , but with the law and issues actually before this court. The basis rationale of Pullman abstention, the avoidance of unnecessary constitutional issues, is inapplicable to this case. The issues presented here are overwhelmingly those of statutory construction. The Court of Appeals for the Fifth Circuit has considered the question of the propriety of Pullman abstention in a case concerning Medicaid benefits, another federal-state program created by the Social Security Act. In that case Florida Medicaid administra tion — involving Florida statutes — was challenged as being inconsistent with federal statutes. The district court refused to abstain, and the Fifth Circuit upheld this action, stating that the action presented no issues justifying either Burford or Pullman abstention. Curtis v. Taylor, 648 F.2d 946, 949 (1980). The Curtis case is dispositive of the issue of Pullman abstention in this action. Indeed, federal courts are the traditional forum for Supremacy Clause challenges to state administration of a federal-state Social Security Act program. See, e.g. Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) (AFDC); California Department of Human Resources v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971) (unemployment insurance); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972) (AFDC); Mille v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979) (AFDC). In each of these cases, the challenge to the state practice originated in a federal district court. This court is likewise a suitable forum for the plaintiffs’ action. With the preliminary issue of abstention resolved, the specific requirements set out in Rule 23 will be addressed. Rule 23(a) Fed.R.Civ.P., sets out the prerequisites for maintenance of a class action. Rule 23. Class Actions (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of" }, { "docid": "16897616", "title": "", "text": "by showing that “they ha[d] no economic incentive to pursue their [FLSA] claims individually in arbitration,” id. at 2310. In other words, “the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” Id. at 2311. Accordingly, in light of the Supreme Court’s holding that the “effective vindication doctrine” cannot be used to invalidate class-action waiver provisions in circumstances where the recovery sought is exceeded by the costs of individual arbitration, we are bound to conclude that Sutherland’s arguments are insufficient to invalidate the class-action waiver provision at issue here. CONCLUSION To summarize, we hold that: (1) The Fair Labor Standards Act of 1938 does not include a “contrary congressional command” that prevents a class-action waiver provision in an arbitration agreement from being enforced by its terms; and (2) In light of the Supreme Court’s recent decision in American Express Co. v. Italian Colors Restaurant, — U.S. -, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013), Sutherland’s argument that proceeding individually in arbitration would be “prohibitively expensive” is not a sufficient basis to invalidate the class-action waiver provision at issue here under the “effective vindication doctrine.” For these reasons, we REVERSE the March 3, 2011 order of the District Court, which denied defendant-appellant Ernst & Young’s motion to dismiss or stay the proceedings, and to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and we REMAND the cause to the District Court for further proceedings consistent with this opinion. . In declining to compel arbitration, the District Court did not distinguish between Sutherland's federal and state law claims. We need not address Sutherland’s NYLL claim in this opinion because, in light of our conclusion that Sutherland's FLSA claim must proceed individually in arbitration pursuant to the Federal Arbitration Act, so too must her NYLL claim. See AT & T Mobility LLC v. Concepcion, — U.S. - — , 131 S.Ct. 1740, 1753, 179 L.Ed.2d 742 (2011). . After we decided Amex I, the Supreme Court vacated our decision and" }, { "docid": "6654195", "title": "", "text": "Employees Organizing Committee v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957), and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In Windsor, the Supreme Court held that the plaintiff challenging a state statute had to notify the state court as to any pending federal claims that were not being remanded by the district court, so that the statute in question could be construed by the state court in light of those claims. See Windsor, 353 U.S. at 366, 77 S.Ct. 838. This, however, “does not mean that a party must litigate his federal claims in the state courts.” England, 375 U.S. at 420, 84 S.Ct. 461 (limiting the holding of Windsor). Nevertheless, if a party “elects to seek a complete and final adjudication of his rights in the state courts, the District Court’s reservation of jurisdiction is purely formal,” and a final judgment by the state court on those federal claims will still be considered conclusive. Button, 371 U.S. at 427, 83 S.Ct. 328 (holding that the United States Supreme Court’s jurisdiction over the judgment of the Virginia Supreme Court on the plaintiffs federal claims was proper, despite the fact that a district court had retained jurisdiction over those same claims pursuant to a Pullman remand order). Thus, prior to England, plaintiffs subject to a Pullman remand order were uncertain about their future ability to pursue their federal claims in federal court. On the one hand, they had to at least inform the state court of their federal claims. But if they crossed the line between informing the state court of their federal claims and actually litigating these claims in the state court, the ability to pursue those causes of action in their preferred federal forum would be waived. England resolved this dilemma by providing, in a case partially remanded back to state court pursuant to Pullman, that a party may readily forestall any conclusion that he has elected not to return to the District Court. He may accomplish this by making on the state record the ‘reservation to the disposition" }, { "docid": "12121606", "title": "", "text": "that his discharge was unjustified. When the Kentucky state courts reviewed Barnes’s discharge, the only matter determined was whether the Board’s factual finding that the discharge was justified because Barnes had engaged in sexual harassment was supported by substantial evidence in the record. Whether the defendants’ motivation for the discharge was unconstitutional simply was not an issue in the state judicial proceedings. Thus, because Barnes’s section 1983 action involves a constitutional issue which was not involved in the state proceedings, the district court erred in concluding that the doctrine of issue preclusion bars further litigation of Barnes’s federal claim. The district court dismissed Barnes's action before this court issued its decision in Wicker v. Bd. of Educ., 826 F.2d 442 (6th Cir.1987), a case involving issues similar to those presented in Barnes’s appeal. In Wicker, a Kentucky school superintendent was fired after a hearing before the school board employing him on charges that he inadequately handled the school system’s financial affairs. Wicker, the superintendent, then filed suit in federal court under section 1983 claiming, inter alia, that the real reason for his discharge was because he had not supported some of the Board members in a recent election. After he filed suit in federal court, Wicker apparently filed the same suit in state court. The federal court decided to enter an abstention order and Wicker then filed in state court an England reservation of the federal issues. The state court reviewed the Board’s findings and upheld the discharge. Wicker then returned to federal court and that court dismissed his action on the ground that the state decision upholding the discharge precluded consideration of his constitutional claim. This court reversed the district court’s decision concluding, [t]he state court finding of legal cause ... does not resolve Wicker’s federal discrimination claim under Mt. Healthy [City Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (a plaintiff may prevail in a section 1983 claim of retaliatory discharge if the plaintiff can show that he or she was engaged in a constitutionally protected activity and that the activity" }, { "docid": "5567585", "title": "", "text": "party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then — whether or not he seeks direct review of the state decision in this Court — he has elected to forego his right to the District Court. 375 U.S. at 419, 84 S.Ct. at 466-467. The District Court’s reliance on England, which infused well-known princi pies of res judicata into the arena of abstention, is well placed. The doctrine of res judicata provides that, if a previous judgment is valid, and on the merits, it is an absolute bar in another case on the same cause of action between the same parties and their privies not only in respect of every grounds of recovery or defense which were presented but also as to every ground of recovery or defense which might have been presented. Acree v. Air Line Pilots Ass’n, 5 Cir., 1968, 390 F.2d 199; See Frazier v. East Baton Rouge Parish School Bd., 5 Cir., 1966, 363 F.2d 861. The plaintiff in the federal class action is therefore barred from litigating further in federal court by the final determination of the state class action, since the parties and issues were identical in substance, if not in form. Aeree v. Air Line Pilots Ass’n, supra. The order of the District Court dismissing the plaintiff’s case is Affirmed. . The relevant part of F.S. 99.161 provides : “(1). (b) No person holding a license for the sale of intoxicating beverages, nor any member of 'an unincorporated association holding such a license, nor any officer or director or a corporation holding such a license, shall make, directly or indirectly, any contribution of any nature to any political party or to any candidate for nomination for, or election to, any political office in the state; providing, however, that these prohibitions shall not apply to members of country clubs, fraternal, social and cultural organizations.” Penalties for violation of F.S. 99.161 (1) (b), F.S.A., are stated in F.S. 104.27, F.S.A., and include fine and imprisonment as well as revocation of" }, { "docid": "2460853", "title": "", "text": "should in no way undermine a court’s determination that the suits in question are otherwise parallel. “If the rule were otherwise, the Colorado River doctrine could be entirely avoided by the simple expedient of naming additional parties.” Lumen Constr., Inc. v. Brant Constr. Co. Inc., 780 F.2d 691, 695 (7th Cir.1985). In the instant matter, for example, Plaintiff Mitelman, with the help of the same legal counsel who represents plaintiff Romine, initiated her federal class action suit against CompuServe only after the Defendant had raised the issue of abstention with respect to the Romine proceedings, which were identical to the Greenfield state court action in every important respect. We are not to be understood to imply that Plaintiffs’ counsel deliberately manufactured the Mitelman class aetion for the sole purpose of fabricating a distinction upon which to contest abstention, in this case the nonidentity of the parties resulting from the inclusion of the Underwriters as named defendants. In any event, their motivation is of no import to our analysis. As this Court stated explicitly in Heitmanis, the argument that abstention is inappropriate because the federal cause of action included parties not present in the state proceedings “is not relevant to Colorado River abstention.” 899 F.2d at 528. Here, where (1) the parties are substantially similar and (2) Mitelman’s claims against the Underwriters are predicated on the same allegations as to the same máterial facts that the prospectus and registration statement allegedly failed to disclose or misinterpreted, the actions must be considered “parallel” for the purposes of the Colorado River abstention doctrine. Having answered affirmatively the threshold question of whether the federal and state court proceedings here are parallel, we turn now to a formal analysis of the Colorado River test enunciated by the Supreme Court. In Colorado River, the Court declared that, in deciding whether to defer to the concurrent jurisdiction of a state court, a district court must consider such factors as (1) whether the state court has assumed jurisdiction over any res or property; (2) wheth er the federal forum is less convenient to the parties; (3) avoidance of" }, { "docid": "6654193", "title": "", "text": "Rook-er/Feldman abstention doctrine would not have been implicated in this case, because the district court would not have been faced with the question of whether “the state court wrongly decided the issues before it.” Pennzoil Co. v. Texaco, Inc. 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring); see also Laurence H. Tribe, American Constitutional Law § 3-30, 595-96 (3d ed.2000) (exploring the still-open question as to whether the Rooker/Feldman abstention doctrine should be limited to only bar federal adjudication of those issues “actually decided” by a state court). Now that the Michigan Court of Appeals has addressed the noncategorical takings claim, however, we need not delve into the merits of such a Rooker/Feldman argument. On the other hand, if the Michigan Court of Appeals had not ruled on Anderson’s noncategorical takings claim, a serious question would have been presented concerning the district court’s dismissal of the action. We therefore suggest that the more prudent course for a district court finding itself in a similar situation in the future would be to refrain from dismissing the case on the basis of the Rook-er/Feldman abstention doctrine until the full scope of the decision in the state court system has been ascertained. C. Application of the England reservation doctrine Although the subsequent opinion of the Michigan Court of Appeals renders the district court’s Rooker/Feldman decision correct in hindsight, we conclude that the district court could have dismissed Anderson’s federal claims without waiting for the state appellate decision on the basis that he effectively waived his right to pursue these claims in federal court under the England reservation doctrine. This conclusion is based on the case England v. Louisiana State Bd. of Med. Exam’rs, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), in which the Supreme Court established a procedure by which a party, whose case is partially remanded to the state courts pursuant to the Pullman abstention doctrine, may reserve the right to litigate the federal claims in the federal court. Such a procedure became necessary following the Supreme Court’s decisions in Government and Civic" }, { "docid": "20792058", "title": "", "text": "from those of the federal constitution, abstention is not called for. See Reid v. Board of Education of City of New York, 453 F.2d 238, 244 (2d Cir. 1971), citing Wisconsin v. Constantineau, supra. Only in exceptional circumstances is a federal court justified in declining to decide a case properly within its jurisdiction by virtue of the abstention doctrine. Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. at 395; Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480 (1949). It is difficult to conceive of a ease raising federal constitutional issues under the First and Fourteenth Amendments which would not usually raise practically identical issues under the constitution of the state in which the federal court is sitting. If this court were to abstain in every case which presented such state constitutional questions, abstention would be the rule rather than the exception, resulting in a heavy and unwarranted burden of expense and delay upon litigants. Finally, this court has found no case in which remand of a properly removed action has been the vehicle for abstention by a federal court. Remand would be tantamount to a dismissal from this court since it would result in the complete abdication of federal jurisdiction over the case. The better practice in abstention cases is retention of jurisdiction, rather than dismissal. Zwickler v. Koota, supra, 389 U.S. at 244, 88 S.Ct. at 393. See also England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In view of the foregoing conclusions with respect to abstention, however, it is unnecessary to decide whether remand to the state court would have been appropriate. II. THE MERITS OF THE DISPUTE Plaintiffs assert in their complaint, but do not argue in their brief, that the City of Gary had no power as a municipal corporation under Indiana law to pass Ordinance No. 4685 and that the ordinance is therefore ultra vires and invalid. This contention is wholly without merit. The" }, { "docid": "5567583", "title": "", "text": "Thibodaux, 360 U.S. 25, 29, 79 S.Ct. 1070, 3 L.Ed.2d 1058, 1062 (1959); Wright, Federal Courts, Sec. 52, p. 169 (1963 ed.). In the present situation, the same cause of action, involving both state and federal constitutional issues, was brought almost simultaneously in both state and federal courts by different members of the same class acting in concert. The state action was litigated first and the plaintiff argued both state and federal constitutional points without any reservation (although as a matter of tactics the plaintiff refrained from making a general attack on Section 99.161 on federal constitutional grounds). The decision of the state trial court was favorable to the plaintiff, and the plaintiff in the federal action moved to dismiss the federal action. However, the motion was withdrawn when it became apparent that the state decision was to be appealed. The plaintiff lost in the Florida Supreme Court (Sutton v. Adams, supra) and now seek a readjudication on the merits in federal district court. At this point the situation becomes similar to abstention cases where the parties file in federal court and, when sent to state court, litigate the federal issues without reservation, and then seek to return to district court after the state court disposes of all the issues presented. In England v. Louisiana State Board of Medical Examiners, supra, the United States Supreme Court said: [W] e see no reason why a party, after unreservedly litigating his federal claims in the state courts although not required to do so, should be allowed to ignore the adverse state decision and start all over again in the District Court. Such a rule would not only countenance an unnecessary increase in the length and cost of litigation; it would also be a potential source of friction between the state and federal judiciaries. We implicitly rejected such a rule in Button, when we stated that a party elects to forego his right to return to the District Court by a decision “to seek a complete and final adjudication of his rights in the state courts”. We now explicitly hold that if a" }, { "docid": "22876693", "title": "", "text": "follows: There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.... [Nothing] in the abstention doctrine require[s] or supports] such a result. Id. at 415, 84 S.Ct. 461 (emphasis added). Quoting NAACP v. Button, 371 U.S. 415, 427, 88 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court stated that “ ‘a party has the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim.’ ” Id. at 417, 83 S.Ct. 328. The Court then identified an exception to that rule, stating “[w]e also made clear in Button, however, that a party may elect to forgo that right.” Id. Concluding that portion of its analysis, the Court stated as follows: We now explicitly hold that if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then—whether or not he seeks direct review of the state decision in this Court—he has elected to forgo his right to return to the District Court. Id. at 419, 83 S.Ct. 328 (emphasis added). The Court then determined that the England plaintiffs were entitled to a federal-court hearing because they had submitted their federal claims to the state courts only upon the mistaken, but reasonable, belief that the Court’s decision in Government & Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957), required them to do so. England, 375 U.S. at 420, 84 S.Ct. 461. Properly read, the England Court explained, Windsor simply required the plaintiffs to make the state courts aware of their federal claims, so that the state statute at issue could “be construed ‘in light of those claims.” Id. (citation omitted). Recognizing the practical difficulty that a party would face in making a state court" }, { "docid": "873424", "title": "", "text": "ordinance before us. That function is better left to the courts of Indiana. We do not intimate any view as to what effect a state court construction might have upon the validity of this ordinance. We only hold that this enactment should be exposed to state construction before the federal court is asked to pass upon its constitutionality “so that federal judgment will be based on something that is a complete product of the state. .” Harrison v. NAACP, supra at 178, 79 S.Ct. at 1031. This court recognizes and agrees that the use of the abstention doctrine in cases involving civil rights, especially in cases where First Amendment rights are allegedly involved, is not to be encouraged. See Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Baggett v. Bullitt, 377 U.S. 360, 378-379, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed. 2d 405 (1963). However, where, as here, the enactment has not been attacked as facially void, it is of an uncertain nature and is obviously susceptible of a limiting construction, abstention is permissible. The district court dismissed plaintiffs’ action rather than simply deferring action until the state court has ruled upon the ordinance. The Supreme Court has expressed the opinion that in abstention cases, “it is better practice, in a case raising a federal constitutional or statutory claim, to retain jurisdiction, rather than to dismiss. . . .” Zwickler, supra at 244 n. 4, 88 S.Ct. at 393. However, we cannot say, as a matter of law in this case, that the district court erred in dismissing rather than retaining jurisdiction. Accordingly, the district court’s order of dismissal is affirmed." }, { "docid": "22876692", "title": "", "text": "theorizing that the state courts might resolve the case by determining that the Act did not apply to chiropractors, thus making it unnecessary for the district court to reach the constitutional issue. See id. at 413, 84 S.Ct. 461. The plaintiffs then presented all of their claims, including their Fourteenth Amendment claim, to the Louisiana state courts. See id. The state courts ruled against the plaintiffs, holding that the Act applied to the plaintiffs, and that, as applied to the plaintiffs, it did not violate the Fourteenth Amendment. See id. at 414, 84 S.Ct. 461. The plaintiffs then returned to the federal district court, which dismissed their claims on the theory that the state courts had already ruled on them and that it had no authority to review the state-court proceedings. See id. The plaintiffs appealed directly to the Supreme Court, which reversed the dismissal and remanded the case to the district court for a judicial determination of the merits of the plaintiffs’ Fourteenth Amendment claim. See id. The Supreme Court explained its decision as follows: There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.... [Nothing] in the abstention doctrine require[s] or supports] such a result. Id. at 415, 84 S.Ct. 461 (emphasis added). Quoting NAACP v. Button, 371 U.S. 415, 427, 88 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court stated that “ ‘a party has the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim.’ ” Id. at 417, 83 S.Ct. 328. The Court then identified an exception to that rule, stating “[w]e also made clear in Button, however, that a party may elect to forgo that right.” Id. Concluding that portion of its analysis, the Court stated as follows: We now explicitly hold that if a party freely and without" }, { "docid": "5567582", "title": "", "text": "Supreme Court on appeal; (2) the federal action and the state action did not present identical issues; and (3) the plaintiff in the federal class action cannot be bound by the outcome of the class action brought in state court. The issue thus before the Court is whether the District Court was correct in dismissing the federal action after the state action had become final. We hold that the District Court was correct and affirm. Although the District Court below invoked the Abstention Doctrine as the basis for the dismissal, the situation presented does not fall neatly into the Abstention mold. Generally, the Abstention Doctrine refers to a postponement of litigation in District Court in a case involving both federal and state questions in order to allow the parties to obtain a final adjudication of the state questions in the state courts before the federal issues are decided in federal court. See Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152, 1158 (1959); Louisiana Power and Light Co. v. City of Thibodaux, 360 U.S. 25, 29, 79 S.Ct. 1070, 3 L.Ed.2d 1058, 1062 (1959); Wright, Federal Courts, Sec. 52, p. 169 (1963 ed.). In the present situation, the same cause of action, involving both state and federal constitutional issues, was brought almost simultaneously in both state and federal courts by different members of the same class acting in concert. The state action was litigated first and the plaintiff argued both state and federal constitutional points without any reservation (although as a matter of tactics the plaintiff refrained from making a general attack on Section 99.161 on federal constitutional grounds). The decision of the state trial court was favorable to the plaintiff, and the plaintiff in the federal action moved to dismiss the federal action. However, the motion was withdrawn when it became apparent that the state decision was to be appealed. The plaintiff lost in the Florida Supreme Court (Sutton v. Adams, supra) and now seek a readjudication on the merits in federal district court. At this point the situation becomes similar to abstention cases where" }, { "docid": "12086817", "title": "", "text": "court ruled that Trent and Snead were parallel because it found them to be “substantially identical.” App. at 180. The two cases do in fact raise nearly identical allegations and issues, and the defendants in each are essentially identical. Moreover, as the district court found, the1 plaintiffs in the two cases are effectively the same. That Snead has been certified only as to duty and breach of that duty does not negate the fact that the determination of those issues in Snead will resolve them in Trent. Trent’s decision not to opt out of Snead means that Snead will result in recovery for him if the class prevails on the class-wide issues and he is found to have suffered damages as a result of the defendants’ actions. In sum, Trent and Snead are parallel and thus present an appropriate setting for Colorado River abstention. C. Given that this case is one in which Colorado River abstention may be appropriate, we now must determine whether the decision to abstain constituted an abuse of the district court’s discretion. We conclude that it did not. The factors which govern a district court’s exercise of discretion in deciding whether to abstain under Colorado River are: (1) Which court first assumed jurisdiction over property involved, if any; (2) Whether the federal forum is inconvenient; (3) The desirability of avoiding piecemeal litigation; (4) The order in which the respective courts obtained jurisdiction; (5) Whether federal or state law applies; and (6) Whether the state court proceeding would adequately protect the federal plaintiff’s rights. See generally Moses H. Cone, 460 U.S. at 15-16, 19-26, 103 S.Ct. at 936-37, 938-42; see also Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1247 (“No one factor is necessarily determinative; a carefully considered judgment taMng into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required_ Only the dearest of justifications will warrant dismissal.”). Many factors weigh in favor of abstention in this case. The principal reasons to abstain, once abstention has been found to be possible, are to avoid piecemeal litigation" }, { "docid": "6254684", "title": "", "text": "1291. This small category of cases provides an exception from the final decision of the district court, i.e. although the decision does not end the litigation, it must still be considered a final judgment. As the Supreme Court stated in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978): “To come within the ‘small class’ of decisions excepted from the final judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” 437 U.S. at 468, 98 S.Ct. 2454. We find that this court has jurisdiction under the collateral order rule to review the district court’s dismissal of the claims under the Rooker-Feldman doctrine. In applying the Rooker-Feldman doctrine, the district court simply recognized that federal courts may not review prior rulings of the state court. Although we have found no authority addressing the question whether a Rooker-Feldman dismissal is a collateral order, the Supreme Court decided in Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), that a dismissal based on Burford abstention was an appealable collateral order because it effectively deprived the litigant of an opportunity to litigate in federal court. We conclude that the attributes that the Supreme Court identified as making a Burford abstention appealable as a collateral order are also present in a Rooker-Feldman dismissal. In Quackenbush, the Supreme Court observed: We determined that a stay order based on the Colorado River doctrine “presents an important issue separate from the merits” because it “amounts to a refusal to adjudicate” the case in federal court; that such orders could not be reviewed on appeal from a final judgment in the federal action because the district court would be bound, as a matter of res judicata, to honor the state court’s judgment; and that unlike other stay orders, which might readily be reconsidered by the district court, abstention-based stay orders of this ilk are “conclusive” because they are the practical equivalent of" }, { "docid": "6654194", "title": "", "text": "be to refrain from dismissing the case on the basis of the Rook-er/Feldman abstention doctrine until the full scope of the decision in the state court system has been ascertained. C. Application of the England reservation doctrine Although the subsequent opinion of the Michigan Court of Appeals renders the district court’s Rooker/Feldman decision correct in hindsight, we conclude that the district court could have dismissed Anderson’s federal claims without waiting for the state appellate decision on the basis that he effectively waived his right to pursue these claims in federal court under the England reservation doctrine. This conclusion is based on the case England v. Louisiana State Bd. of Med. Exam’rs, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), in which the Supreme Court established a procedure by which a party, whose case is partially remanded to the state courts pursuant to the Pullman abstention doctrine, may reserve the right to litigate the federal claims in the federal court. Such a procedure became necessary following the Supreme Court’s decisions in Government and Civic Employees Organizing Committee v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957), and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In Windsor, the Supreme Court held that the plaintiff challenging a state statute had to notify the state court as to any pending federal claims that were not being remanded by the district court, so that the statute in question could be construed by the state court in light of those claims. See Windsor, 353 U.S. at 366, 77 S.Ct. 838. This, however, “does not mean that a party must litigate his federal claims in the state courts.” England, 375 U.S. at 420, 84 S.Ct. 461 (limiting the holding of Windsor). Nevertheless, if a party “elects to seek a complete and final adjudication of his rights in the state courts, the District Court’s reservation of jurisdiction is purely formal,” and a final judgment by the state court on those federal claims will still be considered conclusive. Button, 371 U.S. at 427, 83 S.Ct. 328 (holding that" }, { "docid": "23425507", "title": "", "text": "the District Court. 375 U.S. at 419, 84 S.Ct. at 466-67. By its terms, England dealt only with state and federal lawsuits brought by the same parties. In Rankin, we extended England to a class action situation, where suits on behalf of the same class of persons had been brought in state and federal court by different class representatives. We described the situation in Rankin as follows: [T]he same cause of action, involving both state and federal constitutional issues, was brought almost simultaneously in both state and federal courts by different members of the same class acting in concert. The state action was litigated first and the plaintiff argued both state and federal constitutional points without reservation. The decision of the state trial court was favorable to the plaintiff . [but] [t]he plaintiff lost in the Florida Supreme Court and now seeks a readjudication on the merits in federal district court. 418 F.2d at 485 (emphasis added). Noting that under the doctrine of res judi-cata a prior valid judgment operates as an absolute bar in another case on the same cause of action between the same parties and their privies, we held that the “plaintiff in the federal class action is therefore barred from litigating further in the federal court by the final determination of the state class action, since the parties and is sues were identical in substance, if not in form”. Id. at 486 (emphasis added). The instant case is distinguishable from Rankin in that here the state and federal cases were brought by different plaintiffs, none of whom sued in a representative capacity. We thus conclude that this case is controlled not by Rankin but by E. B. Elliott Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), cert. denied, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35, in which we held that two named plaintiffs who were in no way involved in a previous state action challenging a local ordinance, “either as named parties or as members of a class being represented . . . are not bound by these previous adjudications”." }, { "docid": "5567580", "title": "", "text": "action. The Florida Circuit Court held Section 99.161(1) (b) unconstitutional on October 5, 1967 on the ground that a 1965 amendment exempting “members of country clubs, fraternal, social, and cultural organizations” from the operation of the statute was not a reasonable classification. However, the state court did not indicate whether it was relying on the Florida Constitution or the U. S. Constitution, or both, in reaching its decision. On October 13, 1967, the plaintiff in the federal action filed a motion to dismiss on the ground that the Florida Circuit Court had declared Section 99.161(1) (b) unconstitutional on grounds similar to those set forth in the federal complaint. This motion was withdrawn on October 30, 1967. On June 5, 1968, the Florida Supreme Court reversed the decree of the Circuit Court and held that there was a reasonable relationship between the purpose of Section 99.161(1) (b) and the groups excluded from its operation. (Adams v. Sutton, Fla. 1968, 212 So.2d 1.) In ordering the cause dismissed, the District Court in effect held (1) that the plaintiffs in the state and federal actions, being members of the same class knd being represented by the same counsel, were identical; (2) that the federal constitutional issues were presented and argued without reservation before and decided by the Florida courts; and (3) that by pursuing their remedy unreservedly in state court, the plaintiffs elected to be bound by the state court on the federal constitutional issues, and that abstention by the federal courts is in order in such a case, particularly in view of the plaintiffs’ election to appeal the state action to the United States Supreme Court, relying on England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The appellant here contends that the District Court committed error in dismissing the federal action on the basis of the Abstention Doctrine because: (1) the federal constitutional issues were not litigated or decided by the state courts nor presented to the U.S." }, { "docid": "5567581", "title": "", "text": "plaintiffs in the state and federal actions, being members of the same class knd being represented by the same counsel, were identical; (2) that the federal constitutional issues were presented and argued without reservation before and decided by the Florida courts; and (3) that by pursuing their remedy unreservedly in state court, the plaintiffs elected to be bound by the state court on the federal constitutional issues, and that abstention by the federal courts is in order in such a case, particularly in view of the plaintiffs’ election to appeal the state action to the United States Supreme Court, relying on England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The appellant here contends that the District Court committed error in dismissing the federal action on the basis of the Abstention Doctrine because: (1) the federal constitutional issues were not litigated or decided by the state courts nor presented to the U.S. Supreme Court on appeal; (2) the federal action and the state action did not present identical issues; and (3) the plaintiff in the federal class action cannot be bound by the outcome of the class action brought in state court. The issue thus before the Court is whether the District Court was correct in dismissing the federal action after the state action had become final. We hold that the District Court was correct and affirm. Although the District Court below invoked the Abstention Doctrine as the basis for the dismissal, the situation presented does not fall neatly into the Abstention mold. Generally, the Abstention Doctrine refers to a postponement of litigation in District Court in a case involving both federal and state questions in order to allow the parties to obtain a final adjudication of the state questions in the state courts before the federal issues are decided in federal court. See Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152, 1158 (1959); Louisiana Power and Light Co. v. City of" }, { "docid": "23425506", "title": "", "text": "of abstention and res judicata by the ruling of the Texas Supreme Court in Holt. Essentially, the appellees contend that by unreservedly litigating their claims in state court, the plaintiffs in Holt foreclosed the federal review sought by the separate plaintiffs in this case. We disagree. The appellees’ argument is based upon an expansive reading of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), and Rankin v. State of Florida, 418 F.2d 482 (5th Cir. 1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1358, 25 L.Ed.2d 650 (1970). As we explained in Rankin, 418 F.2d at 485, the Court in England “infused well-known principles of res judicata into the arena of abstention” by holding that if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then — whether or not he seeks direct review of the state decision in this Court — he has elected to forego his right to the District Court. 375 U.S. at 419, 84 S.Ct. at 466-67. By its terms, England dealt only with state and federal lawsuits brought by the same parties. In Rankin, we extended England to a class action situation, where suits on behalf of the same class of persons had been brought in state and federal court by different class representatives. We described the situation in Rankin as follows: [T]he same cause of action, involving both state and federal constitutional issues, was brought almost simultaneously in both state and federal courts by different members of the same class acting in concert. The state action was litigated first and the plaintiff argued both state and federal constitutional points without reservation. The decision of the state trial court was favorable to the plaintiff . [but] [t]he plaintiff lost in the Florida Supreme Court and now seeks a readjudication on the merits in federal district court. 418 F.2d at 485 (emphasis added). Noting that under the doctrine of res judi-cata a prior valid judgment operates as an absolute bar in" } ]

[ { "docid": "19360077", "title": "", "text": "See, e.g., Minn.Stat.Ann. § 83.20 et seq. (West 1986); Haw.Rev.Stat. § 484-1 et seq. (1985). We thus agree with the district court that the LSFDA was per se invalid as a discrimination against interstate commerce and that summary judgment in favor of the plaintiffs was appropriate. IV. Severability Defendants’ final argument is that even if the LSFDA is unconstitutional, the district court erred in refusing to sever the discriminatory provisions of the statute. Issues of severability are generally issues of state law. See Trade Waste Management Ass’n v. Hughey, 780 F.2d 221, 231 (3d Cir.1985). The LSFDA contains a broad severability clause. See N.J. Stat.Ann. § 45:15-16.25. Under New Jersey law, however, such a provision merely creates a presumption that the invalid sections of the ordinance are severable. See Inganamort v. Borough of Fort Lee, 72 N.J. 412, 422, 371 A.2d 34, 40 (1977). The crucial inquiry is whether the legislature intended that the statute “should stand or fall as a unitary whole.” Id. (quoting State v. Lanza, 27 N.J. 516, 527-28, 143 A.2d 571, 577 (1958)). Legislative intent, in turn “ 'must be determined on the basis of whether the objectionable feature of the statute can be excised without substantial impairment of the principal object of the statute.’ ” Inganamort, 72 N.J. at 422, 371 A.2d at 40 (quoting Affiliated Distillers Brands Corp. v. Sills, 60 N.J. 342, 345, 289 A.2d 257, 258 (1972)) (emphasis added). Inferring the legislative intent from the purpose and provisions of the statute, we agree with defendants that New Jersey would prefer to preserve as much of the LSFDA as would survive Commerce Clause scrutiny. We also agree that a number of the discriminatory provisions relied on by the district court which appear only in the LSFDA could be excised without disturbing the core registration and disclosure requirements. Thus, the penal provision and the advertising restrictions could be stricken. Similarly, the LSFDA provision for an engineering report which has no PREDA counterpart could also be stricken, although we have less confidence that New Jersey would want to permit sales of development property without some" } ]

[ { "docid": "13663303", "title": "", "text": "discord.” Id. (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22, 83 S.Ct. 671, 677-78, 9 L.Ed.2d 547 (1963)). Application of this rule of construction involves examining the relevant legislation to determine whether its language “gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.” Id. (quoting Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577). Courts must “assume that Congress legislates against the backdrop of the presumption against extraterritoriality.” Id. They must presume Congress “is primarily concerned with domestic conditions,” unless it clearly expresses an “affirmative intention” to the contrary. Id. (citations omitted). The party urging extraterritorial application of relevant legislation has the burden to affirmatively show Congress intended to apply it extraterritorially. Id. at 250, 111 S.Ct. at 1231. Congress has shown an intent to apply the ADEA abroad. It has provided a “foreign laws exception” to the prohibition of age discrimination. See 29 U.S.C. § 623(f)(1). Subsection (f) provides that [i]t shall not be unlawful for an employer ... (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section ... where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause the employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located. Section 623(h)(1) of the ADEA, furthermore, addresses practices of foreign corporations controlled by American employers. In addition § 623(h)(2) exempts, from ADEA.coverage, foreign employers not controlled by American employers. The Supreme Court of the United States has noted in dictum that the ADEA applies “overseas.” Arabian Am. Oil Co., 499 U.S. at 258-59, 111 S.Ct. at 1235-36. Concluding that the ADEA applies overseas does not end the inquiry. Defendants suggest it applies abroad only to American citizens employed by American-controlled employers. Plaintiff suggests that it also applies to him as a non-citizen who is a legal resident of the United States. The relevant statute provides that" }, { "docid": "8187999", "title": "", "text": "interest. Amex contests that even if there are legitimate state interests, Chapter 25 fails to rationally further these goals. Because Amex has the burden of rebutting every conceivable rational basis, see Beach Commc’ns, 508 U.S. at 315, 113 S.Ct. 2096, we examine each of Amex’s arguments in turn. Amex first argues that shortening the abandonment period has no rational relationship to increasing property protection because 90% of travelers checks not used after three years are used within fifteen years. Thus, Amex contends, it is irrational to conclude that travelers checks can be presumed abandoned after three years. But the statistics also show that over 96% of all travelers checks are redeemed within three years. Deck of Susan Helms at 3, Am. Express Travel Related Servs., 755 F.Supp.2d 556 (D.N.J. 2010) (No. 10-4328). Even if Amex disagrees with the State Legislature’s presumption that travelers checks unredeemed after three years are abandoned, the rational basis test does not require mathematical precision in the legislature’s decisions. See Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). “[L]egislative choice ... may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315, 113 S.Ct. 2096. Thus, Amex’s argument is insufficient to overcome rational basis scrutiny. Amex next argues that shortening the abandonment period for travelers checks does not further Chapter 25’s stated purpose of modernizing the State’s unclaimed property laws. But the State has a conceivable legitimate interest in making its unclaimed property laws more consistent for ease of administration. Chapter 25 accomplishes this by making the abandonment period for travelers checks the same as checks, drafts, and other similar negotiable instruments. See N.J. Stat. Ann. § 46:30B-16 (2002). Amex responds that unclaimed property laws require establishing different time periods based upon the nature of the property, so consistency is not a rational basis for selecting an abandonment period. But state laws cannot be invalidated based on mere policy disagreements. See Casey, 505 U.S. at 849, 112 S.Ct. 2791 (holding that under rational basis scrutiny, courts are not free to invalidate state law" }, { "docid": "23192922", "title": "", "text": "the respect of the judiciary for the separation of powers, and is ‘designed to show great deference to the legislative prerogative to enact laws.’ ” Id. (quoting Schmitt v. State, 590 So.2d 404, 415 (Fla.1991)). Severability is not possible, however, when “the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.” Schmitt, 590 So.2d at 414. Whether a statute is severable is determined by “its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent.” Martinez v. Scanlan, 582 So.2d 1167, 1173 (Fla.1991) (quoting E. Air Lines, Inc. v. Dep’t of Revenue, 455 So.2d 311, 317 (Fla.1984)). The doctrine of severability, thus, “recognizes that federal courts have an affirmative duty to preserve the validity of legislative enactments when it is at all possible to do so.” Fla. Outdoor Adver., 182 F.Supp.2d at 1209 (citing Ray, 742 So.2d at 1280). The Florida Supreme Court has suggested this test for discerning sever-ability in Smith v. Department of Insurance : When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken. 507 So.2d 1080, 1089 (quoting Cramp v. Bd. of Pub. Instruction, 187 So.2d 828, 830 (Fla.1962)). According to Florida law, then, the unconstitutional part of a challenged statute should be excised, leaving the rest intact and in force, when doing so does not defeat the purpose of the statute and leaves in place a law that is complete. We are fully satisfied that the purpose of the Amended Sign Code is not defeated by the" }, { "docid": "8188001", "title": "", "text": "because they disagree with the underlying policy decisions). Because modernizing unclaimed property laws through consistent abandonment periods is a conceivable rational basis for enacting Chapter 25, Amex fails to overcome rational basis scrutiny. In addition, the State Legislature could have rationally believed that the shorter abandonment period better protected customers by giving custody of the property to the State at an earlier time. Conceivably, there are benefits to having property safeguarded by a perpetually-solvent sovereign instead of a private entity with a greater risk of insolvency. In addition, the State can hold the travelers check funds in perpetuity and must invest unclaimed property funds more conservatively than Amex is required to invest its TC funds. Compare N.J. Stat. Ann. § 17:15C-2 (2000) (permitting investment in “any investment which is rated in one of the three highest rating categories by a nationally recognized statistical rating organization”) with N.J. Stat. Ann. § 46:30B-75 (2000) (restricting investments of funds of Unclaimed Property Trust Fund to government bonds or interest-bearing notes or obligations). The State has offered several legitimate interests that justify shortening the abandonment period for travelers checks from fifteen years to three years. Chapter 25 rationally furthers these interests, and Amex does not meet its burden of defeating every conceivable basis that might support Chapter 25’s enactment. See Beach Commc’ns, 508 U.S. at 315, 113 S.Ct. 2096. Therefore, Amex fails to show a likelihood of success on the merits of its substantive due process claim. B. Contract Clause The Contract Clause under Article I, Section 10, Clause 1 of the U.S. Constitution provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts.” To ascertain whether there has been a Contract Clause violation, a court must first inquire whether the change in State law has “operated as a substantial impairment of a contractual relationship.” Gen. Motors Corp. v. Romein, 503 U.S. 181, 186, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992) (citations omitted); Nieves v. Hess Oil Virgin Islands Corp., 819 F.2d 1237, 1243 (3d Cir.1987) (citations omitted). If this threshold inquiry is met, the court must then determine" }, { "docid": "8187993", "title": "", "text": "when TCs are sent to the State as unclaimed property. If Amex determines that a cashed TC has a serial number indicating that it has been paid to a state as unclaimed property, Amex seeks to reclaim those funds from that state. In New Jersey, when such claims are filed, the Treasurer returns the funds with interest. Until recently, all fifty states had a fifteen-year abandonment period for travelers checks. But on June 24, 2010, the New Jersey Legislature passed Chapter 25, which shortened the abandonment period for travelers checks from fifteen years to three years. N.J. Stat. Ann. § 46:30B-11 (2010). The purpose of the statute was to “protect New Jersey consumers from certain commercial dormancy fee practices and to modernize New Jersey’s unclaimed property laws.” State of N.J. Assemb. Budget Comm., Statement to Assembly, No. 3002, 214th Leg., at 1 (June 24, 2010). Under the State’s unclaimed property law, after an issuer transfers the presumed abandoned property to the State, the property is then administered through New Jersey’s unclaimed property system. The State preserves the property in perpetuity for the owner, N.J. Stat. Ann. § 46:30B-9 (2002), or for another state that can prove a superior right of escheat. N.J. Stat. Ann. § 46:30B-81 (2002). On September 23, 2010, Amex filed a complaint in the United States District Court for the District of New Jersey, alleging that Chapter 25 violated the Due Process Clause, the Contract Clause, the Takings Clause, and the Commerce Clause of the Constitution. Amex also filed a motion for preliminary injunction, seeking to enjoin the State from enforcing Chapter 25. On November 13, 2010, the District Court denied Amex’s motion for preliminary injunction with respect to travelers checks. Amex filed a timely appeal. II. Standard of Review “We generally review a district court’s [grant or] denial of a preliminary injunction for abuse of discretion[,] but review the underlying factual findings for clear error and examine legal conclusions de novo.” Brown v. City of Pittsburgh, 586 F.3d 263, 268 (3d Cir.2009) (citation omitted). “We have jurisdiction to review the order [granting or] denying a preliminary" }, { "docid": "2849465", "title": "", "text": "all liquor wholesalers from a statute forbidding them also to engage in distilling, the court held that the grandfather clause could not be severed from the statute. See also New Jersey Chapter, American Institute of Planners v. New Jersey State Board of Professional Planners, 227 A.2d 313, 319, 48 N.J. 581, 593 (1967) (statute provides that planners must be licensed, but licensed engineers, surveyors, and architects are exempted from the requirement; held: exemption cannot be severed from statute); Delta Upsilon, 28 A.2d at 762-63 (statute exempts property of fraternal organizations from taxation, but specifically excludes college fraternities from the definition; held: exception for college fraternities cannot be severed without frustrating legislative intent to make tax exemption narrow). In each of these cases the court was faced with a choice: it could strike down the statute in its entirety, or it could sever the exception and broaden the statute’s reach by enforcing the statute without the exception. In each case the court decided to strike down the entire statute rather than risk imposing a regulation broader than the legislature intended. In other cases, however, where one aspect of a broad regulatory scheme is struck down, the New Jersey courts are likely to hold that legislative intent is better served by severing the invalid provision, which will result in a slightly less comprehensive regulation, than by striking down the entire statute, which would result in no regulation at all. See State v. Lanza, 27 N.J. 516, 527, 143 A.2d 571, 577 (1958) (dictum) (portion of statute providing that state will compensate municipalities for tax revenues lost as a result of creation of reservoir, if unconstitutional, is severable from statute authorizing creation of water supply system), appeal dismissed, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed.2d 350 (1959); Oxford Consumer Discount Co. v. Stefanelli, 102 N.J.Super. 549, 561, 246 A.2d 460, 467 (App.Div.1968) (unconstitutional residence requirement of Secondary Mortgage Loan Act is severable from other portions of regulatory scheme), aff'd as modified on other grounds, 55 N.J. 489, 262 A.2d 874, appeal dismissed, 400 U.S. 808, 91 S.Ct. 45, 27 L.Ed.2d 38, order" }, { "docid": "8188019", "title": "", "text": "Court. . This opinion addresses the challenge brought against 2010 N.J. Laws Chapter 25 (\"Chapter 25”) with respect to travelers checks. We discuss the appeal filed by New Jersey Retail Merchants Association, New Jersey Food Council, and American Express Prepaid Card Management Corporation, seeking to enjoin Chapter 25 with respect to stored value cards (\"SVCs”), in a separate opinion. . We use \"TCs” to refer to Amex Travelers Cheques specifically, as opposed to travelers checks generally. . Recently, Kentucky also shortened its abandonment period for travelers checks from fifteen years to seven years. Although Amex successfully challenged Kentucky’s statute in federal district court on substantive due process grounds, Am. Express Travel Related Serv. v. Kentucky, 597 F.Supp.2d 717 (E.D.Ky. 2009), the United States Court of Appeals for the Sixth Circuit reversed and remanded, holding that the statute withstood rational basis scrutiny. Am. Express Travel Related Servs. v. Kentucky, 641 F.3d 685 (6th Cir.2011). . Amex also contends that changing the abandonment period does not rationally further the statute’s purpose of reuniting property with its owners because the State does not have the names and addresses of travelers check purchasers. But, as discussed above, changing the abandonment period conceivably furthers other rational bases, which is sufficient for Chapter 25 to survive rational basis scrutiny. . This analysis differs from the analysis with respect to issuers of SVCs because, unlike travelers checks or bank deposits, SVCs are not redeemable for cash. Thus, the relationship between SVC purchasers and their issuers is distinguishable from the relationship between depositors and banks, which are required to turn over the value of the deposit in cash upon the depositor’s demand. . Amex’s reliance on Nieves v. Hess Oil Virgin Is. Corp., 819 F.2d 1237 (3d Cir.1987) is misplaced. In Nieves, a 1986 amendment to the Virgin Island’s Workmen’s Compensation Act retroactively eliminated an employer’s immunity from tort actions. 819 F.2d at 1248. Because the employer had immunity under the law at the time of the contract, this amendment exposed the employer to significant additional tort liability that was unexpected. Id. Chapter 25, however, does not impose" }, { "docid": "8187989", "title": "", "text": "OPINION OF THE COURT FISHER, Circuit Judge. American Express Travel Related Services (“Amex”) challenges the constitutionality of 2010 N.J. Laws Chapter 25 (“Chapter 25”), which amended New Jersey’s unclaimed property statute, N.J. Stat. Ann. § 46:30B (2002), and retroactively reduced the period after which travelers checks are presumed abandoned from fifteen years to three years. Amex filed a motion for preliminary injunction against New Jersey Treasurer Andrew P. Sidamon-Eristoff (“Treasurer”) and New Jersey Unclaimed Property Administrator Steven R. Harris (collectively, “New Jersey” or “State”) in the District Court on the grounds that Chapter 25’s provision reducing the abandonment period for travelers checks violates the Due Process Clause, the Contract Clause, the Takings Clause, and the Commerce Clause of the United States Constitution. The District Court denied Amex’s motion, holding that Amex failed to show a likelihood of success on the merits of its claims. Amex filed a timely appeal. For the reasons discussed below, we will affirm the District Court’s order. 1. Background and Procedural History Amex Travelers Cheques (“TCs”) are preprinted checks for amounts ranging from $20 to $100. Each one is identifiable based on a unique serial number. Amex maintains that the TCs never expire, so they are contractually obligated to honor the TCs once they are issued. Amex sells TCs for the face value amount, normally through a third party bank or travel service. The third party can charge a small fee, which it retains, but Amex does not charge a fee beyond the face value of the TCs. Amex claims that it can sell TCs without charging a fee because its contractual relationship with TC owners gives Amex the right to retain, use, and invest funds from the sale of TCs from the date of sale until the date the TCs are cashed or used. Amex asserts that this right to invest the funds is integral to the contract between TC owners and Amex, and that it relies on these invested funds to remain profitable in the TC business. When a TC is sold, the third party seller transmits the funds to Amex and provides Amex" }, { "docid": "8188018", "title": "", "text": "550 U.S. 330, 345, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007) (holding when “the very people who voted for the laws” bear the costs attributable to those laws, the costs of the regulation do not fall outside the state). Therefore, Amex failed to show a reasonable probability of success on the merits of its Commerce Clause claim. E. Remaining preliminary injunction factors Because Amex was unable to show a likelihood of success on the merits of its claims, we need not address the remaining preliminary injunction factors, see Crissman, 239 F.3d at 364 (listing preliminary injunction factors), and the District Court’s denial of Amex’s motion for preliminary injunction must be affirmed. See In re Arthur Treacher’s Franchisee Litig., 689 F.2d at 1143. IV. Conclusion We hold that Amex failed to show a likelihood of success on the merits of its Due Process Clause, Contract Clause, Takings Clause, and Commerce Clause claims. Thus, the motion for preliminary injunction of Chapter 25 must be denied. For the foregoing reasons, we will affirm the order of the District Court. . This opinion addresses the challenge brought against 2010 N.J. Laws Chapter 25 (\"Chapter 25”) with respect to travelers checks. We discuss the appeal filed by New Jersey Retail Merchants Association, New Jersey Food Council, and American Express Prepaid Card Management Corporation, seeking to enjoin Chapter 25 with respect to stored value cards (\"SVCs”), in a separate opinion. . We use \"TCs” to refer to Amex Travelers Cheques specifically, as opposed to travelers checks generally. . Recently, Kentucky also shortened its abandonment period for travelers checks from fifteen years to seven years. Although Amex successfully challenged Kentucky’s statute in federal district court on substantive due process grounds, Am. Express Travel Related Serv. v. Kentucky, 597 F.Supp.2d 717 (E.D.Ky. 2009), the United States Court of Appeals for the Sixth Circuit reversed and remanded, holding that the statute withstood rational basis scrutiny. Am. Express Travel Related Servs. v. Kentucky, 641 F.3d 685 (6th Cir.2011). . Amex also contends that changing the abandonment period does not rationally further the statute’s purpose of reuniting property with its owners" }, { "docid": "4926104", "title": "", "text": "in enforcing an unconstitutional ordinance.”); Fla. Businessmen for Free Enter., 648 F.2d at 959 (“Given appellants’ substantial likelihood of success on the merits, however, the harm to the city from delaying enforcement is slight.”). So we are in complete agreement with the view of the district court that Scott is entitled to relief if his claim is likely to succeed. Although we appreciate the careful consideration the district court accorded these difficult issues, we disagree with the final step of its reasoning. One final point about severance, because the district court raised the issue. The district court suggested that, in the light of its view of the manner in which the excess spending subsidy encouraged participation in the public financing system, invalidating the subsidy might also require invalidating the $500 contribution limit. It is not clear whether the district court thought that it might have to strike the contribution limit as it applied to all candidates or only participating candidates. No party, however, suggests that we cannot preliminarily enjoin enforcement of the excess spending subsidy without also preliminarily enjoining enforcement of other provisions of the Act, and Scott argues that consideration of the severance issue is premature anyway. Consideration of the issue of severance might be premature because we will not invalidate — only preliminarily enjoin — the excess subsidy provision, but we have no problem concluding that the excess spending subsidy is severable. Florida “clearly favors (where possible) severance of the invalid portions of a law from the valid ones.” Solantic, 410 F.3d at 1269 n. 16 (internal quotation marks omitted). Florida employs a well-established four-part test to determine whether severance is appropriate: (1) the unconstitutional provision can be separated from the remaining valid provisions; (2) the legislative purpose of the act can be achieved without the invalid provision; (3) the valid and invalid features are not so inseparable that the legislature could only have wanted them to exist together; and (4) a complete act remains after severance. Women’s Emergency Network v. Bush, 323 F.3d 937, 948-49 (11th Cir.2003). Here, as is “in almost any case,” we can easily" }, { "docid": "2849466", "title": "", "text": "than the legislature intended. In other cases, however, where one aspect of a broad regulatory scheme is struck down, the New Jersey courts are likely to hold that legislative intent is better served by severing the invalid provision, which will result in a slightly less comprehensive regulation, than by striking down the entire statute, which would result in no regulation at all. See State v. Lanza, 27 N.J. 516, 527, 143 A.2d 571, 577 (1958) (dictum) (portion of statute providing that state will compensate municipalities for tax revenues lost as a result of creation of reservoir, if unconstitutional, is severable from statute authorizing creation of water supply system), appeal dismissed, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed.2d 350 (1959); Oxford Consumer Discount Co. v. Stefanelli, 102 N.J.Super. 549, 561, 246 A.2d 460, 467 (App.Div.1968) (unconstitutional residence requirement of Secondary Mortgage Loan Act is severable from other portions of regulatory scheme), aff'd as modified on other grounds, 55 N.J. 489, 262 A.2d 874, appeal dismissed, 400 U.S. 808, 91 S.Ct. 45, 27 L.Ed.2d 38, order amended, 400 U.S. 923, 91 S.Ct. 183, 27 L.Ed.2d 182 (1970). In such cases, “[w]here the principal object of the statute is constitutional, and the objectionable provision can be excised without substantial impairment of the general purpose, the statute is operative except insofar as it may contravene fundamental law.” State v. Lanza, 27 N.J. 516, 527, 143 A.2d 571, 577 (N.J.Sup.Ct.1958). Legislative intent as to severability may also be gleaned from the structure of the statute. In State v. Lanza, the court declared that an invalid provision should be deemed severable from a valid one “unless the two are so intimately connected and mutually dependent as reasonably to sustain the hypothesis that the Legislature would not have adopted the one without the other.” 143 A.2d at 577. This is largely a question of whether the statute will continue to make sense after the challenged portion is excised. A regulatory statute may be permitted to stand if, “stripped of those provisions which are invalid, [it] remains a comprehensive and cohesive regulatory ordinance with appropriate sanctions for" }, { "docid": "16242943", "title": "", "text": "Act for all coal operators because the Act is not severable. We begin with the background presumption that when an application of a statute is determined to be unconstitutional, courts seek to preserve as much of the statute as is still consistent with legislative intent; courts “should refrain from invalidating more of the statute than is necessary. ... [WJhenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 94 L.Ed.2d 661, 684 (1987) (internal quotation marks and citations omitted). The question of whether portions of an act can be severed from unconstitutional portions requires “an inquiry into legislative intent.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999). Thus, valid provisions of an act will remain enforceable unless it is “evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.” Alaska Airlines, 480 U.S. at 684, 107 S.Ct. 1476 (internal quotation marks and citations omitted). Of course, an explicit severability clause within a statute “creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision. In such a case, unless there is strong evidence that Congress intended otherwise, the objectionable provision can be excised from the remainder of the statute.” Id. at 686, 107 S.Ct. 1476 (citations omitted) (emphasis added).- The Coal Act is subject to a sever-ability clause that provides, “If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remainder of the title, and the application of such provision to other persons or circumstances, shall not-be affected thereby.” 26 U.S.C. § 7852(a). Because Congress revealed its intent to make the provisions of Title 26 severable, Pittston must present “strong evidence” that Congress would never have intended" }, { "docid": "16152958", "title": "", "text": "moves to dismiss Plaintiffs’ contract claim for failure to establish that it owes any contractual obligation to Plaintiffs. ECF No 8-1 at 8-9. Plaintiffs respond that the relevant contractual obligations arise from the City Taxi Regulations, which make it unlawful to operate a taxi cab without a license, cap the number of taxi medallions, and limit the sale and transfer of medallions. ECF No. 11 at 17-18 (citing Newark, N.J. Code §§ 34:1—3,1— 7,1-21). To Plaintiffs, these “and other enforcement provisions constitute a part of the promise by the City to medallion purchasers and lenders that the City will support the exclusivity and market value provisions by removing unlawful taxicabs from the streets and fining violators heavily.” Id. at 18. This argument does not convince the Court. “[A] statute may be construed as creating a contract when the Legislature’s intent to create a contractual commitment is so plainly expressed that one cannot doubt the individual legislator understood and intended it.” Burgos v. State, 222 N.J. 175, 195, 118 A.3d 270 (2015), cert. denied, — U.S. -, 136 S.Ct. 1156, 194 L.Ed.2d 174 (2016). In New Jersey Education Association (NJEA) v. State, 412 N.J.Super. 192, 989 A.2d 282 (App. Div. 2010), the Appellate Division recognized that a clear indication that the legislature intended to bind itself is necessary if a statute is to be regarded as having created contractual rights “because the effect of such authorization is to surrender the fundamental legislative prerogative of statutory revision and amendment and to restrict the legislative authority of succeeding legislatures.” Id. at 206-07, 989 A.2d 282. “[T]he presumption is that a law is not intended to.create private contractual or vested rights ... until the legislature shall ordain otherwise.” Id. at 207, 989 A.2d 282. And so, the Burgos Court found a private contractual right created by a New Jersey statute when the statute “expressly reference[d] a ‘contractual right,’ ” Burgos, 222 N.J. at 195, 118 A.3d 270, and the NJEA Court found no private contractual right when a New Jersey statute simply stated that the legislature “shall” carry out a task, NJEA, 412 N.J." }, { "docid": "9880564", "title": "", "text": "(1975). A provision is functionally severable “if the remaining provisions can stand on their own, are capable of separate enforcement, can be given effect, or can operate ... independently of the invalid provisions.” League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 766 (C.D.Cal.1995) (internal citations and quotation marks omitted). Finally, a provision is volitionally severable where the remainder of the statute “would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute.” Katz v. Children’s Hospital of Orange County, 28 F.3d 1520, 1531 (9th Cir.1994). In this instance, section 1748.13 can be grammatically severed to leave standing only subsection (a)(1), the Minimum Payment Warning. The remainder of the statute can be stricken without confusion or uncertainty. The court further finds the statute is functionally severable. Specifically, the Minimum Payment Warning stands on its own and can be separately enforced against federally chartered banks and credit unions, independent of the statute’s invalid portions. However, despite the grammatical and functional severability of the Minimum Payment Warning, the court must also find volitional severability. Volitional severability is the most important of the three and requires a determination of legislative intent. Here, the legislative record, unfortunately, does not provide a well-lit path to follow. First, the court notes that the statute contains no severability clause, and thus the legislature’s intent to save the statute in part if certain provisions were held invalid is not apparent. See In re Reyes, 910 F.2d 611, 613 (9th Cir.1990) (noting that absence of severability clause suggests an “intent to have all components ‘operate together or not at all’ ”). This is particularly troublesome in light of extensive authority warning states that federally chartered lenders enjoy broad congressional grants of authority. See Bank of America, 309 F.3d at 558-59. Second, the record includes no public discussion of federal preemption issues. Thus, if only a portion of the statute is applicable to only certain federally chartered credit card issuers, section 1748.13 could not be severed “without rendering the end product a Swiss cheese regulation that would not be capable of" }, { "docid": "2849463", "title": "", "text": "Act, we must look to New Jersey law to determine whether the preempted provisions may be severed from the rest, or whether the statute as a whole must fall. See Watson v. Buck, 313 U.S. 387, 395-96, 61 S.Ct. 962, 964-65, 85 L.Ed. 1416 (1941) (severability is a question of state law). Under New Jersey law, severability is a question of legislative intent. The New Jersey legislature has spoken with respect to severability of statutes in general terms: If any title, subtitle, chapter, article or section of the Revised Statutes, or any provision thereof, shall be declared to be unconstitutional, invalid or inoperative, in whole or in part, by a court of competent jurisdiction, such title, subtitle, chapter, article, section or provision shall, to the extent that it is not unconstitutional, invalid or inoperative, be enforced and effectuated, and no such determination shall be deemed to invalidate or make ineffectual the remaining titles, subtitles, chapters, articles, sections or provisions. N.J.Stat.Ann. § 1:1-10 (West 1984). Section 1:1-10 creates a presumption of sever-ability, although it does not mandate a holding of severability if that is not in keeping with legislative intent. Rutgers Chapter of Delta Upsilon Fraternity v. City of New Brunswick, 129 N.J.L. 238, 245, 28 A.2d 759, 763, (N.J.Sup.Ct.1942), aff'd, 130 N.J.L. 216, 32 A.2d 364 (N.J.1943). The New Jersey case law on severability focuses on the overriding purpose of the statute to determine whether excising the invalid provision would promote legislative intent. Most of the reported New Jersey cases holding that a challenged provision may not be severed from the whole, do so on the ground that, without the challenged provision, the remaining portions of the statute will no longer further the legislature’s intent. An interesting pattern emerges in these cases: in each, the court struck down an exception to a broader statutory rule, and held that, without the exception, the general rule was contrary to legislative intent. Thus, in Affiliated Distillers Brands Corp. v. Sills, 289 A.2d 257, 258-59, 60 N.J. 342, 345 (1972), when the court struck down a grandfather clause that protected about one third of" }, { "docid": "2849464", "title": "", "text": "mandate a holding of severability if that is not in keeping with legislative intent. Rutgers Chapter of Delta Upsilon Fraternity v. City of New Brunswick, 129 N.J.L. 238, 245, 28 A.2d 759, 763, (N.J.Sup.Ct.1942), aff'd, 130 N.J.L. 216, 32 A.2d 364 (N.J.1943). The New Jersey case law on severability focuses on the overriding purpose of the statute to determine whether excising the invalid provision would promote legislative intent. Most of the reported New Jersey cases holding that a challenged provision may not be severed from the whole, do so on the ground that, without the challenged provision, the remaining portions of the statute will no longer further the legislature’s intent. An interesting pattern emerges in these cases: in each, the court struck down an exception to a broader statutory rule, and held that, without the exception, the general rule was contrary to legislative intent. Thus, in Affiliated Distillers Brands Corp. v. Sills, 289 A.2d 257, 258-59, 60 N.J. 342, 345 (1972), when the court struck down a grandfather clause that protected about one third of all liquor wholesalers from a statute forbidding them also to engage in distilling, the court held that the grandfather clause could not be severed from the statute. See also New Jersey Chapter, American Institute of Planners v. New Jersey State Board of Professional Planners, 227 A.2d 313, 319, 48 N.J. 581, 593 (1967) (statute provides that planners must be licensed, but licensed engineers, surveyors, and architects are exempted from the requirement; held: exemption cannot be severed from statute); Delta Upsilon, 28 A.2d at 762-63 (statute exempts property of fraternal organizations from taxation, but specifically excludes college fraternities from the definition; held: exception for college fraternities cannot be severed without frustrating legislative intent to make tax exemption narrow). In each of these cases the court was faced with a choice: it could strike down the statute in its entirety, or it could sever the exception and broaden the statute’s reach by enforcing the statute without the exception. In each case the court decided to strike down the entire statute rather than risk imposing a regulation broader" }, { "docid": "2849467", "title": "", "text": "amended, 400 U.S. 923, 91 S.Ct. 183, 27 L.Ed.2d 182 (1970). In such cases, “[w]here the principal object of the statute is constitutional, and the objectionable provision can be excised without substantial impairment of the general purpose, the statute is operative except insofar as it may contravene fundamental law.” State v. Lanza, 27 N.J. 516, 527, 143 A.2d 571, 577 (N.J.Sup.Ct.1958). Legislative intent as to severability may also be gleaned from the structure of the statute. In State v. Lanza, the court declared that an invalid provision should be deemed severable from a valid one “unless the two are so intimately connected and mutually dependent as reasonably to sustain the hypothesis that the Legislature would not have adopted the one without the other.” 143 A.2d at 577. This is largely a question of whether the statute will continue to make sense after the challenged portion is excised. A regulatory statute may be permitted to stand if, “stripped of those provisions which are invalid, [it] remains a comprehensive and cohesive regulatory ordinance with appropriate sanctions for its enforcement.” Oxford Consumer Discount Co. v. Stefanelli, 246 A.2d at 467 (quoting Cranberry Lake Quarry Co. v. Johnson, 95 N.J.Super. 495, 517, 231 A.2d 837, 848 (App.Div.), cert. denied, 50 N.J. 300, 234 A.2d 407 (1967)). In sum, the New Jersey courts use a commonsense approach to severability, holding that an invalid provision is severable if that is in keeping with legislative intent; legislative intent is ascertained by looking to the broad purpose of the statute, the degree to which the valid and invalid provisions are intertwined with one anoth er, and the extent to which the statute remains comprehensive and logical after the invalid provisions are excised. The intention of the New Jersey legislature will be best advanced by severing preempted portions of the Right to Know Act and leaving the remainder operative. The legislature’s intent to protect all New Jersey residents by informing them of hazardous substances is manifest. See N.J.Stat.Ann. § 34:5A-2. Removal of the preempted provisions makes the New Jersey Act somewhat less comprehensive; it does not, however, make any" }, { "docid": "4926105", "title": "", "text": "without also preliminarily enjoining enforcement of other provisions of the Act, and Scott argues that consideration of the severance issue is premature anyway. Consideration of the issue of severance might be premature because we will not invalidate — only preliminarily enjoin — the excess subsidy provision, but we have no problem concluding that the excess spending subsidy is severable. Florida “clearly favors (where possible) severance of the invalid portions of a law from the valid ones.” Solantic, 410 F.3d at 1269 n. 16 (internal quotation marks omitted). Florida employs a well-established four-part test to determine whether severance is appropriate: (1) the unconstitutional provision can be separated from the remaining valid provisions; (2) the legislative purpose of the act can be achieved without the invalid provision; (3) the valid and invalid features are not so inseparable that the legislature could only have wanted them to exist together; and (4) a complete act remains after severance. Women’s Emergency Network v. Bush, 323 F.3d 937, 948-49 (11th Cir.2003). Here, as is “in almost any case,” we can easily separate the excess spending subsidy from the remainder of the Act and the Act remains complete even after severance. Id. at 949. We disagree with the district court that, because the legislature adopted a $500 limit on private contributions when it created the excess spending subsidy, the two provisions are tied so that we could not enjoin the operation of only the subsidy. The $500 limit on private contributions is generally applicable so that it burdens all candidates even when none accept public funds. Moreover, we have little trouble concluding that the Florida Legislature would want to sever the subsidy because the Act contains a severability provision that applies to “any provision of [the] act,” 1991 Fla. Sess. Law Serv. ch. 91-107 § 36. See Smith v. Dep’t of Ins., 507 So.2d 1080, 1090 (Fla.1987). For the reasons that we concluded that the subsidy was not narrowly tailored to the goal of encouraging participation in the public financing system, we also conclude that the legislative purpose of the Act can be served without the subsidy." }, { "docid": "4837503", "title": "", "text": "class for whose especial benefit the statute was enacted — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Cort, 422 U.S. at 78, 95 S.Ct. at 2088 (internal citations and quotations marks omitted). The Lindsay court acknowledged that, in the wake of the Sandoval ruling, relatively recent decisions, e.g., Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., 286 F.3d 613, 619 (2d Cir.2002); Olmsted v. Pruco Life Ins. Co. of N.J., 283 F.3d 429, 434 (2d Cir.2002), cast doubt upon the use of the Cort factors to find an implicit right to a private cause of action, but the court nonetheless held that application of the factors was proper “to illuminate [its] analysis of congressional intent.” Lindsay, 581 F.3d at 53 n. 3. Accordingly, the question of whether LEOSA creates a private cause of action warrants the same two-part inquiry conducted in Lindsay: first, whether Congress, through the text or structure of the statute, expressly intended to establish a private cause of action for retired law enforcement officers; and second, whether application of the Cort factors demonstrates an implicit private remedy. 1. Text and Structure of LEOSA Without clear statutory language establishing a private cause of action, courts “begin with the presumption that Congress did not intend one.” Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 116 (2d Cir.2007). Additionally, “the absence of ‘rights-creating language’ indicates a lack of congressional intent to create private rights of action.” Id. (quoting Olmsted, 283 F.3d at 435). At a minimum, LEOSA provides a federal right for qualified retired law enforcement officers who possess the requisite identification to" }, { "docid": "11397161", "title": "", "text": "clear that New Jersey courts would consider a § 1983 suit to constitute the “same cause of action” as a suit in Superior Court to review the administrative promulgation of a regulation. See, e. g., Brick Twp. v. Vannell, 55 N.J.Super. 583, 151 A.2d 404 (1959) (suit for possession of land, involving same parties and same issues was not same cause of action as prior declaratory judgment action). There is thus considerable doubt in this case whether New Jersey courts would deem a prior judgment an adjudication of claims which could have been, but were not raised. . Defendants’ brief in support of motion to dismiss p. 4; see District Court opinion at Aa36 and Aa38, n. 4. . Compare plaintiffs’ brief in this New Jersey Superior Court with appellants’ brief here. Pp. 10-27. . The Superior Court explicitly rejected the contention that the challenged action denied due process through the medium of an illegal “irrebuttable presumption.” It also held that the regulations were “reasonable” rather than arbitrary and capricious, and “reasonably related to the felt public need.” In light of the Superior Court’s citation of New Jersey Chapt. Am. Inst. of Planners v. New Jersey State Bd. of Prof. Planners, 48 N.J. 581, 227 A.2d 313 (1967), and equal protection case, this appears to be a rejection of the equal protection challenge. . That the plaintiffs offered to dismiss the state suit does not weaken such conclusion. This is so inasmuch as the offer fell short of the explicit or implicit reservation required by England, for after the offer was rejected, plaintiffs fully litigated the equal protection and due process questions without informing the state court of any hesitancy, equivocation or reservation. We are not unsympathetic to the plaintiffs’ argument that their litigation in state court was ineffective to waive their right to a federal forum on the ground that it was undertaken in response to an improper ruling that the federal forum was unavailable. Cf. England, supra, 375 U.S. at 422, 84 S.Ct. 461 (refusing to bind plaintiffs to a state court judgment where submission of claims to" } ]

[ { "docid": "17856863", "title": "", "text": "PER CURIAM: Plaintiffs, Ernest Billy and Marilyn Fitzgerald, brought suit in federal district court to enjoin state court prosecution allegedly brought in bad faith for purposes of harassing and punishing plaintiffs for having exercised their first amendment rights in criticizing certain public officials in DeKalb County. The district court entered a temporary restraining order and, following a two-day hearing, entered a final order permanently enjoining prosecution of the Fitzgeralds on pending indictments charging embracery and terroristic threats. We affirm. Jurisdiction over this suit is properly predicated on 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). See Duncan v. Perez, 445 F.2d 557, 560 (5th Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 282, 30 L.Ed.2d 254 (1971). Section 1983 is within the “expressly authorized” exception of the federal anti-injunction statute, 28 U.S.C.A. § 2283. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). The facts of this case are presented in detail in the district court’s opinion and need not be repeated here. It is sufficient to note that a thorough examination of the record requires the conclusion that the district court’s finding that the prosecution was brought in bad faith for purposes of harassment was not clearly erroneous. It is well established that a showing of bad faith prosecution presents a narrow exception to the doctrine of abstention which will justify federal interference in a pending state court criminal proceeding. See Moore v. Sims, 442 U.S. 415, 424, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 669 (1971); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); Duncan v. Perez, 445 F.2d at 560. A showing of bad faith or harassment is equivalent to a showing of irreparable injury under" } ]

[ { "docid": "16110942", "title": "", "text": "this a fair ground for litigation. Moreover, there exists a probability of irreparable injury, both to plaintiffs’ business and in the restriction of First Amendment rights, and the balance of hardships tips decidedly toward the plaintiffs. Accordingly, the Court, cognizant of the heavy burden on a litigant seeking to enjoin the activities of state law enforcement personnel in the performance of their duties, Munion v. Gilliam, 543 F.2d 48, 52 (8th Cir. 1976), finds that plaintiffs are entitled to preliminary injunctive relief from continued harassment through use of the obscenity laws. As Mr. Justice Brandéis observed in his dissenting opinion in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928): In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. 277 U.S. at 485, 48 S.Ct. at 575 (cited with approval in Elkins v. United States, 364 U.S. 206, 222-23, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). Defendant Michael Codd, as Police Commissioner of the City of New York, is hereby enjoined from causing any further harassment of plaintiffs through enforcement of the obscenity laws undertaken in bad faith and for the purpose of injuring plaintiffs’ business, or to cause them to close. Plaintiffs are directed to submit an order on notice within five days. The order shall provide that, while the Police Department of the City of New York is not prohibited from making obscenity arrests and seizures at plaintiffs’ premises, see Krahm v. Graham, 461 F.2d 703, 709 (9th Cir. 1972), it shall do so in a manner that is not calculated to" }, { "docid": "6681192", "title": "", "text": "v. Graham, 461 F.2d 703 (9th Cir.1972); The Video Store, Inc. v. Holcomb, 729 F.Supp. 579 (S.D.Ohio 1990); ACLU v. City of Pittsburgh, 586 F.Supp. 417 (W.D.Pa.1984); Penthouse International, Ltd. v. McAuliffe, 436 F.Supp. 1241 (N.D.Ga.1977), aff'd, 610 F.2d 1353 (5th Cir.1980); United Artists Corp. v. Gladwell, 373 F.Supp. 247 (N.D.Ohio 1974); Drive in Theaters, Inc. v. Huskey, 305 F.Supp. 1232 (W.D.N.C.1969), aff'd, 435 F.2d 228 (4th Cir.1970). Defendants nevertheless argue that this Court cannot enjoin ongoing criminal prosecutions because plaintiffs have an adequate remedy at law — they can raise their objections by motion in each district in which they are indicted. Defendants vigorously maintain that the issuance of a preliminary injunction would violate a number of principles, including separation of powers between the Judicial and Executive Branches of government and the final judgment rule. Defendants’ arguments are misplaced. Our Supreme Court stated almost two decades ago that “courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750-51, 27 L.Ed.2d 669 (1971). Nevertheless, it is also clear that equitable relief is not only permissible, but appropriate, under certain circumstances. In Younger, the Supreme Court held that federal courts as a rule should abstain from exercising jurisdiction when asked to enjoin pending state criminal proceedings, reflecting a public policy, based on federalism and comity, that disfavors federal court interference with state judicial proceedings. The Court recognized that certain types of injuries, in particular, the cost, anxiety and inconvenience of having to defend against a single criminal prosecution, could not by itself constitute the requisite “irreparable injury” which would warrant equitable relief. “Instead, the threat to the plaintiffs federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Id. at 46, 91 S.Ct. at 751 (citing Ex Parte Young, 209 U.S. 123, 145-47, 28 S.Ct. 441, 447-49, 52 L.Ed. 714 (1908)). The instant case is just" }, { "docid": "17308293", "title": "", "text": "for or discourage the exercise of constitutional rights. See, e.g., Younger, 401 U.S. at 48, 91 S.Ct. at 752 (Dombrowski defendants were threatened with great and immediate irreparable injury because prosecutions were initiated “to discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.”) (quoting Dombrowski, 380 U.S. at 482, 85 S.Ct. at 1119); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979) (per curiam) (allegation that state criminal prosecution was initiated to chill first amendment rights sufficient to remove Younger bar against federal court interference). A showing that a prosecution was brought in retaliation for or to discourage the exercise of constitutional rights “will justify an injunction regardless of whether valid convictions conceivably could be obtained.” Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.1981) (emphasis added). The state does not have any legitimate interest in pursuing such a prosecution; “[pjerhaps the most important comity rationale of Younger deference — that of respect for the State’s legitimate pursuit of its substantive interests—is therefore inapplicable.” Wilson v. Thompson, 593 F.2d 1375, 1383 (5th Cir.1979) (citations omitted). We turn to our review of the district court’s decision with these principles in mind. We can disturb the district court’s decision only if its factual findings are clearly erroneous or if it committed an error of law. See Central Ave., 651 F.2d at 569. After hearing testimony and receiving documentary evidence over a six-day period, the district court made two critical factual findings that persuaded it to issue the preliminary injunction: Lewellen has demonstrated that the criminal prosecution initiated by Raff and Cahoon against Lewellen was brought in bad faith for the purpose of retaliating for the exercise of his constitutionally protected rights. This Court is of the opinion that the criminal charges instituted against Lewellen would not have been filed absent the desire to retaliate against Lewellen for exercising his federally protected rights. Lewellen v. Raff, 649 F.Supp. 1229, 1232 (E.D.Ark.1986). Although the district court’s opinion is somewhat cryptic as to the precise bases for these findings, based on our review" }, { "docid": "16110937", "title": "", "text": "making it prohibitive to remain open.” At the hearing on plaintiffs’ motion, Captain Robert Cantwell of the Public Morals Division of the Police Department testified that one of the objects of the concentrated arrests and the discontinuance of the desk appearance policy was to discourage plaintiffs’ employees from continuing to work in plaintiffs’ stores and, ultimately, to close the stores or force them to abandon the sale of sexually oriented materials. Regardless of the propriety of focusing enforcement of the obscenity laws on plaintiffs’ stores, this cannot be carried out in a manner calculated to discourage them from selling material protected by the First Amendment. It also should be noted that, although the District Attorney’s Office vowed to vigorously prosecute the obscenity cases, none of the prosecutions arising from arrests of plaintiffs’ employees has proceeded beyond the arrest stage, and none of the seized materials has been finally determined to be obscene. On the present record, the Court might not be able to conclude with the certainty required after a full trial on the merits that the defendants are engaging in a persistent pattern of misconduct aimed at deterring the sale of sexually oriented materials in the Midtown area and, particularly, in plaintiffs’ stores. However, plaintiffs have raised sufficiently serious questions as to the existence of such conduct to warrant the issuance of a preliminary injunction. The Court emphasizes that it is not the number of prosecutions alone that leads it to reach this conclusion, for multiplicity of prosecutions does not show bad faith or harassment on the part of law enforcement officials. Grandco Corp. v. Rochford, 536 F.2d 197 (7th Cir. 1976); Sandquist v. Pitchess, 332 F.Supp. 171, 179 (C.D.Cal.1971) (three-judge court). The Court has considered the arrests in conjunction with the surrounding circumstances detailed above in reaching its decision. The instant case is thus distinguishable from Gajon Bar & Grill, Inc. v. Kelly, 508 F.2d 1317 (2d Cir. 1974), in which plaintiffs contended that repeated arrests under an ordinance, of questionable constitutionality, prohibiting topless dancing, coupled with the Town Supervisor’s statement of his desire to eliminate topless dancing," }, { "docid": "409933", "title": "", "text": "in cases such as United States v. Fragus, 428 F.2d 1211 (5th Cir.1970) and Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969) aff’d sub nom., mem., New York Feed Company, Inc. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970) for the proposition that arrests for violations of obscenity laws may be made without a prior judicial determination of obscenity. Similarly, language contained in United States v. Fragus, supra, citing United States v. Wild, 422 F.2d 34 (2nd Cir. 1969) cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971), and Milky Way Productions, Inc. v. Leary, supra, led him to believe that the requirement that an adversary hearing be held prior to seizure was applicable only to large scale, as opposed to evidentiary seizures. Likewise, it was thought that the provisions of the revised version of Article 527 V.A.P.C. (Supp.1972), by virtue of § 9(j) of said article, did not apply to seizures made pursuant to an arrest. The change in procedure which was evident in the August, 1972 seizures (wherein a prior adversary hearing was held) was the result of another Assistant District Attorney taking charge of the prosecutions. While the Court recognizes that the beliefs of the Assistant District Attorney who testified run contrary to a great number of holdings, including this Court’s holding in Fontaine v. Dial, 303 F.Supp. 436 (W.D.Tex.1969) (Three-Judge Court), nevertheless, the Court does not find evidence of bad faith or harassment. Although this Court does not accept the proposition that a violation of firmly established decisional law constitutes, in itself, bad faith as a matter of law, the state of the law and the local official’s cognizance thereof are certainly of evidentiary value. In the instant case, the presence of ease law which lends support to the legality of the actions taken, coupled with the absence of evidence of ulterior motives or misconduct such as were present in Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972), lead this Court to conclude that the seizures, arrests, and prosecutions were not undertaken in bad faith. This" }, { "docid": "6819896", "title": "", "text": "to withdraw publications from sale was voluntary or involuntary. Id. at 67, 83 S.Ct. at 637-638. The lower courts have consistently followed this approach. See, e.g., Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353, 1360 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131 (1980) (calculated scheme of warrantless arrests and harrassing visits by prosecutor forced involuntary self-censorship by distributor); see also R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85, 88 (3d Cir.1984) (quantum of governmental authority brought to bear against decisionmaker not sufficient to provoke self-censorship); Hammerhead Enterprises, Inc. v. Brezenoff 707 F.2d 33, 39 (2d Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983) (court must “draw fine lines between permissible expressions of personal opinion and implied threats to employ coercive state power to stifle protected speech”); Drive In Theatres, Inc. v. Huskey, 435 F.2d 228 (4th Cir.1970) (sheriff’s informal censorship, however well intended, constituted prior restraint); ACLU v. City of Pittsburgh, 586 F.Supp. 417, 421-423 (W.D.Pa.1984) (mayor’s threat to employ massive sweep of newsstands and to initiate criminal prosecutions foreclosed voluntary choice); Anti-Defamation League v. F.C.C., 403 F.2d 169, 172 (D.C.Cir.1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969) (government commission’s emphasis on “responsibility” was “simply a euphemism for self-censorship” and an “attempt to shift the onus of action against speech from the Commission to the broadcaster”). The only difference between the unlawful censorship action in Bantam Books and the censorship activity by Evans and his task force is that Evans was less subtle and his threats of criminal prosecution more direct. Evans steadfastly maintains that he sought at all times only voluntary cooperation. However, his words and deeds avow a calculated scheme to provoke retreat by those who dared to sell sexually explicit magazines. Indeed, the quantum of coercive state power brought to bear against the retailers in this case was quite formidable. Evans’s “invitation” to the December 20 meeting went out on official letterhead. His “request” that retailers confirm their attendance at that meeting indicated from the outset that all" }, { "docid": "1955709", "title": "", "text": "at 13 (internal quotations omitted). . We also note that the district court evaluated whether to issue a preliminary injunction (and later a permanent injunction) based on the legal standard of whether the prosecutions were motivated \"at least in part” by bad faith or harassment. We recognize that some courts have adopted the less exacting “at least in part\" test for preliminary injunctions, while maintaining a higher standard for permanent injunctions. See, e.g., Smith v. Hightower, 693 F.2d 359, 367 n. 19 (5th Cir.1982); Lewellen v. Raff, 851 F.2d 1108, 1110 (8th Cir.1988) (per curiam), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989). We are disinclined to adopt this approach because we view Younger as a quasi-jurisdictional bar based on federalism concerns which are equally valid whether considered in the context of an application for a preliminary or permanent injunction. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975) (underscoring that even preliminary injunctive relief \"seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger\"). Even if we were to relax the burden of proof in the context of a preliminary injunction (i.e. reduce it to a likelihood of establishing bad faith or harassment), we still would see no basis at the preliminary injunction stage to reduce the substantive element of motivation from a \"major motivating factor” to \"at least in part motivated by.” . Federal courts underscore that the weight of the evidence presented in a case is an important consideration in the bad faith inquiry because “[s]trong evidence of criminal violations supports the inference that the prosecutor is fulfilling his duty to bring evidence of criminal activity to the grand jury and not retaliating.\" Hightower, 693 F.2d at 369. . Hamilton contested this issue before the district court, but has conceded on appeal that Engel has standing to challenge the criminal defamation statute. . The Supreme Court in Hicks also observed that the day after the federal plaintiffs filed their federal suit," }, { "docid": "11709309", "title": "", "text": "film projector strains credulity. Second, the multiplicity of the seizures by the Dallas police of the appellees’ video projection and computer equipment, as well as the charges brought against their employees under § 16.01, further support the district court’s finding. Officer Bardin and other Dallas police officers executed warrants and seized property at: Video Stop on May 17, 1989, Talk of the Town on October 20, 1989, Fantasyland on April 12, 1990, Kazbah and Videoland on April 20, 1990, Talk of the Town on July 12, 1990, and Fantasyland, Eros, and Videoland on August 10, 1990. Of particular significance here is the fact that the August 10, 1990 seizures occurred only three days after the district court’s initial decision to abstain. The district court was entitled to consider the police’s en masse seizures immediately after its decision to abstain as patently harassing. At this point, the City must have been aware of the strong possibility that the seizures were unconstitutional. Nevertheless, instead of waiting for the state courts to decide this question, the police immediately conducted additional seizures. Cf. id. at 1296-97 (San Antonio police’s repeated seizures of film and projector instead of attempting to ban film as obscene constituted harassment); Krahm v. Graham, 461 F.2d 703, 707 (9th Cir.1972) (multiple prosecutions); Video Store, Inc. v. Holcomb, 729 F.Supp. 579, 580 (S.D.Ohio 1990) (same). Further, the district court was entitled to consider as significant the extent of the seizures. In conducting these seizures, the police did not seize merely one video cassette or even one peep show booth. Instead, the police seized VCRs, computers, and electronic equipment that allowed the showing of a number of films in different booths, connected to the same VCR by common electrical components. As the district court found, “the effect of the contested seizures was not only to prevent the showing of one allegedly obscene film, but to prevent the showing of any film in the affected booths until replacement parts could be obtained and installed.” Nobby Lobby, 767 F.Supp. at 808. Third, and most importantly, the seizures, arrests, and prosecutions in this case all" }, { "docid": "1955708", "title": "", "text": "a retaliatory measure for political conduct). . See, e.g., P.H.E., 965 F.2d at 851 (10th Cir.1992) (emphasizing that the government brought a series of multiple prosecutions against a single defendant as part of its analysis of bad faith and harassment); Krahm v. Graham, 461 F.2d 703, 705-07 (9th Cir.1972) (finding the existence of bad faith in a case where the prosecutor filed 14 cases charging the sale of obscenity after 6 such cases were found not guilty over the previous two weeks and the prosecutor had as many as 21 cases pending against certain defendants). . While Hamilton represents in her brief that she obtained arrest warrants for the prosecutions against Phelps, she failed to include the underlying documents in her appendix. However, as Phelps does not challenge this representation, we accept it as true. Specifically, Hamilton stated that three separate judges determined that \" 'there [we]re reasonable grounds for believing that ... one Fred W. Phelps, Sr. did then and there, unlawfully, intentionally and willfully’ commit the crime of criminal defamation.” Br. of Appellant at 13 (internal quotations omitted). . We also note that the district court evaluated whether to issue a preliminary injunction (and later a permanent injunction) based on the legal standard of whether the prosecutions were motivated \"at least in part” by bad faith or harassment. We recognize that some courts have adopted the less exacting “at least in part\" test for preliminary injunctions, while maintaining a higher standard for permanent injunctions. See, e.g., Smith v. Hightower, 693 F.2d 359, 367 n. 19 (5th Cir.1982); Lewellen v. Raff, 851 F.2d 1108, 1110 (8th Cir.1988) (per curiam), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989). We are disinclined to adopt this approach because we view Younger as a quasi-jurisdictional bar based on federalism concerns which are equally valid whether considered in the context of an application for a preliminary or permanent injunction. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975) (underscoring that even preliminary injunctive relief \"seriously impairs the State's interest in enforcing" }, { "docid": "17308321", "title": "", "text": "1177, 1182 (8th Cir.1981). . In a thorough and thoughtful opinion, H. Lee Sarokin, a distinguished federal district judge, recently surveyed the types of impermissibly-motivated state prosecutions that have been held enjoinable under the bad faith exception to the Younger doctrine: courts have found bad faith where prosecutors have instituted charges in violation of a prior immunity agreement, Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982); where a prosecutor has pursued highly questionable charges against the plaintiff apparently for the sole purpose of gaining publicity for himself, Shaw v. Garrison, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); where a prosecution is motivated by a purpose to retaliate for or to deter the filing of a civil suit against state officers, Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); and, specifically, where a prosecution has been instituted to harass and punish the federal plaintiffs for having exercised their first amendment rights in criticizing public officials. Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); see also Herz v. Degnan, 648 F.2d 201, 209-10 (3d Cir.1981) (state Attorney General’s institution of license revocation proceeding on grounds for which no authority existed strongly suggested that \"bad faith” exception to Younger principle would apply, if Younger were relevant to proceeding in question); Bishop v. State Bar of Texas, 736 F.2d 292 (5th Cir.1984); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979); Timmerman v. Brown, 528 F.2d 811 (4th Cir.1975). The threat of multiple prosecutions may be additional evidence of bad faith, see, e.g., Krahm v. Graham, 461 F.2d 703 (9th Cir.1972), but is not inevitably required to establish bad faith. Fitzgerald v. Peek, 636 F.2d at 944; Wilson v. Thompson, 593 F.2d at 1381. An injunction may also issue to enjoin consideration of charges by a demonstrably biased tribunal. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). Wichert v. Walter, 606 F.Supp. 1516, 1521 (D.N.J.1985). . Lewellen refers to this cause" }, { "docid": "6681190", "title": "", "text": "result of these discussions, the district attorney informed the distributor and local retailers that unless they signed a consent decree agreeing to cease distribution of these materials, they would be indicted for violating the state’s obscenity laws. Other threats of prosecution were made as well. The distributor then brought suit against the prosecutor, who immediately initiated grand jury proceedings against the distributor and others. The District Court held that the prosecutor’s conduct amounted to a system of informal administrative prior restraints which was unconstitutional under Bantam Books. Accordingly, the court entered an injunction preventing the defendants from instituting criminal proceedings against plaintiffs for actions occurring prior to the filing of the lawsuit. Id. at 568. In Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297 (S.D.N.Y.1977), plaintiffs, vendors of sexually explicit materials, had alleged that the Police Department and the District Attorney’s Office were engaged in a joint effort to clamp down on sexually oriented businesses in Manhattan in general and, more specifically, to force plaintiffs out of business. Daily arrests and seizures were made at plaintiffs’ premises “in a manner calculated to maximize the negative impact on plaintiffs’ business.” Id. at 1306. Defendants' admitted purpose was to discourage plaintiffs’ employees from continuing to work in plaintiffs’ stores and, ultimately, to close the stores or force them to abandon the sale of sexually oriented materials. Id. at 1307. The court granted a preliminary injunction which prevented the New York City Police Commissioner from harassing plaintiffs through enforcement of obscenity laws which were undertaken in bad faith and for the purpose of injuring plaintiffs’ business. The other cases cited in plaintiffs’ memorandum support their argument, i.e., it is within the equitable powers of a federal court to issue injunctions preventing bad faith prosecutions which are brought to discourage First Amendment activities. See Lewellen v. Raff, 843 F.2d 1103 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); Krahm" }, { "docid": "484820", "title": "", "text": "e.g., Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627-29, 106 S.Ct. 2718, 2722-24, 91 L.Ed.2d 512 (1986). Nevertheless, federal courts should still afford injunctive relief to a plaintiff who successfully establishes “the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that ha[s] always been considered sufficient to justify federal intervention.” Younger, 401 U.S. at 48, 91 S.Ct. at 752. Intervention would still be warranted upon a showing of “bad faith, harassment or any other exceptional circumstance that would call for equitable relief.” Id. at 54, 91 S.Ct. at 755. Generally, for such a showing to be made, the party bringing the state action must have no reasonable expectation of obtaining a favorable outcome. See Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. at 1531 n. 6. But, a refusal to abstain is also justified where a prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass. E.g., Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989) (bad faith prosecution where brought in retaliation for exercise of First Amendment rights); Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982) (bad faith prosecution where brought after assurances of immunity to defendant). In such cases, a showing of retaliatory or bad faith prosecution establishes irreparable injury for the purposes of the Younger doctrine, Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir.1984); Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972), and the expectations for success of the party bringing the action need not be relevant. See, e.g., Lewellen, 848 F.2d at 1109-10 (injunction justified regardless of expectations where prosecution brought to discourage exercise of constitutional rights). Abstention would serve no purpose because a state cannot have a legitimate interest in discouraging the exercise of constitutional" }, { "docid": "16110930", "title": "", "text": "1176, 1182 n.11 (5th Cir. 1973); Krahm v. Graham, 461 F.2d 703, 707 (9th Cir. 1972). In the leading case in the area, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), plaintiffs sought declaratory relief in addition to an injunction restraining the defendants from prosecuting or threatening to prosecute them for alleged violations of the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law. Plaintiffs claimed that the challenged statutes violated the First and Fourteenth Amendments and were being enforced, without any expectation of securing valid convictions, as part of a plan to employ arrests, seizures and threats of prosecution in order to discourage plaintiffs from engaging in civil rights activities. The Court held that, particularly where threatened prosecutions may inhibit the full exercise of First Amendment freedoms, injunctive relief is appropriate to terminate such bad faith activity on the part of law enforcement officials. 380 U.S. at 490-92, 85 S.Ct. 1116. Numerous other courts have agreed that an injunction should issue where a statute is used for the purpose of discouraging protected activities. E. g., Thomie v. Dennard, 459 F.2d 1037 (5th Cir. 1972); Stamler v. Willis, 415 F.2d 1365, 1369 (7th Cir. 1969), cert. denied, 399 U.S. 929, 90 S.Ct. 2231, 26 L.Ed.2d 796 (1970); Gardner v. Ceci, 312 F.Supp. 516, 519 (E.D.Wis.1970). In the area of sexually oriented literature and films, state prosecuting authorities may vigorously enforce obscenity laws when the purpose is to punish the promotion or sale of obscene material, or to deter such promotion or sale. However, such law enforcement will run afoul of the Constitution if its purpose is to force a sexually oriented enterprise to cease doing business or to refrain from dealing in presumably protected sexually oriented materials. In those circumstances such activity constitutes an invalid restraint on First Amendment rights. For this reason, the court in Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972), granted an injunction against pending and future prosecutions. Plaintiffs, “adult” bookstore owners and employees, had been the subject of more than 100 prosecutions within a two-year" }, { "docid": "22805051", "title": "", "text": "and appellants as experienced attorneys should have been well aware of this. Moran v. Burbine, 475 U.S. 412, 433, 106 S.Ct. 1135, 1147, 89 L.Ed.2d 410 (1986). Appellants make no attempt to explain away this glaring blunder. Appellants sought to enjoin state criminal proceedings, but the district court found that the Younger v. Harris abstention doctrine clearly barred such relief. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The court also found that Hatcher and Jacobs could have presented their federal constitutional claims to the state court. We agree that plaintiffs had no factual basis for claiming that the state prosecution was brought in bad faith, or without a reasonable expectation of conviction, because Hatcher and Jacobs had never denied taking hostages. Although appellants cite an Eighth Circuit case which suggests that the Younger abstention doctrine does not apply if “a prosecution was brought in retaliation for or to discourage the exercise of constitutional rights ... ‘regardless of whether valid convictions conceivably could be obtained,’ ” Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989), that proposition has been rejected by this court. In Suggs v. Brannon, 804 F.2d 274 (4th Cir.1986), we upheld the use of the Younger abstention doctrine when plaintiffs claimed that their prosecution under obscenity laws chilled their First Amendment rights. The district court also noted “serious standing problems with many of the plaintiffs’ claims.” For example, on the claim that the prosecution chilled Hatcher and Jacobs’ First Amendment expression, the complaint presented no facts showing specific harm or threat of harm, as required by Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Appellants respond that they did show concrete and specific harm insofar as plaintiffs’ participation in the petition drive was curtailed. However, Hatcher and Jacob’s participation was not curtailed, and the district court’s observation on their standing problem with respect to that claim is valid. We therefore affirm the court’s findings that the complaint on the whole was not well grounded" }, { "docid": "16110931", "title": "", "text": "used for the purpose of discouraging protected activities. E. g., Thomie v. Dennard, 459 F.2d 1037 (5th Cir. 1972); Stamler v. Willis, 415 F.2d 1365, 1369 (7th Cir. 1969), cert. denied, 399 U.S. 929, 90 S.Ct. 2231, 26 L.Ed.2d 796 (1970); Gardner v. Ceci, 312 F.Supp. 516, 519 (E.D.Wis.1970). In the area of sexually oriented literature and films, state prosecuting authorities may vigorously enforce obscenity laws when the purpose is to punish the promotion or sale of obscene material, or to deter such promotion or sale. However, such law enforcement will run afoul of the Constitution if its purpose is to force a sexually oriented enterprise to cease doing business or to refrain from dealing in presumably protected sexually oriented materials. In those circumstances such activity constitutes an invalid restraint on First Amendment rights. For this reason, the court in Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972), granted an injunction against pending and future prosecutions. Plaintiffs, “adult” bookstore owners and employees, had been the subject of more than 100 prosecutions within a two-year period. Only eleven cases had been brought to trial, and none resulted in convictions. Many of these cases involved seizures made despite a state court ruling that the methods used were illegal. These findings formed the basis for the court’s conclusion that the arrests, seizures and prosecutions were part of a scheme to harass the bookstore proprietors in bad faith and to drive them out of business. Similarly, in Miami Health Studios, Inc. v. City of Miami Beach, 353 F.Supp. 593 (S.D.Fla.1973), vacated on other grounds, 491 F.2d 98 (5th Cir. 1974), plaintiff’s premises had been subjected to ten “raids” in a 4V2 month period; during some of these raids the police officers announced that they would continue until the employees quit and the business closed. Some employees were detained in jail unnecessarily until processing was completed, on occasion as long as seven hours, and some employees were threatened with overnight detention. At the time suit was commenced none of the pending prosecutions had been brought to trial. The court found that these prosecutions had" }, { "docid": "17308322", "title": "", "text": "denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); see also Herz v. Degnan, 648 F.2d 201, 209-10 (3d Cir.1981) (state Attorney General’s institution of license revocation proceeding on grounds for which no authority existed strongly suggested that \"bad faith” exception to Younger principle would apply, if Younger were relevant to proceeding in question); Bishop v. State Bar of Texas, 736 F.2d 292 (5th Cir.1984); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979); Timmerman v. Brown, 528 F.2d 811 (4th Cir.1975). The threat of multiple prosecutions may be additional evidence of bad faith, see, e.g., Krahm v. Graham, 461 F.2d 703 (9th Cir.1972), but is not inevitably required to establish bad faith. Fitzgerald v. Peek, 636 F.2d at 944; Wilson v. Thompson, 593 F.2d at 1381. An injunction may also issue to enjoin consideration of charges by a demonstrably biased tribunal. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). Wichert v. Walter, 606 F.Supp. 1516, 1521 (D.N.J.1985). . Lewellen refers to this cause of action as \"federal defamation,” but we do not address his assertion that \"defamation plus the violation of a substantive Due Process right states a claim under section 1983.” . Two more troublesome allegations may be disposed of quickly because there is simply no evidence in the record that Raff ordered the initial electronic surveillance or directed that the state police should use electronic surveillance. The record indicates that it was Sheriff May’s decision to request that devices for electronic surveillance be brought by the state po-¡ice. Similarly, the testimony of Sgt. Williams indicates that it was his idea, during conversation with Raff, that a telephone conversation between Lewellen and Mrs. Patterson be recorded. Thus, Lewellen cannot avoid summary judgment against him on these claims because he produced no genuine material facts to substantiate his allegations. . Lewellen also suggests in his brief that Raff and Cahoon are not entitled to immunity because they somehow participated in the alleged \"editing” of tape E-l. He urges us to \"infer” that Raff and Cahoon ordered or consented" }, { "docid": "6819895", "title": "", "text": "do not lightly disregard pub- lie officers’ thinly veiled threats to institure criminal proceedings against them if they do not come around.” Id. Second, the commission had the duty and ability to enforce its threats through official recommendations for prosecution. Id. at 60, 83 S.Ct. at 633. Third, the commission’s actions were directed toward those “not likely to sustain sufficient economic injury to induce [them] to seek judicial vindication of [their] rights.” Id. at 64 n. 6, 83 S.Ct. at 636 n. 6. Fourth, the commission had issued a “blacklist” of objectionable publications. Id. at 62-63 & n. 5, 83 S.Ct. at 635 & n. 5. Fifth, distributors knew that the commission was monitoring compliance with its communications. Sixth, distributors complied in order to avoid criminal prosecution. Id. And Seventh, the net result was suppression of blacklisted materials through “instruments of regulation independent of the laws against obscenity.” Id. at 69, 83 S.Ct. at 638. Throughout, the Supreme Court emphasized the critical importance of “lookpng] through forms to the substance” to determine whether a decision to withdraw publications from sale was voluntary or involuntary. Id. at 67, 83 S.Ct. at 637-638. The lower courts have consistently followed this approach. See, e.g., Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353, 1360 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131 (1980) (calculated scheme of warrantless arrests and harrassing visits by prosecutor forced involuntary self-censorship by distributor); see also R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85, 88 (3d Cir.1984) (quantum of governmental authority brought to bear against decisionmaker not sufficient to provoke self-censorship); Hammerhead Enterprises, Inc. v. Brezenoff 707 F.2d 33, 39 (2d Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983) (court must “draw fine lines between permissible expressions of personal opinion and implied threats to employ coercive state power to stifle protected speech”); Drive In Theatres, Inc. v. Huskey, 435 F.2d 228 (4th Cir.1970) (sheriff’s informal censorship, however well intended, constituted prior restraint); ACLU v. City of Pittsburgh, 586 F.Supp. 417, 421-423 (W.D.Pa.1984) (mayor’s threat to employ massive" }, { "docid": "484821", "title": "", "text": "is otherwise brought in bad faith or for the purpose to harass. E.g., Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989) (bad faith prosecution where brought in retaliation for exercise of First Amendment rights); Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982) (bad faith prosecution where brought after assurances of immunity to defendant). In such cases, a showing of retaliatory or bad faith prosecution establishes irreparable injury for the purposes of the Younger doctrine, Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir.1984); Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972), and the expectations for success of the party bringing the action need not be relevant. See, e.g., Lewellen, 848 F.2d at 1109-10 (injunction justified regardless of expectations where prosecution brought to discourage exercise of constitutional rights). Abstention would serve no purpose because a state cannot have a legitimate interest in discouraging the exercise of constitutional rights, see, e.g., id. at 1110, or, equally, in continuing actions otherwise brought in bad faith, thereby reducing the need for deference to state proceedings. Although the district court did not explicitly address the abstention doctrine in its opinion, it found that the disciplinary charges had been brought in “bad faith.” We, therefore, assume that the district court concluded that the bad faith exception to the Younger doctrine was applicable. Although the specific findings in the district court’s opinion were few in number, they nevertheless provide the basis for the court’s apparent conclusion that Appellants sought Cullen’s termination, and that the charges that Cullen violated § 2031-a were brought in retaliation for the exercise of Cullen’s First Amendment right to protest the school board elections. Appellants, according to the district court, had a “past history of personal conflict” with Cullen, and their corresponding desire “to do something about” him rose to the “level of animus.” More specifically, the court took note of the “charges and hearings and imposition of fines” that preceded the School District’s" }, { "docid": "11709310", "title": "", "text": "conducted additional seizures. Cf. id. at 1296-97 (San Antonio police’s repeated seizures of film and projector instead of attempting to ban film as obscene constituted harassment); Krahm v. Graham, 461 F.2d 703, 707 (9th Cir.1972) (multiple prosecutions); Video Store, Inc. v. Holcomb, 729 F.Supp. 579, 580 (S.D.Ohio 1990) (same). Further, the district court was entitled to consider as significant the extent of the seizures. In conducting these seizures, the police did not seize merely one video cassette or even one peep show booth. Instead, the police seized VCRs, computers, and electronic equipment that allowed the showing of a number of films in different booths, connected to the same VCR by common electrical components. As the district court found, “the effect of the contested seizures was not only to prevent the showing of one allegedly obscene film, but to prevent the showing of any film in the affected booths until replacement parts could be obtained and installed.” Nobby Lobby, 767 F.Supp. at 808. Third, and most importantly, the seizures, arrests, and prosecutions in this case all occurred after our decision in Universal. Many of these actions took place, in fact, after the appellees filed suit, based on Universal, to enjoin such conduct. This factor, of course not present in the prior case, provides additional support for the district court’s finding. The record contains undisputed evidence that the officials, including Officer Bardin and the assistant district attorneys, who made the decision to seize the video equipment and other property were fully aware of the Universal ruling. Moreover, as Universal noted and as we discuss in part IV, the Texas Court of Criminal Appeals, the highest court for criminal matters in Texas, had embraced the narrow construction of § 16.01 in the district court’s opinion in Universal. We agree with the district court that the actions of these officials in light of Universal raises a strong inference of bad faith. Finally, the facts of this case do differ in one important respect from those in Universal. While in Universal, the district attorney did not seek indictments under § 16.01, in the present case," }, { "docid": "6681191", "title": "", "text": "at plaintiffs’ premises “in a manner calculated to maximize the negative impact on plaintiffs’ business.” Id. at 1306. Defendants' admitted purpose was to discourage plaintiffs’ employees from continuing to work in plaintiffs’ stores and, ultimately, to close the stores or force them to abandon the sale of sexually oriented materials. Id. at 1307. The court granted a preliminary injunction which prevented the New York City Police Commissioner from harassing plaintiffs through enforcement of obscenity laws which were undertaken in bad faith and for the purpose of injuring plaintiffs’ business. The other cases cited in plaintiffs’ memorandum support their argument, i.e., it is within the equitable powers of a federal court to issue injunctions preventing bad faith prosecutions which are brought to discourage First Amendment activities. See Lewellen v. Raff, 843 F.2d 1103 (8th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); Krahm v. Graham, 461 F.2d 703 (9th Cir.1972); The Video Store, Inc. v. Holcomb, 729 F.Supp. 579 (S.D.Ohio 1990); ACLU v. City of Pittsburgh, 586 F.Supp. 417 (W.D.Pa.1984); Penthouse International, Ltd. v. McAuliffe, 436 F.Supp. 1241 (N.D.Ga.1977), aff'd, 610 F.2d 1353 (5th Cir.1980); United Artists Corp. v. Gladwell, 373 F.Supp. 247 (N.D.Ohio 1974); Drive in Theaters, Inc. v. Huskey, 305 F.Supp. 1232 (W.D.N.C.1969), aff'd, 435 F.2d 228 (4th Cir.1970). Defendants nevertheless argue that this Court cannot enjoin ongoing criminal prosecutions because plaintiffs have an adequate remedy at law — they can raise their objections by motion in each district in which they are indicted. Defendants vigorously maintain that the issuance of a preliminary injunction would violate a number of principles, including separation of powers between the Judicial and Executive Branches of government and the final judgment rule. Defendants’ arguments are misplaced. Our Supreme Court stated almost two decades ago that “courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law" } ]

[ { "docid": "23476315", "title": "", "text": "breach of fiduciary claim. The district court had jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291. II. A. ERISA is a comprehensive statute enacted “to promote the interests of employees and their beneficiaries in employee benefit plans,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983), and “to protect contractually defined benefits,” Massachusetts Mutual Life Ins. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985). See also 29 U.S.C. § 1001. ERISA recognizes two types of employee benefit plans: pension plans and welfare plans. Deibler v. Local Union 23, 973 F.2d 206, 209 (3d Cir.1992). In general, welfare plans provide “medical, surgical or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment_” 29 U.S.C. § 1002(1). Pension plans provide: (i) retirement income to employees or (ii) result in a deferral of income by employees for periods extending to the termination of covered employment or beyond. 29 U.S.C. § 1002(2)(A). Both Uni-sys and the retirees agree that the retiree medical benefit plans at issue in this case are welfare benefit plans under 29 U.S.C. § 1002(1). The implications of this are significant. Although ERISA contains elaborate vesting requirements for pension plans, ERISA does not require automatic vesting of welfare benefit plans. Alexander v. Primerica Holdings, Inc., 967 F.2d 90, 95 (3d Cir.1992); Smith v. Hartford Ins. Group, 6 F.3d 131, 136 (3d Cir.1994). Congress did not impose vesting requirements on welfare plans because it determined that “[t]o require the vesting of those ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1160 (3d Cir.1990) (citing H.Rep. No. 807, 93rd Congr., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Admin.News 4670, 4726). In rejecting the automatic vesting of welfare plans, Congress evidenced its recognition of the need for flexibility with regard to an employer’s right to change" } ]

[ { "docid": "14468750", "title": "", "text": "civil action may be brought— (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. 29 U.S.C. § 1132(a)(3). Section 510 was primarily designed to prevent “unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.” West v. Butler, 621 F.2d 240, 245 (6th Cir.1980). We agree with the district court’s finding that the VTP is an ERISA plan. ERISA applies to any “employee benefit plan” under ERISA, which is defined as an “employee welfare benefit plan,” an “employee pension benefit plan,” or a “plan which is both.” ERISA § 3(3), 29 U.S.C. § 1002(3). The term “employee welfare benefit plan” means any plan, fund, or program ... established or maintained by an employer ... for the purpose of providing for its participants ... (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title.... ERISA § 3(1), 29 U.S.C. § 1002(1). The term “employee pension benefit plan” means “any plan, fund, or program ... established or maintained by an employer ... to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program ... provides retirement income to employees_” ERISA § 3(2)(A)(i), 29 U.S.C. § 1002(2)(A)(i). “The hallmark of an ERISA benefit plan is that it requires ‘an ongoing administrative program to meet the employer’s obligation.’ ” Swinney v. General Motors Corp., 46 F.3d 512, 517 (6th Cir.1995) (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11-12, 107 S.Ct. 2211, 2217-18, 96 L.Ed.2d 1 (1987) (finding ERISA inapplicable to a Maine statute where a “one-time, lump-sum payment triggered" }, { "docid": "8810247", "title": "", "text": "to the Local 102 Pension Plan. See 29 U.S.C. § 1054(g)(1). Because the Disputed Amendment constructively amended the right to receive a lump sum pension benefit under the Local 102 Pension Plan, we conclude that the first requirement of an Anti-Cutback claim was satisfied. 1. Our view of what constitutes an “amendment” to a pension plan has been construed broadly to protect pension recipients. See, e.g., Hein v. FDIC, 88 F.3d 210, 216 (3d Cir.1996); accord Hunter v. Caliber Sys., Inc., 220 F.3d 702, 712 (6th Cir.2000). That being said, the Union’s argument that it did not amend the Local 102 Pension Plan has a certain superficial appeal because welfare and pension plans undoubtedly serve different purposes under ERISA’s scheme. The former provide healthcare and unemployment benefits and the latter provide retirement income benefits: “ERISA recognizes two types of employee benefit plans: pension plans and welfare plans.” In re Unisys Corp. Retiree Med. Benefit “ERISA” Litig., 58 F.3d 896, 902 (3d Cir.1995). Welfare plans provide “medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment[.]” 29 U.S.C. § 1002(1). Pension plans provide retirement income to employees or result in a deferral of income by employees for periods extending to the termination of covered employment or beyond. Id. § 1002(2) (A). In re Lucent Death Benefits ERISA Litig., 541 F.3d 250, 253 (3d Cir.2008). According to the Union, the Disputed Amendment amended the welfare plan and thus was exempted from the Anti-Cutback rule. 29 U.S.C. § 1051(1). The Anti-Cutback rule, however, cannot be employed in such an overly simplistic, robotic fashion. We must examine the Disputed Amendment closely to determine its true character before we declare it solely a welfare plan amendment and exempt from the Anti-Cutback rule. An evaluation of the amendment’s benefit characteristics, which are independent of the formal placement of the amendment, is necessary. See In re Lucent Death Benefits ERISA Litig., 541 F.3d at 256. “The type of benefit provided, not other considerations, determines whether a plan [amendment amends a] pension plan or a welfare plan.” Id.; see" }, { "docid": "11011441", "title": "", "text": "whether the Agreement between Mr. Cvel-bar and CBI is an ERISA plan. We begin with the text of the statute. ERISA section 502(a)(1)(B) states that “[a] civil action may be brought—(1) by a participant or beneficiary—(B) to recover benefits due to him under the terms of his plan [or] to enforce his rights under the terms of the plan....” 29 U.S.C. § 1132(a)(1)(B) .(boldface omitted). Section 3(3), in turn, states that “‘plan’ means an employee welfare benefit plan or an employee pension benefit plan or a plan which is both-” 29 U.S.C. § 1002(3). An “employee welfare benefit plan” is “any plan, fund, or program ... established or maintained by an employer ... for the purpose of providing ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.” 29 U.S.C. § 1002(1). An “em ployee pension benefit plan” is “any plan, fund, or program ... established or maintained by an employer ... that ... provides retirement income to employees, or ... results in a deferral of income.” 29 U.S.C. § 1002(2)(A). Whether we have jurisdiction over this case turns, therefore, on whether the Agreement is a “plan, fund, or program.” As the Supreme Court noted in Fort Halifax, these statutory definitions are tautological. 482 U.S. at 8, 107 S.Ct. at 2215-16. The statute’s definitions of “plan,” “employee welfare benefit plan” and “employee pension benefit plan” all contain the word “plan” within their definitions. To complete our analysis, therefore, we must look beyond the language of the statute; the precedents of the Supreme Court, this court, and the other circuits provide additional guidance. Those cases teach that an ERISA plan requires an ongoing administrative scheme, id. at 12, 107 S.Ct. at 2217-18, and that its terms must be reasonably ascertainable, Diak v. Dwyer, Costello & Knox, P.C., 33 F.3d 809, 812 (7th Cir.1994). 1. Ongoing Administrative Scheme a. In Fort Halifax, the Supreme Court considered a Maine statute that required em-' ployers who terminate or relocate operations to pay a lump-sum payment to their employees. The Court held that the Maine" }, { "docid": "8655453", "title": "", "text": "Cir.1985); but see Hamilton v. Travelers Ins. Co., 752 F.2d 1350 (8th Cir.1985). . ERISA defines an \"employee welfare benefit plan” and \"welfare plan” as \"any plan, fund or program” established for the purpose of providing, inter alia, \"medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.\" 29 U.S.C. § 1002(1). In contrast, an \"employee pension benefit plan” or \"pension plan” means \"any plan, fund or program” that provides retirement income or results in deferral of income until the termination of employment. 29 U.S.C. § 1002(2)(A). Clearly, the Benefits Fund falls under the former rather than the latter definition. Additionally, even if, as Kroschinsky wrongly asserts, the Benefits Fund and the Pension Fund were a single entity, that fact would not secure him the benefit of ERISA’s minimum participation standards for pension plans. Under 29 U.S.C. § 1002(2)(A), a plan is a \"pension plan ... to the extent that\" it provides retirement income or results in deferred income. Likewise, a plan is a \"welfare plan” to the extent that it provides medical, disability or unemployment benefits. 29 U.S.C. § 1002(1). Thus, a hybrid plan would be exempt from ERISA's minimum participation requirements to the extent that it provides the non-pension benefits Kroschinsky claims. Cf. Howe, 896 F.2d at 1110 (mere fact that welfare benefits continued into retirement did not trigger vesting requirements under ERISA). . The futility of Kroschinsky’s argument is underscored by the fact that the cited regulations would do him no good even if they were applicable. Although the regulations provide that vacation hours must be counted as \"hours of service” for the purpose of plan participation, a plan is obligated to credit an employee with no more than 501 hours \"on account of any single continuous period during which the employee performs no duties,” an amount far less than what Kroschinsky actually received for the period of his disability. 29 C.F.R. § 2530.200b-2(a)(2)®. . The letter, signed by an employee of the Pension Fund, advises Kroschinsky that he earned 1294 hours of pension credit during the 1982-83" }, { "docid": "11011440", "title": "", "text": "precursor to federal jurisdiction.” UIU Severance Pay Trust Fund v. Local Union No. 18-U, United Steelworkers of America, 998 F.2d 509, 510 n. 2 (7th Cir.1993). Therefore, if Mr. Cvelbar’s agreement is not an ERISA “plan,” the district court had no subject matter jurisdiction. It is not fatal that Mr. Cvelbar contended in the district court that his agreement is a plan. Nor is it fatal that neither party objected to the magistrate judge’s conclusion that the district court had subject matter jurisdiction. Subject matter jurisdiction “cannot be waived or be overcome by an agreement of the parties.” Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934). A challenge to subject matter jurisdiction can be raised at any time. Indeed, had Mr. Cvelbar not raised the issue in this appeal, we would have had an independent duty to assess sua sponte our jurisdictional power. See id.; Stearnes v. Baur’s Opera House, Inc., 3 F.3d 1142, 1144 (7th Cir.1993). In assessing whether the district court had jurisdiction, we must determine whether the Agreement between Mr. Cvel-bar and CBI is an ERISA plan. We begin with the text of the statute. ERISA section 502(a)(1)(B) states that “[a] civil action may be brought—(1) by a participant or beneficiary—(B) to recover benefits due to him under the terms of his plan [or] to enforce his rights under the terms of the plan....” 29 U.S.C. § 1132(a)(1)(B) .(boldface omitted). Section 3(3), in turn, states that “‘plan’ means an employee welfare benefit plan or an employee pension benefit plan or a plan which is both-” 29 U.S.C. § 1002(3). An “employee welfare benefit plan” is “any plan, fund, or program ... established or maintained by an employer ... for the purpose of providing ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.” 29 U.S.C. § 1002(1). An “em ployee pension benefit plan” is “any plan, fund, or program ... established or maintained by an employer ... that ... provides retirement income to employees, or ... results in a deferral" }, { "docid": "11011465", "title": "", "text": "to submit a brief as amicus curiae. . 29 U.S.C. § 1002(1) provides in full: The terms \"employee welfare benefit plan” and “welfare plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). Id. . 29 U.S.C. § 1002(2)(A) provides in full: Except as provided in subparagraph (B), the terms \"employee benefit plan” and \"pension plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program— (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. Id. . See Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 459 (7th Cir.1996) (noting that it is possible to draft severance agreements that are \"unrelated” to a \"plan,” but noting that contract specifying how much to disburse from pension and welfare trusts in event of discharge is covered by ERISA); Nagy v. Riblet Prods. Corp., 79 F.3d 572 (7th Cir.1996) (holding suit as to whether employee was discharged for \"cause” is a state law based employment action despite presence" }, { "docid": "4186526", "title": "", "text": "an “employee benefit plan” may be either an “employee welfare benefit plan” and/or an “employee benefit pension plan.” 29 U.S.C.. § 1002(3); Fugarino v. Hartford Life & Acc. Ins. Co., 969 F.2d 178, 183 (6th Cir.1992). An “employee welfare plan” is defined as any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical or hospital care or benefits, or benefits in the event of sickness, accident, disability, death, or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on the retirement or death, and insurance to provide such pensions). 29 U.S.C. § 1002(l)(West Supp.1998). An “employee pension benefit plan” is any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the benefits under the plan or the method of distributing the benefits from the plan. 29 U.S.C. § 1002(2)(A) (West Supp.1998). In determining whether or not a benefit plan exists under ERISA, courts have generally followed the approach as articulated by the Eleventh Circuit in Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982)(era banc). Under the Dillingham test, an ERISA plan exists if a reasonable person can ascertain (1) the intended benefits, (2) the class of beneficiaries, (3) the source of financing, and (4) the procedures for receiving benefits. Id. at 1373. The purported plan need not be" }, { "docid": "7762403", "title": "", "text": "was it considered by the panel.\" Shaw, as quoted above, makes clear that there is federal question jurisdiction where a party claims it will be subject to state regulation preempted by ERISA. . The statute defines “employee benefit plan” as an \"employee welfare benefit plan or an employee pension benefit plan or a plan which is both.” 29 U.S.C. § 1002(3). An employee welfare benefit plan is any \"plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both” to provide \"(A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions).\" Id. § 1002(1). 29 U.S.C. § 186(c) involves union welfare funds for benefits such as vacation benefits, scholarships, and housing assistance. An employee pension benefit plan is \"any plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both ... [that] (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond_\" Id. § 1002(2)(A). . The Declaratory Order is \"State law” subject to ERISA preemption under § 514, for \"State law” includes not only statutes, but \"all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). See National Elevator Indus., Inc. v. Calhoon, 957 F.2d 1555 (10th Cir.) (invalidating ruling of Commissioner of Oklahoma Department of Labor under state’s prevailing wage act as preempted by ERISA), cert. denied, -U.S.-, 113 S.Ct. 406, 121 L.Ed.2d 331 (1992). . Amicus Curiae, the Roofing Contractors Association, argues that preemption should not apply to state actions where the state is acting as a proprietor. Because we find the Prevailing Wage Act and its accompanying regulations not preempted" }, { "docid": "8655452", "title": "", "text": "on its merits. However, it hardly seems to be in the public interest to establish a rule which would discourage trustees of ERISA plans from considering untimely appeals on their merits. Furthermore, it would unduly complicate the law to engraft a waiver exception to the untimely appeal exception to the generally applicable limitations commencement rule. . Defendants have not filed an actual copy of the Benefits Plan promulgated by the trustees but instead have filed relevant excerpts from the Summary Plan Description. 29 U.S.C. § 1022(b) mandates that a summary plan description of an ERISA plan be distributed to covered employees. Because of this statutory requirement and employees' presumed reliance on the plan summary, the Summary Plan Description would likely govern the dispute over Kroschinsky's benefits status if there were a conflict between its terms and the actual Benefits Plan. See Heidgerd v. Olin Corp., 906 F.2d 903 (2d Cir.1990); Edwards v. State Farm Mut. Auto Ins. Co., 851 F.2d 134 (6th Cir.1988); McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566 (11th Cir.1985); but see Hamilton v. Travelers Ins. Co., 752 F.2d 1350 (8th Cir.1985). . ERISA defines an \"employee welfare benefit plan” and \"welfare plan” as \"any plan, fund or program” established for the purpose of providing, inter alia, \"medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.\" 29 U.S.C. § 1002(1). In contrast, an \"employee pension benefit plan” or \"pension plan” means \"any plan, fund or program” that provides retirement income or results in deferral of income until the termination of employment. 29 U.S.C. § 1002(2)(A). Clearly, the Benefits Fund falls under the former rather than the latter definition. Additionally, even if, as Kroschinsky wrongly asserts, the Benefits Fund and the Pension Fund were a single entity, that fact would not secure him the benefit of ERISA’s minimum participation standards for pension plans. Under 29 U.S.C. § 1002(2)(A), a plan is a \"pension plan ... to the extent that\" it provides retirement income or results in deferred income. Likewise, a plan is a \"welfare plan”" }, { "docid": "710345", "title": "", "text": "York state law authorizing the Commissioner of Labor to order the employer to make severance payments to terminated employees. At the time of the interlocutory appeal, the district court had not yet decided the remaining substantive issues under ERISA concerning whether the plaintiff employees were entitled to severance pay upon the sale of their place of employment as an ongoing concern when the plaintiffs were retained in their positions with the successor corporation. . ERISA defines a welfare benefit plan as follows: The terms \"employee welfare benefit plan\" and \"welfare plan” mean any plan, fund or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization or by both, to the extent that such plan, fund or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 188(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). 29 U.S.C. § 1002(1). ERISA defines a pension plan as follows: The terms “employee pension benefit plan\" and \"pension plan\" mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program— (A) provides retirement income to employees, or (B) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. 29 U.S.C. § 1002(2). . In making its recommendation for the passage of the ERISA bill," }, { "docid": "12256435", "title": "", "text": "but are nevertheless governed by ERISA.” Id. at 1486. This court does not find the holding in Carr persuasive, especially in light of the considerations discussed above. Kaelin’s characterization of Packaging’s plan as an ERISA “top hat” plan due to the fact that it is unfunded and exists primarily to provide benefits to a select group of highly compensated employees is, therefore, unavailing. To sum up, unless Packaging’s plan is a pension or welfare plan under ERISA, this court lacks jurisdiction over this ease. 3. Is Packaging’s Plan an “Employee Welfare Benefit Plan” and/or an “Employee Pension Benefit Plan”? a. Employee Welfare Benefit Plan The defendants contend that Packaging’s plan is not an “employee welfare benefit plans” because it is not established or maintained for the purpose of providing “medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death, or unemployment ...” 29 U.S.C. § 1002(1). The court agrees. Providing stock options to certain employees as part of their compensation package is wholly unrelated to medical benefits, or benefits for sickness, accident, disability, death, or unemployment. See Brundage-Peterson v. Compcare Health Services Ins. Corp., 877 F.2d 509, 510-11 (7th Cir.1989). b. Employee Pension Benefit Plan The question of whether Packaging’s plan is an “employee pension benefit plan” is closer. Employee pension benefit plans under ERISA provide retirement income to employees, or allow employees to defer income for periods extending to the termination of covered employment or beyond. 29 U.S.C. § 1002(2)(A). An employer does not create an employee pension benefit plan merely by making payments to employees under a bonus system “unless such payments are systematically deferred to the termination of covered employment or beyond, or as to provide retirement income for employees.” 29 C.F.R. § 2510.3-2(c). Thus, the' granting of stock options to key employees does not necessarily equate to a pension plan under ERISA. Although the Seventh Circuit has not considered this issue, other courts’ decisions regarding similar plans are instructive. For example, the Fifth Circuit has held that a system of discretionary bonuses consisting of a royalty on specific projects" }, { "docid": "7762402", "title": "", "text": "appeal. . Keystone also cross-appealed to preserve Counts II, III and IV of its Complaint in 92-0459 which had been effectively dismissed by the district court in light of the nature of the relief it granted on Count I (ERISA preemption). . Steamfitters Local Union No. 420, in its ami-cus brief, argues that New Jersey State AFL-CIO v. New Jersey, 747 F.2d 891 (3d Cir.1984), bars federal question jurisdiction. While we held there that a district court lacked jurisdiction of a labor union's action for declaratory judgment that ERISA preempted four New Jersey statutes, our holding simply rejected the union's attempt to sue under ERISA's jurisdictional provision. 29 U.S.C. § 1132(a)(1)(B) & (e)(1), which grants federal jurisdiction of civil actions only by participants and beneficiaries. New Jersey State AFL-CIO, 747 F.2d at 892-93. As we explained in Northeast Dept. ILGWU Health & Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147, 153 n. 3 (3d Cir.1985), \"[t]he matter of federal question jurisdiction was not raised by the parties in AFL-CIO, nor was it considered by the panel.\" Shaw, as quoted above, makes clear that there is federal question jurisdiction where a party claims it will be subject to state regulation preempted by ERISA. . The statute defines “employee benefit plan” as an \"employee welfare benefit plan or an employee pension benefit plan or a plan which is both.” 29 U.S.C. § 1002(3). An employee welfare benefit plan is any \"plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both” to provide \"(A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions).\" Id. § 1002(1). 29 U.S.C. § 186(c) involves union welfare funds for benefits such as vacation benefits, scholarships, and housing assistance. An employee pension" }, { "docid": "23106753", "title": "", "text": "was not a necessary party to the lawsuit and entered judgment in its favor. II. DISCUSSION On appeal plaintiffs raise numerous issues which fall into four general categories. They argue that: 1) the district court erroneously concluded that retiree health and life insurance benefits were not vested for the lifetime of the retiree; 2) the district court erroneously deprived them of a jury trial; 3) the district court committed several errors when conducting the proceedings; and 4) the district court erroneously concluded that Equitable is not a necessary party. A. Duration of Benefits In 1974 the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (1982), was enacted to “protect interstate commerce and the interests of participants in employee benefit plans” by establishing disclosure and reporting requirements, standards of conduct for plan fiduciaries, and access to federal courts. 29 U.S.C. § 1001(b). “Employee benefit plans” are divided into two distinct categories: welfare plans and pension plans. In general, welfare plans are maintained to provide “medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment * * * * ” 29 U.S.C. § 1002(1). Pension plans, however, “(i) provide[] retirement income to employees, or (ii) result[ ] in a deferral of income by employees for periods extending to the termination of covered employment or beyond * * * * ” 29 U.S.C. § 1002(2)(A). Aside from the difference in their purposes, welfare and pension plans also differ in another critical way. While pension plans are subject to ERISA’s stringent vesting requirements, 29 U.S.C. § 1053 (“[e]ach pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age”), welfare plans are specifically exempt from such requirements. 29 U.S.C. § 1051. See generally Anderson v. John Morrell & Co., 830 F.2d 872, 876 (8th Cir.1987). Since welfare benefits do not automatically vest as a matter of law, see, e.g., Molnar v. Wibbelt, 789 F.2d 244, 250 (3rd Cir.1986), we must determine whether “the parties intended [that] retirees’ benefits would be vested" }, { "docid": "23106754", "title": "", "text": "in the event of sickness, accident, disability, death or unemployment * * * * ” 29 U.S.C. § 1002(1). Pension plans, however, “(i) provide[] retirement income to employees, or (ii) result[ ] in a deferral of income by employees for periods extending to the termination of covered employment or beyond * * * * ” 29 U.S.C. § 1002(2)(A). Aside from the difference in their purposes, welfare and pension plans also differ in another critical way. While pension plans are subject to ERISA’s stringent vesting requirements, 29 U.S.C. § 1053 (“[e]ach pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age”), welfare plans are specifically exempt from such requirements. 29 U.S.C. § 1051. See generally Anderson v. John Morrell & Co., 830 F.2d 872, 876 (8th Cir.1987). Since welfare benefits do not automatically vest as a matter of law, see, e.g., Molnar v. Wibbelt, 789 F.2d 244, 250 (3rd Cir.1986), we must determine whether “the parties intended [that] retirees’ benefits would be vested and not tied to the agreement which created them.” UFCW Local 105-A v. Dubuque Packing Co., 756 F.2d 66, 70 (8th Cir.1985). The exemption from ERISA’s vesting requirements does not prohibit an employer from extending benefits beyond the expiration of the collective bargaining agreement. Rather, the exemption allows the parties to determine the duration of the welfare benefits. Thus, the issue is “simply one of contract interpretation.” Id. Plaintiffs argue that once they showed that retirees were given welfare benefits, Alpha had the burden of showing that the benefits were for a limited duration. Plaintiffs principally rely on the decision of the Sixth Circuit in International Union, United Auto., Aero., and Agric. Implement Workers of America v. YardMan, Inc., 716 F.2d 1476 (6th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984). In Yard-Man the court stated that: retiree [welfare] benefits are in a sense 'status’ benefits which, as such, carry with them an inference that they continue so long as the prerequisite status is maintained. Thus, when the parties contract" }, { "docid": "6068560", "title": "", "text": "See Bidlack v. Wheelabrator Corp., 998 F.2d 603, 613 (7th Cir.1993) (Cudahy, J., concurring). Thus, at the time the relevant plan documents were created, there may not have been much thought. given to any language affecting possible future changes in benefits. This expectation has now changed, and many courts have rejected retirees’ attempts to show that their benefits have vested under the language of plan documents. Meanwhile, retirees living on limited fixed incomes can be squeezed by unanticipated increases in medical costs. It is with this historical context in mind that we turn to the question whether the FANA plan documents vested retiree health benefits here. Under ERISA, employee benefit plans are classified either as welfare benefit plans or as pension plans. See 29 U.S.C. §§ 1002(1), 1002(2)(A) (2005). Pension plans provide retirement income to employees or allow employees to defer the receipt of income until or beyond the termination of the covered employment. 29 U.S.C. § 10Q2(2)(A) (2005). Welfare benefits, on the other hand, provide “medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment....” 29 U.S.C. § 1002(1) (2005). While pension benefits are subject to strict vesting requirements, welfare benefits such as health and life insurance are vested only if the plan contract so provides. 29 U.S.C. § 1051(1) (2005). See also Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995) (“Nor does ERISA establish any minimum participation, vesting, or funding requirements for welfare plans as it does for pension plans.”) (citation omitted); Bidlack v. Wheelabrator Corp., 993 F.2d 603, 604-05 (7th Cir.1993) (“ERISA does not require the vesting of health or other ‘welfare’ benefits as it does pension benefits.”) (citations omitted). Thus, employers are “generally free ... for any reason at any time, to adopt, modify or terminate welfare plans.” Curtiss-Wright Corp., 514 U.S. at 78, 115 S.Ct. 1223. Welfare benefits may vest, however, when employers elect to enter into a private contract with employees as set forth in benefit plan documents. See Inter-Modal Rail Employees Ass’n v. Atchison, Topeka, & Santa" }, { "docid": "12256426", "title": "", "text": "of the plan ____ ” 29 U.S.C. § 1132(a)(1)(B). Section 3(3) of ERISA defines the terms “employee benefit plan” or “plan” as “an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan.” 29 U.S.C. § 1002(3). An “employee welfare benefit plan” is: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death, or unemployment ... 29 U.S.C. § 1002(1). In turn, an “employee pension benefit plan” is: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund or program (i) provides retire ment income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond ... 29 U.S.C. § 1002(2)(A). An employee pension benefit plan does not include “payments made by an employer to some or all of its employees as bonuses for work performed, unless such payments are systematically deferred to the termination of covered employment or beyond, or as to provide retirement income for employees.” 29 C.F.R. § 2510.3.2(C). 2. Must a “Top Hat” Plan Also Be an “Employee Welfare Benefit Plan” and/or an “Employee Pension Benefit Plan”? The critical question is whether Packaging’s restricted stock plans are “employee benefit plans” or “plans” under ERISA. Whether a plan exists within the meaning of ERISA is a “question of fact, to be answered in light of all of the surrounding facts and circumstances from the point of view of a reasonable person.” Bass v. Mid-America Co., Inc., 95 CV 1167, 1995 WL 622397 *2" }, { "docid": "13924535", "title": "", "text": "may be restricted to the extent provided by the union’s constitution and bylaws. 29 C.F.R. § 452.93 (1978). . There were further allegations based on state law, over which the district court was alleged to have pendent jurisdiction. . Appellees do not question the standing of appellant, as a beneficiary under the retiree plan, to bring this action under § 301. This court has recognized that retirees may sue under § 301 to enforce pension rights. Rehmar v. Smith, 555 F.2d 1362 (9th Cir. 1977). See also Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). . Appellees note the distinction between pension and health and welfare benefits made by the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1001 et seq. The act distinguishes between a “welfare plan”, 29 U.S.C. § 1002(1), which provides medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, death or unemployment, and a “pension plan,” 29 U.S.C. § 1002(2), which provides retirement income to employees or results in a deferral of income for periods extending to the termination of covered employment or beyond. Pension plans must meet participation, benefit accrual, and vesting requirements based on age and length of service under 29 U.S.C. §§ 1051 through 1061, while welfare plans do not have to do so. 29 U.S.C. § 1051(1). . See Cantor v. Berkshire Life Ins. Co., 171 Ohio St. 405, 171 N.E.2d 518 (1960); Board of Education of Louisville v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337 (1941). See also Wilson v. Board of Trustees, 564 F.2d 1299, 1300 (9 Cir. 1977) where pension disability benefits were denied for failure to comply with the requirements of the Trust Fund. . The collective bargaining agreement in effect when appellant retired in April, 1970 contained the following provision: Sec. 2. The employer agrees to maintain the benefits in effect as of April 1, 1968 throughout the term of this agreement. The next agreement effective June 1, 1970 contained the same provision. . Unlike the pension plan in Hurd" }, { "docid": "10364438", "title": "", "text": "are an “employee welfare benefit plan” under 29 U.S.C. § 1002(1), to which the protections of § 1054 do not apply. We therefore affirm the judgment of the district court. ANALYSIS We review the district court’s grant of summary judgment in favor of Nestle de novo, construing the evidence in the light most favorable to Rombach and drawing all reasonable inferences in her favor. See, e.g., Brown v. C. Volante Corp., 194 F.3d 351, 354 (2d Cir.1999). Rombach’s central claim in this litigation is that Nestle was required under ERISA § 1054(g) to follow the procedures of § 1082(c)(8). But under ERISA, in order for § 1054(g) to apply, the disability retirement pension provisions of the Pension Plan must not be an “employee welfare benefit plan” under § 1002(1). See 29 U.S.C. § 1051(1) (providing that Part Two of ERISA, which includes § 1054(g), does not apply to “an employee welfare benefit plan”); Harms v. Cavenham Forest Indus., Inc., 984 F.2d 686, 691 n. 6 (5th Cir.1993) (“An employer ... may modify or cancel [benefits under a welfare plan] without falling afoul of ERISA.”). The first question we must answer, then, is whether the disability provisions at issue here constitute a “welfare plan” under 29 U.S.C. § 1002(1). ERISA provides protection for two basic types of employee benefit plans. One type of plan is the “employee welfare benefit plan” or “welfare plan.” Section 1002(1) defines this type of plan as one that was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services. Id. § 1002(1). The other type of protected plan is an “employee pension benefit plan” or a “pension plan.”" }, { "docid": "10364439", "title": "", "text": "under a welfare plan] without falling afoul of ERISA.”). The first question we must answer, then, is whether the disability provisions at issue here constitute a “welfare plan” under 29 U.S.C. § 1002(1). ERISA provides protection for two basic types of employee benefit plans. One type of plan is the “employee welfare benefit plan” or “welfare plan.” Section 1002(1) defines this type of plan as one that was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services. Id. § 1002(1). The other type of protected plan is an “employee pension benefit plan” or a “pension plan.” Section 1002(2)(A) defines such a plan as any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program— (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. Id. § 1002(2)(A). In this case, Rombach claims that the “disability retirement pension” portion of the Pension Plan should be considered a pension plan under § 1002(2)(A) because Nestle called it a “pension benefit” and made it a part of its master pension plan that included a number of different types of pensions, some of which seemingly satisfy the requirements of § 1002(2)(A). Rombach also argues" }, { "docid": "8810248", "title": "", "text": "the event of sickness, accident, disability, death or unemployment[.]” 29 U.S.C. § 1002(1). Pension plans provide retirement income to employees or result in a deferral of income by employees for periods extending to the termination of covered employment or beyond. Id. § 1002(2) (A). In re Lucent Death Benefits ERISA Litig., 541 F.3d 250, 253 (3d Cir.2008). According to the Union, the Disputed Amendment amended the welfare plan and thus was exempted from the Anti-Cutback rule. 29 U.S.C. § 1051(1). The Anti-Cutback rule, however, cannot be employed in such an overly simplistic, robotic fashion. We must examine the Disputed Amendment closely to determine its true character before we declare it solely a welfare plan amendment and exempt from the Anti-Cutback rule. An evaluation of the amendment’s benefit characteristics, which are independent of the formal placement of the amendment, is necessary. See In re Lucent Death Benefits ERISA Litig., 541 F.3d at 256. “The type of benefit provided, not other considerations, determines whether a plan [amendment amends a] pension plan or a welfare plan.” Id.; see Rombach v. Nestle USA, Inc., 211 F.3d 190, 193-94 (2d Cir.2000). As a general rule, an amendment amends a pension plan “to the extent that by its express terms or as a result of surrounding circumstances ... [it] provide[s] retirement income to employees, or ... results in a deferral of income by employees for periods extending to the termination of covered employment or beyond[.]” 29 U.S.C. § 1002(2)(A) (defining “pension plan”); see In re Lucent Death Benefits ERISA Litig., 541 F.3d at 255-56; Rombach, 211 F.3d at 193-94 (concluding that disability provisions in pension plan constituted a welfare plan); McBarron v. S & T Indus., Inc., 771 F.2d 94, 98 (6th Cir.1985) (holding that disability provision in comprehensive retirement plan constituted a welfare plan). “[T]he words ‘to the extent that’ rather than ‘solely’ clearly indicate that Congress intended to allow any plan or part of a plan,” McBarron, 771 F.2d at 98, to be considered a pension plan or a welfare plan, see id. See also In re Lucent Death Benefits ERISA Litig., 541 F.3d" } ]

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

[ { "docid": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "2875793", "title": "", "text": "opportunity to respond via his objections to the Report and Recommendation, which this Court found unpersuasive. Moreover, this Court fully agrees with the Magistrate Judge’s rationale that “it is particularly appropriate” for the Court to sua sponte recognize a procedural default where, as here, Petitioner went out of his way to argue that state law provided him more protection than corresponding federal law and to urge the state courts to apply only state law to his claim. (Doc. # 94, at 1072-73.) For the foregoing reasons, the Court overrules Petitioner’s objections and agrees with the Magistrate Judge’s Report and Recommendations to deny this claim as waived due to Petitioner’s failure to fairly present the claim to the state courts as a federal claim. Because this Court concludes that Petitioner waived this claim, the Court does not reach the merits and expresses no opinion about the Magistrate Judge’s Report and Recommendations rejecting the claim on the merits. The Court DENIES Petitioner’s first ground for relief as waived. An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)." }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "21947351", "title": "", "text": "molested his niece on the weekend of August 9-11,1997. 7. Petitioner is entitled to relief with respect to the charges at No. 3206 of 1997, and a writ of habeas corpus should issue as to them. 8. Counsel’s error did not deny Petitioner a fair trial with respect to the other crimes charged and, accordingly, Petitioner is not entitled to relief with respect to the remainder of his state court sentence. E. CERTIFICATE OF APPEALA-BILITY Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253(as amended)) codified standards governing the issuance of a certificate of appealability for appellate review of a district court’s disposition of a habeas petition. Amended Section 2253 provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Where the federal district court has rejected a constitutional claim on its merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong...” Szuchon v. Lehman, 273 F.3d 299, 312 (3d Cir.2001) quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). A petitioner meets this standard if he can show that the issue “is debatable among jurists, or that a court could resolve the issue differently, or that the question deserves further proceedings.” McCracken v. Gibson, 268 F.3d 970, 984 (10th Cir.2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific issues satisfy the standard. A certificate of appealability should be denied. III. CONCLUSION Wherefore, on the basis of the foregoing, it is respectfully recommended that the instant petition for writ of habeas corpus be granted at to the charges relating to August 9-11, 1997 only, and dismissed in all other respects. In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file writ ten objections to this Report and Recommendation. Any party opposing the objections shall" }, { "docid": "10631315", "title": "", "text": "counsel. . Section § 848(q)(4)(B) provides that, \"[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys....” 21 U.S.C. § 848(q)(4)(B), repealed by Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192, 232 (2006). . Judge Greenberg dissented, stating that he would have dismissed the appeal. . Judge Greenberg again dissented from the denial of panel rehearing. Michael v. Horn, 414 F.3d 456, 2005 WL 1606069, at *1-8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting). . Judge Greenberg concurred to emphasize that he viewed whatever had happened in the District Court respecting Michael's vacillations as \"beyond the scope of our certificate of appealability.” Michael, 144 Fed.Appx. at 264 (Greenberg, J., concurring). Judge Nygaard dissented because he believed that the June 2 order was correct and, to the extent it was ambiguous, could be supplemented. Id. at 264-65 (Nygaard, J., dissenting). . A COA may issue only upon \"a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a \"district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the District Court has rejected the claims on procedural grounds, the prisoner must establish “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. . It is also well settled that a defendant has a right to waive representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct." }, { "docid": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" }, { "docid": "22217607", "title": "", "text": "psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole. Therefore we cannot conclude that the state court’s decision upholding this denial was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). II. Rosas also contends that he is entitled to habeas relief because his guilty plea was not knowing and voluntary, thereby denying him due process and effective assistance of counsel at sentencing. The district court dismissed this claim as time-barred and later denied Rosas’s request for a certificate of appealability on the issue. Unlike Rosas’s claim for denial of parole, the challenge to his underlying conviction “arises out of process issued by a State court,” and therefore Rosas must obtain a certificate of appealability in order for us to entertain his appeal. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability should issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses the petition on procedural grounds, a certificate of appealability should issue only if the petitioner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Rosas has failed to meet this standard with respect to the district court’s resolution of the statute of limitations issue. The statute of limitations on habeas corpus petitions filed by state prisoners in federal court is one year. 28 U.S.C. § 2244(d)(1). State prisoners like Rosas, whose convictions became final prior to the enactment of this one-year statute of limitations, had until April 24,1997 to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Rosas did not file a petition challenging his sentence until 2000. Moreover, nothing in the record suggests" }, { "docid": "11165303", "title": "", "text": "court’s decision without a COA. Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)). 1. Standard for Granting COA Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). When a district court dismisses a petition on procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.2007). Rather than addressing these two threshold re quirements in order, we may “resolve the issue whose answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485, 120 S.Ct. 1595. 2. Legal Background a. Exhaustion and anticipatory procedural bar A federal court cannot grant a state prisoner’s habeas petition unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a state prisoner must give state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct." }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "11429841", "title": "", "text": "of ap-pealability to include his Apprendi claim. II. Analysis A. Apprendi Claim On appeal of a district court’s decision to grant or to deny an application for writ of habeas corpus, we review all questions of law de novo. Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993). In order to appeal a district court’s ruling on a writ of habeas corpus, an applicant is required to obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1). Because the certificate in this case is limited to only the ineffective assistance claims, we will first address Rodriguez’s petition to expand the certificate to include his claim under Apprendi. “A certificate of appealability may issue [by a district or circuit judge] ... only if the applicant has made a substantial showing of the denial of a constitutional right ... [and the certificate] shall indicate which specific issue or issues satisfy that showing.” 28 U.S.C. § 2253(c); see also Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997). Rodriguez fails to make this showing, and therefore his request to expand the certificate of appealability is denied. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a substantial showing of a denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Here, the district court did not address the substantive issues underlying Rodriguez’s proposed habeas claim under Apprendi, but instead denied his post-judgment motions that sought to raise that claim. When a district court denies a habeas claim on procedural grounds, a circuit court should only expand the certificate to include that claim if a prisoner at least demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim" }, { "docid": "11812487", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL KELLY, JR., Circuit Judge. Petitioner Daniel Dill, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We deny his request for a COA and dismiss the appeal. On October 29, 2003, Mr. Dill was convicted by a jury in Oklahoma state court on five felony counts. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on January 4, 2005. Mr. Dill did not seek a writ of certiorari with the United States Supreme Court. On March 23, 2006, he applied for post-conviction relief in state district court. See Moore v. Gibson, 27 P.3d 483, 484 n. 1 (Okla.Crim.App.2001) (explaining that “an application for post-conviction relief in a non-capital case is always deemed to be timely filed” because there are no applicable time limitations). The motion was denied and that decision was affirmed by the OCCA on February 21, 2007. On April 4, 2007, Mr. Dill submitted his federal habeas petition to prison officials for mailing, and it was filed on April 16, 2007. The district court determined that the petition was time-barred under the one-year limitations period in 28 U.S.C. § 2244(d), and that equitable tolling did not apply. As the district court dismissed the habeas petition on procedural grounds, we may issue a COA only if Mr. Dill makes a substantial showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see 28 U.S.C. § 2253(c)(2). ■ [1] The one-year limitations period for filing a federal habeas petition runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is “final” (and the one-year limitations period begins to" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "15898422", "title": "", "text": "Mills. The Magistrate Judge recommended that the writ be granted on the condition that the Commonwealth either conduct a new sentencing hearing within 120 days or impose life imprisonment. The Commonwealth objected to the recommendation by arguing for the first time that the Mills claim should be denied as procedurally defaulted given Szuchon’s failure to exhaust the claim and the present unavailability of state remedies. The District Court summarily overruled the objections, adopted the Report and Recom- , mendation, granted the writ in accordance with the Magistrate Judge’s recommendation, and denied Szuchon’s remaining claims. The District Court also issued a certificate of appealability but failed to specify the issues on which Szuchon had made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(3) (“The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required .... ”). The Commonwealth timely appealed (C.A. No. 00-9000), and Szuchon timely cross-appealed (C.A. No. 00-9001). II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 2254(a). We have jurisdiction over the Commonwealth’s appeal pursuant to 28 U.S.C. § 1291. As to Szuchon’s cross-appeal, we have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291 over the issues that satisfy the certificate of appealability standard. See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc) (holding that issuance of a certificate of appealability is a jurisdictional requirement). Because the District Court failed to specify the issues for appeal, we will undertake that analysis here. A certificate of appealability may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy, § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Our review is plenary on the merits of the claims over which we have jurisdiction," }, { "docid": "22976813", "title": "", "text": "and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court’s judgment denying habeas relief. II. DISCUSSION Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (“Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997.”). Under AED-PA, a petitioner must first obtain a COA in order for an appellate court to review a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A). 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000). The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 120 S.Ct. at 1604. On the other hand, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "1287410", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Jonathan Lee Roderick, a state prisoner appearing pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to appeal the order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has not established that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we DENY a COA and DISMISS the appeal. I. Background Roderick was convicted in Wyoming state court of felony murder, aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme Court affirmed Roderick’s conviction in 1993, except as to the judgment and sentence, which it modified by vacating a fifteen to twenty-five year term for aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo.1993). Roderick then filed a state court petition for post-conviction relief in 2007. That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed" } ]

[ { "docid": "22807203", "title": "", "text": "States v. Gann, 732 F.2d 714, 722 (9th Cir.1984). The affidavit in this case provided ample reason to believe the items sought were still in Lacy’s apartment. Based on her training and experience as a Customs agent, the affiant explained that collectors and distributors of child pornography value their sexually explicit materials highly, “rarely if ever” dispose of such material, and store it “for long periods” in a secure place, typically in their homes. Cf. United States v. Rabe, 848 F.2d 994, 995-96 (9th Cir.1988). We are unwilling to assume that collectors of child pornography keep their materials indefinitely, but the nature of the crime, as set forth in this affidavit, provided “good reason[ ]” to believe the computerized visual depictions downloaded by Lacy would be present in his apartment when the search was conducted ten months later. See Gann, 732 F.2d at 722; cf. Dozier, 844 F.2d at 707 (long-term nature of marijuana cultivation justified magistrate’s reliance on information that was five months old). Lacy also argues the warrant was too general because it authorized the seizure of his entire computer system. Lacy relies primarily upon United States v. Kow, 58 F.3d 423 (9th Cir.1995), in which we invalidated a warrant authorizing seizure of all the defendant’s computer hardware and software, as well as “essentially all” of its “records ... files, ledgers, and invoices.” See id. at 425. Unlike the affidavit in Kow, the affidavit in this case established probable cause to believe Lacy’s entire computer system was “likely to evidence criminal activity.” See id. at 427. And while the warrant in Kow “contained no limits on which documents within each category could be seized or suggested how they related to specific criminal activity,” id., the Lacy warrant contained objective limits to help officers determine which items they could seize — allowing seizure only of documents linked to BAMSE, for example. Both warrants described the computer equipment itself in generic terms and subjected it to blanket seizure. However, this type of generic classification is acceptable “when a more precise description is not possible,” United States v. Cardwell, 680 F.2d" } ]

[ { "docid": "15435681", "title": "", "text": "establish it. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985)). And “evidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006). The majority similarly errs in taking the district court to task for giving weight to Falso’s prior conviction. The majority chides the district court for its “fallacious inference,” supposedly nowhere supported in the affidavit, that people who sexually abuse children are more likely than others in the general population to collect child pornography. Op. 122-23. The affidavit clearly states, however, that “individuals who exploit children” use computers to “locate, view, download, collect and organize images of child pornography found through the Internet.” Moreover, the district court’s inference of a connection is one that we, too — citing a congressional finding — have in the past seen fit to draw. See United States v. Brand, 467 F.3d 179, 198 (2d Cir.2006) (noting that “possession of child pornography ... shares a connection ... with pedophilia,” and endorsing Congress’s finding that “child pornography is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites, and as a model for sexual acting out with children” (quoting Pub.L. No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996))). Our sister Circuits have act ed similarly. See, e.g., United States v. Lebovitz, 401 F.3d 1263, 1271 (11th Cir.2005) (“Law enforcement investigations have verified that pedophiles almost always collect child pornography or child erotica.” (emphasis added) (quoting S.Rep. No. 104-358, 104th Cong., 2d Sess., at 12-13 (1996))); United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994) (“[C]ommon sense would indicate that a person who is sexually interested in children is likely to also be inclined, i.e., predisposed, to order and receive child pornography.”); see also Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (observing that “evidence suggests that pedophiles use child pornography to seduce other" }, { "docid": "15435680", "title": "", "text": "oral argument the government revealed that it had failed to include information in the affidavit that would have made the substantial-basis determination easier: specifically, that Falso’s email address (along with those of the other individuals) appeared with a corresponding username and password of the type the undercover FBI agent received when he purchased a membership. Nevertheless, the fact that Fal-so’s email address was found on a website containing eleven free images of hardcore child pornography and offering more, for a fee, is probative evidence that Falso visited that website and either signed up or attempted to sign up for a membership. Granted, this evidence is not conclusive. Falso argues that his email could have been on the cpfreedom.com site because “the website intended to send [him] an unsolicited e-mail known as ‘spam,’ ” or because it was otherwise taken from a marketing list. As we have repeatedly said, however, “[t]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause” or the significance of evidence tending to establish it. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985)). And “evidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006). The majority similarly errs in taking the district court to task for giving weight to Falso’s prior conviction. The majority chides the district court for its “fallacious inference,” supposedly nowhere supported in the affidavit, that people who sexually abuse children are more likely than others in the general population to collect child pornography. Op. 122-23. The affidavit clearly states, however, that “individuals who exploit children” use computers to “locate, view, download, collect and organize images of child pornography found through the Internet.” Moreover, the district court’s inference of a connection is one that we, too — citing a congressional finding — have in the past seen fit to draw. See United States v. Brand, 467" }, { "docid": "14248781", "title": "", "text": "website displaying child pornography. This is the sole basis upon which the majority rests its finding of probable cause, and the majority insists that this result is dictated by our case law and that of other circuits. Such an assertion, however, ignores the fact that the instant appeal is materially distinguishable from these prior cases. For example, in United States v. Wafers, 452 F.3d 534 (6th Cir.2006), the affidavit in support of the warrant noted that the defendant had purchased memberships to three child pornography websites and that the defendant’s home IP address was associated with two of those purchases. Id. at 537, 539. Wagers’s repeated purchase of memberships to multiple websites for several months established a pattern of child-pornography association that provided a substantial basis for the magistrate issuing the search warrant to infer that Wagers was a collector of child pornography. The issuing magistrate could further infer that Wagers, as a collector, likely downloaded images and that there was a fair probability that evidence of such downloading would be on his computer. Unlike Wagers, however, Frechette subscribed to only one child-pornography website for only one month. The affidavit contains no indication that Frechette did anything more. A one-time purchase of a one-month membership to one child-pornography website simply does not allow a magistrate to draw the same inferences as the court did in Wagers, nor does Wagers dictate such a result. United States v. Gourde, 440 F.3d 1065 (9th Cir.2006) (en banc), cited in Wagers and by the majority here, is distinguishable on similar grounds. In Gourde, the defendant subscribed to a child-pornography website “from November 2001 until January 2002.” Id. at 1068. Notably, “Gourde never cancelled his membership— the FBI shut down the site at the end of January, while he was still a member.” Id. In explaining what “identifying facts about Gourde ... made it fairly probable that he was a child pornography collector and maintained a collection of child pornography and related evidence,” the affidavit noted, among other facts, that “Gourde remained a member for over two months, although he could have cancelled at any" }, { "docid": "14248770", "title": "", "text": "the search warrant approved was based on an affidavit that included evidence of the defendant’s subscription to a child pornography web site that was purchased thirteen months before the actual search. Id. at 522-23 (citing United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (upholding search for child pornography based on evidence that the defendant subscribed to a similar web site ten months prior to the search)). Moreover, here the agent stated that in his experience evidence of child pornography downloading often remains on a computer for lengthy periods of time. See United States v. Williams, 544 F.3d 683, 686 (6th Cir.2008) (holding that courts may give “considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found” (citing United States v. Bethal, 245 Fed.Appx. 460, 465 (6th Cir.2007))); see also Wagers, 452 F.3d at 540 (“[Evidence that a person has visited or subscribed to web sites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” (citing United States v. Martin, 426 F.3d 68, 77 (2d Cir. 2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004))). 2. The Criminal. The affidavit clearly-established that the defendant was not nomadic. Indeed, all of the evidence indicated the defendant lived in the same house for the entire sixteen months in question. 3. The Thing to be Seized. Unlike cases involving narcotics that are bought, sold, or used, digital images of child pornography can be easily duplicated and kept indefinitely even if they are sold or traded. In short, images of child pornography can have an infinite life span. See United States v. Terry, 522 F.3d 645, 650 n. 2 (6th Cir.2008) (“Images typically persist in some form on a computer hard drive even after the images have been deleted and, as ICE stated in its affidavit, such evidence can often be recovered by forensic examiners.” (citing Lacy, 119 F.3d at 746)). 4. The Place to be Searched. The place to be searched in this case was the defendant’s residence, which is clearly" }, { "docid": "14248780", "title": "", "text": "pornography. . We agree with the dissent that the probable cause analysis should not take into account society's perception of the severity or heinous nature of the crime. The proper inquiry is whether there is a “fair probability” that evidence of the crime — whether it is a crime of copyright infringement, child pornography, or terrorism' — will be found in a particular place. Law enforcement officers and prosecutors— not judges — determine the government's priorities in investigating and prosecuting crime. The role of the judge is to look at whether the government presents enough evidence of a crime to determine if probable cause exists to justify a search. KAREN NELSON MOORE, Circuit Judge, dissenting. I wholly disagree with the radical view of probable cause expressed in the majority opinion — a view far more expansive than any circuit has taken to date — and, for that reason, I must vigorously dissent. The affidavit supporting the warrant in the instant case established a single fact particular to Frechette: Frechette bought a one-month membership to one website displaying child pornography. This is the sole basis upon which the majority rests its finding of probable cause, and the majority insists that this result is dictated by our case law and that of other circuits. Such an assertion, however, ignores the fact that the instant appeal is materially distinguishable from these prior cases. For example, in United States v. Wafers, 452 F.3d 534 (6th Cir.2006), the affidavit in support of the warrant noted that the defendant had purchased memberships to three child pornography websites and that the defendant’s home IP address was associated with two of those purchases. Id. at 537, 539. Wagers’s repeated purchase of memberships to multiple websites for several months established a pattern of child-pornography association that provided a substantial basis for the magistrate issuing the search warrant to infer that Wagers was a collector of child pornography. The issuing magistrate could further infer that Wagers, as a collector, likely downloaded images and that there was a fair probability that evidence of such downloading would be on his computer. Unlike" }, { "docid": "12033367", "title": "", "text": "because the search was in good faith within the meaning of United States v. Leon. We review both of these conclusions de novo. United States v. Kincaide, 145 F.3d 771, 779 (6th Cir.1998). As a general matter, Pauli is correct that an affidavit must allege “facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932). But that principle alone does not demand suppression in this case. Instead, “[t]he expiration of probable cause is determined by the circumstances of each case and depends on the inherent nature of the crime.” United States v. Hython, 443 F.3d 480, 485 (6th Cir.2006) (citing Sgro, 287 U.S. at 210-11, 53 S.Ct. 138). Applying this approach to child pornography, we have reasoned that because the crime is generally carried out in the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006) (“[Ejvidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.”). This approach to staleness in child pornography cases comports with the practice of other circuits. See, e.g., United States v. Martin, 418 F.3d 148, 157 (2d Cir.2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004). Indeed, in a case similar to Pauli’s the Ninth Circuit affirmed the denial of a motion to suppress because “the nature of the crime ... provided good reason to believe the computerized visual depictions [of child pornography] downloaded by [the defendant] would be present in his apartment when the search was conducted ten months later.” United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (internal quotation marks omitted). The affidavit in this case alleged that Pauli subscribed to child pornography websites and that he continued to do so" }, { "docid": "14248774", "title": "", "text": "8 — Van - Street. Evidence that an individual subscribed to child pornography web sites “supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” Wagers, 452 F.3d at 540 (citing Martin, 426 F.3d at 77; Froman, 355 F.3d at 890-91). Moreover, the agents verified that the defendant, a registered sex offender, continued to reside at this address at the time of the search on April 8, 2008. Based on his four years of experience handling child pornography cases, Agent Smith stated in his affidavit that consumers of child pornography usually maintain illegal images using their computers. Further, Agent Smith noted that evidence can remain on the computers even after the viewer deletes the images. Considering all of these facts, there clearly was a “substantial basis” for the magistrate judge to conclude that there was a fair probability that evidence regarding illegal images of child pornography could be found on a computer located at 8 — Van -Street. Thus, the affidavit provided the magistrate judge with a sufficient basis for finding probable cause. The defendant argues that a one-month subscription was not enough to assume that evidence would exist at the residence. But requiring law enforcement to show a two-month or multiple-month subscription before finding probable cause exists would effectively turn the requirement of a fair probability of finding contraband into one of near certainty. Indeed, there is a fair probability that someone who paid for a one-month subscription would use it, whereas a person who pays a second time almost certainly made the determination to pay again after viewing the site. Cf. United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir.2006) (en banc) (“Having paid for multi-month access to a child pornography site, [the defendant] was also stuck with the near certainty that his computer would contain evidence of a crime that he received or downloaded images in violation of § 2252.”). Certainty has no part in a probable cause analysis. See Gates, 462 U.S. at 246, 103 S.Ct. 2317 (holding “probable cause does not demand the certainty we associate with formal trials” but" }, { "docid": "8399357", "title": "", "text": "the desire and ability to convert Polaroid photographs of children to a digital format, which is a common means by which child pornographers distribute and exchange their materials. Id. While the receipt was not the only evidence that supported probable cause, the receipt could be considered despite its age. It was not “stale.” Id. In United States v. Frechette, 583 F.3d 374 (6th Cir.2009), the Sixth Circuit held that information presented to a magistrate judge regarding a suspect’s purchase of a one-month subscription to a child pornography site was not stale though the purchase of the subscription occurred 16 months prior to the search. Id. at 378-79. In reaching this conclusion, the court noted that the crime is generally carried out in the secrecy of the home and over a long period; therefore the same time limitations that apply to more fleeting crimes do not apply to child pornography cases. Id. at 378. In United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997), the Court upheld a search warrant based on information ten months old. The court explained that information is not stale because the affidavit provided ample reason to believe pornography was in Lacey’s apartment. Id. at 745-46; see also United States v. Paull, 551 F.3d 516 (6th Cir.2009) (information that the defendant subscribed to child pornography 13 months earlier was not stale); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir.2008) (holding that “[t]he passage of more than three years from the acquisition of the evidence until the warrant application [did not] renderf ] the evidence stale” in a child pornography case); and United States v. Newsom, 402 F.3d 780, 783 (7th Cir.2005) (“Information a year old is not necessarily stale as a matter of law.”). Accordingly, we find that the district court did not err when it found the information was not stale. Allen also claims there was not probable cause because the photographs of children referenced in the affidavit were not “lascivious” and therefore were not child pornography. The district court applied the factors set forth in United States v. Boudreau, 250 F.3d 279," }, { "docid": "23022142", "title": "", "text": "(and should not inform this Court’s staleness analysis) because the affidavit established no basis for concluding that Vosburgh was a child pornography collector. We disagree. The affidavit described repeated, deliberate attempts to access the Link — which, as the affidavit explained, was advertised as hard core child pornography and posted to an underground website explicitly and exclusively dedicated to such pornography — originating from an apartment in which Vosburgh lived by himself. Under these facts, we cannot say that it was unreasonable for officers to infer that the person responsible for those attempts already possessed some quantity of child pornography. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006) (noting that “evidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” (citing United States v. Martin, 426 F.3d 68, 77 (2d Cir.2005), and United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004))). We do not hold, of course, that information concerning child pornography crimes can never grow stale. We observe only that information concerning such crimes has a relatively long shelf life. It has not been, and should not be, quickly deemed stale. See, e.g., Shields, 458 F.3d at 279 n. 7. See also United States v. Paull, 551 F.3d 516, 522 (6th Cir.2009) (noting that “the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography”). This is especially true where, as here, the crime in question is accomplished through the use of a computer. As the Ninth Circuit observed in one child pornography case, computers have “long memories].” United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir.2006) (en banc); see also United States v. Frechette, 583 F.3d 374, 379 (6th Cir.2009) (“Digital images of child pornography can be easily duplicated and ... even if they are sold or traded .... have an infinite life span.”). Images stored on computers can be retained almost indefinitely, and forensic examiners can often uncover evidence of possession or attempted possession long" }, { "docid": "14248768", "title": "", "text": "Cir.1998) (citing W. LaFave, Search and Seizure § 3.7 (3d ed.1996)). The staleness inquiry depends on the “inherent nature of the crime.” Id. (quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988)). Thus, the court must first focus on whether information that is sixteen-months old is stale. In the drug trade, the answer is usually yes. See United States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir.2005) (“[information of an unknown and undetermined vintage relaying the location of mobile, easily concealed, readily consumable, and highly incriminating narcotics could quickly go stale in the absence of information indicating an ongoing and continuing narcotics operation.”) (citations omitted). That is so because drugs are usually sold and consumed in a prompt fashion. With respect to images of child pornography, however, the answer may be no because the images can have an infinite life span. In analyzing whether information is stale, this court considers the following factors: (1) the character of the crime (chance encounter in the night or regenerating conspiracy?), (2) the criminal (nomadic or entrenched?), (3) the thing to be seized (perishable and easily transferrable or of enduring utility to its holder?), and (4) the place to be searched (mere criminal forum of convenience or secure operational base?). United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir.2006) (citing Spikes, 158 F.3d at 923) (upholding search warrant for evidence of bank fraud when the fraud occurred three years before the warrant application). The application of these factors to the instant case reveals that the information presented to the magistrate judge was not stale. 1. Character of the Crime. As we have explained on multiple occasions, child pornography is not a fleeting crime. And “because the crime [of child pornography] is generally carried out in the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography.” United States v. Paull, 551 F.3d 516, 522 (6th Cir.2009) (citing United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006)). Indeed, in Paull," }, { "docid": "23022141", "title": "", "text": "that a nine-month gap did not render the information stale counsels in favor of the same result here, given the similar “nature of the crime[s]” involved, id., and the fact that the gap here was only four months. We therefore hold that the information in Agent Desy’s affidavit was not stale. As the affidavit explained, and as we have long recognized, persons with an interest in child pornography tend to hoard their materials and retain them for a long time. See, e.g., Shields, 458 F.3d at 279 n. 7 (noting that “collectors of child pornography often store their material and rarely discard it”); Harvey, 2 F.3d at 1322-23 (rejecting staleness claim in part due to recognition that “pedophiles rarely, if ever, dispose of sexually explicit material”). Child pornography is illegal, and therefore difficult and risky to obtain. Presumably, once a child pornography collector gets his hands on such material he will not be quick to discard it. Zimmerman, 277 F.3d at 434. Vosburgh argues that this “hoarding” principle had no place in Agent Desy’s affidavit (and should not inform this Court’s staleness analysis) because the affidavit established no basis for concluding that Vosburgh was a child pornography collector. We disagree. The affidavit described repeated, deliberate attempts to access the Link — which, as the affidavit explained, was advertised as hard core child pornography and posted to an underground website explicitly and exclusively dedicated to such pornography — originating from an apartment in which Vosburgh lived by himself. Under these facts, we cannot say that it was unreasonable for officers to infer that the person responsible for those attempts already possessed some quantity of child pornography. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006) (noting that “evidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” (citing United States v. Martin, 426 F.3d 68, 77 (2d Cir.2005), and United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004))). We do not hold, of course, that information concerning child pornography crimes can" }, { "docid": "12033368", "title": "", "text": "fleeting crimes do not control the staleness inquiry for child pornography. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006) (“[Ejvidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.”). This approach to staleness in child pornography cases comports with the practice of other circuits. See, e.g., United States v. Martin, 418 F.3d 148, 157 (2d Cir.2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004). Indeed, in a case similar to Pauli’s the Ninth Circuit affirmed the denial of a motion to suppress because “the nature of the crime ... provided good reason to believe the computerized visual depictions [of child pornography] downloaded by [the defendant] would be present in his apartment when the search was conducted ten months later.” United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (internal quotation marks omitted). The affidavit in this case alleged that Pauli subscribed to child pornography websites and that he continued to do so over the course of two years. Pauli argues that these allegations are too generalized and remote to provide probable cause against him at the time of the search. But he does not dispute that the affidavit alleges that he was subscribing and downloading images from multiple sites. This makes the habits of similarly situated consumers of child pornography relevant. See Lacy, 119 F.3d at 746 n. 6 (“The affidavit in this case contained sufficient evidence that [the defendant] had downloaded computerized visual depictions of child pornography to provide a foundation for evidence regarding practices of possessors of such pornography.”). For instance, one of the websites to which Pauli subscribed was described as an “online-sharing-community” that was “created specifically for sharing child pornography collections.” The affidavit’s expert description of the barter economy in child pornography provides context for that subscription: Pauli was likely involved in an exchange of images and he therefore is likely to have a large cache of such images in order to facilitate that participation. Moreover, while Pauli last purchased a subscription thirteen" }, { "docid": "14248769", "title": "", "text": "entrenched?), (3) the thing to be seized (perishable and easily transferrable or of enduring utility to its holder?), and (4) the place to be searched (mere criminal forum of convenience or secure operational base?). United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir.2006) (citing Spikes, 158 F.3d at 923) (upholding search warrant for evidence of bank fraud when the fraud occurred three years before the warrant application). The application of these factors to the instant case reveals that the information presented to the magistrate judge was not stale. 1. Character of the Crime. As we have explained on multiple occasions, child pornography is not a fleeting crime. And “because the crime [of child pornography] is generally carried out in the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography.” United States v. Paull, 551 F.3d 516, 522 (6th Cir.2009) (citing United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006)). Indeed, in Paull, the search warrant approved was based on an affidavit that included evidence of the defendant’s subscription to a child pornography web site that was purchased thirteen months before the actual search. Id. at 522-23 (citing United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (upholding search for child pornography based on evidence that the defendant subscribed to a similar web site ten months prior to the search)). Moreover, here the agent stated that in his experience evidence of child pornography downloading often remains on a computer for lengthy periods of time. See United States v. Williams, 544 F.3d 683, 686 (6th Cir.2008) (holding that courts may give “considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found” (citing United States v. Bethal, 245 Fed.Appx. 460, 465 (6th Cir.2007))); see also Wagers, 452 F.3d at 540 (“[Evidence that a person has visited or subscribed to web sites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.”" }, { "docid": "14248772", "title": "", "text": "a “secure operational base.” See Paull, 551 F.3d at 522 (holding that the crime of possession of child pornography “is generally carried out in the secrecy of the home and over a long period” (citing Wagers, 452 F.3d at 540)). All of the Abboud factors indicate that the evidence was not stale in this case. Thus, the magistrate judge was correct to consider the defendant’s subscription when making the probable cause determination. III. The staleness inquiry, however, does not conclude our analysis. The next question is whether the magistrate judge had a substantial basis to conclude that probable cause existed. See United States v. Gardiner, 463 F.3d 445, 470 (6th Cir. 2006) (citations omitted). We conclude the magistrate judge had such a basis. Probable cause for a search warrant exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Berry, 565 F.3d 332, 338 (6th Cir.2009) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). When reviewing a magistrate judge’s probable cause determination, a reviewing court should give great deference to a magistrate judge’s probable cause determination and reverse that decision only if it was arbitrarily made. Terry, 522 F.3d at 647-48 (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc)). The reviewing court “may only look within the four corners of the affidavit.” Abboud, 438 F.3d at 571 (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005)). In other words, the reviewing court may reverse the magistrate judge’s probable cause determination only if it concluded that the affidavit did not set forth a substantial basis for finding probable cause. See Gardiner, 463 F.3d at 470. The warrant here was valid because the affidavit provided the magistrate judge with a substantial basis for finding probable cause. The evidence before the magistrate judge revealed, among other things, that the defendant paid $79.95 to access a commercial child pornography site on January 13, 2007, using an email address and PayPal account connected to his residence at" }, { "docid": "23335747", "title": "", "text": "used to establish probable cause. Marcilis v. Twp. of Redford, 693 F.3d 589, 601 (6th Cir.2012). When evaluating the staleness of information in an affidavit, this Court considers the particular facts of the case, including the nature of the unlawful activity and of the evidence sought, especially whether the evidence “is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched.” United States v. Craig, 861 F.2d 818, 822-23 (5th Cir.1988). Here, we hold that the information in the affidavit was not so stale that it rendered the affidavit a “bare bones” affidavit. In other child pornography cases, this Court and others have found that similarly old information is not stale for establishing probable cause. See United States v. Allen, 625 F.3d 830, 843 (5th Cir.2010); see also United States v. Paull, 551 F.3d 516, 522-23 (6th Cir.2009) (information that the defendant subscribed to child pornography thirteen months earlier was not stale); United States v. Newsom, 402 F.3d 780, 783 (7th Cir.2005) (“Information a year old is not necessarily stale as a matter of law, especially where child pornography is concerned.” (citations omitted)); United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997) (upholding search warrant in pornography case based on ten-month-old information). Relevant to this inquiry is the fact that evidence of child pornography often is found in the secrecy of a defendant’s home and the criminal activity is carried out over a long period. See Allen, 625 F.3d at 843 (citing United States v. Frechette, 583 F.3d 374, 378 (6th Cir.2009)). In addition, Robinson alleges that there was not a sufficient nexus connecting the child-pornography activity to his residence. The requisite nexus between the location to be searched and the evidence sought can be shown by “direct observation” or by “normal inferences as to where the articles sought would be located.” United States v. Payne, 341 F.3d 393, 400 (5th Cir.2003) (citation and internal quotation marks omitted). The issuing judge may “draw reasonable inferences from the material he receives,” and the ultimate determination of the affidavit’s" }, { "docid": "14248773", "title": "", "text": "When reviewing a magistrate judge’s probable cause determination, a reviewing court should give great deference to a magistrate judge’s probable cause determination and reverse that decision only if it was arbitrarily made. Terry, 522 F.3d at 647-48 (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc)). The reviewing court “may only look within the four corners of the affidavit.” Abboud, 438 F.3d at 571 (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005)). In other words, the reviewing court may reverse the magistrate judge’s probable cause determination only if it concluded that the affidavit did not set forth a substantial basis for finding probable cause. See Gardiner, 463 F.3d at 470. The warrant here was valid because the affidavit provided the magistrate judge with a substantial basis for finding probable cause. The evidence before the magistrate judge revealed, among other things, that the defendant paid $79.95 to access a commercial child pornography site on January 13, 2007, using an email address and PayPal account connected to his residence at 8 — Van - Street. Evidence that an individual subscribed to child pornography web sites “supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” Wagers, 452 F.3d at 540 (citing Martin, 426 F.3d at 77; Froman, 355 F.3d at 890-91). Moreover, the agents verified that the defendant, a registered sex offender, continued to reside at this address at the time of the search on April 8, 2008. Based on his four years of experience handling child pornography cases, Agent Smith stated in his affidavit that consumers of child pornography usually maintain illegal images using their computers. Further, Agent Smith noted that evidence can remain on the computers even after the viewer deletes the images. Considering all of these facts, there clearly was a “substantial basis” for the magistrate judge to conclude that there was a fair probability that evidence regarding illegal images of child pornography could be found on a computer located at 8 — Van -Street. Thus, the affidavit provided the magistrate judge with a sufficient basis for finding" }, { "docid": "22280210", "title": "", "text": "see Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317, even though such' a showing was arguably made through the information provided by Goethals. See also United States v. Wagers, 452 F.3d 534, 538-39 (6th Cir.2006) (holding that defendant’s subscriptions to websites containing child pornography but also possibly containing adult pornographic images provided probable cause for a search warrant even though the supporting affidavits did not specifically allege that the defendant had viewed the child pornography on the sites). In this case, the magistrate judge permissibly found a “fair probability” that some of the images in Lapsins’s possession were images of real children. 3. The affidavit set forth a sufficient nexus between the suspected illegal activity and Lapsins’s home Lapsins argues that even if the affidavit established probable cause to believe that he had transmitted images of child pornography over the internet, it did not provide probable cause that such images would be found in his home. While Lap-sins is correct that the mere fact that a person is suspected of a crime does not justify the conclusion that fruits of that crime will be found at his residence, see United States v. McPhearson, 469 F.3d 518, 524-25 (6th Cir.2006) (holding that suspect’s possession of drugs on his person did not provide probable cause to search his home), in this case, the affidavit included information providing a sufficient nexus to Lapsins’s home. As an initial matter, Lapsins does not dispute that ample evidence connected him to the budmanoh69 Yahoo! and AOL screen-names and email address, and established that he lived at the Kingfisher Lane address. Despite Lapsins’s arguments to the contrary, the affidavit also set forth evidence giving rise to a fair probability that images of child pornography transmitted by budmanoh69 would be found in Lapsins’s home, particularly on a home computer. The pictures uploaded by budmanoh69 to the budmanoh69 Yahoo! group on November 14, 2005 originated from an IP address associated with a residential cable modem in the Cincinnati area. See Terry, 522 F.3d at 648 (concluding that where suspect was registered user of AOL account from which" }, { "docid": "8399356", "title": "", "text": "chat sessions discussing the trade of child pornography, the agent believed Allen had a sexual interest in children. The agent went on to say that individuals who have a sexual interest in children or images of children often maintain their collection on a computer and maintain these collections for several years. A number of courts have considered the issue of whether information in a child pornography case is stale for the purposes of determining whether there was probable cause for the issuance of a warrant. In Riccardi, 405 F.3d at 860-61, the Tenth Circuit considered whether a five-year-old Kinko’s receipt found in an envelope with non-pornographic pictures was too stale to support probable cause for the issuance of a search warrant. The court explained that whether information is stale depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. Id. The court went on to say that although the Kinko’s receipt may have been five years old, it showed that the defendant had the desire and ability to convert Polaroid photographs of children to a digital format, which is a common means by which child pornographers distribute and exchange their materials. Id. While the receipt was not the only evidence that supported probable cause, the receipt could be considered despite its age. It was not “stale.” Id. In United States v. Frechette, 583 F.3d 374 (6th Cir.2009), the Sixth Circuit held that information presented to a magistrate judge regarding a suspect’s purchase of a one-month subscription to a child pornography site was not stale though the purchase of the subscription occurred 16 months prior to the search. Id. at 378-79. In reaching this conclusion, the court noted that the crime is generally carried out in the secrecy of the home and over a long period; therefore the same time limitations that apply to more fleeting crimes do not apply to child pornography cases. Id. at 378. In United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997), the Court upheld a search warrant based on information ten months" }, { "docid": "14248771", "title": "", "text": "(citing United States v. Martin, 426 F.3d 68, 77 (2d Cir. 2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004))). 2. The Criminal. The affidavit clearly-established that the defendant was not nomadic. Indeed, all of the evidence indicated the defendant lived in the same house for the entire sixteen months in question. 3. The Thing to be Seized. Unlike cases involving narcotics that are bought, sold, or used, digital images of child pornography can be easily duplicated and kept indefinitely even if they are sold or traded. In short, images of child pornography can have an infinite life span. See United States v. Terry, 522 F.3d 645, 650 n. 2 (6th Cir.2008) (“Images typically persist in some form on a computer hard drive even after the images have been deleted and, as ICE stated in its affidavit, such evidence can often be recovered by forensic examiners.” (citing Lacy, 119 F.3d at 746)). 4. The Place to be Searched. The place to be searched in this case was the defendant’s residence, which is clearly a “secure operational base.” See Paull, 551 F.3d at 522 (holding that the crime of possession of child pornography “is generally carried out in the secrecy of the home and over a long period” (citing Wagers, 452 F.3d at 540)). All of the Abboud factors indicate that the evidence was not stale in this case. Thus, the magistrate judge was correct to consider the defendant’s subscription when making the probable cause determination. III. The staleness inquiry, however, does not conclude our analysis. The next question is whether the magistrate judge had a substantial basis to conclude that probable cause existed. See United States v. Gardiner, 463 F.3d 445, 470 (6th Cir. 2006) (citations omitted). We conclude the magistrate judge had such a basis. Probable cause for a search warrant exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Berry, 565 F.3d 332, 338 (6th Cir.2009) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))." }, { "docid": "23022143", "title": "", "text": "never grow stale. We observe only that information concerning such crimes has a relatively long shelf life. It has not been, and should not be, quickly deemed stale. See, e.g., Shields, 458 F.3d at 279 n. 7. See also United States v. Paull, 551 F.3d 516, 522 (6th Cir.2009) (noting that “the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography”). This is especially true where, as here, the crime in question is accomplished through the use of a computer. As the Ninth Circuit observed in one child pornography case, computers have “long memories].” United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir.2006) (en banc); see also United States v. Frechette, 583 F.3d 374, 379 (6th Cir.2009) (“Digital images of child pornography can be easily duplicated and ... even if they are sold or traded .... have an infinite life span.”). Images stored on computers can be retained almost indefinitely, and forensic examiners can often uncover evidence of possession or attempted possession long after the crime has been completed. See, e.g., Gourde, 440 F.3d at 1071 (crediting statement in affidavit that FBI computer experts can resurrect files from a hard drive even after they have been deleted). The staleness inquiry requires us to consider the “type of evidence” at issue, Zimmerman, 277 F.3d at 434, and we think it obvious that the type of evidence agents sought from Vosburgh’s apartment — computers and/or computer equipment — is not the type of evidence that rapidly dissipates or degrades. Nor is it the type of property that is usually quickly or continuously discarded. Cf. United States v. Ritter, 416 F.3d 256, 270-71 (3d Cir.2005) (Smith, J., concurring in the judgment) (discussing the relevance to staleness of the nature of the evidence and how quickly it might reasonably be expected to be discarded). Therefore, the passage of weeks or months here is less important than it might be in a case involving more fungible or ephemeral evidence, such as small quantities of drugs or stolen music. See id. The magistrate’s task" } ]

[ { "docid": "9493873", "title": "", "text": "rest in proper position on a floor whether carpeted ,or not; (3) a simplicity of construction and material (necessarily hard), which will enable any one to hammer the device, without skill, to the bottom of a chair leg without denting. The sole claim is: “In an article of manufacture, a tip for supporting wooden chairs and the like, adapted for contact with a support therefor, consisting of a continuously curved convex portion of smooth sheet metal having an upturned rim continuously connected to said convex portion around its perimeter, and prongs of said sheet metal integral with said rim, projecting substantially in the plane thereof at the point of attachment, and adapted to be driven by the blows of a hammer into the wood of the article to be supported, said convex portion, rim, and prongs, having a resisting power to the blows of said hammer sufficient to substantially prevent the flattening or breaking thereof, whereby said tips may be attached without malformation or fracture.” In the British patent of Alleyn, the patentee here (filed April 2, 1908, complete specification October 2, 1908, and accepted March 11, 1909), it is apparent that what he believed he had invented was a nail in the shape of a flattened spheroid which would be superior to the old-fashioned castors because the chair would slide more readily and the disc be more or less invisible. Among the fifteen figures, illustrative of his different forms, will be found several which show that the disc has a central shank like any ordinary round-headed nail. Particularly is this evident in Fig. 1, which closely resembles the Thonet chair tip hereinafter to be referred to. The Fig. S shows a tip of similar shape, having rim prongs and representing substantially the “Domes of Silence.” The attachment means figured in the British patent are regarded as equivalent desirable methods of attachment, and no emphasis is laid on the rim-pronged shape which is now the subject of controversy. The disc or castor is necessarily of metal, but no mention is made of the kind of metal to be used. Pronged" } ]

[ { "docid": "3761925", "title": "", "text": "COXE, Circuit Judge. The patent in controversy is for an exceedingly simple anti-friction device designed to take the place 'of castors previously used on the legs of tables, chairs and other similar pieces of furniture. The object of the inventor was to provide a cheap anti-friction bearing device which can be readily and securely attached to any piece of furniture and permits it to slide easily over the surface of a rug, carpet or floor. The tip consists of a drawn sheet metal disk having a smooth, polished, convex surface and an upturned strengthening rim provided with a plurality of integral pointed prongs, adapted to be driven into the leg, or like support, of the piece of furniture in question. The disk, at its perimeter, is bent to form a strengthening rim upon which the leg of the chair or table rests after the prongs have been driven m-to position by three or four blows of a hammer. The rim tends to prevent the blows from fracturing or distorting the continuously curved convex surface of the device. The tips must be made of extremely stiff metal so that there will be no flattening, bending or malformation when they are driven into place by any ordinary hammer. They are much cheaper than the castors in use at the date of the invention, they can be quickly applied by any one having sense enough to drive a nail and they permit the moving of the article of furniture in any 'direction without injuring the carpet, rug or floor on which it rests. The tips are invisible after' being applied and do not perceptibly increase the height of the furniture to which they are attached. The patent has a single claim which sufficiently describes the invention and renders further description thereof unnecessary. It is as follows: “In an article ol manufacture, a tip for supporting wooden chairs and the like, adapted for contact with a support therefor, consisting of a continuously curved convex portion of. smooth sheet metal having an upturned rim continuously connected to said convex portion around its perimeter, and prongs" }, { "docid": "12494785", "title": "", "text": "outer face of said bead portions, said ribs being of the same material as the side walls of said body and being urged into sealing engagement with the rim flanges by the air pressure within said body when the tire is inflated and said ribs in their undistorted shape prior to being pressed against the rim flanges having an outwardly convex, approximately semi-circular cross-section, and relatively thin lining of substantially impervious butyl type rubber composition adherent to and completely covering the inner surface of said body, said lining extending continuously from one bead portion to the other and terminating short of the outer surfaces of said ribs on said bead portions.” Many patents had been filed in the Patent Office covering tubeless tires, as pointed out by the District Judge. Many of these prescribed liners for preventing air from permeating the carcass and many of them prescribed circumferential ribs for sealing the tire against the flanges of the rim. See 147 F.Supp. at pages 79-80. As the function of the sealing ribs was entirely separate and distinct from the function of the liner, it was not invention but mere aggregation to bring the two together to perform their separate functions separately. Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288; Demco v. Doughnut Mach. Corp., 4 Cir., 62 F.2d 23; Hailes v. Van Wormer, 20 Wall. 353, 22 L.Ed. 241; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. And it was not invention to substitute a modern material, butyl, for the rubber lining of the older patents. Goldman v. Polan, 4 Cir., 93 F.2d 797, 799 and cases there cited. One of the patents relied on by defendant, the British Killen patent, No. 329,955, issued in 1930, showed the combination of sealing ribs with an impervious liner, being for a tubeless automobile tire having a leakproof rubber liner and ribs to press against the flanges of the rim. While it does not appear that tires made under this patent entered into commercial use," }, { "docid": "8696233", "title": "", "text": "the tire is inflated and said ribs in their undistorted shape prior to being pressed against the rim flanges having an outwardly convex, approximately semi-circular cross-section, and a relatively thin lining of substantially impervious butyl type rubber composition adherent to and completely covering the inner surface of said body, said lining extending continuously from one bead portion to the other and terminating short of the outer surfaces of said ribs on said bead portions.” The attached exhibit-diagram of plaintiff’s present tubeless tire will be helpful to an understanding of the problems in this case. Plaintiff frankly admits that the Herzegh patent is not broadly for a tubeless tire and could not be, because of the many types of tubeless tires previously patented. As stated by plaintiff’s counsel: “The invention of this claim [19] consists of a tire of ordinary body and sidewall construction on an ordinary wheel rim with flanges, which, when inflated with air, will operate satisfactorily, because of the specific kind of sealing ribs and the specific kind of liner described in the claims.” Again: “ * * * There is no doubt that each feature in the Herzegh combination was known to the art. However, it is clear that the specific arrangement and placement in combination, which he taught and embraced in his claims and which the proof will show has solved factually the obviously difficult problem that confronted tire manufacturers, had never been suggested. Herzegh demonstrated that his specific placement and prescribed relationship of conventional tire, conventional rim, impervious liner and sealing ribs furnished a complete answer to the problem. This produced a new and useful result which had not been previously accomplished.” It is therefore unfortunately necessary to consider in some detail just what are the “specific kind of sealing ribs”; the “specific kind of liner”; and the “specific arrangement and placement in combination” which Herzegh taught. An object of the invention is “to provide a high resistance to diffusion of air into and through the wall of the tire; and to provide this high degree of impermeability” without objectionable heat. A further object of" }, { "docid": "3761931", "title": "", "text": "a patent for a collar button for the reason that the skilled mechanic with his attention specially drawn to the subject, had failed to see, what Krementz afterwards saw, that a button might be made of one continuous sheet of metal, of an improved shape, of increased strength, requiring less material and entirely dispensing with solder. In the Barbed Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 450, 36 L. Ed. 154, the court upheld a patent for a twisted fence wire having the barb “bent at its middle portion about one of the wire wire strands and clamped in position and place by the other wire strand twisted upon its fellow.” In each of these cases the invention was based upon, the finding of a new use or function for structures found in the prior art. Domes, tortional springs, stays for box corners, pasting machines, collar buttons and barbs for fence wires were all. old, but those who found a new place for the old devices whereby alone, or in combination with other structures, entirely new results were produced, received the rewards of the inventor. We think, therefore, that even if it be assumed that the “Domes of Silence” were found in the prior art, as coffin nails or ornaments, that it required an exercise of the inventive faculty to use them as substitutes for castors. It is most unsafe to refuse to rec ognize invention because the device or combination is simple, for such -a rule would destroy some of the most meritorious patents ever issued. The device in question is exceedingly simple, it is a hard metal cylindrical dome with smooth exterior and prongs extending from the encircling rim adapted to be driven into- hard wood by the blows of an ordinary hammer. Attempts along similar lines have been made, but they were all failures. A possible exception may be made of Thonet’s large headed nail, but, as we have seen, his device was not commercially successful and has, apparently, gone out of use. It requires no expert knowledge to perceive that his long shaft" }, { "docid": "9493876", "title": "", "text": "directly into the wood. In the English patent, Eig. 1 would seem to closely resemble, the Thonet. (b) The Berbecker & Rowland chair tips show a slightly more rounded head than the' Thonet with a slightly thicker spindle. The evidence as to consistent manufacture and sale since 1896 in this country is convincing. ‘ There does not seem to be any substantial difference between these tips and the “Domes,” except as to method of attachment; the former by central shank and the latter by rim prongs. 2. Rim-pronged nails and spots used for various purposes: (a) British Baker patent. The patent is entitled “Improvements in nails for coffins, articles of furniture and other uses,” and discloses as its purpose the prevention of detachment of the heads of nails from the shanks. The Baker nail is practically a hemisphere as distinguished from the flattened spheroid of the Domes of Silence. Complainants’ expert emphasizes the V-shapéd ears of the nail referred to in the Baker specification jas indicating that these ears when driven would expand outward, although some of the figures of the patent show the prongs parallel with the rim of the nail, and figure 3 shows that the shape of the ears when driven into the wood is not a V-shape. In affixing the nail- to an article of furniture, Baker states that the head or shell is struck by a hammer “in the usual way,” and in making the nail he takes “a circular blank of sheet metal cut out at a press; the said blank being provided at its' edge with 2, 3, or more V-shaped ears.” We thus have clearly'the suggestion of integral prongs and a hammering presumably without denting. It may be that the Baker patent contemplated an ornamental use, although the specification reads “having an ornamental or other head.” If we stopped here there might be something, to say about the inventive characteristic of complainants’ Domes, but the March design patent for an ornamental rivet was granted as far back as November 22, 1898, and shows substantially the same construction as the Domes. It is" }, { "docid": "17601068", "title": "", "text": "SPARKS, Circuit Judge (after stating the facts as above). The patent in suit, issued August 18,1914, to Hugo Pick, makes one- claim, and it is as follows: “As an article of manufacture, a drinking glass having a suitable wall projecting upwardly from a base portion and terminating in an integral fragile rim of the same general contour and constituting a continuation of said wall, the wall being formed with a shallow bulge arranged below tho rim to leave the usual mouth-engaging portion, but contiguous thereto, and projecting beyond the normal plane of the wall, the bulge being of relatively narrow width and being curved outwardly to present concavo-convex portions terminating in opposite directions vertically in gradual, reverse curvatures, merging into adjoining portions of the wall above and below the bulge to present uninterrupted smooth exterior and interior surfaces devoid of sharp lines or angles, and said bulge being arranged with reference to the mouth of the glass to insure separation of its fragile rim from similar rims of other glasses when grasped in group, to preserve said rim against fracture, substantially as described.” The District Court made findings of fact; and a perusal of the record convinces us that they are fairly supported by a preponderance of all the evidence. Prior to 1925 Libbey was extensively engaged in the manufacture and sale of various kinds of drinking glasses, including those provided with a beaded edge which were sold by it under the name “Safedge.” At that time, and continuously to the present time, Libbey and Pick have been active competitors throughout the United States in the sale of drinking glasses. Prior to 1925 Pick sold a large line of drinking glasses throughout the United States, including tumblers and goblets manufactured and sold by Pick under the patent in suit, Hugo Pick being the patentee of that patent. This line of patent drinking glasses was catalogued and sold by Pick under the trade-name “Nonik,” and a very large sale of those glasses had been developed. On or about January 2, 1925, Pick sold the patent to Libbey, and at or very" }, { "docid": "8696232", "title": "", "text": "of arcuate cross section having a tread portion and outwardly bowed side walls terminating in spaced-apart bead portions adapted to seat on the flanges of an annular rim of straight-side flange construction, the arcuate extent of said body from bead portion to bead portion being such that upon inflation of said body with the bead portions seated on said rim flanges the maximum width of the body lies in a zone intermediate the bead and tread portions thereof and is substantially greater than the bead spacing, means for sealing the joints between the bead portions of said body and the flanges of said rim against the escape of air from within said body when the tire is inflated comprising a plurality of circumferentially continuous ribs molded integrally with said bead portions and extending outwardly from the axially outer face of said bead portions, said ribs being of the same material as the side walls of said body and being urged into sealing engagement with the rim flanges by the air pressure within said body when the tire is inflated and said ribs in their undistorted shape prior to being pressed against the rim flanges having an outwardly convex, approximately semi-circular cross-section, and a relatively thin lining of substantially impervious butyl type rubber composition adherent to and completely covering the inner surface of said body, said lining extending continuously from one bead portion to the other and terminating short of the outer surfaces of said ribs on said bead portions.” The attached exhibit-diagram of plaintiff’s present tubeless tire will be helpful to an understanding of the problems in this case. Plaintiff frankly admits that the Herzegh patent is not broadly for a tubeless tire and could not be, because of the many types of tubeless tires previously patented. As stated by plaintiff’s counsel: “The invention of this claim [19] consists of a tire of ordinary body and sidewall construction on an ordinary wheel rim with flanges, which, when inflated with air, will operate satisfactorily, because of the specific kind of sealing ribs and the specific kind of liner described in the" }, { "docid": "5350567", "title": "", "text": "KERNER, Circuit Judge. This appeal is from a decree dismissing plaintiffs’ suit for infringement of the Steccone patent, Number 2,123,638, issued July 12, 1938, and disclosing a- window squeegee. The District Court held the patent invalid by reason of anticipation or for want of patentable invention in view of the prior art. Accordingly the court rendered judgment for the defendants and the plaintiffs appealed therefrom. A squeegee is a window-washing tool which combines a handle, a rubber wiping blade, and a metal holder for the blade.' It is used by professional window washers in cleansing windows. First the window washer applies a cleaning fluid over the surface of the window and then he removes the fluid by using the squeegee. The device of the patent in suit shows a metal holder with handle projecting therefrom, a single flat rubber blade (having a sharp resilient wiping edge) removably anchored or gripped in the base of the metal holder, and one side of the metal holder curved outwardly to a point just short of the wiping edge of the blade. During use the blade is bent over the convex surface of the curved side of the holder and is there supported in proper wiping relation to the window surface. The patentee claims the following invention: “1. A squeegee comprising a resilient wiper blade, a member adapted to hold said blade, said member having a body portion which contains blade anchoring means and having a non-resilient portion extending from said body portion and terminating in a convex wiping edge supporting portion, the wiper blade being of elongated cross-section and attached at the anchoring portion and extending in the same general direction as the backing portion, and having a side wall facing said backing portion, the end portion of said wall being normally spaced from said supporting portion and so arranged that upon application of wiping force 'to the squeegee the outer portion of said wall will move into engagement with said convex portion and be limited in its movement thereby. “2. A squeegee of the type defined in claim 1, wherein that portion" }, { "docid": "12494784", "title": "", "text": "the sort of wear to which the ribs were subjected. Claim 19 of the patent, which is typical of the claims relied on, is as follows: “19. A one-piece pneumatic tubeless tire comprising an open-bellied hollow annular body of arcuate cross section having a tread portion and outwardly bowed side walls terminating in spaced-apart bead portions adapted to seat on the flanges of an annular rim of straight-side flange construction, the arcuate extent of sa-id body from bead portion to bead portion being such that upon inflation of said body with the bead portions seated on said rim flanges the maximum width of the body lies in a zone intermediate the bead and tread portions thereof and is substantially greater than the bead spacing, means for sealing the joints between the bead portions of said body and the flanges of said rim against the escape of air from within said body when the tire is inflated comprising a plurality of circumferentially continuous ribs molded integrally with said bead portions and extending outwardly from the axially outer face of said bead portions, said ribs being of the same material as the side walls of said body and being urged into sealing engagement with the rim flanges by the air pressure within said body when the tire is inflated and said ribs in their undistorted shape prior to being pressed against the rim flanges having an outwardly convex, approximately semi-circular cross-section, and relatively thin lining of substantially impervious butyl type rubber composition adherent to and completely covering the inner surface of said body, said lining extending continuously from one bead portion to the other and terminating short of the outer surfaces of said ribs on said bead portions.” Many patents had been filed in the Patent Office covering tubeless tires, as pointed out by the District Judge. Many of these prescribed liners for preventing air from permeating the carcass and many of them prescribed circumferential ribs for sealing the tire against the flanges of the rim. See 147 F.Supp. at pages 79-80. As the function of the sealing ribs was entirely separate" }, { "docid": "12768254", "title": "", "text": "to have us consider the District Court’s ruling on the question of infringement and reverse the District Court on its finding that the patent, if valid, was infringed by appellee. Appellant, however, insists that this court has no right to consider that question because appellee made no cross-assignment of error. Under the ruling in Ottenheimer Bros. v. Libuwitz, 4 Cir., 74 F.2d 858, we think this court is authorized to consider that question. Both claims of the patent differ from those that had previously been rejected by the examiner, by specifying a “one-piece flap,” a convex side, and also a thickness at the middle. Claim 1 differs from those previously rejected on Clark by specifying “a smooth fillet at the tire base but not following the outline of the tire section at said base under conditions of inflation;” also that the flap is “adapted to be stretched over the edges of the rim.” Claim 2 differs from those previously rejected on Clark by specifying that the flap “when in an inflated tire does not contact with the bead edge of the tire at the rim on which the tire is mounted,” and by further specifying “a resilient fillet * * * for the tube across the corner between the tire and rim.” It is contended by appellee that its flap does not normally answer the purpose of Wheatley’s claim for a flap “having a sectional contour prior to installation generally the same as- the contour after the installation.” It is conceded, however, that appellant demonstrated this contention, was not sound when using one of appellee’s flaps on a 32 x 6 truck tire mounted on a 6 inch rim. With respect to this demonstration appellee says: “With this specially contrived exhibit he (appellant) did manage somehow to prevent the flap from following down along the beads to any great extent and from changing general cross-sectional contour to the extent of flattening across the base of the rim. This was evidently accomplished, as pointed out by Mr. Kempel, by using an oversize flap, that is to say, a flap an inch" }, { "docid": "12768258", "title": "", "text": "opposite convex side forming a smooth fillet at said tire base but not following the outline of the tire section at said base under conditions of inflation, said flap being relatively thick at the central portion thereof and tapering toward the edges thereof, and adapted to be stretched over the edges of a rim to be inserted between the inner tube and said rim and to extend up on the inner surface of the base portion of said tire. 2. An all-rubber, endless and one-piece tire flap having a sectional contour prior to installation, generally the same as the contour after the installation, said contour comprising a concave surface and a convex surface, the flap being thick at the central portion thereof and tapering at the edges substantially to points, whereby said flap, when in an inflated tire, does not contact with the bead edge of the tire at the rim on which the tire is mounted and whereby a resilient fillet is formed for the tube across the corner between the tire and the rim." }, { "docid": "4176765", "title": "", "text": "HOLLY, District Judge. Plaintiff charges defendant with infringement of his patent No. 1621388, relating to a rubber flap for use on pneumatic tires. In the operation of automobiles and trucks having pneumatic tires the pressure upon the tire causes the inner tube to come into contact with the rim and the tube to be pinched between the bead of the tire and the rim, seriously injuring it. Attempts had been made to correct this condition and plaintiff devised an endless, all rubber tire flap on which the patent above mentioned was granted. The contour of the flap devised by plaintiff is relatively thick at the central portion, concave inwardly and has approximately the same contour after installation ; the convex side opposite the concave portion forms a smooth fillet at the tire base, the flap, so constructed, being “adapted' to protect the inner tube from contact with the rim and from pinching by the tire base”. Defendant denies the validity of the patent and charges that plaintiff has been guilty of such laches that he may not now maintain this action against defendant. As to the validity of the Patent. Plaintiff was not the first to attempt to find a method of protecting the inner tube of a pneumatic tire from injury through contact with the rim of the tire. In 1894 a British patent was granted to one Frank King, a British subject. In his declaration he stated that his invention had for its object the protection of the “air chamber” (inner tube) against abrasion or nipping. He stated that when inflation is carried to a high degree the inner tube is forced into every available crevice with the result that the movement of the flexible portions of the wheel would crush, rip, or tear -portions of the inner tube which were forced into said crevice. He proposed to remedy this condition by means of a stopping of canvas made as nearly as possible to fit the crevices into which the inner tube would otherwise be forced. He then superposed on the canvas, or other material, a piece of" }, { "docid": "3761932", "title": "", "text": "other structures, entirely new results were produced, received the rewards of the inventor. We think, therefore, that even if it be assumed that the “Domes of Silence” were found in the prior art, as coffin nails or ornaments, that it required an exercise of the inventive faculty to use them as substitutes for castors. It is most unsafe to refuse to rec ognize invention because the device or combination is simple, for such -a rule would destroy some of the most meritorious patents ever issued. The device in question is exceedingly simple, it is a hard metal cylindrical dome with smooth exterior and prongs extending from the encircling rim adapted to be driven into- hard wood by the blows of an ordinary hammer. Attempts along similar lines have been made, but they were all failures. A possible exception may be made of Thonet’s large headed nail, but, as we have seen, his device was not commercially successful and has, apparently, gone out of use. It requires no expert knowledge to perceive that his long shaft might split a slender cnair leg and, unless driven with great care and precision, that the periphery of the large head might rest unevenly upon the wood. Alleyn, in our judgment, has made a meritorious invention, he has done what no other worker in the art succeeded in accomplishing. He has produced a castor which departs radically from the old lines. It has no disks like Thonet’s with a single central’shaft, no swivels, no wheels, no glass bearing surface, no screws, no nails, no metal sockets, no elaborate machinery of any kind. Chair legs no longer split, screws no longer drop out, and the services of the cabinet maker are no longer needed. All this is accomplished by a simple hard metal disk with a re-enforcing rim and prongs which can be driven in place by the most inexperienced person. The device, is almost negligible as to cost and never breaks down or. wears out. We cannot resist the conclusion that .to accomplish this result required invention. If additional evidence were needed of the popularity" }, { "docid": "3623346", "title": "", "text": "of hi's invention.” If the patent was valid it must be confined narrowly to the combination described. In No. 19 the defendant’s device is very like that of the plaintiff but differs in at least one particular. The plaintiff’s cone, of crisp, strong, more or less rigid material, is continued in one piece under the rings that give it a rigid support. Its tympanum includes this outer edge. On the other hand, as said by Judge Thacher about another contrivance* “ the defendant’s structure, although it comprises a tympanum support having a circular aperture, does not comprise a tympanum having its outer edge rigidly mounted on said support in said aperture within the meaning of claim 4. Nor does it comprise an annular rim which encircles the conical portion of the tympanum within the meaning of claim 8.” Lektophone Corporation v. Western Electric Co., 20 F. (2d) 150, 154. The defendant’s tympanum is only the paper cone, distinct from the rim. The rim is máde of limp leather. In view of the importance attached to this element in the plaintiff’s patent it is impossible to say that it is infringed. To quote again from the last cited case, “to hold that the defendant’s device comprises ‘ a tympanum rigidly supported at its periphery’ within the meaning of the claims is to construe the claims contrary to the plain import of their terms.” Ibid. There are other questions that would have to be answered before the plaintiff could prevail, such as the difference in size, argued in this case, 27 F. (2d) 758, 760; s. c. on appeal, 34 F. (2d) 764, 773; the size being regarded by Hopkins as of the essence of his invention. But we think the matter too plain to need more words. The same conclusion applies to the second case where the rim is made of cloth. Decree in No. 19 affirmed. Decree in No. 68 reversed. The Chief Justice took no part in the decision of these cases." }, { "docid": "3761926", "title": "", "text": "the device. The tips must be made of extremely stiff metal so that there will be no flattening, bending or malformation when they are driven into place by any ordinary hammer. They are much cheaper than the castors in use at the date of the invention, they can be quickly applied by any one having sense enough to drive a nail and they permit the moving of the article of furniture in any 'direction without injuring the carpet, rug or floor on which it rests. The tips are invisible after' being applied and do not perceptibly increase the height of the furniture to which they are attached. The patent has a single claim which sufficiently describes the invention and renders further description thereof unnecessary. It is as follows: “In an article ol manufacture, a tip for supporting wooden chairs and the like, adapted for contact with a support therefor, consisting of a continuously curved convex portion of. smooth sheet metal having an upturned rim continuously connected to said convex portion around its perimeter, and prongs of said sheet metal integral with said rim, projecting substantially in the plane thereof at the point of attachment, and adapted to be driven by the blows of a hammer into the wood of the article to be supported, said convex portion, rim and prongs, having a resisting power to the blows of said hammer sufficient to substantially prevent the flattening or breaking thereof, whereby said tips may be attached without malformation or fracture.” The main attack -upon the Alleyn patent is based upon the proposition that if the defendant has succeeded in proving that the Alleyn tip is found in the prior art, though in different environment, and applied to entirely different uses, the patent is anticipated or rendered invalid ' for lack of invention. The prior art shows- similar constructions but none of them capable of being used as a castor for furniture. Similar devices, though smaller, lighter and with a much more pronounced “dome,” were used as “spots” or ornaments for Mexican saddles, harness and other like purposes. Coffin nails were similarly" }, { "docid": "17601075", "title": "", "text": "that broad statement is due to the fact that patentee failed to amend it. to consist with the elaim which was finally allowed. He cannot go beyond what he has claimed and insist that his patent covers something not claimed merely because it is to be found in the descriptive part of the specification. Lehigh Valley Railroad Co. v. Mellon, 104 U. S. 112, 26 L. Ed. 639. The claim in the patent is the measure of the invention, and, while the specification may be referred to to explain\" any ambiguity in the elaim, it cannot be referred to for the purpose of expanding of changing the claim. National Enameling & Stamping Co. v. New England Enameling Co. (C. C. A.) 151 F. 19; Keystone Bridge Co. v. Phœnix Iron Co., 95 U. S. 274, 24 L. Ed. 344; McClain v. Ortmayer, 141 U. S. 419, 12 S. Ct. 76, 35 L. Ed. 800. It is quite apparent from the rejected claims that the Examiner was not willing to approve any claim which applied to all of the numerous forms of drinking glasses in general use, and did not do so, because as to most of those forms patentee’s original elaims, and the substituted elaims which were rejected, were old in the art. Por those reasons the present claim was so limited as to describe and specify the constituents of a straight-side tumbler with an annular convex bulge joined above and below to wall portions which are in continuation of each other, and in which the edge of the rim is protected by that bulge and without constriction in the rim itself. Eliminating the annular groove* which is the chief characteristic of the “Dur-Nok” products, no one of the articles complained of can be fairly said to infringe the patent in suit, for each is very much older in the art than is the “Nonik” product, and we fail to see how the insertion of the groove in those various products ean in any manner of form or effect be reasonably claimed to constitute an infringement of the patent in" }, { "docid": "3761927", "title": "", "text": "of said sheet metal integral with said rim, projecting substantially in the plane thereof at the point of attachment, and adapted to be driven by the blows of a hammer into the wood of the article to be supported, said convex portion, rim and prongs, having a resisting power to the blows of said hammer sufficient to substantially prevent the flattening or breaking thereof, whereby said tips may be attached without malformation or fracture.” The main attack -upon the Alleyn patent is based upon the proposition that if the defendant has succeeded in proving that the Alleyn tip is found in the prior art, though in different environment, and applied to entirely different uses, the patent is anticipated or rendered invalid ' for lack of invention. The prior art shows- similar constructions but none of them capable of being used as a castor for furniture. Similar devices, though smaller, lighter and with a much more pronounced “dome,” were used as “spots” or ornaments for Mexican saddles, harness and other like purposes. Coffin nails were similarly constructed and “spots” were used on the bottom of traveling bags to keep them from being soiled when set down upon a wet or dirty station platform. None of these things could be used to do the work of the “Domes of Silence,” by which euphonic but somewhat ambitious name the owners of the Alleyn patent designate their product. No one ever attempted, prior to Alleyn, to use such a structure as a substitute for castors. Of course, in making-this statement, we do not overlook the “Thonet Furniture Tip,” which consisted of a nail with a smooth round head and a long central-shaft adapted to be driven into the leg's of the chair or table like an ordinary large headed nail. This device was never commercially successful and if, -as the ..defendant contends, it be equally serviceable as that of the patent in suit the question at once arises, why does not the defendant use it? The fact that the defendant persists in using the Alleyn device and is willing to take the very serious" }, { "docid": "12768257", "title": "", "text": "Johnston v. Davenport Brick & Tile Co., D.C., 237 F. 668. There was further evidence that appellee’s flap was identical with the flaps manufactured by appellee from 1922 to 1928. Furthermore, appellee’s advertising extolled the result of the filleting function of the Wheatley improved flap as he had explained it to Kempel in 1924. Under these circumstances, we think that appellee is not in a position to deny infringement. See Gibbs v. Triumph Trap Co., 2 Cir., 26 F.2d 312. Our conclusion in this respect is further supported by the relations of these parties and their statements and dealings with each other, and we are convinced that the court was not in error in holding that appellee’s structure infringed the patent if valid. Decree affirmed. 1. An all-rubber, endless and onepieee tire flap having a sectional contour prior to installation, generally the same as the contour after the installation, adapted to protect the inner tube from contact with the rim and from pinching by the tire base, said contour comprising a concave section having an opposite convex side forming a smooth fillet at said tire base but not following the outline of the tire section at said base under conditions of inflation, said flap being relatively thick at the central portion thereof and tapering toward the edges thereof, and adapted to be stretched over the edges of a rim to be inserted between the inner tube and said rim and to extend up on the inner surface of the base portion of said tire. 2. An all-rubber, endless and one-piece tire flap having a sectional contour prior to installation, generally the same as the contour after the installation, said contour comprising a concave surface and a convex surface, the flap being thick at the central portion thereof and tapering at the edges substantially to points, whereby said flap, when in an inflated tire, does not contact with the bead edge of the tire at the rim on which the tire is mounted and whereby a resilient fillet is formed for the tube across the corner between the tire and the" }, { "docid": "22551468", "title": "", "text": "securing members rigidly connected to the rim and each having an inner portion seating on the periphery of the vertical portion of the brakedrum and engaging the rearwardly dished portion near its outer edge, bolts carried by the drum and extending through the inner portions of the securing members, and nuts screwed on said bolts and clamping said inner portions against the drum. “8. A wheel comprising a brakedrum, a tire-carrying rim, a plurality of pressed metal securing members rigidly connected to the rim, the inner portion of each member engaging the brakedrum at radially spaced points and being spaced from the drum between- such points, bolts extending through the drum and the inner portions of said members at the parts of the latter which are spaced from the drum, and nuts screwed on the bolts and engaging said securing members.” “10. A wheel comprising a brakedrum, a tire-carrying rim, a plurality of pressed metal securing members rigidly connected to the rim, the inner portion of each member engaging the brakedrum at radially spaced points and being spaced from the dram between such points, bolts extending through the drum and the inner portions of said members at the parts of the latter which are spaced from the drum, and nuts screwed on the bolts and having convex faces engaging concave recesses in said securing members.” The Examiner held that the affidavit was insufficient to meet the conditions of said rule 75, and that therefore the Putnam reference was still available. In coming to this conclusion, the Examiner called attention to the fact that the part of said affidavit which referred to certain sketches bearing date in February, 1924, was applicable only, by the terms of said affidavit, to the showings of the patent No. 3,628,626, of May 10, 1927, and that that portion of the affidavit referring to appellant’s present application bore date as of July 3 6, 1924, a date approximately three months after Putnam’s application -was filed on April 7,-1924. These circumstances, therefore, were taken by the Examiner as not a compliance with the provisions of said rule" }, { "docid": "9493877", "title": "", "text": "some of the figures of the patent show the prongs parallel with the rim of the nail, and figure 3 shows that the shape of the ears when driven into the wood is not a V-shape. In affixing the nail- to an article of furniture, Baker states that the head or shell is struck by a hammer “in the usual way,” and in making the nail he takes “a circular blank of sheet metal cut out at a press; the said blank being provided at its' edge with 2, 3, or more V-shaped ears.” We thus have clearly'the suggestion of integral prongs and a hammering presumably without denting. It may be that the Baker patent contemplated an ornamental use, although the specification reads “having an ornamental or other head.” If we stopped here there might be something, to say about the inventive characteristic of complainants’ Domes, but the March design patent for an ornamental rivet was granted as far back as November 22, 1898, and shows substantially the same construction as the Domes. It is true that the Domes have three prongs, but there is. nothing either in the claim or the specifica-' tion to indicate that more than two prongs are necessary in the manufacture of a device which follows the Alleyn patent. In the specification, reference is made to “a plurality of integral pointed prongs” and in the claim to “prongs.” The March United States Patent (No. 29,699) is owned by Standard Rivet Company, apparently a substantial concern which has been manufacturing “spots” for many years' under this patent. All of these “spots” consist of a hollow flattened spheroid with rim prongs, and all sizes are made in two shapes, one more rounded and the other slightly flattened, known, respectively, as the “crown heads” and the “flat heads,” the latter of which closely resemble, if indeed they do not correspond to, the shape and configuration shown in the drawing of the Alleyn patent and to the shape of the Domes manufactured thereunder. These spots are used on dog collars, saddles, and, as the catalogue of the Standard Rivet" } ]

[ { "docid": "7192133", "title": "", "text": "owed and requesting 26 sets of documents did not offer reasons for their dispute and thus was not a qualified written request under section 2605(e)(1)(B)); MorEquity, Inc. v. Naeem, 118 F.Supp.2d 885, 900-01 (N.D.Ill.2000) (letter seeking information about the validity of a loan and mortgage documents but making no inquiry as to the account balance or credit for periodic payments did not relate to “servicing” and was thus not a qualified written request). By GMAC Mortgage’s argument, a lender would have no obligation to respond to a borrower who expressed her belief that her account was in error but was unable to provide specific reasons for that belief, an untenable result under the language of the statute. RESPA does not require any magic language before a servicer must construe a written communication from a borrower as a qualified written request and respond accordingly. The language of the provision is broad and clear. To be a qualified written request, a written correspondence must reasonably identify the borrower and account and must “include a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B) (emphasis added). Any reasonably stated written request for account information can be a qualified written request. To the extent that a borrower is able to provide reasons for a belief that the account is in error, the borrower should provide them, but any request for information made with sufficient detail is enough under RESPA to be a qualified written request and thus to trigger the servicer’s obligations to respond. See 12 U.S.C. § 2605(e)(1)(A), (e)(2), and (e)(3); see also Garcia v. Wachovia Mortgage Corp., 676 F.Supp.2d 895, 909 (C.D.Cal.2009) (when construed in light most favorable to borrower, letter was a qualified written request even though it did not contain a statement of reasons for borrower’s belief of error; letter provided sufficient detail regarding “other information” being sought); Rawlings v. Dovenmuehle Mortgage, Inc., 64 F.Supp.2d 1156, 1162 (M.D.Ala.1999) (plaintiffs’ claims survived" } ]

[ { "docid": "13428659", "title": "", "text": "U.S.C. § 2605, § 2607, or § 2608] may be brought in the United States district court or in any other court of competent jurisdiction, for the district in which the property involved is located, or where the violation is alleged to have occurred, within 3 years in the case of a violation of section 6 [12 U.S.C. § 2605] and 1 year in the case of a violation of section 8 or 9 [12 U.S.C. § 2607 or § 2608] from the date of the occurrence of the violation.” 12 U.S.C. § 2614. Again, Plaintiffs refinanced on February 7, 2007 but did not file suit until May 21, 2009, well more than one year later. In the opposition, Plaintiffs do not address this issue. Plaintiffs’ RESPA claim under 12 U.S.C. § 2607 is dismissed. As with the TILA monetary damages cause of action, leave to amend is futile since no equitable tolling argument can be made. 2. Qualified Written Request Plaintiffs allege that by letter dated December 9, 2008, “Plaintiffs also enclosed and sent to the Defendant AURORA, the RE SPA Qualified Written Request (QWR).... Defendant Aurora failed to respond to the letter.” Doc. 20, FAC, at 8:22-25. Under RESPA, “a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(b). “If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days.” 12 U.S.C. § 2605(e)(1)(a). “Whoever fails to comply with any provision of this section shall be liable to the borrower for" }, { "docid": "19122799", "title": "", "text": "by defendants ADSI and Deutsche, plaintiff has not pled a claim against them, and thus, the fraud claims against them are likewise dismissed. Plaintiffs claim against T.D., while pleading the time and place of the alleged misrepresentation, nonetheless fails to allege the identity of the parties to the alleged misrepresentation, mainly who made the statement(s) on behalf of T.D. The court further notes, as described below, that to the extent that plaintiffs claim relies on defendants’ possession of the note prior to foreclosure, this court recently decided that California law does not impose a requirement of production or possession of the note prior to foreclosure, and sees no reason to depart from this reasoning. Champlaie v. BAC Home Loans Serv., 706 F.Supp.2d 1029, 1047-51 (E.D.Cal.2009). Thus, plaintiffs fraud claim is dismissed without prejudice as to all moving defendants. C. Real Estate Settlement Procedures Act Plaintiff argues that AHMSI has violated the Real Estate Settlement Procedures Act (RE SPA) by failing to meet its disclosure requirements and failing to respond to a QWR. FAC ¶¶ 90-91. Defendant AHMSI argues that plaintiff has failed to attach the alleged QWR or to allege its full contents and that any QWR must inquire as to the account balance and relate to servicing of the loan, while plaintiff’s alleged QWR was nothing more than a request for documents. 12 U.S.C. § 2605(e)(1) defines a QWR as written correspondence that identifies the name and account of the borrower and includes a statement of reasons the borrower believes the account is in error or provides sufficient detail regarding other information sought. Here, plaintiff alleges that its communication with AHMSI identified plaintiffs name and loan number and included a statement of reasons for plaintiffs belief that the loan was in error. FAC ¶ 91. This is a sufficient allegation of a violation of 12 U.S.C. § 2605(e). Further, a plaintiff need not attach a QWR to a complaint to plead a violation of RESPA for failure to respond to a QWR. AHMSI also argues that plaintiff must factually demonstrate that written correspondence inquired as to the status of" }, { "docid": "11168299", "title": "", "text": "loss. No Private Right Of Action For Disclosure Violations The RESPA claim accuses Wilshire of failure to provide RESPA disclosures. Defendants note the absence of a private right of action to support such allegation. RE SPA’s purpose is to “curb abusive settlement practices in the real estate industry. Such amorphous goals, however, do not translate into a legislative intent to create a private right of action.” Bloom v. Martin, 865 F.Supp. 1377, 1385 (N.D.Cal.1994), aff'd, 77 F.3d 318 (1996). “The structure of RESPA’s various statutory provisions indicates that Congress did not intend to create a private right of action for disclosure violations under 12 U.S.C. § 2603 ... Congress did not intend to provide a private remedy ...” Bloom, 865 F.Supp. at 1384. Defendants correctly point out the absence of a private right of action for RES-PA disclosure violations to doom the RES-PA claim to the extent it is based on disclosure violations. Absence Of Pecuniary Loss The RESPA claim asserts that Wilshire failed to respond properly to Mr. Saldate’s qualified written request (“QWR”). Defendants fault the RESPA claim’s failure to support an actionable 12 U.S.C. § 2605 violation in the absence of allegations of Mr. Saldate’s pecuniary loss. Under RESPA, a QWR is a “written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan.” 12 U.S.C. § 2605(e)(1)(A). Among other things, a QWR must include a “statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(l)(B)(ii). Defendants note the RE SPA claim’s conclusory allegation that Mr. Sáldate “has suffered and continues to suffer damages” fails to support an actionable violation under 12 U.S.C. 2605. “Whoever fails to comply with this section shall be liable to the borrower ... [for] any actual damages to the borrower as a result of the failure ...” 12 U.S.C. § 2605(f)(1)(A). “However, alleging a breach of RE SPA duties alone does not state a claim under" }, { "docid": "13428660", "title": "", "text": "to the Defendant AURORA, the RE SPA Qualified Written Request (QWR).... Defendant Aurora failed to respond to the letter.” Doc. 20, FAC, at 8:22-25. Under RESPA, “a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(b). “If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days.” 12 U.S.C. § 2605(e)(1)(a). “Whoever fails to comply with any provision of this section shall be liable to the borrower for each such failure.” 12 U.S.C. § 2605(f). First, Plaintiffs do not allege that a QWR was ever sent to Greenpoint. Second, RE SPA does not require loan originators to respond to QWRs. Plaintiffs state “Defendant GREENPOINT Mortgage was the originating lender and may be considered a functional creditor or alternatively, is a Servicer strictly for administrative purposes subject to the Real Estate Settlement Procedures Act.” Doc. 20, FAC, at 3:23-25. “The term ‘servicer’ means the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan).” 12 U.S.C. § 2605(i)(2). “The term ‘servicing’ means receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 10 [12 U.S.C. § 2609], and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” 12 U.S.C. § 2605(i)(3). Plaintiffs state that “Defendant AURORA" }, { "docid": "19122800", "title": "", "text": "Defendant AHMSI argues that plaintiff has failed to attach the alleged QWR or to allege its full contents and that any QWR must inquire as to the account balance and relate to servicing of the loan, while plaintiff’s alleged QWR was nothing more than a request for documents. 12 U.S.C. § 2605(e)(1) defines a QWR as written correspondence that identifies the name and account of the borrower and includes a statement of reasons the borrower believes the account is in error or provides sufficient detail regarding other information sought. Here, plaintiff alleges that its communication with AHMSI identified plaintiffs name and loan number and included a statement of reasons for plaintiffs belief that the loan was in error. FAC ¶ 91. This is a sufficient allegation of a violation of 12 U.S.C. § 2605(e). Further, a plaintiff need not attach a QWR to a complaint to plead a violation of RESPA for failure to respond to a QWR. AHMSI also argues that plaintiff must factually demonstrate that written correspondence inquired as to the status of his account balance and related to servicing of the loan, citing MorEquity, Inc. v. Naeem, 118 F.Supp.2d 885 (N.D.Ill.2000). This case held that allegations of a forged deed and irregularity with respect to recording did not relate to servicing as it is defined in 12 U.S.C. Section 2605(i)(S), and that only servicers are required to respond to a QWR under 12 U.S.C. Section 2605(e)(1)(A). MorEquity, 118 F.Supp.2d at 901. Section 2605(i)(3) defines servicing as the “receiving [of] any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making [of] the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” AHMSI does not contend that it is not a servicer but rather argues that the purported QWR here did not relate to servicing because it was merely a request for documents. However, 12 U.S.C. Section 2605(e)(1)(A) requires only that" }, { "docid": "18140859", "title": "", "text": "if applicable, before taking any action with respect to the inquiry of the borrower, the servicer shall- (C) after conducting-an investigation, provide the borrower with a written explanation or clarification that includes- (i) information requested by the borrower or an explanation of why e information requested is unavailable or cannot-be obtained by the servicer; and (ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower. 12 U.S.C. § 2605(e)(1)(A), (e)(1)(B)® & (ii), & (e)(2)(C)® & (ii). An individual prevailing on a claim that the above-quoted provisions of RESPA were violated is entitled to: (A) any actual damages to the borrower as a result of the failure; and (B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000. 12 U.S.C. § 2605(f)(1)(A) & (B). Here, construed in the light most favorable to Plaintiff, Exhibit 9 is a Qualified Written Request. A “qualified written request” is a written correspondence that enables the servicer to identify the name and account of the borrower and contains a statement of the reasons for the borrower’s belief that the account is in error, or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C. § 2605(e)(1)(B) (emphasis added). Exhibit 9 clearly indicates who the borrower is and provides the account number from the Note. Additionally, while the letter does not appear to contain a statement of the reasons for the borrower’s belief that the account is in error, construed in the light most favorable to Plaintiff it provides sufficient detail regarding “other information” sought by the borrower. See In re Thorian, 387 B.R. 50, 70 (D.Idaho, 2008) (interpreting the terms “inquiry” and “request” as used in RESPA to mean “a ‘request for information’ ” and “the ‘act or instance of asking for something,’ ” respectively, and concluding that a QWR must “allege an account error or seek some information from the loan servicer”)." }, { "docid": "20103931", "title": "", "text": "request from the borrower for information relating to the servicing of such loan, the servicer must provide a written response acknowledging the receipt of the correspondence within 20 days unless the action requested is taken within such period. See 12 U.S.C. § 2605(e)(1)(A). Additionally, the RESPA requires the servicer to take corrective action within 60 days of receiving the qualified written request, including crediting any late charges or penalties or conducting an investigation and providing the borrower with a written explanation of the reasons for the action and the name and telephone number of an employee of the servicer to whom the borrower can direct any further inquiry on the matter. Id. § 2605(e)(1)(B). A plaintiff must allege actual damages resulting from a violation of § 2605. Id. § 2605(f)(1)(A); see also Caballero v. Wells Fargo Bank, N.A., 2011 WL 6039953, at *2 (N.D.Tex. July 25, 2011). Section 2605 defines a qualified written request as “a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, ... that includes, or otherwise enables the servicer to identify, the name and account of the borrower; and [that] ... includes a statement of the reasons for the borrower’s belief, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B). The qualified written request must be related to the servicing of the loan. Id. § 2605(e)(1)(A). “Servicing” includes “any scheduled periodic payments from a borrower” or the “making of ... payments of principal and interest----” Id. § 2605(i)(3). Plaintiff fails to sufficiently allege a communication meeting the requirements of a qualified written request. She claims that she sent Defendant a letter requesting documents, disputing the amount of the alleged debt, and requesting confirmation that Defendant was a holder in due course of a wet ink original promissory note and deed of trust (doc. 6 at 9.) She does not allege, however, that the correspondence included information that enabled Defendant to identify the name and account of the borrower, that" }, { "docid": "8353291", "title": "", "text": "the usual money lender, or that Countrywide and MERS, in their respective capacities as servicer and nominee of the trust, actively participated in the financed enterprise “beyond the usual practices associated with the lending business,” Wong, 2009 WL 5113516 at *6. There are no special circumstances alleged. Under the facts pled, Defendants owed Plaintiff no duty of care. There is no basis for the negligence claim. The moving Defendants’ motions to dismiss are GRANTED, and the negligence claim is DISMISSED WITH LEAVE TO AMEND. D. RESPA Claim 1. Countrywide Plaintiff asserts a RESPA claim against Countrywide, alleging that “Defendant Countrywide violated RESPA, 12 U.S.C. § 2605(e)(2), by failing and refusing to provide a proper written explanation or response to Plaintiffs QWR.” (Doc. 14 at 15.) Countrywide argues that this RES-PA claim is subject to dismissal because the complaint does not allege facts showing that what Plaintiff sent to Countrywide constitutes a “qualified written request”, under RESPA. Countrywide contends that Plaintiff alleges, in conclusory fashion, that he sent a “Qualified Written Request” to Countrywide without alleging any facts to support this legal characterization of the document. .Countrywide is correct. Section 2605 imposes certain disclosure obligations on loan servicers who transfer or assume the servicing of a federally related mortgage loan. 12 U.S.C. § 2605(b). A loan servicer also has a statutory duty to respond to a borrower’s inquiry or “qualified written request.” . 12 U.S.C. §' 2605(e). More specifically, § 2605(e)(1)(A) requires a loan servicer “who receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan” to provide the borrower with a written acknowledgment of receipt within twenty days. A “qualified written request” is a “written correspondence” that (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for borrower’s belief that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. § 2605(e)(l)(B)(i)-(ii). The term “servicing” means “receiving any scheduled periodic payments from a" }, { "docid": "11168300", "title": "", "text": "fault the RESPA claim’s failure to support an actionable 12 U.S.C. § 2605 violation in the absence of allegations of Mr. Saldate’s pecuniary loss. Under RESPA, a QWR is a “written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan.” 12 U.S.C. § 2605(e)(1)(A). Among other things, a QWR must include a “statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(l)(B)(ii). Defendants note the RE SPA claim’s conclusory allegation that Mr. Sáldate “has suffered and continues to suffer damages” fails to support an actionable violation under 12 U.S.C. 2605. “Whoever fails to comply with this section shall be liable to the borrower ... [for] any actual damages to the borrower as a result of the failure ...” 12 U.S.C. § 2605(f)(1)(A). “However, alleging a breach of RE SPA duties alone does not state a claim under RESPA. Plaintiffs must, at a minimum, also allege that the breach resulted in actual damages.” Hutchinson v. Delaware Sav. Bank FSB, 410 F.Supp.2d 374, 383 (D.N.J.2006). A purported RESPA claim fails to allege pecuniary loss from Wilshire’s failure to respond to a QWR. Such omission is fatal to the claim’s mere reliance on a RESPA violation. The RESPA claim is doomed in the absence of allegations of Mr. Saldate’s identifiable damages attributable to a RE SPA violation. Limitations Period Defendants challenge the RESPA claim as time barred under the three-year limitations period of 12 U.S.C. § 2614 to seek damages for 12 U.S.C. § 2605 violations. Defendants note that more than three years have passed since the November 2005 completion of Mr. Saldate’s loan. The complaint lacks allegations to avoid the three-year limitations period to further doom the RESPA claim against Wilshire. Fraud The complaint’s (sixth) fraud claim alleges that Wilshire misrepresented “the right to collect monies from Plaintiff on its behalf or on behalf of others when Defendant Wilshire had no legal right to" }, { "docid": "18140857", "title": "", "text": "the RESPA claims are time-barred. It is clear from the face of the FAC and the facts properly before the court at this juncture that Plaintiff has missed the one-year statute of limitations, as to Plaintiffs Section 2607 claims, and they are time-barred. Plaintiff alleges in the FAC the mortgage transaction closed on or about February 21, 2008. Plaintiff filed this lawsuit on June 2, 2009. Thus, the claim under Section 2607 is DISMISSED WITHOUT PREJUDICE. 2) Claim, under RESPA Section 2605 Plaintiff also alleges violation of Section 2605, for failure to respond to a RESPA Qualified Written Request. (See FAC, ¶ 73; Exhibit 9.) This claim is subject to a three-year statute of limitations (see 12 U.S.C. § 2614) and is not time-barred. However, Defendant also asserts: 1) that Plaintiff has not alleged any damages resulting from the violation of Section 2605; and 2) that the alleged Qualified Written Request does not meet the statutory definition in any event. The provisions of RESPA at issue provide in relevant part: (1) Notice of receipt of inquiry (A)In general If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days ... unless the action requested is taken within such period. (B) Qualified written request For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that- (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. (2) Action with respect to inquiry Not later than 60 days ... after the receipt from any borrower of any qualified written request under paragraph (1) and," }, { "docid": "18241742", "title": "", "text": "to disclose the layers of parties receiving money in connection with the mortgage, as well as the ‘Yield Spread Premium, defined and found in the contracts and documents within the Soundview Home Loan Trust 2007-OPTIC agreements filed with the SEC.” (Docket Entry No. 1, ¶¶44, 45). Section 2605 of RESPA requires a loan servicer to provide a written response to a borrower’s qualified written request. 12 U.S.C. § 2605(e). This section of RESPA is intended to provide borrowers with greater access to account information. See id. § 2601(a). The request must be: 1) a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer; 2) that includes, or otherwise enables the servicer to identify, the name and account of the borrower; and 3) that includes a statement of the reasons for the borrower’s belief, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. Id. § 2605(e)(1)(B). The qualified written request must be related to the servicing of the loan. See id. § 2605(e)(1)(A). “Servicing” includes “any scheduled periodic payments from a borrower” or the “making of ... payments of principal and interest ....” Id. § 2605(i)(3). Finally, a plaintiff must allege actual damages resulting from a violation of § 2605. Id. § 2605(f)(1)(A) (“Whoever fails to comply with any provision of this section shall be liable to the borrower for each such failure in the following amounts: in the case of any action by an individual, an amount equal to the sum of ... any actual damages to the borrower as a result of the failure.”); Collier v. Wells Fargo Home Mortg., No. 7:04-CV-086-K, 2006 WL 1464170, at *3 (N.D.Tex. May 26, 2006); Hepler v. Washington Mut. Bank, F.A., No. CV 07-4804 CAS (Ex.), 2009 WL 1045470, at *4-5 (C.D.Cal. Apr. 17, 2009). Bittinger’s complaint does not allege any basis for a claim under this section of the RESPA. This claim is dismissed. Because it is not clear that leave to amend would be futile, the dismissal is" }, { "docid": "19122801", "title": "", "text": "his account balance and related to servicing of the loan, citing MorEquity, Inc. v. Naeem, 118 F.Supp.2d 885 (N.D.Ill.2000). This case held that allegations of a forged deed and irregularity with respect to recording did not relate to servicing as it is defined in 12 U.S.C. Section 2605(i)(S), and that only servicers are required to respond to a QWR under 12 U.S.C. Section 2605(e)(1)(A). MorEquity, 118 F.Supp.2d at 901. Section 2605(i)(3) defines servicing as the “receiving [of] any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making [of] the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” AHMSI does not contend that it is not a servicer but rather argues that the purported QWR here did not relate to servicing because it was merely a request for documents. However, 12 U.S.C. Section 2605(e)(1)(A) requires only that a QWR be received by a servicer, enable the servicer to identify the name and account of the borrower, and include a statement of reasons for the borrower’s belief that the account is in error or provide sufficient detail regarding other information sought. Here, plaintiff allegedly stated reasons for believing the account was in error and AHMSI does not contest that it was the servicer of plaintiffs loan, distinguishing this case from MorEquity. Accordingly, plaintiff has stated a claim against AHMSI for violation of RE SPA in failing to respond to a QWR. Plaintiff also alleges that AHMSI violated RESPA by failing to provide notice to plaintiff of the assignment, sale, or transfer of servicing rights to plaintiffs loan. FAC ¶89. Notice by the transferor to the borrower is required by 12 U.S.C. Section 2605(b). AHMSI counters that plaintiff has failed to allege that servicing rights were actually transferred, that plaintiff is not even certain which defendant was actually servicer at any given time, and plaintiffs allegations that AHMSI is responsible for responding to a" }, { "docid": "4898785", "title": "", "text": "for a borrower is the servicer of the loan or mortgage. These servicers are required under Section 6 of RESPA, which is codified at 12 U.S.C. § 2605, to disclose pertinent information, or to evidence correction of pertinent errors, in writing to borrowers. See generally Roth v. CitiMortgage Inc., 756 F.3d 178, 181 (2d Cir. 2014) (per curiam); Friedman v. Maspeth Fed. Loan & Sav. Ass’n, 30 F.Supp.3d 183, 189 (E.D.N.Y. 2014) (citations omitted). Prior to Dodd-Frank, the principal method for a borrower to obtain information from a ser-vicer was through a “qualified written request” (“QWR”) for “information relating to [ ] servicing.” 12 U.S.C. § 2605(e)(1)(A). RESPA defines a QWR as: [A] written correspondence, other than notice on a payment coupon or other payment medium supplied by the servi-cei’, that— (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C. § 2605(e)(1)(B). “Servicing,” in turn, is defined as “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” Id. § 2605(i)(3). “If a[] servicer of a federally related mortgage loan receives a” QWR for servicing information from a borrower or an agent of the borrower, it is required to “provide a written response acknowledging receipt of the correspondence within 5 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period.” 12 U.S.C. § 2605(e)(1)(A). Within 30 days of receipt of that QWR, the servicer is obligated to: (A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and" }, { "docid": "16806374", "title": "", "text": "the loan must provide the borrower written notification of its status as assignee, 12 U.S.C. § 2605(c)(1). In particular, such notice must be given within fifteen days after the transfer. Id. § 2605(c)(2)(A). Plaintiffs’ allegation that they were not given notice 15 days prior to the transfer implicates the unnamed assignor, not BAC — the transferee. Accordingly, Plaintiffs fail to state a claim under 12 U.S.C. § 2605(c) against BAC as its notice requirements were triggered after the transfer of the loan to BAC. Plaintiffs’ RE SPA claim brought pursuant to 12 U.S.C. § 2605(c) is DISMISSED WITH PREJUDICE. As to Plaintiffs’ second claim under RESPA, Plaintiffs allege that BAC “failed to give an accounting of all payments when requested (See Exhibit “C”).” Am. Compl. at 3. As done in the February Order, the court interprets this allegation as alleging a failure by BAC to respond to Plaintiffs’ purported “qualified written request” in violation of 12 U.S.C. § 2605(e)(1)(A). Section 2605(e)(1)(A) of RESPA requires a loan servicer, upon receipt of a borrower’s qualified written request (“QWR”), to provide a written response acknowledging receipt of the correspondence within 20 days and to take certain action with respect to the borrower’s inquiries within sixty days of receipt. 12 U.S.C. § 2605(e)(1)(A), (2). The action required includes providing information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer, conducting an investigation of the borrower’s concerns, providing an explanation or clarification of the reasons the servicer believes the account is correct and, if necessary, making appropriate corrections to the borrower’s account. Id. § 2605(e)(2)(B) & (C). A borrower may recover “actual damages” if the loan servicer fails to comply with these provisions. Id. § 2605(f)(1)(A). Here, Plaintiffs include as an exhibit to the amended complaint a document entitled “Qualified Written Request” dated March 19, 2010. Ex. A [DE-15.1], A fair reading of this document, however, leads the court to conclude that it served as a communication challenging the validity of the loan and not a communication relating to the servicing of the" }, { "docid": "7192131", "title": "", "text": "the October 6, November 15, December 2 and December 9 qualified written requests. RESPA defines a qualified written request as follows: For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that— (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C. § 2605(e)(1)(B). GMAC Mortgage argues that the letters in question were not qualified written requests because the letters “do not identify an error in plaintiffs’ account or provide any statement of the reasons plaintiffs believe their account was in error.” GMAC Mortgage Br. 16. Relying on several district court decisions, GMAC Mortgage contends that letters that “merely dispute a debt or request information are not ‘qualified written requests,’ and do not trigger the obligations under section 2605.” Id., citing Moore v. Federal Deposit Ins. Corp., 2009 WL 4405538, at *4 (N.D.Ill. Nov.30, 2009) (plaintiffs’ letters requesting information regarding reinstatement of a defaulted mortgage loan and the amounts of delinquent mortgage payments due did not relate to “servicing” and thus were not qualified written requests), Champlaie v. BAC Home Loans Servicing, LP, 706 F.Supp.2d 1029, 1042-43 (E.D.Cal.2009) (plaintiffs’ claim that lender failed to respond in violation of RESPA was dismissed because plaintiff did not allege that his written request for rescission of the loan related to the servicing of his loan and thus his communication was not a qualified written request), Keen v. American Home Mortgage Servicing, 664 F.Supp.2d 1086, 1097 (E.D.Cal.2009) (plaintiffs demand to cancel trustee’s sale of home and for rescission disputed the validity of the loan but did not dispute the servicing of the loan and was not a qualified written request), Pettie v. Saxon Mortgage Services, 2009 WL 1325947, at *2 (W.D.Wash. May 12, 2009) (plaintiffs’ “inquiry letter” disputing amount" }, { "docid": "20404609", "title": "", "text": "borrower. See 12 U.S.C. § 2605(e). RESPA defines a QWR as follows: [A] qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that— (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C. § 2605(e)(1)(B). Plaintiffs’ Amended Complaint identifies the QWR at issue as their February 3, 2011, letter to Sterling Edmunds, Jr., President and CEO, SunTrust Mortgage, Inc. (Doc. # 18 at ¶ 26, Ex. K). Section 2605(e) of RESPA requires a loan servicer to provide a written response to a borrower’s QWR within 20 days and take any necessary action within 60 days. 12 U.S.C. § 2605(e). Under RESPA, a loan servicer that fails to adequately respond to a QWR “shall be liable to the borrower for each such failure in ... an amount equal to the sum of any actual damages to the borrower as a result of the failure....” 12 U.S.C. § 2605(f)(1)(A). To succeed on a claim under § 2605(e), Plaintiffs must show: (1) that Defendant is a servicer; (2) that Defendant received a QWR from the borrower; (3) that the QWR related to the servicing of the loan; (4) that Defendant failed to respond adequately; and (5) that Plaintiffs are entitled to actual or statutory damages. 12 U.S.C. § 2605(e); Frazile v. EMC Mortg. Corp., 382 Fed.Appx. 833, 836 (11th Cir.2010) (holding that a damages allegation “is a necessary element of any claim under § 2605”). Assuming the February 3, 2011 letter was a valid QWR, it only requested the following information: • How can SunTrust agree to forbearance and at the same time foreclose on my house? • How can my house that is involved in Toxic Chinese Drywall Litigation be considered for foreclosure when both Fannie and Freddie say that it should" }, { "docid": "20404608", "title": "", "text": "credit card was reduced. (Doc. # 18-1 Ex. G). However, as of January 29, 2011, Mr. Buckentin’s Experian Credit file stated that he had “no late payments” and his file contained no “accounts listed as negative” and no “accounts in collections.” (Doc. # 42-8, Ex. 0). Plaintiffs identify the alleged false publications as occurring on January 29, February 5, and February 12, 2011. (Doc. # 48 at 14). These publications post-date the alleged “special damages” that Plaintiffs claim resulted from the alleged false publications. Plaintiffs have identified no other special damages. Therefore, Plaintiffs have failed to present substantial evidence establishing the sixth element of their slander of title claim. Because Plaintiffs Slander of Title claim fails on at least two essential elements, Defendant is entitled to summary judgment on this claim. J. Plaintiffs Have Failed to Establish their RESPA Claim (Count Ten) The Real Estate Settlement Procedures Act (“RESPA”) sets forth the procedures that a loan servicer must follow, and certain actions that it must take, upon receiving a qualified written request (“QWR”) from a borrower. See 12 U.S.C. § 2605(e). RESPA defines a QWR as follows: [A] qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that— (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C. § 2605(e)(1)(B). Plaintiffs’ Amended Complaint identifies the QWR at issue as their February 3, 2011, letter to Sterling Edmunds, Jr., President and CEO, SunTrust Mortgage, Inc. (Doc. # 18 at ¶ 26, Ex. K). Section 2605(e) of RESPA requires a loan servicer to provide a written response to a borrower’s QWR within 20 days and take any necessary action within 60 days. 12 U.S.C. § 2605(e). Under RESPA, a loan servicer that fails to adequately respond to a QWR “shall be liable" }, { "docid": "20103932", "title": "", "text": "includes, or otherwise enables the servicer to identify, the name and account of the borrower; and [that] ... includes a statement of the reasons for the borrower’s belief, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B). The qualified written request must be related to the servicing of the loan. Id. § 2605(e)(1)(A). “Servicing” includes “any scheduled periodic payments from a borrower” or the “making of ... payments of principal and interest----” Id. § 2605(i)(3). Plaintiff fails to sufficiently allege a communication meeting the requirements of a qualified written request. She claims that she sent Defendant a letter requesting documents, disputing the amount of the alleged debt, and requesting confirmation that Defendant was a holder in due course of a wet ink original promissory note and deed of trust (doc. 6 at 9.) She does not allege, however, that the correspondence included information that enabled Defendant to identify the name and account of the borrower, that it included a statement of reasons for the belief that the account was in error, or that it provided Defendant sufficient detail about the information sought. Nor has Plaintiff alleged any facts giving rise to a reasonable inference that she suffered actual damages from the alleged violation of the RESPA. She has therefore faded to sufficiently state a claim for relief under § 2605(e) of the RESPA. See Akintunji v. Chase Home Fin., L.L.C., 2011 WL 2470709, at *2-3 (S.D.Tex. Jun. 20, 2011) (dismissing RESPA claim where plaintiff failed to allege actual damages); Hill v. Wells Fargo Bank, NA, 2011 WL 5869730, at *3 (N.D.Tex. Nov. 17, 2011) (dismissing claim under § 2605(e) where plaintiffs failed to sufficiently allege that they sent a communication meeting the requirements of a qualified written request and failed to make any allegation from which the court could conclude that they suffered loss or damages as a result of defendant’s failure, if any, to respond to any written requests from plaintiffs). B. Notice of Assignment, Sale, or Transfer Section 2605" }, { "docid": "18140860", "title": "", "text": "Written Request. A “qualified written request” is a written correspondence that enables the servicer to identify the name and account of the borrower and contains a statement of the reasons for the borrower’s belief that the account is in error, or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C. § 2605(e)(1)(B) (emphasis added). Exhibit 9 clearly indicates who the borrower is and provides the account number from the Note. Additionally, while the letter does not appear to contain a statement of the reasons for the borrower’s belief that the account is in error, construed in the light most favorable to Plaintiff it provides sufficient detail regarding “other information” sought by the borrower. See In re Thorian, 387 B.R. 50, 70 (D.Idaho, 2008) (interpreting the terms “inquiry” and “request” as used in RESPA to mean “a ‘request for information’ ” and “the ‘act or instance of asking for something,’ ” respectively, and concluding that a QWR must “allege an account error or seek some information from the loan servicer”). Indeed, it appears to request a vast amount of information. However, even construed in the light most favorable to Plaintiff, she has failed to allege damages under Section 2605. Notably, Plaintiff does explicitly alleges damages arising from the time-barred Section 2607 claim. (See FAC, ¶¶ 71-72 & 74.) With regard to Section 2605, however, Plaintiff first alleges “Damages may be awarded to the borrower for failure to respond to the RE SPA QWR.” (FAC, ¶ 73.). That is not a factual allegation of damage to Plaintiff; it is a conclusory statement of law. Second, Plaintiff alleges that the failure to respond to the Qualified Written Request, on its own, establishes enough facts to state a claim for damages under Section 2605(f)(1)(B) based on a “a pattern or practice of noncompliance with the requirements of this section.” However, almost as a matter of definition, a single failure to respond to a Qualified Written Request does not state a claim for a “pattern or practice” of doing so. No other damage allegations in the FAC are incorporated" }, { "docid": "529623", "title": "", "text": "Ogles allege the following violation of the Real Estate Settlement Procedures Act, 12 U.S.C. 2601, et seq. (“RES-PA”): BAC and Carlisle failed, within 60 days of receiving the Ogles’ “qualified written request” (“QWR”), to identify the beneficiary of the Ogles’ payments and respond to their dispute in response. BAC and Carlisle argue that the Ogles have failed to state a RESPA claim because they fail to properly allege damages, all of their requests were timely responded to, and the QWR was correctly responded to as required by RESPA. RESPA imposes certain duties on loan servicers. For example, § 2605 requires a loan servicer to take certain steps in response to a borrower’s QWR for information relating to the servicing of a loan. 12 U.S.C. § 2605(e). When a loan servicer violates § 2605, the borrower is entitled to “any actual damages to the borrower as a result of the failure” and “any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of [§ 2605].” 12 U.S.C. § 2605(f)(1). However, a plaintiff borrower, who cannot show actual damages as required by § 2605(f), fails to state a claim under RESPA as a matter of law. See, e.g., Ford v. New Century Mortgage Corp., 797 F.Supp.2d 862, 870 (N.D.Ohio 2011). Therefore, to withstand a Rule 12(b)(6) motion, the borrower must allege actual damages arising from the violation. Id. The Ogles fail to state a claim under RESPA because they do not sufficiently plead damages. Although they generally state they are entitled to damages, they fail to allege how they suffered actual damages from any alleged breach of a duty under RESPA. Therefore, BAC and Car-lisle are entitled to judgment on the pleadings on the Ogles’ claim under RE SPA. d. Violation of the Truth in Lending Act The Ogles allege that BAC and Carlisle violated the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq., by “failing to send a written notice to [Ogles] within 30 days after [Ogles’] mortgage loan was allegedly sold or otherwise transferred.” (Counterclaim at" } ]

[ { "docid": "22699714", "title": "", "text": "335, 347 (1872). Besides protecting the finality of judgments or discouraging inappropriate collateral attacks, the Bradley Court concluded, judicial immunity also protected judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants. Id., at 348. In the years since Bradley was decided, this Court has not been quick to find that federal legislation was meant to diminish the traditional common-law protections extended to the judicial process. See, e. g., Pierson v. Ray, 386 U. S. 547 (1967). On the contrary, these protections have been held to extend to Executive Branch officials who perform quasi-judicial functions, see Butz v. Economou, supra, at 513-514, or who perform prosecutorial functions that are “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 430 (1976). The common law’s rationale for these decisions — freeing the judicial process of harassment or intimidation — has been thought to require absolute immunity even for advocates and witnesses. See Briscoe v. LaHue, 460 U. S. 325 (1983); Butz v. Economou, 438 U. S., at 512. One can reasonably wonder whether judges, who have been primarily responsible for developing the law of official immunities, are not inevitably more sensitive to the ill effects that vexatious lawsuits can have on the judicial function than they are to similar dangers in other contexts. Cf. id., at 528, n. (Rehnquist, J., concurring in part and dissenting in part). Although Congress has not undertaken to cut back the judicial immunities recognized by this Court, we should be at least as cautious in extending those immunities as we have been when dealing with officials whose peculiar problems we know less well than our own. At the same time, we cannot pretend that we are writing on a clean slate or that we should ignore compelling reasons that may well justify broader protections for judges than for some other officials. The purposes served by judicial immunity from liability in damages have been variously described. In Bradley v. Fisher, supra, at 348, and again in Pierson v. Ray, supra, at 554, the Court emphasized that the nature" } ]

[ { "docid": "22281100", "title": "", "text": "Court has been “quite sparing” in its recognition of absolute immunity. Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). We also note that the Supreme Court directs a “functional” approach to immunity issues, id., and requires the official seeking absolute immunity to bear the burden of showing it is justified for the function in question, see Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). With this guidance, we conclude that the alternative argument of the DA’s Office that Carter’s section 1983 claims should have been dismissed due to absolute prose-cutorial immunity lacks merit, because Carter does not complain about conduct on the part of the DA’s Office in the course of his prosecution. See Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors are immune from suit under section 1983 for “initiating and pursuing a criminal prosecution”). None of the cases cited by the DA’s Office extends this prosecutorial immunity to administrative, rather than pros-ecutorial, conduct. Rather, as we have previously explained, “prosecutors are subject to varying levels of official immunity” and absolute prosecutorial immunity attaches only to “actions performed in a ‘quasi-judicial’ role”, such as participation in court proceedings and other conduct “intimately associated with the judicial phases” of litigation. Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir.1994) (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984). “By contrast, a prosecutor acting in an investigative or administrative capacity is protected only by qualified immunity.” Id. (citing Imbler, 424 U.S. at 430-31, 96 S.Ct. 984; Burns, 500 U.S. at 483-84 n. 2, 111 S.Ct. 1934). Qualified immunity protects official action “if the officer’s behavior was ‘objectively reasonable’ in light of the constitutional rights affected.” Id. If Carter succeeds in establishing that the DA’s Office defendants acted with deliberate indifference to constitutional rights - as Carter must in order to recover under section 1983- then a fortiori their conduct was not objectively reasonable. V. FAILURE TO STATE A CLAIM UNDER SECTION 1983 As the District Court observed, the standard for personal liability under" }, { "docid": "22683778", "title": "", "text": "consequences to himself.” Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1871). Recognizing these considerations, courts have extended the protections of absolute immunity to qualifying state officials sued under 42 U.S.C. § 1983. Miller v. Gammie, 335 F.3d 889, 895-96 (9th Cir.2003) (explaining that though § 1983 does not include a defense of immunity, “the Supreme Court has recognized that when Congress enacted § 1983, it was aware of a well-established and well-understood common-law tradition that extended absolute immunity to individuals performing functions necessary to the judicial process” (citing Forrester v. White, 484 U.S. 219, 225-26, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (superseded by statute))); Buckley v. Fitzsimmons, 509 U.S. 259, 268-69, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Indeed, judicial immunity from § 1983 suits is “viewed as necessary to protect the judicial process.” Burns v. Reed, 500 U.S. 478, 485, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Likewise, the protections of absolute immunity accorded prosecutors reflect the “ ‘concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required- by his public trust.’ ” Id. (quoting Imbler, 424 U.S. at 423, 96 S.Ct. 984). Under certain circumstances, absolute immunity, is also extended to agency representatives performing functions analogous to those of a prosecutor or a judge. Miller, 335 F.3d at 898. Such immunity assures the independent functioning of executive officials acting in a quasi-judicial capacity, thereby ensuring that they can exercise their adjudicative discretion without fear of intimidation or harassment. Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). We determine whether the protections of absolute immunity are accorded to an agency whose functions are sufficiently -similar to the judicial process using the “functional approach.” Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (citing Harlou) v. Fitzgerald, 457 U.S. 800, 810, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). We must consider whether the actions taken by the official are “functionally" }, { "docid": "22690349", "title": "", "text": "L.Ed.2d 555 (1988); Imbler v. Pachtman, 424 U.S. 409, 418-24, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Thus, it was presumed that if Congress had wished to abrogate common-law immunity, it would have done so expressly. Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The Supreme Court in Imbler laid down an approach that granted state actors absolute immunity only for those functions that were critical to the judicial process itself. See Imbler, 424 U.S. at 430, 96 S.Ct. 984; see also Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). At common law, judges, prosecutors, trial witnesses, and jurors were absolutely immune for such critical' functions. See Burns, 500 U.S. at 490, 111 S.Ct. 1934 (quoting Lord Mansfield in King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772) (“[Njeither party, witness, counsel, jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.”)). Imbler also settled the general scope and rationale of a prosecutor’s immunity. Only in “initiating a prosecution and in presenting the State’s case” is the prosecutor absolutely immune. Imbler, 424 U.S. at 431, 96 S.Ct. 984. That is because the prosecutor often must make “decisions that, could engender colorable claims of constitutional deprivation” upon short notice and with poor information. Id. at 425, 96 S.Ct. 984. Exposing a prosecutor, years and many cases later, to civil damages for a particular prosecutorial decision could impose intolerable burdens on the prosecutor and unduly hamper the prosecutor’s performance. Id. at 425-26, 96 S.Ct. 984. There are protections from abuse despite this broad grant of immunity. The duties of the trial judge, and the adversarial and appellate processes, are designed to prevent many potential violations of constitutional rights. See Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Our court has recognized that family-service social workers, like appellant Gam-mie in this case, appear to perform some functions similar to those of" }, { "docid": "22590922", "title": "", "text": "meant to incorporate the common law immunities then available, or would have explicitly provided otherwise. Imbler v. Pachtman, 424 U.S. 409, 417-18, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Malley v. Briggs, 475 U.S. 335, 339-40, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Thus, determination of absolute immunity under § 1983 is not a policy determination, but involves a historical exercise. Malley, 475 U.S. at 339-40, 106 S.Ct. 1092; Imbler, 424 U.S. at 418, 421, 96 S.Ct. 984; Buckley, 509 U.S. at 268, 113 S.Ct. 2606. The Supreme Court has interpreted § 1983 to give absolute immunity to functions “intimately associated with the judicial phase of the criminal process.” Malley, 475 U.S. at 342, 106 S.Ct. 1092 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984). Witnesses are granted absolute immunity for their testimony during trials, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and during grand jury proceedings. Strength v. Hubert, 854 F.2d 421 (11th Cir.1988). Judicial and quasi-judicial officers also enjoy absolute immunity. Imbler, 424 U.S. at 420-21, 96 S.Ct. 984. Likewise, prosecutors enjoy absolute immunity for the initiation and pursuit of criminal prosecution. Id. at 431, 96 S.Ct. 984. A prosecutor is absolutely immune from suit for malicious prosecution. Malley, 475 U.S. at 342-43, 106 S.Ct. 1092. Prosecutors also enjoy absolute immunity for appearances before the court, such as examining a witness and presenting evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate. Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Such absolute immunity extends to a prosecutor’s “acts undertaken ... in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606; Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir.1999). Police officers enjoy the" }, { "docid": "7119307", "title": "", "text": "Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). In Buckley, the Court was faced with determining whether a prosecutor was absolutely immune from liability on claims of fabricating evidence during the preliminary investigation of a crime, and for making false statements at a press conference announcing the return of an indictment in relation to the murder of an eleven year-old girl. Id. at 261, 113 S.Ct. 2606. Preliminarily, the Supreme Court recognized that 18 U.S.C. section 1983 provides qualified immunity for public officials, such that those officials will not be subject to liability “for the performance of their discretionary functions when ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id. at 268, 113 S.Ct. 2606 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Court went on to recognize, however, that certain officials who perform “special functions” are entitled to absolute immunity for those functions, though the burden is upon the official seeking absolute immunity to show that “such immunity is justified for the function in question.” Id. at 269, 113 S.Ct. 2606 (quoting Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). The Court recognized that there exists a rule of absolute immunity for conduct of prosecutors for conduct “intimately associated with the judicial phase of the criminal process.” Id. at 270, 113 S.Ct. 2606 (citing Imbler v. Pachtman, 424 U.S. 409, 424, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Thus, a prosecutor is absolutely immune from liability “in initiating a prosecution and in presenting the State’s case.” Id. at 270, 113 S.Ct. 2606 (citing Imbler, 424 U.S. at 431, 96 S.Ct. 984). With regard to the defamation allegation against the Buckley prosecutor, wherein the prosecutor allegedly made false and prejudicial statements against the suspect, the Supreme Court found that the statements were not entitled to absolute immunity: “Comments to the media have no functional tie to the judicial process just because they are made by a prosecutor. At" }, { "docid": "18927804", "title": "", "text": "state law deprives another person of his civil rights. By its sweeping terms, § 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v. Pachtman, 424 U.S. at 417, 96 S.Ct. at 988. Nevertheless, the Supreme Court has determined that Congress did not intend to “abolish wholesale all common-law immunities” when it enacted § 1983. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). The Court has consistently recognized that immunities may limit the availability of relief in section 1983 litigation. Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 2825, 81 L.Ed.2d 758 (1984), Imbler v. Pachtman, 424 U.S. at 417-19, 96 S.Ct. at 988-989. The Supreme Court has recognized two types of immunity defenses: absolute and qualified. Absolute immunity is accorded to government officials who perform judicial or quasi-judicial functions. These officials must be “intimately associated” with the judicial process. Id., 424 U.S. at 430-32,96 S.Ct. at 994-96. Absolute immunity shields such public officials from § 1983 liability as long as they act within the scope of their duties. For example, courts protect legislators in their legislative functions, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)); judges in their judicial functions, (Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)); prosecutors in their adjudicative functions, (Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)), and the President of the United States, {Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982)). Courts grant absolute immunity because it is essential to protect the official’s special or adjudicative function. Butz v. Economou, 438 U.S. 478, 508-17, 98 S.Ct. 2894, 2911-16, 57 L.Ed.2d 895 (1978); Imbler v. Pachtman, 424 U.S. at 435, 96 S.Ct. at 997. Public officials also have a qualified or “good-faith” immunity, which provides protection to certain public officers for “decisions made in the good-faith exercise of their professional responsibilities.” Sellars v. Procunier, 641 F.2d 1295, 1300 (9th Cir.1981). Courts grant public officials varying degrees of qualified immunity, “the" }, { "docid": "23631264", "title": "", "text": "or immunities secured by the Constitution and laws,” the Supreme Court has recognized that § 1983 was not meant “to abolish wholesale all common-law immunities.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). To that end, the Court has identified two kinds of immunities under § 1983: qualified immunity and absolute immunity. Most public officials are entitled only to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). However, for public officials who perform “special functions,” Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Court has determined that absolute immunity is appropriate because it is “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (quotation marks and citation omitted). “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). In Imbler, the Supreme Court held that state prosecutors are absolutely immune from liability under § 1983 for actions performed in a quasi-judicial role. See 424 U.S. at 431, 96 S.Ct. 984. This immunity extends to acts that are “intimately associated with the judicial phase of the criminal process,” such as “initiating a prosecution and ... presenting the State’s case.” Id. at 430-31, 96 S.Ct. 984. The Supreme Court has noted numerous public policy considerations underlying its extension of absolute immunity to prosecutors: [Sjuits against prosecutors for initiating and conducting prosecutions “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate”; lawsuits would divert prosecutors’ attention and energy away from their important duty of enforcing the criminal law; prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity; and potential liability “would" }, { "docid": "1970574", "title": "", "text": "Helzer’s conduct too narrowly and read Roe too broadly. A. Absolute Prosecutorial Immunity Prosecutors are absolutely immune from liability under § 1983 for their conduct insofar as it is “intimately associated” with the judicial phase of the criminal process. See Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)); Miller v. Gammie, 335 F.3d 889, 897 (9th Cir.2003) (en banc) (“[T]o enjoy absolute immunity for a particular action, the official must be performing a duty functionally comparable to one for which officials were rendered immune at common law.”). However, when prosecutors per form administrative or investigative functions, only qualified immunity is available. See Buckley v. Fitzsimmons, 509 U.S. 259, 271-73, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). That is, the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Buckley, 509 U.S. at 273, 113 S.Ct. 2606. To determine whether an action is judicial, administrative or investigative, the court looks at “the nature of the function performed, not the identity of the actor who performed it.” Kalina v. Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Thus, whether a prosecutor benefits from absolute or qualified immunity depends on which of the prosecutor’s actions are challenged. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). The official seeking absolute immunity bears the burden of demonstrating that absolute immunity is justified for the function in question. Buckley, 509 U.S. at 269, 113 S.Ct. 2606; Burns, 500 U.S. at 486, 111 S.Ct. 1934. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the course of their duties. Burns, 500 U.S. at 486-87, 111 S.Ct. 1934. Although the line between the functions is not entirely clear, it is clear that absolute prosecutorial immunity is justified “only for actions that are connected" }, { "docid": "23166925", "title": "", "text": "952 F.2d 661, 665 (2d Cir.1992); White v. Frank, 855 F.2d 956, 958 (2d Cir.1988). The reason for this distinction is plain. When factual issues are present, the district court order does not conclusively determine the disputed question. See Lawson, 863 F.2d at 262. Thus, our jurisdiction over the issues presented on this appeal depends upon whether appellants’ claims of absolute immunity can be decided as a matter of law. II Absolute Immunity A. In General Appellants insist they are entitled to absolute immunity from § 1983 liability for all of the conduct that supports plaintiffs causes of action in the amended complaint. Adago argues he is entitled to absolute immunity because the conduct he allegedly engaged in occurred in connection with his role as an advocate. Appellants Rialano, Mannion and Frazier insist they too are entitled to absolute immunity because they acted as agents for the assistant district attorney. Although § 1983 admits of no immunities on its face, the Supreme Court has ruled that Congress did not aim — when the original version of § 1983 was enacted — to abrogate those common law immunities that existed in 1871. See generally Imbler v. Pachtman, 424 U.S. 409, 417-18, 96 S.Ct. 984, 988-89, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). An official who asserts absolute immunity from § 1983 liability shoulders the burden of establishing the existence of immunity for the function in question. See Antoine v. Byers & Anderson, Inc., — U.S. -, - & n. 4, 113 S.Ct. 2167, 2169 & n. 4, 124 L.Ed.2d 391 (1993). Because qualified immunity is presumed to be sufficient to protect public officials in the exercise of their discretionary duties, see Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991), absolute immunity extends only so far as necessary to protect the judicial process. Id. at 485-87, 111 S.Ct. at 1938-40. We agree that Rialano, Mannion and Frazier are entitled to the same degree of immunity as Adago himself for their activities while assisting" }, { "docid": "6857924", "title": "", "text": "of a defense of qualified immunity, to the extent that it turns on an issue of law, is immediately appealable); Nixon v. Fitzgerald, 457 U.S. 731, 743, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349 (1982) (same re absolute immunity). II. DISCUSSION On appeal, D’Amelia contends that the district court misapplied the standards govern ing absolute and qualified immunity. We disagree. A. Absolute Immunity In support of his defense of absolute immunity, D’Amelia argues principally that the dismissal of the chargés against Doe in exchange for her participation in church proceedings fell squarely within the scope of his prosecutorial duties. We disagree. It is of course well established that, although § 1983 does not on its face preserve traditional common-law immunities, “Congress did not intend § 1983 to abrogate immunities well grounded in history and reason.” Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 2612-13, 125 L.Ed.2d 209 (1993) (internal quotation marks omitted). These traditional common-law immunities include a prosecutor’s absolute immunity from claims for damages arising out of prosecuto-rial duties that are “intimately associated with the judicial phase of .the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). While absolute immunity may “leave the genuinely wronged ... without civil redress against a prosecutor whose malicious or dishonest action” has deprived them of their constitutional rights, Imbler, 424 U.S. at 427, 96 S.Ct. at 993, considerations such as the need “to preserve the integrity of the judicial process” and to allow “a- public prosecutor ... zealously [to] perform the prosecutorial duties of the office,” Hill v. City of New York, 45 F.3d 653, 656 (2d Cir.1995), require that the prosecutor be shielded from liability for damages with respect to acts performed within the scope of his duties when pursuing a criminal prosecution. In determining whether a prosecutor enjoys absolute immunity against any particular claim for damages, the courts are to apply a “functional approach,” examining “the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. at 269, 113 S.Ct. at" }, { "docid": "22690348", "title": "", "text": "2806. The last two factors do not support granting relief because there was no repeated error or disregard of rules, and the issue of immunity is not one of first impression. Therefore, we turn to the critical issue of whether the district court clearly erred as a matter of law in deferring a ruling on immunity until completion of limited discovery on what functions the defendants performed. This requires us to consider when state officials enjoy absolute immunity from suit. . . The civil-rights statute, 42 U.S.C. § 1983, was enacted in 1871. It enables those individuals whose rights were deprived by persons acting under color of state law to bring their claims in federal court. On its face, § 1983 does not include any defense of immunity. Nevertheless, the Supreme Court'has recognized that when Congress enacted § 1983, it was aware of a well-established and well-understood common-law tradition that extended absolute immunity to individuals perform ing functions necessary to the judicial process. See Forrester v. White, 484 U.S. 219, 225-26, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Imbler v. Pachtman, 424 U.S. 409, 418-24, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Thus, it was presumed that if Congress had wished to abrogate common-law immunity, it would have done so expressly. Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The Supreme Court in Imbler laid down an approach that granted state actors absolute immunity only for those functions that were critical to the judicial process itself. See Imbler, 424 U.S. at 430, 96 S.Ct. 984; see also Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). At common law, judges, prosecutors, trial witnesses, and jurors were absolutely immune for such critical' functions. See Burns, 500 U.S. at 490, 111 S.Ct. 1934 (quoting Lord Mansfield in King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772) (“[Njeither party, witness, counsel, jury, or Judge can be put to answer, civilly or criminally, for words" }, { "docid": "7894372", "title": "", "text": "malicious use of process claim against Reilly for the “institution of commitment proceedings” against him. Upon motion by the defendants, the district court dismissed McAr-dle's complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court held that under Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and related cases, both defendants had absolute witness and prosecutorial immunity from Section 1983 claims arising out of the facts alleged in the complaint. The court therefore dismissed the complaint under Fed. R.Civ.P. 12(b)(6). McArdle appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. III. Under 42 U.S.C. § 1983, “ ‘[e]very person’ who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages.” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976). Despite these broad terms, however, the Supreme Court has held consistently that the Section 1983 did not abolish long-standing common law immunities from and defenses to civil suits. Burns v. Reed, — U.S.-, 111 S.Ct. 1934, 1938, 114 L.Ed.2d 547 (1991). At common law, persons functioning as integral parts of the judicial process enjoyed absolute immunity from civil liability. Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983). This immunity was and still is considered necessary “to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.” Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). Similarly, the Supreme Court has held that persons functioning as integral parts of the judicial process are immune from suits under Section 1983. Burns v. Reed, — U.S. -, 111 S.Ct. 1934, 1938, 114 L.Ed.2d 547 (1991). For example, judges are absolutely immune from liability for performing judicial acts, Pierson v. Ray, 386 U.S. 647, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); prosecutors have absolute immunity from liability for initiating prosecutions, Irnbler v. Pacht-man, supra;" }, { "docid": "23218788", "title": "", "text": "prosecutorial immunity- ill. ANALYSIS We have jurisdiction pursuant to 28 U.S.C. § 1291. A dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is reviewed de novo. Harvey v. Waldron, 210 F.3d 1008, 1010 (9th Cir.2000). The factual allegations in the complaint are assumed to be true. Id.; Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Decisions by a district court to afford public officials absolute or qualified immunity are reviewed de novo. Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 642 (9th Cir.1999). A. Absolute Immunity 1. In General The text of 42 U.S.C. § 1983, which establishes a federal cause of action for the violation of federal rights by state officials, contains no exceptions. Buckley, 509 U.S. at 268, 113 S.Ct. 2606. However, the Supreme Court has attributed to the Congress that passed § 1983 knowledge of then-existing common-law immunities, and the lack of an explicit abrogation of these immunities has been interpreted as preserving them. Burns v. Reed, 500 U.S. 478, 484, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The immunity of a prosecutor is based upon the same purpose that underlies the immunity of judges and grand jurors acting within the scope of their duties: to protect the judicial process. Burns, 500 U.S. at 485, 111 S.Ct. 1934; Imbler, 424 U.S. at 422-23, 96 S.Ct. 984. Specifically, absolute immunity for prosecutors is warranted (1) to allow prosecutors to focus their energies on prosecuting, rather than defending lawsuits, Burns, 500 U.S. at 485, 111 S.Ct. 1934; Imbler, 424 U.S. at 423, 425, 96 S.Ct. 984; (2) to enable prosecutors to exercise independent judgment in deciding which suits to bring and conducting them in court, Burns, 500 U.S. at 485, 111 S.Ct. 1934; Imbler, 424 U.S. at 423-24, 96 S.Ct. 984; (3) to preserve the criminal justice system’s function of determining guilt or innocence by ensuring that triers" }, { "docid": "23474943", "title": "", "text": "at common law, in 1871 when § 1983 was enacted. Although we recognize that state-employed social workers enjoyed no common law immunity from suit in 1871, we nonetheless hold that the CYS defendants are entitled to absolute immunity for their actions in petitioning and in formulating and making recommendations to the state court because those actions are analogous to functions performed by state prosecutors, who were immune from suit at common law. Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured.” 42 U.S.C. § 1983 (emphasis added). Despite its broad language, the Supreme Court has consistently held that this provision did not abolish long-standing common law immunities from civfl suits. See Burns v. Reed, 500 U.S. 478, 484, 111 S.Ct. 1934, 1938, 114 L.Ed.2d 547 (1991) (citing Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967)); Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976). Instead, courts must determine whether a particular governmental official is entitled to immunity according to the following analysis: [The] initial inquiry is whether [the] official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts. If “an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.” Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271 (1986) (quoting Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 2824-25, 81 L.Ed.2d 758 (1984)). Courts “look to the common law and other history for guidance because [their] role is ‘not to make a freewheeling policy choice,’ but rather to discern Congress’ likely intent in enacting § 1983.” Burns, 500 U.S." }, { "docid": "23166926", "title": "", "text": "of § 1983 was enacted — to abrogate those common law immunities that existed in 1871. See generally Imbler v. Pachtman, 424 U.S. 409, 417-18, 96 S.Ct. 984, 988-89, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). An official who asserts absolute immunity from § 1983 liability shoulders the burden of establishing the existence of immunity for the function in question. See Antoine v. Byers & Anderson, Inc., — U.S. -, - & n. 4, 113 S.Ct. 2167, 2169 & n. 4, 124 L.Ed.2d 391 (1993). Because qualified immunity is presumed to be sufficient to protect public officials in the exercise of their discretionary duties, see Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991), absolute immunity extends only so far as necessary to protect the judicial process. Id. at 485-87, 111 S.Ct. at 1938-40. We agree that Rialano, Mannion and Frazier are entitled to the same degree of immunity as Adago himself for their activities while assisting with the investigation and prosecution of the case against plaintiff. Because absolute immunity is essential to safeguarding the integrity of the judicial process, it extends to those performing functions closely associated with that process. See Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985). This includes not only officials performing discretionary acts of a judicial nature, see Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988), but also individual employees who assist such an official and who act under that official’s direction in performing functions closely tied to the judicial process. See Davis v. Grusemeyer, 996 F.2d 617, 631-32 (3d Cir.1993). Hence, under the “functional” test for immunity, the district attorney’s office employees who assisted Adago in the preparation of the videotapes were as associated with the judicial process as was Adago himself. Analysis must therefore focus on the question of what degree of immunity Adago may himself be entitled to for his conduct. B. Functional Approach In determining whether absolute immunity obtains, we apply a “functional approach,” looking" }, { "docid": "22683777", "title": "", "text": "is a question of law, which we review de novo. Buckles v. King County, 191 F.3d 1127, 1132 (9th Cir.1999). The district court’s dismissal based on statute of limitations grounds is reviewed de novo. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir.2003). III. ANALYSIS A 12 U.S.C. § 1983 Cause of Action 1. Absolute Immunity Absolute immunity is generally accorded to judges and prosecutors functioning in their official capacities. Stump v. Sparkman, 435 U.S. 349, 364, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (holding that state circuit judge is immune from suit for all actions within his jurisdiction); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that state prosecutor had absolute immunity for initiation and pursuit of criminal prosecutions, including presentation of case at trial). This immunity reflects the long-standing “general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1871). Recognizing these considerations, courts have extended the protections of absolute immunity to qualifying state officials sued under 42 U.S.C. § 1983. Miller v. Gammie, 335 F.3d 889, 895-96 (9th Cir.2003) (explaining that though § 1983 does not include a defense of immunity, “the Supreme Court has recognized that when Congress enacted § 1983, it was aware of a well-established and well-understood common-law tradition that extended absolute immunity to individuals performing functions necessary to the judicial process” (citing Forrester v. White, 484 U.S. 219, 225-26, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (superseded by statute))); Buckley v. Fitzsimmons, 509 U.S. 259, 268-69, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Indeed, judicial immunity from § 1983 suits is “viewed as necessary to protect the judicial process.” Burns v. Reed, 500 U.S. 478, 485, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Likewise, the protections of absolute immunity accorded prosecutors reflect the “ ‘concern that harassment by unfounded litigation would cause a deflection of the" }, { "docid": "21131740", "title": "", "text": "in the plaintiffs complaint as true. Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 505, 139 L.Ed.2d 471 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). The official seeking immunity bears the burden of demonstrating that immunity attaches to a particular function. Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A dismissal for failure to state a claim is appropriate only where it appears, beyond doubt, that the plaintiff can prove no set of facts that would entitle it to relief. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, — U.S.—, 118 S.Ct. 559, 139 L.Ed.2d 401 (1997); Fed R. Civ. P. 12(b)(6). ANALYSIS Walker contends that § 1983 does not confer a damages remedy in this case because all of his actions are protected by absolute or qualified immunity. Under § 1983, any person may bring a claim against a government official who acts under color of state law to deprive that person of constitutional rights. 42 U.S.C. § 1983. Although § 1983 does not expressly provide a defense of official immunity, our courts have repeatedly recognized that absolute and qualified immunity shield certain types of official conduct from § 1983 actions. See Kalina, 118 S.Ct. at 505-10 (summarizing the doctrines of absolute and qualified immunity); Buckley, 509 U.S. at 268, 113 S.Ct. 2606; Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). We have also recognized that “policy considerations favor a liberal application of immunity.” Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.1986). Immunity, though granted liberally, is not impenetrable. Imbler cemented the notion that prosecutors are absolutely immune from suit when they function as advocates. 424 U.S. at 430-31, 96 S.Ct. 984. Prosecutors engaged in traditional prosecutorial functions, those activities “intimately associated with the judicial phase of the criminal process” are absolutely immune from suits under § 1983. Id. at 430, 96 S.Ct. 984. Investigatory or administrative functions, on the other hand, generate only qualified immunity. Kalina, 118 S.Ct. at 507. Thus, whether a" }, { "docid": "19627710", "title": "", "text": "in harmony with general principles of tort immunities and defenses rather than in derogation of them.\" Malley v. Briggs, 475 U.S. 335, 339, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (internal quotation marks omitted). We have done so because \"[c]ertain immunities were so well established in 1871 ... that 'we presume that Congress would have specifically so provided had it wished to abolish' them.\" Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ; accord, Briscoe v. LaHue, 460 U.S. 325, 330, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Immunity is thus available under the statute if it was \"historically accorded the relevant official\" in an analogous situation \"at common law,\" Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole, 504 U.S. 158, 170, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (KENNEDY, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under § 1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove, 341 U.S. 367, 372-376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators); Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the \"judicial phase of the criminal process,\" Imbler, supra, at 430, 96 S.Ct. 984 ; Burns v. Reed, 500 U.S. 478, 489-492, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) ; but see Kalina v. Fletcher, 522 U.S. 118, 131-134, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (Scalia, J., joined by THOMAS, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor's advice to police officers, Burns, supra," }, { "docid": "9438720", "title": "", "text": "2727, 73 L.Ed.2d 396 (1982); see also Butz v. Econonou, 438 U.S. 478, 508, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Some officials, however, perform “special functions” that deserve absolute protection from liability because they are similar to the kinds of functions that would have been immune at common law, when Congress enacted § 1983. Butz, 438 U.S. at 508, 98 S.Ct. 2894. This “absolute immunity” is recognized only sparingly, and the official seeking the immunity bears the burden of showing that his actions are entitled to such absolute protection. Btrns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Courts use a “functional approach” to determine whether absolute immunity is available to protect an official from liability for the particular activities alleged to have violated a plaintiffs rights. Id. Thus, we look to the “nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (quoting Fomster v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Furthermore, the Buckley Court explained, we must focus “on the conduct for which immunity is claimed, not on the harm that the conduct may have caused or the question whether it was lawful.” Id. at 271, 113 S.Ct. 2606 (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). In Imbler, the prosecutor was sued for wrongful prosecution; the Supreme Court held that a state prosecutor is absolutely immune from liability for the initiation and pursuit of a criminal prosecution, including the presentation of the state’s case at trial. Imbler, 424 U.S. at 431, 96 S.Ct. 984. The Court considered and rejected any exception for actions otherwise entitled to this absolute immunity but undertaken by the prosecutor maliciously or in bad faith: “To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” Id. at 427, 96 S.Ct. 984. Although Imbler left the question open, the Supreme Court later decided" }, { "docid": "23144210", "title": "", "text": "Court correctly concluded that Jansen is entitled to absolute immunity. Prosecutors may be entitled to either absolute or qualified immunity from civil liability under 42 U.S.C. § 1983 for actions undertaken pursuant to their official duties. If the prosecutor is acting as advocate for the state in a criminal prosecution, then the prosecutor is entitled to absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, -, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993). Absolute immunity covers prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the state’s case at trial, and other conduct that is intimately associated with the judicial process. Id.; Imbler v. Pachtman, 424 U.S. 409, 430-31 n. 33, 96 S.Ct. 984, 995 n. 33, 47 L.Ed.2d 128 (1976). In contrast, a prosecutor is entitled only to qualified immunity when he pursues actions in an “investigatory” or “administrative” capacity. Buckley, 509 U.S. at-, 113 S.Ct. at 2616. In determining whether particular actions of government officials fit within the absolute or qualified immunity standard, the Supreme Court has adopted a functional approach that looks to “the nature of the function performed, not the identity of the actor who performed it.” Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1987) (finding state court judge does not have absolute immunity from damages suit for his administrative decision to demote and dismiss a court employee); see also Buckley, 509 U.S. at-, 113 S.Ct. at 2618 (holding prosecutor’s comments to the media have no functional tie to the judicial process because they do not involve presentation of state’s case in court or initiation of prosecution); Burns v. Reed, 500 U.S. 478, 494, 111 S.Ct. 1934, 1943-44, 114 L.Ed.2d 547 (1991) (finding absolute immunity from liability for damages under § 1983 does not apply to state prosecutor’s giving of legal advice to police but does extend to his participating in probable cause hearing); Imbler, 424 U.S. at 431, 96 S.Ct. at 995-96 (holding prosecutor is absolutely immune from activity of initiating prosecution or for actions taken in presenting state’s case). Brodnieki asserts" } ]

[ { "docid": "22742629", "title": "", "text": "types of government employment. Thus, if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency. Id,, at 366. In Elrod, it was clear that the duties of the employees — the chief deputy of the process division of the sheriff’s office, a process server and another employee in that office, and a bailiff and security guard at the Jpvenile Court of Cook County — were not of that character, for they were, as Mr. Justice Stewart stated, “nonpolicy-making, nonconfidential” employees. Id., at 375. As Mr. Justice Brennan noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Id., at 367. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State’s election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee’s governmental responsibilities. It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry" } ]

[ { "docid": "16486647", "title": "", "text": "and Valentín. More than twenty years ago, a plurality of the Supreme Court held that governmental employers may not discharge an employee because of her political affiliation without showing a governmental interest sufficiently vital to outweigh the employee’s First Amendment right to association. Elrod v. Burns, 427 U.S. 347, 355-56, 362, 96 S.Ct. 2673, 2676-77, 2680-81, 49 L.Ed.2d 547 (1976). The plurality found that the government’s interest in effective implementation of its policies can be achieved “by limiting patronage dismissals to policymaking positions.” Id. at 372, 96 S.Ct. at 2689. Justice Stewart’s concurrence gave the Court a majority for the proposition that nonpolicy-making, nonconfidential employees should not be discharged on the basis of their political beliefs. Id. at 374-75, 96 S.Ct. at 2690-91 (Stewart, J., concurring in the judgment). The Court next attempted to define the contours of the prohibition on political discharge in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Instead of applying Elrod’s policymaking inquiry, the Branti Court relied upon a finding that political affiliation is not an appropriate requirement for the effective performance of the position of assistant public defender. Id. at 518-19, 100 S.Ct. at 1294-95. The Branti Court again, however, imposed the burden on the governmental body seeking dismissal: “[Ujnless the government can demonstrate ‘an overriding interest’ ‘of vital importance’ requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.” Id. at 515-16, 100 S.Ct. at 1293 (citations omitted). Of fundamental importance is the idea that “conditioning continued public employment on an employee’s having obtained support from a particular political party violates the First Amendment because of ‘the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one’s job.’ ” Rutan v. Republican Party of Illinois, 497 U.S. 62, 71, 110 S.Ct. 2729, 2735, 111 L.Ed.2d 52 (1990) (quoting Branti, 445 U.S. at 516, 100 S.Ct. at 1294). More recently, in Rutan v. Republican Party of Illinois, the" }, { "docid": "14861557", "title": "", "text": "hurdles: They adequately plead a constitutional violation — one that has been clearly established for some time. As to the first hurdle, current and aspiring public employees have the First Amendment right to be free from hiring and firing practices based on political affiliation unless “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); see also Elrod v. Burns, 427 U.S. 347, 355, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion); id. at 375 (Stewart, J., concurring); Rutan v. Republican Party of Ill., 497 U.S. 62, 79, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (holding that Elrod and Branti apply to government promotion and hiring practices as well as to firing practices). To determine whether occupants of (or applicants for) a particular office are protected from political retaliation under Branti, we “examine the inherent duties of that position,” Cope v. Heltsley, 128 F.3d 452, 460 (6th Cir.1997) (internal quotation marks omitted), and positions that exercise “no discretion of political significance” are generally entitled to First Amendment protection, McCloud v. Testa, 97 F.3d 1536, 1559 (6th Cir.1996). So far as this complaint is concerned, Back’s former position falls within the category of offices for which political affiliation is irrelevant. According to the complaint, Back set up the process for evaluating grant applications, performed other administrative tasks and assisted the grant-review committee. The Kentucky legislature also seems to believe that political affiliation is not relevant to those duties: Back’s position was classified under Kentucky’s civil-service statute, see Ky.Rev.Stat. Ann. § 18A.115 (exempting certain state employment offices, though not Back’s position, from coverage), and Kentucky law says that “[n]o person shall be appointed or promoted to, or demoted or dismissed from” such classified positions based on “political ... affiliations,” id. § 18A.140(1). We have long given presumptive deference to a state legislature’s determination that a position “should be classified as ... nonpolitical,” Rice v. Ohio Dep’t of Transp., 14 F.3d 1133, 1143 (6th Cir.1994), and, at" }, { "docid": "867577", "title": "", "text": "the Due Process Suit was speech on a matter of public concern. In Elrod v. Burns and Branti v. Finkel, the Supreme ¡Court prohibited government employers from dismissing most public employees on the basis of partisan, affiliation, holding that the age-old practice of patronage firings violated the First Amendment. At the same time, the Court recognized an exception for employees who occupy policymaking or confidential positions. Elected officials may require political loyalty from such employees so that representative government is not “undercut by tactics obstructing the implementation of policies ... presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367, 96 S.Ct. 2673 (plurality opinion); see also Branti, 445 U.S. at 517, 100 S.Ct. 1287 (“[I]f an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.”); cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (extending Elrod and Branti to hold that “promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees”). While acknowledging that “[n]o clear line can be drawn between policymaking and nonpolicymaking positions,” the plurality in Elrod emphasized that the “nature of the responsibilities is critical,” and that an employee whose responsibilities are broad in scope, who acts as an adviser, and/or who “formulates plans for the implementation of broad goals\" likely occupies a policymaking role. 427 U.S. at 367-68, 96 S.Ct. 2673 (plurality opinion). In Branti, the Court said again that it is “not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered.” 445 U.S. at 518, 100 S.Ct. 1287. The Court reasoned that-under- some circumstances, a job “may be appropriately considered political even though it is neither confidential nor policymaking in character” (e.g., an election judge hired pursuant to a state law requiring - one Republican . and one Democrat to monitor each precinct). Id. Conversely, “party" }, { "docid": "9702507", "title": "", "text": "Burns, 427 U.S. 347, 367-72, 96 S.Ct. 2673, 2686-89, 49 L.Ed.2d 547 (1976) (plurality opinion). Elrod recognized an exception to this rule for those employees who hold policymaking positions. Id. The Court focused on the nature of the employee’s position in determining whether the employee was a policymaker, stating that policymakers are likely to have broad responsibilities that are not well-defined. Id. The Supreme Court further elaborated on the constitutionality of patronage dismissals in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Branti the Court modified the Elrod standard by stating that the ultimate inquiry is not whether the employee is a policymaker. Branti 445 U.S. at 518, 100 S.Ct. at 1294-95. Instead, the Court held that patronage dismissals are only warranted when party affiliation is essential for effective performance of the particular job. Id. In the aftermath of Elrod and Branti various tests have been developed to determine when political affiliation is an appropriate condition for a particular job. As Justice Scalia has noted, “the ‘tests’ devised to implement Branti have produced inconsistent and unpredictable results.” Rutan v. Republican Party of Illinois, 497 U.S. 62, 112, 110 S.Ct. 2729, 2757, 111 L.Ed.2d 52 (1990) (Scalia, J., dissenting). In the present case, we believe that the existing law did not clearly prohibit dismissal of a county council administrative assistant based on her lack of political loyalty to the legislator to whom she was exclusively assigned. We have recognized that government employees’ “first amendment rights may have to yield to the government’s vital interest in maintaining governmental effectiveness and efficiency if their private political beliefs would interfere with their public duties.” Barnes v. Bosley, 745 F.2d 501, 505 (8th Cir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2022, 85 L.Ed.2d 303 (1985). We held in Barnes that political affiliation was not an appropriate requirement for employees in a clerk of court’s office who mainly performed ministerial duties. 745 F.2d at 508. The defendants in that case attempted to show that the plaintiffs held policymaking positions because they were involved with mailing procedures and the dress" }, { "docid": "8951035", "title": "", "text": "and therefore the Township Committee could properly consider Zold’s political affiliation in its decision not to reappoint her. Zold v. Mantua, 737 F.Supp. 308, 318 (D.N.J.1990). II. Legal Principles The Supreme Court has held that the dismissal of certain public employees solely because of their partisan political affiliation infringes their First Amendment rights of belief and association. See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). “A nonpolicymaking, nonconfidential government employee” cannot be discharged on the sole ground of his or her political beliefs. Elrod, 427 U.S. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). On the other hand, party affiliation may be an acceptable requirement “if an employee’s private political beliefs would interfere with the discharge of his public duties.” Branti, 445 U.S. at 517, 100 S.Ct. at 1294. An employee who “acts as an advisor or formulates plans for the implementation of broad goals” is in that position. Elrod, 427 U.S. at 367-68, 375, 96 S.Ct. at 2686-87, 2690. However, “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295. This court has stated, “should a difference in party affiliation be highly likely to cause an official to be ineffective in carrying out the duties and responsibilities of the office, dismissals for that reason would not offend the First Amendment.” Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981). The burden of proof is on the defendant to demonstrate “an overriding interest” in order to validate an encroachment on an employee’s First Amendment rights. Elrod, 427 U.S. at 368, 96 S.Ct. at 2687. It is not always easy to determine whether political affiliation is a legitimate factor to be considered for a particular job. Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95; Elrod, 427 U.S. at 367-68, 96" }, { "docid": "23604234", "title": "", "text": "he is a member of the New Jersey Republican Party. The Supreme Court has held that it is a violation of a public employee’s First Amendment rights to demote, transfer, fire, or not reappoint to a position, such an employee on the basis of his or her political affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62, 72-78, 110 S.Ct. 2729, 2736-39, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 511-20, 100 S.Ct. 1287, 1291-96, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 355-73, 96 S.Ct. 2673, 2680-89, 49 L.Ed.2d 547 (1976). However, the Court has recognized exceptions to this rule. Party affiliation may be an acceptable requirement for an employee who “acts as an adviser or formulates plans for the implementation of broad goals.” Elrod, 427 U.S. at 368, 96 S.Ct. at 2687. In Branti, the Court described the test for the exception as such: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518, 100 S.Ct. at 1295. In making this determination, we examine the functions performed by the individual occupying the relevant position. Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir.1993). As the Supreme Court explained, “[t]he nature of the responsibilities is critical.” Elrod, 427 U.S. at 367, 96 S.Ct. at 2687. Although “[e]ach decision is ... fact specific for that case,” Zold v. Township of Mantua, 935 F.2d 633, 635 (3d Cir.1991), a question relevant in all cases is “whether the employee has ‘meaningful input into decision making concerning the nature and scope of a major [government] program.’” Brown v. Trench, 787 F.2d 167, 169-70 (3d Cir.1986) (quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982)). [I]t is appropriate to consult factors such as “whether the employee’s duties are simply ... nondiscretionary or technical, ... whether the employee participates in ... discussions" }, { "docid": "22830856", "title": "", "text": "Amendment Policymaker Doctrine. As a general rule, public employees may not be dismissed for the exercise of their First Amendment rights. See Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976). However, political affiliation and political viewpoint are permissible employment criteria for positions involving “policy-making and confidential employees”. Rutan v. Republican Party of Illinois, 497 U.S. 62, 71 n. 5, 110 S.Ct. 2729, 2735 n. 5, 111 L.Ed.2d 52 (1990); see also Elrod, 427 U.S. at 367, 96 S.Ct. at 2686; Branti v. Finkel, 445 U.S. 507, 517-18, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980). In applying this policymaker exception to the discharge of public employees, we recognize that a government entity must demonstrate a “compelling interest” to justify any infringement of an employee’s First Amendment rights, see Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir.1994) (citing Rutan, 497 U.S. at 71 n. 5, 110 S.Ct. at 2735 n. 5), and that the hiring authority must therefore show that “ ‘party affiliation is an appropriate requirement for the effective performance of the public office involved.’ ” Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir.1993) (quoting Branti, 445 U.S. at 518, 100 S.Ct. at 1294). We use the term “policymaker” as a “convenient shorthand” for a government employee who occupies a position for which party affiliation, loyalty or confidence are appropriate. See id. Kaluczky holds the position of Personnel Officer for the City of White Plains. We need not consult the factors typically reviewed to resolve the question of whether this office is a policymaking position, see Vezzetti 22 F.3d at 486, because Kaluezky’s complaint effectively concedes this issue. Among other things, Kaluczky alleges (1) that he was deprived of his statutory duties of “Making personnel decisions regarding appointments ... or layoffs ... or establishing] City personnel practices and/or policy,” see Brown v. Trench, 787 F.2d 167, 168 (3d Cir.1986) (finding authority to hire and fire an indicia of a policymaking position); (2) that he was threatened with the removal of the “labor negotiation functions” traditionally a part of his office; and," }, { "docid": "5820598", "title": "", "text": "49 L.Ed.2d 547 (1976). Employees determined to hold jobs that do not have policy-making or confidential functions cannot be discharged on the sole ground of political beliefs. Id. at 375, 96 S.Ct. 2673 (Stewart, J., concurring). An exception can be made “if an employee’s private political beliefs would interfere with the discharge of his public duties.” Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Supreme Court explained that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. 1287. In such a case, the first amendment would not be offended if the defendant can demonstrate “an overriding interest” that party affiliation is an appropriate requirement of the office and such a difference would be highly likely to render an official ineffective in carrying out his or her duties and responsibilities. Elrod, 427 U.S. at 368, 96 S.Ct. 2673; Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981); Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 395 (3d Cir.1998). The potential that an employee may cause havoc is not a sufficient basis for holding the employee can be hired or discharged because of his or her political affiliation. Armour v. County of Beaver Pennsylvania, 271 F.3d 417, 430-31 (3d Cir.2001). A political discrimination case employs similar, though not identical, burden-shifting mechanisms as those used in other employment discrimination contexts, such as Title VII cases. Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir.1997); Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.1993). To make out a prima facie case, public employees who claim that they suffered from an adverse employment action based on their exercise of a constitutional right must show that: (1) they worked for a public agency in a position that does not require a political affiliation; (2) they" }, { "docid": "2572177", "title": "", "text": "The request for immunity must be rejected if there is no issue as to the existence of a particular statutory or constitutional right which a reasonable public official should be aware of. The qualified immunity inquiry must start with the court ascertaining whether or not plaintiff has pled sufficient facts to denote violation of a constitutional right. Santana, 342 F.3d at 23; Concepción v. Zorrilla, 309 F.Supp.2d 201, 213 (D.P.R.2004). Our initial inquiry in this case is to determine whether plaintiffs particular job was shielded from political bias or whether, on the other hand, he held a “policymaking position” or a “position of unusual confidence” which do allow for political affiliation as an appropriate consideration when making personnel-related decisions. See, Gómez v. Rivera Rodríguez, 344 F.3d 103, 110 (1st Cir.2003); Padillas-García v. Guillermo Rodríguez, 212 F.3d 69, 74. (1st Cir.2000). “Public employees who do not hold confidential policy-making positions are protected from adverse employment actions based on political affiliation.” Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 7 (1st Cir.2000). See, Duriex-Gauthier v. López-Nieves, 274 F.3d 4, 11 (1st Cir.2001) (“position is one in which political affiliation is a reasonably necessary requirement”). No claim has been made in this case that plaintiff held a policymaking position prior to his transfer nor one that would demand confidentiality. Accordingly, we conclude plaintiffs political views could not be considered in the transfer determination. The protection against political patronage practices resulting in dismissals initially validated in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), was subsequently extended to also cover promotions, transfers, recalls or .hiring decisions in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Rutan specifically ruled that “promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees.” 497 U.S. at 75, 110 S.Ct. 2729, 111 L.Ed.2d 52. In this case, it is specifically alleged that the individual co-defendants were able to understand that" }, { "docid": "534571", "title": "", "text": "decisions on the basis of an individual’s political affiliation' — in Elrod, 427 U.S. at 373, 96 S.Ct. 2673, Branti, 445 U.S. at 517, 100 S.Ct. 1287, and Rutan v. Republican Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). In Elrod, the Court held that “the practice of patronage dismissals is unconstitutional under the First and Fourteenth Amendments.... ” 427 U.S. at 373, 96 S.Ct. 2673. In Branti, the Court clarified that the Elrod rule applies unless the “hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518, 100 S.Ct. 1287. Finally, in Rutan, the Court announced that Elrod and Branti apply not only to patronage dismissals but also to patronage promotions, transfers, and recalls after layoffs. See 497 U.S. at 75, 110 S.Ct. 2729. The Court has also extended Elrod, Bran-ti and Rutan to government retaliation against a contractor or a regular provider of services for the exercise of rights of political association and the expression of political allegiance. See O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 720, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996); Board of County Comm’rs v. Umbehr, 518 U.S. 668, 685-86, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). While Rutan and its progeny addressed only political patronage, we have also applied it to cases involving public employer retaliation for employees’ exercise of their free speech rights. See Brady v. Fort Bend County, 145 F.3d 691, 703 (5th Cir.1998) (citing Click v. Copeland, 970 F.2d 106, 110-11 (5th Cir.1992)), cert. denied, — U.S. -, 119 S.Ct. 873, 142 L.Ed.2d 774 (1999). But why is such retaliation against the exercise of First Amendment rights itself a violation of the First Amendment? The Supreme Court has asserted that imposing penalties for speech, belief, and association chills the exercise of First Amendment freedoms and thereby indirectly produces a result that the government cannot command directly: For at least a quarter-century, this Court has made it clear that even though a person has no “right” to a valuable" }, { "docid": "23283212", "title": "", "text": "employees might forgo the expression of their political beliefs or artificially change their political association to avoid displeasing their supervisors. Such coercion, whether direct or indirect, is incongruent with a free political marketplace.”). However, Branti and Elrod did carve out an exception for positions that are classified as policymaking or advisory, in which case the Government has the burden of proving that party affiliation is an appropriate requirement for the position. Branti, 445 U.S. at 518, 100 S.Ct. 1287 (“[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”); Elrod, 427 U.S. at 368, 96 S.Ct. 2673 (holding that party affiliation may be an acceptable requirement for an employee who “acts as an advisor or formulates plans for the implementation of broad goals”); see also Peters v. Del. River Port Auth., 16 F.3d 1346, 1353 (3d Cir.1994). Branti and Elrod also held that one could not be discharged for failing to obtain the sponsorship of the controlling political party. Branti, 445 U.S. at 516, 100 S.Ct. 1287; Elrod, 427 U.S. at 351, 96 S.Ct. 2673. More than a decade later, the Supreme Court added the third leg of the political patronage trilogy —Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). In Rutan, the Supreme Court extended Branti and Elrod and ruled that promotions, transfers, recalls, and hiring decisions involving public employees may not be based on party affiliation and support unless the Government can show that party affiliation is an appropriate requirement for the position involved. Rutan, 497 U.S. at 75, 110 S.Ct. 2729. “Thus, Rutan encompasses claims of political discrimination when an employer takes an adverse employment action because s/he does not want to fill employment positions that would otherwise be available to his or her supporters.” Stephens, 122 F.3d at 176. With the above precedents in mind, our Court has developed a three-prong test in political patronage discrimination cases." }, { "docid": "3323136", "title": "", "text": "of public employees who are affiliated with the party going out of power and then fills those vacancies with its own members. By the same token, the outgoing party attempts to secure the continued tenure of its members in public jobs through a variety of devices, such as reclassifying policy-type appointments as career positions or making appointments in violation of Puerto Rico law. In 1976, the United States Supreme Court held that public employees have a First Amendment right not to lose their jobs because of their political affiliation, unless political affiliation is an appropriate requirement for the effective performance of the position involved. Elrod, 427 U.S. at 372-73, 96 S.Ct. 2673; see also Cordero v. De Jesus-Mendez, 867 F.2d 1, 9 (1st Cir.1989). That doctrine has been refined over the years. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), for example, the Court held that an employee need not prove that he or she was coerced into changing political affiliation in order to prevail under the First Amendment. Id. at 517, 100 S.Ct. 1287. In Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Court defined the scope of employment decisions subject to scrutiny to include promotion, transfer, recall, hiring, and firing. Id. at 78, 110 S.Ct. 2729. And in O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), the Court extended the protections of Elrod and Branti to contractors and regular providers of services to the government. Id. at 726, 116 S.Ct. 2353. In the original political discrimination cases, Branti and Elrod, there were already findings that the employment decisions at issue were made on political patronage grounds. See Branti, 445 U.S. at 510, 100 S.Ct. 1287; Elrod, 427 U.S. at 351, 96 S.Ct. 2673. The initial issue presented by those cases was whether historic patronage practices violated the First Amendment at all. See Elrod, 427 U.S. at 353-54, 96 S.Ct. 2673. The next set of issues concerned whether a plaintiff needed to show that" }, { "docid": "23335470", "title": "", "text": "freely dismissed on political patronage grounds. Second, the County argues that governmental interests outweighed the Plaintiffs’ interest in engaging in political activity in support of Hillegeist. A summary of the relevant First Amendment law as established in Supreme Court precedent and as applied in this circuit will facilitate a clear disposition of these claims. a. Relevant First Amendment law It is well established that the First Amendment places certain constraints upon dismissals from public employment based upon political affiliation and speech. As noted in Part III.B.l, supra, limitations on dismissals based upon a public employee’s political affiliation, or political patronage dismissals, emerged from the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, the Court held that “a nonpolicymaking, noncon-fidential government employee can[not] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Elrod, 427 U.S. at 375, 96 S.Ct. 2673 (Stewart, J., concurring). In Branti the Court clarified the rule announced in Elrod regarding when party affiliation may serve as a legitimate basis for terminating a public employee as follows: It is equally clear that party affiliation is not necessarily relevant to every policy-making or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for" }, { "docid": "10781048", "title": "", "text": "deprived her of a constitutional right while acting under color of state law. Lane v. City of LaFollette, Tenn., 490 F.3d 410, 418 (6th Cir.2007) (citation omitted). In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that patronage dismissals (i.e., dismissals for failure to support a particular candidate or party) violate the First Amendment. In Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court recognized that, although patronage dismissals are generally unconstitutional, “party affiliation may be an acceptable requirement for some types of government employment.” Id. “While these positions have been referred to as ‘policymaking’ or ‘confidential,’ whether those labels appropriately fit the position under consideration is not the ultimate inquiry.” Lane, 490 F.3d at 419 (citing Branti, 445 U.S. at 518, 100 S.Ct. 1287). The ultimate inquiry is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. To determine whether political affiliation is appropriate in making a personnel decision, “we must examine the inherent duties of that position and the duties that the new holder of that position will perform.” Baker v. Hadley, 167 F.3d 1014, 1018 (6th Cir.1999) (quoting Faughender v. City of N. Olmsted, 927 F.2d 909, 913 (6th Cir.1991)). While making this determination does not depend on the plaintiffs actual job duties, those duties “may nonetheless serve as evidence of the duties inherent in the position.” Id. (quoting Feeney v. Shipley, 164 F.3d 311, 320 (6th Cir.1999)). The Supreme Court has held that Elrod and Branti apply to patronage promotion and hiring practices as well as to dismissals. Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). In McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir.1996), the Sixth Circuit outlined four categories of government positions that will always qualify for patronage exceptions: (1) those that are specifically named in a relevant statute or that are charged with the discretionary authority to carry out the law or other" }, { "docid": "23505136", "title": "", "text": "reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Id. Summary judgment shall be granted where no genuine dispute exists as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). We will address the District Court’s decisions on Montone’s claims and the derivative claims asserted by the Astriab plaintiffs separately. A. Montone’s Claims Montone appeals the District Court’s grant of summary judgment on her claims under § 1983 for retaliation for political affiliation and speech, in violation of the First Amendment. We will address each issue in turn. 1. Our jurisprudence governing political association retaliation claims under the First Amendment has its origins in the Supreme Court’s “trilogy” of “political patronage cases.” Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 663 (3d Cir.2002) (citing Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). From these cases and their progeny, “we have derived a three-part test to establish a claim of discrimination based on political patronage in violation of the First Amendment.” Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir.2007). First, the plaintiff must establish that “she was employed at a public agency in a position that does not require political affiliation.” Id. Second, the plaintiff must show that she engaged in conduct protected by the First Amendment. Id. And finally, the plaintiff must prove that the constitutionally-protected conduct was a substantial or motivating factor for the adverse employment action. Id. The first two prongs of the test for political affiliation retaliation are not in dispute here. Montone was employed as an officer with the JCPD, a position where political affiliation is not “an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. 1287; see also Elrod, 427 U.S. at 367, 96 S.Ct. 2673 (“Limiting patronage dismissals to policymaking positions is" }, { "docid": "13744308", "title": "", "text": "defendants’ motions for summary judgment on the §§ 1983 and 1985(3) claims in favor of all three defendants, dismissed plaintiffs’ breach of fair representation and state constitutional claims, and denied the motion of Stephens, Longo, and Moyer to amend their complaints after determining that the access to the courts claim failed to state a cause of action. Plaintiffs do not contest the district court’s dismissal of the breach of fair representation and state constitutional claims, but argue on appeal that the district court improperly granted summary judgment to the defendants on their §§ 1983 and 1985(3) claims. Hanna and Vítalos argue that the district court erred in dismissing their right to access claim, and Stephens, Longo and Moyer contest the district court’s denial of their motion to amend. II. DISCUSSION A. Applicable Legal Principles In Elrod v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976), and again in Branti v. Finkel, 445 U.S. 507, 514-15, 100 S.Ct. 1287, 1292-93, 63 L.Ed.2d 574 (1980), the Supreme Court held that it is unconstitutional for public agencies to discharge employees who are neither policymaking nor advisory based on their political affiliations, reasoning that an employee’s exercise of First Amendment rights outweighs the government’s interest in maintaining a system of political patronage. The Court expanded upon Elrod and Branti in Rutan v. Republican Party of Illinois, 497 U.S. 62, 75, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990), where it held that promotions, transfers, recalls, and other hiring decisions involving public employees may not be based on party affiliation and support unless the government can show that party affiliation is an appropriate requirement for the position involved. Moreover, as Elrod-Branti teaches, “[a] citizen’s right not to support a candidate is every bit as protected as his right to support one.” Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987). Thus, Rutan encompasses claims of political discrimination when an employer takes an adverse employment action because s/he does not want to fill employment positions that would otherwise be available to his or her supporters. See Rutan, 497 U.S. at 67-68," }, { "docid": "9727587", "title": "", "text": "in retaliation for his relationship with his sister, CAO Sherry Freebery, and so violated his First Amendment rights to political and familial association. Although he originally alleged that Defendants also violated his free speech rights, Plaintiff has abandoned this claim. (Oral Arg. Tr. at 30.) 1. Political Association Recognizing that “to the victor belong only those spoils that may be constitutionally obtained,” the Supreme Court has held that the termination of a public employee because of his or her political affiliation generally violates the First Amendment. Rutan v. Republican Party of Ill., 497 U.S. 62, 64, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). There is a well-established exception, however, for policymaking positions. Id. “The exception for ‘policymaking’ jobs exists because political loyalty is essential to the position itself.” Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 270-271 (3d Cir.2007). See also Branti 445 U.S. at 518, 100 S.Ct. 1287 (“[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”); Elrod, 427 U.S. at 368, 96 S.Ct. 2673 (party affiliation may be an acceptable requirement for an employee who “acts as an advisor or formulates plans for the implementation of broad goals”). To make out a prima facie case that he or she was impermissibly terminated for political reasons, a plaintiff must show that: “1) [h]e was employed at a public agency in a position that does not require political affiliation, 2) [h]e was engaged in constitutionally protected conduct, and 3) this conduct was a substantial or motivating factor in the government’s employment decision.” -Galli, 490 F.3d at 271. In evaluating the first element of the Galli test — whether political affiliation is an appropriate requirement for a particular position — courts look to several factors, including “whether the employee has duties that" }, { "docid": "22569452", "title": "", "text": "employment,” 445 U.S. at 517, 100 S.Ct. at 1294, “it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered,” id. at 518, 100 S.Ct. at 1294-95 (citing Elrod, 427 U.S. at 367, 96 S.Ct. at 2686-87). The Court then explained that a mere reliance on the labels “policymaking” or “confidential” does not answer the critical inquiry in this context: Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character.... It is equally clear that party affiliation is not necessarily relevant to every poli-cymaking or confidential position.... In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Id. (emphasis supplied); see Tomczak v. City of Chicago, 765 F.2d 633, 639-40 (7th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985). The Court then concluded, on the facts before it, that political affiliation was not a proper requirement for continued employment as an assistant public defender. Id. at 445 U.S. 519-20, 100 S.Ct. at 1295-96. During its last Term, in Rutan v. Republican Party of Illinois, — U.S.-, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Supreme Court had occasion to consider whether the rule established in Elrod and Branti applied to promotion, transfer, recall from layoff, and hiring decisions based on political affiliation. In Rutan, the governor of Illinois instituted a hiring freeze that prohibited state officials from hiring new employees, filling any vacancy, creating any new position, or taking any similar acts without receiving the “express permission” of the governor. The governor established an agency to deal with the numerous requests for \"express permission,” and such permission was granted for certain new employee hires, promotions, transfers, and recalls from layoffs. Several lower level employees brought suit against the governor, the Republican Party of Illinois, and various state and party officials," }, { "docid": "15031518", "title": "", "text": "present any significant evidence that her firing was attributable to political affiliation. A. Armour’s Job At least at one time' — namely, during Schulte’s 1995 campaign — Delores Armour’s relationship with Bea Schulte could have been characterized as political in nature. It is less clear that Armour’s position as secretary to Schulte required a shared political purpose. The question before this court is whether defendants have established, beyond factual dispute, that political agreement was an appropriate requirement for the position of secretary to a Beaver County Commissioner. Adverse employment actions against government employees that are based on political affiliation are, as a general rule, prohibited. See O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In Elrod, a plurality of the Court first announced this rule based on the recognition that political patronage dismissals run counter to the First Amendment rights of free speech and political association. See Elrod, 427 U.S. at 359, 96 S.Ct. 2673. At the same time, the Court delineated a narrowly drawn exception for particular positions for which political affiliation is found to be an appropriate requirement. Applying the intermediate “exacting” level of scrutiny, the Court explained: “The interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest.” Id. at 362, 96 S.Ct. 2673; see Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 395 (3d Cir.1998). The notion of what constitutes a position for which political affiliation may acceptably be required has developed over time. In Elrod, the Court adopted an approach that distinguished between policymaking and non-policymaking positions. Reiterating the rule in his concurrence, Justice Stewart advised that political affiliation could not provide a basis for adverse actions taken against a “nonpolicymaking, noncon-fidential government employee”. Id. at 375, 96" }, { "docid": "11373210", "title": "", "text": "an employee’s political affiliation ordinarily is an infringement on First Amendment rights, see Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976), the Supreme Court has indicated that, for some positions, political affiliation is a permissible employment criterion. See id. at 367, 96 S.Ct. at 2686; Branti v. Finkel, 445 U.S. 507, 517-18, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980). In Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Supreme Court summarized the exception it had developed in Elrod and Branti: In Elrod, we suggested that policy-making and confidential employees probably could be dismissed on the basis of their political views. In Branti, we said that a State demonstrates a compelling interest in infringing First Amendment rights only when it can show that “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Rutan, 497 U.S. at 71 n. 5, 110 S.Ct. at 2735 n. 5 (citations omitted). We have noted that “the Branti guidelines do not lend themselves to easy or automatic application.” Hawkins v. Steingut, 829 F.2d 317, 320 (2d Cir.1987); see also Jimenez Fuentes v. Torres Gastambide, 807 F.2d 236, 241 (1st Cir.1986) (en banc) (“Identifying generic categories of positions where partisan selection and rejection are permissible has ... proven to be an elusive and intractable task.”), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). This Court recently examined the El-rodr-Branti political dismissal exception and listed several inquiries useful in deciding whether a position is one “calling for party loyalty.” See Regan v. Boogertman, 984 F.2d 577, 579-80 (2d Cir.1993). These factors include whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders. See id. at 580; Ecker v. Cohalan, 542 F.Supp. 896," } ]

[ { "docid": "18570243", "title": "", "text": "MEMORANDUM DECISION FREDERICK A. JOHNSON, Bankruptcy Judge. The Debtor filed his voluntary petition seeking relief under Chapter 7 of the Bankruptcy Code on January 17, 1980. The schedules reveal a no-asset case. A discharge has not yet been granted. On May 9, 1980 the Debtor filed a motion to dismiss his petition on the ground that it had been filed by mistake. Pursuant to Section 707 of the Bankruptcy Code and Bankruptcy Rule 203 notice of a hearing on the Debtor’s motion to dismiss was mailed to all creditors on May 27,1980. The hearing was scheduled for June 10, 1980 at 9:30 A.M. Only the Debtor and his counsel appeared for the hearing. The only reason for seeking dismissal of his pending case is to enable the Debtor to file another petition and obtain a discharge of some $3,700 in additional debt incurred since the date of the filing of his original petition. The original petition was filed under the mistaken belief that a serious medical condition had stabilized. It was only after having filed that the Debtor learned that he was required to return to the hospital for further extensive medical treatment. DISCUSSION Section 707 of the Code, as pertinent, provides: The court may dismiss a case under this chapter only after notice and a hearing and only for cause . The Court must conduct a hearing and may dismiss the case only for cause. Collier on Bankruptcy, 15th ed. ¶ 707.01. In my view this means that the Court must conduct a hearing and find cause for the voluntary dismissal even though no interested party objects or appears in opposition to the motion. The issue: Has the Debtor demonstrated cause for a voluntary dismissal of his petition? The Court concludes that he has not. A debtor, of course, is free to choose if and when to file a petition under Chapter 7 of the Code. Once it is filed, however, the petition can not be voluntarily dismissed except by court order and then only for cause. The Debtor’s timing of the filing of his petition was unfortunate. However," } ]

[ { "docid": "12510727", "title": "", "text": "say a future' without debt until they borrowed again, or otherwise accrued new debt. See Harris v. Viegelahn, — U.S. -, 135 S.Ct. 1829, 1835, 191 L.Ed.2d 783 (2015). But between the announcement of the arbitration- award and the filing of the bankruptcy petition the Schwartzes spent thousands of dollars on inessential consumer goods and services, including tickets to Disney World (they have two children). Learning of these expenditures, Barclays, which was both the Schwartzes’ principal creditor and the only active opponent of granting a discharge, moved the bankruptcy court to dismiss the petition. It based its motion primarily on two provisions of 11 U.S.C. § 707 (we say “primarily” because Barclays’ challenge under section 707(b) was not limited to subsection (1) but extended to other subsections of 707(b) as well): (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including — (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521(a), but only on a motion by the United States trustee. (b)(1) After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor’s consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter.... Initially Barclays stressed subsection (b), pointing out that Schwartz’s debt was consumer debt, as it was debt created by a personal loan. The social goal of discharging a debt in bankruptcy is" }, { "docid": "19133436", "title": "", "text": "the Bankruptcy Code provides that: The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees and charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee. 11 U.S.C. § 707(a). Unlike a Chapter 13 debtor, a Chapter 7 debtor has no absolute right to voluntarily dismiss her Chapter 7 case. See 11 U.S.C. § 1307(b). To have her case dismissed by the court, the debtor must first establish “cause”. “Cause” is not defined under the Code. The three examples given in the statute are not exclusive, but are merely illustrative of the kinds of matters that constitute cause. See In re Padilla, 222 F.3d 1184, 1191 (9th Cir.2000); In re Simmons, 200 F.3d 738, 743 (11th Cir.2000); In re Bilzerian, 276 B.R. 285, 286 (M.D.Fla.2002), aff'd, 82 Fed. Appx. 213 (11th Cir.2003); In re Turpen, 244 B.R. 431, 434 (8th Cir. BAP 2000). To determine whether to grant a debtor’s motion to dismiss, courts generally consider: (1) whether all of the creditors have consented; (2) whether the debtor is acting in good faith; (3) whether dismissal would result in a prejudicial delay in payment; (4) whether dismissal would result in a reordering of priorities; (5) whether there is another proceeding through which the payment of claims can be handled; and (6) whether an objection to discharge, an objection to exemptions, or a preference claim in pending. In re Turpen, 244 B.R. 431, 434 (8th Cir. BAP 2000). But see In re Geller, 74 B.R. 685, 689 (Bankr.E.D.Pa.1987) (voluntary request for dismissal should be granted in all but extraordinary situations). In its simplest terms, the test turns on whether or not the dismissal is in" }, { "docid": "21948806", "title": "", "text": "in her Motion. In particular, the Debtor stated that she is a victim of domestic violence and currently resides in a shelter. The Debtor indicated that she is concerned for her personal safety and intends to relocate outside of the jurisdiction of the Court as promptly as she is able to do so. The Debtor provided documents, including police reports and a letter from a victim assistance agency, in support of these matters. Finally, at the January 17 Hearing, the Debtor stated that she was in the process of contacting her creditors to work out repayment plans or other arrangements as an alternative to bankruptcy. Discussion A debtor who has filed a petition under Chapter 7 of the Bankruptcy Code, unlike a debtor who has filed a petition under Chapter 13, does not have an absolute right to obtain the dismissal of his or her case. See In re Watkins, 229 B.R. 907, 908 (Bankr.N.D.Ill.1999). Rather, Section 707(a) of the Bankruptcy Code provides that a court may dismiss a Chapter 7 case only after notice and a hearing, and only “for cause.” 11 U.S.C. § 707(a). “Although [Section 707(a) ] does not expressly refer to a voluntary dismissal by the debtor, courts commonly conclude that it does apply to such a motion.” Turpen v. Eide (In re Turpen), 244 B.R. 431, 434 (8th Cir. BAP 2000). Section 707(a) lists three examples of “cause” that warrant dismissal. They are: (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees and charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States Trustee. 11 U.S.C. § 707(a). These examples are illustrative, not exhaustive. See 6 Collier on Bankruptcy, ¶ 707.03[1] at 707-15 (15th ed. rev.2001). In determining whether cause to dismiss exists, the court must consider the interests" }, { "docid": "13030530", "title": "", "text": "are not assured any distribution if the petition is dismissed. This case represents a current objectionable trend in bankruptcy cases in this district where debtors initially seek the benefits of the Bankruptcy Code but later move to dismiss their petitions when an asset, usually valuable, is discovered. Debtors should be cautioned that although they have an absolute right to file a bankruptcy petition, there is no absolute right to dismiss it. See Laura A. Pawloski. The Debtor Trap: the Ironies of Section 707(a), 7 Bankr.DevJ. 175, 180-81 (1990). See also, In re Blackmon, 3 B.R. 167, 169 (Bankr.S.D.Ohio 1980) (“While the debtor may choose to place himself in bankruptcy by voluntarily filing a petition with this Court to commence his case, he does not have the same degree of discretion in deciding whether he will terminate the proceedings once they are started.”); In re Klein, 39 B.R. 530, 532 (Bankr.E.D.N.Y.1984) (“A debtor who has filed a petition under Chapter 7 does not have an absolute right to dismiss his petition.”); In re Schwartz, 58 B.R. 923, 925 (Bankr.S.D.N.Y.1986) (quoting In re Klein). The applicable section provides: a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28, and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only a motion by the United States trustee. 11 U.S.C. § 707(a) (emphasis added). While the Bankruptcy Code does not specify who may move to dismiss a petition under § 707(a), most courts allow a debtor to move to dismiss only where “cause” exists. See In re Schwartz, 58 B.R. at 925. The situations listed in § 707(a)(l)-(3) are only illustrative, and a court may dismiss a petition on other grounds where cause exists. See" }, { "docid": "13717100", "title": "", "text": "in bad faith and concludes that good faith is a requirement for the filing of a bankruptcy petition no matter what the chapter. The district court affirmed, expressly holding that § 707(a) of the Code authorizes dismissal for bad faith. On appeal, Huekfeldt argues that the bankruptcy court committed an error of law in dismissing the Chapter 7 petition because (i)ability to repay debts is not grounds for dismissal under § 707(a), and (ii) his petition could not be dismissed for “substantial abuse” of Chapter 7 under § 707(b), which does focus on ability to pay. Because we uphold the dismissal under § 707(a), we need not consider Huckfeldt’s § 707(b) contentions. II. Section 707(a) provides that the bankruptcy court may dismiss a Chapter 7 proceeding only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee. In authorizing dismissal “for cause,” the statute does not define “cause,” beyond setting forth three specific examples. Use of the introductory word “including” means that these three types of “cause” are nonexclusive. See 11 U.S.C. § 102(3) (“ ‘includes’ and ‘including’ are not limiting”); P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 77 n. 7, 100 S.Ct. 328, 334 n. 7, 62 L.Ed.2d 225 (1979) (“including” means the enumerated items are part of a larger group). The legislative history to § 707(a) is meager but does contain one comment that provides the core of Huckfeldt’s § 707(a) argument on appeal: The section does not contemplate ... that the ability of the debtor to repay his debts in whole or in part constitutes adequate cause for dismissal. To permit dismissal on that ground would be to enact" }, { "docid": "19037520", "title": "", "text": "pension plans and all the cash value in the above described life insurance policies. On January 4, 1980, the trustee filed objections to the debtors’ exempting their interests in the “K” Employees Association and the NIPCO Pension Plan. At present, the exempt status of these assets is still in dispute. The debtors filed the motion to dismiss their petition in bankruptcy on December 13, 1979. As set forth in a memorandum submitted by debtors’ counsel, the debtors requested voluntary dismissal because they have discovered additional assets in their estate which they believe would allow them to satisfy a certain secured creditor. Their plan is to satisfy said creditor out of the proceeds of the newly discovered assets and then to refile a petition in bankruptcy within ninety days after their dismissal. The overall effect of the debtors’ professed intention would be to give one creditor a preference over all other creditors involved in this matter. There is no reason to believe the general unsecured creditors would be assured any debt satisfaction. CONCLUSIONS OF LAW While the debtor may choose to place himself in bankruptcy by voluntarily filing a petition with this Court to commence his case, he does not have the same degree of discretion in deciding whether he will terminate the proceedings once they are started. 11 U.S.C. § 707 cited in behalf of debtors, states that “[t]he court may dismiss a case under this chapter only after notice and a hearing and only for cause, including . . (1) unreasonable delay by the debtor that is prejudicial to creditors; and (2) nonpayment of any fees and charges required under Chapter 123 of title 28.” The legislative history of this section provides some guidance for the Court. House Report No. 95-595 explains that the causes enumerated in § 707(1) and (2), “are not exhaustive, but merely illustrative. The section does not contemplate, however, that the ability of the debtor to repay his debts in whole or in part constitutes adequate cause for dismissal. To permit dismissal on that ground would be to enact a non-uniform mandatory Chapter 13, in" }, { "docid": "18769089", "title": "", "text": "classified as frivolous. This lack of factual merit carries over to the motion to dismiss, although the legal issues presented by that matter are less clearly settled. Our belief that addressing same would be helpful in clarifying the applicable legal principles was our principal reason for not simply deciding this case from the bench in the Debtors’ favor. The principal statutory provision invoked by the creditors in their motion to dismiss is subsection (a) of 11 U.S.C. § 707, the entire text of which is as follows: § 707. Dismissal. (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee. (b) After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. We addressed this statutory provision only once before, in In re Getter, 74 B.R. 685 (Bankr.E.D.Pa.1987), where we had before us a request for a voluntary dismissal of a Chapter 7 and a related Chapter 11 case. There, we established, in a case presenting unappealing slumlord-debt ors, that we would grant such voluntary-dismissal motions “in all but extraordinary situations.” Id. at 690. However, given the policy against denying debtors the “fresh start” which bankruptcy accords to all" }, { "docid": "18495643", "title": "", "text": "dischargeability of the IIS debt ensued. Zick also moved for a stay pending appeal in bankruptcy court. The motion for stay was denied by the bankruptcy court on the basis that Zick was unlikely to succeed on the merits and that there had been sufficient opportunity to present evidence to the bankruptcy judge. Zick then requested a stay from the district court which also denied the request. The district court entered a memorandum opinion and order affirming the decision of the bankruptcy court to dismiss Zick’s Chapter 7 petition, from which this appeal was taken. A bankruptcy court decision to dismiss pursuant to 11 U.S.C. § 707(a) will be reversed only for abuse of discretion. In re Atlas Supply Corp., 857 F.2d 1061, 1063 (5th Cir.1988) (“Since equitable principles may be applied under the present Bankruptcy Code, the decision whether to grant a motion to dismiss a petition in bankruptcy lies within the discretion of the bankruptcy judge.”). 11 U.S.C. § 707(a) provides as follows: (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file ... the information required by paragraph (1) of section 521.... (emphasis added). IIS argues that this statute allows the bankruptcy court to consider “good faith” as a basis for dismissal of a Chapter 7 petition, and that it was not an abuse of discretion for the bankruptcy court to conclude that good faith was lacking in this petition for Chapter 7 relief. We are satisfied that the word “including” is not meant to be a limiting word. See 11 U.S.C. § 102(3); In Re Jones, Debt- or, 114 B.R. 917, 924 (Bankr.N.D.Ohio 1990). A lack of good faith, furthermore, has been recognized in a number of bankruptcy cases as a valid cause of dismissal under § 707(a). See, e.g., In re Sky Group Int’l, Inc., 108 B.R." }, { "docid": "4638943", "title": "", "text": "Although the serial filing of a Chapter 7 and a Chapter 13 case may raise questions of good faith under 11 U.S.C. § 1325(a)(3), it does not warrant the immediate dismissal of the Chapter 13 case. Olin’s reliance on In re Whitten, supra is misplaced. In Whitten, which did not involve a creditor’s motion to 'dismiss the case, the court found that the debtor’s sole purpose in filing under Chapter 13 was to forestall foreclosure indefinitely. In the instant case, the debtor not only hopes to prevent repossession of her automobile, but also seeks to satisfy her indebtedness under the applicable Code provisions. Olin has not challenged the debt- or’s financial ability to fund her Chapter 13 plan. Moreover, there is no legal authority for Olin’s contention that the Chapter 7 discharge extinguished all of the debtor’s interest in the automobile. Cf. In re Branch, 10 B.R. 227, 7 B.C.D. 540 (Bkrtcy.E. D.N.Y.1981). The question of good faith raised by the debtor’s serial filings is better reserved until consideration of the plan. CONCLUSION AND ORDER In summary and conclusion, Olin has not demonstrated the extraordinary circumstances which would justify the dismissal of a Chapter 13 petition for lack of good faith prior to the confirmation hearing. Accordingly, IT IS ORDERED, that Olin’s Motion to Dismiss the case is denied. . 11 U.S.C. § 1307(c) [0]n request of a party in interest and after notice and a hearing, the court may convert a pase under this chapter ... or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees and charges required under Chapter 123 of title 28; (3) failure to file a plan timely under section 1321 of this title; (4) denial of confirmation of a plan under section 1325 of this title and denial of additional time for filing another plan or a modification of a plan; (5) material default by the debtor with respect to a term of a confirmed plan;" }, { "docid": "13343369", "title": "", "text": "notes in the Motion and argued during the Hearing that the presumption in Code § 707(b) is applicable here. That presumption states as follows: “There shall be a presumption in favor of granting the relief requested by the debt- or.” Counsel, however, misreads this presumption. Normally, in a Code § 707 proceeding, another party, usually the trustee or a creditor, is moving for the Chapter 7 case to be dismissed because of some misconduct on the part of the debtor, such as delay, nonpayment of fees, or failure to file certain documents. In such a proceeding, the presumption applies in favor of the debtor to keep the Chapter 7 ease alive so that the debtor can proceed to the discharge stage of the case and receive the “fresh start” contemplated by the Code. Thus, because the Debtor here is the party moving for dismissal and not for maintaining the existence of the case, the presumption in Code § 707(b) is not applicable nor helpful to the Debtor. II. Debtor’s Purpose in Seeking Dismissal Does Not Rise to the Level of “Cause” The Debtor’s sole reason for seeking dismissal of the present Chapter 7 case so that she can file another Chapter 7 case is the potential liability which may arise from the Accident. The Debtor testified during the Hearing that this was the only reason why the Motion was filed. This reason does not rise to the level of “cause” which the Court must find in order to grant the Motion. Case law is clear in holding that the dismissal of a voluntary bankruptcy proceeding for the purpose of refiling another case is not cause for dismissal. Carroll, 24 B.R. at 87. The Debtor’s purpose, it would seem, would be to dismiss the present case in order to refile and include any creditors who may come into existence as a result of the Accident; thus, the Debtor would be able to add creditors who came into existence following the first petition but prior to the second petition. Case law, again, is clear in holding that a debtor is not entitled" }, { "docid": "3849474", "title": "", "text": "order, of discharge, however, had ever been entered. ISSUES ON APPEAL 1. Did the court err in dismissing the Debt- or’s case under section 707(a) for lack of good faith. 2. Did the court err in revoking the Debt- or’s discharge. STANDARD OF REVIEW Dismissal under section 707(a) is subject to the court’s sound discretion. Eastman v. Eastman (In re Eastman), 188. B.R. 621, 624 (9th Cir. BAP 1995). Findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. Leach v. United States Internal Revenue Service (In re Leach), 130 B.R. 855, 856 (9th Cir. BAP 1991); Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); In re American Mariner Indus., Inc., 734 F.2d 426, 429 (9th Cir.1984). DISCUSSION The Debtor alleges the court erred in dismissing the case because (a) there was insufficient evidence in the record to dismiss, (b) the UST’s motion sought dismissal only for unreasonable delay, when there was no unreasonable delay, and (c) the UST sought dismissal for an improper, purpose, circumventing the procedures of sections 523 and 727; and none of the creditors had filed nondischargeability complaints against the debtor. I. Dismissal under section 707(a) The bankruptcy court’s order of dismissal was based on the Debtor’s lack of good faith in filing his chapter 7 petition. Section 707(a) provides: (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors. (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary ease to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion of the United States Trustee. 11 U.S.C. § 707(a). The examples of cause in section 707(a) are “merely illustrative and are not an exhaustive listing.” In re Tanguay, 206 B.R. 575, 577" }, { "docid": "13717099", "title": "", "text": "his debts through a Chapter 7 liquidation. The Creditors argued that this bad faith warranted dismissal under sections 105, 109, 301, and 707 of the Bankruptcy Code. After a hearing, the bankruptcy court granted the Creditors’ motion to dismiss. After finding that Roger could be earning $110,000 to $120,000 per year, after all expenses except income tax, the court stated: It is the purpose of the bankruptcy system to provide a fresh start for the honest but unfortunate debtor. It is not the purpose of the bankruptcy system to eliminate the obligations of a party who is capable of paying same. The Court believes debtor filed this bankruptcy petition in bad faith and with the deliberate intention of unloading debt, particularly that to his spouse, which he could shortly begin to repay. Further this Court believes it was the intent of the debtor to leave his ex-spouse with all the debts and obligations incurred over the twelve years and force her into a bankruptcy situation also.... Accordingly the Court concludes that this case was filed in bad faith and concludes that good faith is a requirement for the filing of a bankruptcy petition no matter what the chapter. The district court affirmed, expressly holding that § 707(a) of the Code authorizes dismissal for bad faith. On appeal, Huekfeldt argues that the bankruptcy court committed an error of law in dismissing the Chapter 7 petition because (i)ability to repay debts is not grounds for dismissal under § 707(a), and (ii) his petition could not be dismissed for “substantial abuse” of Chapter 7 under § 707(b), which does focus on ability to pay. Because we uphold the dismissal under § 707(a), we need not consider Huckfeldt’s § 707(b) contentions. II. Section 707(a) provides that the bankruptcy court may dismiss a Chapter 7 proceeding only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within" }, { "docid": "18769088", "title": "", "text": "concealment or destruction of assets which justifies denial of discharge on the basis of this Code section, not unwise but disclosed waste of same. Regarding § 727(a)(5), as we stated in Somerville, 73 B.R. at 837, “the objector must produce more than merely an allegation that the Debtor has failed to explain losses ... e.g., the objector must produce some evidence of the disappearance of substantial assets or of unusual transactions.” Here, it appears that the Debtor suffered the loss of the proceeds of Sinkow’s loan in investments in his business, which Sinkow ultimately recouped by purchasing the business at a sheriff’s sale. Sinkow produced no evidence of any specific assets lost, let alone proof of suspicious disappearance of assets. It also appears that no equities whatsoever support this claim, since Sinkow himself has obtained possession of the assets formerly belonging to the Debtor, and that it thus appears oppressive for Sinkow to even raise such a claim. In evaluating Sinkow's adversary proceeding, we therefore conclude that it is totally without merit and could be classified as frivolous. This lack of factual merit carries over to the motion to dismiss, although the legal issues presented by that matter are less clearly settled. Our belief that addressing same would be helpful in clarifying the applicable legal principles was our principal reason for not simply deciding this case from the bench in the Debtors’ favor. The principal statutory provision invoked by the creditors in their motion to dismiss is subsection (a) of 11 U.S.C. § 707, the entire text of which is as follows: § 707. Dismissal. (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1)" }, { "docid": "2126984", "title": "", "text": "through the filing of the petition, she would not have filed the case. According to the Debtor, since the filing of the case, she has continued to pay the first mortgage and home equity line of credit on her residence. The Debtor alleges that since the filing of the petition, she has sought employment and contacted family members to provide loans in order to resume payment of her personal debt as contained in the Schedules. The Debtor seeks to satisfy her creditors outside of the bankruptcy process. The Trustee objects to the dismissal on the basis that a Chapter 7 debtor does not have an absolute right to dismiss the bankruptcy case. The Trustee argues that creditors will be prejudiced by the dismissal, and the sale of the Debtor’s residence is the only way that creditors will be satisfied. The Debtor argues that her creditors will not be prejudiced by the dismissal because they will be returned to the status quo that they held before the bankruptcy filing. III. DISCUSSION A Chapter 7 case can only be dismissed for “cause” under 11 U.S.C. § 707(a). In re Watkins, 229 B.R. 907, 908 (Bankr.N.D.Ill.1999). A Chapter 7 debtor does not have an absolute statutory right to voluntarily dismiss a Chapter 7 bankruptcy petition like a Chapter 13 debtor has under 11 U.S.C. § 1307(b). Section 707(a) provides as follows: (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees and charges required under chapter 123 of title 28 [28 U.S.C. §§ 1911 et seq.]; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee. 11 U.S.C. § 707(a). Thus, a debtor does not have an absolute right to dismiss a Chapter 7" }, { "docid": "10221580", "title": "", "text": "Stipulation contemplates dismissal of these actions, we are obliged to consider 11 U.S.C. §§ 707(a) and 1112(b), which provide as follows: Sec. 707. Dismissal (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under Chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee.... Sec. 1112. Conversion or dismissal (b) Except as provided in subsection (c) of this section, on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause, including— (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation; (2) inability to effectuate a plan; (3) unreasonable delay by the debtor that is prejudicial to creditors; (4) failure to propose a plan under section 1121 of this title within any time fixed by the court; (5) denial of confirmation of every proposed plan and denial of a request made for additional time for filing another plan or a modification of a plan; (6) revocation of an order of confirmation under section 1144 of this title, and denial of confirmation of another plan or a modified plan under section 1129 of this title; (7) inability to effectuate substantial consummation of a confirmed plan; (8) material default by the debtor with respect to a confirmed plan; (9) termination of a plan by reason of the occurrence of a condition specified in the plan; or (10) nonpayment of any fees" }, { "docid": "6889740", "title": "", "text": "ORDER COPENHAVER, District Judge. The debtors, after filing their Chapter 7 voluntary petition in bankruptcy, sought to dismiss their petition in order to refile and add a post-petition tort creditor whose $2,400 claim arose out of an automobile accident involving the husband-debtor some three months after, the bankruptcy filing. The bankruptcy court, finding that the debtors had failed to show cause for the dismissal under Section 707 of the Bankruptcy Reform Act of 1978, 11 U.S.C. § 707, denied the motion to dismiss. In re Underwood, 7 B.R. 936, 7 BCD 130 (Bkrtcy.S.D.W. Va.1981). The bankruptcy court’s denial of the motion is affirmed. Section 707 provides as follows: The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; and (2) nonpayment of any fees and charges required under chapter 123 of title 28. The two examples given in section 707 specify grounds constituting cause when a creditor seeks the involuntary dismissal of a debtor’s petition in bankruptcy. It can thus be argued that section 707 has no application where the debtor seeks dismissal of his own voluntary petition. Section 707, however, is not by its terms so limited. In re Williams, 15 B.R. 655, 8 BCD 539 (E.D.Mo.1981). Moreover, there is simply no sound reason why a voluntary debtor should not be required to show cause when he seeks dismissal. The court concludes that section 707 governs the proposed dismissal by a debtor of a voluntary petition. In this case, the debtors suggest that they need not show cause inasmuch as no creditor has objected to the proposed dismissal. Pursuant to Rules 120(a) and 203(a)(5) of the Bankruptcy Rules of Procedure, the creditors listed in the debtors’ schedules were notified by the court of a hearing on the proposed dismissal, at which hearing no objection was heard. It is observed that the term creditor is defined in section 101(9) of the Act and does not for purposes here include a post-petition creditor. 11 U.S.C. § 101(9). Accordingly, the tort" }, { "docid": "13030531", "title": "", "text": "923, 925 (Bankr.S.D.N.Y.1986) (quoting In re Klein). The applicable section provides: a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28, and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only a motion by the United States trustee. 11 U.S.C. § 707(a) (emphasis added). While the Bankruptcy Code does not specify who may move to dismiss a petition under § 707(a), most courts allow a debtor to move to dismiss only where “cause” exists. See In re Schwartz, 58 B.R. at 925. The situations listed in § 707(a)(l)-(3) are only illustrative, and a court may dismiss a petition on other grounds where cause exists. See Collier on Bankruptcy, supra, ¶ 707.03[1] at 707-7. See also, 11 U.S.C. § 102(3). What constitutes “cause” within the meaning of § 707(a) has been the source of much judicial opining and scholarly debate. See generally, Pawloski, supra, at 180-93 (discussing how courts have developed different tests to determine dismissal under § 707(a)). The predominant approach, at a minimum, requires that dismissal not cause prejudice to the creditors. See Collier on Bankruptcy, supra, ¶ 707.03[3] at 707-13. See also, In re Schwartz, 58 B.R. at 925 (“[T]he test is whether dismissal is in the best interest of the debtor and his creditors.”); In re Klein, 39 B.R. at 531 (stating that the applicable test is whether “dismissal will cause no legal prejudice to interested parties.”) Hence, the core issue here is whether dismissal would cause the creditors prejudice. The Debtor made the motion and, accordingly, has the burden of proof to show that dismissal would not prejudice the creditors. Generally, a debtor’s interest is in securing a fresh start through a discharge. See In re" }, { "docid": "21135149", "title": "", "text": "dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debt- or that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521(a), but only on a motion by the United States trustee. 11 U.S.C. § 707(a). Because § 707(a) uses the word “including” before it sets forth the three enumerated grounds for dismissal, and because “the word ‘including’ is not meant to be a limiting word,” the specific grounds set forth in § 707(a)(1) through (a)(3) do not delineate the entire universe of “for cause” dismissals. Indus. Ins. Servs., Inc. v. Zick (In re Zick), 931 F.2d 1124, 1126 (6th Cir.1991). In addition to the enumerated examples of cause, a debt- or’s “lack of good faith is a valid basis of decision in a ‘for cause’ dismissal by a bankruptcy court.” Id. at 1127. While some courts have disagreed with Zick on this point, the Court is bound to follow Sixth Circuit law. In assessing whether a debtor has engaged in bad faith conduct warranting dismissal, courts are free to use the “smell test,” which the Sixth Circuit has identified as having “particular merit.” Id. Courts, however, are not permitted to simply declare that a debtor has failed the “smell test.” Rather, courts must show that they have relied on objective factors, which “are essential in appellate review.” Id. at 1128. That is, a court’s “observation that [a debtor’s] bankruptcy petition fails to pass the smell test [should not be an] arbitrary, unsupportable conclusion,” but instead should be “based on numerous objective factors.” Merritt v. Franklin Bank, N.A. (In re Merritt), No. 98-2399, 2000 WL 420681, at *3 (6th Cir. Apr. 12, 2000) (internal quotation marks omitted). Those factors, the Sixth Circuit explained in Zick, “are as" }, { "docid": "3849475", "title": "", "text": "purpose, circumventing the procedures of sections 523 and 727; and none of the creditors had filed nondischargeability complaints against the debtor. I. Dismissal under section 707(a) The bankruptcy court’s order of dismissal was based on the Debtor’s lack of good faith in filing his chapter 7 petition. Section 707(a) provides: (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors. (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary ease to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion of the United States Trustee. 11 U.S.C. § 707(a). The examples of cause in section 707(a) are “merely illustrative and are not an exhaustive listing.” In re Tanguay, 206 B.R. 575, 577 (Bankr.M.D.Fla.1997) (quoting In re Hammonds, 139 B.R. 535, 541 (Bankr.D.Colo.1992) (citing H.R. No. 95-595, 95th Cong., 1st Sess. 380 (1977); S.Rep No. 95-989, 95th Cong., 2d Sess. 94 (1978); U.S.Code, Cong. & Admin.News 1978 pp. 5787, 5880, 6336)). Lack of good faith in filing has developed as a cause for dismissal. By seeking discharge, however, respondent placed the rectitude of his prior dealings squarely in issue, for, as the Court has noted, the Act limits that opportunity to the “honest but unfortunate debtor.” Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 2208, 60 L.Ed.2d 767 (1979) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)); In the Matter of Quarter Moon Livestock Company Inc., 116 B.R. 775, 781 (Bankr.D.Idaho 1990); 4 Collier on Bankruptcy, # 707.03, 707-709 (15th ed.1989). While the requirement of good faith in filing is not codified by the Bankruptcy Code, case law has developed an intense fact-based inquiry in determining good faith. Several bankruptcy courts applying these “good faith” criteria" }, { "docid": "10221579", "title": "", "text": "that approval of the Stipulation “will pay funds from the estate to certain creditors, thereby precluding equal distribution of funds to all creditors.” In its Brief, containing two pages and five lines of “Argument,” despite its belated filing on April 20, 1987, Acacia states as follows: [The Tenants’ counsel] represents several of the creditors of Geller. [The Tenant’s counsel] has expended considerable time and expenses in order to achieve the aforementioned objective. Their continued efforts to determine assets of Geller’s has resulted in Geller’s desire to have them removed from the case. The Dismissal of Geller frees Geller of continued investigation by [the Tenant’s counsel], the only creditor [sic] who has continued its pursuit of an investigation of Geller’s assets. Since the Stipulation represented a settlement of a controversy advanced by Debtors, we note, as we discussed at some length in In re Grant Broadcasting of Philadelphia, Inc. (Second Opinion), 71 B.R. 390, 395-96 (Bankr.E.D.Pa.1987), that a settlement will be approved as long as it clears a low threshold of reasonability. However, since this particular Stipulation contemplates dismissal of these actions, we are obliged to consider 11 U.S.C. §§ 707(a) and 1112(b), which provide as follows: Sec. 707. Dismissal (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including— (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under Chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee.... Sec. 1112. Conversion or dismissal (b) Except as provided in subsection (c) of this section, on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may" } ]

[ { "docid": "7878781", "title": "", "text": "on multiple conspiracies? MR. GROURKE: That’s correct, your Honor. THE COURT: I don’t think we have a multiple conspiracy in this case, and I deny that request. MR. GROURKE: Thank you. THE COURT: I give you an exception. MR. GROURKE: Thank you, your Hon- or. (Open court) The defendant had filed no written requests for instructions. For aught that appears, defense counsel may simply have directed the attention of the trial judge to the last six counts of the indictment which charge D’Alessio and Ashley with having used the telephone to facilitate the conspiracy to sell quantities of cocaine larger than could be arranged by D’Alessio, a conspiracy arguably distinct from that alleged in Count I. So far as appears from the record, the defendant simply asked the trial judge to instruct on the subject matter of multiple conspiracies; and at no time indicated to the judge what instruction he believed should be given. Accordingly our review will be confined to determining whether the judge’s omission to instruct on multiple conspiracies constituted plain error. The test for such error is whether there was a variance between the conspiracy charged in the indictment and the one implicating the defendant according to the evidence adduced at trial which prejudiced the substantial rights of the accused. See United States v. Cambindo Valencia, 609 F.2d 603, 621-29 (2d Cir.1979), cert. denied sub nom. Prado v. United States, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980). The initial question to be asked is whether the evidence is sufficient to permit a jury to find the agreement that the indictment charges. United States v. Glenn, 828 F.2d 855, 858 (1st Cir.1987). In the instant case, this question must be answered affirmatively. The conspiracy charged in Count I was the standard violation of 21 U.S.C. § 846, charging an unlawful agreement by several defendants in a specified place during a specified period of time to distribute knowingly a controlled substance. The charge was relatively simple, naming only five defendants and embracing a period of only seven months. The proof was even simpler. Only three defendants" } ]

[ { "docid": "20797698", "title": "", "text": "distribution plans, and testimony by DEA agents about Whitman’s post-arrest cooperation and statements that made his role in a planned marijuana transaction rather clear. We therefore conclude that the vouching in this ease did not constitute reversible error. 3. Motions for Mistrial and New Trial We recognize that several incidents of prosecutorial misconduct, none of which would separately constitute grounds for mistrial, could have a cumulative impact on the jury sufficient to affect the trial’s outcome. We review a trial judge’s ruling on a motion for a mistrial, or for a new trial, only for abuse of discretion. United States v. Barbioni, 62 F.3d 5, 7 (1st Cir.1995) (motion for mistrial); Glantz, 810 F.2d at 320 & n. 2 (motion for new trial because of improper argument). Although the Assistant United States Attorney in this case exceeded the permissible limits of proper argument, we cannot say that his action was deliberate and we do not believe that the closing arguments, viewed collectively, affected the outcome or the fairness of this trial. For the reasons set forth in our review of the challenged comments, we hold that the trial judge did not abuse his discretion in denying the defendants’ motions for a mistrial and for a new trial. C. Single Conspiracy vs. Multiple Conspiracies The jury convicted both Wihbey and Whitman under Count I of the indictment, which charged a single marijuana distribution conspiracy among six persons (the two defendants along with Britt, Rohan, Weiner, and Camyre). Wihbey and Whitman argue that the evidence was insufficient to allow the jury to find a single conspiracy, and that the evidence showed instead two separate conspiracies. The framework for analyzing when a variance between the conspiracy charged and the conspiracy proven constitutes reversible error was set forth in United States v. Glenn: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so [i.e., the answer" }, { "docid": "21894898", "title": "", "text": "the export of a missile system conceived specifically for the purpose of destroying British military helicopters. Quigley insists that there was insufficient evidence of his involvement in any pre-1988 arms export activity to support his conviction for the broad conspiracy he finds charged in Count One. In United States v. Glenn, 828 F.2d 855 (1st Cir.1987), we adopted a three part test for determining whether a prejudicial variance exists as to any defendant. We determine first whether there is “evidence sufficient to permit a jury to find the ... agreement that the indictment charges,” Id. at 858. Where no such evidence exists, we consider whether the evidence is “sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy.” Id. Where such evidence exists, we ask whether the variance amounts to “harmless error.” Id. Because we answer the first of the Glenn inquiries in the affirmative, we need not address the other two. On December 15, 1988, Quigley asked Johnson, over a pay telephone, to assist him in the production of a missile system “to counteract ... low flying helicopters.” Quigley adverted to his awareness of Johnson’s pre-1988 work perfecting PIRA weaponry, including a laser-detonation mechanism for the remote control bombs, and to his own past and ongoing efforts on this score. This conversation permits an inference that Quigley not only knew about, but also participated in, the pre-1988 operations. At the least, it shows that Quigley recognized that the post-1988 missile system on which he worked was simply the most recent in a series of projects undertaken by the conspirators to assist the PIRA in its attacks against British interests in Northern Ireland. Thus, whatever his particular involvement in the pre-1988 work, we think the record at a minimum shows a “tacit understanding,” Glenn, 828 F.2d at 858, on Quigley’s part, that he was joining an extant scheme to bring about the forcible reunification of Ireland. Quigley was properly charged, and found culpable for, his membership in the broad conspiracy described in Count One. We find no merit to Quigley’s" }, { "docid": "5305871", "title": "", "text": "12 was the “drug proceeds that Sanborn had recently delivered to Szpyt.” We disagree. Although it is certainly conceivable that the money found in Dellosantos' possession was money Sanborn had given to Szpyt in the previous couple of weeks, we cannot see how a reasonable jury examining this evidence could determine — without speculating' — that the $6,000 found on Dellosantos consisted, in whole or in part, of money that Sanborn paid Szpyt. . Brian Tully did not identify the voices on the phone call, but the government asserts the call was between Dellosantos and Szpyt, the transcript of the call indicates it was between Dellosantos and Szpyt, and the Defendants do not seem to contest this fact. . Szpyt does not challenge these last four convictions on any basis independent from his challenge to Count 1. Count 40, which also charged Szpyt with using a communication facility to facilitate the commission of the conspiracy, was dropped during trial on the government's motion. Count 7, which charged Szpyt with unlawful possession of firearms, was also dismissed on the government’s motion. . This analytical approach is consistent with the framework set forth in previous cases for analyzing when a variance between the conspiracy charged and the conspiracy proven constitutes reversible error: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is [the evidence] sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so [i.e., the answer to (2) is yes], does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error”? Wihbey, 75 F.3d at 773 (second alteration in original) (quoting Glenn, 828 F.2d at 858). . The court also concluded that the evidence against a co-defendant varied from the charges in the indictment, though it ultimately affirmed the co-defendant's conviction because the variance did not prejudice the co-defendant. See Glenn, 828 F.2d at 860-61. . For purposes of this appeal," }, { "docid": "5305857", "title": "", "text": "and the conspiracy for which there was sufficient evidence that the Defendants actually joined) unfairly prejudiced the Defendants. 3. The Defendants did not Join the Conspiracy Specified in the Indictment As previously mentioned, the indictment charged the Defendants \"with participation in a single Maine-based conspiracy to distribute and possess with intent to distribute both cocaine and marijuana. The evidence, however, established the existence of at least two distinct conspiracies: (1) the Massachusetts-based Vizcaino-Dellosantos-Szpyt conspiracy to distribute cocaine, and (2) the Maine-based Sanborncentered conspiracy to distribute both cocaine and marijuana. Mindful of this variance, we find that the Defendants’ convictions cannot stand for two reasons. First, we find that the evidence was insufficient to support a verdict that either Szpyt or Dellosantos knowingly and voluntarily joined the Sanborn-centered conspiracy to distribute both cocaine and marijuana. Second, assuming without deciding that the evidence was sufficient to permit a jury to find the Defendants guilty of joining the Vizcaino-Dellosantos-Szpyt conspiracy to distribute cocaine, we find that the Defendants would be unfairly prejudiced by the difference between the conspiracy specified in the indictment and the Vizcaino-Dellosantos-Szpyt conspiracy to distribute cocaine. These two findings are discussed separately in the following sections. a. The Evidence was Insufficient to Establish that the Defendants Joined the Sanborn-centered Conspiracy While the indictment charged the Defendants with joining a single overarching conspiracy to distribute both cocaine and marijuana, the evidence proved at least two distinct conspiracies, i.e., the Vizcaino-Dellosantos-Szpyt conspiracy to distribute cocaine and the Sanborn-centered conspiracy to distribute both cocaine and marijuana. Under our previously mentioned framework, if we were to find sufficient evidence for a jury to find the Defendants guilty of joining the Sanborn-centered conspiracy, then the question would arise as to whether the variance between the charged conspiracy and the Sanborn-centered conspiracy was harmless. See Wihbey, 75 F.3d at 773 (quoting Glenn, 828 F.2d at 858). We, however, do not have to answer this question conclusively, given that, as discussed below, we find that the evidence was insufficient for a rational factfinder to conclude beyond a reasonable doubt that the Defendants joined the San-born-centered conspiracy. In" }, { "docid": "22221041", "title": "", "text": "overall agreement is far less than the involvement of others, we have been reluctant to secondguess severance denials. See, e.g., Cresta, 825 F.2d at 554-55; Arruda, 715 F.2d at 679; Smolar, 557 F.2d at 21. In the present case, of course, the same considerations which authorize join-der militate in favor of overruling defendants’ Rule 14 claim. Moreover, we discern no unfair or unacceptable level of prejudice, that is, we see little beyond the type and degree of prejudice customary in virtually all high-profile trials of multiple defendants and charges. There is nothing to suggest that the number of defendants and charges was so large that the jury could not distinguish among them. See Luna, 585 F.2d at 5. The discriminating verdict itself (as respects counts 28 and 40) evidenced that the jurors were able to, and did, follow the court’s instructions. See Cresta, 825 F.2d at 554-55; Tashjian, 660 F.2d at 834. Furthermore, as we describe more particularly infra Part V(B), the trial judge took effective measures to prevent any significant spillover from materializing. There were appropriate limiting instructions as to the admissibility of evidence against particular defendants and as to the need to determine guilt on an individual basis. All in all, this situation manifests the benefits of consolidated trials, with no corresponding drawbacks sufficient to necessitate severance. See Cresta, 825 F.2d at 555; Arruda, 715 F.2d at 678-79. There was no misuse of the district court’s Rule 14 discretion. V. VARIANCE Appellants assert with considerable fervor that there were material variances between the conspiracies charged and proven. We are fully satisfied, for reasons implicit in what we have already written, that no variance existed among the several bar/restaurant/nightclub protection schemes, on the one hand, and the charged RICO conspiracy, on the second hand. The only doubtful area concerns whether the UL crimes (Series J) were properly within the scope of the master conspiracy; and if not, whether transferred guilt (or “spillover”) attributable to them led the jury to convict on the RICO charges. A. Was There a Variance? Our analytic roadmap is well drawn: [A]n appellate court, reviewing" }, { "docid": "22221043", "title": "", "text": "the type of alleged variance ... should ask the following questions. (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant’s substantial rights or does the dif ference between the charged conspiracy and the conspiracy proved amount to “harmless error?” Glenn, 828 F.2d at 858; see also United States v. Thomas, 895 F.2d 51 at 55-57 (1st Cir.1990). In this case, the journey’s first leg is humdrum; the evidence was unquestionably sufficient to permit a jury to find the RICO conspiracy. It was also sufficient, however, to permit the jury to find other, less encompassing conspiracies. Most pertinent for present purposes, we think that the UL crimes constituted a separate conspiracy and that the evidence did not allow a finding that they were within the master conspiracy’s scope. We start by stating the obvious: the UL plot, on its face, seems a breed apart from the other racketeering allegations mentioned in the indictment. For one thing, the illegal activity — defrauding a business by trick — was dissimilar in nature and kind to that involved in the bar/restaurant/nightclub schemes. The method of operation was foreign to the other schemes; rather than being accomplished through a series of consensual payments resulting from extortion or improper favors, Series J involved the procurement of money through mail fraud, forgery, and misrepresentation. Such methodologic differences are important. See, e.g., Rivera-Santiago, 872 F.2d at 1079; Drougas, 748 F.2d at 17. The target was also dissimilar; UL, a wholesaler and importer, was not the operator of licensed premises open to the paying public. It was therefore not subject to the sort of street-level oversight and regulatory control that made the other businesses so vulnerable to corrupt enforcement and undeserved preferences. Preying upon UL required a different tack. This uniqueness had another relevant aspect: unlike the bar/restaurant/nightclub schemes, which fed upon one another," }, { "docid": "22221045", "title": "", "text": "it seems doubtful that the UL “venture could have helped the [other] venture[s], or vice versa.” See Glenn, 828 F.2d at 859. Then, too, the billboard caper was much more tightly circumscribed, known by far fewer defendants, and bereft of the interconnections so prevalent among the other series of racketeering acts. Only Nave and Sheehan were directly involved. There is precious little evidence to suggest that any of the other defendants approved of, joined, or shared Nave’s and Sheehan’s efforts to conduct BPD affairs through mail fraud. Put bluntly, too few of the common threads which ran through the fabric of the other racketeering acts ensnarled the UL affair. To be sure, criminal conspiracies come in a wide variety of sizes, shapes, and styles. Yet, a prosecutor cannot string disparate incidents together by strands of supposition and surmise and expect the tie to bind. In this instance, the government argues that all the defendants, in Series J and beyond, used their official positions illegally to gain things of value. That is so — but it cannot be enough. There must be more of a nexus than rough temporal and geographic identity and affiliation with the same governmental unit. Were the government’s generality legally sufficient, the prosecution could enfold within the RICO conspiracy charge every other BPD officer who, for example, may have accepted gratuities for voiding parking tickets in District 4 during the same time frame. We cannot accept that the law would allow painting with so broad a brush, conglomerating a bewildering array of markedly dissimilar criminal acts as part of a single RICO conspiracy on so tenuous a connection as has been demonstrated here. The UL affair did not belong within the confines of the omnibus RICO conspiracy. To this extent, a variance existed. B. Was There Prejudice? At the bottom line, the finding that the UL scheme constituted a variance does not profit the appellants: we conclude that the variance did not impact any defendant’s substantial rights and, thus, can be dismissed as harmless. Variance requires reversal only where defendants demonstrate that the difference in proof somehow" }, { "docid": "21894897", "title": "", "text": "on a variety of grounds independent of those asserted by appellants as a group. He maintains that a prejudicial variance between the conduct charged in Count One and the evidence adduced at trial denied him a fair trial, that the evidence was insufficient to support his convictions on Counts One and Four, and that the district court’s denial of his motion for severance deprived him a fair trial. A. The Variance and Sufficiency Claims Quigley argues that a prejudicial variance between the conspiracy charged in Count One and the evidence adduced at trial produced reversible error. Count One describes a single conspiracy, spanning the years between 1981 and 1989, “to further the forcible reunification of Northern Ireland and the Republic of Ireland by means of an armed insurrection waged by the Provisional Irish Republican Army against British and Northern Ireland authorities.” According to Quigley, however, the evidence at trial proved the existence of two conspiracies, one directed at the export of defense articles and services for the perfection of remote-control bombs, and another aimed at the export of a missile system conceived specifically for the purpose of destroying British military helicopters. Quigley insists that there was insufficient evidence of his involvement in any pre-1988 arms export activity to support his conviction for the broad conspiracy he finds charged in Count One. In United States v. Glenn, 828 F.2d 855 (1st Cir.1987), we adopted a three part test for determining whether a prejudicial variance exists as to any defendant. We determine first whether there is “evidence sufficient to permit a jury to find the ... agreement that the indictment charges,” Id. at 858. Where no such evidence exists, we consider whether the evidence is “sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy.” Id. Where such evidence exists, we ask whether the variance amounts to “harmless error.” Id. Because we answer the first of the Glenn inquiries in the affirmative, we need not address the other two. On December 15, 1988, Quigley asked Johnson, over a pay telephone, to assist" }, { "docid": "23142727", "title": "", "text": "right, that the evidence shows he participated only in a simpler, stripped-down version of the general conspiracy, this variance would not entitle him to a new trial. In Glenn, we said that a court, in considering variance claims, should ask three questions: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant’s substantial rights? 828 F.2d at 858. Here, even assuming that the answer to the first question is “no,” and to the second question is “yes,” the answer to the third question is “no.” This is not a case, like Glenn’s, where the variance made an obvious difference. Glenn’s conviction for the broad conspiracy charged allowed the government to establish a venue, and permitted the jury to convict him of substantive crimes done by his co-eonspira-tors, neither of which would have been permissible had he only been charged with the smaller conspiracy actually proved at trial. Id,., 828 F.2d at 860. Instead, this case is like that of Glenn’s codefendant, Benevides, where the variance was “harmless error” because no clear legal prejudice arose from the variance, and where the law would have permitted the sentence he received, for either the conspiracy charged or the smaller conspiracy proved. Id. at 861. C. Mailings Appellants DOHERTY, PINO, R. CLEMENTE, and SALERNO argue that the government failed to prove an essential element of mail fraud, that they “knowingly cause[d] [matter] to be delivered by mail,” “for the purpose of executing” their “scheme ... to defraud.” 18 U.S.C. § 1341. Our review of the record reveals that their claim is wrong. The government presented evidence of standard MDPA mailing practices, from which the jury could conclude that the MDPA mailed notices of promotion interviews to R. CLEM-ENTE, PINO, DOHERTY, and many other officers to whom the conspirators provided exams; that it would not have mailed these notices to these" }, { "docid": "14032331", "title": "", "text": "both drugs. Only Glenn’s conviction required reversal, however, because only he suffered significant prejudice from the variance. This prejudice stemmed from the judge’s instruction to the jury that, if it found Glenn guilty of the conspiracy, it could also find him guilty of the substantive charges relating to the marijuana even though there was no evidence tying Glenn to the import or possession of marijuana. Glenn provides the outline for our approach in variance cases: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error?” Glenn, 828 F.2d at 858; see also Berger, 295 U.S. at 82, 55 S.Ct. at 630 (“The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.”). In Berger, the Court noted two ways in which a defendant may be substantially prejudiced by a variance. He may receive inadequate notice of the charges against him and thus be taken by surprise at trial, or he may be twice subject to prosecution for the same offense. Berger, 295 U.S. at 82, 55 S.Ct. at 630-31. This court has identified a third type of harm known as “spillover”: “the transference of guilt to an individual defendant involved in one conspiracy from evidence incriminating defendants in a conspiracy in which the particular defendant was not involved.” United States v. Thomas, 895 F.2d 51, 56 and n. 7 (1st Cir.1990) (quoting United States v. Levine, 569 F.2d 1175, 1177 (1st Cir.), cert. denied, 436 U.S. 928, 98 S.Ct. 2824, 56 L.Ed.2d 771 (1978)); see also United States v. Drougas, 748 F.2d 8, 18 (1st Cir.1984); United States v. Flaherty, 668 F.2d 566, 580 (1st Cir. 1981). “Spillover”" }, { "docid": "14032330", "title": "", "text": "charged a single conspiracy to distribute “marijuana and cocaine,” but the proof at trial arguably demonstrated that there may have been two conspiracies — one to distribute marijuana and one to distribute cocaine — or, as appellants contend, that there was no conspiracy to distribute marijuana at all. Appellants claim that a variance analysis, which focuses on discrepancies between indictment and proof, is inappropriate here, because the government waived its right to a variance analysis in failing to object to the charge as it went to the jury. We are not persuaded, and find instead that this case is controlled by our decision in United States v. Glenn, 828 F.2d 855 (1st Cir.1987). In Glenn, two defendants were convicted of conspiracy to import and possess marijuana and hashish, and actual possession of marijuana. This court found that the evidence proved not one but two separate conspiracies. One defendant, Glenn, had participated in the hashish conspiracy, and the other defendant, Benavides, had participated in the marijuana conspiracy, but neither defendant had conspired to import and possess both drugs. Only Glenn’s conviction required reversal, however, because only he suffered significant prejudice from the variance. This prejudice stemmed from the judge’s instruction to the jury that, if it found Glenn guilty of the conspiracy, it could also find him guilty of the substantive charges relating to the marijuana even though there was no evidence tying Glenn to the import or possession of marijuana. Glenn provides the outline for our approach in variance cases: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error?” Glenn, 828 F.2d at 858; see also Berger, 295 U.S. at 82, 55 S.Ct. at 630 (“The true inquiry ... is not whether there has been a variance" }, { "docid": "20797699", "title": "", "text": "forth in our review of the challenged comments, we hold that the trial judge did not abuse his discretion in denying the defendants’ motions for a mistrial and for a new trial. C. Single Conspiracy vs. Multiple Conspiracies The jury convicted both Wihbey and Whitman under Count I of the indictment, which charged a single marijuana distribution conspiracy among six persons (the two defendants along with Britt, Rohan, Weiner, and Camyre). Wihbey and Whitman argue that the evidence was insufficient to allow the jury to find a single conspiracy, and that the evidence showed instead two separate conspiracies. The framework for analyzing when a variance between the conspiracy charged and the conspiracy proven constitutes reversible error was set forth in United States v. Glenn: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so [i.e., the answer to (2) is yes], does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error?” 828 F.2d 855, 858 (1st Cir.1987). Put differently, “[s]o long as the statutory violation remains the same, the jury can convict even if the facts are somewhat different than charged — so long as the difference does not cause unfair prejudice.” United States v. Twitty, 72 F.3d 228, 230 (1st Cir.1995) (citing Glenn, 828 F.2d at 858). This court has recognized at least three ways in which such a variance might “affect the substantial rights” of the accused. United States v. Sutherland, 929 F.2d 765, 772-73 (1st Cir.), cert. denied, 502 U.S. 822, 112 S.Ct. 83, 116 L.Ed.2d 56 (1991). First, a defendant may receive inadequate notice of the charge against him and thus be taken by surprise at trial. Id. Second, a defendant may be twice subject to prosecution for the same offense. Id. Third, a defendant may be prejudiced by “evidentiary spillover”: the “transference of" }, { "docid": "23297351", "title": "", "text": "defendant-appellants are not uncommon: Twitty’s argument is a common one in conspiracy appeals. Whenever a conspiracy involves successive transactions and multiple players, it is usually possible to slice the enterprise into discrete portions. Even a single conspiracy is likely to involve subsidiary agreements relating to different individuals and transactions. And more often than not, none of the agreements is explicit; agreement is inferred from conduct; and the conceptual tests used to distinguish between one conspiracy and many are not sharp edged. See, e.g., United States v. Drougas, 748 F.2d 8, 17 (1st Cir.1984). Id. at 231 (emphasis supplied). In Wihbey, this Court, quoting United States v. Glenn, 828 F.2d 855, 858 (1st Cir.1987),p set forth the framework for analyzing a claim that the evidence was insufficient to allow the jury to find a single conspiracy and that, instead, the evidence showed two separate conspiracies: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so [i.e., the answer to (2) is yes], does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error?” 75 F.3d at 773. “Put differently, so long as the statutory violation remains the same, the jury can convict even if the facts are somewhat different than charged&emdash;so long as the difference does not cause unfair prejudice.” Id. (internal quotation marks and citation omitted). Analyzing this case under the first' prong of the Glenn test, the evidence is clearly sufficient to permit a jury to find that appellants Rosado-Rosado and Moisés Candela-ria-Silva joined the overarching conspiracy charged in Count I. Assuming arguendo, as in Wihbey, that there was insufficient proof that appellants Rosado-Rosado 'and Moisés Candelaria-Silva were members of the overarching conspiracy alleged in Count I, still, the second prong of the Glenn test would be answered in the affirmative. For example, Moisés Candelaria-Silva largely concedes that" }, { "docid": "5915917", "title": "", "text": "quotation marks and brackets omitted); see also United States v. Muñoz-Franco, 487 F.3d 25, 46 (1st Cir.2007) (“Where, as here, the indictment alleges a conspiracy to commit multiple offenses, the charge may be sustained by sufficient evidence of conspiracy to commit any one of the offenses.”); United States v. Bustamante, 493 F.3d 879, 885 (7th Cir.2007) (“[A] prosecutor may elect to proceed on a subset of the allegations in the indictment, proving a conspiracy smaller than the one alleged.”). The fact that the conspiracy proved is not as extensive as that charged does not by itself establish a material variance and therefore the variance may be subject to the harmless-error rule. Mubayyid, 658 F.3d at 51-52, 54; see also United States v. Wilson, 134 F.3d 855 (7th Cir.1998) (holding that, if the conspiracy charged in the indictment includes the smaller conspiracy found by the jury, then the variance will not be fatal since the indictment would have sufficiently notified the defendants of the government’s accusations.). Therefore, the mere fact that the evidence marshaled at trial proved a narrower conspiracy than the one alleged in the indictment is not automatically grounds for reversal; “in order to reverse a conviction, a court must find that the variance affected the defendant’s substantial rights.” United States v. Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir.1992) (internal quotations omitted); Glenn, 828 F.2d at 858 (“The risks of prejudice in such trials [of large criminal conspiracies] are serious and warrant reversal when they materialize; but when substantial rights are not affected, the error is ‘harmless.’” (citing 28 U.S.C. § 2111)). There are at least three ways in which a variance may be found to affect a defendant’s substantial rights: (1) the defendant may receive inadequate notice of the charges against him, such that he may be surprised at trial; (2) “a defendant may be twice subject to prosecution for the same offense;” and (3) a defendant may suffer from evidentiary spillover, which is “the ‘transference of guilt’ to a defendant involved in one conspiracy from evidence incriminating defendants in another conspiracy in which the particular defendant was" }, { "docid": "22221046", "title": "", "text": "cannot be enough. There must be more of a nexus than rough temporal and geographic identity and affiliation with the same governmental unit. Were the government’s generality legally sufficient, the prosecution could enfold within the RICO conspiracy charge every other BPD officer who, for example, may have accepted gratuities for voiding parking tickets in District 4 during the same time frame. We cannot accept that the law would allow painting with so broad a brush, conglomerating a bewildering array of markedly dissimilar criminal acts as part of a single RICO conspiracy on so tenuous a connection as has been demonstrated here. The UL affair did not belong within the confines of the omnibus RICO conspiracy. To this extent, a variance existed. B. Was There Prejudice? At the bottom line, the finding that the UL scheme constituted a variance does not profit the appellants: we conclude that the variance did not impact any defendant’s substantial rights and, thus, can be dismissed as harmless. Variance requires reversal only where defendants demonstrate that the difference in proof somehow affected their “substantial rights” so that they were “significantly prejudiced.” Glenn, 828 F.2d at 859-60; see also Thomas, 895 F.2d at 56-57; Drougas, 748 F.2d at 17; Flaherty, 668 F.2d at 582. In this instance, Nave and Sheehan were found guilty of other non-UL-related offenses simultaneously charged as predicate acts, so there is no chance that they were found guilty of the RICO conspiracy solely on the basis of their involvement with UL. Moreover, by acquitting Nave and convicting Sheehan on count 40, and acquitting both on count 28, the jury showed its ability to discriminate between the individual defendants and among the charged offenses, thereby blunting any accusation of harmful spillover. Slightly more troubling is the defendants’ united protest that prejudice inured because UL evidence, admitted without limitation, tainted the jury’s perception of the case. The defense premise is sound in the abstract: courts must be vigilant in guarding against transference of guilt from evidence incriminating a defendant involved in one conspiracy to other defendants involved in a different conspiracy. See United States v." }, { "docid": "5305872", "title": "", "text": "dismissed on the government’s motion. . This analytical approach is consistent with the framework set forth in previous cases for analyzing when a variance between the conspiracy charged and the conspiracy proven constitutes reversible error: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is [the evidence] sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so [i.e., the answer to (2) is yes], does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error”? Wihbey, 75 F.3d at 773 (second alteration in original) (quoting Glenn, 828 F.2d at 858). . The court also concluded that the evidence against a co-defendant varied from the charges in the indictment, though it ultimately affirmed the co-defendant's conviction because the variance did not prejudice the co-defendant. See Glenn, 828 F.2d at 860-61. . For purposes of this appeal, it is unnecessary to determine whether the Boivin-Chase-Sanborn-Jordan marijuana distribution chain constituted a third conspiracy that was distinct from the Sanborn-centered cocaine and marijuana distribution conspiracy. . In support of its contention that the Defendants knew of Sanborn's marijuana distribution operation, the government claims, that, on September 12, 2007, Dellosantos was recorded asking Szpyt for “green paint'' for a friend, which the government asserts was a reference to marijuana. In his reply brief, \"Dellosantos disputes any knowledge or understanding of the phrase ‘green paint.' ” As an initial matter, we note an inconsistency between the government’s depiction of this conversation and the record. Exhibit 2C, which the government cites on appeal, includes a call summary of the relevant conversation and that call summary indicates Szpyt was asking Dellosantos about the green paint, not vice versa. Nevertheless, even if we accept the government’s characterization of the meaning of \"green paint,” this conversation does not materially impact our analysis. Even if the September 12 discussion suggests that Dellosantos actually sold marijuana to Szpyt or an associate of" }, { "docid": "23297352", "title": "", "text": "a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so [i.e., the answer to (2) is yes], does the variance affect the defendant’s substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to “harmless error?” 75 F.3d at 773. “Put differently, so long as the statutory violation remains the same, the jury can convict even if the facts are somewhat different than charged&emdash;so long as the difference does not cause unfair prejudice.” Id. (internal quotation marks and citation omitted). Analyzing this case under the first' prong of the Glenn test, the evidence is clearly sufficient to permit a jury to find that appellants Rosado-Rosado and Moisés Candela-ria-Silva joined the overarching conspiracy charged in Count I. Assuming arguendo, as in Wihbey, that there was insufficient proof that appellants Rosado-Rosado 'and Moisés Candelaria-Silva were members of the overarching conspiracy alleged in Count I, still, the second prong of the Glenn test would be answered in the affirmative. For example, Moisés Candelaria-Silva largely concedes that the evidence was sufficient to convict him of the statutory offense charged in Count I&emdash;engaging in a conspiracy in viola tion of 21 U.S.C. 846. Likewise, appellant Rosado-Rosado states: “It is the contention of ... appellant that the overt acts for which evidence was presented against him relate&emdash;■ if at all [&emdash;] to separate and distinct drug operation or conspiracy.” Defendant’s Br. at 8. Regardless of this assertion, however, both Otero-Colón and García-Otero testified as to their involvement in a conspiracy with him. Since the second prong of the Glenn test is answered in the affirmative, to obtain a reversal, appellants must meet their burden under the third prong of the Glenn test&emdash; that as a result of the variance, they were unfairly prejudiced. See Wihbey, 75 F.3d at 773. In Wihbey, the Court noted that there were at least three ways in which such a variance might prejudice the accused. First, a defendant may x'eceive inadequate notice of the charge against him and thus is taken by surprise at trial. Second, a defendant may" }, { "docid": "23142726", "title": "", "text": "at 679. Our review of the record reveals no prejudice through joinder so severe as to have required the district court to grant any of the appellants’ motions for severance. B. Variance SALERNO argues that the government proved a conspiracy significantly different from the general conspiracy that it charged in Count One, and that this variance was so prejudicial that he is entitled to a new trial. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630-31, 79 L.Ed. 1314 (1935) (variance between charge and proof is harmless error unless it affects defendant’s substantive rights); see also United States v. Glenn, 828 F.2d 855, 858 (1st Cir.1987). SALERNO says the government proved, at most that he obtained 15 to 20 exams from CLEMENTE and resold them to policemen seeking promotions. He says there was no evidence that he shared the other objectives of the general conspiracy, such as altering exam scores or placing friends in high places with an eye to future favors. Even assuming, for the sake of argument, that SALERNO is right, that the evidence shows he participated only in a simpler, stripped-down version of the general conspiracy, this variance would not entitle him to a new trial. In Glenn, we said that a court, in considering variance claims, should ask three questions: (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant’s substantial rights? 828 F.2d at 858. Here, even assuming that the answer to the first question is “no,” and to the second question is “yes,” the answer to the third question is “no.” This is not a case, like Glenn’s, where the variance made an obvious difference. Glenn’s conviction for the broad conspiracy charged allowed the government to establish a venue, and permitted the jury to convict him of substantive crimes done by his co-eonspira-tors, neither of which would" }, { "docid": "22221042", "title": "", "text": "were appropriate limiting instructions as to the admissibility of evidence against particular defendants and as to the need to determine guilt on an individual basis. All in all, this situation manifests the benefits of consolidated trials, with no corresponding drawbacks sufficient to necessitate severance. See Cresta, 825 F.2d at 555; Arruda, 715 F.2d at 678-79. There was no misuse of the district court’s Rule 14 discretion. V. VARIANCE Appellants assert with considerable fervor that there were material variances between the conspiracies charged and proven. We are fully satisfied, for reasons implicit in what we have already written, that no variance existed among the several bar/restaurant/nightclub protection schemes, on the one hand, and the charged RICO conspiracy, on the second hand. The only doubtful area concerns whether the UL crimes (Series J) were properly within the scope of the master conspiracy; and if not, whether transferred guilt (or “spillover”) attributable to them led the jury to convict on the RICO charges. A. Was There a Variance? Our analytic roadmap is well drawn: [A]n appellate court, reviewing the type of alleged variance ... should ask the following questions. (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant’s substantial rights or does the dif ference between the charged conspiracy and the conspiracy proved amount to “harmless error?” Glenn, 828 F.2d at 858; see also United States v. Thomas, 895 F.2d 51 at 55-57 (1st Cir.1990). In this case, the journey’s first leg is humdrum; the evidence was unquestionably sufficient to permit a jury to find the RICO conspiracy. It was also sufficient, however, to permit the jury to find other, less encompassing conspiracies. Most pertinent for present purposes, we think that the UL crimes constituted a separate conspiracy and that the evidence did not allow a finding that they were within the master conspiracy’s scope. We start by" }, { "docid": "23393825", "title": "", "text": "it is not necessary that the defendant agree to personally commit two predicate acts for the required pattern of racketeering activity. It is enough that the defendant agreed to the commission of two predicate acts. An instruction on the objectives of a RICO conspiracy followed by an instruction on general federal conspiracy law is sufficient. In this case, the enterprise charged and proved was a group of people who shared the common goals of drug smuggling and bribery of law enforcement officials for protection of their illegal activities, and who worked together to achieve those goals. Certainly every member of the group was not involved in every transaction, but every transaction was part of the conduct of the affairs of the enterprise to which every member belonged. The trial court did not err in refusing to instruct the jury that an agreement to personally commit two or more predicate acts was required in order to convict a defendant of a RICO conspiracy. 3. A Material Variance: Proof of Multiple Conspiracies When A Single Conspiracy Was Charged? Appellants Larry and Suzette Jackson, in a contention adopted by other appellants, claim that a material variance between the indictment charging a single RICO conspiracy and the government’s proof of multiple conspiracies affected their substantial rights. They rely on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and United States v. Sutherland, 656 F.2d 1181 (5th. Cir.1981). These cases are distinguishable from the present case: in Kotteakos and Sutherland the government failed to offer any proof of a single conspiracy. The Sutherland court explained the significance of this distinction: If the government sufficiently supports its charge of a single conspiracy, evidence at trial of multiple conspiracies does not of itself create a material variance with the indictment; at most, such evidence creates a fact question and entitles the defendants to a jury instruction on the possibility of multiple conspiracies. 656 F.2d at 1189 n. 5. The trial court in this case instructed the jury that a single conspiracy must be found in order to convict the appellants of" } ]

[ { "docid": "11659376", "title": "", "text": "PECK, Circuit Judge. In this action Kingsport Publishing Company, hereinafter the “Company,” petitioned for review, and the National Labor Relations Board cross-petitioned for enforcement of an order of the Board dated June 21, 1967 (165 NLRB No. 116), which held the Company to be in violation of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. § 158(a) (5) and (1) ), upon a charge of unilaterally altering a condition of employment during the course of negotiations with the Union for a new collective bargaining agreement. The Company and the Union executed a collective bargaining agreement on November 1, 1962, which extended through October 31, 1964. On August 25, 1964, the Union notified the Company by letter that “on October 31 any agreement — written, oral or implied — or any conditions of employment or other understanding now in effect between the [Company] and [the Union] will terminate,” and offered to meet with the Company to negotiate an agreement with respect to wages, hours and other terms and conditions of employment. A number of bargaining sessions were held between September, 1964, and November, 1966, at which time no agreement had been consummated. On June 22, 1965, approximately eight months after the expiration of the 1962 contract, employee Ivil Lytz was discharged by the Company for refusal to carry out a foreman’s instructions and for deliberately ignoring posted instructions regarding holiday shifts. (It is not contended that this discharge was discriminatory or that it constituted an independent violation under the Act.) The Union then took the position that the Company should reinstate Lytz and process his discharge in accordance with the grievance procedure contained in the contract which terminated in October, 1964. The Company refused the request to so process the grievance, and the Union thereafter rejected the Company’s offer to discuss the discharge during contract negotiations. The Union subsequently filed the unfair labor practice charges upon which the complaint underlying the order on review was based. It is the Board’s position that a grievance procedure constitutes a mandatory subject for collective bargaining (N.L.R.B. v." } ]

[ { "docid": "16630876", "title": "", "text": "most favorable to the party opposing the motion.” Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S.-654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Historic Preservation Guild of Bay, View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989). The opponent, however, has the burden to show that a “rational trier of fact' [could] find for the non-moving party [or] that there is a ‘genuine issue for trial.’ ” Id. at 993 (quoting Matsushita Electric In. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356). As the Sixth Circuit has recognized and heartily supported, Supreme Court decisions have encouraged the granting of summary judgments. Historic Preservation Guild of Bay View v. Burnley, 896 F.2d at 993 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Courts have noted that the summary judgment motion may be “an appropriate avenue for the ‘just, speedy and inexpensive determination’ of a matter.” Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (quoting Celotex Corp. v. Catrett, 477 U.S. at 327,106 S.Ct. at 2554). Consistent with the concern for judicial economy, “the mere existence of a scintilla of evidence in support of the [non-moving party’s] positions will be insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. at 2512. Mere allegations do not suffice. Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d at 937. “[T]he party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact.” Id. A. FEDERAL CLAIMS 1. Eleventh Amendment Immunity The plaintiffs state that they have dropped all claims against the Michigan Department of State Police. However, the Amended Complaint names as defendants Trooper Clark A. Brown and Captain Tim Baker in their official capacities. It is unclear whether that was an oversight in preparation of the" }, { "docid": "6436206", "title": "", "text": "OPINION MURRAY M. SCHWARTZ, Senior District Judge. This action arises from a contract between plaintiff Charles P. Harper, Jr. and one of the defendants, Delaware Valley Broadcasters, Inc. (\"DVBI” or “the Corporation”). The- parties have filed cross-motions for summary judgment, which have been briefed and argued. The court has jurisdiction pursuant to 28 U.S.C.A. § 1332(a). STANDARD FOR , SUMMARY JUDGMENT Federal Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In 1986 the United States Supreme Court decided a trilogy of cases, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), in which it refocused the burdens of the movant and non-movant on motions for summary judgment. Absent a genuine issue of material fact, summary judgment will be entered “against a party who failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The same burden exists on cross-motions for summary judgment. Peters Tp. School Dist. v. Hartford Acc. & Indem. Co., 833 F.2d 32, 34 (3d Cir.1987). Cross-motions for summary judgment do not act as a stipulation of facts or a concession that one side must be entitled to judgment, Krupa v. New Castle County, 732 F.Supp. 497, 505-06 (D.Del.1990), and “[t]he filing of cross-motions for summary judgment does not require the Court to grant summary judgment for either party.” Id. (quoting Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968)). This is because" }, { "docid": "8860281", "title": "", "text": "as the opposing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment: Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a material fact for Rule 56 purposes as “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). A motion for summary judgment is to be considered after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an" }, { "docid": "13570250", "title": "", "text": "procedure, and in the event no resolution is achieved with respect to the grievance, a final step of arbitration is available at the sole discretion of the union. A three step grievance procedure commenced in December 1999. Plaintiffs claims were denied at each step. The union did not pursue arbitration. DISCUSSION I. Summary Judgment Standard A party is entitled to summary judgment when there is no “genuine issue of material fact,” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addressing a motion for summary judgment, “the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Whether any disputed issue of fact exists is for the Court to determine. Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir.1989). The moving party has the initial burden or demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must present “specific facts showing that there is a genuine issue for trial”. Fed.R.Civ.P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. On this motion, taking the facts as alleged, and drawing reasonable inferences in plaintiffs favor, plaintiff has failed, as a matter of law, to establish facts sufficient to plead a case of unconstitutional First Amendment retaliation. II First Amendment" }, { "docid": "5630515", "title": "", "text": "produce evidence which, when considered in light of that party’s burden of proof at trial, could be the basis for a jury finding in that party’s favor.” J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, “its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, if the non-mov-ant’s evidence is merely “colorable” or is “not significantly probative,” the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. B. Pre-emption by § SOI of the LMRA 1. Plaintiffs Handicap Discrimination Claim Defendant contends that plaintiffs claim for handicap discrimination under the NJLAD, N.J.S.A. 10:5-4.1, is pre-empted by § 301 of the LMRA because analysis of such claim is intertwined with the parties’ rights under the collective bargaining agreement. For the reasons set out below, this Court rejects defendant’s argument. The Supreme Court has firmly established that state court actions alleging violations of labor contract provisions must be brought under § 301 of the LMRA and be decided under federal law. Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962). Furthermore, in the interest of “uniform federal interpretation” of collective bargaining agreements, the Supreme Court determined that “questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85" }, { "docid": "8379418", "title": "", "text": "trial court’s consideration of motions for summary judgment were redefined by the United States Supreme Court in a 1986 trilogy of cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986), the Supreme Court held: The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of evidence that the plaintiff is entitled to a verdict.... In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1350, 1356, 89 L.Ed.2d 538 (1986), the Court held that if a plaintiff’s claim is, in the judge’s view, “implausible” and “makes no ... sense,” in order to defeat summary judgment a plaintiff “must come forward with more persuasive evidence to support [his] claim than would otherwise be necessary.” In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the Court held that summary judgment must be granted where the defendant demonstrates that after a reasonable period of discovery the plaintiff is unable to produce sufficient evidence beyond the bare allegations of the complaint to support an essential element of his or her case. The Sixth Circuit expressly adopted this “new era” in summary judgment practice in its recent decision in Street v. J. C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989), and delineated in that case the principles extracted from the 1986 Supreme Court trilogy and their progeny that are to guide trial courts in this circuit in deciding motions for summary judgment: 1. Complex cases are not necessarily inappropriate for summary judgment. 2. Cases involving state of mind issues are" }, { "docid": "20113487", "title": "", "text": "representatives of some of the Metamora PRPs that the Meta-mora PRPs would be looking to City Environmental, as the purchaser of U.S. Chemical, to pay the $5.3 million share of cleanup costs allocated to U.S. Chemical — City Environmental notified U.S. Chemical of its intent to rescind the October 12, 1990 Asset Purchase and Sale Agreement. As stated in the April 10, 1991 letter: The legal basis for rescission includes, but is not limited to, a mutual mistake between the parties relating to City Environmental being pursued for successor liability. As you know, it was the express intent of the parties that City Environmental not assume the liabilities of U.S. Chemical. The transaction between the two companies was mutually structured as a limited asset purchase agreement, to achieve that intent. Each party understood and believed that any environmental liability such as Meta-mora, would remain with U.S. Chemical. [4/10/91 letter, Ex. 33.] On May 6, 1991, U.S. Chemical rejected City Environmental’s rescission. Then, on June 7, 1991, City Environmental and U.S. Chemical entered into an Escrow Agreement under which all monies due under the Asset Purchase and Sale Agreement and Green-way’s Agreement not to Compete are paid by City Environmental into escrow pending resolution of the successor liability issue. On September 18, 1991, City Environmental filed this action seeking a declaratory judgment on the successor liability issue that it is not liable for U.S. Chemical’s off-site CERCLA environmental obligations, or if it is liable for these off-site obligations, that the extent of its liability be limited to the value of the assets received. IV. LEGAL ANALYSIS A. THE STANDARDS GOVERNING CONSIDERATION OF A MOTION FOR SUMMARY JUDGMENT. The standards governing a trial court’s consideration of motions for summary judgment were redefined by the United States Supreme Court in three 1986 cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Sixth" }, { "docid": "13582322", "title": "", "text": "judgment is appropriate where the moving party establishes that “there is no genuine issue of material fact and that [it] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party must show that, if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Fed. R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Mere conclusory allegations are not competent summary judgment evidence, and they are, therefore, insufficient to defeat or support a motion for summary judgment. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). B. In support of its Motion for Summary Judgment, Fina Oil presents affidavit evidence that the only people with access to the list were top Fina managers and the chairman of two unions. The affidavit evidence also contained opinions that neither the Company, nor any authorized agent, posted the list or published it in any manner. Furthermore, deposition testimony from Stephen Cornell, the refinery manager, revealed two theories of how the list was published: (1) a member of the IBEW union received a copy of the list from the union representative, made a copy of it, and posted it in the IBEW shop area; and (2) the OCAW union distributed the list to union members. Fina Oil contends that plaintiffs have put forth no credible evidence and alleged no specific facts that the information was disseminated by" }, { "docid": "9564267", "title": "", "text": "On a Rule 56 motion, the Court cannot try issues of fact, but is empowered to determine only whether there are issues in dispute to be decided in a trial on the merits. Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987); In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). The crux of the motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986); see Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir.1989). A motion for summary judgment requires this Court to view “ ‘inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion.’ ” Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)), quoted in Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989). The opponent, however, has the burden to show that a “rational trier of fact [could] find for the non-moving party [or] that there is a ‘genuine issue for trial.’ ” Historic Preservation, 896 F.2d at 993 (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356). As the Sixth Circuit has recognized and heartily supported, recent Supreme Court decisions have encouraged the granting of summary judgments. Historic Preservation, 896 F.2d at 993 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Courts have noted that the summary judgment motion may be an “appropriate avenue for the ‘just, speedy and inexpensive determination’ of a matter.” Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (quoting Celotex, 477 U.S." }, { "docid": "5976146", "title": "", "text": "979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a “metaphysical doubt” concerning the facts, or on the basis of conjecture or. surmise. Bryant v. Maffucci supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation “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, 2552, 91 L.Ed.2d 265 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir,1991). “Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party.” Coach Leatherware, Co., Inc. v. AnnTaylor, Inc., supra, 933 F.2d at 167. NEBF moves for partial summary judgment as to the Hearys’ liability under ERISA. NEBF contends that there are no material factual disputes regarding the Hearys’ obligation to contribute to the various employee benefit funds. According to NEBF, the 1990 audit clearly shows that the Hearys’ failed to meet that obligation, mandating entry of judgment on NEBF’s ERISA claims. The Hearys oppose this motion on the ground that the collective bargaining relationship with IBEW was tainted from the outset by Local 41’s extortion scheme, thereby nullifying their contractual obligation to contribute to the employee benefit funds. The Hearys contend that material factual issues therefore exist regarding the validity of the collective bargaining agreements or Letters of Assent relied upon by NEBF, precluding summary judgment on ERISA liability. Section 515 of ERISA provides: Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the" }, { "docid": "19097372", "title": "", "text": "Chicago & I.M. Ry., 1 F.3d 507, 511-17 (7th Cir.1993) (finding-issue preclusion inappropriate because the limited arbitral proceedings insufficiently protected plaintiffs right to press issue). B. Summary Judgment in Disputes over Contract Interpretation The basic summary judgment standard is that “[uncertainty as to the true state of any material fact defeats the motion.” Gibson v. Am. Broad. Companies, 892 F.2d 1128, 1132 (2d Cir.1989). The non-moving party’s burden is to produce concrete evidence sufficient to establish a genuine unresolved material issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). The court then must view the facts in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994). The court neither weighs evidence nor resolves material factual issues, but only determines whether, after adequate discovery, any such issues remain unresolved because a reasonable fact finder could decide for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Gibson, 892 F.2d at 1132. In a contract dispute, when the contractual language is unambiguously in conformity with one side’s interpretation, summary judgment is appropriate, see Chock Full O’Nuts Corp. v. Tetley, Inc., 152 F.3d 202, 204 (2d Cir.1998), and extrinsic evidence of the contracting parties’ intentions cannot be considered in interpreting the contract, see Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 573 (2d Cir.1993). When the contractual language is ambiguous, extrinsic evidence of the parties’ intent is admissible, see id., including when the contract is a collective bargaining agreement. See Amer. Fed. of Grain Millers, AFL-CIO, et al. v. Int’l Multifoods Corp., et al., 116 F.3d 976, 981 (2d Cir.1997) (“extrinsic evidence can be used to interpret ambiguous CBAs”). Despite contract ambiguity, summary judgment still may be appropriate if the moving party would prevail under any reasonable interpretation" }, { "docid": "2701443", "title": "", "text": "entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986) (Feinberg, C.J.), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Finally, “ ‘mere conclusory allegations or denials’ ” in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). I The defendants seek summary judgment on the plaintiffs Title VII claims in their entirety based on the plaintiffs failure to exhaust grievance procedures available under a collective-bargaining agreement. In the alternative, the defendants seek summary judgment on the Title VII claims to the extent that the plaintiff demands compensatory or punitive damages or damages for pain and suffering. A. Title VII Claims: Exhaustion of Grievance Procedures. The Amended Complaint alleges that the four moving defendants discriminated against the plaintiff on the basis of her gender and that the defendants" }, { "docid": "2658440", "title": "", "text": "a grievance against AT & T which the union pursued through several stages. The union informed Rivera by letter that it would not take the case to arbitration. At the time of her discharge Rivera was employed in the warehouse and was covered by a collective bargaining agreement. Rivera does not contest the existence of the collective bargaining agreement. Rather, Rivera alleges in her complaint that she was employed under the provisions of an employment contract, either express or implied, which provided that she would be terminated only for good cause and that she would be treated fairly and similar to other employees. Additionally, Rivera argues that she has not had the opportunity for full discovery as to whether claims against AT & T exist outside of the collective bargaining agreement. Under Fed.R.Civ.P. 56(c), 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 the moving party is entitled to judgment as a matter of law.” Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate when the Court can conclude that no reasonable juror could find for the non-moving party on the basis of the evidence presented in the motion and response. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must present sufficient evidence so that a reasonable juror could rule in the non-moving party’s favor. Id. Further, the non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex v. Catrett, supra. I. In Patterson v. McClean Credit Union, supra, the Supreme Court held that Section 1981 does not provide relief for discrimination in post-contract formation contexts. Rather, Section 1981 expressly prohibits discrimination only in the making and enforcement of contracts. The Court stated that: By its plain terms, the relevant provision in § 1981 protects two rights: the same right ... to make ... contracts and" }, { "docid": "3724525", "title": "", "text": "International Business Lists characterized the bulletin as a modification of the Agreement or as a new contract. See id. After unsuccessfully attempting to appeal this determination, International Business Lists moved for summary judgment on AT&T’s counterclaim for damages after March 8, 1992. On July 14, 1997, the district court granted International Business Lists’ motion, holding that the Agreement’s limitations provision barred AT&T’s counterclaim. See International Bus. Lists, Ltd. v. American Tel. & Tel. Co., No. 92 C 5844, slip op. at 1, 1997 WL. 414109 (N.D.Ill. Jul. 17, 1997). International Business Lists appeals and AT&T cross-appeals. II. Analysis A. We review a district court’s grant of summary judgment de novo, drawing our own conclusions of law and fact from the record before us. See Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir.1997). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining, whether a genuine issue of maternal fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, neither “the mere existence of some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, 106 S.Ct. 2505, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), is sufficient to defeat a motion for summary judgment. B. International Business Lists contends that summary judgment was inappropriate because triable issues of fact exist over whether it can recover for AT&T’s alleged breach of the Agreement as modified. 'The district court" }, { "docid": "6661162", "title": "", "text": "party is entitled to judgment as a matter of law.” Schroeder v. Copley Newspaper, 879 F.2d 266, 268 (7th Cir.1989). The moving party bears the burden of specifying “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In response, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). This requires more than merely showing “there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment motions must be considered in light of both substantive law and the question of whether a reasonable jury could render a verdict in the non-movant’s favor on that basis. Board of Trustees of the Chicago Plastering Institute Pension Trust Fund v. William A. Duguid Co., 761 F.Supp. 1345, 1348 (N.D.Ill.1991). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita at 587, 106 S.Ct. 1348. “That the parties have filed cross-motions for summary judgment does not mean that genuine issues of material fact necessarily do not exist.” William A. Duguid Co. at 1348. Because the parties are signatories to a collective bargaining agreement, the issue in this case is governed by 29 U.S.C. ¶ 1001, et seq., the Employee Retirement Income Security Act. (“ERISA”). The only issue presented in this motion is whether Skys is the alter ego of Contractors, and is thereby bound to fulfill Contractor’s obligations under the terms of the two collective bargaining agreements entered into by Contractors and the unions. The Alter Ego Doctrine “The alter ego doctrine (i.e., treating two nominally separate business entities as if they were a single, continuous employer) is applied to ‘prevent an employer" }, { "docid": "16630875", "title": "", "text": "the narrow questions of whether there are “no genuine issue[s] as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ-.P., 56(e). On a Rule 56 motion, the Court cannot try issues of fact, but is empowered to determine only whether there are issues in dispute to be decided in a trial on the merits. Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987); Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982). The crux of the motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party-must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986); Booker v. Broum & Williamson Tobacco Co., 879 F.2d 1304,1310 (6th Cir.1989). A motion for summary judgment requires this Court to view “inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion.” Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S.-654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Historic Preservation Guild of Bay, View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989). The opponent, however, has the burden to show that a “rational trier of fact' [could] find for the non-moving party [or] that there is a ‘genuine issue for trial.’ ” Id. at 993 (quoting Matsushita Electric In. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356). As the Sixth Circuit has recognized and heartily supported, Supreme Court decisions have encouraged the granting of summary judgments. Historic Preservation Guild of Bay View v. Burnley, 896 F.2d at 993 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Courts have noted that the summary judgment motion may be" }, { "docid": "22720542", "title": "", "text": "judgment practice: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Scholars and courts are in agreement that a “new era” in summary judgments dawned by virtue of the Court’s opinions in these cases. This court has recognized the dramatic change brought about by these opinions, as have other courts. On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact had tended to emasculate summary judgment as an effective procedural device. The first of the recent Supreme Court decisions which changed summary judgment law was Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Liberty Lobby was a libel action against the columnist Jack Anderson and certain others working with him. 106 S.Ct. at 2508. The defendants had referred to the plaintiff organization and some of its leaders as “Neo-Nazis,” anti-Semites, racists and fascists. Id. According to the then-existing First Amendment libel doctrine, plaintiffs, as public figures, could not recover unless they could prove by clear and convincing evidence that Anderson had published calculated falsehoods or had written his article with reckless disregard for the truth. Id.; see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). After an appropriate time for discovery, the defendants moved for summary judgment on the ground that plaintiffs could not demonstrate that this burden could be met. Liberty Lobby, 106 S.Ct. at 2508. In support of the motion for summary judgment, the defendants had filed an extensive affidavit by one of their author-investigators detailing his sources. Id. at 2508-09. In response, the plaintiffs had filed several affidavits asserting that the sources were unreliable and that the publication was untrue and insufficiently supported by an adequate" }, { "docid": "6092738", "title": "", "text": "KOELSCH, Circuit Judge: The Sacramento Union (“Employer”) appeals the district court’s order granting summary judgment in favor of the Northern California Newspaper Guild Local 52 (“Union”) and compelling Employer to arbitrate the issue of the collective bargaining agreement’s termination. We reverse and remand. FACTS AND PROCEEDINGS Employer refused to process Union’s grievance that Employer’s unilateral implementation of its last and best offer violated Article XV, Section 2 of their collective bargaining agreement (“Agreement”). It did so on alternative grounds: first, that the Agreement had expired; and second, that the dispute was not arbitrable. Article XV, Section 2 provides: 2. At any time within sixty (60) days immediately prior to the termination of this agreement, the Publisher (Employer) or the Guild (Union) may initiate negotiations for a new agreement, to take effect at the expiration of the present agreement. The terms and conditions of this agreement shall remain in effect during such negotiations. The Agreement’s arbitration clause, Article XII, Section 3, provides grievance and arbitration procedures for “[a]ll disputes and disagreements arising from application of this agreement, except renewal of this agreement....” The district court passed only upon Employer’s second contention. We are satisfied that if the Agreement was in effect, the district court’s application of the “positive assurance” test, see AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and its resulting determination that the parties’ dispute over the interpretation and application of Article XV, Section 2 was arbitrable were correct. What primarily concerns us, however, is the district court’s failure to resolve first the threshold determination whether the Agreement, and hence the duty to arbitrate, was in effect at the time the parties’ dispute arose. DISCUSSION This appeal presents the same question raised in our recent decision in Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 v. Interstate Distributor Co., 832 F.2d 507 (9th Cir.1987)(Local No. 70), to wit: “who decides whether the agreement actually expired or was termi nated the court or an arbitrator? ” Id. at 508. The answer, we said, lies in the" }, { "docid": "20120330", "title": "", "text": "gave the Local an opportunity to certify the case for arbitration at its own expense. Consistent with the Local’s longstanding policy, a decision was made not to certify the case for arbitration. Fed.R.Civ.P. 56(c) provides for summary judgment where there is no genuine issue as to any material fact. The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of supporting documentation which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The mere existence of a disputed fact, however, will not alone defeat a summary judgment motion. Rather, “the dispute must be genuine, and the facts must be material.” Professional Managers v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). The governing substantive law will identify which facts are material and only disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Once the moving party has sustained its burden, its opponent must do more than show that there is some metaphysical doubt as to the material facts. Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). In fact, the nonmoving party must come forward with “significant probative evidence demonstrating the existence of a triable issue of fact”. Southmark Properties v. Charles House Corp., 742 F.2d 862, 877 (5th Cir.1984). Plaintiff’s claim that the Postal Service breached the “just cause” provision of the collective bargaining agreement appears to be two-fold. First, she claims that there were various training irregularities which precluded her from passing the machine portion of the Jewella scheme. Second, she contends that she should have been transferred, rather than discharged once she failed to qualify. Both contentions are without merit. During discovery, plaintiff enumerated four alleged training irregularities which she contends occurred during her" }, { "docid": "14788580", "title": "", "text": "Carolina’s courts can refuse to enforce contractual provisions that are contrary to public morals, positive legislation, or settled public policy, the validity and interpretation of contracts made in other states cannot be affected by North Carolina’s employment contract laws because such laws have no extraterritorial operation. See Bond v. Hume, 243 U.S. 15, 20-21, 37 S.Ct. 366, 368, 61 L.Ed. 565 (1917). In other words, it is not possible, after the making of a contract and without the assent of the parties, for North Carolina’s laws to add to, or alter, the terms the original contract. In short, North Carolina’s choice of law rules require this Court to apply Indiana contract law to Plaintiffs’ contract claims when determining Defendant’s Motion for Partial Summary Judgment. VI. SUMMARY JUDGMENT A. Standard of Decision Although this Court must apply North Carolina’s substantive law to Plaintiffs’ diversity claims, federal law governs all questions of procedure. Rule 56(c) of the Federal Rules of Civil Procedure establishes the standard of decision this Court must use when determining Defendant’s Motion for Partial Summary Judgment: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Recently, the United States Supreme Court has had several occasions to construe the summary judgment standard established in Rule 56. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (antitrust conspiracy case); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (libel action); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (asbestos related wrongful death action); Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1969) (alleged conspiracy to violate civil rights). These cases provide substantial guidance to this Court in its determination of Defendant’s Motion for Partial Summary Judgment. In Matsushita Electric Industrial Co." } ]

[ { "docid": "2635564", "title": "", "text": "and to appreciate the likelihood of his having dishonestly recommended and encouraged an extension of credit to Briar Associates and Robbins. Suspicion alone does not satisfy the test of discovery. Jefferson Bank & Trust Co., supra. A realization that a highly respected and able bank official has betrayed his trust should and would come hard to those who trusted him. See Aetna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154 F. 545, 549 (8th Cir.), cert. denied, 207 U.S. 589, 28 S.Ct. 256, 52 L.Ed. 354 (1907); Perpetual Building & Loan Ass’n v. United States Fidelity & Guarantee Co., 118 Iowa 729, 92 N.W. 686, 688 (1902). Within the purview of Jefferson, the district court could find that discovery in this case took place when the Bank, by way of a letter from Western Union, verified that a probable “pay-off” for a loan had been made by Robbins, or even later when it discovered that Leimgruber’s verbal statements to an investigator were in conflict with documents earlier presented to the Bank. Given the information known to Empire prior to July 1, 1965, we cannot say that a reasonable man would have necessarily appreciated that he had sustained a loss caused by the dishonesty of a trusted former employee. Under such circumstances, we will not set aside a finding by the trial court that the Bank discovered its loss resulting from Leimgruber's dishonesty after July 1, 1965, during the policy period. See, e. g., General Finance Corp., supra, 439 F.2d 981; Shatz v. American Surety Co. of New York, 295 S.W.2d 809, 816 (Ky.1955); Rule 52(a), Fed.R.Civ.P. We see no merit, moreover, in the defense to Count I that U.S.F. & G. should not be held liable for this loss because Empire failed to disclose suspicions about Leimgruber in its application for bond coverage. The bond application form itself, however, required no disclosure of suspicious circumstances concerning former employees; it required only a certification that “* * * present officers and employees of the Insured * * * have all, to the best of the Insured’s knowledge and" } ]

[ { "docid": "2635558", "title": "", "text": "liquidated the collateral and sustained an overall loss of $23,391.94, which loss was made the subject of Count I. As to Count I, the trial court determined: (1) that the actions and conduct of Leimgruber in “recommending [Briar Associates as a] new customer and in making and renewing the loans made [to Briar ' Associates and Eddie Robbins] were dishonest”; (2) that the loss attributable to depreciation of corporate stocks held by Empire as collateral for the $27,000 loan in December 1964 con- ■ stituted a recoverable loss flowing from Leimgruber’s dishonesty; and (3) that “the dishonesty of Leimgruber was not discovered by the bank until after July 1, 1965, and [that] the loss [was] covered by [the] bond.” On this appeal, U.S.F. & G. does not contend that the trial court erred in finding Leimgruber’s conduct to be dishonest with regard to the Briar Associates-Eddie Robbins loans. It concedes that this finding rests upon credibility determinations drawn by the district court from disputed testimony. U.S.F. & G. contends, however, that no substantial evidence supports the trial court’s finding that the Bank had discovered its loss within the policy period, which commenced at noon on July 1, 1965, and continued until September 22, 1966. Irrespective of this, U.S.F. & G. also contends that the Bank possessed sufficient knowledge of Leimgruber’s wrongdoing to require it to disclose its suspicions when it executed its application for bond coverage in June of 1965. On the discovery issue, both parties cite Jefferson Bank & Trust Co. v. Central Surety & Insurance Corp., 408 S.W.2d 825 (Mo.1966), as enunciating the controlling principles of law. In Jefferson, the Missouri Supreme Court adopted the following language taken from Wachovia Bank & Trust Co. v. Manufacturers Casualty Insurance Co., 171 F.Supp. 369 (M.D.N.C.1959): “In order to constitute a ‘discovery’ in accordance with the terms of the policy * * * there must be facts known, at the time it is asserted that the discovery was made, which would lead a reasonable person to an assumption that a shortage existed. The facts must be viewed as they would have" }, { "docid": "7841753", "title": "", "text": "been or will be incurred even though the exact amount or details of loss may not be known. Notice to the Insured of an actual or potential claim by a third party which alleges that the insured is liable under circumstances, which if true, would create a loss under this bond constitutes such discovery. There is no dispute that the Insured was ADSB. Moreover, the parties appear to agree that “discovery” could occur if an officer, director, general counsel or some other person in a position of responsibility became “aware of facts which would cause a reasonable person to assume a loss cover ed by the bond [had] been or would be incurred.” In Aetna, the Sixth Circuit stated that “discovery of loss does not occur until the insured discovers facts showing that dishonest acts occurred and appreciates the significance of those facts; suspicion of loss is not enough.” Aetna, 903 F.2d at 1079 (citing United States Fidelity & Guar. Co. v. Empire State Bank, 448 F.2d 360, 364-66 (8th Cir.1971)) (other citations omitted). Further, the court concluded that, because FDIC was unable to provide any witness who could testify to having knowledge, prior to the closing of the institution, of any dishonest acts by the Chief Executive Officer, discovery had not occurred as a matter of law. See id. California courts have also defined when discovery of loss occurs in the fidelity bond context. See, e.g., Pacific-Southern Mortgage Trust Co. v. Insurance Co. of N. Am., 166 Cal.App.3d 703, 212 Cal.Rptr. 754 (1985). The court in Pacific-Southern held that “[t]o constitute ‘discovery’ of the loss, the insured must have more than a mere suspicion that a covered loss has occurred.” 166 Cal.App.3d at 709, 212 Cal.Rptr. at 757 (citations omitted). Further, the court found that “[t]here must be discovery of both the loss and the dishonesty.” Id. (citing Fidelity Sav. & Loan Ass’n v. Aetna Life & Cas. Co., 647 F.2d 933, 938 (9th Cir.1981)). See also Admiralty Fund v. Peerless Ins. Co., 143 Cal.App.3d 379, 384, 191 Cal.Rptr. 753, 756 (1983) (“Generally, the courts have strictly enforced [discovery" }, { "docid": "5780118", "title": "", "text": "in this case. The trial court found the June 18 letter triggered “discovery” by the Bank since when the letter was received, McKnight “knew or should have known” that (1) the January 15th installment had not been paid; (2) Mrs. Perkins had made an inquiry regarding the payment of the first installment under the note; and (3) the Bank had released escrowed documents which were being held as security for Mrs. Perkins. Additionally, he knew, firsthand, the representations of Mr. Daugherty and their inconsistency with Mrs. Perkins’s inquiries. In so holding the court applied a standard of objective reasonableness on the part of the insured in fulfilling the timely notice requirement. Thus the court held that the test was whether a reasonable recipient of the June 18 letter would have interpreted it to mean the release of the escrowed documents was secured by false pretenses and that as such it constituted a loss of property under the policy. The meaning of “discovery” in timely notice provisions has been judicially construed in several cases dealing with losses due to dishonest employees. See, e. g., American Surety Co. v. Pauly, 170 U.S. 133, 144-47, 18 S.Ct. 552, 42 L.Ed. 977 (1898); United States Fidelity & Guaranty Co. v. Empire State Bank, 448 F.2d 360, 364-65 (8th Cir. 1971); Federal Deposit Insurance Corp. v. Aetna Casualty & Surety Co., 426 F.2d 729, 738-39 (5th Cir. 1970); Hidden Splendor Mining Co. v. General Insurance Co., 370 F.2d 515, 519 (10th Cir. 1966); American Employers' Insurance Co. v. Cable, 108 F.2d 225, 226-27 (5th Cir. 1939); Midland Bank & Trust Co. v. Fidelity & Deposit Co., 442 F.Supp. 960, 971-73 (D.N.J.1977); Alfalfa Electric Cooperative, Inc. v. Travelers Indemnity Co., 376 F.Supp. 901, 906 (W.D.Okl.1973); National Mutual Casualty Co. v. Cypret, 207 Ark. 11, 179 S.W.2d 161, 164 (1944); Fidelity & Deposit Co. v. Cunningham, 181 Ark. 954, 28 S.W.2d 715, 719 (1930). Arkansas law accords with the generally accepted definition of discovery as construed in connection with blanket employee fidelity bonds, and has been stated by the Arkansas Supreme Court as follows: Under the terms" }, { "docid": "2635567", "title": "", "text": "claims with Hartford Accident & Indemnity Company, which had provided Bankers’ Blanket Bond coverage terminating prior to July 1, 1965. Shortly before Empire brought the present lawsuit, however, it settled the claims filed with Hartford for $2,-000 and furnished Hartford with a covenant not to sue. Appellant U.S.F. & G. seeks credit for that $2,000 payment against the judgment entered upon Count I. Although Jefferson Bank & Trust Co., supra, 408 S.W.2d at 832, indicates that a bank in the posture of Empire in this case must credit against a fidelity bond claim all sums received from another insurer upon the same loss, we are unable to apply this rule in the instant case for two reasons: (1) this issue was not pleaded to or considered by the district court and cannot be considered de novo on this appeal, United States ex rel. Huisinga v. Commanding Officer, etc., 446 F.2d 124 (8th Cir., June 28, 1971); United States v. 3,788.-16 Acres of Land, etc., 439 F.2d 291, 296 (8th Cir. 1971); National Compressor Corp. v. Carrow, 417 F.2d 97, 102-03 (8th Cir. 1969); Skogen v. Dow Chemical Company, 375 F.2d 692, 703 (8th Cir. 1967); and (2) the record appears unclear whether Hartford as the predecessor insurer paid this $2,000 solely upon the Briar Associates-Eddie Robbins transactions, or upon the claim made here under Count II (involving Pleasure, Incorporated-Lyle McAllister) in which plaintiff Empire made no recovery from U.S.F. & G., or upon both claims. See Jefferson Bank & Trust Co., supra, 408 S.W.2d at 832. Both of these circumstances bar us from giving U.S.F. & G. relief. Appellant-insurer, U.S.F. & G., also objects to being charged for any loss attributable to the depreciation of the collateral pledged to the Bank in connection with the December 1964 loan for $27,000. U.S.F. & G. cites no legal authority in support of its contention, and the decision in Maryland Casualty Co. v. American Trust Co., 71 F.2d 137 (5th Cir. 1934), holds to the contrary. Since the employee’s dishonest conduct, covered by the bond in the instant case, induced the loans in" }, { "docid": "852472", "title": "", "text": "June 1966 report are dishonest and fraudulent “now,” they were just as dishonest and fraudulent when the loans were originally made. The defendant adds that if there is any doubt that Midland learned of the acts in 1966, the severe condemnation of all ship loans and letters of credit contained in the April 1967 report of examination provided them with ample knowledge of the facts; The Court concludes, however, that the mere fact that the Directors may have had knowledge, by virtue of the 1966 and 1967 reports of examination, that the amount of ship loans was excessive and their documentation poor, was not by itself sufficient to warrant a conclusion by them that Pensec and Moraites were guilty of dishonest acts. “. . . Inefficient business procedures, or irregularities and discrepancies in accounts, if as consistent with the integrity of employees as [with] their dishonesty, does not constitute a discovery, even though dishonest acts may later be found to exist.” United States Fidelity & Guar. Co. v. Empire State Bank, 448 F.2d 360, 365 (8th Cir. 1971). The well-established rule is that the Insured under a blanket employee’s fidelity bond is not bound to give notice “until he [has] acquired knowledge of some specific fraudulent or dishonest act which might involve the [insurer] in liability for the misconduct.” Notice is not required when the obligee merely suspect's or has reason to suspect the wrongdoing. American Surety Co. v. Pauly, 170 U.S. 133, 144, 18 S.Ct. 552, 42 L.Ed. 977 (1898); see also, Federal Deposit Insurance Corp. v. Lott, 460 F.2d 82, 87 (5th Cir. 1972). The question then is when in fact did the Bank discover the loss? The .defendant has argued that'if the loss was not discovered in 1966-1967, then it was discovered in March 1969, when Peter Berkley sent a letter to F & D on behalf of Midland stating: “. . . the bank has discovered a loss . . . .” Seizing upon this language, the defendant contends that as the loss was discovered in March and the proof of loss forms were not filed" }, { "docid": "15520100", "title": "", "text": "Bank of Rantaul, 13 F.2d 474 (D.C.E.D.Ill.1926); United States F. & G. of Baltimore v. Crown Cork & Seal Co. of Baltimore City, 145 Md. 513, 125 A. 818 (Ct.App.Md.1924); Krey Packing Co. v. Employers’ Liability Assurance Corp., 127 S.W.2d 780 (St. Louis Ct.App.1939); City of Middlesboro v. American Surety Co. of New York, 306 Ky. 367, 211 S.W.26 670 (1948); Great American Indemnity Co., et al. v. State, 229 S.W.2d 850 (Civ.App.Tex.1950); United States Fidelity & Guaranty Co. v. Barber, 70 F.2d 220 (6th Cir. 1934); American Bonding Co. of Baltimore v. Morrow, 80 Ark. 49, 96 S.W. 613 (1906); Commercial Bank v. American Bonding Co., 194 Mo.App. 224, 187 S.W. 99 (1916). . “THE ST. PAUL PIRE AND MARINE INSURANCE COMPANY (herein called Company), in consideration of the premium (s), agrees to indemnify the Insured for all loss which the Insured shall sustain through any act(s) of fraud or dishonesty committed anywhere, alone or in collusion with others, subsequent to noon of the date of this Bond and prior to its cancellation, by any Employee or Employees * * * while this bond is in force as to the Employee or Employees causing such loss, and which loss is discovered not later than 3 years following the cancellation of this Bond as an entirety, as hereinafter provided, including, without limiting the generality of the foregoing, * * . This Bond applies to any loss occurring during the term of any prior bond or bonds or policy or policies of insurance, herein referred to as prior insurance (s), carried by the Insured, provided (a) such loss is one to which the coverage of this Bond would have applied had the loss occurred during the effective period of this Bond, and (b) that such prior insurance (s) had not terminated prior to the date of this Bond, and (c) that the period allowed for discovery of loss under such prior insurance(s) had elapsed prior to the discovery of such loss, and (d) that the Company shall be liable for no more than the amount of coverage in effect under such" }, { "docid": "5780119", "title": "", "text": "losses due to dishonest employees. See, e. g., American Surety Co. v. Pauly, 170 U.S. 133, 144-47, 18 S.Ct. 552, 42 L.Ed. 977 (1898); United States Fidelity & Guaranty Co. v. Empire State Bank, 448 F.2d 360, 364-65 (8th Cir. 1971); Federal Deposit Insurance Corp. v. Aetna Casualty & Surety Co., 426 F.2d 729, 738-39 (5th Cir. 1970); Hidden Splendor Mining Co. v. General Insurance Co., 370 F.2d 515, 519 (10th Cir. 1966); American Employers' Insurance Co. v. Cable, 108 F.2d 225, 226-27 (5th Cir. 1939); Midland Bank & Trust Co. v. Fidelity & Deposit Co., 442 F.Supp. 960, 971-73 (D.N.J.1977); Alfalfa Electric Cooperative, Inc. v. Travelers Indemnity Co., 376 F.Supp. 901, 906 (W.D.Okl.1973); National Mutual Casualty Co. v. Cypret, 207 Ark. 11, 179 S.W.2d 161, 164 (1944); Fidelity & Deposit Co. v. Cunningham, 181 Ark. 954, 28 S.W.2d 715, 719 (1930). Arkansas law accords with the generally accepted definition of discovery as construed in connection with blanket employee fidelity bonds, and has been stated by the Arkansas Supreme Court as follows: Under the terms of a bond indemnifying the assured against the larceny or embezzlement of the principal and requiring notice by the assured to the insurer on their becoming aware of same, to render the notice necessary, more than mere suspicion is required; circumstances must have existed and been known by the assured, which would have induced the belief in an ordinarily prudent person that a larceny or embezzlement had been committed. Fidelity & Deposit Co. v. Cunningham, 181 Ark. 954, 28 S.W.2d at 719. From the foregoing authorities, “discovery” of fraud or dishonesty is deemed to occur when the insured actually becomes aware of sufficient facts which would lead a reasonable person to believe that an insured loss has occurred. Mere suspicion of an insured loss by the insured is not sufficient to trigger the notice requirement. See Federal Deposit Insurance Corp. v. Lott, 460 F.2d 82, 86-87 (5th Cir. 1972). Contrary to the district court’s holding, it appears settled that absent specific terms of the bond the insured has no obligation to exercise diligence to search" }, { "docid": "13640108", "title": "", "text": "of fraud, dishonesty, forgery, theft, larceny, embezzlement, wrongful abstraction, misapplication, misappropriation or other wrongful act committed by such officer or employee directly or through connivance with others, until all of the officer’s or employee’s accounts with the state bank shall have been fully settled and satisfied.” Iowa Code § 524.705 (1970). The Bond in the instant case provided coverage for: (A) Loss resulting directly from one or more dishonest or fraudulent acts of an Employee, committed anywhere and whether committed alone or in collusion with others, including loss of Property resulting from such acts of an Employee, which Property is held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor. Dishonest or fraudulent acts as used in this Insuring Agreement shall mean only dishonest or fraudulent acts committed by such Employee with the manifest intent: (a) to cause the Insured to sustain such loss; and (b) to obtain financial benefit for the Employee, or for any other person or organization intended by the Employee to receive such benefit, other than salaries, commissions, fees, bonuses, promotions, awards, profit sharing, pensions or other employee benefits earned in the normal course of employment. Bankers Blanket Bond, Standard Form No. 24, No. BND 2 09 62 02, as amended by SR6019, dated November 1, 1977 (emphasis added). We believe the district court was correct in concluding that Continental’s bond was a statutory bond. See American Trust & Sav. Bank v. United States Fidelity & Guaranty, 418 N.W.2d 853, 854 (Iowa 1988). Therefore, the statute and the terms of the bond dictate Continental’s liability. Id. Furthermore, a statutory bond should be liberally construed by the interpreting court in light of the purpose for which it was created. Id. In this case, Clawson solicited Hood and Secor to borrow money from First Bank and loan it to Clawson in circumvention of state banking regulations. Clawson falsified financial statements, signed in blank by Hood and Secor, to support fraudulent loan applications. Clawson utilized notes, signed in blank, to obtain loans" }, { "docid": "2635568", "title": "", "text": "Carrow, 417 F.2d 97, 102-03 (8th Cir. 1969); Skogen v. Dow Chemical Company, 375 F.2d 692, 703 (8th Cir. 1967); and (2) the record appears unclear whether Hartford as the predecessor insurer paid this $2,000 solely upon the Briar Associates-Eddie Robbins transactions, or upon the claim made here under Count II (involving Pleasure, Incorporated-Lyle McAllister) in which plaintiff Empire made no recovery from U.S.F. & G., or upon both claims. See Jefferson Bank & Trust Co., supra, 408 S.W.2d at 832. Both of these circumstances bar us from giving U.S.F. & G. relief. Appellant-insurer, U.S.F. & G., also objects to being charged for any loss attributable to the depreciation of the collateral pledged to the Bank in connection with the December 1964 loan for $27,000. U.S.F. & G. cites no legal authority in support of its contention, and the decision in Maryland Casualty Co. v. American Trust Co., 71 F.2d 137 (5th Cir. 1934), holds to the contrary. Since the employee’s dishonest conduct, covered by the bond in the instant case, induced the loans in question, it would seem appropriate that the insurer indemnify the obligee Bank for all losses incident to the loan transaction. Stock held as collateral will fluctuate in value from time to time. The coverage of the bond broadly indemnifies plaintiff Bank from “any loss” sustained in connection with employee dishonesty, and in our judgment provides indemnity for. the entire loss attributable to the tainted loan transactions measured in part by the depreciation in the collateral which initially afforded ample security for the $27,000 loan. See American Insurance Co. v. First National Bank in St. Louis, 409 F.2d 1387, 1391 (8th Cir. 1969). We, therefore, affirm the award on Count I subject to the discussion in part IV relating to the award of a statutory penalty and prejudgment interest. III. CROSS-APPEAL In denying recovery to the Bank upon Count II for its substantial loss incurred on the Pleasure, Incorporated-Lyle McAllister account, the trial court found that Pleasure, Incorporated loaned Leimgruber $2,500 subsequent to Leimgruber’s resignation from the Bank. The trial court specifically held that no dishonesty" }, { "docid": "13640107", "title": "", "text": "breach of contract and against Milnikel for $2,191.64 as a discovery sanction. The court also awarded pre-suit and post-suit prejudgment interest to First Bank. We will address Continental’s challenges to the district court’s judgment below seriatim. II. LOSS UNDER THE BOND A bankers blanket fidelity bond covers two types of losses: (1) a direct loss of money, and (2) third party liability incurred. Merchants-Produce Bank v. United States Fidelity & Guaranty, 305 F.Supp. 957, 964 (W.D.Mo.1969). As a result of each fraudulent or dishonest act comprising the loan scheme, First Bank suffered direct loss and incurred third party liability. Continental contends that the district court erred in concluding that First Bank sustained a loss under the Bond, when loan proceeds were transferred to Hood and Se-cor. Continental asserts that since Hood and Secor ultimately paid their debts to First Bank, no loss occurred. We disagree. In Iowa, officers and employees of state-chartered banks are required to provide a bond to indemnify the bank against certain losses incurred as a result of “any act or acts of fraud, dishonesty, forgery, theft, larceny, embezzlement, wrongful abstraction, misapplication, misappropriation or other wrongful act committed by such officer or employee directly or through connivance with others, until all of the officer’s or employee’s accounts with the state bank shall have been fully settled and satisfied.” Iowa Code § 524.705 (1970). The Bond in the instant case provided coverage for: (A) Loss resulting directly from one or more dishonest or fraudulent acts of an Employee, committed anywhere and whether committed alone or in collusion with others, including loss of Property resulting from such acts of an Employee, which Property is held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor. Dishonest or fraudulent acts as used in this Insuring Agreement shall mean only dishonest or fraudulent acts committed by such Employee with the manifest intent: (a) to cause the Insured to sustain such loss; and (b) to obtain financial benefit for the Employee, or for any other person" }, { "docid": "2635566", "title": "", "text": "belief, * * * performed their respective duties honestly.” This contention of U.S.F. & G also appears to overlook the circumstance that Empire possessed no apparent motive to falsify its application since another insurer provided coverage for any such loss discovered prior to July 1, 1965. We find no provision of the policy, nor of the application, requiring the Bank to give credence to rumors concerning former employees by reporting them for possible investigation to a prospective insurer. The application form required the applicant Bank to report all losses during the previous five-year period and to disclose pertinent information known to the applicant concerning present employees. In the absence of any showing of bad faith or fraud, however, appellant-insurer makes no case for setting aside coverage on the basis of false representation. See generally, as relates to similar aspects of this type of insurance coverage, Appleman, Insurance Law and Practice §§ 6195(a), 6197 (1944). II. REDUCTION OF DAMAGES In addition to filing claims under Counts I and II with U.S.F. & G., Empire filed identical claims with Hartford Accident & Indemnity Company, which had provided Bankers’ Blanket Bond coverage terminating prior to July 1, 1965. Shortly before Empire brought the present lawsuit, however, it settled the claims filed with Hartford for $2,-000 and furnished Hartford with a covenant not to sue. Appellant U.S.F. & G. seeks credit for that $2,000 payment against the judgment entered upon Count I. Although Jefferson Bank & Trust Co., supra, 408 S.W.2d at 832, indicates that a bank in the posture of Empire in this case must credit against a fidelity bond claim all sums received from another insurer upon the same loss, we are unable to apply this rule in the instant case for two reasons: (1) this issue was not pleaded to or considered by the district court and cannot be considered de novo on this appeal, United States ex rel. Huisinga v. Commanding Officer, etc., 446 F.2d 124 (8th Cir., June 28, 1971); United States v. 3,788.-16 Acres of Land, etc., 439 F.2d 291, 296 (8th Cir. 1971); National Compressor Corp. v." }, { "docid": "16549898", "title": "", "text": "comes forward with the new issue of whether or not Oritani was sophisticated without having conducted discovery on the question. . Fidelity also argues that this court erred, because no claims were asserted under Section (A). This argument is addressed infra, at Section III. . In contrast, in Nat’l Newark, the bond simply stated that it provided coverage for \"Loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, including loss, through any such act of any of the Employees of Property held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefore.” However, as discussed above, the bond in the instant case further defines dishonest or fraudulent acts of an employee. . See Defendant’s Brief in Reply to Oritani’s Opposition to Motion for Rehearing and Defendant’s Opposition to Plaintiff’s Cross-Motion for Partial Summary Judgment and Leave to Amend, (“DRb.\"), dated September 10, 1990, Exhibit A, p. 4. . See DRb., Exhibit A, at 4. . See DRb., Exhibit A, at 5. .In a diversity action, a claim for pre-judgment interest is governed by the law of the forum. See Zippertubing Co. v. Teleflex, Inc., 757 F.2d 1401, 1414-15 (3d Cir.1985). . The attorneys’ fees incurred by plaintiff in connection with this action are not recoverable as damages. See, e.g., Gerhardt v. Continental Ins. Cos., 48 N.J. 291, 300-01, 225 A.2d 328 (1966); see also Dorofee v. Pennsauken Tp. Planning Bd., 187 N.J.Super. 141, 144-45, 453 A.2d 1341 (App.Div.1982). Although New Jersey court rule 4:42-9(a)(6) permits recovery of attorneys’ fees in an action “upon a liability or indemnity policy of insurance,\" and although the rule applies in a federal diversity action, (see Transamerica Ins. Co. v. Keown, 451 F.Supp. 397, 404 (D.N.J.1978)), it does not support an award of fees in a direct suit by an insured against its insurer. See Guarantee Ins. Co. v. Saltman, 217 N.J.Super. 604, 610-11, 526 A.2d 731 (App.Div.1987). It thus appears that there is no" }, { "docid": "2635565", "title": "", "text": "the information known to Empire prior to July 1, 1965, we cannot say that a reasonable man would have necessarily appreciated that he had sustained a loss caused by the dishonesty of a trusted former employee. Under such circumstances, we will not set aside a finding by the trial court that the Bank discovered its loss resulting from Leimgruber's dishonesty after July 1, 1965, during the policy period. See, e. g., General Finance Corp., supra, 439 F.2d 981; Shatz v. American Surety Co. of New York, 295 S.W.2d 809, 816 (Ky.1955); Rule 52(a), Fed.R.Civ.P. We see no merit, moreover, in the defense to Count I that U.S.F. & G. should not be held liable for this loss because Empire failed to disclose suspicions about Leimgruber in its application for bond coverage. The bond application form itself, however, required no disclosure of suspicious circumstances concerning former employees; it required only a certification that “* * * present officers and employees of the Insured * * * have all, to the best of the Insured’s knowledge and belief, * * * performed their respective duties honestly.” This contention of U.S.F. & G also appears to overlook the circumstance that Empire possessed no apparent motive to falsify its application since another insurer provided coverage for any such loss discovered prior to July 1, 1965. We find no provision of the policy, nor of the application, requiring the Bank to give credence to rumors concerning former employees by reporting them for possible investigation to a prospective insurer. The application form required the applicant Bank to report all losses during the previous five-year period and to disclose pertinent information known to the applicant concerning present employees. In the absence of any showing of bad faith or fraud, however, appellant-insurer makes no case for setting aside coverage on the basis of false representation. See generally, as relates to similar aspects of this type of insurance coverage, Appleman, Insurance Law and Practice §§ 6195(a), 6197 (1944). II. REDUCTION OF DAMAGES In addition to filing claims under Counts I and II with U.S.F. & G., Empire filed identical" }, { "docid": "5780120", "title": "", "text": "of a bond indemnifying the assured against the larceny or embezzlement of the principal and requiring notice by the assured to the insurer on their becoming aware of same, to render the notice necessary, more than mere suspicion is required; circumstances must have existed and been known by the assured, which would have induced the belief in an ordinarily prudent person that a larceny or embezzlement had been committed. Fidelity & Deposit Co. v. Cunningham, 181 Ark. 954, 28 S.W.2d at 719. From the foregoing authorities, “discovery” of fraud or dishonesty is deemed to occur when the insured actually becomes aware of sufficient facts which would lead a reasonable person to believe that an insured loss has occurred. Mere suspicion of an insured loss by the insured is not sufficient to trigger the notice requirement. See Federal Deposit Insurance Corp. v. Lott, 460 F.2d 82, 86-87 (5th Cir. 1972). Contrary to the district court’s holding, it appears settled that absent specific terms of the bond the insured has no obligation to exercise diligence to search out facts which might lead to discovery. See, e. g., American Employers’ Insurance Co. v. Cable, 108 F.2d at 227; Midland Bank & Trust Co. v. Fidelity & Deposit Co., 442 F.Supp. at 972. The well established rule is that the insured under a blanket employee’s fidelity bond is not bound to give notice until he has acquired knowledge of some specific fraudulent or dishonest act. As early stated: [N]either negligence nor inattention, nor any failure to discover what by diligence might have been discovered, nothing, in fact, short of actual discovery by the bank of dishonesty or a positive breach of an imperative condition, will defeat claims for loss caused by that dishonesty, unless it is otherwise provided in the contract. American Employers' Insurance Co. v. Cable, 108 F.2d at 227. As Judge Bright observed in United States Fidelity & Guaranty Co. v. Empire State Bank, supra, it is not only knowledge of the facts but the facts must be such that a reasonable insured would understand the significance of them connoting the commission" }, { "docid": "16549897", "title": "", "text": "remain the same. . Notably, even though the Werner Court opined that the unambiguous language of the contract in that case did not provide coverage, the Court did not enter judgment in favor of the insurer. Rather, the Court remanded the case for a determination as to whether, despite the unambiguous language, the insured had an expectation of coverage. See Werner, 112 N.J. at 39, 548 A.2d 188. Thus, it is clear that the inquiry called for by Werner is not to be applied in cases involving ambiguous insurance policies, (because ambiguities are resolved against the insurer.) On the contrary, the case requires inquiry into the insured’s intent only where the language of the contract dictates a conclusion that there is no coverage. . Good cause does not exist such as would warrant extension of the discovery period. The discovery period obviously cannot be extended whenever a defendant realizes that it would be opportune to explore a new defense. This is apparently the case here. Defendant's previous legal defenses have proven unsuccessful, and thus, it comes forward with the new issue of whether or not Oritani was sophisticated without having conducted discovery on the question. . Fidelity also argues that this court erred, because no claims were asserted under Section (A). This argument is addressed infra, at Section III. . In contrast, in Nat’l Newark, the bond simply stated that it provided coverage for \"Loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, including loss, through any such act of any of the Employees of Property held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefore.” However, as discussed above, the bond in the instant case further defines dishonest or fraudulent acts of an employee. . See Defendant’s Brief in Reply to Oritani’s Opposition to Motion for Rehearing and Defendant’s Opposition to Plaintiff’s Cross-Motion for Partial Summary Judgment and Leave to Amend, (“DRb.\"), dated September 10, 1990, Exhibit A," }, { "docid": "1784217", "title": "", "text": "816 n. 22 (Okla.1987). The Oklahoma provision, which the terms of the bond closely mirror, requires: The directors of a bank or trust company shall require good and sufficient fidelity bonds on all active officers and employees ... which bonds shall provide for indemnity to such bank or trust company on account of any losses sustained by it as the result of any dishonest, fraudulent or criminal conduct by them acting independently or in collusion or combination with any person or persons. Okla.Stat.Ann. tit. 6, § 713 (West 1984). Pursuant to the Oklahoma provision, the banker’s blanket bond provides indemnity against losses caused by the dishonest or fraudulent acts of bank employees up to $300,000, with a $10,000 deductible, and an excess bond provides coverage over that amount up to $1,000,000. Both bonds afford coverage for “[l]oss resulting directly from dishonest or fraudulent acts of an Employee committed alone or in collusion with others,” subject to specified terms, conditions, limitations, and exclusions. (Record, Vol. 1, Doc. 78, Ex. G.) The bonds further define coverage of an employee’s “dishonest or fraudulent acts”: only dishonest or fraudulent acts committed by such Employee with the manifest intent (a) to cause the Insured to sustain such loss, and (b) to obtain financial benefit for the Employee or for any other person or organization intended by the Employee to receive such benefit. Id. The parties do not disagree that Mr. Dunham committed a dishonest or fraudulent act with the manifest intent to cause the insured to sustain a loss and to obtain financial benefit for himself. At issue are the actions of officers Floyd, Rice, and Hall. Before we begin our analysis of the insured’s claim for breach of contract, we emphasize that the district court couched in the alternative its judgment that the insured’s loss was covered under the fidelity bonds. The district court held that because the other officers were in collusion with Mr. Dunham, their discovery would not be imputed to the insured for purposes of the bond’s requirement that the insured give notice to the insurer within thirty days of its" }, { "docid": "5780121", "title": "", "text": "out facts which might lead to discovery. See, e. g., American Employers’ Insurance Co. v. Cable, 108 F.2d at 227; Midland Bank & Trust Co. v. Fidelity & Deposit Co., 442 F.Supp. at 972. The well established rule is that the insured under a blanket employee’s fidelity bond is not bound to give notice until he has acquired knowledge of some specific fraudulent or dishonest act. As early stated: [N]either negligence nor inattention, nor any failure to discover what by diligence might have been discovered, nothing, in fact, short of actual discovery by the bank of dishonesty or a positive breach of an imperative condition, will defeat claims for loss caused by that dishonesty, unless it is otherwise provided in the contract. American Employers' Insurance Co. v. Cable, 108 F.2d at 227. As Judge Bright observed in United States Fidelity & Guaranty Co. v. Empire State Bank, supra, it is not only knowledge of the facts but the facts must be such that a reasonable insured would understand the significance of them connoting the commission of a fraud. 448 F.2d at 365. Under Arkansas law, insurance contracts are to be construed according to general contract principles. Thus, in construing the bonding agreement the notice provision must be considered in connection with the type of loss covered. See Shepherd v. Mutual Life Insurance Co., 63 F.2d 578, 579 (8th Cir. 1933); Haskins v. Occidental Life Insurance Co., 349 F.Supp. 1192, 1198 (E.D.Ark.1972). Cf. American Surety Co. v. Pauly, 170 U.S. at 144, 18 S.Ct. 552 (object of contract in insuring against employee defalcations must not be defeated by narrow interpretation of notice provision). Thus, it is appropriate to examine the precise type of loss which the bonding agreement provides protection against. Fidelity & Deposit Company argued in the trial court that the Bank’s loss was not an insured event since an experienced escrow agent would not have been taken in by Mr. Daugherty’s representations concerning the escrow agreement and addendum. The trial court explicitly rejected the proposition that the level of competence of an experienced escrow agent should be used as" }, { "docid": "23496198", "title": "", "text": "or repeated exposure to substantially the same general harmful conditions.” Under Texas law, intentional and volitional acts are not “occurrences” that can trigger liability coverage. See Union Mut. Ins. Cos. v. Stotts, 837 F.Supp. 814, 816 (N.D.Tex.1993); Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). Similarly, under the property coverage, section III.F of the “Special Extended Coverage Endorsement” specifically excludes losses “caused by any willful or dishonest act or omission of the Insured or ... any employee of any Insured.” Without deciding the applicability of either of these policies, the existence of these other parts of the master policy indicates that the words “legally liable” in the “Interest Covered” provision of the employee dishonesty policy were intended only to limit the property that would be covered under that policy, and not to extend coverage to the theft of customer property by the insured’s employees where the insured has no interest in the misappropriated property. IV In light of our conclusion that Mrs. Lynch’s misappropriated funds do not fall within the “Interest Covered” under the employee dishonesty policy issued by Potomac, we decline to address the other grounds on which the district court based its decision. Furthermore, because Potomac accordingly had a reasonable basis on which to deny Lynch Properties’ claim, we affirm the district court’s denial of Lynch Properties’ extra-contractual state law claims for failure to pay Lynch Properties’ claim. See Aranda v. Insurance Co., 748 S.W.2d 210, 213 (Tex.1988). For the foregoing reasons, the decision of the district court is AFFIRMED. . The 1969 version of Standard Form 24 provided coverage in relevant part for: (A) Loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and- whether committed alone or in collusion with others, including loss, through any such act of any of the Employees, of property held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor. Karen Wildau, Evolving Law of Third-Party Claims Under Fidelity Bonds: When is Third Party Recovery Allowed?, 25" }, { "docid": "2635559", "title": "", "text": "the trial court’s finding that the Bank had discovered its loss within the policy period, which commenced at noon on July 1, 1965, and continued until September 22, 1966. Irrespective of this, U.S.F. & G. also contends that the Bank possessed sufficient knowledge of Leimgruber’s wrongdoing to require it to disclose its suspicions when it executed its application for bond coverage in June of 1965. On the discovery issue, both parties cite Jefferson Bank & Trust Co. v. Central Surety & Insurance Corp., 408 S.W.2d 825 (Mo.1966), as enunciating the controlling principles of law. In Jefferson, the Missouri Supreme Court adopted the following language taken from Wachovia Bank & Trust Co. v. Manufacturers Casualty Insurance Co., 171 F.Supp. 369 (M.D.N.C.1959): “In order to constitute a ‘discovery’ in accordance with the terms of the policy * * * there must be facts known, at the time it is asserted that the discovery was made, which would lead a reasonable person to an assumption that a shortage existed. The facts must be viewed as they would have been by a reasonable person at the time discovery is asserted, and not as they later appeared in the light of subsequently acquired knowledge. * * * [T]he mere discovery of certain facts which later lead to other facts which reveal the existence of a shortage does not necessarily constitute a discovery. Knowledge available to the insured must rise above a mere suspicion of loss. The fact that an investigation after the termination of the policy leads to the disclosure of an actual defalcation does not raise a previous suspicion to the leval of a discovery. Inefficient business procedures, or irregularities and discrepancies in accounts, if as consistent with the integrity of employees as [with] their dishonesty, does not constitute a discovery, even though dishonest acts may later be found to exist.” (emphasis and bracketed word added) [408 S.W.2d at 831, quoting 171 F. Supp. at 375-376] Discovery thus imports an awareness of the significance of known facts. The Missouri Supreme Court particularly noted in Jefferson that “* * * not only must the facts" }, { "docid": "23496199", "title": "", "text": "under the employee dishonesty policy issued by Potomac, we decline to address the other grounds on which the district court based its decision. Furthermore, because Potomac accordingly had a reasonable basis on which to deny Lynch Properties’ claim, we affirm the district court’s denial of Lynch Properties’ extra-contractual state law claims for failure to pay Lynch Properties’ claim. See Aranda v. Insurance Co., 748 S.W.2d 210, 213 (Tex.1988). For the foregoing reasons, the decision of the district court is AFFIRMED. . The 1969 version of Standard Form 24 provided coverage in relevant part for: (A) Loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and- whether committed alone or in collusion with others, including loss, through any such act of any of the Employees, of property held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor. Karen Wildau, Evolving Law of Third-Party Claims Under Fidelity Bonds: When is Third Party Recovery Allowed?, 25 Tort & Ins. L.J. 92, 99 (1989). Property was defined by the 1969 bond as ”[m]oney ... and all other instruments ... in which the Insured has an interest ... or which are held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefore.” Id. at 93. The 1980 version of Standard Form 24 amended this language to cover only: Property (1) owned by the Insured, (2) held by the Insured in any capacity, or (3) for which the Insured is legally liable. This bond shall be for the sole use and benefit of the Insured named in the Declarations. Id. at 94. Significantly, this definition of property omitted all mention of property \"held by the Insured for any purpose.” Id. at 94. Standard Form 24 was again altered in 1986, but the provisions relating to property described above were not changed. Id. Potomac’s policy is even more restrictive than the 1986 version of Standard Form 24 because it" } ]

[ { "docid": "22230241", "title": "", "text": "O’SCANNLAIN, Circuit Judge: We must decide whether we should vacate, as improvidently granted, a Certificate of Appealability issued by a motions panel pursuant to the Antiterrorism and Effective Death Penalty Act. I Kevin Phelps was convicted of first degree murder in a California state court in 1995 and has exhausted all relevant state remedies. On May 15, 1998, he filed a habeas corpus petition in the Northern District of California one year and fifteen days after the California Supreme Court declined to review a previous denial of state habeas corpus relief. The district court denied the petition based upon its having been lodged more than a year after his state post-conviction relief process ended. See 28 U.S.C. § 2244(d). On appeal, we affirmed in an unpublished disposition. See Phelps v. Alameda, No. 99-15495, 2000 WL 329180 (9th Cir. Mar. 29, 2000). Two years later, Phelps filed a motion under Federal Rule of Civil Procedure 60(b)(5) with the same district court, seeking reconsideration of the earlier denial of his petition for writ of habeas corpus. He argued that Bunney v. Mitchell, 262 F.3d 973 (9th Cir.2001), among other cases, effected an intervening change in the law suggesting that his initial petition had indeed been timely. See Fed.R.Civ.P. 60(b)(5) (allowing a district court to revise an order if “a prior judgment upon which it is based has been reversed or otherwise vacated”). The district court squarely rejected Phelps’s motion on the merits: Assuming, arguendo, that the subsequent cases upon which petitioner relies have changed the applicable law,[] the Ninth Circuit has held that “a change in the applicable law after a judgment has become final in all respects is not a sufficient basis for vacating a judgment” under Rule 60(b)(5). See Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir.1989).... Consequently, petitioner is not entitled to relief under Rule 60(b)(5). The court added, however, that “the Ninth Circuit has held that where a habeas corpus petitioner files a motion for relief from a final judgment under Rule 60(b), based on a subsequent change in law, the motion should be construed as a" } ]

[ { "docid": "23518655", "title": "", "text": "petition for writ of certiorari in January 1988. Later that same year, a state district court denied Mr. Adams’ first state habeas petition. Mr. Adams filed a second state habeas petition in April 1997, the timing of which creates the dispute underlying this case. Mr. Adams, acting pro se, mailed the petition to the state district court on April 12, 1997. While Mr. Adams claims the district court received the petition by April 16, the clerk of court file-stamped the petition April 22, 1997. The district court dismissed the second state petition with prejudice, and the New Mexico Supreme Court denied Mr. Adams’ petition for cer-tiorari on July 21, 1997. Pursuant to 28 U.S.C. § 2254, Mr. Adams then mailed his pro se federal habeas petition to the United States District Court for the District of New Mexico on July 30, and the clerk file-stamped the petition August 1, 1997. Adopting a magistrate judge’s recommendation, the district court dismissed Mr. Adams’ petition as untimely. In doing so, neither the district court nor the magistrate judge addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which" }, { "docid": "23464733", "title": "", "text": "parole advice. After conducting a hearing, the PCRA court dismissed the PCRA petition as untimely and, in the same opinion, denied Schlueter’s motion to restore his right to appeal nunc pro tunc because Schlueter had “knowingly and voluntarily waived his appellate rights.” App. at 436. On appeal, the Pennsylvania Superior Court affirmed the dismissal of Schlueter’s PCRA petition as untimely without mentioning his motion to restore his right to file a direct appeal from his conviction nunc pro tunc The Pennsylvania Supreme Court denied Schlueter’s petition for allowance of appeal without explanation on August 28, 2000. Through his attorneys, Schlueter filed a federal habeas corpus petition in the district court on October 12, 2000. The respondents moved to dismiss the habeas petition as barred by the applicable one-year period of limitation. The case was referred to the chief magistrate judge who rejected Schlueter’s arguments for equitable and statutory tolling, and recommended dismissing the habeas petition as untimely. After hearing oral argument, the district court adopted the chief magistrate judge’s report and recommendation and dismissed Schlueter’s habeas petition as untimely. The court, however, granted a certificate of appealability on the issue of equitable tolling. The district court subsequently “amplified” the certificate of ap-pealability to include the statutory tolling issues as well. Schlueter has filed a timely appeal. II. DISCUSSION A. Jurisdiction and Standard of Review The district court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254 and our jurisdiction is based on 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over the district court’s order dismissing Schlueter’s habeas petition as time barred. See Douglas v. Horn, 359 F.3d 257, 259 (3d Cir.2004). B. One-Year Period of Limitation In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) Congress prescribed a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners. See Douglas, 359 F.3d at 261. Effective April 24, 1996, the AEDPA provides in relevant part: 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" }, { "docid": "3064632", "title": "", "text": "forced to rely on state court records to ascertain the relevant dates and dispositions of their claims. See Pliler v. Ford, 542 U.S. 225, 232, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (“[Timeliness] calculations depend upon information contained in documents that do not necessarily accompany the petitions.”). It is not the petitioner, but rather the state that is in the best position to provide this information. Rule 5(d) of the § 2254 Rules recognizes as much by placing the burden of filing the relevant documents on the state, not on the petitioner, at the time it files its answer. See R. Governing § 2254 Cases 5(d) (requiring a state to file, along with its answer, copies of “the opinions and dispositive orders of the appellate court relating to the conviction or the sentence”); Pliler, 542 U.S. at 232, 124 S.Ct. 2441 (“[Petitioners are not required by 28 U.S.C. § 2254 or the Rules Governing § 2254 Cases to attach to their petitions, or to file separately, state-court records.”); see also 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 15.2c at 711 (4th ed. 2001) (“Most petitioners do not have the ability to submit the record with the petition, and the statute and' rules relieve them of any obligation to do so and require the state to furnish the record with the answer.”). Alternatively, the state argues that in Day, the Supreme Court recognized an exception to the usual pleading rules with respect to the defense of timeliness. In that case, the Court was presented with the question of whether a district court may, on its own initiative, dismiss a facially untimely § 2254 petition, despite the fact that the state had forfeited the timeliness defense by failing to raise it in its answer to the petition. 547 U.S. at 202, 126 S.Ct. 1675. The Court held that a district court may nevertheless raise the issue of untimeliness and dismiss the petition when it is clear that the petition is, in fact, untimely. Id. at 209-10, 126 S.Ct. 1675. Day does not determine, however, whether" }, { "docid": "19886980", "title": "", "text": "after Riddle’s filing, this case is not about the pre-filing obstacles faced by most habeas petitioners, which also do not justify equitable tolling. See Jackson v. Ault, 452 F.3d 734, 736-37 (8th Cir.2006) (attempt to obtain post conviction counsel); Maghee, 410 F.3d at 476 (failure to understand the plain language of a dismissal notice); Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir.2004) (prisoner’s misunderstanding of proper procedure to file state petition); Cross-Bey v. Gammon, 322 F.3d 1012, 1016 (8th Cir.2003) (petitioner’s lack of understanding of the law, and of the effect of his voluntary dismissal); Baker, 321 F.3d at 771-72 (limited access to law library and advance sign-up; ignorance of AEDPA’s enactment); Jihad, 267 F.3d at 806-07 (unsuccessful search for counsel, and lack of access to trial transcript); Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir.2001) (delays in obtaining trial transcript). Riddle may receive the benefit of equitable tolling if he can establish that a court’s conduct “lulled the movant into inaction through reliance on that conduct.” See United States v. Hernandez, 436 F.3d 851, 858-59 (8th Cir.2006); Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 855 (8th Cir.2003); Gassler, 255 F.3d at 495; Kreutzer, 231 F.3d at 463. See also Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir.2007) (equitable tolling allowed where state habeas court “affirmatively misled” petitioner); Brinson v. Vaughn, 398 F.3d 225, 230-31 (3d Cir.2005) (equitable tolling justified where a “court has misled a party regarding the steps that the party needs to take to preserve a claim”); Alexander v. Cockrell, 294 F.3d 626, 629-30 (5th Cir.2002) (equitable tolling allowed when circuit court’s previous opinion misled petitioner by stating he could later file for habeas relief). Cf. Pliler v. Ford, 542 U.S. 225, 234, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (remanding “given the Court of Appeal’s concern that respondent has been affirmatively misled” by the district court); id. at 235, 124 S.Ct. 2441 (O’Connor, J., concurring) (“if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate”); Shoemate, 390 F.3d at 598 (no" }, { "docid": "23021527", "title": "", "text": "federal habeas petition at a certain point in time is not dispositive. The critical fact here is that Harris relied in good faith on then-binding circuit precedent in making his tactical decision to delay filing a federal habeas petition. Harris’ failure to file a timely petition is not the result of oversight, miscalculation or negligence on his part, all of which would preclude the application of equitable tolling. See Lawrence, 127 S.Ct. at 1085. Harris was undoubtedly aware of when AEDPA’s statute of limitations would expire under our rule in Dictado. Harris presumably chose his tactical strategy precisely because he believed that, under Dictado, he could pursue relief in state courts without jeopardizing his ability to file a federal habeas petition. Harris’ circumstances justify equitable tolling under both our circuit’s standard and the Pace standard. Harris diligently pursued his rights. He filed successive petitions for state post-conviction relief while ensuring that enough time would remain to file a federal habeas petition under the then-existing Dictado rule. The Supreme Court’s overruling of the Dictado rule made it impossible for Harris to file a timely petition. Harris’ petition became time-barred the moment that Pace was decided. Finally, Harris had no control over the operative fact that caused his petition to become untimely — the Supreme Court’s decision in Pace. These are precisely the circumstances in which equitable principles justify tolling of the statute of limitations. C Harris argues that Supreme Court case law counsels in favor of granting equitable tolling in this case. In Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004), the Supreme Court reversed our holding that district courts were required to provide habeas petitioners with a specific warning that their case could become time-barred. Id. at 231, 124 S.Ct. 2441. The Supreme Court remanded the case to us for consideration of equitable tolling given our “concern that respondent had been affirmatively misled” by the district court. Id. at 234, 124 S.Ct. 2441. The unstated implication in the Supreme Court’s opinion is that equitable tolling would likely be appropriate in at least some situations where" }, { "docid": "23010032", "title": "", "text": "McMILLIAN, Circuit Judge. In these consolidated cases, Michael Nichols and Richard L. Crane (together referred to as “petitioners”) appeal from final judgments entered in the United States District Court for the Western District of Missouri dismissing their respective petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254. Nichols v. Bowersox, No. 97-0666-CV-W-3-P (W.D.Mo. Aug. 20, 1997); Crane v. Dormire, No. 97-0673-CV-W-3-P (W.D.Mo. Aug. 20, 1997). For reversal, they argue that the district court erred in dismissing their petitions as untimely filed under the one-year period of limitation imposed by 28 U.S.C. § 2244(d), which was enacted as part of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). In an earlier proceeding, a divided panel of this court reversed the judgments of the district court and remanded each case to the district court for further proceedings. However, this court subsequently vacated the panel opinion and granted the suggestion for rehearing en banc filed by Michael Bowersox and Dave Dormiré (together referred to as “respondents”). Upon consideration by the full court and for the reasons stated below, we reverse the judgments of the district court and remand for further proceedings consistent with this opinion. Jurisdiction in the district court was based upon 28 U.S.C. §§ 1331, 2254. Jurisdiction in this court is based upon 28 U.S.C. §§ 1291, 2253(a). Background Nichols v. Bowersox Petitioner Nichols is currently serving, among other sentences, a sentence of life imprisonment without the possibility of parole for first degree murder. He was convicted of first degree murder in the Circuit Court of Jackson County, Missouri, and his conviction was affirmed on appeal by the Missouri Court of Appeals on February 20, 1996. State v. Nichols, 915 S.W.2d 795 (Mo.Ct.App.1996) (per curiam). Nichols did not file a petition for a writ of certiorari in the United States Supreme Court. The mandate in his criminal case issued on April 11,1996. Nichols, acting pro se, filed his § 2254 petition for a writ of habeas corpus through the prison mail system. He signed the petition on April 21, 1997. It was “provisionally filed” by" }, { "docid": "23348867", "title": "", "text": "rules). Compare also Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir.2003), vacated on other grounds sub nom., Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (citing Beeler, 128 F.3d at 1288) (favorably cited in Holland, 130 S.Ct. at 2564) (attorney moving out of state and leaving behind unusable work product for replacement counsel is an example of an attorney’s failure to protect the client’s interest that constitutes egregious conduct justifying equitable tolling); Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir.2003) (favorably cited in Holland, 130 S.Ct. at 2564; Spitsyn, 345 F.3d at 801) (“extraordinary circumstances” standard satisfied by attorney’s egregious conduct in failing to follow client’s specific direction to file a 28 U.S.C. § 2255 motion and failure to perform any research on the matter). The district court dismissed this case based on the conclusion that Porter did not act diligently. However, Porter provided facts that may support that Dangler’s egregious representation prevented him from acting in a timely manner. On preliminary review, it cannot be conclusively determined that Porter will be unable to show that he acted with sufficient diligence. In Ford, the district court did not allow the petitioner to amend the petition or expand his declaration, nor had it held an evidentiary hearing. Because equitable tolling is highly fact specific, this court declined to rule on equitable tolling and instead remanded the case for further factual development. 330 F.3d at 1107. In Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (per curiam), this court remanded the case for further consideration of equitable tolling because it could not be determined that there were “no circumstances consistent with petitioner’s petition and declaration under which he would be entitled to a finding of ... equitable tolling.” See also, Holland, 130 S.Ct. at 2565 (quoting Gonzalez v. Crosby, 545 U.S. 524, 540, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (Stevens, J., dissenting)). In Spitsyn, this court noted that the existing record did not “clearly answer” whether Spitsyn acted with reasonable diligence and provided no explanation of why Spitsyn waited five" }, { "docid": "19886981", "title": "", "text": "F.3d 851, 858-59 (8th Cir.2006); Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 855 (8th Cir.2003); Gassler, 255 F.3d at 495; Kreutzer, 231 F.3d at 463. See also Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir.2007) (equitable tolling allowed where state habeas court “affirmatively misled” petitioner); Brinson v. Vaughn, 398 F.3d 225, 230-31 (3d Cir.2005) (equitable tolling justified where a “court has misled a party regarding the steps that the party needs to take to preserve a claim”); Alexander v. Cockrell, 294 F.3d 626, 629-30 (5th Cir.2002) (equitable tolling allowed when circuit court’s previous opinion misled petitioner by stating he could later file for habeas relief). Cf. Pliler v. Ford, 542 U.S. 225, 234, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (remanding “given the Court of Appeal’s concern that respondent has been affirmatively misled” by the district court); id. at 235, 124 S.Ct. 2441 (O’Connor, J., concurring) (“if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate”); Shoemate, 390 F.3d at 598 (no “affirmative conduct on the part of the state” caused the delay in filing habeas petition). As this court’s cases demonstrate, equitable tolling in géneral, and diligence in particular, depend on the facts of the case. On remand, Riddle may attempt to establish that he has been pursuing his rights diligently but was lulled into inaction, justifying equitable tolling of the AEDPA statute of limitations. IV. The judgment of the district court is affirmed in part, reversed in part, and the case remanded. . The date the petition was actually placed in the prison mail system does not appear in the record. See Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir.1999) (enbanc) (\"a pro se prisoner’s petition for writ of habeas corpus is filed on the date it is delivered to prison authorities for mailing to the clerk of the court”). This actual date does not affect the analysis in this opinion and may be established on remand. See generally Henderson-El v. Maschner, 180 F.3d 984, 985 (8th Cir.1999) (petitioner may not invoke the mailbox" }, { "docid": "23021528", "title": "", "text": "it impossible for Harris to file a timely petition. Harris’ petition became time-barred the moment that Pace was decided. Finally, Harris had no control over the operative fact that caused his petition to become untimely — the Supreme Court’s decision in Pace. These are precisely the circumstances in which equitable principles justify tolling of the statute of limitations. C Harris argues that Supreme Court case law counsels in favor of granting equitable tolling in this case. In Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004), the Supreme Court reversed our holding that district courts were required to provide habeas petitioners with a specific warning that their case could become time-barred. Id. at 231, 124 S.Ct. 2441. The Supreme Court remanded the case to us for consideration of equitable tolling given our “concern that respondent had been affirmatively misled” by the district court. Id. at 234, 124 S.Ct. 2441. The unstated implication in the Supreme Court’s opinion is that equitable tolling would likely be appropriate in at least some situations where a petitioner is affirmatively misled by a district court. See id.; see also id. at 235, 124 S.Ct. 2441 (O’Connor, J., concurring) (“Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate.”); Brambles v. Duncan, 412 F.3d 1066, 1070 (9th Cir.2005) (“Consistent with the Court’s decision in Pliler, the sole issue before us is whether [petitioner] was affirmatively misled by the district court’s instructions.”). Pliler does not compel us to grant equitable tolling in this case. The Supreme Court’s decision to remand for consideration of equitable tolling nonetheless supports our conclusion that equitable relief is justified under these circumstances. In Pliler, the Supreme Court remanded because of the possibility that a petitioner relied upon, and was misled by, a district court’s representations. Harris’ request for equitable tolling arises from his reliance on our holding that was subsequently declared to be legally erroneous. Our holding misled Harris into believing that he had ample time to file his federal habe-as petition, whereas in reality time was" }, { "docid": "12267263", "title": "", "text": "refile his petition with only the three exhausted claims, nor did he ask the District Court to reconsider its decision. On December 13, 2003, six weeks after the District Court dismissed his petition, Urcinoli filed a second motion for post-conviction relief in state court. He received a final denial of that motion from the New Jersey Supreme Court on September 12, 2005. Approximately two weeks later, on September 29, 2005, Urei-noli filed a second pro se § 2254 petition, containing the eight grounds from the original petition. On August 3, 2006, the District Court dismissed this second petition as untimely under 28 U.S.C. § 2244(d)(1), which provides for a one-year time limit on AEDPA petitions. The court held that the limitations period commenced on May 22, 2002, when the New Jersey Supreme Court declined to review Urcinoli’s post-conviction appeal. Because AEDPA does not provide for tolling of the limitations period while a § 2254 petition is pending in federal court, as Urcinoli’s was for more than fourteen months, the one-year limitations period expired on May 22, 2003. See Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Therefore, the District Court ruled that Urcinoli’s second § 2254 petition, filed on September 29, 2005, was untimely. The court refused to equitably toll the one-year time limitation, reasoning that it was foreclosed from doing so by Third Circuit and Supreme Court precedent. This appeal followed. II. The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We granted a certificate of appealability on the issue of whether Urcinoli was entitled to equitable tolling in light of the sua sponte dismissal of his petition after AED-PA’s time limitation had run, rendering any subsequent petition time-barred. We exercise plenary review over the Distinct Court’s refusal to equitably toll the one-year statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.2003). III. AEDPA’s limitations period is subject to equitable tolling principles. Miller v. N.J. State Dep’t of Corrections, 145 F.3d 616, 617-19 (3d Cir.1998). A statute of" }, { "docid": "3064621", "title": "", "text": "LUCERO, Circuit Judge. Kyle Keith Kilgore appeals the district court’s sua sponte dismissal of his 28 U.S.C. § 2254 habeas petition. The court dismissed his petition without prejudice because Kilgore failed to comply with two prior orders directing him to show that his petition was timely under the one-year limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See § 2244(d). We granted a Certificate of Appealability (“COA”) on one issue: whether, in light of Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), a district court can require a state habeas petitioner to establish in his or her § 2254 application that the application is timely. We hold that the district court cannot dismiss a habeas petition as untimely unless untimeliness is clear from the face of the petition, or unless the state establishes untimeliness as an affirmative defense. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we REVERSE and REMAND this case to the district court for further consideration consistent with this opinion. I In 1994, Kilgore was convicted in Colorado state court, and he subsequently sought various forms of relief in state court, including a direct appeal and post-conviction motions. On February 27, 2006, he filed a pro se § 2254 habeas application in federal court, alleging claims of ineffective assistance of trial counsel. He stated in his application that he had filed a direct appeal of his state court conviction as well as several postconviction motions. He also indicated that he had a pending state post-conviction proceeding at the time of his petition. On April 4, 2006, a magistrate judge issued an order directing Kilgore to amend his application to include more complete information about his prior state court appeals and motions. This information was necessary, the magistrate explained, for the court to determine whether Kilgore had exhausted his state remedies, see § 2254(b)(1), and whether his application was timely under AED-PA’s one-year limitations period, see § 2244(d). The magistrate warned Kilgore that failure to provide the requested information would result in the dismissal" }, { "docid": "19886961", "title": "", "text": "BENTON, Circuit Judge. Donald D. Riddle filed a petition for habeas relief under 28 U.S.C. § 2254. The district court dismissed his petition as untimely by the one-year statute of limitations in 28 U.S.C. § 2244(d), enacted in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1217 (“AEDPA”). A panel of this court, by order, vacated the judgment of the district court and remanded. This court granted the State’s motion for rehearing en banc, vacating the panel’s order. Riddle argues that his petition was timely because he is entitled to a tolling of the statute of limitations equal to the 90-day period for filing for certiorari in the Supreme Court of the United States. Alternatively, he requests equitable tolling of the statute of limitations. This court has jurisdiction under 28 U.S.C. §§ 1291 and 2253, and reviews de novo the district court’s interpretation of the law. Walker v. Norris, 436 F.3d 1026, 1029 (8th Cir.2006). The court en banc now affirms in part, reverses in part, and remands. I. A jury convicted Riddle of first degree robbery, armed criminal action, and first degree tampering. He received a life sentence, a consecutive 35-year sentence, and a concurrent seven-year sentence. The Missouri Court of Appeals issued its decision affirming his conviction on January 23, 2001, and its mandate on February 15, 2001. State v. Riddle, 35 S.W.3d 897 (Mo.Ct.App.2001). Riddle did not file a motion for transfer to the Missouri Supreme Court, or a petition for writ of certiorari in the United States Supreme Court. On May 4, 2001, Riddle filed a petition in state court for post-conviction relief. The Missouri Court of Appeals affirmed the denial of post-conviction relief on March 30, 2004. Riddle v. State, 129 S.W.3d 492 (Mo.Ct.App.2004) (per curiam). The mandate issued on April 21, 2004. The district court dismissed Riddle’s petition for habeas corpus relief as untimely. The court ruled that his direct appeal became final on February 15, 2001, the date the Missouri Court of Appeals issued its mandate. The district court found Riddle’s original deadline for filing for federal" }, { "docid": "16112159", "title": "", "text": "a writ of certiorari. On March 19, 2000, Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania. The Magistrate Judge to whom the petition was referred determined that it was untimely filed and that equitable tolling of the limitation period was not warranted. The District Court adopted the Magistrate Judge’s findings, dismissed the petition as time-barred, and declined to issue a certificate of appealability. Brown timely appealed. On March 8, 2002, a motions panel of this Court issued a certificate of appealability on the following issues: (1) Whether Brown’s notice of appeal nunc pro tunc, submitted but never ruled on because it was lost as a result of mishandling by the trial court, may be considered “properly filed” for purposes of 28 U.S.C. § 2244(d)(2), see Swartz v. Meyers, 204 F.3d 417, 421 n. 3 (3d Cir.2000), and, if the notice may be considered “properly filed,” when it ceased to be “pending”; and (2) Whether appellant is entitled to equitable tolling of the statute of limitation for the period from May 7, 1998, through January 11, 2000, and the period from April 26, 1997, through July 29, 1997. See Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618-19 (3d Cir.1998); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241 (3d Cir.1999). The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Our review of a decision dismissing a habeas petition as time-barred is plenary. See Johnson v. Hendricks, 314 F.3d 159, 161 (3d Cir.2002). II. Section 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides, in relevant part: (1) 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. The limitation period shall run from the latest of — • (A) the date on which the judgment became final by the" }, { "docid": "12267273", "title": "", "text": "that he would not have originally denied Taylor’s request for a stay if he had had the benefit of Jones and a second Third Circuit decision, Crews v. Horn, 360 F.3d 146 (3d Cir.2004), allowing such stays. Taylor, 504 F.3d at 426-27. We approved the district court’s decision that its actions constituted an extraordinary circumstance that had prevented Taylor from asserting his rights, despite the fact that its dismissal had not contravened any precedent governing at that time. Equitable tolling is similarly necessary here to allow Urcinoli to pursue his claims. The District Court’s sua sponte dismissal under Rose was an extraordinary circumstance that left Urcinoli without a viable channel for having any of his claims addressed on the merits. Rose was meant only to prevent review of unexhausted ha-beas claims, not to bar viable, exhausted claims from federal court review. Contrary to the State’s assertions, Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004), does not forbid this result. In Pliler, the Supreme Court overturned a Ninth Circuit decision that required district courts to warn habeas petitioners presenting mixed petitions if AEDPA’s limitations period had expired. Id. at 231, 124 S.Ct. 2441. The purpose of the warning was to inform a petitioner that if he chose to pursue exhaustion instead of deletion he would effectively be foreclosed from refiling in federal court. Id. at 229-30, 124 S.Ct. 2441. The Supreme Court rejected any such mandatory notification on the grounds that it “would force upon district judges the potentially burdensome, time-consuming, and fact-intensive task of making a case-specific investigation and calculation of whether the AEDPA limitations period has already run or will have run by the time the petitioner returns to federal court.” Id. at 232, 124 S.Ct. 2441. In this case, however, we do not grant equitable tolling based on any failure by the District Court to determine that Urcinoli’s window for filing a second habeas petition had expired and to advise him that a return to state court would be futile. Rather, we do so because Urcinoli was deprived of the ability to choose" }, { "docid": "9965955", "title": "", "text": "24, 1999. The Supreme Court dismissed her appeal on September 22, 1999, and Griffin refiled her habeas petition on October 15, 1999. . In Godbolt v. Russell, 82 Fed. Appx. 447, 2003 WL 22734743 (6th Cir.2003) (per curiam) (unpublished), the petitioner was dismissed for failure to exhaust state remedies. When the petitioner attempted to return to federal court, his action was dismissed as untimely. Id. at 448-49. On appeal, the petitioner argued that the District Court should have stayed rather than dismissed the original petition. Id. at 449. This Court affirmed the District Court’s dismissal, finding that no error had been committed. Id.; see also Barnard v. Conley, 36 Fed Appx. 813, 815, 2002 WL 535787 (6th Cir.2002) (unpublished) (affirming District Court's dismissal of ah untimely habeas petition). The Godbolt Court further found that any error resulting from the dismissal was harmless as the petitioner did not comply with the 30-day time windows that would have accompanied such a stay. 82 Fed. Appx. at 452. Importantly, non-mandatory equitáble tolling was not at issue, and as such was neither considered nor decided. Since those decisions, the Supreme Court has impliedly held that district courts indeed have the power to dismiss mixed petitions even if that dismissal endangers a petitioner’s ability to re-file a habeas petition within the statutory limitations period. Pliler v. Ford, 542 U.S. 225, - - -, 124 S.Ct. 2441, 2446-47, 159 L.Ed.2d 338(2004). But, while these cases indicate that dismissal for mixed petitions remains appropriate under the AEDPA limitations period, they in no way block a court from considering whether equitable tolling is appropriate. In fact, in Pliler, the court indicated that on remand the court could conduct an equitable tolling analysis. Id. at 2447 (“We remand the case for further proceedings given the Court of Appeals’ concern that respondent had been affirmatively misled ....\"); id. at 2448 (O'Connor, J., concurring) (\"Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate.”). RONALD LEE GILMAN, Circuit Judge, dissenting. Although I have no problem with the legal principles laid" }, { "docid": "12839717", "title": "", "text": "SACK, Circuit Judge. This is an appeal from an order of the United States District Court for the Eastern District of New York (David G. Trager, Judge) construing petitioner Alzonzo Cook’s pro se 28 U.S.C. § 2241 petition as a 28 U.S.C. § 2254 application and dismissing it as time-barred pursuant to 28 U.S.C. § 2244(d)(1). Construing Cook’s notice of appeal as a motion for a certificate of appealability, we granted the certificate limited to the following issues: “(1) [Wjhether [Cook], a state prisoner, properly challenged the revocation of his parole under 28 U.S.C. [§ ] 2241 rather than 28 U.S.C. [§ ] 2254; (2) whether a state prisoner challenging parole revocation must obtain a certificate of appealability to appeal a district court’s denial of [§ ] 2241 relief; and (3) whether the ... one year statute of limitations [provided by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”) ] applies to a state prisoner’s [§ ] 2241 petition.” Cook v. New York State Bd. of Parole, No. 00-2642 (2d Cir. Feb. 9, 2001). We agree with the district court that a state prisoner challenging his or her parole revocation must file under section 2254 and that the time bar imposed by section 2244(d)(1) applies to such an application. Inasmuch as we conclude that the petition was properly-considered an application under section 2254, we do not reach the other issue that we certified: whether section 2253(c)(1) requires a person seeking to appeal. the denial of a petition under section 2241 first to obtain a certificate of appealability from us. Because this is Cook’s first federal habeas petition and construing it as a section 2254 petition might cause Cook to forfeit unintentionally any otherwise meritorious claims for federal habeas relief he might have, however, we vacate the district court’s judgment and remand the case to the district court to afford Cook an opportunity to withdraw his petition pursuant to Adams v. United States, 155 F.3d 582, 584 (2d Cir.1998) (per curiam), and also to enable the district court to determine whether the time" }, { "docid": "22210203", "title": "", "text": "ORDER BEEZER, Circuit Judge: The opinion filed on August 26, 1999, published in 189 F.3d 889, is withdrawn. OPINION Fortunado Dictado appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court concluded that Dictado filed his petition after the expiration of the one-year statute of limitations established in 28 U.S.C. § 2244(d)(1), the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and dismissed the petition as untimely. Dictado argues that the limitations period was tolled while his 1997 personal restraint petition was pending in the Washington state courts. We have jurisdiction. 28 U.S.C. §§ 1291, 2253. We reverse and remand. I In 1982, a Washington jury convicted Dictado of two counts of first-degree murder. The state court sentenced him to life in prison without the possibility of parole. The Washington Supreme Court affirmed the conviction and sentence on direct review. See State v. Dictado, 102 Wash.2d 277, 687 P.2d 172 (1984). The Washington Supreme Court issued its mandate terminating review on August 22,1984. In June 1988, Dictado filed a personal restraint petition in the Washington Court of Appeals, alleging that he had been denied effective assistance of counsel. The Court of Appeals dismissed Dictado’s petition on December 21, 1988. Dictado was denied discretionary review by the Washington Supreme Court on April 18, 1989. Dictado filed his second and third personal restraint petitions in 1993. After the Washington Court of Appeals summarily denied review, Dictado sought discretionary review by the Washington Supreme Court. The Washington Supreme Court denied review, holding that both petitions were properly dismissed as time-barred. Dictado’s next petition for relief was filed on February 16, 1997. The Washington Court of Appeals dismissed the petition on March 7, 1997. Dictado timely appealed the dismissal to the Washington Supreme Court. And, on April 18, 1997, the Washington Supreme Court denied discretionary review of the dismissal because the petition was both “repetitive and untimely.” Dictado filed his petition for federal ha-beas corpus relief on May 15, 1997, which was dismissed as time-barred on March 16, 1998. Dictado filed a timely notice of appeal on March 25, 1998." }, { "docid": "9965956", "title": "", "text": "such was neither considered nor decided. Since those decisions, the Supreme Court has impliedly held that district courts indeed have the power to dismiss mixed petitions even if that dismissal endangers a petitioner’s ability to re-file a habeas petition within the statutory limitations period. Pliler v. Ford, 542 U.S. 225, - - -, 124 S.Ct. 2441, 2446-47, 159 L.Ed.2d 338(2004). But, while these cases indicate that dismissal for mixed petitions remains appropriate under the AEDPA limitations period, they in no way block a court from considering whether equitable tolling is appropriate. In fact, in Pliler, the court indicated that on remand the court could conduct an equitable tolling analysis. Id. at 2447 (“We remand the case for further proceedings given the Court of Appeals’ concern that respondent had been affirmatively misled ....\"); id. at 2448 (O'Connor, J., concurring) (\"Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate.”). RONALD LEE GILMAN, Circuit Judge, dissenting. Although I have no problem with the legal principles laid out by the majority, I disagree with its application of those principles in the present case. Specifically, I believe that the majority’s decision is contrary to the holding in Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), the very case upon which the majority relies. This court in Palmer denied equitable tolling to a defendant who had waited approximately two months to refile in federal court after exhausting his state-court remedies: [A]doption of the Second Circuit’s approach [of allowing a 30-day safe harbor] in this case would not afford Palmer the relief he seeks. Although his state-court remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before he returned to federal court and filed a second habeas petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. Id. at 781-82. Similarly, the record in the present case offers no reason for Griffin’s delay," }, { "docid": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "18298910", "title": "", "text": "his prison was inadequate and impeded his pursuit of his claims. The district court granted a cei’tificate of appealability for the claims it had deemed time-barred and Moore appealed. While on appeal, the district court requested a remand of the case to amend its analysis. We remanded the case. On remand, the district court then entered an amended order denying Moore’s motion for reconsideration, concluding again that Moore’s petition was time-barred. In particular, the district court corrected some errors in the calculation of the deadlines. The district court again granted a certificate of appealability regarding whether the claims were time-barred. Moore again appeals. II. On appeal, now with the assistance of counsel, Moore argues that the district court improperly dismissed his petition as time-barred because he is entitled to equitable and statutory tolling due to an inadequate prison law library. We review a district court’s dismissal of a habeas corpus petition de novo. Moore v. Knight, 368 F.3d 936, 938 (7th Cir.2004) (citation omitted). In 1996, Congress enacted the An-titerrorism and Effective Death Penalty Act (“AEDPA”), “which imposed a 1-year statute of limitations for filing a federal habeas corpus petition.” Pliler v. Ford, 542 U.S. 225, 230, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (citing 28 U.S.C. § 2244(d)(1)). Under the statute, “a person in custody pursuant to the judgment of a State court” must file his petition within a “1-year period of limitation.” 28 U.S.C. § 2244(d)(1). As a state prisoner, the statute applies to Moore, but Moore concedes that his petition was not filed within the required one-year period. The one-year period is tolled, however, if the state creates an impediment to filing a petition: “The limitation period shall run from the latest of ... the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Id. Moore also claims that he deserves equitable tolling of the limitation period, which is warranted if “extraordinary circumstances outside of the petitioner’s control prevent" } ]

[ { "docid": "22607842", "title": "", "text": "that “liberty” protected by the Fourteenth Amendment. It is true that the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison. But here the State itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior. Nebraska may have the authority to create, or not, a right to a shortened prison sentence through the accumulation of credits for good behavior, and it is true that the Due Process Clause does not require a hearing “in every conceivable case of government impairment of private interest.” Cafeteria Workers v. McElroy, 367 U. S. 886, 894 (1961). But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated. This is the thrust of recent cases in the prison disciplinary context. In Haines v. Kerner, supra, the state prisoner asserted a “denial of due process in the steps leading to [disciplinary] confinement.” 404 U. S., at 520. We reversed the dismissal of the § 1983 complaint for failure to state a claim. In Preiser v. Rodriguez, supra, the prisoner complained that he had been deprived of good-time credits without notice or hearing and without due process of law. We considered the claim a proper subject for a federal habeas corpus proceeding. This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests. Anti-Fascist Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). The requirement for some kind of a hearing applies to the taking of private property, Grannis v. Ordean, 234 U. S. 385 (1914), the revocation of licenses, In re Ruffalo," } ]

[ { "docid": "6939836", "title": "", "text": "by the tribunal in the context of a disciplinary proceeding for serious misconduct in which the prisoner faced the prospective loss of good time credits. The Court premised its finding of a protected liberty interest on a state statute which specified that the statutory right to good time could only be forfeited for serious misbehavior. Thus, the liberty interest recognized in Wolff was a creation of state law. As such, the state was not free to deprive prisoners of the right to good time without affording procedural due process safeguards “to insure that the state-created right is not arbitrarily abrogated.” 418 U.S. at 557, 94 S.Ct. at 2975. The Court reached a contrary result, though employing the same due process analysis, in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). In Meachum, a state prisoner challenged his transfer to another prison of substantially less favorable conditions following a finding by the prison classification board that the prisoner had been involved in a rash of fires at the prison. Petitioner contended that the fact-finding hearing afforded him was inadequate in that it did not comport with the procedural safeguards enunciated in Wolff. The Court rejected the proposition that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause. In contrast to Wolff, the transfer of prisoners between Massachusetts prisons was not subject to state statutory conditions. “On the contrary, transfer in a wide variety of circumstances is vested in prison officials. The predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell is totally nonexistent in this case.” 427 U.S. at 227, 96 S.Ct. at 2540. The court concluded its opinion as follows: Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all. Holding that arrangements like this are within reach of the procedural" }, { "docid": "22113084", "title": "", "text": "behind the substantive sentencing decisions of the state criminal justice system. Conclusory allegations, as the petitioner makes here, such as that the death penalty is being “ ‘exacted pursuant to a pattern or practice of Florida prosecuting authorities, courts, juries, and Governors to discriminate on grounds of sex and poverty in the administration of capital punishment,’ ” Petitioner’s Brief at 24, do not constitute sufficiently compelling reasons for district court intrusion. Under these circumstances, an evidentiary hearing, either on Eighth Amendment grounds or on Fourteenth Amendment equal protection grounds, would not be warranted. See Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 266-69, 97 S.Ct. at 564-65. . The Court in Meachum distinguished Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), on which the Court of Appeals had heavily yet erroneously relied. Wolff held that the Due Process Clause entitles a state prisoner to certain procedural safeguards when he is deprived of “good-time credits” because of serious misconduct. This “liberty” interest did not originate in the Constitution, however; it had its roots in state law and therefore was a statutory right. In Meachum, state law conferred no right, statutory or otherwise, on a prisoner to remain in the prison to which he was initially assigned, absent proof of specific acts of misconduct. 427 U.S. at 224, 96 S.Ct. at 2538-39. . As with the prison transfers in Meachum, a clemency decision is not a statutory right. It is an act of grace. See Fla.Const. art. IV, § 8; Fla.R.Exec. Clemency 1, 5. . As Justice England pointed out in his concurring opinion in Sullivan v. Askew, supra, 348 So.2d at 319 (England, J., concurring), the Supreme Court in Gregg v. Georgia, supra, and Proffitt v. Florida, supra, “very clearly indicated that its constitutional concern regarding the imposition of death is the judicial process alone, and not the discretionary stages which precede (prosecutorial discretion) or succeed (clemency) the judicial processes of trial and appellate review.” See Proffitt v. Florida, supra, 428 U.S. at 253, 96 S.Ct. at 2967 (opinion of Stewart," }, { "docid": "15256424", "title": "", "text": "rather than of the federal courts.” Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. Apart from the due process clause itself, the Court has also recognized a potential source of a protected liberty interest in state law. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court noted that “the State itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior,” id. at 557, 94 S.Ct. at 2975, and proceeded to hold that the prisoners’ interest in good time was a liberty interest protected by the due process clause. In both Meachum and Montanye, however, the applicable state law was held not to create a protected liberty interest because it did not limit the discretionary prison transfers to specific instances of misconduct or other events. Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539-40; Montanye, 427 U.S. at 243, 96 S.Ct. at 2547. More recently, the Court has noted that a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show “that particularized standards or criteria guide the State’s decisionmakers.” ... If the decisionmaker is not “required to base its decisions on objective and defined criteria,” but instead “can deny the requested relief for any constitutionally permissible reason or for no reason at all,” . .. the State has not created a constitutionally protected liberty interest. Olim v. Wakinekona,-- U.S.--, --, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983) (citations omitted). The Massachusetts statute governing DSU transfers provides: At the request of the superintendent of any correctional institution of the commonwealth, the commissioner may authorize the transfer, for such period as he may determine, to a segregated unit within any correctional institution of the commonwealth, of any inmate whose continued retention in the general institution population is detrimental to the program of the institution. Mass.Gen.Laws Ann. ch. 127, § 39. We have held that the statute confers “broad statutory discretion” on the Commissioner, and thus does not in itself create a protected" }, { "docid": "22181782", "title": "", "text": "months of segregation, six months of loss of good time credits (the credits were later earned back), and transfer to a maximum security institution. Sandin recognizes the possibility that a prisoner may possess a liberty interest in freedom from punishment that “will inevitably affect the duration of his sentence.” Sandin, — U.S. at --•, 115 S.Ct. at 2302. The loss of good time credits would affect the duration of Whitford’s sentence. However, he later earned them back, rendering any suit concerning the loss of good time credits moot. Next, Whitford’s transfer to a maximum security institution did not implicate his federal due process rights. A prisoner has no due process right to be housed in any particular facility. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). “The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, ... [because] [t]he conviction has sufficiently extinguished the defendant’s liberty interest to empower the state to confine him in any of its prisons.” Id. (emphasis in original). Similarly, a transfer to another prison, even to one with a more restrictive environment, is not a further deprivation of an inmate’s liberty under the Due Process Clause itself because the prisoner could have been initially placed in a more restrictive institution, so a transfer does not fall outside the expected scope of the sentence. Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538-39; Ramirez v. Turner, 991 F.2d 351, 353 (7th Cir.1993); Miller v. Henman, 804 F.2d 421, 423 (7th Cir.1986), cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987). In addition, the Meachum Court held that Massachusetts prison disciplinary regulations could not create a due process right to a pretransfer hearing, because prisoners may be transferred even without having been convicted of a disciplinary violation. Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539-40. Because a prisoner may be transferred regardless of whether he was convicted, he may not" }, { "docid": "22113083", "title": "", "text": "once again, see note 28 supra, that this Court anticipates that such intervention will be infrequent and only for the most compelling reasons. Mere conclusory allegations, as the petition makes here, such as that the death penalty is being “administered arbitrarily and discrimina-torily to punish the killing of white persons as opposed to black persons,” Petitioner’s Brief at 2, do not constitute such reasons and would not warrant an evidentiary hearing. This is so on Eighth Amendment grounds as well as on Fourteenth Amendment equal protection grounds, because the intrusionary effect would be the same. . These explanations were provided in an evi-dentiary hearing on the petitioner’s contention that was not constitutionally required. See note 40 supra and note 42 infra. . As footnotes 28 and 40 supra indicate with respect to the contentions considered there, if a petitioner in federal habeas corpus proceedings can point to some specific act or acts evidenc ing intentional or purposeful discrimination against him on the basis of sex or wealth, the district court would be justified in looking behind the substantive sentencing decisions of the state criminal justice system. Conclusory allegations, as the petitioner makes here, such as that the death penalty is being “ ‘exacted pursuant to a pattern or practice of Florida prosecuting authorities, courts, juries, and Governors to discriminate on grounds of sex and poverty in the administration of capital punishment,’ ” Petitioner’s Brief at 24, do not constitute sufficiently compelling reasons for district court intrusion. Under these circumstances, an evidentiary hearing, either on Eighth Amendment grounds or on Fourteenth Amendment equal protection grounds, would not be warranted. See Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 266-69, 97 S.Ct. at 564-65. . The Court in Meachum distinguished Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), on which the Court of Appeals had heavily yet erroneously relied. Wolff held that the Due Process Clause entitles a state prisoner to certain procedural safeguards when he is deprived of “good-time credits” because of serious misconduct. This “liberty” interest did not originate in" }, { "docid": "23520078", "title": "", "text": "process clause does not entitle a state prisoner to a fact-finding hearing when he is transferred from one detention facility to another, even when the other prison is far more onerous unless state law itself conditions such transfers on the occurrence of misconduct. The Court distinguished Wolff by arguing that there the state had provided a statutory right to good time credit and specified it was to be forfeited only for serious misconduct, whereas in Meachum, Massachusetts law “conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct”, 427 U.S. at 226, 96 S.Ct. at 2539. In Montanye the right to transfer prisoners was similarly reserved under state law, and this was held sufficient to defeat any due process claim even when the challenged transfer had followed upon an incident with the prison authorities. Whether the Supreme Court will adjudge a parole applicant’s interest in the prospect of conditional liberty on parole to be sufficient to trigger due process protections is still unsettled, see Scott v. Kentucky Parole Board, No. 74-6438, remanded for consideration of possible mootness, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976). The past observations of the Court have pointed in both directions. In Morrissey, 408 U.S. at 482 & n. 8, 92 S.Ct. 2593, the Court, in concluding that a parolee has a protected liberty interest, quoted this court’s opinion in United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (2 Cir. 1971) (Kaufman, J.), that It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom. and noted that “Though the State properly subjects [the parolee] to many restrictions not applicable to other citizens, his condition is very different from that of confine ment in a prison.” However, in Wolff v. McDonnell, 418 U.S. at 565, 94 S.Ct. at 2979, the Court, speaking through Mr." }, { "docid": "15256423", "title": "", "text": "is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive. Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); see also Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). In Meachum and Montanye, the Court held that transfers of inmates from one prison to another within a state did not implicate a liberty interest inherent in the due process clause. The Court rejected “the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause,” because that “would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. Apart from the due process clause itself, the Court has also recognized a potential source of a protected liberty interest in state law. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court noted that “the State itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior,” id. at 557, 94 S.Ct. at 2975, and proceeded to hold that the prisoners’ interest in good time was a liberty interest protected by the due process clause. In both Meachum and Montanye, however, the applicable state law was held not to create a protected liberty interest because it did not limit the discretionary prison transfers to specific instances of misconduct or other events. Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539-40; Montanye, 427 U.S. at 243, 96 S.Ct. at 2547. More recently, the Court has noted that a State creates a" }, { "docid": "18999119", "title": "", "text": "L.Ed.2d 552 (1980). Such deprivations must be “qualitatively different from the punishment characteristically suffered by a person convicted of crime.” Id. at 494, 100 S.Ct. at 1264. For example, in Vitek, the Supreme Court found that a prisoner had a liberty interest in freedom from involuntary commitment to a mental hospital. In Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036-1037, 108 L.Ed.2d 178 (1990), the Court held that an inmate had a liberty interest in freedom from the involuntary administration of psychotropic drugs. Such deprivations implicate the Due Process Clause because they go beyond the “normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Where a deprivation falls within the normal limits of custody authorized by the conviction, there is no liberty interest protected by the Due Process Clause itself. However, a state statute or regulation can create a right triggering due process protection “to insure that the state-created right is not arbitrarily abrogated.” 'Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); see also Meachum v. Fano, 427 U.S. at 225-226, 96 S.Ct. at 2538-2539. In analyzing whether the claimed liberty interest was created by a state regulation in these cases, the Court focused on whether the regulation limited the discretion of prison officials by imposing substantive criteria. See Meachum, 427 U.S. 215, 226-28, 96 S.Ct. 2532, 2539-2540; Wolff, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975. Thus, in Wolff, the Supreme Court found, that while there was no right to good-time credits protected under the Due Process Clause itself, the State of Nebraska had created a protected liberty interest by providing a statutory right to good time credit which was to be forfeited only for serious misbehavior. 418 U.S. at 557, 94 S.Ct. at 2975. In contrast, in Mea-chum, the Court found that the State of Massachusetts had not conferred a protected right on its prisoners to remain in the prison to which they were initially assigned because" }, { "docid": "13411621", "title": "", "text": "time credits. The State had assured its inmates that neither would be imposed unless serious misconduct had occurred. Dudley has asserted no similar assurance by the State of Georgia or Daugherty County. The Court’s most recent discussion of this issue was in Hewitt v. Helms, - U.S. -, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), which held that solitary confinement for administrative reasons does not involve an interest independently protected by the due process clause. Id. at 869. The Court recognized an inmate’s protected liberty interest in remaining in the general prison population only because Pennsylvania statutes and regulations had set forth specific procedures for confining an inmate to administrative segregation. Addressing the protections afforded by the due process clause itself, the Court stated: As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution; the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. Id. at 869 (quoting Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)). Although Hewitt dealt only with segregation for “nonpunitive” reasons, it is consistent with previous decisions involving disciplinary measures imposed upon inmates. In addition to Wolff, the cases most analogous to the issue presented here are Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), both of which involved the transfer of inmates within a state’s prison system. Meachum held that no due process liberty interest is infringed when a convicted inmate is transferred from one prison to another absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the appearance of other specified events. 96 S.Ct. at 2540. The Court cautioned that the day-to-day functioning of state prisons involves issues and discretionary decisions that are not the business of federal judges. Id. The decision in Montanye took Meachum one step further" }, { "docid": "13103010", "title": "", "text": "of the Classification Board to provide him with a summary of the informant testimony violated the due process clause of the Fourteenth Amendment. The threshold question for our consideration is whether the transfer deprived Lombardo of a “liberty” or “property” interest within the meaning of that clause. Plaintiff recognizes that Meachum v. Fano, supra, which also involved the federal due process rights of transferees in Massachusetts prisons, held, on that record, that no liberty or property interests were involved and that the transferees, hence, had no federal procedural due process rights. See also Montayne v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). The Court reasoned that a prisoner had no federally created liberty interest in remaining in a particular prison absent proof of specific acts of misconduct, Meachum v. Fano, supra, at 224-225, 96 S.Ct. 2532. While stating that the due process clause would be applicable if state law conferred such a right upon prisoners, the Court stated that “insofar as [it had been] advised, transfers between Massachusetts prisons are not conditioned upon the occurrence of specified events”, id. at 226, 96 S.Ct. at 2539 and noted that the Massachusetts statutes provided that transfers could occur for any reason or for no reason. See Mass.Gen.Laws c. 127 §§ 20, 97. Although plaintiff argues that Meachum does not control the due process issue in this case, he concedes that, under the Meachum standard, a court’s sole inquiry in determining the applicability of the due process clause to a transferee must be whether state law creates a substantive liberty interest. To avoid Meachum’s implicit holding regarding the state of Massachusetts law, Lombardo claims that, because of the theory upon which that case was tried, the Court did not have before it a record upon which it could rule on the question whether Massachusetts law creates a substantive right to remain in a certain type of institution, absent specific misconduct, and they argue that the Court’s “insofar as [it was] advised” language indicates that it reserved decision on this question. Plaintiff proceeds to refer to a number of statutory" }, { "docid": "23520077", "title": "", "text": "substantial.” Id. at 569, 94 S.Ct. at 2981. [I]n the current environment, where prison disruption remains a serious concern to administrators, we cannot ignore the desire and effort of many States, . and the Federal Government to avoid situations that may trigger deep emotions and that may scuttle the disciplinary process as a rehabilitation vehicle. Id. at 568, 94 S.Ct. at 2980. Similarly, the Court held that inmates did not have a right to outside counsel, because the insertion of counsel in such proceedings would increase their adversarial character, perhaps would interfere with rehabilitative goals, and would cause significant delay and expense. As a lesser measure, however, where an inmate was illiterate or the issues were complex, a counsel-substitute from among the prison population or staff was to be permitted. In contrast to the recognition of due process in these cases, the Court held in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), that the due process clause does not entitle a state prisoner to a fact-finding hearing when he is transferred from one detention facility to another, even when the other prison is far more onerous unless state law itself conditions such transfers on the occurrence of misconduct. The Court distinguished Wolff by arguing that there the state had provided a statutory right to good time credit and specified it was to be forfeited only for serious misconduct, whereas in Meachum, Massachusetts law “conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct”, 427 U.S. at 226, 96 S.Ct. at 2539. In Montanye the right to transfer prisoners was similarly reserved under state law, and this was held sufficient to defeat any due process claim even when the challenged transfer had followed upon an incident with the prison authorities. Whether the Supreme Court will adjudge a parole applicant’s interest in the prospect of conditional liberty on parole to be sufficient to trigger due process" }, { "docid": "22113085", "title": "", "text": "the Constitution, however; it had its roots in state law and therefore was a statutory right. In Meachum, state law conferred no right, statutory or otherwise, on a prisoner to remain in the prison to which he was initially assigned, absent proof of specific acts of misconduct. 427 U.S. at 224, 96 S.Ct. at 2538-39. . As with the prison transfers in Meachum, a clemency decision is not a statutory right. It is an act of grace. See Fla.Const. art. IV, § 8; Fla.R.Exec. Clemency 1, 5. . As Justice England pointed out in his concurring opinion in Sullivan v. Askew, supra, 348 So.2d at 319 (England, J., concurring), the Supreme Court in Gregg v. Georgia, supra, and Proffitt v. Florida, supra, “very clearly indicated that its constitutional concern regarding the imposition of death is the judicial process alone, and not the discretionary stages which precede (prosecutorial discretion) or succeed (clemency) the judicial processes of trial and appellate review.” See Proffitt v. Florida, supra, 428 U.S. at 253, 96 S.Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, supra, 428 U.S. at 199, 96 S.Ct. at 2937 (opinion of Stewart, Powell, and Stevens, JJ.); Note, Gregg v. Georgia: The Search for the Civilized Standard, 1976 Det.C.L.Rev. 645, 661. . Fla.R.Crim.P. 3.190(i) provides: Motion to Suppress a Confession or Admissions Illegally Obtained. (1) Grounds. Upon motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant. (2) Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial. (3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion. . As to proffered testimony concerning Cooper’s prior employment, it is argued that this evidence would tend to show that Cooper was not beyond rehabilitation. Obviously, an ability" }, { "docid": "9331377", "title": "", "text": "cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U.S. [539,] 556 [94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)], and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” 427 U.S. at 225, 96 S.Ct. at 2538. (emphasis in original). Despite the Court’s broad language, however, the opinions in Meachum and Montanye explicitly recognized that, while the Due Process Clause “in itself” created no liberty interests with respect to confinement conditions or degree, such interests could arise under state law. See Meachum, 427 U.S. at 225-27, 96 S.Ct. 2532; Montanye, 427 U.S. at 243, 96 S.Ct. 2543. In my view, Administrative Directive No. 801, which, as detailed in the findings of fact, provides that BAU confinement may be imposed only in limited specific situations and that a BAU confinee shall be released to the general prison population “as soon as feasible” (original Directive, ¶ VI.D.) or “as soon as appropriate” (amended Directive, ¶ YI.C. [to be codified at 37 Pa.Code § 95.107(c)]), establishes a liberty interest in freedom from segregated confinement and its harsh accompaniments under the law of Pennsylvania. Cf. Meachum, 427 U.S. at 226, 96 S.Ct. at 2539 (“Massachusetts law conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct”); Walker v. Hughes, 558 F.2d 1247, 1250-56 (6th Cir. 1977) (limited freedom from segregated confinement arose under federal prison policy statements); Saunders v. Packel, 436 F.Supp. 618, 623 (E.D.Pa.1977) (freedom from prison-wide lock-ups arose under general SCI Grater-ford practices); Wright v. Enomoto, No. C-73-1422 SAW," }, { "docid": "5479761", "title": "", "text": "prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.” Id. at 224-25, 96 S.Ct. at 2538-2539. The Court declared that a due process liberty interest would be implicated only if state law provided the prisoner with an “entitlement” to remain in the prison to which he was assigned, defea-sible only upon proof of specific acts of misconduct or the occurrence of other specific events. In the present case, Beshaw identifies no provision of state or federal law that confers on him an “entitlement” to remain in conditions of confinement substantially similar to those to which he was subject while incarcerated in Vermont. Absent such an entitlement, we are compelled to conclude that Beshaw’s transfer to prisons where the applicable rules and regulations may have been less agreeable to him did not implicate a Fourteenth Amendment liberty interest. Beshaw contends as well that his transfer to federal authority resulted in his being sent great distances from family and friends. Although we are concerned when prisoners are transferred under such circumstances, we are aware of no authority suggesting that a transfer to a facility not easily accessible to a prisoner’s relatives and acquaintances necessarily implicates liberty interests protected by the Due Process Clause. No argument has been made, for example, that separation from family and friends constitutes a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment; nor has Beshaw pointed to any provision of Vermont law indicating that prisoners sentenced by Vermont courts are entitled not to be transferred considerable distances from their place of original confinement. In the absence of any entitlement under either federal or state law, we are compelled by Meachum to find that Beshaw has not asserted a violation of a protected liberty interest. We note as well that the other federal courts that have considered the question found that a prisoner’s due process rights are not implicated simply because he is transferred a considerable distance from his place of" }, { "docid": "1519128", "title": "", "text": "federal statutory provisions, because they grant discretionary authority to prison officials, do not themselves create any liberty interests. In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Supreme Court held that a federal parolee imprisoned for a crime committed while on parole was not constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant was issued and lodged at his- place of former confinement but not served on him. The Court said that nothing in the statute or regulations restricted the discretion of the Parole Commission which gave the parole violator the right to force a prompt decision, and that without such an entitlement due process requirements did not apply even though there might be adverse consequences to an inmate. The Court also made this observation: “In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, for example, no due process protections were required upon the discretionary transfer of state prisoners to a substantially less agreeable prison, even where that transfer visited a ‘grievous loss’ upon the inmate. The same is true of prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081, and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process.” (Emphasis supplied.) 429 U.S. at 88, 97 S.Ct. at 279 n. 9. As the Supreme Court recognized in Moody, in Meachum v. Fano, supra, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, the discretion granted to Massachusetts prison officials precluded finding under Massachusetts law a created liberty interest to being not transferred to another prison. The Meachum Court reasoned that: . . Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons. Their discretion is not limited to instances of serious misconduct. As we understand it no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that" }, { "docid": "22113082", "title": "", "text": "Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. at 2932 (opinion of Stewart, Powell, and Stevens, JJ.), when the Court spoke of Furman’s condemnation of arbitrary and capricious imposition of the death penalty, implicit in its definition of arbitrariness and capriciousness was racial discrimination. . The district court below expressed the point well: . As we pointed out in footnote 28 supra with respect to the contention that Florida’s death penalty is being imposed arbitrarily and capriciously, this is not to say that federal courts should never concern themselves on federal habeas corpus review with whether Section 921.141 is being applied in a racially discriminatory fashion. If a petitioner can show some specific act or acts evidencing intentional or purposeful racial discrimination against him, see Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-68, 97 S.Ct. 555, 564-65, 50 L.Ed.2d 450 (1977) , either because of his own race or the race of his victim, the federal district court should intervene and review substantively the sentencing decision. We emphasize once again, see note 28 supra, that this Court anticipates that such intervention will be infrequent and only for the most compelling reasons. Mere conclusory allegations, as the petition makes here, such as that the death penalty is being “administered arbitrarily and discrimina-torily to punish the killing of white persons as opposed to black persons,” Petitioner’s Brief at 2, do not constitute such reasons and would not warrant an evidentiary hearing. This is so on Eighth Amendment grounds as well as on Fourteenth Amendment equal protection grounds, because the intrusionary effect would be the same. . These explanations were provided in an evi-dentiary hearing on the petitioner’s contention that was not constitutionally required. See note 40 supra and note 42 infra. . As footnotes 28 and 40 supra indicate with respect to the contentions considered there, if a petitioner in federal habeas corpus proceedings can point to some specific act or acts evidenc ing intentional or purposeful discrimination against him on the basis of sex or wealth, the district court would be justified in looking" }, { "docid": "19873535", "title": "", "text": "good time credit and confine an inmate to a disciplinary cell for flagrant or serious misconduct. Id. at 545-47, 94 S.Ct. at 2969-70 (citing Neb.Rev. Stat. § 83-185 (Cum.Supp.1972)). The Supreme Court found that although the Constitution itself did not guarantee a right to good time, Nebraska had created this right by statute and had implied that good time once accrued could only be lost by serious misconduct. Id. at 557, 94 S.Ct. at 2975. The court characterized the right to good time as one of “real substance,” and found that the state was required to observe “the minimum requirements of procedural due process” before depriving a prisoner of the right it had bestowed. Id. at 557-58, 94 S.Ct. at 2975-76. Meachum applied the Wolff framework to a complaint by a prisoner concerning his involuntary transfer to a less favorable prison within the Massachusetts prison system. Meachum, 427 U.S. at 216, 96 S.Ct. at 2534. The Supreme Court held that the prisoner had not demonstrated that he had a liberty interest that protected him from an involuntary transfer. Id. at 223-24, 96 S.Ct. at 2537-38. The court began by noting that not every “change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.” Id. at 224, 96 S.Ct. at 2538. Distinguishing Wolff, the court stated that the right in Wolff had its genesis not in the Constitution but in Nebraska law. Id. at 226, 96 S.Ct. at 2539. Because Massachusetts gave prison officials unfettered authority to transfer prisoners, the court held that Massachusetts law could not be the basis of a liberty interest sufficient to require due process. Id. at 226-27, 96 S.Ct. at 2539-40. In Hewitt, the Supreme Court considered the due process issue within the context of a prison’s decision to place a prisoner in less favorable conditions for administrative rea sons. Hewitt, 459 U.S. at 462, 103 S.Ct. at 866-67. The Supreme Court reaffirmed that liberty interests could arise either from the Constitution itself or from the laws of a state." }, { "docid": "18999126", "title": "", "text": "prison system are relevant. Because the Court found in Sandin that Conner’s confinement in SHU did not meet the threshold test of significance of interest, the Supreme Court did not reach the issue of how to determine whether a state regulation creates a protected liberty interest when the threshold test is met. The Court stated only that “the time has come to return to the due process principles we believe were correctly established and applied in Wolff and Mea-chum.” Sandin, — U.S. at -, 115 S.Ct. at 2300. These decisions do not provide much guidance as the Court was not required in either case to engage in a substantive analysis to determine whether or not liberty interests were created by the state regulations at issue there. The applicable statute in Meachum provided only that “the commissioner may transfer any sentenced prisoner from one correctional institution of the commonwealth to another,” and imposed no limitations on the exercise of that broadly conferred discretion. The predicate for invoking the protection of the Due Process Clause was therefore “totally nonexistent” in that case. 427 U.S. at 227, 96 S.Ct. at 2540. “Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.” Id. at 228, 96 S.Ct. at 2540. In Wolff, the Court pointed out that the state had not only provided a statutory right to good time, but also specified that good time was to be forfeited only for serious misbehavior. Where the State creates the right and recognizes that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest in the right has “real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” 418 U.S. at 557, 94 S.Ct. at 2975 (citations omitted). Because" }, { "docid": "22113032", "title": "", "text": "other events.” 427 U.S. at 216, 96 S.Ct. at 2534. The Court found that such transfers do not infringe or implicate a “liberty” interest within the meaning of the Due Process Clause, because “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and . . . subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” In short, “[t]he conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons.” 427 U.S. at 224, 96 S.Ct. at 2538. To hold otherwise, stated the Court, “would place the [Due Process] Clause astride the day-today functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges.” 427 U.S. at 228, 96 S.Ct. at 2540 Accord, Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). Schick and Meachum compel us to reject Spenkelink’s contention. Meachum indicates that the clemency decision of the governor and cabinet of Florida did not infringe or implicate any interest protected by the Due Process Clause. As we have already held, Spenkelink was constitutionally sentenced to die upon affirmance of his sentence by the Florida Supreme Court. That affirmance empowered the State then to execute him. See Cruz v. Skelton, 5 Cir., 1976, 543 F.2d 86, 89, cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); Brown v. Lundgren, 5 Cir., 528 F.2d 1050, 1052-53, cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Hoffa v. Saxbe, D.D.C., 1974, 378 F.Supp. 1221, 1245. But it did not. The governor and cabinet, pursuant to established procedures, wisely chose to consider whether the petitioner was entitled to mercy. See Gregg v. Georgia, supra, 428 U.S. at 200 n.50, 96 S.Ct. at 2937 n. 50 (opinion of Stewart, Powell, and Stevens, JJ.). (A capital punishment system devoid of executive clemency “would be totally alien to our notions" }, { "docid": "22113031", "title": "", "text": "2, cl. 1, was to allow plenary authority in the President to “forgive” the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself. 419 U.S. at 266-67, 95 S.Ct. at 385. Schick, therefore, stands for the proposition that the substantive discretion of the president in the exercise of his clemency power is all but absolute. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not entitle “a state prisoner to a hearing when he is transferred to a prison the conditions of which are substantially less favorable to the prisoner, absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of other events.” 427 U.S. at 216, 96 S.Ct. at 2534. The Court found that such transfers do not infringe or implicate a “liberty” interest within the meaning of the Due Process Clause, because “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and . . . subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” In short, “[t]he conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons.” 427 U.S. at 224, 96 S.Ct. at 2538. To hold otherwise, stated the Court, “would place the [Due Process] Clause astride the day-today functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges.” 427 U.S. at 228, 96 S.Ct. at 2540 Accord, Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). Schick and Meachum compel" } ]

[ { "docid": "23362886", "title": "", "text": "helpful to the jury, which is the \"central concern” of Rule 702. United States v. Rahm, 993 F.2d 1405, 1413 (9th Cir.1993); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Despite arguing that the substance of Dr. Wellman's testimony was well within the common sense knowledge of laypersons and, thus, not helpful to the jury, CSUH conceded at oral argument that Dr. Wellman’s testimony was \"absolutely” relevant. Therefore, we proceed only on the question of reliability. . This concern is also reflected in our prohibition on expert witnesses offering their legal conclusions. See infra n. 10. . Nor did the district court determine that Dr. Wellman's testimony would be helpful to the jury. To be admissible, \"expert testimony must ... address an issue beyond the common knowledge of the average layman.\" United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir.), amended by 246 F.3d 1150 (9th Cir.2001); see also United States v. Hanna, 293 F.3d 1080, 1086 (9th Cir.2002). Elsayed argues that Dr. Wellman's specialized sociological knowledge was helpful because it assisted the jury to identify and to analyze coded expressions of contemporary racism. As Elsayed argued in his opposition to CSUH's motion in limine, data indicate \"that while there is an increasing trend toward verbal tolerance in relation to issues of race and racism, there is a discrepancy between such statements and the routine everyday practices of white Americans. What white Americans say in opinion polls on the subject of race is often contradicted by their behavior.\" Indeed, “[sjocial scientists in particular may be able to show that commonly accepted explanations for behavior'are, when studied more closely, inaccurate. These results sometimes fly in the face of conventional wisdom.” Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir.1996); see also United States v. Hall, 93 F.3d 1337, 1342-43 (7th Cir.1996) (\"[Sjocial science testimony is an integral part of many cases, [including] employment discrimination actions.”). We express no opinion, however, as to whether Dr. Wellman’s testimony would, in fact, be helpful to the jury. See supra n." } ]

[ { "docid": "15725933", "title": "", "text": "any subsequent indication from the California courts that our interpretation was incorrect.” Jones-Hamilton Co. v. Beazer Materials & Servs., 973 F.2d 688, 696 n. 4 (9th Cir.1992). When the Court sits in diversity jurisdiction, it must predict how a state’s highest court would resolve a state issue of law, Borman, 960 F.2d at 331, and decisions of state intermediate appellate courts should be accorded significant weight in the absence of an indication that the highest state court would rule otherwise. Rolick, 925 F.2d at 664. Therefore, the Court turns to the relevant precedent under California law. The Supreme Court of California has not yet decided, and the California Courts of Appeal are in disagreement as to whether the delayed discovery rule, which delays accrual of certain causes of action until the plaintiff has actual or constructive knowledge of facts giving rise to the claim, applies to claims for unfair competition. Broberg v. Guardian Life Ins. Co. of Am., 171 Cal.App.4th 912, 920, 90 Cal.Rptr.3d 225 (Cal.Ct.App.2009), review denied, 2009 Cal. LEXIS 5288; Grisham v. Philip Morris USA 40 Cal.4th 623, 635 n. 7, 54 Cal.Rptr.3d 735, 151 P.3d 1151 (Cal.2007) (assuming for purposes of deciding a question certified to it by the Court of Appeals for the Ninth Circuit that the delayed discovery rule does apply to UCL causes of action, but explicitly declining to address the disagreement); compare Snapp & Assocs. Ins. Servs., Inc. v. Robertson, 96 Cal.App.4th 884, 891, 117 Cal.Rptr.2d 331 (Cal.Ct.App.2002) (discovery rule does not apply to UCL causes of action); with Massachusetts Mut. Life Ins. Co. v. Superior Court, 97 Cal.App.4th 1282, 1295, 119 Cal.Rptr.2d 190 (Cal.Ct.App.2002) (discovery rule “probably” applies). However, the Court is persuaded by the reasoning of Broberg, a 2009 California Court of Appeal decision addressing the application of the delayed discovery rule to a UCL claim in a case with issues analogous to the ones presently before the Court. See Broberg, 171 Cal.App.4th 912, 90 Cal.Rptr.3d 225. In that case, the plaintiff asserted that marketing materials for a life insurance policy were intentionally deceptive in representing that a consumer’s premium payment" }, { "docid": "2688676", "title": "", "text": "its discretion to award treble damages and any other equitable relief that it considers proper, id. § 30-14-133(1), the district court declined to grant McCollough such relief. McCollough and amicus curia the State of Montana have conceded that if the FDCPA claims are upheld, it is not necessary to reach the MCPA issues. If we were to consider the issues, ours would not be a definitive construction of the statute: that prerogative belongs to the Montana Supreme Court. See Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir.2001) (“federal courts are bound by the pronouncements of the state’s highest court on applicable state law” and “[w]here the state’s highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it” (quotation omitted)). Thus, we need not, and do not, reach the MCPA issues. See Webb v. Sloan, 330 F.3d 1158, 1166-67 (9th Cir.2003) (declining to reach state law issues where verdict could be sustained on federal grounds). Ill We review for abuse of discretion a district court’s decision to admit evidence. Boyd v. City and County of San Francisco, 576 F.3d 938, 943 (9th Cir.2009). We reverse only if we are “ ‘convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.’ ” Id. (quoting Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.2000)). “A party seeking reversal for evidentiary error must show that the error was prejudicial, and that the verdict was more probably than not affected as a result.” Id. (quotation omitted). A The district court did not abuse its discretion in admitting the very brief testimony of individual debtors Keri Henan and Ken Lucero concerning their experiences of being sued by JRL. JRL argues that the testimony was irrelevant under Federal Rule of Evidence 401 and that it should have been excluded on that basis. Alternatively, JRL contends that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and thus that the evidence should have been excluded under Rule 403." }, { "docid": "20067653", "title": "", "text": "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). Pirtle argues that AEDPA’s deferential standard does not apply to his claim because it was not adjudicated on the merits by a state court. Under the “look through” doctrine, in order to determine whether the state courts ever reached the merits of a federal claim, we must “look through” unexplained state court decisions, such as summary denials, to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 802, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see also Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir.2009). Here, the only reasoned state court decision was a Waltreus denial, which has been held by the Supreme Court to be neither a procedural denial nor a denial on the merits. Ylst, 501 U.S. at 805-06, 111 S.Ct. 2590; see also Hill v. Roe, 321 F.3d 787, 789 (9th Cir.2003). Because the state courts did not reach the merits of Pirtle’s federal claim, “there is no state court decision on this issue to which to accord [AEDPA] deference.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002). Where, as here, “it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.” Id. III. “California’s parole scheme gives rise to a cognizable liberty interest in release on parole.” McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir.2002). That liberty interest encompasses the state-created requirement that a parole decision must be supported by “some evidence” of current dangerousness. Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir.2010) (en banc); see also Pearson v. Muntz, 606 F.3d 606, 608-09 (9th Cir.2010). Our “some evidence” analysis is shaped by the state regulatory, statutory, and constitutional law that governs parole suitability determinations in California. See Hayward, 603 F.3d at 561-62. California law requires the Board to" }, { "docid": "2010517", "title": "", "text": "510 F.3d 577, 581 (6th Cir.2007), but we need not accept any legal conclusions or unwarranted factual inferences. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Additionally, the Supreme Court has held that we should review de novo a district court’s interpretation of state law in diversity cases. See Salve Regina Coll, v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); see also Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618, 624 (6th Cir.2008). B. Berrington’s Wrongful Failure to Rehire Claim Berrington’s appeal presents us with the question of whether Michigan law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits. In this action arising under federal diversity jurisdiction, we apply the substantive law of Michigan, as the forum state. CenTra, Inc. v. Estrin, 538 F.3d 402, 409 (6th Cir.2008). Faithful application of a state’s law requires federal courts to “anticipate how the relevant state’s highest court would rule in the case,” and in doing so we are “bound by controlling decisions of that court.” In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir.2005). Where the Michigan Supreme Court has not addressed the issue presented, “we must predict how the court would rule by looking to all the available data,” Allstate Ins. Co. v. Thrifty Rent-A-Car Sys. Inc., 249 F.3d 450, 454 (6th Cir.2001); however, decisions by “the Michigan Court of Appeals are binding authority where the Michigan Supreme Court has never addressed the issue decided therein.” Morrison v. B. Braun Med. Inc., 663 F.3d 251, 257 n. 1 (6th Cir.2011). Federal courts should be “extremely cautious about adopting ‘substantive innovation’ in state law.” Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir.2004) (citation omitted). Berrington admits that the Michigan Supreme Court has not ruled on whether an employer’s refusal to hire or re-hire an individual in retaliation against a person because he filed for unemployment benefits states a private cause of action under Michigan law. Berrington insists, however, that the Michigan Supreme Court" }, { "docid": "20398317", "title": "", "text": "“doubt[ed] that this is so.” Dukes, 131 S.Ct. at 2554. After Dukes, the Ninth Circuit approved the application of Daubert to expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ... ”). As a result, the court applies those standards to the expert reports the parties have submitted. Under Rule 702, “[i]f 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.” Fed.R.Evid. 702. See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)). Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d" }, { "docid": "7822850", "title": "", "text": "702. See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702]’ consists of three distinct but related require ments: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)). Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d at 982 (“Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable”). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) (“The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous”). “The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786)); see also Walker v. Contra Costa County, No. C 03-3723" }, { "docid": "20398318", "title": "", "text": "702. See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)). Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d at 982 (“Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable”). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) (“The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous”). “The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786)); see also Walker v. Contra Costa County, No. C 03-3723 TEH," }, { "docid": "23292754", "title": "", "text": "damages. ANALYSIS We revieiu de novo the district court’s grant of summary judgment. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). We must determine, viewing the evidence in the light most favorable to Plaintiffs, the non-moving parties, whether any genuine issues of material fact exist, and whether the 'district court correctly applied the relevant substantive law. Id. Because this action was removed to federal district court under diversity jurisdiction, we apply the substantive law of Arizona, the forum state. Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618, 624 (9th Cir.1996). We note initially that the Arizona courts have not yet had the opportunity to apply Arizona law to circumstances like those presented by this case. “When a decision turns on applicable state law and the state’s highest court has not adjudicated the issue, a federal court must make a reasonable determination of the result the highest state court would reach if it were deciding the case.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 885 n. 7 (9th Cir.2000) (quoting Aetna Cas. & Sur. Co. v. Sheft, 989 F.2d 1105, 1108 (9th Cir.1993)). “[W]e must use our best judgment to predict how that court would decide it.” Capital Dev. Co. v. Port of Astoria, 109 F.3d 516, 519 (9th Cir.1997) (quoting Allen v. City of Los Angeles, 92 F.3d 842, 847 (9th Cir.1996)). I. Intrusion Upon Seclusion. Devaraj asserts that Defendants’ covert videotaping of his conversation with the three undercover ABC representatives during their , visit to Medical Lab is actionable under the tort of intrusion upon seclusion. The Arizona Supreme Court has recognized the invasion of privacy torts laid out in the Restatement (Second) of Torts §§ 652A et seq., which include the tort of intrusion upon seclusion, see Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781, 788 (1989), and at least one Arizona Court of Appeals decision has applied the tort of intrusion upon seclusion. See Hart v. Seven Resorts Inc., 190 Ariz. 272, 947 P.2d 846, 853-54 (Ct.App.1997). The Arizona courts generally follow the Restatement in" }, { "docid": "15725932", "title": "", "text": "first address Prudential’s contention that the discovery rule does not apply to UCL claims. Prudential relies on a Ninth Circuit decision which held that under § 17208, UCL claims “are subject to a four-year statute of limitations which [begins] to run on the date the cause of action accrued, not on the date of discovery.” Karl Storz Endoscopy-America, Inc. v. Surgical Tech., Inc., 285 F.3d 848, 857 (9th Cir.2002) (emphasis added). The Court finds, for the reasons described below, that based on a subsequent decision of a California Court of Appeal issued in 2009, Broberg v. Guardian Life Ins. Co. of Am., 171 Cal.App.4th 912, 920, 90 Cal.Rptr.3d 225 (Cal.Ct.App.2009), the Ninth Circuit’s truncated reasoning in Karl Storz is not the most persuasive prediction of how the Supreme Court of California would rule on this issue today. The Ninth Circuit’s interpretation of California state law is only persuasive, _ not binding, on this Court. Furthermore, even the Ninth Circuit has held that its prediction of state law issues is only “binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect.” Jones-Hamilton Co. v. Beazer Materials & Servs., 973 F.2d 688, 696 n. 4 (9th Cir.1992). When the Court sits in diversity jurisdiction, it must predict how a state’s highest court would resolve a state issue of law, Borman, 960 F.2d at 331, and decisions of state intermediate appellate courts should be accorded significant weight in the absence of an indication that the highest state court would rule otherwise. Rolick, 925 F.2d at 664. Therefore, the Court turns to the relevant precedent under California law. The Supreme Court of California has not yet decided, and the California Courts of Appeal are in disagreement as to whether the delayed discovery rule, which delays accrual of certain causes of action until the plaintiff has actual or constructive knowledge of facts giving rise to the claim, applies to claims for unfair competition. Broberg v. Guardian Life Ins. Co. of Am., 171 Cal.App.4th 912, 920, 90 Cal.Rptr.3d 225 (Cal.Ct.App.2009), review denied, 2009 Cal. LEXIS 5288; Grisham v. Philip" }, { "docid": "20383918", "title": "", "text": "to experts, no extra costs for court reporter’s travel expenses). California law favors consideration of an expert opinion in determining the reasonableness of fee applications. Professor Rubenstein did not need to be disclosed under Rule 26(a)(2) because that rule applies to trial experts. Hyundai had a month after receiving the Rubenstein Declaration to hire its own expert in opposition, but chose not to do so. Furthermore, a motion to strike is improper, as this is not a motion under Rule 12. Professor Rubenstein’s Declaration is reliable and should be considered. (See Dkt. No. 319.) IY. DISCUSSION A. Plaintiffs’ Motion for Attorneys’ Fees 1. Legal Standard & Applicable Law Federal Rule 23(h) provides for an award of reasonable attorneys fees and nontaxable costs that are authorized by law or agreement of the parties. Fed. R.Civ.P. 23(h). Because there is no agreement regarding fees, the Court, sitting in diversity adjudicating state law claims, tons to applicable California law. Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1478-79 (9th Cir.1995) (“The method of calculating a fee is an inherent part of the substantive right to the fee itself, and a state right to an attorneys’ fee reflects a substantial policy of the state.”). “State law [also] establishes the required showing for attorney’s fees in an action in diversity.” Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 827 (9th Cir.2009). Under California law, to enable the trial court to determine an appropriate fee award, the attorney seeking the award should present: “(1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by the applicant and other lawyers, as to what would be a reasonable fee for such services.” Id. (internal alterations and quotations omitted). While some federal courts require detailed time records, “in California an attorney need not submit contemporaneous time records in order to recover attorney fees.” Id. (“Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.”) a. Section 1780(e) Under Cal." }, { "docid": "23458140", "title": "", "text": "Order granting summary judgment to Allstate and denying summary judgment to Feldman. This appeal followed. Standards of Review The timeliness of a notice of appeal is reviewed de novo. In re Delaney, 29 F.3d 516, 517 (9th Cir.1994). We review a district court’s grant of summary judgment de novo. Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 916 (9th Cir.2002). The determination of whether state or federal law applies in a diversity action is also reviewed de novo, and the de novo standard of review extends to the district court’s construction of state law. Olympic Sports Prod., Inc. v. Universal Athletic Sales Co., 760 F.2d 910, 912 (9th Cir.1985). Generally, evidentiary decisions made in the context of summary judgment motions are reviewed for an abuse of discretion. Maffei v. Northern Ins. Co., 12 F.3d 892, 897 (9th Cir.1993). However, whether a party has waived an otherwise applicable privilege is a mixed question of law and fact and is reviewed de novo. United States v. Amlani, 169 F.3d 1189, 1194 (9th Cir.1999). Jurisdiction As a threshold issue, this court must determine whether it has jurisdiction over the appeal. A notice of appeal “must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.” FED. R. APP. P. 4(a)(1). Failure to timely file a notice of appeal necessarily results in dismissal for lack of appellate jurisdiction. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.1984). The district court entered judgment in favor of Allstate on July 3, 2001. On July 13, Feldman filed a timely motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). On July 30, the district court rejected Feldman’s motion for reconsideration for failure to comply with Local Rule 7.4.1, which requires a statement that the parties conferred prior to filing. The following day, Feldman filed a corrected Rule 59 motion. On September 10, the district court denied Feldman’s motion. Feldman filed a notice of appeal on September 21. Feldman’s notice of appeal was not filed within 30 days of the district court’s entry of judgment. However," }, { "docid": "16198852", "title": "", "text": "“more than a doubling of the risk” due to exposure. Id. at 718. Second, the study must have a confidence interval that does not include 1.0. Id. at 723. Third, the study must have a confidence level of at least 95 percent. Id. at 724. The United States Court of Appeals for the Fifth Circuit has considered the Havner decision, but only in the context of determining the legal sufficiency of evidence supporting a jury verdict. In that case, although the parties appealed both the sufficiency of the evidence and the court’s expert admissibility rulings, the initial panel hearing the case applied Havner only to its discussion of the sufficiency of the evidence to support the jury’s finding. Bartley v. Euclid, Inc., 158 F.3d 261 (5th Cir.1998), vacated, 169 F.3d 215 (5th Cir.1999) (‘Bartley I”). When that case was heard en banc, the court did not address the applicability of Havner to the admissibility determination, instead focusing on the Daubert criteria. Bartley v. Euclid, Inc., 180 F.3d 175, 179 (5th Cir.1999) (‘Bartley II”). District courts in this circuit have reached different results in determining whether Havner applies to a federal court’s ruling on the admissibility of expert testimony. At least one court in this district rejected the application of Havner to the determination of whether expert testimony is admissible. In Taylor v. Bristol-Myers Squibb Co., 2004 WL 2058796 (N.D.Tex.2004) (Cummings, J.), the court distinguished between the legal sufficiency of evidence to prove a claim and the legal standard for admissibility of expert evidence: This Court is of the opinion that Havner does not clearly establish substantive state law that would control the admissibility of expert testimony or scientific evidence in a federal court sitting in diversity. The issue of Havner was not the admissibility of evidence but rather the legal sufficiency of the evidence offered to establish causation, and the holding of the case addressed only that legal sufficiency issue. Id. at *1 (citation and footnote omitted). Another district court considering the same issue has held that the Havner standards should apply in determining the admissibility of expert evidence: If" }, { "docid": "7158474", "title": "", "text": "we consider whether the district court had jurisdiction over the Companies under other theories of general or specific personal jurisdiction. “Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits.” Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1205 (9th Cir.2006). We have recognized that Montana Rule of Civil Procedure 4B(1), which serves as the state’s long-arm statute, “permit[s] the exercise of personal jurisdiction over nonresident defendants to the maximum extent permitted by federal due process.” Davis v. Am. Family Mut. Ins. Co., 861 F.2d 1159, 1161 (9th Cir.1988). As a result, “the jurisdictional analyses under state law and federal due process are the same.” Yahoo!, 433 F.3d at 1205. A. The Companies Are Not Subject to General Personal Jurisdiction in Montana The exercise of general personal jurisdiction allows courts to hear any cases involving a particular defendant. However, “[t]he standard for general jurisdiction is high.... [A] defendant must not only step through the door, it must also ‘[sit] down and [make] itself at home.’ ” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1169 (9th Cir.2006) (internal citation omitted) (quoting Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1125 (9th Cir.2002)). The standard is met only by “continuous corporate operations within a state [that are] thought so substantial and of such a nature as to justify suit against [the defendant] on causes of action arising from dealings entirely distinct from those activities.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945); accord Helicopteros Nacionales de Colombia, S.A v. Hall, 466 U.S. 408, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (holding that if a defendant’s contacts with a state are “continuous and systematic,” it may be haled into court in that state in any action). For general jurisdiction to obtain, the defendant’s contacts must approximate physical presence in the forum. See Yahoo!, 433 F.3d at 1205. The Companies’ contacts in Montana do not come close" }, { "docid": "14125282", "title": "", "text": "witness to point out, without the needless presentation of cumulative evidence, what in these exhibits he as an expert in threat assessment considers significant just so the jury knows that they are.” In addition to Agent Deal’s discussion of which aspects of Hanna’s letters disturbed him, he repeatedly characterized the communications as “threats” and concluded that “they seem threatening in nature basically.” The district court overruled defense counsel’s objection to this conclusion, explaining, “This is his job.” Moreover, the district court treated much of this law enforcement testimony as expert testimony. We agree with Hanna that the district court abused its discretion in allowing this testimony. Expert testimony is admissible under Fed.R.Evid. 702 if it addresses an issue “beyond the common knowledge of the average layperson.” United States v. Morales, 108 F.3d 1031, 1039 (9th Cir.1997) (en banc). Here, the issue the jury was called upon to decide was whether a reasonable person in Hanna’s position would foresee that his communications would be perceived by those to whom he communicated as serious expressions of intent to harm the President. Without additional assistance, the average layperson is qualified to determine what a “reasonable person” would foresee under the circumstances. See United States v. Whitfield, 31 F.3d 747, 749 (8th Cir.1994) (expert testimony on whether defendant accused of making threats was actually a threat to victim was properly excluded because it was “not probative of the issue of whether a reasonable recipient, knowing what she knew about the writer of the letters, would have interpreted them as a threat”); cf. Torres v. Johnson Lines, 932 F.2d 748, 751 (9th Cir.1991) (expert testimony properly excluded where record did not reveal “any specific evidence that was so technical or complex that a jury could not have grasped it without the aid of experts”); Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir.1990) (in copyright infringement case, expert testimony not appropriate for determining whether a reasonable person would find similarity between artistic works). Moreover, the probative value of this testimony was minimal. Hanna did not send his writings to the law enforcement and Secret Service" }, { "docid": "23292753", "title": "", "text": "of the federal eavesdropping statute. Plaintiffs later voluntarily dismissed the defamation and false light invasion of privacy claims. Defendants moved for summary judgment on all of the remaining claims and on all punitive damages claims. Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 30 F.Supp.2d 1182, 1186 (D.Ariz.1998) (“Med.Lab.II ”). Plaintiffs cross-moved for partial summary judgment on the fraud claim. Id. at 1201. The district court granted Defendants’ summary judgment motion on all claims but the fraud claim, which the court granted in part and denied in part. Id. at 1209. The court denied Plaintiffs’ motion for partial summary judgment on the fraud claim. Id. Pursuant to Federal Rule of Civil Procedure 54(b), the district court entered final judgment for Defendants on all claims but the fraud claim. Plaintiffs subsequently dismissed their fraud claim voluntarily without prejudice. Plaintiffs now appeal the district court’s grant of summary judgment on Devaraj’s claim of intrusion upon his seclusion, Medical Lab’s claims of trespass and tortious interference with contractual relations and prospective economic relations, and their claims for punitive damages. ANALYSIS We revieiu de novo the district court’s grant of summary judgment. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). We must determine, viewing the evidence in the light most favorable to Plaintiffs, the non-moving parties, whether any genuine issues of material fact exist, and whether the 'district court correctly applied the relevant substantive law. Id. Because this action was removed to federal district court under diversity jurisdiction, we apply the substantive law of Arizona, the forum state. Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618, 624 (9th Cir.1996). We note initially that the Arizona courts have not yet had the opportunity to apply Arizona law to circumstances like those presented by this case. “When a decision turns on applicable state law and the state’s highest court has not adjudicated the issue, a federal court must make a reasonable determination of the result the highest state court would reach if it were deciding the case.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 885 n. 7" }, { "docid": "22847141", "title": "", "text": "he has abused his discretion and that reversal is required”) (citations omitted). The only claims McDowell has remaining against Wexford involve Georgia state medical malpractice claims. Because the district court exercised supplemental jurisdiction over these claims when it was removed from state court, state law governs substantive issues and federal law governs procedural issues. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). “Proffered expert medical testimony must meet the legal as well substantive issues of the case.” Allison, 184 F.3d at 1320 (citing In re Breast Implant Litig., 11 F.Supp.2d 1217, 1226 (D.Colo.1998)). Rules of procedure encompass rules of evidence, and therefore, the Federal Rules of Evidence, not state evidentiary laws, apply. See 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, § 4512 (2d ed.1996). Moreover, we wrote that the admissibility of expert testimony is a matter of federal, rather than state procedure. See United States v. Roark, 753 F.2d 991, 994 (11th Cir.1985); Edwards v. Sears, Roebuck and Co., 512 F.2d 276, 292 (5th Cir.1975). Some state evidentiary rules are substantive in nature, and transcend the substance-procedure boundary, creating a potential Erie conflict. See Bradford v. Bruno’s, Inc., 41 F.3d 625 (11th Cir.1995) (finding that Alabama’s collateral source rule is substantive in nature); Ungerleider v. Gordon, 214 F.3d 1279, 1282 (11th Cir.2000). In Legg v. Chopra, the Sixth Circuit examined the interplay of expert testimony with Tennessee’s medical malpractice statute and the Federal Rules of Evidence. 286 F.3d 286 (6th Cir.2002). The Sixth Circuit determined that “state witness competency rules are often intimately intertwined with a state substantive rule. This is especially true with medical malpractice statutes, because expert testimony is usually required to establish the standard of care.” Id. at 290. Legg further announced that the Federal Rules of Evidence settled this potential conflict with Rule 601, which “incorporates the Erie mandate by expressly providing that when State law supplies the rule of decision, the competency of a witness shall be determined in accordance with state law.” Id. (citing Fed.R.Evid. 601). Legg mandated that “if a witness is" }, { "docid": "13347155", "title": "", "text": "the equities of each case. As suggested by our discussion of the parties’ arguments, our task here is to discern how the Supreme Court of Arizona would resolve the limitations and tolling questions before us. A federal court sitting in diversity applies the substantive law of the state, including the state’s statute of limitations. Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1306 (9th Cir.1992) (“[F]ederal courts exercising diversity jurisdiction are to use state statutes of limitation.”). Federal courts must abide by a state’s tolling rules, which are integrally related to statutes of limitations. See State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1228 (10th Cir. 2008) (following Colorado’s tolling rules in a diversity action because “they are an integral part of several policies served by the statute of limitations” (internal quotation marks omitted)). In determining the law of the state for purposes of diversity, a federal court is bound by the decisions of the highest state court. Harvey’s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 154 (9th Cir.1992). If the state’s highest court has not decided an issue, it is the responsibility of the federal courts sitting in diversity to predict “how the state high court would resolve it.” Air-Sea Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 186 (9th Cir.1989) (internal quotation marks omitted). There are times, however, when diversity cases in federal courts “ ‘present significant issues ... with important public policy ramifications.’ ” Munson v. Del Taco, Inc., 522 F.3d 997, 1003 (9th Cir.2008) (quoting Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir.2003)). In such circumstances, it may be appropriate, when permitted under state law, to certify those questions to the state court as a matter of “ ‘deference to the state court on significant state law matters.’” Id. (quoting Kremen, 325 F.3d at 1037). A. Application of American Pipe and Crown, Cork 1. In determining whether the Supreme Court of Arizona would adopt the rule of American Pipe/Crown, Cork, we begin with a review of that rule. In American Pipe, the plaintiffs instituted a Sherman Act" }, { "docid": "20398316", "title": "", "text": "York, Florida, Idaho, Montana, and North Carolina, comprised of “[a]ll purchasers and lessees of any 2006 through 2007 Honda Civic and 2006 through 2008 Honda Civic Hybrid vehicles who reside” in the relevant state. Each class would assert a violation of the relevant state’s consumer protection and express warranty laws. Plaintiffs also seek to certify subclasses of vehicle purchasers or lessees in the states of California, Florida, Idaho, Montana, New York, and North Carolina, which would assert violations of the Song-Beverly Act and other states’ implied warranty laws respectively. B. Evidentiary Objections to the Parties’ Respective Expert Reports 1. Legal Standard Governing Admissibility of Expert Reports on Class Certification Motions Before addressing the merits of the certification motion, the court must consider the parties’ challenges under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to the opposing parties’ experts. While courts in this circuit have previously concluded that expert testimony is admissible in evaluating class certification without a rigorous Daubert inquiry, the Supreme Court in Dukes “doubt[ed] that this is so.” Dukes, 131 S.Ct. at 2554. After Dukes, the Ninth Circuit approved the application of Daubert to expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ... ”). As a result, the court applies those standards to the expert reports the parties have submitted. Under Rule 702, “[i]f 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.” Fed.R.Evid." }, { "docid": "198000", "title": "", "text": "that his testimony on similarity of colors will assist the jury. The jury must decide whether Dooney & Bourke’s Multicolor Monogram Mark is confusingly similar to the Louis Vuitton Multicolore Monogram Mark. “The crucial issue in an action for trademark infringement ... is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978). Thus the jury must put itself in the position of an ordinarily prudent purchaser of the products. Ordinarily prudent purchasers do not come armed with digital photography, CIELAB, technical jargon and colorimeter approximation in evaluating and comparing products. Holub’s sophisticated techniques and highly technical presentation therefore provide no assistance to the jury’s determination of whether ordinary purchasers would be misled by the Dooney & Bourke Multicolor Monogram Mark. The Ninth Circuit’s analysis in United States v. Hanna, 293 F.3d 1080 (9th Cir.2002) is instructive on the problem raised by Dr. Holub’s testimony in this case when offered to prove confusing similarity. Hanna was charged with threatening the President, based on letters he sent to various acquaintances expressing his opinion that the President should be killed. The legal standard for conviction was whether a reasonable person could foresee that his statements would be interpreted as a serious threat by those to whom he sent the letters. The trial court allowed Secret Service agents to testify as experts on threats to the President. The agents testified that they thought the letters sent by the defendant constituted a serious threat. The court of appeals found an abuse of discretion and reversed the conviction. It stated that “[wjithout additional assistance, the average layperson is qualified to determine what a ‘reasonable person’ would foresee under the circumstances.” 293 F.3d at 1086. The Hanna court emphasized that the experts were in fact “particularly unqualified to comment on what the ‘reasonable person’ would have foreseen.” Because of their extensive training, experience and expertise, Secret Service agents would be likely to" }, { "docid": "7822849", "title": "", "text": "2541, 2554, 180 L.Ed.2d 374 (2011). After Dukes, the Ninth Circuit approved analysis under Daubert of the admissibility of expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ... ”). As a result, the court applies that standard to the proffered testimony of the parties’ expert witnesses. Under Rule 702, “[i]f 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.” - Fed.R.Evid. 702. See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702]’ consists of three distinct but related require ments: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)). Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657" } ]

[ { "docid": "22887409", "title": "", "text": "front pay is not within the meaning of compensatory damages in § 1981a(b)(3), and thus front pay is excluded from the statutory cap. In the Civil Rights Act of 1991, Congress determined that victims of employment discrimination were entitled to additional remedies. Congress expressly found that “additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace,” without giving any indication that it wished to curtail previously available remedies. See Civil Rights Act of 1991, 105 Stat. 1071, §2. Congress therefore made clear through the plain language of the statute that the remedies newly authorized under § 1981a were in addition to the relief authorized by § 706(g). Section 1981a(a)(l) provides that, in intentional discrimination cases brought under Title VII, “the complaining party may recover compensatory and punitive damages as allowed in subjection (b) of [§ 1981a], in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.” (Emphasis added.) And §1981a(b)(2) states that “[c]ompensatory damages awarded under [§ 1981a] shall not include back-pay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964” (Emphasis added.) According to these statutory provisions, if front pay was a type of relief authorized under § 706(g), it is excluded from the meaning of compensatory damages under § 1981a. As discussed above, the original language of § 706(g) authorizing backpay awards was modeled after the same language in the NLRA. This provision in the NLRA had been construed to allow awards of backpay up to the date of reinstatement, even if reinstatement occurred after judgment. Accordingly, backpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under § 706(g). As to front pay awards that are made in lieu of reinstatement, we construe § 706(g) as authorizing these awards as well. We see no logical difference between front pay awards made when there eventually is reinstatement and those made when there is" } ]

[ { "docid": "4534076", "title": "", "text": "another job. Saulpaugh, 4 F.3d at 145. The purpose of front pay is to “mak[e] victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment.” Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2d Cir.1996) (internal quotation marks omitted). During the trial, the District Court stated that it would hold a separate inquest to determine the amount of backpay and front pay due to Bergerson only if CNYPC were found by the jury to be liable under Title VII. After finding CNYPC liable, the jury was asked to award compensatory damages for only two categories of harm: (1) emotional distress, pain, and suffering; and (2) harm to Bergerson’s reputation. The jury was not asked to “consider [Bergerson’s] lost wages” and was presented with no evidence on this issue. Post-trial, the District Court determined that the jury’s damages award was supported by the evidence and accordingly denied CNYPC’s motion to vacate or reduce the damages award except to the extent of reducing the award to the statutory maximum. However, at the same time and without holding a separate in quest, the court also denied Bergerson an equitable award of backpay on the ground that the jury’s award was sufficient to make her whole, including for her claim of lost wages. In so finding, the court noted: [Bergerson’s] substantial damages award satisfied both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, [CNYPC] must pay [Bergerson] $300,000 in compensatory damages as a result of its unlawful employment practices.... Additionally, the magnitude of the jury’s award ensures that [Bergerson] will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress. The court recognized that the jury had heard no evidence on backpay but nevertheless found that the award returned Bergerson to the position she would have found herself in had the violations never occurred. We are unable to adopt this view. While a primary purpose of back-pay" }, { "docid": "23153931", "title": "", "text": "statistical evidence and discriminatory statements. Kelly, 640 F.2d at 981. The jury’s finding of willful age discrimination is supported by substantial evidence. Almost all. of the fired Tacoma employees were over the age of forty. Testimony revealed that several high-level Reichhold officials, including those who fired Cassino, were concerned about the comparatively high average age of Reich-hold’s workforce and had made public statements to that effect. In addition, the termination agreement that Reichhold offered Cassino specifically required Cassino to waive his right to sue for age discrimination in return for severance pay. From this evidence, the jury could infer that Reichhold knew or showed reckless disregard for whether firing Cassino violated the ADEA. See Thurston, 469 U.S. at 128, 105 S.Ct. at 624; Gilchrist, 803 F.2d at 1495. See also Archambault v. United Computing Sys., Inc., 786 F.2d 1507, 1514 (11th Cir.1986) (age-related comments evidence of willfulness). As Cassino concedes, however, the jury incorrectly computed the amount of liquidated damages. By the express terms of the statute, liquidated damages are an additional amount equal to the backpay and benefits award. 29 U.S.C. §§ 216(b), 626(b). See also Mitroff v. Xomox Corp., 797 F.2d 271, 279 (6th Cir.1986) (liquidated damages, if awarded, “must be equal to the back pay award”) (emphasis in original). Here, the jury was properly instructed that it could award Cassino liquidated damages “up to an amount equal to unpaid wages to which you find him entitled.” Yet, the jury’s special interrogatory and verdict form clearly shows that instead of awarding liquidated damages in an amount equal to the $81,000 backpay award, the jury simply doubled the entire award, including the front pay and compensatory damage awards, to reach its $246,000 fig ure. Accordingly, on remand, after computing the backpay award in light of the duty to mitigate, the jury should be instructed to award as liquidated damages, if it determines such an award appropriate, an amount not to exceed the backpay and benefits award. The district court is affirmed in part and reversed in part. The award of damages is vacated and the matter remanded for a" }, { "docid": "8006639", "title": "", "text": "See Mentavlos v. Anderson, 249 F.3d 301, 312 n. 4 (4th Cir.2001); Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir.2000) (en banc). On the substance of the punitive-damages issue, I write separately to clarify our holding that punitive damages are appropriate in this Title VII case because they accompany an award of lost wages. Such a holding is in accordance with the common-law rule, to which we continue to adhere in Title VII cases, that punitive damages are not appropriate unless they accompany compensatory damages. In this case, the jury awarded Corti $100,000 in punitive damages, but no compensatory damages. The court, however, awarded Corti more than $410,000 in back-pay and interest. StorageTek argues that Corti is not entitled to the punitive damages award because the jury did not award her compensatory damages. This argument rests on the general rule that punitive damages are prohibited in the absence of compensatory damages. See, e.g., People Helpers Found., Inc. v. Richmond, 12 F.3d 1321, 1327 (4th Cir.1993); Provencher v. CVS Pharmacy, 145 F.3d 5, 11 (1st Cir.1998). While the rule is an established one, StorageTek’s argument fails in application. Our holding that Corti may receive punitive damages is grounded on the fact that the district court awarded her lost wages, and we do not violate the general rule that punitive damages must be supported by compensatory damages in so holding. Title VII authorizes punitive damages when a defendant discriminates against the plaintiff “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). That provision does not address, one way or the other, whether the common-law rule — that compensatory damages must be proved as a condition to an award of punitive damages — applies. Section 1981a does, however, remove from the jury’s consideration of compensatory damages any award for “backpay.” See 42 U.S.C. § 1981a(b)(2). This provision was necessary to avoid double recovery for backpay because 42 U.S.C. § 2000e-5(g)(1) already provided for backpay. See Landgraf v. USI Film Prods., 511 U.S. 244, 253, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Provencher," }, { "docid": "4534078", "title": "", "text": "is indeed to return a victim of discrimination to the position she would have found herself in had the violations never occurred, we have never held that an award of backpay is encompassed within a jury’s award of compensatory damages. Indeed, such a view has been foreclosed by § 1981a. Rather, an award of backpay includes “what the employee himself would have earned had he not been discharged.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir.1998); see also Saulpaugh, 4 F.3d at 144-45 (observing that, ordinarily, a plaintiff is entitled to losses suffered as a result of defendant’s discrimination (i.e., from the date of termination until the date of judgment)). An award of backpay is a separate inquiry and requires a district court to make additional factual findings. See Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 880 (2d Cir.1988) (“These amounts [of backpay] were carefully arrived at by determining first each discharged employee’s hourly wage rate and the duration of his loss period.”). Because a backpay award requires a separate inquest, a district court may not deny an award of backpay because it believes that an award of compensatory damages is sufficient. Either an award includes backpay or it does not. We also note that the District Court never found the compensatory damages award to be excessive; rather, upon CNYPC’s motion to vacate the jury’s damages award as unsupported by the evidence, the court instead reduced the damages award to the statutory cap of $300,000. Accordingly, on remand, the court is directed to hold a separate inquest as to backpay. Of course, we are not requiring the District Court to award backpay to Bergerson; however, if the court declines to award backpay, it must “carefully articulate its reasons,” Albemarle, 422 U.S. at 421 n. 14, 95 S.Ct. 2362, keeping in mind that “[a]n award of backpay is the rule, not the exception,” Carrero, 890 F.2d at 580. B. Front Pay Bergerson also sought an award of front pay. Front pay may be awarded pursuant to section 706(g) of the Civil Rights Act of 1964, which" }, { "docid": "23153932", "title": "", "text": "the backpay and benefits award. 29 U.S.C. §§ 216(b), 626(b). See also Mitroff v. Xomox Corp., 797 F.2d 271, 279 (6th Cir.1986) (liquidated damages, if awarded, “must be equal to the back pay award”) (emphasis in original). Here, the jury was properly instructed that it could award Cassino liquidated damages “up to an amount equal to unpaid wages to which you find him entitled.” Yet, the jury’s special interrogatory and verdict form clearly shows that instead of awarding liquidated damages in an amount equal to the $81,000 backpay award, the jury simply doubled the entire award, including the front pay and compensatory damage awards, to reach its $246,000 fig ure. Accordingly, on remand, after computing the backpay award in light of the duty to mitigate, the jury should be instructed to award as liquidated damages, if it determines such an award appropriate, an amount not to exceed the backpay and benefits award. The district court is affirmed in part and reversed in part. The award of damages is vacated and the matter remanded for a new trial on damages to be conducted in accordance with this opinion. Each party is to bear its own costs. . Reichhold argues that the “but for” instruction was nevertheless inadequate because the district court did not explain to the jury what this standard meant. See Cancellier, 672 F.2d at 1315-16 n. 2; Kelly, 640 F.2d at 984-85. Although we are \"reluctant\" to affirm age discrimination verdicts based on instructions different from those approved in Kelly, we will do so when the error is more probably than not harmless. Cancellier, 672 F.2d at 1316-17. As in Cancellier, the district court's instruction here was an “unelaborated version of the correct standard,” and the district judge’s failure to give further guidance as to the meaning of the “but for\" test was harmless error. Id. . The model mitigation instruction provides: If you find that defendant committed unlawful age discrimination, plaintiff is entitled to damages, consisting of the wages he would have received if defendant had not discharged him. This amount consists of the back wages and employee" }, { "docid": "4534077", "title": "", "text": "reducing the award to the statutory maximum. However, at the same time and without holding a separate in quest, the court also denied Bergerson an equitable award of backpay on the ground that the jury’s award was sufficient to make her whole, including for her claim of lost wages. In so finding, the court noted: [Bergerson’s] substantial damages award satisfied both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, [CNYPC] must pay [Bergerson] $300,000 in compensatory damages as a result of its unlawful employment practices.... Additionally, the magnitude of the jury’s award ensures that [Bergerson] will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress. The court recognized that the jury had heard no evidence on backpay but nevertheless found that the award returned Bergerson to the position she would have found herself in had the violations never occurred. We are unable to adopt this view. While a primary purpose of back-pay is indeed to return a victim of discrimination to the position she would have found herself in had the violations never occurred, we have never held that an award of backpay is encompassed within a jury’s award of compensatory damages. Indeed, such a view has been foreclosed by § 1981a. Rather, an award of backpay includes “what the employee himself would have earned had he not been discharged.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir.1998); see also Saulpaugh, 4 F.3d at 144-45 (observing that, ordinarily, a plaintiff is entitled to losses suffered as a result of defendant’s discrimination (i.e., from the date of termination until the date of judgment)). An award of backpay is a separate inquiry and requires a district court to make additional factual findings. See Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 880 (2d Cir.1988) (“These amounts [of backpay] were carefully arrived at by determining first each discharged employee’s hourly wage rate and the duration of his loss period.”). Because a backpay award requires a separate" }, { "docid": "21451671", "title": "", "text": "Likewise, both parties’ notices of appeal were timely filed. Fed.R.App.P. 4, 26. . It appears that the district court did not consider this element of relief, in that its findings of fact and conclusions of law make no mention of the subject, nor does Mr. Skinner contend that this relief was improperly denied. . The jury’s actual verdict read, \"We the jury, ... assess damages as follows. Actual or nominal damages in the amount of three thousand, nine hundred and forty-five dollars and forty-eight cents. We the jury assess punitive damages against the defendant in the amount of zero.” Encompassed in the actual damage award are the issues of compensatory damages, backpay, and the plaintiffs duty to mitigate damages. Since the parties submitted no special interrogatories in this case, we have no way of discerning, how, if at all, the award of actual damages was distributed between backpay and compensatory damages, and whether the jury found that the defendant had failed to fully mitigate his damages. However, both parties have conceded at oral argument that the jury’s award in this case was solely one of backpay, and we accept their characterization for the purposes of this appeal. We note, however, that the use of special interrogatories concerning specific facts establishing liability or lack thereof, and relating those facts to the specific damages claimed would have provided the jury’s responses to vital issues. A request for a special verdict under Fed.R.Civ.P. 49(a) should have been requested by the plaintiff or otherwise submitted. . Mr. Skinner cites our decision in Poolaw v. City of Anadarko, Oklahoma, 738 F.2d 364 (10th Cir.1984), cert. denied, 469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d 779 (1985), as supporting the district court’s separate determination of back-pay in this case. In Poolaw, the jury found liability and awarded damages on race discrimination claim brought under § 1981; yet, on the same evidence, the district court found no liability and awarded no damages under Title VII. We affirmed, reasoning that § 1981 and Title VII are not mutually exclusive, and that the opposite conclusions reached by the separate" }, { "docid": "22831818", "title": "", "text": "are the same, we would effectively limit the local jurisdiction’s prerogative to provide greater remedies for employment discrimination than those Congress has afforded under Title VIL”) Moreover, CPI’s proposed allocation would conflict with the district court’s general obligation to preserve lawful jury awards when possible. The jury’s entire compensatory damage award was lawful under state law, and its punitive damage award was lawful under federal law (subject to any constitutionally valid limitation imposed by the statutory cap). An allocation that would serve to reduce lawfully awarded damages would fail to respect the jury’s verdict and conflict with the purpose and intent of one or both statutes. Thus, we hold that the district court’s allocation decision was not an abuse of discretion, and furthermore that, in circumstances such as these, subjecting the whole damage award to Title VII’s cap would be inconsistent with Title VII’s provisions. VIII. DAMAGES CPI argues that the district court erred in refusing to grant its motion for judgment as a matter of law, or in the alternative its motion for a new trial, because there was insufficient evidence to establish any of the damages. We review de novo the district court’s decision to deny judgment as a matter of law. EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir.1997). We hold that the district court committed no error in holding the evidence sufficient and denying the motions. As the damage awards involving backpay, front pay, and emotional damages were allocated to the state law claim, we analyze those awards under Washington law, and affirm. We discuss the punitive damages question separately below. A. Backpay CPI claims that there was “no evidence” to support any backpay, let alone the $100,000 backpay award. This claim is without merit. At the least, the jury clearly was entitled to find that Pas-santino would have won a bonus trip, worth $12,000, had CPI not prevented her from receiving timely information. Moreover, the jury was entitled to believe Pas-santino’s testimony that she would have received one of several National Account Manager positions for which she was qualified. Williams stated that" }, { "docid": "4534068", "title": "", "text": "... it is best left for the jury to decide whether the work environment is sufficiently hostile so as to constitute a change in the term, condition, or privilege of Bergerson’s employment.” The case proceeded to a jury trial in October 2009. The jury was asked to determine liability and, if CNYPC were found liable, to assess compensatory damages for “Pain, Suffering, and Emotional Distress” and “Harm to Reputation.” Bergerson also sought backpay and reinstatement (or front pay) under Title VII, but those issues were not submitted to the jury. Instead, the court reserved decision on those applications and indicated that it would decide whether Bergerson was entitled to such awards on post-trial submissions if the jury returned a verdict in her favor. Following trial, the jury found for Bergerson, awarding her compensatory damages in the amount of $130,000 on her disparate treatment claims ($30,000 for “pain, suffering, and emotional distress” and $100,000 for “harm to reputation”) and $450,000 on her hostile work environment claim ($200,000 for “pain, suffering, and emotional distress” and $250,000 for “harm to reputation”). On November 3, 2009, CNYPC moved for judgment as a matter of law or a new trial pursuant to Federal Rules of Civil Procedure 50(b) and 59, respectively. With respect to damages and backpay, CNYPC sought: (1) to vacate the jury’s damages award as unsupported by the evidence; or (2) in the alternative, to reduce the award to $300,000, which is the maximum amount allowable under the statutory cap on awards of noneconomic damages under Title VII imposed by 42 U.S.C. § 1981a(b)(3)(D); and (3) to preclude a further award of backpay if the court did not vacate the jury’s damages award. In response, on November 17, 2009, Berger-son cross-moved under Federal Rule of Civil Procedure 54(b) to amend the court’s summary judgment order to delete any reference to her having “abandoned” her state law claims. Bergerson did so because she wished to re-file her state law claims (which are not subject to a statutory cap on damages) in state court. At a November 25, 2009 hearing, the District Court granted CNYPC’s" }, { "docid": "23344555", "title": "", "text": "908 comment a (1979). . In addition, Savarese received $44,631.23 in back pay and Flaxman received $31,191.06 in back pay, awarded by the court as equitable relief. . Flaxman does not appeal his award of compensatory damages. . The defendants have not appealed the jury’s award of compensatory damages. We note that the defendants would have had a heavy burden in light of the fact that they did not object to the trial judge’s instruction to the jury that it could consider future loss of earnings in determining compensatory damages. . Arguably, defendants implicitly raise the point that Flaxman’s award may present the problems of possible double counting when they say that \"it is evident Appellees (at the very least Savarese) sought backpay and frontpay from the jury as a result of their firing.” Appellant’s Brief at 5b. Indeed, the jury was instructed that they may “look at the loss of earnings, if any, that you find from the both plaintiffs that were incurred as a result of the actions of the defendants in this case; and you can look at the future loss of earnings.” App. at 164-65 (emphasis added). Flaxman earned no income for the fifty-eight weeks between June 5, 1987 through July 20, 1988. Flaxman, however, did not ask the jury for lost wages, front pay or prospective damages. On December 9, 1988, the district court awarded Flaxman pay and benefits for the fifty-eight week period between the jury verdict (June 5, 1987) and reinstatement (July 20, 1988). Based on the record before us, we do not find error in Flaxman’s damage awards. We address, for purposes of the district court's consideration on remand, the defendants’ challenge to the award of back pay to Savarese. The defendants argue that the award was inappropriate if the employee could not have worked during the period in question. The Appellants cite no cases for this proposition. See Appellants’ Brief at 6b. A back pay award should make whole the injured party by placing that individual in the position he would have been in but for the defendants’ wrongful conduct. It" }, { "docid": "5149667", "title": "", "text": "multiplied by 2 (ie., double damages due to willful violation of the ADEA), for a total of $109,179.80. The $290,000 jury award was excessive and will be reduced accordingly. As to the ADA claim, defendants assert that the compensatory damages award of $185,000 exceeds the maximum amount recoverable under 42 U.S.C. § 1981a(b)(3). They contend that the City of O’Fallon has fewer than 100 full-time employees and, therefore, a $50,000 statutory cap on damages applies. 42 U.S.C. § 1981a(b)(3)(Á). Aternatively, if part-time employees are included defendants assert that the City of O’Fallon has 101-200 employees and damages should be capped at $100,000. 42 U.S.C. § 1981a(b)(3)(B). The statute does not draw a distinction between full-time and part-time employees, and defendants do not cite any authority to justify making such a distinction. Therefore, the $100,000 statutory cap applies in this case. The statute specifically excludes backpay and interest on backpay from the compensatory damages cap. 42 U.S.C. § 1981a(b)(2). As discussed above, Gregory Franz testified that he lost income in the amount of $50,687.66. Therefore, plaintiff was entitled to $100,000 in compensatory damages and $50,687.66 in back-pay, totaling $150,687.66. The $185,000 jury award was excessive and will be reduced to $150,687.66. 3. Motion for a New Trial A court may not grant a motion for a new trial unless the verdict is against the “great weight of the evidence,” and a new trial is necessary to prevent a “miscarriage of justice.” Butler v. French, 83 F.3d 942, 944 (8th Cir.1996). Defendants argue that they are entitled to a new trial because the jury’s verdicts were against the weight of the evidence; the damage awards for the age and disability discrimination claims reflected bias and prejudice; the damage award for the age discrimination claim was excessive, requiring the Court to remit a portion thereof; the Court erred in instructing the jury on loss of consortium and on willfulness under the ADEA, and erred in refusing certain jury instructions tendered by defendants; and the Court erred in overruling defendants’ objections to the testimony of Officer Henke. The Court finds that the evidence presented" }, { "docid": "3192516", "title": "", "text": "income, and mental distress. Pals himself supplied most information and computations; Schepel neither cross-examined him on these subjects nor presented evidence (or calculations) of its own. Pals sought approximately $350,000 for past financial loss, $1,700,000 for future financial loss, and an unspecified amount for noneconomic loss. A magistrate judge, presiding by consent under 28 U.S.C. § 636(c), gave the jury a general-verdict form telling it to determine the amount of “compensatory damages” to which Pals was entitled. After the verdict fixed these at $1,050,000, Schepel asked the court to reduce the award to $100,000 under 42 U.S.C. § 1981a(b)(3)(B). This statute, part of the Civil Rights Act of 1991, applies to ada cases, see § 1981a(a)(2). Section 1981a(b)(3) reads: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party ... (B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000[.] Schepel, which has more than 100 and fewer than 201 employees, believes that its exposure cannot exceed $100,000. After all, the verdict form and the instructions called the award “compensatory damages.” Yet § 1981a(b)(3) does not set a limit on “compensatory damages” as that term may be used colloquially, or even “compensatory damages” as lawyers normally employ that term. The cap limits “the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses” (emphasis added). Are back and front pay in an ada action awarded under § 1981a? Section 1981a(b)(2) tells us that “Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964”, 42 U.S.C. § 2000e-5(g). So back pay falls outside" }, { "docid": "22831814", "title": "", "text": "of appropriate discount rates has been introduced. See Hinzman v. Palmanteer, 81 Wash.2d 327, 501 P.2d 1228, 1233-34 (Wa.1972). Thus, the rule applied by the district court was completely consistent with Monessen and the relevant Washington law. VII. ALLOCATION OF DAMAGES CPI argues that the district court erred in allocating the jury’s damage award. The district court allocated all of the compensatory damages, front pay, and backpay to Passantino’s state law claim, while allocating the punitive damages to her Title VII claim. CPI contends that the entire award (apart from backpay) should have been subject to the $300,000 Title VTI damages cap. While the district court generally has discretion regarding how to allocate the damage award, to the extent that the allocation decision rests on an interpretation of the statute, we review it de novo. Hudson v. Reno, 130 F.3d 1193, 1198 (6th Cir.1997); Johnson v. Shalala., 35 F.3d 402, 405 (9th Cir.1994). CPI claims that because the jury instructions said that punitive damages could be awarded only if the jury awarded compensatory damages on Passantino’s federal claims, and because the jury awarded punitive damages, the jurors must have intended to award federal compensatory damages. While this reasoning is correct, it does not follow that the court erred by allocating the compensatory damages to the state law claims. As the verdict form indicates, the jury found for Passantino on both federal and state law retaliation claims, and awarded damages without specifying any particular allocation. Thus, the most reasonable assumption is that the jury awarded the same damages on both the federal and state claims. The damages were duplicative, however, because the two claims 'werfe essentially the same; they involved the same conduct and were evaluated under the same legal standard. In the absence of a contrary directive, such as a statutory mandate that damages be allocated to one claim rather than another, the district court had authority to allocate the damages to either claim. Faced with the general verdict, the district court chose to'allocate the award to the' state rather than thfe federal claim. As the jury had awarded damages" }, { "docid": "18950683", "title": "", "text": "single set of instructions applicable to Martini’s claims under both Title VII and the D.C. Human Rights Act. See 12/9/96 Trial Tr. at 33. As required by law, the court never informed the jury about Title VII’s damages cap.- See 42 U.S.C. § 1981a(c)(2). Over the objections of both parties, the district court gave the jury a verdict form with “special interrogatory questions” for assessing damages for each type of claim (harassment or retaliation) against each defendant (Fannie Mae, Ko-bayashi, or Knight) under each statute (Title VII or D.C. Human Rights Act). Martini v. Federal Nat’l Mortgage Ass’n, No. 95-1341 (D.D.C. Dec. 13, 1996) (entering judgment on the verdict for plaintiff). The jury awarded Title VII damages well in excess of the statutory cap. The district court limited these damages (excluding backpay) to $300,000. See Martini, 977 F.Supp. at 471. Martini argues that the portion of Title VII damages exceeding the statutory cap should have been reallocated to her recovery under the D.C. Human Rights Act. Again, we agree. Because the jury used exactly the same instructions in evaluating Martini’s Title VII and D.C. law claims, and because the jury had no knowledge of Title VII’s damages cap, it had no legal basis for distinguishing between the two statutes. Thus, for any one claim against any one defendant, distinguishing between damages that the jury awarded under Title VII and damages that it awarded under the D.C. Human Rights Act makes no sense. For example, although the jury awarded punitive damages of $2 million under Title VII and $1 million under D.C. law against Fannie Mae on Martini’s retaliation claim, there is no basis for saying that the jury intended to impose a $2 million award specifically under Title VII, plus a $1 million award specifically under D.C. law. Instead, the most sensible inference is that the jury sought to impose a total of $3 million in punitive damages against Fannie Mae for retaliation. To be sure, only $300,000 of that amount may be awarded under Title VII. But we see no reason why Martini should not be entitled to the" }, { "docid": "3192517", "title": "", "text": "who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000[.] Schepel, which has more than 100 and fewer than 201 employees, believes that its exposure cannot exceed $100,000. After all, the verdict form and the instructions called the award “compensatory damages.” Yet § 1981a(b)(3) does not set a limit on “compensatory damages” as that term may be used colloquially, or even “compensatory damages” as lawyers normally employ that term. The cap limits “the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses” (emphasis added). Are back and front pay in an ada action awarded under § 1981a? Section 1981a(b)(2) tells us that “Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964”, 42 U.S.C. § 2000e-5(g). So back pay falls outside the cap. Section 706(g)(1) does not mention front pay, but it does permit a court to order “reinstatement or hiring of employees, with or without back pay ..., or any other equitable relief as the court deems appropriate.” Front pay is in lieu of reinstatement, and as a substitute for a remedy under § 706(g)(1) “front pay falls squarely within the statutory language authorizing ‘any other equitable relief [as the court deems appropriate].’ ” Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir.1998). We did not consider in Williams the effect of this conclusion on § 1981a; all Williams holds is that § 706(g)(1) authorizes front pay as an equitable remedy. Section 1981a(b)(2) gives this another effect, however, and we now put two and two together. Neither back nor front pay counts against a maximum award of compensatory damages under § 1981a(b)(3). Accord, EEOC v. W & O, Inc., 213 F.3d 600, 618 & n.10 (11th Cir.2000); Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1153-54 (9th Cir.1999); Martini v. Federal National Mortgage" }, { "docid": "4534079", "title": "", "text": "inquest, a district court may not deny an award of backpay because it believes that an award of compensatory damages is sufficient. Either an award includes backpay or it does not. We also note that the District Court never found the compensatory damages award to be excessive; rather, upon CNYPC’s motion to vacate the jury’s damages award as unsupported by the evidence, the court instead reduced the damages award to the statutory cap of $300,000. Accordingly, on remand, the court is directed to hold a separate inquest as to backpay. Of course, we are not requiring the District Court to award backpay to Bergerson; however, if the court declines to award backpay, it must “carefully articulate its reasons,” Albemarle, 422 U.S. at 421 n. 14, 95 S.Ct. 2362, keeping in mind that “[a]n award of backpay is the rule, not the exception,” Carrero, 890 F.2d at 580. B. Front Pay Bergerson also sought an award of front pay. Front pay may be awarded pursuant to section 706(g) of the Civil Rights Act of 1964, which provides a court with authority to “order such affirmative action as may be appropriate,” including but not limited to “reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(l) (2006); Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 853-54, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001). An award of front pay is an alternative to reinstatement where reinstatement is “inappropriate,” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1182 (2d Cir.1996), such as where there is animosity between an employer and an employee or where there is no longer a position available at the time of judgment, Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984) (describing reinstatement and front pay under the Age Discrimination in Employment Act). An award of front pay is discretionary, and if a district court makes a nonerroneous “specific finding” that a plaintiff has already been made whole, no abuse of discretion can be found in denying front" }, { "docid": "5149666", "title": "", "text": "they were to award him damages for lost wages and fringe benefits (including health and life insurance premiums). The jurors also were instructed that they were to decide next whether the conduct of the defendants was willful. After deliberation, the jury returned a verdict in favor of Gregory Franz, found that at least one defendant’s conduct was willful, and awarded damages in the amount of $290,000. The ADEA provides for an award of liquidated damages (ie., double damages) for willful violations of the statute. At trial, the jury heard evidence from which it could have concluded that a defendant either knowingly violated the ADEA or acted in reckless disregard of the law. As such, the instruction on willfulness was appropriate. See 29 U.S.C. § 626(b); Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 803 (8th Cir.1994). Gregory Franz testified that he lost income in the amount of $50,687.66 and that he incurred health insurance expenses in the amount of $3,902.24. Based on this evidence, plaintiff was entitled to recover $54,589.90 in wages and insurance benefits multiplied by 2 (ie., double damages due to willful violation of the ADEA), for a total of $109,179.80. The $290,000 jury award was excessive and will be reduced accordingly. As to the ADA claim, defendants assert that the compensatory damages award of $185,000 exceeds the maximum amount recoverable under 42 U.S.C. § 1981a(b)(3). They contend that the City of O’Fallon has fewer than 100 full-time employees and, therefore, a $50,000 statutory cap on damages applies. 42 U.S.C. § 1981a(b)(3)(Á). Aternatively, if part-time employees are included defendants assert that the City of O’Fallon has 101-200 employees and damages should be capped at $100,000. 42 U.S.C. § 1981a(b)(3)(B). The statute does not draw a distinction between full-time and part-time employees, and defendants do not cite any authority to justify making such a distinction. Therefore, the $100,000 statutory cap applies in this case. The statute specifically excludes backpay and interest on backpay from the compensatory damages cap. 42 U.S.C. § 1981a(b)(2). As discussed above, Gregory Franz testified that he lost income in the amount of $50,687.66. Therefore, plaintiff" }, { "docid": "21318111", "title": "", "text": "alone. LeBlanc observed that “[although the goal of a federal common law of damages is to produce uniform results, so far the federal judiciary has not succeeded in this endeavor.” We further recognized our own mixed ease law on the issue but attempted to add clarity by concluding that generally, we only allow independent awards of punitive damages upon a finding of a constitutional violation by a defendant. Here, however, we recognize another class of cases not fully addressed in LeBlanc —those involving statutes with caps on punitive damages. We have upheld jury awards of punitive damages without a finding of a constitutional violation or accompanying compen satory damages, while skirting the underlying constitutional question of whether such awards are permissible. In Lewis v. Parish of Terrebonne, we affirmed a jury verdict for “punitive damages of $6,279 (funeral costs)” without compensatory damages but remanded the case for the district court to make a finding regarding compensatory damages. Similarly, in Dunn v. Denk, an excessive force case, we permitted a jury award of punitive damages accompanied by a district court’s award of $1 in nominal damages but also granted a partial new trial, wherein compensatory damages would potentially be awarded. In E.E.O.C. v. E.I. Du Pont de Nemours & Co., we addressed the “first impression” issue of whether punitive damages awarded without compensatory damages under 42 U.S.C. § 1981a were permissible and concluded that they were. In that case, however, we affirmed a jury award of backpay damages in addition to punitive damages. For Title VII cases not involving backpay, frontpay, or compensatory damages, our district courts have upheld lone punitive damages awards, accompanied by court-assigned nominal damages of $1. These courts have relied on our LeBlanc case’s finding that “ ‘there is no established federal common law rule that precludes the award of punitive damages in the absence of an award of compensatory damages ... ’ ” and on the holding in Carey v. Piphus that under § 1983, even absent a showing of actual injury a plaintiff may receive nominal damages, awarded by the judge, “not to exceed one" }, { "docid": "21318110", "title": "", "text": "extent that, as the first Justice Harlan said, the Civil Rights Act of 1866 is supported by the thirteenth amendment.” A constitutional grant of power to Congress in enacting a statute does not require that a statute directly incorporate a constitutional principle. We have distinguished between constitutional and statutory claims in cases where plaintiffs bring their claims under § 1981 and the Thirteenth Amendment. Similarly, the Eleventh Circuit has specifically defined some Title VII claims as involving “a violation of purely statutory rights,” and the Supreme Court has found that a plaintiff bringing a Title VII claim without an accompanying claim under the Constitution “does not advance a constitutional claim.” Although § 1981 and Title VII more generally arise from the powers granted to Congress by the Thirteenth Amendment and embody its principles, the jury finding pursuant to these statutes and its instructions do not sum to a finding of a constitutional wrong. So we must decide whether the punitive damages award coupled with the district judge’s grant of $1 in nominal damages can stand alone. LeBlanc observed that “[although the goal of a federal common law of damages is to produce uniform results, so far the federal judiciary has not succeeded in this endeavor.” We further recognized our own mixed ease law on the issue but attempted to add clarity by concluding that generally, we only allow independent awards of punitive damages upon a finding of a constitutional violation by a defendant. Here, however, we recognize another class of cases not fully addressed in LeBlanc —those involving statutes with caps on punitive damages. We have upheld jury awards of punitive damages without a finding of a constitutional violation or accompanying compen satory damages, while skirting the underlying constitutional question of whether such awards are permissible. In Lewis v. Parish of Terrebonne, we affirmed a jury verdict for “punitive damages of $6,279 (funeral costs)” without compensatory damages but remanded the case for the district court to make a finding regarding compensatory damages. Similarly, in Dunn v. Denk, an excessive force case, we permitted a jury award of punitive damages accompanied" }, { "docid": "9547478", "title": "", "text": "an award of prejudgment interest. An award of prejudgment interest is a part of the full compensation in many cases, particularly civil rights cases. Williamson v. Handy Button Machine Co., 817 F.2d at 1297;- Hunter v. Allis-Chalmers Corp., Engine Division, 797 F.2d 1417, 1426 (7th Cir.1986). However, prejudgment interest may be inappropriate in some cases— where there is a substantial, unexplained delay in filing suit or if the amount of backpay is not readily determinable. Handy Button, 817 F.2d at 1298. Prejudgment interest is available only on the back pay award, not on other items of compensatory damages. Hunter, 797 F.2d at 1425. Gillespie was awarded $30,000 for compensatory damages for her discharge. The jury was instructed that compensatory damages included financial losses, pain, suffering and physical and emotional distress, including back pay. Although Gillespie testified that she was emotionally distraught as a result of the defendant’s conduct, the record does not support the conclusion that the entirety of the jury award represents non-back pay damages. It is therefore safe to assume that the jury included as part of the compensatory damages some amount of back pay. In Handy Button the jury awarded $130,000 for lost past and future earnings. The district judge had previously found no liability under Title VII, but refused to disturb the jury verdict on the § 1981 claim. The court of appeals was faced with the issue of how to apportion the jury award between past wages (for which prejudgment interest would be allowed) and future lost wages. Although the circumstances are different in this case, the methods of apportioning outlined by Handy Button can be of use here to determine the amount of back pay that should be awarded on the Title VII claim. I have determined that First Interstate is liable under Title VII for Gillespie’s discharge. I now must determine what amount in addition to the verdict amount should be awarded for back pay. Four methods of apportioning the award were discussed in Handy Button. 817 F.2d at 1298. The first was to deny prejudgment interest for the amount was not readily" } ]

[ { "docid": "2007170", "title": "", "text": "become or are involuntarily made parties to them, that it fails to commend itself to my reason or judgment. In my opinion, it disregards the law and the-facts which condition and govern all the rights of the parties, the facts that upon the filing of the petition in bankruptcy the property of the bankrupt becomes the property of his creditors and passes into the custody of the court for their benefit, that from that hour the bankrupt is divested of the power either by deed or'act, by admission or by estoppel, to apply it to the payment of the claim of any creditor in preference to those of others, to dispose of it in any other way than as provided by the bankruptcy act, to deprive any creditor of the right granted to him by that law to contest upon its merits the claim of any other creditor to share in the estate at the place, at the time, and before the tribunal specifically designated to determine that issue, and to do any other act to prevent the distribution of the estate among the creditors in the way prescribed by the law. The case of In re Fallon, Fed. Cas. No. 4,628, cited in the opinion of the court, contains nothing inconsistent with this view. It neither involved nor touched upon the question in this case. It arose out of a motion by a judgment creditor for a vacation of the stay of execution upon his judgment pending proceedings in bankruptcy. The court denied the motion, and rightly decided that an inquiry into the debt of the petitioner in bankruptcy was not permissible upon a motion of that nature. No question of the validity of the judgment of bankruptcy is presented in this case, nor of the sufficiency of the evidence of the claim of the petitioners to sustain that adjudication. The only issue is whether or not that adjudication estopped the objecting creditors and the trustee from contesting the existence of that claim and the right of the petitioning creditors to share in the distribution of the estate when" } ]

[ { "docid": "23422673", "title": "", "text": "evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibi- • tion of the use of their claims by preferred creditors until they surrender them which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his-preference before the adjudication. In re Hornstein, 122 Fed. 266, 273, 277; In re Gillette (D. C.) 104 Fed. 769. Such a creditor may not be counted against the petition, nor in computing the number of creditors that must join in the petition, unless he first surrenders his preference. But, if he surrenders lus preference before the adjudication, he may be counted after the surrender. In re Miner (D. C.) 104 Fed. 520; Collier on Bankruptcy (5th Ed.) 440, 481; In re Blount (D. C.) 142 Fed. 263, 266; Leighton v. Kennedy, 64 C. C. A. 265, 267, 129 Fed. 737, 739; In re Israel, Fed. Cas. No. 7,111; Clinton v. Mayo, Fed. Cas. No. 2,899; In" }, { "docid": "15588790", "title": "", "text": "unlawful preferences has relation to the filing of the petition by the three creditors on February 1st only, the preference, if it was a preference, which appellants received, would be defeated, for the reason that less than four months had elapsed since the last payment was made. If, on the contrary, it can have relation only to the filing of the intervening petition, the alleged preference would be protected because more than four months had then elapsed. This brings us at once to consider what effect, if any, the filing of the petition on February 1, 1912, by the three creditors who were parties to the assignment contract, had upon the rights of the parties in interest here.' It has been repeatedly decided by this court that where a petition was defective merely, as, for example where a petition was filed by one creditor only who alleged that the debtor had less than twelve creditors known to him, and it was subsequently discovered that there were more than twelve creditors, and therefore the petition must be filed by more than one creditor, the requisite number of creditors might join with the original petitioner prior to adjudication, and that in such case the “filing of the petition” within the meaning of the bankruptcy act would relate back to the date of the filing of the original petition by the one creditor. First State Bank v. Haswell, 174 Fed. 209, 98 C. C. A. 217, and cases there cited. In such case the petition will not be void but voidable only and subject to amendment. But we have here, as we view it, a very different case. The three creditors filing the first petition were absolutely disqualified from filing án involuntary petition in bankruptcy by reason of becoming voluntary parties to the assignment contract, as much so as if they had been strangers to the entire proceeding, and it would not be contended, we take it, by any one, that strangers—that is, parties having no claims against a bankrupt—could file a petition against him that would have any validity whatever: The reason" }, { "docid": "2006049", "title": "", "text": "to the underlying claim. In reviewing the bankruptcy court’s jurisdiction, the Supreme Court first noted that such courts are essentially courts of equity with the power to “proceed in a summary fashion to deal with the assets of the bankrupt they are administering.” Id. at 327, 86 S.Ct. at 471. They additionally have the power to determine preference claims. As part of this power, the Court ruled that the bankruptcy court likewise may “ ‘inquire into the validity of any alleged debt or obligation of the bankrupt upon which a demand or a claim against the estate is based.’ ” Id. at 329, 86 S.Ct. at 472. Consequently, when the trustee in Katchen filed a preference counterclaim against Katchen, the bankruptcy court had the power to determine both the validity of Katchen's claim against the estate and to order the return of any preference it found as part of this claims determination process, regardless of the fact that had Katchen not filed a claim against the estate, the trustee would have to commence a plenary action in state court in which Katchen could have demanded a jury trial. The court stated: [Although petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee, when the same issue arises as part of the process of allowance and disallowance of claims, it is triable in equity. The Bankruptcy Act, passed pursuant to the power given to Congress by Art I, § 8, of the Constitution to establish uniform laws on the subject of bankruptcy converts the creditor’s legal claim into an equitable claim to a pro rata share of the res, a share which can neither be determined nor allowed until the creditor disgorges the alleged voidable preference he has already received. As bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession, and as the proceedings of bankruptcy courts are inherently proceedings in equity, there is no Seventh Amendment right to a" }, { "docid": "15707016", "title": "", "text": "obtaining a certain price therefor. He retained out of the funds corning into his hands the sum of $6,664.96, which he applied to said claims. On Janury 18,1921, he filed a suit, proceeding by attachment, against said Kollman as a nonresident of Louisiana, in the Fifteenth district judicial court of Louisiana for the parish of Calcasieu, for $4,335.04, alleged to be the balance due him by said Kollman. Kollman does not appear to have been otherwise served, made no appearance, or defense, and judgment by default was rendered in favor of Wisong for his claim on April 27, 1921. On January 28, 1921, Kollman had been adjudicated a bankrupt in proceedings filed in the district of his residence in Nebraska. On attempting to enforce said judgment, a restraining order was issued from the United States District Court of the Western Dis trict of Louisiana, on a petition of the trustee in bankruptcy of Kollman, and the enforcement of said judgment was enjoined. Said Wisong thereupon presented proof of his debt in said bankruptcy proceedings, ■ claiming the right to be paid in preference and priority over all of the other creditors of. said Kollman for the amount of the judgment secured by him under his writ of attachment, asserting that the sum was due to him on account of services as mandatory and agent of said bankrupt. He also insisted that the costs of said attachment proceedings, awarded by said state court,t amounting to $206.99, was a privileged claim entitled to be paid by preference and priority out of said bankrupt estate situated in Louisiana. The referee allowed said claim for the sum of $3,994.07, Wisong having admitted an additional credit, and held that it, with said costs, was entitled to priority of payment out of said bankrupt estate in Louisiana. On a petition for review, the United States District Court for the Western ‘District of Louisiana reversed the ruling of the referee so far as it held said claims to be privileged and entitled to priority, and reduced the same to the rank of those of ordinary creditors. Said" }, { "docid": "23449136", "title": "", "text": "Savings Bank v. Chicago Title & Trust Co., 229 U.S. 435, 444, 33 S.Ct. 829, 831, 57 L.Ed. 1268 (1913), “The fact that what was done worked to the benefit of the creditor, and in a sense gave him a preference, is not enough, unless the estate of the bankrupt was thereby diminished.” [5] The Trustee has not undertaken to proceed against Vivian Decker and she has not been made a party to these proceedings. She holds the swimming pool rights by virtue of the assignment to her for which she furnished a fresh consideration of $8,000.00. She has filed her claim against the bankrupt’s estate in the amount of $8,000.00 and any claims which the bank has or had have been reduced by that amount as a result of her payment to it. The bankrupt’s liability to creditors has not been increased — it remains the same. The only prejudice to the bankrupt’s estate and the rights of general creditors derives from the transfer out of the estate of an asset of undetermined value. If, as contended by the Trustee, the swimming pool shares or memberships assigned and transferred to Vivian Decker were actually of value to the bankrupt’s estate, the bank received a voidable preference. Since the bank did not receive the shares and therefore cannot be required to surrender them to the Trustee, it should be required to pay to the Trustee the value thereof but, in no event, a sum exceeding the amount received by it from Miss Decker. The District Court should take whatever action is necessary to ascertain the value, if any, to the bankrupt’s estate of the assigned and transferred property. The case is therefore remanded for further proceedings consistent with the views herein expressed. Reversed and remanded for further proceedings. . Bankruptcy Act § 60, sub. b, 11 U.S.C.A. § 96, sub. b. . Grubb v. General Contract Purchase Corporation, 94 F.2d 70 (2 Cir. 1938) ; In re Zaferis Bros. & Co., 67 F.2d 140 (9 Cir. 1933) ; In re Henry C. Reusch & Co., 44 F.Supp. 677 (D.N.J.1942). See" }, { "docid": "1011568", "title": "", "text": "the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See In re Standard Detroit Tractor Co. (D. C.) 275 F. 952, 954. But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibition of the use of their claims by preferred creditors until they surrender them, which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. “Such a preferred creditor may present or may join in a" }, { "docid": "22134683", "title": "", "text": "surrender it, because, after the adjudication in bankruptcy, Siegel & Bro., the solvent indorsers, paid the $10,400 remaining unpaid on the notes which they had indorsed, and proved this payment as a part of their claim against the estate of the bankrupt, while the claim which the bank has presented consists entirely of notes upon which Siegel & Bro. are not indorsers. But how does the fact that, since the filing of the petition in bankruptcy, the bank has assigned a portion of its claim to Siegel & Bro., by operation of law or otherwise, relieve it from its disability to prove any of its claim until it surrenders its preference? The bankrupt act prohibits the allowance of any claim of a creditor who has received a preference unless he has surrendered that preference. “The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.” Section 57g. The unequivocal language and the unquestionable legal effect of this section are to prohibit the allowance of any claim of a creditor who has received a preference, either upon that or upon any other claim he holds against the estate of the bankrupt, unless he has first surrendered his preference. Strobel & Wilken Co. v. Knost (D. C.) 99 Fed. 409; Electric Corp. v. Worden, 39 C. C. A. 582, 99 Fed. 400; In re Conhaim (D. C.) 97 Fed. 924; In re Rogers Milling Co. (D. C.) 102 Fed. 687; Collier, Bankr. (3d Ed.) pp. 318, 319- under the act of 1898, the rights of claimants to share in the distribution of the estate of the bankrupt are fixed by the status of their claims at the time of the filing of the petition in bankruptcy. Section 63; In re Bingham (D. C.) 94 Fed. 796. The petition in this case was filed on December 30, 1899. At that time the bank held a claim against the estate of the dry goods company for $45,400, $35,000 of which was evidenced by the notes of the bankrupt indorsed by Eoeb and Hillman, while $10,400 was" }, { "docid": "22662673", "title": "", "text": "that a creditor had received a preference and that his claim could therefore not be allowed. We agreed that the referee had the authority not only to adjudicate the existence of the preference, but also to order that the preference be disgorged. We also recognized that the referee could adjudicate counterclaims against a creditor who files his claim against the estate. The 1973 Bankruptcy Rules make similar provision. See Rule 306(c), Rule 701, and Advisory Committee Note to Rule 701, 11 U. S. C., p. 1340. Hence, if Marathon had filed a claim against the bankrupt in this case, the trustee could have filed and the bankruptcy judge could have adjudicated a counterclaim seeking the relief that is involved in these cases. Of course, all such adjudications by a bankruptcy judge or referee were subject to review in the district court, on the record. See 11 U. S. C. § 67(c). Bankruptcy Rule 810, transmitted to Congress by this Court, provided that the district court “shall accept the referee’s findings of fact unless they are clearly erroneous.” As the plurality recognizes, ante, at 55, the 1978 Act provides for appellate review in Art. Ill courts and presumably under the same “clearly-erroneous standard.” In other words, under both the old and new Acts, initial determinations of state-law questions were to be made by non-Art. Ill judges, subject to review by Art. Ill judges. Why the differences in the provisions for appeal in the two Acts are of unconstitutional dimension remains entirely unclear. In theory and fact, therefore, I can find no basis for that part of the majority’s argument that rests on the state-law character of the claim involved here. Even if, prior to 1978, the referee could not generally participate in cases aimed at collecting the assets of a bankrupt estate, he nevertheless repeatedly adjudicated issues controlled by state law. There is very little reason to strike down § 1471 on its face on the ground that it extends, in a comparatively minimal way, the referees’ authority to deal with state-law questions. To do so is to lose all sense" }, { "docid": "2007151", "title": "", "text": "opinion, as effective a making of objections by the four creditors as the filing and presentation of a separate paper which contained the same statement and the same objections over their signatures could have been. 2. The referee rejected the claim. The District Court reversed the order of rejection, and ordered the allowance of the claim. The trustee had the right, and it was his duty, if he believed this claim to be false and fictitious, to appeal from the order which allowed it, and the, objecting creditors had no such right unless the trustee refused to take the appeal. Section 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432; Chatfield v. O’Dwyer, 42 C. C. A. 30, 32, 101 Fed. 797, 799; Foreman v. Burleigh, 48 C. C. A. 376, 109 Fed. 313. 3. Did the adjudication of bankruptcy estop the objecting creditors and the trustee who represents them from contesting the allowance of the claim of the appellees and their right to share in the estate of the bankrupt? It is not material whether or not the adjudication estopped the bankrupt, and for that reason it is conceded that on March 28, 1904, when Gentle was adjudged a bankrupt, 25 days after the filing of the petition in bankruptcy, the issue whether or not he was indebted to the appellees in the sum of $5,861 became res adjudicata between the petitioning creditors and the bankrupt. The estoppel of that adjudication, however, did not arise until that day, which was 25 days after the rights of all creditors in the estate had become fixed, and it did not bind any one who was not a party to the litigation of the issues which that judgment determined. Although the bankrupt was thus debarred from subsequently contesting the claim, the adjudication against him gave the owners of that claim no right to any share in his estate or to any dividend from its proceeds. Their right to that share and to that dividend was conditioned by the express terms of the bankruptcy act by a subsequent proof of their" }, { "docid": "7978541", "title": "", "text": "allowance of its claim in bankruptcy is equivalent to a judgment against the bankrupt, and as such at least prima facie evidence against the surety, within Moses v. U. S., 166 U. S. 571, 17 S. Ct. 682, 41 L. Ed. 1119, and the eases therein cited. While the authorities are in conflict as to whether a judgment against the principal debtor is conclusive or-merely evidentiary, or inadmissible in evidence as against the surety, (see annotation in 40 L. R. A. [N. S.] 698, 723 et seq., 734), I am of course bound, by the decision in the Moses Gase. It is unnecessary, therefore, to consider the other cases on this point. The allegations, however, in Benenson’s affidavit (see especially page 10) are to be weighed as against this prima facie proof, even if the allowance of the claim -be considered a judgment. This in itself would suffice to defeat the motion. But the interesting legal question remains whether the doctrine in the Moses Case is to be extended to allowance of claim in bankruptcy. In other words, is such an allowance equivalent to a judgment against the bankrupt? As is clearly pointed out in Gratiot County State Bank v. Johnson, 249 U. S. 246, 39 S. Ct. 263, 63 L. Ed. 587, the proceedings in bankruptcy are in their nature in rem, so that an adjudication of bankruptcy, while binding as such, is not admissible, except to establish the fact and date of adjudication, in an action by the trustee against an alleged preferred creditor to reeoyer the preference, and that despite the fact that the alleged preference is the very basis of the adjudication in bankruptcy. The reason is that the alleged preferred creditor, although having a right to be made a party and to contest the adjudication, is not by reason of the allegations in the petition a party to the proceedings, so as to make the findings of - the court either evidentiary or conclusive as against him in subsequent proceedings against him in personam. I adhere to the views expressed by me in Re Continental" }, { "docid": "9796686", "title": "", "text": "TUTTLE, District Judge. This is a plenary action, brought by the trustee of the estate of the Cutting Motor Car Company, bankrupt, against the People’s National Bank, one of the creditors of said bankrupt, to recover, under section 60b of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 562 [Comp. St § 9644]), an alleged voidable preference received by it from the bankrupt within four months prior to the filing of the petition in bankruptcy. By stipulation between the parties hereto a jury has been waived and the cause submitted to the court upon the files, records, and proceedings in the bankruptcy matter. After the Cutting Motor Car Company had been adjudicated a bankrupt by this court in the bankruptcy proceedings referred to, the defendant in the present case filed a claim against the bankrupt estate for a balance alleged by it to be due from the bankrupt on certain promissory notes. The trustee filed objections to the allowance of such claim on the ground that the claimant had received from the bankrupt the voidable preference to recover which the present action was after-wards brought. After the taking of testimony at a hearing before him, in which the trustee and the claimant participated, the referee in bankruptcy made and entered an order sustaining the objections of the trustee,- disallowing the claim unless the claimant should, within a period of time fixed in such order, surrender to the trustee the amount of the preference found to have been received by it, $6,277.89, and directing the trustee, in the event that the amount of such preference substantially exceeded the dividend payable to unsecured creditors, to consider the advisability of bringing suit against the claimant for the recovery of the preference so received. The claimant filed a petition for the review of such order, alleging that the referee erred in finding that it had received a voidable preference. Thereafter the trustee com menced the present action. Subsequently, the appeal from the order of che referee was dismissed by consent of the claimant, the defendant in this action. The question involved" }, { "docid": "7978543", "title": "", "text": "Engine Co., 234 F. 58 (7th C. C. A.), in accordance with Judge San-born’s dissenting opinion in Ayres v. Cone (C. C. A.) 138 F. 778, that an adjudication based upon the validity of the claim of the petitioning creditor, at first contested, and subsequently consented to by the bankrupt and one creditor, cannot estop the trustee or any other creditor from thereafter denying the validity of such claim, even though the adjudication of bankruptcy itself is binding in rem. A claim filed against an estate in bankruptcy is in no sense a claim in personam against the bankrupt. It is in the nature of a petition to share in a fund held by the court for distribution. The allowance of the claim is a determination of the right to share in that fund for the amount allowed, but it is in no sense a determination that the bankrupt is personally liable for that amount. It may well be that, if the bankrupt or a creditor participates in a contest of the claim, the findings of the court basic to the allowance will be findings of fact binding thereafter as between the contesting parties. But if the bankrupt in no manner participates in the proceedings despite a right so to do, if as in this case the allowance-' is made solely by the action of the trustee, its effect should be limited to proceedings thereafter brought by or against the trustee. For or against him such allowance or disallowance has been held to be res adjudícala. McCullough v. Davenport Sav. Bank (D. C.) 226 F. 309; Adcock v. New Crystal Ice Co., 144 Tenn. 512, 234 S. W. 336; Clendening v. Red River Bank, 12 N. D. 51, 94 N. W. 901. The importance of this principle is well illustrated in the ease decided by me many years ago in the circuit court of Cook county, Illinois, and affirmed by the Supreme Court of Illinois. Hynes v. Illinois Trust & Savings Bank, 126 Ill. App. 409; Id., 226 Ill. 95, 80 N. E. 753, 10 L. R. A. (N. S.)" }, { "docid": "2007169", "title": "", "text": "filed February 6, 1903. Brown, the bankrupt, had leased a building of one Watson on a long term, and was obligated to pay him $6,900 in monthly installments. The adjudication in bankruptcy was made on April 2, 1903. On March 2, 1903, Brown made a written agreement with Watson whereby he surrendered the building and acknowledged himself indebted to Watson in the sum of $2,300 on the lease. After the adjudication, Watson proved his claim for this .$2,300 and the written agreement. But the written confession of the bankrupt was unavailing to estop the other creditors or to sustain the claim, and it was disallowed. The logical and necessary results of the theory that creditors of the bankrupt are bound by estoppels against him which arise after the filing of the petition are so far-reaching, so fraught with danger to rights of creditors and of property, so inconsistent with the express provisions of the bankruptcy act, and so violative of the familiar and indispensable rule that suits and judgments estop only those who either voluntarily become or are involuntarily made parties to them, that it fails to commend itself to my reason or judgment. In my opinion, it disregards the law and the-facts which condition and govern all the rights of the parties, the facts that upon the filing of the petition in bankruptcy the property of the bankrupt becomes the property of his creditors and passes into the custody of the court for their benefit, that from that hour the bankrupt is divested of the power either by deed or'act, by admission or by estoppel, to apply it to the payment of the claim of any creditor in preference to those of others, to dispose of it in any other way than as provided by the bankruptcy act, to deprive any creditor of the right granted to him by that law to contest upon its merits the claim of any other creditor to share in the estate at the place, at the time, and before the tribunal specifically designated to determine that issue, and to do any other act" }, { "docid": "2007156", "title": "", "text": "time or place. Petitioning creditors, like all others, are required to prove and secure an allowance of their claims in the face of the objections of other creditors, notwithstanding the adjudication of bankruptcy in their favor. The litigation upon their petition is not the time nor the place prescribed by the law for the trial of the question whether or not, or to what extent, their claims may share in the distribution of the estate of the bankrupt. The logical and inevitable conclusion from these considerations appears to me to be that, when the validity and extent of a petitioning creditor’s claim is determined in the litigation upon the petition which results in the adjudication of bankruptcy, the bankrupt and those creditors, and those only who either voluntarily or involuntarily .become parties to that litigation, are estopped by the determination there of the petitioner’s claim, while all other creditors and the trustee who represents1 them, when the petitioning creditor’s claim to' share in the estate is subsequently presented to the referee or the court for allowance, are free to contest it upon its merits as it stood at the time of the filing of the petition in bankruptcy, regardless of the subsequent adjudication. Nor is this conclusion without authority to support it. The only direct decision upon the question sustains it. That is the decision of Judge De Haven in In re Henry Ulfelder Clothing Co. (D. C.) '.98 Red. 409, cited by the majority. There is an obiter dictum in the opinion in that case, which will be subsequently considered, to the effect that the bankrupt is the representative of all the creditors in a litigation upon a petition for an adjudication in bankruptc3, and that the determination of any material issue between the petitioning creditor and the bankrupt in that litigation estops all the creditors, whether they are parties to the proceeding or not. The decision in the case, however, repudiates this novel theory, and sustains the position that the determination of the validity and extent of claims in such a proceeding binds only those creditors who are" }, { "docid": "22961689", "title": "", "text": "objection to the exercise of the summary jurisdiction. If the law be otherwise, the filing by the creditor of a claim for a valid debt, due and owing, would constitute a surrender by the creditor of his right to have an adverse claim adjudicated in a plenary proceeding, agreeable to the processes in such a proceeding, in the venue which the statutes accord such creditor, and with a trial by jury in appropriate cases, even though the claim by the trustee of a voidable preference has no connection with the common claim of the creditor and constitutes no defense per se to such claim. It seems to me my view finds strong support in Daniel v Guaranty Trust Co., 285 U.S. 154, 52 S.Ct. 326, 76 L.Ed. 675. There, the Peters Trust Company of Omaha, Nebraska, was adjudicated a bankrupt. The Guaranty Trust Company undertook to recover from Daniel, the bankruptcy trustee, certain bonds which it alleged the bankrupt had fraudulently ordered and received and the title to which had not passed to the bankrupt. The trustee by counterclaim undertook to recover from the Guaranty Trust Company certain alleged moneys of the bankrupt, which he asserted had been paid to the Guaranty Trust Company after bankruptcy. It is true that the Guaranty Trust Co., in that case, sought a specific claim against property in the hands of the trustee, and not a general claim against the bankrupt estate, but the broad language used by the court, I think, is equally applicable in the instant case. At pages 161 and 162, of 285 U.S., at page 328 of 52 S.Ct., the court said: “ * * * The Circuit Court of Appeals upheld the objection offered to the jurisdiction of the referee and upon that ground reversed the Dis trict Court. [8 Cir.], 49 F.2d 866, 868. It said: “ ‘ * * * The petition of appellant for reclamation and the portion of the trustee’s answer which asked for affirmative relief were, in fact, petitions by the parties asking the referee to exercise his summary jurisdiction in proceedings in bankruptcy." }, { "docid": "7806343", "title": "", "text": "pro rata share in the assets of the bankrupt estate, to the-detriment of the other creditors. He must surrender his preference in its entirety, or forego the allowance of his claim. An exception has been recognized in certain cases, but only to the extent of crediting the dividend on his claim. It has been held where a creditor has been adjudged to surrender a preferential payment by a judgment of the bankruptcy court, which may be done when the creditor consents to a summary determination, and it is practical to ascertain the amount of the dividend to which the creditor will be entitled on his claim, the bankruptcy court may permit the creditor, if he is so advised, to prove his claim against the estate of the bankrupt, determine the amount of the dividend coming to the creditor, and by its final decree direct him to pay over the full amount of the preferential payment with interest, less the amount of his dividend. But in no case could the creditor have credited against the amount to be sur rendered as an unlawful preference more than the pro rata dividend he would be entitled to on his claim. For the same reasons the claim of the creditor and the counterclaims of the \"trustee here may not be treated as mutual debts and credits and one set off against \"the other under 11 U.S.C.A. § 108. My conclusion is that the claims here .asserted by the trustee for preferences Tiave none of the characteristics of a .-setoff. Moreover, it is my opinion that the trustee may not set up as a defense to a 'claim of a creditor an alleged, but not judicially established claim that the creditor had received or acquired an unlawful preference, which he had not sur-xendered, and have the alleged claim of •an unlawful preference adjudicated by the referee in a summary proceeding; and then set up in an action to recover the unlawful preference the adjudication with respect thereto in the summary proceeding as res judicata. I do not think the trustee should be permitted to have" }, { "docid": "4124172", "title": "", "text": "Brief’) at 8. According to Debtor, its claims in Counts II and III of the Adversary Complaint are “actually no more than additional forms of relief to which [it] will be entitled if it prevails in its objection to Pinnacle’s Proof of Claim.” Id. at 9. A In resolving the issue raised in this matter, namely whether by filing a proof of claim Pinnacle has submitted to the equitable jurisdiction of the bankruptcy court to decide counterclaims filed against it, certain seminal Supreme Court and Third Circuit cases inform my analysis. In Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), the Supreme Court held that a bankruptcy referee had summary jurisdiction to adjudicate a trustee’s assertion of a voidable preference against a creditor if it had filed a proof of claim against the estate. In so ruling, the Supreme Court held that by reason of § 57(g) of the Bankruptcy Act, the preference claim was part of the claims allowance process. It reasoned as follows: Unavoidably and by the very terms of the Act, when a bankruptcy trustee presents a § 57, sub. g objection to a claim, the claim can neither be allowed nor disallowed until the preference matter is adjudicated. The objection under § 57, sub. g is, like other objections, part and parcel of the allowance process and is subject to summary adjudication by a bankruptcy court. Id. at 330, 86 S.Ct. 467. Discussing the summary jurisdiction of the bankruptcy court and its effect on a creditor’s right to a jury trial on objections to claims, the Supreme Court stated: The Bankruptcy Act ... converts the creditor’s legal claim into an equitable claim to a pro rata share of the res, a share which can neither be determined nor allowed until the creditor disgorges the alleged voidable preference he has already received. As bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession, and as the proceedings of the bankruptcy court are inherently proceedings in equity, there is no Seventh Amendment right to" }, { "docid": "2007152", "title": "", "text": "not material whether or not the adjudication estopped the bankrupt, and for that reason it is conceded that on March 28, 1904, when Gentle was adjudged a bankrupt, 25 days after the filing of the petition in bankruptcy, the issue whether or not he was indebted to the appellees in the sum of $5,861 became res adjudicata between the petitioning creditors and the bankrupt. The estoppel of that adjudication, however, did not arise until that day, which was 25 days after the rights of all creditors in the estate had become fixed, and it did not bind any one who was not a party to the litigation of the issues which that judgment determined. Although the bankrupt was thus debarred from subsequently contesting the claim, the adjudication against him gave the owners of that claim no right to any share in his estate or to any dividend from its proceeds. Their right to that share and to that dividend was conditioned by the express terms of the bankruptcy act by a subsequent proof of their claim by a written statement under oath (section 57a) and by its allowance by the referee or by the court, and the trustee and other creditors were expressly granted the right to object to and to contest that allowance after the proof had been filed. (Sections 57c, 57k, 30 Stat. 560, 561 [U. S. Comp. St. 1901, pp. 3443, 3444]. Not only this, but the duty still rested upon the bankrupt to “examine the correctness of all proofs of claims filed against his estate” (section 7 [3], 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425]), and, “in case of any person having to his knowledge proved a false claim against his estate, disclose that fact immediately to his trustee” (section 7[7]), and the duty was imposed upon the trustee to defeat such a claim if possible. Chatfield v. O’Dwyer, 101 Fed. 797, 799, 42 C. C. A. 30, 32. Identity of parties is as essential to an estoppel by res adjudicata as identity of causes of action. Fowler v. Stebbins, 136 Fed. 365" }, { "docid": "7978544", "title": "", "text": "of the court basic to the allowance will be findings of fact binding thereafter as between the contesting parties. But if the bankrupt in no manner participates in the proceedings despite a right so to do, if as in this case the allowance-' is made solely by the action of the trustee, its effect should be limited to proceedings thereafter brought by or against the trustee. For or against him such allowance or disallowance has been held to be res adjudícala. McCullough v. Davenport Sav. Bank (D. C.) 226 F. 309; Adcock v. New Crystal Ice Co., 144 Tenn. 512, 234 S. W. 336; Clendening v. Red River Bank, 12 N. D. 51, 94 N. W. 901. The importance of this principle is well illustrated in the ease decided by me many years ago in the circuit court of Cook county, Illinois, and affirmed by the Supreme Court of Illinois. Hynes v. Illinois Trust & Savings Bank, 126 Ill. App. 409; Id., 226 Ill. 95, 80 N. E. 753, 10 L. R. A. (N. S.) 472, and the early English bankruptcy eases therein cited; Ex parte Deey, 2 Cox, Ch. C. 422; Ex parte Rogers, Buck’s Bankruptcy Rep. 490. In these bankruptcy cases the purchaser for value before maturity of negotiable paper, although having a perfectly good claim in personam against the bankrupt, was held subject to defenses whieh existed against the original payee at the date of the commission of the act of bankruptcy. In England the proceedings relate hack to that date. The participation in the fund in the bankruptcy court is determined as of that date. The holder of these notes at that date was subject to defenses. Therefore, as the courts held, a subsequent holder of the note could get no better rigfit in and to the funds than the holder at that date had, even though as a bona fide purchaser he could get a clear right against the bankrupt in personam, and thus be enabled to recover if the bankrupt were not discharged in bankruptcy and if thereafter he came into funds. The Hynes" }, { "docid": "7978542", "title": "", "text": "In other words, is such an allowance equivalent to a judgment against the bankrupt? As is clearly pointed out in Gratiot County State Bank v. Johnson, 249 U. S. 246, 39 S. Ct. 263, 63 L. Ed. 587, the proceedings in bankruptcy are in their nature in rem, so that an adjudication of bankruptcy, while binding as such, is not admissible, except to establish the fact and date of adjudication, in an action by the trustee against an alleged preferred creditor to reeoyer the preference, and that despite the fact that the alleged preference is the very basis of the adjudication in bankruptcy. The reason is that the alleged preferred creditor, although having a right to be made a party and to contest the adjudication, is not by reason of the allegations in the petition a party to the proceedings, so as to make the findings of - the court either evidentiary or conclusive as against him in subsequent proceedings against him in personam. I adhere to the views expressed by me in Re Continental Engine Co., 234 F. 58 (7th C. C. A.), in accordance with Judge San-born’s dissenting opinion in Ayres v. Cone (C. C. A.) 138 F. 778, that an adjudication based upon the validity of the claim of the petitioning creditor, at first contested, and subsequently consented to by the bankrupt and one creditor, cannot estop the trustee or any other creditor from thereafter denying the validity of such claim, even though the adjudication of bankruptcy itself is binding in rem. A claim filed against an estate in bankruptcy is in no sense a claim in personam against the bankrupt. It is in the nature of a petition to share in a fund held by the court for distribution. The allowance of the claim is a determination of the right to share in that fund for the amount allowed, but it is in no sense a determination that the bankrupt is personally liable for that amount. It may well be that, if the bankrupt or a creditor participates in a contest of the claim, the findings" } ]

[ { "docid": "7959221", "title": "", "text": "Problems Persist and Major Performance Improvements May Be Difficult, 3 (2005); U.S. Gen. Accountability Office, GAO-07-5 62T, Processing of Claims Continues to Present Challenges 3 (2007). . See Veterans’ Benefits Improvement Act of 2008, Pub.L. 110-389, 122 Stat. 4145 (Oct. 10, 2008). . In reaching this conclusion we relied on the Federal Circuit’s opinion in Hanlin v. United States, 214 F.3d 1319 (Fed.Cir.2000). . In response to questions raised at oral argument, plaintiffs submitted a Rule 28(j) letter in which they contended that the CAVC's authority to compel unreasonably delayed VA action would not be an adequate alternative remedy even for claims brought by individual veterans. Plaintiffs argue that because the CAVC only has jurisdiction of final decisions by the Board of Veterans’ Appeals, the CAVC is powerless to order the VA to act when the veteran is still waiting for a decision. But the CAVC has power to issue writs of mandamus compelling VA officials to take action that has been unreasonably delayed even if there has been no final decision by the Board. See, e.g., Erspamer v. Derwinski, 1 Vet.App. 3, 6-9 (Ct. Vet.App.1990). And it can hardly be contended that the CAVC's power to compel delayed action through mandamus is an inadequate alternative to a district court’s power to com pel delayed agency action under the APA — the standards for obtaining relief are essentially the same. See In re Core Communications Inc., 531 F.3d 849, 855 (D.C.Cir.2008) (\"The central question in evaluating a claim of unreasonable delay [under the APA] is whether the agency's delay is so egregious as to warrant mandamus.'') (quotation omitted). . Nor do we think Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) requires that the district court remain open to the constitutional claim. In that case, a former CIA employee alleged that he was fired because he was a homosexual and that this violated the Administrative Procedure Act and the Constitution. The Supreme Court held that although he could not obtain judicial review under the APA because such decisions were committed to the agency’s discretion by" } ]

[ { "docid": "19187747", "title": "", "text": "the law clearly requires the Secretary to “take such actions as may be necessary to provide for expeditious treatment” of claims that are remanded by this Court. 38 U.S.C. §§ 5109B, 7112. As a result, there is a rule or order that is clear and unambigu ous as required by the first element. See Pousson, supra. B. Clear and Convincing Proof of Noncompliance In regard to the second element, the Court first acknowledges the Secretary’s argument that this element cannot be met because the July 14, 2010, letter from the LARO accomplished the task set by the Court’s June 2008 remand. Secretary’s Response to the Court’s September 10, 2010, Order at 4. However, this argument fails to take into account the Secretary’s statutory obligation to expeditiously process remands from this Court. Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. As stated earlier, the Court’s contempt power is meant to maintain the Court’s authority and dignity. See Cooke, supra. Such authority and dignity cannot be maintained where the Secretary flagrantly fails, by either inattention or design, to comply with an order from this Court and further fails in his responsibility to expedite the processing of a Court-ordered remand. Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court’s dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits. See Erspamer v. Derwinski, 1 Vet.App. 3 (1990) (discussing delay in administrative action and public confidence). Furthermore, the Secretary’s obligation to process Court remands expeditiously is integral to this Court’s jurisdictional authority to remedy unreasonable delays in the processing of veterans’ claims. See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659-660 (D.C.Cir.2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet.App. 552, 557" }, { "docid": "22896334", "title": "", "text": "Secretary, acting through the BVA, “shall decide all questions of law and fact necessary to a decision by the secretary under a law that affects the provisions of benefits.” § 511(a). Plaintiffs asked the district court to review the legality and constitutionality of the procedures that the VA uses to decide benefits claims. Such a challenge raises questions of law and fact regarding the appropriate methods for the adjudication of veterans’ claims for benefits. Determining the proper procedures for claim adjudication is a necessary precursor to deciding veterans benefits claims. Under § 511(a), the VA Secretary shall decide this type of question. Subject only to four exceptions, VJRA precludes judicial review of the Secretary’s decisions. The fourth exception, “matters covered by chapter 72,” is relevant to the case at hand. Chapter 72 of the VJRA established the CVA, created its judicial review procedures, and defined its jurisdiction. Under § 7252(a), the CVA has exclusive jurisdiction over appeals from final decisions by the BVA. 38 U.S.C. § 7252(a). Plaintiffs in this ease allege that VA procedures cause unreasonable delays in benefits decisions. To adjudicate this claim, the District Court would need to review individual claims for veterans benefits, the manner in which they were processed, and the decisions rendered by the regional office of the VA and the BVA. This type of review falls within the exclusive jurisdiction of the CVA as defined by § 7252(a). As discussed above, the CVA also has equitable powers to aid its exercise of jurisdiction. It can “compel action of the Secretary unlawfully withheld or unreasonably delayed,” under § 7261(a)(2), and can issue extraordinary writs pursuant to the All Writs Act, 28 U.S.C. § 1651(a). Thus along with conferring the CVA with exclusive jurisdiction to review decisions of the BVA, Congress provided it with the power to remedy claims that decisions have been unreasonably or unlawfully delayed. At least one district court has also recognized that the CVA has exclusive jurisdiction over claims alleging administrative delays by the VA. In Helfgott v. United States, 891 F.Supp. 327 (S.D.Miss.1994), the United States District Court for the" }, { "docid": "22896329", "title": "", "text": "to issue a writ, the CVA acknowledged and described its capacity to review constitutional challenges: Claims come to this Court on appeal from determinations of the BVA for the VA Secretary ... under laws pertaining to the provision of benefits by the VA Secretary. Therefore, constitutional challenges will ordinarily be presented to this Court only in the context of a proper and timely appeal taken from such decision made by the VA Secretary through the BVA. Although this Court also has authority to reach constitutional issues in considering extraordinary writs under 28 U.S.C. § 1651(a), the Court may ... exercise such authority only when the claimant has demonstrated that he or she has no adequate alternative means of obtaining the relief sought and is clearly and indisputably entitled to such relief. 4 Vet.App. at 119. Within this system, the BVA has the initial responsibility to hear and decide plaintiffs’ claims, including the constitutional issues that they raise. When the BVA issues a final decision, it may be appealed to the CVA. If the BVA unreasonably delays consideration of plaintiffs’ claims, the CVA has equitable power under § 7621(a)(2) to compel the VA to issue a final decision, or could itself “reach constitutional issues in considering petitions for relief under 28 U.S.C. § 1651(a).” 4 Vet.App. at 119. Beyond that, the Federal Circuit has jurisdiction over review of constitutional issues decided by the CVA. See 38 U.S.C. § 7292(d)(1); see also Albun v. Brown, 9 F.3d 1528, 1530 (Fed.Cir.1993) (recognizing that jurisdiction of the Court of Appeals for the Federal Circuit includes appeals that raise constitutional issues); Machado v. Derwinski, 928 F.2d 389, 391 (Fed.Cir.1991) (deciding that BVA did not deny veteran his constitutional rights to due process by failing to notify him of his right to appeal). There is no reason why this system cannot adjudicate plaintiffs’ challenges to the procedures used by the VA along with plaintiffs’ claims for individual benefits. It is true that the VJRA system does not allow the CVA to review veterans’ claims asserted as class actions. Lefkowitz v. Derwinski, 1 Vet.App. 439, 440 (1991)." }, { "docid": "19187749", "title": "", "text": "(2007) (“With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review. A decision of the Board can only be appealed to a single venue— this Court.” (citing 38 U.S.C. § 7252(a))). As a result, this Court’s dignity requires that the Secretary’s duty to expedite not be viewed simply as one more procedural requirement levied by Congress, but rather, as an inherent part of this Court’s remand power, meriting suitable urgency and attention from the Secretary. Therefore, the Court holds that failure by the Secretary to comply with his obligation to process Court remands expeditiously, under unique circumstances similar to those of this case, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order. In this case, the Secretary’s processing of the petitioner’s remanded claim cannot be characterized as expeditious. An expeditious manner is characterized by promptness and is synonymous with swift, speedy, fast, and rapid. Random House Dictionary of The English Language 680 (2d ed.1987). Here, it took the Secretary 666 days to comply with the Court’s June 2008 remand order. The Court recognizes that the determination of whether the Secretary has expeditiously complied with a remand order cannot be made in a vacuum and therefore is not attempting to establish a bright-line rule. Rather, the Court appreciates that compensation claims are not monolithic and some cases, because of their complexity, may require greater efforts by the Secretary. Thus it must be clearly understood by those representing claimants (as well as claimants themselves) that the Court will not blindly issue writs or sanctions where delay is the result of an overburdened system, rather than a disregard for the importance of compliance with a Court order. It should also be noted that the Court will carefully consider whether action must be taken under Rule 38 of the Court’s Rules of Practice and Procedure, should it determine that petitions are routinely filed as a means of encouraging VA to place claims at the front of the line. See Costanza v. West, 12" }, { "docid": "3169446", "title": "", "text": "it to “compel action of the Secretary unlawfully withheld or unreasonably delayed.” In short, Howard contends that the court’s decision leaves him in “appellate limbo” without Board adjudication of his CUE claim and without appellate remedy from the court to compel the Board to address that claim. The Secretary responds that the Court of Appeals for Veterans Claims properly dismissed Howard’s appeal under a correct interpretation of section 7252(a). The Secretary indicates that this court has interpreted section 7252(a) to confer jurisdiction on the Court of Appeals for Veterans Claims over final Board decisions, and because there was no final Board decision with respect to Howard’s CUE claim, the court had no jurisdiction t'o consider it.The Secretary further contends that the court did not incorporate an exhaustion requirement into section 7252(a), but merely discussed Howard’s failure to comply with that requirement in rejecting what it perceived as Howard’s request for mandamus relief. Lastly, the Secretary asserts that Howard’s remaining contentions, such as whether he did in fact exhaust his administrative remedies, constitute application of law to fact, which are beyond this court’s jurisdiction. We agree with the Secretary that the Court of Appeals for Veterans Claims correctly dismissed Howard’s appeal under a proper interpretation of section 7252. Section 7252 provides in relevant part as follows: § 7252. Jurisdiction; finality of decisions (a) The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals. The Secretary may not seek review of any such decision. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate. 38 U.S.C. § 7252(a) (Supp. IV 1998). As we explained in Ledford, the Court of Appeals for Veterans Claims’ jurisdiction “is premised on and defined by the - Board’s decision concerning the matter being appealed,” and when the Board has not rendered a decision on a particular issue, the court has no jurisdiction to consider it under section 7252(a). See Ledford, 136 F.3d at 779. As we noted supra, from a procedural standpoint, it is unclear" }, { "docid": "9736041", "title": "", "text": "ORDER PER CURIAM. In May 1994 this Court granted the parties’ joint motion for remand of the March 25, 1993, Board of Veterans’ Appeals (BVA) decision, vacated the decision, and remanded the matter for compliance with the motion for remand. From June 1994 to September 1996 VA requested records from various sources outside of its control. On September 13, 1996, the veteran filed a petition for extraordinary relief in the nature of mandamus contending that VA had taken more than two and a half years after remand to formulate a decision which still had not been rendered. On October 21, 1996, the Secretary filed his answer to the veteran’s petition, asserting that the two-and-a-half-year delay in adjudicating the veteran’s claim was not unreasonable and was beyond the control of the BVA or regional office (RO). On November 12,1996, the Court ordered the parties to submit memoranda addressing the options available to the Court and to the parties in resolving the issue raised in the petition. In December 1996 the Secretary and the veteran submitted their memoranda. Attached to the Secretary’s memorandum was a Supplemental Statement of the Case (SSOC) which recounted that the veteran’s claims had been readjudicated and denied. Section 302 of the Veterans’ Benefits Improvements Act of 1994 (VBIA) requires the Secretary of Veterans Affairs to take any necessary action to provide for the expeditious treatment, by the BVA and the ROs, of any claim that has been remanded by the BVA or by this Court for additional development or other appropriate action. Pub.L. 103-446 § 302, 108 Stat. 4645, 4658 (1994). The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). This Court has jurisdiction under the All Writs Act. Herrmann v. Brown, 8 Vet.App. 60 (1995); Bullock v. Brown, 7 Vet.App. 69 (1994); Nagler v. Derwinski, 1 Vet.App. 297 (1991); Mokal v. Derwinski, 1 Vet.App. 12 (1990); Erspamer v. Derwinski, 1 Vet.App. 3 (1990). However, “circumstances that" }, { "docid": "22216143", "title": "", "text": "consider the merits of petitioner’s argument with respect to the underlying case because petitioner has not exhausted available administrative remedies. As a preliminary matter, we note that the Court has authority to issue writs in aid of its jurisdiction. Erspamer v. Derwinski, 1 Vet.App. 3 (1990); In re Quigley, 1 Vet.App. 1 (1990); 28 U.S.C. § 1651 (1982). The Court has liberally construed petitioner’s pleadings as requests for All Writs relief. Given the authority to entertain requests for All Writs relief, we must determine whether the petitioner’s daughter has authority to file a petition on behalf of her father. The rather bare contention that Mrs. Marlow lacks authority to press her father’s claim in this Court fails when viewed against the purpose for creating the Court. Congress, in providing for judicial review of veterans’ claims, conferred on the Court “exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals,” 38 U.S.C.A. § 4052 (West Supp.1989), and provided that “a person adversely affected by [a final decision of the Board may] file a notice of appeal with the Court,” 38 U.S.C.A. § 4066 (West Supp.1989). These enactments do not differentiate between the review of claims brought directly by a claimant and those brought through a custodian. Since Congress was aware that custodial representation of claimants was an established practice in veterans benefits matters, we see no reason to succumb to the Secretary’s invitation to impede access of incompetents represented by recognized guardians to the Court. Indeed, to do so without some rational basis — not suggested by the Secretary — would be questionable as a due process denial, and would deny a disadvantaged class of claimants access to review in this Court. We hold that the recognized fiduciary relationship between a claimant before the DVA and a custodian — whether created under state law or by the Secretary — is sufficient to empower that custodian to pursue remedies before this Court. We turn to the substantive issues of the petition. The Secretary argues that the controversy underlying the petition for a writ of mandamus is moot. He notes that Article" }, { "docid": "14703122", "title": "", "text": "policy of deferral of adjudications and that Congress clearly expressed disapproval of delay in adjudicating the claims of veterans in another analogous context in section 302 of the VBIA, which required the Secretary to provide for “expeditious treatment” for claims remanded by BVA or the Court. Id. at 509. It was therefore noted that it was “perhaps, of considerable significance that the Secretary ha[d] not advised the Court how many new claims have been or continue to be filed under the 1997 CUE Act.” The Court stated: [Tjhere could be thousands of such claims, and therein lies the seed of a problem of potentially great magnitude. Simply put, the longer it takes to promulgate regulations, the greater the number of claims and the greater the impact on already-existing backlogs at the BYA, the office of the counsel for the Secretary, and the Court. Id. The Court admonished that “a lack of urgency [or] an inexcusable delay in promulgating such rules[ ] could adversely impact not only those veterans who filed claims under the 1997 CUE Act, but all veteran-claimants” and clarified that “[i]n short, such factors must be considered in this Court’s determinations as to whether there has been ‘action of the Secretary unlawfully withheld or unreasonably delayed’,” 38 U.S.C. § 7261(a)(2), and if “the ultimate answer is in the affirmative, a writ of mandamus will have to issue.” Lane II, 11 Vet.App. at 509. The Court directed the Secretary to file a supplemental response to the petition that included the number of claims filed under the 1997 CUE Act, the current status of the rule-making process, the steps available to or already taken to expedite the rulemaking-process, and the anticipated date from which the appellant will no longer have to wait to have his claim adjudicated. Id. Accordingly, the factors that the Court considered important in determining whether to issue a writ in that case were (1) the number of cases affected by the Secretary’s deferral of action and (2) the timeframe involved for the promulgation of final regulations. The Court issued its order in Lane II in October" }, { "docid": "22896335", "title": "", "text": "cause unreasonable delays in benefits decisions. To adjudicate this claim, the District Court would need to review individual claims for veterans benefits, the manner in which they were processed, and the decisions rendered by the regional office of the VA and the BVA. This type of review falls within the exclusive jurisdiction of the CVA as defined by § 7252(a). As discussed above, the CVA also has equitable powers to aid its exercise of jurisdiction. It can “compel action of the Secretary unlawfully withheld or unreasonably delayed,” under § 7261(a)(2), and can issue extraordinary writs pursuant to the All Writs Act, 28 U.S.C. § 1651(a). Thus along with conferring the CVA with exclusive jurisdiction to review decisions of the BVA, Congress provided it with the power to remedy claims that decisions have been unreasonably or unlawfully delayed. At least one district court has also recognized that the CVA has exclusive jurisdiction over claims alleging administrative delays by the VA. In Helfgott v. United States, 891 F.Supp. 327 (S.D.Miss.1994), the United States District Court for the Southern District of Mississippi decided that it lacked jurisdiction over a veteran’s challenge to a VA decision to suspend issuance of all benefits until the validity of a particular regulation had been decided. The court determined that Congress had removed its jurisdiction over a challenge seeking to compel the VA to issue a benefit decision: By lodging review of agency action, including ‘action of the Secretary unlawfully withheld or unreasonably delayed,’ (§ 7261(a)(2)) in the CVA, Congress has manifested a clear intent that the CVA exercise sole jurisdiction over review of all benefits determinations, including actions seeking to compel the VA to make a decision. Id. 891 F.Supp. at 330. In addition, Congress explicitly granted the Court of Appeals for the Federal Circuit the “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). In 38 U.S.C. § 7292(d)(1), Congress reemphasized that" }, { "docid": "22896323", "title": "", "text": "established a multi-tiered framework for the adjudication of claims regarding veterans benefits. The process begins when a claimant files for benefits with a regional office of the Department of Veterans Affairs. The regional office of the VA “shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.” 38 U.S.C. § 511(a). Upon receiving a decision from the regional office, the claimant may appeal to the BVA, which either issues the final decision of the Secretary or remands the claim to the regional office for further development and subsequent appeal. See 38 U.S.C. § 7104. The Court of Veterans Appeals (“CVA”), an Article I court established by Congress in the VJRA, has exclusive jurisdiction over appeals from the final decisions by the BVA. 38 U.S.C. § 7252(a). The Court of Appeals for the Federal Circuit has exclusive appellate jurisdiction over decisions of the CVA. 38 U.S.C. § 7292. If necessary, a claimant may petition the United States Supreme Court to review the decision of the Court of Appeals for the Federal Circuit. See 38 U.S.C. § 7291. The District Court concluded that this system of judicial review provides plaintiffs with an alternate adequate remedy. The court specifically found that Congress gave the CVA two sources of power with which it can remedy claims of unreasonable administrative delay or inaction. First, the All Writs Act empowers “[t]he Supreme Court and all courts established by Act of Congress to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Second, Congress specifically empowered the CVA to “compel action of the Secretary unlawfully withheld or unreasonably delayed.” 38 U.S.C. § 7261(a)(2). With either of these powers, the Court concluded, “the CVA has power ... to remedy adequately the unreasonable delay alleged by the plaintiffs.” Joint Appendix at 37. Because the court found that the CVA provided plaintiffs with an adequate alternative remedy, it concluded that plaintiffs’ claims fell within §" }, { "docid": "1118484", "title": "", "text": "service records. Because paragraph 5.11 is not a valid provision, the VA could not rely solely upon the DNA’s certification that there was no evidence that the veteran had participated in a radiation-risk activity. Accordingly, the VA had a duty to pursue other possible sources of evidence in fulfillment of its duty to assist the appellant to develop her well-grounded claim. 38 U.S.C. § 5107; Littke v. Derwinski, 1 Vet.App. 90 (1990); 38 C.F.R. § 3.159 (1993); 38 C.F.R. § 3.303(a). However, the VA did not indicate that it had pursued any other sources of evidence, such as temporary duty orders directing the veteran to Nagasaki, and the record does not show the extent to which the DNA pursued any other records. Therefore, the Court cannot determine whether the Secretary’s duty to assist has been carried out. See Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991) (“Inherent in the duty-to-assist obligation and the Gilbert [v. Derwinski, 1 Vet.App. 49, 56-57 (1990) ] explanation mandate is a requirement for the Secretary to respond to a claimant’s request for VA assistance one way or the other.”). Furthermore, the VA did not assess the credibility of her testimony that the veteran had served in Nagasaki or address the application of the benefit of the doubt to her case. On remand, the VA will assist the appellant to develop her claim that her husband served in a Nagasaki hospital, and the Board will have an opportunity to assess the credibility of her testimony to that effect, and apply the benefit of the doubt if it finds the evidence to be in relative equipoise. See Cartright, 2 Vet.App. at 25-26; Gilbert, 1 Vet.App. at 53-56. III. Conclusion Upon consideration of the record, the appellant’s brief and reply brief, and the Secretary’s brief, the Court holds that para. 5.11c(3)(a)-(b) of the M21-1 Manual Part III was adopted “without observance of procedure required by law” and is therefore “unlawful and set aside.” 38 U.S.C. § 7261(a)(3)(D). Consequently, the May 4, 1992, decision of the Board of Veterans’ Appeals is VACATED and REMANDED for further development and readjudication" }, { "docid": "19187748", "title": "", "text": "supra. Such authority and dignity cannot be maintained where the Secretary flagrantly fails, by either inattention or design, to comply with an order from this Court and further fails in his responsibility to expedite the processing of a Court-ordered remand. Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court’s dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits. See Erspamer v. Derwinski, 1 Vet.App. 3 (1990) (discussing delay in administrative action and public confidence). Furthermore, the Secretary’s obligation to process Court remands expeditiously is integral to this Court’s jurisdictional authority to remedy unreasonable delays in the processing of veterans’ claims. See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659-660 (D.C.Cir.2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet.App. 552, 557 (2007) (“With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review. A decision of the Board can only be appealed to a single venue— this Court.” (citing 38 U.S.C. § 7252(a))). As a result, this Court’s dignity requires that the Secretary’s duty to expedite not be viewed simply as one more procedural requirement levied by Congress, but rather, as an inherent part of this Court’s remand power, meriting suitable urgency and attention from the Secretary. Therefore, the Court holds that failure by the Secretary to comply with his obligation to process Court remands expeditiously, under unique circumstances similar to those of this case, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order. In this case, the Secretary’s processing of the petitioner’s remanded claim cannot be characterized as expeditious. An expeditious manner is characterized by promptness and is synonymous with swift, speedy, fast, and rapid. Random House Dictionary of The English Language 680 (2d ed.1987)." }, { "docid": "23119369", "title": "", "text": "as those agencies of the VA responsible for evaluations, examinations, and medical opinions are not under the Board as part of a vertical chain of command which would subject them to the direct mandates of the Board. It is the Secretary who is responsible for the “proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department.” 38 U.S.C. § 303. Moreover, the Secretary is by statute both the one to whom a veteran may appeal an initial denial as a matter of right (38 U.S.C. § 7104(a)), and a party, represented by the General Counsel, to every appeal before this Court (38 U.S.C. § 7263(a)). Finally, we hold also that where, as here, the remand orders of the Board or this Court are not complied with, the Board itself errs in failing to insure compliance. While it is true that where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial (see 38 U.S.C. § 7261(b)) (“Court shall take due account of the rule of prejudicial error”), the Court cannot say, based on the record before it, that the appellant here has not been harmed. The Court takes this opportunity to remind the Secretary that the holdings of this decision are precedent to be followed in all cases presently in remand status. See Tobler v. Derwinski, 2 Vet.App. 8 (1991). III. CONCLUSION Under the authority and the obligation (“shall”) of the Court to “compel action of the Secretary unlawfully withheld or unreasonable delayed” (38 U.S.C. § 7261(a)(2)), the Board’s January 8, 1997, decision is VACATED and the matter REMANDED with a direction that the Secretary promptly comply with the previous and present remands of this Court and the Board consistent with the requirement for expedited proceedings. See § 302 of the Veterans Benefits Improvement Act of 1994, Pub.L. No. 103-446, 108 Stat. 4645, 4648 (1994) (found at 38 U.S.C. § 5101 note). On remand, the appellant will be free to submit additional evidence and argument, and the Board must seek any" }, { "docid": "19187751", "title": "", "text": "Vet.App. 133, 134 (1999) (per curiam order); U.S. Vet.App. R. 38 (“If the Court determines that an appeal, petition, motion, or other filing is frivolous, it may enter such order as it deems appropriate.”); see also Edwards v. Nicholson, 21 Vet.App. 265 (2007) (holding that a veteran’s repeated filing of frivolous pleadings warranted the sanction of precluding veteran from filing any further pleading with the Court except for certain limited circumstances). The record in this case, however, clearly demonstrates that the delay in the processing of the petitioner’s remanded claim was not the result of an overburdened system. The Court’s June 2008 remand order is simple, clear, and direct. It did not call for any additional development or evidence collection. Rather, under the order, VA was only required to calculate the appellant’s compensation based on the newly assigned election date. Harvey, 2008 WL 2367190 at *5. Had the Secretary’s staff diligently reviewed the claims file, they would have discovered that the file contained the August 2000 letter, which disposed of the petitioner’s compensation claim nearly eight years prior to the Court’s remand order. Thus, given that the Secretary already possessed all of the information necessary to calculate the appropriate rate of compensation in August 2000, when the petitioner received a $14,074.00 retroactive payment, there is simply no defensible reason that the Court’s order, requiring a simple calculation that had already been determined, required 666 days to process. More importantly, putting aside the actual number of days it took for the Secretary to comply with the Court’s order, the manner in which the petitioner’s remand was handled does not demonstrate an expedited process. From the point of mandate until the issuance of the July 14, 2010, LARO determination, more than twelve of the Secretary’s personnel handled the processing of the petitioner’s remand. Yet, out of that number, only four individuals were actually involved in calculating the compensation rate sought by the Court’s remand order. The remainder of the Secretary’s staff transferred the petitioner’s claims file back and forth between different units within VA, consuming months of time \"without getting the petitioner’s" }, { "docid": "22637354", "title": "", "text": "HOLDAWAY, Associate Judge: These cases have been consolidated by the Court to consider whether the Court has jurisdiction to review decisions by the Board of Veterans’ Appeals (BVA or Board) on the issue of whether there was “clear and unmistakable error” requiring revision, pursuant to 38 C.F.R. § 3.105(a) (1991), of prior adjudications of either an agency of original jurisdiction (AOJ) or the BVA over which the Court does not otherwise have jurisdiction. We hold that 38 C.F.R. § 3.105(a), which authorizes the BVA or a Department of Veterans Affairs (VA) Regional Office (RO) to revise previous decisions where there was “clear and unmistakable error,” is a valid regulation. We further hold that this Court may review BVA decisions as to “clear and unmistakable error.” I. GENERAL ANALYSIS The substantive and procedural aspects of the VA claims adjudication process, for the most part, are defined by specific statutes. This is particularly true regarding claims which have been previously and finally denied and, due to the absence of an appeal, are “final” as a matter of law. If the recipient of a final adverse decision submits new and material evidence to the RO, the Secretary of Veterans Affairs (Secretary) must reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (formerly § 3008). See also Manio v. Derwinski, 1 Vet.App. 140, 145 (1991) (“BVA must perform a two-step analysis when a veteran seeks to reopen a claim based upon new and material evidence.”); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (definition of new and material evidence). If the adverse decision resulted from an administrative error by a VA employee, the claimant may seek relief of an equitable nature directly from the Secretary. 38 U.S.C. § 503 (formerly § 210(c)(2)). However, this Court may review only decisions of the Board; we have no jurisdiction to review Secretarial consideration of equitable relief under 38 U.S.C. § 503. See 38 U.S.C. § 7252 (formerly § 4052); Darrow v. Derwinski, 2 Vet.App. 303, 306 (1992) (“there is neither a statutory nor a regulatory provision for appellate review by the" }, { "docid": "19187739", "title": "", "text": "ORDER PER CURIAM: The matter currently before the Court has its genesis in the Secretary’s failure to expeditiously handle a remand order as required by 38 U.S.C. §§ 5109B and 7112. In June 2008, the Court issued a decision concerning the petitioner’s appeal of a February 8, 2006, Board of Veterans’ Appeals (Board) decision that denied him an effective date earlier than April 1, 2000, for the payment of compensation benefits in lieu of military retirement pay. Harvey v. Peake, No. 06-0631, 2008 WL 2367190 (Vet.App. June 10, 2008). During that case, the Secretary conceded that the petitioner’s election of compensation in lieu of military retirement pay should have been effective on September 17, 1998. Id. at *4. As a result, the Court reversed the Board decision and assigned an effective date of September 17, 1998. Id. at *5. The Court then ordered that the case be remanded for the limited purpose of calculating the appellant’s compensation benefits. Id. On September 16, 2008, mandate in the case issued and it was returned to the Secretary and his jurisdiction for expeditious processing. Unfortunately for the petitioner, what followed was a parade of administrative miseries that unnecessarily delayed the execution of the specific award and easily accomplished Court order and ultimately resulted in the petitioner not receiving a final answer on his remand until two years after the issuance of this Court’s decision. These miseries included a failure by VA to recognize that the petitioner had withdrawn his power of attorney from the Texas Veterans Commission; an unexplained four-month delay between mandate and the Board’s request for the petitioner’s claims file; multiple transfers of the petitioner’s claims file; direction of the petitioner’s claims file to the San Diego, California, regional office instead of to the Los Angeles, California, regional office (LARO) that had proper jurisdiction; erroneous entries into VA’s software for tracking claims (VACOLS); requests for duplicate information; failure on the part of multiple VA personnel to note a critical August 10, 2000, letter in the petitioner’s claims file that apparently contained most, if not all, of the information needed to answer" }, { "docid": "9736042", "title": "", "text": "memoranda. Attached to the Secretary’s memorandum was a Supplemental Statement of the Case (SSOC) which recounted that the veteran’s claims had been readjudicated and denied. Section 302 of the Veterans’ Benefits Improvements Act of 1994 (VBIA) requires the Secretary of Veterans Affairs to take any necessary action to provide for the expeditious treatment, by the BVA and the ROs, of any claim that has been remanded by the BVA or by this Court for additional development or other appropriate action. Pub.L. 103-446 § 302, 108 Stat. 4645, 4658 (1994). The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). This Court has jurisdiction under the All Writs Act. Herrmann v. Brown, 8 Vet.App. 60 (1995); Bullock v. Brown, 7 Vet.App. 69 (1994); Nagler v. Derwinski, 1 Vet.App. 297 (1991); Mokal v. Derwinski, 1 Vet.App. 12 (1990); Erspamer v. Derwinski, 1 Vet.App. 3 (1990). However, “circumstances that would justify the issuance of such a writ must be compelling.” Erspamer, 1 Vet.App. at 7. As Judge, now Justice, Kennedy observed in Public Utility Commissioner of Oregon v. Bonneville Power Administration, Use of the All Writs Act in connection with agency matters has been even more rare and the scope of relief granted in these cases has been narrow. The circumstances that will justify our interference with nonfinal agency action must be truly extraordinary, for this court’s supervisory province as to agencies is not as direct as our supervisory authority over the trial courts. 767 F.2d 622, 630 (9th Cir.1985); see also Herrmann, 8 Vet.App. at 62; Nagler, 1 Vet.App. at 302-03; Erspamer, 1 Vet.App. at 7-8. “The exercise of this [All Writs Act] power ... extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected.” FTC v. Dean Foods Co., 384 U.S. 597, 603-04, 86 S.Ct. 1738, 1742, 16 L.Ed.2d 802 (1966) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25," }, { "docid": "19187750", "title": "", "text": "Here, it took the Secretary 666 days to comply with the Court’s June 2008 remand order. The Court recognizes that the determination of whether the Secretary has expeditiously complied with a remand order cannot be made in a vacuum and therefore is not attempting to establish a bright-line rule. Rather, the Court appreciates that compensation claims are not monolithic and some cases, because of their complexity, may require greater efforts by the Secretary. Thus it must be clearly understood by those representing claimants (as well as claimants themselves) that the Court will not blindly issue writs or sanctions where delay is the result of an overburdened system, rather than a disregard for the importance of compliance with a Court order. It should also be noted that the Court will carefully consider whether action must be taken under Rule 38 of the Court’s Rules of Practice and Procedure, should it determine that petitions are routinely filed as a means of encouraging VA to place claims at the front of the line. See Costanza v. West, 12 Vet.App. 133, 134 (1999) (per curiam order); U.S. Vet.App. R. 38 (“If the Court determines that an appeal, petition, motion, or other filing is frivolous, it may enter such order as it deems appropriate.”); see also Edwards v. Nicholson, 21 Vet.App. 265 (2007) (holding that a veteran’s repeated filing of frivolous pleadings warranted the sanction of precluding veteran from filing any further pleading with the Court except for certain limited circumstances). The record in this case, however, clearly demonstrates that the delay in the processing of the petitioner’s remanded claim was not the result of an overburdened system. The Court’s June 2008 remand order is simple, clear, and direct. It did not call for any additional development or evidence collection. Rather, under the order, VA was only required to calculate the appellant’s compensation based on the newly assigned election date. Harvey, 2008 WL 2367190 at *5. Had the Secretary’s staff diligently reviewed the claims file, they would have discovered that the file contained the August 2000 letter, which disposed of the petitioner’s compensation claim nearly" }, { "docid": "9736045", "title": "", "text": "a decade.’ ” Erspamer, 1 Vet.App. at 10; cf., Steffens v. Brown, 8 Vet.App. 142, 144 (1995) (VA’s delay in the vast majority of cases, in which nearly two years elapses between the Notice of Disagreement and the BVA hearing, while frustrating, is not so extraordinary as to justify the Court’s exercise of its All Writs power); In re Monroe Communications Corp., 840 F.2d 942 (D.C.Cir.1988) (five-year delay in agency action not so great as to be subject to mandamus). The Secretary argues that the controversy surrounding the petition is moot because the SSOC was issued. In Mokal, the Court held that it no longer had jurisdiction when the delayed SSOC was issued and it therefore dismissed the petition for mootness. Mokal, 1 Vet.App. at 15; see also Thomas v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order) (dismissing cases as moot because the relief sought, the issuance of SOCs, had been accomplished without the need for action by the Court); Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (“[w]hen there is no case or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction”). Thus, to the extent that the petitioner’s petition is predicated on the RO’s failure to readjudicate the petitioner’s claims, the petition is moot. The petitioner’s counsel argues that the Secretary should be required to resolve veterans’ claims within six months of a Court-ordered remand. The petitioner requests, however, that the Court decide his claim, or in the alternative, that the Court direct VA to decide the claim within 30 days and that the Court grant interim benefits and retain jurisdiction until VA complies with its order. Fully developing a veteran’s case so that his claims can be adequately adjudicated may take time if VA must obtain records beyond its control. In Bullock and Erspamer, this Court indicated its reluctance to interfere in VA’s adjudication process. Bullock and Erspamer, both supra. The Court is sympathetic to the veteran’s frustration regarding the two-and-a-half (now almost three) year delay, but delay must be unreasonable before a Court will interfere with an administrative" }, { "docid": "9736046", "title": "", "text": "or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction”). Thus, to the extent that the petitioner’s petition is predicated on the RO’s failure to readjudicate the petitioner’s claims, the petition is moot. The petitioner’s counsel argues that the Secretary should be required to resolve veterans’ claims within six months of a Court-ordered remand. The petitioner requests, however, that the Court decide his claim, or in the alternative, that the Court direct VA to decide the claim within 30 days and that the Court grant interim benefits and retain jurisdiction until VA complies with its order. Fully developing a veteran’s case so that his claims can be adequately adjudicated may take time if VA must obtain records beyond its control. In Bullock and Erspamer, this Court indicated its reluctance to interfere in VA’s adjudication process. Bullock and Erspamer, both supra. The Court is sympathetic to the veteran’s frustration regarding the two-and-a-half (now almost three) year delay, but delay must be unreasonable before a Court will interfere with an administrative agency’s adjudication process. See Bullock and Erspamer, both supra. It is inherent in all matters that are remanded to the BVA that a remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement” of 38 U.S.C. § 7104(d)(1) “and that, generally, on remand, the BVA is expected to reexamine the evidence of record, [and] seek any other evidence the Board feels is necessary____” Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991). Finally, the petitioner asserts that the records the RO requested from various hospitals pursuant to the BVA remand were not actually obtained but rather, the hospitals sent the wrong records, which constituted, according to the Statement of the Case, the basis for the RO’s denial. That denial, however, is presently before the BVA and therefore, the petitioner has not exhausted administrative remedies available to him. See Mokal, 1 Vet.App. at 15. In view of the delay already experienced in this ease, the Court notes that the statutory duty to expedite remanded" } ]

[ { "docid": "22723623", "title": "", "text": "resulting from breach of contract. The district court concluded that it did not have subject matter jurisdiction pursuant to the Tucker Act because there was no evidence that Reynolds held her position pursuant to any contract of employment. Reynolds v. Army and Air Force Exchange Service, No. A4-86-125, slip op. at 12 (D.N.D. June 30, 1987). Thereafter, Reynolds appealed. ISSUE Whether the district court properly dismissed Reynolds’ case for lack of Tucker Act jurisdiction based on submitted evidence. DECISION In reviewing the district court’s judgment granting the government’s motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), we normally consider the facts alleged in the complaint to be true and correct. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Air Prod, and Chems., Inc. v. Reichhold Chems., Inc., 755 F.2d 1559, 1562 n. 4, 225 USPQ 121, 123 n. 4 (Fed.Cir.), cert. dismissed, 473 U.S. 929, 106 S.Ct. 22, 87 L.Ed.2d 700 (1985). Because Reynolds’ amended complaint alleged that she served pursuant to a contract, this allegation, left unchallenged, would be sufficient to support Tucker Act jurisdiction. 28 U.S.C. § 1491 (1982); United States v. Hopkins, 427 U.S. 123, 130, 96 S.Ct. 2508, 2512, 49 L.Ed.2d 361 (1976) (Tucker Act covers employees of AAFES with contracts of employment, but does not cover appointed employees). If a motion to dismiss for lack of subject matter jurisdiction, however, challenges the truth of the jurisdictional facts alleged in the complaint, the district court may consider relevant evidence in order to resolve the factual dispute. Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 1010, 91 L.Ed. 1209 (1947); Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969); 2A J. Moore, J. Lucas & G. Grotheer, Moore’s Federal Practice, ¶ 12.07 [2. — 1] at 12-46 to 12-47 (2d ed. 1987). This is such a case. Specifically, the government disputed Reynolds’ allegation that she served under contract. Although the district court correctly considered the ESPP to determine if Reynolds in fact served under contract, the court was clearly" } ]

[ { "docid": "19133069", "title": "", "text": "presume all undisputed factual allegations to be true and must construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The relevant issue in a motion to dismiss under RCFC 12(b)(1) “ ‘is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” Patton v. United States, 64 Fed.Cl. 768, 773 (2005) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683). The plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). The court may look at evidence outside of the pleadings in order to determine its jurisdiction over a case. Martinez v. United States, 48 Fed.Cl. 851, 857 (2001) (citing RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed.Cir.1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991)), aff'd in relevant part, 281 F.3d 1376 (Fed.Cir.2002). “Indeed, the court may, and often must, find facts on its own.” Id. If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3). III. Standard of Review under RCFC 12(b)(6) It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.Cir.2002). When considering a motion to dismiss under this rule, “the allegations of the complaint should be construed favorably to the pleader.” Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. “[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is" }, { "docid": "21792641", "title": "", "text": "claims for lack or jurisdiction or failure to state a claim upon which relief can be granted. Def.’s MTD at iv. II. Discussion A. Standard of Review Defendant bases its motion to dismiss on Rules 12(b)(1) and 12(b)(4) of the Rules of the Court of Federal Claims (RCFC). Rule 12(b)(1) provides for dismissal of a claim for which the court has a “lack of jurisdiction over the subject matter.” RCFC 12(b)(1). A court’s subject matter jurisdiction depends on the “court’s general power to adjudicate in specific areas of substantive law.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999). Rule 12(b)(4) provides for dismissal when a plaintiff “fail[s] to state a claim upon which relief can be granted.” RCFC 12(b)(4). Rule 12(b)(4) addresses “the question of whether in a specific case a court is able to exercise its general power with regard to the facts peculiar to the specific claim.” Palmer, 168 F.3d at 1313. Dismissal under Rule 12(b)(4) constitutes an adjudication on the merits. Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 686 (Fed.Cir.1992); Maniere v. United States, 31 Fed.Cl. 410, 419 (1994). In weighing the evidence in a motion to dismiss, “whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); LaMirage, Inc. v. United States, 44 Fed.Cl. 192, 196 (1999). On motion to dismiss, the court must presume that undisputed factual allegations in the complaint are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); La Mirage, Inc., 44 Fed.Cl. at 196. B. Issues Plaintiffs alleged injuries stem from a number of specific circumstances, namely: 1) alleged breach by MICOM of the Missile Contract and Guaranteed Offset Agreement (Compl. at Counts 1, 2, and 4), as to which" }, { "docid": "21526388", "title": "", "text": "because the latest discharge was sent in error, it has no relation to the first and is not an admission that the first was sent in error. Plaintiff initially received pay and allowances for work through July 21, 1994, the date that the United States Marine Corps officially separated him. The last check plaintiff received was prepared on August 9, 1994. Without pursuing any administrative remedies which may have been available to the plaintiff, he proceeded to file his complaint in this court. DISCUSSION When considering a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. at 747. The basic standards for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction, pursuant to RCFC 12(b)(1), have been articulated by the United States Supreme Court and the United States Court of Appeals for the Federal Circuit as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also State of Alaska v. United States, 32 Fed.Cl. 689, 695 (1995). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by plaintiff are true. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Miree v. De Kalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977); State of Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General" }, { "docid": "17693500", "title": "", "text": "to consider plaintiffs Paperwork Reduction Act claim, under the Tucker Act, 28 U.S.C. § 1491(a)(1) (1994), as amended, 28 U.S.C.A. § 1491 (Supp.1998), because the plaintiffs claims fail to rely on a money-mandating statute and because the allegations sound in tort. Plaintiff maintains that the court has jurisdiction to adjudicate its case pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), based on an alleged money-mandating statutory provision of the Paperwork Reduction Act, 44 U.S.C. § 3512. When considering a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts that are alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction pursuant to RCFC 12(b)(1), and/or a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(4), has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir. 1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the" }, { "docid": "17679261", "title": "", "text": "the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction, pursuant to RCFC 12(b)(1), and/or a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4), has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conelusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over the plaintiffs complaint, the Tucker Act, 28 U.S.C." }, { "docid": "17693501", "title": "", "text": "claim upon which relief can be granted pursuant to RCFC 12(b)(4), has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir. 1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491, requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States" }, { "docid": "19230100", "title": "", "text": "of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999). When considering an RCFC 12(b)(1) motion, the burden of establishing the court’s subject matter jurisdiction resides with the party seeking to invoke it. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). The plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). The court must accept as true the allegations in the plaintiffs complaint and must construe such facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds, 846 F.2d at 747. If the defendant or the court questions jurisdiction, the plaintiff cannot rely solely on allegations in the complaint but must bring forth relevant, adequate proof to establish jurisdiction. See McNutt, 298 U.S. at 189, 56 S.Ct. 780. In deliberating on a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to decide any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds, 846 F.2d at 747. If the court finds that it lacks subject matter jurisdiction, then it must dismiss the claim. Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); see also RCFC 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). 2. RCFC 12(b)(6) An RCFC 12(b)(6) motion tests the sufficiency of a complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also RhinoCorps Ltd., 87 Fed.Cl. at 492 (“A motion made under Rule 12(b)(6) challenges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced.”). The" }, { "docid": "17727810", "title": "", "text": "requests that plaintiffs complaint be dismissed with prejudice under RCFC 12(b)(6) as to tax year 1989, and without prejudice under RCFC 12(b)(1) as to all other tax years. Mr. Ishler responds to the government’s motion to dismiss with numerous assertions, very few of which are relevant to the court’s analysis and none of which have any merit. Upon consideration of plaintiffs arguments, the court must conclude that it lacks jurisdiction over each of his claims. DISCUSSION I. Standard of Review under RCFC 12(b)(1) The relevant issue presented by a motion to dismiss under RCFC 12(b)(1) “ ‘is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ” Patton v. United States, 64 Fed.Cl. 768, 773 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In considering the issue of subject matter jurisdiction, this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of the plaintiff. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988) (citations omitted). Where the court’s jurisdiction is challenged, the plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence and by presenting competent proof. Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); Reynolds, 846 F.2d at 748 (citations omitted). If the plaintiff fails to meet his burden, and jurisdiction is therefore found to be lacking, the court must dismiss the action. RCFC 12(h)(3). In considering a motion to dismiss for lack of subject matter jurisdiction which challenges the truth of jurisdictional facts alleged in the complaint, the court may make findings of fact pertinent to its jurisdiction. Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed.Cir.2003) (citing Moyer v. United States, 190" }, { "docid": "6954833", "title": "", "text": "EEOC and DOJ, left her without any remedy, any cause of action, and without her right to have her case heard in court. The plaintiff claims that the defendant had an obligation to enforce its rules and regulations, and to correctly file plaintiffs claim under the ADA. Plaintiff further claims that defendant’s failure to do so denied her due process and her civil rights. In plaintiffs “answer” to the defendant’s motion to dismiss, and in plaintiffs “surreply,” the plaintiff also asserts that the defendant has breached a contract with her. DISCUSSION When considering a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. at 747. The basic standards for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction, pursuant to RCFC 12(b)(1), and/or a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4), have been articulated by the United States Supreme Court and the United States Court of Appeals for the Federal Circuit, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allega tions of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 282, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir. 1989); see also Alaska v. United States, 32 Fed. Cl. 689, 695 (1995), appeal dismissed by 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by plaintiff are true. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Miree v. DeKalb County, 433 U.S. 25, 27" }, { "docid": "13315974", "title": "", "text": "the government, a plaintiff must assert a money-mandating provision of the Constitution, a statute, or regulation as a basis for jurisdiction in this court. See 28 U.S.C. § 1491(a)(1); Tippett v. United States, 185 F.3d 1250, 1255 (Fed.Cir.1999); Moyer v. United States, 190 F.3d 1314 (Fed.Cir.1999). The burden of establishing jurisdiction is on the plaintiff. See McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991). When considering a motion to dismiss, the allegations should be construed favorably to the pleader, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), however, if the motion challenges the truth of the jurisdictional facts alleged in the complaint, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts. See Reynolds v. Amy & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); Moyer v. United States, 190 F.3d at 1317; Gallucci v. United States, 41 Fed.Cl. 631, 638 (1998). “The court should look beyond the pleadings and decide for itself those facts, even in dispute, which are necessary for a determination of [the] jurisdictional merits.” Pride v. United States, 40 Fed.Cl. 730, 732 (1998) (quoting Farmers Grain Co. of Esmond v. United States, 29 Fed.Cl. 684, 686 (1993)). Dismissal is appropriate only if “it is beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.” Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In this case, plaintiff cites to the Military Whistleblower Protection Act, 10 U.S.C. § 1034, as the only basis for Tucker Act jurisdiction over his claims in this court. Plaintiff claims that he was forced to retire after retaliatory personnel actions taken by officials in the PHS and the government of the District of Columbia resulted in his not being promoted. However, this court has held that the Military Whistleblower Protection Act provides" }, { "docid": "3740069", "title": "", "text": "to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiffs. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over" }, { "docid": "3740068", "title": "", "text": "INVENTORY LIST attached as Exhibit A to the Purchase Agreement. However, the Customs Service is willing to and hereby relinquishes, transfers, conveys and releases any and all right, title and interest it may have in and to such license or permit which was forfeited to the United States by order of said court. Subsequently, the plaintiffs filed suit in this court and alleged in their complaint that a Class C Liquor License should have been transferred from Customs to the plaintiffs. DISCUSSION The government filed a motion to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(1) and 12(b)(4). In addition to arguing that Customs did not breach the 1994 Purchase Agreement, the government contends that this court lacks jurisdiction under the Tucker Act over plaintiffs’ claims stemming from implied-in-law contracts and on causes of action based on promissory estoppel. When considering a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb" }, { "docid": "21134597", "title": "", "text": "the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conelusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over the plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1994), as amended, 28 U.S.C.A. § 1491 (West Supp.1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for" }, { "docid": "6954834", "title": "", "text": "jurisdiction, pursuant to RCFC 12(b)(1), and/or a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4), have been articulated by the United States Supreme Court and the United States Court of Appeals for the Federal Circuit, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allega tions of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 282, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir. 1989); see also Alaska v. United States, 32 Fed. Cl. 689, 695 (1995), appeal dismissed by 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by plaintiff are true. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977); Alaska v. United States, 32 Fed. Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed. Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Moreover, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1994), requires" }, { "docid": "21526389", "title": "", "text": "been articulated by the United States Supreme Court and the United States Court of Appeals for the Federal Circuit as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also State of Alaska v. United States, 32 Fed.Cl. 689, 695 (1995). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by plaintiff are true. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Miree v. De Kalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977); State of Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); State of Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1988 and Supp.1993), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act merely confers jurisdiction on the Court of Federal Claims; it does not create a substantive right enforceable against the" }, { "docid": "3696509", "title": "", "text": "of the contributions originally given to the Dole Committee. The Defendant filed a motion to dismiss with two grounds. Pursuant to RCFC 12(b)(1), the Defendant argues that this court should dismiss the lawsuit because this court lacks subject matter jurisdiction. Alternatively, pursuant to RCFC 12(b)(4), the Defendant argues that this court should dismiss the lawsuit for failure to state a claim upon which relief can be granted. For the reasons stated, the Motion to Dismiss is GRANTED in part and DENIED in part. II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION A. Jurisdiction of the Court of Federal Claims “[I]n passing on a motion to dismiss, whether on the grounds of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 746 (Fed.Cir.1988). The Tucker Act establishes the jurisdiction of this court. “The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department.” 28 U.S.C. § 1491. By judicial interpretation, however, the Constitutional provision, the Act of Congress or the regulation must mandate the payment of money. United States v. Testan, 424 U.S. 392, 401-02, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976). The Court of Claims has ruled that a provision of law is “money-mandating” if “the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007, 178" }, { "docid": "21079836", "title": "", "text": "all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction, pursuant to RCFC 12(b)(1), and/or a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4), has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conclusory allegations unsupported by" }, { "docid": "17679260", "title": "", "text": "which plaintiff entered into or assumed with NASA, defendant acted arbitrarily and capriciously and contrary to law in violation of the Administration [sic] Procedures [sic] Act.” The plaintiff further alleges that “[defendants violated the Contract Disputes Act (41 U.S.Code §§ 601-613) by failing to modify plaintiffs contracts with NASA so that plaintiff could earn a fair profit in performing under NASA’s contracts and other government sponsored set aside programs.” The plaintiff requests the following relief: a. Monetary damages in excess of $100,-000, according to proof. b. Administrative or injunctive relief as may be available under applicable statutes or regulations applicable to the facts of this case. c. Such other and further relief as the court deems proper. DISCUSSION When considering a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction, pursuant to RCFC 12(b)(1), and/or a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4), has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97" }, { "docid": "6507019", "title": "", "text": "— defendant’s motion to dismiss for lack of subject matter jurisdiction, defendant’s motion to dismiss for failure to state a claim upon which relief can be granted, defendant’s motion for summary judgment, and plaintiffs cross-motion for summary judgment. In considering this matter as it is presently postured before the court, we must confront the following three broad issues in order to properly resolve these motions— 1. Is there any jurisdictional basis upon which the court may hear the merits of plaintiffs’ case? 2. Given a jurisdictional basis to entertain the action, does the complaint state a claim upon which relief can be granted? and 3. If any claim is properly stated in the complaint, is either party entitled to summary judgment thereon? Accordingly, we now turn to address the preceding questions, taking them in their logical order. 1. Jurisdiction (RCFC 12(b)(1)) When reviewing a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the facts as alleged in the complaint must be construed favorably to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). To this end, the court must presume all of the factual allegations to be true and correct. Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747 (Fed.Cir.1988). However, a plaintiff bears the burden of establishing the court’s jurisdiction over the complaint by a preponderance of the evidence. Id. Therefore, if a defendant mounts a factual challenge to the facts upon which jurisdiction is premised the plaintiff may lose the benefit of the foregoing presumption of truth. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). In such a situation, the court may look outside the complaint and receive evidence for the purpose of resolving the jurisdictional issue of fact. Maniere v. United States, 31 Fed.Cl. 410, 413-14 (1994); Catellus Development Corp. v. United States, 31 Fed.Cl. 399, 405 (1994). Otherwise, in the absence of a factual challenge, our analysis is confined to the complaint. In the instant case, plaintiffs premise jurisdiction on the" }, { "docid": "21134596", "title": "", "text": "argues that the plaintiffs claims are precluded by the Severin Doctrine. I. Motion to Dismiss The court first considers defendant’s motion to dismiss, pursuant to RCFC 12(b)(1), for lack of subject matter jurisdiction regarding plaintiffs claim alleged in Count I for an alleged breach of contract/cardinal change under the CDA. When considering a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Id. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction, pursuant to RCFC 12(b)(1), has been articulated by the United States Supreme Court, as follows: “in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that" } ]

[ { "docid": "22983245", "title": "", "text": "awarded, pursuant to 35 U.S.C. § 284, and its motion to award attorney fees in accordance with 35 U.S.C. § 285. Jury trial on these issues had been waived. Shatterproof contends that the record conclusively established willful infringement as a matter of law, based on LOF’s admission that it was aware of both of the patents in suit prior to sale of any infringing product, and the admission that LOF did not seek the opinion of patent counsel before construction of the Clinton Coater. Shatterproof argues that LOF decided to risk, liability for infringement because of the projected high profit margin, and because Leybold-Heraeus assertedly agreed to hold Libby-0wens Ford “harmless” if charged with infringement. Shatterproof refers to Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 221 USPQ 1 (Fed.Cir.1984) which upheld the award of treble damages and attorney fees on a showing of willful infringement. LOF responds that its awareness of the patents was only “technical”, that its patent staff routinely monitors patent activity in all areas of glass technology, but that its key people on the Clinton Coater project were not aware of the patents until this litigation arose. LOF contends that it did not have actual notice of the Shatterproof patents, as required in Underwater Devices Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 219 USPQ 569 (Fed.Cir. 1983). LOF also challenges Shatterproof’s characterization of the LH contract provision as a “hold harmless” undertaking. Willfulness of infringement is a question of fact. The issue was comprehensively argued before the district court. The trial judge denied without opinion Shatterproof’s motion to increase the damage award, and we do not have his detailed views on this question. The jurisprudence, however, uniformly requires clear and convincing evidence in support of increased damages. A record devoid of opinions of counsel and silent on LOF’s reaction to the existence of the Shatterproof patents may indeed lead to negative inferences, and the case for willfulness was dependent on determinations of credibility and motivation which were placed in issue at trial, and which are the province of the trier of fact. While a" } ]

[ { "docid": "23540183", "title": "", "text": "F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983). Far-Mar-Co has failed to persuade us that the district court’s finding is clearly erroneous. The trial court found willful infringement based on Far-Mar-Co’s “conduct after issuance of the patent, particularly the decision to respond to plaintiff’s offer of a license without consulting patent counsel.” When a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing. Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d at 1389-90, 219 USPQ at 576. Such an affirmative duty usually includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. Id. See also, King Instrument Corp. v. Otari Corp., 767 F.2d 853, 867, 226 USPQ 402, 412 (1985). The offering of a license is actual notice. Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 743, 220 USPQ 845, 851 (Fed.Cir.1984). Far-Mar-Co’s argument that it did not infringe willfully because Ralston withdrew its offer too quickly is unpersuasive. There is evidence of record that Far-Mar-Co has known of its potential infringement liability to Ralston since 1970. At that time, Ralston was involved in an interference proceeding with other parties, one of whom was Far-Mar-Co’s licensor. Far-Mar-Co received notice that Ralston won the interference in April, 1972. After the Ralston patent issued in 1976, Far-Mar-Co rejected a license offer without even consulting its own in-house patent counsel. Far-Mar-Co cites no precedent for a decision that an infringer must be allowed a certain amount of time to “develop” willfulness, and we will not supply it. On the basis of this record, we cannot say the court clearly erred in its finding. Accordingly, we agree with the district court’s decision that claims 10-13, 15-18, 20-26, and 32 of the Flier patent have not been shown to be invalid. We affirm the holding of infringement of claims 10-13, 15-18, 20, 22, 23, and 32. We hold claims 1-9, 14, 19, 27-31, and 33-52 to be invalid. Finally, we affirm the finding of" }, { "docid": "23112227", "title": "", "text": "to avoid infringing the Carver process, Bolser could have resold the equipment it obtained from TRI either as a package or on a piecemeal basis through publications such as the Retreader’s Journal. The possibility also existed to modify some of the equipment. Bolser has not established that any of these options would have been unwise from a business standpoint. It may even have been reasonable to refrain from operating the equipment until expiration of the Carver patent on February 22, 1983, rather than to risk infringement. In this fashion the equipment would have been idle 24 months from its purchase, rather than for six, as actually occurred. In any case, the possibility of infringement was simply ignored and never investigated by Bolser. Thus, the outcome of any business deliberation regarding whether to resell, modify, or idle the equipment was automatically weighted against doing so. Bolser does not argue that any disadvantage of these alternatives was ever actually considered before it commenced recapping; the arguments against the alternatives appear to have been generated entirely for this litigation. The salient fact remains that by not obtaining legal counsel, when it was made aware of the possibility of infringement, Bolser remained uninformed about the potential costs it risked in choosing not to avoid infringing. Where, as here, a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he [will be] infringing. Such an affirmative duty includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389-90, 219 USPQ 569, 576 (Fed.Cir.1983) (emphasis in original) (citations omitted). Bolser breached this duty. It has also failed to show that alternatives to infringement were unavailable or unreasonable. Bolser’s attempt to make out the defense of an implied license fails in a second respect. [T]he relatively few instances where implied licenses have been found rely on the doctrine of equitable estoppel ____ One common thread in cases in which equitable estoppel applies" }, { "docid": "23324248", "title": "", "text": "reviewable under the clearly erroneous standard. Ralston Purina Co. v. FAR-MAR-CO., Inc., 772 F.2d 1570, 1577, 227 USPQ 177 (Fed.Cir.1985); Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed. Cir.1983). The district court made the following findings of fact: The history of Four Star’s activities following the issuance of the '658 patent was marked by indifference to Bott’s rights and to Four Star’s obligation as a potential infringer. Four Star was aware of Bott’s design long before the patent was issued and had knowledge of the '658 patent before Four Star sold a single Fiat rack. The J-car rack infringed Bott’s patent and was designed by Four Star which used drawings furnished by GM, which had in turn been furnished by Bott. In making the sales to Fiat, Four Star ignored Bott. In the sales to GM, Four Star knowingly copied Bott’s carrier. In the sales to AMC, Four Star was indifferent to Bott. This indifference continued when Four Star obtained the business from AMC. When a potential infringer has actual notice of another’s patent rights, he has the duty to “exercise due care to determine whether or not he is infringing.” This usually includes the duty to seek and obtain competent legal advice before engaging in activity that may result in infringement. Underwater Devices, Inc., 717 F.2d at 1389-90, 219 USPQ at 576. The district court found: [Tjhere is no evidence that at any time after July 11, 1978 Four Star either asked for or received a written legal opinion on validity, including an analysis of the file history of either the ’678 patent or ’471 patent, or on infringement, including an analysis comparing and contrasting the Fiat Rack or J-Car Rack to the ’678 patent or ’471 patent. 229 USPQ at 246. Although Four Star’s first in-house counsel (Mr. Weintraub) testified that he gave a detailed, written opinion to Four Star, the district court found that his testimony was not credible. Four Star has not made the showing that is necessary to persuade us to substitute our judgment for the trial court’s" }, { "docid": "22578681", "title": "", "text": "1073, 163 USPQ 257, 261 (6th Cir.1969). It is necessary to look at “the totality of the circumstances presented in the case,” Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1390, 219 USPQ 569, 577 (Fed.Cir.1983), in determining whether a reasonable person would prudently conduct himself with any confidence that the courts might hold the patent invalid. The district court extensively reviewed the surrounding circumstances, as exemplified by its findings of fact, supra, and Hormel has failed to show us either that those findings of fact were clearly erroneous, or that the holding of willful infringement based thereon was clearly erroneous. In short, the attorney’s advice, based solely on file history prior art, does not by itself raise an inference of good faith substantial enough to convince us that the trial court’s determination of willful infringement was clearly erroneous. Secondly, Hormel asserts that it relied upon attorney opinions “before and after engaging in any of the acts charged to be an infringement of the patent in suit,” and “operated within the parameters set forth in those opinions for avoiding infringement .... ” While we agree that reliance is an important factor in determining good faith, there is no support for Hormel’s assertion of reliance in the record. Moreover, it is in direct contradiction with the district court’s findings of fact. The opinion letter, discussed above, stated: “I believe that Hormel is reasonably safe in manufacturing the meat product if it can do so by expanding the area [of the patty] less than 100%” and “the further away from 100% it can stay, the less likely it is to infringe the Luker [Central Soya] patent.” (Emphasis ours.) Hormel was on notice of Central Soya’s patent rights and had an affirmative duty to exercise due care to determine whether or not it was infringing. Underwater Devices, supra, 717 F.2d at 1389, 219 USPQ at 576. Although Hormel sought its counsel’s advice prior to production, Hormel waited 2 years “post-production” to measure its patties to determine the extent of expansion. Such inaction is inconsistent with the assertion of good faith reliance. Even" }, { "docid": "2026666", "title": "", "text": "The district court denied Ag-Bag's claim for increased damages under 35 U.S.C. § 284 and attorney fees under 35 U.S.C. § 285 even though the court found that the infringement was in part willful. The court found that “wilfull infringement occurred when machines originally manufactured for Ag-Bag were painted and sold by Blair.” The court declined to treble those damages, however, or to award Ag-Bag its attorney fees, because there was no evidence delineating the sale of the literally infringing bagging machines from the sale of Ryco’s other infringing machines. The court also declined to award Ag-Bag increased damages or attorney fees on the remaining sales. The court found that Ryco reasonably believed that the '805 patent was invalid, and if valid, that their bagging machines did not infringe. The question of whether infringement is willful, justifying increased damages, is one of fact. Shatterproof Glass Corp. v. Libbey-Owens Ford. Co., 758 F.2d 613, 628, 225 USPQ 634, 644 (Fed.Cir.1985). Ag-Bag argues that the district court’s finding that infringement was not willful as to all sales is clearly erroneous. We agree. There is no dispute that Kelly Ryan, who was both the president of Blair Manufacturing and the founder of Ryco, knew of Ag-Bag’s patents. “[WJhere a potential infringer has actual notice of another’s patent rights he has an affirmative duty of due care.” Rolls-Royce, Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1109, 231 USPQ 185, 191 (Fed.Cir.1986). The test is whether, under all the circumstances, a reasonable person would prudently conduct himself with any confidence that a court might hold the patent invalid or not infringed. See Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1577, 220 USPQ 490, 492 (Fed.Cir.1983). The court found that Ryco “reasonably believed” that the ’805 patent was invalid or that its bagging machines did not infringe. This finding, however, is simply unsupportable on the facts and the law. The duty of due care normally requires that a potential infringer obtain competent legal advice before infringing or continuing to infringe. Rolls-Royce, 800 F.2d at 1109, 231 USPQ at 191. Kelly" }, { "docid": "6470470", "title": "", "text": "a patentee’s legal rights.” Fundamental to determination of willful infringement is the duty to act in accordance with law. Reinforcement of this duty was a foundation of the formation of the Federal Circuit court, at a time when widespread disregard of patent rights was undermining the national innovation incentive. See Advisory Committee On Industrial Innovation Final Report, Dep’t of Commerce (Sep.1979). Thus in Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed.Cir.1983) the court stressed the legal obligation to respect valid patent rights. The court’s opinion quoted the infringer’s attorney who, without obtaining review by patent counsel of the patents at issue, advised the client to “continue to refuse to even discuss the payment of a royalty.” Id. at 1385. The attorney advised that “[c]ourts, in recent years, have — in patent infringement cases — found the patents claimed to .be infringed upon invalid in approximately 80% of the cases,” and that for this reason the patentee would probably not risk filing suit. Id. On this record of flagrant disregard of presumptively valid patents without analysis, the Federal Circuit ruled that “where, as here, a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing,” including “the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity.” Id. at 1389-90. Underwater Devices did not raise any issue of attorney-client privilege, while applying precedent that a finding of willfulness requires the factfinder to find by clear and convincing evidence “that the infringer acted in disregard of the patent,” citing Stickle v. Heublein, Inc., 716 F.2d 1550, 1565 (Fed.Cir.1983). The aspect of privilege arose in Kloster Speedsteel AB v. Crucible Inc., 793 F.2d 1565 (Fed.Cir.1986), where the Federal Circuit observed that the infringer “has not even asserted that it, sought advice of counsel when notified of the allowed claims and [the paten-tee’s] warning, or at any time before it began this litigation,” and held that the infringer’s “silence on the subject, in alleged reliance on the attorney-client" }, { "docid": "20882279", "title": "", "text": "jury found otherwise. A finding of willfulness is a question of fact, Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983), which must be proved by clear and convincing evidence. Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 628, 225 USPQ 634, 644 (Fed.Cir.), cert. dismissed, 474 U.S. 976, 106 S.Ct. 340, 88 L.Ed.2d 326 (1985). To determine whether a finding of willfulness is warranted, a jury looks to the totality of the circumstances to see whether “a reasonable person would prudently conduct himself with any confidence that a court might hold the patent invalid or not infringed.” Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 1428, 8 USPQ2d 1323, 1331 (Fed.Cir.1988). Whether the infringer intentionally copied the ideas of another; whether the infringer, once on notice of the patented invention, investigated the scope of the patent to form a good-faith belief that it was invalid or not infringed; and the infringer’s behavior as a party to the litigation, are relevant factors to a willfulness determination to merit an increase in damages. Bott v. Four Star Corp., 807 F.2d 1567, 1572, 1 USPQ2d 1210, 1213 (Fed.Cir.1986). All of these factors may well have played a role in the jury’s conclusion in this case. Ven-Tel primarily relies on the opinion letter of Mr. Call as evidence that it was not a willful infringer. Although reliance on competent counsel’s opinion is evidence of good faith, it is not conclusive. Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1577, 220 USPQ 490, 492 (Fed.Cir.1983) (citation omitted). In this case, substantial evidence exists to support the conclusion of willfulness, irrespective of the opinion letter. Mr. Enlow, Hayes’ expert witness, testified in detail that the letter did not give Ven-Tel a reasonable basis for believing in good faith that the ’302 patent was invalid. He stated that the letter treated the claims of the ’302 patent superficially, failed to set out a standard for one of ordinary skill in the art, failed to consider secondary considerations in determining obviousness, mischaracterized prior art, and" }, { "docid": "327016", "title": "", "text": "that GTE believed “with respect to Cusack’s reed probe that there wouldn’t be any patent problem because [the probe] was different.” On redirect, Murray further testified about Cusack’s “heightened sensitivity to the [Rolls-Royce] patents.” GTE engineer Miller stated that, following the invention of the Cusack reed probe, he and Cusack discussed whether it avoided infringement of Rolls-Royce’s patents because that was “absolutely what we had to do,” but that he was not aware of any opinion of counsel to that effect. Rolls-Royce’s reliance on CPG Products Corp. v. Pegasus Luggage, Inc., 776 F.2d 1007, 227 USPQ 497 (Fed.Cir.1985), as requiring reversal here, is misplaced. In that case, the district court found that defendant, after being warned of infringement by the patentee, made no infringement or validity inquiries and intentionally “disregard[ed]” the warning. The finding of non-willfulness in CPG was in direct conflict with that finding of intentional disregard, and thus with the infringer’s affirmative duty “to exercise due care to determine whether or not he is infringing,” Underwater Devices, Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 1389-90, 219 USPQ 569, 576 (Fed.Cir.1983). Because a contrary ultimate finding of willfulness was compelled by the court’s unchallengeable underlying findings, we reversed. See Kloster Speedsteel, AB v. Crucible Inc., 793 F.2d 1565, 1579-80, 230 USPQ 81, 88-89 (Fed.Cir.1986). CPG is simply inapplicable here, where the district court’s underlying finding, supported by Rolls-Royce’s own expert Sears, was that GTE made bona-fide efforts to avoid infringement by attempting to “design around” the claimed invention. It is by now well settled that where a potential infringer has actual notice of another’s patent rights he has an affirmative duty of due care. Underwater Devices, supra; CPG, supra. That affirmative duty will normally entail the obtaining of competent legal advice of counsel before infringing or continuing to infringe; that does not mean, however, that absence of an opinion of counsel alone requires in every case a finding of willful infringement. As this court stated in Kloster Speedsteel AB, 793 F.2d at 1579, 230 USPQ at 90-91: “Though it is an important consideration, not every failure to seek" }, { "docid": "22981851", "title": "", "text": "an ‘exceptional case’ under 35 U.S.C. § 284 (1982) [sic], to justify the award of treble damages.” 594 F.Supp. at 1264, 226 USPQ at 48. That the district court declined to impose increased damages that may accompany a finding of willful infringement does not mean that the court found the infringement not willful. See, e.g., S.C. Johnson & Son, Inc. v. Carter Wallace, Inc., 781 F.2d 198, 201, 228 USPQ 367, 369 (Fed.Cir.1986). Though the parties have proceeded on appeal as though the district court had found Stora’s infringement not willful, all the district court decided was that it would not award treble damages. It appears that the court felt that if it found Stora’s infringement willful it would have been required to award treble damages. If that be so, it may be said that the court implicitly found Stora’s infringement not willful. If that implicit finding was made, it was clearly erroneous. The district court did not have before it, of course, the guidance on the law of willful patent infringement provided by this court since the time of the trial. In Underwater Devices Inc. v. Morrison-Knudsen Co. Inc. 717 F.2d. 1380, this court stated: Where, as here, a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing. Such an affirmative duty includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. [Citations omitted.] At 1389-90, 219 USPQ at 576 (emphasis in original). Though it is an important consideration, not every failure to seek an opinion of competent counsel will mandate an ultimate finding of willfulness. King Instrument Corp. v. Otari Corp., 767 F.2d 853, 867, 226 USPQ 402, 412 (Fed.Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986) (court “should always look at the totality of the circumstances”). Conversely, that an opinion of counsel was obtained does not always and alone dictate a finding that the infringement was not willful. See, e.g., Kori Corp. v. Wilco" }, { "docid": "22983244", "title": "", "text": "that the measure of 5% of gross sales rather than 4% of net sales was not supported by evidence. The court denied LOF’s motions for judgment n.o.v. or a new trial on this point. We have reviewed the record as a whole, and conclude that the jury rendered a reasonable decision. As noted in Weinar, 744 F.2d at 808, 223 USPQ at 375, “[jjury damage awards, unless the product of passion and prejudice, are not easily overturned or modified on appeal.” The record before us does not support the conclusion that the jury’s damage award was speculative or unreasonable, or unsupported by substantial evidence. LOF also criticizes the court-ordered 5% royalty for the compulsory patent license for continuing operations. This royalty is based on sales, measured as defined in the order, and we do not find the amount of the royalty or its method of measurement to be clearly erroneous or an abuse of judicial discretion. Treble Damages and Attorney Fees Shatterproof cross-appeals from the denial of its motion to treble the amount of damages awarded, pursuant to 35 U.S.C. § 284, and its motion to award attorney fees in accordance with 35 U.S.C. § 285. Jury trial on these issues had been waived. Shatterproof contends that the record conclusively established willful infringement as a matter of law, based on LOF’s admission that it was aware of both of the patents in suit prior to sale of any infringing product, and the admission that LOF did not seek the opinion of patent counsel before construction of the Clinton Coater. Shatterproof argues that LOF decided to risk, liability for infringement because of the projected high profit margin, and because Leybold-Heraeus assertedly agreed to hold Libby-0wens Ford “harmless” if charged with infringement. Shatterproof refers to Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 221 USPQ 1 (Fed.Cir.1984) which upheld the award of treble damages and attorney fees on a showing of willful infringement. LOF responds that its awareness of the patents was only “technical”, that its patent staff routinely monitors patent activity in all areas of glass technology, but that its" }, { "docid": "22366647", "title": "", "text": "duty. See Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1390, 219 USPQ 569, 577 (Fed.Cir.1983). The duty of due care normally requires the potential infringer to obtain competent legal advice of counsel before infringing or continuing to infringe. See Rolls-Royce, 800 F.2d at 1109, 231 USPQ at 191. Although LAG’s failure to obtain such advice is not determinative, it is one factor supporting a finding of willfulness. See Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1579, 230 USPQ 81, 90 (Fed.Cir.1986), modified in part, 231 USPQ 160 (Fed.Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 882, 93 L.Ed.2d 836 (1987). Moreover, LAG “intentionally undertook the risk of importing infringing products,” engaging in “[a]n ‘aggressive strategy’ unsupported by any competent advice of counsel,” which is exactly “the type of activity the reference in the patent law to increased damages seeks to prevent.” Id. LAG’s contention that infringement could not be willful because the patents issued after LAG placed its last order is unavailing. “The fact that [an infringer] may have started its infringement before the patents issued (or before [it was] aware of the patents) does not bar an award of increased damages or attorney fees.” Pacific Furniture, 800 F.2d at 1114-15 n. 9, 231 USPQ at 69 n. 9; see also Shiley, Inc. v. Bentley Laboratories, Inc., 794 F.2d 1561, 1568, 230 USPQ 112, 115 (Fed.Cir.1986). LAG continued to sell the infringing shoes after the patent issued, well after it had notice the patent was pending for a particular design, and even after this suit for infringement was filed. By such conduct, LAG intentionally accepted the risk of infringement. Indeed, in view of the statements in LAG’S communique to the manufacturer in Taiwan requesting design changes to avoid infringement, the conclusion of willfulness appears most reasonable and is affirmed. VI ATTORNEY FEES The patent statute allows the court “in exceptional circumstances” to award “reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285 (1982). Relying on its holding that the infringement was willful, the district court granted such an award in this case, the amount" }, { "docid": "20882278", "title": "", "text": "“including the language of the claim, the patent specification, the prosecution history of the patent, other claims in the patent, and expert testimony.” Palumbo, 762 F.2d at 975, 226 USPQ at 8 (citation omitted). This list is not exhaustive and reasonable inferences by the fact finder are appropriate. Although Dr. Cliett did not compare the specific structure of the “timing means” and the “means, operative” of the Ven-Tel device to the language of the claims, he was able to testify that the accused device included a microprocessor and was functionally equivalent to the claimed invention. He was not required to be a patent law expert in order to so testify. The primary issue here is whether a reasonable juror could have concluded from the evidence that the Ven-Tel devices contained a structural equivalent to the “timing means” and the “means, operative” disclosed in the ’302 patent. Our review of the record enables us to conclude that a reasonable juror could have done so. VI. Willful Infringement Ven-Tel argues that its infringement was not willful. The jury found otherwise. A finding of willfulness is a question of fact, Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983), which must be proved by clear and convincing evidence. Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 628, 225 USPQ 634, 644 (Fed.Cir.), cert. dismissed, 474 U.S. 976, 106 S.Ct. 340, 88 L.Ed.2d 326 (1985). To determine whether a finding of willfulness is warranted, a jury looks to the totality of the circumstances to see whether “a reasonable person would prudently conduct himself with any confidence that a court might hold the patent invalid or not infringed.” Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 1428, 8 USPQ2d 1323, 1331 (Fed.Cir.1988). Whether the infringer intentionally copied the ideas of another; whether the infringer, once on notice of the patented invention, investigated the scope of the patent to form a good-faith belief that it was invalid or not infringed; and the infringer’s behavior as a party to the litigation, are relevant factors to a willfulness determination to" }, { "docid": "23598907", "title": "", "text": "not feel that what Smith had been doing while the suit was in progress is to be given any weight in determining “willfulness.” This court, in discussing the willfulness issue in the context of awarding attorney fees, recently said in Stickle v. Heublein, Inc., 716 F.2d 1550, 1565, 219 USPQ 377, 388 (Fed.Cir.1983), With respect to the court’s finding of deliberate and willful infringement, more is necessary to support a finding of “willfulness” than that the infringing acts were not inadvertent. The court must determine that the infringer acted in disregard of the patent, that is, that the infringer had no reasonable basis for believing it had a right to do the acts. [Emphasis added.] State, in its brief, relies on two recent cases in this court, Central Soya Co. v. George A. Hormel & Co., 723 F.2d 1573, 220 USPQ 490 (Fed.Cir.1983), and Underwater Devices v. Morrison-Knudsen, 717 F.2d 1380, 219 USPQ 569 (Fed.Cir.1983). We distinguish them on their facts. In Central Soya, the plaintiff’s patent had issued before the infringement was commenced with the aid of a plaintiff’s employee hired away by the defendant. In determining willfulness, we said “It is necessary to look at ‘the totality of circumstances presented in the case’ * * *.” Patent counsel had been consulted and gave two opinions: (1) there was a reasonable chance the patent could be held invalid; (2) infringement could be avoided by following certain procedures which the defendant, for a long time thereafter, took no pains to follow. In Underwater Devices, the in-fringer had actual notice of plaintiff’s patent rights before the infringement began. The notice was by letter offering a license under the patent before any infringement took place and defendant chose to proceed without a license. We affirmed the district court’s finding of willful infringement, saying: Moreover, M-K did not receive the opinion of its patent counsel until * * * after the infringement had commenced and even after the complaint for the instant case was filed. [717 F.2d at 1390, 219 USPQ at 576.] After the oral hearing in the case at bar, counsel" }, { "docid": "23315121", "title": "", "text": "PAULINE NEWMAN, Circuit Judge. On this appeal and cross-appeal, the decision of the U.S. District Court for the Southern District of New York is affirmed on the issues of validity and willful infringement, and vacated and remanded on the issues of attorney fees and damages. The background of this litigation and the issues at trial and here appealed are set out in the district court’s extensive opinion, and are not repeated. S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 225 USPQ 1022 (S.D.N.Y.1985). I. In Appeal No. 85-2191 appellant Carter-Wallace assigns error to, first, the district court’s holding that claims 1, 3, 10, 13, and 16 of Monson U.S. Patent No. 3,541,581 are not invalid for obviousness in terms of 35 U.S.C. § 103; second, the finding that Carter-Wallace infringed these claims and that the infringement was willful; and third, the ruling that the Monson patent is not unenforceable for inequitable conduct. We have reviewed the entire record, and considered the arguments of both sides. We discern no error of law or fact by the district court on these issues, and affirm the decision of the district court on the basis of its published opinion. The district court provides thorough explanation of its finding that Carter-Wallace’s infringement was willful. As the district court stated, “Carter had no opinion on the question of infringement on which it could reasonably rely in good faith”, and “did not fulfill its affirmative duty to exercise due care to determine whether or not it was infringing the Mon-son Patent”. S.C. Johnson, 225 USPQ at 1043. See Underwater Devices, Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983). With respect to the asserted inequitable conduct in the Patent and Trademark Office, the district court had ruled that Carter-Wallace “unduly delayed raising the alleged incident of fraud” until after S.C. Johnson had closed its case, and had refused to allow Carter-Wallace to amend the Pretrial Order and to adduce evidence on this point. The court reaffirmed this position in its opinion denying Carter-Wallace’s motion to vacate the judgment pursuant to Fed.R.Civ.P. 60(b)." }, { "docid": "2026677", "title": "", "text": "of the court’s judgment. I The question of whether infringement is willful is one of fact and, therefore, is subject to Rule 52(a)’s clearly erroneous standard of appellate review. See, e.g., Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983). That standard is defined in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948): 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. See also SSIH Equip. S.A. v. United States Int’l Trade Comm’n, 718 F.2d 365, 381, 218 USPQ 678, 692 (Fed.Cir.1983) (Nies, J., additional views). Further, the patentee has the burden to prove willfulness by clear and convincing evidence. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 628, 225 USPQ 634, 644 (Fed.Cir.), cert. denied, 474 U.S. 976, 106 S.Ct. 340, 88 L.Ed.2d 326 (1985). We may not, of course, merely substitute our view of the weight of the evidence. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985) (“[T]he court of appeals may not reverse ... even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). Thus, the precise question is whether the district court clearly erred in ruling that the evidence that the infringers acted willfully was not clear and convincing. The district court found Kelly Ryan’s and Ryco’s (hereinafter, collectively, Ryco’s) infringement had not been proved willful, finding instead that they “reasonably believed the ’805 patent was invalid. Moreover, they reasonably felt the modifications they made to the agricultural bag loading devices sold by Ryco did not infringe the ’805 patent, if it was valid.” A review of the entire record fails to leave one “with the definite and firm conviction” that" }, { "docid": "23540182", "title": "", "text": "that the parent’s disclosure adequately supported the water ranges of “at least about 25% by weight,” and “at least 25% by weight.” The court, however, did clearly err in finding support in the parent for the limitation: “in the range of 20%-30% of the resulting mixture” contained in claims 19, 27, and 28. We hold these claims are entitled only to the effective filing date of the 1966 application and are therefore invalid for having been anticipated by the Dutch publication. Far-Mar-Co’s argument that the parent application requires fiber formation inside the extruder is adequately disposed of by the trial court’s opinion. In sum we conclude that claims 10-13, 15-18, 20-26, and 32 of the Flier patent are entitled to the effective filing date of the 1964 parent application because the parent application adequately supports those claims for purposes of 35 U.S.C. § 120. Willful Infringement A finding of willful infringement is a question of fact and is not reversible upon appeal unless shown to be clearly erroneous. Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983). Far-Mar-Co has failed to persuade us that the district court’s finding is clearly erroneous. The trial court found willful infringement based on Far-Mar-Co’s “conduct after issuance of the patent, particularly the decision to respond to plaintiff’s offer of a license without consulting patent counsel.” When a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing. Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d at 1389-90, 219 USPQ at 576. Such an affirmative duty usually includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. Id. See also, King Instrument Corp. v. Otari Corp., 767 F.2d 853, 867, 226 USPQ 402, 412 (1985). The offering of a license is actual notice. Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 743, 220 USPQ 845, 851 (Fed.Cir.1984). Far-Mar-Co’s argument that it did not infringe willfully because Ralston withdrew its" }, { "docid": "22366646", "title": "", "text": "the ’301 patent, on December 23, 1986. The district court outlined the undisputed facts it considered critical: (1) LAG had notice of Avia’s patent, (2) LAG’s correspondence with Sheng Chun noted the risks its sales incurred and the copying aspect of its product, (3) LAG continued sales despite notice, and (4) LAG did not seek advice from counsel. Based on those facts, the court found LAG’s infringement willful. LAG contends that summary judgment is inappropriate on the issue of willfulness, because it must have an opportunity to explain its motive and intent and to establish its exercise of due care. That contention is without merit because LAG did have such an opportunity and failed to avail itself of that opportunity. “It is by now well settled that where a potential infringer has actual notice of another’s patent rights he has an affirmative duty of due care.” Rolls-Royce, Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1109, 231 USPQ 185, 191 (Fed.Cir.1986). The question is whether the record before the court establishes that LAG breached that duty. See Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1390, 219 USPQ 569, 577 (Fed.Cir.1983). The duty of due care normally requires the potential infringer to obtain competent legal advice of counsel before infringing or continuing to infringe. See Rolls-Royce, 800 F.2d at 1109, 231 USPQ at 191. Although LAG’s failure to obtain such advice is not determinative, it is one factor supporting a finding of willfulness. See Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1579, 230 USPQ 81, 90 (Fed.Cir.1986), modified in part, 231 USPQ 160 (Fed.Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 882, 93 L.Ed.2d 836 (1987). Moreover, LAG “intentionally undertook the risk of importing infringing products,” engaging in “[a]n ‘aggressive strategy’ unsupported by any competent advice of counsel,” which is exactly “the type of activity the reference in the patent law to increased damages seeks to prevent.” Id. LAG’s contention that infringement could not be willful because the patents issued after LAG placed its last order is unavailing. “The fact that [an infringer] may have started its" }, { "docid": "23315122", "title": "", "text": "district court on these issues, and affirm the decision of the district court on the basis of its published opinion. The district court provides thorough explanation of its finding that Carter-Wallace’s infringement was willful. As the district court stated, “Carter had no opinion on the question of infringement on which it could reasonably rely in good faith”, and “did not fulfill its affirmative duty to exercise due care to determine whether or not it was infringing the Mon-son Patent”. S.C. Johnson, 225 USPQ at 1043. See Underwater Devices, Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983). With respect to the asserted inequitable conduct in the Patent and Trademark Office, the district court had ruled that Carter-Wallace “unduly delayed raising the alleged incident of fraud” until after S.C. Johnson had closed its case, and had refused to allow Carter-Wallace to amend the Pretrial Order and to adduce evidence on this point. The court reaffirmed this position in its opinion denying Carter-Wallace’s motion to vacate the judgment pursuant to Fed.R.Civ.P. 60(b). S.C. Johnson & Sons, Inc. v. Carter-Wallace, Inc., 225 USPQ 968 (S.D.N.Y.1985). We have carefully considered the matter, and discern no abuse of discretion in the district court’s ruling. II. In Appeal No. 85-2287 appellant S.C. Johnson contends that in view of the determination that Carter-Wallace’s infringement was willful, the district court erred in declining to award attorney fees to S.C. Johnson, and in declining to increase the damages for Carter-Wallace’s infringement. The award of attorney fees is authorized by 35 U.S.C. § 285 in “exceptional cases”. In Machinery Corp. of America v. Gullfiber AB, 774 F.2d 467, 471, 227 USPQ 368, 372 (Fed.Cir.1985), this court observed that the “[ajllowance of fees only in exceptional cases is based on the premise that courts should attempt to strike a balance between the interest of the patentee in protecting his statutory rights and the interest of the public in confining such rights to their legal limits”. See also Rohm & Haas Co. v. Crystal Chemical Co., 736 F.2d 688, 692, 222 USPQ 97, 100 (Fed.Cir), cert. denied," }, { "docid": "22983247", "title": "", "text": "finding of willful infringement is sufficient to support an award of increased damages, see Underwater Devices, 717 F.2d at 1390, 219 USPQ at 577, on the record before us it was neither clear error nor an abuse of the trial court’s discretion to deny Shatterproof’s motion. The district court also denied Shatterproof’s motion under 35 U.S.C. § 285 for attorney fees. Shatterproof contends that misconduct by LOF during litigation justifies such an award. Indeed, each side has criticized the litigation tactics of the other. An award of attorney fees is discretionary with the court, Hughes v. Novi American, Inc., 724 F.2d 122, 124, 220 USPQ 707, 709 (Fed.Cir.1984), and section 285 requires that such discretion be exercised only upon a finding of exceptional circumstances. Stevenson v. Sears, Roebuck & Co., 713 F.2d 705, 712-13, 218 USPQ 969, 975 (Fed. Cir.1983). Our review of the record supports the district court’s exercise of judicial discretion. Conclusion We have fully considered all the issues raised by LOF and by Shatterproof on appeal and cross-appeal, including those not here discussed. The decision of the district court is affirmed in every respect. AFFIRMED. . LOF is thus precluded from asserting error in the instruction on appeal from the denial of its motion for a new trial. Fed.R.Civ.P. 51." }, { "docid": "2026676", "title": "", "text": "end of the agricultural bag, said backstop being connected to said cable so that the brake force of said brake means is applied through said cable to said backstop for yieldably resisting the movement of the loading apparatus away from the filled end of said bag. NIES, Circuit Judge, dissenting in part. I agree with parts 1, 2, and 3 of the majority’s opinion. I cannot join part 4 of the opinion, however, because the district court’s finding that Ryco did not willfully infringe Ag-Bag’s patent by sales of its redesigned machine must be upheld under the constraints of Federal Rules of Civil Procedure 52(a). There are two possible views of the evidence so that the district court’s finding that willfulness was not proved cannot be found “clearly erroneous.” Without a reversal of that finding, there is no foundation for holding that this case either is exceptional under 35 U.S.C. § 285 (1982), thereby permitting an attorney fee award, or warrants increased damages under 35 U.S.C. § 284 (1982). I would, accordingly, affirm those portions of the court’s judgment. I The question of whether infringement is willful is one of fact and, therefore, is subject to Rule 52(a)’s clearly erroneous standard of appellate review. See, e.g., Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389, 219 USPQ 569, 576 (Fed.Cir.1983). That standard is defined in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948): 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. See also SSIH Equip. S.A. v. United States Int’l Trade Comm’n, 718 F.2d 365, 381, 218 USPQ 678, 692 (Fed.Cir.1983) (Nies, J., additional views). Further, the patentee has the burden to prove willfulness by clear and convincing evidence. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 628, 225 USPQ 634, 644 (Fed.Cir.), cert. denied, 474 U.S. 976, 106 S.Ct. 340, 88 L.Ed.2d 326 (1985). We may not, of" } ]

[ { "docid": "16475944", "title": "", "text": "reports were discoverable exculpatory material within the terms of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), she did, at the defendants’ request, review the reports in camera before trial. Judge Saris concluded that they contained no exculpatory information. The defendants at trial raised for the first time the argument that the reports were Jencks Act material. Judge Saris again reviewed the reports and again ruled they were not exculpatory and were not Jencks Act material. In fact, she found that the reports tended to buttress Pena’s testimony. Our review of these determinations is for abuse of discretion. United States v. Femia, 57 F.3d 43, 45 (1st Cir.1995) (Jencks Act material); United States v. Perkins, 926 F.2d 1271, 1276 (1st Cir.1991) {Brady material). The prosecution vigorously disputes that these reports are Jencks Act material because the reports involved investigations other than the one in this case. We need not resolve that argument. This case does not provide the occasion to explore the parameters of the Jencks Act requirement that statements be produced “which relate[] to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). Like the district court, we have reviewed the reports submitted in camera. We readily hold that the conclusions drawn by the trial judge were not an abuse of discretion. The Motions for New Trial 1. The Victoria Pena Evidence Defendants argue from the premise that the impeachment of Freddy Pena was key to the defense, despite the fact that the firearms and ammunition were found virtually at their feet. Even accepting the premise, the defense acknowledges that it knew at trial that Pena had been arrested in 1989 and charged in state court with a cocaine trafficking count, that the trafficking charge was reduced to a possession charge, and that Pena was sentenced to time served. What defendants did not know, they say, was that the charge was reduced because Pena’s sister, Victoria Pena, had worked as an informant for the state police in a case involving another drug dealer, Jose Calderon. In January 1996, four" } ]

[ { "docid": "13516721", "title": "", "text": "BAUER, Circuit Judge. David J. Severson and John Steele appeal from a judgment of the district court denying their motions for a new trial based on newly discovered evidence. We affirm. I. Because the facts of this case are set forth in detail in our prior opinion, United States v. Severson, 3 F.3d 1005 (7th Cir.1993), familiarity with which is assumed, we will not repeat them except as necessary to our discussion. A jury convicted Severson and Steele of one count of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court enhanced the defendants’ offense levels under the Sentencing Guidelines for obstruction of justice on the ground that the defendants had perjured themselves at a pretrial suppression hearing and at trial. The district court also denied the defendants’ motions to reduce their sentences for acceptance of responsibility. We affirmed their convictions on direct appeal but vacated their sentences. On the day of oral argument, the defendants had filed motions requesting that we take judicial notice of a letter the defendants had received from Assistant United States Attorney (“AUSA”) Robert A. Anderson informing the defendants of the possible existence of exculpatory material as defined in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Severson, 3 F.3d at 1012. Since this new information was potentially relevant to the obstruction of justice increase and the acceptance of responsibility denial, we remanded the defendants’ sentences for further findings on these issues. Id. at 1013. Following our decision, the government provided the defendants with a copy of a memorandum dictated by AUSA Christopher Van Wagner on May 20, 1993, concerning a conversation between Van Wagner and Madison Police Detective Linda Draeger on April 30, 1993. This conversation occurred while Van Wagner and Draeger were travelling to Madison from Chicago by car. (Athough Van Wagner did not prosecute the defendants, he participated in a portion of the pretrial suppression hearing when AUSA Anderson was unavailable.)" }, { "docid": "5340097", "title": "", "text": "the statement when he adopted it, and second, because Serrano had already admitted in cross-examination that he might have expected to be compensated, thus exposing the very inconsistency that the defense sought to illuminate. We are not convinced by the first rationale. The defense proffered, but was not allowed to show, that Serrano had adopted the factual statement in his plea bargain in every respect. It is speculative to surmise, as the district court apparently did, that Serrano may simply have overlooked the part of the statement of facts in his plea bargain that dealt with compensation. It would seem that any statement expressly adopted by the witness concerning facts that the witness is presently testifying about, whether or not the statement is part of a plea bargain, would qualify as a prior statement of the witness available as impeachment material under Fed.R.Evid. 613. Nonetheless, the second rationale provides an adequate basis to exclude the statement. The purpose of impeachment is to raise questions about the veracity of the witness’s testimony, often by pointing out that the witness has given inconsistent versions of the same set of facts. The very inconsistency that the defendants wished to raise was exposed by the difference between Serrano’s direct testimony and his testimony on cross-examination. It was not an abuse of discretion for the court to conclude that the factual recitation in the plea agreement would add little to what was already before the jury. Trial judges have wide latitude under the Sixth Amendment to limit repetitive or marginally relevant cross-examination. See United States v. Anderson, 139 F.3d 291, 302 (1st Cir.), cert. denied sub nom. Coutermarsh v. United States, — U.S.-, 119 S.Ct. 158, 142 L.Ed.2d 129 (1998). The defendants also contend that the notes of an FBI agent memorializing her interview with Serrano and her understanding of the statements he made during that interview ought to have been admitted. The trial court concluded, quite correctly, that Serrano never adopted those notes as his own statements and that if they were read to the jury they would constitute inadmissible hearsay. Finally, the defendants" }, { "docid": "15702968", "title": "", "text": "See United States v. Huddleston, 194 F.3d 214, 218 (1st Cir.1999). Even application of an incorrect legal standard, though, does not itself mean that a new trial will be ordered. See United States v. Natanel, 938 F.2d 302, 314 (1st Cir.1991); cf. United States v. Montilla-Rivera (Mantilla-Rivera I), 115 F.3d 1060, 1066-67 (1st Cir.1997). These appellate standards of review operate as an overlay on the standard that the trial judge was required to use in evaluating the new trial motions. The defendants brought their motions for new trial under both Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the government to produce to defendants exculpatory and impeachment evidence that is in its custody, possession, and control, see Brady, 373 U.S. at 87, 83 S.Ct. 1194; see also United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Huddleston, 194 F.3d at 222, and Federal Rule of Criminal Procedure 33. New trial motions based on newly discovered evidence require the defendant to show four elements: (1) the evidence was unknown or unavailable to defendant at the time of trial; (2) the failure to discover the evidence was not due to a lack of diligence on the part of the defendant; (3) the new evidence must be material; and (4) the evidence would probably produce an acquittal upon retrial of defendant. United States v. Ortiz, 23 F.3d 21, 27 (1st Cir.1994); see also Fed.R.Crim.P. 33. The difference between a new trial motion based on an alleged Brady violation and an ordinary Rule 33 motion is found in the tests for the third and fourth elements. For Rule 33 motions, “the evidence must create an actual probability that an acquittal would have resulted if the evidence had been available.” United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993) (emphasis added). If, on the other hand, the government possesses Brady evidence but does not disclose it, it is usually said — subject to some caveats — that the non-disclosure warrants a new trial if the evidence is “material.” It is “material”" }, { "docid": "6161092", "title": "", "text": "SPRECHER, Circuit Judge. The case involves a large number of alleged errors by the district court in a criminal trial where the defendant was convicted both of attempted tax evasion in violation of 26 U.S.C. § 7201 and conspiracy to evade the payment of taxes in violation of 18 U.S.C. § 371. Defendant’s chief arguments deal with the admissibility of the hearsay declarations of a co-conspirator not on trial, the propriety of some of the prosecutor’s closing remarks and the failure of the prosecution to provide materials that might have been used by the defendant to impeach one of the prosecution’s main witnesses. I This case involves two consolidated appeals arising out of the same district court case. Initially, defendant appeals his convictions for tax evasion and conspiracy on the basis of numerous assigned errors at trial. Defendant also appeals the district court’s denial of his motion for a new trial based on “newly discovered” evidence that defendant claims was subject to disclosure by the government under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and/or the Jencks Act, 18 U.S.C. § 3500. The facts underlying the convictions will be discussed first and those relevant to the motion for a new trial will be described subsequently. A The defendant, Fred T. Mackey, and his alleged co-conspirator, F. Lawrence Anderson, were charged in a five count indictment. Count I charged the defendant with conspiracy to evade payment of income tax and to defraud the United States by impeding the Internal Revenue Service in the collection of revenue in violation of 18 U.S.C. § 371. Count II charged the defendant with attempted tax evasion in violation of 26 U.S.C. § 7201. Count III charged the defendant with subornation of perjury in violation of 18 U.S.C. § 1622. Counts IV and V of the indictment related only to F. Lawrence Anderson. The claims in the indictment stem from a series of events subsequent to a $2,488,712 stipulated settlement of June 5, 1972, between the defendant and the Internal Revenue Service in a civil case before the Tax Court" }, { "docid": "22211771", "title": "", "text": "cites no case extending the Griffin prohibition to this situation, and it follows that this does not rise to the level of plain error. The second.error alleged occurred at the beginning of Cobb’s cross-examination of Christopher Anderson when, in response to the question whether he was “well rested,” Anderson responded “[w]ell, you can say — I mean ever since the scene in New York — I would recommend to your client not to go there.” C.App. at 352. Whatever prompted the witness to make this statement, we agree with the government that this unintelligible answer was unlikely to have suggested to the jury that Cobb had engaged in other crimes. Failure of the court to sua sponte strike it or declare a mistrial was thus not plain error. D. Brady Violations 1. DEA Payments to Government Witnesses Jackson and Cobb contend that the government’s failure to disclose until after trial that the Drug Enforcement Administration (DEA) had made payments to two cooperating .government witnesses, Dwight Sutton and Darrell Jamison, constitutes a violation of the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and requires a new trial. This is precisely the situation we discussed in Thornton, 1 F.3d at 157-59. Sutton and Jamison had also testified against those defendants, and the government only belatedly advised counsel that they had received payments from the DEA. We did not there, and we do not here, condone the government’s conduct, whether wholly attributable to the DEA or to a lack of communication between the separate divisions of the Justice Department. As we noted in Thornton, in considering the defendants’ motion for a new trial pursuant to Fed.R.Crim.P. 33 on the ground of newly discovered evidence, the court must decide whether there is a reasonable probability that the result would have been different had the evidence been disclosed. Id.; see Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987). The district court denied the motions of Jackson and Cobb, concluding, after examining in detail the evidence against each, that" }, { "docid": "3066091", "title": "", "text": "third requirement of the Kamel test that the evidence must be material and not merely impeaching. Finally, counsel ignore the fact that Owens was certainly not the single source of evidence of the defendants’ guilt. Therefore, the district court did not abuse its discretion in denying the motion for a new trial based on the allegedly newly discovered evidence of Sabrina Owens’ involvement in the homicide of her daughter. Secondly, we address the defendants’ new trial motion, filed with the trial court on June 3, 1993, regarding the government’s failure to disclose its participation in delaying/dismissing three separate state charges against Owens (strong-arm robbery and two misdemeanor thefts). Following a two-day eviden-tiary hearing, the district court found that the government should have disclosed the fact that it requested the state prosecutor to delay filing strong-arm robbery charges against Owens until after she testified at the Cross trial in July 1992. The court found that although the government should have produced this evidence for the defendants pursuant to its “open file policy” and pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as well as Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the failure to disclose the evidence did not warrant a new trial because under the fourth prong of the Kamel test, the court was “not convinced that the outcome of [the] trial would have been different had the matters been fully disclosed.” United States v. Johnson, at 640. The court summarized the overwhelming evidence against the defendants and explained that while “Sabrina Owens was a good witness for the government in this case ... she did not provide all or even a substantial portion of the evidence against these defendants.” Id. at 641. Following the trial court’s final order denying the motion for a new trial on December 21, 1993, each of the defendants (several weeks apart) appealed to this court. We withheld release of the decision on the direct appeal in order to include the subsequent appeal from the denial of the new trial. We" }, { "docid": "14140091", "title": "", "text": "statement and did not qualify as a recantation. See 18 U.S.C. § 1623(d); United States v. Scrimgeour, 636 F.2d 1019, 1024 (5th Cir.), cert. denied, 454 U.S. 878, 102 S.Ct. 359, 70 L.Ed.2d 188 (1981). IV. Newly Discovered Evidence and Governmental Misconduct I Case No. 91-8329 is an appeal from the district court’s denial of Swindall’s first post-trial motion for either a new trial on the basis of newly discovered evidence or dismissal of the indictment on the ground of governmental misconduct. After a thorough review of the record, we agree with the district court that Swindall’s claim of prosecutorial misconduct is without merit. We reject this claim without discussion and turn to the district court’s denial of Swindall’s motion for a new trial based on newly discovered evidence. We review under an abuse-of-discretion standard. See United States v. Russo, 717 F.2d 545, 550 (11th Cir.1983). Swindall contends that the government withheld the contents of three surveillance tapes in which Swindall was mentioned by LeChasney, Agent Mullaney, and Amado Hernandez (“Hernandez”), a confidential informant who assisted Agent Mulla-ney in the money-laundering investigation. Whether a defendant is entitled to a new trial based on newly discovered evidence that was suppressed by the government is controlled by Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963): “[T]he 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.” “The. evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). “Impeachment evidence ... falls within the Brady rule,” id. at 676, 105 S.Ct. at 3380, when the “reliability of a given witness may well be determinative of guilt or innocence.” Napue v. Illinois, 360" }, { "docid": "1573929", "title": "", "text": "its falsity until after the trial. 24 F.2d at 87-88 (emphasis in original). Appellant falls short of this standard on a number of counts. First, Anderson was a witness only at the hearing on the selective prosecution motion, not at the trial. Therefore, any possible perjury would relate to that issue, not to the whole trial. As discussed above, we affirm the district court’s ruling on the selective prosecution motion, without regard to any decision on the credibility of Anderson’s testimony. And insofar as the truth or falsity of Anderson’s statements in the selective prosecution hearing would affect the legality of using certain evidence at trial, we have already decided that appellant’s critical error was in not probing these matters before trial and certainly before Anderson’s testimony at the post-trial hearing. Second, appellant was surely not taken by surprise by Anderson’s testimony at the suppression hearing. The IRS report and affidavits on DOL’s investigation of appellant had been available since August 1981 and provided the basis for most of appellant’s counsel’s cross-examination during the hearing about possible inconsistencies between his testimony and the IRS report. See H.Tr. at 349-52, 365-71, 375-426, 435-36. The district court listened to his extensive efforts to undermine Anderson’s testimony and either rejected them or, as we do, believed other evidence was sufficient to show there was no selective prosecution. Appellant cannot now refight the battle by asserting that he became aware of the evidence only after comparing the August 1981 IRS report with Anderson’s testimony in November 1981, and after securing two affidavits he could have had before trial. Third, we are not “reasonably well satisfied” that Anderson’s testimony is false. Appellant has raised some questions about possible contradictions among parties’ accounts of their conversations, but our review of the record does not lead us in any straightforward manner to the conclusion that Anderson committed perjury. VII. Compliance With Brady v. Maryland Finally, appellant asserts that we should reverse the district court because the government withheld materials discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Since Brady, “it" }, { "docid": "23391220", "title": "", "text": "and Anderson had entered into an extra-judicial conspiracy to convict Dory based on perjured testimony. Dory also claimed that Ryan had withheld exculpatory material from the defense, material that would have undermined the perjured testimony, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The complaint was filed on September 11, 1992, but a copy of a “Department of Correctional Services Disbursement or Refund Request” form indicates that on either August 31, 1992 or September 1, 1992 Dory submitted correspondence related to his complaint to prison officials. Dory’s complaint was brought pro se before the United States District Court for the Eastern District of New York (Platt, J.). By an order filed November 30, 1992, the district court sua spowte dismissed the complaint without prejudice on two grounds. First, the court determined that Dory’s action was untimely under the three-year statute of limitations. Dory had not brought his complaint until 11 years after the original actions by the state officials that prompted the suit. The second basis for dismissing Dory’s complaint was the district court’s determination that Dory had no chance of success on the merits because both Ryan and Anderson enjoyed absolute immunity for their roles in Dory’s trial. The court noted that Ryan was entitled to prosecutorial immunity, while Anderson was entitled to witness immunity. Dory now appeals, arguing that the district court erred in dismissing his' complaint. For the reasons set forth below, we reverse. DISCUSSION Because the district court dismissed Dory’s claim sua sponte, we must review the court’s determination de novo, viewing the evidence in the light most favorable to, Dory and giving him the benefit of all reasonable inferences. See Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir.1993); Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir.1991). I. The Statute of Limitations Dory argues that his complaint was not time-barred, contending that the statute of limitations did not begin to run until he was made aware of or discovered the alleged extra-judicial conspiracy on September 1, 1989. Furthermore, he argues that he instituted" }, { "docid": "23397838", "title": "", "text": "deposition, the Minnesota Supreme Court remanded the case to Hennepin County District Court for a hearing on Mastrian’s new trial motion. At the hearing, Anderson denied the bulk of his recanting letter and reaffirmed his trial testimony. He testified that the portion of his recantation dealing with the involvement of Thompson and Mastrian was the product of threats to his life made by inmates at Stillwater State Prison. The trial court agreed that the recantation was the product of coercion and denied the new trial motion. The Minnesota Supreme Court affirmed. State v. Mastrian, supra at 171 N.W.2d 708. In his habeas corpus petition, Mastrian argued: first, that the newly discovered evidence exonerates the accused and totally discredits all of the state’s direct evidence and, second, that the state’s witnesses were induced to testify by promises of leniency and that the prosecuting authorities failed to disclose this fact to the jury. The District Court denied both claims and Mastrian raises each on appeal. Respecting the newly discovered evidence contention, both the trial court and the Minnesota Supreme Court found that Anderson’s recantation was the product of coercion and, thus, not credible. Mastrian seems not to contest this finding, but does argue that Anderson’s new trial hearing testimony corroborated his recanting statements in several respects — most notably that he was acquainted with state witnesses Sharp, Ingram and Butler. At trial, he denied knowing any of them prior to the Thompson murder. Neither the trial court nor the State Supreme Court considered this evidence during Mastrian’s new trial motion. Although the claim of newly discovered evidence relevant to the guilt of a state prisoner is generally not a ground for relief on federal habeas corpus, Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); see generally Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970), in the interests of judicial economy we believe its prudent to address the contention here. In federal court, the impact of recanted testimony as a basis for a new trial motion depends both on the credibility of the recanting" }, { "docid": "8765915", "title": "", "text": "clerk in typewriting during the interviews and an examination of the memoranda strongly suggested they were substantially verbatim, even adopting the witnesses’ ungrammatical construction of sentences. Hilbrich stands for the proposition that if a statement taken or recorded by government counsel falls within the act, it must be produced even though the statement might be labeled an attorney’s “work product.” No claims were made that the ' notes of the memoranda might contain Brady material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The result is not harsh as the substance of the interview was disclosed to Consolidated in the bill of particulars. Next, in the use of the bill of particulars to cross-examine Anderson, Consolidated developed some inconsistencies primarily in relation to dates which it considered important. A stipulation was suggested but refused by the government which countered with an offer to produce the original memoranda sought by defendant if defendant would stipulate to their accuracy. Consolidated understandably re fused. Consolidated then considered calling government counsel as a witness to try to establish the alleged impeaching statements. Consolidated, however, decided not to follow that course when the government claimed that it would then have the reciprocal right to rehabilitate Anderson with his consistent statements. The trial judge tentatively indicated a somewhat narrower view of the government’s right to rehabilitate than espoused by the government, but broader than argued by Consolidated in that it would not necessarily be strictly limited within the scope of any impeaching inconsistent statements. The trial judge stated that he viewed it as a matter of discretion and the extent consistent statements might be permitted was difficult to know but that the government would not be allowed to put in every affirmative statement it might wish. He would permit what was sufficient to show that the statement of the witness contained more than the three or four points that Consolidated desired to extract from it as impeaching. Consolidated argues that it was the government’s position that if government counsel was called as a defense witness to establish Anderson’s inconsistencies, the government" }, { "docid": "991424", "title": "", "text": "his arrest) announced a robbery, told her he had a gun, and said she should stay calm, not press the alarm, and give him the $20s, $50s, and $100s from her drawer. She complied and Traeger left the bank $5,840 richer. The defense to this robbery was misidentification. There was other evidence pointing to Traeger’s guilt (like an incriminating utterance to a police officer regarding the La-Salle Bank robbery), but we think we can safely stop now and consider the arguments Traeger advances in the hope of setting aside his convictions. Traeger’s first claim concerns an alleged Brady violation (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)) involving Ms. Anderson’s testimony, which he argues was “outcome-determinative” on the Great Bank charge. This characterization of Anderson’s testimony is a bit of a stretch. Sure, “lack of intent to rob” was the “defense” to the charge, but there was no defense evidence offered to support it, only inferences as urged by Traeger’s lawyer during closing argument. Nevertheless, we agree that her testimony was helpful to the government, so we’ll look deeper into Traeger’s claim. As we said, there was a bizarre 2 year hiatus between Traeger’s conviction and sentencing. A lot can happen over 2 years, and a lot did happen here. For one thing, as we have already noted, Traeger went through a number of lawyers. For another, he testified on behalf of a chap named Terrence McClurge, who was being prosecuted by Stuart Fullerton, one of the AUSAs who prosecuted Traeger’s case. The McClurge trial took place 8 months after Traeger was convicted. During his cross-examination in the McClurge case, Fullerton asked Traeger if he knew that Anderson was granted immunity in exchange for her testimony against him during his trial. When Traeger testified in McCIurge’s trial, he was being represented in posttrial litigation by attorney Gerald Collins, who was appointed to replace Robert Clarke, the trial lawyer who was discharged at Traeger’s request. Collins had filed a motion for a new trial alleging that Clarke rendered ineffective assistance. Four months after the McClurge trial," }, { "docid": "21983376", "title": "", "text": "St. Louis, he returned the vehicle and the drugs to Anderson’s house. After the drugs were taken out of the false compartment, Brown drove Miller home. From this evidence, we conclude that a jury could reasonably find that Brown knowingly and intentionally joined the conspiracy. Similarly, the evidence is sufficient to support Alexander’s conviction. According to the testimony of Anderson and Bass, Alexander accompanied them to California and Texas to purchase drugs. Alexander argues that the testimony of his codefen-dants was unreliable and that he was either merely present or an independent actor. The jury, however, found Alexander’s codefendants’ testimony credible, and “[w]e give significant weight to the jury’s credibility determination.” Alexander, 408 F.3d at 1008. From the evidence presented, a jury could reasonably deduce that Alexander knew of, and intentionally joined, the conspiracy. Alexander and Brown next argue that the district court erred in denying their motions for a new trial based on newly discovered evidence. We review the district court’s denial of such motions for abuse of discretion. United States v. Dittrich, 204 F.3d 819, 821 (8th Cir.2000). A new trial will be granted only if the following five elements are met: (1) the evidence must have been discovered after the trial; (2) the failure to discover must not be attributable to a lack of due diligence on the part of the movant; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material; and (5) the evidence must be likely to produce an acquittal if a new trial is granted. Id. (quoting United States v. Ryan, 153 F.3d 708, 713 (8th Cir.1998)). Alexander and Brown based their motion on an alleged conversation that took place between Brown and Donald Fults, a drug courier. At trial, Fults testi fied that Brown and Alexander were members of the conspiracy. In their post trial motions for a new trial, Brown and Alexander alleged that Fults apologized for testifying against Brown and that Fults said that Anderson paid him to testify. Before denying their motions, the district court heard arguments and the testimony of Fults and" }, { "docid": "20190073", "title": "", "text": "269, 88 L.Ed.2d 275 (1985). Baxter then filed a petition for a writ of habeas corpus in Georgia court, which writ was denied following an evidentiary hearing. The Georgia Supreme Court affirmed the denial of the writ. Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990). Baxter filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia, pursuant to 28 U.S.C. § 2254 (1988), challenging his conviction and death sentence. The district court denied relief without holding an evidentiary hearing and this appeal follows. II. Baxter enumerates various errors at his trial which he contends merit reversal of his conviction. Because we find these contentions to be without merit, we AFFIRM the district court’s denial of relief as to Baxter’s conviction. A. Baxter first alleges that the prosecutor withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He asserts that the prosecutor withheld the following: (1) statements that Anderson previously had given to police that could have been used to impeach Anderson; (2) statements given by Opal Moore, the victim’s stepmother, and Kathryn Moore, the victim’s natural mother, indicating that Bussey was violent; (3) evi-denee that McWilliams had testified in order to garner early release from prison; and (4) a 1972 Bulloch County order from a prior criminal case in which Baxter was found temporarily incompetent to stand trial. To establish a Brady violation, Baxter must prove: (1) that the government possessed evi- ' dence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir.1992) (citations omitted). Baxter cannot meet this burden for any of the material which he alleges to have been withheld in violation of Brady. Anderson" }, { "docid": "14050997", "title": "", "text": "the jury was free to infer that Anderson would receive a minimal sentence—possibly even saving him nearly all of the “decades” in prison alluded to. In reality, Anderson may have saved even less prison time by cooperating than what the jury believed. Anderson avoided a life sentence only to be sentenced to 20 years in prison at age forty-four. As a result, unless Anderson lives beyond age eighty-four, Anderson indeed will have saved only two “decades” or less in prison by cooperating. Thus, Wright has failed to “show[ ] that a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination.” See Dunn, 723 F.3d at 934 (quotation omitted). As such, we cannot conclude that the district court abused its discretion by requiring this alternative language once Wright’s counsel’s line of questioning1 guaranteed that the jury would realize that Wright faced the same life sentence as Anderson. Therefore, the district court did not violate the Confrontation Clause. C. Brady Claim Next, Wright argues that he is entitled to a new trial' under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). “Under Brady and its progeny, prosecutors have a duty to disclose to the defense all material evidence favorable to the accused, including impeachment and exculpatory\" evidence.” United States v. Robinson, 809 F.3d 991, 996 (8th Cir. 2016). “This duty extends not only to evidence of which a prosecutor is aware, but also to material favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id. (quotation omitted). We review a district court’s denial of a new trial based on undisclosed Brady material for abuse of discretion. United States v. Ellefsen, 655 F.3d 769, 777 (8th Cir. 2011). To prove a Brady violation, “the defendant must show that the evidence was 'favorable and material and that the government suppressed the evidence.” Id. at 778. Here, the Government concedes that the evidence was favorable and suppressed. Thus, the only contested issue is whether the evidence" }, { "docid": "22796992", "title": "", "text": "the prosecution. Thus, Roman claimed that the prosecution knowingly used perjured testimony during his trial, but failed to inform him or the court about it. This failure denied him the opportunity to cross-examine M. Soto, a key government witness against him regarding the Robinson murder, thereby warranting a new trial. Second, Roman claimed that the government violated its obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for it failed to disclose exculpatory information to him regarding Detective Segarra’s contacts and relationship with M. Soto. For purposes of considering Roman’s motion for a new trial, the district court assumed that Miranda’s affidavit constituted newly discovered evidence and that it showed M. Soto committed perjury at trial. Roman contends that the court erroneously denied his motion by finding (1) that there was no basis for imputing Detective Segarra’s purported knowledge to the government because he only had an incidental role in the prosecution; (2) that evidence of M. Soto’s perjury was cumulative and immaterial; (3) that M. Soto’s testimony about Roman’s role in the Robinson murder was fully corroborated; and (4) that the prosecution had not violated its Brady obligations. We disagree. 1. Newly Discovered Evidence A motion for a new trial based on newly discovered evidence is “not favored,” and a district court “must exercise great caution ... and may grant the motion only in the most extraordinary circumstances,” United States v. Spencer, 4 F.3d 115, 118 (2d Cir.1993) (internal quotation marks omitted), where it is required in the interest of justice, Fed.R.Crim.P. 33. We will not reverse a district court’s findings of fact concerning a motion for a new trial unless they are clearly erroneous; nor will we overturn the denial of such a motion unless there has been an abuse of discretion. See United States v. Diaz, 922 F.2d 998, 1006-07 (2d Cir.1990). Newly discovered evidence does not warrant a new trial unless the defendant shows that: (1) the “ ‘newly discovered evidence’ could not with due diligence have been discovered before or during trial”; (2) where the claim is that" }, { "docid": "14050982", "title": "", "text": "whom testified that they saw the two men selling drugs together or that Anderson would deliver drugs after they had contacted Wright. They also testified about the injuries and deaths caused by the drugs distributed by Wright and-Anderson. On March 1, 2016, the parties gave closing arguments and the case was submitted to the jury. The next-day, the jury returned a verdict of guilty on all counts. However, following closing arguments, the Government learned for the first time that one of its customer-witnesses, Bonnie Schliemann, had previously cooperated with law enforcement as a confidential informant. The Government then contacted officers at the Cedar Rapids Police Department and learned that two other customer-witnesses, Amy Kiefer and Jason Gavin, also had previously cooperated with law enforcement. Finally, the Government learned that its case agent, Gregg Fox, paid $20 to another customer-witness, Glenden Belsha, for an unsuccessful-attempt to purchase drugs from Wright. Upon discovering these facts, the Government disclosed this information on March 3, 2016. Wright filed a motion for a new trial, arguing that the Government’s failure to disclose this information earlier violated his right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also argued that the district court erred in admitting evidence of his prior felony conviction under Rule 404(b) and violated the Sixth Amendment’s Confrontation Clause by limiting his cross-examination of Anderson. The district court denied the motion. It reasoned that although the information regarding the four witnesses was favorable to Wright and suppressed by the Government, it did not violate his right to a fair trial because it was not material to the outcome. It also held that it did not err in admitting the prior felony conviction and that it did not violate the Confrontation Clause. Wright now appeals. II. DISCUSSION A. Rule 404(b) Evidence First, Wright argues’ that the district court erred in admitting evidence of his felony conviction under Rule 404(b). We review a district court’s decision to admit prior convictions under Rule 404(b) for an abuse of discretion. United States v. Gant, 721 F.3d" }, { "docid": "3587326", "title": "", "text": "an evidentiary hearing on the motion for a new trial during which the witness testified, the trial judge denied the motion. She found that the newly discovered evidence was “impeaching evidence of bad calibre which could not have any effect on the outcome of [the] case”. United States v. Malavet Rodriguez, No. 83-0024 CC, slip op. (D.P.R. June 2, 1983). The disposition of a motion for a new trial rests within the discretion of the trial judge, and will be disturbed on appeal only for abuse of discretion or misapplication of the law. United States v. Johnson, 1946, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562. Malavet contends that the trial judge misapplied the law in this case. Because Malavet’s motion for a new trial was filed within seven days of his conviction, Malavet asserts that the trial judge should have granted the motion if it was in the interest of justice to do so. Malavet’s contention that the interest-of-justice standard applies in this case is based on the decision of the District of Columbia Circuit in United States v. Anderson, D.C.Cir.1974, 509 F.2d 312, cert. denied, 1975, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672. In Anderson, the court noted that “a new trial motion based on newly discovered evidence made within the seven-day period following verdict ... is to be measured in terms of ‘the interest of justice,’ and not by the stricter standard applicable to motions submitted outside that time frame.” Id. at 327. Malavet does not cite any authority that would indicate that the Anderson standard has been adopted by this Court. In considering Malavet’s motion, the trial judge relied on the more exacting standards adopted by this Court in Pelegrina v. United States, 1st Cir.1979, 601 F.2d 18. In that case, we held that a new trial would be granted on the basis of newly discovered evidence if (1) the evidence is in fact newly discovered, (2) the evidence would effect the outcome of the trial, (3) the evidence is material, and (4) the failure to obtain the evidence during trial" }, { "docid": "14216985", "title": "", "text": "Conley has not served any of this sentence. No policeman was indicted or convicted of the beating, although three officers—but not Conley—were found liable to Cox in a civil trial following Conley’s criminal trial. On direct appeal, this court in 1999 affirmed the conviction. Conley I, 186 F.3d at 26. After the affirmance, Conley in early 2000 moved for a new trial under Fed.R.Crim.P. 33. Conley identified a number of pieces of evidence that he claimed were either newly discovered or wrongly withheld by the prosecution. Most of the evidence would have been useful (if useful at all) to impeach Officer Walker and—in one instance—Brown. One other piece of evidence, comprising the civil trial testimony of a security guard named Charles Bullard who was riding with Cox, might (in Conley’s view) have suggested that Cox could have ended up behind Conley during the chase to the fence. Under Rule 33, a new trial in “the interests of justice” may be granted liberally on a motion made “within 7 days” after the verdict; but, thereafter, it can be granted solely for newly-discovered evidence (and then only on a motion made within three years). Fed.R.Crim.P. 33. Further, under the case law, the defendant who makes such a motion after seven days bears the heavy burden of showing that the evidence would probably result in an acquittal upon retrial. United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980). But if the new evidence was wrongly withheld by the government in violation of its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it is enough to show that the evidence undermines confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In its decision on the Rule 33 motion in June 2000, the district court discussed the alleged new evidence at some length and concluded that material new evidence had first become available to defense counsel only after trial, Conley II, 103 F.Supp.2d at 51-58; the court was less clear as to whether any had been wrongly withheld" }, { "docid": "6550371", "title": "", "text": "Here, the district court calculated the statutory maximum at 50 years, and then downwardly departed from that point. It is not clear from the record that the district court would not have given Simpson a lower sentence if his statutory maximum were lower. We do not find “evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error.” Id. at 718 (quoting United States v. Huskey, 137 F.3d 283, 289 (5th Cir.1998)). F. Motion for New Trial (Simpson) Simpson next argues that the district court erred when it denied his motion for a new trial, based on the newly disclosed fact that AT & T was being sued by the United States for fraudulent billing for international phone calls made by Nigerian spammers. He also argues that failure to disclose this previously sealed lawsuit against AT & T before trial violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Simpson argues that he would have used this evidence to impeach two AT & T witnesses who testified at trial. We review the denial of a motion for a new trial for abuse of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir.2011). A claim that the government suppressed material evidence is reviewed de novo, but with appropriate deference to the district court’s factual findings. See United States v. Brown, 650 F.3d 581, 589 (5th Cir.2011). To either warrant a new trial based on newly discovered evidence or succeed on a Brady claim, Simpson must show that the new or withheld evidence is material. See United States v. Pena, 949 F.2d 751, 758 (5th Cir.1991); United States v. Ellender, 947 F.2d 748, 756 (5th Cir.1991). Simpson does not persuasively argue how the evidence of fraudulent billing by AT & T as a corporate entity is material. He argues that the new evidence lent credence to his assertion to Bandwidth.com, when Bandwidth discovered high international usage by Aston, that Aston could have been Nigerian spammers. However, the evidence in the" } ]

[ { "docid": "14203216", "title": "", "text": "that the law of Pennsylvania was applicable and that Lea in failing to procure endorsements for U & 0 coverage and specifically naming Bargain City breached the duty owed the plaintiffs-appellees as an insurance broker. The court said: “Under Pennsylvania law, which is applicable in this diversity suit, whether the charge is negligence or breach of contract, the brokers’s conduct is measured by the same standard.” , citing Talley v. Hoffman, 18 Pa.Dist. & Co.R.2d 725, 729 (1959) as follows: “[A]n insurance broker is under a duty to exercise the care that a reasonably prudent businessman in the brokerage field would exercise under similar circumstances and if the broker fails to exercise such care and if such care is the direct cause of loss to his customer, then he is liable for such loss unless the customer is also guilty of failure to exercise care of a reasonably prudent businessman for the protection of his own property and business which contributes to the happening of such loss.” The district judge also cited with approval, inter alia, 16 Apple-man, “Insurance Law and Practice” § 8841, p. 510, which states: “Liability of Broker—Failure to Procure Insurance. An insurance broker is the agent of the insured in negotiating for a policy, and owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting insurance. Thus he may be held liable where he has breached a contract to procure insurance for his principal. And while such broker is not obligated to assume the duty of procuring a policy, without consideration for his promise, he must exercise ordinary care in the performance of such duty when assumed, the promise to take the policy being a sufficient consideration. He is charged with the exercise of reasonable care and skill in making inquiries and obtaining information concerning the responsibility of the insurer with whom they place [sic.] the risk, and is liable for any loss occasioned by such want of care. If a broker or agent of the insured neglects to procure insurance, or does not follow instructions, or if the policy is" } ]

[ { "docid": "12090553", "title": "", "text": "should possess reasonable knowledge of the general types of policies available, understand their different terms, and explore the specific coverage available in the area in which [the client] seeks to be protected. First Alabama Bank v. First State Insurance Company, Inc., 899 F.2d 1045, 1068 (11th Cir.1990). Proper diligence requires the insurance broker to “canvass the market” and to be informed about different companies and variations in the available terms. Id. at 1068. If, as in OPC’s case, a client directly informs the broker about a particular risk, reasonable diligence requires the broker to address that specific risk, and to determine which insurance company can provide the desired coverage. Id. at 1068. The broker should also understand the specific terms of the policy which he is selling. Where the broker does not understand the policy, reasonable diligence requires the broker to discover what the insurance company intended to include and exclude under the policy’s language. Because BMF neglected to address the risk faced by OPC when negotiating the insurance, failed to communicate OPC’s concerns from agent to agent, and neglected to determine what Republic would and would not cover under the policy’s language, BMF failed to use reasonable diligence when procuring the stand-by insurance. BMF could have avoided liability for this lack of diligence if Barbara had promptly informed OPC that he did not obtain a policy which covered weather down-time. Under Louisiana law, an insurance agent who is unable to procure coverage against a particular risk has a duty to inform the client about the difference between the requested coverage and the coverage provided by the policy actually obtained. Aurillo v. Gressaffa, 405 So.2d 664, 666 (La.App.1981 writ denied); Cambre, 404 So.2d at 515-16 (Where insurer obtained “named risk” rather than “all risk” policy, he had a duty to inform insured). The district court’s conclusion that Barbara neglected this duty was not clearly erroneous. Barbara claims that he cannot remember whether or not he informed OPC that its insurance policy would cover down-time resulting from weather-related delays. He evidently did tell OPC that this provision was new, and that" }, { "docid": "14203224", "title": "", "text": "we have been able to find is Talley v. Hoffman, supra, 18 Pa.Dist. & Co.R. 2d at 729 in which Judge Greevy of the Court of Common Pleas of Lycoming County stated: “A principal may sue his agent to recover damages for all losses sustained by him because of the agent’s breach of duty. The general rule is that an agent, in executing his agency, is required to exercise the degree of care ... ,. , , ,. which an ordinarily prudent person would exercise under the circumstances. If he fails to exercise such ordinary care, he is liable to the principal for all losses sustained by him in consequence thereof. Specifically, an insurance broker is under a duty to exercise the care that a reasonably prudent businessman in the brokerage field would exercise under similar circumstances and if the broker fails to exercise such care and if such care is the direct cause of loss to his customer, then he is liable for such loss unless the customer is also guilty of failure to exercise care of a reasonably prudent businessman for the protection of his own property and business which contributes to the happening of such loss.” See also Kovler v. Easterby, 79 Pa.Dist. & Co. 102 (1951). We can find no Pennsylvania case directly in point on the issue as to whether negligence of an insurance broker must be proved by expert testimony but a decision of the Court of Appeals of Maryland is suggestive, we think, of what the Supreme Court of Pennsylvania might hold in a case similar to that at bar. In Lowitt v. Pearsall Chemical Corporation of Maryland, 242 Md. 245, 252, 219 A.2d 67, 73 (1966), the Court of Appeals of Maryland held that expert testimony was not necessary to establish the degree of skill required of an insurance broker and that the broker’s contention that the degree of skill and diligence usually employed by brokers under circumstances' similar to those at bar could only be determined by exPel’t testimony was held to be incorrec^' ®ee Insurance Law and Practice, Appleman, Section" }, { "docid": "6328217", "title": "", "text": "time it would have been due had the requested policy been in effect, i.e., sixty days after proof of loss. It seems to be well settled that an insurance agent or broker who undertakes to provide insurance for another, and by his own fault or neglect fails to do so, is liable in the amount that would have been due under the policy of insurance if it had been obtained. Under New Mexico law, “the date on which the contract of insurance was breached * * * is the date when interest, as an element of damage, might be considered.” O’Meara v. Commercial Insurance Company, 71 N.M. 145, 376 P.2d 486, 490 (1962). The overwhelming consideration in allowing prejudgment interest is to insure just compensation to the injured party. Just compensation in the case at bar must be measured by that which could have been recovered had the insurance company been liable on its policy. We would be hard put to permit a defendant by his own wrongdoing to better his position. We uphold the allowance of prejudgment interest. Appellees’ cross-claim against Maryland Casualty Company is to be considered only in the event the judgment against H. Wayne Butler is reversed. In light of the conclusions reached above, we need not consider the cross-appeal. The judgment is affirmed. . Cateora v. British Atlantic Assurance, Ltd., 282 F.Supp. 167, 174 (S.D.Tex. 1968), see also Jernigan v. New Amster dam Cas. Co., 69 N.M. 336, 367 P.2d 519 (1961). . Club Martinique, Inc. v. United States, 409 F.2d 841 (10th Cir. 1969); Cosby v. Shackelford, 408 F.2d 1144 (10th Cir. 1969). . Trinity Universal Ins. Co. v. Rocky Mountain Wholesale Co., 353 F.2d 574 (10th Cir. 1966). . Couch on Insurance 2d § 25:37. . Annot. 29 A.L.R.2d 171 § 9; 44 C.J.S. Insurance § 172; Couch on Insurance 2d § 25:47. . Couch on Insurance 2d § 25:35. . F.R.Civ.P. rule 52(a), 28 U.S.C.A. See cases cited note 2, supra. . Jernigan v. New Amsterdam Cas. Co., 69 N.M. 336, 367 P.2d at 525. . Gibbins, Inc. v. Utah Home Fire" }, { "docid": "12195704", "title": "", "text": "agreement entered with the insured and what is to be implied from it. Thus it is generally said that when a broker is engaged to obtain insurance for another, éven though he might be given discretion to select the company with whom insurance is to be placed, he exhausts his authority once the insurance is obtained. Smith v. Firemen’s Ins. Co., 104 F.2d 546 (7th Cir. 1939). Stated differently, the mere employment of an agent to secure insurance gives the agent neither actual nor apparent authority to cancel it. On the other hand, where there is a general entrusting of insurance affairs by a person to a broker, as for example where a broker is employed to keep property insured for his client, the broker’s authority, by agreement or implication, may well extend to the modification or cancellation of policies. 16 Appleman, Insurance Law and Practice, § 8724 (1944). But in order to bind the insured, not only must the broker’s authority be established, but it must also be shown that the broker is purporting to exercise it, that is, that he is acting as the agent of the insured. Institutional relies solely upon a cancellation of the policy by, or on behalf of, Holbrook. It contends that White, as Holbrook’s agent in procuring the policy, had implied authority to cancel it on Holbrook’s behalf by virtue of the fact that White was permitted to retain the policy in his possession. In support of its position Institutional refers to a statement in Fowler Cycle Works v. Western Ins. Co., 111 Ill.App. 631, 634 (1904), that “generally speaking, possession of a policy by an insurance broker confers upon him implied authority to procure its cancellation.” But even if we assume that White’s possession of the policy gave him implied authority to procure its cancellation, it is of no avail to Institutional if Institutional either had knowledge that White had no such actual authority or knew that he was not acting as Holbrook’s agent in attempting to cancel it. It is evident from the facts that Institutional may not rely upon White’s" }, { "docid": "2904523", "title": "", "text": "contract for breach of its express promises, see Eidson, 508 So.2d at 703. Thus, because Johnson & Higgins made express promises on how it would meet First Alabama’s insurance needs in both its oral presentation and written proposal, upon which the bank relied, we believe the court’s holding that plaintiff’s action sounds in contract is correct under Alabama law. To determine whether the court was correct in holding that Johnson & Higgins had breached its contract with First Alabama, we must also discuss the obligations of an insurance broker to its principal. “ ‘An insurance broker is the agent of the insured in negotiating for a policy, and owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting insurance.’ ” Timmerman, 229 So.2d at 477 (quoting 16A J. APPLEMAN, INSURANCE LAW & PRACTICE § 8841 (rev. ed. 1981)). An insurance broker is expected “ ‘to possess reasonable knowledge of the types of policies, their different terms, and the coverage available in the area in which his principal seeks to be protected.’ ” Bates v. Gambino, 72 N.J. 219, 370 A.2d 10, 13 (1977) (per curiam) (quoting 16A J. APPLEMAN, INSURANCE LAW & PRACTICE § 8845 (rev. ed. 1981)); See also Stein, Hinkle, 313 N.W.2d at 304 (allowing plaintiffs to reform their insurance policy because their agent did not inform them about the availability of prior acts coverage). Proper diligence requires an insurance broker to “canvass the market” and to be informed about “different companies and terms available.” Zeff Distrib. Co. v. Aetna Casualty & Surety Co., 389 S.W.2d 789, 795 (Mo.1965). Furthermore, an insurance broker can assume additional duties by an express agreement. See Hardt v. Brink, 192 F.Supp. 879, 881 (W.D.Wash.1961). Whether a broker assumes additional responsibilities depends on the relationship between the parties. See id. In this case, First Alabama made its desire for trust department E & 0 insurance with prior acts coverage known to Johnson & Higgins in 1976 and in subsequent years. Tr. at 102, 105, 377. Johnson & Higgins represented to the bank that it would “shop the market”" }, { "docid": "18702631", "title": "", "text": "coverage. The insured read the policy and believed defense costs were included in its $50,000 self-insured retention. Given the ambiguity of Endorsement 2 and its conflict with other policy provisions, I find this entirely reasonable, particularly in light of the insured’s prior negotiations with Johnson & Higgins. Johnson & Higgins’ Joint Liability Johnson & Higgins agreed to negotiate and procure a product liability insurance policy acceptable to Century. By undertaking this task, Johnson & Higgins owed a duty to Century to “exercise reasonable skill, care and diligence” in procuring a policy. 16 Appleman “Insurance Law and Practice” § 8841, p. 171. When an insurance broker or agent undertakes to procure an insurance policy for an insured, an action in tort will lie for breach of the duty to exercise due care in performance of the undertaking. Clark v. Dalman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967); see also Stein v. Continental Casualty, 110 Mich.App. 410, 417, 313 N.W.2d 299 (1981) (where a special relationship exists between insurance agent and insured, there is a duty to advise of adequacy of coverage); 14 Callaghan’s Michigan Civil Jurisprudence, Insurance, § 82, p. 101. Despite the ambiguous language of the Midland insurance policy, the uncontroverted testimony of Johnson & Higgins’ agent Voss was that he understood that Midland’s intent was that defense costs would be apportioned between Century and Midland in proportion to the amount contributed by Century and Midland to any settlement or judgment paid to a third party under the policy. In short, Voss testified that he understood the proposal exactly as Midland now claims it was made. This intended limitation on coverage with respect to defense costs was a significant departure from Johnson & Higgins’ representation of Midland’s earlier proposal in January of 1979. It was likewise a significant departure from prior negotiations between Century and Johnson & Higgins, and was markedly different from the Alexander & Alexander proposal which was also receiving serious consideration by Century. Johnson & Higgins failed to effectively bring home these differences. Voss, Johnson & Higgins’ agent, admitted at trial that it would have been" }, { "docid": "5018924", "title": "", "text": "Alabama set forth the applicable law: [W]hen an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom. Once the parties have come to an agreement on the procurement of insurance, the agent or broker must exercise reasonable skill, care, and diligence in effecting coverage. When the agent or broker has failed in the duty he assumes, the principal may sue either for breach of the contract or, in tort, for breach of the duty imposed on the agent or broker. Id. (citations omitted). The court finds that genuine issues of material fact exist regarding Brown’s breach of contract claim against Bodi & Wachs. It is undisputed that, without Brown’s knowledge, the insurance policy at issue was canceled in October 1991 for nonpayment of premiums. These premiums were to be paid by TCAS. Brown further asserts that in November 1991, one of its employees spoke with a representative of Bodi & Wachs, who said that Brown had coverage under the policy for the theft of its aircraft. While Bodi & Wachs denies that this conversation occurred, the court finds that a conflict in such critical evidence is meant for resolution by trial. In other words, the court finds that there is a factual dispute about whether Bodi & Wachs had agreed to maintain the insurance policy (or had an obligation, when asked by Brown, to inform it that the policy had been canceled) and whether Bodi & Wachs “exerciser reasonable skill, care, and diligence in effecting coverage.” Id. Accordingly, the court finds that Bodi & Wachs’ motion for summary judgment on Brown’s breach of contract claim is due to be denied. C. INA The questions of law certified to the Supreme Court of Alabama are dispositive of INA’s motion for summary judgment on Brown’s breach of contract' claim. INA argues in brief that it is relieved from paying Brown’s claim for theft of the aircraft because of the applicability of the following two policy provisions: First, INA states" }, { "docid": "5018923", "title": "", "text": "the light most favorable to Brown, the court will presume for purposes of determining choice of law, that Brown was in fact entitled to a copy of the insurance policy. In other words, if as alleged by Brown, he was entitled to a copy of the insurance policy, delivery and acceptance thereof would have been effected in Alabama. Accordingly, the court will apply Alabama law to Brown’s breach of contract claim. B. Bodi & Wachs While not clearly articulated, Brown’s breach of contract claim against Bodi & Wachs appears to be premised upon the failure of Bodi & Wachs to procure and maintain an effective insurance policy. “In Alabama, when an insurance broker [or agent] fails in the duties he assumes, one can sue him either for breach of contract or in tort.” First Alabama Bank of Montgomery, N. A. v. First State Ins. Co., 899 F.2d 1045, 1067 (11th Cir.1990) (citing Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060, 1065 (Ala.1978) (per curiam) (brackets added)). In Highlands, the Supreme Court of Alabama set forth the applicable law: [W]hen an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom. Once the parties have come to an agreement on the procurement of insurance, the agent or broker must exercise reasonable skill, care, and diligence in effecting coverage. When the agent or broker has failed in the duty he assumes, the principal may sue either for breach of the contract or, in tort, for breach of the duty imposed on the agent or broker. Id. (citations omitted). The court finds that genuine issues of material fact exist regarding Brown’s breach of contract claim against Bodi & Wachs. It is undisputed that, without Brown’s knowledge, the insurance policy at issue was canceled in October 1991 for nonpayment of premiums. These premiums were to be paid by TCAS. Brown further asserts that in November 1991, one of its employees spoke with a representative of Bodi & Wachs, who" }, { "docid": "2904522", "title": "", "text": "e.g., Langley, 512 So.2d at 752; Timmerman Ins. Agency, Inc. v. Miller, 285 Ala. 82, 229 So.2d 475 (1969), Johnson & Higgins breached not only a contract to procure insurance, but also a contract to “provide the knowledge and skill necessary to meet FAB’s insurance needs.” District Court’s Memorandum Opinion (May 26, 1988), Rec. 207, at 44. Alabama law holds that when one contracts with another and expressly promises to use due care or to do an act, he is liable in both tort and contract when his negligence injures the other party. See Blumberg v. Touche Ross & Co., 514 So.2d 922, 927 (Ala.1987); Eidson v. Johns-Ridout’s Chapels, Inc., 508 So.2d 697, 702 (Ala.1987). “He is liable in contract for breaching an express promise to use care,” and the injured party can choose which cause of action to pursue. Blumberg, 514 So.2d at 927. Alabama has held that one can sue an accounting firm in contract for breach of its express agreement, see id. at 925, and one can sue a funeral home in contract for breach of its express promises, see Eidson, 508 So.2d at 703. Thus, because Johnson & Higgins made express promises on how it would meet First Alabama’s insurance needs in both its oral presentation and written proposal, upon which the bank relied, we believe the court’s holding that plaintiff’s action sounds in contract is correct under Alabama law. To determine whether the court was correct in holding that Johnson & Higgins had breached its contract with First Alabama, we must also discuss the obligations of an insurance broker to its principal. “ ‘An insurance broker is the agent of the insured in negotiating for a policy, and owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting insurance.’ ” Timmerman, 229 So.2d at 477 (quoting 16A J. APPLEMAN, INSURANCE LAW & PRACTICE § 8841 (rev. ed. 1981)). An insurance broker is expected “ ‘to possess reasonable knowledge of the types of policies, their different terms, and the coverage available in the area in which his principal seeks to be" }, { "docid": "12090547", "title": "", "text": "206, 211-12, 73 S.Ct. 245, 249, 97 L.Ed. 245 (1952); First Nationwide Bank, 902 F.2d at 1200; Ellis v. Richardson, 471 F.2d 720 (5th Cir.1973). Rather, the test is “whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.”, Id. 73 S.Ct. at 249. In this case, the district court’s August 28 judgment did not in any manner alter the legal rights or obligations of any party. Consequently, the August 10 judgment is final and appealable, and this court has jurisdiction to reach the merits of this case. BMF raises two challenges to the district court’s ruling that BMF was liable to OPC for failing to procure adequate insurance. First, BMF contends that the district court committed clear error when it concluded that BMF violated its duty under Louisiana law to procure the insurance requested by OPC, or alternatively to inform OPC that it had acquired different coverage. Second, BMF argues that its omissions did not cause OPC’s damage: OPC never received coverage under the policy because OPC failed to pay the premium. Even if OPC had remitted the premium, Republic wrongfully denied coverage for the claim. BMF contends that these two actions, rather than its omissions, caused the damage. Under Louisiana law, an insurance broker has a fiduciary responsibility to the insured as well as to the insurer, and he is liable for his own fault or neglect. Neustadter v. Bridges, 406 So.2d 738, 741 (La. App.1981). In order to recover for a loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) actions by the agent warranting the client’s assumption that the client was properly insured. Chandler v. Jones, 532 So.2d 402, 405 (La. App.1988); Norred v." }, { "docid": "12090548", "title": "", "text": "cause OPC’s damage: OPC never received coverage under the policy because OPC failed to pay the premium. Even if OPC had remitted the premium, Republic wrongfully denied coverage for the claim. BMF contends that these two actions, rather than its omissions, caused the damage. Under Louisiana law, an insurance broker has a fiduciary responsibility to the insured as well as to the insurer, and he is liable for his own fault or neglect. Neustadter v. Bridges, 406 So.2d 738, 741 (La. App.1981). In order to recover for a loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) actions by the agent warranting the client’s assumption that the client was properly insured. Chandler v. Jones, 532 So.2d 402, 405 (La. App.1988); Norred v. Commercial Union Insurance Co., 526 So.2d 829, 835 (La.App.1988 writ denied); Cambre v. Travelers Indemnity Co., 404 So.2d 511, 515-16 (La.App.1981 writ denied); Porter v. Utica Mutual Insurance Co., 357 So.2d 1234 (La. App.1978). See Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973). BMF contends that OPC failed to prove all three elements of its cause of action. There is no doubt that BMF agreed to procure some form of stand-by insurance as a corollary to OPC’s builder’s risk policy. BMF contends, however, that OPC only expected BMF to acquire the broadest form of stand-by coverage available on the market. Since BMF negotiated with Republic for the most extensive coverage that Republic would provide, BMF contends that it fulfilled its legal duty to OPC. This version of the facts misstates the obligation undertaken by BMF. When OPC first requested insurance from BMF, OPC sought only standard builder's risk coverage for Mesa Petroleum’s project. Peter Barbara, BMF’s agent, suggested that OPC supplement its policy with stand-by insurance to cover project down-time." }, { "docid": "14203218", "title": "", "text": "void or materially defective, through the agent’s fault, he is liable to his principal for any loss he may have sustained thereby. If the agent or broker fails to act with the proper and customary skill and care generally used by those in a like business, such neglect or breach of duty will render him liable in damages, not exceeding the amount of insurance he was employed to effect. It has been held that such principal may sue either for breach of contract or in tort for a breach of duty. It is generally considered that if the neglect or breach of duty of such broker results in loss to his principal, the broker is liable to the same extent as the insurer would have been liable had the insurance been properly effected, and must pay the resulting loss.” (Notes to the text omitted). See also Couch on Insurance, 2d, Vol. 3, § 25:55, § 25:57-59. The court below then discussed Lea’s defenses, which were substantially the same as those asserted in this court, i. e., that Lea had breached no duty and that not all of Steel’s defenses were attributable to Lea’s asserted breach of duty, and “unless all of Steel’s defenses are attributable to [Lea’s] fault, Lea cannot be held liable.” The trial judge went on to say: “I am satisfied by a preponderance of the evidence on this stipulated record that Lea’s conduct fell below the standard prescribed for insurance brokers; that Lea’s breaches of duty gave rise to all of Steel’s colorable defenses in the suits on the policy and resulted in plaintiff’s settlement of the suits on the policy at a substantial loss. Plaintiffs are entitled to be compensated for that loss.” The court then discussed the “color-able” defenses raised by Steel. In substance these were that the plaintiffs had instructed Lea to procure an endorsement from Steel naming Bargain City as an assured, and while conceding that Lea failed to do this Lea asserted that no harm resulted from this failure because Steel’s policy insured Consolidated and “its Affiliated or Subsidiary Companies or Corporations”" }, { "docid": "12046288", "title": "", "text": "to the insurer. The agent had entered into an agency agreement with the insurer that granted him the same powers as the agency agreement between Esser and Reliance. In Hartford, however, there is no indication that the agent had an arrangement with any insurance company other than Hartford. In fact, the name “Hartford Agency” appeared on his office door. Further, the agent did not have a long-standing arrangement with the insured under which he was to protect the insured’s interests. B. Fiduciary Obligations Esser argues that even if it was Lazzara’s agent there is a genuine issue of fact as to whether it breached its fiduciary obligations. We agree with the district court that there is no genuine issue of fact. An insurance broker is liable for any loss sustained by the principal if the broker fails to procure insurance or does not follow instructions when obligated to do so (including instructions about maintaining a policy), or if the policy obtained is void or materially defective through the broker’s fault, or if the principal suffers damage by reason of any mistake or act of omission or commission of the broker. See Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co., 105 Ill.App.3d 671, 675, 61 Ill.Dec. 212, 215, 434 N.E.2d 365, 368 (1982); Omni Overseas Freighting Co. v. Cardell Insurance Agency, 78 Ill.App.3d 639, 642-43, 33 Ill.Dec. 779, 782, 397 N.E.2d 112, 115 (1979); Pittway Corp. v. American Motorists Insurance Co., 56 Ill.App.3d 338, 346-47, 13 Ill.Dec. 244, 250, 370 N.E.2d 1271, 1277 (1977); Johnson v. Illini Mutual Insurance Co., 18 Ill.App.2d 211, 216, 151 N.E.2d 634, 637 (1958); Johnston v. Otta, 340 Ill.App. 270, 275-76, 91 N.E.2d 468, 471 (1950). The broker is obligated to act in good faith and with reasonable care, skill and diligence in transacting the business of the principal. See Omni, 78 Ill.App.3d at 643, 33 Ill.Dec. at 782, 397 N.E.2d at 115; Pittway, 56 Ill.App.3d at 346-47, 370 N.E.2d at 1271. Thus Esser breached its fiduciary duties to Lazzara because it failed to maintain the coverage that it had been instructed to maintain. Esser" }, { "docid": "1685064", "title": "", "text": "liability policies where protection of the insured is not the primary object. Rather, the more important policy is to assure “that all persons wrongfully injured have financially responsible persons to look to for damages.” Odolecki v. Hartford Acc. & Indem. Co., 55 N.J. 542, 549, 264 A.2d 38 (1970). The court therefore extended the broker’s duty of care to include a third party injured by the insured in an automobile accident and permitted such a third party to sue the broker for negligence in the procurement of the requested insurance. In the instant case, Ross had a duty to exercise due care-in its undertakings to avoid damage to persons within the foreseeable zone of hazard created by its activity. Assuming the truth of the allegations set forth in the complaint, Ross was directed to obtain insurance covering losses suffered by Parness’ customers, including Impex under circumstances similar to those at bar. Negligent performance of this contractual undertaking would have an adverse effect on Parness’ customers. Thus, Impex was well within the zone of a foreseeable injured party and may therefore maintain its suit against Ross for negligence. , Furthermore, Impex may maintain its suit against Ross for breach of contract. This holding is consistent with the ruling in Eschle, supra, where the court permitted an injured member of the public to sue an automobile insurance broker under a breach of contract theory. This ruling was based on the court’s finding that the public was a third party beneficiary of the agreement between the agent and the insured in light of the strong state policy favoring automobile insurance, Likewise there is a strong state policy favoring insurance of goods transported by common carrier. Thus, N.J.S.A. 45:14D-9(b) provides for issuance of a license for transportation of’ •goods by common carrier upon, inter alia, identification of the carrier's amount of insurance and the insurer. I have already determined that Impex is not a third party beneficiary of the principal insurance contract between St. Paul and Parness. The reasoning of Eschle suggests, however, that Impex, as a customer of a common carrier, may be" }, { "docid": "6672078", "title": "", "text": "Thus, we conclude that plaintiff has failed to carry her burden on summary judgment as to the existence of a confidential relationship between her and her husband and MMLI through its agent. Our conclusion that plaintiff has failed to establish a duty to speak, and therefore that MMLI does not face liability for Scarazzo’s alleged omission of insurance information, is consistent with the treatment of the relationship between insurer and insured in Pennsylvania. Prior to purchase of insurance and formation of the insurance contract, no special duties attach beyond those found in the “ordinary buyer-seller relationship.” In re Prudential, 975 F.Supp. at 616; cf. Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 656 (3d Cir.1968), cert. denied, 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969) (insurance broker is under duty to exercise the care that a reasonably prudent businessman in the brokerage field would exercise under similar circumstances). As in every other business, an insurance agent’s primary enterprise is to sell insurance, a vocation no adult consumer would confuse with a religious order. Concomitantly, a reasonable buyer of insurance (or any other product) must, at peril of caveat emptor, act as a reasonable consumer, e.g., research her needs from multiple sources and price-shop for policies. While a good insurance agent will pay careful attention to the insured’s needs in structuring a proposed policy, he does so not out of a special duty to act to the consumer’s exclusive benefit, but rather out of a duty to his employer — and to his own self-interest — to sell its products as successfully as possible. Furthermore,, even after an insurer contracts with the insured — thereby creating a “special relationship” between the parties, Kilmore, 595 A.2d at 626-27 — an insurer’s duties to the insured are not boundless. This is particularly true as it applies to informing the insured of possibilities, permutations, and collateral consequences outside the scope of the policy’s terms: We find no justification in the law to impose the additional burden on insurers that they anticipate and then counsel their insured on the hypothetical, collateral consequences" }, { "docid": "6328216", "title": "", "text": "the nature of the insurance “package” carried by Scott Brothers and its flexible quality, we cannot say that appellees were contributorily negligent in not discovering that their premiums were not increased, thus indicating no new policies. Point three in appellant's brief urges that recovery was erroneously permitted since they allege Scott failed to give notice to Butler of the oil drilling at Navajo A A 2 where the fire occurred. Appellant argues that by Scott’s own theory, they were to notify Butler at the commencement of each new well. There is a conflict of testimony here with Butler saying he was not notified and a Scott Brothers’ employee saying that while he had no specific recollection it was routinely done, thus inferring that he did on this occasion. We are not in a position to judge the demeanor of these witnesses and, finding an absence of clear error, we affirm the trial court’s finding. The final argument posed by appellant asserts error by the trial court in allowing prejudgment interest. Interest was allowed from the time it would have been due had the requested policy been in effect, i.e., sixty days after proof of loss. It seems to be well settled that an insurance agent or broker who undertakes to provide insurance for another, and by his own fault or neglect fails to do so, is liable in the amount that would have been due under the policy of insurance if it had been obtained. Under New Mexico law, “the date on which the contract of insurance was breached * * * is the date when interest, as an element of damage, might be considered.” O’Meara v. Commercial Insurance Company, 71 N.M. 145, 376 P.2d 486, 490 (1962). The overwhelming consideration in allowing prejudgment interest is to insure just compensation to the injured party. Just compensation in the case at bar must be measured by that which could have been recovered had the insurance company been liable on its policy. We would be hard put to permit a defendant by his own wrongdoing to better his position. We uphold the" }, { "docid": "1685063", "title": "", "text": "supra, regarding the scope of an accountant’s liability for negligence to persons who are not in privity is fully applicable to the scope of an insurance broker’s liability. Obviously, insurance brokers owe to persons engaging their services a duty of reasonable skill, care and diligence in executing their commission. Citta v. Camden Fire Ins. Assoc., Inc., 152 N.J.Super. 76, 79, 377 A.2d 779 (App.Div.1977). The issue in the present case is whether insurance brokers also owe a duty of care to third persons who are strangers to the contract. In the context of automobile liability insurance where there is a strong statutory policy to provide funds for wrongfully injured parties, the court in Eschle v. Eastern Freight Ways, supra, 128 N.J.Super. at 301, 319 A.2d 786, held that an insurance broker may be liable to an injured member of the public for the negligent failure of the broker to procure requested automobile insurance. In assessing the scope of foreseeable harm arising from the insurance broker’s negligence, the court relied on the peculiar significance of automobile liability policies where protection of the insured is not the primary object. Rather, the more important policy is to assure “that all persons wrongfully injured have financially responsible persons to look to for damages.” Odolecki v. Hartford Acc. & Indem. Co., 55 N.J. 542, 549, 264 A.2d 38 (1970). The court therefore extended the broker’s duty of care to include a third party injured by the insured in an automobile accident and permitted such a third party to sue the broker for negligence in the procurement of the requested insurance. In the instant case, Ross had a duty to exercise due care-in its undertakings to avoid damage to persons within the foreseeable zone of hazard created by its activity. Assuming the truth of the allegations set forth in the complaint, Ross was directed to obtain insurance covering losses suffered by Parness’ customers, including Impex under circumstances similar to those at bar. Negligent performance of this contractual undertaking would have an adverse effect on Parness’ customers. Thus, Impex was well within the zone of a foreseeable" }, { "docid": "18702630", "title": "", "text": "attempts to reduce Midland’s obligation to pay defense costs in the event of settlement. The application of this final paragraph of Endorsement 2 to the circumstances of this case is ambiguous in several respects. First, it is not clear whether it controls over the first paragraph of Endorsement 2 providing that “notwithstanding anything herein to the contrary” coverage applies once the insured’s “loss” exceeds $50,000 per occurrence. Neither is it clear whether the proportional sharing of defense costs applies where, as here, a claim goes to trial with the insured obtaining a favorable verdict, or whether it applies only when a pre-trial settlement is reached. Finally, it is not clear whether the attempted limitation on Midland’s obligation to pay defense costs exceeding the $50,000 self-insured retention applies when Midland participates in the defense of a claim, as it did in the Davidow case. Because the answers to these questions are not clear when the policy is considered as a whole, the attempted limitation must be construed in favor of the insured, and in favor of coverage. The insured read the policy and believed defense costs were included in its $50,000 self-insured retention. Given the ambiguity of Endorsement 2 and its conflict with other policy provisions, I find this entirely reasonable, particularly in light of the insured’s prior negotiations with Johnson & Higgins. Johnson & Higgins’ Joint Liability Johnson & Higgins agreed to negotiate and procure a product liability insurance policy acceptable to Century. By undertaking this task, Johnson & Higgins owed a duty to Century to “exercise reasonable skill, care and diligence” in procuring a policy. 16 Appleman “Insurance Law and Practice” § 8841, p. 171. When an insurance broker or agent undertakes to procure an insurance policy for an insured, an action in tort will lie for breach of the duty to exercise due care in performance of the undertaking. Clark v. Dalman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967); see also Stein v. Continental Casualty, 110 Mich.App. 410, 417, 313 N.W.2d 299 (1981) (where a special relationship exists between insurance agent and insured, there is a duty" }, { "docid": "2904521", "title": "", "text": "contract that existed between J & H and FAB and of the duty that arose by virtue of J & H’s contractual status as FAB’s insurance broker.” District Court’s Memorandum Opinion (May 26, 1988), Rec. 207, at 3. While Johnson & Higgins does not challenge the court’s factual findings, it does argue that the bank’s claims were based in tort (which is barred by the statute of limitations), not contract. Furthermore, Johnson & Higgins contends that even if there was a breach of contract, it was a breach of a contract to procure insurance, which is barred by the merger doctrine. We disagree. A. Liability in Tort v. Contract In Alabama, when an insurance broker fails in the duties he assumes, one can sue him either for breach of contract or in tort. Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060, 1065 (Ala.1978) (per curiam); Waldon v. Commercial Bank, 50 Ala.App. 567, 281 So.2d 279, 282 (1973). While many cases involving insurance brokers discuss breach of a contract to procure insurance, see, e.g., Langley, 512 So.2d at 752; Timmerman Ins. Agency, Inc. v. Miller, 285 Ala. 82, 229 So.2d 475 (1969), Johnson & Higgins breached not only a contract to procure insurance, but also a contract to “provide the knowledge and skill necessary to meet FAB’s insurance needs.” District Court’s Memorandum Opinion (May 26, 1988), Rec. 207, at 44. Alabama law holds that when one contracts with another and expressly promises to use due care or to do an act, he is liable in both tort and contract when his negligence injures the other party. See Blumberg v. Touche Ross & Co., 514 So.2d 922, 927 (Ala.1987); Eidson v. Johns-Ridout’s Chapels, Inc., 508 So.2d 697, 702 (Ala.1987). “He is liable in contract for breaching an express promise to use care,” and the injured party can choose which cause of action to pursue. Blumberg, 514 So.2d at 927. Alabama has held that one can sue an accounting firm in contract for breach of its express agreement, see id. at 925, and one can sue a funeral home in" }, { "docid": "12195703", "title": "", "text": "effective cancellation on February 17, 1961 because White had no authority to request cancellation on Holbrook’s behalf. It also held that Institutional agreed to reinstate the tractor coverage prior to the loss, that Caplis, Inc. had apparent authority to bind Institutional to a reinstatement, that the policy was reinstated without any lapse in coverage by the letter of March 10, and that Institutional waived its right to deny coverage by acceptance of premiums between December 27, 1960 and April 24, 1961 through its accounting arrangement with Caplis, Inc. We think that recovery by Holbrook and Truck Acceptance for the loss of the tractor should be affirmed because of Institutional’s knowledge that White was not acting as Holbrook’s agent in requesting cancellation of the policy and will confine our discussion to that point. Whether an insured may be bound by the acts of a broker engaged to procure insurance for him depends upon the application of general principles of the law of agency to the facts in each case. The broker’s authority stems principally from the agreement entered with the insured and what is to be implied from it. Thus it is generally said that when a broker is engaged to obtain insurance for another, éven though he might be given discretion to select the company with whom insurance is to be placed, he exhausts his authority once the insurance is obtained. Smith v. Firemen’s Ins. Co., 104 F.2d 546 (7th Cir. 1939). Stated differently, the mere employment of an agent to secure insurance gives the agent neither actual nor apparent authority to cancel it. On the other hand, where there is a general entrusting of insurance affairs by a person to a broker, as for example where a broker is employed to keep property insured for his client, the broker’s authority, by agreement or implication, may well extend to the modification or cancellation of policies. 16 Appleman, Insurance Law and Practice, § 8724 (1944). But in order to bind the insured, not only must the broker’s authority be established, but it must also be shown that the broker is purporting" } ]

[ { "docid": "18006632", "title": "", "text": "a scheme to defraud, as contemplated by the statute. Responding to the judge’s concerns, the district attorney first construed the charge as a plan to defraud Wells Fargo and Brinks. Later, however, he adjusted his argument and defined the relevant scheme as one to defraud Delta. The district court eventually instructed the jury in accordance with the latter characterization. In this court, the appellants allege that this depiction of the pertinent scheme amounted to a constructive amendment of the indictment. “An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them.” United States v. Salinas, 654 F.2d 319, 324 (5th Cir.1981), quoting, Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969) (emphasis in original). An error of this magnitude is per se reversible because it violates the defendant’s constitutional right to be tried solely on the charges returned by the grand jury. United States v. Figueroa, 666 F.2d 1375, 1379 (11th Cir.1982); United States v. Gonzalez, 661 F.2d 488, 492 (5th Cir.1981) (Unit B); see generally Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The constitutional requirement implicated not only preserves the defendant’s right to be accused by his fellow citizens, but also insures that the defendant will have adequate notice of the charges against him and that he will be protected against double jeopardy. E.g., United States v. Carroll, 582 F.2d 942, 945 (5th Cir.1978). Consequently, we must determine whether the trial judge’s instruction to the jury “so modifie[d] the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment.” United States v. Ylda, 653 F.2d 912, 914 (5th Cir.1981); see also United States v. Davis, 679 F.2d 845, 851 (11th Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 1198, 75 L.Ed.2d 441 (1983). While the prosecutor’s wavering interpretations of the count lend some support to the appellants’ position, the indictment itself — the surest indication of the grand jury’s intent —" } ]

[ { "docid": "11728168", "title": "", "text": "firearms were discovered at his house on February 26, 1992; yet the indictment alleges weapon possession from January1989 to December 1992. He contends the government was erroneously allowed to broaden the in dictment to include events other than those of February 1992. [T]he acts proved at trial may not vary from those charged in the indictment. A variance ‘occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment.’ Reversal is not required if the variance is harmless, that is, if ‘the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial.’ United States v. Huntsman, 959 F.2d 1429, 1435 (8th Cir.1992) (quoting United States v. Begnaud, 783 F.2d 144 (8th Cir.1986)). Tests of fatal variance are: Was defendant misled? Will defendant be protected against a future proceeding? ‘Upon the question of variance between indictment and proofs, the controlling consideration should be whether the charge was fairly and fully enough stated to apprise defendant of what he must meet, and to protect him against another prosecution, and whether those particulars in which the proof may differ in form from the charge support the conclusion that respondent could have been misled to his injury.’ [T]he ‘true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.’ United States v. West, 549 F.2d 545, 552 (8th Cir.1977) (citations omitted). See also United States v. Yeo, 739 F.2d 385, 387 (8th Cir.1984) (where there is a variance between the facts alleged in the indictment and the evidence offered at trial, the issue is one of fairness, and actual prejudice must be considered). The grand jury was presented evidence of gún possession acquired through the search of Wessels’ residence in February 1992; this evidence was sufficient to support the indictment. The bill of particulars set out that each and every time Wessels sold methamphetamine or marijuana to" }, { "docid": "18059077", "title": "", "text": "“A constructive amendment ... occurs when the essential elements of the indicted offense are altered, either actually or in effect, after the grand jury has issued the indictment.” United States v. Johnston, 353 F.3d 617, 623 (8th Cir.2003) (per curiam). “ ‘A constructive amendment primarily affects the defendant’s Fifth Amendment right to in dictment by a grand jury....'\" United States v. Renner, 648 F.3d 680, 686 (8th Cir.2011) (quoting Adams, 604 F.3d at 599). “ ‘[A] variance occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment.’ ” Gavin, 583 F.3d at 547 (citation omitted). “[A] variance implicates the defendant’s Sixth Amendment right to notice of the nature of the charge and is subject to harmless error analysis.” Renner, 648 F.3d at 685 (quoting Adams, 604 F.3d at 599). To the extent that Mann argues that he was convicted of a different crime than the crime for which the grand jury indicted him, Mann argues a constructive amendment occurred. Count 5 of the second superseding indictment charged Mann with violating 26 U.S.C. § 5861(d). The indictment listed the elements of the charge as “knowingly possessing]” a “7.62 caliber machinegun, serial number BM-0834, which was not registered to [Mann] in the National Firearms Registration and Transfer Record.” Those were the same elements the Government sought to prove at trial and the same elements on which the jury was instructed. See Jury Instructions 23 and 24. Mann argues that the Government’s theory of the source of the gun changed from its presentation to the grand jury and petit jury. A particular source of the gun was not an “essential element” of the offense; thus, a change in theories between presentations to the grand jury and the trial jury did not work a constructive amendment of the indictment. See Johnston, 353 F.3d at 623. To the extent that Mann argues the evidence against him changed from the indictment stage to the trial stage, he argues that a variance occurred. However, the" }, { "docid": "13161302", "title": "", "text": "or the use of others the above named investors’ brokered funds in the amount of $7,950,205.60. 7. On or about January 26, 1984, in the Western District of Missouri, Michael S. Begnaud, for the purposes of executing said scheme and artifice to defraud, did wilfully and knowingly cause to be transmitted in interstate commerce by means of a wire communication, certain signs, signals, and sounds which effected a wire transfer of funds in the amount of $5,267,000.00 from the Account No. 021030004 from the U.S. Treasury Department, Federal Reserve Bank, New York City, New York, to Account Number 020907 in the Centerre Bank, Kansas City, Missouri; all in violation of 18 U.S.C. § 1343. Paragraph one of Counts Two through Nine realleged the allegations contained in paragraphs one through six of Count One. Paragraph two of Counts Two through Nine set forth a specific allegedly fraudulent wire transfer of money. . The jury instructions for the elements of Counts Two through Nine were identical to the jury instructions on Count One except that, for each of those counts, the fourth element specifically referred to the allegedly fraudulent wire transfer that was the subject of that count. . It is important to note the distinction between an actual or constructive amendment of the indictment, which is reversible error per se, and a variance between the indictment and proof, which does not require a reversal if the variance is harmless. See United States v. Yeo, 739 F.2d 385, 387 (8th Cir.1984). An amendment of the indictment occurs when the essential elements of the offense set forth in the indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed upon them. See United States v. Johnson, 713 F.2d 633, 643 (11th Cir.1983), cert. denied sub nom. Wilkens v. United States, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). In contrast, a variance occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged" }, { "docid": "13161298", "title": "", "text": "jury to consider, other misrepresentations allegedly made by Begnaud. A variance between the indictment and proof at trial requires reversal of a conviction only if the variance actually prejudiced the defendant. West, 549 F.2d at 552. The primary consideration in this determination is whether the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial. Id. (quoting Mathews v. United States, 15 F.2d 139, 142-43 (8th Cir.1926)). Clearly, the indictment fully apprised Begnaud of the proof that the prosecution ultimately presented against him at trial. The indictment charged Begnaud with using wire communications in furtherance of a scheme to defraud and to obtain money by false pretenses on nine separate occasions. This was the evidence the prosecution produced at trial. Begnaud’s contention that he was only prepared to defend against the two misrepresentations specifically set forth in the indictment is simply without merit. Cf. United States v. Lewis, 759 F.2d 1316, 1344 (8th Cir.), cert. denied sub nom. Mil-burn v. United States, — U.S. -, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985) (where the indictment fairly specifies the offense charged and notifies the defendant of the particulars, the defendant has knowledge that other overt acts underlying the conspiracy might be pleaded at trial). Conclusion The trial court’s instructions to the jury on the elements of wire fraud did not constitute a constructive amendment of the indictment nor did the possible variance between the allegations set forth in the indictment and the proof presented at trial prejudice Begnaud in any way. Accordingly, we affirm Begnaud’s conviction on all nine counts of wire fraud. . The Honorable Scott O. Wright, Chief Judge of the United States District Court for the Western District of Missouri. . Count One of the indictment alleged the following: COUNT ONE 1. From on or about September 1, 1983, and continuing until on or about March 30, 1984, MICHAEL S. BEGNAUD, defendant herein, in the Western District of Missouri, devised and intended to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses," }, { "docid": "16191605", "title": "", "text": "not be tried on charges that were not made in the indictment. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). “A constructive amendment, which is reversible error per se, ‘occurs when the essential elements of the offense set forth in the indictment are [altered, either actually or in effect,] by the prosecutor or the court after the grand jury has passed upon them.’ ” United States v. Emery, 186 F.3d 921, 927 (8th Cir.1999) (quoting United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir.1986)) (alterations restore original Begnaud quotation), cert. denied, — U.S. -, 120 S.Ct. 968, 145 L.Ed.2d 839 (2000). By contrast, “[a] variance between the indictment and proof at trial requires reversal of a conviction only if the variance actually prejudiced the defendant. The primary consideration in this determination is whether the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial.” Begnaud, 783 F.2d at 148 (citation omitted). Novak appears to argue that the indictment was constructively amended via the admission of evidence that proves the essential elements of an uncharged offense. We must consider whether the admission of certain evidence created a “substantial likelihood” that Novak was convicted of an uncharged offense, namely, fraudulent transfer in anticipation of bankruptcy. United States v. Johnson, 934 F.2d 936, 941 (8th Cir.1991) (stating that constructive amendment occurs “when the terms of the indictment are altered in effect by either the admission of evidence or the use of jury instructions which modify the essential elements of the offense charged so that a substantial likelihood exists that the defendant was convicted of an offense other than that charged in the indictment”); see United States v. Moore, 184 F.3d 790, 793 (8th Cir.1999) (“A constructive amendment of an indictment occurs when a jury is allowed to convict a defendant of an offense different from or in addition to the offense alleged in the indictment.”), cert. denied, — U.S.-, 120 S.Ct. 1174, 145 L.Ed.2d 1083 (2000); cf. United States v. Johnson, 713 F.2d 633, 644" }, { "docid": "16191604", "title": "", "text": "owned the undisclosed assets at the time of bankruptcy) while the evidence adduced at trial purportedly was aimed at showing a series of fraudulent transfers in anticipation of bankruptcy, a theory not charged in the indictment. Counts One, Seven, Eight, Nine, and Thirteen charged Novak with committing bankruptcy fraud in violation of 18 U.S.C. § 152. While the indictment did not expressly limit its reach to any particular subsection of § 152, as noted above, we think the indictment, fairly read, references § 152(1) and § 152(3). Although he does not specify a statutory subsection, Novak appears to argue that he actually was prosecuted for a violation of § 152(7), which makes it a crime for a person, “in contemplation of a case under title 11 ... or with intent to defeat the provisions of title 11, [to] knowingly and fraudulently transfer[ ] or conceal[ ] any of his property.” 18 U.S.C. § 152(7). There is no reference to fraudulent transfer in anticipation of bankruptcy in the indictment. It is axiomatic that a defendant may not be tried on charges that were not made in the indictment. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). “A constructive amendment, which is reversible error per se, ‘occurs when the essential elements of the offense set forth in the indictment are [altered, either actually or in effect,] by the prosecutor or the court after the grand jury has passed upon them.’ ” United States v. Emery, 186 F.3d 921, 927 (8th Cir.1999) (quoting United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir.1986)) (alterations restore original Begnaud quotation), cert. denied, — U.S. -, 120 S.Ct. 968, 145 L.Ed.2d 839 (2000). By contrast, “[a] variance between the indictment and proof at trial requires reversal of a conviction only if the variance actually prejudiced the defendant. The primary consideration in this determination is whether the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial.” Begnaud, 783 F.2d at 148 (citation omitted). Novak appears to argue that the" }, { "docid": "23249676", "title": "", "text": "of the indictment are altered, either literally or in effect, ... [while a] variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.” United States v. Pelose, 538 F.2d 41, 45 n. 8 (2d Cir.1976) (quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969)) (emphasis in original). While variances are subject to the harmless error rule and require a showing of prejudice to the defendant, United States v. Garguilo, 554 F.2d 59 (2d Cir.1977), constructive amendments are generally considered prejudicial per se. See United States v. Crocker, 568 F.2d 1049, 1060 (3d Cir.1977); United States v. Beeler, 587 F.2d 340, 342 (6th Cir.1978), cert. denied, 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981). There is considerable confusion as to what constitutes a constructive amendment of an indictment as opposed to a variance of an indictment. Stirone v. United States, supra, is the case most often cited by defendants arguing either that a constructive amendment or a variance of the indictment occurred; yet Stirone does not specifically address this distinction. The definition noted above has been set forth in the decisions of several circuits, including this circuit. The appellant contends that the rule against a variance or a constructive amendment of an indictment has been frustrated by the government. See generally United States v. Lemire, 720 F.2d 1327 (D.C.Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984); United States v. Beeler, supra; United States v. Silverman, 430 F.2d 106, 111 (2d Cir.1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). We reject this contention, and find that both the government’s theory and the proof offered at trial fairly reflect the charges set forth in the indictment. A defendant is deprived of his right to be tried only on the charges returned by a grand jury if the prosecution’s proof or theory constitute a modification at trial of an essential element of the offense charged. See Lemire, 720 F.2d at 1345; Watson v." }, { "docid": "405673", "title": "", "text": "his defense, by a motion for a bill of particulars. Fed.R.Crim.P. 7(f); United States v. Crippen, 579 F.2d 340, 342 (5th Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 802 (1st Cir.1960); Cefalu v. United States, 234 F.2d 522, 524 (10th Cir.1956); McMullen v. United States, 96 F.2d 574, 579 (D.C.Cir.1938). II. Whether a fatal variance exists between the facts proved and the charges in the indictment? Mosley commingles his fatal variance challenge with an assertion that the district court improperly amended the indictment. The two theories of error have some resemblance. However, “[a] judicial amendment of the indictment, whether implicit or explicit, is per se reversible error, ... while a variance in proof from the original indictment justifies reversal only when the defendant has been prejudiced.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984) (citations omitted); see also United States v. Kuna, 760 F.2d 813, 817 (7th Cir.1985). “[A]n amendment occurs when ‘the offense proved at. trial was not fully contained in the indictment, for trial evidence had “amended” the indictment by broadening the possible bases for conviction from that which appeared in the indictment.’ ” Kuna, 760 F.2d at 817-18 (quoting United States v. Miller, — U.S.-, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985)). This Court has found a constructive amendment where a “complex set of facts” is presented to the jury during the trial which is distinctly different from the set of facts set forth in the charging instrument. United States v. Muelbl, 739 F.2d 1175, 1180-81 (7th Cir.1984). Alternatively, to find a constructive amendment the crime charged in the indictment must be “materially different or substantially altered at trial, [so that] it is impossible to know whether the grand jury would have indicted for the crime actually proved.” Id. Kuna, 760 F.2d at 818. Mosley again attacks Count 2. He asserts that the trial court amended the indictment by adding what he perceives to be the essential elements of a section 2314 violation. As noted in Issue I," }, { "docid": "13161303", "title": "", "text": "of those counts, the fourth element specifically referred to the allegedly fraudulent wire transfer that was the subject of that count. . It is important to note the distinction between an actual or constructive amendment of the indictment, which is reversible error per se, and a variance between the indictment and proof, which does not require a reversal if the variance is harmless. See United States v. Yeo, 739 F.2d 385, 387 (8th Cir.1984). An amendment of the indictment occurs when the essential elements of the offense set forth in the indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed upon them. See United States v. Johnson, 713 F.2d 633, 643 (11th Cir.1983), cert. denied sub nom. Wilkens v. United States, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). In contrast, a variance occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment. See id. at 643 n. 9. . Begnaud’s counsel made no objection to the fact that the trial court's instructions did not set out the other details of the fraudulent scheme set forth in the indictment, but objected only to the fact that the instructions did not set forth the two misrepresentations alleged in the indictment. . Although the defendant in Holmes was charged with mail fraud, cases construing the mail fraud statute, 18 U.S.C. § 1341, guide our interpretation of the wire fraud statute. United States v. Donahue, 539 F.2d 1131, 1135 (8th Cir.1976). . If, however, a defendant was indicted on charges of making false statements under oath in violation of 18 U.S.C. § 1001, an unconstitutional constructive amendment would occur if the trial court’s instructions would enable the jury to convict the defendant of making misrepresentations under oath other than those specifically set forth in the indictment. See United States v. Vesaas, 586 F.2d 101, 102 n. 3 (8th Cir.1978). . Begnaud concedes that the government presented substantial proof" }, { "docid": "2099108", "title": "", "text": "be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge. Id., 361 U.S. at 217-18, 80 S.Ct. at 273-74 (footnote omitted). This court has adopted the District of Columbia Circuit’s test for distinguishing between constructive amendments to an indictment and mere variances in proof: An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061, 1071 (1969). See United States v. Fruehauf Corp., supra, at 1056; Watson v. Jago, supra, at 334. The events at Cusmano’s trial effectively altered the charging terms of the indictment, thus destroying his right to be tried only on the charges set forth in the indictment. As the Supreme Court pointed out in Stirone, supra, 361 U.S. at 218, 80 S.Ct. at 273, there are two essential elements of a Hobbs Act crime: interference with commerce and extortion. “Neither is surplusage and neither can be treated as surplusage.” Id. It follows that when one means of extortion is charged, a conviction must rest on that charge and not another, even if it is assumed that under an indictment" }, { "docid": "13161297", "title": "", "text": "the scheme to defraud was proved substantially as allegated [sic]. All the allegations relative to false representations need not be proved as a part of the scheme. A scheme to defraud is necessarily made up of numerous elements, no particular one of which need be proved if sufficient is shown to constitute the scheme. Id. at 133; see also United States v. West, 549 F.2d 545, 552 (8th Cir.), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977) (citing Holmes), Baker v. United States, 115 F.2d 533, 542 (8th Cir.1940), cert. denied, 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed.2d 1128 (1941) (same). We therefore conclude that the trial court’s instructions to the jury on the elements of wire fraud did not constitute a constructive amendment of the indictment. We also reject Begnaud’s contention that a fatal variance resulted from the fact that the indictment set forth two specific representations Begnaud allegedly made in furtherance of his scheme to defraud whereas the prosecution offered evidence of, and the court’s instructions allowed the jury to consider, other misrepresentations allegedly made by Begnaud. A variance between the indictment and proof at trial requires reversal of a conviction only if the variance actually prejudiced the defendant. West, 549 F.2d at 552. The primary consideration in this determination is whether the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial. Id. (quoting Mathews v. United States, 15 F.2d 139, 142-43 (8th Cir.1926)). Clearly, the indictment fully apprised Begnaud of the proof that the prosecution ultimately presented against him at trial. The indictment charged Begnaud with using wire communications in furtherance of a scheme to defraud and to obtain money by false pretenses on nine separate occasions. This was the evidence the prosecution produced at trial. Begnaud’s contention that he was only prepared to defend against the two misrepresentations specifically set forth in the indictment is simply without merit. Cf. United States v. Lewis, 759 F.2d 1316, 1344 (8th Cir.), cert. denied sub nom. Mil-burn v. United States, — U.S. -, 106 S.Ct. 406," }, { "docid": "22295540", "title": "", "text": "two forms of modification to indictments: amendments and variances. Amendments occur “when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed on them.” United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989) (citations omitted). Amendments are considered prejudicial per se, warranting reversal of a conviction, because they “directly infringe upon the fifth amendment guarantee” to hold a defendant answerable only for those charges levied by a grand jury. Id. Variances, however, occur “when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts mate rially different from those alleged in the indictment” and are not reversible error unless the defendant can prove it prejudiced his defense. Id. See also United States v. Hathaway, 798 F.2d 902, 910-11 (6th Cir.1986) (citations omitted). Between these distinctions lies a more subtle modification to the indictment, a constructive amendment, which is what the government argues occurred here. Constructive amendments are variances occurring when an indictment’s terms are effectively altered by the presentation of evidence and jury instructions that “so modify essential elements of the offense charged that there is a substantial likelihood the defendant [was] convicted of an offense other than that charged in the indictment.” Hathaway, 798 F.2d at 910. See also United States v. Beeler, 587 F.2d 340 (6th Cir.1978). Applying these precepts to Combs’s case, we conclude that an impermissible amendment of Count IV of the indictment occurred. Though indicted on a charge of unlawful possession of a firearm under § 924(c), he was nevertheless convicted of a different offense — unlawful use and carrying of a firearm. We categorize this as an indictment “literally altered” by the court, constituting per se prejudice to the defendant. The jury instructions facilitated the amendment, first intermixing elements of both offenses, then providing a supplemental explanation aligned with the unindicted “use” offense, for which Combs was ultimately convicted, instead of the “possession” offense, for which he was originally indicted. We reject the government’s argument that what occurred was a variance, in" }, { "docid": "13161295", "title": "", "text": "steel out of Pennsylvania through extortion. The trial court instructed the jury that it could convict Stirone if it found that Stirone had obstructed shipments of sand into Pennsylvania or obstructed shipments of steel out of Pennsylvania through extortion. The Supreme Court reversed Stirone’s conviction because it concluded that the jury might have convicted Stirone of using extortion to obstruct steel exports out of Pennsylvania, a separate offense not alleged in the indictment. Stirone, 361 U.S. at 217-19, 80 S.Ct. at 273-74. Similarly, in United States v. Yeo, 739 F.2d 385 (8th Cir.1984), this court reversed the conviction of a defendant indicted for extortion in the collection of a debt from one Jim Crouch. Because the trial court instructed the jury that it could convict the defendant if it found that the defendant used “extortionate means to collect from Jim Crouch or another,” this court concluded that the jury may have convicted the defendant of extortion in collecting a debt from someone other than Jim Crouch, a crime different from that for which the defendant was indicted. Id. at 386-87 (emphasis added in Yeo). In contrast, Count One of Begnaud’s indictment and the district court’s instruction to the jury on the elements of Count One charged Begnaud with the same offense: using wire communications to willfully and knowingly effect the transfer of $5,267,000.00 through a scheme or artifice to defraud. The precise misrepresentations allegedly made by Begnaud in furtherance of the fraudulent scheme did not need to be set forth in the jury instructions any more than did every other precise detail of the allegedly fraudulent scheme contained in the indictment, such as the fact that Begnaud opened two bank accounts on January 20, 1984, or the fact that Begnaud was appointed to the board of directors of the Oak Park Credit Union. As this court stated long ago in Holmes v. United States, 134 F.2d 125 (8th Cir.), cert. denied, 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722 (1943): It is enough to repeat that the gist of the offense, the use of the mails, was proved, and" }, { "docid": "13161296", "title": "", "text": "was indicted. Id. at 386-87 (emphasis added in Yeo). In contrast, Count One of Begnaud’s indictment and the district court’s instruction to the jury on the elements of Count One charged Begnaud with the same offense: using wire communications to willfully and knowingly effect the transfer of $5,267,000.00 through a scheme or artifice to defraud. The precise misrepresentations allegedly made by Begnaud in furtherance of the fraudulent scheme did not need to be set forth in the jury instructions any more than did every other precise detail of the allegedly fraudulent scheme contained in the indictment, such as the fact that Begnaud opened two bank accounts on January 20, 1984, or the fact that Begnaud was appointed to the board of directors of the Oak Park Credit Union. As this court stated long ago in Holmes v. United States, 134 F.2d 125 (8th Cir.), cert. denied, 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722 (1943): It is enough to repeat that the gist of the offense, the use of the mails, was proved, and the scheme to defraud was proved substantially as allegated [sic]. All the allegations relative to false representations need not be proved as a part of the scheme. A scheme to defraud is necessarily made up of numerous elements, no particular one of which need be proved if sufficient is shown to constitute the scheme. Id. at 133; see also United States v. West, 549 F.2d 545, 552 (8th Cir.), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977) (citing Holmes), Baker v. United States, 115 F.2d 533, 542 (8th Cir.1940), cert. denied, 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed.2d 1128 (1941) (same). We therefore conclude that the trial court’s instructions to the jury on the elements of wire fraud did not constitute a constructive amendment of the indictment. We also reject Begnaud’s contention that a fatal variance resulted from the fact that the indictment set forth two specific representations Begnaud allegedly made in furtherance of his scheme to defraud whereas the prosecution offered evidence of, and the court’s instructions allowed the" }, { "docid": "6925831", "title": "", "text": "firearm is not an essential element of section 924(c) offense), cert. denied, 498 U.S. 946, 111 S.Ct. 360, 112 L.Ed.2d 323 (1990). Therefore, the district court did not err in overruling McIntosh’s motion for acquittal based on the type of firearm used. III. McIntosh also argues the jury instructions impermissibly amended the indictment, which listed a specific brand of firearm. Specifically at issue is Jury Instruction 21 which charged: “[I]t is not necessary that the government prove that the defendant carried the exact firearm alleged in the indictment. Rather, it is sufficient that the government prove that the defendant carried any firearm.” Because we conclude that the brand of the firearm is not an essential element of the offense, we reject McIntosh’s argument. McIntosh did not object to the instruction at trial and raises this issue for the first time in this appeal. Therefore, we will reverse the district court only for plain error. United States v. Martin, 933 F.2d 609, 611 (8th Cir.1991). McIntosh is entitled to relief only if the error “would result in a miscarriage of justice if left uncorrected.” Id. (quoting United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir.1991)). An indictment may not be amended after a grand jury has returned it. United States v. Huntsman, 959 F.2d 1429, 1435 (8th Cir.), cert. denied, — U.S.-, 113 S.Ct. 201, 121 L.Ed.2d 143 (1992). “An amendment occurs ‘when the essential elements of the offense set forth in the indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed upon them.’ ” Id. (quoting Unit ed States v. Begnaud, 783 F.2d 144, 147 & n. 4 (8th Cir.1986)). However, a variance in the indictment “occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment.” Id. If there is only a variance, we need not reverse if the indictment “fully and fairly apprised” McIntosh of the charges, that is, if the variance is harmless. Id." }, { "docid": "6473387", "title": "", "text": "allowed the jury to convict him under a theory of conspiracy or accomplice liability, in addition to the crime charged. We do not believe, however, that the jury instruction increased the number of crimes for which Mr. Emery could be convicted. Instead, we believe that the trial court correctly defined the circumstances under which Mr. Emery could be convicted for the crime charged. No constructive amendment therefore occurred. Mr. Emery also contends that there was a fatal variance between the facts alleged in the indictment and the evidence offered by the prosecution at trial. A fatal variance “occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment.” Begnaud, 783 F.2d at 147 n. 4. “Reversal is not required if the variance is harmless, that is, if 'the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial.’ ” United States v. Huntsman, 959 F.2d 1429, 1435 (8th Cir.1992), cert. denied, 506 U.S. 870, 113 S.Ct. 201, 121 L.Ed.2d 143 (1992), quoting Begnaud, 783 F.2d at 148. Mr. Emery contends that a fatal variance occurred because the indictment did not include any mention of another person being involved in the beating, whereas the proof at trial did. We believe that, even if this discrepancy amounted to a variance, Mr. Emery suffered no resulting prejudice. In our view, the indictment made Mr. Emery well aware of the fact that he faced the charge of murdering Ms. Elkins, and that he would have to answer for his part in causing her death. VI. For the reasons stated, we affirm the judgment of the trial court. . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri." }, { "docid": "6473386", "title": "", "text": "are [in effect] altered ... by the prosecutor or the court after the grand jury has passed upon them.” United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir.1986). Jury instructions are usually found to have caused a constructive amendment only if they “in effect allowed the jury to convict the defendant of an offense different from or in addition to the offenses alleged in the indictment.” Id. at 147. In this case, although the indictment alleged only that Mr. Emery killed Ms. Elkins “by beating her to death,” the trial court instructed the jury that “two or more persons may kill an individual when they actively participate with each other in a killing, as by jointly assaulting and injuring her in a manner that could result in death, when the assaults are made with the intent to kill, even if you are unable to determine who struck the fatal blow.” Mr. Emery contends that by failing to require the jury to find that he himself delivered the fatal blow, the trial court allowed the jury to convict him under a theory of conspiracy or accomplice liability, in addition to the crime charged. We do not believe, however, that the jury instruction increased the number of crimes for which Mr. Emery could be convicted. Instead, we believe that the trial court correctly defined the circumstances under which Mr. Emery could be convicted for the crime charged. No constructive amendment therefore occurred. Mr. Emery also contends that there was a fatal variance between the facts alleged in the indictment and the evidence offered by the prosecution at trial. A fatal variance “occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment.” Begnaud, 783 F.2d at 147 n. 4. “Reversal is not required if the variance is harmless, that is, if 'the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial.’ ” United States v. Huntsman, 959 F.2d 1429, 1435" }, { "docid": "22308974", "title": "", "text": "on Count 1, Counts 8-10, and Counts 14-29 on the ground that the jury instructions unconstitutionally amended and expanded the offense alleged in the indictment. Under the Fifth Amendment, a criminal defendant has the right to be tried only on the charges contained in the indictment returned by a grand jury. See Stirone v. United States, 361 U.S. 212, 216-17, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). An unconstitutional amendment of the indictment occurs when the charging terms are altered, either literally or constructively, such as when the trial judge instructs the jury. In contrast, a variance occurs when the charging terms are unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. See United States v. Zingaro, 858 F.2d 94, 98-99 (2d Cir.1988). Variances are subject to the harmless error rule and thus are not grounds for reversal without a showing of prejudice to the defendant. Constructive amendments, however, are per se violative of the Fifth Amendment. See id. at 98; United States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). A defendant is deprived of his right to be tried only on the charges returned by a grand jury when an essential element of those charges has been altered. See Zingaro, 858 F.2d at 98; Weiss, 752 F.2d at 787. Nevertheless, even an amendment or variance that does not alter an essential element may still deprive a defendant of an opportunity to meet the prosecutor’s case. See Weiss, 752 F.2d at 789 (citing Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). However, the indictment and the jury charge in the instant matter comported with one another in all essential respects, and Mrs. Helmsley had adequate notice of the conduct she was called upon to defend. 1. Count 1: Conspiracy Count 1 charged defendants with conspiracy in violation of 18 U.S.C. § 371. Judge Walker instructed the jury that it" }, { "docid": "3929935", "title": "", "text": "often through the evidence presented at trial or the jury instructions — that the jury is allowed to convict the defendant of an offense different from or in addition to the offenses charged in the indictment.” Id. Here, no constructive amendment occurred because Thomas was not convicted of a crime different from those charged in the indictment. Thomas was charged with and convicted of wire fraud and the additional evidence did not change the essential elements of this crime. This case is distinct from cases where courts have found constructive amendments. See, e.g., Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (finding constructive amendment when jury could have convicted defendant based on interference with shipments into or out of state when indictment only alleged interference with shipments into state); United States v. Yeo, 739 F.2d 385, 386-87 (8th Cir.1984) (finding constructive amendment when jury could have convicted defendant of extortion for collecting debt from individuals other than the one named in the indictment). Although Thomas labels her argument as one challenging a constructive amendment, her claims are more appropriately considered as alleging a variance. “The basic difference between a constructive amendment and a variance is this: a constructive amendment changes the charge, while the evidence remains the same; a variance changes the evidence, while the charge remains the same.” United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.2000). Because Thomas’s argument is, in essence, a variance argument, we now consider whether the district court erred in determining no fatal variance occurred. While “[a] constructive amendment is reversible error per se, [ ] a variance is subject to the harmless error rule.” Id. “A variance between the indictment and proof at trial requires reversal of a conviction only if the variance actually prejudiced the defendant. The primary consideration in this determination is whether the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial.” United States v. Begnaud, 783 F.2d 144, 148 (8th Cir.1986) (citation omitted). The district court considered whether the introduction of the unreported" }, { "docid": "6925832", "title": "", "text": "in a miscarriage of justice if left uncorrected.” Id. (quoting United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir.1991)). An indictment may not be amended after a grand jury has returned it. United States v. Huntsman, 959 F.2d 1429, 1435 (8th Cir.), cert. denied, — U.S.-, 113 S.Ct. 201, 121 L.Ed.2d 143 (1992). “An amendment occurs ‘when the essential elements of the offense set forth in the indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed upon them.’ ” Id. (quoting Unit ed States v. Begnaud, 783 F.2d 144, 147 & n. 4 (8th Cir.1986)). However, a variance in the indictment “occurs when the essential elements of the offense set forth in the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment.” Id. If there is only a variance, we need not reverse if the indictment “fully and fairly apprised” McIntosh of the charges, that is, if the variance is harmless. Id. McIntosh points us to United States v. Leichtnam, 948 F.2d 370 (7th Cir.1991), in support of his contention that the indictment was altered. There, the defendant was indicted and charged with using or carrying a Mossburg rifle in violation of 18 U.S.C. § 924(c). Id. at 374-75. The court instructed the jury to convict the defendant if it found he had used “a firearm.” Id. at 379. The Seventh Circuit held the instructions constituted an amendment to the indictment, based on the premise that the brand of rifle was not mere surplusage but an essential element of the crime. Id. That court also considered the instruction an amendment because the prosecutor showed two handguns and a rifle to the jury when the defendant had been charged only with using or carrying a rifle. Id. The court found that in “the context of the entire jury charge and the entire trial,” the introduction of three guns instead of the one specifically charged amounted to a violation of the defendant’s right to be tried only on the" } ]

[ { "docid": "10349994", "title": "", "text": "a hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). This is the case here. Relator first alleges that he was denied counsel at the time of his guilty plea. However, the state judge found that relator had intelligently waived counsel and his finding in this respect is supported by the evidence in the state habeas proceeding. The relator next alleges that he was held incommunicado and during lengthy sessions of interrogation was compelled to sign a prepared statement. However, the confession was neither introduced nor referred to at the time of the guilty plea, and the relator makes no allegation that the guilty plea was in any way affected or brought about by the confession. Under such circumstances any irregularities in obtaining the confession have no constitutional significance. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947); United States v. Morin, 265 F.2d 241 (C.A.3, 1959); United States ex rel. Staples v. Pate, 222 F.Supp. 998 (N.D.Illinois, E.D. 1963). Relator next alleges that he was coerced into sighing a plea of guilty on the indictment with threats of prosecution of other crimes. The state judge found on sufficient evidence that this was not so. The relator’s next charge is that he was legally incompetent to enter his plea of guilty. However, at the habeas corpus hearing a medical doctor testified both under direct and cross-examination that the relator was competent and was capable of understanding the nature and consequences of his plea. The state judge’s finding to this effect was thus amply supported by the evidence. Finally, the relator alleges a departure by the sentencing court from Pennsylvania statutes governing commitment to a mental institution, citing the Act of May 2, 1933, P.L. 224, as amended, 19 P.S. § 1155. However, assuming the validity of relator’s contention, the misinterpretation or misapplication by a state court of state law furnishes no ground for federal habeas corpus. For the foregoing reasons the petition for a writ of habeas corpus will be denied. . This Act was repealed by 1951 P.L. 533," } ]

[ { "docid": "10639931", "title": "", "text": "him, and that he was not released on bail. Actually, there is little, or no, basis in fact for these claims, even if they were not foreclosed by the guilty plea. From the first, the petitioner, though imprisoned, was not held incommunicado, was permitted freely to see members of his family and, finally, to consult with his attorney, retained by his family to represent him. Moreover, that the petitioner must have known the charge against him seems plain from his own testimony and his bland profession of ignorance, asserted after three petitions in habeas corpus, is patently incorrect. Certainly, at his preliminary hearing, where the father of the victim testified, he knew. In fact, he was quite caustic in his comments on the father, who, it would appear from the petitioner’s testimony, was an eyewitness to the assault; he stated he could not understand a father who would stand by, however great the personal risk, and witness such an assault on his daughter. Moreover, when he was first interrogated and the victim was requested to make an identification, he had to have known what the charge under investigation was. Whether he was kept in ignorance of the charge on which he was held for a week after his arrest or not is, however, of no real moment. Petitioner makes no contention that it was related in any way to his plea. Townsend v. Burke (1947) 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; United States ex rel. McClintic v. Rundle (D.C.Pa.1964) 237 F.Supp. 207, 208; United States ex rel. Staples v. Pate, supra (332 F.2d 531). So far as petitioner’s claim of denial of bail, it is doubtful that the petitioner was bailable under the charges made against him and with the proof available (Section 20, Article 1, Constitution of South Carolina (1895); Sellers v. State of Georgia (C.C.A.Ga. 1967) 374 F.2d 84, 85; Zide v. Florida (C.C.A.Fla.1969) 410 F.2d 394, 395); but, whether bailable or not, the petitioner never made any attempt to secure release on bail. Apart from the fact that collateral attack on his guilty plea" }, { "docid": "10639957", "title": "", "text": "pursue all State remedial steps.” (338 F.2d p. 513) . Watts v. United States (1960) 107 U.S.App.D.C. 367, 278 F.2d 247, 249-250; United States ex rel. Staples v. Pate (C.C.A.Ill.1964) 332 F.2d 531, 533, cert. denied, 358 U.S. 851, 79 S.Ct. 78, 3 L.Ed.2d 84. See, United States v. Morin (D.C.Pa. 1958) 163 F.Supp. 941, 944, aff. 265 F.2d 241: “Illegal detention is a non-constitutional and non-jurisdictional defect which ordinarily is waived upon a voluntary plea of guilty.” . Brown v. Allen (1953) 344 U.S. 443, 476, 73 S.Ct. 397, 97 L.Ed. 469; Bradford v. Lefkowitz (D.C.N.Y.1965) 240 F.Supp. 969, 975; United States v. Morin, supra (163 F.Supp., at p. 944.) . Kent v. United States (C.C.A.Mass. 1959) 272 F.2d 795, 798. Petitioner does not contend that either his incarceration or his failure to be released on bond induced his plea. Actually, he first plead “Not guilty”, indicating that neither circumstance contributed in any degree to his subsequent change of pleas. See, Long v. United States (C.C.A.Cal.1961) 290 F.2d 606, 607 (overruled on another point, Heiden v. United States (C.C.A.Ariz.1965) 353 F.2d 53, 55.) . See, Ward v. Texas (1942) 316 U.S. 547, 555, 62 S.Ct. 1139, 86 L.Ed. 1663. . Townsend v. Burke, supra (334 U.S. 736, 738, 68 S.Ct. 1252, 92 L.Ed. 1690) ; Hardin v. United States (C.C.A.Tex. 1969) 410 F.2d 146; United States ex rel. Staples v. Pate, supra (332 F.2d 531) ; Blood v. Hunter (C.C.A.Kan. 1945) 150 F.2d 640, 641. . This doubt is accentuated by the petitioner’s own inconsistent statements. In his testimony, he said he signed, by touching the pencil, an alleged confession, the nature of which he did not know, since he neither read nor had it read to him. However, in his verified petition, he denied signing. Perhaps the two statements may be reconciled by assuming that he did not understand that, by merely touching the pencil, he had signed the confession. See, Kelly v. Manning (1960) 237 S.C. 364, 368, 117 S.E.2d 362, cert. den. 366 U.S. 951, 81 S.Ct. 1907, 6 L.Ed. 2d 1244. Belatedness is always a" }, { "docid": "7815852", "title": "", "text": "as a result of the alleged violations of federal law. Petitioner’s first claim is that the trial court relied on inaccurate information. Petitioner has not submitted proof that any of his previous convictions were unconstitutional or that the trial court relied on material misinformation. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). Petitioner’s second claim alleges ineffective assistance of trial and appellate counsel. Petitioner contends that his trial attorney failed to review the presentence report with him and failed to object to inaccuracies in the report. As explained above, petitioner’s trial attorney stated that he had reviewed the presentence report with petitioner and that they had no suggested changes to make in the report. Petitioner also contends that his trial attorney mislead him into believing that he would receive a more lenient sentence if he pleaded guilty before the trial judge in this case. At the plea, however, petitioner stated that there were no deals or arrangements regarding the outcome of this case. P & ST at 8. Petitioner also stated at the plea that: (1) he understood his attorney’s advice and explanation of the charges; (2) he was satisfied with his attorney’s representation and advice; and (3) he understood that the trial court could incarcerate him for the rest of his life as a result of the plea. P & ST at 4, 6. Petitioner asserts that his appellate attorney should have included the pending claims in petitioner’s appeal of right. Petitioner has not shown that the trial court relied on material misinformation or that his trial attorney’s performance was deficient. Therefore, petitioner’s appellate attorney was not remiss for failing on appeal to challenge the presentence report and trial counsel’s performance. For all the above reasons, the Court concludes that pétitioner has failed to establish actual prejudice as a result of the alleged violations of federal law. D. “Miscarriage of justice” The Court may consider a petitioner’s defaulted claims if the petitioner demonstrates that a" }, { "docid": "10639958", "title": "", "text": "Heiden v. United States (C.C.A.Ariz.1965) 353 F.2d 53, 55.) . See, Ward v. Texas (1942) 316 U.S. 547, 555, 62 S.Ct. 1139, 86 L.Ed. 1663. . Townsend v. Burke, supra (334 U.S. 736, 738, 68 S.Ct. 1252, 92 L.Ed. 1690) ; Hardin v. United States (C.C.A.Tex. 1969) 410 F.2d 146; United States ex rel. Staples v. Pate, supra (332 F.2d 531) ; Blood v. Hunter (C.C.A.Kan. 1945) 150 F.2d 640, 641. . This doubt is accentuated by the petitioner’s own inconsistent statements. In his testimony, he said he signed, by touching the pencil, an alleged confession, the nature of which he did not know, since he neither read nor had it read to him. However, in his verified petition, he denied signing. Perhaps the two statements may be reconciled by assuming that he did not understand that, by merely touching the pencil, he had signed the confession. See, Kelly v. Manning (1960) 237 S.C. 364, 368, 117 S.E.2d 362, cert. den. 366 U.S. 951, 81 S.Ct. 1907, 6 L.Ed. 2d 1244. Belatedness is always a factor to be considered in assessing the genuineness of a claim. See, for instance, United States v. Gearey (C.C.A.N.Y.1966) 368 F.2d 144, 149-150, cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368. . See, United States ex rel. McClintic v. Rundle (D.C.Pa.1964) 237 F.Supp. 207, 208. A comprehensive discussion of when a tainted confession will invalidate a guilty plea and render it involuntary within constitutional concepts appears in the several well-reasoned and thoroughly researched opinions in United States ex rel. Ross v. McMann (C.C.A.N.Y.1969) 409 E.2d 1016. So far as this particular issue is concerned, see, particularly, the statement in the majority opinion (p. 1022) : “Therefore a mere conclusory allegation by a prisoner without more, that the existence of a coerced confession induced his guilty plea, in the absence of any particularized allegations as to how that confession rendered his plea involuntary, should not ordinarily be considered sufficient to predicate an order for a hearing.” The real issue in this HcMamn Case was whether, when a defendant, represented by counsel, voluntarily enters" }, { "docid": "10639949", "title": "", "text": "he was pleading guilty but he did so because his trial counsel, now dead, had dangled before him the threat of the death penalty with the alternative offered of a maximum sentence of fifteen years. This altering of his story, patently made to fit the changing legal theories in his two petitions, must raise a real doubt about the reliability of petitioner’s testimony in this Court, testimony which I frankly find incredible in the light of his earlier testimony. See, United States v. Sehon Chinn (D.C.W.Va.1947) 74 F.Supp. 189, 191, aff. 163 F.2d 876. The petitioner was represented at his sentencing by retained counsel. The ability and integrity of such counsel were well recognized. It is settled that, as the Court put it in United States ex rel. Nixon v. Follette (D.C.N.Y.1969) 299 F.Supp. 253, 255, “The fact that petitioner was represented by counsel is also entitled to substantial weight in determining the issue of voluntariness.” Such counsel must have fully advised the petitioner of his rights. Petitioner conceded at his first evidentiary hearing in the State Court that he knew that, under his plea, he could be sentenced to imprisonment for as much as forty years. He knew his rights; he was not “uninformed”. I conclude on the record that the petitioner did knowingly and understandingly enter his guilty plea. One final point remains. It involves a matter not raised by the petitioner or his counsel. The petitioner has never admitted or denied his guilt. He claims that he was too drunk to know whether he did or did not commit the crime with which he was charged. It is not necessary, though, that a defendant admit his guilt as a basis for the acceptance of a plea of guilty. The evidence may be so overwhelming that a plea is well justified. Such circumstances will support a plea under Rule 11, even when the defendant does not concede his guilt. McCoy v. United States (1966) 124 U.S.App.D.C. 177, 363 F.2d 306, 308-309; cf., note 20, Alford v. North Carolina, supra (405 F.2d, p. 348.) The real gravamen of petitioner's" }, { "docid": "10639934", "title": "", "text": "plea, he makes no reference to any possible confession. More importantly — and this is decisive — the petitioner does not allege or claim, either in his petition or in his testimony, that his guilty plea was induced in the slightest by any possible confession. Absent any evidence of such coercion, the issue of the validity of a confession is foreclosed by the guilty plea. In this state of the record and without even a claim by the petitioner that his guilty plea was induced in any degree by a confession, relief on this ground must fail. Machibroda v. United States (1962) 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473; Lattin v. Cox (C.C.A.N.Mex.1966) 355 F.2d 397, 399. Similarly, the attack upon the indictment is without any basis. Such indictment clearly charges the crime on which the petitioner was sentenced. Thus, it charges that the petitioner “did make an assault on her the said * * * with intent her the said * * * violently and against her will, then and there feloniously to ravish and carnally know, * * * the said * * This is for all practical purposes the exact language of the statute under which the petitioner was sentenced. It is true the indictment includes counts charging rape and assault and battery. This is plainly permissible and customary under South Carolina practice (State v. Collins (1956) 228 S.C. 537, 548-549, 91 S.E.2d 259) and follows the generally sanctioned practice elsewhere. Howard v. United States (C.C.A.Cal.1967) 372 F.2d 294, 301, cert. denied 388 U.S. 915, 87 S.Ct. 2129, 18 L.Ed.2d 1356. Moreover, it is immaterial whether the petitioner was advised of a right of appeal by his retained counsel. The petitioner’s plea was a guilty plea. Petitioner would have no right of appeal therefrom, though, if the plea were involuntary, he might challenge it in a post-conviction proceeding. This leaves for consideration the new issue of the voluntariness of petitioner’s plea under the rulings in United States v. Jackson, supra, and Boykin v. State, supra. It is the contention of the petitioner that Jackson" }, { "docid": "10639930", "title": "", "text": "claims may be quickly disposed of. It has been repeatedly held that one’s guilty plea (if voluntary, and that is a question to be discussed later) generally waives all non-jurisdictional defects in the criminal proceedings preliminary thereto. Bloombaum v. United States (C.C.A.Md. 1954) 211 F.2d 944, 945-946; Sims v. United States (D.C.Md.1966) 272 F.Supp. 577, 587, aff. 382 F.2d 294, cert. denied 390 U.S. 961, 88 S.Ct. 1062, 19 L.Ed.2d 1158; Fowler v. United States (C.C.A.Fla.1968) 391 F.2d 276, 277; United States ex rel. Rogers v. Warden of Attica State Prison (C.C.A.N.Y. 1967) 381 F.2d 209, 212-214; Fleming v. Klinger (C.C.A.Cal.1966) 363 F.2d 378, 379; Sullivan v. United States (C.C.A.Kan.1963) 315 F.2d 304, 305, cert. den. 375 U.S. 910, 84 S.Ct. 203, 11 L.Ed. 2d 149, reh. den. 376 U.S. 928, 84 S.Ct. 669, 11 L.Ed.2d 628; Watts v. United States (1960), 107 U.S.App.D.C. 367, 278 F.2d 247, 250. Such rule disposes of petitioner’s contentions that he was arrested without a warrant, that he was confined for a week in ignorance of the charge against him, and that he was not released on bail. Actually, there is little, or no, basis in fact for these claims, even if they were not foreclosed by the guilty plea. From the first, the petitioner, though imprisoned, was not held incommunicado, was permitted freely to see members of his family and, finally, to consult with his attorney, retained by his family to represent him. Moreover, that the petitioner must have known the charge against him seems plain from his own testimony and his bland profession of ignorance, asserted after three petitions in habeas corpus, is patently incorrect. Certainly, at his preliminary hearing, where the father of the victim testified, he knew. In fact, he was quite caustic in his comments on the father, who, it would appear from the petitioner’s testimony, was an eyewitness to the assault; he stated he could not understand a father who would stand by, however great the personal risk, and witness such an assault on his daughter. Moreover, when he was first interrogated and the victim was requested to" }, { "docid": "7815851", "title": "", "text": "had no comment when the trial judge subsequently asked petitioner if he had anything to say. P & ST .at 18. Petitioner’s appellate attorney subsequently was able to reduce the number of felonies in the presentence report from ten to six. MR at 5-6. Moreover, petitioner had no per se constitutional right to have his appellate attorney raise every nonfrivolous issue on appeal. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821 (1985); Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983). Tactical choices about which issues to raise on appeal “are properly left to the sound professional judgment of counsel----” United States v. Perry, 908 F.2d 56, 59 (6th Cir.), cert. denied, 498 U.S. 1002, 111 S.Ct. 565, 112 L.Ed.2d 571 (1990). The Court concludes that the defense attorneys’ performances were not deficient and therefore cannot be cause for petitioner’s failure to raise his challenge to the presentence report in his appeal of right. C. “Actual prejudice” Nor has petitioner shown actual prejudice as a result of the alleged violations of federal law. Petitioner’s first claim is that the trial court relied on inaccurate information. Petitioner has not submitted proof that any of his previous convictions were unconstitutional or that the trial court relied on material misinformation. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). Petitioner’s second claim alleges ineffective assistance of trial and appellate counsel. Petitioner contends that his trial attorney failed to review the presentence report with him and failed to object to inaccuracies in the report. As explained above, petitioner’s trial attorney stated that he had reviewed the presentence report with petitioner and that they had no suggested changes to make in the report. Petitioner also contends that his trial attorney mislead him into believing that he would receive a more lenient sentence if he pleaded guilty before the trial judge in this case. At the plea, however, petitioner stated that" }, { "docid": "10639933", "title": "", "text": "cannot be predicated on these various grounds, the petitioner’s own testimony shows conclusively, as I have already noted, that none of them entered into his determination to plead guilty and under no circumstances, therefore, could afford a basis for relief in this proceeding. Of course, if a guilty plea is induced by a tainted confession or by any other deprivation of the defendant’s constitutional rights it cannot be regarded as a voluntary plea. White v. Pepersack (C.C.A.Md.1965) 352 F.2d 470, 472; Kelly v. Warden (D.C.Md. 1964) 230 F.Supp. 551, 556. But, petitioner’s complaint in this case about a confession, first raised in his petition in this Court, comes belatedly; and the long delay of the petitioner in raising it, despite repeated opportunities to raise it in his earlier applications, generates doubt of its genuineness. Prior to the filing of this petition, nothing in the record indicates that any such confession had ever existed, or had been produced or used in any way. In describing the conferences he had with his retained attorney prior to his plea, he makes no reference to any possible confession. More importantly — and this is decisive — the petitioner does not allege or claim, either in his petition or in his testimony, that his guilty plea was induced in the slightest by any possible confession. Absent any evidence of such coercion, the issue of the validity of a confession is foreclosed by the guilty plea. In this state of the record and without even a claim by the petitioner that his guilty plea was induced in any degree by a confession, relief on this ground must fail. Machibroda v. United States (1962) 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473; Lattin v. Cox (C.C.A.N.Mex.1966) 355 F.2d 397, 399. Similarly, the attack upon the indictment is without any basis. Such indictment clearly charges the crime on which the petitioner was sentenced. Thus, it charges that the petitioner “did make an assault on her the said * * * with intent her the said * * * violently and against her will, then and there" }, { "docid": "3213655", "title": "", "text": "that “petitioner was represented in the adult proceedings by counsel known to this court as an experienced, competent attorney.” On February 9, 1963, neither petitioner nor his counsel objected in any way to the juvenile court waiver proceedings or to the jurisdiction of the adult court and instead pleaded guilty to the three charges then before the court. The court interrogated the petitioner to determine his understanding and the voluntary nature of his plea. The guilty plea upon the three charges was made with knowledge by the petitioner and his counsel that “the State would not issue further warrants” upon the 30 other burglary charges and the 30 other automobile theft charges. Although in 1963 petitioner’s counsel did not know that juveniles were constitutionally entitled to counsel in juvenile court, he did know what the probable comparative results would be for the petitioner in the juvenile court and in the adult court and he did know that the Wisconsin Children’s Division permitted the appearance of counsel since the record of the waiver hearing in that court showed that the petitioner’s codefendant Jackson actually had counsel. Thus he knew that he could continue to represent the petitioner if he persuaded the adult court to return the proceedings to the juvenile court. He decided against that course. Under Wisconsin law, * * even the claim of a constitutional right will be deemed waived unless timely raised in the trial court.” Bradley v. Wisconsin, 36 Wis.2d 345, 359, 153 N.W.2d 38, 44 (1967). In United States ex rel. O’Neill v. Burke, 379 F.2d 656, 659 (7th Cir.), cert. denied, 389 U.S. 876, 88 S.Ct. 173, 19 L.Ed.2d 163 (1967), Judge Cummings said: “In addition, under Wisconsin law petitioner waived any defect as to jurisdiction over his person by pleading guilty. State ex rel. Wojtycski v. Hanley, 248 Wis. 108, 113, 20 N.W.2d 719, 721 (1945). Non-jurisdictional defects in an information are not open to collateral attack. United States v. Kniess, 264 F.2d 353, 357 (7th Cir. 1959).” The petitioner was accorded his federal constitutional rights. Cf. Acuna v. Baker, 418 F.2d 639 (10th" }, { "docid": "10639932", "title": "", "text": "make an identification, he had to have known what the charge under investigation was. Whether he was kept in ignorance of the charge on which he was held for a week after his arrest or not is, however, of no real moment. Petitioner makes no contention that it was related in any way to his plea. Townsend v. Burke (1947) 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; United States ex rel. McClintic v. Rundle (D.C.Pa.1964) 237 F.Supp. 207, 208; United States ex rel. Staples v. Pate, supra (332 F.2d 531). So far as petitioner’s claim of denial of bail, it is doubtful that the petitioner was bailable under the charges made against him and with the proof available (Section 20, Article 1, Constitution of South Carolina (1895); Sellers v. State of Georgia (C.C.A.Ga. 1967) 374 F.2d 84, 85; Zide v. Florida (C.C.A.Fla.1969) 410 F.2d 394, 395); but, whether bailable or not, the petitioner never made any attempt to secure release on bail. Apart from the fact that collateral attack on his guilty plea cannot be predicated on these various grounds, the petitioner’s own testimony shows conclusively, as I have already noted, that none of them entered into his determination to plead guilty and under no circumstances, therefore, could afford a basis for relief in this proceeding. Of course, if a guilty plea is induced by a tainted confession or by any other deprivation of the defendant’s constitutional rights it cannot be regarded as a voluntary plea. White v. Pepersack (C.C.A.Md.1965) 352 F.2d 470, 472; Kelly v. Warden (D.C.Md. 1964) 230 F.Supp. 551, 556. But, petitioner’s complaint in this case about a confession, first raised in his petition in this Court, comes belatedly; and the long delay of the petitioner in raising it, despite repeated opportunities to raise it in his earlier applications, generates doubt of its genuineness. Prior to the filing of this petition, nothing in the record indicates that any such confession had ever existed, or had been produced or used in any way. In describing the conferences he had with his retained attorney prior to his" }, { "docid": "10639919", "title": "", "text": "an escapee for about four years. The petitioner is now 32 years of age. At the time of his arrest, he was 18. He finished the second grade in school, but, since his confinement, he apparently has followed with good results an educational program made available by the prison authorities. He appears reasonably intelligent and shows some familiarity with the law, a familiarity no doubt developed through his associations in the Penitentiary. After his arrest on the charge for which he was later sentenced, his family employed private counsel to represent him. No attempt was made by the petitioner or his counsel to secure the petitioner’s release on bail. Indictment of the petitioner followed. It consisted of three counts, charging statutory rape, assault with intent to ravish and assault and battery. The petitioner was given a preliminary hearing, at which the father of the victim testified. The record of such proceeding is not before me but it is assumed that the petitioner was identified as the assailant in the charged crime. At the commencement of the following term of Court of General Sessions, the petitioner entered an initial plea of “not guilty”. After reviewing with his retained counsel the evidence against him, the petitioner agreed to a consent verdict, as set forth above. According to the petitioner’s testimony in one of his habeas corpus hearings, the victim of the assault was called as a witness and testified in connection with this consent verdict. It is to set aside this consent verdict, which was tantamount to a plea of guilty, as involuntary, that petitioner files this proceeding. Since beginning the service of his sentence, the petitioner has filed three petitions in habeas corpus in the appropriate Circuit Court of South Carolina. All of them were dismissed as without merit. In the first two of these proceedings petitioner was represented by appointed counsel and was accorded an evidentiary hearing. The third pro ceeding was dismissed without the appointment of counsel for the petitioner and without an evidentiary hearing. No appeal was taken from the order of dismissal entered by the Circuit Court" }, { "docid": "21865786", "title": "", "text": "reconsideration of the court’s order; the government replied in opposition, and the motion for reconsideration was denied. Petitioner then filed a special motion for reconsideration that was also denied. Finally, another special motion for reconsideration was filed and denied without argument. On appeal, petitioner asserts six reasons for vacating or setting aside the sentence: (1) the government unconstitutionally denied him exculpatory evidence; (2) he was a victim of selective prosecution; (3) the government deprived him of a fair trial through the United States Attorney’s failure to disclose certain information in the post-conviction proceedings; (4) his sixth amendment rights were violated due to the restricted cross-examination of the key government witness, Francis X. Green; (5) his sentence was based on materially false and prejudicial information in his presentence report; (6) his conviction was obtained through Green’s perjured testimony. Before turning to these contentions, we first note that petitioner raises an issue on this appeal that was not part of his original 2255 motion. He argues that the district court judge, Mazzone, J., who tried the case should not have also decided the 2255 motion. Petitioner claims that because the judge was familiar with the case, he had already made up his mind about the outcome of the motion and should have recused himself. In support of this position, he cites to our opinion in Halliday v. United States, 380 F.2d 270 (1st Cir.1967), cert. denied, 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969). Halliday, however, is inapposite. The question in that case was whether the same district judge who had accepted pleas of guilty without making any inquiry as to the voluntariness of the pleas or the defendant’s understanding of the nature of the charges could decide a 2255 motion requesting a change of pleas on the grounds that the judge had violated Federal Rule of Criminal Procedure 11 in failing to make the inquiry. The motion asserted that in pleading guilty the defendant had been confused and did not understand to what he was pleading guilty. We held that it was not proper for the same judge to" }, { "docid": "4330467", "title": "", "text": "Cir. 1967), all of which involved a judicial investigation of coerced confessions which purportedly induced guilty pleas. Defects neither jurisdictional nor constitutional in nature, occurring at any prior stage in the proceedings, were deemed waived in federal courts by the entry of a guilty plea. United States v. Rook, 424 F.2d 403, 405 (7th Cir.), cert. denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964). We note that the trial court properly and extensively admonished petitioner prior to the acceptance of his plea. While judicial admonitions in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), aid the court in discharging its obligation to ascertain the voluntary and intelligent character of a plea, we agree with the position of the Fifth Circuit that: [A]n equally important aspect of the courts’ responsibilities in this problem area is the protection of the accused’s right to the benefit of reasonably competent counsel in making his plea, especially when that plea is entered on advice of counsel. ... In [the Brady trilogy] it was obvious that the Supreme Court envisioned a system under which the defendant, advised by reasonably competent counsel, makes an informed and conscious choice. . . . When this system functions satisfactorily, it is both fair and reasonable to expect that a defendant who has made his choice and received whatever benefits flow therefrom be required to live by that choice. In any particular case in which the system fails, however, it is the courts’ duty to supply relief. Colson, supra, at 1079. In invalidating petitioner’s guilty plea, we express no opinion regarding the propriety of the trial court’s critical rulings. Whether the judge ruled correctly and would have been upheld on appeal is immaterial. Petitioner concluded his trial by the entry of a plea of guilty with the understanding that appellate review of the court’s" }, { "docid": "23158564", "title": "", "text": "in the District Court that there was a “free and voluntary” plea of guilty) ; Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247 (1960) (denial of Sec. 2255 motion to vacate sentence affirmed, where the motion was based on the ground that police used appellant's- co-defendant’s confession to induce him to confess and then to plead guilty, but upon a full hearing in the District Court it was found, on ample evidence, that the guilty plea was “competently, voluntarily and intelligently entered” — the statement, picked up out of context in the West’s headnote, that collateral attack on the plea of guilty would not lie, reads in full, 278 F.2d at 250: “Finally, at the hearing we ordered, appellant frankly admitted his guilt. On this record collateral attack will not lie.”) ; and United States ex rel. Staples v. Pate, 332 F.2d 531 (7 Cir. 1964) (dismissal of petition for habeas corpus affirmed, where petitioner contended that his plea of guilty did not waive prior police misconduct — alleged illegal search— which “induced” his plea, but the District Court found after a hearing that petitioner was not entitled to a writ, and the Court of Appeals noted three times that there was no evidence presented at the hearing that the plea was not voluntary) . . To enable the district court to decide whether or not a hearing should be ordered, additional supporting material such as the affidavit of the attorney who represented the petitioner when he entered the guilty plea, or exhibits or affidavits of persons having knowledge of the claimed facts, should be appended, with the petitioner’s own affidavit, to the original petition filed with the district court. In this case, however, we are satisfied from the petitioner’s affidavit alone that he is entitled to the requested hearing. . The conviction would stand, of course, if the state court found after full and fair evidentiary hearing, either that the confession was voluntary or that the plea was not substantially motivated by the confession. . The District Court summarized the record before it as follows: “Petitioner alleges:" }, { "docid": "10639956", "title": "", "text": "a jury with the burden of proof on the defendant. Wheatley v. United States (C.C.A.W.Va.1946) 159 F.2d 599, 602-603; People v. Jacks (1954) 2 Ill.App.2d 281, 119 N.E.2d 451-452. Intent is not an essential part of the crime of rape as charged in one count of the indictment against the petitioner (Lovely v. United States (C.C.A.S.C. 1948) 169 F.2d 386, 390; State v. Scarborough (1951) 55 N.M. 201, 230 P.2d 235, 236.) As applied to an assault with intent to ravish charged in the second count of the indictment against the petitioner, intent is in issue but it is generally held that it is to “be ascertained from the commission of some acts at the time of, or during, the assault.” 75 C.J.S. § 24, p. 490. See, Kruchten v. Eyman (C.C.A.Ariz.1969) 406 F.2d 304, 310. . See, Holland v. Coiner (D.C.W.Va.1968) 293 F.Supp. 203, 205-206, on federal rule as to successive applications in habeas corpus. . In Lovedahl, the Court, in sustaining jurisdiction, remarked: “No question is here raised of a failure first to pursue all State remedial steps.” (338 F.2d p. 513) . Watts v. United States (1960) 107 U.S.App.D.C. 367, 278 F.2d 247, 249-250; United States ex rel. Staples v. Pate (C.C.A.Ill.1964) 332 F.2d 531, 533, cert. denied, 358 U.S. 851, 79 S.Ct. 78, 3 L.Ed.2d 84. See, United States v. Morin (D.C.Pa. 1958) 163 F.Supp. 941, 944, aff. 265 F.2d 241: “Illegal detention is a non-constitutional and non-jurisdictional defect which ordinarily is waived upon a voluntary plea of guilty.” . Brown v. Allen (1953) 344 U.S. 443, 476, 73 S.Ct. 397, 97 L.Ed. 469; Bradford v. Lefkowitz (D.C.N.Y.1965) 240 F.Supp. 969, 975; United States v. Morin, supra (163 F.Supp., at p. 944.) . Kent v. United States (C.C.A.Mass. 1959) 272 F.2d 795, 798. Petitioner does not contend that either his incarceration or his failure to be released on bond induced his plea. Actually, he first plead “Not guilty”, indicating that neither circumstance contributed in any degree to his subsequent change of pleas. See, Long v. United States (C.C.A.Cal.1961) 290 F.2d 606, 607 (overruled on another point," }, { "docid": "1226115", "title": "", "text": "by the trial judge in making his factual finding of premeditation was competent (i.e., admissible), ground (3) provides no basis for habeas relief. C. In ground (4) petitioner claims his guilty plea to open murder was constitutionally defective because he was not advised of the nature of the charge against him nor of the consequences of his guilty plea. Petitioner has made this argument in every substantive brief filed by him or his counsel since 1966 when he began attacking his conviction. It has never been answered in a written opinion by a Michigan court, save the phrases “he understood what he was doing” and “it lacks meritorious grounds”. The issue presented by petitioner’s claim is whether his plea was voluntary and intelligently made within the meaning of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although Boy- kin established prophylactic rules requiring that an accused be informed on the record of his right to confront witnesses and the privileges against self-incrimination before he pleads guilty, something obviously not done here, the Boykin rules only apply to guilty pleas entered after June 2, 1969. Winegar v. Corrections Department, 435 F.Supp. 285 (W.D.Mich.1977), aff’d., 582 F.2d 1281 (6th Cir. 1978). Since petitioner’s plea was entered in May 1964, “the voluntariness of the plea must be determined by a comprehensive examination of the totality of the circumstances”. Rinehart v. Brewer, 561 F.2d 126, 130 (8th Cir. 1977). A guilty plea does not require any precise litany for its accomplishment. Armstrong v. Egeler, 563 F.2d 796, 799 (6th Cir. 1977). 1. The first and most universally recognized requirement of due process in the context of a guilty plea, and which is necessary for a guilty plea to be considered voluntary and intelligently made, is that the accused receive “real notice of the true nature of the charge against him.” Smith v. O’Grady, 312 U.S. 329, 332, 61 S.Ct. 572, 573, 85 L.Ed. 859 (1941). Petitioner argues he was never informed of the nature of the charges of first or second degree murder and the difference between them, he" }, { "docid": "10355955", "title": "", "text": "Philadelphia County detectives into signing a statement admitting his guilt under the mistaken belief that he was admitting only to receiving stolen goods; 2. That his plea of guilty was brought about by psychological pressure, fraud, coercion and the promise of leniency; 3. That his plea was entered under the mistaken belief that he was pleading guilty to receiving stolen goods; 4. That his plea was entered by his counsel and not by himself; 5. That the judge heard no evidence, and there is none in the record, as to the facts or nature of the crime. 1. The Confession Hairston testified before me that he-was interviewed by Detectives Washington and Bullock in Mocksville, S. C. When he denied being involved in a robbery with one Joe Williams, Washington tightened his handcuffs and Bullock, smacked him on the side of the head. Finally, he said, Washington reached into his briefcase and pulled out a paper with typing on it which Hairston signed, believing he was admitting to receiving-stolen goods. This evidence was contradicted by the testimony of Detective Washington, who testified that Hairston was not struck and that he was not handcuffed during the interrogation. I accept as true the testimony of' Detective Washington, and find that. Hairston’s confession was not coerced. I further find that the statement was-read to the relator, that he made and initialed certain corrections in it, and that he understood its purport and contents. But in any event, the confession was not used or referred to when defendant pleaded guilty, nor is there any allegation or evidence that it induced or in any way affected the plea. Hence, anything that may have occurred during the taking of the confession did not operate to infringe relator’s constitutional rights. United States ex rel. McClintic v. Rundle, E.D.Pa., 1964, 237 F.Supp. 207. Cf. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947); United States v. Morin, 265 F.2d 241 (C.A. 3, 1959). 2. The coerced guilty plea While this ground was alleged in the petition, the record is totally barren of any evidence to" }, { "docid": "10355956", "title": "", "text": "testimony of Detective Washington, who testified that Hairston was not struck and that he was not handcuffed during the interrogation. I accept as true the testimony of' Detective Washington, and find that. Hairston’s confession was not coerced. I further find that the statement was-read to the relator, that he made and initialed certain corrections in it, and that he understood its purport and contents. But in any event, the confession was not used or referred to when defendant pleaded guilty, nor is there any allegation or evidence that it induced or in any way affected the plea. Hence, anything that may have occurred during the taking of the confession did not operate to infringe relator’s constitutional rights. United States ex rel. McClintic v. Rundle, E.D.Pa., 1964, 237 F.Supp. 207. Cf. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947); United States v. Morin, 265 F.2d 241 (C.A. 3, 1959). 2. The coerced guilty plea While this ground was alleged in the petition, the record is totally barren of any evidence to support it. 3. The plea entered under misapprehension Hairston testified that he saw Mr. Thompson for the first time in the court room and had no chance to talk to him. He said that he told Mr. Thompson, in answer to a query, that he was going to plead guilty to receiving stolen goods. Previously, he said, he was visited by a representative of the Voluntary Defender but that nothing was said other than that relator would have a lawyer at the trial. However, the records of the Voluntary Defender show that he was interviewed by two lawyers from that office on two separate occasions. The nature of the charge in No. 1051, — aggravated robbery, — was discussed and the relator made a knowledgable choice that he would plead guilty to No. 1051 and not guilty to Nos. 1089 and 1090. At the arraignment, Mr. Thompson used the reports of these two lawyers in handling relator’s plea on No. 1051. Mr. Thompson testified that the Voluntary Defender’s office would never enter a plea for" }, { "docid": "10639953", "title": "", "text": "the petitioner testified he had been given only one evidentiary hearing and had testified but once in the State Court proceedings. The official records, admitted in evidence without objection, show that this testimony is erroneous. . The rule seems to be that, absent any charge of fraud, the journal entry records of the proceedings in the State Court at the time of the impaneling of the jury and the consent verdict entered by the defendant import verity and are not open to challenge in a collateral proceeding such as this by parol testimony. Tibbett v. Hand (C.C.A.Kan.1961) 294 F.2d 68, 72; Thomas v. Hunter (C.C.A. Kan.1946) 153 F.2d 834, 838; State v. Mayfield (1959) 235 S.C. 11, 23, 109 S.E.2d 716, cert. den. 363 U.S. 846, 80 S.Ct. 1616, 4 L.Ed.2d 1728; cf., however, Haacks v. Wainwright (C.C.A.Fla.1968) 387 F.2d 176, 178. See, also, Townsend v. Sain (1963) 372 U.S. 293, 322, 83 S.Ct. 745, 762, 9 L.Ed. 2d 770: “ * * * the state-court record is competent evidence, and either party may choose to rely solely upon the evidence contained in that record * * By reason of later admissions of the petitioner, this issue loses any significance. . It would not have been of moment whether witnesses were called by the State or not, since the petitioner entered what was in effect a guilty plea. United States ex rel. Smith v. Russell (C.C.A. Pa.1966) 359 F.2d 795, 796, cert. denied 385 U.S. 876, 87 S.Ct. 154, 17 L.Ed.2d 103. In such circumstances, the defendant “cannot later be heard to contend that there was no evidence offered.” Bartholomew v. United States (C.C.A. Minn.1961) 286 F.2d 779, 781. Actually, his complaint on this score seems to have been that the person he described as the State’s “No. 1 witness” did not appear. This “No. 1 witness”, it appears from the petitioner’s testimony, was the complainant’s mother and she became the “No. 1 witness”, not because she knew more about the alleged assault than anyone else but because she was listed first on the group of witnesses endorsed on the" } ]

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

[ { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "18491601", "title": "", "text": "or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001). Additionally, under AEDPA, a petitioner must obtain a Certificate of Appealability (COA) before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "2983002", "title": "", "text": "inquiry, the Supreme Court’s endorsement of the FBI warnings that did not expressly state there is a right to counsel during interrogation, and the circuit split regarding whether Miranda requires explicitly informing the suspect that he has the right to counsel during interrogation, we hold that the Court of Criminal Appeals’s conclusion that the warnings adequately conveyed the right to counsel during interrogation was not objectively unreasonable. Therefore, we affirm the district court’s denial of relief with respect to Bridgers’s Fifth Amendment claim. B. Fourth Amendment 1. COA Standard of Review The district court denied a COA with respect to Bridgers’s Fourth Amendment claim. Under AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. at 1034. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition" }, { "docid": "22276150", "title": "", "text": "every time there is a Rule 60(b) denial in a habeas case and the petitioner elects to appeal. And prisoners will almost always elect to appeal given all the free time on their hands. See Harris v. Garner, 216 F.3d 970, 978-79 (11th Cir.2000) (en banc). The dissent would have the courts of appeal entertain and decide each of those appeals no matter how clearly non-meritorious it appeared from the outset, and no matter whether it was from the denial of the first or fifth or fifteenth Rule 60(b) motion the petitioner had filed. Congress could not have intended that. For all of these reasons, we conclude that the certificate of appealability requirement applies not only to all final judgments denying § 2254 or § 2255 relief, but also to all final judgments denying Rule 60Q3) relief from those earlier final judgments. III. The next question up is whether certificates of appealability should be issued in the three cases before us. Congress has provided that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "23625770", "title": "", "text": "F.Supp.2d 1087 (C.D.Cal.1998). STANDARDS OF REVIEW A. General Standards We review de novo a district court’s denial of a § 2255 motion. United States v. McMullen, 98 F.3d 1155, 1156 (9th Cir.1996). We review for clear error a district court’s factual findings that underlie the disposition of a § 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1452 (9th Cir.1995). B. Standard for Issuing a COA A COA may issue only upon the “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.... When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Supreme Court recently elaborated on what is required to make such a showing: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039," }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" }, { "docid": "19629258", "title": "", "text": "Welch never claimed that the residual clause was unconstitutionally vague in his § 2255 motion, let alone that Johnson applies retroactively. Accordingly, courts below addressed neither issue. Indeed, Johnson was not even decided when the courts below issued their rulings. Those deficiencies should preclude us from deciding in this case whether Johnson is retroactive. Our role in reviewing the denial of a certificate of appealability is far more circumscribed than normal appellate review. The text of 28 U.S.C. § 2253 confirms this. Defendants can appeal their convictions and sentences as a matter of right on direct review, but § 2253 deprives courts of appeals of jurisdiction to review the denial of a petitioner's motion for federal postconviction relief unless he obtains a \"certificate of appealability.\" § 2253(c)(1). And he can obtain that certificate only if he makes \"a substantial showing of the denial of a constitutional right.\" § 2253(c)(2) ; see Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, this Court has instructed that review of the denial of a certificate of appealability is a retrospective inquiry into whether the movant's claims, as litigated in the district court, warrant further proceedings-not whether there is any conceivable basis upon which the movant could prevail. Courts must ask whether \"reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (emphasis added). They are to \"look to the District Court's application of [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ] to petitioner's constitutional claims and ask whether that resolution was debatable.\" Miller-El, supra, at 336, 123 S.Ct. 1029 (emphasis added). Until today, we did not require courts of appeals to consider all possible constitutional issues that might warrant relief as part of this inquiry. Those courts instead looked to how the movant framed his case in his motion to vacate. Even if, for example, a district court denies habeas relief based on procedural default and never reached the merits, the movant must establish not" }, { "docid": "9579645", "title": "", "text": "of the Confrontation Clause.”) (citations omitted). Accordingly, the petition for habeas relief based on a Sixth Amendment violation is denied. D. As to a Certificate of Appealability Rule 22(b) of the Federal Rules of Appellate Procedure provides that “[i]n a ha-beas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Section 2253(c) provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000). In the Court’s view, the petitioner has satisfied his burden for a certificate of appealability with regard to the issue of whether New York’s depraved indifference murder statute is unconstitutionally vague. This question is debatable among jurists of reason, as evidenced by the dissents of former Court of Appeals Judges Jasen, Bellacosa, and Rosenblatt, and the opinions of Judge Brieant in the Southern District of New York. Also, the question is one which should receive further review. The Second Circuit has not yet addressed whether New York’s depraved indifference murder statute, on its face or as interpreted, violates the Constitution. On two occasions, the Court found that the question was not properly exhausted and procedurally barred, and the petitioners failed to show either “cause and prejudice” or that they were actually innocent. See St. Helen v. Senkowski" }, { "docid": "18025546", "title": "", "text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "4885575", "title": "", "text": "determine whether to issue a certificate of appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). While Lassalle-Velázquez has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of his constitutional claims debatable or wrong. Lassalle-Velázquez may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. In this respect, we state that it has become common practice to collaterally challenge federal convictions in federal court by raising arguments of dubious merit. This practice is overburdening federal district courts to the point of having some of these criminal cases re-litigated on § 2255 grounds. We look at this matter with respect to the rights of litigants, but also must protect the integrity of the system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (in a motion to vacate judgment 25 under § 2255, the claimed error of law must be a fundamental defect which inherently results in a complete miscarriage of justice); see also Dirring v. U.S., 370 F.2d 862 (1st Cir.1967) (§ 2255 is a remedy available when some basic fundamental right is denied — not as vehicle for routine review for defendant who is dissatisfied with his sentence). V. Conclusion For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. IT IS SO ORDERED." } ]

[ { "docid": "14333306", "title": "", "text": "expenses incurred by taxpayer in connection with the incompetency proceedings were personal expenses, the deduction of which is expressly prohibited by Section 24(a)(1). Since Section 24(a)(1) cuts across Section 23(a), it is clear that taxpayer’s alternative contention, that the expenses were deductible under Section 23(a)(2) as expenditures for the “conservation, or maintenance of property” must fail also. II We also conclude that the Tax Court properly sustained the disallowance by the Commissioner of the deduction claimed by petitioner for expenses, incurred in the proceeding brought by his wife for a legal separation. The petitioner does not dispute that fees paid by a husband in resisting his wife’s monetary demands incident to a divorce or legal separation proceeding are generally not deductible. Smith’s Estate v. Commissioner, 3 Cir., 1953, 208 F.2d 349; Howard v. Commissioner, supra. He relies, however, upon an exception to this, rule created in Baer v. Commissioner, 8. Cir., 1952, 196 F.2d 646, and applied in two other cases, Bowers v. Commissioner, 6 Cir., 1957, 243 F.2d 904, and McMurtry v. United States, 1955, 132 F.Supp. 114,. 132 Ct.Cl. 418. In Baer the legal expenses sought to be deducted were incurred in connection with an uncontested' divorce proceeding in which the sole-issue was the form and amount of alimony to be paid to the taxpayer’s wife. The property of the taxpayer consisted' mainly of stock in a corporation of which, he was president and which provided’ him with the chief source of his income. The financial demands made by the wife-were such that the taxpayer would have been unable to meet them without altering his interest in the corporation. The-court held that under these circumstances the legal expenses were incurred for “the purpose of conserving and maintaining-this income-producing px-operty,” 196 F. 2d 646, 651. With all deference, we cannot reconcile this decision with that of' the Supreme Court in Lykes v. United States, supra; hence we decline to follow it. In Lykes, as in Baer, the deduction was sought under Section 23(a) (2). The taxpayer had incurred legal expenses in •contesting a gift tax deficiency of $150,-000 assessed" } ]

[ { "docid": "17952549", "title": "", "text": "immediately benefited. Harry Kahn, 26 T.C. 273. The Memorandum Opinions of this Court cited by petitioner are thus distinguishable and do not support his contention. It is likewise evident that the expenditure was hot related to the “management” or “maintenance” of property held by petitioner for the production of income. The main thrust of petitioners’ argument seems to be that the expenditure was an ordinary and necessary expense paid or incurred in the “conservation” of property held by petitioner for the production of income. Petitioner contends that his income-producing property was the stock of Studios, Inc., which he owned, and that his transfer of the 30,000 shares to Casey and Winn was to protect and conserve his remaining stock which was, he contends, his sole source of income. We are satisfied from the evidence that petitioner had exhausted all practicable sources of credit for the business prior to the sale of shares of stock of the corporation and that the sale of stock was about the only available source from which the funds required to continue the business could be obtained. We also recognize that the payment of commissions to salesmen for selling the stock was required. ' It could thus be said that the payment of the commissions was necessary to the continuation of the business, at least to the extent that it was “appropriate and helpful” for that purpose. See Welch v. Helvering, 290 U.S. 111. But this does not mean that it was “necessary” for the conservation of petitioner’s income-producing property; the business was that of the corporation and we have no evidence why the corporation could not have issued its authorized but unissued stock in payment of these commissions to protect its business rather than for petitioner to transfer his own shares to the salesmen. Nor do we think the record supports a finding that petitioner’s transfer of shares of stock to Casey and Winn was an “ordinary” expense paid for the conservation of his incomerproducing property. In Welch v. Helvering, supra, there may be found an interpretation of the word “ordinary” as it is used" }, { "docid": "10413892", "title": "", "text": "any litigation arising out of this transaction involving its tax consequences was also not related to the management, conservation, or maintenance of such property, and that, therefore, fees paid in connection with the litigation were not deductible under section 23 (a) (2). The respondent concedes that under the regulations, as amended May 14, 1946, by T. D. 5513, to conform to the decision in Bingham, v. Commissioner, 325 U. S. 365, fees of the type involved in the Willmott case are now deductible. In effect, he thus concedes that the Willmott case was overruled by the Bingham case. However, he argues that the part of the opinion in the Willmott case stating that “expenses of defending any type of litigation” are not “deductible by the owner of property because of the possibility that a judgment lien might attach to it” still stands. The majority have adopted this view. Although section 23 (a) (2) may not be so broad in scope as to permit a deduction to an owner of property of “expenses of defending any type of litigation” merely because of the possibility that a judgment lien might attach to his property, it does permit the deduction to the owner of income-producing property of expenses incurred or paid in resisting the imposition of taxes and defending such property against a lien. Bingham v. Commissioner, supra, which affirmed Mary Lily Bingham Trust, 2 T. C. 853. In that case we stated, in respect to the litigation and resultant expenses therein involved: * * * the sole purpose and object of the litigation and the proximate cause of the expenditure were to relieve the estate from the payment of the deficiency in income tax determined by the Commissioner, which was the subject matter of the litigation. The effort of petitioners in seeking, through this litigation, to give such relief to the estate was, in our\\opinion, obviously a factor in the conservation, management, and maintenance of the property of that estate, concededly held for the production of income, since in resisting the imposition of the tax the trustees were performing the required duty" }, { "docid": "8698236", "title": "", "text": "section. The Tax Court held that the law is correctly stated in Treasury Regulation 111, section 29.23(a)-15(b), as amended by T.D. 5513, which provides:- “Expenses paid or incurred by an individual in the determination of liability for taxes upon his income are deductible. If property is held by an individual for the production of income, amounts expended in determining a property tax imposed with respect to such property during the period when so held are deductible. Expenses paid or incurred by an individual in determining or contesting any liability asserted against him do not become deductible, however, by reason of the fact that property held by him for the production of income may be required to be used or sold for the purpose of satisfying such liability. Thus, expenses paid or incurred by an individual in the determination of gift tax liability, except to the extent that such expenses are allocable to interest on a refund of gift taxes, are not deductible, even though property held by him for the production of income must be sold to satisfy an assessment for such tax liability or even though, in event of a claim for refund, the amount received will be held by him for the production of income.” [Italics supplied.] The petitioner contends that the attorneys’ fees in question are deductible under section 23(a) (2), because (1) such expenditure was made to conserve his income-producing property by defending it against the claim and lien of the gift tax deficiency, and (2) the expenditure was a proximate result of his action in making gifts to conserve his income-producing property and to aid in the production of income. He insists that his position is supported by the authoritative interpretation of section 23(a) (2) in the opinion of Chief Justice Stone in Trust under the Will of Bing-ham et al. v. Commissioner of Internal Revenue, 325 U.S. 365, 373-376, 65 S.Ct. 1232, 1237, 89 L.Ed. 1670, 163 A.L.R. 1175. In that case, the Supreme Court held that there was no error of law in the determination by the Tax Court that attorneys’ fees and" }, { "docid": "1451913", "title": "", "text": "*. (2) Non-trade or non-business expenses. In the, case of an in-’ dividual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of, property held for the production of income.” Petitioner’s argument is that the attorney’s fee and expenses of defending the above suit are deductible under the clause relative to expenses paid for “the, management, conservation, or maintenance of property held for the production of income.” The Tax Court thought, and we believe rightly, that the clause affords no basis for the deduction. Originally the Treasury took the position that counsel fees paid in. connection either with efforts to- obtain alimony or in resisting alimony claims are not deductible under § 23(a) (2). See I.T. 3856, 1947-1 Cum.Bull. 23. Thereafter the Tax Court held in two cases, Gale v. Commissioner, 13 T.C. 661, and LeMond v. Commissioner, 13 T.C. 670, that expenses paid by the wife to obtain, alimony are deductible if the alimony is taxable as income to her, the reasoning of the decisions being that' the expenditures were made to produce or collect taxable income. The ruling is now accepted by the Treasury. See Treasury Regulations 111, § 29.24-1, as amended by T.D. 5889, 1952-7 Int.Rev.Bull. 2. In Lykes v. United States, 343 U.S. 118, 72 S.Ct. 585, 96 L.Ed. 791, the Court said that legal expenses do not become deductible under § 23(a) (2) merely because they are paid for services which relieve a taxpayer of liability. The Section, said the Court, 343 U.S. at page 125, 72 S.Ct. at, page 589, “has been applied to expenses on the basis of their immediate purposes rather than upon the basis of the remote contributions they- might make to the conservation of a taxpayer’s income-producing assets by reducing his general liabilities.” The rationale of the Lykes case is determinative here. Indeed in Lykes there was some evidence of ah immediate purpose of income production in the making of the gifts which were the occasion of the litigation there, whereas in" }, { "docid": "17435139", "title": "", "text": "OPINION. Leech, Judge: The issue is whether the disallowed expenses petitioners paid in 1940 allocable to the recovery of the overpayment of income taxes for 1932 are deductible in computing their income taxes for 1940 under section 23 (a) (2) of the Internal Revenue Code. Respondent denies deductibility only on the grounds, apparently,, that (1) the suit, in which the expenses were incurred and paid, was not brought to produce income, but to recover taxes, and (2) the property (stock) was known to be worthless, at least when the suit was brought; was thus not then held by petitioners for production of income; and, accordingly, the expenses of the suit were therefore not those of “management, conservation, or maintenance of property held for the production of income.” Assuming the validity of the first ground, the question still remains as to that of the second. Trust u/w of Mary Lily (Flagler) Bingham v. Commissioner, 325 U. S. 365. In the cited case a trust had paid legal fees in the taxable year, incurred in connection with legal problems arising after the term of the trust expired and while the distribution of the trust fund was pending. In computing its income tax for that year the trust had deducted the amount of these fees under section 23 (a) (2) of the code — the same statutory provision involved here. The respondent disallowed the deduction. In finally approving the deduction the Supreme Court said, inter alia: * * * But the duties of the trustees were not only to hold the property for the production of income and to collect the income, but also, in administering the trust, to distribute the income and the principal so held from time to-time, and the remainder of the principal at the expiration of the trust. Performance of each of these duties is an integral part of carrying out the trust -enterprise. Accordingly, as the Tax Court held, the costs of distribution here were quite as much expenses of a function of “management” of the trust property as were expenses incurred in producing the trust income; and" }, { "docid": "20095295", "title": "", "text": "father’s will. He is attempting to do the same thing here, this case being a con tinuation of the procedure first undertaken by petitioner when he retained Domke in the first instance. In Bertha K. Goldberg, 31 T.C. 258, the taxpayer used her own personal funds to pay a deficiency which had been assessed in the estate tax of her deceased husband’s estate. She then incurred legal expense to obtain a refund of the tax and was successful. Bertha Goldberg had contributed to the payment of the estate tax deficiency to avoid a possible assessment against her as a transferee of her husband’s estate. In Northern Trust Co. v. Campbell, supra, the taxpayer had paid an estate tax deficiency as the transferee of assets of his father’s estate. As a transferee there was a personal liability in him. In the Goldberg case we concluded that the legal expense incurred by Bertha Goldberg to obtain a refund of the tax which she claimed was invalid had a direct and proximate relation to the conservation of her own income-producing property. In so holding, we applied the same reasoning which had been employed in the Selig and Northern Trust Go. cases, which we regarded as being in harmony with the reasoning in Bingham's Trust v. Commissioner, supra. The fact that petitioner did not pay the legal expense in question in a suit for refund of payment of a tax is of no consequence. Here, as in the cited cases, the nature of the legal expense had a direct relation to conserving and also maintaining petitioner’s property which was income-producing property. It is held that the legal fees paid to Herzog and Domke in the amount of $3,647 are deductible under section 23(a) (2). As we said in the Goldberg case (p. 268), we do not think the facts of the instant case bring it within the rule of those cases decided in this Court which have held “that expense incurred in the defense of title must be capitalized.” This case is distinguishable from Hermann F. Ruoff, 30 T.C. 204, revd. 277 F. 2d" }, { "docid": "8698239", "title": "", "text": "or trade expenses. ‘ Such ex penses need not relate directly to the production of income for the business. It is enough that the expense, if ‘ordinary and necessary,’ is directly connected with or proximately results from the conduct of the business [citing Kornhauser v. United States, 276 U.S. 145, 152, 153, 48 S.Ct. 219, 72 L.Ed. 505; Commissioner v. Heininger, 320 U.S. 467, 470, 471, 64 S.Ct. 249, 88 L.Ed. 171]. The effect of section 23(a) (2) was to provide for a class of non-business deductions coextensive with the business deductions allowed by § 23(a) (1), except for the fact that, since they were not incurred in connection with a business, the section made it necessary that they be incurred for the production of income or in the management or conservation of property held for the production of income.” Costs of distribution by the trustees were considered quite as much expenses of management of the trust property as were expenses incurred in producing the trust income. Moreover, the Supreme Court held that section 23(a) (2) does not restrict deductions to litigation expenses which produce income, but applies with equal force to expenses of contesting an income tax deficiency assessment. The opinion asserted: “The Tax Court could find as a matter of fact, as it did, that the expenses of contesting the income taxes were a proximate result of the holding of the property for income. And we can not say, as a matter of law, that such expenses are any less deductible than expenses of suits to recover income.” Consult two opinions of the Court of Appeals for the Second Circuit, Stoddard v. Commissioner of Internal Revenue, 152 F.2d 445, and Williams v. McGowan, 152 F.2d 570, 162 A.L.R. 1036, applying the doctrine of the Bingham case, supra. In Dunitz v. Commissioner of Internal Revenue, 6 Cir., 167 F.2d 223, cited by the petitioner, this court affirmed the decision of the Tax Court; but no issue concerning the deductibility of attorneys’ fees was presented to us for decision. In the Bingham case, the trustee was bound to the duty" }, { "docid": "20095288", "title": "", "text": "one which requires practical application of the tax statute in an unusual setting. In the first place, it was judicially determined by several Swiss courts that the claims of Madeleine were wholly without merit and malicious. Madeleine had no valid basis for seeking to obtain any of the assets which had passed to the petitioner under his father’s will upon the death of his mother. That was her purpose. Vogt obtained a temporary order attaching accounts and securities. At a hearing on February 18, 1947, in Zurich, petitioner’s lawyer made an application for the immediate vacatur of the warrant of attachment and for the imposition of security to protect Willy from any loss which might result from any fluctuation in the value of the income-producing securities which had been attached. The securities were owned by the petitioner at that time. During the above proceeding, the court issued an order to Vogt to furnish security in the sum of about $100,000. It would be inaccurate and unrealistic to say that Madeleine’s suits were bona fide attacks on petitioner’s title to the property which he had inherited from his father. Respondent’s assumption that such was the nature of the litigation is too narrow. Madeleine, through Vogt, sought to tie up and attach petitioner’s income-producing securities and cash. Petitioner’s attorneys were obliged to act to fend off the attempt to attach petitioner’s securities. There was no litigation about petitioner’s title to the securities. Vogt’s petitions, which if allowed to stand might have raised that issue, were dismissed. Vogt proceeded like a creditor seeking to levy attachment on chattels to obtain payment of an established debt. Petitioner’s expenditures for legal fees bore a proximate and direct relation to keeping his income-producing property free from attachment under a malicious claim wholly without merit. If Vogt had succeeded in obtaining a permanent order attaching the securities, petitioner would have lost the income from the securities, temporarily at least, and according to the views expressed by his banks to the court, he might have sustained losses because of fluctuations in the market prices of the attached securities." }, { "docid": "20095283", "title": "", "text": "in question are not deductible is that they were paid out of bank accounts in Switzerland in the name “Estate of Hedwig Zietz.” The evidence shows that regardless of such designation the Swiss bank accounts were the property of the petitioner. He has established that he was the owner of the funds with which he paid the fees, and that he was not paying them for or on account of the estate of Hedwig. Respondent's contentions to the contrary are incorrect in view of petitioner’s proof about applicable German law and the correct construction of the will of Hugo Zietz under German law. The chief issue for decision is whether all or some of the fees in dispute were ordinary and necessary expenses paid for the management, conservation, or maintenance of Willy’s property held for the production of income within section 23(a) (2). We shall consider first the legal fees totaling $6,330 which were paid to lawyers who represented Willy Zietz in connection with the litigation instituted on behalf of Madeleine Halmos. The circumstances and facts in this case are unique. There appears to be no case which is clearly in point. The petitioner relies upon principles stated in Bingham’s Trust v. Commissioner, 325 U.S. 365; Allen v. Selig, 200 F. 2d 487, affirming 104 F. Supp. 390; and Northern Trust Co. v. Campbell, 211 F. 2d 251. Respondent relies on the defense-of-title rule under which expenditures in defense of title of property are capital items to be added to the cost of property. James C. Coughlin, 3 T.C. 420, 423; Porter Royalty Pool, Inc., 7 T.C. 685, affd. 165 F. 2d 933, certiorari denied 334 U.S. 833; Levitt & Sons v. Nunan, 142 F. 2d 795; Bowers v. Lumpkin, 140 F. 2d 927, certiorari denied 322 U.S. 755. He contends, also, that the fees were the expense of Hedwig’s estate. ' It is true that in some instances Vogt’s actions in Switzerland were brought against the estate of Hedwig Zietz, but in the actions dealing with Vogt’s efforts to attach property, Willy Zietz was the defendant. However, we are" }, { "docid": "10413884", "title": "", "text": "income out of which the dispute has arisen is derived from property. Herbert Marshall, 5 T. C. 1032. But it has never been held that expenses incurred in litigation involving the Federal gift tax* liability of a taxpayer are deductible from gross income by reason of section 23 (a) (2). In our opinion such expenses can not be deducted. They are not expenses directly connected with or proximately resulting from the production or collection of income, as it might be said concerning expenses incident to disputes involving income tax liability. Cf. Herbert Marshall, supra. It is also impossible to conclude that the giving away of property for the purpose of reducing income is embraced by the phrase “The management, conservation, or maintenance of property held for the production of income,” and, therefore, expenses incident to such a gift are not those to which this part of section 23 (a) (2) applies. We have already held this as to expenses incurred incident to a gift of income-producing property, but before the gift was actually made. Nancy Reynolds Bagley, 8 T. C. 130. A fortiori, when the expenses incident to a gift are incurred at or after the time the property given passes from the donor, it can not be said that the expenses have “a proximate connection with the management, conservation, or maintenance of such property.” Nancy Reynolds Bagley, supra, p. 135. However, the contention is made that any liability of petitioner on account of gift taxes would result in a lien upon his income-producing property, that the payment of attorneys’ fees in the gift tax litigation was necessary in order to protect the taxpayer’s property from such, a lien, and that the satisfaction of the liability asserted on account of gift taxes and the payment of expenses incurred in defending him against the assertion of that liability resulted in petitioner’s being forced to sell a part of his income-producing property. Therefore, petitioner reasons, payment of these expenses was directly connected with the management and conservation of income-producing property. This argument, to paraphrase our language in John W. Willmott, 2 T." }, { "docid": "20095296", "title": "", "text": "own income-producing property. In so holding, we applied the same reasoning which had been employed in the Selig and Northern Trust Go. cases, which we regarded as being in harmony with the reasoning in Bingham's Trust v. Commissioner, supra. The fact that petitioner did not pay the legal expense in question in a suit for refund of payment of a tax is of no consequence. Here, as in the cited cases, the nature of the legal expense had a direct relation to conserving and also maintaining petitioner’s property which was income-producing property. It is held that the legal fees paid to Herzog and Domke in the amount of $3,647 are deductible under section 23(a) (2). As we said in the Goldberg case (p. 268), we do not think the facts of the instant case bring it within the rule of those cases decided in this Court which have held “that expense incurred in the defense of title must be capitalized.” This case is distinguishable from Hermann F. Ruoff, 30 T.C. 204, revd. 277 F. 2d 222, and cases there cited. Decision wiU be entered for the petitioners. SEC. 23. DEDUCTIONS FROM GROSS INCOME. In computing net income there shall be allowed as deductions: (a) Expenses.— *»**»»• (2) Non-tkadb ok Non-business Expenses. — In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income. 84 T.C." }, { "docid": "8698240", "title": "", "text": "(2) does not restrict deductions to litigation expenses which produce income, but applies with equal force to expenses of contesting an income tax deficiency assessment. The opinion asserted: “The Tax Court could find as a matter of fact, as it did, that the expenses of contesting the income taxes were a proximate result of the holding of the property for income. And we can not say, as a matter of law, that such expenses are any less deductible than expenses of suits to recover income.” Consult two opinions of the Court of Appeals for the Second Circuit, Stoddard v. Commissioner of Internal Revenue, 152 F.2d 445, and Williams v. McGowan, 152 F.2d 570, 162 A.L.R. 1036, applying the doctrine of the Bingham case, supra. In Dunitz v. Commissioner of Internal Revenue, 6 Cir., 167 F.2d 223, cited by the petitioner, this court affirmed the decision of the Tax Court; but no issue concerning the deductibility of attorneys’ fees was presented to us for decision. In the Bingham case, the trustee was bound to the duty of managing and distributing .the trust property. Here, the taxpayer made voluntary personal gifts of a part of his own property to his daughters. These gifts were not distributions which he was compelled to make. Nor were they essential to the “management, conservation, or maintenance of property held for the production of income.” Certainly, the expense appertaining to making the gifts does not fall within the category of “ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income.” We find nowhere in the opinion of the Supreme Court in the Bingham case an intimation that would sustain the argument of petitioner that the attorneys’ fees incurred in procuring a settlement of his liability for gift taxes, and thus avoiding tax liens and putative forced sale or sacrifice of additional income-producing properties, constitute deductible expenses under section 23(a) (2) of the Internal Revenue Code. Nor does the argument stand upon logical ground. Its acceptance could lead to the absurd result that law fees and expenses incurred in defending" }, { "docid": "20095289", "title": "", "text": "on petitioner’s title to the property which he had inherited from his father. Respondent’s assumption that such was the nature of the litigation is too narrow. Madeleine, through Vogt, sought to tie up and attach petitioner’s income-producing securities and cash. Petitioner’s attorneys were obliged to act to fend off the attempt to attach petitioner’s securities. There was no litigation about petitioner’s title to the securities. Vogt’s petitions, which if allowed to stand might have raised that issue, were dismissed. Vogt proceeded like a creditor seeking to levy attachment on chattels to obtain payment of an established debt. Petitioner’s expenditures for legal fees bore a proximate and direct relation to keeping his income-producing property free from attachment under a malicious claim wholly without merit. If Vogt had succeeded in obtaining a permanent order attaching the securities, petitioner would have lost the income from the securities, temporarily at least, and according to the views expressed by his banks to the court, he might have sustained losses because of fluctuations in the market prices of the attached securities. In Selig v. Allen, 104 F. Supp. 390, the court pointed out that the taxpayer’s real purpose in taking certain action and incurring legal expenses was “to prevent the laying waste of her property. Mere perfection of disputed title was not the Plaintiff’s purpose. She brought the suit in order to conserve income producing property which she already owned. * * * her property, if treated as part of Simon Selig’s estate, could have been sold by the executors under the powers given them in his will. It seems clear that legal action taken to forestall such depletions and possible sale of her property is conservatory in nature.” In Frederick E. Rowe, 24 T.C. 382, we considered whether a taxpayer paid legal fees to defend or perfect her title to a remainder interest in a testamentary trust, as the Commissioner contended. We concluded upon the facts that the taxpayer had not paid legal fees to acquire or perfect title but, rather, to conserve and maintain the taxpayer’s remainder interest in the corpus of a trust" }, { "docid": "20095290", "title": "", "text": "In Selig v. Allen, 104 F. Supp. 390, the court pointed out that the taxpayer’s real purpose in taking certain action and incurring legal expenses was “to prevent the laying waste of her property. Mere perfection of disputed title was not the Plaintiff’s purpose. She brought the suit in order to conserve income producing property which she already owned. * * * her property, if treated as part of Simon Selig’s estate, could have been sold by the executors under the powers given them in his will. It seems clear that legal action taken to forestall such depletions and possible sale of her property is conservatory in nature.” In Frederick E. Rowe, 24 T.C. 382, we considered whether a taxpayer paid legal fees to defend or perfect her title to a remainder interest in a testamentary trust, as the Commissioner contended. We concluded upon the facts that the taxpayer had not paid legal fees to acquire or perfect title but, rather, to conserve and maintain the taxpayer’s remainder interest in the corpus of a trust by having left in the trust, as part of the trust corpus, the trust income which was withheld from the life beneficiary in the form of reserves for depletion of oil- and gas-producing properties. We referred to and considered Selig v. Allen, supra. We held that the legal fees involved were paid for the conservation or maintenance, or both, of property held for the production of income within the meaning of section 23(a)(2). Our conclusion here is that petitioner’s purpose in incurring the legal fees paid to resist Vogt’s efforts to attach and tie up some of his securities, which he owned as part of the remainder of the assets of his father’s estate, was not to perfect his title to the securities but was to maintain and conserve his income-producing property. The legal expense bore a reasonable and proximate relation to the conservation of property held for the production of income. Cf. Bingham's Trust v. Commissioner, supra. It is held that the legal fees amounting to $6,330 fall within the scope and meaning of" }, { "docid": "10413883", "title": "", "text": "OPINION. Kern, Judge: The sole question presented herein is whether petitioner may deduct from gross income the amount of attorneys’ fees paid by him in the taxable year in connection with litigation arising out of a dispute with regard to Federal gift taxes under the facts detailed in our findings. Petitioner contends that they are deductible under the provisions of section 23 (a) (2) of the Internal Revenue Code. Respondent contends that they are not deductible pursuant to his construction of the statute in Regulations 111, section 29.23 (a)-15 (5), as amended by T. D. 5513. It has been held that when expenses have been incurred by reason of contesting income taxes, and these taxes were a proximate result of the holding of property for the production of income, then such expenses are deductible under section 23 (a) (2). Bingham, v. Commissioner, 325 U. S. 365; Howard E. Cammack, 5 T. C. 467. It has also been held that expenses incurred in litigation involving Federal income tax liability are deductible without regard to whether the income out of which the dispute has arisen is derived from property. Herbert Marshall, 5 T. C. 1032. But it has never been held that expenses incurred in litigation involving the Federal gift tax* liability of a taxpayer are deductible from gross income by reason of section 23 (a) (2). In our opinion such expenses can not be deducted. They are not expenses directly connected with or proximately resulting from the production or collection of income, as it might be said concerning expenses incident to disputes involving income tax liability. Cf. Herbert Marshall, supra. It is also impossible to conclude that the giving away of property for the purpose of reducing income is embraced by the phrase “The management, conservation, or maintenance of property held for the production of income,” and, therefore, expenses incident to such a gift are not those to which this part of section 23 (a) (2) applies. We have already held this as to expenses incurred incident to a gift of income-producing property, but before the gift was actually made. Nancy" }, { "docid": "20095291", "title": "", "text": "by having left in the trust, as part of the trust corpus, the trust income which was withheld from the life beneficiary in the form of reserves for depletion of oil- and gas-producing properties. We referred to and considered Selig v. Allen, supra. We held that the legal fees involved were paid for the conservation or maintenance, or both, of property held for the production of income within the meaning of section 23(a)(2). Our conclusion here is that petitioner’s purpose in incurring the legal fees paid to resist Vogt’s efforts to attach and tie up some of his securities, which he owned as part of the remainder of the assets of his father’s estate, was not to perfect his title to the securities but was to maintain and conserve his income-producing property. The legal expense bore a reasonable and proximate relation to the conservation of property held for the production of income. Cf. Bingham's Trust v. Commissioner, supra. It is held that the legal fees amounting to $6,330 fall within the scope and meaning of section 23(a) (2) and are deductible as ordinary and necessary nonbusiness expense. There remains for consideration the legal expense incurred in connection with petitioner’s efforts to have the value of assets derived from his remainder interest in assets of his father’s estate excluded from the value of his mother’s separate estate which tax departments in Switzerland and the United States, respectively, had determined were part of his mother’s estate. Eespondent’s view with respect to these expenses is, briefly, that they were expenses of the estate of Hedwig Zietz, or were for the purpose of defending petitioner’s title to the property derived from his father’s estate. It is true that both the Zurich tax department and our Internal Eevenue Service made determinations of the value of what each believed constituted all of the property in the estate of Hedwig for the purposes of the respective estate taxes. In presenting to the tax officials, in each instance, evidence and legal argument about the construction of Hugo’s will under German law, and about the respective interests of the" }, { "docid": "17435141", "title": "", "text": "if “ordinary and necessary,” they were deductible. ******* What we have said applies with equal force to the expenses of contesting the tax deficiency. Section 23 (a) (2) does not restrict deductions to those litigation expenses which alone produce income. On the contrary, by its terms and in analogy with the rule under §23 (a) (1), the business expense section, the trust, a taxable entity like a business, may deduct litigation expenses when they are directly connected with, or proximately result from the enterprise — the management of property held for production of income. Kornhauser v. United States, supra, 162-153; Commissioner v. Heininger, supra, 470-471. The Tax Court could find as a matter of fact, as it did, that the expenses of contesting the income taxes were a proximate result of the holding of the property for income. And we cannot say, as a matter of law, that such expenses are any less deductible than expenses of suits to recover income. Cf. Commissioner v. Heininger, supra. The petitioners are in the same position as the trust in that case. We think that, for present purposes, “management” of their stock by petitioners may with sufficiently comparable force be said to include the effort to deduct their bases for that worthless stock in computing their income taxes for 1932. The economic benefit resulting from that deduction was the natural — in fact the only — means reasonably left to them of obtaining any such benefit. Likewise, in our opinion the litigation to recover a refund of the taxes paid following the dis-allowance of that deduction was a natural consequence of and just as proximately connected with that act of “management” as the contest of the deficiency in the Bingham case. That petitioners knew the stock had become worthless before the nuit was brought or the fees paid does not change the fact that it was bought and, when the act of “management” occurred which proxi-inately resulted in the disputed expenses, was “held for the production of income.” That, we think, is sufficient to justify the contested deduction. Reviewed by the Court. Decision" }, { "docid": "4347738", "title": "", "text": "judgment nor the enforcement of a contract or statutory obligation was sought or determined. Title to the stock was never in question, and was only incidentally involved. Title remained in the dissenting stockholder until, on July 16, 1965, the majority stockholders pur chased the shares of stock owned by the dissenting stockholder, Margaret M. Quigley. The amounts paid for such stock are not involved in this proceeding. In my opinion the litigation expenses incurred and paid by petitioners in connection with the above-entitled action are deductible, under the provisions of section 212 of the Internal Eevenue Code of 1954, as ordinary and necessary expenses paid for the production of income, or for the management, conservation, or maintenance of property held for the production of income I would so hold. The parties have cited three cases involving State statutes somewhat similar to the Iowa statute involved herein. Two of the oases cited by petitioners support the conclusion I have reached in this proceeding; one cited by respondent reached a different conclusion. In Walter S. Heller, 2 T.C. 371, affd. 147 F. 2d 376 (C.A. 9, 1945), certiorari denied 325 U.S. 868, cited by petitioners, the issue was whether legal fees and expenses paid by a dissenting stockholder, in connection with litigation to determine the value and to enforce his rights to the cash value of his shares pursuant to a California statute providing that stockholders not consenting to a merger or consolidation were entitled to be paid such value, were deductible as expenses for the production or collection of income or in the management of property held for the production of income. This Court stated (p. 374) : The attorneys’ fee paid by petitioner, while relating to a capital asset, bore a reasonable and proximate relation to the production or collection of income, and to the management of property held for that purpose. The litigation did not, as respondent urges, involve a defense by petitioner of his rights in, and his title to, the stock. The statute under which it was instituted presupposes that the “dissenting stockholders” own the shares which" }, { "docid": "3099077", "title": "", "text": "wife’s monetary demands incident to a divorce are not deductible under Section 23(a) (2), Smith Estate v. Commissioner, 3 Cir., 208 F.2d 349; Howard v. Commissioner, 9 Cir., 202 F.2d 28; Donnelley v. Commissioner, 16 T.C. 1196. However, when the controversy between the spouses goes not to the question of liability but to the manner in which it might be met and, at the same time the wife demands a part of the husband’s income-producing property, control over which affects the husband's general income-earning capacity, legal fees incurred by the husband are deductible. Baer v. Commissioner, 8 Cir., 196 F.2d 646; McMurtry v. United States, Ct.Cl., 132 F.Supp. 114. Whether or not legal expenses were incurred as an ordinary and necessary expense in the conserving of property held for the production of income is essentially a question of fact. The Supreme Court in Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 1235, 89 L.Ed. 1670, held that the requirement of Section 23(a) (2) that deductible expenses be “ ‘ordinary and necessary’ ” implies that they must bear a proximate relation to the management of property held for the production of income and that the question of proximity was ordinarily for the trier of facts — in that case as} it would appear here — the Tax Court. The Tax Court allowed petitioner’s claim for deduction with respect to fees and legal expenses paid the attorneys other than those employed by petitioner for services rendered the receivership and receiver and like treatment was accorded the receiver’s fee. However, the Tax Court found and held that while a receiver was appointed for part of petitioner’s properties as an incident of the litigation to insure payment of whatever might be found due Ada from the petitioner for support, attorney fees and costs, the core of the litigation was not the receivership but the obligation of petitioner to support his wife and that the legal expenses were incurred primarily to defeat the wife’s suit and not to protect the petitioner’s property. There is no evidence in the record before this court" }, { "docid": "10413893", "title": "", "text": "type of litigation” merely because of the possibility that a judgment lien might attach to his property, it does permit the deduction to the owner of income-producing property of expenses incurred or paid in resisting the imposition of taxes and defending such property against a lien. Bingham v. Commissioner, supra, which affirmed Mary Lily Bingham Trust, 2 T. C. 853. In that case we stated, in respect to the litigation and resultant expenses therein involved: * * * the sole purpose and object of the litigation and the proximate cause of the expenditure were to relieve the estate from the payment of the deficiency in income tax determined by the Commissioner, which was the subject matter of the litigation. The effort of petitioners in seeking, through this litigation, to give such relief to the estate was, in our\\opinion, obviously a factor in the conservation, management, and maintenance of the property of that estate, concededly held for the production of income, since in resisting the imposition of the tax the trustees were performing the required duty of protecting and defending the trust property in their hands against any claim or lien for the tax. * * * Such statement is equally applicable herein, where the subject of the litigation was a deficiency in gift tax determined by the Commissioner and the taxpayer, is an individual instead of a testamentary trust. The difference in tax and taxpayer does not justify a different conclusion. Litigation expenses resulting from a dispute involving a deficiency in gift tax fall within the category of “ordinary and necessary expenses” deductible under section 23 (a) (2), as do expenses resulting from a dispute involving income tax, so long as they proximately result from the management or conservation of property held for the production of income. The additional tax was asserted against taxpayer and, had he not resisted payment, he would have been liable for the payment of the entire amount claimed. It is found as a fact that, if taxpayer had been required to pay the deficiency originally claimed, it would have been necessary for him to sell" } ]

[ { "docid": "22998199", "title": "", "text": "needlessly frustrate pro se petitioners and because the practice was harmless, we affirmed that practice. See, e.g., United States v. Detrich, 940 F.2d 37, 38 (2d Cir.1991) (treating motion nominally brought under Fed.R.Crim.P. 35(a) as motion pursuant to § 2255). The district court followed that well-established practice in this case. The enactment of AEDPA, however, brings into play new considerations. AED-PA places stringent limits on a prisoner’s ability to bring a second or successive application for a writ of habeas corpus under either 28 U.S.C. § 2254 or § 2255. Second or successive applications may be heard only if they involve newly discovered evidence of a potentially dispositive nature, or a new and retroactive rule of constitutional law. See 28 U.S.C. §§ 2255, 2244(b). If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the movant’s subsequent filing of a motion under § 2255 to be barred as a “second” § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharac-terized some prior motion as one brought under § 2255. At least until it is decided whether such a conversion or recharacterization can affect the movant’s right to bring a future habeas petition, district courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered" } ]

[ { "docid": "21639753", "title": "", "text": "movant is fully informed of section 2255’s restriction' on second or successive 2255 motions -as well as other procedural hurdles implicated by recharacterization and the court offers the movant an opportunity to withdraw his motion. We endorse the Fourth Circuit’s instruction that “[t]he notice to the movant shall set a reasonable period of time for the prisoner to respond to the court’s proposed rechar-acterization and shall advise the prisoner that failure to respond within the time set by the court will result in the original petition being recharacterized as a § 2255 petition.” Emmanuel, 288 F.3d at 649. Thus, where, as here, a movant’s post conviction filing has been recharacterized without using the protocol, the recharac-terized motion will ordinarily not function as a first petition for the purpose of determining whether the section 2255 motion under review is a second or successive one. Recently, the Eleventh Circuit, which originally followed the First Circuit’s “ameliorative” approach, vacated its earlier opinion and replaced it with one reaching the opposite result. See Castro v. United States, 290 F.3d 1270 (11th Cir. May 7, 2002) (Castro II). As Palmer did here, Castro filed pro se a pre-AEDPA motion for a new trial based upon newly discovered evidence, which the district court treated as both a Rule 33 motion and a section 2255 motion. Reversing course, the Eleventh Circuit took issue with Rain-eri, stating that to “reheve an entire class of motioners from any restriction at all on the filing of a second motion simply because their first motions had been rechar-acterized ... might undermine the congressional purpose behind the AEDPA, which is to limit successive § 2255 motions.” Id. at 1274. The Castro II majority, while dismissing Castro’s motion as successive, then noted that “in future cases where the motioner is not filing- a second motion, but rather is asking to withdraw his motion or to include additional claims after a district court has decided to rechar-acterize the initial motion as a § 2255 motion, we would agree with a clear majority of the circuits that the district courts should warn prisoners of the" }, { "docid": "17078940", "title": "", "text": "section 2255 petition without notice and an opportunity to be heard (or in the alternative, the pleader’s informed consent), the recharacterized motion ordinarily will not count as a ‘first’ habeas petition sufficient to trigger AED-PA’s gatekeeping requirements”). We agree with the approach of the Second Circuit, and hold that: [District courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharac-terized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized. Adams, 155 F.3d at 584. Unless such a warning is provided, a re-characterized § 2255 motion must not be counted against the prisoner for purposes of the bar on successive motions. See Henderson, 264 F.3d at 711-712 (refusing to deem pro se prisoner’s post-conviction motion a § 2255 motion where “[n]o warning was given”). Of course, “[i]f the movant files a motion properly denominated as a § 2255 motion, the court may rule on its merits without taking the prophylactic measures today prescribed regarding mislabeled or unlabeled post-conviction motions.” Emmanuel, 288 F.3d at 649 n. 2. Here, it appears from the record that the district court, before re-characterizing Shelton’s first post-conviction filing as a § 2255 motion, did not provide Shelton with appropriate notice and an opportunity for withdrawal. Accordingly, that motion cannot be counted against him for purposes of the bar on a successive § 2255 motion. We therefore DENY Shelton’s instant request for relief under 28 U.S.C. § 2244(b)(3)(A) as moot." }, { "docid": "17078937", "title": "", "text": "for efficiency’s sake and out of a sense of fairness to pro se petitioners, whose claims are construed quite liberally.” United States v. Miller, 197 F.3d 644, 646 (3d Cir.1999). An unintended byproduct of this practice, however, is that it may effectively deprive an uninformed pro se litigant of the future opportunity to file a motion to vacate his sentence under § 2255. The Antiterrorism and Effective Death Penalty Act (AEDPA) constrains a prisoner’s opportunity to file successive motions under 28 U.S.C. § 2255 to narrowly limited circumstances. See 28 U.S.C. § 2255 (providing that a “second or successive motion” must involve “newly discovered evidence” or “a new rule of constitutional law ... that was previously unavailable”). However, as the Second Circuit has observed, re-eharacter-ization of a pro se post-conviction filing as a § 2255 motion involves an inherent risk under AEDPA: If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the mov-ant’s subsequent filing of a motion under § 2255 to be barred as a ‘second’ § 2255. Thus, a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Adams v. United States, 155 F.3d 582, 583-84 (2d Cir.1998). The Second, Third, Fourth, Seventh, Ninth, and Tenth Circuits have held that, in view of AEDPA’s strict bar, district courts should not automatically re-characterize a pro se prisoner’s post-conviction motion as a § 2255 motion. Instead, those courts hold that the district court should inform the movant that his motion" }, { "docid": "17078939", "title": "", "text": "may be deemed a § 2255 motion and give him an opportunity to withdraw it. See United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir.2002); Henderson v. United States, 264 F.3d 709, 711-12 (7th Cir.2001); United States v. Seesing, 234 F.3d 456, 463-64 (9th Cir.2000); United States v. Kelly, 235 F.3d 1238,1242 (10th Cir.2000); United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999); Adams, 155 F.3d at 584. See also O’Ryan Castro v. United States, 290 F.3d 1270 (11th Cir.2002). (“[W]e sug gest that in the future, when a district court unilaterally recharacterizes a prisoner’s pleading as a § 2255 petition, the judge should also warn the petitioner of the consequences of this recharacterization — that this recharacterized petition may be his first and only chance to seek relief under § 2255.”) Raineri v. United States, 233 F.3d 96, 100 (1st Cir.2000) (declining to adopt procedures set forth in Adams, but holding “that when a district court, acting sua sponte, converts a post-conviction motion filed under some other statute or rule into a section 2255 petition without notice and an opportunity to be heard (or in the alternative, the pleader’s informed consent), the recharacterized motion ordinarily will not count as a ‘first’ habeas petition sufficient to trigger AED-PA’s gatekeeping requirements”). We agree with the approach of the Second Circuit, and hold that: [District courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharac-terized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized. Adams, 155 F.3d at 584. Unless such a warning is provided, a re-characterized § 2255 motion must not be counted against the prisoner for purposes of the bar on successive motions. See Henderson, 264 F.3d at 711-712 (refusing to deem pro se" }, { "docid": "22161495", "title": "", "text": "law ... that was previously unavailable”). In Adams v. United States, 155 F.3d 582 (2d Cir.1998), the Second Circuit aptly explained the pitfalls of converting a prisoner’s pro se motion into a motion under 28 U.S.C. § 2255 in light of AEDPA: The enactment of AEDPA, however, brings into play new considerations.... If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the mov-ant’s subsequent filing of a motion under § 2255 to be barred as a “second” § 2255.... The court’s act of conversion which we approved under pre-AED-PA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Id. at 583-84 (footnote omitted). The court then established a procedure to prevent a pro se prisoner from being unduly barred from filing a successive 28 U.S.C. § 2255 motion when one filing has been construed as such: At least until it is decided whether such a conversion or recharacterization can affect the movant’s right to bring a future habeas petition, district courts should not recharacterize a motion purportedly made under some other rule as a motion under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such a rechar-acterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it recharacterized. Id. at 584. United States v. Miller, 197 F.3d 644, 646 (3d Cir.1999), cites Adams and holds that before recharacterization a district court must advise the pro se petitioner of three options: (1) have the motion ruled upon" }, { "docid": "21639749", "title": "", "text": "district court’s treatment of untimely motion for new trial alleging ineffective assistance as § 2255 motion). The AEDPA significantly changed the landscape. The final paragraph of section 2255 and section 2244(b) of Title 28, both included in the AEDPA, replace the abuse-of-the-writ doctrine with statutory requirements that bar second or successive section 2255 motions absent exceptional circumstances and certification by an appellate court. Recognizing this change, the Second Circuit observed: If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and ■then denies it, that may cause the mov-ant’s subsequent filing of a motion under § 2255 to be barred as a “second” § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become ex traordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single motion for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Adams, 155 F.3d at 583-84 (footnote omitted). To minimize the risk, the Second Circuit imposed a protocol for district courts to use in deciding whether to convert a post-conviction motion made under a different provision into a section 2255 motion, declaring: [District courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharac-terized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized. Adams, 155 F.3d at 584; see" }, { "docid": "3965574", "title": "", "text": "weapon in connection with a drug offense. This yielded a final offense level of 39 and a sentencing range of 324 to 405 months’ imprisonment. In order to avoid exceeding Simon’s pre-vacatur sentence, however, the court — with the government’s consent — departed downward and imposed a 322-month term of imprisonment, the same length as in the original sentence. DISCUSSION On appeal, Simon, in a pro se brief, makes several claims regarding his sentence, his conviction, and the jurisdiction of the district court. His appointed counsel has also submitted a brief challenging the imposition of the two-point firearms enhancement. We need not, however, determine the validity of these claims, because we are met with a threshold question the answer to which will resolve this appeal: did the district court err in sua sponte converting Simon’s § 3582 motion into a § 2241 petition? For the reasons that follow, we deem the conversion improper. The wellspring of our holding today is Adams. In Adams we noted that the AEDPA “places stringent limits on a prisoner’s ability to bring a second or successive” § 2255 motion. 155 F.3d at 583. In view of this, we reasoned that if a district court treats a motion filed under some other provision as a § 2255 motion, then the movant’s one chance at § 2255 relief would be used up — without the movant’s consent and despite the movant’s possible ignorance of the consequences. “Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated.” Id. With this in mind, we determined that district courts should not convert motions “purportedly made under some other rule” into § 2255 motions unless “(a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to" }, { "docid": "22340541", "title": "", "text": "have it so recharacter-ized because he intended to file “all his habeas claims in a single later [§ 2255] motion.” Id. at 583. The district court refused this request and dismissed Adams’s claim on its merits. See id. On review, the court of appeals held that the common practice of automatically treating post-conviction motions as § 2255 motions should b,e abandoned. The court wrote, “The [district] court’s act of conversion which we approved of under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to prisoner’s rights.” Id. at 583-84. “A prisoner convicted pursuant to unconstitutional proceedings,” the court continued, “might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255.” Id. at 584. To avoid this unfairness, and consistent with the above-mentioned practices of assisting pro se petitioners, the court concluded that district courts must apprise petitioners of the consequences of their petitions before the district court can make a § 2255 recharacterization. See id. at 583-84. The court articulated the means by which a district court would give a pro se petitioner such notice: [District courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharac-terized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized. Id. at 584 (emphasis added). Not finding either of these two preconditions met in Adams’s case, the court of appeals vacated the district court’s decision to treat Adams’s Rule 12(b)(2) motion as a § 2255 motion. See id. at 582-84. The court reasoned that the district court neither had “obtained Adams’s informed consent” to deem his post-conviction motion a § 2255 motion," }, { "docid": "3965575", "title": "", "text": "to bring a second or successive” § 2255 motion. 155 F.3d at 583. In view of this, we reasoned that if a district court treats a motion filed under some other provision as a § 2255 motion, then the movant’s one chance at § 2255 relief would be used up — without the movant’s consent and despite the movant’s possible ignorance of the consequences. “Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated.” Id. With this in mind, we determined that district courts should not convert motions “purportedly made under some other rule” into § 2255 motions unless “(a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized.” Id. at 584. In a case decided just recently, the Supreme Court adopted precisely this prescription, citing Adams as well as cases from other circuits that had reached a similar conclusion. Castro, — U.S. at —, 124 S.Ct. at 792 (“[W]hen a court recharacterizes a pro se litigant’s motion as a first § 2255 motion[,] ... the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive’ motions, and provide the litigant an opportunity to withdraw the motion or to amend it .... ”). This rule unequivocally governs § 2255 motions, and we have recently extended it to § 2254 petitions, see Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 282 (2d Cir. 2003). Does it also apply in the § 2241 context? Since Adams and Cook are premised on the AEDPA’s heavy restrictions on successive" }, { "docid": "21639752", "title": "", "text": "(7th Cir.2001) (“we won’t deem, a Rule 33 (or. other mislabeled motion) a1 section 2255 motion unless the movant has been warned about the consequences of his mistake”); United States v. Lemon, 2001 WL 1628651, *3 (D.Minn.2001) (adopting Raineri approach). Without citing specific examples, the First Circuit found that “there. are times, even after AEDPA, when recharac-terization will be to a pro se litigant’s benefit, or in the interests of justice, or otherwise plainly warranted.” 233 F.3d at 100. The court was concerned that the Adams “protocol” approach would “los[e] the baby along with the bath water” in discouraging district courts from using a sometimes useful practice by “forcing them to jump through extra hoops.” Id. Because we conclude that the “protocol” approach will not unnecessarily burden the court, nor prevent it from using recharac-terization where beneficial (assuming it is done with the movant’s knowledge and consent), we conclude that the court may recharacterize a post-conviction motion made under another rule or law as a section 2255 motion only if 'it first ensures that the movant is fully informed of section 2255’s restriction' on second or successive 2255 motions -as well as other procedural hurdles implicated by recharacterization and the court offers the movant an opportunity to withdraw his motion. We endorse the Fourth Circuit’s instruction that “[t]he notice to the movant shall set a reasonable period of time for the prisoner to respond to the court’s proposed rechar-acterization and shall advise the prisoner that failure to respond within the time set by the court will result in the original petition being recharacterized as a § 2255 petition.” Emmanuel, 288 F.3d at 649. Thus, where, as here, a movant’s post conviction filing has been recharacterized without using the protocol, the recharac-terized motion will ordinarily not function as a first petition for the purpose of determining whether the section 2255 motion under review is a second or successive one. Recently, the Eleventh Circuit, which originally followed the First Circuit’s “ameliorative” approach, vacated its earlier opinion and replaced it with one reaching the opposite result. See Castro v. United States, 290 F.3d" }, { "docid": "17078938", "title": "", "text": "filing of a motion under § 2255 to be barred as a ‘second’ § 2255. Thus, a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Adams v. United States, 155 F.3d 582, 583-84 (2d Cir.1998). The Second, Third, Fourth, Seventh, Ninth, and Tenth Circuits have held that, in view of AEDPA’s strict bar, district courts should not automatically re-characterize a pro se prisoner’s post-conviction motion as a § 2255 motion. Instead, those courts hold that the district court should inform the movant that his motion may be deemed a § 2255 motion and give him an opportunity to withdraw it. See United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir.2002); Henderson v. United States, 264 F.3d 709, 711-12 (7th Cir.2001); United States v. Seesing, 234 F.3d 456, 463-64 (9th Cir.2000); United States v. Kelly, 235 F.3d 1238,1242 (10th Cir.2000); United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999); Adams, 155 F.3d at 584. See also O’Ryan Castro v. United States, 290 F.3d 1270 (11th Cir.2002). (“[W]e sug gest that in the future, when a district court unilaterally recharacterizes a prisoner’s pleading as a § 2255 petition, the judge should also warn the petitioner of the consequences of this recharacterization — that this recharacterized petition may be his first and only chance to seek relief under § 2255.”) Raineri v. United States, 233 F.3d 96, 100 (1st Cir.2000) (declining to adopt procedures set forth in Adams, but holding “that when a district court, acting sua sponte, converts a post-conviction motion filed under some other statute or rule into a" }, { "docid": "22411970", "title": "", "text": "(4th Cir.1970) (noting that a pleading that seeks a writ of error coram nobis is properly treated as a motion under § 2255); see also Adams v. United States, 155 F.3d 582, 583 (2d Cir.1998) (per curiam) (“Prior to the enactment of AEDPA, district courts routinely converted post-conviction motions of prisoners who unsuccessfully sought relief under some other provision of law into motions made under 28 U.S.C. § 2255 and proceeded to determine whether the prisoner was entitled to relief under that statute.”). Because of the AEDPA’s limitation on second or successive § 2255 motions, however, that practice can now have serious adverse consequences for the movant. As the Second Circuit has observed: If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the mov-ant’s subsequent filing of a motion under § 2255 to be barred as a “second” § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Adams, 155 F.3d at 583-84 (footnote omitted); see also United States v. Miller, 197 F.3d 644, 649 (3d Cir.1999) (“With AEDPA in place, the practice of liberally construing post-conviction motions as § 2255 [motions] can, in the absence of cautionary or educational measures, impair the ability of inmates to challenge their convictions on collateral review. If each pro se post-conviction filing is treated as a § 2255 [motion], ... inept [movants] face losing potentially valid constitutional claims at the hands of judges who are applying a rule of liberal" }, { "docid": "12981156", "title": "", "text": "SELYA, Circuit Judge. The federal courts historically have been solicitous of the rights of pro se litigants. E.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Prou v. United States, 199 F.3d 37, 42 (1st Cir.1999). As part and parcel of that solicitude, courts frequently have recharacterized inartfully drawn pleadings to assist pro se prisoners who mistakenly relied on inappropriate rules or statutes. The enactment of the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C.) altered the dynamics of this entrenched practice in respect to post-conviction motions in criminal cases. Under AEDPA, a prisoner, whether federal or state, retains the right to press a first petition for a writ of habeas corpus but second or successive petitions may be pressed only under very limited circumstances. See 28 U.S.C. §§ 2255, 2244(b). This change in the law raised the stakes attendant to recharacterizing a post-conviction motion as a habeas petition: conversion, though initially meant to guide a prisoner through the thicket of legal technicalities, suddenly had the potential to deprive him of his one full and fair opportunity to seek habeas relief. This appeal requires us to answer a pointed question: When a district court, acting sua sponte, recharacterizes a federal prisoner’s post-conviction motion as a section 2255 petition, see 28 U.S.C. § 2255, does that action render the prisoner’s later attempt to file a section 2255 petition a second or successive petition within the purview of the AEDPA amendments? This is an unanswered query in this circuit, but one that has divided the courts of appeals elsewhere. Compare United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999) (holding that if a district court chooses to recharacterize a pro se prisoner’s post-conviction motion as a ha-beas petition, it first must take prophylactic measures to warn the prisoner of the consequences of the conversion under AEDPA and give him the opportunity to withdraw the pleading), and Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (per" }, { "docid": "12839733", "title": "", "text": "not possible for the limitations period on a habeas challenge to parole revocation to expire before parole is revoked; it expires one year thereafter. IV. Whether Cook Should Have an Opportunity to Withdraw His Petition Before It Is Construed as a Section 2254 Petition Cook argues that he should have been given an opportunity to withdraw his section 2241 petition before it was construed by the district court as a section 2254 petition. Under 28 U.S.C. § 2244(b), a prisoner cannot bring a “second or successive” section 2254 petition except under narrow circumstances. If Cook’s petition was properly converted into a section 2254 petition, section 2244(b) might preclude Cook from ever seeking federal review of claims, even meritorious ones, not raised in that petition. We considered a similar argument in Adams v. United States, 155 F.3d 582 (2d Cir.1998) (per curiam). There, the petitioner had filed a motion styled as a motion to dismiss for “United States Lack of Territorial Jurisdiction” pursuant to Federal Rule of Criminal Procedure 12(b)(2). Following then-common practice, the district court treated the motion as one under section 2255, and dismissed it on the merits. Thereafter, the petitioner moved to withdraw his motion so that he could consolidate it and a number of other claims into a single section 2255 motion that would not be treated under the severe “second and successive” limitations imposed by section 2244(b)(2). The district court denied the motion to withdraw the petition. We reversed. We noted that prior to the passage of AEDPA, we had permitted the conversion of a pro se prisoner’s petition to a section 2255 petition “[i]n order to relax formalities that might needlessly frustrate pro se petitioners and because the practice was harmless.” Adams, 155 F.3d at 583. However, because of AEDPA’s stringent limits on “second and successive” petitions, a “conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights.” Id. at 584. We therefore concluded that: district courts should not recharacterize a motion purportedly made under some other rule as a" }, { "docid": "21639748", "title": "", "text": "were “insufficient to entitle him to relief under 28 U.S.C. § 2255.” Id. This court’s recharacterization of the Rule 33 Motion follows the well-established practice of construing a pro se party’s pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam) (allegations of pro se motioner, “however inartfully pleaded,” are subject to “less stringent standards than formal pleadings drafted by lawyers”); see, e.g., United States v. Cooper, 725 F.2d 756, 757.n. 1 (D.C.Cir.1984) (per curiam) (disregarding untimeliness of prisoner’s third § 2255 motion because first two motions were pro se). Before the AEDPA and in accordance with this practice, “district courts routinely converted post-conviction motions of prisoners who unsuccessfully sought relief under some other provision of law into motions made under 28 U.S.C. § 2255. and proceeded to determine whether the prisoner was entitled to relief under that statute.” Adams v. United States, 155 F.3d 582, 583 (2d Cir.1998) (per curiam); see, e.g., United States v. Tindle, 522 F.2d 689, 692-93 (D.C.Cir.1976) (per curiam) (affirming district court’s treatment of untimely motion for new trial alleging ineffective assistance as § 2255 motion). The AEDPA significantly changed the landscape. The final paragraph of section 2255 and section 2244(b) of Title 28, both included in the AEDPA, replace the abuse-of-the-writ doctrine with statutory requirements that bar second or successive section 2255 motions absent exceptional circumstances and certification by an appellate court. Recognizing this change, the Second Circuit observed: If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and ■then denies it, that may cause the mov-ant’s subsequent filing of a motion under § 2255 to be barred as a “second” § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become ex traordinarily" }, { "docid": "22161494", "title": "", "text": "Cir.1999). In this regard, we have occasionally characterized pro se prisoner motions as motions under 28 U.S.C. § 2255. See United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993) (construing motion brought under Fed.R.Crim.P. 35(a) as one under 28 U.S.C. § 2255); United States v. Young, 936 F.2d 1050, 1052 (9th Cir.1991) (same). The rule of liberal construction and its application to 28 U.S.C. § 2255 motions is for the benefit of the pro se prisoner; its rationale loses validity where it is invoked to the prisoner’s disadvantage. In this case, characterizing Seesing’s letter as a 28 U.S.C. § 2255 motion (and denying it) was to Seesing’s great disadvantage as it seriously diminished the possibility of successfully filing a future, properly drafted and documented, motion. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the opportunity to file successive motions under 28 U.S.C. § 2255 is strictly limited. See generally 28 U.S.C. § 2255 (second or successive motions may be certified only if based on “newly discovered evidence” or “a new rule of constitutional law ... that was previously unavailable”). In Adams v. United States, 155 F.3d 582 (2d Cir.1998), the Second Circuit aptly explained the pitfalls of converting a prisoner’s pro se motion into a motion under 28 U.S.C. § 2255 in light of AEDPA: The enactment of AEDPA, however, brings into play new considerations.... If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the mov-ant’s subsequent filing of a motion under § 2255 to be barred as a “second” § 2255.... The court’s act of conversion which we approved under pre-AED-PA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Id. at 583-84 (footnote omitted). The court" }, { "docid": "22411971", "title": "", "text": "legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court’s act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Adams, 155 F.3d at 583-84 (footnote omitted); see also United States v. Miller, 197 F.3d 644, 649 (3d Cir.1999) (“With AEDPA in place, the practice of liberally construing post-conviction motions as § 2255 [motions] can, in the absence of cautionary or educational measures, impair the ability of inmates to challenge their convictions on collateral review. If each pro se post-conviction filing is treated as a § 2255 [motion], ... inept [movants] face losing potentially valid constitutional claims at the hands of judges who are applying a rule of liberal construction that was created to benefit pro se claimants.”). Consequently, a prisoner must now be careful to include all of his grounds for relief in his first § 2255 motion because his ability to raise other grounds later has been severely curtailed. Recognizing these potential repercussions, the majority of our sister circuits in the post-AEDPA world have rendered decisions that either limit the district court’s ability to continue the practice of sua sponte construing a post-conviction motion as a movant’s first collateral attack or ameliorate the impact of the AEDPA when the district court does so. The Second Circuit, for instance, now holds that a district court may not sua sponte construe a post-conviction motion as a § 2255 motion without first giving the movant (1) notice of its intent to do so, (2) notice of the consequences of such a construction (i e., the bar on second or successive motions and the applicable one-year statute of limitations), and (3) an opportunity to withdraw the motion and submit a more complete § 2255 motion within" }, { "docid": "12839734", "title": "", "text": "treated the motion as one under section 2255, and dismissed it on the merits. Thereafter, the petitioner moved to withdraw his motion so that he could consolidate it and a number of other claims into a single section 2255 motion that would not be treated under the severe “second and successive” limitations imposed by section 2244(b)(2). The district court denied the motion to withdraw the petition. We reversed. We noted that prior to the passage of AEDPA, we had permitted the conversion of a pro se prisoner’s petition to a section 2255 petition “[i]n order to relax formalities that might needlessly frustrate pro se petitioners and because the practice was harmless.” Adams, 155 F.3d at 583. However, because of AEDPA’s stringent limits on “second and successive” petitions, a “conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to a prisoner’s rights.” Id. at 584. We therefore concluded that: district courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharac-terized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized. Id.; accord Gitten v. United States, 311 F.3d 529, 532-33 (2d Cir.2002). Although Cook’s petition was converted from one ostensibly made under 28 U.S.C. § 2241 to an application under section 2254 rather than, as in Adams, a motion under section 2255, the problem arising from conversion is the same. Whether a petitioner is a state or federal prisoner, converting a pro se habeas petition filed under a statute not subject to the severe “second or successive” restrictions of section 2244 (for state prisoners) or section 2255 (for federal prisoners) could cause the petitioner to forfeit unnecessarily and unintentionally a meritorious claim. Cook, now represented by" }, { "docid": "22340540", "title": "", "text": "infra note 9 (describing the date on which Miller’s judgment of conviction became final). With AEDPA in place, the practice of liberally construing post-conviction motions as § 2255 petitions can, in the absence of cautionary or educational measures, impair the ability of inmates to challenge their convictions on collateral review. If each pro se post-conviction filing is treated as a § 2255 writ, as was once the case, inept petitioners face losing potentially valid constitutional claims at the hands of judges who are applying a rule of liberal construction that was created to benefit pro se claimants. This odd result has not gone unnoticed by federal courts. The Court of Appeals for the Second Circuit recently addressed this post-AEDPA anomaly in Adams v. United States, 155 F.3d 582 (2d Cir.1998) (per curiam). Adams, an inmate acting pro se, had filed a postconviction Rule 12(b)(2) Motion to Dismiss, which the district court unilaterally recharacterized as a § 2255 motion. See id. at 582-83. Adams objected to this reconstruction and asked to withdraw the motion rather than have it so recharacter-ized because he intended to file “all his habeas claims in a single later [§ 2255] motion.” Id. at 583. The district court refused this request and dismissed Adams’s claim on its merits. See id. On review, the court of appeals held that the common practice of automatically treating post-conviction motions as § 2255 motions should b,e abandoned. The court wrote, “The [district] court’s act of conversion which we approved of under pre-AEDPA law because it was useful and harmless might, under AEDPA’s new law, become extraordinarily harmful to prisoner’s rights.” Id. at 583-84. “A prisoner convicted pursuant to unconstitutional proceedings,” the court continued, “might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255.” Id. at 584. To avoid this unfairness, and consistent with the above-mentioned practices of assisting pro se petitioners, the court concluded that district courts must apprise petitioners of the consequences of their petitions before the district" }, { "docid": "21639750", "title": "", "text": "harmful to a prisoner’s rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single motion for habeas corpus adjudicated, solely by reason of a district court’s having incorrectly recharacterized some prior motion as one brought under § 2255. Adams, 155 F.3d at 583-84 (footnote omitted). To minimize the risk, the Second Circuit imposed a protocol for district courts to use in deciding whether to convert a post-conviction motion made under a different provision into a section 2255 motion, declaring: [District courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharac-terized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized. Adams, 155 F.3d at 584; see also United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir.2002) (adopting informed consent/notice approach similar to Adams); United States v. Seesing, 234 F.3d 456, 464 (9th Cir.2000) (same); United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir.2000) (same); United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999) (adopting expanded Adams notice approach).. While acknowledging the fairness concerns raised by Adams and others, the First and Seventh Circuits have adopted.a slightly different “ameliorative” approach. Reluctant, to eliminate the recharacterization practice and concerned about imposing additional burdens on already “overburdened district courts,” the First Circuit held that “when a district court, acting sua sponte, converts a post-conviction motion filed under some other statute or rule into a section 2255 motion without notice and an opportunity to be heard (or in the alternative, -the pleader’s informed consent), the recharac-terized motion ordinarily, will not count as a ‘first’ habeas motion sufficient to trigger AEDPA’s gatekeeping requirements.” Raineri v. United States, 233 F.3d 96, 100 (1st Cir.2000); see also Henderson v. United States, 264 F.3d 709, 711" } ]

[ { "docid": "17555342", "title": "", "text": "this money was not received by Chase on any return made to the assessor, or on any assessment made by him or by the commissioner of internal revenue, for such taxes, and because the return delivered to Chase was not verified by oath, it was a voluntary deposit of the money in his hands by the treasurer of the company, and was not received by him in his official character. That it was not his duty to receive it for the government under such circumstances, and his sureties are not liable because it was an unofficial act. The argument- has been pressed with great ingenuity and skill, and with many illustrations; but in all its forms it amounts to the averment that Chase had no legal authority as collector of internal revenue to receive the money for the government under the circumstances named, and the payment was not a lawful or valid payment. There can be. no question that Chase understood himself as receiving the money for the government, and in payment of the taxes due. Nor is there any question that the treasurer of the railroad company intended it as payment to Chase in his official character as collector, and supposed he had paid the taxes by so doing; for Chase gave him three separate receipts in which the taxes for each of the years we have mentioned are set out, and also the months of the year in which they accrued, which he signed officially as collector, and declared in each -receipt that it was in full of the account. Nor can there be any doubt that these taxes were owing and then due to the United States; for the blank form used by the treasurer in making these returns shows that such returns were by law to be made to the assessor on or before the tenth day of the month following that in which the interest became due and payable, and were to be paid to tbe collector on or before the last day of that month. The latest of the . taxes in the case" } ]

[ { "docid": "190580", "title": "", "text": "authorize the levy and collection of the tax at all; and that, if it did, the tax could not be recovered by the action of debt brought. As parts of the latter proposition, it was contended, for the bank, that, as the statute afforded a remedy for the assessment and collection of the tax, through the machinery of the assessor and the collector, an action of debt would not lie to recover the tax; that, as the statute created the right, and provided a particular remedy for vindicating such right, no other remedy than that provided by the statute could be used; and especially, that, as the statute provided, that, in case of default in making a return or paying the tax, the assessment and collection of the tax and penalty should be in accordance with the general provisions of law in other cases of neglect and refusal (namely, the making by the assessor of lists containing specified particulars, authority in the assessor, within fifteen months after the 13th of July, 1866, or from the time of the delivery of the list to the collector, to make special additional lists, and the delivery of the lists to the collector, as his warrant to levy the tax on the property of the delinquent taxpayer), no action of debt would lie to recover the tax. It was further contended, for the bank, that, even if an action of debt could be sustained, to recover a tax duly assessed, notified and demanded, it did not appear that any one of the taxes in question was ever duly assessed; that, if an attempt to assess them had been made, the assessor could not have gone back of the term of fifteen months before he delivered his last list to the collector; and that, because the taxes demanded in the suit had never been regularly assessed, the suit would not lie. In the circuit court, the only point considered had been whether the statute required the bank to pay the tax. The opinion of the supreme court in the case was delivered by Mr. Justice" }, { "docid": "190576", "title": "", "text": "the amount of taxes as aforesaid,” and it is to be verified by oath; that, for any default in making such list or return, the bank making it shall forfeit $1,000 as a penalty, and that, “in case of any default in making or rendering said list or return, or of any default in the payment of the tax as required, or any part thereof, the assessment and collection of the tax and penalty shall be in accordance with the general provisions of law in other cases of neglect and refusal.” The scheme of this statute is the same as the scheme of the statute in regard to the income tax—a list or return to be made by the party charged with the tax; a penalty for not making it; in default of making the list or return or paying the tax. an assessment and collection of the tax and the penalty through the machinery of the as■sessor and the collector, under the general provisions of law for other such cases; and, in nil eases, collection according to a list passing from the office of the assessor to the collector. In respect to the income tax, the act of 1862 provides (section 931 that in case of neglect •or refusal to make a return, the assessor or assistant assessor shall assess the amount of income and proceed thereafter to collect the duty thereon, “in the same manner as is provided for in other cases of neglect and refusal to furnish lists or schedules, in the general provisions of this act;” and the act of 1864 provides (section 122) “that, in case of any default in making or rendering said list or return, or of the payment of the duty or any part thereof, as aforesaid, the assessment and collection of the duty and penalty shall be made according to the provisions of law in other cases of neglect and refusal.” The United States brought an action of debt, founded on the above statute, against the savings bank (which was a banking institution created by the laws of Pennsylvania, •without stockholders" }, { "docid": "190577", "title": "", "text": "collection according to a list passing from the office of the assessor to the collector. In respect to the income tax, the act of 1862 provides (section 931 that in case of neglect •or refusal to make a return, the assessor or assistant assessor shall assess the amount of income and proceed thereafter to collect the duty thereon, “in the same manner as is provided for in other cases of neglect and refusal to furnish lists or schedules, in the general provisions of this act;” and the act of 1864 provides (section 122) “that, in case of any default in making or rendering said list or return, or of the payment of the duty or any part thereof, as aforesaid, the assessment and collection of the duty and penalty shall be made according to the provisions of law in other cases of neglect and refusal.” The United States brought an action of debt, founded on the above statute, against the savings bank (which was a banking institution created by the laws of Pennsylvania, •without stockholders or capital stock, and doing the business of receiving deposits to be loaned or invested for the sole benefit of its depositors, and whose charter authorized it to retain a contingent fund, accumulated from its earnings, to the extent of ten per centum of its deposits, for the security of its depositors), alleging that it had earned and added to such contingent fund or undistributed sum, from July 13th, 1866, to December 31st, 1870, an aggregate specified sum of money, made up of several sums of earnings, which were added semi-annually, during such period, on the first days of July and January in each year, to such contingent or undistributed fund, and that it owed to the United States a tax of five per centum on such aggregate sum. The bank had never made any return relative to any such sum. It was not only not required by the commissioner of internal revenue to do so, but three successive commissioners of internal revenue, in 1867, 1870 and 1871, had decided that the bank was not" }, { "docid": "17555341", "title": "", "text": "Chase six separate returns of the taxes so due in the form prescribed by law to be made to the assessor of taxes, which were subscribed by the treasurer of the company, but not sworn to, and which had not then been filed with or delivered to said assessor, but all of which were delivered by Chase to the assessor, except the returns for the months of August, September, and October, 1867, which were the latest returns so delivered to Chase at the time the money was paid. These returns he did not deliver to the assessor, nor did he make any mention of* them in his report to the government at any time, and he retained the amount of them out of the money received from the treas-' urer of the company. It was five years after this before the officers of the government discovered that he had received this sum above what he had accounted for, and in the mean time he had become insolvent. The proposition of defendants’ counsel is, that because this money was not received by Chase on any return made to the assessor, or on any assessment made by him or by the commissioner of internal revenue, for such taxes, and because the return delivered to Chase was not verified by oath, it was a voluntary deposit of the money in his hands by the treasurer of the company, and was not received by him in his official character. That it was not his duty to receive it for the government under such circumstances, and his sureties are not liable because it was an unofficial act. The argument- has been pressed with great ingenuity and skill, and with many illustrations; but in all its forms it amounts to the averment that Chase had no legal authority as collector of internal revenue to receive the money for the government under the circumstances named, and the payment was not a lawful or valid payment. There can be. no question that Chase understood himself as receiving the money for the government, and in payment of the taxes" }, { "docid": "23318471", "title": "", "text": "the suit into the Circuit Court, the same was heard and determined in the State court in which it was commenced. Taxes were assessed against the plaintiff, under the internal revenue laws, in the sum of one thousand five hundred and ninety-seven dollars, and the findings of the court show that the assessor duly returned his assessment list to the collector; that the collector demanded of the plaintiff the amount of the tax assessed, and .that ho threatened if the plaintiff refused to pay the same that he would coerce the collection of the whole amount; that the assessor gave due notice to the plaintiff when and where appeals from the assessment would be heard, but that the plaintiff did not appeal from the same, either to the assessor or to the Commissioner of Internal Revenue, and that he paid the whole ■amount of the assessment under protest. Pursuant to the practice in that jurisdiction, the Superior Court reserved the questions of law arising upon the facts found, and the question what judgment ought to be rendered in the case, for the opinion and advice of the Supreme Court of Errors, and the record shows that the Supreme Court of Errors advised the Superior Court to render judgment for the plaintiff, as exhibited in the transcript of the record removed here by the writ of error for re-examination. 1. Remarks respecting the jurisdiction of the court to reexamine the judgment rendered by the State court may well be omitted, as the claim of the plaintiff as set forth in the declaration necessarily draws in question the acts of Congress imposing internal revenue duties and the authority exercised by the defendant in collecting the same, and the decision of the State court was against the validity of both, if the acts of Congress be construed as authorizing the assessment and collection of the duties. 2. Tried as the case was by the judge of the Superior Court, as a substitute for a jury, the Supreme Court of Errors was bound to take tbe facts as found by that court, and this" }, { "docid": "23293343", "title": "", "text": "cannot be held liable to refund any portion of such collections; but the same requirement is made of the commissioner, and yet he is authorized to remit, refund, and pay back all duties erroneously or illegally assessed or collected, and to pay all judgments or sums of money recovered in any court against any .collector or deputy collector for- any duties or licenses paid under protest. 4. Necessary implication from those provisions is, that actions may be maintained against collectors of the internal revenue to recover back duties illegally or erroneously assessed. Authority is also conferred upon the commissioner, by the forty-fourth section of the act of the thirtieth of June, 1864, not only to pay back all duties erroneously or illegally assessed or collected, but also all duties that appear to be excessive in amount, and to repay to collectors or deputy collectors the full amount of such sums of money as shall or may be recovered against them in any court for any internal duties or licenses collected by them, with costs and expenses- of suit. Same section- also confers authority, upon the commissioner to repay to assessors, assistant assessors, collectors, deputy collectors, and inspectors, all damages and costs recovered in any suit against them by reason of any act done in the performance of their official duties. Evidently, those clauses of the section contemplate different grievances and different remedies.-for their redress as known at common law and in the practice of the courts. 5. Appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and. received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or under protest, or witli notice that he intends to bring suit to test the validity of the claim, he may recover it back, if the assessment was erroneous or illegal, in an action of assumpsit for money had and received. When a party, knowing his rights, voluntarily pays duties or taxes illegally of" }, { "docid": "190574", "title": "", "text": "and assessed in the mode pro; vided by the law creating the tax, and the-amount of the tax shall have been computed, and ascertained, by applying the rate of the tax to the sum of the income; and that then, the action must be for the amount of the tax so computed and assessed. The theory of this-view is, that the statute has created a special tribunal of assessment, for the determination of all questions arising in regard to the amount of an income tax; that the decisions of such tribunals are final and conclusive as-to both the government and the individual;, and that, if payment is made to the collector,, of the amount of income tax certified by the-assessor, no remedy exists to enforce by action the payment of any further sum. I regard the positions thus taken on behali of the defendant, as distinctly held to be untenable, by the decision of the supreme court of the United States in Dollar Sav. Bank v. C. S., 19 Wall. [86 U. S.] 227. Section 120 of the internal revenue act of 1864, as amended by thé act of July 13, 1866 (page 138), provides, that “there shall be levied and collected a tax of five per centum on all dividends thereafter declared due as part of the earnings, incomes or gains of any bank or savings institution in the United States, and on all undistributed sums, or sums made or added during the year to their surplus or contingent funds.” It also provides, that said banks “shall pay the said tax, and are hereby authorized to deduct and withhold from all payments made on account of any dividends or sums of money that may be due and payable as aforesaid, the said tax of five per centum;” that “a list or return shall be made and rendered to the assessor or assistant assessor, on or before the tenth day of the month following that in which any dividends or sums of money become due or payable as aforesaid, and said list shall contain a true and faithful account of" }, { "docid": "23553072", "title": "", "text": "income, war-profits or excess-profits tax has been paid in excess of that properly due, then, notwithstanding the provisions of section 3228 of the Revised Statutes, the amount of the excess shall be credited against any income, war-profits or excess-profits taxes, or installment thereof, then due from the taxpayer under any other return, and any balance of such excess shall be immediately refunded to the taxpayer; Provided, that no such credit or refund shall be allowed or made after five years from the date when the return was due, unless before the expiration of such five years a claim therefor is filed by the taxpayer.” The Supreme Court, in City of Philadelphia v. The Collector, 5 Wall. 720, 18 L. Ed. 614, had under consideration the right to recover back money paid for taxes. The plaintiffs had sued to recover the sum of $26,875.57, which they had paid under protest, and which the collector had demanded of them as for internal revenue duties. The court, while it recognized the right to recover in an action at law, in a proper case, money illegally exacted for taxes, said: “Appropriate remedy to recover back nmney paid under protest on account of duties or taxes erroneously or illegally asséssed, is an action of assumpsit for money had and received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or under protest, or with notice that he intends to bring suit to test the validity of the claim, he may recover it back, if the assessment was erroneous or illegal, in an action of assumpsit for money had and received. When a party, knowing his rights, voluntarily ,pays duties or taxes illegally or erroneously assessed,the law will not afford him redress for the injury; but when the duties or taxes are illegally demanded, and he pays the same under protest, or gives notice to the collector that he intends to bring a suit against him to test the validity of the claim, the collector may be compelled to refund the amount illegally exacted.” The" }, { "docid": "12444012", "title": "", "text": "and employment of the collector as required by law, and discharged the sureties in his official bond from all liability for his subsequent official misconduct. Enough has already been said to show that such a charge should not have been given. By the act of 1799, to which we have referred, it was made the official duty of the collector to pay the public money in his hands to the order, or according to the direction of the officer authorized to direct the payment thereof. Payment of treasury notes, therefore, in pursuance of tbe order of tbe Secretary, was directly in tbe line of tbe collector’s duty as sucb an officer. The same remarks are applicable to the refusal of tbe court to affirm tbe second point proposed by tbe defendant as instruction to tbe jury. It would bave .been error bad sucb instruction been given. While it may be true that no law specifically imposed upon the collector tbe duty of making disbursements for any marine hospital, or for tbe ligbt-bouses or revenue-cutters, it is not true that sucb duties “ were extra-official as to tbe office of collector,” if tbe payments were ordered by tbe Secretary of tbe Treasury; for tbe collector was bound to pay to bis order, as we have seen. Nor could tbe court bave affirmed that money furnished to tbe collector from tbe treasury of tbe United States, or from sources other than tbe proper receipts and collections, must be shown by the plaintiff to bave been necessary to cover tbe disbursements proper to tbe office of tbe collector, or that it was furnished for that purpose. As tbe law was when tbe bond was executed, tbe government was authorized to furnish money to collectors for certain purposes, on their requisition. But apart from this, when tbe proposition was submitted to the court, tbe treasury transcript was in evidence. By law it made out a prima facie case, and tbe burden of proof, instead of being upon the plaintiff, was on tbe defendant to disprove it. Besides,- it was proven by tbe transcript, and" }, { "docid": "17555345", "title": "", "text": "for the same period and for the same tax. The simple question is, was it a valid payment for that amount, and to that extent, which the collector might lawfully receive and be bound to pay to the government. To hold the contrary is to decide that a debt long past due and acknowledged to be due by the debtor cannot be paid, when he is willing to pay, and the proper officer of the government ready to receive it, because the debtor has neglected to report the same facts to some other officer, or that officer has neglected to make'report of the facts. Of the duty of the railroad company to pay the money as speedily as possible- there can be no doubt. When it admitted the obligation and offered to pay it,. was there no one to whom it could pay it ? Sect. 3142, Revised Statutes, then in force, provides for the appointment of a collector of internal revenue for every collection district: Sect. 3143, in prescribing the conditions of his official bond, makes it his duty to account for and pay over to the United States all public money which may come into his hands or possession, and this condition is in the bond which is the foundation of the present suit. Money paid for taxes past due and received by the collector as such, and for which he - gives a receipt as collector, specifying with precision the taxes for which it is paid, is public money. If it is not, whose money is it ? The tax-payer has parted with it in voluntary payment of a debt due the United States. The collector appointed by the United States has received it as money paid to the United States on a debt due the United'States. It is not, therefore, his money. It is the property of the United States, and within the meaning of the bond it is public money. The answer made to this by counsel is that the debt was not due, or, at least, not payable, until the assessor had received and" }, { "docid": "17555346", "title": "", "text": "bond, makes it his duty to account for and pay over to the United States all public money which may come into his hands or possession, and this condition is in the bond which is the foundation of the present suit. Money paid for taxes past due and received by the collector as such, and for which he - gives a receipt as collector, specifying with precision the taxes for which it is paid, is public money. If it is not, whose money is it ? The tax-payer has parted with it in voluntary payment of a debt due the United States. The collector appointed by the United States has received it as money paid to the United States on a debt due the United'States. It is not, therefore, his money. It is the property of the United States, and within the meaning of the bond it is public money. The answer made to this by counsel is that the debt was not due, or, at least, not payable, until the assessor had received and acted on the return made by the corporation. There is nothing in the statute which says this in terms. If it be sound it must be an implication, and we do not see how such an implication can arise. That such an assessment was not made long before was owing to the neglect of the company to make proper returns. Did that neglect make the taxes which should have been paid a year before any less a debt from that time ? And can it be said they were not due at the time the statute says they should be paid, because the company failed to make, the report which it was its duty to make ? If there could be any doubt upon this point, it was set at rest by the decision of this court in The Dollar Savings Bank v. United States (19 Wall. 227), where the same objection was taken to a suit to recover the tax. The court held explicitly that the obligation to pay the tax did not depend" }, { "docid": "190573", "title": "", "text": "distraint. In the special statutory provisions in regard to the income tax, in the act of 1862, it is provided, that the duty on income shall be “assessed and collected.” In the act of 1864 the-language is, “assessed, collected and paid.” In both the word “estimating,” is used, in describing the process of arriving at the net annual income. In both acts a penalty is imposed for non-payment of the income tax or' duty, and a lien is given therefor, and a remedy by distraint, to enforce such lien. It is contended, for the defendants, that the statute contains no provision, either in the act of 1SG2 or in that of 1864, for the collection or payment of any income tax which has not been assessed in the special manner prescribed, by the statute; that the United States cannot maintain an action to recover a tax on the annual income of an individual (even if such an. action can be maintained at all), until after the sum of such annual income shall have been estimated and assessed in the mode pro; vided by the law creating the tax, and the-amount of the tax shall have been computed, and ascertained, by applying the rate of the tax to the sum of the income; and that then, the action must be for the amount of the tax so computed and assessed. The theory of this-view is, that the statute has created a special tribunal of assessment, for the determination of all questions arising in regard to the amount of an income tax; that the decisions of such tribunals are final and conclusive as-to both the government and the individual;, and that, if payment is made to the collector,, of the amount of income tax certified by the-assessor, no remedy exists to enforce by action the payment of any further sum. I regard the positions thus taken on behali of the defendant, as distinctly held to be untenable, by the decision of the supreme court of the United States in Dollar Sav. Bank v. C. S., 19 Wall. [86 U. S.] 227. Section" }, { "docid": "22149313", "title": "", "text": "the essential fact underlying the transaction and upon which rests every pretense of a right to recover. There was no suggestion of a waiver of the tort or a pretense of any implied contract until after the decision of the Court of Claims that it had no jurisdiction over an action to recover for the tort.” In the cases under consideration the argument is made that the money was tortiously exacted; that the alternative of payment to the collector was a seizure and sale of the merchandise for the non-payment of duties; and that it mattered not that at common law an action for money had and received would have lain against the collector to recover them back. But whether the exactions of these duties were tortious or not; whether it was within the power of the importer to waive the tort and bring suit in the Court of Claims for money had and received, as upon an implied contract of the United States to refund the money in case it was illegally exacted, we think the case is one within the first class of cases specified in the Tucker act of claims founded upon a law of Congress, namely, a revenue law, in respect to which class of cases the jurisdiction of the Court of Claims, under the Tucker act, has been repeatedly sustained. Thus, in United States v. Kaufman, 96 U. S. 567, a brewer who had been illegally assessed for a special tax upon his busi ness, was held entitled to bring suit in tbe Court of Claims to recover back the amount, upon tbe ground that no special remedy bad been provided for tbe enforcement of tbe payment, and consequently tbe general laws wbicb govern tbe Court of Claims may be resorted to for relief, if any can be found applicable to such a case. This is upon the principle that a liability created by statute without a remedy may be enforced by a common-law action. . The Nichols case was distinguished upon the ground that tbe statute there had provided a special remedy. So, too," }, { "docid": "15652302", "title": "", "text": "on all undistributed earnings made, or added during the year to their contingent funds. There-was no occasion or room for any other assessment. This was a charge of a certain sum upon the bank, and without more it made the bank a debtor.” In the present case no list was returned by the company and no assessment made by the assessor. Consequently no list was ever furnished the collector, and the amount to be paid in currency was never officially ascertained. This suit is, therefore, for the debt which the company owes, to wit, five per cent of the pounds sterling it has paid as interest on its bonds. If the debt had been paid at the time it was due, the officers chargeable with the collection could have accepted nothing but legal-tender currency, and to an amount equivalent to the value of the coin which was owing. In other words, the debt was in the nature of an obligation to pay in coin, but which the government would not receive in anything but legal-tender currency of equal value with the coin. This is a suit for the recovery of that debt as a debt. If'there were now any difference in value between coin and currency, it would have been proper to render the judgment for the coin or its equivalent in currency. Gregory v. Morris, 96 U. S. 619. As there is no sucb difference, a general judgment for tbe amount due is all that is necessary. The amount of the debt was always a fixed sum in pounds sterling. The provision for the estimation of the value of this debt in legal-tender currency was, in our opinion, a regulation of the mode of collection, and not a change in the amount of the obligation. As promptness was required in the payment of taxes, and the amount to be paid in currency would not ordinarily exceed the value of the coin which was due, it was thought proper by the government to require its officers to make collections in currency. For that reason it was provided that in making" }, { "docid": "190571", "title": "", "text": "hear and determine, in a summary way, according to law and right, upon any and all appeals.” This appeal, which is an appeal by the party, is required to be in writing and to specify the particular matter respecting which a decision is requested, and to state the ground or principle of error complained of. Power also is given to the assessor to re-examine and determine upon the assessments and valuations, and rectify the same, as shall appear just and equitable. This includes the power to increase the valuation, assessment, or enumeration, on notice to the party interested to appear and object. On the hearing of appeals the assessor is authorized to require by summons the attendance of witnesses and the production of books of account After the time for hearing appeals has expired, the general lists are to be transmitted to the collector. If the assessor finds that the annual list so furnished to the collector is incomplete, in having persons or objects liable to- tax or duty omitted therefrom, he may, from time to time, at any time thereafter, enter on a special list all such objects of duty or taxation, with the names of the persons liable to-the tax or duty and the sums payable by each which he shall discover to have been omitted. The general provisions of the statute are made applicable to such special list The above scheme of the act of 1864 is in substance that of the act of 1862, and continued to be the same for all of the years for which the income tax was imposed. By the act of 1864 (section 44) a provision was introduced authorizing the commissioner of internal revenue, subject to regulations prescribed by the-secretary of the treasury, “on appeal to him. made, to remit, refund and pay back all duties-erroneously or illegally assessed or collected, and all duties that shall appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected.” By the act of' 1862 (section 35) this refunding was authorized in the case of taxes paid by levy and." }, { "docid": "17555347", "title": "", "text": "acted on the return made by the corporation. There is nothing in the statute which says this in terms. If it be sound it must be an implication, and we do not see how such an implication can arise. That such an assessment was not made long before was owing to the neglect of the company to make proper returns. Did that neglect make the taxes which should have been paid a year before any less a debt from that time ? And can it be said they were not due at the time the statute says they should be paid, because the company failed to make, the report which it was its duty to make ? If there could be any doubt upon this point, it was set at rest by the decision of this court in The Dollar Savings Bank v. United States (19 Wall. 227), where the same objection was taken to a suit to recover the tax. The court held explicitly that the obligation to pay the tax did not depend on an assessment made by any officer whatever, but that the facts being established on which the tax rested, the law made the assessment, and an action of debt could be maintained to recover it though no officer had made an assessment. So that, bath on principle and authority, we are of opinion that the judgment for the sum received by the collector and not paid over, with interest, is right, and must be affirmed. See also United States v. Ferary, 93 U. S. 625. Sect. 825, Revised Statutes, enacts that “there shall be taxed and paid to every district attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws, and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding.” The court in this case, after a motion for re-taxation, ordered that this two per cent on the sum recovered, amounting to $712.77, be taxed against defendants. In this we" }, { "docid": "23293344", "title": "", "text": "expenses- of suit. Same section- also confers authority, upon the commissioner to repay to assessors, assistant assessors, collectors, deputy collectors, and inspectors, all damages and costs recovered in any suit against them by reason of any act done in the performance of their official duties. Evidently, those clauses of the section contemplate different grievances and different remedies.-for their redress as known at common law and in the practice of the courts. 5. Appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and. received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or under protest, or witli notice that he intends to bring suit to test the validity of the claim, he may recover it back, if the assessment was erroneous or illegal, in an action of assumpsit for money had and received. When a party, knowing his rights, voluntarily pays duties or taxes illegally of erroneously assessed, the law will not .afford him redress for the injury; but when the duties or taxes are illegally demanded, and he pays the same under protest, or gives notice to the collector that he intends to bring a suit against him to test the validity of the claim, the collector may be compelled to refund the amount illegally exacted. Decisions to the same effect were made in the parent country at a very early period, and like decisions are to be found in the judicial reports of all, or nearly all, of the several States. But. the third' section of the act of the third of March, 1865, requires collectors to'pay daily into the treasury the gross amount of all duties, taxes, and revenue received or collected in virtue of the internal revenue acts, without any abatement or deduction on account of salary, compensation, fees, costs, charges, expenses, or claims of any description whatever. Defendant contends that this provision has the same legal effect in respe.ct to suits against the collectors of the" }, { "docid": "190601", "title": "", "text": "to the effect, that “the commissioner of internal revenue, subject to regulations prescribed by the secretary of the treasury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected; also to repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any court for any internal taxes collected by him, with the cost and expenses of suit.” Section 3689 (page 730) provides, that there is appropriated, out of any moneys in the treasury not otherwise appropriated, for the purpose of refunding and paying back “duties erroneously or illegally assessed - or collected under the internal revenue laws,” such sum as may be necessary for such purpose, and that such appropriation shall be deemed a permanent annual appropriation. These provisions show, that an assessment and a collection of a tax thereunder are not regarded as concluding the taxpayer. Is there any reason for holding that it can be intended that an assessment and payment of a tax should conclude the United States, except as to the amount of tax paid? Certainly, there can be none. To so hold would be to say that concealment or mistake by the taxpayer, or neglect or collusion on the part of the assessor, is to operate as a binding judicial decision, and not only deprive the government of the taxes to which the statute declares it to be entitled, but give to taxpayers who do not make correct returns an advantage over those who do. In Philadelphia v. The Collector, 5 Wall. [72 U. S.] 720, it was held by the supreme court, that an erroneous assessment may be questioned. in a suit brought by a taxpayer against a collector, to recover back duties or taxes erroneously assessed under the internal revenue statutes, and paid under protest. The statute may require that there shall be an appeal before" }, { "docid": "18971887", "title": "", "text": "the damages suffered would have been irreparable, as it appears that the only loss they would have sustained, had they paid the tax when demanded, would have been the loss of the use of the money during the balance of the 180 days, or in the vicinity of $3,000. The question therefore is, so far as equity jurisdiction is concerned, whether the complainants would have been without a legal remedy provided they had paid the tax under protest at the time of its demand. Under title XIII of the Revenue Daw of 1919—General Adminstrative Provisions, section 1316 (a), being Comp. St. Ann. Supp. 1919, § 5944—it is provided: “See. 1316 (a). That section 3220 of the Revised Statutes is hereby amended to read as follows: “ ‘Sec. 3220. The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected; also to repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any court, for any internal revenue taxes collected by him, with the cost and expenses of suit; also all damages and costs recovered against any assessor, assistant assessor, collector, deputy collector, agent, or inspector, in any suit brought against him by reason of anything done in the due performance of his official duty, and shall make report to Congress at the beginning of each regular session of Congress of all transactions under this section.’ ” This provision of law was first enacted July 13, 1866 (14 Stat. at Large, p. 111), and as above set forth is, so far as concerns the ques-. tion here considered, the same as when first enacted. It thus appears' from the language of the act that, had the complainants paid the tax under protest at the time it was demanded, they could have recovered judgment against the" }, { "docid": "15652301", "title": "", "text": "duty of the assessor to reduce them to their equivalent in legal-tender currency, according to the value of coined money in currency for' the time covered by the returns. All lists furnished the collectors by the assessors were required to “ contain the several amounts of taxes assessed, estimated, or valued in legal-tender currency only.” In Savings Bank v. United States, 19 Wall. 227, 240, it was decided that a suit at law might be maintained for the recovery of a tax on interest paid, even though no list had been returned and no assessment made-; and in the opinion it was said: “ No other assessment than that made by the statute was necessary to determine the extent of the bank’s liability. An assessment is only determining the value of the thing taxed, and the amount of tax required of each individual. It may be made by the designated officers or by the law itself. In ’ the present case the statute required every savings bank to pay a tax of five per cent on all undistributed earnings made, or added during the year to their contingent funds. There-was no occasion or room for any other assessment. This was a charge of a certain sum upon the bank, and without more it made the bank a debtor.” In the present case no list was returned by the company and no assessment made by the assessor. Consequently no list was ever furnished the collector, and the amount to be paid in currency was never officially ascertained. This suit is, therefore, for the debt which the company owes, to wit, five per cent of the pounds sterling it has paid as interest on its bonds. If the debt had been paid at the time it was due, the officers chargeable with the collection could have accepted nothing but legal-tender currency, and to an amount equivalent to the value of the coin which was owing. In other words, the debt was in the nature of an obligation to pay in coin, but which the government would not receive in anything but legal-tender" } ]

[ { "docid": "22401127", "title": "", "text": "the decision was that the record of a State court, duly authenticated under the act of Congress, must have in every other court of the United States such faith and credit as it had in the State court from whence it was taken, and that nil debet was uot a good plea to such an action. Congress, say the court, have declared the effect of the record by declaring what faith and credit shall be given to it. Adopting the language of the court in that case, we say that the defendant had full notice of the suit, and it is beyond all doubt that the judgment of the court was conclusive upon the parties in that State. “It must, therefore, be conclusive here also.” Unless the merits are open to exception and trial between the parties, it is difficult to see how the plea of fraud can be admitted as an answer to the action. 3. Domestic judgments, under the rules of the common law, could not be collaterally impeached or called in question if rendered in a couz’t of competent- jurisdiction. It could only be done directly by writ of error, petition for new trial, or by bill in chaneei’y. Third persons only, says-Saunders, could set up the defence of fraud or collusion, and not the parties to the record, whose only relief was in equity, except in the case of a judgment obtained on a cognovit or a warrant of attorney. Common law rules placed foreign judgments upon a different footing, azid those zmlos z’ernain, as a general remark, unchanged to the present time. Under these rules a foreign judgment was prima fade evidence of the debt, and it was open to examination not only to show that the court in which it was rendered had no jurisdiction of the subject-matter, but also to show that the judgment was fraudulently obtained. Recent decisiozis, however, in the parent countz’y, hold that even a foreign judgment is so far conclusive upon a defendaut that he is prevented from alleging that the promises upon which it is founded were never" } ]

[ { "docid": "23285692", "title": "", "text": "court must grant a Rule 60(b)(4) motion for relief from it. Other courts have done the same. Service of process and notice of proceedings, however, are not merits issues; neither is domicile of parties. No matter how strongly cases on these issues may state the rule that a registering court may inquire into the personal jurisdiction of a rendering court, they do not necessarily control the instant situation, in which the district court found, on the merits, a fact that Fratelli Tanfoglio now seeks to undermine, so as to defeat jurisdiction. We conclude, nevertheless, that the logic of the service and notice cases, of the domicile cases, and of Thompson should apply equally here. We do so not so much because the precedents compel this result, but because we judge that — at least given the conflict here between the federal rules governing jurisdiction on the one hand and res judicata on the other —in this case, the protections of personal jurisdiction must trump the doctrine of claim preclusion. This result rests on at least two justifications. First, “[r]es judicata is very much a common law subject.” A judicially-derived principle of preclusion generally must perforce yield to the contrary command of a formal rule such as Rule 60(b)(4). Second, the res judicata doctrine protects private and public values — such as repose, finality, and efficiency — that are important, but have not yet found much expression as constitutional principles, at least in the civil context. It appears that the Supreme Court has only once adverted, and then obliquely, to the possibility that due process might prevent the relit-igation of matters already decided. We ourselves do not appear ever to have contemplated this possibility. Whatever due-process theory might require, current due-process doctrine concerns itself only minimally, if at all, with preserving any property right that the Jacksons may have acquired through their default judgment. Due-process doctrine is far more concerned with protecting the ability of a party like Fratelli Tanfoglio to contest a rendering court’s power to bind it to a judgment in the first place. The fact that one of" }, { "docid": "22647972", "title": "", "text": "was given; and quoted, with approbation, the remark of Justice Story, that “the Constitution did not mean to confer a new power of jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the State.” The case of Landes v. Brant, has been quoted, to show that a judgment cannot be attacked in a collateral proceeding. There a judgment relied on by the defendant was rendered in the Territory of Louisiana in 1808, and the objection to it was that no return appeared upon the summons, and the defendant was proved to have been absent in Mexico at the time; but the judgment commenced in the usual form, “ And' now at this day come the parties aforesaid by their attorneys,” &e.’ The court pertinently remarked, that the defendant may have left behind counsel to defend suits brought .against him in his absence, but that if the recital was false and the judgment voidable for want of notice, it should have been set aside by audita querela or motion in the usual way., and could not be impeached collaterally. Here it is evident the proof failed to show want of jurisdiction. The party assailing the judgment should have shown that the counsel who appeared were not employed by the defendant, according to the doctrine held in the cases of Shumway v. Stillman, Aldrich v. Kinney, and Price v. Ward. The remark of the court that the judgment could not be attacked in á collateral proceeding was .unnecessary to the decision, and was, in effect, overruled by the subsequent cases of D’Arcy v. Ketchum and Webster v. Reid. D’Arcy v. Ketchum was an action in the Circuit Court of. the United States for Louisiana, brought on a judgment rendered in New York under a local statute, against two defendants, only one of whom was served with process, the other being a resident of Louisiana. In that case it was held by this court that the judgment was void as to the defendant not served, and that the law of New York could not make it" }, { "docid": "22065524", "title": "", "text": "is an equally well-settled rule in jurisprudence, that the jurisdiction of any court exercising authority over a subject may be inquired into in every other court, when the proceedings in the former are relied, upon, and brought before the latter, by a party claiming the benefit of such proceedings. The rule prevails whether the decree or judgment has been given in a court of admiralty, chancery, ecclesiastical court or court of common law.” The decisions of this court upon this subject, beginning in the year 1794 with the case of The Betsey, 3 Dali. 6, have been uniform and consistent. The following are a few of the leading cases upon this subject: Rose v. Himely, 4 Cranch, 241; Elliott v. Peirsol, 1 Pet. 328; Wilcox v. Jackson, 13 Pet. 498; Shriver’s Lessee v. Lynn, 2 How. 43; Lessee of Hickey v. Stewart, 3 How. 750; Webster v. Reid, 11 How. 437. In the last case it was held that where jurisdiction had been sought to be obtained by publication, as in this case, it was necessary to show that notice had been given by publication as the act required. “If jurisdiction,” says the court, “ could be exercised under the act,' it was essential to show that all its requisites had been substantially observed. It was necessary for the plaintiff to prove notice, and negative proof that the notice was not given, under such circumstances, could not be rejected.” In Hunt v. Wickliffe, 2 Pet. 201, an order was made by a state court of chancery for a non-resident to appear, and that a copy be published “for eight weeks in succession agreeably to law,” and it was held that, as the laws of Kentucky only authorized their courts of chancery to make decrees against absent defendants on the publication of an.order for two months successively, the order of the court of chancery for a publication for eight weeks was not a compliance with the law, the Supreme Court of Kentucky having decided that the publication must be continued for two calendar months. Under this construction of the act, the" }, { "docid": "22798014", "title": "", "text": "is an elementary principle of jurisprudence, that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice within the jurisdiction upon him or upon some one authorized to accept service in his behalf, or by his waiver, by general appear- anee or otherwise, of the want of due service. Whatever effect a constructive service may be allowed in the courts of the same government, it cannot be recognized as valid by the courts of any other government.” ■ See also the thorough discussion of this, question in Haddock v. Haddock, 201 U. S. 562, 567, 573. The New York court had no jurisdiction to render a judgment in personam against Bigelow. He was confessedly not a party. He did not voluntarily appear. He had no legal right to appear, no right to introduce evidence, control the proceedings, nor appeal from the judgment. To say that nevertheless the judgment rendered there adverse to the plaintiff in that case may be pleaded by him as a bar to another suit by the same plaintiff upon the same facts, because such is the effect of that judgment by. the usage or law of New York, would be to give to the law of New York an extra-territorial effect, which would operate as a denial of due process of law. Whatever the effect of that judgment as an estoppel under the law of New York, it cannot be held an estoppel in a suit in the courts of another State between the same plaintiff and a different defendant who was not a party to the first suit. D’Arcy v. Ketchum, 11 How. 165, is clearly in point. Under a New York statute a court of that State entered judgment against a non-resident defendant who was not served and did not appear. The judgment was entered under authority of a statute permitting judgment against joint debtors where only one was notified. The nonresident defendant was sued upon this judgment, perfectly good under the decisions of New York, in the" }, { "docid": "22647971", "title": "", "text": "qualifying remark: “A special plea in bar of a suit on a judgment in another State, to be valid, must deny, by positive averments, every fact which would go to show that the court in another State had jurisdiction of the person, or of the subject-matter.” In the case of Hampton v. McConnel, this court reiterated the doctrine of Mills v. Duryee, that “the judgment of a State court should have the same credit, validity, and effect in every other court of the United States which it had in the State courts where it was pronounced; aud that whatever pleas -would be good to a suit therein in such State, and uoue .others, could be pleaded in any court in the United States.” But in the subsequent case of McElmoyle v. Cohen, the court explained that neither in Mills v. Duryee, nor in Hampton v. McConnel, was it intended to exclude pleas of avoidance and satisfaction, such as payment, statute of limitations, &c.;- or pleas denying the jurisdiction of the court in which the judgment was given; and quoted, with approbation, the remark of Justice Story, that “the Constitution did not mean to confer a new power of jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the State.” The case of Landes v. Brant, has been quoted, to show that a judgment cannot be attacked in a collateral proceeding. There a judgment relied on by the defendant was rendered in the Territory of Louisiana in 1808, and the objection to it was that no return appeared upon the summons, and the defendant was proved to have been absent in Mexico at the time; but the judgment commenced in the usual form, “ And' now at this day come the parties aforesaid by their attorneys,” &e.’ The court pertinently remarked, that the defendant may have left behind counsel to defend suits brought .against him in his absence, but that if the recital was false and the judgment voidable for want of notice, it should have been set aside by audita querela or motion" }, { "docid": "23139419", "title": "", "text": "which sanctions any different procedure, .and the cases in the state courts which hold that notice is necessary after the term before a judgment can be set aside are numerous. Some of them will be found in the note in the margin. To sanction a proceeding, rendering a new judgment without notice at a subsequent term, and hold that it is a judgment rendered with jurisdiction, and binding when set up elsewhere, would be to violate the fundamental principles of due process of law as we understand them, and do violence to that requirement of every system of enlightened jurisprudence which judges after it hears and condemns only after a party has had an opportunity to present his defense. By the amendment and new judgment the proceedings are given an effect against the defendant in error which they did not have when he was discharged from them by the judgment of dismissal. By the judgment of dismissal the court lost jurisdiction of the cause and of the person of the defendant. A new judgment in personam could not be rendered against the defendant until by voluntary appearance or due service of process the court had again acquired jurisdiction over him. As a matter of common right, before such action could be taken he should have an opportunity to be heard and present objections to the rendition of a new judgment, if such .existed. We find no error in the judgment of the Court of Appeals overruling the demurrer to the second plea, and the sarqe is Affirmed. Mr. Justice Brewer took no part in this case. Murphy v. Farr, 6 Halstead (N. J.), 186; Martin et al. v. Bank of State, 20 Arkansas, 629; De Witt et al. v. Monroe & Brother, 20 Texas, 289; Berthold v. Fox, 21 Minnesota, 61; Cobb v. Wood, 1 Hawkes (N. Car.), 95; Hill v. Hoover, 5 Wisconsin, 386; Perkins et al. v. Hayward, 132 Indiana, 95, 100; Bryant v. Vix, 83 Illinois, 1 15; Keeney v. Lyons, 21 Iowa, 277; Weed v. Weed, 25 Connecticut, 337, Fischchessar v. Thompson, 45 Georgia, 459, 467." }, { "docid": "17603849", "title": "", "text": "power. By the act of Congress the juris, diction to adjudge such insolvent debtors as are described in the thirty-ninth section of the act to be bankrupts is vested in the District Courts, and it follows that such a judgment is entitled to the same verity, and is no more liable to be impeached collaterally than any other judgments or decrees rendered by courts possessing general jurisdiction, which of itself shows that the ease before the court is controlled by the general rule that where it appears that the court had jurisdiction of the subject-matter, and that the defendant was duly served with process or voluntarily appeared aud made defence, the judgment is conclusive and is not open to any inquiry upon the merits. Exactly the same rule is applicable to the ease before the court, as it is clear that the District Court had jurisdiction of the petition and that there is not even a suggestion that the notice required by law was not given as the law directs. Such a decree adjudging a debtor to be bankrupt is in the nature of a decree in rent as respects the status of the party, and in case the court rendering it has jurisdiction it is only assailable by a direct proceeding in a competent court, if due notice was given and the adjudication is correct in forin. III. Preferences as well as fraudulent conveyances, if made within four months before the filing of the petition by or against the bankrupt, are forbidden by the Bankrupt Act; but three things must concur in order that the transac tion may come within the prohibition and be affected by it as an illegal payment, security, or transfer: (1.) That the payment, pledge, assignment, transfer, or conveyance was made by the bankrupt, withiu the period mentioned, and with a view to give a preference to one or more of his creditors, or to a person having a claim against him, or who was under some liability on his account. (2.) That the person making the payment, pledge, assignment, transfer, or conveyance was insolvent" }, { "docid": "9962523", "title": "", "text": "of Internal Revenue, 3 Cir., 163 F.2d 796, 800-801; 20 Am.Jur. 105, Evidence, § 87.” As stated in Paridy v. Caterpillar Tractor Co., 7 Cir., 1931, 48 F.2d 166, at page 169: “The reason for the rule above referred to is that the decision of a cause must depend upon the evidence introduced. If the courts should recognize judicially facts adjudicated in another case, it makes those facts, though unsupported by evidence in the case in hand, conclusive against the opposing party; while if they had been properly introduced they might have been met and overcome by him. So, on a plea of res ad judicata, a court cannot judicially notice that the matters in issue are the same as those in a former suit. Such matters must be pleaded and proved. 15 R.C.L. p. 1111, § 42.” It is appellees’ position that their motion to dismiss on the ground of res judicata should be treated as a motion for summary judgment under Rule 56(c), Federal Rules of Civil Procedure, which provides in part that “The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” It is to be noted, however, that Rule 12(b) of the Federal Rules of Civil Procedure in substance provides that a defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto, if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join an indispensable party; and that if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim" }, { "docid": "23139418", "title": "", "text": "to decide in this case, such correction cannot be made after term without notice, certainly where the changed condition of- the parties in Anew of a new right acquired would render it prejudicial to render a new judgment. The appellant also relies upon the proposition that the Massachusetts statute, Revised Laws of Massachusetts, -chap. 193, sec. 22, provides that if -a judgment is rendered in the absence of the petitioner and Avithout his knowledge a Avrit of review may be granted upon petition filed within one year after the petitioner first had notice of the judgment; other■wise within one year after the judgment was rendered. But we cannot agree that this remedy supplies the want of jurisdiction in the Massachusetts court to render, after the term and Avithout notice, a new and different judgment against the defendant in error. Whatever his remedy may be in the state courts, want of jurisdiction may be pleaded wherever ■ the judgment is set up against him in another forum. We find nothing in any decision of this court which sanctions any different procedure, .and the cases in the state courts which hold that notice is necessary after the term before a judgment can be set aside are numerous. Some of them will be found in the note in the margin. To sanction a proceeding, rendering a new judgment without notice at a subsequent term, and hold that it is a judgment rendered with jurisdiction, and binding when set up elsewhere, would be to violate the fundamental principles of due process of law as we understand them, and do violence to that requirement of every system of enlightened jurisprudence which judges after it hears and condemns only after a party has had an opportunity to present his defense. By the amendment and new judgment the proceedings are given an effect against the defendant in error which they did not have when he was discharged from them by the judgment of dismissal. By the judgment of dismissal the court lost jurisdiction of the cause and of the person of the defendant. A new judgment in" }, { "docid": "3162611", "title": "", "text": "with a state trial. This appeal follows from the judgment entered against the defendants as a result of the federal trial. II A. Res Judicata/Collateral Estoppel Appellants first argue that Smith’s suit is barred by the doctrines of res judicata and collateral estoppel because both the Civil Service Commission and the Jasper County District Court upheld Smith’s discharge based on the grounds stated in the discharge notice. We have little difficulty rejecting appellants’ argument. The doctrines of res judicata and collateral estoppel serve to protect the finality of judgments. The doctrines are borne of the recognition that “endless litigation leads to chaos; that certainty in legal relations must be maintained; and that after a party has had his day in court, justice, expediency and preservation of the public tranquillity requires that the matter be at an end.” Schroeder v. 171.74 Acres of Land, 318 F.2d 311, 314 (8th Cir.1968). Necessarily, federal courts must give a state court judgment the same preclusive effect that would be given that judgment under the law of the state where the judgment was rendered. Migra v. Warren City School District Board of Education, — U.S.-, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Accordingly, we must apply Iowa law to determine whether Smith’s section 1983 claim is barred by the prior state decisions. Under Iowa law res judicata, or claim preclusion, bars relitigation of the same claim between parties or their privies where a final judgment has been rendered upon the merits by a court of competent jurisdiction. See National Farmers Union Property & Casualty Co. v. Nelson, 260 Iowa 163, 147 N.W.2d 839 (1967). However, the party sought to be precluded by the earlier litigation must have had a “full legal opportunity for an investigation and determination of the matter.” Third Missionary Baptist Church of Davenport v. Garrett, 158 N.W.2d 771, 774-75 (Iowa 1968); McCullough v. Connelly, 137 Iowa 682, 114 N.W. 301, 302 (1907). Applying the Iowa rule to the instant facts we conclude that appellants’ res judicata argument" }, { "docid": "22452423", "title": "", "text": "to such impeachment in the court where it was rendered. Palmer v. Preston, 45 Vt. 159; Miller v. U.S., 11 Wall. 300. Authority to establish uniform laws upon the subject of bankruptcy is conferred upon Congress; and, Congress having made such provision in pursuance of the Constitution, the jurisdiction conferred becomes exclusive throughout,the United States. By the act of Congress, the 'jurisdiction to adjudge such insolvent corporations as are described in the thirty-seventh section of the act to be bankrupts is vested in the district courts; and it follows that such a decreer is entitled; to the same verity, and is no more liable to be impeached collaterally than the decree of any other court possessing general jurisdiction; which of itself shows that the case before, the court is controlled by the general rule, thát where it appears that the court had. jurisdiction of the subject-matter, and that process was duly. served or an appearance duly entered, -the judgment or decree is conclusive, and is not open to any inquiry upon the merits. 2 Smith’s Lead. Cas. (7th ed.) 622; Freeman on Judgments (2d ed.), sect. 606; Hampton v. McConnel, 3 Wheat. 234; Gelston v. Hoyt, id. 312; Slocum v. Mayberry, 2 id. 10; Nations v. Johnson, 24 How. 203; D’Arcy v. Ketcham, 11 id. 166; Webster v. Reid, id. 437. Such a decree adjudging a corporation bankrupt is in the , nature of a decree, in rem, as respects, the status of the cor •poration; and, if the court rendering it has jurisdiction; it can only he assailed by a direct proceeding in a competent court, unless it appears that the decree is void in form, or that due notice of the petition was never given. Way v. How, 10 Mass. 503; Ex parte Wieland, Law Rep. 8 Chan. App. 489; Ocean Bank v. Olcott, 46 N.Y. 15; Revell v. Blake, Law Rep. 7 C. P. 308. Suppose that is so: then it is insisted by the defendants that the case before the court is controlled by the twenty-first section of the Bankrupt Act, which, among other things, provides" }, { "docid": "13707439", "title": "", "text": "affairs. There was no doubt of the jurisdiction and competency of the court, either as to the parties or the subject-matter. The proceedings were invested with all the formalities and solemnities incident to a judicial decree. As between the parties and privies, it was like the judgment of any other court of exclusive jurisdiction, as a plea bar, and as evidence conclusive upon the same matter, coming either directly in dispute or incidentally in question between such parties or privies in another court for a different purpose. (Chief Justice De Grey, in the Duchess of Kingston’s case, 11 St. Tr., 261.) In The United States v. Arredondo, 6 Pet., 691, in a case arising under this same treaty, the Supreme Court of the United States held that “ an inquisition having been taken under the Spanish authorities, by which it was found that the Indians had previously abandoned the lands granted, this was held to be res judicata.” The only question could be whether the United States stood in such privity to the proceedings as made the judgment evidence before the commission. The solicitor for the United States insists they did not. So the commissioners decided. In ordinary judicial proceedings it is not necessary that a person should be an actual party on the record to make the determination evidence against him. Sureties and guarantors are sometimes concluded by judgments againts their principles, and e converso. So a judgment rendered against a tenant or bailiff may in some cases be given in evidence against the landlord or master in other suits where they had due notice of the former actions. Where one man agrees with another that he will pay the debt of such other due to a third party, the creditor brings suit against his debtor, the latter notifies the party assuming the debt, he participates in the suit, or may do so. Can it be doubted that he would be bound by the judgment 1 Or in case the original debtor pays the amount recovered and brings suit against the party making the assumption, is it not perfectly" }, { "docid": "23189725", "title": "", "text": "and that defendant may visit them at her residence. It also provides: “Wife shall promptly notify Husband of any change of address of her residence while any of the Children are in her custody and, in order that Husband’s rights of visitation may not be rendered practically ineffective, Wife agrees that in the event she may cause Children’s residence to be more than 50 air miles distant from Norris-town, Pennsylvania, she shall give Husband at least two month’s advance written notice of same and, in the event that the parties cannot resolve the issue of Husband’s future visitation rights between themselves, they hereby agree to submit any dispute for resolution in the Court of Common Pleas of Montgomery County, Pennsylvania. Both parties herewith agree to submit voluntarily to the jurisdiction of said Court in any such proceedings.” (Appendix at 16a). The defendant’s papers suggest that the habeas corpus proceeding was instituted pursuant to this selection of jurisdiction clause. They' do not, however, plead that the habeas corpus case bars relief on a collateral estoppel or res judicata basis. The answer to the counterclaim asserts that plaintiff was not adequately served with process as required by due process of law and the record does not conclusively establish that she was. What is clear on the face of the November 22, 1968 agreement, however, is that article 2, dealing with custody and visitation, in which the selection of jurisdiction clause quoted above appears, is entirely severable from the balance of the agreement. The only matter referred to the Court of Common Pleas of Montgomery County is the possible modification of the defendant’s visitation rights in the event the wife moves more than fifty air miles from Norristown, Pennsylvania. Article 11 provides for a confession of judgment by any court of record within the United States or elsewhere for any delinquency, deficiency or arrearage in any payments called for in the agreement, and it contains no express exception with respect to payments withheld because of disputes over visitation. Article 17 provides that “all disputes, differences, questions of interpretation, questions of construction, disagreements and" }, { "docid": "22647973", "title": "", "text": "in the usual way., and could not be impeached collaterally. Here it is evident the proof failed to show want of jurisdiction. The party assailing the judgment should have shown that the counsel who appeared were not employed by the defendant, according to the doctrine held in the cases of Shumway v. Stillman, Aldrich v. Kinney, and Price v. Ward. The remark of the court that the judgment could not be attacked in á collateral proceeding was .unnecessary to the decision, and was, in effect, overruled by the subsequent cases of D’Arcy v. Ketchum and Webster v. Reid. D’Arcy v. Ketchum was an action in the Circuit Court of. the United States for Louisiana, brought on a judgment rendered in New York under a local statute, against two defendants, only one of whom was served with process, the other being a resident of Louisiana. In that case it was held by this court that the judgment was void as to the defendant not served, and that the law of New York could not make it valid outside of that State; that the constitutional provision and act of Congress giving full faith, credit, and effect to the judgments of each State in every other State do not refer to judgments reudered by a court having no jurisdiction of the parties; that the mischief intended to be remedied was not only the inconvenience of retrying a cause which had once been fairly tried by a competent tribunal, but also the uncertainty and confusion that prevailed in England and this country as to the credit and effect which should be given to foreign judgments, some courts holding that they should be conclusive of the matters adjudged, and others that they should be regarded as only primd facie binding. But this uncertainty and confusion related only to va]id judgments; that is, to judgments rendered in a cause in which-the'court had jurisdiction of the navies and-cause, or (as might have been added).in proceedings in rem, where the court had jurisdiction of .the res. No effect was ever given by any court to a judgment rendered" }, { "docid": "22647976", "title": "", "text": "plaintiff claimed, by virtue of a sale made under judgments in behalf of one Johnson and one Brigham against “ The Owners of Half-Breed Bands lying in Bee County,” Iowa Territory, in pursuance of a law of the Territory. The defendant offered to prove that no service had ever been made upon any person in the suits in which the judgments were rendered, and no notice by publication as required by the act. This court held that, as there was no service of process, the judgments were nullities. Perhaps it appeared on the face of the judgments in that case that no service was made; but the court held that the defendant was entitled to prove that no notice wms given, and that none was published. In Harris v. Hardeman et al., which was a writ of error to a judgment held void by the court for want of service of process on the defendant, the subject now under consideration was gone over by Mr. Justice Daniel at some length, and several casés in the State courts were cited and approved, which held that a judgment may be attacked in a collateral proceeding by showing that the court had no jurisdiction of the person, or, in proceedings in rem, no jurisdiction of the thing. Amongst other cases quoted were those of Borden v. Fitch, and Starbuck v. Murray; and from the latter the following remarks were quoted with apparent approval. “But it is contended that if other matter may be pleaded by the defendant he is estopped from asserting anything against the allegation contained in the record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceedings and judgment are void, and, therefore, the supposed record is, in truth, no record. . .' . The plaintiffs, in effect, declare to the defendant, —" }, { "docid": "1165874", "title": "", "text": "by the weight of authority. As the United States Supreme Court observed in Federated Department Stores, Inc., v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981): A final judgment on the merits óf an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. As this Court explained in Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 325, 47 S.Ct. 600, 604, 71 L.Ed. 1069 (1927), an “erroneous conclusion” reached by the court in the first suit does not deprive the defendants in the second action “of their right to rely upon the plea of res judicata.... A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause of action.” We have observed that “the indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the conclusive character of judgments, consequences which it was the very purpose of the doctrine of res judicata to avert.” (citations omitted). The observations of the United States Supreme Court in Federated Department Stores (which discusses res judicata) have been applied to the collateral estoppel doctrine as well. Goss v. Goss, 722 F.2d 599, 605 (10th Cir.1983). The Goss court went on to point out that applying collateral es-toppel in such a fashion: does not work a hardship on the defendant. He had an opportunity to present his case on dischargeability under § 17a(7) [of the old Bankruptcy Act] to the state court, which, pursuant to the 1970 congressional amendments to the bankruptcy laws, had jurisdiction to decide this issue. Moreover, defendant had a right to appeal in the Oklahoma courts; collateral estoppel merely bars him from relitigating the dischargeability" }, { "docid": "23478231", "title": "", "text": "that only a final judgment is res judicata as between the parties. And it is evident that a decree cannot be res judicata as against a third party participating in the defense unless it is so far final as to be res judicata against the defendant himself. Hence, if the decree of September 11 was not final as between appellant and Saalfield, it cannot be res judicata, as against. Ogilvie; and thus the fundamental ground for proceeding against the latter by supplemental bill with substituted service of process disappears. This sufficiently shows the weakness of appellant’s position, which, upon analysis, is found to be this: that upon the theory that Ogilvie would be estopped by a final decree if and when made, it sought to bring him into 'the suit, before final decree, as if he were already estopped. However convenient this might be to a complainant in appellant’s position, it is inconsistent with elementary principles. But, assuming for argument’s sake that the decree was final, and that Ogilvie was fully estopped by it because of having taken charge and exercised control of Saal-field’s defense thróugh solicitors and counsel retained and paid by himself; and assuming that their employment had not been terminated at the time the supplemental bill was filed; the question of the sufficiency of the proceedings taken by way of substituted service to bring Ogilvie within the jurisdiction of the court still remains, and this depends upon whether the supplemental bill is a dependent and ancillary proceeding, jurisdiction of which follows jurisdiction of the original cause and may be exerted upon mere notice to the party without service of original process within the district. It seems to be thought that because Ogilvie was identified in interest with the defendant in the original suit and had and exercised the right to make defense and control the proceedings and appeal from the decree, he may be treated for all purposes as an actual party to the record. But this by no means follows. The doctrine of res judicata furnishes a rule for the decision of a subsequent case between" }, { "docid": "1450043", "title": "", "text": "has been litigated and a final judgment entered, the determination of that issue, right or wrong, is res judicata.” Hanley v. Four Corners Vacation Properties, Inc., 480 F.2d. 536, 538 (10th Cir.1973); see, also, Royal Ins. Co. of America v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir.1992) (“It has long been the rule that principles of res judicata apply to jurisdictional determinations— both subject matter and personal.”) (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104 n. 9, 72 L.Ed.2d 492 (1982)); Coleman v. U.S., 221 F.Supp. 39, 44 (D.Kan.1963) (“[Wjhere jurisdiction of a court depends upon a fact that is litigated in a proceeding pending before it, and is adjudicated in favor of the party asserting jurisdiction, the question of jurisdiction is judicially decided, and the judgment record is conclusive evidence of jurisdiction until set aside or reversed in a direct proceeding, and may not be otherwise attacked collaterally.”). At that April 15, 1999, proceeding, after hearing evidence of the measures taken by N.L.R.B. to effect service upon Mr. Gordon, the ALJ concluded that “Mr. Gordon was given sufficient notice of and opportunity to appear and participate in the remand hearing and to present whatever defense he felt was appropriate, either in person or through counsel or other representative in fully and fairly litigating the matters described in the Board’s remand order.” Thus evidence was taken at that proceeding and a judicial determination was made that Gordon received legally sufficient notice of the hearing. Because evidence was taken and a judicial determination was made on the merits of the notice issue, this Court has no authority to entertain Mr. Gordon’s invitation to now look behind that proceeding on collateral attack and second-guess the prior decision with respect to his allegations of improper notice. The ALJ hearing held on April 15, 1999, resulted in the fifth of nine orders which were entered in this matter. The Sixth Ruling, which was the N.L.R.B. adoption of the ALJ’s findings, and the Seventh Ruling, which was the Tenth Circuit’s enforcement" }, { "docid": "23139415", "title": "", "text": "present motion.’ ” The case just cited is relied upon because of its reference to The Palmyra. But the point to which that case is cited was not involved. As we„have seen, it had already been limited in Rice v. Railroad Company, 21 How. 82, to appeals in ad miralty. Further, that case, as we have seen, was one of clerical mistake in making up the record. We, therefore, find nothing in the previous decisions of this court justifying the contention of the plaintiff in error as to the right to correct the judgment of the previous term, in view of the character of the error sought to be corrected, and more especially in the attempt, under the circumstances shown in this record, to set aside a judgment of a former term and render a new and different judgment without notice to the party who had been dismissed by a former judgment. As we have seen, the question here involved pertains to a case where no notice is given and a new and different judgment is entered at a subsequent term. It is urged when the necessary facts appear in the record such correction can be made without notice, because, it is said, there is nothing to litigate. But aside from the fact that this proposition ignores the rule that jurisdiction once lost can only be regained by some proper notice, the case at bar is an illustration that such action may impair the substantial right of a party to be heard against the rendition of a new judgment against him. Had notice been given the defendant could have availed himself of his right to plead his discharge in bankruptcy by proper proceedings for that purpose. Loveland, Bankruptcy, 783. It may be’ that he did not lose all right to avail himself- of the discharge in some other manner, but he had the right to show that in view of his discharge the judgment in question ought not to be rendered against him. In Capen v. Stoughton, 16 Gray, 364, cited by plaintiff in error, a sheriff’s jury in condemnation" }, { "docid": "22065523", "title": "", "text": "the plaintiff, until the order of consolidation which, as before stated,' was after the time limited for plaintiff’s appearance, and after an order pro confesso had been entered against it. The case of Cooper v. Reynolds was one where property was seized by virtue of an attachment taken out at the commencement of the suit in which the proceedings to call in the non-resident defendant were had, and the record asserted that “ publication had been made according to law.” Indeed, Mr. Justice Miller said in that case, p. 319, “ we do not deny that there are cases ... in which the legislature has properly made the jurisdiction to depend on this publication of notice, or on bringing the suit to the notice of the party in some other mode, when he is not within the territorial jurisdiction.” It was said by Mr. Justice Wayne, in Williamson v. Berry, 8 How. 495, 540, in reply to an argument that a decree in chancery could not be looked into in a collateral way, that “it is an equally well-settled rule in jurisprudence, that the jurisdiction of any court exercising authority over a subject may be inquired into in every other court, when the proceedings in the former are relied, upon, and brought before the latter, by a party claiming the benefit of such proceedings. The rule prevails whether the decree or judgment has been given in a court of admiralty, chancery, ecclesiastical court or court of common law.” The decisions of this court upon this subject, beginning in the year 1794 with the case of The Betsey, 3 Dali. 6, have been uniform and consistent. The following are a few of the leading cases upon this subject: Rose v. Himely, 4 Cranch, 241; Elliott v. Peirsol, 1 Pet. 328; Wilcox v. Jackson, 13 Pet. 498; Shriver’s Lessee v. Lynn, 2 How. 43; Lessee of Hickey v. Stewart, 3 How. 750; Webster v. Reid, 11 How. 437. In the last case it was held that where jurisdiction had been sought to be obtained by publication, as in this case, it was" } ]

[ { "docid": "14153776", "title": "", "text": "'Especially is this true when they concern general law in the field of civil rights.' ” Beech Aircraft Corp. v. Kansas Human Rights Comm’n, 254 Kan. 270, 274, 864 P.2d 1148 (1993) (quoting Woods v. Midwest Conveyor Co., 231 Kan. 763, 767, 648 P.2d 234 (1982)). See Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477, 1480 n. 2 (10th Cir.1991). In light of the plaintiff's tacit concession, the court’s Title VII analysis is equally applicable to the plaintiff’s KAAD claims. . “Determining whether a defendant is an 'employer' under Title VII or the ADEA involves a two-step process. First, the defendant must fall within the statutory definition. Second, there must be an employment relationship between the plaintiff and the defendant.\" Deal, 5 F.3d at 118 n. 2. . The ADEA and Title VII define the term \"employer\" similarly. The ADEA defines employer as \"a person ... who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year [and] any agent of such a person.” 29 U.S.C. § 630(b). In general, cases construing definitions of terms in the ADEA are persuasive authority for interpreting the definition of terms in Title VII. See Wheeler v. Hurdman, 825 F.2d 257, 263 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987); see, e.g., Deal, 5 F.3d at 118. . In light of the court’s determination that Keefer was not an employee of Prudential, Prudential could not be liable to Thomason on either of her outrage claims. However, as the defendants' arguments on these claims are similar, for simplicity the court will refer to them collectively. . The torts of outrage and the intentional infliction of emotional distress are interchangeable terms for the same cause of action. Taiwo v. Vu, 249 Kan. 585, 586, 822 P.2d 1024 (1991); Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981). . In Laughinghouse, the plaintiff was subjected to constant abuse and harassment by her supervisor over a two year period. The harassment and abuse took" } ]

[ { "docid": "17667214", "title": "", "text": "definitions of employers that limit the applicability of these acts to “employers” that have at least 20 and 15 employees respectively. 29 U.S.C. § 621-634; Nev.Rev. Stat. 613.310(1). Herman’s employer, Carpenter’s Local 971, had seven employees as of June 1991 when Herman was fired. Thus, a claim under either of these statutes appears to be unavailable to Herman. To overcome this hurdle, Herman offers two arguments: first, that a local union is simply a segment of the larger international union, and thus, the employees of all of the member locals should be aggregated for purposes of the statutory requirements; and second, that a labor organization is subject to the requirements of these Acts regardless of its number of employees. We reject both of these arguments. Herman’s first argument is analogous to the one presented in Childs v. Electrical Workers, et al., 719 F.2d 1379 (9th Cir.1983). The plaintiff in Childs brought suit under Title VII which contains a definition of “employer” virtually identical to that in the ADEA, the difference being that under Title VII an entity is an employer if it has 15 employees while under the ADEA, the requirement is 20. The plaintiff in Childs argued that although her employer-local-union had fewer than the requisite 15 employees, the local and its International union should be treated as one entity. We adopted a four-part test to determine whether two employing entities constitute a single employer for purposes of Title VII. 719 F.2d at 1382. The factors to be considered are: 1) interrelation of operations; 2) common management; 3) centralized control of labor relations; and 4) common ownership or financial control. Id. Applying this test, we decided that the plaintiff had failed to establish that the local and the international union were a single employer. Id. Recognizing that the Childs analysis is equally applicable to the ADEA context, Herman argues that her employer satisfies the standard because under the International constitution the International charters the local unions, receives dues from the locals, has the power to dissolve locals and receive their assets, has the power to impose trusteeships over locals" }, { "docid": "346993", "title": "", "text": "entity. See Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir.1997); Morgan v. Safeway Stores, Inc., 884 F.2d 1211, 1213-14 (9th Cir.1989); Childs v. Local 18, Int’l Brotherhood of Electric Workers, 719 F.2d 1379, 1382-83 (9th Cir.1983). The scope of “employer” liability is the same under the ADEA, the FEHA, and the NYHRL. See Cal. Gov’t Code § 12926(d) (defining employer in terms similar to the ADEA definition in 29 U.S.C. § 630(b)); N.Y. Exec. Law § 296(l)(a) (describing employer liability in terms similar to the those in the ADEA) (29 U.S.C. § 623(a)); Muzquiz v. City of Emeryville, 79 Cal.App.4th 1106, 1115-16, 94 Cal.Rptr.2d 579 (2000) (recognizing that California antidiscrimination laws are interpreted in accordance with analogous federal law); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.1992) (stating that interpretation of New York’s HRL should rely upon the ADEA arid Title VII). Therefore, while this discussion focuses primarily on the ADEA, it applies to the FEHA and NYHRL compo nents of the cause of action as well. a. Single Employer Courts consider four factors in determining whether two or more separate business entities may be treated as a “single employer” under the employment discrimination statutes: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common financial control. See Herman v. United Brotherhood of Carpenters and Joiners of America, Local No. 971, 60 F.3d 1375, 1383-84 (9th Cir.1995) (holding that an international union and its local chapters were not a single employer subject to joint liability under the ADEA); Morgan, 884 F.2d at 1213-14 (finding that an employer and credit union were not a single employer for purposes of Title VII because there existed no central control of labor relations); Laird v. Capital Cities/ABC, Inc., 68 Cal.App.4th 727, 737-41, 80 Cal.Rptr.2d 454 (1998) (applying the above four-factor test, the court held that a parent and wholly-owned subsidiary were not a single employer under the FEHA). It is clear that all Employer and Agency Defendants are not a single employer, nor do Plaintiffs make this contention. b." }, { "docid": "14357143", "title": "", "text": "of joint employer liability); see also Balut, 988 F.Supp. at 346 (noting that the two defendant corporations did not share a common office space); cf. Regan, 1995 WL 413249, at *1 1995 U.S. Dist. LEXIS 9682, at *1-2 (finding sufficient evidence of interrelatedness and denying defendant’s motion for summary judgment where the two corporations’ employee records, payroll records and bank deposits were kept together). Additionally, the UWA and the UWDC are independently incorporated, “operate under separate bylaws, are governed by separate boards, and have separate IRS exemptions.” Tatum, 954 F.Supp. at 228. The evidence before us does not establish an interrelation of operations between the UWA and the UWDC. Second, plaintiff has failed to allege any evidence of common management between the UWA and the UWDC. As stated supra, the UWDC is governed by an independent Board' of Governors, with no overlap at all between the board and management of the UWA. (UWA Rule 56.1 Stmt. ¶¶ 9-11; PI. Rule 56.1 Stmt., UWA Stmts. Denied ¶¶ 9-11); see Tatum, 954 F.Supp. at 229 (noting in a similar case a lack evidence of common directors, officers or board members between the UWA and the United Way of Wyandotte County). That same independent Board of Governors is also responsible for adopting and maintaining the UWDC’s bylaws and governance procedures. (Id.) Plaintiff admits these facts and fails to allege any evidence to the contrary, further supporting the notion that the UWA and the UWDC do not operate as joint employers. (PL Rule 56.1 Stmt., UWA Stmts. Denied ¶¶ 9-11.) The third factor to consider is centralized control of labor relations. To establish that the UWA had centralized control over the UWDC’s labor relations, plaintiff must submit evidence that the UWA had actual day-to-day control over the UWDC’s employment decisions. See Tatum, 954 F.Supp. at 229 (quoting Eichenwald v. Krigel’s, Inc., 908 F.Supp. 1531, 1541 n. 9 (D.Kan.1995)) (noting that potential control is not enough for a finding of centralized control of labor relations). Additionally, there must be evidence that the UWA had and exercised actual control with respect to plaintiffs employment specifically. Id." }, { "docid": "14357145", "title": "", "text": "(noting the importance of the plaintiffs actual experience as an employee with respect to whether an entity hired the plaintiff, fired the plaintiff, or supervised the plaintiffs work on a daily basis). Here, there is no evidence that the UWA had day-to-day, or any other, control over the UWDC’s labor relations. Even more importantly, plaintiff has not demonstrated that the UWA hired, reviewed or. fired plaintiff or played any role at all in making those decisions. Rather, it is uncontroverted that: (1) plaintiff was not interviewed by any employee of the UWA prior to becoming employed at the UWDC; (2) Williamson did not consult with the UWA with respect to plaintiffs hiring, her offer letter or the terms of the offer itself; (3) Kennett did not consult with anyone at the UWA with regard to obtaining a credit report or reference check on plaintiff; (4) the UWA was not contacted in connection with the decision to terminate plaintiffs employment with the UWDC; and (5) the UWA was not aware of the UWDC’s decision to terminate plaintiffs employment prior to her termination. (UWA Rule 56.1 Stmt. ¶¶ 88, 95, 116, 119, 122, 123; PI. Rule 56.1 Stmt., UWA Stmts. Denied ¶¶ 88, 95, 116, 119, 122, 123.) The fact that, as plaintiff notes, the UWA maintains a job posting database on its website, collects information regarding member organizations’ personnel profiles, in terms of total number of employees and average salary, and offers general policy statements or guidelines on employment matters is not sufficient evidence to establish centralized control. See Tatum, 954 F.Supp. at 230; see also Balut, 988 F.Supp. at 347. The final factor to consider is whether there is evidence of common ownership or financial control between the UWA and the UWDC. The “UWA and its member organizations are nonprofit, charitable organizations and not owned in the traditional commercial sense. Although financial accountability is part of the eligibility criteria to become a member organization,” and the amount of membership dues is calculated based on the success of the individual fund-raising campaigns, plaintiff does not submit any evidence indicating that the" }, { "docid": "14357146", "title": "", "text": "plaintiffs employment prior to her termination. (UWA Rule 56.1 Stmt. ¶¶ 88, 95, 116, 119, 122, 123; PI. Rule 56.1 Stmt., UWA Stmts. Denied ¶¶ 88, 95, 116, 119, 122, 123.) The fact that, as plaintiff notes, the UWA maintains a job posting database on its website, collects information regarding member organizations’ personnel profiles, in terms of total number of employees and average salary, and offers general policy statements or guidelines on employment matters is not sufficient evidence to establish centralized control. See Tatum, 954 F.Supp. at 230; see also Balut, 988 F.Supp. at 347. The final factor to consider is whether there is evidence of common ownership or financial control between the UWA and the UWDC. The “UWA and its member organizations are nonprofit, charitable organizations and not owned in the traditional commercial sense. Although financial accountability is part of the eligibility criteria to become a member organization,” and the amount of membership dues is calculated based on the success of the individual fund-raising campaigns, plaintiff does not submit any evidence indicating that the UWA exercises common ownership or financial control over the UWDC or any of its member organizations. See Tatum, 954 F.Supp. at 229-30. Because we find the evidence insufficient to show that the UWA and, the UWDC operate as joint employers or an “integrated enterprise,” we decline to hold that the UWA was plaintiffs employer for purposes of her discrimination claims. Accordingly, the UWA’s motion for summary judgment is granted and all claims against the UWA are dismissed with prejudice. III. Defendants UWDC and Williamson A. Pregnancy Discrimination Act The PDA is a definitional amendment to Title VII enacted to include pregnancy-based discrimination within Title VII’s prohibition of gender-based employment discrimination. The elements of an employment discrimination claim are “virtually identical” under the New York Executive Law and Title VII. LaCoparra v. Pergament Home Centers, Inc., 982 F.Supp. 213, 225 (S.D.N.Y.1997) (Conner, J.). Therefore, our analysis of plaintiffs Title VII claim is also applicable to plaintiffs claim under the NYSHRL. A claim for employment discrimination is governed by the three-step burden-shifting analysis of McDonnell Douglas Corp." }, { "docid": "14357124", "title": "", "text": "OPINION AND ORDER WILLIAM C. CONNER, Senior District Judge. Plaintiff Sandra Woodell brings this action against the United Way of Dutchess County (the “UWDC”), James G. Williamson (collectively, the “UWDC defendants”), and the United Way of America (the “UWA”) alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) under the Pregnancy Discrimination Act amendment (the “PDA”) and the New York State Human Rights Law, New York Executive Law §§ 290 et seq. (the “NYSHRL”). Plaintiff also alleges violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (the “FCRA”). The UWA and the UWDC defendants each move pursuant to Fed. R. Civ. P. 56 for summary judgment. For the reasons stated hereinafter, the UWA’s motion for summary judgment is granted and the UWDC defendants’ motion for summary judgment is granted in part and denied in part. BACKGROUND The following factual information is un-controverted unless otherwise noted. The UWDC is a non-profit corporation located in Dutchess County, New York. (UWDC Defs. Rule 56.1 Stmt. ¶ 1.) The UWA is a non-profit corporation located in Virginia. (UWA Rule 56.1 Stmt. ¶ 2.) The UWDC is one of the UWA’s many member organizations. As a member organization, the UWDC is licensed by the UWA to use the United Way logo and trade name and is obligated to pay annual dues and to comply with certain ethical and fiscal standards. (Id. ¶¶ 7-8.) The UWDC is inde pendently governed by its own Board of Governors and is operated according to its own bylaws and procedures. (Id. ¶¶ 9-11.) Williamson was the President and CEO of the UWDC for approximately eight years and held that position at all times relevant to this action. (UWDC Defs. Rule 56.1 Stmt. ¶ 2.) Gretchen Moore Simmons, a non-party, was the UWDC’s Vice President of Resource Development at all times relevant to this action. (Id. ¶ 3.) Mary Kennett, also a non-party, was an employee at the UWDC at all times relevant to this action. (Id. ¶ 16.) Plaintiff was employed at the" }, { "docid": "15005283", "title": "", "text": "29 U.S.C. § 623(h)(1). The expressed purpose of these changes was to “mak[e] provisions of the Act apply to citizens of the United States employed in foreign countries by U.S. corporations or their subsidiaries.” S.Rep. No. 98^467, p. 2 (1984), U.S.Code Cong. & Admin. News 1984 pp. 2974, 2975. Id. at 258-59, 111 S.Ct. 1227. In extending the reach of the ADEA, Congress codified the four-factor integrated enterprise test as the standard to determine “whether an employer controls a corporation” overseas, and is thereby “presumed” liable for unlawful discrimination against the U.S. citizen employees of the foreign subsidiary. 29 U.S.C. § 623(h). “The purpose behind the amendment [was] to ensure that the citizens of the United States who are employed in a foreign workplace by U.S. corporations or their subsidiaries enjoy the protections of the [ADEA].” In Arabian American, the Supreme Court suggested “Congress, should it wish to do so, may similarly amend Title VII.” 499 U.S. at 259, 111 S.Ct. 1227. Congress immediately acted by adding a provision to the 1991 Civil Rights Act to include functionally identical language in Title VII and the ADA. As amended, Title VII now protects U.S. citizens employed “in a foreign country,” 42 U.S.C. § 2000e(f), under the following circumstances: (c)(1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by section 2000e-2 or 2000e-3 of this title engaged in by such corporation shall be presumed to be engaged in by such employer. (2) Sections 2000e-2 and 2000e-3 of this title shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer. (3) For purposes of this subsection the determination of whether an employer controls a corporation shall be based on— (A) the interrelation of operations; (B) the common management; (C) the centralized control of labor relations; and (D) the common ownership or financial control, of the employer and the corporation. 42 U.S.C. § 2000e-l(c) (emphasis added); see also 42 U.S.C. § 12112(c)(2)(ADA). Congress’ express purpose was to “extend the protections of Title" }, { "docid": "14357142", "title": "", "text": "and not-for-profit standards and pay annual membership dues. (UWA Rule 56.1 Stmt. ¶ 8; PI. Mem. Opp. Summ. J. at 7-10.) Plaintiff also notes that the UWA licenses the use of the United Way logo and trade name to member organizations and that such use is subject to certain guidelines and restrictions related to maintaining a consistent representation to the general public. (PI. Mem. Opp. Summ. J. at 7-10.) Additionally, plaintiff notes that the UWA provides member organizations ' with access to broad-based services such as electronic and web-based practice, communication, employment, marketing and education materials. (Id.) However, these assertions offer little, if any, weight for purposes of the present inquiry. We find more persuasive the fact that the UWA and the UWDC never shared a payroll system, accounting records, a bank account or line of credit, advertising budget, telephone line or office space. (PI. Rule 56.1 Stmt. ¶¶26, 40-42, 46, 47, 57-60.); Tatum v. Everhart, 954 F.Supp. 225, 228 (D.Kan.1997) (noting that the aforementioned factors have been recognized as indicia of interrelatedness for purposes of joint employer liability); see also Balut, 988 F.Supp. at 346 (noting that the two defendant corporations did not share a common office space); cf. Regan, 1995 WL 413249, at *1 1995 U.S. Dist. LEXIS 9682, at *1-2 (finding sufficient evidence of interrelatedness and denying defendant’s motion for summary judgment where the two corporations’ employee records, payroll records and bank deposits were kept together). Additionally, the UWA and the UWDC are independently incorporated, “operate under separate bylaws, are governed by separate boards, and have separate IRS exemptions.” Tatum, 954 F.Supp. at 228. The evidence before us does not establish an interrelation of operations between the UWA and the UWDC. Second, plaintiff has failed to allege any evidence of common management between the UWA and the UWDC. As stated supra, the UWDC is governed by an independent Board' of Governors, with no overlap at all between the board and management of the UWA. (UWA Rule 56.1 Stmt. ¶¶ 9-11; PI. Rule 56.1 Stmt., UWA Stmts. Denied ¶¶ 9-11); see Tatum, 954 F.Supp. at 229 (noting in" }, { "docid": "5675858", "title": "", "text": "Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (citing 42 U.S.C. §§ 2000e-2, 2000e-3). “Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Farley v. Leavitt, No. CIV 05-1219 JB/LFC, 2007 WL 6364329, at *6 (D.N.M. Dec. 31, 2007) (Browning, J.) (quoting 42 U.S.C. § 2000e-2(a)(1)) (internal quotes and alterations omitted). Under the ADEA, it is “unlawful for an employer” to “discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). Thus, a plaintiff suing under the ADEA must prove that his or her age motivated the challenged employment action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). For both Title VII and ADEA claims, at the summary-judgment stage, the nonmoving party must come forth with some proof of discrimination, either by demonstrating direct evidence of the employer’s discriminatory intent or, “[u]nder McDonnell Douglas, ... by providing circumstantial rather than direct evidence of [intentional] discrimination.” Jones v. Oklahoma City Public Schools, 617 F.3d 1273 (10th Cir.2010). See Hare v. Denver Merch. Mart, Inc., 255 Fed.Appx. 298, 301 (10th Cir.2007) (citing McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. 1817). 1. Direct Evidence. “Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption.” Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 855 (10th Cir.2007). Moreover, “[direct evidence demonstrates on its face that the employment decision was reached for discriminatory reasons.” Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir.2002). “When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, [the Tenth Circuit] has held that the plaintiff must demonstrate a nexus exists between the alleged discriminatory statements and the ... decision to terminate [the employee].” Negrete v. Maloof Distrib. L.L.C., No. CIV 06-0338 JB/LFG, 762 F.Supp.2d" }, { "docid": "14357144", "title": "", "text": "a similar case a lack evidence of common directors, officers or board members between the UWA and the United Way of Wyandotte County). That same independent Board of Governors is also responsible for adopting and maintaining the UWDC’s bylaws and governance procedures. (Id.) Plaintiff admits these facts and fails to allege any evidence to the contrary, further supporting the notion that the UWA and the UWDC do not operate as joint employers. (PL Rule 56.1 Stmt., UWA Stmts. Denied ¶¶ 9-11.) The third factor to consider is centralized control of labor relations. To establish that the UWA had centralized control over the UWDC’s labor relations, plaintiff must submit evidence that the UWA had actual day-to-day control over the UWDC’s employment decisions. See Tatum, 954 F.Supp. at 229 (quoting Eichenwald v. Krigel’s, Inc., 908 F.Supp. 1531, 1541 n. 9 (D.Kan.1995)) (noting that potential control is not enough for a finding of centralized control of labor relations). Additionally, there must be evidence that the UWA had and exercised actual control with respect to plaintiffs employment specifically. Id. (noting the importance of the plaintiffs actual experience as an employee with respect to whether an entity hired the plaintiff, fired the plaintiff, or supervised the plaintiffs work on a daily basis). Here, there is no evidence that the UWA had day-to-day, or any other, control over the UWDC’s labor relations. Even more importantly, plaintiff has not demonstrated that the UWA hired, reviewed or. fired plaintiff or played any role at all in making those decisions. Rather, it is uncontroverted that: (1) plaintiff was not interviewed by any employee of the UWA prior to becoming employed at the UWDC; (2) Williamson did not consult with the UWA with respect to plaintiffs hiring, her offer letter or the terms of the offer itself; (3) Kennett did not consult with anyone at the UWA with regard to obtaining a credit report or reference check on plaintiff; (4) the UWA was not contacted in connection with the decision to terminate plaintiffs employment with the UWDC; and (5) the UWA was not aware of the UWDC’s decision to terminate" }, { "docid": "14357161", "title": "", "text": "because they have become associated with each other via a contractual relationship. However, plaintiff has confused the aforementioned concept, which is a description of the type of entities that may be held up to scrutiny under the joint employer doctrine, for the actual inquiry itself which, as discussed supra, focuses on whether one entity has immediate control over the other entity's employees. See Rivera, 922 F.Supp. at 949 (quoting NLRB v. Solid Waste Serv., Inc., 38 F.3d 93 (2d Cir.1994)). . We note that many courts consider centralized control of labor relations to be the most important factor in this type of inquiry. See Cook, 69 F.3d at 1241 (\"We focus our inquiry ... on the second factor, centralized control of labor relations.”); see also Laurin v. Pokoik, No. 02 Civ.1938, 2004 WL 513999, at *6 (S.D.N.Y. Mar. 15, 2004), 2004 U.S. Dist. LEXIS 4066, at *19 (\"Centralized control over labor relations, the most important prong in the single-employer inquiry, can include such factors as whether the companies have separate human-resources departments and whether the entity 'establishes its own policies and makes its own decisions as to the hiring, discipline, and termination of its employees.’ ”) (citation omitted). . Because we conclude that plaintiff has failed to show that the UWA employed her either directly or indirectly, as a joint employer, it is not necessary to address the UWA’s remaining arguments herein. . As discussed in more detail infra, in Part IV., the UWA's motion is granted with respect to plaintiff’s FCRA claim because we have concluded that the UWA and the UWDC do not operate as an integrated enterprise and because plaintiff makes no independent claims against the UWA under the FCRA. .However, it should be noted that plaintiff's Title VII violation claim only applies to the UWDC and not Williamson individually, while plaintiff's NYSHRL violation claim applies to both the UWDC and Williamson. (Complt. ¶¶ 79-98.) . Since plaintiff has hot introduced evidence showing that her position remained open and was eventually filled by a non-pregnant employee, we turn our focus to the alternative showing under the fourth" }, { "docid": "14357139", "title": "", "text": "22 F.3d 1219, 1224 (2d Cir.1994). II. Defendant UWA The UWA contends that summary judgment is warranted because plaintiff is unable to show either: (1) that the UWA employed her directly or as a joint employer; or (2) that the UWA took any adverse action against her that could support a claim for discrimination. (Id. at 3.) The UWA also contends that plaintiffs own testimony demonstrates that the UWA did not engage in any violation of the FCRA. (Id. at 4.) It is undisputed that plaintiff was not directly employed by the UWA. Therefore, the issue is whether the UWA was sufficiently integrated with the UWDC so that they were operating as joint employers with respect to plaintiff. There are several ways for a court to assess whether “a defendant is an ‘employer’ within the meaning of Title VII and other employment discrimination statutes.” Rivera v. Puerto Rican Home Attendants Serv., Inc., 922 F.Supp. 943, 949 (S.D.N.Y.1996) (noting that the various formulations all focus on the amount of control or supervision a defendant exerts over another company’s employees). One approach used by this Court and other courts in this Circuit, often called the “integrated enterprise” approach, seeks to determine whether two entities are “so interrelated that they may be treated as a ‘single employer’ for the purpose of Title VII.” Id.; see also Arculeo v. On-Site Sales & Marketing, LLC, 321 F.Supp.2d 604, 608 (S.D.N.Y.2004) (Conner, J.) (noting that the joint employer doctrine is analytically similar to the single employer doctrine). The integrated enterprise approach “can enable an employee to hold two or more nominally separate business entities accountable as a single entity under anti-discrimination laws .... ” Regan v. In the Heat of the Nite, Inc., No. 93 Civ. 862, 1995 WL 413249, at *2 (S.D.N.Y. July 12, 1995), 1995 U.S. Dist. LEXIS 9682, at *5. Under the -integrated enterprise approach courts consider four factors to uncover evidence of: (1) interrelated operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership, between two entities. See Russo v. Lightning Fulfillment, Inc., 196 F.Supp.2d 203, 207 (D.Conn.2002)" }, { "docid": "13699007", "title": "", "text": "S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. II. THE RELATIONSHIP BETWEEN NORWEST AND FOOTHILL CAPITAL Plaintiff was hired and employed by Foothill Capital. Yet, she seeks to hold both Foothill Capital and Norwest liable for violating Title VII and the EPA as a “single employer.” Under the single employer theory of liability, “the interrelation of two nominally separate business entities may lead a court to consider them as a single entity” for the purposes of liability in employment discrimination cases. Rogers v. Sugar Tree Prod., Inc., 1 F.3d 577, 582 (7th Cir.1993) (applying doctrine in case involving the Age Discrimination in Employment Act (“ADEA”)); see also Knight v. Entertainment Publications, Inc., No. 95 C 3642, 1996 WL 172138, at *2 (N.D.Ill. April 10, 1996) (applying doctrine in case involving the ADEA Title VII, and the Americans with Disabilities Act); Richard v. LeSalle Talman Bank, No. 94 C 1799, 1995 WL 234633, at *9 (N.D.Ill. April 19, 1995) (applying doctrine in Title VII case). When determining whether two corporations should be treated as a single employer, the court must consider whether the following factors exist: (1) the interrelation of operations, such as common offices, common record keeping, and shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control. See Rogers, 1 F.3d at 582. “Although the presence or absence of any one factor is not controlling ... ‘control over the elements of labor relations is a central concern.’ ” Id. (quoting Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983)). The fact that entities in question are interrelated is insufficient; the plaintiff must show that the businesses are “highly integrated with respect to ownership and operations” to warrant a finding that they constitute a single employer. Id. at 583 (citations omitted). “ ‘[T]he most" }, { "docid": "14357147", "title": "", "text": "UWA exercises common ownership or financial control over the UWDC or any of its member organizations. See Tatum, 954 F.Supp. at 229-30. Because we find the evidence insufficient to show that the UWA and, the UWDC operate as joint employers or an “integrated enterprise,” we decline to hold that the UWA was plaintiffs employer for purposes of her discrimination claims. Accordingly, the UWA’s motion for summary judgment is granted and all claims against the UWA are dismissed with prejudice. III. Defendants UWDC and Williamson A. Pregnancy Discrimination Act The PDA is a definitional amendment to Title VII enacted to include pregnancy-based discrimination within Title VII’s prohibition of gender-based employment discrimination. The elements of an employment discrimination claim are “virtually identical” under the New York Executive Law and Title VII. LaCoparra v. Pergament Home Centers, Inc., 982 F.Supp. 213, 225 (S.D.N.Y.1997) (Conner, J.). Therefore, our analysis of plaintiffs Title VII claim is also applicable to plaintiffs claim under the NYSHRL. A claim for employment discrimination is governed by the three-step burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Dean v. Westchester County Dist. Attorney’s Office, 119 F.Supp.2d 424, 430 (S.D.N.Y.2000) (Conner, J.). Under the McDonnell Douglas analysis, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff is successful, a presumption that the employer unlawfully discriminated against the plaintiff is raised and the burden of production then shifts to the employer to “articulate a legitimate, clear, specific and non-discriminatory reason” for its actions. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995). If the employer does so, the presumption of discrimination no longer applies and the plaintiff has the burden to establish by a preponderance of the evidence that the employer’s stated reason was merely a pretext for discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In addition, the plaintiff must submit evidence that would permit a rational fact finder to infer that the discharge was actually motivated, in whole or in part," }, { "docid": "17453022", "title": "", "text": "of employees is jurisdictional in a case brought under the Family and Medical Leave Act (“FMLA”), a holding that suggests it would deem the number of employees jurisdictional in the Title VII context as well. See Hukill v. Auto Care, Inc., 192 F.3d 437, 441 (4th Cir.1999) (“A district court lacks subject matter jurisdiction over an FMLA claim if the defendant is not an employer as that term is defined in the FMLA [which defines an employer as ‘any person ... who employs 50 or more employees.]’ ”). The division is deeper than merely inter-circuit. Even within certain circuits that have held Title VII’s fifteen-employee threshold jurisdictional, there is conflict. While in Owens the Tenth Circuit assumed (without analysis) that the requirement is jurisdictional, in Wheeler v. Hurdman, 825 F.2d 257 (10th Cir.1987), that Court held that the fifteen-employee threshold is both jurisdictional and “intertwined with the merits of the case,” and therefore should have been resolved as if on the merits. Id. at 259. The Eleventh Circuit is similarly conflicted. In Garcia v. Copenhaver, Bell & Associates, M.D.’s, P.A., 104 F.3d 1256 (11th Cir.1997), the Court opined that the Age Discrimination in Employment Act’s twenty-employee threshold “goes to the merits of an ADEA case.” Id. at 1258. It reasoned that “the section of the ADEA that provides the substantive relief’ - the section forbidding an employer from discriminating - “is intertwined and dependent on the section of the ADEA that defines the scope of the act” - the section defining “employer” as one who employs more than twenty employees. Id. at 1263. However, in a later case, Scarfo, 175 F.3d 957, the Eleventh Circuit dismissed a plaintiffs Title VII claim for lack of subject matter jurisdiction when the defendant fell short of fifteen employees. A third case, Morrison v. Amway Corp., 323 F.3d 920 (11th Cir.2003), recognized this intra-circuit conflict and essentially joined both camps. It stated that, in the FMLA context, a fifty-employee threshold “implicate[s] both jurisdiction and the underlying merits.” Id. at 929 (emphasis added). However, it held that Garcia correctly disposed of the issue as a" }, { "docid": "14357159", "title": "", "text": "denied with respect to plaintiffs first, second and fourth claims; and Williamson’s motion for summary judgment is denied with respect to plaintiffs second and third claims, but granted with respect to plaintiffs fourth claim. SO ORDERED. . This Court has jurisdiction pursuant to 28 U.S.C. § 1331. . The UWDC received the results of the Fidel-ifacts report after plaintiff began working at the UWDC. (UWDC Defs. Rule 56.1 Stmt. ¶ 15.) . According to the UWDC defendants, there was one incident involving plaintiff's failure to follow instructions with respect to setting up a phone system. (UWDC Defs. Rule 56.1 Stmt., PL Stmts. Denied ¶ 41.) . The May 8, 2003 fax from Ayco stated that, \"Sandra started employment on 8/31/98 and terminated on 1/24/03.” (Wigdor Aff., Ex. 7.) However, the second fax that Ayco sent to the UWDC on May 12, 2003 clarified that, \"Sandra started employment on 8/31/98 and resigned on 1/24/03.” (Id., Ex. 8 (emphasis added).) . Essentially, the UWA maintains that it was not plaintiff's \"employer\" under Title VII or the NYSHRL, both of which prohibit an \"employer” from discriminating against employees. According to the UWA, plaintiff's Complaint contains only \"baseless allegations of a 'joint employer’ relationship between UWA and UWDC, and does not allege any involvement, direct or otherwise, by UWA” in plaintiff's allegedly discriminatory discharge. (UWA Mem. Supp. Summ. J. at 4.) . We note that the integrated enterprise doc- . trine is reserved for exceptional cases only and will generally be found only where there is sufficient evidence that the defendant had a \"hands on” relationship with the employee at issue. See Balut v. Loral Electronic Sys., 988 F.Supp. 339, 347 (S.D.N.Y.1997) (Conner, J.). Moreover, the burden on the employee can be extremely difficult, where, as here, plaintiff \"attempts to show not that a subsidiary is integrated with its parent, but rather,” that two seemingly independent corporations should be considered as one. See Regan, 1995 WL 413249, at *2, 1995 U.S. Dist. LEXIS 9682, at *5. . Plaintiff attempts to argue that joint employer liability exists automatically between the UWA and the UWDC merely" }, { "docid": "14357141", "title": "", "text": "(quoting Radio & Television Broadcast Technicians Local Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam)); see also Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir.1995). Generally, a “joint employer relationship may be found where there is sufficient evidence that a defendant had immediate control over another company’s employees,” and even more importantly, over the particular employee alleging discrimination. Rivera, 922 F.Supp. at 949 (noting that “[rjelevant factors include the commonality of hiring, firing, discipline, pay, insurance records and supervision”). Upon careful consideration of the factors listed above, we conclude that the UWA and the UWDC do not function as an integrated enterprise or joint employers. Consequently, we hold that the UWA is not plaintiffs “\"employer” for purposes of Title VII and the NYSHRL. First, plaintiff has failed to demonstrate an interrelation of operations between the UWA and the UWDC. As plaintiff correctly notes, the UWDC is a member organization of the UWA, which means that it must comply with certain ethical and not-for-profit standards and pay annual membership dues. (UWA Rule 56.1 Stmt. ¶ 8; PI. Mem. Opp. Summ. J. at 7-10.) Plaintiff also notes that the UWA licenses the use of the United Way logo and trade name to member organizations and that such use is subject to certain guidelines and restrictions related to maintaining a consistent representation to the general public. (PI. Mem. Opp. Summ. J. at 7-10.) Additionally, plaintiff notes that the UWA provides member organizations ' with access to broad-based services such as electronic and web-based practice, communication, employment, marketing and education materials. (Id.) However, these assertions offer little, if any, weight for purposes of the present inquiry. We find more persuasive the fact that the UWA and the UWDC never shared a payroll system, accounting records, a bank account or line of credit, advertising budget, telephone line or office space. (PI. Rule 56.1 Stmt. ¶¶26, 40-42, 46, 47, 57-60.); Tatum v. Everhart, 954 F.Supp. 225, 228 (D.Kan.1997) (noting that the aforementioned factors have been recognized as indicia of interrelatedness for purposes" }, { "docid": "14357138", "title": "", "text": "rests on the movant to demonstrate 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). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the nonmovant must go beyond the pleadings and “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court’s role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994). II. Defendant UWA The UWA contends that summary judgment is warranted because plaintiff is unable to show either: (1) that the UWA employed her directly or as a joint employer; or (2) that the UWA took any adverse action against her that could support a claim for discrimination. (Id. at 3.) The UWA also contends that plaintiffs own testimony demonstrates that the UWA did not engage in any violation of the FCRA. (Id. at 4.) It is undisputed that plaintiff was not directly employed by the UWA. Therefore, the issue is whether the UWA was sufficiently integrated with the UWDC so that they were operating as joint employers with respect to plaintiff. There are several ways for a court to assess whether “a defendant is an ‘employer’ within the meaning of Title VII and other employment discrimination statutes.” Rivera v. Puerto Rican Home Attendants Serv., Inc., 922 F.Supp. 943, 949 (S.D.N.Y.1996) (noting that the various formulations all focus on the amount of control or supervision a defendant exerts over" }, { "docid": "14357160", "title": "", "text": "both of which prohibit an \"employer” from discriminating against employees. According to the UWA, plaintiff's Complaint contains only \"baseless allegations of a 'joint employer’ relationship between UWA and UWDC, and does not allege any involvement, direct or otherwise, by UWA” in plaintiff's allegedly discriminatory discharge. (UWA Mem. Supp. Summ. J. at 4.) . We note that the integrated enterprise doc- . trine is reserved for exceptional cases only and will generally be found only where there is sufficient evidence that the defendant had a \"hands on” relationship with the employee at issue. See Balut v. Loral Electronic Sys., 988 F.Supp. 339, 347 (S.D.N.Y.1997) (Conner, J.). Moreover, the burden on the employee can be extremely difficult, where, as here, plaintiff \"attempts to show not that a subsidiary is integrated with its parent, but rather,” that two seemingly independent corporations should be considered as one. See Regan, 1995 WL 413249, at *2, 1995 U.S. Dist. LEXIS 9682, at *5. . Plaintiff attempts to argue that joint employer liability exists automatically between the UWA and the UWDC merely because they have become associated with each other via a contractual relationship. However, plaintiff has confused the aforementioned concept, which is a description of the type of entities that may be held up to scrutiny under the joint employer doctrine, for the actual inquiry itself which, as discussed supra, focuses on whether one entity has immediate control over the other entity's employees. See Rivera, 922 F.Supp. at 949 (quoting NLRB v. Solid Waste Serv., Inc., 38 F.3d 93 (2d Cir.1994)). . We note that many courts consider centralized control of labor relations to be the most important factor in this type of inquiry. See Cook, 69 F.3d at 1241 (\"We focus our inquiry ... on the second factor, centralized control of labor relations.”); see also Laurin v. Pokoik, No. 02 Civ.1938, 2004 WL 513999, at *6 (S.D.N.Y. Mar. 15, 2004), 2004 U.S. Dist. LEXIS 4066, at *19 (\"Centralized control over labor relations, the most important prong in the single-employer inquiry, can include such factors as whether the companies have separate human-resources departments and whether the" }, { "docid": "14357140", "title": "", "text": "another company’s employees). One approach used by this Court and other courts in this Circuit, often called the “integrated enterprise” approach, seeks to determine whether two entities are “so interrelated that they may be treated as a ‘single employer’ for the purpose of Title VII.” Id.; see also Arculeo v. On-Site Sales & Marketing, LLC, 321 F.Supp.2d 604, 608 (S.D.N.Y.2004) (Conner, J.) (noting that the joint employer doctrine is analytically similar to the single employer doctrine). The integrated enterprise approach “can enable an employee to hold two or more nominally separate business entities accountable as a single entity under anti-discrimination laws .... ” Regan v. In the Heat of the Nite, Inc., No. 93 Civ. 862, 1995 WL 413249, at *2 (S.D.N.Y. July 12, 1995), 1995 U.S. Dist. LEXIS 9682, at *5. Under the -integrated enterprise approach courts consider four factors to uncover evidence of: (1) interrelated operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership, between two entities. See Russo v. Lightning Fulfillment, Inc., 196 F.Supp.2d 203, 207 (D.Conn.2002) (quoting Radio & Television Broadcast Technicians Local Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam)); see also Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir.1995). Generally, a “joint employer relationship may be found where there is sufficient evidence that a defendant had immediate control over another company’s employees,” and even more importantly, over the particular employee alleging discrimination. Rivera, 922 F.Supp. at 949 (noting that “[rjelevant factors include the commonality of hiring, firing, discipline, pay, insurance records and supervision”). Upon careful consideration of the factors listed above, we conclude that the UWA and the UWDC do not function as an integrated enterprise or joint employers. Consequently, we hold that the UWA is not plaintiffs “\"employer” for purposes of Title VII and the NYSHRL. First, plaintiff has failed to demonstrate an interrelation of operations between the UWA and the UWDC. As plaintiff correctly notes, the UWDC is a member organization of the UWA, which means that it must comply with certain ethical" } ]

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

[ { "docid": "22280324", "title": "", "text": "injury, but the new allegations also arose from those he had made in his previous lawsuit. Shortly after filing his lawsuit, Owens notified the court he had been transferred to another prison. The district court denied IFP status, relying on its determination in the first lawsuit that Owens was three-strikes barred. The court further found that Owens did not qualify under section 1915(g)’s imminent-danger exception, noting that one of his alleged concerns about his safety was moot, given his transfer to another prison. The three-strikes determination is relevant to both appeals, and thus we grant Owens’s motion to consolidate the appeals. We have reviewed docket sheets and orders in the cases the district court listed as strikes in the first case. See Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005) (reviewing de novo district court’s interpretation and application of § 1915(g)). The first case was dismissed without prejudice for failure to exhaust administrative remedies; such a dismissal is not a strike under section 1915(g). See Newingham v. Westbrook, 140 Fed.Appx. 634 (8th Cir.2005) (unpublished per cu-riam); see also Snider v. Melindez, 199 F.3d 108, 112 (2d Cir.1999). The dismissal of the second case as frivolous under 28 U.S.C. § 1915A(b) counted as a strike, but this court’s summary affirmance under Eighth Circuit Rule 47A(a) did not. See 28 U.S.C. § 1915(g) (describing a strike as “an action or appeal ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim”); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996) (only dismissal of appeal as frivolous counts as strike, whereas affir-mance of dismissal for frivolousness does not); Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999) (same). Because we find that Owens has only one strike, we grant his motion for leave to proceed IFP in both appeals, leaving fee-collection details to the district court, see Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir.1997) (per curiam). Neither case was subject to dismissal under section 1915(g). We note that, in a footnote in the case underlying appeal No." }, { "docid": "8400705", "title": "", "text": "despite the fact that other related claims in the same action proceed to adjudication on the merits. The district court concluded these prior split cases did result in a strike. Mr. Turley contends that the court’s application of the three-strikes limitation on a claim-by-claim basis is contrary to the plain language of the statute. He further challenges the district court’s finding that he was not in imminent danger. See 28 U.S.C. § 1915(g); Ciarpaglini v. Saini 352 F.3d 328, 330-31 (7th Cir.2003). We review de novo a district court’s application of the PLRA’s three-strikes limitation. Ciarpaglini 352 F.3d at 330; Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 811 (7th Cir.1998). “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985); see also Ortega v. Holder, 592 F.3d 738, 743 (7th Cir.2010); United States v. Olofson, 563 F.3d 652, 658 (7th Cir.2009). Turning to that language, § 1915(g) prohibits a prisoner from proceeding IFP if he has a history of frivolous litigation: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g) (emphasis added). Section 1915(g) literally speaks in terms of prior actions that were dismissed as frivolous, malicious or for failure to state a claim. The statute does not employ the term “claim” to describe the type of dismissal that will incur a strike. “Action” and “claim” have well-defined meanings in the pleading context. See Fed.R.Civ.P. 3 (providing that a civil “action”" }, { "docid": "8908154", "title": "", "text": "is identical to that of § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding” if he has accumulated three strikes). We now hold that, if a mandamus petition arising from an underlying civil case is dismissed as frivolous, that dismissal counts as a “strike” for purposes of § 1915(g). Accordingly, Jacobs is hereby informed that the dismissal of this mandamus action as frivolous counts as a strike for purposes of § 1915(g). We caution Jacobs that once he accumulates three strikes, he may not proceed IFP either in any civil action or in any appeal of a civil action, including a mandamus petition challenging district court action in an underlying civil suit, which is filed while he is incarcerated or detained in any facility, unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). IFP GRANTED; PETITION FOR MANDAMUS DISMISSED AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED. . The nature of the underlying action, determines whether the fee requirements of the PLRA are to apply in mandamus cases. In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997). Because the underlying action here is a civil case, the PLRA fee requirements apply. See 28 U.S.C. § 1915(b). . This amount represents 20% of Jacobs's six-month average balance as shown on the in mate trust fund account statement he has submitted. . Jacobs's mandamus petition references three other pending cases in the Southern District of Texas, Nos. 4:99-CV-754, 4:99-CV-1979, and 4:99-CV-2720. Because a mandamus petition may reference only one district court action, we do not address Jacobs’s allegations concerning these other suits. We note that two of those cases have been the subject of other mandamus petitions in this court, Nos. 00-20217 and 99-21118, which have been administratively closed. . See also Santee v. Quinlan, 115 F.3d 355, 355 (5th Cir.1997) (holding that the fee provi sions of § 1915(a)(2) apply to mandamus actions that arise from civil actions in district court)." }, { "docid": "23338029", "title": "", "text": "the events or occurrences which underlie [the] claim.”); Hartman, 2010 WL 146319, at * 5 (observing that there were no factual allegations against one of the defendants). The Court thus dismissed the case on defendants’ Rule 12(b)(6) motions for failure to state a claim, see Hartman, 2010 WL 597401, at *3; Hartman, 2010 WL 146319, at *6-*7, we affirmed, and that dismissal represents Ball’s second strike. The District Court’s dismissal of Butts does not count as a strike because it was based on immunity. See Butts, No. 11-cv-1068 (M.D.Pa.) (Doc. 8) (dismissing the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)). However, we dismissed the appeal in Butts as frivolous, saying that “[a]n appeal is frivolous if it lacks an arguable basis either in law or in fact,” and that Ball’s appeal lacked any such basis because she had “alleged nothing suggesting that Judge Butts acted in the clear absence of all jurisdiction.” Butts, 445 Fed.Appx. at 458 (internal quotation marks omitted). Because frivolousness is an enumerated strike ground, our dismissal of Ball’s Butts appeal caused her to accrue her third strike. Ball therefore had three strikes at the time she commenced these appeals, which would generally bar her from proceeding IFP. B. Imminent Danger of Serious Physical Injury Even though Ball has three strikes with respect to both of the present appeals, she may proceed IFP if, at the time she filed her appeal, she was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Ball alleges danger of serious injury based on each of the types of mistreatment that she says she has suffered: burns and bruises sustained at the hands of prison personnel, denial of the use of a wheelchair or cane and of pain medication for her arthritis, lack of proper treatment for her vision, and exposure to mold and mace that has aggravated her asthma. “Before denying leave to proceed IFP, courts must review a frequent filer’s well-pled allegations to ensure that the prisoner is not in imminent danger” of serious physical injury. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003). “The imminent" }, { "docid": "12201983", "title": "", "text": "that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious, or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). As a general matter, when we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal “rang the PLRA bells of frivolous, malicious, or failure to state a claim.” Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013); see also Andrews, 398 F.3d at 1121; Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013); Thompson v. Drug Enf't Admin., 492 F.3d 428, 436 (D.C. Cir. 2007). El-Shaddai concedes that he has one strike. In Popke, the district court dismissed the case on the grounds that El-Shaddai failed to state a claim for relief under 42 U.S.C. § 1983. This appeal addresses whether the ten other cases were dismissed on one of the grounds enumerated in the statute. Those cases were disposed of on several different procedural postures: through denials of motions to proceed IFP, rulings that El-Shaddai had failed to exhaust his administrative remedies, grants of summary judgment in favor of the defendants, appellate affirmances, and dismissals for filing actions that should have been brought as habeas petitions. We address each category of dismissal in turn. I. Denial of IFP Status In four of the cases that are.potential strikes, El-Shaddai was denied IFP status on the basis that he had already accumulated three strikes. After he failed to pay the required filing fee, the cases were dismissed. We hold that this ground for dismissal does not count as" }, { "docid": "23010067", "title": "", "text": "that [1]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [proceedings in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. The plain language of § 1915(g) denies IFP status to prisoners who have had three or more civil actions dismissed as frivolous, malicious, or because the case fails to state a claim upon which relief can be granted, unless the inmate is in danger of serious physical injury. B. Rodriguez’s Status We have previously recognized that Rodriguez has had more than three claims dismissed as frivolous. See Rodriguez v. Cook, No. 96-36105, 1997 WL 723071, at *1 (9th Cir.1997) (affirming a district court dismissal under 28 U.S.C. § 1915(g) because “Rodriguez had at least six prior actions dismissed as frivolous”). In this case, Rodriguez does not allege that he is under imminent danger of serious physical injury and is therefore ineligible for IFP status. 28 U.S.C. § 1915(g). However, Rodriguez argues that this appeal should not be dismissed under § 1915(g) because, although he may have had three or more civil cases dismissed as frivolous, he has not had three or more appeals dismissed as frivolous. Rodriguez asks this court to read the three-strike rule to require three or more frivolous appeals before precluding IFP status for appeals. There is no support for this argument. Indeed, the plain language of § 1915(g) precludes IFP status for a “civil action or appeal” if the prisoner has brought three or more “action[s] or appeal[s].” § 1915(g) (emphasis added). Rodriguez has had more than three actions dismissed as frivolous and is therefore denied IFP status for civil actions or appeals. Moreover, Rodriguez’s interpretation of § 1915(g) would inhibit its purpose by giving" }, { "docid": "12201982", "title": "", "text": "96-CV-122B (S.D. Cal. Oct. 28, 1997) (Prunty I) listed several other strikes. The district court also found that El-Shaddai had not shown that he was entitled to the “imminent danger” exception to the threé-strikes rule. See 28 U.S.C. § 1915(g). In response to El-Shaddai’s motion for reconsideration, the district court explicitly found three additional cases to be strikes. Counting all of the cases cited in the district court’s two orders, as well as all of the cases identified as strikes in Prunty I, there are eléven potential strikes that the district court may have relied on in finding El-Shaddai ineligible for IFP status. El-Shaddai timely appealed the denial of his motion for reconsideration. ANALYSIS The PLRA provides that “[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [informa pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious, or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). As a general matter, when we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal “rang the PLRA bells of frivolous, malicious, or failure to state a claim.” Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013); see also Andrews, 398 F.3d at 1121; Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir." }, { "docid": "22932905", "title": "", "text": "no basis to avoid the insuperable bar of § 1915(g). He may, of course, file appeals after paying the required filing fee, as must other litigants. He may also litigate actions that involve imminent danger of serious physical injury. Adepegba, 103 F.3d at 388; Carson, 112 F.3d at 823. Prior to the date Patton brought the present appeal, he already had three strikes against him. We therefore DENY his motion to proceed IFP and DISMISS the appeal. DISMISSED. . We reserve the larger question whether, under the plain language of § 1915(g), a frivolous habe- as claim by itself counts as a strike for purposes of§ 1915(g). . At the time he filed suit, Patton was an inmate confined at the Jefferson Parish Correctional Center located in Gretna, Louisiana. . We remanded for reconsideration in light of Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 112-13 (4th Cir.1988), in which the Fourth Circuit held that an indefinite stay should only be considered as a last resort after all other alternatives, such as securing the prisoner’s presence at trial and trial by deposition, have been rejected. Id., slip op. at 1. . Before passage of the PLRA, § 1915(d) authorized the dismissal of frivolous or malicious actions. Carson v. Johnson, 112 F.3d 818, 819 n. 1 (5th Cir.1997). . Following de novo review, the district judge adopted as his own opinion the report and recommendation of the magistrate judge. All references to the holdings of the district court are to rulings of the magistrate judge adopted by the district judge. . This approach was proper. See Littles v. Board of Pardons & Paroles Div., 68 F.3d 122, 123 (5th Cir.l995)(per curiam)(holding that even if complaint is subject to dismissal under Heck, it remains appropriate for district court to resolve question of immunity before reaching Heck analysis); Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir.l995)(per curiam)(holding that despite applicability of Heck, district court may consider doctrine of absolute immunity as threshold matter in making § 1915(d) frivolousness determination). . He recommended that the district judge impose court costs and warn" }, { "docid": "21592718", "title": "", "text": "between the claims he seeks to pursue and the imminent danger he alleges. For the following reasons, we conclude that such a nexus exists when the three-strikes litigant seeks to redress an imminent danger of serious physical injury that is fairly traceable to a violation of law that the complaint asserts. * * * We begin, as we must, with the plain text of the Prison Litigation Reform Act (“PLRA”). United States v. Gayle, 342 F.3d 89, 92 (2d Cir.2003) (“Statutory construction begins with the plain text and, if that text is unambiguous, it usually ends there as well.”). Prisoners who do not have the financial resources to prepay docketing fees may proceed IFP. See 28 U.S.C. § 1915(a)-(b). However, the PLRA contains a “three-strikes” rule that bars prisoners from proceeding IFP if they have a history of filing frivolous or malicious lawsuits unless the exception for imminent danger applies. The statute reads as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). This Court has previously held that for a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint — in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed. Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.2002); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir.1999); Banos v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.1998) (per curiam); Ashley v. Dilworth, 147 F.3d 715, 717 (8th" }, { "docid": "22157703", "title": "", "text": "Carson’s complaint was properly characterized as a civil rights suit under 42 U.S.C. § 1983 and dismissed it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The court then sanctioned Carson $250 for his frequent filing of frivolous complaints and barred him from further filings under 28 U.S.C. § 1915(g). The district court granted Carson leave to proceed IFP on appeal. Pursuant to Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th Cir.1996), Carson has paid the partial filing fees required by 28 U.S.C. § 1915(a)-(b), as amended by the PLRA. II. A. Section 804(c) of the PLRA added § 1915(g), which prohibits a prisoner from proceeding IFP if he has had three actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim. See Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir.1996). This provision often is referred to as the ‘“three strikes’ provision.” Id. It states: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner, is under imminent danger of serious physical injury. B. In considering the effect of the “three strikes” provision, we first must determine whether Carson’s action falls under the PLRA’s definition of “a civil action or proceeding.” This requires us to determine (1) whether the PLRA applies to a habeas petition under 28 U.S.C. § 2254 and (2) whether Carson’s action is properly characterized as a habeas petition or a § 1983 suit. The PLRA requirements do not apply to habeas actions under 28 U.S.C. § 2255. See United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.1996). We gave three reasons for this conclusion. First, “habeas proceedings are often determined to be outside the reach of the phrase ‘civil action.’” Id. (quoting Santana v." }, { "docid": "22157712", "title": "", "text": "recreational activity for state prisoners,” Gabel v. Lynaugh, 835 F.2d 124, 125 n. 1 (5th Cir.1988) (per curiam), and prisoners have abused the judicial system in a manner that non-prisoners simply have not. Carson’s own lengthy litigation history is the strongest possible argument for the PLRA’s rationality. IV. We have dismissed, as frivolous, one appeal by Carson. See Carson v. Kent, No. 93-5462 (5th Cir. May 25, 1994) (per curiam) (unpublished). This counts as a “strike.” See Adepegba, 103 F.3d at 388. Twice, we have affirmed a district court’s dismissal, for frivolousness, of complaints filed by Carson. See Carson v. Hernandez, No. 91-1528, 949 F.2d 1158 (5th Cir. Nov. 22, 1991) (per curiam) (unpublished), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992); Carson v. Peterson, No. 91-2618, 949 F.2d 1158 (5th Cir. Nov. 20, 1991) (per curiam) (unpublished), cert. denied, 503 U.S. 990, 112 S.Ct. 1685, 118 L.Ed.2d 400 (1992). Now that these dismissals by the district court are final, they too count as strikes. See Adepegba, 103 F.3d at 387-88. Therefore, because Carson has at least three strikes, he may not proceed IFP in this or any other federal lawsuit which does not involve “imminent danger of serious physical injury.” He may resume any claims dismissed under § 1915(g) under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. See Adepegba, 103 F.3d at 388. The appeal is DISMISSED. . Before the passage of the Prison Litigation Reform Act (\"PLRA”) of 1995, Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 804(a), Pub.L. No. 104-134, 110 Stat. 1321 (1996) (to be codified at 28 U.S.C. § 1915), § 1915(d) authorized the dismissal of frivolous or malicious actions. . Whether he could appeal at all without obtaining a certificate of appealability, see 28 U.S.C. § 2253(c), as amended by § 102 of the AEDPA, is another question, one which we do not reach. . See Adarand Constructors, Inc. v. Pena,-U.S. -, -, 115 S.Ct. 2097, 2108, 132 L.Ed.2d 158 (1995) (stating that the Due Process Clause guarantees equal protection)." }, { "docid": "14005227", "title": "", "text": "Harrisburg County Police Department, 91 F.3d 451 (3d Cir. 1996), controls this case and allows us to equitably toll the two strikes that Millhouse has accrued pending our decision as to his IFP request. Thus, while I disagree with my colleagues’ interpretation of the Prisoner Litigation Reform Act (“PLRA”) and their conclusion that Heath II does not count as a strike, I agree that Millhouse only has one strike for the purpose of this appeal and thus his case should be remanded. DISCUSSION A. An IFP Action Commences with the Grant of IFP Status Section 1915(g) provides In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed qn the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. (emphases added). Millhouse filed his notice of appeal on May 26, 2015 and his request for IFP status on June 15, 2015. His subsequent strikes accrued after those dates when his complaints were dismissed—October 27, 2015 and February 24, 2016. See Coleman v. Tollefson, — U.S. —, 135 S.Ct. 1759, 191 L.Ed.2d 803 (2015) (strike accrues at dismissal). So when did Millhouse “bring” this appeal under the meaning of the PLRA? Was it May 26, 2015 when he filed it, or has it not yet 'begun because we have not granted him IFP status? This consideration sets up how to apply the three-strikes rule, as those strikes must constitute “prior occasions ... that [were] dismissed.” 28 U.S.C. § 1915(g) (emphasis added). If May 26, 2015 is the beginning date, the two strikes he has accrued since then cannot apply to bar him IFP status, On the other hand, if this appeal has yet to begin because his request for IFP status is pending, then those two strikes" }, { "docid": "22082478", "title": "", "text": "BALDOCK, Circuit Judge. Plaintiff Roily 0. Kinnell, a Kansas state prisoner appearing pro se, filed a civil rights complaint alleging that dismissals of previous federal court actions, in which he sought stays of state criminal proceedings and prison disciplinary proceedings, amounted to an unconstitutional denial of his access to the courts. The district court noted that Kinnell had filed more than three previous actions which had been dismissed as frivolous, and therefore determined that 28 U.S.C. § 1915(g) barred him from pursuing an action in forma pauperis (ifp). Later, the district court dismissed the action for failure to pay the filing fee. Kinnell now appeals the dismissal and the three-strikes ruling that prompted it. We affirm the dismissal. Moreover, we announce filing restrictions in addition to those imposed by § 1915(g). DISCUSSION Section 1915(g), the “three strikes” provision of the ifp statute applicable to indigent prisoners, “requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts may consider their civil actions and appeals.” White v. Colorado, 157 F.3d 1226, 1232 (10th Cir.1998). “The only exception” to the requirement applies to prisoners “in ‘imminent danger of serious physical injury.’” Id. (quoting 28 U.S.C. § 1915(g)). Kinnell does not contest that, while incarcerated, he has had three or more prior civil actions dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Further, he does not raise any specific or credible allegations of “imminent danger.” See id. (requiring specific, credible allegations of “imminent danger of serious physical harm”). Instead, he offers three alternate arguments for why he believes he should not be bound by the requirement: (1) his previous actions were not frivolous; (2) § 1915(g) is unconstitutional in that it interferes with his rights of equal protection, due process, and access to the courts; and (3) § 1915(g) is unconstitutionally vague “in that it does not specify what [tjhree or more prior oe[c]asions have been dismissed, i.e. how far back.” Motion to Show Cause for Appeal at ¶ 1. These arguments are unconvincing. First, we will not revisit the merits" }, { "docid": "14005196", "title": "", "text": "Clements, 688 F.3d 463, 465 (8th Cir. 2012); (2) whether the dismissal in [Doe] qualifies as a strike; see Ball, 726 F.3d at 460-63; (3) if these dismissals qualify as strikes, whether their timing precludes Appellant from proceeding in forma pauperis in this appeal; (4) if this Court decides that Appellant has three strikes, whether he is under imminent danger of serious physical injury for purposes of § 1915(g); and (5) if this Court decides that Appellant qualifies for in forma pauperis status on appeal, whether the District Court’s decision on appeal should be vacated. (A18-A19.) Millhouse did not object, and Stephen A.. Fogdall, Esq., and Emily J. Hanlon, Esq. were appointed as his pro bono counsel. II. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We possess appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review with respect to the proper interpretation of the PLRA and its three strikes rule. See, e.g., Ball, 726 F.3d at 455 n.11. III. 28 U.S.C. § 1915(g) limits a prisoner’s ability to obtain IFP status: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that 'was dismissed on the grounds that it is frivolous, malicious, or fails to' state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. In Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), we set forth our general approach for deciding what constitutes a strike under this provision of the PLRA: Thus, we adopt the following rule: a strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is “frivolous,” “malicious,” or “fails to state a claim” or (2) dismissed pursuant to a statutory provision or rule that is limited solely to- dismissals, for such reasons, including" }, { "docid": "8908153", "title": "", "text": "frivolousness determination and that Jacobs is hindering that consideration by filing numerous non-responsive pleadings. In such a circumstance, mandamus relief is inappropriate, and Jacobs’s request that we direct the district court to order service of process at this time is frivolous. The petition for a writ of mandamus is therefore DISMISSED AS FRIVOLOUS. We have previously held that a mandamus petition of this type is “not an independent civil action, but may be considered a type of appeal” for purposes of applying the fee provisions of § 1915(a)(2). In re Stone, 118 F.3d at 1034. We have also held that the three-strikes provision of the PLRA, 28 U.S.C. § 1915(g), applies to mandamus petitions arising from underlying civil actions such that a litigant who has accumulated three such strikes may not proceed under the PLRA, but must prepay the filing fee. See In re Critten-den, 143 F.3d 919, 920 (5th Cir.1998). The operative language of § 1915(a)(2) (“a prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding”) is identical to that of § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding” if he has accumulated three strikes). We now hold that, if a mandamus petition arising from an underlying civil case is dismissed as frivolous, that dismissal counts as a “strike” for purposes of § 1915(g). Accordingly, Jacobs is hereby informed that the dismissal of this mandamus action as frivolous counts as a strike for purposes of § 1915(g). We caution Jacobs that once he accumulates three strikes, he may not proceed IFP either in any civil action or in any appeal of a civil action, including a mandamus petition challenging district court action in an underlying civil suit, which is filed while he is incarcerated or detained in any facility, unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). IFP GRANTED; PETITION FOR MANDAMUS DISMISSED AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED. . The nature of the underlying action, determines whether the fee requirements" }, { "docid": "23313924", "title": "", "text": "overruling his objections to the magistrate judge’s orders striking three of his motions for preliminary injunctive relief and denying a motion for reconsideration. Having reviewed appellant’s numerous dismissals from this court and other courts, we conclude that he had three strikes countable in this court at the time he filed No. 09-1365. Therefore, appellant is barred by the “three strikes rule,” which requires prepayment of the entire filing fee in No. 09-1365 before we would consider it, unless he had made credible allegations that he was in “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). We conclude that appel lant has not met this condition precedent, and that he must prepay the filing fee before we will address the merits of his appeal in No. 09-1365. See Dubuc v. Johnson, 314 F.3d 1205, 1207-10 (10th Cir.2003). If he does not pay the fee and we do not reach the merits of his challenge to the dismissal with prejudice of his first amended complaint, then No. 09-1090, challenging an interlocutory order, will become moot. I. “Strikes” under 28 U.S.C. § 1915(g) A. Evaluation of Countable Strikes Under the PLRA, prisoners obtain a “strike” against them for purposes of future ifp eligibility when their “action or appeal in a court of the United States ... was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.... ” 28 U.S.C. § 1915(g). “[T]he ‘three strikes’ provision of the ifp statute applicable to indigent prisoners[ ] requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts may consider their civil actions and appeals.” Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir.2001) (quotation omitted). To meet the only exception to the prepayment requirement, a prisoner who has accrued three strikes must make “specific, credible allegations of ‘imminent danger[.]’ ” Id. at 1127-28 (quoting § 1915(g)). Appellant has filed numerous civil rights cases in several district courts, numerous civil appeals in several circuit courts, and nine petitions for writ of certiorari (at this counting) in civil cases" }, { "docid": "23313935", "title": "", "text": "held that a dismissal for failure to prosecute was a strike where the circuit court had previously declared the appeal frivolous when it denied the prisoner’s motion to proceed ifp. The D.C. Circuit rejected as “hypertechnical” the prisoner’s argument that the appeal was “formally dismissed ... for failure to prosecute, rather than for frivolousness[, because b]ut for the judge declaring it frivolous, [the prisoner’s] appeal would have gone forward.” Id. In our view, the Seventh Circuit’s determination that the appeal in Government of the State of Israel was frivolous when it denied appellant’s motion for ifp can properly be termed the “but for” cause of that court’s subsequent dismissal, and we agree with the D.C. Circuit’s conclusion that it would be “hypertechnical” to hold that the resulting dismissal for nonpayment was not a strike. See Thompson, 492 F.3d at 433; see also O’Neal v. Price, 531 F.3d 1146, 1152 (9th Cir.2008) (holding that a “district court has ‘dismissed’ the prisoner’s case for purposes of § 1915(g) when the court denies the prisoner’s application to file the action without prepayment of the filing fee on the ground that the complaint is frivolous, malicious or fails to state a claim, and thereupon terminates the complaint” (quoting § 1915(g)). This strike also counts from May 26, 2009, when the Supreme Court dismissed appellant’s petition for writ of certiorari. See Hafed v. State of Israel, — U.S. -, 129 S.Ct. 2439, 174 L.Ed.2d 226 (2009) (Mem.) (No. 08-9403). Having concluded that appellant had three clear strikes as of May 26, 2009, before he filed No. 09-1365 on August 17, 2009, we do not address his arguments in that appeal on their merits. See Dubuc, 314 F.3d at 1208-10. B. Imminent-Danger Exception There is only one exception to the prepayment requirement in § 1915(g), Kinnell, 265 F.3d at 1127-28, and it applies to a prisoner who “is under imminent danger of serious physical injury!,]” § 1915(g). To meet that exception, appellant was required to make “specific, credible allegations of imminent danger of serious physical harm[.]” Kinnell, 265 F.3d at 1127-28 (quotations omitted). Every circuit to" }, { "docid": "8088635", "title": "", "text": "the differentiation between inmates and non-inmates under § 1915(g) has a rational basis because inmates have substantially more free time than non-inmates and are provided with food, housing, paper, postage, and legal assistance); Rivera, 144 F.3d at 728 (holding that Congress has a rational basis to believe the goal of curtailing abusive prison litigation would be furthered by separating frequent-filer indigent inmates from other indigent inmates). III. Because § 1915(g) survives the equal protection challenge before us, we conclude that the District Court should have dismissed Higgins IV under § 1915(g) and that the court erred in granting Higgins IFP status on appeal and thus the appeal in Higgins IV should be dismissed without addressing its merits. Higgins does not contend that he is under imminent danger of serious physical injury, and he does not contest Carpenter’s assertion that the dismissals and affir-mances in Higgins II and Higgins III were “strikes.” Cf. Rivera, 144 F.3d at 721-22, 730 (holding that an inmate who challenges district court’s dismissal under three-strikes rule has burden to furnish appellate court with sufficient record information about challenged “strikes”). Although affirmance of a district court’s dismissal of a complaint as frivolous does not automatically make the appeal frivolous, see Henderson v. Norris, 129 F.3d 481, 485 n. 4 (8th Cir.1997) (per curiam), we find that the district court dismissals and our summary affirmances in Higgins II and Higgins III qualify as four strikes, as these actions were based on the same claims and against the same defendants as in Higgins I. Cf. Aziz v. Burrows, 976 F.2d 1158,1158 (8th Cir.1992) (affirming district court’s dismissal of inmate’s duplicative § 1983 complaint as frivolous). Likewise, the District Court in Early v. Harmon erred in declining to grant defendants’ motion to deny Early IFP status, as it is uncontested that he had three strikes and was not in imminent danger of serious physical injury. IV. Accordingly, we dismiss Higgins’s appeal, and we reverse and remand to the District Courts with instructions to deny IFP status to Higgins and to Early under § 1915(g). . Some of these courts also" }, { "docid": "23287460", "title": "", "text": "PER CURIAM. Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that defendant prison officials caused him to suffer injury when they repeatedly placed him in proximity to inmates on his enemy alert list. The district court denied him in fotma pauperis (IFP) status under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and Ashley appeals. We reverse and remand for further proceedings. In denying leave to proceed IFP, the district court found that Ashley had made the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least three prior complaints dismissed as frivolous, had not alleged any facts to indicate he was under imminent danger of serious physical injury, and was thus ineligible for IFP status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner has had three prior actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim, “unless the prisoner is under imminent danger of serious physical injury”). While denying Ashley leave to file his complaint IFP, the district court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he is in imminent danger of physical injury by defendants’ repeated placement of him around his enemies. The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by the Prison Litigation Reform Act of 1995. The purpose of the Act was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.1997) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). Section 1915(g)) denies the installment payment method to those prisoners who have had three previous cases or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted (“three strikes”). We stress that the Act does not close" }, { "docid": "23324940", "title": "", "text": "the District Court erred in concluding that his complaint did not allege an imminent danger of serious physical injury, and (b) that it abused its discretion in denying leave to file an amended complaint. Because Defendants were never served, they are not parties to this appeal. In their stead, the State of New York (“the State”) filed an amicus brief to address the issue of whether the dismissals of a district court case and an appeal therefrom count as one or two strikes. The State argues that § 1915(g) treats the dismissal of suits and of their appeals as separate strikes. The amicus brief does not address the other issues raised in Chavis’s appeal: whether Chavis alleged an imminent danger and whether his motion to amend was properly denied. II. Discussion A. Standard of Revieio We review de novo a district court’s ruling pursuant to 28 U.S.C. § 1915(g), Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir.2007), and review the denial of leave to amend a complaint for abuse of discretion, McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). B. Section 1915(g)’s “Three Strikes” Rule As amended by the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S.C. § 1915 allows indigent prisoners to defer paying filing fees under a structured payment plan. See 28 U.S.C. § 1915(b). Section 1915(g), however, denies this option to so-called “frequent filers,” prisoners who have repeatedly brought legal claims dismissed as frivolous, malicious, or not stating a claim; such litigants must pay the filing fee upfront. The provision reads: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. Id. § 1915(g). At" } ]

[ { "docid": "19628944", "title": "", "text": "judicial Power of the United States,\" Art. III, § 1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Although the Constitution does not fully explain what is meant by \"[t]he judicial Power of the United States,\" Art. III, § 1, it does specify that this power extends only to \"Cases\" and \"Controversies,\" Art. III, § 2. And \" '[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.' \" Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. See id., at 820, 117 S.Ct. 2312. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In this way, \"[t]he law of Article III standing ... serves to prevent the judicial process from being used to usurp the powers of the political branches,\" Clapper v. Amnesty Int'l USA, 568 U.S. ----, ----, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013); Lujan, supra, at 576-577, 112 S.Ct. 2130and confines the federal courts to a properly judicial role, see Warth, supra, at 498, 95 S.Ct. 2197. Our cases have established that the \"irreducible constitutional minimum\" of standing consists of three elements. Lujan, 504 U.S., at 560, 112" } ]

[ { "docid": "12652732", "title": "", "text": "of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 192 (2d Cir.2014), which occurs when the court’s decision either “rests on an error of law ... or a clearly erroneous factual finding, or ... its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions,” Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir.2007). I. Standing The district court ruled that appellants had standing to bring this case. Clapper, 959 F.Supp.2d at 738. The government argues that the district court’s ruling was erroneous, contending that appellants lack standing because they have not demonstrated that any of the metadata associated with them have been or will be actually reviewed by the government, and have not otherwise identified an injury that is sufficiently concrete or imminent to confer standing. We recognize that “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Clapper v. Amnesty Int’l USA,'— U.S.-, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013), quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854,164 L.Ed.2d 589 (2006) (alteration in original). In order to meet that requirement, plaintiffs must, among other things, establish that they have standing to sue. Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). “Standing under Article III of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010); see also Amnesty Int’l, 133 S.Ct. at 1147 (collecting cases). The Supreme Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘[ajllegations of possible future injury5 are not sufficient.” Amnesty Int’l, 133 S.Ct. at 1147, quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d" }, { "docid": "21369383", "title": "", "text": "the Supreme Court has explained, “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int'l, USA — U.S.-, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (brackets omitted); see also Summers v. Earth Island Inst., 555 U.S. 488, 492-93, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (“This limitation is founded in concern about the proper — and properly limited — role of the courts in a democratic society.” (quotation omitted)). The narrow scope of Article III, “which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014); see also Hollingsworth, 133 S.Ct. at 2659 (“[The case-or-controversy requirement] is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” (emphasis in original)). Two related doctrines, standing and mootness, keep federal courts within their constitutional bounds. Standing concerns whether a plaintiffs action qualifies as a case or controversy when it is filed; mootness ensures it remains one at the time a court renders its decision. The Supreme Court has described mootness “as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 48, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quotations omitted). Failure to satisfy the requirements of either doctrine places a dispute outside the reach of the federal courts. See Already, 133 S.Ct. at 726 (“We have repeatedly held that an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” (quotation omitted)). We discuss standing and mootness in turn. 1. Standing Standing “requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake" }, { "docid": "19539269", "title": "", "text": "60, 62 (C.A.2 2016). Acknowledging a division among the Courts of Appeals on whether an intervenor of right must meet the requirements of Article III, the Second Circuit sided with the courts that have held that Article III standing is not required. Id., at 64-65. We granted certiorari. 580 U.S. ----, 137 S.Ct. 810, 196 L.Ed.2d 596 (2017). II Article III of the Constitution limits the exercise of the judicial power to \"Cases\" and \"Controversies.\" § 2, cl. 1. This fundamental limitation preserves the \"tripartite structure\" of our Federal Government, prevents the Federal Judiciary from \"intrud[ing] upon the powers given to the other branches,\" and \"confines the federal courts to a properly judicial role.\" Spokeo, Inc. v. Robins, 578 U.S. ----, ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). \"If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.\" DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). \"Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.\" Spokeo, supra, at ----, 136 S.Ct., at 1547. \"The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.\" Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Our standing doctrine accomplishes this by requiring plaintiffs to \"alleg[e] such a personal stake in the outcome of the controversy as to ... justify [the] exercise of the court's remedial powers on [their] behalf.\" Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (internal quotation marks omitted). To establish Article III standing, the plaintiff seeking compensatory relief must have \"(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.\" Spokeo, supra, at ----, 136 S.Ct., at 1547. \"Absent such" }, { "docid": "18997121", "title": "", "text": "475 U.S. at 542-43,106 S.Ct. 1326 (internal quotation marks and citations omitted). Since these are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each of these elements must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A “federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Moreover, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See National Wildlife Federation, 497 U.S. at 883-89, 110 S.Ct. 3177. While generalized allegations of injury may suffice at the pleading stage, a plaintiff can no longer rest on such “mere allegations” in response to a summary judgment motion, but must set forth “specific facts” by affidavit or other evidence. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130; see also Fed.R.Civ.P. 56(e). As the Supreme Court concluded, “because it is not sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings ... it follows that the necessary factual predicate may not be gleaned from the briefs and arguments themselves.” Bender, 475 U.S. at 547, 106 S.Ct. 1326 (internal quotation marks and citations omitted). The case-or-controversy requirement under Article III ensures that “the Federal Judiciary respects the proper-and properly limited-role of the courts in a democratic society.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1860, 164 L.Ed.2d 589 (2006) (ROBERTS, C.J.) (internal quotation marks and citation omitted). Thus, the Court has stressed that “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases" }, { "docid": "18997122", "title": "", "text": "pleading stage, a plaintiff can no longer rest on such “mere allegations” in response to a summary judgment motion, but must set forth “specific facts” by affidavit or other evidence. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130; see also Fed.R.Civ.P. 56(e). As the Supreme Court concluded, “because it is not sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings ... it follows that the necessary factual predicate may not be gleaned from the briefs and arguments themselves.” Bender, 475 U.S. at 547, 106 S.Ct. 1326 (internal quotation marks and citations omitted). The case-or-controversy requirement under Article III ensures that “the Federal Judiciary respects the proper-and properly limited-role of the courts in a democratic society.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1860, 164 L.Ed.2d 589 (2006) (ROBERTS, C.J.) (internal quotation marks and citation omitted). Thus, the Court has stressed that “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). The standing doctrine serves “to identify those disputes which are appropriately resolved through the judicial process.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (quoting Whitmore, 495 U.S. at 155, 110 S.Ct. 1717). “[Fjederal courts sit solely, to decide on the rights of individuals and must refrain from passing upon the constitutionality of an act unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.” Hein v. Freedom From Religion Foundation, Inc., - U.S. -, 127 S.Ct. 2553, 2562, 168 L.Ed.2d 424 (2007) (ALITO, J.) (internal quotations marks and citations omitted and emphasis added). III. Applying the tri-partite test for standing&emdash;injury, causation, and likelihood of relief, see Bender, 475 U.S. at 542, 106 S.Ct. 1326 and Lyons, infra&emdash;we turn" }, { "docid": "23381619", "title": "", "text": "review the District Court’s denial of Toll Brothers’ request for leave to file an amended complaint for abuse of discretion. Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir.2007). III. Article III of the Constitution limits federal “judicial Power” to the adjudication of “Cases” or “Controversies.” U.S. Const, art. Ill, § 2. This limitation is essential to our system of separated powers. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473-74, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); see also Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 127 S.Ct. 2553, 2570, 168 L.Ed.2d 424 (2007) (plurality opinion). In cases involving state or local government, “it also serves to protect and preserve the principle of dual sovereignty” embedded in our founding charter. Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 300 (3d Cir.2003). Without a case-or-controversy requirement, the judicial power would “ ‘extend[ ] to every question under the constitution,’ ” and “ ‘the other departments would be swallowed up by the judiciary.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting 4 Papers of John Marshall 95 (C. Cullen ed.1984)) (emphasis removed). With the case-or-controversy requirement, on the other hand, courts stay confined to their “proper—and properly limited—role,” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), of “deciding] on the rights of individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). There is, therefore, “ ‘[n]o principle ... more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Courts enforce the ease-or-controversy requirement through the several jus-ticiability doctrines that “ ‘cluster about Article III.’ ” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d" }, { "docid": "21369382", "title": "", "text": "case. A. Standing and Mootness The U.S. Constitution delegates certain powers to each branch of the federal government and places limits on those powers. Article III vests “[t]he judicial Power of the United States ... in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill, § 1. Federal courts exercising this authority are “confine[d] ... to deciding actual ‘Cases’ or ‘Controversies.’ ” Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013) (quoting U.S. Const, art. Ill, § 2). “In our system of government, courts have no business deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., — U.S. -, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (quotation omitted). “As used in the Constitution, those words do not include every sort of dispute, but only those historically viewed as capable of resolution through the judicial process.” Hollingsworth, 133 S.Ct. at 2659 (quotation omitted). As the Supreme Court has explained, “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int'l, USA — U.S.-, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (brackets omitted); see also Summers v. Earth Island Inst., 555 U.S. 488, 492-93, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (“This limitation is founded in concern about the proper — and properly limited — role of the courts in a democratic society.” (quotation omitted)). The narrow scope of Article III, “which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014); see also Hollingsworth, 133 S.Ct. at 2659 (“[The case-or-controversy requirement] is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” (emphasis in original)). Two" }, { "docid": "23381620", "title": "", "text": "up by the judiciary.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting 4 Papers of John Marshall 95 (C. Cullen ed.1984)) (emphasis removed). With the case-or-controversy requirement, on the other hand, courts stay confined to their “proper—and properly limited—role,” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), of “deciding] on the rights of individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). There is, therefore, “ ‘[n]o principle ... more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Courts enforce the ease-or-controversy requirement through the several jus-ticiability doctrines that “ ‘cluster about Article III.’ ” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1982) (Bork, J., concurring)). They include standing, ripeness, mootness, the political-question doctrine, and the prohibition on advisory opinions. See DaimlerChrysler, 547 U.S. at 352, 126 S.Ct. 1854; Erwin Chemerinsky, Federal Jurisdiction § 2.1 (5th ed.2007). “[PJerhaps the most important of these doctrines” is standing. Allen, 468 U.S. at 750, 104 S.Ct. 3315. The “irreducible constitutional minimum” of Article III standing consists of three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered a “concrete,” “particularized” injury-in-fact, which must be “actual or imminent, not conjectural or hypothetical.” Id. (quotation marks omitted). Second, that injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (quotation marks and alterations omitted). Third, the plaintiff must establish that a favorable decision likely would redress the injury. Id.; see AT & T Commc’ns of N.J., Inc. v." }, { "docid": "21395994", "title": "", "text": "those powers specifically granted to them by Congress or directly by the United States Constitution. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has subject matter jurisdiction to hear the case. See Shuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008). In deciding whether to grant a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court must “accept all of the factual allegations in [the] complaint as true.” Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 54 (D.C.Cir.2005) (quoting United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The Court may also consider matters outside the pleadings, and may rest its decision on its own resolution of disputed facts. See Herbert v. Nat’l Acad. of Sci., 974 F.2d 192, 197 (D.C.Cir.1992). B. Standing As a threshold matter, Defendants argue that Plaintiffs do not have standing. Article III of the Constitution limits the jurisdiction of federal courts to certain “Cases” and “Controversies.” See U.S. Const, art. 3, § 2. “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589, (2006)). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” Id. (internal quotation marks and citation omitted). “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact ... which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by" }, { "docid": "5980248", "title": "", "text": "In such circumstances, the PBGC may order the statutory trustee to return all or part- of the plan’s assets to the plan administrator so that the plan may resume normal functioning. Id. Thus, EBISA does not give the PBGC in its capacity as guarantor any powers of plan administration. Rather, these powers are given to the “trustee,” which may or may not be the PBGC. As guarantor, then, the PBGC’s function with respect to a terminated plan is limited to calculating the amount necessary to guarantee each participant’s non-forfeitable benefits and paying that amount to the trustee. B. We review questions of standing de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir.2005). Because “federal courts ... have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto,” a plaintiff must possess both Article III and statutory standing, or the federal court to which the plaintiff has come has no power to decide his case. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). To this end, “[e]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Id. (internal quotation marks omitted). And as the party invoking federal jurisdiction, Ruffin bears the burden of establishing his standing. DaimlerChrysler Corp. v. Cuno, — U.S. -, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As the Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)(internal quotation marks omitted). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct." }, { "docid": "10731229", "title": "", "text": "“[w]e have ‘an obligation to assure ourselves’ of litigants’ standing under Article III.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d -610 (2000)); see also In re Deepwater Horizon, 739 F.3d 790, 798 (5th Cir.2014). We exercise plenary review over a threshold question of law, such as that presented by an Article III standing challenge. McNair v. Synapse Grp. Inc., 672 F.3d 213, 222 n. 9 (3d Cir.2012). 1. Article III governs constitutional standing and limits our jurisdiction to actual “cases or controversies.” U.S. Const, art. Ill, § 2. Article III requires a plaintiff to demonstrate “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341,189 L.Ed.2d 246 (2014) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Constitutional standing ensures that litigants are truly adverse to one another and are not merely “suitors in the courts of the United States.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 476, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013); see also William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 222 (1988) (explaining that a concrete dispute “informs the court of" }, { "docid": "21395995", "title": "", "text": "standing. Article III of the Constitution limits the jurisdiction of federal courts to certain “Cases” and “Controversies.” See U.S. Const, art. 3, § 2. “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589, (2006)). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” Id. (internal quotation marks and citation omitted). “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact ... which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, citations, and footnote omitted). “A plaintiffs burden to demonstrate standing grows heavier at each stage of the litigation.” Osborn v. Visa Inc., No. 14-7004, 797 F.3d 1057, 1063, 2015 WL 4619874, at *4 (D.C.Cir. Aug. 4, 2015) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presume that the general allegations embrace those specific facts which are necessary to support the claim.’ ” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Our Court of Appeals recently reiterated and emphasized the requirement that courts must “accept as true all material allegations of the complaint” at the pleadings stage. Osborn, 797 F.3d at 1064, 2015 WL 4619874, at *5 (internal citation omitted). In Osborn, the" }, { "docid": "8900168", "title": "", "text": "standing. See Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir.2011). Because we hold that Virginia lacks standing, we cannot reach the question of whether the Constitution authorizes Congress to enact the individual mandate. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). II. Article III of the Constitution confers on federal courts the power to resolve only “cases” and “controversies.” A federal court may not pronounce on “questions of law arising outside” of such “cases and controversies.” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. -, 131 S.Ct. 1436, 1442, 179 L.Ed.2d 523 (2011). To do so “would be inimical to the Constitution’s democratic character” and would weaken “the public’s confidence in an unelected but restrained Federal Judiciary.” Id. The standing doctrine prevents federal courts from transgressing this constitutional limit. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, to ensure that there exists the requisite “case” or “controversy,” a plaintiff must satisfy the three requirements that combine to form the “irreducible constitutional minimum of standing.” Id. at 560, 112 S.Ct. 2130. Specifically, a plaintiff must demonstrate that: (1) it has “suffered an injury in fact”; (2) there exists a “causal connection between the injury and the conduct complained of’; and (3) a favorable judicial ruling will “likely” redress that injury. Id. (internal quotations omitted). The burden rests with the party invoking federal jurisdiction, here Virginia, to “establish[ ] these elements.” Id. at 561, 112 S.Ct. 2130. Only if Virginia meets the burden of establishing standing does the Constitution permit a federal court to address the merits of the arguments presented. See Steel, 523 U.S. at 101-02,. 118 S.Ct. 1003. Standing here turns on whether Virginia has suffered the necessary “injury in fact.” To satisfy that requirement, Virginia must demonstrate that the individual mandate in the Affordable Care Act “inva[desj” its “legally protected interest,” in a manner that is both “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal" }, { "docid": "9170623", "title": "", "text": "challenges to the federal regulations. \"[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.\" DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). As one aspect of the case-or-controversy requirement, plaintiffs must \"establish that they have standing to sue.\" Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). \"[T]he standing inquiry [is] focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.\" Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). \"The existence of standing is a legal question, which we review de novo.\" Kerin v. Titeflex Corp., 770 F.3d 978, 981 (1st Cir. 2014). \"The party invoking federal jurisdiction bears the burden of establishing\" that it has standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There are three requirements for Article III standing. A plaintiff must demonstrate (1) an injury in fact which is \"concrete and particularized\" and \"actual or imminent, not conjectural or hypothetical,\" (2) that the injury is \"fairly traceable to the challenged action,\" and (3) that it is \"likely ... that the injury will be redressed by a favorable decision.\" Id. at 560, 112 S.Ct. 2130 (internal quotation marks and alterations omitted). \"In response to a summary judgment motion,\" the \"specific facts\" set forth by a plaintiff \"will be taken as true.\" Id. at 561, 112 S.Ct. 2130. The Commonwealth's primary argument for standing is based on a fiscal injury to itself. In this circuit, \"[i]t is a bedrock proposition that 'a relatively small economic loss -- even an identifiable trifle -- is enough to confer standing.' \" Katz v. Pershing, LLC, 672 F.3d 64, 76 (1st Cir. 2012) (quoting Adams v. Watson, 10 F.3d 915, 924 (1st Cir. 1993) ); see" }, { "docid": "23506034", "title": "", "text": "plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit). Sprint Commc’ns Co., 128 S.Ct. at 2535 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130) (further quotation, alterations omitted); see also Cortes, 508 F.3d at 161. “In this manner does Art. Ill limit the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’ ” Valley Forge Christian Coll., 454 U.S. at 472, 102 S.Ct. 752 (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). “Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects the proper — and properly limited — role of the courts in a democratic society.” DaimlerChrysler Corp., 547 U.S. at 341, 126 S.Ct. 1854 (quotation omitted). “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Id. (quotations omitted). “If a dispute is not a proper case or controversy, the courts have no business deciding it....” Id. Of particular relevance to this case, a plaintiff must allege an actual, concrete injury. See Sprint Commc’ns Co., 128 S.Ct. at 2535; Lujan, 504 U.S. at 560, 112 S.Ct. 2130. It is not enough to assert a generalized, abstract grievance shared by a large number of similarly situated people. See Valley Forge Christian Coll., 454 U.S. at 482-83, 102 S.Ct. 752 (citing cases). We go on to discuss prudential standing. 2. Prudential standing requirements In contrast to constitutional standing, prudential standing “embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Elk Grove Unified Sch. Dist., 542 U.S, at 11, 124 S.Ct. 2301 (quotation omitted). Although the Supreme Court has not exhaustively defined the prudential dimensions of the standing doctrine, [the Court has] explained that prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights," }, { "docid": "17438066", "title": "", "text": "violation, Scenic has failed to demonstrate it has standing to bring its notice-and-comment claim. A. As has been expressed time and time again, “[flederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). As Chief Justice Marshall observed, “[i]f the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision [and] if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting 4 Papees of John Marshall 95 (C. Cullen ed. 1984)) (emphases omitted). Thus, without studious adherence to the metes and bounds of our jurisdiction as imposed by Article III, Chief Justice Marshall warned that “the other departments [of the government] would be swallowed up by the judiciary.” Id. The standing requirements of Article III are therefore grounded in respect for the separation of powers tenets that are the foundation of our system of government, Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471-74, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and they help “prevent the judicial process from being used to usurp the powers of the political branches,” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). Observing our Article III limitations is therefore always important, and particularly so in a case such as this, where we are asked to invalidate an action of the Executive branch. The “irreducible constitutional minimum of standing” requires that a plaintiff demonstrate three elements: (1) injury in fact; (2) causation; and (3) re-dressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The party invoking federal jurisdiction bears the burden of" }, { "docid": "23506033", "title": "", "text": "power.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 476, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Invoking the power of the federal judiciary requires more than important issues and able litigants. See id. at 489-90, 102 S.Ct. 752. 1. Constitutional standing requirements “Article III, § 2, of the Constitution restricts the federal ‘judicial Power’ to the resolution of ‘Cases’ and ‘Controversies.’ That case-or controversy requirement is satisfied only where a plaintiff has standing.” Sprint Commc’ns Co. v. APCC Servs., Inc., — U.S. -, 128 S.Ct. 2531, 2535, 171 L.Ed.2d 424 (2008); see also Valley Forge Christian Coll., 454 U.S. at 471, 102 S.Ct. 752. [I]n order to have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (ie., a “concrete and particularized” invasion of a “legally protected interest”); (2) causation (ie., a “fairly traceable” connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) re-dressability (ie., it is “likely” and not “merely speculative” that the plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit). Sprint Commc’ns Co., 128 S.Ct. at 2535 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130) (further quotation, alterations omitted); see also Cortes, 508 F.3d at 161. “In this manner does Art. Ill limit the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’ ” Valley Forge Christian Coll., 454 U.S. at 472, 102 S.Ct. 752 (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). “Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects the proper — and properly limited — role of the courts in a democratic society.” DaimlerChrysler Corp., 547 U.S. at 341, 126 S.Ct. 1854 (quotation omitted). “[N]o principle is more fundamental to the judiciary’s proper role in our" }, { "docid": "5980249", "title": "", "text": "475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). To this end, “[e]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Id. (internal quotation marks omitted). And as the party invoking federal jurisdiction, Ruffin bears the burden of establishing his standing. DaimlerChrysler Corp. v. Cuno, — U.S. -, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As the Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)(internal quotation marks omitted). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). And even if a plaintiff possesses Article III standing, he may still be prevented from prosecuting his suit in federal court if he lacks statutory standing. Bennett v. Spear, 520 U.S. 154, 162-63, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). C. We begin with the question of Ruf-fin’s standing under Article III. The requisite elements of Article III standing are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). 1. Injury in Fact. Although NEL suggests that the injury Ruffin relies on is too speculative, we conclude that he has sufficiently alleged an injury in fact. Under the terms of the Plan, Ruffin, as a Plan participant, is entitled to receive a lump-sum payment of benefits in lieu of other benefits payable to" }, { "docid": "9184727", "title": "", "text": "about whether or when any termination notice will be delivered,\" Declaration, ¶5, and recited Momenta's economic interest in any Orencia® biosimilar that might be developed by Mylan, and Momenta's potential right to royalties from Mylan should this product be developed by Mylan. Id . at ¶6. BMS responded that a third party's possible future development of this abandoned product does not provide constitutional standing to Momenta. BMS stated that Momenta's \"possible future royalty ... is too speculative to support standing,\" BMS Response to Order to Show Cause, at 7, November 13, 2018 (Dkt. 104), and that \"hypothetical future harm falls short of the 'certainly impending' injury-in-fact required by Article III.\" BMS Letter, at 1, October 3, 2018 (Dkt. 99) (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 402, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ). In Clapper the Court stated that \"we have repeatedly reiterated that 'threatened injury must be certainly impending to constitute injury in fact,' and that '[a]llegations of possible future injury' are not sufficient.\" 568 U.S. at 409, 133 S.Ct. 1138 (emphases original) (quoting Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ). On December 10, 2018 BMS filed another Letter under Rule 28(j), enclosing a Preliminary Prospectus Supplement and a Form 8-K that Momenta had filed with the Securities and Exchange Commission on December 6, 2018. These documents state: We have elected to terminate our collaboration agreement with Mylan with respect to the development of ... M834, a proposed biosimilar to ORENCIA® .... On November 19, 2018, we delivered a formal notice of this partial termination to Mylan, as provided in the collaboration agreement. Preliminary Prospectus Supplement at S-2; Form 8-K at 3. (Dkt. 105). BMS states that these documents confirm Momenta's lack of or loss of standing, and establish that the appeal is moot. Momenta has not responded, and has not withdrawn its appeal. DISCUSSION \"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.\" DaimlerChrysler Corp. v." }, { "docid": "745413", "title": "", "text": "standing jurisprudence means anything, it is that constitutional standing prerequisites are to be closely monitored and scrupulously enforced. See Hein v. Freedom, Religion Found., — U.S. —, 127 S.Ct. 2553, 2562, 168 L.Ed.2d 424 (2007) (“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”) (quotation omitted); DaimlerChrysler, 126 S.Ct. at 1861 (“The case-or-controversy limitation is crucial in maintaining the tripartite allocation of power set forth in the Constitution.”) (internal quotations omitted). This is (or should be) true even when there is a prudential doctrine handy to guard against unwarranted extensions of judicial authority. I see little reason to think the Court would be inclined to relax the constitutional minimums in third-party standing cases. The “federal courts sit ‘solely! ] to decide on the rights of individuals,’ ” Hein, 127 S.Ct. at 2562 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803)), “and must ‘refrai[n] from passing upon the constitutionality of an act ... unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’ ” Id. (quoting Valley Forge, 454 U.S. at 474, 102 S.Ct. 752). The brokers’ rights are not at issue here; their Association therefore is not entitled to litigate the question of the constitutionality of the City’s point-of-sale ordinance. I join the court in vacating the preliminary injunction and dismissing the suit, but for lack of constitutional, as well as prudential, standing. . Prudential standing considerations generally prohibit “a litigant’s raising another person's legal rights,” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004), but this doctrine kicks in to bar suit (or not) only after the litigant has established his own Article III standing to sue. In Newdow, for example, the plaintiff established constitutional standing to challenge the practice of daily recitation of the Pledge of Allegiance in his daughter's school as an unconstitutional interference with his" } ]

[ { "docid": "23009775", "title": "", "text": "also its relation to the allegedly unconstitutional condition. .Most federal courts of appeals have imposed an \"injury\" requirement on prisoners raising access to courts claims. See, e.g., Shango v. Jurich, 965 F.2d 289, 292 (7th Cir.1992) (“some quantum of detriment caused by the challenged conduct of state officials resulting in the interruption and/or delay of plaintiff’s pending or contemplated litigation”); Crawford-El v. Britton, 951 F.2d 1314, 1322 (D.C.Cir.1991) (deprivation must be linked to an \"adverse litigation effect\"), cert. denied,-U.S.-, 113 S.Ct. 62, 121 L.Ed.2d 29 (1992); Sowell v. Vose, 941 F.2d 32, 35 (1st Cir.1991) (\"actual, meaningful impediment to [plaintiff’s] participation in the [legal] process\"); Chandler v. Baird, 926 F.2d 1057, 1062 (11th Cir.1991) (no denial where plaintiff demonstrated \"no relation between the alleged refusals of materials, depositions, telephone calls, mail, and even pen and paper for a proposed 'letter to the courts’ and any legal proceeding which could have been affected by the refusals”); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) (\"specific instance in which [plaintiff] was actually denied access to the courts’’); Crowder v. Sinyard, 884 F.2d 804, 812 n. 8 (5th Cir.1989) (reading Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983), as requiring a showing of prejudice), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985) (actual impediment in access to courts); Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir.1983) (\"interference with or infringement of the prisoner’s constitutional right of access to the courts” (internal quotations omitted)); Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.1982) (\"instance in which an inmate was actually denied access to the courts” (internal quotations omitted)); Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978) (no allegation \"that any of [plaintiff's] multitudinous filings have been stricken as untimely or that any of his cases have been dismissed or otherwise prejudiced”). . The generalized nature of this allegation is underscored by the similar character of passages from Strickler’s complaint in which he alleges injury. See J.A. at 13 (\"Inmates here are denied ... adequate access to the law" } ]

[ { "docid": "20088464", "title": "", "text": "courts under the State’s system, then the system, or plan, is not unconstitutional simply because it does not satisfy the two criteria stated above. As the Sixth Circuit has held, “[w]e are concerned with a right of access to the courts, not necessarily to a prison law library.” Walker, 771 F.2d at 932 (emphasis in original). Inmates are not entitled to “some minimum amount of time in the prison law library”; they bear the initial burden, rather, of demonstrating that the State’s system has impeded their access to the courts. Id.; see also Childs v. Pellegrin, 822 F.2d 1382, 1384-85 (6th Cir.1987) (sufficient access was provided where the inmate appeared before the trial court, which questioned him carefully about his claim); Hossman v. Spradlin, 812 F.2d 1019, 1021 (7th Cir.1987) (States are required to provide inmates “that quantum of access to prison libraries — not total or unlimited access — which will enable them to research the law and determine what facts may be necessary to state a cause of action”); Cepulonis, 732 F.2d at 3 & 5 (access is denied if inmates have inadequate time to conduct legal research). Once the inmates have established a prima facie case that they have been denied access to the courts, however, the burden shifts to the State to establish that its system or plan of access is constitutionally adequate under Bounds. Smith, 813 F.2d at 1302; Campbell, 787 F.2d at 225-26; Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir.1981). Some courts have indicated that plaintiffs can establish a prima facie case simply by demonstrating that they have inadequate access to a law library. See Cepulonis, 732 F.2d at 4; Toussaint v. McCarthy, 597 F.Supp. 1388, 1403 & 1413 (N.D.Cal. 984), aff'd in relevant part, 801 F.2d 1080 (9th Cir.1986); Green v. Ferrell, 801 F.2d 765, 772-73 (5th Cir.1986). Finally, in analyzing defendants’ system the Court must consider that under Bounds a State is obligated only to assist inmates in “the preparation and filing of meaningful legal papers,” i.e., nonfrivolous complaints and petitions that meet all procedural prerequisites and adequate responses to" }, { "docid": "23073394", "title": "", "text": "Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983) {Franzen) (“[Bjroad as the constitutional concept of liberty is, it does not include the right to xerox.”); see also Wanninger v. Davenport, 697 F.2d 992, 994 (11th Cir.1983) (Wanninger); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir.1981); Harrell v. Keohane, 621 F.2d 1059, 1060-61 (10th Cir.1980). This circuit’s decisions have reflected our belief that the Constitution requires that certain minimum standards be met; it does not require the maximum or even the optimal level of access. See Lindquist, 776 F.2d at 856 (if prison decides to provide adequate law library as option under Bounds, it “need not provide its inmates with a library that results in the best possible access to the courts. Rather, the Prison must provide its inmates with a library that meets minimum constitutional standards.”) (citation omitted); id. at 858 (“[T]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used.”). In other words, the Constitution does not require the elimination of all economic, intellectual, and technological barriers to litigation. Cf. Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir.1982) (eighth amendment claims). The Third Circuit has employed a useful framework for analyzing “right of access” claims which reflects these concerns and is in harmony with our case law. See Peter-kin v. Jeffes, 855 F.2d 1021, 1039-42 (3d Cir.1988) (Peterkin); Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.1982) {Hudson)-, Kershner v. Mazurkiewicz, 670 F.2d 440, 442, 444-45 (3d Cir.1982) (en banc) {Kersh-ner). In Kershner, Judge Adams, writing for the full court, had this to say about the prisoner’s claim that under Bounds prison authorities were required to provide indigent inmates with free legal supplies, including pads, pens, pencils and photocopying: Appellants rely heavily on Bounds v. Smith. In the very first sentence in Bounds, however, the majority stated its perception of the primary issue before the Court as follows: “The issue in this case is whether States must protect the right of prisoners to access to the" }, { "docid": "12687892", "title": "", "text": "use black ink on his first timely presented notice of appeal. ■ A At the time defendants allegedly deprived Smith of the use of a pen and access to photocopying, the Supreme Court had clearly established an inmate’s right of access to the courts, including a right to services and supplies indispensable to filing court documents. See Bounds, 430 U.S. 817, 97 S.Ct. 1491; Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Although this- court had not yet held that “some means of accurate duplication” is an essential component of an inmate’s right of access to the courts, see Gluth v. Kangas, 951 F.2d 1504, 1508-10 (9th Cir.1991), other circuits had. See, e.g., Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) (inmate states valid claim against prison officials if he shows that prison’s photocopy policy impeded court access); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir.1981) (denial of photocopies unconstitutional to extent it actually infringed inmate’s right of access to courts). Moreover, it does not require sophisticated “legal scholarship” to know that a plaintiffs access the courts could be hindered seriously by an inability to make multiple, accurate copies of legal documents. See Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986) (public officials not charged with “the kind of legal scholarship normally associated with law professors and academicians,” but with the knowledge of a reasonable person), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). Similarly, the defendants should have known that they had a duty to provide Smith with a pen for preparing court documents. The Supreme Court had recognized prison officials’ “indisputable” duty to provide inmates access to “paper and pen to draft legal documents.” Bounds, 430 U.S. at 824, 97 S.Ct. at 1496. Although the defendants emphasize that their ban on the use of pens was necessary to fulfill legitimate penological interests, Bounds makes clear that an inmate’s right of access to the courts is “fundamental” and places upon prison officials an “affirmative obligation[ ] to assure all prisoners meaningful access to the courts.”" }, { "docid": "1286262", "title": "", "text": "Court said, cannot be shown “simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense.” Lewis, 116 S.Ct. at 2180. Instead, the Court held, “the inmate ... must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a [non-frivolous] legal claim.” Moreover, when the plaintiffs in a Bounds action are a class of inmates alleging a systemic violation of their right of access to the courts, under Leiois they must show “widespread actual injury.” Id. at 2179. The Court made it clear that the “[district] court’s failure to identify anything more than isolated instances of actual injury renders its finding of a systemic Bounds violation invalid.” Id. The defendants contend, therefore, that under current Supreme Court doctrine, the injunctive relief granted by the district court should be vacated for failure to establish the degree of actual injury required by Lewis. Moreover, they argue that under the terms of the PLRA, the action should be remanded to the district court with instructions to dismiss the case, conditioned upon the state putting into effect the remedial plan it offered to the court. The plaintiffs argue, and the district court held, that the Supreme Court’s decision in Lewis did not change the law in this circuit, but merely resolved a split among the circuits concerning whether actual injury is required to establish liability in a lawsuit alleging a violation of the right of access to the courts. Leiois arose from the Ninth Circuit, which was among the circuits that had previously held that no proof of actual injpry was required in lawsuits involving core aspects of the right of access to the courts. See Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989). The Sixth Circuit, on the other hand, had held that no constitutional violation exists in any case if “no particular prisoner was actually impeded in his access to the courts.” Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). In Walker, the plaintiffs claimed that they were not given adequate" }, { "docid": "23163012", "title": "", "text": "been retained in order that they may be treated in accordance with the terms of this order. The fact that Mr. Tyler was willing to so readily dismiss voluntarily over 30 pending cases in this court on the hope that doing so would cause him to be transferred to another prison indicates that he was not seriously pursuing the claims raised in those cases. The Supreme Court found in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), that an inmate in a state prison has a constitutional right, under the due process clause of the Fourteenth Amendment, to access to the courts. However, there is “no constitutional right of access to the courts to prosecute an action that is frivolous or malicious.” Phillips v. Carey, 638 F.2d 207, 208 (10th Cir.1981). As recently explained by one court faced with a similar situation, The Court has authority to control and manage matters pending before it. This includes trial and pre-trial actions. Turner v. American Bar Association, 407 F.Supp. 451 (N.D.Tex.1975); In re Sarelas, 360 F.Supp. 794 (D.C.Ill.1973), aff'd, 497 F.2d 926 (7th Cir.1974). The need for such control bears noting. First, Rule 1 of the Federal Rules of Civil Procedure provides that the rules shall be construed to secure the just, speedy, and inexpensive determination of every action. Three fundamental goals underlie this mandate; maintaining the quality of justice, avoiding delay, and improving the efficiency of dispute resolution. In order to secure these values, we must recognize that judicial resources are limited in the short run and need to be protected from wasteful consumption. See, Hanson v. Goodwin, 432 F.Supp. 853 (W.D.Wash.1977). Frivolous, bad faith claims consume a significant amount of judicial resources, diverting the time and energy of the judiciary away from processing good faith claims. See, e.g., In re Green, 598 F.2d 1126 (8th Cir.1979). The most apparent effect of excessive litigation is the imposition of unnecessary burdens on, and the useless consumption of, court resources. See, In re Martin-Trigona, 573 F.Supp. 1237, 1242 (D.Conn.1983)_ As caseloads increase, courts have less time to devote" }, { "docid": "4252093", "title": "", "text": "40, which provides that a petition for post-con-vietion relief may be filed at any time after judgment. The state trial court ultimately dismissed the petition as meritless. Smith attempted to appeal the dismissal. However, because his notice of appeal was completed in pencil rather than in “black ink” as required by Rule 3 of the Circuit Court Rules, the court returned it to Smith for correction. Smith did not refile the notice of appeal until the time period for doing so had expired, and the Hawaii Supreme Court ultimately dismissed the appeal because of Smith’s failure to file a timely notice of appeal. Smith claims that HHSF’s ban on pens caused his failure to use black ink on his first timely presented notice of appeal. A At the time defendants allegedly deprived Smith of the use of a pen and access to photocopying, the Supreme Court had clearly established an inmate’s right of access to the courts, including a right to services and supplies indispensable to filing court documents. See Bounds, 430 U.S. 817, 97 S.Ct. 1491; Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Although this court had not yet held that “some means of accurate duplication” is an essential component of an inmate’s right of access to the courts, see Gluth v. Kangas, 951 F.2d 1504, 1508-10 (9th Cir.1991), other circuits had. See, e.g., Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) (inmate states valid claim against prison officials if he shows that prison’s photocopy policy impeded court access); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir. 1981) (denial of photocopies unconstitutional to extent it actually infringed inmate’s right of access to courts). Moreover, it does not require sophisticated “legal scholarship” to know that a plaintiffs access the courts could be hindered seriously by an inability to make multiple, accurate copies of legal documents. See Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986) (public officials not charged with “the kind of legal scholarship normally associated with law professors and academicians,” but with the knowledge of a reasonable person)," }, { "docid": "3506766", "title": "", "text": "“Twy-man dealt with the amount of time an inmate had to use a law library, not the adequacy of the library.” Boulies v. Ricketts, 518 F.Supp. 687, 688-89 n. 2 (D.Colorado 1981). The same may be said of Langton v. Fair and of Walker v. Mintzes, 771 F.2d 920 (5th Cir.1985). Similarly, Hoppins v. Wallace, 751 F.2d 1161 (11th Cir.1985), involved the reasonableness of limitations on the number of free stamps per week, and Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) involved limitations on photocopying services. Here, the DOC did not impose reasonable limits on the services needed by — and constitutionally guaranteed to — Messere to ensure his access to the courts. Rather, the DOC failed to provide reasonable services altogether. The DOC declined to provide an adequate library, legal assistance or any other form of legal support to Messere while incarcerated out-of-state. Legal assistance via telephone or mail or a travelling library for the geographically proximate New England Corrections Compact states could presumably have been provided. The Commonwealth could also have contracted with legal services providers to ensure that adequate assistance was available to Massachusetts prisoners like Messere held out of state. So long as Massachusetts participates in the New England Compact, the DOC is obliged to satisfy in some reasonable manner the constitutional right of out-of-state inmates to meaningful access to the courts. In any event, once a prisoner with standing to do so has demonstrated a state’s failure to provide avenues of access to the courts because of lack of library facilities and legal assistance, he has shown all the “prejudice” that is required by Bounds. Inquiry into “prejudice” or “actual injury” becomes relevant only when a dispute arises about the reasonableness of the avenues of access. Then “actual injury” may be used as evidence that the access afforded is insufficient because it has demonstrably interfered with the prisoner’s conduct of his litigation. Because I conclude that Messere is able to demonstrate a Bounds violation without evidence of actual prejudice, I will allow his motion for partial summary judgment on liability. Ill Having found liability," }, { "docid": "19718401", "title": "", "text": "respectfully dissent. I I agree with the majority that plaintiffs claiming denial of access to the courts must “prove prejudice stemming from the alleged violation.” The ease before us, however, deals with what plaintiffs must plead, not what they must prove. There is an impor tant difference between these two requirements in Bounds actions, as discussed in the very Supreme Court case on which the majority relies: At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.' And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial. Lewis v. Casey, — U.S. -, -, 116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992)). This court has never held that a plaintiff claiming denial of access to the courts must plead specific prejudice in the complaint, and we should not do so now. In fact, in Walker v. Mintzes, 771 F.2d 920 (6th Cir.1985), the only Sixth Circuit case that the district court cited in its decision, we remanded for further proof on the prejudice issue, even though after a seven-week trial “[tjhere [had been] no claim made ... that any particular prisoner was actually impeded in his access to the courts.” Id. at 932, aff'g in part, rev’g in part, and remanding Walker v. Johnson, 544 F.Supp. 345 (E.D.Mich. 1982). Litigants proceeding pro se are at a disadvantage in the unfamiliar world of law because they lack the specialized training of attorneys. Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991). Pro se prisoners with meritorious Bounds claims are therefore doubly disadvantaged; they" }, { "docid": "23073400", "title": "", "text": "F.2d 1, 5 (1st Cir.1986) (prisoner “did not allege any specific harm” resulting from temporary restrictions); Hoppins v. Wallace, 751 F.2d 1161, 1162 (11th Cir.1985) (prisoner “presented no evidence ... that any case was dismissed or that any sanction was imposed by the courts due to ... the [prison's] stamp policy”); Franzen, 697 F.2d at 803; Wanninger, 697 F.2d at 994 (upholding dismissal of action where prisoner, among other things, failed to allege that various restrictions “affected his ability to represent himself in the state evidentiary hearing at issue, thereby denying him effective access to the court”); see also Grady v. Wilken, 735 F.2d 303, 306 (8th Cir. 1984). In addition, numerous district courts appear to have employed this framework. See, e.g., Artway v. Scheidemantel, 671 F.Supp. 330, 335 (D.N.J.1987); Hudson v. Johnson, 619 F.Supp. 1539, 1544 (E.D. Mieh.1985); Esposito v. Leddy, 618 F.Supp. 1362, 1367 (N.D.Ill.1985); Kendrick v. Bland, 586 F.Supp. 1536, 1554 (W.D.Ky.1984). We now explicitly adopt the Third Circuit’s approach to “right of access” claims. Under that analysis, a court must first determine whether the right of access claimant alleges inadequate “ ‘law libraries or alternative sources of legal knowledge,’ ” Peterkin, 855 F.2d at 1041, quoting Kershner, 670 F.2d at 444, that is, whether the claimant alleges a denial of “adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828, 97 S.Ct. at 1498. Second, if the claims do not involve such an allegation, the court must consider whether the plaintiff has alleged an “actual injury” to court access. An “actual injury” consists of some specific “ ‘instance in which an inmate was actually denied access to the courts.’ ” Hudson, 678 F.2d at 466, quoting Kershner, 670 F.2d at 444. Only if an actual injury is alleged does a plaintiff state a claim for which relief can be granted. On the other hand, if one of the core requirements under Bounds is involved— the adequacy of either law libraries or legal assistance — then there is no “actual injury” requirement. See Peterkin, 855 F.2d at 1041-42 (where core" }, { "docid": "18749368", "title": "", "text": "interference with mail does not state a constitutional claim. The magistrate relied on Morgan v. Montanye, 516 F.2d 1367 (2d Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976). The plaintiff in Morgan alleged that prison officials had interfered with one piece of mail from his attorney in violation of the prison mail regulations and the Constitution. The court analyzed the plaintiffs claims as a Sixth Amendment right to effective assistance of counsel claim, and a Fourteenth Amendment right of access to the courts claim. See, e.g., Martinez, 416 U.S. at 419, 94 S.Ct. at 1814 (right of access to the courts grounded in Due Process Clause). The Second Circuit did not cite to Martinez, nor did it treat the case as a First Amendment free speech case. In disposing of plaintiffs claims, the court focused on the fact that the plaintiff only alleged a single interference with his mail, as well as the fact that he had failed to show that he had been damaged in any way by this interference. Although the issue of whether the appellant’s rights were abridged by the withholding of this letter is not before this court, we note that after Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978), where the Court held that a plaintiff was entitled to at least nominal damages for violation of his constitutional rights, the question of whether there has been a constitutional violation should not be considered dependent on whether actual damages have occurred. See Marohnic v. Walker, 800 F.2d 613, (6th Cir.1986) (do not need to show actual injury to establish First Amendment violation); Walje v. City of Winchester, Kentucky, 773 F.2d 729, 732 (6th Cir.1985) (same). Cf. Owen v. Lash, 682 F.2d 648 (7th Cir.1982) (at least nominal damages awarded for interference with inmate’s correspondence); Wolfel v. Bates, 707 F.2d 932, 934 (6th Cir.1983) (per curiam) (nominal damages awarded for violation of inmate’s First Amendment right to \"seek redress of grievances’’); McNamara v. Moody, 606 F.2d 621, 625 (5th Cir. 1979) (nominal damages awarded for" }, { "docid": "19718402", "title": "", "text": "S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992)). This court has never held that a plaintiff claiming denial of access to the courts must plead specific prejudice in the complaint, and we should not do so now. In fact, in Walker v. Mintzes, 771 F.2d 920 (6th Cir.1985), the only Sixth Circuit case that the district court cited in its decision, we remanded for further proof on the prejudice issue, even though after a seven-week trial “[tjhere [had been] no claim made ... that any particular prisoner was actually impeded in his access to the courts.” Id. at 932, aff'g in part, rev’g in part, and remanding Walker v. Johnson, 544 F.Supp. 345 (E.D.Mich. 1982). Litigants proceeding pro se are at a disadvantage in the unfamiliar world of law because they lack the specialized training of attorneys. Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991). Pro se prisoners with meritorious Bounds claims are therefore doubly disadvantaged; they lack not only legal training, but also adequate legal resources. See Childs v. Pellegrin, 822 F.2d 1382, 1385 (6th Cir.1987) (“The claim [the plaintiff] makes is that he has been denied access to the materials that would permit him to learn what the rules of court required of him in order to conduct his case properly. It would be harsh, to say the least, to decline to consider [the Bounds claim] because it was procedurally incorrect, and we decline to do so.”). Of course, a pro se prisoner’s failure to satisfy an easily understood requirement, such as a date for the termination of discovery, deserves no special treatment from the courts. Jourdan, 951 F.2d at 110. In Jourdan, however, we distinguished between those dismissals based on failure to comply with “readily comprehended court deadlines of which [a plaintiff] was well-aware” and those based, as in this case, on “inartful pleading.” Id. “The drafting of a formal pleading presupposes some degree of legal training or, at least, familiarity with applicable legal principles, and pro se litigants" }, { "docid": "6767785", "title": "", "text": "approved by prison staff reasonably further the legitimate interests identified above. These requirements simply allow the administration to monitor the agreements to ensure that no exploitation is in fact likely to take place. The directive does not absolutely ban jailhouse lawyer assistance agreements, and it imposes the minimal burdens of a writing and a request for approval on the prisoners and jailhouse lawyers who make such agreements. See Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63. In the present case, plaintiffs’ complaint and attached documents make it clear that they did not have a legal services agreement that complied with Policy Directive PD-DWA-61.01. Confiscation of the legal materials in question was therefore a reasonable means of terminating the unauthorized legal assistance prohibited by valid prison policy. Finally, plaintiffs make a bare allegation that they have been prejudiced in their ability to access the courts by the confiscation of the legal materials in question. In order to maintain a valid claim based on a denial of access to the courts, a prisoner must “show that he has somehow been prejudiced” in the prosecution of a specific claim. Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). Plaintiffs have failed to do so. There is no allegation that plaintiffs missed any court deadlines, that any action was dismissed, or that sanctions were imposed upon them. The civil rights statutes require specific allegations of facts indicating a deprivation of rights. See Chapman v. City of Detroit, 808 F.2d 459 (6th Cir.1986); Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir.1971). Plaintiffs have done nothing but make an unsupported claim of prejudice. Moreover, even if plaintiffs were somehow prejudiced, plaintiffs themselves were the cause of the prejudice for failing to obtain proper authorization to provide legal services to each other. Plaintiffs’ error surely cannot be transformed into a constitutional violation by defendants. Accordingly, the court finds that plaintiffs can prove no set of facts which would entitle them to relief for defendants’ seizure of plaintiffs’ inmate-to-inmate correspondence. Defendants’ motion to dismiss will be granted. . The court notes that plaintiffs also raise" }, { "docid": "10469064", "title": "", "text": "The occasional system failures do not amount to a denial of access to the courts; nor is the Court persuaded,' based on a handful of isolated instances, that the “system intentionally cuts off attorney calls.” [Compare Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983) (the occasional, unintentional mishandling of legal mail does not rise to the level of a constitutional violation). The infrequent occurrences of disconnected attorney phone calls are insufficient to support an inference that W.I.C.C.’s phone system is so deficient as to inordinately interfere with inmates’ access to counsel. W.I.C.C. business administrator John Johnson states in his affidavit that attorney phone calls are neither monitored nor recorded. The Plaintiffs’ unsupported assertion to the contrary, based “upon information and belief,” is insufficient to withstand summary judgment. (In any case, the court of appeals for this circuit has held that monitoring of attorney-client conversations may be permissible if the prisoner’s right to confer with counsel is not substantially affected. Tucker v. Randall, 948 F.2d 388, 391 (7th Cir.1991).) Plaintiff Carter claims that he was “denied access” to an attorney because the friend attempting to make arrangements to secure counsel for Carter is uncomfortable providing personal information to prison officials. Carter asserts: “because of the present inmate collect call system in effect, [I] was prevented from pursuing contemplated litigation.” Prison officials cannot be blamed for the reluctance of the Plaintiffs friend to comply with telephone procedures. If no friend or relative was willing to help the Plaintiff contact counsel on his behalf, nothing precluded the Plaintiff from using the yellow pages or writing letters to lawyers on his own. Furthermore, the Plaintiffs conclusory allegation of prejudice is meaningless. Such an allegation is inadequate if it “offers no specific facts to support these allegations— no court dates missed; no inability to make timely filings; no denial of legal assistance to which he was entitled; and no loss of a case which could have been won.” Martin v. Davies, 917 F.2d 336, 340 (7th Cir.1990), cert. denied, 501 U.S. 1208, 111 S.Ct. 2805, 115 L.Ed.2d 978 (1991). The various burdens alleged by the" }, { "docid": "11256400", "title": "", "text": "affect the prisoner’s right to confer with counsel. Tucker v. Randall, 948 F.2d 388, 391 (7th Cir.1991). It is settled that prisoners do not forfeit their constitutional guarantee under the Fourteenth Amendment to “adequate, effective, and meaningful” access to the courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977). Access to counsel is not only a right under the Sixth Amendment, but is one means of insuring access to the courts. Mann, 828 F.Supp. at 902. However, the Sixth Amendment does not require in all instances full and unfettered contact between an inmate and counsel. See Mann, 46 F.3d at 1060; see also McMaster v. Pung, 984 F.2d 948, 953 (8th Cir.1993). The choice among various methods of guaranteeing access to the courts lies with prison administrators, not inmates or the courts. Ishaaq v. Compton, 900 F.Supp. 935, 941 (W.D.Tenn.1995). DISCUSSION In order to allege an unconstitutional restriction on the Bounds right of access, an inmate must plead and prove he was actually impeded in his ability to conduct a particular case. See Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2181, 135 L.Ed.2d 606 (1996); see also Aswegan v. Henry, 981 F.2d 313 (8th Cir.1992). Plaintiffs have made no showing of prejudice to pending or contemplated litigation—no court dates missed; no inability to make timely filings; no denial of legal assistance to which a plaintiff was entitled; and no loss of a case which could have been won. Carter, 924 F.Supp. at 912. In Fillmore v. Ordonez, supra, an inmate’s contention that at least three of his telephone calls seeking legal advice were monitored was found not to amount to a constitutional violation. The plaintiff did not contend that the claimed deprivation was caused by execution of any official policy or practice, and the' evidence indicated the opposite: that prison policy precluded the monitoring of telephone conversations between inmates and their legal counsel. Likewise here, no evidence has been advanced that any policy exists to intentionally monitor all attorney calls, and defendant’s evidence indicates that telephone calls to attorneys on “inmate" }, { "docid": "23661715", "title": "", "text": "Hudson are not only instructive, they are dispositive of his second argument. III. In summary, we hold that (i) neither the confinement of appellant in his cell nor the loss or destruction of his legal papers, in the absence of any allegation of actual or probable detriment, amounted to a deprivation of meaningful access to the courts and (ii) the Due Process Clause of the Fourteenth Amendment does not furnish appellant with a basis for suit under § 1983 because a constitutionally adequate state tort claims act provides appellant with a suitable nonconstitutional remedy. Affirmed. . In this respect we cited approvingly in Campbell to the decision of the Ninth Circuit in Lindquist v. Idaho State Board of Corrections, 776 F.2d 851 (9th Cir.1985). [T]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used____ The fact that an inmate must wait for a turn to use the library does not necessarily mean that he has been denied meaningful access to the courts. Id. at 858. See also Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). . This court previously intimated that an allegation of \"prejudice” might be necessary in order to defeat a motion to dismiss a claim asserting a denial of meaningful access to the courts. See Bach v. Coughlin, 508 F.2d 303, 308 (7th Cir. 1974). We are today, however, firmly of the opinion that, in order to proceed to trial and survive a motion for summary judgment, a plaintiff should be required, no matter how minimally, to allege some quantum of detriment caused by the challenged conduct of state officials resulting in the interruption and/or delay of plaintiffs pending or contemplated litigation. For further discussion, see note 6, infra. . In Bonner v. Coughlin, 517 F.2d 1311 (7th Cir.1975) (Stevens, J.), appellant claimed that time was of the essence because he had been recently furnished with a transcript of his trial and had only a brief period in which to petition the Illinois Supreme Court for" }, { "docid": "4252094", "title": "", "text": "S.Ct. 1491; Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Although this court had not yet held that “some means of accurate duplication” is an essential component of an inmate’s right of access to the courts, see Gluth v. Kangas, 951 F.2d 1504, 1508-10 (9th Cir.1991), other circuits had. See, e.g., Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) (inmate states valid claim against prison officials if he shows that prison’s photocopy policy impeded court access); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir. 1981) (denial of photocopies unconstitutional to extent it actually infringed inmate’s right of access to courts). Moreover, it does not require sophisticated “legal scholarship” to know that a plaintiffs access the courts could be hindered seriously by an inability to make multiple, accurate copies of legal documents. See Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986) (public officials not charged with “the kind of legal scholarship normally associated with law professors and academicians,” but with the knowledge of a reasonable person), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). Similarly, the defendants should have known that they had a duty to provide Smith with a pen for preparing court documents. The Supreme Court had recognized prison officials’ “indisputable” duty to provide inmates access to “paper and pen to draft legal documents.” Bounds, 430 U.S. at 824, 97 S.Ct. at 1496. Although the defendants emphasize that their ban on the use of pens was necessary to fulfill legitimate penological, interests, Bounds makes clear that an inmate’s right of access to the courts is “fundamental” and places upon prison officials an “affirmative obligation[ ] to assure all prisoners meaningful access to the courts.” 430 U.S. at 828, 824, 97 S.Ct. at 1498, 1496. Although the state may “choose among the avenues of access,” the avenue it chooses must “satisfy its constitutional obligation” under Bounds. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981). Hawaii’s Circuit Court Rule 3(a) requires that all “handwritten entries on papers shall be in black ink,” and defendants concede that" }, { "docid": "1286263", "title": "", "text": "remanded to the district court with instructions to dismiss the case, conditioned upon the state putting into effect the remedial plan it offered to the court. The plaintiffs argue, and the district court held, that the Supreme Court’s decision in Lewis did not change the law in this circuit, but merely resolved a split among the circuits concerning whether actual injury is required to establish liability in a lawsuit alleging a violation of the right of access to the courts. Leiois arose from the Ninth Circuit, which was among the circuits that had previously held that no proof of actual injpry was required in lawsuits involving core aspects of the right of access to the courts. See Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989). The Sixth Circuit, on the other hand, had held that no constitutional violation exists in any case if “no particular prisoner was actually impeded in his access to the courts.” Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). In Walker, the plaintiffs claimed that they were not given adequate access to legal materials, and we remanded the case for a determination of whether the denial of access had actually caused any prisoner harm. We explained that “ ‘[i]f appellant [the prisoner] could show that he has somehow been prejudiced in any of his various lawsuits, he might perhaps have a legitimate claim.’ ” Id. (quoting Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978)). In Knop, we cited the Walker standard with approval. 977 F.2d at 1000. Just before the Lewis opinion was issued, we again confirmed our position that a prisoner who does not show any prejudice fails to state a claim that prison officials denied him access to the courts. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996). The plaintiffs contend that because the Sixth Circuit’s “actual injury” requirement is the same as the Lewis v. Casey “actual injury” requirement, we should follow the law of the case and leave undisturbed our finding of actual injury in Knop, 977 F.2d at 1000. The district court agreed and held that “[the plaintiffs]" }, { "docid": "23073393", "title": "", "text": "King v. Atiyeh, 814 F.2d 565, 568 (9th Cir.1987) (citing Bounds for proposition that state must provide indigent inmates with postage stamps at state expense to mail legal documents). In King, we stated: “There is no established minimum requirement that a state must meet in order to provide indigent inmates with adequate access to the courts. Instead, a reviewing court should focus on whether the individual plaintiff before it has been denied meaningful access.” Id. In other cases, we have stressed this individualized focus on whether a particular prisoner had meaningful access. See Lindquist v. Idaho State Board of Corrections, 776 F.2d 851 (9th Cir.1985) (Lindquist); Franklin, 745 F.2d at 1231-32. Despite this individualized focus, we have not hesitated to reject constitutional claims of entitlement to resources which no prisoner could possibly require to have “meaningful” access. For example, we have held that prisoners have no constitutional right to the use of a typewriter. Lindquist, 776 F.2d at 858. In like manner, numerous courts have rejected any constitutional right to free and unlimited photocopying. See Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983) {Franzen) (“[Bjroad as the constitutional concept of liberty is, it does not include the right to xerox.”); see also Wanninger v. Davenport, 697 F.2d 992, 994 (11th Cir.1983) (Wanninger); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir.1981); Harrell v. Keohane, 621 F.2d 1059, 1060-61 (10th Cir.1980). This circuit’s decisions have reflected our belief that the Constitution requires that certain minimum standards be met; it does not require the maximum or even the optimal level of access. See Lindquist, 776 F.2d at 856 (if prison decides to provide adequate law library as option under Bounds, it “need not provide its inmates with a library that results in the best possible access to the courts. Rather, the Prison must provide its inmates with a library that meets minimum constitutional standards.”) (citation omitted); id. at 858 (“[T]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used.”). In other" }, { "docid": "23073399", "title": "", "text": "678 F.2d at 466, may affect merely comfort or convenience without depriving a prisoner of access to the courts. A court cannot make the assumption that any alleged administrative deficiency or less than optimal clerical arrangement actually impedes a prisoner’s ability to file meaningful legal papers. 855 F.2d at 1041. The court in Peterkin concluded that “[i]n cases where a prisoner’s claim relates to access to resources other than legal assistance itself, an actual injury [requirement] can be helpful in determining whether an unconstitutional abridgement of access to the courts has occurred.” Id. Numerous other circuits appear to have followed, implicitly or explicitly, the Third Circuit’s approach. See Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987) (upholding summary judgment against prisoner because “[h]e advises us of no specific problem he wished to research and of no actual injury or specific harm which has resulted to him by his limited access to the jail library or its limited contents”); Mann v. Smith, 796 F.2d 79, 84 & n. 5 (5th Cir.1986); Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir.1986) (prisoner “did not allege any specific harm” resulting from temporary restrictions); Hoppins v. Wallace, 751 F.2d 1161, 1162 (11th Cir.1985) (prisoner “presented no evidence ... that any case was dismissed or that any sanction was imposed by the courts due to ... the [prison's] stamp policy”); Franzen, 697 F.2d at 803; Wanninger, 697 F.2d at 994 (upholding dismissal of action where prisoner, among other things, failed to allege that various restrictions “affected his ability to represent himself in the state evidentiary hearing at issue, thereby denying him effective access to the court”); see also Grady v. Wilken, 735 F.2d 303, 306 (8th Cir. 1984). In addition, numerous district courts appear to have employed this framework. See, e.g., Artway v. Scheidemantel, 671 F.Supp. 330, 335 (D.N.J.1987); Hudson v. Johnson, 619 F.Supp. 1539, 1544 (E.D. Mieh.1985); Esposito v. Leddy, 618 F.Supp. 1362, 1367 (N.D.Ill.1985); Kendrick v. Bland, 586 F.Supp. 1536, 1554 (W.D.Ky.1984). We now explicitly adopt the Third Circuit’s approach to “right of access” claims. Under that analysis, a court must first" }, { "docid": "3506765", "title": "", "text": "time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.... [T]he denial of procedural due process should be actionable for nominal damages without proof of actual injury. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978) (footnote omitted). I see no principled means to distinguish the fundamental right of access from other fundamental rights. In no such case' is a showing of prejudice— or alternatively stated a showing of actual injury — a necessary element for establishing liability. The cases alluded to by Judge Zobel in Langton as suggesting prejudice or quasi-prejudice requirements may be distinguished on their facts. They involved restrictions on the time, place or manner of access to the courts; they did not involve an effective blockade of the avenues of access. It has been noted — in rejecting the necessity of showing actual harm in the failure-to-state-a-claim context — that “Twy-man dealt with the amount of time an inmate had to use a law library, not the adequacy of the library.” Boulies v. Ricketts, 518 F.Supp. 687, 688-89 n. 2 (D.Colorado 1981). The same may be said of Langton v. Fair and of Walker v. Mintzes, 771 F.2d 920 (5th Cir.1985). Similarly, Hoppins v. Wallace, 751 F.2d 1161 (11th Cir.1985), involved the reasonableness of limitations on the number of free stamps per week, and Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) involved limitations on photocopying services. Here, the DOC did not impose reasonable limits on the services needed by — and constitutionally guaranteed to — Messere to ensure his access to the courts. Rather, the DOC failed to provide reasonable services altogether. The DOC declined to provide an adequate library, legal assistance or any other form of legal support to Messere while incarcerated out-of-state. Legal assistance via telephone or mail or a travelling library for the geographically proximate New England Corrections Compact states could presumably have been provided. The Commonwealth could also have contracted" } ]

[ { "docid": "4640229", "title": "", "text": "bankruptcy fraud and commenced a proceeding to set aside the confirmation of BAC’s plan. Since Bankers waited until August of 1982 to commence this action, the three-year statute of limitations had long since expired. As to Braten and Rhoades, however, the original complaint alleged that they had taken actions to conceal BAC’s assets within the limitations period. Thus the action was ruled timely as to them. Under the third amended complaint, however, none of the substantive claims are timely as to any of the defendants. As stated above, the only acts of the defendants that give rise to an injury for which Bankers has standing to sue are those relating to the bribery of Judge Ballenger. This bribery resulted in two decisions which caused Bankers injury. These decisions were rendered in November 1978 and January 1979. Bankers necessarily was aware of the injury caused by those rulings on or shortly after the date they were issued. Therefore, Judge Ballenger’s January 1979 ruling is the last act on which Bankers may rely. Under the three-year statute of limitations, Bankers had to commence its RICO action to recover for these injuries by January 1982. Bankers, however, did not institute this action until August 1982. Consequently the substantive RICO claims are untimely as to all three defendants. Bankers cannot claim that the payment of its own legal expenses at a later date constitutes a basis for postponing the accrual of its cause of action. A claim for damages accrues when the act causing the injury occurs, not when the injured party ceases to incur more damages. See Korn v. Merrill, 403 F.Supp. 377, 388 (S.D.N.Y.1975), aff'd, 538 F.2d 310 (2d Cir.1976). If Bankers was able to postpone accrual of its claim until it had paid its legal expenses, then Bankers could keep its claim open indefinitely simply by protracting the litigation. This would be contrary to the purpose of the statute of limitations. The Court found that a different accrual rule applies in the case of a continuing civil conspiracy. Under this rule, each time a member of the conspiracy commits an overt" } ]

[ { "docid": "5169655", "title": "", "text": "Second Circuit in Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert, denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989); third, the \"last-act rule” (or \"last predicate act rule”) adopted by many district courts, most notably the Northern District of Illinois in County of Cook v. Berger, 648 F.Supp. 433 (N.D.Ill.1986); fourth, the \"last-act discovery rule” (or the \"last predicate act discovery rule”) as adopted by the Third Circuit in Keystone Ins. Co. v. Houghton, 863 F.2d 1125 (3d Cir.1988). The fifth rule described by O'Neill is the \"last-injury discovery rule\" adopted by two district courts, Bankers Trust Co. v. Feldesman, 648 F.Supp. 17, 35-36 (S.D.N.Y.1986) and Keystone Ins. Co. v. Houghton, 692 F.Supp. 466 (E.D.Pa. 1988) both of which were reversed upon appeal. See Paul B. O'Neill, \"Mother of Mercy, is This the Beginning of RICO?\": The Proper Point of Accrual of a Private Civil RICO Action, 65 N.Y.U.L.Rev. 170, 225-28 (1990). The fifth rule described by Humes is the “the Clayton Act Rule” as articulated in Armbrister v. Roland Int’l Corp., 667 F.Supp. 802 (M.D.Fla. 1987) (holding plaintiffs’ cause of action accrued at time of contract's signing). Mary S. Humes, RICO and a Uniform Rule of Accrual, 99 Yale L.J. 1399, 1416-17 (1990). The article ultimately endorses the \"last predicate act discovery rule” as the theory which serves plaintiffs’ need for time to discover their injuries and additionally allows for recovery for acts occurring prior to the four year limitations period. . Compare Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415 (9th Cir.1987) (holding accrual occurs when plaintiff discovers his injury, even if damages not ascertainable) with Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988) (adopting an enhanced discovery rule, in that a second injury triggers a new statute of limitations which may run even though the predicate act which caused the injury falls outside of the limitations period). . The Second Circuit has recently held that simple omissions are only actionable if the corporation is subject to a duty to disclose the alleged omitted facts: \"a corporation is" }, { "docid": "9581729", "title": "", "text": "sufficient to demonstrate standing under RICO. Because plaintiffs have alleged predicate acts of fraud as the basis of their RICO complaint, they must plead injury and causation with particularity, as required by Fed.R.Civ.P. 9(b). See First Nationwide, 27 F.3d at 771. For the purposes of this discussion, the court will address the allegations of the creditor plaintiffs and. the Ashford and Dromoland plaintiffs separately. 1. Creditor Plaintiffs Defendants Dowling, Nickerson, Davison, ACI, DCI, Dowmar and AHL (the “Dowling defendants”) argue that the creditor plaintiffs have not alleged an injury cognizable under RICO. Dowling Mem. at 39-40. The court agrees, although for somewhat different reasons than those cited by the defendants. As the Second Circuit has repeatedly noted, a cause of action does not accrue under RICO until damages become clear and definite. First Nationwide, 2,1 F.3d at 768. For this reason, “a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated.” Id. Based on a careful reading of the amended complaint, the court concludes that in this ease, the creditor plaintiffs have not adequately alleged such frustration of their contractual rights, and that their RICO claim is not yet ripe. In Bankers Trust v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), the defendants sought to prevent the plaintiff from collecting a debt they owed to him by deceiving a bankruptcy court and bribing state court judges in South Carolina. The plaintiff then filed a RICO action while bankruptcy proceedings were still pending. The court held that a RICO cause of action does not accrue until a plaintiffs claim becomes clear and definite. Id. at 1106. It therefore found that the plaintiff could not maintain a RICO action for its lost debt, because there was still a possibility that it might be recovered in the bankruptcy proceeding. Prior to that time, the plaintiffs damages were unduly speculative. Similarly, in Stochastic Decisions v. DiDomenico, 995 F.2d 1158 (2d Cir.1992)," }, { "docid": "17466971", "title": "", "text": "Antitrust Law § 325b at 120 (1978). It is similar to the accrual concepts that govern actions for fraud, see, e.g., Cook v. Avien, Inc., 573 F.2d 685, 695 (1st Cir.1978) (securities fraud), which is often the crime that underpins private RICO actions. See Bankers Trust Co. v. Feldesman, 648 F.Supp. 17, 36 n. 8 (S.D.N.Y.1986), rev’d sub nom. Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). We see much less to be said for permitting a plaintiff who knows of his injury to postpone the time the statute of limitations begins to run until he also knows of the “last predicate act” that forms part of the “pattern of racketeering activity” that hurt him. For one thing, such a rule is less directly related to the language of the RICO statute, which focuses upon “injur[y]” to business or property. 18 U.S.C. § 1964(c). For another, it does not seem to reflect Clayton Act principles. The Clayton Act, as far as we are aware, starts the statute running once a particular plaintiff realizes that he has been overcharged because of price fixing; the fact that the same conspiracy may, at a later time, have injured someone else does not postpone the first plaintiff’s accrual date. Assume, for example, that buyers of, say, plumbing supplies realize, say in 1980, that a price-fixing conspiracy has raised the price of the fixtures they have bought. Assume further that the same plumbing conspirators, as part of the same conspiracy, raise the price of plumbing fixtures sold to different buyers in, say 1990. We are aware of no case, nor any other legal authority, that would suggest that the limitations period applicable to the first group of buyers does not begin to run until 1990, when the second group is injured. Further, the “last predicate act” rule could produce long limitations periods. As we have pointed out, that rule would permit a plaintiff, knowing of his injury in 1980, to begin suit to recover damages for that injury four years after" }, { "docid": "23629431", "title": "", "text": "by not trebling the amount that remained uncollected on amounts owed to it by Cross-Appellants at the time it instituted this lawsuit, as well as the attorney fees expended in obtaining the New Jersey judgments and in postjudgment collection efforts. Cross-appellants contend that attorney fees were improperly considered RICO damages. 1. “Lost Debt” Damages. Stochastic premises its claim of entitlement to a trebling of the amount owed it by Cross-Appellants when it instituted this lawsuit principally upon our decision in Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). In that case, Bankers Trust had consented, as a creditor, to a debtor’s reorganization plan under which Bankers Trust received only 17.5% of its allowed claim. Id. at 1098. Neither the court nor the creditors, however, were aware that the debtor had fraudulently conveyed ownership of a corporation with net assets in excess of $3 million. Id. Bankers Trust subsequently claimed RICO injury for, inter alia, its “loss of legitimate debt ... when, relying on defendants’ misrepresentations, it accepted [the] bankruptcy reorganization plan_” Id. at 1105. We held that the damages were “ ‘unrecoverable,’ at least at [the time of the litigation], because ‘their accrual is speculative’ and.‘their amount and nature unprovable’” in light of the ongoing proceeding in the bankruptcy court to remedy the fraudulent conveyance. Id. at 1106 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980)). Stochastic asserts that in accordance with Bankers Trust, because the Eagle bankruptcy was terminated without any payment to creditors and the amount of Stochastic’s “lost debt” was definitively determined by entry of the New Jersey judgments, that amount should have been considered part of Stochastic’s RICO injury. We disagree. The amount of the lost debt in the instant case, as in Bankers Trust, remains unprovable. In Bankers Trust, the amount of the bank’s" }, { "docid": "5169527", "title": "", "text": "alternative theories. See, e.g., O’Neill, supra, at 234-36 (proposing the “pattern formation rule” in which the running of the statutory period is postponed until the plaintiff first discovers or should have discovered the facts relating to two predicate acts necessary to bring a civil RICO action). The Second Circuit, however, has firmly adopted an “accrual discovery” interpretation for civil RICO’s four year limitations period. Under the accrual discovery rule a new cause of action accrues when the defendant commits a violation injuring the plaintiff and is not necessarily determined by the plaintiffs discovery of that violation. In effect, “a plaintiffs action accrues against a defendant for a specific injury on the date that plaintiff discovers or should have discovered that injury ... [t]he logical end result is that a plaintiff may sue for any injury he discovers or should have discovered within four years of the commencement of his suit, regardless when the RICO violation causing such injury occurred.” Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1103 (2d Cir.1988) (“Bankers Trust ”) (holding that a new cause of action accrues each time plaintiff discovers new injury in the pattern), cert, denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Accordingly, a plaintiff may only bring a claim for damages suffered which he or she reasonably should have discovered in the four years prior to the suit, even though the alleged misrepresentations or omissions causing the damages might have occurred prior to that period. Bankers Trust’s seemingly liberal RICO discovery rule has evolved in the district courts, especially those in the Southern District, to incorporate a stricter due diligence standard. As a result, over the past half decade since Bankers Trust, the district courts have established a pragmatic “objective” discovery accrual rule for RICO claims. Cf. Global I, 815 F.Supp. at 637-38 (“objective” test adopted for inquiry notice in securities fraud claims). The RICO limitations test here, then, is\" an objective one, to wit, when a reasonable person should have discovered the RICO injury, the RICO statute of limitations will start to run. “Just as the plaintiff has" }, { "docid": "3803884", "title": "", "text": "basis for the action, relying upon Compton v. Ide, 732 F.2d 1429 (9th Cir.1984). Bath, 695 F.Supp. at 1162. The district court held that plaintiffs were on notice of their RICO or fraud claim in the time period between 1978, the date of the last sale of the video tapes, and 1982. Id. at 1163. The complaint was filed April 16, 1987, more than four years after 1982; accordingly the civil Rl6o claim was time-barred. Id. The Ninth Circuit elaborated upon its decision in Compton, explaining that a civil RICO plaintiff may recover “for new injuries inflicted within four years after accrual.” Beneficial Std. Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir.1988); see also State Farm Ins. Co. v. Ammann, 828 F.2d 4, 5 (9th Cir.1987) (Kennedy J., concurring). The Second Circuit has adopted a similar formulation for accrual: In sum, we hold today that civil RICO actions are subject to a rule of separate accrual. Under this rule, each time plaintiff discovers or should have discovered an injury caused by defendant’s violation of § 1962, a new cause of action arises as to that injury, regardless of when the actual violation occurred. A plaintiff under Malley-Duff, must then bring his action within four years of this accrual to recover damages for the specific injury. Naturally, as with all rules of accrual, the standard tolling exceptions apply. Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1105 (2d Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Two courts have noted that the Bankers Trust rule of separate accrual does not address the pattern element of a civil RICO claim, focusing solely on the injury element. Bivens Gardens Office Bldg. v. Barnett Bank, 906 F.2d 1546, 1553 (11th Cir.1990); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1129 (3rd Cir.1988). Because a civil RICO action requires predicate acts which constitute a “pattern of racketeering activity,” see 18 U.S.C. § 1961(5), we think that the more complete rule is that with respect to each independent injury to the plaintiff, a civil RICO cause of action begins" }, { "docid": "5363692", "title": "", "text": "acted in concert to the detriment of plaintiffs over a period of years, and plaintiffs further allege that these same defendants undertook similar actions prior to the creation of the instant partnerships, and that fraudulent activity has continued through the alleged enterprise to the current date. However, plaintiffs have not sufficiently alleged continuity as to the other defendants. It is impossible to determine from the face of the complaint what, if any role, the remaining defendants had in the alleged racketeering activity beyond the creation and distribution of the offering materials, an event which occurred at best over a few months and which has long since ceased. Accordingly, the RICO claims against the remaining defendants must be dismissed for failure to plead continuity. Defendants have also challenged plaintiffs’ RICO claim as untimely under the applicable statute of limitation. In Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), the Supreme Court set a uniform federal statute of limitation for civil RICO actions of four years. However, the Supreme Court in Malley-Duff explicitly declined to decide when a civil RICO cause of action is deemed to accrue. The various circuit courts have addressed this issue since. In Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), the Second Circuit explored the question of the accrual of civil RICO claims in some depth. The Court held that “each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962, a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovered or should have discovered that injury.” Id. at 1102. The focus of accrual in a RICO action is different from that for a fraud claim where the focus is on the acts of defendants. In a RICO action, the focus is on the injury to plaintiff. Indeed, a plaintiff may not recover under RICO until he or she has been injured as a result of the alleged" }, { "docid": "9581730", "title": "", "text": "a careful reading of the amended complaint, the court concludes that in this ease, the creditor plaintiffs have not adequately alleged such frustration of their contractual rights, and that their RICO claim is not yet ripe. In Bankers Trust v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), the defendants sought to prevent the plaintiff from collecting a debt they owed to him by deceiving a bankruptcy court and bribing state court judges in South Carolina. The plaintiff then filed a RICO action while bankruptcy proceedings were still pending. The court held that a RICO cause of action does not accrue until a plaintiffs claim becomes clear and definite. Id. at 1106. It therefore found that the plaintiff could not maintain a RICO action for its lost debt, because there was still a possibility that it might be recovered in the bankruptcy proceeding. Prior to that time, the plaintiffs damages were unduly speculative. Similarly, in Stochastic Decisions v. DiDomenico, 995 F.2d 1158 (2d Cir.1992), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993), the plaintiff filed a RICO action against a debtor over whom it had previously obtained two judgments in state court. After the RICO action was filed, the defendant paid one judgment, and the plaintiff had made no effort to collect on the second. Id. at 1162. Although the court awarded the plaintiffs treble damages for its attorney fees spent attempting to collect one judgment, it declined to award damages for the amount of the debts themselves. The Second Circuit upheld this decision, reasoning that one judgment had been paid, and that plaintiffs might still recover part of the second judgment, thereby reducing the RICO claim: Bankers Trust makes it clear that ... a RICO claim does not accrue until it is established that collection of the claim or judgment has been successfully frustrated. In other words, to the extent of a successful collection, the RICO claim is abated pro tanto, prior to any application of trebling. Id. at 1166. In this case, the" }, { "docid": "2907787", "title": "", "text": "prior to November 6, 1991 and are therefore barred by the statute of limitations. Even accepting the equitable tolling which defendants requested, the four-year limitation period has expired. Further, in the context of a continuing conspiracy to violate the antitrust laws, the statute of limitations is read to mean that each time defendants are injured by an act committed by plaintiff a cause of action accrues for recovery of damages caused by that act. See id. The statute of limitations runs from each act and none occurred within the four year limitation period. Counterclaim Ten is, therefore, dismissed. D. Counterclaims Eleven through Thirteen Are Not Timely In Counterclaims Eleven, Twelve, and Thirteen, GOL and LTC allege violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, 1962(a), (c), and (d) (“RICO”). A four-year statute of limitations applies to all civil RICO actions regardless of the predicate act involved. Agency Holding Corp. v. Malley-Duff & Associates, Inc. 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1101 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989). As for when the cause of action accrues, the Second Circuit has held: that each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962, a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovered or should have discovered the injury. Bankers Trust, 859 F.2d at 1102. Since these counterclaims are based on federal causes of action, the date from which to measure the statute of limitations is the date the answer and counterclaims were filed, November 6, 1995. While the filing of the complaint does not toll the statute of limitations for civil RICO claims, each cause of action under the civil RICO statutes need not have necessarily occurred within the four years prior to November 6, 1995. The Second Circuit is quite explicit in stating that the accrual date is not when the injury occurred but when the party claiming a" }, { "docid": "5160674", "title": "", "text": "Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 107 S.Ct. 2759, 2767, 97 L.Ed.2d 121 (1987) (the four year statute of limitations provided in the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 15b, applies uniformly to all civil RICO actions). Although the Supreme Court in Malley-Duff answered the question of what statute of limitation to apply, it expressly left undecided the question of when a civil RICO claim accrues. 107 S.Ct. at 2767. Several months ago, our circuit court of appeals reviewed the conflicting decisions on the district court level and announced a governing rule. In sum, we hold today that civil RICO actions are subject to a rule of separate accrual. Under this rule, each time plaintiff discovers or should have discovered an injury caused by defendant’s violation of § 1962, a new cause of action arises as to that injury, regardless of when the actual violation occurred. A plaintiff, under Malley-Duff, must then bring his action within four years of this accrual to recover damages for the specific injury. Naturally, as with all rules of accrual, the standard tolling exceptions apply. See, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983) (class action tolling); State of New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1084 (2d Cir.1988) (fraudulent concealment); Cullen v. Margiotta, 811 F.2d 698, 721-24 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987) (class action and duress). Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1105 (2d Cir.1988), cert. denied - U.S.-, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989). The trustee pleaded that the transactions occurred during May 1980 through October 1983 between the debtor and the Zalga Companies, corporations which she alleged Sternberg and Gurary deliberately created to have the appearance of legitimate sellers and manufacturers of piece goods when in fact they never conducted legitimate business. She also pleaded that Defendants knew that the funds to be paid to the Zalga Companies by the debtor were not to be paid in exchange for the receipt" }, { "docid": "7737927", "title": "", "text": "law “continuing violation” doctrine. Id. at 189, 117 S.Ct. 1984. Under that doctrine, each overt act that is part of a continuing violation and causes injury to the plaintiff “starts the statutory period running again, regardless of the plaintiffs knowledge of the alleged illegality at much earlier times”, id. (internal quotation marks and citation omitted), but generally does not allow a plaintiff to recover for the injury caused by overt acts outside the limitations period. Id. The Court noted that, similarly, the “separate accrual” rule applied by some circuits for civil RICO actions allowed recovery for injury caused by the commission of a separable, new predicate act within the limitations period, but, like the antitrust continuing violation doctrine, did not permit “the plaintiff [to] use an independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period”. Id. at 190, 117 S.Ct. 1984. This “separate accrual” rule for civil RICO actions had earlier been adopted by the Second Circuit in Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1102 (2d Cir. 1988), cert, denied, 490 U.S. 1007, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), which held: “each time a plaintiff suffers an injury caused by a [RICO] violation ..., a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovered or should have discovered the injury”. Id. at 1102. This “separate accrual” rule is a variant of the “injury discovery” rule adopted by our court in Rotella v. Wood, 147 F.3d 438, 440 (5th Cir.1998), aff'd, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). Under the “injury discovery” rule, a civil RICO claim accrues when the plaintiff discovers, or should have discovered, the injury. Id. When a pattern of RICO activity causes a continuing series of separate injuries, the “separate accrual” rule allows a civil RICO claim to accrue for each injury when the plaintiff discovers, or should have discovered, that injury. Bankers Trust, 859 F.2d at 1102. The Second Circuit relied on two sources as" }, { "docid": "17466970", "title": "", "text": "continues until, say, 1989, plaintiff will have until 1993 (not 1984) to file his complaint. The district court here has held that this latter rule applies to this case and permits certain plaintiffs to proceed to trial, plaintiffs whose actions the majority of circuits would find time barred. See 727 F.Supp. at 778-79. We believe, however, that we should follow the majority rule rather than that of the Third Circuit. We find the reasoning of the Second Circuit in Rhoades persuasive. To start the statute running when a plaintiff knew or should have known of his injury seems consistent with the language of RICO’s “treble damage\" provision. See 18 U.S.C. § 1964(c). Such a rule is at least roughly similar to the Clayton Act's rule that “a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business.\" Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971); see also 2 P. Areeda & D. Turner, Antitrust Law § 325b at 120 (1978). It is similar to the accrual concepts that govern actions for fraud, see, e.g., Cook v. Avien, Inc., 573 F.2d 685, 695 (1st Cir.1978) (securities fraud), which is often the crime that underpins private RICO actions. See Bankers Trust Co. v. Feldesman, 648 F.Supp. 17, 36 n. 8 (S.D.N.Y.1986), rev’d sub nom. Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). We see much less to be said for permitting a plaintiff who knows of his injury to postpone the time the statute of limitations begins to run until he also knows of the “last predicate act” that forms part of the “pattern of racketeering activity” that hurt him. For one thing, such a rule is less directly related to the language of the RICO statute, which focuses upon “injur[y]” to business or property. 18 U.S.C. § 1964(c). For another, it does not seem to reflect Clayton Act principles. The Clayton Act, as far as" }, { "docid": "11149449", "title": "", "text": "908 F.2d 1385 (7th Cir.1990). In Belleville Shoe, the Seventh Circuit addressed the question at issue here, holding that equitable estoppel is not available to extend the three-year repose period; the court reasoned that “[u]nless the ‘in no event more than three’ language cuts off claims of tolling and estoppel at three years ... it serves no purpose at all.” 908 F.2d at 1391. Here, as in Belleville Shoe and Anixter, the Court finds that the three-year period of repose acts as an absolute bar to plaintiff’s Section 10(b) claims. The most recent violation of Section 10(b) of which plaintiff complains occurred in August of 1984. Accordingly, plaintiff was required to commence an action on or before August of 1987, three years after the occurrence of the conduct alleged to have violated the statute. Since plaintiff’s original complaint was filed in December of 1989, his Section 10(b) claims must now be dismissed. 3. Plaintiff’s RICO claim Defendants also seek to dismiss plaintiff’s RICO claims as time-barred. In Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), the Supreme Court held that a four-year statute of limitations should apply to all civil RICO actions regardless of the predicate acts involved. Subsequently, in Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989), the Second Circuit held “each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962, a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovers or should have discovered the injury.” Id. at 1102. This limitations standard, in contrast to the 10b-5 statute of repose discussed above, is subject to equitable tolling. Nonetheless, defendants argue vigorously that this Court should grant summary judgment on plaintiff’s RICO claims. Specifically, defendants contend that the four-year RICO statute of limitations begins to run when the plaintiff should have discovered his RICO injury in the exercise of “reasonable diligence.” Griffin v. McNiff 744 F.Supp. 1237, 1255 (S.D.N.Y.1990) (citing" }, { "docid": "5363693", "title": "", "text": "the Supreme Court in Malley-Duff explicitly declined to decide when a civil RICO cause of action is deemed to accrue. The various circuit courts have addressed this issue since. In Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), the Second Circuit explored the question of the accrual of civil RICO claims in some depth. The Court held that “each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962, a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovered or should have discovered that injury.” Id. at 1102. The focus of accrual in a RICO action is different from that for a fraud claim where the focus is on the acts of defendants. In a RICO action, the focus is on the injury to plaintiff. Indeed, a plaintiff may not recover under RICO until he or she has been injured as a result of the alleged racketeering activity. Thus, “[ujntil such injury occurs, there is no right to sue for damages under § 1964(c), and until there is a right to sue under § 1964(c), a civil RICO action cannot be said to have accrued.” Id. Thus, it is the injury, not the racketeering activity which triggers the statute of limitation for a RICO action. In this ease, plaintiffs cannot be said to have learned of their injury, the loss of their investment and any possible benefits from that investment, until 1986, when the Internal Revenue Service disallowed their tax deductions. Thus, plaintiffs’ RICO claim cannot be said to be time barred. This is not inconsistent with the Court's finding above that plaintiffs’ securities law claim accrued at the time of purchase. The statute of limitation for the securities law violation focuses on plaintiffs’ knowledge of defendants’ actions, while the RICO statute of limitation focuses on plaintiffs’ knowledge of when they were actually harmed by those actions. Despite the fact the plaintiffs’ RICO claim was filed in a timely fashion, it" }, { "docid": "17466967", "title": "", "text": "are divided about the proper answer to this question, and because the district court has followed the minority view, we agreed to answer this question. After considering the arguments, we find that we agree with the majority view, which ties “accrual” to the time a plaintiff knew or should have known of his injury. We shall follow the principles adopted by the Second Circuit in Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). In addition, the plaintiffs would like us to answer several other certified questions. For reasons that we shall explain in Part II below, we lack jurisdiction to do so. I The RICO Question The RICO provision relevant to this appeal makes it a crime for any person ... to conduct or participate ... in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity____ 18 U.S.C. § 1962(c). Another section permits any person injured in his business or property by reason of a violation of section 1962 to recover treble damages. 18 U.S.C. § 1964(c). The Supreme Court has held that “the 4-year statute of limitations for Clayton Act actions, 15 U.S.C. § 15b, [is] the most appropriate limitations period for RICO actions.” Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 2767, 97 L.Ed.2d 121 (1987). A number of circuit courts of appeals, in applying this statute of limitations, have decided that the statute begins to run when a plaintiff discovered, or should have discovered, his injury. The Second Circuit, for example, has written that each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962, a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovered or should have discovered the injury. Rhoades, 859 F.2d at 1102; accord Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir.1988); State Farm Mut. Auto. Ins. Co. v. Ammann, 828 F.2d 4, 5 (9th Cir.1987) (Kennedy, J., concurring); Pocahontas Supreme" }, { "docid": "880804", "title": "", "text": "advertised defective product. The court held that because this injury was admittedly known to these plaintiffs before June 2, 1984, the fact that they replaced the units thereafter was not a new injury, but a recharacterization of the same injury. Support for the district court’s approach to injury can be found in both Bivens Gardens Office Building v. Barnett Bank, 906 F.2d 1546, 1555 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991), and Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Although these courts diverge somewhat in their approach, both opinions recognize that there can be separate accrual of the statute of limitations from new injuries, but both expressly confine such separate accrual to “new and independent injuries.” We find the opin ion in Bivens Gardens in this respect persuasive. It adopts the Keystone rule, but explains “that with respect to each independent injury to the plaintiff, a civil RICO cause of action begins to accrue as soon as the plaintiff discovers, or reasonably should have discovered, both the existence and source of his injury and that the injury is part of a pattern.” 906 F.2d at 1554-55 (emphasis added). The facts in both of those cases illustrate the kinds of injuries that are new and independent. In Bankers Trust, there were three separate incidents of injury arising from (1) common law fraud and bankruptcy fraud in 1974-1976; (2) frivolous lawsuits and bribery in 1978-1979, and; (3) fraudulent conveyances in 1981-1982. See Bivens Gardens, 906 F.2d at 1552 (discussing Bankers Trust). In Bivens Gardens, the court considered as separate and independent injuries those resulting from the defendants’ wrongful takeover of plaintiffs hotel in 1975; defendants’ mismanagement and diversion of assets between 1975 and 1981; and defendants’ wrongful sale of the hotel in 1981. The court held that the claim with respect to the injuries from the 1975 takeover was barred because the suit was not filed until 1983, even though the pattern of racketeering was alleged to have continued until" }, { "docid": "1749287", "title": "", "text": "106 L.Ed.2d 195 [1989] [applying standard in context of civil RICO action]). In addition, such a motion is addressed solely to the face of a pleading, and “[t]he court’s function ... is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient” (754 F.2d at p. 1067). In assessing the sufficiency of a pleading on a motion to dismiss, it is well settled that the court must, of course, accept the allegations of the complaint as true (see Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 [2d Cir.1989], cert. denied, — U.S. -, 110 S.Ct. 723, 107 L.Ed.2d 743 [1990]), and draw all reasonable inferences favorably to 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 sub nom. Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 [1989]). Elements of a RICO Cause of Action. Section 1962 of RICO makes it unlawful to: (a) invest income “derived from a pattern of racketeering activity” in an interstate enterprise; (b) acquire or maintain an interest or control in an enterprise “through a pattern of racketeering”; (c) participate in the conduct of an enterprise’s affairs \"through a pattern of racketeering”; or (d) conspire to violate any of these substantive prohibitions {see 18 U.S.C. § 1962). Section 1964(c) creates a private right of action. The plaintiffs’ Amended Complaint alleges violations of 1962[c] (First Claim for Relief); 1962[b] (Second Claim for Relief); and 1962[d] (Third Claim for Relief). The threshold pleading requirements of a private action under section 1962 of RICO were set forth in Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir.1983), cert. denied sub nom. Moss v. Newman, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984), as follows: “To state a claim for damages under RICO a plaintiff has two pleading First, he must allege that the defendant has violated the substantive RICO" }, { "docid": "7534765", "title": "", "text": "lapse of time.”) (internal quotation marks and citations omitted). Because the last possible date on which Video-USA securities could have been sold was September 30, 1986, and because the complaint was filed more than three years after that date, plaintiffs have failed to meet the three-year limitation. Accordingly, the Court dismisses the section 12(2) claims against the Primary Defendants as time-barred. III. RICO Claims Plaintiffs allege that the Primary Defendants engaged in a pattern of racketeering in violation of 18 U.S.C. § 1962(a)-(d). A. Statute of Limitations The Primary Defendants first argue that plaintiffs’ RICO claims are time-barred because the complaint was filed more than four years after a November 26, 1985 New York Post article that described David Greenberg as the founder and a consultant to Video USA Ltd. In Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), the Supreme Court announced a four-year statute of limitations for civil RICO claims but declined to decide the question of when such civil RICO actions accrue. Id., at 153-57, 107 S.Ct. at 2766-67. In the aftermath of Agency Holding Corporation, a circuit split has developed, and as many as a half a dozen conflicting accrual rules have emerged. Bingham v. Zolt, 66 F.3d 553, 559 (2d Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1418, 134 L.Ed.2d 543 (1996) (discussing the circuit split). The Second Circuit has adopted a “separate accrual rule” under which a new civil RICO claim accrues, and a new four-year limitations period is triggered, each time that a plaintiff discovers or should have discovered a new injury caused by the predicate RICO acts. Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1101 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 & 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989); see also Cru den v. Bank of New York, 957 F.2d 961, 977 (2d Cir.1992). Plaintiffs mention the New York Post article in one paragraph of their complaint, but they do not allege that they learned of the fraud from the" }, { "docid": "7737928", "title": "", "text": "Co. v. Rhoades, 859 F.2d 1096, 1102 (2d Cir. 1988), cert, denied, 490 U.S. 1007, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), which held: “each time a plaintiff suffers an injury caused by a [RICO] violation ..., a cause of action to recover damages based on that injury accrues to plaintiff at the time he discovered or should have discovered the injury”. Id. at 1102. This “separate accrual” rule is a variant of the “injury discovery” rule adopted by our court in Rotella v. Wood, 147 F.3d 438, 440 (5th Cir.1998), aff'd, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). Under the “injury discovery” rule, a civil RICO claim accrues when the plaintiff discovers, or should have discovered, the injury. Id. When a pattern of RICO activity causes a continuing series of separate injuries, the “separate accrual” rule allows a civil RICO claim to accrue for each injury when the plaintiff discovers, or should have discovered, that injury. Bankers Trust, 859 F.2d at 1102. The Second Circuit relied on two sources as support for the “separate accrual” rule, the first of which is RICO’s plain language: a civil RICO action may be filed only by a “person injured in his business or property by reason of a violation of [18 U.S.C. §] 1962”. Id. (quoting 18 U.S.C. § 1964(c)). “Until such injury occurs, there is no right to sue for damages under § 1964(c), and until there is a right to sue under § 1964(c), a civil RICO action cannot be held to have accrued”. Id. The court noted, however, that, “[e]ven after injury has occurred, ... and a civil RICO claim has accrued, there will frequently be additional, independent injuries that will result from the same violation of § 1962, but which, because they will not occur until some point in the future, are not yet actionable as injuries to plaintiffs business or property”. Id. at 1103. Because a single RICO violation consists of a “pattern” of illegal acts, “each of which, standing alone, may injure a plaintiff’, multiple injuries may be caused by a single" }, { "docid": "3803885", "title": "", "text": "violation of § 1962, a new cause of action arises as to that injury, regardless of when the actual violation occurred. A plaintiff under Malley-Duff, must then bring his action within four years of this accrual to recover damages for the specific injury. Naturally, as with all rules of accrual, the standard tolling exceptions apply. Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1105 (2d Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Two courts have noted that the Bankers Trust rule of separate accrual does not address the pattern element of a civil RICO claim, focusing solely on the injury element. Bivens Gardens Office Bldg. v. Barnett Bank, 906 F.2d 1546, 1553 (11th Cir.1990); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1129 (3rd Cir.1988). Because a civil RICO action requires predicate acts which constitute a “pattern of racketeering activity,” see 18 U.S.C. § 1961(5), we think that the more complete rule is that with respect to each independent injury to the plaintiff, a civil RICO cause of action begins to accrue as soon as the plaintiff discovers, or reasonably should have discovered, both the existence and source of his injury and that the injury is part of a pattern. Bivens Gardens, 906 F.2d at 1554-55. This rule recognizes that a civil RICO plain tiff must allege not only injury, but also that the injury is part of a pattern of racketeering activity, to state a claim. Id. Standard tolling exceptions continue to apply. Bankers Trust, 859 F.2d at 1105. Because the district court did not consider the limitations issue in terms of injury and pattern, and because standard tolling exceptions might apply, we vacate that portion of the judgment dismissing the civil RICO claims and remand the RICO accrual determination for reconsideration in view of this opinion. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART and REMANDED. . During the pendency of this appeal, defendant-appellee Smith filed a chapter seven bankruptcy petition which remains pending. In re Smith, No. 90-30220-TCB (Bankr.S.D.Fla., filed Jan. 11, 1990). Accordingly, the automatic stay provision, 11 U.S.C. §" } ]

[ { "docid": "22549097", "title": "", "text": "does not cease. It only becomes more difficult because of the more delicate judgments to be made. Our judgment here is that, on all the facts, this conviction cannot-stand. Petitioner was a foreign-born young man of 25 with no past history of law violation or of subjection to official interrogation, at least insofar as the record shows. He had progressed only one-half year into high , school and the record indicates that he had a history of emotional instability. He did not make a narrative statement, but was subject to the leading questions of 'a skillful prosecutor in a question and.answer confession. He was subjected to questioning not by a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the District Attorney’s Office, Deputy Inspector Halks, Lieutenant Gannon, Detective Ciccone, Detective Motta, Detective Lehrer, Detective Marshal, Detective- Farrell, Detective Leira, Detective Murphy, •Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer Baldwin. All played some part, and the effect of such massive official interrogation must have been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with his only respite being a transfer to-an arena presumably considered more appropriate by the police for the task at hand. Nor was the questioning conducted during normal business hours, but began in early evening, continued into the night, and did not bear- fruition until the not-too-early morning. ■ The drama was not played out, with the final admissions obtained, until almost sunrise.' In such cir-. cumstances .slowly mounting fatigue does, and is calculated to, play its part. The questioners persisted in the face of his repeated refusals to answer on the advice of his attorney, and they ignored his reasonable requests to contact the local attorney whom he had already retained and who had personally delivered him into the custody of these officers in obedience to the bench warrant.' The use of Bruno, characterized-in this Court by counsel for the State as a “childhood, friend” of petitioner’s, is another factor which deserves mention in the totality of the situation. Bruno’s was the one face visible to" } ]

[ { "docid": "5612297", "title": "", "text": "we conclude that the denial of Goethke’s motion for severance did not result in clear prejudice to him and that the District Court did not abuse its discretion by denying the motion. X. Goethke’s final claim is that incriminating statements he gave to government investigators were involuntary and therefore should have been suppressed. We review such a claim de novo and will find the statements involuntary only if, considering the totality of the circumstances, there is evidence that the “defendant was coerced or his will overborne.” United States v. Wilson, 787 F.2d 375, 380-81 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 and 479 U.S. 865, 107 S.Ct. 223, 93 L.Ed.2d 151 (1986). Upon review of the totality of the circumstances, we agree with the District Court and the magistrate that Goethke’s statements were made voluntarily. A. Goethke argues that his statements were involuntary because he “was lead [sic] to believe that if he provided cooperation, that it would result in no prosecution for him.” Goethke’s Brief at 21. This argument is without substance. Goethke makes no effort to tell us how he allegedly “was lead to believe” that he would not be prosecuted, and nothing in the record supports the assertion that the government expressly or impliedly communicated that it would not indict Goethke if he cooperated. Although Goethke also relies on statements the government made after he had given his cooperation, he makes no effort to demonstrate how these statements influenced his decision to cooperate in the first place. Lacking a factual foundation, this claim must fail. B. Goethke also argues that his statements were involuntary because, like the interrogator in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), Agent Shoup, one of the agents who interviewed Goethke, befriended him falsely. In Spano, the defendant was a tense, emotionally unstable, foreign-born citizen of the United States with only a few months of high school education. He confessed to a murder after some eight hours of continuous interrogation by more than a dozen police officers. His repeated requests" }, { "docid": "23705746", "title": "", "text": "the accused; whether the accused has been informed of his constitutional rights; the length of the questioning; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). In Frazier v. Cupp, the Court held that a confession was voluntary, despite a police officer’s misrepresentation to the petitioner that an associate had confessed to the crime. 394 U.S. 731, 737-39, 89 S.Ct. 1420, 1423-25, 22 L.Ed.2d 684 (1969). Apparently, the petitioner had received partial warnings of his Miranda rights prior to making any incriminating statements. Furthermore, he was an adult of normal intelligence. In the Court’s view, “The fact that the police misrepresented the [eodefendant’s] statements ... is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.” Id. at 739, 89 S.Ct. at 1425. By contrast, in Spano v. New York, 360 U.S. 315, 322, 79 S.Ct. 1202, 1206-07, 79 L.Ed.2d 1265 (1959), a pre-Miranda case, the Court held that a confession had been involuntary. In that ease, a police officer whom the suspect knew as a close childhood friend persuaded the suspect that the officer might be fired if the suspect did not cooperate with him by giving a confession. Basing its opinion on the totality of circumstances, the Court noted that the confession was obtained after eight hours of continuous questioning by many law enforcement officials, including a skillful prosecutor, from early evening until almost sunrise. Furthermore, the questioning continued despite the suspect’s repeated requests to contact his attorney. Id. at 318-19, 79 S.Ct. at 1204-05. Throughout the questioning, he followed his attorney’s prior instructions not to answer any questions. Only after four lengthy sessions did he finally agree to make a statement. Id. at 319, 79 S.Ct. at 1204-05. In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), the suspect confessed only after the police repeatedly misrepresented to her that state financial aid for her children would be cut off and that" }, { "docid": "22333098", "title": "", "text": "not involved in the investigation of this case, was also present at Watson’s arrest and the search of her house. The facts of this case do not approach those in Spano, where the government used a longtime friend of the accused to coerce a confession. Spano had called his friend, officer Bruno, and told him about the events that led up to the shooting for which he was arrested. See Spano, 360 U.S. at 316, 79 S.Ct. at 1204. After Spano repeatedly refused, on advice of counsel, to answer questions from an assistant district attorney and police detectives, Bruno’s supervisors coached Bruno to tell Spano that his telephone call had “gotten him ‘in a lot of trouble,’ ” and that Spano should think of Bruno’s wife and three children. Id. at 319, 79 S.Ct. at 1205. Bruno pleaded with Spano at least four times before he confessed. In contrast, deputy Porter told Watson that he could not tell her what to do. He also informed her of her right to an attorney. Although he told her that another friend, detective Joe Harris, would be conducting the interrogation, a female FBI agent actually conducted the interrogation. The fact that deputy Porter exhibited sympathy and created an atmosphere of trust does not demonstrate the type of police overreaching prohibited by Spano. See United States v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir.1992) (“Expressions of sympathy by an officer are not coercive.”). Watson was allowed to call her mother, the only person she asked to call. Watson never asked to terminate the interview, never requested counsel, and signed a written waiver of her rights. Although she testified at the suppression hearing that agents threatened that she would never see her daughter again, the district court found that this testimony was not credible. Watson also argues that her confession was inadmissible under the Fifth and Sixth Amendments because it was obtained in violation of her right to counsel. Agent Norman testified that he read Watson her Miranda rights as soon as she was arrested and that she indicated that she understood those rights. This" }, { "docid": "18260471", "title": "", "text": "version of contested facts, it cannot agree with the state courts that the State met its burden of showing that Petitioner’s statements were voluntarily given. In reaching this conclusion, the Court has given particular attention to Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) In Spano, the defendant, after some eight hours of questioning, gave a confession; the confession was admitted at his trial, and the defendant was convicted. At the time of the questioning, the defendant had surrendered himself and had retained counsel. Following the instructions of his attorney, the defendant at first refused to answer questions, and' asked to talk to his attorney; this request was denied. Eventually, a fledgling police officer named Bruno, a close friend of the defendant, was induced to tell the defendant (falsely) that his job would be placed in jeopardy if the defendant did not talk. The defendant then gave a statement. In reversing the conviction on the ground that the confession was involuntary the Supreme Court emphasized three main factors: (1) the police officers’ denial of the defendant’s requests to talk to his attorney; (2) the psychological approach characterized by “sympathy falsely aroused” by Bruno; and (3) the intent of the police to get a confession from the defendant. 360 U.S. at 323-324. Factors closely analogous to these are present in the instant case. First, Detective Learning, although he did not deny during the automobile trip a direct request from Petitioner for his attorney, ignored his agreement with Mr. McKnight that Petitioner would not be questioned, refused Mr. Kelly permission to ride along in the car to Des Moines, and ignored Petitioner’s several statements that he would talk after he saw his attorney. Second, Detective Learning, with full knowledge of Petitioner’s religious nature and history of mental illness, used a psychological approach which purposefully played on religion and on Petitioner’s sympathies. Moreover, Detective Learning admittedly was less than honest with Petitioner concerning his supposed knowledge that the victim’s body was near Mitchellville. And third, Detective Learning himself admitted that it was his specific purpose in talking" }, { "docid": "23093328", "title": "", "text": "and may have created in Anderson’s mind a false sense that he must confess at that moment or forfeit forever any future benefit that he might derive from cooperating with the police agents. We think these kinds of misleading statements pose a serious constitutional problem. Although “[p]loys to mislead a suspect or to lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns,” Illinois v. Perkins, — U.S. —, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), the Supreme Court has found that affirmative misrepresentations by the police may be sufficiently coercive to invalidate a suspect’s waiver of the Fifth Amendment privilege. See, e.g., Lynumn, 372 U.S. at 534-35, 83 S.Ct. at 920-21 (repeated misrepresentations by police that suspect would be deprived of financial aid for dependent child if she failed to cooperate rendered subsequent confession involuntary); Spano v. New York, 360 U.S. 315, 322-23, 79 S.Ct. 1202, 1206-07, 3 L.Ed.2d 1265 (1959) (misrepresentation by suspect’s friend that friend would lose his job as a police officer if the suspect failed to cooperate rendered his statement involuntary); cf. Leyra v. Denno, 347 U.S. 556, 561, 74 S.Ct. 716, 719, 98 L.Ed. 948 (1954) (“already physically and emotionally exhausted suspect’s ability to resist interrogation was broken to almost trance-like submission by the use of the arts of a highly skilled psychiatrist”). In Miranda the Court expressly disapproved deceptive stratagems such as giving false legal advice, stating: “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476, 86 S.Ct. at 1629. And, in Moran, it expressly distinguished a failure of the authorities to notify a defendant being questioned that a lawyer had called the station house and tried to speak with him— grounds the Court deemed insufficient to violate Miranda — from “the kind of ‘trick[ery]’ that can vitiate the validity of a waiver.” Moran, 475 U.S. at 423, 106 S.Ct. at 1142 (citing Miranda);" }, { "docid": "5612296", "title": "", "text": "States v. O’Connell, 841 F.2d 1408, 1432 (8th Cir.), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988) and 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). Goethke and the other defendants were charged with conspiring to launder money. Contrary to Goethke’s assertion, the fact that James Long was acquitted on Count IX is evidence that the jury was well able to compartmentalize the evidence. See, e.g., id. at 1433. The jury may have disbelieved Davis, the key witness against James Long, and therefore found that he never knew Davis’s funds were “the proceeds of some form of unlawful activity.” 18 U.S.C. § 1956(a)(1). But the jury nevertheless could have reached a different conclusion regarding Goethke given that Goethke admitted he previously processed a credit application for Davis that he knew contained a false job at a company he knew was a front for drug dealers. Accordingly, as Goethke was charged as a member of a conspiracy, and as the jury appears to have been able to compartmentalize the evidence, we conclude that the denial of Goethke’s motion for severance did not result in clear prejudice to him and that the District Court did not abuse its discretion by denying the motion. X. Goethke’s final claim is that incriminating statements he gave to government investigators were involuntary and therefore should have been suppressed. We review such a claim de novo and will find the statements involuntary only if, considering the totality of the circumstances, there is evidence that the “defendant was coerced or his will overborne.” United States v. Wilson, 787 F.2d 375, 380-81 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 and 479 U.S. 865, 107 S.Ct. 223, 93 L.Ed.2d 151 (1986). Upon review of the totality of the circumstances, we agree with the District Court and the magistrate that Goethke’s statements were made voluntarily. A. Goethke argues that his statements were involuntary because he “was lead [sic] to believe that if he provided cooperation, that it would result in no prosecution for him.” Goethke’s Brief at 21. This" }, { "docid": "3490662", "title": "", "text": "school officials believed he had difficulty distinguishing between fantasy and reality and believed he could be talked into anything. Armed with this knowledge, appellants proceeded to interrogate Wilson for over four hours. The district court described it thus: Four different officers interrogated Wilson; he was never left alone and no friend, family member, guardian or ad-visor was ever present. The officers lied to Wilson. They told him that there were eyewitnesses placing him at the scene prior to the time of the fire. They told him about Gary Wall’s statement that Wilson had told Wall, before anyone else knew, that Ms. Martz had been tied and burned in the fire. They offered to help Wilson obtain leniency if he confessed to the murder. They falsely in formed him that their psychiatrist had analyzed him. They insisted that he would undoubtedly be found guilty if he did not confess. Then, when Wilson failed to provide correct details about the crime, they rebuked him for not cooperating and offered those details to him in a leading question format. Through the entire interrogation, Defendants used threatening tones and language. They restricted Wilson’s freedom of movement and refused to accept his repeated protestations of innocence. They even threatened to use these protestations against him by claiming that his “lies” could subject him to even harsher penalties. Wilson v. Lawrence County, 96-5026-CV-SW-1, slip op. at 24 (W-D.Mo.2000). Of particular concern, in addition to the general threats and intimidation that may have been employed to overbear Wilson’s will, is the fact that the officers relied largely on leading questions to secure this confession from Wilson. Spano, 360 U.S. at 322, 79 S.Ct. 1202 (noting that involuntary confession was not delivered in narrative fashion, but rather in response to “leading questions of a skillful prosecutor in a question and answer confession”); Fikes, 352 U.S. at 195, 77 S.Ct. 281 (describing involuntary confession that was delivered in response to yes-or-no questions, “some of which were quite leading or suggestive”). There are sufficient facts in the record to support the conclusion that the officers set out to secure a" }, { "docid": "3490661", "title": "", "text": "107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (stating that mental condition is surely relevant to an individual’s susceptibility to police coercion); Spano v. New York, 360 U.S. 315, 321-22, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) (reversing conviction because confession was involuntary because of effect of psychological coercion on suspect who was foreign-born, completed one-half year of high school, and had a history of mental instability); Fikes v. Alabama, 352 U.S. 191, 196-98, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957) (reversing a conviction because the coercion applied against a person who was “weak of will or mind” deprived him of due process of law); see also United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989) (stating that when judging the volun-tariness of a confession one must consider the conduct of law enforcement officers and the ability of the suspect to resist coercion). The appellants’ own investigative reports reveal they were aware that although Wilson graduated from high school, he had attended largely, if not exclusively, special education classes; school officials considered him mentally handicapped; school officials believed he had difficulty distinguishing between fantasy and reality and believed he could be talked into anything. Armed with this knowledge, appellants proceeded to interrogate Wilson for over four hours. The district court described it thus: Four different officers interrogated Wilson; he was never left alone and no friend, family member, guardian or ad-visor was ever present. The officers lied to Wilson. They told him that there were eyewitnesses placing him at the scene prior to the time of the fire. They told him about Gary Wall’s statement that Wilson had told Wall, before anyone else knew, that Ms. Martz had been tied and burned in the fire. They offered to help Wilson obtain leniency if he confessed to the murder. They falsely in formed him that their psychiatrist had analyzed him. They insisted that he would undoubtedly be found guilty if he did not confess. Then, when Wilson failed to provide correct details about the crime, they rebuked him for not cooperating and offered those details to him in a leading question" }, { "docid": "11293692", "title": "", "text": "the killings. Id. It is unclear what Enable meant when he said that their child would go “into never, never land.” However, it was not unreasonable for the court to characterize Enable’s statement as an assessment of the possible consequences of Loza’s actions, albeit phrased in hyperbolic terms. As the court noted, most of the detectives’ references to Jackson during the interrogation were in response to Loza’s questions about what would happen if Jackson were charged and prosecuted. Viewed in context, the detectives’ comments do not appear to be threats. Even if we believed that some statements could be characterized as threats, our mere disagreement is not enough to supersede the Ohio Supreme Court’s factual determination on habeas review. See Rice, 546 U.S. at 341-42, 126 S.Ct. 969. Next, Loza argues that the Ohio Supreme Court’s determination that his confession was voluntary is contrary to Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), and Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), two pre-Miranda cases in which the Supreme Court reversed defendants’ convictions based on involuntary confessions. In Spano, several officials questioned the defendant, a 25-year-old immigrant with only a half-year of high school education and a history of emotional instability, “for virtually eight straight hours before he confessed” to a killing. 360 U.S. at 322, 79 S.Ct. 1202. During the interrogation, police asked a “fledgling police officer” and close friend of the defendant to falsely tell the defendant that the officer could lose his job, leaving him unable to provide for his pregnant wife and three children. Id. at 317-19, 79 S.Ct. 1202. The Court concluded that the defendant’s “will was overborne by official pressure, fatigue and sympathy falsely aroused.” Id. at 323, 79 S.Ct. 1202. In Lynumn, the defendant confessed to unlawful possession and sale of marijuana after officers told her that she would be sent to jail, her state financial aid would be cut off, and her children would be taken away. 372 U.S. at 533, 83 S.Ct. 917. The threats were made while the defendant" }, { "docid": "5612273", "title": "", "text": "to which Lindsey never had paid state income taxes, and from which Lindsey was receiving letters. To deal with this problem, Graham had Lindsey sign an “Independent Dealer’s Agreement” with West Auto Brokers. Bell signed this document on behalf of West Auto Brokers. Each month thereafter Graham would receive a West Auto Brokers paycheck made out to Lindsey and signed by Bell. He then would sell the check to Lindsey for its face amount plus $700. In this manner Lindsey could appear to have a legitimate income, and thus could pay taxes to satisfy the state. Lindsey considered this arrangement too expensive, however, and he discontinued it after receiving his third check. John Taylor was another of the several drug dealers who had dealings with the defendants. He used drug money to purchase a 1987 Cadillac Fleetwood from Goethke for about $27,000. Goethke, the finance and insurance manager at Long Cadillac, sent Taylor to Long Imports to have Graham arrange financing. Ultimately Taylor submitted a credit application listing a false job at a company called Carpets By Bob. Goethke processed that application and Taylor’s credit was approved. William Davis, another drug dealer, used drug money to purchase a 1986 Cadillac from James Long at Long’s Other Place. Although Davis did have a job, his legitimate income was not high enough to acquire financing, so James Long obtained a false job for him at Carpets by Bob. Next Davis and James Long went to Long Cadillac to meet with Goethke who then had Davis sign the “finance papers.” Transcript at 503, 506 (Testimony of Davis). During the government’s investigation of this case, its agents conducted several interviews with Goethke. Goethke admitted that he knew Carpets by Bob was a “front” that was being used to provide a fictional cover of employment to drug dealers. Transcript at 1894-95 (Testimony of Agent Shoup). He also admitted that he processed a credit application by Taylor knowing that it was false, and that he processed other false credit applications including one for Davis. On April 3, 1991, based upon these facts and a wealth of" }, { "docid": "23705747", "title": "", "text": "case, the Court held that a confession had been involuntary. In that ease, a police officer whom the suspect knew as a close childhood friend persuaded the suspect that the officer might be fired if the suspect did not cooperate with him by giving a confession. Basing its opinion on the totality of circumstances, the Court noted that the confession was obtained after eight hours of continuous questioning by many law enforcement officials, including a skillful prosecutor, from early evening until almost sunrise. Furthermore, the questioning continued despite the suspect’s repeated requests to contact his attorney. Id. at 318-19, 79 S.Ct. at 1204-05. Throughout the questioning, he followed his attorney’s prior instructions not to answer any questions. Only after four lengthy sessions did he finally agree to make a statement. Id. at 319, 79 S.Ct. at 1204-05. In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), the suspect confessed only after the police repeatedly misrepresented to her that state financial aid for her children would be cut off and that her children would be taken from her if she did not cooperate. Id. at 534, 83 S.Ct. at 920-21. The suspect had no previous experience in criminal law and had no reason to doubt the officers’ power and intention to carry out their threats. Furthermore, the threats were made while three police officers encircled the suspect in her apartment. Under the totality of those circumstances, the Court found that her confession had been coerced. Ibid. In United States v. Rigsby, 943 F.2d 631 (6th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992), this court affirmed the conviction of a defendant who confessed to police only a few hours after his arrest. During the arrest, the police had warned him that his head would be “busted in” if he turned around. However, this court held that the confession, which was given later, in the presence of the suspect’s mother, had not been induced by the earlier threat of violence. Id. at 634. In McCall v. Dutton, 863 F.2d 454 (6th Cir.1988)," }, { "docid": "10761440", "title": "", "text": "prior to the act to detect the offense, it may be utilized after the act to identify the offender. Defendant’s reliance upon Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L. Ed.2d 1265 (1959) is misplaced. Spano, who had been advised by his attorney to make no statements was subjected by numerous law enforcement officers to questioning for five hours, during which his repeated requests for a consultation with his attorney were denied. He was subjected also to the option of not talking and having his friend, a police officer, lose his job. The trickery involved was the false representation that Spa-no’s friend, the police officer, would lose his job. Of course, that trickery was relevant and did not detract from, and may have added something to, the other factors, which, even without such trickery, would have compelled the non-use of the confession. Conspicuous in this case is the absence of any prolonged questioning, and even any claim by defendant that he was threatened or abused in any manner. His only claim of promises made to him is, in effect, that on the morning of the 11th, before the confession, the detective said that he would get him a good lawyer the next day and help him take care of his business and personal affairs, and said to him: “you help me and I’ll help you.” On the other hand, the detective specifically denied telling the defendant that he would get him a good lawyer and denied making him any promises whatsoever, except to get him a court-appointed attorney. The motion of the respondent in this case for summary judgment is hereby granted and counsel for respondent may prepare and present an appropriate order, after affording counsel for defendant opportunity for suggestions as to form. . The defendant, in his contested confession of December 11,1972, states it this way: 12-11-72 I, Charles F. Moore went to the Dempsey residence at 108 Leota Circle at about 11:00 pm 9th of December, 1972. We, (Jack and I) had a few drinks while talking about his cars and my business" }, { "docid": "5612278", "title": "", "text": "the car.” Transcript at 132 (Testimony of Robert Mrak). Long testified that he never asked about Lindsey's job. From this evidence, a reasonable jury could conclude that Long knew Lindsey was paying for his cars with drug money. The evidence of Goethke’s knowledge is even more damning. In the sales of the 1987 Fleetwood to Taylor and the 1986 Cadillac to Davis, Goethke processed credit applications that used Carpets by Bob as a false place of employment. At trial, an IRS agent testified that, during the pre-indictment investigation of this case, Goethke told the government that he knew Carpets by Bob was a “front” that would verify the employment of drug dealers. Transcript at 1895 (Testimony of Agent Shoup). The same agent testified that Goethke admitted he processed John Taylor’s credit application knowing it to be false and that on a different occasion he processed a false application for Davis. The jury certainly could infer from this evidence that Goethke knew Taylor and Davis were using drug money to purchase their vehicles. The evidence of Bell’s knowledge, however, is not nearly as strong. When Lindsey needed to use West Auto Brokers to obtain financing, he contacted Graham, not Bell. Likewise, when he made “under the table” payments and when he purchased paychecks, he dealt only with Graham, not Bell. Nevertheless, we find the evidence sufficient to support the jury’s finding that Bell knew Lindsey was purchasing cars with drug money. Lindsey testified that he financed the purchase of several automobiles using West Auto Brokers as a bogus place of employment and that each time he did so he had to pay Graham between $200 and $400. He also testified that on at least a couple of occasions, Graham told him that he split these payments with “the guy that runs the car lot,” Transcript at 632 (Testimony of Lindsey), who Graham identified as “Gerry.” Regarding Graham’s check scheme, Lindsey testified that the “Independent Dealer’s Agreement” was a sham from the beginning, that he never worked for West Auto Brokers, and that it was Graham who brought him the checks. Legitimate" }, { "docid": "5612300", "title": "", "text": "Goethke was not in custody or under arrest at any point during these interviews, nor was he compelled to appear at any interview, to make himself available for questioning, or otherwise to answer any questions. He was free to terminate the questioning at any time, a freedom he in fact exercised on one occasion. The record supports the conclusion that Goethke is of at least average intelligence and that his will is not easily overborne. Finally, unlike Spano’s interrogation, there was nothing overtly oppressive or coercive about any of Goethke’s interviews. Thus, considering the totality of circumstances, even if we accept Goethke’s claim that Agent Shoup falsely befriended him, we conclude that Goethke’s statements were voluntary and properly admitted into evidence. XI. A. Bell contends that his grand jury testimony should have been suppressed because it was the product of “subtle coercion.” Bell’s Brief at 26. The magistrate disagreed, finding the circumstances of Bell’s grand jury testimony “virtually indistinguishable” from the circumstances in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977), in which the Supreme Court rejected a similar argu ment. Report and Recommendation (Suppression of Statement) at 3 (Apr. 15, 1991). Moreover, the magistrate implicitly concluded that Bell’s testimony had not been compelled. Accordingly, based upon Washington, the magistrate recommended that Bell’s suppression motion be denied. The District Court agreed. Bell argues, however, that Washington is not controlling because, unlike the defendant in Washington, Bell was not asked if he wanted to assert or waive his rights. We find this argument unpersuasive. In Washington the Supreme Court reasoned that “[a]bsent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, ... incriminating [grand jury] testimony cannot conflict with any constitutional guarantees of the privilege.” Washington, 431 U.S. at 187, 97 S.Ct. at 1818-19 (emphasis added). In this case, there is nothing to suggest coercion. To the contrary, Bell was advised of his rights in a clear and thorough manner shortly before he testified. He also stated that he understood" }, { "docid": "5612277", "title": "", "text": "in question were designed to “conceal or disguise the nature, the location, the source, the ownership, or the control of [drug] proceeds,” 18 U.S.C. § 1956(a)(l)(B)(i); and (3) they knew the transactions were designed to so conceal or disguise drug proceeds. Reviewing the evidence in the light most favorable to the government and giving it the benefit of all reasonable inferences, see, e.g., United States v. Schubel, 912 F.2d 952, 955 (8th Cir.1990), we find the evidence sufficient to support the substantive money laundering convictions. At trial, Lindsey testified that Long on one occasion counselled him to keep his payments below $10,000 because otherwise “they have to turn it in to the IRS.” Transcript at 678 (Testimony of Lindsey). One of Long’s co-workers testified that Long told him Lindsey was taking over the drug-dealing business of an individual named Ralph Duke, who was prominently identified with illicit trade in drugs. Another coworker testified that, after driving Lindsey’s car, Long said he was “glad [Lindsey] didn’t leave a couple of bags of, you know, drugs in the car.” Transcript at 132 (Testimony of Robert Mrak). Long testified that he never asked about Lindsey's job. From this evidence, a reasonable jury could conclude that Long knew Lindsey was paying for his cars with drug money. The evidence of Goethke’s knowledge is even more damning. In the sales of the 1987 Fleetwood to Taylor and the 1986 Cadillac to Davis, Goethke processed credit applications that used Carpets by Bob as a false place of employment. At trial, an IRS agent testified that, during the pre-indictment investigation of this case, Goethke told the government that he knew Carpets by Bob was a “front” that would verify the employment of drug dealers. Transcript at 1895 (Testimony of Agent Shoup). The same agent testified that Goethke admitted he processed John Taylor’s credit application knowing it to be false and that on a different occasion he processed a false application for Davis. The jury certainly could infer from this evidence that Goethke knew Taylor and Davis were using drug money to purchase their vehicles. The evidence of" }, { "docid": "11293693", "title": "", "text": "cases in which the Supreme Court reversed defendants’ convictions based on involuntary confessions. In Spano, several officials questioned the defendant, a 25-year-old immigrant with only a half-year of high school education and a history of emotional instability, “for virtually eight straight hours before he confessed” to a killing. 360 U.S. at 322, 79 S.Ct. 1202. During the interrogation, police asked a “fledgling police officer” and close friend of the defendant to falsely tell the defendant that the officer could lose his job, leaving him unable to provide for his pregnant wife and three children. Id. at 317-19, 79 S.Ct. 1202. The Court concluded that the defendant’s “will was overborne by official pressure, fatigue and sympathy falsely aroused.” Id. at 323, 79 S.Ct. 1202. In Lynumn, the defendant confessed to unlawful possession and sale of marijuana after officers told her that she would be sent to jail, her state financial aid would be cut off, and her children would be taken away. 372 U.S. at 533, 83 S.Ct. 917. The threats were made while the defendant was “encircled in her apartment by three police officers” and another man, a twice-convicted felon, who had “purportedly ‘set her up.’ ” Id. at 534, 83 S.Ct. 917. The defendant had no previous experience with criminal law and “no reason not to believe that the police had ample power to carry out their threats.” Id. Thus, the Court concluded that the defendant’s will was overborne. Id. The Ohio Supreme Court’s determination that Loza’s confession was voluntary is not contrary to Spano and Lynumn. Loza suggests that the facts of his case are “materially indistinguishable,” Williams, 529 U.S. at 405-06, 120 S.Ct. 1495, from the facts of these cases, but this is incorrect. First—and most importantly—Spano and Lynumn pre-dated Miranda. Unlike the defendants in these cases, Loza was read his Miranda rights and voluntarily waived them, making it very difficult for him to demonstrate that his confession was nonetheless involuntary. See Seibert, 542 U.S. at 609, 124 S.Ct. 2601; Berkemer, 468 U.S. at 433 n. 20, 104 S.Ct. 3138. Second, other circumstances of Loza’s interrogation distinguish" }, { "docid": "5612298", "title": "", "text": "argument is without substance. Goethke makes no effort to tell us how he allegedly “was lead to believe” that he would not be prosecuted, and nothing in the record supports the assertion that the government expressly or impliedly communicated that it would not indict Goethke if he cooperated. Although Goethke also relies on statements the government made after he had given his cooperation, he makes no effort to demonstrate how these statements influenced his decision to cooperate in the first place. Lacking a factual foundation, this claim must fail. B. Goethke also argues that his statements were involuntary because, like the interrogator in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), Agent Shoup, one of the agents who interviewed Goethke, befriended him falsely. In Spano, the defendant was a tense, emotionally unstable, foreign-born citizen of the United States with only a few months of high school education. He confessed to a murder after some eight hours of continuous interrogation by more than a dozen police officers. His repeated requests to see his attorney were denied. Ultimately, the police called upon an officer who had been his close friend for over eight years, “to play on [Spano’s] sympathies” in order to get him to confess. Id. at 319, 79 S.Ct. at 1205. This did not work at first and had to be repeated four times before Spano finally confessed. In reversing Spano’s conviction, the Supreme Court noted that the use of Spano’s friend in the interrogation “is [a] factor which deserves mention in the totality of the situation.” Id. at 323, 79 S.Ct. at 1207. Then, considering the totality of circumstances, the Court concluded that Spano’s confession was involuntary because his will had been overborne. Goethke’s statements, however, were made in circumstances markedly different from those in Spano. Goethke made the challenged statements during six interviews with government agents between December 13, 1989, and July 27, 1990. Of these six interviews, three were conducted at Goethke’s place of business, the other three at the FBI office, and all were scheduled for his convenience. Unlike Spano," }, { "docid": "22333097", "title": "", "text": "it occurred after the interrogating agents were aware that she wanted counsel, and that it violated her Sixth Amendment right to counsel because it occurred after she had been indicted, but had not waived her right to counsel. A confession is voluntary if under all the circumstances it is the product of the defendant’s free and rational choice. See United States v. Restrepo, 994 F.2d 173, 182 (5th Cir.1993). The voluntariness of a statement is reviewed on a case-by-case basis. Findings of the district court after an eviden-tiary hearing, including credibility choices made by the district court, are reviewed by this court under a clearly erroneous standard. Id. The ultimate issue of voluntariness, however, is a question of law subject to de novo review by this court. Watson’s claim that her confession was involuntary because it was the result of a “false friend” interrogation is based on the fact that the police used deputy Porter, a friend of Watson’s sister, to fingerprint, photograph, and interview her for a DEA “personal history.” Deputy Porter, who was not involved in the investigation of this case, was also present at Watson’s arrest and the search of her house. The facts of this case do not approach those in Spano, where the government used a longtime friend of the accused to coerce a confession. Spano had called his friend, officer Bruno, and told him about the events that led up to the shooting for which he was arrested. See Spano, 360 U.S. at 316, 79 S.Ct. at 1204. After Spano repeatedly refused, on advice of counsel, to answer questions from an assistant district attorney and police detectives, Bruno’s supervisors coached Bruno to tell Spano that his telephone call had “gotten him ‘in a lot of trouble,’ ” and that Spano should think of Bruno’s wife and three children. Id. at 319, 79 S.Ct. at 1205. Bruno pleaded with Spano at least four times before he confessed. In contrast, deputy Porter told Watson that he could not tell her what to do. He also informed her of her right to an attorney. Although he told" }, { "docid": "5612274", "title": "", "text": "Carpets By Bob. Goethke processed that application and Taylor’s credit was approved. William Davis, another drug dealer, used drug money to purchase a 1986 Cadillac from James Long at Long’s Other Place. Although Davis did have a job, his legitimate income was not high enough to acquire financing, so James Long obtained a false job for him at Carpets by Bob. Next Davis and James Long went to Long Cadillac to meet with Goethke who then had Davis sign the “finance papers.” Transcript at 503, 506 (Testimony of Davis). During the government’s investigation of this case, its agents conducted several interviews with Goethke. Goethke admitted that he knew Carpets by Bob was a “front” that was being used to provide a fictional cover of employment to drug dealers. Transcript at 1894-95 (Testimony of Agent Shoup). He also admitted that he processed a credit application by Taylor knowing that it was false, and that he processed other false credit applications including one for Davis. On April 3, 1991, based upon these facts and a wealth of other information, a United States grand jury charged Long, Goethke, Bell, and three other coconspira-tors with a total of ten counts of laundering drug money, conspiring to launder drug money, and structuring financial transactions. After a month-long jury trial Long was convicted of conspiring to launder money derived from the unlawful distribution of drugs (Count I), and laundering such money through the sale of a 1989 Eldorado to David Lindsey (Count VI); Bell was convicted of conspiring to launder money derived from the unlawful distribution of drugs (Count I), aiding and abetting the laundering of such money in the sale of the 1989 Eldorado to Lindsey (Count VI), and aiding and abetting the laundering of such money in the sale of a 1986 Mercedes-Benz to Lindsey (Count VII); and Goethke was convicted of conspiring to launder money derived from the unlawful distribution of drugs (Count I), laundering such money through the sale of a 1987 Cadillac to John Lee Taylor (Count VIII), and laundering such money through the sale of a 1986 Cadillac to William" }, { "docid": "5612299", "title": "", "text": "to see his attorney were denied. Ultimately, the police called upon an officer who had been his close friend for over eight years, “to play on [Spano’s] sympathies” in order to get him to confess. Id. at 319, 79 S.Ct. at 1205. This did not work at first and had to be repeated four times before Spano finally confessed. In reversing Spano’s conviction, the Supreme Court noted that the use of Spano’s friend in the interrogation “is [a] factor which deserves mention in the totality of the situation.” Id. at 323, 79 S.Ct. at 1207. Then, considering the totality of circumstances, the Court concluded that Spano’s confession was involuntary because his will had been overborne. Goethke’s statements, however, were made in circumstances markedly different from those in Spano. Goethke made the challenged statements during six interviews with government agents between December 13, 1989, and July 27, 1990. Of these six interviews, three were conducted at Goethke’s place of business, the other three at the FBI office, and all were scheduled for his convenience. Unlike Spano, Goethke was not in custody or under arrest at any point during these interviews, nor was he compelled to appear at any interview, to make himself available for questioning, or otherwise to answer any questions. He was free to terminate the questioning at any time, a freedom he in fact exercised on one occasion. The record supports the conclusion that Goethke is of at least average intelligence and that his will is not easily overborne. Finally, unlike Spano’s interrogation, there was nothing overtly oppressive or coercive about any of Goethke’s interviews. Thus, considering the totality of circumstances, even if we accept Goethke’s claim that Agent Shoup falsely befriended him, we conclude that Goethke’s statements were voluntary and properly admitted into evidence. XI. A. Bell contends that his grand jury testimony should have been suppressed because it was the product of “subtle coercion.” Bell’s Brief at 26. The magistrate disagreed, finding the circumstances of Bell’s grand jury testimony “virtually indistinguishable” from the circumstances in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d" } ]

[ { "docid": "22669619", "title": "", "text": "concluding that, under our decision in Lane v. Williams, 455 U. S. 624, 632 (1982), petitioner’s claim had become moot because he suffered no “collateral consequences” of the revocation order. 91 F. 3d 1114 (1996). (It acknowledged that this interpretation of Lane did not accord with that of the Second and Ninth Circuits in United States v. Parker, 952 F. 2d 31 (CA2 1991), and Robbins v. Christianson, 904 P. 2d 492 (CA 91990).) We granted certiorari. 520 U. S. 1165 (1997). II The District Court’s conclusion that Spencer’s release from prison caused his petition to be moot because it no longer satisfied the “in custody” requirement of the habeas statute was in error. Spencer was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the “in custody” provision of 28 U. S. C. § 2254 requires. See Carafas v. LaVallee, 391 U. S. 234, 238 (1968); Maleng v. Cook, 490 U. S. 488, 490-491 (1989) (per curiam). The more substantial question, however, is whether petitioner’s subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution. “This case-or-eontroversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v. Continental Bank Corp., 494 U. S. 472, 477-478 (1990). See also Preiser v. Newkirk, 422 U. S. 395, 401 (1975). This means that, throughout the litigation, the plaintiff “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis, supra, at 477. An incarcerated convict’s (or a parolee’s) challenge to the validity of his conviction always satisfies the case-or-eontroversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Once the convict’s sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or" } ]

[ { "docid": "22123438", "title": "", "text": "to measure the prohibited conduct were unconstitutionally vague. Id. Because the court held the statute unconstitutional, Ms. Hamilton argues in her supplemental memorandum that the issue of the plaintiffs’ standing to challenge the Kansas Anti-Stalking Statute is now moot. The constitutional mootness doctrine is grounded in Article Ill’s requirement that federal courts only decide “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). “[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Osborn v. Durant Bank & Trust Co., 24 F.3d 1199, 1203 (10th Cir.1994) (citation omitted). The central question in determining whether a case has become moot is whether “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). In applying the constitutional mootness test, we hold that the plaintiffs’ claims related to the Kansas Anti-Stalking Statute are now moot due to the Kansas Supreme Court’s ruling in Bryan. The plaintiffs no longer have a live or redressable claim as related to the Kansas Anti-Stalking Statute because the statute has been held unconstitutional. Therefore, the plaintiffs no longer face any threat of prosecution under the statute as alleged in their Second Amended Complaint. Accordingly, we dismiss the plaintiffs’ appeal of the district court’s denial of their standing to challenge the Kansas Anti-Stalking Statute. B. Standing to Challenge the Kansas Telephone Harassment Statute As stated earlier, Article III of the Constitution requires a plaintiff to present an actual “case or controversy,” which, among other things, requires a plaintiff to show that they have standing. See Allen v. Wright, 468 U.S. at 750, 104 S.Ct. at 3324. To meet this requirement at an “irreducible constitutional minimum,” a plaintiff must demonstrate that (1) he or she has suffered an injury in fact; (2) there is a causal connection between the injury and" }, { "docid": "23018056", "title": "", "text": "district court’s grant of summary judgment as to all of his claims. We review the grant of summary judgment de novo, applying the same standard as the district court pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. See United States v. AMR Corp., 335 F.3d 1109, 1113 (10th Cir.2003). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We view the record in the light most favorable to the nonmoving party. See AMR Corp., 335 F.3d at 1113. However, before we may proceed to the merits, we must address two threshold issues: (1) whether Mr. Wirsching’s release from prison renders his claims moot; and (2) whether Mr. Wirsching has waived the right to appeal by failing to object to the magistrate judge’s recommendation. A. Mootness Under Article III of the United States Constitution, federal courts may adjudicate only “cases or controversies.” As a result, we must “decline to exercise jurisdiction where the award of any requested relief would be moot — i.e. where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir.1994) (citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). “The touchstone of the mootness inquiry is whether the controversy continues to ‘touch the legal relations of parties having adverse legal interests’ in the outcome of the case,” and this legal interest must be “more than simply the satisfaction of a declaration that a person was wronged.” Cox, 43 F.3d at 1348 (quoting DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam)). Generally, it is “the settling of some dispute which affects the behavior of the defendant toward the plaintiff’ that distinguishes a case or controversy from an advisory opinion. Id. at 1348 (quoting Hewitt v. Helms, 482 U.S. 755, 761, 107" }, { "docid": "23018057", "title": "", "text": "federal courts may adjudicate only “cases or controversies.” As a result, we must “decline to exercise jurisdiction where the award of any requested relief would be moot — i.e. where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir.1994) (citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). “The touchstone of the mootness inquiry is whether the controversy continues to ‘touch the legal relations of parties having adverse legal interests’ in the outcome of the case,” and this legal interest must be “more than simply the satisfaction of a declaration that a person was wronged.” Cox, 43 F.3d at 1348 (quoting DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam)). Generally, it is “the settling of some dispute which affects the behavior of the defendant toward the plaintiff’ that distinguishes a case or controversy from an advisory opinion. Id. at 1348 (quoting Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)). Here, following the parties and the district court, we read Mr. Wirsching’s complaint as asserting a 42 U.S.C. § 1983 action for (1) declaratory and injunctive relief and (2) damages. As to the former, there is no indication in the record that the remedies that Mr. Wirsching has sought— an order allowing visitation with his children and the opportunity to earn good time credits at a higher rate — would have any effect on the defendant CDOC officials’ behavior. Following Mr. Wirsching’s release from prison, “the entry of a declaratory judgment [and injunctive relief] in [Mr. Wirsching’s] favor would amount to nothing more than a declaration that he was wronged.” Green v. Branson, 108 F.3d 1296, 1299 (10th Cir.1997). Accordingly, we conclude that Mr. Wirsching’s claims for declaratory and injunctive relief are now moot. See id. (finding prisoner’s claims for declaratory and injunctive relief moot, in light of his release from incarceration, and collecting cases). In contrast, Mr. Wirsching’s damages claims are not moot. Despite Mr. Wirsch-ing’s release from" }, { "docid": "19912712", "title": "", "text": "Serv., 248 F.3d 1277, 1281 (10th Cir. 2001). “We will not set aside an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Utah Envtl. Congress v. Russell, 518 F.3d 817, 823 (10th Cir.2008) (quotation omitted); 5 U.S.C. § 706(2)(A). A. Mootness Respondents argue GYC’s claims as to the Alkali Creek, Fish Creek, Fall Creek, Muddy Creek, Dog Creek, and Upper Green River feedgrounds became moot in July 2008 when the environmental analysis of these feedgrounds was issued. GYC argues the claims fall within the voluntary cessation exception to the mootness doctrine. “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). “To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quotation omitted). “If a party to an appeal suggests that the controversy has, since the rendering of judgment below, become moot, that party bears the burden of coming forward with the subsequent events that have produced that alleged result.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993). “Vacatur is in order when mootness occurs through ... the unilateral action of the party who prevailed in the lower court.” Arizonans for Official English, 520 U.S. at 71-72, 117 S.Ct. 1055 (quotation omitted). An exception to the mootness doctrine can occur when a defendant voluntarily ceases a challenged action. ARW Exploration Corp. v. Aguirre, 947 F.2d 450, 453 (10th Cir.1991). This exception “traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). Thus, the voluntary cessation" }, { "docid": "22473881", "title": "", "text": "implicates the Article III requirement that there be a live case or controversy.” Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.1987). Under Article Ill’s case-or-controversy requirement, “[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a personal stake in the outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis, 494 U.S. at 477-78, 110 S.Ct. 1249). “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Bmps. Int’l Union, Local 1000, — U.S. —, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)). “[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. (alteration in original) (quoting Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984)). With these general mootness principles in mind, we turn to the case before us. On the face of his appeal, Here-dia-Holguin is claiming an error as to an aspect of his sentence — the term of supervised release — that is still in effect. Recent amendments to the sentencing guidelines state that “ordinarily” a term of supervised release will not be ordered for a deportable alien, and the application notes provide that a district court may order supervised release in such a scenario for “deterrence and protection” based on the facts of the case. U.S. SENTENCING Guidelines Manual (U.S.S.G.) § 5D1.1 & cmt. n.5. (U.S. Sentencing Comm’n 2015). Thus, the Sentencing Guidelines anticipate that such" }, { "docid": "10594829", "title": "", "text": "Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st Cir.2004) (“In every case, we are required to satisfy ourselves of jurisdiction.”) (citation omitted). We hold that it does. Article III, Section 2 of the United States Constitution limits our subject-matter jurisdiction to live cases or controversies. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). This “case-or-controversy requirement” means that parties “ ‘must continue to have a personal stake in the outcome’ ” through all the stages of judicial proceedings, trial and appellate. See id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). An appellant must have “suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis, 494 U.S. at 477, 110 S.Ct. 1249. In his bail appeal, Duelos requested that he be released from custody on bail during the pendency of his appeal. As Duelos has been released, the relief requested in his bail appeal has become extraneous. Accordingly, his bail appeal no longer satisfies the case-or-controversy requirement, having become altogether moot. We now turn to his lead appeal. In his lead appeal, Duelos challenges the district court’s determination that he failed to submit to Probation a truthful written report for the month of September, 2001 in violation of 18 U.S.C. § 1001 (violation number two). This, among others, was the basis for the revocation of his supervised release and the imposition of additional incarceration. A defendant’s ongoing incarceration, parole, or supervised release can satisfy the case- or-controversy requirement. Spencer, 523 U.S. at 7-8, 118 S.Ct. 978; United States v. Molak, 276 F.3d 45, 48 (1st Cir.2002) (“Just as a parolee would have a continuing stake in the outcome of a challenge to the underlying conviction and sentence because of the restriction imposed by the terms of the parole, so too a convicted defendant who is under an ongoing sentence of supervised release has a continuing stake in the outcome of a challenge to the underlying conviction and sentence.”)" }, { "docid": "3757285", "title": "", "text": "that “[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion’ ” as to all four elements. Id. (citing cases). III. DISCUSSION A. Effect of Amendment to Section 22-9 We initially consider the effect of the City’s amendment of Section 22-9 on this appeal because the “case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Indeed, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (citations and quotations omitted). This Court has addressed frequently the familiar intersection of mootness analysis and post-judgment alterations to legislative enactments. Such alterations do not automatically strip federal courts of viable cases. Instead, post-judgment alterations may moot a case to the extent they remove certain challenged features, but do not moot a case if they leave other challenged features substantially undisturbed. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1313 (11th Cir.2000) (rejecting suggestion of mootness when challenged portions of now-amended ordinance “have not been sufficiently altered so as to eliminate the issues raised”); see also Butler v. Alabama Judicial Inquiry Comm’n, 261 F.3d 1154, 1158 (11th Cir.2001) (finding challenge to ethical canon to be “live” despite subsequent modification because pending controversy remained as to narrowed canon); Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir.1992) (holding amendment to challenged park regulations did not moot case because “[w]here a superseding statute leaves objectionable features of the prior law substantially undisturbed” and challenged aspects “remain essentially as they were before the amendments,” the case is not moot). Our decision in Coalition is particularly instructive regarding how and when subsequent legislative activity does not moot an appeal. In Coalition, the district court found portions of a festival permit ordinance unconstitutional and enjoined its enforcement, but" }, { "docid": "22318455", "title": "", "text": "had concerning the APA claim insofar as 28 C.F.R. § 542.15 prohibits an inmate from raising on appeal an issue that was not raised at the initial and intermediate levels of the administrative remedy process. Burkey’s habeas corpus petition sought release from prison based on the invalidity under the APA of the Program Statement denying him early release. That relief was afforded him when, on the Magistrate Judge’s recommendation, the BOP released him in September of 2007 to begin serving his 3-year term of supervised release. Given this, is a case or controversy still presented? We conclude the answer is no, and, therefore, Burkey’s habeas corpus petition is moot. Under Article III of the Constitution, a federal court may adjudicate “only actual, ongoing eases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). “To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. (citing Allen v. Wright, 468 U.S. 737, 750-751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). Article III denies the District Court the power to decide questions that cannot affect the rights of litigants before it, and confines it to resolving live controversies “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.” Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The case or controversy requirement continues through all stages of federal judicial proceedings, trial and appellate, and requires that parties have a personal stake in the outcome. Lewis, 494 U.S. at 477-478, 110 S.Ct. 1249. “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be" }, { "docid": "19131997", "title": "", "text": "with its current vendor on March 31, 2014 and to commence negotiations with OFB immediately for a new contract to take effect on April 1, 2014. Id. at 28. OFB has continued its appeal, and we asked the parties to supply letter briefing regarding whether the appeal is now moot. II. ANALYSIS In its briefing before this court, OFB asks us to hold that the district court erred in finding that it lacked jurisdiction to issue a preliminary injunction, which could have stayed the awarding and implementation of the contract pending arbitration. At this point in time, the Army has already awarded the contract, arbitration has already been completed, and OFB has filed another suit in district court, seeking to enforce the arbitration panel’s decision. Therefore, two questions arise: (1) is OFB’s appeal moot; and (2) if not, did the district court err in its jurisdictional finding? We answer the first question in the negative and the second one in the affirmative. A. Mootness “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975)). “When — for whatever reason — the dispute discontinues or we are no longer able to grant meaningful relief to the prevailing party, the action is moot, and we must dismiss for lack of jurisdiction.” United States v. Blewett, 746 F.3d 647, 661 (6th Cir.2013) (Moore, J., concurring) (citing Knox v. Serv. Emp. Int'l Union, — U.S. -, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012)); accord Chafin v. Chafin, — U.S. -, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013). “ ‘[I]t is not enough that a dispute was very much alive when suit was filed.’ ” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 461, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (quoting Lewis, 494 U.S. at 477, 110 S.Ct. 1249)." }, { "docid": "22112924", "title": "", "text": "Meyers completed the term of imprisonment imposed as a result of the revocation. He is now out of prison, under no further terms of probation or supervised release. III. DISCUSSION Before a court addresses the merits of an appeal, it must first determine whether in fact it has jurisdiction over that appeal. Article III of the United States Constitution only extends federal judicial power to eases or controversies. U.S. Const. Art. Ill, § 2, cl. 1. “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). An appellant seeking relief “must have suffered, or be threatened with, an actual injury traceable to the [appellee] and likely to be redressed by a favorable judicial decision [by the appeals court].” Id. Thus, when the injury for which an appellant seeks judicial relief disappears or is resolved ex-trajudicially prior to the appellate court’s decision, the appellant can no longer satisfy the Article III case or controversy jurisdictional requirement and the appeal is moot. See Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). When an incarcerated criminal defendant appeals his conviction, the ongoing incarceration constitutes an injury from which the defendant seeks relief in satisfaction of Article III. See Spencer v. Kemna, 523 U.S. 1, -, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998). If, however, that same defendant completes his sentence prior to the appellate court decision, the court must determine whether sufficient collateral consequences flow from the underlying judgment and the completed sentence to save the appeal from mootness. See id. In Spencer, the Supreme Court acknowledged, though with some level of discomfort, its prior jurisprudence establishing a presumption of sufficient collateral consequences when a defendant who has already served his sentence appeals the propriety of his initial conviction. See id. at---, 118 S.Ct. at 983-85. Among other consequences resulting from a criminal conviction, the Court has recognized a host of civil disabilities imposed by law upon convicts. See, e.g., Carafas v. LaVallee, 391 U.S. 234," }, { "docid": "4472458", "title": "", "text": "of a shortened season. According to Missouri’s evidence, the adverse economic effects of. a shortened navigation season downstream from the dams are not the only risks associated with the 52 MAF trigger point. Missouri contends, for example, that the resultant change in total system storage will adversely affect wetlands and reduce habitat for a species of federally protected shore birds between the dams. (Appellant Br. at 17.) On March 12, 1996, the State of Missouri and the Mo-Ark Association filed the present suit claiming that the Corps issued the 1995-96 AOP without a detailed environmental statement as required by the NEPA. They later amended the complaint to include the 1996-97 AOP. On the parties’ cross-motions for summary judgment, the .district court ruled in favor of the Corps. Missouri appeals from this order. II. “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975)); see also South Dakota v. Hazen, 914 F.2d 147, 150 (8th Cir.1990). “It is of no consequence that the controversy was live at earlier stages in this case; it must be live when we decide the issues.” Hazen, 914 F.2d at 150 (citing Lewis, 494 U.S. at 477-78, 110 S.Ct. 1249). “Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, - n. 22, 117 S.Ct. 1055, 1069 n. 22, 137 L.Ed.2d 170 (1997) (quotations and citations omitted). A moot case calls into question Article Ill’s case or controversy requirement; therefore, we must first “consider and rule-upon the mootness question this case presents.” Hazen, 914 F.2d at 149; cf. Steel Co. v. Citizens for a Better Environment, — U.S. -, -, 118 S.Ct. 1003," }, { "docid": "18106075", "title": "", "text": "the judicial efficiency sought by the class-action mechanism. Article III of the Constitution only allows federal courts to adjudicate actual, ongoing cases or controversies. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272(1975). The case or controversy requirement ensures that “self-interested parties vigorously advocating opposing positions” present issues “in a concrete factual setting.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). When an action no longer satisfies the case or controversy requirement, the action is moot and a federal court must dismiss the action. See Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir.1999). Article III requires parties to have a continuing “personal stake in the outcome” of the lawsuit. Baker v.Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). This “personal stake” requirement “serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving.” Geraghty, 445 U.S. at 397, 100 S.Ct. 1202. Parties cannot by agreement confer jurisdiction upon a federal court. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guiñee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307, 1310 (8th Cir.1996). Thus, neither Norwest’s promise not to challenge Potter’s appeal as moot nor the settlement agreement’s provision reserving Potter’s right to appeal confer jurisdiction upon this court. Applying the above principles to settlements and class actions yields two relevant rules, one general and one specific. First, a federal court should normally dismiss an action as moot when the named plaintiff settles its individual claim, and the district court has not certified a class. See Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1045 (5th Cir.1981) (“a suit brought as a class action must" }, { "docid": "18106074", "title": "", "text": "Second, the agreement purports to reserve Potter’s right to appeal the district court order denying class certification. Third, Nor-west agreed not to contest this appeal as moot. Fourth, the parties agreed they did not waive their rights to recover attorney fees. After the settlement hearing, the district court dismissed Potter’s claims with prejudice. Potter appeals the district court’s order denying class certification. At oral argu ment, we inquired whether the parties’ settlement agreement caused the appeal to become moot because a case or controversy no longer existed under Article III of the Constitution. U.S. Const. Art. Ill, § 2, cl. 1. As counsel were not prepared at oral argument to discuss fully the jurisdictional issue, we requested supplemental briefing. II. DISCUSSION A. Case or Controversy Requirements Whether Potter, having settled the individual claims, presents a continuing Article III case or controversy to challenge a denial of class certification presents an issue of first impression for this court. The jurisdictional issue illustrates the tension between the restrictions imposed by Article III on the federal judiciary and the judicial efficiency sought by the class-action mechanism. Article III of the Constitution only allows federal courts to adjudicate actual, ongoing cases or controversies. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272(1975). The case or controversy requirement ensures that “self-interested parties vigorously advocating opposing positions” present issues “in a concrete factual setting.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). When an action no longer satisfies the case or controversy requirement, the action is moot and a federal court must dismiss the action. See Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir.1999). Article III requires parties to have a continuing “personal stake in the outcome” of the lawsuit. Baker v.Carr, 369 U.S. 186, 204," }, { "docid": "23034123", "title": "", "text": "federal court proceedings, both at the trial and appellate levels. That is, the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” de la O v. Hous. Auth. of El Paso, 417 F.3d 495, 499 (5th Cir.) (internal quotation marks and citations omitted), cert. denied, — U.S. -, 126 S.Ct. 808, 163 L.Ed.2d 629 (2005); see also Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); United States v. Clark, 193 F.3d 845, 847 (5th Cir.1999). Whether an appeal is moot is a jurisdictional issue because it implicates Article Ill’s requirement of a live case or controversy. Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.1987). This Court must raise the question of mootness sua sponte when, as here, it is not raised by a party, and the Court reviews the question de novo. See Donovan v. Air Trans., Disk Lodge No. 146, 754 F.2d 621, 624 (5th Cir.1985); see also Bailey, 821 F.2d at 278. The parties responded to this Court’s order for supplemental briefing on this issue. To the extent a defendant appeals his conviction, his appeal is not moot simply because his term of imprisonment has expired. See Spencer, 523 U.S. at 7, 118 S.Ct. 978. Neither is Lares-Meraz’s challenge to his sentence moot because he remains subject to a term of supervised release, an element of the overall sentence. See Clark, 193 F.3d at 847. Generally, a term of supervised release is not immune to modification by the district court. A district court may have the authority to modify conditions of supervised release under 18 U.S.C. § 3583(e)(2), or the authority to terminate obligations of supervised release, after the expiration of one year of supervised release, under § 3583(e)(1). See United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000); see also Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir.2006); United States v. Hernandez, No. 05-40729, 2006 WL 690882, 170 Fed.Appx. 914 (5th Cir.2006); United States v. Benavides, 145 Fed.Appx. 971 (5th Cir.2005). In addition," }, { "docid": "15484957", "title": "", "text": "as the discovery of new evidence, see Fed. R. Civ. P. 60(b)(2), should that ground materialize. Yet, even though it is theoretically possible that more than one Rule 60(b) motion will be filed in a single civil case, a district court’s order denying any one motion will be considered final and immediately appealable. See, e.g., Madej v. Briley, 371 F.3d 898, 899 (7th Cir.2004). The same result applies to a trustee’s motion to modify a Chapter 13 plan. For these reasons, we conclude that the bankruptcy court’s order denying the trustee’s motion to modify the plan was “final” within the meaning of § 158(a)(1). Because the district court’s order was also final, we have jurisdiction over this appeal under § 158(d)(1). B. The debtor next contends that this appeal is moot. Article III of the Constitution limits the federal judicial power to actual, ongoing cases or controversies, a limitation understood to require a live dispute involving a party with “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Redmond v. Redmond, 724 F.3d 729, 735 (7th Cir.2013) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct, 1249, 108 L.Ed.2d 400 (1990)). The case-or-controversy requirement “subsists through all stages of federal judicial proceedings, trial and appellate.” Id. (quoting Lewis). If on appeal it becomes “impossible for a court to grant any effectual relief whatever,” the case becomes moot and jurisdiction no longer exists. Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, — U.S. -, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012)). In the present case, Owens-Powers argues that it is no longer possible to grant the relief the trustee requests— modification of the plan — because five years have elapsed since the debtors began making payments under their, original plan. This argument is based on 11 U.S.C. § 1329(c), which provides, in relevant part, that a plan may not be modified such that it “provide[s] for” the debtor to make plan payments over a period that expires more than five years from the date on which the" }, { "docid": "82004", "title": "", "text": "also denied plaintiffs’ motion for attorneys’ fees, expenses, and incentive awards. OXY filed this appeal, and the plaintiffs cross-appealed. After the appeal and cross-appeal were filed, but before the parties’ briefs were due, OXY sold all of its interests in the Kansas leases to Merit Hugoton, L.P. (“Merit”). The plaintiff class filed a motion to dismiss the appeal as moot based on this sale. We permitted the appeal to proceed to briefing and oral argument. One week after oral argument, Merit filed a motion to intervene as an appellant and cross-appellee. After considering the parties’ responses, we denied the motion. II A We conclude that this appeal is moot. OXY has sold all of its interests in the leases; therefore, its conduct cannot be affected by a declaratory judgment concerning these same oil and gas leases. Accordingly, we grant the motion of the plaintiff class to dismiss this appeal. “Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir.2010) (quoting Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir.2005)); accord Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir.2015). If a case is moot, we have no subject-matter jurisdiction. See, e.g., Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th Cir.2007). More specifically, “[cjonstitutional mootness doctrine is grounded in the Article III requirement that federal courts may only decide actual ongoing cases or controversies.” Id. at 1147 (quoting Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1028 (10th Cir.2003)). “Th[e] case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); see Ind, 801 F.3d at 1213 (“Because mootness is an issue of subject matter jurisdiction, it can be raised at any stage of the proceedings.”). Thus, “[e]ven where litigation poses a live controversy when filed, the doctrine" }, { "docid": "22473880", "title": "", "text": "concluded that Lares-Meraz did not control.” Heredia-Holguin, 789 F.3d at 628 n.2. Regardless, the panel declined to resolve any perceived inconsistencies, concluding that Heredia-Holguin was seeking only equitable vaca-tur of his term of supervised release. Id. at 628. The panel declined to vacate the remainder of Heredia-Holguin’s sentence, determining equitable vacatur was not warranted on the facts of the case. Id. at 628-29. Heredia-Holguin petitioned for rehearing en banc, seeking review of the following issues: 1. When an alien defendant is deported upon completing his term of imprisonment, but remains subject to a term of supervised release, is his sentencing appeal moot? 2. If an alien defendant’s sentencing appeal is rendered moot by his involuntary deportation, is the alien entitled to have his sentence — or at least the remaining term of supervised release— vacated under the doctrine of equitable vacatur? We granted rehearing, and because we answer the first question in the negative, we need not address the second. II. Discussion A Mootness “Whether an appeal is moot is a jurisdictional matter, since it implicates the Article III requirement that there be a live case or controversy.” Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.1987). Under Article Ill’s case-or-controversy requirement, “[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a personal stake in the outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis, 494 U.S. at 477-78, 110 S.Ct. 1249). “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Bmps. Int’l Union, Local 1000, — U.S. —, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (quoting City of Erie v." }, { "docid": "2245431", "title": "", "text": "period of supervised release. Huff filed a notice of appeal on December 7, 2011. She argues that her sentence was substantively unreasonable. Significantly, however, Huff was released from custody on August 31, 2012. II We begin, as we always do, with the question of jurisdiction. The federal courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and our power to render judgment is circumscribed by the Article III requirement that a live case or controversy exist throughout all stages of litigation, including appellate review, see U.S. Const, art. III, § 2; Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). This requirement is satisfied when the parties “continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis, 494 U.S. at 478, 110 S.Ct. 1249 (quoting Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). When the parties lose their personal stake in the outcome, the case becomes moot and must be dismissed, even if it once was a live controversy at an earlier stage of the proceedings. See Davis v. FEC, 554 U.S. 724, 732-33, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). If Huff were still serving her ten-month sentence, or if she were still subject to a term of supervised release, no mootness concerns would exist. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); United States v. Jackson, 523 F.3d 234, 241 (3d Cir.2008) (“[I]f a defendant who is serving a term of supervised release elects to challenge only his sentence of supervised release, he has raised a live case or controversy under Article III such that a court will have jurisdiction over his appeal.”). But “[ojnce the convict’s sentence has expired ... some concrete and continuing injury other than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—must exist if the suit is to be maintained.” Spencer, 523 U.S. at 7, 118 S.Ct. 978; see also United States" }, { "docid": "22318454", "title": "", "text": "United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir.2000) (certificate of appeal-ability not required to appeal from denial of section 2241 petition). The standard of review over the District Court’s mootness determination is plenary. United States v. Gov’t of Virgin Islands, 363 F.3d 276, 284 (3d Cir.2004). Insofar as Burkey was in BOP custody when he filed his habeas corpus petition under 28 U.S.C. § 2241, he has satisfied the “in custody” jurisdictional requirement, Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and he appropriately filed his habe-as corpus petition in the district of confinement and named the Warden as the respondent, Rumsfeld v. Padilla, 542 U.S. 426, 443, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). DISCUSSION A challenge to the BOP’s execution of a sentence is properly brought under 28 U.S.C. § 2241. Woodall v. Federal Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir.2005); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001). The BOP waived any exhaustion of administrative remedies argument it might have had concerning the APA claim insofar as 28 C.F.R. § 542.15 prohibits an inmate from raising on appeal an issue that was not raised at the initial and intermediate levels of the administrative remedy process. Burkey’s habeas corpus petition sought release from prison based on the invalidity under the APA of the Program Statement denying him early release. That relief was afforded him when, on the Magistrate Judge’s recommendation, the BOP released him in September of 2007 to begin serving his 3-year term of supervised release. Given this, is a case or controversy still presented? We conclude the answer is no, and, therefore, Burkey’s habeas corpus petition is moot. Under Article III of the Constitution, a federal court may adjudicate “only actual, ongoing eases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). “To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial" }, { "docid": "23034122", "title": "", "text": "history calculations resulted in an unconstitutional sentence because the PSR’s date of offense (February 10, 2002) was used, rather than the November 28, 2003 date that was admitted by Lares-Meraz in the factual resume, to increase the points of his criminal history calculation. Both the one-point and two-point increases to his criminal history calculation, according to Lares-Meraz, were based upon these facts that were neither found by a jury beyond a reasonable doubt nor admitted by him. The records of the Federal Bureau of Prisons indicate that Lares-Meraz was released on March 8, 2005, and defense counsel admits that Lares-Meraz was deported to Mexico and that his whereabouts are unknown. II. “A controversy is mooted when there are no longer adverse parties with sufficient legal interests to maintain the litigation. A moot case presents no Article III case or controversy, and a court has no constitutional jurisdiction to resolve the issues it presents.” Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir.1999) (citations omitted). “Accordingly, an actual, live controversy must remain at all stages of federal court proceedings, both at the trial and appellate levels. That is, the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” de la O v. Hous. Auth. of El Paso, 417 F.3d 495, 499 (5th Cir.) (internal quotation marks and citations omitted), cert. denied, — U.S. -, 126 S.Ct. 808, 163 L.Ed.2d 629 (2005); see also Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); United States v. Clark, 193 F.3d 845, 847 (5th Cir.1999). Whether an appeal is moot is a jurisdictional issue because it implicates Article Ill’s requirement of a live case or controversy. Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.1987). This Court must raise the question of mootness sua sponte when, as here, it is not raised by a party, and the Court reviews the question de novo. See Donovan v. Air Trans., Disk Lodge No. 146, 754 F.2d 621, 624 (5th Cir.1985); see also Bailey, 821 F.2d at 278. The parties responded to" } ]

[ { "docid": "23178371", "title": "", "text": "U.S.C. § 1983.” This holding is in error. The first cause of action in the complaint is entitled “By Plaintiff Mia Fontana against Defendant D.E. Haskin for Violation of Civil Rights.” The first paragraph of this section “incorporates and realleges” all of the paragraphs that preceded it in the complaint. Paragraph eight that we quote above, which describes Haskin’s allegedly harassing behavior, is incorporated by this language. Paragraph 17 is in addition to the incorporated paragraphs: 17. By reason of defendant’s conduct, plaintiff was deprived of rights, privileges, and immunities secured to her by the Fourth and Fourteenth Amendment to the Constitution of the United States by, inter alia, (a) arresting plaintiff without reasonable suspicion or probable cause; (b) subjecting plaintiff to. an illegal search and seizure; (c) depriving plaintiff of her constitutionally protected rights; (d) submitting false and inaccurate police reports leading to the malicious prosecution of plaintiff; and (e) engaging in conduct of abuse of power and authority which shocks the conscience. We hold that this paragraph and the supporting allegations sufficiently allege a section 1983 cause of action premised on Has-kin’s allegedly sexually harassing conduct. Pleadings that set forth a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Pleadings need suffice only to put the opposing party on notice of the claim. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “AH pleadings shall be construed as to do substantial justice,” Fed.R.Civ.P. 8(f), and “[n]o technical forms of pleading ... are required.” Fed.R.Civ.P. 8(e)(1). Specific legal theories need not be pleaded so long as sufficient factual averments show that the claimant may be entitled to some relief. Am. Timber & Trading Co. v. First Nat’l Bank, 690 F.2d 781, 786 (9th Cir.1982). In light of these liberal pleading standards, the district court misconstrued Fontana’s complaint. The first cause of action incorporates every allegation of Haskin’s alleged sexual predation of Fontana. It alleges a deprivation of Fontana’s civil rights and lists five Constitutional theories as the source of" } ]

[ { "docid": "2797167", "title": "", "text": "¶¶ 37-38.) Delaware did not seek Doe’s extradition and he was released on September 21, 2009. (Id. ¶ 41.) News of Doe’s arrest reached a local news outlet. (Id. ¶¶ 43-44; Ex. 2.) Doe alleges that viewers of the outlet’s website posted “vicious” comments about the story, and that the publicity surrounding his' arrest led him and his family to suffer harassment by their neighbors, forcing the family to move. (Id. n 44^45.) Plaintiffs filed the Complaint in this case, asserting two negligence claims against Defendants, both based on the allegations that Defendants searched for Doe at the wrong address, failed to confirm his whereabouts at the correct addresses, and caused the Delaware warrant to be issued based on false information. (Id. ¶¶ 56, 63.) Plaintiffs allege that these acts constituted “wanton and gross negligence, carelessness and recklessness,” (id. ¶ 63), and were also negligent per se because they were allegedly done “in violation of’ unspecified “local and State laws, police procedures, rules and ordinances,” (id. ¶ 57.) The Complaint also contains two claims for “loss of reputation, companionship and services,” asserted by Plaintiffs Jane and Jack Doe, the couple’s minor son, respectively. (Id. ¶¶ 67-72.) Plaintiffs seek $35,000,000 in compensatory, “exemplary,” and punitive damages on the negligence claims, and $150,000 each on the “loss of reputation” claims. (Id. ¶ 72.) II. Discussion DSP seeks dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (3). In its motion, DSP contends that (1) the Court lacks subject matter jurisdiction over the claims against it because DSP is protected by Delaware’s state sov ereign immunity; (2) venue is improper in this District; and (3) DSP is not subject to this Court’s personal jurisdiction. (Def. Del. State Police’s Mem. of Law in Supp. of its Mot. to Dismiss (“DSP’s Mem.”) 2, 5 — 7, ■ 9 — 11; Def. Del. State Police’s Reply Mem. of Law in Supp. of its Mot. to Dismiss (“DSP’s Reply”) 4-6.) Seaford PD joins DSP’s arguments regarding venue and personal jurisdiction, and in addition contends that the case should be transferred to Delaware pursuant to 28" }, { "docid": "11239168", "title": "", "text": "to Dismiss (Doc. # 15). On February 23, 2009, Qualcomm filed the Reply (Doc. # 16). Standard of Review A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed. R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir.1996). The allegations in the complaint “may not evade [antitrust] requirements by merely alleging a bare legal conclusion.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 736 (9th Cir.1987). “[A] district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed,” especially in light of the fact that “antitrust discovery can be expensive.” Twombly, 550 U.S. at 544, 127 S.Ct. 1955. Plaintiffs alleging antitrust claims must set forth enough “factual matter” to “nudge[] their claims across the line from conceivable to plausible.” Id. California courts similarly demand a “high degree of particularity in the pleading of Cartwright Act violations.” G.H.I.I. v. MTS, Inc., 147 Cal.App.3d 256, 265, 195 Cal.Rptr. 211 (1983); see also Cellular Plus, Inc. v. Superior Court, 14 Cal.App.4th 1224, 1236, 18 Cal.Rptr.2d 308 (1993). Analysis I. Standing under the Clayton Act and the Cartwright Act Qualcomm asserts that antitrust" }, { "docid": "13909505", "title": "", "text": "those cases all appear to be based on California law, in which the elements for a negligent misrepresentation claim are similar to the elements for fraud. Peace Software, 2009 WL 3923350 at *6. Based upon a review of Hawai’i case law, Judge Moll-way concluded that “the Hawaii Supreme Court does not appear to have been equating negligent misrepresentation with fraud.” Id. This Court agrees. Although it has a different standard, Plaintiff has not alleged a negligent misrepresentation claim because Plaintiffs allegations in this regard all sound in fraud. Defendants assert that Vess v. Ciba-Geigy Corp. USA applies to Plaintiffs claims. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir.2003) (holding “[w]hen an entire complaint, or an entire claim within a complaint, is grounded in fraud and its allegations fail to satisfy the heightened pleading requirements of Rule 9(b), a district court may dismiss the complaint or claim.”). As the Ninth Circuit in Vess explains, “where fraud is not an essential element of a claim, only allegations (“averments”) of fraudulent conduct must satisfy the heightened pleading requirements of Rule 9(b). Allegations of non-fraudulent conduct need satisfy only the ordinary notice pleading standards of 8(a).” Vess, 317 F.3d at 1104-1105. Furthermore, as explained in Marolda, the heightened pleading standard “does not apply, of course, to pleadings in the alternative or to claims that do not actually rest on the allegedly fraudulent event.” See Marolda, 672 F.Supp.2d at 998; see also Fed. R. Civ. P. 8(d) (permitting alternative and inconsistent statements of a claim) Plaintiff alleges that he “would not have opened the Lineage II accounts and persisted in play, had he not been misled and deceived by defendants in the manner described herein” and that he “did rely upon defendants’ deceptions and invested his time and money that would have gone elsewhere had plaintiff known of the deception.” Second Am. Compl. ¶¶ 68, 70. Thus, the Court finds that Plaintiffs allegations he was “deceived” are the only possible basis for his negligent misrepresentation claim. Accordingly, because these allegations are grounded in fraud and not pled with specificity, any purported" }, { "docid": "21673029", "title": "", "text": "causes of action. A Under FRCP 12(b)(6), dismissal is proper if the complaint fails “to state a claim upon which relief can be granted.” The court must accept the factual allegations as true and construe them in the light most favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). Although a plaintiff is not held to a “heightened pleading standard,” the plaintiff must provide more than mere “eonclu-sory allegations.” Swierkiewicz v. Sorema NA, 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (rejecting heightened pleading standards); Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir.2002) (rejecting conclusory allegations). A motion to dismiss must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir1990). The court may consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading,” whether such documents are provided by a plaintiff or a defendant. See Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir.2000) (internal quotation omitted). “[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000). The district court has broad discretion, however, to deny leave to amend after the first amendment of the complaint. See Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1111 (9th Cir.2003). B 1 Counterdefendants move to dismiss the RICO claims, which constitute the first through third causes of action. A plaintiff has a private right of action under RICO for injuries" }, { "docid": "22571125", "title": "", "text": "Federal Rule of Civil Procedure 12(b)(6). Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003). Rule 12(b)(6), which tests the legal sufficiency of the claims asserted in the complaint, must be read in conjunction with Rule 8, which requires a “short and plain statement showing that the pleader is entitled to relief’ and “contains a powerful presumption against rejecting pleadings for failure to state a claim.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248-49 (9th Cir.1997) (internal citation omitted). We must take “all well-pleaded allegations of material fact as true and construe them in the light most favorable to the plaintiff.” Desaigoudar v. Meyercord, 223 F.3d 1020, 1021 (9th Cir.2000). We also must consider all inferences favoring the non-moving party that a trier of fact could reasonably draw from the evidence. See Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). However, we do not accept any unreasonable inferences or assume the truth of legal conclusions cast in the form of factual allegations. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Because we are sitting in diversity, and there are no supreme court or appellate court decisions in California that have addressed the specific claims alleged by the plaintiffs, we must attempt to determine how the California Supreme Court might decide the issue. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992). III. Analysis: General Allegations Against Defendants In Merrill v. Navegar, the California Supreme Court rejected a negligent design claim in the context of a product liabilities action, but the court never has addressed a negligent distribution or marketing claim. 26 Cal.4th 465, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001). When the district court in the present case dismissed the negligence claim, it concluded that the claims before it were distinguishable from the design claims in Merrill. We agree that these claims are distinct from the ones raised in Merrill. Although Merrill involved allegations of negligence in gun marketing, selling, and manufacturing, “[t]he Merrill plaintiffs alleged that the defendant was negligent in ‘releasing the weapons for sale to the" }, { "docid": "18199984", "title": "", "text": "defendants is located in or operated from the District of Columbia (“the District”). Ri-nat Def.’s Reply Mem. Supp. Mot. Dismiss at 18. Plaintiffs do not allege that the Rinat defendants frequently are present in the District for either business or pleasure, or have conducted any fund-raising activity in the District; nor do they allege that District residents have made contributions, or that any contributions have originated from the District. The allegations against the Rinat defendants take two forms: (1) violations of RICO under 18 U.S.C. §§ 1962(b)-(d), brought by plaintiff John Doe II; and (2) a host of common law tort claims arising under the laws of various states (battery, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, trespass, and conversion). See Compl. at 118-21, 128, 130-36. All claims rest on plaintiffs’ assertion that the Rinat defendants actively solicited financial contributions that were applied to purchase various types of protective gear that was, in turn, used in the West Bank by Israeli settlers. Compl. at 119-20 ¶ 465. Plaintiffs allege that the settlement activities have caused them to suffer physical, emotional, or financial injury because: (1) the financial interest or personal property was located in the West Bank; (2) the plaintiffs themselves were located in the West Bank; or (3) the actions taken by the settlers in the West Bank harmed a close relative located there, and upon learning of this harm, a plaintiff suffered injury in the United States. See, e.g., Compl. at 5-12. The RICO claims against the Rinat defendants are asserted only by plaintiff John Doe II. Compl. at 118-21. He is an American citizen who resides in New Jersey. Compl. at 5-6 ¶ 8. He owned land in the West Bank from which he claims he was driven by the “threats and coercion” of the settler defendants. Id.; see also id. at 71-74; Pl.’s Mem. Opp’n to Rinat Def.’s Mot. Dismiss at 20. He alleges that the settler defendants pointed guns at him, threatened to shoot him if he did not leave, set fire to property, and destroyed his olive" }, { "docid": "21673028", "title": "", "text": "(Doc #229, Exh 1) at ¶¶ 1, 58 & 64 (identified by proper name); id at caption & ¶¶ 10, 27, 31, 120 & 122 (identified by incorrect name). Counter defendants move for dismissal of any claims brought against “Friandes Corporation, Inc” because the proper business name of this entity is “Friandes Group, Inc.” Counterdefendants Mot (Doc # 239) at 2. Kuimelis requests leave to amend the FACC to plead correctly the name of this entity. Counterdefendants argue that “Kuimelis has now had six opportunities to file a pleading naming Friandes Group, Inc. by its correct name, and this Court is under no obligation to give him a seventh. All claims as to Friandes Group, Inc. should be dismissed.” Doc # 279 at 3. The court rejects this overreaching argument. This type of error does not suffice to dismiss all claims against a particular coun-terdefendant. Accordingly, the court GRANTS Kui-melis leave to amend to plead the correct name of the Friandes Group. Ill The court now turns to the motions to dismiss filed against specific causes of action. A Under FRCP 12(b)(6), dismissal is proper if the complaint fails “to state a claim upon which relief can be granted.” The court must accept the factual allegations as true and construe them in the light most favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). Although a plaintiff is not held to a “heightened pleading standard,” the plaintiff must provide more than mere “eonclu-sory allegations.” Swierkiewicz v. Sorema NA, 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (rejecting heightened pleading standards); Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir.2002) (rejecting conclusory allegations). A motion to dismiss must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule" }, { "docid": "20625050", "title": "", "text": "Patrick does not object to dismissal of these counts, see Pl.’s Opp’n 11, the Court deems the District’s argu ments conceded, and grants the District’s motion to dismiss these counts. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“[W]hen a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”). V. CONCLUSION For the above reasons, the District of Columbia’s motion to dismiss (ECF No. 11) is GRANTED, and Mr. Patrick’s motion for leave to file an amended complaint asserting his Fourth Amendment claim (ECF No. 17) is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued. . In his complaint, Mr. Patrick names the District, Assistant Prosecuting Attorney Ronald Machen, Metropolitan Police Department Officers Tony Covington, Kristopher Plumley, Ursula Tutt, James Chastanet, Seth Anderson and Sean R. Hodges, and Superior Court Judge Frederick Sullivan (collectively, the \"Defendants”) as defendants in this suit. In its motion to dismiss, however, the District moves to dismiss Mr. Patrick's claims only as to the District. As such, Mr. Patrick’s claims against the other defendants in this case are not at issue in this motion and are not addressed in this Memorandum Opinion. . Although the Court assumes the truth of the complaint’s factual allegations, the Court con siders the Police Report given that it is \"attached as [an] exhibit[t] or incorporated by reference in the complaint.\" Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (internal citations and quotation marks omitted); see also Police Report, Compl. Ex. A . The District also argues that Mr. Patrick's intentional tort claims (Counts I and II) are barred by the statute of limitations in D.C. Code § 12-301(4), and that Mr. Patrick fails to allege sufficient facts to support a negligence claim (Count III). See Fed. R. Civ. P. 12(b)(6); Defs.’ Mot. Dismiss 4-5. Because the Court concludes that Mr. Patrick failed to provide the District with adequate notice under" }, { "docid": "1362442", "title": "", "text": "must “possess enough heft to ‘sho[w] that the pleader is entitled to relief,’ ” a complaint “does not need detailed factual allegations.” Id. at 1964, 1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual allegations— including mixed questions of law and fact — as true and draw all reasonable inferences therefrom in the plaintiffs favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004); Browning, 292 F.3d at 242. 2. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs Negligent Infliction of Emotional Distress (Count V) and Negligence (Count IX) Claims The defendants move to dismiss both the plaintiffs negligent infliction of emotional distress and negligence claims because the plaintiffs allegations can only be characterized as intentional torts and the plaintiff has failed to state a claim for negligence. Defs.’ Mot. at 14. The plaintiff protests, without really responding, that she has alleged facts that can be characterized as negligence. Pl.’s Opp’n at 18. The court agrees with the defendant. “[W]hen a negligence claim involves use of excessive force by a police officer, the negligence must be distinctly pled and based upon at least one factual scenario that presents an aspect of negligence apart from the use of excessive force itself and violative of a distinct standard of care.” Tafler v. District of Columbia, 2006 WL 3254491, at *9 (D.D.C. Nov.8, 2006) (quoting District of Columbia v. Chinn, 839 A.2d 701, 705, 711 (D.C.2003)). The allegations contained in the plaintiffs negligent infliction of emotional distress claims are identical to those supporting her claim of intentional infliction of emotional distress. She argues that Wallace acted with extreme and outrageous conduct by, inter alia, forcibly arresting, falsely imprisoning the plaintiff and using excessive force. Compl. ¶ 49." }, { "docid": "11193060", "title": "", "text": "and Al-Salami constituted cruel and unusual punishment and deprived them of their life and liberty interests in violation of their constitutional rights under the Eighth and Fifth Amendments. (Id. ¶¶ 235-253.) The amended complaint alleges that the individual defendants are liable for these violations in that defendants “participated in, set the conditions, directly and/or indirectly facilitated, ordered, acquiesced, confirmed, ratified, aided and abetted, and/or conspired together” in the detention and treatment of Al-Zahrani and Al-Salami. (Id. ¶¶ 240, 251.) Claims VII though XIV are against the United States under the FTCA for negligence, medical negligence, medical malpractice, intentional infliction of emotional distress, battery, and wrongful death. (Id. ¶¶ 254-325.) On June 26, 2009, defendants filed three motions that are now before the Court. The individual defendants have moved to dismiss plaintiffs’ constitutional claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject matter jurisdiction over these claims and that plaintiffs have failed to state a claim upon which relief can be granted. (Mem. of P. & A. in Supp. of the Individual Defs.’ Mot. to Dismiss Pls.’ Constitutional Claims [“Constitutional Mem.”] at 1-2.) The government has also filed a motion to substitute itself for the individual defendants with respect to plaintiffs’ claims under the ATCA. The United States contends that the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), 28 U.S.C. § 2679(b)(1), provides that a claim against the United States under the FTCA is the exclusive remedy for persons seeking damages for any “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” (Mem. of P. & A. in Supp. of United States’ Mot. for Substitution for Claims I to IV of the Am. Compl. [“Substitution Mem.”] at 6.) Finally, the United States has filed a motion to dismiss all of plaintiffs’ claims under the FTCA, including the ATCA claims for which it has sought substitution, on the grounds that this Court lacks subject matter jurisdiction over these claims. (Mem. of P. & A. in" }, { "docid": "18027582", "title": "", "text": "Id. at 7. However, ADOC officials refused to move Plaintiff or the other inmate. That same day, Plaintiff filed his first Inmate Letter requesting physical protection and was later assaulted by Sanchez. Plaintiff asserts that Lieutenant Mariotti told him that ADOC officials had received the Inmate Letter requesting protection, but that Plaintiffs request was refused. Id. at 9. ADOC officials proceeded to place two other successive inmates into Plaintiffs cell. Id. Upon the arrival of his third cellmate, Plaintiff attempted to cut his wrist with a razor blade. Id. Plaintiff had filed three Inmate Letters dated May 23rd, 30th, and June 3rd requesting that the prison staff protect him from other inmates by the time he filed his Complaint. Id. Although ADOC’s Internal Management Policy (“IMP”) 103.3.2.6.9.2 states that the CPO shall “[pjrovide a response to the inmate, on an Inmate Letter Response Form ... within ten workdays of receipt of the complaint,” Plaintiff claims that he did not receive a reply to his requests until June 17,1996. (Compl. at 10.) Plaintiff admits in his Complaint that he did not continue to seek relief through the grievance procedure of his institution. Id. at 4. He refused to follow ADOC’s grievance system because it would allegedly provide no “resolution” to the assault. Id. Furthermore, Plaintiff claims that the assault cannot be construed as a “prison condition.” (Pl.’s Mem. Opp’n Mot. Dism. at 2.) Plaintiff argues that ADOC officials deliberately failed to ensure his safety after other inmates displayed a strong response to Plaintiffs homosexual and child molester status. (Compl. at 5.) Plaintiff seeks protective custody, $25,000 in compensatory damages, $50,000 in punitive damages, and $50,000 for negligence and deliberate indifference. Id. at 6. On July 31, 1996, this Court dismissed the following Defendants from the case without prejudice: (1) ADOC; (2) Herman; (3) Stewart; (4) Willis; (5) Alexander; and (6) Garvin. On September 23, 1996, the remaining Defendants, Mariotti, Connor, Melcher, Ingram, Herzog, and Lester, moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Defendants asserted that under this" }, { "docid": "19666296", "title": "", "text": "Id. ¶ 20. Plaintiff brings this action against the District of Columbia and against officers Ritter, Prade, and Boland in their individual and official capacities under 42 U.S.C. § 1983 for alleged violations of rights protected by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Compl. ¶¶ 3, 32. In addition, plaintiff brings tort claims of negligence, gross negligence, assault, battery, and abuse of process. Id. ¶ 33. He demands compensatory and punitive damages. See id. at 8. II. DISCUSSION Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants move to dismiss on the ground that the complaint fails to state claims on which relief can be granted. See Memorandum of Points and Authorities in Support of the Motion of Defendants District of Columbia, Michael Boland and Charles Ramsey to Dismiss Plaintiffs Complaint (“Defs.’ Mot.”) at 3-4, 5-12; Officer Steven Prade’s Motion to Dismiss (“Prade Mot.”) at 4-6. The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 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)). A motion under Rule 12(b)(6) does not test a plaintiffs likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The factual allegations of the complaint are presumed to be true and are construed liberally in plaintiffs favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2000). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a plaintiff must offer “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment] to relief.” Bell Atl. Corp. v." }, { "docid": "15487190", "title": "", "text": "alleging that defendant violated Title VII of the Civil Rights Act (Counts II and III) and committed several torts, including defamation (Count I), intentional infliction of emotional distress (Count IV), and negligent infliction of emotional distress (Count V). (Compl. 6-10.) Defendant has now moved to dismiss some of the claims. (DE # 8.) Plaintiff filed a pro se response (DE # 16), and defendant filed a reply (DE # 17). The motion is now ripe for ruling. II. LEGAL STANDARD Defendant has moved to dismiss plaintiffs claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. Rule 8 of the Federal Rules of Civil Procedure sets forth the pleading standard for complaints filed in federal court; specifically, that rule requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8. “The Rule reflects a liberal notice pleading regime, which is intended to focus litigation on the merits of a claim rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.2009) (internal quotation marks omitted). “While the federal pleading standard is quite forgiving, ... the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir.2011); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When evaluating the sufficiency of a complaint, the court must' construe it in the light most favorable to the non-moving party, accept well-pleaded facts as true, and draw all inferences in the non-movant’s favor. Reger Development, LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir.2010). III. DISCUSSION A. Indiana Tort Claims Act Plaintiff has alleged at least three causes of action that sound in tort: defamation (Count I), intentional infliction of emotional distress (Count IV), and negligent infliction of emotional distress (Count V). Defendant argues that these" }, { "docid": "12307886", "title": "", "text": "was acting as a CS when he made this sale. Id. at 870. He was ultimately sentenced to 151 months’ imprisonment. In the instant case, Mr. Jumah “seek[s] to recover his 20 percent of the NORTHERN STAR OPERATION, ... $15 Million ... in com[p]ensatory damages, $25 Million ... in Punitive damages and $25 Million ... for Intentional Infliction of Emotional Distress.” Compl. ¶ 9. He also seeks U.S. citizenship. Id. In his reply to the government’s motion to dismiss, Mr. Jumah elaborates on his tort claims, claiming compensation for “[njeglect, [misrepresentation, [flalse [¡Imprisonment, [conspiracy, [i]ntentional [i]nfliction of emotional [distress, [¡Invasion of [p]rivacy, [negligence and [trespass and [pjunitive [d]am- ages.” Ptf.’s Reply to Mot. Dismiss (“Ptf.’s Reply”) 11. Mr. Jumah provided this court with documentation to support his claims, and he requests the opportunity to provide this court with further evidence, including “[statements, [witnesses information, [a]u-dio tapes, and other sensitive government (DEA) information.” Ptf.’s Reply B. In response, the government has moved to dismiss Mr. Jumah’s contract claims pursuant to RCFC 12(b)(1) and 12(b)(6) on the following grounds: (1) the period of time for which [Mr. Ju-mah] demands compensation (April[ ] 2003) is after the DEA terminated its contract with him, and (2) the alleged written contract does not provide for compensation. Further, the amended complaint fails to state a claim upon which this Court can grant relief for breach of implied-in-fact contract because [Mr. Jumah] states neither the terms of the contract nor the person with whom he entered into the contract. Mot. Dismiss 2. Additionally, the government moves this court to dismiss Mr. Jumah’s tort and Constitutional claims pursuant to RCFC 12(b)(1) and 12(b)(6). Id. STANDARD OF REVIEW The standard for ruling on a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) is well-settled. The plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d" }, { "docid": "17159397", "title": "", "text": "instructing the parties to engage in discovery on the personal jurisdiction issue. Plaintiff filed a motion to amend his complaint to add five new defendants: Ko-lon International, FnC Kolon, Kolon Cl, Holt International, and Holt (“newly added defendants”), and to correct misspellings of the parties’ names. The court issued an order on September 28 allowing Plaintiff to file his FAC (“September 28 Order”), which alleged the same five claims as his original complaint. Defendants move the court to dismiss the second and fourth claims of the FAC under Rule 12(b)(6). II. ANALYSIS A. Legal Standard Governing a Rule 12(b)(6) Motion to Dismiss Under Rule 12(b)(6), a party may move to dismiss for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) dismissal can be based on either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). In resolving a Rule 12(b)(6) motion, the court must construe the complaint in the fight most favorable to the plaintiff and accept all well-pleaded factual allegations as true, as well as any reasonable inferences drawn from them. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). A complaint should be dismissed if the plaintiff cannot prove, any set of facts to support a claim that would merit relief. Nursing Home Pension Fund, Local 144 v. Oracle Corp., 380 F.3d 1226, 1229 (9th Cir.2004). B. Second Claim — Fraudulent Transfer Plaintiff alleges a claim of fraudulent transfer under the California Uniform Fraudulent Transfer Act (“CUFTA”), specifically . California Civil Code §§ 3439.04(a)(1) (“Section 3439.04(a)(1)”) and 3439.07(a)(1) (“Section 3439.07(a)(1)”), and California common law. 1. Fraudulent Transfer Claim Under Section 3439.04(a)(1) In its September 28 Order, this court held that Plaintiff may not amend his complaint to allege a CUFTA fraudulent transfer claim against the five newly added defendants because it was futile due to the seven-year time limit of California Civil Code § 3439.09(c) (“Section 3439.09(c)”). Moving Defendants now contend that Section 3439.04(c) also bars Plaintiffs Section 3439.04(a)(1) fraudulent transfer" }, { "docid": "17762312", "title": "", "text": "Rules require only that the complaint contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). Nevertheless, even though a complaint attacked by a Rule 12(b)(6) motion 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (internal citations omitted). Rather, the complaint must allege sufficient facts to raise a right to relief above the speculative level. Id. (citing 5 C. Wright & A. Miller, Federal Practice and.Procedure § 1216, pp. 235-36 (3d ed.2004)). Importantly, though, “[sjpecific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). In deciding a 12(b)(6) motion, a court must accept all factual allegations in the complaint as true, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), and must also construe all reasonable inferences in the light most favorable to the plaintiff. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). To further the inquiry, courts may consider documents outside the pleadings without the proceeding turning into summary judgment. See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994), reversed on other grounds. However, the Court may only consider these documents if their authenticity is not questioned and the complaint either refers to them or necessarily relies upon them. See id.; Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998), superseded on unrelated grounds. III. Discussion Presently, Defendants move to dismiss the Complaint under Rule 9(b) and Rule 12(b)(6). Wachovia also moves to expunge the Notice of Pendency of Action recorded by Plaintiffs on October 8, 2008 with the Ventura County Recorder. For the reasons that" }, { "docid": "20624822", "title": "", "text": "Medical Center a letter through counsel, complaining about his treatment. Mem. P. & A. Supp. Pl.’s Opp. Mot. Dismiss 11 1-15, ECF No. 6-1. Unsatisfied with the Medical Center’s perfunctory responses, Mr. Johnson filed suit against the Medical Center and its four unnamed employees (“Does 1-4”) in the District of Columbia Superior Court on June 2, 2014. See Compl. Seeking damages, he charged the Medical Center with six common law tort violations arising from the search of his belongings and his person: assault, battery, intentional infliction of emotional distress, invasion of privacy, false imprisonment, and negligence. Compl. 1116-39. The Medical Center removed to this Court and filed an initial motion to dismiss Mr. Johnson’s claims for failure to exhaust administrative remedies. See Notice of Removal, ECF No. 2; Mot. Dismiss, ECF No. 5. However, the Medical Center withdrew its first motion to dismiss, and now it has filed a second motion to dismiss — this time arguing that the Court lacks jurisdiction over Mr. Johnson’s claims because sovereign immunity bars them. See Def.’s Second Mot. Dismiss, ECF No. 10; Mem. P. & A. Supp. Def.’s Second Mot. Dismiss, ECF No. 10-1. The Medical Center argues that sovereign immunity bars Mr. Johnson’s claims for three reasons: (1) despite the Federal Tort Claims Act (FTCA)’s waiver of the federal government’s sovereign immunity, federal agencies such as the Medical Center still enjoy sovereign immunity; (2) the FTCA waives sovereign immunity only when the plaintiffs claims arise from the federal employees’ acts within the scope of their employment, and there is no such allegation or determination here; and (3) the FTCA does not waive sovereign immunity for Mr. Johnson’s claims because they arise from intentional torts exempted from the FTCA waiver of sovereign immunity. See Mem. P. & A. Supp. Def.’s Second Mot. Dismiss 4-7. Because the Court agrees with the Medical Center’s first argument, the Court need not address the Medical Center’s second and third arguments to dismiss Mr. Johnson’s claims. But the Court sua sponte grants Mr. Johnson leave to amend his Complaint to substitute the United States as the appropriate defendant" }, { "docid": "1386232", "title": "", "text": "ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT MOLLWAY, District Judge. I. INTRODUCTION. In his First Amended Complaint, Plaintiff Jeff Maizner asserts claims against Defendants State of Hawaii, Department of Education (“the DOE”), and Robert Ginlack (collectively, “Defendants”). Ma-izner asserts: (1) a violation of the Americans with Disabilities Act (“the ADA”) (Claim 1); (2) a violation of chapter 378 of Hawaii Revised Statutes (Claim 2); (3) negligent infliction of emotional distress (Claim 3); (4) negligent investigation (Claim 4); and (5) a violation of his due process and equal protection rights under the United States and Hawaii constitutions (Claim 5). Defendants move to dismiss the First Amended Complaint, and Maiz-ner opposes that motion with some concessions. Because the Eleventh Amendment immunizes the State from liability for retrospective relief, the court dismisses the claims asserting that the State violated the ADA and the federal Constitution, to the extent those claims seek retrospective relief. However, the court declines to dismiss those claims insofar as Maizner seeks prospective relief. Based on Eleventh Amendment immunity, the court dismisses in their entirety all of the state law claims asserted against the State. The court construes the portion of Claim 5 that asserts a federal constitutional violation by Ginlack as brought under 42 U.S.C. § 1983; the court exercises jurisdiction over that claim. The court dismisses Claim 2 against Ginlack, asserted under chapter 378 of Hawaii Revised Statutes, but retains supplemental jurisdiction over the remaining state law claims against Ginlack. II. LEGAL STANDARD. Defendants bring the present motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is proper only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir.1992). The court must accept as true all allegations of material fact in the complaint and must construe these facts in the light most favorable to the plaintiff. See" }, { "docid": "7035960", "title": "", "text": "2005, the defendants filed a motion to dismiss the plaintiffs’ claims for violation of the FDCPA, libel, and part of the negligence claim (Complaint ¶ 17(e)) against Bank of America. The plaintiffs responded on May 16, 2005. II. Discussion Of The Law The defendants move to dismiss the complaint, arguing that the plaintiffs have failed to state a claim for which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In federal court, a plaintiff must make only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Dismissal of a complaint for failure to state a claim is proper “only if it can be said that on the claim as pleaded the claimant can prove no set of facts that would entitle her to relief.” Labram v. Havel, 43 F.3d 918, 920 (4th Cir.1995). Furthermore, the court must treat the factual allegations of the nonmoving party as true. See Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir.1994). A. FDCPA Claim The defendants argue that the plaintiffs’ FDCPA claim must be dismissed because the FDCPA excludes “any officer or employee of a creditor while, in the name of the creditor, collect[s] debts for such creditor” from its definition of “debt collector.” 15 U.S.C.A. § 1692a(6)(A) (West 1998); (Defs.’ Mem. Supp. Mot. Dismiss at 2.) Because Bank of America’s principal business is not debt collection, and because Bank of America is seeking to collect its own debt, the defendants argue that Bank of America is not a “debt collector” for purposes of the FDCPA, and the plaintiffs cannot state a FDCPA claim against it. (Id. at 2-4.) The plaintiffs concede that the defendants are entitled to dismissal of the FDCPA claim. Therefore, the FDCPA claim is dismissed with prejudice. B. Common Law Claims for Negligence and Libel Against Bank of America In the complaint, the plaintiffs allege that Bank of America, “by and through its agents, was willful, wanton, reckless, grossly negligent, negligent, and careless in ... repeatedly sending false information on Plaintiff, Dewey C. Barnhill, to Equifax," }, { "docid": "13909509", "title": "", "text": "at 2. Defendant cites Vess v. Cibo-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir.2003). Defendants assert that Plaintiffs defamation fails because it is not pled with particularity. Motion at 16. The Court rejects this argument. Plaintiffs defamation claim is not based on the same facts that he does often repeat throughout his complaint, but rather the defamation claim is based upon alleged false and defamatory statements that defendant made on October 5, 2009, which were published to other players. Second Am. Compl. ¶¶ 84-85. To prove defamation under Hawai’i law, Plaintiff must establish four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) the publisher was negligent; and (4) either actionability of the statement irrespective of special harm, or the existence of special harm caused by the publication. Wilson v. Freitas, 121 Hawai’i 120, 128, 214 P.3d 1110 (App.2009). “A communication is defamatory when it tends to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Fernandes v. Tenbruggencate, 65 Haw. 226, 228, 649 P.2d 1144, 1147 (Haw.1982) (citing Restatement (Second) Torts § 559 (1977)). The Fernandes court further explained that “[w]hether a communication is defamatory ‘depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.’ ” Id. A person who publishes a false defamatory communication is subject to liability only if he (a) knows that the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them. Restatement (Second) Torts § 580B. The Court finds that, at the pleading stage, Plaintiff has now pled all of the elements of defamation. As discussed above, on a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable" } ]

[ { "docid": "7173342", "title": "", "text": "or under the control of an infringer to be destroyed and in exceptional cases the court may also award reasonable attorney fees to the prevailing party. 2. Likelihood of injury to business reputation or to a trade name valid at common law, or of dilution of the distinctive quality of a mark, whether registered or not registered under this chapter, shall be a ground for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. Iowa Code § 548.11. Initially, however, plaintiff must show that its mark is “arbitrary, coined, fanciful, or has become distinctive by acquiring a secondary meaning.” WSM, Inc., 724 F.2d at 1332. See also Pioneer Hi-Bred International, Inc. v. Wilson Hybrids, Inc., 585 F.Supp. 1 (S.D.Iowa 1982). Upon that showing, Iowa law entitles a party to injunctive relief “notwithstanding ... the absence of confusion as to the source of goods or services.” Iowa Code § 548.11.2. Thus, plaintiff has a greater scope of protection under Iowa law than under Federal law, which requires the additional proof of a likelihood of con fusion as an essential element. It is at this juncture that the question arises whether the Federal Trademark Act (the Lanham Act) preempts the operation of the Iowa Dilution Statute. The doctrine of Federal pre-emption, succinctly stated, is as follows: When federal pre-emption is invoked under the directive of the Supremacy Clause, it falls to this Court to examine the presumed intent of Congress. See Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 152-153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Our task is quite simple if, in the federal enactment, Congress has explicitly mandated the pre-emption of state law, see Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-100, 103 S.Ct. 2890, 2898-2907, 77 L.Ed.2d 490 (1983), or has adequately indicated an intent to occupy the field of regulation, thereby displacing all state laws on the same subject, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed." } ]

[ { "docid": "13512956", "title": "", "text": "mark loses its value. Intermatic, 947 F.Supp. at 1240-41 (both the federal and Illinois anti-dilution statutes protect against use of a mark that lessens the distinctiveness of a famous mark); Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet Inc., 855 F.2d 480 (7th Cir.1988). In this case, consumers are likely to associate Softcell and its pornographic spam e-mails with Classified Ventures and its famous CARS.COM Service Marks, lessening the distinctive value of the CARS.COM Service Marks. Conclusion E. Softcell’s unauthorized use of the CARS. COM name and mark in connection with its spam e-mail messages constitutes service mark infringement, dilution and unfair competition under both federal and Illinois law. For the above reasons, Softcell is entitled to the permanent injunctive relief set forth below. WHEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendant Softcell Marketing, Inc., its agents, officers, servants, employees, representatives and all others in active concert or participation therewith are permanently enjoined from: (a) sending or causing to be sent any email that contains Classified Ventures’ name, domain name, or IP address, in whole or in part; (b) doing any act likely to dilute the distinctiveness of Classified Ventures’ CARS.COM Service Marks, or likely to tarnish the goodwill associated with the CARS.COM Service Marks, or likely to blur the distinctiveness of the CARS.COM Marks; and (c) doing any act likely to cause confusion and deception as to the affiliation, connection, or association of Softcell’s web site, business, or products with Classified Ventures and its Cars.com Site. 2. Defendant Softcell is ordered to file with this Court and serve on Classified Ventures an affidavit setting forth in detail the manner and form of its compliance with the terms of this Court’s injunction." }, { "docid": "125898", "title": "", "text": "the Pediatric Electrolyte in this district. The division through which Abbott manufactures and sells its Pedialyte is in Ohio, but Pedialyte is distributed nationally. Accordingly, Illinois has the most significant relationship to Abbott’s claims and its unfair competition laws will apply. The application of Illinois law dooms Abbott’s dilution claim. Trademark dilution is recognized in Illinois by the Illinois Anti-Dilution Act, 765 ILCS 1035/15. To succeed on a dilution claim under Illinois’s statute, a plaintiff must demonstrate that its mark is distinctive and that the defendant’s use of the same or similar mark dilutes that distinctiveness. Eveready Battery Co., Inc. v. Adolph Coors Co., 765 F.Supp. 440, 451 (N.D.Ill.1991). The Act provides additional protection to trademark owners by preventing the disparagement or erosion of their marks through use by third parties on non-confusing, non-competing products. Id. (citing Ringling Bros. — Barnum & Bailey Combined Shows, Inc. v. Celozzi — Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988)). It is well settled, however, that commercial competitors cannot recover under Illinois’s anti-dilution statute. EZ Loader, 746 F.2d at 380; Filter Dynamics, 311 N.E.2d at 398-99. Abbott’s claim for dilution against NutraMax, a competitor, must therefore fail. Count III is a claim for unlawful misappropriation of a valuable asset in violation of the common law. Illinois’s common law doctrine of misappropriation has been generally limited to the misappropriation of valuable business information. See Nash v. CBS, Inc., 704 F.Supp. 823, 835 (N.D.Ill.1989) (systematic appropriation of valuable stored information), aff'd, 899 F.2d 1587 (7th Cir.1990); Board of Trade of the City of Chicago v. Dow Jones & Co., 98 Ill.2d 109, 74 Ill.Dec. 582, 456 N.E.2d 84 (1983) (misappropriation of Dow Jones index and averages). Furthermore, an esteemed commentator in the field of intellectual property and unfair competition law has observed, The misappropriation doctrine cannot be used in ordinary trademark infringement cases as shortcuts around the trademark law’s standard of protection. That is, one cannot dispense with the carefully construed requirements for trademark protection by blithely claiming that defendant ‘misappropriated’ some symbol of plaintiff which may or may not be capable of trademark" }, { "docid": "9792312", "title": "", "text": "country's current culture the general population shops at malls and those who escape this experience are few and eccentric. . Ringling's expert referred variously to “top of mind\", “initial response”, and \"call to mind” to describe the immediate recall of goods or services upon seeing a mark. He testified further that this \"top of mind” position reflected the goal of a marketer, and was an accurate measure of a mark’s capacity to identify and distinguish goods and services. . These figures include the 21% of respondents in Utah who associate the incomplete phrase with both Utah and the Circus, but who do not mistakenly associate or confuse the marks or the goods and services each identifies and distinguishes. . Ringling's counsel suggested at trial that Ringling believes it owns the incomplete phrase THE GREATEST _ ON EARTH. Thus, Ringling has pursued dilution actions against such varied marks as “The Greatest Bar on Earth”, B.E. Windows, 937 F.Supp. at 206, and “The Greatest Used Car Show on Earth”, Ringling Bros.-Barnum Bailey v. Celozzi-Ettelson, 855 F.2d 480, 481 (7th Cir.1988). This is not persuasive. Of course, some marks in the form of THE GREATEST_ON EARTH may dilute Ringling's famous mark. But this fact does not entitle Ringling to protect this incomplete phrase itself. Instead, Ringling must demonstrate that Utah's mark or any mark using this form dilutes the famous mark THE GREATEST SHOW ON EARTH. For example, had respondents completed the statement with SHOW, but associated the resulting statement, THE GREATEST SHOW ON EARTH, with Utah, snow, or skiing, blurring would be shown. In that event, the famous mark would be mistakenly associated, at least in part, with Utah’s goods and services, thereby lessening the distinctiveness of Ringling's famous mark. Similarly, if respondents were shown a card containing the mark, THE GREATEST SHOW ON EARTH, and mistakenly associated that mark with Utah’s winter sports, dilution by would be shown. . Because the survey evidence does not demonstrate dilution, it is not necessary to address Utah's contention that the survey evidence is unreliable because respondents were not shown the famous mark in a" }, { "docid": "2054602", "title": "", "text": "well as the subsidiary claims of dilution under FTDA and Missouri law. We have not considered the district court’s lengthy discussion of trademark infringement issues in denying Viacom summary judgment on those claims. Thus, there is no appellate law of the case as to those issues. Like any summary judgment ruling, the district court is free to reconsider its initial conclusions on the basis of a fully developed trial record. There are two aspects of the case that deserve further comment. First, Viacom’s claim under the Missouri anti-dilution act is not foreclosed or superseded by the FTDA, because Viacom may fail to prove its claim for injunctive relief under § 1125(c)(1), and Ingram may fail to prove that it is entitled to the § 1125(e)(3) defense against this state law claim. Ingram argues the Lanham Act completely preempts state anti-dilution laws such as § 417.061. We implicitly rejected this contention in Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769, 777-78 (8th Cir.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995), and it has been explicitly rejected by at least three circuits. See Nikon Inc. v. Ikon Corp., 987 F.2d 91, 96 (2d Cir.1993); Ringling Bros-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 483 (7th Cir.1988); Golden Door, Inc. v. Odisho, 646 F.2d 347, 351-52 (9th Cir.1980). Those decisions are consistent with Supreme Court decisions declining to preempt state legislation in the areas of copyright, see Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), and trade secrets, see Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974). In addition, we note that Congress in § 1125(e)(3) of the FTDA made federal trademark registration a defense to claims under state anti-dilution statutes, rather than preempting such statutes altogether. Ingram next argues that the district court erred in granting summary judgment because Viacom failed to establish as a matter of law the “likelihood ... of dilution” that must be proved to warrant injunctive relief under § 417.061(1). The district court concluded that" }, { "docid": "22936650", "title": "", "text": "778 F.2d at 1361. We cannot say the court’s finding is clearly erroneous. Although the court could have made its conclusion explicit, it is clear that based upon its findings an injunction was not warranted under the Illinois Deceptive Trade Practices Act. 3. Illinois Anti-Dilution Statute Trademark dilution is not a cause of action under the Lanham Act, but it is under Illinois law. Eveready Battery Co. v. Adolph Coors Co., 765 F.Supp. 440, 451 (N.D.Ill. 1991). The Illinois Anti-Dilution Statute “provides additional protection to trademark owners by preventing the disparagement or erosion of their marks through use by third parties on non-confusing, non-competing products.” Id. Under the Illinois statute, a party using a “mark, trade name, label or form of advertisement” may obtain an injunction against a subsequent user where “there exists a likelihood of injury to business reputation or of dilution of the distinctive quality of the mark, trade name, label, or form of advertisement of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services.” 765 ILCS 1035/15. An injunction must be granted where the first user can show the mark is distinctive and the subsequent user’s application of that mark dilutes its distinctiveness. Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988); Hyatt Corp. v. Hyatt Legal Servs., 736 F.2d 1153, 1157 (7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 361 (1984). Factors used to determine the distinctiveness include whether the mark is arbitrary, the length of time the first user has employed the mark, the scope of the first user’s advertising and promotions, the nature and extent of the first user’s business, and the scope of the first user’s reputation. Hyatt, 736 F.2d at 1158. To determine whether the subsequent user has diluted the first user’s mark, the court looks at the similarity between the marks used by the parties and the extent of the marketing effort by the subsequent user. Id. In the proceedings below, the district court stated that" }, { "docid": "3500355", "title": "", "text": "875 F.2d at 1035 (Sweet, J., concurring). Finally, and most drastically, some courts have taken the position, in part at least for the very reason that they consider likelihood of . harm to a mark’s selling power to be incapable.of direct or inferential proof, that it may simply be presumed from the identity or sufficient similarity of the marks. See Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 484 (7th Cir.1988) (opining, in applying Illinois statute to uphold injunction against use of “Greatest Used Car Show on Earth” slogan, that “[without a likelihood of confusion there is no effective way to measure [Ringling’s] loss of audience or potential growth,” but presuming likelihood of that harm for injunctive purposes); Freedom Sav. & Loan Assoc. v. Way, 757 F.2d 1176, 1186 (11th Cir.1985) (opining, in applying Florida antidilution statute, that although “[dilution requires some proof that the use of a trademark decreases [a senior mark’s] commercial value[,] [i]f the plaintiff holds a distinctive trademark, it is enough that the defendant has made significant use of a very similar mark”); see also Gaeta Cromwell, Inc. v. Banyan Lakes Village, 523 So.2d 624, 626-27 (Fla.Dist.Ct.App.1988) (holding, under Florida statute, that where a senior mark “is strong and distinctive, mere ‘significant use’ of the name by the defendant is enough to establish decrease in its commercial value, and therefore ‘dilution’ ”). As is obvious, by requiring no proof of “likely” dilution of a senior mark but the identity or sufficient similarity of a junior mark, this approach effectively interprets the state stat utes as creating property rights in gross in the senior mark. From this fifty-year course of judicial experience, several propositions can be ventured. The first is that a general agreement has emerged that “dilution” under the state statutes involves as an essential element some form of harm to the protected mark’s selling power — its economic value — resulting otherwise than by consumer confusion from the junior mark’s use. Because the statutes require proof only of a “likelihood” of dilution, however, the courts have not been required" }, { "docid": "18814846", "title": "", "text": "analysis of the federal trademark infringement claim. The state unfair competition claim is analyzed under the likelihood of confusion standard and thus mirrors our infringement analysis. See McGraw-Edison, 181 F.2d 1163. Accordingly, we shall not repeat that analysis here. Under Illinois law, dilution is not dependent upon the likelihood of confusion but on a separate likelihood of dilution inquiry. See Ringling Bros. Bamum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988) (The Illinois Anti-Dilution Act “grants protection to trademarks beyond that provided by the classic ‘likelihood of confusion’ test under the Lanham Act.... The additional protection prevents the gradual whittling away of trademarks’ distinctiveness through use by third parties on non-confusing, noncompeting products.”) (citations omitted). Nonetheless, Stuart Hale correctly asserts that, under modern state precedent, the protection of the Illinois Anti-Dilution statute is not available to competitors under Illinois case law. See EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 380 (7th Cir.1984); see also Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 214 (E.D.N.Y.1992) (same; applying Illinois law). Accordingly, the district court was correct in dismissing this claim. C. Denial of Preliminary Injunction American argues that, if we remand for any reason, we should also hold that the district court erred in not entering a preliminary injunction. In reply, Stuart Hale emphasizes that Pan-Lite controls less than one percent of the relevant market, while PAM dominates the market. Accordingly, submits Stuart-Hale, the balance of hardships that guides a court’s preliminary injunction determination favors denying the motion. American responds that a market leader also has an interest in protecting its reputation as a quality product. Consumers may mistake other brands, which may not be held to the same quality standards, for American products and subsequently avoid purchasing American’s entire product line. This course of conduct could result regardless of the alleged infringer’s market share. The district court never reached the merits of this issue; the court dismissed the preliminary injunction motion as moot after granting summary judgment for Stuart Hale. Consequently, we cannot now review it on appeal;" }, { "docid": "23623701", "title": "", "text": "or incontestability of plaintiff’s CURRENT CONTENTS mark. The district court determined that CURRENT CONTENTS was “clearly descriptive” (App. at 391), as this was necessary before deciding whether defendants could avail themselves of the fair use defense. See 1 Trademarks, at 475 (the fair use defense presupposes that the mark is descriptive); see also Ringling Bros.-Barnum & Bailey v. Celozzi-Ettelson Chevrolet, 855 F.2d 480, 484 (7th Cir.1988) (stating that the fair use defense requires that the defendant’s use merely describe the goods or services offered); Cullman Ventures, Inc. v. Columbian Art Works, Inc., 717 F.Supp. 96, 133 (S.D.N.Y.1989) (fair use defense unavailable when mark was suggestive). That defense is one of the seven enumerated defenses in the Lanham Act explicitly recognized by the Supreme Court as exceptions to the registrant’s exclusive right to use an incontestable mark. Park 'N Fly, 469 U.S. at 196, 199 n. 6, 105 S.Ct. at 662, 664 n. 6 (“If one of the defenses is established, registration constitutes only prima facie and not conclusive evidence of owner’s right to exclusive use of the mark.”); see also Ringling Bros., 855 F.2d at 483; 1 Trademarks, § 11:17 at 479. Thus, the district court’s conclusion that CURRENT CONTENTS was “clearly descriptive” is not inconsistent with the Supreme Court’s holding in Park TV Fly, and the district court did not commit legal error. D. Judicial Notice Plaintiff’s final contention of error is that the district court erred by taking judicial notice of the fact that the Third Circuit Library uses the label “current contents” to describe the collection of tables of contents of current law reviews it circulates to members of the judiciary. In view of our decision to remand this case, if the district court desires to consider the possibility of taking judicial notice of the circulated material, it should proceed in accordance with Fed.R.Evid. 201. E. Breach of Contract Finally, at oral argument, plaintiffs counsel contended that the district court’s dismissal of its separate breach of contract claim was appealed. In support of that position, counsel directed this court to the following passage in plaintiffs opening brief:" }, { "docid": "18035997", "title": "", "text": "Lanham Act is to protect trademark holders and the public____ New York’s anti-dilution statute simply provided greater rights than its federal counterpart. To the extent that the New York statute protects rights not provided for by the federal statute, it does not conflict with the Lanham Act but rather, it complements and supplements it. This court finds persuasive the Third Circuit’s analysis [in Mariniello v. Shell Oil Co., 511 F.2d 853 (3d Cir.1975),] of the extent to which the Lanham Act preempts state antidilution statutes, namely, that state law is . only preempted to the extent it permits behavior outlawed by the law____ Accordingly, the court holds that the Lanham Act does not preempt New York’s antidilution statute. Id. at 1041 (citations omitted); accord LeSportsac, Inc. v. K Mart Corp., 617 F.Supp. 316, 318 (E.D.N.Y.1985); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366, 378 (S.D.N.Y.), aff'd, 604 F.2d 200 (2d Cir.1979). Thus,' contrary to Ikon’s theory of preemption, New York’s anti-dilution statute is not preempted precisely because it provides trademark holders with broader rights than permitted under the Lanham Act. See also Golden Door, Inc. v. Odisho, 646 F.2d 347, 352 (9th Cir.1980); Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 372 n. 3 (1st Cir.1980). Ikon also argues that Nikon’s dilution claim should be dismissed because New York’s anti-dilution statute applies only where the allegedly infringing mark is used on products not in competition with the senior user’s mark, which is not the case at hand. This argument is also rejected. New York’s anti-dilution statute provides: Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. ' N.Y.Gen.Bus.L. § 368-d (emphasis added). In Sally Gee, 699 F.2d at 625, the Court of Appeals for the Second Circuit held that the only" }, { "docid": "3500354", "title": "", "text": "the efforts over time to deal with the problem. Early on, during the period of general judicial hostility to the whole statutory dilution concept, see Restatement, supra § 25 cmt. b, some courts, seeming to assume that the requisite harm could only be shown by evidence of some form of product-diverting consumer confusion (presumably other than source confusion) invariably found such proof lacking. See, e.g., Cue Publishing Co. v. Colgate-Palmolive Co., 45 Misc.2d 161, 168, 256 N.Y.S.2d 239, 245-46 (N.Y.Sup.Ct.), 23 A.D.2d 829, 259 N.Y.S.2d 377 (1965). Another approach, which .assumed both that likelihood of harm to selling power must be proved, and that such harm could occur despite the absence of any consumer confusion, came in Judge Sweet’s influential Mead Data proposal. Though not expressed in these exact procedural terms, the suggestion was effectively that proof must and could be sought through the normal judicial process of fact-finding by inference from a set of contextual factors (degree of mark and product similarity, etc.) that he proposed as relevant for the purpose. See Mead Data, 875 F.2d at 1035 (Sweet, J., concurring). Finally, and most drastically, some courts have taken the position, in part at least for the very reason that they consider likelihood of . harm to a mark’s selling power to be incapable.of direct or inferential proof, that it may simply be presumed from the identity or sufficient similarity of the marks. See Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 484 (7th Cir.1988) (opining, in applying Illinois statute to uphold injunction against use of “Greatest Used Car Show on Earth” slogan, that “[without a likelihood of confusion there is no effective way to measure [Ringling’s] loss of audience or potential growth,” but presuming likelihood of that harm for injunctive purposes); Freedom Sav. & Loan Assoc. v. Way, 757 F.2d 1176, 1186 (11th Cir.1985) (opining, in applying Florida antidilution statute, that although “[dilution requires some proof that the use of a trademark decreases [a senior mark’s] commercial value[,] [i]f the plaintiff holds a distinctive trademark, it is enough that the defendant has" }, { "docid": "23623700", "title": "", "text": "Incontestability and Descriptive Trademarks Plaintiff's third contention of error is that the district court erred by concluding that CURRENT CONTENTS was clearly descriptive because that determination is inconsistent with the Supreme Court’s ruling in Park ’N Fly v. Dollar Park ’N Fly, 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). Although disposition of plaintiff’s appeal does not require us to address this contention, we believe that this legal issue will arise again on remand. Thus, in the interest of judicial economy, we consider plaintiff’s contention that Park ’N Fly foreclosed the district court from determining that plaintiffs incontestable mark, CURRENT CONTENTS, is “clearly descriptive.” In Park TV Fly, the Supreme Court held that “the holder of a registered trademark may rely on incontestability to enjoin infringement and that such action may not be defended on the grounds that the mark is merely descriptive.” Id. 469 U.S. at 205, 105 S.Ct. at 667 (emphasis added). The district court did not, however, conclude that plaintiff’s mark was “merely descriptive,” and was not addressing the validity or incontestability of plaintiff’s CURRENT CONTENTS mark. The district court determined that CURRENT CONTENTS was “clearly descriptive” (App. at 391), as this was necessary before deciding whether defendants could avail themselves of the fair use defense. See 1 Trademarks, at 475 (the fair use defense presupposes that the mark is descriptive); see also Ringling Bros.-Barnum & Bailey v. Celozzi-Ettelson Chevrolet, 855 F.2d 480, 484 (7th Cir.1988) (stating that the fair use defense requires that the defendant’s use merely describe the goods or services offered); Cullman Ventures, Inc. v. Columbian Art Works, Inc., 717 F.Supp. 96, 133 (S.D.N.Y.1989) (fair use defense unavailable when mark was suggestive). That defense is one of the seven enumerated defenses in the Lanham Act explicitly recognized by the Supreme Court as exceptions to the registrant’s exclusive right to use an incontestable mark. Park 'N Fly, 469 U.S. at 196, 199 n. 6, 105 S.Ct. at 662, 664 n. 6 (“If one of the defenses is established, registration constitutes only prima facie and not conclusive evidence of owner’s right to exclusive use" }, { "docid": "22936651", "title": "", "text": "source of goods or services.” 765 ILCS 1035/15. An injunction must be granted where the first user can show the mark is distinctive and the subsequent user’s application of that mark dilutes its distinctiveness. Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988); Hyatt Corp. v. Hyatt Legal Servs., 736 F.2d 1153, 1157 (7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 361 (1984). Factors used to determine the distinctiveness include whether the mark is arbitrary, the length of time the first user has employed the mark, the scope of the first user’s advertising and promotions, the nature and extent of the first user’s business, and the scope of the first user’s reputation. Hyatt, 736 F.2d at 1158. To determine whether the subsequent user has diluted the first user’s mark, the court looks at the similarity between the marks used by the parties and the extent of the marketing effort by the subsequent user. Id. In the proceedings below, the district court stated that an action for dilution will not lie under this statute where the parties are competitors. This statement is literally incorrect; as the statute clearly indicates, an action for dilution applies whether or not the parties are competitors. See Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 709 (7th Cir.1972); Soft Sheen Prods., Inc. v. Revlon, Inc., 675 F.Supp. 408, 416 (N.D.Ill.1987). Illinois courts, however, have crafted an exception to the statute: “ ‘[W]here the parties are in competition and the plaintiff could not obtain relief under the traditional laws of infringement and unfair competition, he will not be able to obtain relief under the Anti-Dilution Statute.’ ” EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 380 (7th Cir.1984) (quoting Filter Dynamics Int’l, Inc. v. Astron Battery, Inc., 19 Ill.App.3d 299, 311 N.E.2d, 386, 398-99 (1974)); G. Heileman Brewing Co. v. Anheuser-Busch, Inc., 676 F.Supp. 1436, 1472 (E.D.Wis.1987), aff'd, 873 F.2d 985 (7th Cir.1989). Based on the district court’s findings;' the Illinois statute does not apply. Jensen and Metrosound are competitors" }, { "docid": "18035994", "title": "", "text": "time is rejected. Though defendant’s mark may have been used in an open and continuous manner, it did not advertise its mark. Further, Elo’s testimony that he attended the 1988 and 1989 trade shows where a few of the dozens of individuals connected with Nikon examined IKON products and took brochures, is also an insufficient basis upon which to impute knowledge. Ikon was unable to identify the people from Nikon or provide any evidence from which it could be reasonably inferred that notice to them constituted notice to Nikon. Finally, Ikon has failed to establish an unclean hands defense based upon Nikon’s use of the trademark NIKON SMILETAKER. See Opinion and Order, dated May 1, 1992, denying Ikon’s motion for a preliminary injunction on its counterclaim challenging Nikon’s use of this mark. Dilution Ikon’s motion to dismiss Nikon’s dilution claim was denied before trial. The reason for that denial follows. Ikon’s motion has two bases: first, Ikon argues that New York’s anti-dilution statute, N.Y.Gen.Bus.L. § 368-d, is preempted by the Lanham Act and must be stricken insofar as it is inconsistent with the Act; Second, Ikon argues that New York’s anti-dilution statute only applies to non-competing goods and therefore is not applicable here. Ikon bases its preemption argument primarily on the district court decision in United States Jaycees v. Commodities Magazine, Inc., 661 F.Supp. 1360, 1367 (N.D.Iowa 1987), which held that Iowa’s anti-dilution statute was preempted by the Lanham Act because it interfered with an objective of the Act, namely, the objective of providing trademark holders with uniform and definite rights. The Court reasoned: In providing greater rights to holders of trademarks than are available ... under the Lanham Act, Iowa Code § 548.11 and other various state dilution statutes, frustrate “... the accomplishment and execution of the full purposes and objective of Congress,” Hines v. Davidowitz, 312 U.S. 52 [61 S.Ct. 399, 85 L.Ed. 581] ... (1941), by supplanting the uniform and definite rights contained in the Lanham Act, which are intended for those who trade in interstate commerce, with a checkerboard of differing rights. Id. at 1367-68. Ikon" }, { "docid": "11053528", "title": "", "text": "this?” or “Are these two products made by the same firm?” But the Ocean Spray survey was the only evidence of confusion that Sunmark presented. That is weak support for a preliminary injunction when Sunmark had three years to obtain better data—if any were obtainable. Perhaps the advertising is confusing after all. It may be that Sunmark can present more evidence, and that after a trial the record will support Sunmark’s claims; the current record does not. The Illinois anti-dilution statute, 765 ILCS 1035/15, provides additional protection: it applies to products in other lines of commerce even if the trademark proprietor cannot show actual confusion. To prevail under this statute, however, the trademark proprietor must establish a “likelihood of injury to business reputation or of dilution of the distinctive quality of the mark”. The statute protects only strong, distinctive marks with widespread recognition. Kern v. WKQX Radio, 175 Ill.App.3d 624, 634, 125 Ill.Dec. 73, 80, 529 N.E.2d 1149, 1156 (1st Dist.1988); Ringling Bros.-Barnum & Bailey v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482-83 (7th Cir.1988). It does not operate to forbid the use of every wording similar to the offended mark. Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1159 (7th Cir.1984). Because “sweet-tart” can be used as words of description, Sunmark must show a secondary meaning to receive protection under the Illinois anti-dilution statute. Kern, 175 Ill.App.3d at 633-34, 125 Ill.Dec. at 79-80, 529 N.E.2d at 1155-56. Sunmark’s only attempt to demonstrate a secondary meaning was based on promotional items bearing the name of the candy. This does not show secondary meaning — for meaning is in the mind of the beholder. Consumers’ perceptions, not producers’ promotions, determine whether a mark has secondary meaning. No evidence in this record implies that the adjective “sweet-tart” is to consumers evocative of the Swee Tabts candy. It was not clearly erroneous for the district court to find that Sunmark had not carried its burden of showing a secondary meaning capable of being diluted. Unlike the auto dealer trumpeting “Greatest Used Car Show On Earth” with circus-style lettering in Cel-ozzi-Ettelson, Ocean Spray" }, { "docid": "13512955", "title": "", "text": "of the CARS.COM Service Marks in its spam e-mails is supported by actual confusion evidence. Classified Ventures received several e-mails from consumers complaining about the spam e-mail sent by [email protected]. Those consumers were actually confused as to the source of Softcell’s spam e-mail. Because consumers are likely to have been, and actually have been, confused by Softcell’s spam e-mail messages, its actions violate the Lanham Act and prohibitions under Illinois law against unfair competition and deceptive trade and business practices. 15 U.S.C. § 1125(a); 815 ILCS §§ 505/1-2; 510 ILCS § 510/1. Softcell’s actions also dilute the distinctive quality and fame of the CARS. COM Service Marks in violation of federal and Illinois anti-dilution laws. Dilution is the “lessening of the capacity of a famous mark to identify and distinguish goods or services.” 15 U.S.C. §§ 1125 and 1127; See Intermatic Inc. v. Toeppen, 947 F.Supp. 1227, 1240 (N.D.Ill.1996). When consumers associate a famous mark that has traditionally identified the mark holder’s goods and services with a new and different source, dilution occurs and the mark loses its value. Intermatic, 947 F.Supp. at 1240-41 (both the federal and Illinois anti-dilution statutes protect against use of a mark that lessens the distinctiveness of a famous mark); Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet Inc., 855 F.2d 480 (7th Cir.1988). In this case, consumers are likely to associate Softcell and its pornographic spam e-mails with Classified Ventures and its famous CARS.COM Service Marks, lessening the distinctive value of the CARS.COM Service Marks. Conclusion E. Softcell’s unauthorized use of the CARS. COM name and mark in connection with its spam e-mail messages constitutes service mark infringement, dilution and unfair competition under both federal and Illinois law. For the above reasons, Softcell is entitled to the permanent injunctive relief set forth below. WHEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendant Softcell Marketing, Inc., its agents, officers, servants, employees, representatives and all others in active concert or participation therewith are permanently enjoined from: (a) sending or causing to be sent any email that contains Classified Ventures’ name, domain name, or IP address," }, { "docid": "18814845", "title": "", "text": "remembered always that the ultimate focus is on “the purchasing public’s state of mind when confronted by somewhat similar trademarks singly presented.” International Kennel Club, 846 F.2d at 1088 (quoting James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 275 (7th Cir.1976)). 4. Stuart Hale’s intent to palm-off the PAM mark American challenges the district court’s conclusion that Stuart Hale did not intend to palm-off Pan-Lite as PAM because it had been using the Pan-Lite name five years prior to American’s registration of the PAM mark. Stuart Hale’s president also asserted that he did not intend to benefit from PAM’s market popularity. However, American correctly notes that the district court cannot weigh credibility issues at the summary judgment stage. Wilson v. Williams, 997 F.2d 348, 350 (7th Cir.1993) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14). We believe that American did raise a genuine issue of triable fact. B.State Law Claims American argues that the district court erred in dismissing its state law unfair competition and dilution claims based upon analysis of the federal trademark infringement claim. The state unfair competition claim is analyzed under the likelihood of confusion standard and thus mirrors our infringement analysis. See McGraw-Edison, 181 F.2d 1163. Accordingly, we shall not repeat that analysis here. Under Illinois law, dilution is not dependent upon the likelihood of confusion but on a separate likelihood of dilution inquiry. See Ringling Bros. Bamum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988) (The Illinois Anti-Dilution Act “grants protection to trademarks beyond that provided by the classic ‘likelihood of confusion’ test under the Lanham Act.... The additional protection prevents the gradual whittling away of trademarks’ distinctiveness through use by third parties on non-confusing, noncompeting products.”) (citations omitted). Nonetheless, Stuart Hale correctly asserts that, under modern state precedent, the protection of the Illinois Anti-Dilution statute is not available to competitors under Illinois case law. See EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 380 (7th Cir.1984); see also Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182," }, { "docid": "125897", "title": "", "text": "Palmer v. Beverly Enters., 823 F.2d 1105, 1107 (7th Cir.1987); Lyons v. Turner Constr. Co., 195 Ill.App.3d 36, 141 Ill.Dec. 719, 721-722, 551 N.E.2d 1062, 1064-65 (1990). In tort actions, the relevant contacts include the location where the tortious act took place, the place of injury, and the domicile and place of business of the parties. Koutsoubos, 816 F.Supp. at 475. The most significant factor is the place of injury. Id. Infringement of intellectual property rights sounds in tort. Habitat Wallpaper & Blinds v. K.T. Scott Ltd., 807 F.Supp. 470, 473 (N.D.Ill.1992). The place of injury usually defines the locus of a cause of action for trade dress infringement and unfair business practices; and the damage to intellectual property rights is usually realized where the owner of the protected rights suffers the damage. Id. Abbott’s principal place of business is in Illinois and will thus realize the dilution or misappropriation of its trade dress in Illinois. In addition, although NutraMax’s Pediatric Electrolyte originates from Massachusetts, Abbott’s claims are based in part on the sale of the Pediatric Electrolyte in this district. The division through which Abbott manufactures and sells its Pedialyte is in Ohio, but Pedialyte is distributed nationally. Accordingly, Illinois has the most significant relationship to Abbott’s claims and its unfair competition laws will apply. The application of Illinois law dooms Abbott’s dilution claim. Trademark dilution is recognized in Illinois by the Illinois Anti-Dilution Act, 765 ILCS 1035/15. To succeed on a dilution claim under Illinois’s statute, a plaintiff must demonstrate that its mark is distinctive and that the defendant’s use of the same or similar mark dilutes that distinctiveness. Eveready Battery Co., Inc. v. Adolph Coors Co., 765 F.Supp. 440, 451 (N.D.Ill.1991). The Act provides additional protection to trademark owners by preventing the disparagement or erosion of their marks through use by third parties on non-confusing, non-competing products. Id. (citing Ringling Bros. — Barnum & Bailey Combined Shows, Inc. v. Celozzi — Ettelson Chevrolet, Inc., 855 F.2d 480, 482 (7th Cir.1988)). It is well settled, however, that commercial competitors cannot recover under Illinois’s anti-dilution statute. EZ Loader, 746" }, { "docid": "9792311", "title": "", "text": "likely to dilute the distinctive quality of the 'mark LEXIS, concluding (i) that LEXIS did not have a distinctive quality in the general public that LEXUS could dilute, and (ii) that persons for whom LEXIS would have a distinctive quality and meaning were sophisticated consumers and unlikely to associate the two uses of the marks. 875 F.2d at 1031-32. . Thus, an association connotes more than knowledge of both the LEXIS and LEXUS marks. It is possible for a person to hold words and concepts separate in her mind even where the words or concepts are similar in form or sound. An association is created where the similarities are so great that a link between the two marks is formed that makes the famous mark call to mind the junior mark, or the goods and services covered by the junior mark. . At oral argument Ringling conceded that the value of its mark for licensing had not diminished and that it had no evidence of any damages. . This assumes, probably correctly, that in this country's current culture the general population shops at malls and those who escape this experience are few and eccentric. . Ringling's expert referred variously to “top of mind\", “initial response”, and \"call to mind” to describe the immediate recall of goods or services upon seeing a mark. He testified further that this \"top of mind” position reflected the goal of a marketer, and was an accurate measure of a mark’s capacity to identify and distinguish goods and services. . These figures include the 21% of respondents in Utah who associate the incomplete phrase with both Utah and the Circus, but who do not mistakenly associate or confuse the marks or the goods and services each identifies and distinguishes. . Ringling's counsel suggested at trial that Ringling believes it owns the incomplete phrase THE GREATEST _ ON EARTH. Thus, Ringling has pursued dilution actions against such varied marks as “The Greatest Bar on Earth”, B.E. Windows, 937 F.Supp. at 206, and “The Greatest Used Car Show on Earth”, Ringling Bros.-Barnum Bailey v. Celozzi-Ettelson, 855 F.2d 480," }, { "docid": "2054603", "title": "", "text": "it has been explicitly rejected by at least three circuits. See Nikon Inc. v. Ikon Corp., 987 F.2d 91, 96 (2d Cir.1993); Ringling Bros-Barnum & Bailey Combined Shows, Inc. v. Celozzi-Ettelson Chevrolet, Inc., 855 F.2d 480, 483 (7th Cir.1988); Golden Door, Inc. v. Odisho, 646 F.2d 347, 351-52 (9th Cir.1980). Those decisions are consistent with Supreme Court decisions declining to preempt state legislation in the areas of copyright, see Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), and trade secrets, see Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974). In addition, we note that Congress in § 1125(e)(3) of the FTDA made federal trademark registration a defense to claims under state anti-dilution statutes, rather than preempting such statutes altogether. Ingram next argues that the district court erred in granting summary judgment because Viacom failed to establish as a matter of law the “likelihood ... of dilution” that must be proved to warrant injunctive relief under § 417.061(1). The district court concluded that Viacom has shown a likelihood of dilution by blurring. As this concept was explained in an early landmark article on dilution: If “Kodak” may be used for bath tubs and cakes, “Mazda” for cameras and shoes, or “Ritz-Carlton” for coffee, these marks must inevitably be lost in the commonplace words of the language, despite the originality and ingenuity in their contrivance, and the vast expenditures in advertising them which the courts concede should be protected to the same extent as plant and machinery---- [An] entirely arbitrary symbol would soon lose its arresting uniqueness and hence its selling power if it could also be used on pianos, shaving cream, and fountain pens. Frank L. Schechter, The Rational Basis of Trademark Protection, 40 Harv. L.Rev. 813, 830 (1927). The trademarks mentioned in the Schechter article are arbitrary or fanciful words, long associated in the public’s eye with a particular company. Likewise, courts almost without exception have limited dilution-by-blurring relief to the owners of “strong” marks. “Without such a requirement, an anti-dilution statute becomes a rogue law that" }, { "docid": "22048265", "title": "", "text": "Business and Professional Code (1987), which protects trademark holders against uses which dilute the value of their trademark. App. 7-14. The USOC has not explained, however, why the remedies provided by the California dilution statute are insufficient. It is worth noting that, although some state dilution statutes do not require proof of actual confusion, they do impose other limitations that are not imposed by § 110. “The dilution doctrine cannot and should not be carried to the extreme of forbidding use of a trademark on any and all prod ucts and services, however remote from the owner’s usage.” 2 J. McCarthy, Trademarks and Unfair Competition § 24:16, p. 229 (2d ed. 1984); see also 1 J. Gilson, Trademark Protection and Practice § 5.05[9], p. 5-42 (1986). Only “strong” trademarks are protected by dilution statutes, and the plaintiff’s trademark must not previously have been diluted by others. 2 McCarthy, supra, § 24:14, p. 224; E. Vandenburgh, Trademark Law and Procedure § 5.20, p. 150 (2d ed. 1968). It is generally necessary to show similarity between trademarks and a “likelihood” of confusion. See 1 Gilson, supra, § 5.05[9], p. 5-42. Moreover, state dilution statutes do not generally apply to descriptive, nontrademark uses of words. It is important to note that even after a trademark has acquired secondary meaning, it may be used in a good-faith descriptive manner under the Lanham Act. See 1 McCarthy, supra, § 11:16, p. 475. One commentator has described the First Amendment significance of this Lanham Act defense with respect to the regulation of commercial speech: “Virginia Pharmacy[, 425 U. S. 748 (1976),] and the underlying policies in favor of free commercial speech are closely parallel to those which apply to the branch of trademark law dealing with descriptive words and phrases. The same or very similar policies have been followed for more than a half century by courts and legislatures applying the rule of trademark law that descriptive words and terms cannot be monopolized as trademarks. . . . Without such availability, fair and open competition might be impaired, the available vocabulary of descriptive words would be" } ]

[ { "docid": "17920322", "title": "", "text": "Trust Co. v. Reed (In re Reed), 18 B.R. 462, 463 (Bankr.E.D.Tenn.1982). The parties are not contesting the first two elements; their disputes lie in the latter two. A. ONE YEAR The bankruptcy judge correctly concluded that the transfer of property had happened within one year of filing a petition in bankruptcy. The factual basis reveals that the deed conveying to the tenants by the entireties was recorded July 13, 1982 at 3:52 p.m. and the debtor’s Chapter 7 petition was filed on July 13, 1983 at 8:30 a.m. To measure a period of time, there must be a point of beginning. The transfer of property triggers the clock. Thus, the first determination is what is a transfer. 11 U.S.C. § 101(40) defines a transfer as: every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest. The proof must show “an actual transfer of valuable property belonging to the debt- or which reduced the assets available to creditors and which was made with a fraudulent intent.” 4 L. King, Collier on Bankruptcy 11727.02[5] at 727-16 to -17 (15th ed. 1984). When the debtor relinquished his fee simple interest in the real estate to a tenancy by the entireties with a right of survivorship as at common law, he transferred property within the meaning of the Bankruptcy Code. The transfer became effective as to bona fide purchasers or third parties once it was recorded in the Circuit Court Clerk’s Office on July 13, 1982. Chippenham Hospital, Inc. v. Munden (In re Munden), 8 B.R. 142, 144 (Bankr.E.D.Va.1981). With the point in time established, the next determination is when has a year run. Bankruptcy Rule 9006, dealing with computation of time, provides in pertinent part: In computing any period of time prescribed or allowed by ... any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall" } ]

[ { "docid": "20243364", "title": "", "text": "willing to be adjudged a bankrupt. See id. § 3(a)(5). Furthermore, with respect to a fraudulent transfer, the debtor was given an affirmative defense of solvency. See id. § 3(c); see generally 1 CollieR ¶ 1.19[1]. Congress amended the fourth act of bankruptcy (making an assignment for the benefit of creditors) in 1903 to include having a receiver or trustee take charge of the debtor’s property while the debtor was insolvent. See Act of February 5, 1903, 32 Stat. 797; see also In re Valentine Bohl Co., 224 F. 685 (2d Cir.1915) (dismissing involuntary petition on three grounds: the debtor was balance sheet solvent when the state court receiver was appointed, it was impossible to determine whether the district court receivership was ordered “because of [balance sheet] insolvency” (as the clause required for an involuntary receivership), and there was no evidence of a fraudulent transfer). In 1926, Congress added yet a fifth act of bankruptcy involving the debtor’s insolvency to the 1898 Act: suffering, while insolvent, a lien that was not vacated or discharged within thirty days thereafter. See Act of May 27, 1926, 44 Stat. 662. In the 1898 Act (but not previously), “insolvency” was defined. This definition adopted the modified balance sheet test that now appears in § 101(32)(A). See 1898 Act § 1(19); see also American Nat’l Bank & Trust Co. v. Bone, 333 F.2d 984, 986-87 (8th Cir.1964) (utilizing a balance sheet to show insolvency); Syracuse Engineering Co. v. Haight, 110 F.2d 468, 471 (2d Cir.1940). This definition was a change from the previous understanding of solvency for the purposes of bankruptcy law. While the previous statutes contained no definition of solvency, it was generally understood that the liquidity test applied in the bankruptcy context. See generally 1 Collier ¶ 1.19[1], The Chandler Act in 1938, which substantially amended the 1898 Act, expanded the scope of the 1903 addition by applying it both when the debtor was insolvent (on a modified balance sheet basis) and when the debtor was unable to pay his or her debts as they matured (the liquidity definition). The Chandler Act also" }, { "docid": "18989512", "title": "", "text": "Bankruptcy Act of 1898 § 14(b)(1), 30 Stat. 544, 550 (1898) (repealed 1978). One of these bankruptcy offenses was knowingly and fraudulently concealing property from the trustee in bankruptcy. Id. § 29(b)(1), 30 Stat. 544, 554 (1898) (current version at 18 U.S.C. § 152 (1982) ). Second, the Act provided for denial of discharge to a debtor who transferred property with the intent to’hinder, delay, or defraud his creditors. Id. § 14(b)(4), 32 Stat. 797, 797-98 (1903) (current version at 11 U.S.C. § 727(a)(2)(A) (1982)); see In re Jacobson, 9 F.2d 139, 140-41 (D.S.D.1925). Many of the old cases held that a debtor who transferred property out of his estate would be denied a discharge of his debts only if the property transferred remained transferred at the time the petition for bankruptcy was filed. See, e.g., In re Williams, 286 Fed. 135, 140-41 (W.D.S.C.1921), and cases cited therein. Others, however, held that the debtor would be denied discharge of his debts regardless of whether he recovered the property prior to filing a bankruptcy petition. See, e.g., In re Jacobson, 9 F.2d at 141-42. As the Jacobson court points out, the difference in these cases can be explained by the existence of the two similar grounds for denying a discharge under the old Act. Id. at 141. Section 29(b)(1) required that the transfer be a fraud on the trustee in bankruptcy, but section 14(b)(4) had no such requirement. A transfer is a fraud on the trustee in bankruptcy only if it exists at a time when there is a trustee; i.e., after filing of the bankruptcy petition. Id. Confusion arises because many of the cases granting a discharge do not specify under which section they are decided. Williams is such a case. See Williams, 286 Fed. at 141, and cases cited therein. However, it is fairly clear that Williams was decided under section 29(b)(1) because Williams requires that the concealment be “ ‘from his trustee,’ ” which is the language of section 29(b)(1). Id. at 140. Further, all of the cases cited in Williams either specifically cite section 29(b)(1) or do" }, { "docid": "9852583", "title": "", "text": "(8th Cir.1978). English courts ... developed the doctrine of “badges of fraud”: proof by a creditor of certain objective facts (for example, a transfer to a close relative, a secret transfer, a transfer of title without transfer of possession, or grossly inadequate consideration) would raise a rebuttable presumption of actual fraudulent intent. Every American bankruptcy law has incorporated a fraudulent transfer provision; the 1898 Act specifically adopted the language of the Statute of 13 Elizabeth. Bankruptcy Act of July 1, 1898, ch. 541, § 67(e), 30 Stat. 564-565. BFP v. Resolution Trust Corp., 511 U.S. 531, 540-41, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (internal citations omitted). The Uniform Fraudulent Transfer Act (UFTA), initially written in 1918, “was a codification of the ‘better’ decisions applying the Statute of 13 Elizabeth” that sought to bring some uniformity into various states’ fraudulent transfer jurisprudence. UFTA prefatory note (1984). “[0]ur cases have used the inferential ‘badges of fraud’ approach to determine whether a debtor acted with ‘intent to hinder, delay, or defraud[]’ a creditor regardless of whether the intent language came from a state fraudulent transfer statute or applicable bankruptcy law.” In re Addison, 540 F.3d 805, 811-12 (8th Cir.2008) (applying Minnesota’s statutory badges of fraud to both state and federal fraudulent transfer claims). The UFTA, as enacted at Minn.Stat. § 513.44(b), “contains a lengthy list of factors or ‘badges of fraud’ which a court may look to for help in determining actual intent.” In re Sholdan, 217 F.3d 1006, 1008 (8th Cir.2000). “Once a trustee establishes a confluence of several badges of fraud, the trustee is entitled to a presumption of fraudulent intent. In such cases, ‘the burden shifts to the transferee to prove some legitimate supervening purpose for the transfers at issue,’ ” Kelly v. Armstrong, 141 F.3d 799, 802 (8th Cir.1998) (internal citations omitted) (quoting In re Acequia, Inc., 34 F.3d 800, 806 (9th Cir.1994)), namely that the transferee accepted the transfer in good faith and for value, see 11 U.S.C. § 548(c). Several courts have decided “[w]ith respect to Ponzi schemes, transfers made in furtherance of the scheme are" }, { "docid": "20243397", "title": "", "text": "12 cases where the debtor is quite solvent under a balance sheet test. However, chapter 12 cases are rare in the Central District of California. . The World Bank recommends against the use of a balance sheet insolvency test as a qualification for bankruptcy. See World Bank, Principles and Guidelines for Effective Insolvency and Creditor Rights Systems ¶ 90 (2001). Instead, if an insolvency test is to be adopted in a country, the World Bank recommends the liquidity test — the debtor’s ability to pay debts as they come due. See id. . At the time of the framing of the Constitution, the terms \"bankruptcy” and \"insolvency” were applied differently and had operated in different systems. Bankruptcy meant the action against malingering debtors, while insolvency meant relief for the honest but unfortunate debtor. See Sturges v. Crowninshield, 4 Wheat. 122, 17 U.S. 122, 194-195, 4 L.Ed. 529 (1819) (\"[T]he subject [of bankruptcies] is divisible in its nature into bankrupt and insolvent laws ... [Although the two systems have existed apart from each other, there is such a connection between them, as to render it difficult to say how far they may be blended together”); see also Charles Warren, Bankruptcy in United States History 7 (1935) (at the time of the adoption of the Constitution, only a few states had laws on either the subject of bankruptcies or insolvency, Pennsylvania being the only state that had both — bankruptcy was releasing traders from debts, insolvency a discharge of all persons from prison upon surrendering their property to their creditors). . Bankruptcy Act of 1800, ch. 19, 2 Stat. 19 (1800) (repealed 1803). . Bankruptcy Act of 1841, ch. 9, 5 Stat. 440 (1841) (repealed 1843). . Bankruptcy Act of 1867, ch. 176, 14 Stat. 517 (1867) (repealed 1878). . Bankruptcy Act of 1898, ch. 541, 30 Stat. 544 (1898) (repealed 1978). . Chandler Act, ch. 575, 52 Stat. 840 (1938) (repealed 1978). . Pub.L. No. 95-598, 92 Stat. 2549 (1978). . An act against such persons as do make bankrupts, 34 & 35 Hen. 8, c. 4 (1542). . 4 Anne," }, { "docid": "12380682", "title": "", "text": "Act of 1898, ch. 487, § 4, 32 Stat. at 798 (designating as a new ground for denying discharge the transfer of property with the intent to hinder, delay, or defraud — in § 14(c)(4) — without defining when a transfer was deemed “made”). Both the text and legislative history of this statute indicate that Congress left this decision to the courts. In this absence of Congressional guidance, courts have responded with two different timing rules. The first rule, which Finalco urges us to adopt, deems a transfer “made” under § 727(a)(2) only when it is valid as against bona fide purchasers (“BFPs”). See In re MacQuown, 717 F.2d at 863 (footnote omitted) (“[A] transfer is complete for purposes of section 14(e)(4) [§ 727(a)(2)’s substantively identical predecessor statute] when it is good against bona fide purchasers.”); In re Roy, 42 B.R. at 104 (same); In re McKane, 155 F. 674, 676 (E.D.N.Y.1907) (same). In California, a transfer of real property is valid against bona fide purchasers when it is recorded. See, e.g., Cal. Civ.Code § 1214 (“Every convey-anee of real property ... is void as against any subsequent purchaser or mortgagee of the same property ... in good faith and for a valuable consideration, whose conveyance is first duly recorded ... unless the conveyance shall have been duly recorded prior to the record of notice of action.”). Thus, this rule — which we shall call the “BFP rule”— effectively provides that a transfer is not “made” under § 727(a)(2) until the instrument of transfer is recorded. The second rule, which the BAP adopted here, and which Steven urges us to adopt, deems a transfer “made” for the purposes of § 727(a)(2) once it is effective between the parties to the transfer, whether or not it is valid as against bona fide purchasers. See Matter of Kock, 20 B.R. at 454 (“[A] ‘transfer’ for the purpose of § 727(a)(2) occurs when, in this case, the mortgage is given by the debtors and not when it is perfected by the mortgagee by filing in the Register of Deeds’ office.”); In re Plank," }, { "docid": "23683983", "title": "", "text": "it was “continuously perfected” during the twenty days, and of course, during the ten day grace period given by the preference statute. The legislative history shows that Congress intended for ten days to be a uniform grace period. The predecessor to the present statute was § 60 of the Bankruptcy Act of 1898. The original § 60 did not make it clear whether a transfer that had to be recorded to be effective against some creditors was to be treated as made when made or when recorded. In 1903 Congress amended § 60 to make the date of recording the time of the transfer. Congress’s effort was less than successful. It amended § 60 several more times before 1938. Hirschfeld v. No-gle, 5 F.Supp. 234, 24 A.B.R.(N.S.) 363 (E.D. 111.1933); 3 Collier on Bankruptcy ¶ 60.36 (14th ed. 1964). Finally, in 1938 Congress found the right track. The fumbling of previous legislative enactments proved that drastic and incisive action was needed. Moreover, it must be borne in mind at all times that throughout a period of thirty-five years, beginning in .1903, it was fairly evident that Congress intended to strike down secret transactions by establishing a test as to perfection of transfer that would fix the date of notoriety of the transfer as the time when its preferential character should be determined. It was only the expression of this intent that proved faulty. 3 Collier on Bankruptcy ¶ 60.38 at 941-942 (14th ed. 1964). The 1938 amendment adopted a perfection test to determine the time of transfer. Perfection occurred when a bona fide purchaser from the debtor or a creditor could not acquire rights superior to the transferee. Unfortunately, the bona fide purchaser test was too stringent. Some transfers were avoided that should have been protected. 3 Collier on Bankruptcy ¶ 60.38 at 943-946 (14th ed. 1964). To cure the problem, Congress once again amended § 60. The amendment is the forerunner to the present definition of perfection. Section 60(a)(2) of the Bankruptcy Act provided: For the purposes of subsections a and b ... a transfer of property other than" }, { "docid": "2518943", "title": "", "text": "to say that the government is estopped to claim a tax, but, ordinarily, where a mistake is made in the assessment or levy or an unjust burden has been imposed, the aggrieved party, in order to obtain relief, must pursue the remedy provided by the statute.” No estoppel can be raised against the State’s enforcement of its non-dis-chargeable tax debt, consequently the referee was in error in issuing the injunction. The orders of the referee and of the district court are reversed. . As authorized by the Act of July 1, 1898, c. 511, § 1, 30 Stat. 544, as amended ; U.S.Code, Title XI, c. 1, § 1; see Title 11 U.S.C.A. § 1(10), as amended May 27, 1926, c. 406, § 1, 44 Stat. 662; June 7, 1934, c. 426, 48 Stat. 926; June 25, 1936, c. 804, 49 Stat. 1921; June 22, 1938, c. 575, § 1, 52 Stat. 840; June 28, 1946, c. 512, § 1, 60 Stat. 323; July 7, 1952, c. 579, § 1, 66 Stat. 420. Also see Title 11 U.S.C.A. § 11, as-amended May 27, 1926, c. 406, § 2, 44 Stat. 662; June 22, 1938, c. 575, § 1, 52 Stat. 842; July 7, 1952, c. 579, § 2, 66 Stat. 420, from Act of July 1, 1898, c. 541, Sec. 2, 30 Stat. 544. . As provided for by the Act of July 1, 1898, c. 541, § 57, 80 Stat. 560; Feb. 5, 1903, c. 487, § 12, 32 Stat. 799; May 27, 1926, c. 406, § 13, 44 Stat. 666; June 22, 1938, c. 575, § 1, 52 Stat. 866; see Title 11 U.S.C.A. § 93, as amended July 7, 1952, c. 579, § 14, 66 Stat. 424. . See footnote 2 supra. . Citing Salsbury Motors v. United States, 9 Cir., 1954, 210 F.2d 171, 174, certio-rari denied 347 U.S. 953, 74 S.Ct. 679, 98 L.Ed. 1099, which held after-acquired property of a discharged bankrupt not within the terms of an injunction issued by the bankruptcy court in that case. . Citing In re Devereaux, 2 Cir.," }, { "docid": "12380700", "title": "", "text": "960, 961-62 (Bankr.S.D.Fla.1988) (same); In re Ford, 53 B.R. 444, 447 (W.D.Va.1984), aff'd sub nom. Ford v. Poston, 773 F.2d 52 (4th Cir.1985) (same). . See Amendments to Bankruptcy Act of 1898, ch. 487, § 13, 32 Stat. 797, 799-800 (1903) (deeming a transfer “made\" at the time it was recorded for the purposes of preferential transfers); Bankruptcy Act of 1938, Amendments, ch. 575, § 67(d)(5), 52 Stat. 840, 878 (1938) (deeming a transfer “made” at the time it was recorded for the purposes of fraudulent transfers). . We will not trace the language in § 14(c)(4) to § 3(a)(1) of the Bankruptcy Act of 1898, because § 3(a)(1) was wholly unrelated to denials of discharge. See Bankruptcy Act of 1898, ch. 541, § 3(a), 30 Stat. 544, 546 (1898). We do not believe that the similarity of the words in §§ 3(a)(1) and 14(c)(4) can trump the dissimilarity of the purposes those words were attempting to accomplish: Section 3(a)(1) defined the grounds for involuntary bankruptcy and § 14(c)(4) defined the grounds for denial of discharge. . In relevant part, § 548(a)(1) provides: \"The trustee may avoid any transfer of an interest of the debtor in property ... that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntary ... made such transfer ... with actual intent to hinder, delay, or defraud ...” Id. . Section 548(d)(1) states: For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such tran.sfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer is made immediately before the date of the filing of the petition. 11 U.S.C. § 548(d)(1). .We recognize that serving one of these two goals often advances the other. A denial of discharge, even when aimed at punishing" }, { "docid": "12380681", "title": "", "text": "unless ... the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.... 11 U.S.C. § 727(a)(2)(A). Nowhere does the statute define when a transfer is “made.” See Matter of Kock, 20 B.R. 453, 454 (Bankr.D.Neb.1982) (“No definition of when a transfer is deemed to have occurred is contained in § 727.”). Compare 11 U.S.C. § 548(d)(1) (stating that a transfer is “made” when it is valid against a bona fide purchaser for purposes of the fraudulent transfer provision). Nor does § 727(a)(2)’s legislative history clarify the statute’s silence. While Congress has expressly specified when a transfer is to be deemed “made” for other provisions of the Bankruptcy Code, it failed to do so for the provision governing the denial of discharge. See Amendments to Bankruptcy Act of 1898, ch. 487, § 4, 32 Stat. at 798 (designating as a new ground for denying discharge the transfer of property with the intent to hinder, delay, or defraud — in § 14(c)(4) — without defining when a transfer was deemed “made”). Both the text and legislative history of this statute indicate that Congress left this decision to the courts. In this absence of Congressional guidance, courts have responded with two different timing rules. The first rule, which Finalco urges us to adopt, deems a transfer “made” under § 727(a)(2) only when it is valid as against bona fide purchasers (“BFPs”). See In re MacQuown, 717 F.2d at 863 (footnote omitted) (“[A] transfer is complete for purposes of section 14(e)(4) [§ 727(a)(2)’s substantively identical predecessor statute] when it is good against bona fide purchasers.”); In re Roy, 42 B.R. at 104 (same); In re McKane, 155 F. 674, 676 (E.D.N.Y.1907) (same). In California, a transfer of real property is valid against bona fide purchasers when it is recorded. See, e.g., Cal. Civ.Code §" }, { "docid": "19894614", "title": "", "text": "kinds of conduct. The history of the word “conceal” in the statute also demonstrates that “conceal” has a broad meaning. Section 152, along with the other bankruptcy crimes provisions, first appeared in § 29 of the Bankruptcy Act of 1898, which was codified in Title 11 of the United States Code. See Bankruptcy Act of 1898, ch. 541, § 29(b), 30 Stat. 544, 554 (1898). In 1938, Congress amended the Bankruptcy Act; § 1(7) of those amendments stated that “ ‘Conceal’ shall include secrete, falsify, and mutilate.” The Chandler Act, ch. 575, § 1(7), 52 Stat. 840, 840 (1938). In 1948, the criminal provisions of the Bankruptcy Act were moved to Title 18. See Crimes and Criminal Procedure Act, ch. 645, § 152, 62 Stat. 683, 689 (1948). Section 1(7) remained a part of Title 11 (even though the term it was defining was nestled in Title 18) until 1979, when the Bankruptcy Reform Act of 1978 repealed § 1(7) along with large portions of the 1898 Bankruptcy Act. Despite this repeal, courts have continued to apply an expand ed definition of “conceal” in § 152(1) cases. See Collier ¶ 7.01[l][b][i], at 7-16 (“Courts ... have not allowed the accident of transference to the criminal code to change settled interpretations.”); United States v. Grant, 971 F.2d 799, 802 n. 3 (1st Cir.1992) (noting that “where appropriate we cite to authority antedating the 1979 amendment”). For example, in Thayer, the Third Circuit upheld a jury instruction in a § 152(1) case which read: Fraudulently concealing property of the estate of the debtor may include transferring property to a third party, destroying the property, withholding knowledge concerning the existence or whereabouts of property, or knowingly doing anything else by which the person acts to hinder, delay or defraud any of the creditors. 201 F.3d at 224 (emphasis added). Similarly, in United States v. Turner, 725 F.2d 1154 (8th Cir.1984), the court adopted a comparably broad standard. It upheld the following jury instruction: Concealment means, not.only secreting, falsifying and mutilating as specified in section 1 of the Bankruptcy Act but also includes preventing" }, { "docid": "12380698", "title": "", "text": "Agreement was actually delivered to Judy. Delivery may be presumed where, as here, no conflicting evidence exists. See Cal. Civ.Code § 1055 (\"A grant duly executed is presumed to have been delivered at its date.”). Alternatively, an instrument is deemed constructively delivered if the grantor so intended. See Cal. Civ.Code § 1059 (permitting constructive delivery if the instrument \"is, by the agreement of the parties at the time of execution, understood to be delivered ... ”); see also McCarthy v. McCarthy, 82 Cal.App.2d 166, 168, 185 P.2d 821 (1947). Here, the parties provided that the Agreement itself could be recorded, an act that would be meaningless unless Steven intended the Agreement to have immediate effect. See Marital Agreement, II17 (\"This Agreement ... may be recorded at any time ... in any place ... authorized by law for the recording of documents affecting title to or ownership status of property ... ”); see also Bankruptcy Court Findings of Fact and Conclusions of Law, at 3 (\"The MARITAL AGREEMENT was intended to be an instrument of conveyance ...\"). . That Steven lived in the house after its transmutation is irrelevant. See Ogg v. Gunderson, 74 Cal.App.2d 384, 387, 168 P.2d 793 (1946) (“The validity of a deed is not necessarily impaired by the fact that the grantor after delivery of the deed continued to exercise control over the realty ... The primary test is whether the grantor intended to make a present transfer ...”). . A few courts have erroneously looked to state law to see when a transfer is valid against third parties without first deciding the previous question of what type of validity — as between the parties or as against bona fide purchasers — is required by federal law. See, e.g., In re Ingersoll, 124 B.R. 116, 121 (M.D.Fla.1991) (citing state law that a transfer is effective against third parties once it is recorded, but never discussing why a transfer is \"made” only if it is effective against third parties instead of being \"made” when it is effective between the parties to the transfer); In re Gonzalez, 92 B.R." }, { "docid": "18989511", "title": "", "text": "the petitions were filed. At that time some questions were raised regarding one of the parcels he had transferred. Those questions were not adequately resolved. In oral argument before this court, Adeeb’s attorney conceded that not all of the property had been recovered before the petitions were filed. The attorney was not certain whether all of the parcels had been recovered by the time of oral argument before this court. . Collier on Bankruptcy states that a \"split of authority ... exists concerning property that has been transferred within the statutory period but then retransferred to the debtor before he filed his petition.” 4 Collier on Bankruptcy ¶ 727.02(2] (15 ed. 1985). The cases cited for this proposition are not useful in deciding the issue before us. All of the cases cited in Collier were decided under the old Bankruptcy Act. That Act contained two similar grounds for denial of a discharge in bankruptcy. First, it provided for denial of discharge to a debtor who committed an offense punishable under the bankruptcy laws by imprisonment. Bankruptcy Act of 1898 § 14(b)(1), 30 Stat. 544, 550 (1898) (repealed 1978). One of these bankruptcy offenses was knowingly and fraudulently concealing property from the trustee in bankruptcy. Id. § 29(b)(1), 30 Stat. 544, 554 (1898) (current version at 18 U.S.C. § 152 (1982) ). Second, the Act provided for denial of discharge to a debtor who transferred property with the intent to’hinder, delay, or defraud his creditors. Id. § 14(b)(4), 32 Stat. 797, 797-98 (1903) (current version at 11 U.S.C. § 727(a)(2)(A) (1982)); see In re Jacobson, 9 F.2d 139, 140-41 (D.S.D.1925). Many of the old cases held that a debtor who transferred property out of his estate would be denied a discharge of his debts only if the property transferred remained transferred at the time the petition for bankruptcy was filed. See, e.g., In re Williams, 286 Fed. 135, 140-41 (W.D.S.C.1921), and cases cited therein. Others, however, held that the debtor would be denied discharge of his debts regardless of whether he recovered the property prior to filing a bankruptcy petition. See," }, { "docid": "1912492", "title": "", "text": "Minn.Stat. § 518.58 (1986). . The term \"fair consideration” was used in the previous fraudulent transfer statute, § 67(d) of the Bankruptcy Act of 1898. Act of July 1, 1898, ch. 541, 30 Stat. 544 (repealed 1979). There is no indication in the legislative history that Congress intended a change in substantive law by using the term “reasonably equivalent value” in 11 U.S.C. § 548(a)(2)(A) of the Bankruptcy Code. Thus, the precedential value of the Bankruptcy Act case law is not materially affected. See In re Ottaviano, 63 B.R. 338, 342 n. 6 (Bkrtcy.D.Conn.1986). . Falk argues that it is unfair and against public policy to apply a consent decree against a non-party. These concerns deal with the issue of privity, not whether a consent decree was actually litigated. As such, I will address them in the section on privity later in this order. . Section 518.58 provides that \"the court shall make a just and equitable division of the marital property ... after making findings regarding the division of the property.” Minn.Stat. § 518.58 (1986). .First Alabama Bank v. Parsons Steel, Inc., has a long and complicated procedural history. The United States Supreme Court reversed the Eleventh Circuit on grounds unrelated to the court’s discussion of privity. 474 U.S. 518, 526 n. 4, 106 S.Ct. 768, 773 n. 4, 88 L.Ed.2d 877 (1986). On remand and subsequent appeal from the district court, the Eleventh Circuit reaffirmed its ruling on privity. 825 F.2d 1475, 1486 (11th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1015, 98 L.Ed.2d 980 (1988). . The court also noted that the trustee knew of the previous litigation and chose not to intervene. 747 F.2d at 1379. . The helicopter actually was purchased from Vertol Aircraft Corporation. Vertol then was merged in Boeing, with Boeing assuming all liabilities of Vertol. . Falk makes much of the fact that as debtor-in-possession he represents the interests of creditors, and if preclusive effect is given the dissolution judgment and decree, the creditors' interests are left unprotected. This argument, however, ignores the other provisions of 11 U.S.C. § 548. If" }, { "docid": "19662845", "title": "", "text": "§ 13, 32 Stat. 797, 799-800, Congress in 1910 introduced into the section what was effectively a recording requirement for mortgages, albeit without a grace period. Act of June 25, 1910, ch. 412, § 11, 36 Stat. 840, 842. In 1938, through the Chandler Act, Congress introduced a more detailed definition of preference, Act of June 22, 1938, ch. 575, § 60, 52 Stat. 840, 869, and in 1950, a 21-day grace period for perfection was added. Act of Mar. 18, 1950, ch. 70, § 1, 64 Stat. 24, 26. The legislative history reveals that this last was designed to create “an appropriately rigid time limitation.” H.R.Rep. No. 81-1293 (1949). Then, in 1978, the then-new Bankruptcy Code reduced the time limit for perfection to 10 days, as it remained during the transactions in this case. Bankruptcy Reform Act of 1978, Pub.L. No. 109-279, § 547(e)(2). It is one thing to impose a gloss on the statute, such as the earmarking doctrine, that achieves formal compliance with the statute to rescue a transaction where no prejudice occurred. It is another to make lack of prejudice itself a substitute for formal compliance. The history of section 547 just recounted is of amendments that try to make the statute self-executing to avoid uncertainty and litigation costs; we will not undo that effort. GAMC suggests an alternative route to the bankruptcy judge’s outcome. Section 547(b) is itself subject to exceptions set forth in section 547(c). In particular, section 547(c)(1) excludes an otherwise avoidable transfer to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. The first of these two requirements is arguably satisfied. The transfer being attacked — Lazarus’ grant of a mortgage to GAMC — -was intended to be a contemporaneous exchange for new value given to the debtor, namely, the loan to Lazarus from GAMC used to pay off Lazarus’ debt to Washington Mutual. The question, then, is" }, { "docid": "12380699", "title": "", "text": "...\"). . That Steven lived in the house after its transmutation is irrelevant. See Ogg v. Gunderson, 74 Cal.App.2d 384, 387, 168 P.2d 793 (1946) (“The validity of a deed is not necessarily impaired by the fact that the grantor after delivery of the deed continued to exercise control over the realty ... The primary test is whether the grantor intended to make a present transfer ...”). . A few courts have erroneously looked to state law to see when a transfer is valid against third parties without first deciding the previous question of what type of validity — as between the parties or as against bona fide purchasers — is required by federal law. See, e.g., In re Ingersoll, 124 B.R. 116, 121 (M.D.Fla.1991) (citing state law that a transfer is effective against third parties once it is recorded, but never discussing why a transfer is \"made” only if it is effective against third parties instead of being \"made” when it is effective between the parties to the transfer); In re Gonzalez, 92 B.R. 960, 961-62 (Bankr.S.D.Fla.1988) (same); In re Ford, 53 B.R. 444, 447 (W.D.Va.1984), aff'd sub nom. Ford v. Poston, 773 F.2d 52 (4th Cir.1985) (same). . See Amendments to Bankruptcy Act of 1898, ch. 487, § 13, 32 Stat. 797, 799-800 (1903) (deeming a transfer “made\" at the time it was recorded for the purposes of preferential transfers); Bankruptcy Act of 1938, Amendments, ch. 575, § 67(d)(5), 52 Stat. 840, 878 (1938) (deeming a transfer “made” at the time it was recorded for the purposes of fraudulent transfers). . We will not trace the language in § 14(c)(4) to § 3(a)(1) of the Bankruptcy Act of 1898, because § 3(a)(1) was wholly unrelated to denials of discharge. See Bankruptcy Act of 1898, ch. 541, § 3(a), 30 Stat. 544, 546 (1898). We do not believe that the similarity of the words in §§ 3(a)(1) and 14(c)(4) can trump the dissimilarity of the purposes those words were attempting to accomplish: Section 3(a)(1) defined the grounds for involuntary bankruptcy and § 14(c)(4) defined the grounds for denial of" }, { "docid": "20243398", "title": "", "text": "such a connection between them, as to render it difficult to say how far they may be blended together”); see also Charles Warren, Bankruptcy in United States History 7 (1935) (at the time of the adoption of the Constitution, only a few states had laws on either the subject of bankruptcies or insolvency, Pennsylvania being the only state that had both — bankruptcy was releasing traders from debts, insolvency a discharge of all persons from prison upon surrendering their property to their creditors). . Bankruptcy Act of 1800, ch. 19, 2 Stat. 19 (1800) (repealed 1803). . Bankruptcy Act of 1841, ch. 9, 5 Stat. 440 (1841) (repealed 1843). . Bankruptcy Act of 1867, ch. 176, 14 Stat. 517 (1867) (repealed 1878). . Bankruptcy Act of 1898, ch. 541, 30 Stat. 544 (1898) (repealed 1978). . Chandler Act, ch. 575, 52 Stat. 840 (1938) (repealed 1978). . Pub.L. No. 95-598, 92 Stat. 2549 (1978). . An act against such persons as do make bankrupts, 34 & 35 Hen. 8, c. 4 (1542). . 4 Anne, c. 17 (1705). . 5 Geo. 2, c. 30 (1732). .See also Story, supra, § 1101 (\"it may be stated, that the general object of all bankrupt and insolvent laws is, on the one hand, to secure to creditors an appropriation of the property of their debtors pro tanto to the discharge of their debts, whenever the latter are unable to discharge the whole amount; and, on the other hand, to relieve unfortunate and honest debtors from perpetual bondage to their creditors, either in the shape of unlimited imprisonment to coerce payment of their debts, or of an absolute right to appropriate and monopolize all their future earnings.”) . But see Thomas E. Plank, Bankruptcy and Federalism, 71 Ford. L.Rev. 1063 (2002), where he argues that “bankruptcy” inherently meant insolvency in the eighteenth century. He bases this conclusion principally on the examination of several eighteenth century dictionaries, and ignores the legal history of bankruptcy law. See id. at 1076-77. The court finds this approach unpersuasive, in light of the contrary history of bankruptcy law at" }, { "docid": "12380680", "title": "", "text": "between Steven and Judy. III. Finalco contends that, even if the Marital Agreement was valid between Steven and Judy, that discharge was still improperly denied because § 727(a)(2) does not deem a transfer “made” until it is recorded' — which in this case was within one year of when Steven filed his bankruptcy petition. The question of when a transfer is “made” is a question of federal law, subject to our de novo review. In re Schuman, 81 B.R. 583, 585 (9th Cir. BAP 1987) (citation omitted) (“When a transfer occurs within the meaning of the Bankruptcy Code is a question of law and subject to de novo review.”); see In re MacQuown, 717 F.2d 859, 862-63 (3d Cir.1983) (deciding this issue as a matter of federal law before turning to state law to examine when a transfer is valid under state law); In re Roy, 42 B.R. 102, 104-05 (Bankr.S.D.Fla.1984) (same). We start, as always, with the plain language of the statute. Section 727(a)(2) provides that: The court shall grant the debtor a discharge, unless ... the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.... 11 U.S.C. § 727(a)(2)(A). Nowhere does the statute define when a transfer is “made.” See Matter of Kock, 20 B.R. 453, 454 (Bankr.D.Neb.1982) (“No definition of when a transfer is deemed to have occurred is contained in § 727.”). Compare 11 U.S.C. § 548(d)(1) (stating that a transfer is “made” when it is valid against a bona fide purchaser for purposes of the fraudulent transfer provision). Nor does § 727(a)(2)’s legislative history clarify the statute’s silence. While Congress has expressly specified when a transfer is to be deemed “made” for other provisions of the Bankruptcy Code, it failed to do so for the provision governing the denial of discharge. See Amendments to Bankruptcy" }, { "docid": "1982226", "title": "", "text": "of 1898, ch. 541, 30 Stat. 544, which became the basis for modern bankruptcy law, it assuredly meant to incorporate similar common-law duties as the original Act nowhere defined, much less mentioned, a duty of disinterestedness or any equivalent concept. When Congress substantially modified the 1898 Act through the Chandler Amendments in 1938, ch. 575, 52 Stat. 840, it did the same thing in adopting a requirement of “disinterest,” which was broadly defined as an “adverse interest” “for any reason.” See Chandler Amendments of 1938, Pub.L. No. 75-696, § 158(4), 52 Stat. 840 (1938) (“A person shall not be deemed disinterested ... if— it appears that he has ... for any reason an interest materially adverse to the interests of any class of creditors or stockholders.”) And in 1978, when the current Bankruptcy Code was adopted, Congress embraced a similar definition of “disinterest.” See 11 U.S.C. § 101(14)(E) (“[Disinterested person ... does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to ... the debtor ... or for any other reason.”). In each of these forty-year increments— in 1898, in 1938, in 1978 — Congress legislated against the backdrop of centuries of common-law decisions about the duties of trustees and other fiduciaries as well as against the backdrop of courts construing statutes in the context of similar common-law traditions. And in each instance, Congress incorporated these principles and traditions. Cf Wolf, 372 U.S. at 641, 83 S.Ct. 969 (“[T]he purpose behind § 249 was to codify these decisions and to give pervasive effect in Chapter X proceedings to the historic maxim of equity that a fiduciary may not receive compensation for services tainted by disloyalty or conflict of interest”). C. An examiner’s duties in a bankruptcy proceeding, then, flow from the Code, the Federal Rules of Bankruptcy Procedure and the common law, including the once-distinct principles of equity. All of these sources considered, a bankruptcy examiner has three general duties. First, consistent with the statutory requirement of “disinterest,” the" }, { "docid": "19662844", "title": "", "text": "certainly a penalty. But the penalty is not without a general benefit — pour encoumger les nu-tres — and is easily avoided by recording within 10 days as the statute directed. Probably other creditors were not prejudiced in this instance; but the formal requirements of section 547 were designed to work mechanically, avoiding the necessity of demonstrating prejudice. The Code lays down formal requirements with substantive consequences. The litigation in this case is one of the costs of ignoring the statute; the costs would be greatly multiplied if in each instance inquiry had to be made as to whether or not prejudice had occurred. The avoidable preference provision first appeared in the 1898 Code, framed in general terms. A preference was created when an insolvent debtor made a transfer within four months of filing that enabled a creditor to obtain more than the other creditors in his class. Act of July 1, 1898, ch. 541, § 60, 30 Stat. 544, 562. Then, after an abortive experiment in 1903, Act of Feb. 5, 1903, ch. 487, § 13, 32 Stat. 797, 799-800, Congress in 1910 introduced into the section what was effectively a recording requirement for mortgages, albeit without a grace period. Act of June 25, 1910, ch. 412, § 11, 36 Stat. 840, 842. In 1938, through the Chandler Act, Congress introduced a more detailed definition of preference, Act of June 22, 1938, ch. 575, § 60, 52 Stat. 840, 869, and in 1950, a 21-day grace period for perfection was added. Act of Mar. 18, 1950, ch. 70, § 1, 64 Stat. 24, 26. The legislative history reveals that this last was designed to create “an appropriately rigid time limitation.” H.R.Rep. No. 81-1293 (1949). Then, in 1978, the then-new Bankruptcy Code reduced the time limit for perfection to 10 days, as it remained during the transactions in this case. Bankruptcy Reform Act of 1978, Pub.L. No. 109-279, § 547(e)(2). It is one thing to impose a gloss on the statute, such as the earmarking doctrine, that achieves formal compliance with the statute to rescue a transaction where no prejudice" }, { "docid": "1193337", "title": "", "text": "to state law to resolve the question. We note initially that the cases are unanimous, both under the old Bankruptcy Act of 1898, Pub. L. No. 62-57, 30 Stat. 544 (codified as amended primarily in former 11 U.S.C. (1976) and repealed in 1978), and under the Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (codified as amended primarily in 11 U.S.C.A. § 1-1146 (1979 & Supp.1985) and scattered sections of 28 U.S.C.A. (1965-76 & Supp.1985)) (“the Code”), that the trustee in bankruptcy could recover as preferential and fraudulent transfers at least some of the payments that the debtor had made to investors in a Ponzi scheme. Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924); Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470 (Bankr.D.Nev.1985); Lawless v. Anderson (In re Moore), 39 B.R. 571 (Bankr.M.D.Fla.1984). See also Rosenberg v. Collins, 624 F.2d 659 (5th Cir.1980) (not a pure Ponzi scheme); Edmondson v. Bradford-White Corp. (In re Tinnell Traffic Servs., Inc.), 41 B.R. 1018 (M.D.Tenn.1984) (fraudulent transaction). Dietz argues that the prior cases are distinguishable from this since, under the state law applicable at the time, one who obtained possession of property had defea-sible title to the property, even if he obtained it by tortious or criminal means. On the other hand, he argues, under applicable modern law a person who acquires property of another by fraud has no title to or interest in the property whatsoever. As support for this proposition, Dietz cites Corporation of the President of the Church of Jesus Christ of Latter-day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (1970). There, the Utah Supreme Court stated, without citation: Where one has stolen or embezzled the money or property of another, he obtains no title whatsoever. A constructive trust may be impressed upon it in his hands; and equity may continue the trustee effective against any subsequent transferee, unless transferred to a bona fide purchaser and under circumstances where equity would require a different result. 467 P.2d at 985. Dietz argues that the same" } ]

[ { "docid": "22127413", "title": "", "text": "of Workers’ Compensation Programs. Although a since-amended regulation ■required that such settlements be embodied in formal compensation orders, see 20 CFR § 702.315 (a) (1976), no formal orders were entered in these cases. Accordingly, the plaintiffs argued in the lower courts that the assignment provision of § 33 (b) had not been activated because they had not accepted “compensation under an award in a compensation order filed by the deputy commissioner or Board,” as required by the statute. The District Courts rejected petitioners’ argument, concluding that settlement agreements reached after official informal conferences were equivalent to formal orders for purposes of § 33 (b). See Rodriguez, supra, at 1018-1020; Barulec, 471 F. Supp., at 360-362. The Court of Appeals agreed. See 617 F. 2d, at 958-960. Although petitioners challenged this ruling in their petition for certiorari, our order granting the petition did not extend to this question. 449 U. S. 818. Accordingly, for purposes of our decision, we assume that their acceptance of compensation operated as an assignment under § 33 (b). Petitioner Perez apparently did not contend below that he had not accepted “compensation under an award” within the meaning of § 33 (b). See 468 F. Supp. 799 (SDNY 1979). Rodriguez filed suit approximately 32 months, Perez filed suit approximately 15 months, and Barulec filed suit approximately 1 year after accepting -compensation. See 617 F. 2d, at 957; Perez, 468 F. Supp., at 800; Barulec, 471 F. Supp., at 359. The Act expressly 'provides that the employee is not required to elect between his right to compensation from his employer and his claim for damages against a third party. Section 33 (a), as set forth in 33 U. S. C. § 933 (a), provides: “If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.” Section 5 (b) of the" } ]

[ { "docid": "23187645", "title": "", "text": "prepare, file and mail the formal compensation order. In either instance, when the employer or carrier has agreed to pay, reinstate or increase monetary compensation benefits, or to restore or appropriately change medical care benefits, such action shall be commenced immediately upon becoming aware of the agreement, and without regard to the receipt of the formal compensation order.” Following the execution of the settlement agreement, neither the deputy commissioner nor his designee filed and mailed a formal compensation order. On July 2, 1977, plaintiff commenced the present action in the Southern District of New York against the shipowner (Compass Shipping Co. Ltd.) and bareboat charterer (Djakarta Lloyd, P.N.) after an earlier suit had on June 2, 1976, mistakenly been instituted in the same court against the shipowner only and was apparently dropped. On April 21, 1978, the defendants moved for summary judgment based on plaintiff’s failure to sue within six months of the settlement agreement as required by 33 U.S.C. § 933(b). On September 12, 1978, Judge Carter filed an opinion, 456 F.Supp. 1014, holding that the settlement agreement amounted to an order within the meaning of § 33(b), requiring plaintiff to sue within six months unless he could show that that section should not be applied because of a conflict of interest between himself and his employer with respect to the institution of a personal injury suit against the shipowner or charterer, see Czaplicki v. The S.S. Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed, 1387 (1956). Plaintiff was given 60 days within which, through use of discovery proceedings, to demonstrate a conflict. When plaintiff failed to adduce evidence other than his attorney’s affidavit to the effect that the employer had a policy of not prosecuting actions based on a § 33(b) assignment, the district court granted summary judgment, dismissing the complaint on the ground that plaintiff’s rights against the defendant had been assigned to his employer pursuant to § 33(b) by reason of his failure to bring suit against them within six months after the settlement. From this judgment plaintiff appeals. DISCUSSION Appellant’s threshold contention that" }, { "docid": "23187644", "title": "", "text": "his counsel’s fee. Payment of the agreed-upon amount was made promptly by the employer to plaintiff pursuant to the terms of the agreement. Title 20 C.F.R. § 702.315, as it read at the timé of the settlement, obligated the employer to commence paying the compensation benefits immediately, without regard to whether the deputy commissioner, acting personally or through his designee, see 20 C.F.R. § 702.312, supra, had filed a formal compensation order, which he was required to do. Title 20 C.F.R. § 702.315 provided: “§ 702.315 Conclusion of conference agreement on all matters with respect to the claim. “(a) Following an informal conference at which agreement is reached on all issues, the deputy commissioner shall embody the agreement in a formal compensation order, to be filed and mailed in accordance with § 702.349. Where the problem was of such nature that it was resolved by discussion by telephone or by exchange of written correspondence, the parties shall be notified by the same means that agreement was reached and then the deputy commissioner shall proceed to prepare, file and mail the formal compensation order. In either instance, when the employer or carrier has agreed to pay, reinstate or increase monetary compensation benefits, or to restore or appropriately change medical care benefits, such action shall be commenced immediately upon becoming aware of the agreement, and without regard to the receipt of the formal compensation order.” Following the execution of the settlement agreement, neither the deputy commissioner nor his designee filed and mailed a formal compensation order. On July 2, 1977, plaintiff commenced the present action in the Southern District of New York against the shipowner (Compass Shipping Co. Ltd.) and bareboat charterer (Djakarta Lloyd, P.N.) after an earlier suit had on June 2, 1976, mistakenly been instituted in the same court against the shipowner only and was apparently dropped. On April 21, 1978, the defendants moved for summary judgment based on plaintiff’s failure to sue within six months of the settlement agreement as required by 33 U.S.C. § 933(b). On September 12, 1978, Judge Carter filed an opinion, 456 F.Supp. 1014, holding" }, { "docid": "23703873", "title": "", "text": "do not regard as reasonable respondent Sea-Land Services’ view that an employee is “newly awarded compensation” in the year she becomes “statutorily entitled to compensation.” Ante, at 100 (internal quotation marks omitted). Applying the common meaning of the verb “award” and recognizing the Act’s distinction between benefits paid voluntarily, and those paid pursuant to a compensation order, see ante, at 97-98,1 would hold that an injured worker is “newly awarded compensation” when (1) the employer voluntarily undertakes to pay benefits to the employee, or (2) an administrative law judge (ALJ), the Benefits Review Board (BRB), or a reviewing court orders the employer to pay such benefits. I In determining the meaning of a statutory phrase, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U. S. 103, 108 (1990) (internal quotation marks and citation omitted). As the Court acknowledges, ante, at 100, the verb “award” ordinarily means “to give by judicial decree” or “[to] assign after careful judgment.” Webster’s Third New International Dictionary 152 (2002). See also Black’s Law Dictionary 157 (9th ed. 2009) (defining the verb “award” as “[t]o grant by formal process or by judicial decree”). Giving “award” this usual meaning, an employee is “newly awarded compensation,” if not voluntarily paid, in the fiscal year in which payment is directed by administrative order or judicial decree. Under the LHWCA, the Court recognizes, an employee is provided compensation voluntarily or in contested proceedings. See ante, at 98. Most commonly, an employer pays compensation voluntarily after receiving an employee’s notice of disabling injury. See Pallas Shipping Agency, Ltd. v. Duris, 461 U. S. 529, 532 (1983); 33 U. S. C. §912 (describing the form, content, and timing of the necessary notice and requiring employers to designate a representative to receive the notice); § 914(b). If an employer declines to pay compensation voluntarily, an injured employee can file a claim with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). For employees with valid claims, OWCP proceedings culminate with an administrative or court decision ordering the employer to pay benefits. §919(c)." }, { "docid": "23703841", "title": "", "text": "preinjury average weekly wage as long as he remains disabled. • §§ 908(a)-(b), 910. Section 906, however, sets a cap on compensation. Disability benefits, “shall not exceed” twice “the applicable national average weekly wage.” § 906(b)(1). The national average weekly wage — “the national average weekly earnings of production or nonsupervisory workers on private non-agricultural payrolls,” §902(19) — is recalculated by the Secretary of Labor each fiscal year. § 906(b)(3). For most types of disability, the “applicable” national average weekly wage is the figure for the fiscal year in which a beneficiary is “newly awarded compensation,” and the cap remains constant as long as benefits continue. § 906(c). Consistent with the central bargain of workers’ compensation regimes — limited liability for employers; certain, prompt recovery for employees — the LHWCA requires that employers pay benefits voluntarily, without formal administrative proceedings. Once an employee provides notice of a disabling injury, his employer must pay compensation “periodically, promptly, and directly . . . without an award, except where liability to pay compensation is controverted.” § 914(a). In general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, 461 U. S. 529, 532 (1983). In the mine run of cases, therefore, no compensation orders issue. If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 20 CFR §§702.251-702.262 (2011). The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” §702.301. A district director’s informal disposition may result in a compensation order. § 702.315(a). In practice, however, “many pending claims are amicably settled through voluntary payments .without the necessity of a formal order.” Intercounty Constr. Corp. v. Walter, 422 U. S. 1, 4, n. 4 (1975). If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 20 CFR §§702.316, 702.331-702.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U. S. C. §§ 919(c)-(e). B In fiscal year 2002," }, { "docid": "18648483", "title": "", "text": "KEVIN THOMAS DUFFY, District Judge: Plaintiff, Salvatore Francavilla, is a longshoreman who allegedly sustained personal injuries when he fell while working aboard defendant’s vessel on January 23, 1975. Plaintiff thereafter filed a claim for compensation under the Longshoremen’s and Harbor Workers’ Compensation Act [hereinafter referred to as “LHWCA”], 33 U.S.C. § 901 et seq. As a result, he received compensation from his employer, the stevedore, which included payment for the temporary disability suffered as well as a lump sum payment for permanent disability. The last payment of compensation was made on September 29, 1975 following an informal conference conducted by a claims examiner on September 18, 1975. At that conference, the parties had agreed to the amount to be paid to plaintiff. The total paid was $4,667.65 as reflected under the Recommendation Section of the Memorandum of Informal Conference submitted by the claims examiner on September 22, 1975. Plaintiff commenced this action on November 28, 1977 charging the defendant shipowner with negligence. Although he had received compensation from his employer, by virtue of Section 933(a) of the LHWCA, plaintiff theoretically retained his right to recover damages from a third person who might be liable to him. Section 933(b), however, provides that acceptance of compensation from an employer Under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board [§ 921(b)] shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. 33 U.S.C. § 933(b). Defendant now moves, pursuant to Fed. R.Civ.P. 12 to dismiss this matter or in the alternative for summary judgment. The shipowner argues that plaintiff has no standing to bring the instant action since, by virtue of the lapse of six months following his award, the right to institute suit has been assigned to plaintiff’s employer. Defendant submits that the Memorandum of Informal Conference completed by the claims examiner, the agreement of the parties to terminate the compensation claim on an" }, { "docid": "23703842", "title": "", "text": "general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, 461 U. S. 529, 532 (1983). In the mine run of cases, therefore, no compensation orders issue. If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 20 CFR §§702.251-702.262 (2011). The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” §702.301. A district director’s informal disposition may result in a compensation order. § 702.315(a). In practice, however, “many pending claims are amicably settled through voluntary payments .without the necessity of a formal order.” Intercounty Constr. Corp. v. Walter, 422 U. S. 1, 4, n. 4 (1975). If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 20 CFR §§702.316, 702.331-702.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U. S. C. §§ 919(c)-(e). B In fiscal year 2002, petitioner Dana Roberts slipped and fell on a patch of ice while employed at respondent Sea-Land Services’ marine terminal in Dutch Harbor, Alaska. Roberts injured his neck and shoulder and did not return to work. On receiving notice of his disability, Sea-Land (except for a 6-week period in 2003) voluntarily paid Roberts benefits absent a compensation order until fiscal year 2005. When Sea-Land discontinued voluntary payments, Roberts filed an LHWCA claim, and Sea-Land controverted. In fiscal year 2007, after a hearing, an ALJ awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This was twice the national average weekly wage for fiscal year 2002, the fiscal year when Roberts became disabled. Roberts moved for reconsideration, arguing that the “applicable” national average weekly wage was the figure for fiscal year 2007, the fiscal year when he was “newly awarded compensation” by the ALJ’s order. The latter figure would have entitled Roberts to $1,114.44 per week. The ALJ denied reconsideration, and the Department of Labor’s Benefits Review Board (or BRB) affirmed, concluding that “the" }, { "docid": "23576876", "title": "", "text": "understanding of these loss-shifting concepts is essential to proper resolution of this appeal, we shall briefly review them. A. The Worker’s Third-Party Cause of Action First, we shall examine the worker’s third-party cause of action. Section 33(a) of the LHWCA, 33 U.S.C. § 933(a), preserves a compensated worker’s right to recover damages from parties other than his employer. The substantive right to recover against third parties is, of course, generally determined by law independent of the LHWCA. The Act does, however, regulate the procedure for asserting the worker’s third-party claim and the manner in which the fruits of that claim shall be distributed. If the worker accepts compensation “under an award in a compensation order filed by the deputy commissioner, an administrative law judge, or the [Benefits Review] Board,” the Act gives him six months in which to commence an action against a third party who may be responsible for his injuries. See 33 U.S.C. § 933(b). If the worker does not commence an action within the six-month period, all of his rights against third parties are automatically assigned to the employer who may during the next ninety days as sert the worker's rights against third parties. Id. During the assignment period, the employer’s control of the worker’s cause of action is exclusive; the worker is forbidden from commencing a suit on the claim. See Rodriguez v. Compass Shipping Co., Ltd., 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981). If the employer does not act within the ninety-day period, “the right to bring such action shall revert to the person entitled to compensation.” 33 U.S.C. § 933(b). If a formal compensation award is not entered, the assignment provision of the Act does not apply, even if the employer has voluntarily made compensation payments, and the right to assert the worker’s third-party cause of action remains with the worker. See Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983). Although the Act and the regulations envision formal compensation awards as a matter of course only in those cases in which there is" }, { "docid": "12631653", "title": "", "text": "shipowner fails to provide a safe place to work and the stevedore is damaged, the stevedore or its carrier may maintain an action to recover compensation payments. As Professor Schoenbaum explains: A Burnside claim is useful especially where the employer's section 933(b) claim is unavailable or insufficient to cover its full compensation liability. To recover, the employer must allege facts showing a breach of the duty to care for those on board the vessel and the payment of compensation to the injured employee. Liability for the breach of that duty extends to responsibility for compensation payments that it is reasonably forseeable that a stevedore will have to make to its employees. ... T. Schoenbaum, Admiralty and Maritime Law § 6-13 (1987 & Supp.1989). . “[S]tatutory assignment does not occur until a formal compensation order has been entered following administrative proceedings. Until that time, the employer is powerless to assert the worker’s cause of action.” Peters, 764 F.2d at 317; see also Pattis Shipping Agency, Ltd. v. Davis, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983); Hartford Accident & Indem. v. Oceancarrier Shipholding of Belgium, 799 F.2d 1093, 1095 (5th Cir.1986). After receiving formal compensation from the stevedore, the longshoreman has six months within which to bring an action against the third party. If the longshoreman does not seek relief within the six month period, the acceptance of the compensation award shifts to the stevedore the right to go against the third party. 33 U.S.C. § 933(b); see also Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 77-78, 100 S.Ct. 925, 927, 63 L.Ed.2d 215 (1980). Here, Hartford made a voluntary payment of compensation, and there was no formal compensation award. Thus, no statutory assignment of the Mahers' claim occurred. . The Mahers have in fact brought suit in Louisiana state court, and Hartford has intervened to assert its right of subrogation. . Hartford suggests that a Burnside action cannot precede an employee’s suit. This argument was rejected in Hartford Accident & Indem. v. Oceancarrier Shipholding of Belgium, 799 F.2d 1093, 1096 (5th Cir.1986): Because Perry has not" }, { "docid": "12168449", "title": "", "text": "The State Insurance Fund, the real party in interest, cured the admitted defect in the suit by ratifying his commencement of it, even though it was commenced on his own behalf. In an opinion dated June 18, 1981, Judge Sand agreed, denying Prudential’s motion to dismiss but stating: “We are by no means unmindful of the paradox which results: the insurer cannot institute an action in its own name because the statute of limitations bars such a proceeding; the longshoreman cannot maintain an action in his own name because more than six months have elapsed since receipt of the compensation award; although neither the insurer nor the longshoreman, proceeding alone, can maintain the action, the consequence of the longshoreman having brought an action within the period of the statute of limitations in conjunction with the ratification by the insurer, permits the action to be resuscitated under F.R.Civ.P. 17(a).” Prudential then applied to have the question certified to this court pursuant to 28 U.S.C. § 1292(b), which Judge Sand granted on July 7, 1981. We granted leave to appeal on August 11, 1981. DISCUSSION Section 33(b) of the Act states in no uncertain terms that, unless an injured longshoreman brings suit against a third party within six months after receiving an award in a compensation order, all his rights against the third party are automatically assigned to his employer; a longshoreman has no right thereafter to sue the third party. As the Supreme Court noted in Rodriguez v. Compass Shipping Co. Ltd., 451 U.S. 596, 617-18, 101 S.Ct. 1945, 1957-58, 68 L.Ed.2d 472, 487-88 (1981), the Longshoremen’s and Harbor Workers’ Compensation Act reflects a balancing of the conflicting interests of longshoremen, stevedore-employers, and shipowners. Congress’ enactment in 1959 of the six-month rule benefited the injured longshoreman by allowing him time, after learning how much compensation he would receive from his employer, to decide whether to bring suit against the shipowner. Prior thereto the longshoreman’s right to sue was terminated immediately upon receipt of the award. Rodriguez v. Compass Shipping Co. Ltd., supra, 451 U.S. at 602, 101 S.Ct. at 1950, 68" }, { "docid": "18620677", "title": "", "text": "BEEKS, District Judge. In this action, plaintiff Sea Quest Marine, Inc. (Employer), seeks to recover from defendant Cove Shipping, Inc. (Shipowner), compensation paid by Employer under the Longshoremen’s and Harbor Workers’ Compensation Act (Act), to Merle Boast (Boast), an employee injured on May 23, 1974 while working as a longshoreman on S/S MOUNT NAVIGATOR (Vessel). The action is based on section 33(b) of the Act and general maritime law. Shipowner now moves for summary judgment contending that neither 33(b) nor general maritime law grants Employer a remedy to recover compensation paid; and that, if a right of action exists, it is barred by Washington’s three year statute of limitation. After Boast’s accident, Employer voluntarily paid him compensation pursuant to the Act. On April 12, 1977, after an informal conference between Employer, Boast, and a claims examiner, the latter issued a “memorandum of informal conference” in which he recommended that Boast have another medical examination, and that Employer continue to pay compensation until Boast’s condition was found to be fixed and permanent. On December 29, 1977, Employer gave formal notice to Shipowner that it would seek to recover compensation paid Boast from Shipowner on the theory Shipowner’s negligence caused the injury. Attempts at settlement failed, and, on September 7, 1978, Shipowner denied liability. Employer filed this action approximately one month later. Employer’s complaint states an action for indemnity based on 33(b) and general maritime law. Section 33(b) assigns the employee’s right of action against a third party to the employer if the employee does not com menee an action against the third party within six months after the employee accepts compensation “under an award in a compensation order filed by the deputy commissioner or Board.” The purpose thereof is to permit the injured employee to accept compensation without first electing to sue a negligent third party. A mere acceptance of compensation is insufficient. The deputy commissioner or Board must issue an order awarding compensation. This requirement permits the injured employee to accept compensation while considering whether to bring suit against the third party, and creates a specific point in time from" }, { "docid": "17539989", "title": "", "text": "May 22,1974, plaintiff, a longshoreman employed by the Pittston Stevedoring Corporation (“stevedore”), allegedly sustained injuries while assisting in the discharge of defendant’s ship, the M/S MADS SKOU. Affid. of Richard K. Matanle, II, at 1. Since these injuries were compensable under the Longshoremen’s and Harbor Workers’ Compensation Act (the “Act”), 33 U.S.C. §§ 901-50, plaintiff filed a claim under the Act and received compensation from his employer, the stevedore, for both this temporary total disability and his permanent partial disability. Matanle affid., at 2. An informal conference was conducted by an Office of Workmen’s Compensation claims examiner on September 8, 1975 to assess the nature and extent of plaintiff’s damages and final payment upon this claim was made on September 26, 1975 in accordance with the recommendations made in the Memorandum of Informal Conference filed by the claims examiner on September 19, 1975. Id. at 2 & exhs. K, L. In total, plaintiff received $9,773.99 from the stevedore to compensate his loss. Id. at exh. L. On October 11,1977, over two years after the informal conference, plaintiff commenced this action to recover damages in negligence against the defendant for injuries sustained in the May 22, 1974 accident. Although the Act does not preclude a third party lawsuit by an injured longshoreman who has been compensated by his employer, section 933(b) of the statute mandates that any such action be commenced within six months after the longshoreman has accepted “compensation under an award in a compensation order filed by the deputy commissioner or Board.” Under this provision, [acceptance of such compensation . . . shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. 33 U.S.C. § 933(b). In his motion for summary judgment, defendant shipowner contends that plaintiff is without standing to sue in the instant case since his acceptance of compensation without commencement of a third party action within six months operated as an assignment of his claim" }, { "docid": "17539990", "title": "", "text": "conference, plaintiff commenced this action to recover damages in negligence against the defendant for injuries sustained in the May 22, 1974 accident. Although the Act does not preclude a third party lawsuit by an injured longshoreman who has been compensated by his employer, section 933(b) of the statute mandates that any such action be commenced within six months after the longshoreman has accepted “compensation under an award in a compensation order filed by the deputy commissioner or Board.” Under this provision, [acceptance of such compensation . . . shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. 33 U.S.C. § 933(b). In his motion for summary judgment, defendant shipowner contends that plaintiff is without standing to sue in the instant case since his acceptance of compensation without commencement of a third party action within six months operated as an assignment of his claim to the stevedore, plaintiff’s employer. Defendant’s Memorandum of Law, at 12. Plaintiff, however, alleges that- there has been no assignment since the Memorandum of Informal Conference filed by the claims examiner does not constitute “an award” under section 933(b). According to plaintiff, only the deputy commissioner may issue a compensation order based upon a settlement between the parties. Consequently, plaintiff urges, delegation of such duty to a claims examiner is not authorized by the Act. Plaintiff’s Memorandum In Opposition, at 1. Resolution of this case, therefore, turns on what constitutes an award within the meaning of section 933(b). When the Act was passed in 1927, it required an injured employee to either pursue a third party action or accept the statutory scheme of relief thereby triggering an automatic assignment of his third party claim to his employer. Longshoremen’s and Harbor Workers’ Compensation Act, ch. 509, § 33(b), 44 Stat. 1440 (1927). In order to make employees aware of their election of remedies, courts construing the statute held that there could be no assignment of an" }, { "docid": "417890", "title": "", "text": "assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section. 33 U.S.C. § 933(a), (b), (h). Relying upon our decision in Liberty Mutual Insurance Co. v. Ameta & Co., 564 F.2d 1097 (4th Cir. 1977), the district court ruled that because each of the longshoremen plaintiffs had received his compensation “under an award in a compensation order filed by the deputy commissioner” more than six months prior to commencing his third person action, the rights of action on the claim had been assigned by operation of § 933(b) and (h) to the employer or insurer. Though holding further that the longshoremen might be found nonetheless entitled to maintain the actions by showing a disabling conflict of interest in the assignees, see Part III infra, the court found that this had not been shown on the summary judgment records and gave judgments accordingly for the shipowner defendants. In Ameta we held that when, as here, compensation benefits were paid without any contravention of liability, the formal filing of the accident report and an attending physician’s report, followed by notice of payment of compensation and notice that compensation payments had been stopped or suspended was sufficient affirmative action by the Deputy Commissioner to constitute an “award” under § 933(b). Appellants contend that uncontested payment of benefits should not be deemed to constitute an “award” of benefits, and seeking to avoid Ameta’s effect, suggest that we overrule it. That lies beyond our province as a panel of this court, even were we disposed to do so. See North Carolina Utilities Commission v. F. C. C., 552 F.2d 1036, 1044-45 & n.8 (4th Cir. 1977). By rejecting the suggestion in this way, we of course intimate no disposition to re-examine Ameta’s holding had we the power. Next, appellants attempt to distinguish Ameta. In that case, the longshoreman after receiving compensation from the insurer, accepted $1000 from the third person shipowner and executed a release. The insurer then sued both the longshoreman and the third person shipowner to recover the amount of its" }, { "docid": "23187640", "title": "", "text": "MANSFIELD, Circuit Judge: This is one of a series of personal injury actions by longshoremen against shipowners or charterers, nearly all of which have been dismissed by district courts pursuant to § 33(b) of the Longshoremen’s and Harbor Workers’ Compensation Act (the Act), 33 U.S.C. § 933(b) on the ground that since the plaintiff in each case settled a compensation claim filed by him against his employer (a stevedoring company) under the Act, accepted the agreed-upon sum, and failed to sue the shipowner until more than six months after the settlement award, he lost his right to assert the claim which was by operation of § 33(b) automatically assigned to his employer. See also Panzella v. Skou, 471 F.Supp. 303 (S.D.N.Y.1979); Francavilla v. Bank Line, Ltd., 470 F.Supp. 94 (S.D. N.Y.1979); Perez v. Arya National Shipping Line, Ltd., 468 F.Supp. 799 (S.D.N.Y. 1979); Hernandez v. Costa Armatori, 467 F.Supp. 1064 (E.D.N.Y.1979); Perez v. Costa Armartori, 465 F.Supp. 1211 (S.D.N.Y. 1979); Bandy v. Bank Line, Ltd., 442 F.Supp. 882 (E.D.Va.1977). Section 33(b) provides that “(b) Acceptance of [statutorily fixed] compensation under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.” An employer successfully bringing suit against a third party following a statutory assignment must pay the proceeds to the employee, keeping for itself the amount of compensation it paid, attorney’s fees, and 20% of the balance. 33 U.S.C. § 933(e). If the employee brings suit himself, he must repay his employer out of the proceeds, retaining the balance of the damage recovery. The Etna, 138 F.2d 37, 41 (3d Cir. 1943). Plaintiff contends that since his claim under the Act was not the subject of a formal compensation order filed by the deputy commissioner or Board no assignment occurred and his action is neither precluded nor time-barred. He further argues that, even assuming an" }, { "docid": "23576877", "title": "", "text": "parties are automatically assigned to the employer who may during the next ninety days as sert the worker's rights against third parties. Id. During the assignment period, the employer’s control of the worker’s cause of action is exclusive; the worker is forbidden from commencing a suit on the claim. See Rodriguez v. Compass Shipping Co., Ltd., 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981). If the employer does not act within the ninety-day period, “the right to bring such action shall revert to the person entitled to compensation.” 33 U.S.C. § 933(b). If a formal compensation award is not entered, the assignment provision of the Act does not apply, even if the employer has voluntarily made compensation payments, and the right to assert the worker’s third-party cause of action remains with the worker. See Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983). Although the Act and the regulations envision formal compensation awards as a matter of course only in those cases in which there is a dispute between the worker and the employer, an employer may upon request cause entry of a compensation award, though he does not contest his liability under the Act, solely for the purpose of triggering the six-month period and the possibility of a statutory assignment. See 20 C.F.R. § 702.315 (1984), see also Pallas Shipping, 103 S.Ct. at 1996. 1. Distribution of Recovery when Third-Party Claim is Prosecuted by the Employer The Act and its judicial gloss also provide the manner for distributing the recovery, if any, obtained from a third party. If a statutory assignment occurs, the employer is free to file suit and to prosecute the case to judgment or to compromise the claim. See 33 U.S.C. § 933(d). The Act expressly provides that, whether funds are recovered by judgment or by settlement, the employer-assignee shall retain from the recovery: (1) its expenses and attorneys’ fees; (2) the medical and compensation benefits that the employer has already paid to the worker under the Act; and (3) “the present value of all amounts thereafter" }, { "docid": "17541033", "title": "", "text": "LASKER, District Judge. The plaintiff, Srecko Barulec, a longshoreman, was injured on January 6, 1975, while assisting in the discharge of the M/S Mette Skou, owned by the defendant, Ove Skou R.A. Barulec received workmen’s compensation from his employer until March 14th, when the employer determined that Barulec had fully recovered from his injuries. On March 25,1975, Barulec filed a claim for additional compensation under the Longshoremen’s and Harbor Workers’ Compensation Act (OWHCA), 33 U.S.C. §§ 901-950, with the Office of Workmen’s Compensation Programs (OWCP). Pursuant to the regulations implementing the LWHCA, a claims examiner convened an informal conference. See 20 C.F.R. §§ 702.311-.314 (1976). At the conference, Barulec and his employer reached an agreement settling Barulec’s claim, and the agreement was memorialized in a “Memorandum of Informal Conference” prepared and signed by the claims examiner. A year later, on February 22, 1978, Barulec commenced this action against the shipowner, alleging that his injuries were caused by the shipowner’s negligence, and seeking damages. The shipowner moves to amend its answer to assert as a defense that any claim that Barulec may have had against it has been assigned to his employer pursuant to section 33(b) of the LHWCA, 33 U.S.C. § 933(b), because Barulec filed suit more than six months after accepting compensation “under an award in a compensation order filed by the deputy commissioner.” Id. Since leave to amend pleadings “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), and shipowner’s counsel filed this motion eleven days after receiving the records of Barulec’s compensation proceedings which provide the basis for the new defense sought to be asserted, the motion for leave to amend the answer is granted. In the event leave is granted, the shipowner moves for summary judgment dismissing the complaint on the merits of the newly asserted defense. Barulec counters that even if the shipowner is permitted to interpose a defense of assignment, the assignment may not be effective in this case under the rule of Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956). Under the LHWCA as originally" }, { "docid": "18648484", "title": "", "text": "of the LHWCA, plaintiff theoretically retained his right to recover damages from a third person who might be liable to him. Section 933(b), however, provides that acceptance of compensation from an employer Under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board [§ 921(b)] shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. 33 U.S.C. § 933(b). Defendant now moves, pursuant to Fed. R.Civ.P. 12 to dismiss this matter or in the alternative for summary judgment. The shipowner argues that plaintiff has no standing to bring the instant action since, by virtue of the lapse of six months following his award, the right to institute suit has been assigned to plaintiff’s employer. Defendant submits that the Memorandum of Informal Conference completed by the claims examiner, the agreement of the parties to terminate the compensation claim on an agreed basis and the payment of additional compensation pursuant to the agreement was sufficient action on the part of the Compensation Board to constitute an “award” within the meaning of Section 933(b) and to thus start the six month limitation period running. Plaintiff disputes this assertion and argues that the Memorandum of Informal Conference in this case does not amount to an award within the meaning of Section 933. According to plaintiff, the statute must be strictly construed. Section 933(b) provides that the award which triggers the six month limitation period is one in a compensation order filed by the deputy commissioner. Plaintiff asserts that only the deputy commissioner may issue such an order based on a settlement between the parties and that he may not delegate this duty to a claims examiner. Thus, the threshold question for my determination is whether in this case an award was made within the meaning of the statute. Although the award may be informal, Toomey v. Waterman Steamship Corp., 123 F.2d 718 (2d Cir. 1941), it appears that" }, { "docid": "7156106", "title": "", "text": "v. Shell Oil Co., 509 F.2d 278 (5th Cir.1975), has fully resolved this issue against Shell and Movible Offshore. In Louviere, we held only that § 33 was not the exclusive remedy of an employer or insurer against a third person. Id. at 282-84. Specifically, we held that Argonaut could sue Shell and the other defendants even though no formal compensation award had been entered and it was not a statutory assignee. See also Pallas Shipping Agency, Ltd. v. Duris, -U.S. -, -, 103 S.Ct. 1991, 1996, 76 L.Ed.2d 120 (1983). We did not decide, however, whether Argonaut could recover an amount in excess of the potential tort recovery of the victims or their survivors. Shell and Movible Offshore’s argument is, however, foreclosed by the Supreme Court’s decision in Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 385 (1969). There the Court held that a stevedore that had paid compensation benefits to a widow under the LHWCA was not limited by the Act to recovering from the shipowner the amount recoverable by the widow in a direct action against the shipowner. The situation in Burnside, as the Court explained, was as follows: Normally the stevedoring contractor is content with its remedy of subrogation to the rights of the deceased longshoreman’s representative against whatever third party may be liable for the death, usually the shipowner. In this case, however, the applicable Illinois Wrongful Death Act limited the amount recoverable by the decedent’s representative to $30,000, far short of Marine Terminals’ potential liability of $70,000. Id. at 410, 89 S.Ct. at 1148. The Court concluded, “[W]e can perceive no reason why Congress would have intended so to curtail the stevedoring contractor’s rights against the shipowner.” Id. at 413, 89 S.Ct. at 1149. Argonaut’s situation is comparable. It has sought to recover from Shell an amount greater than what the victims or their representatives are entitled to recover as a matter of state tort law. Bound by the Supreme Court’s decision in Burnside, we hold that the LHWCA is no bar. See also Pallas Shipping" }, { "docid": "2143671", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge. Plaintiff, a longshoreman, brought this suit for damages due to injuries sustained in January 1974 while he was employed by a stevedore, John W. McGrath Corp. (“McGrath”), on defendant’s vessel. He sought compensation under the Longshoremen’s and Harbor Workers’ Compensation Act (“the Act”), 33 U.S.C. §§ 901 et seq., and on January 31, 1975, he, his representative, McGrath’s representative, and a United States Department of Labor claims examiner agreed in writing to an award of $5,827.10 for a permanent partial disability. McGrath paid plaintiff this amount on February 6, 1975. On December 22, 1976, some twenty-two and one-half months later, plaintiff brought this action. Defendant moves for summary judgment, asserting that plaintiff’s claim has been assigned to McGrath by operation of Section 933(b) of the Act since he did not bring the action within six months of payment of the award. Under Section 933(a) an employee may accept compensation from the employer and still retain the right to sue a third person for his injuries. However, Section 933(b) provides that acceptance of compensation “under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment” of the claim to the employer unless the employee brings action within six months after the award. The full text of Section 933(b) recites: “Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.” Plaintiff contends that he has not lost his right to sue because (1) the settlement agreement was not an “awárd in a compensation order filed by the deputy commissioner or Board” and there was no assignment and (2) that, even assuming an assignment, there is such a conflict between plaintiff’s interests and those of the assigneeemployer that he should be allowed to prosecute the action. The Act originally required" }, { "docid": "23628613", "title": "", "text": "to commence payments to Duris in the amount of $149.14 every two weeks. Payments to Duris continued for nearly two years. On April 26, 1977, the company terminated the payment of benefits by filing Form LS-208, labeled “Compensation Payment Stopped or Suspended.” On February 19, 1980, Duris commenced this action in the District Court for the Northern District of Ohio to recover for injuries suffered as a result of the accident aboard the M/V Regent Botan. An amended complaint named petitioner Pallas Shipping Agency, Ltd., as a defendant. Petitioner is a successor of Erato Shipping, Inc., the company which chartered the M/V Regent Botan. Duris alleged that the bareboat charterer had been negligent in maintaining the ladder from which he fell. The District Court dismissed respondent’s claim for failure to establish in personam jurisdiction. The Court of Appeals reversed. Duris v. Erato Shipping, Inc., 684 F. 2d 352 (CA6 1982). After concluding that personal jurisdiction could properly be asserted over petitioner based on the acts of its predecessor corporation, the court considered the question whether the lapse of six months after Duris’ acceptance of voluntary compensation payments triggered an assignment of his claim under § 33(b). The court held that, in the absence of a formal compensation order or award entered by the Secretary of Labor, an employee’s acceptance of compensation payments cannot lead to an assignment of his right of action against third parties. In reaching this conclusion, the Court of Appeals declined to follow the decision of the Court of Appeals for the Fourth Circuit in Liberty Mutual Ins. Co. v. Ameta & Co., 564 F. 2d 1097 (1977). We granted certiorari to resolve this intercircuit conflict, 459 U. S. 1014 (1982), and we now affirm. HH f-H The Longshoremen’s and Harbor Workers Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (1976 ed. and Supp. V), provides a comprehensive scheme governing the rights of an injured longshoreman. If, as is generally true in cases in which a longshoreman files a claim under the Act, his employer does not contest liability, the" } ]

[ { "docid": "21602998", "title": "", "text": "found that there was a possibility of renewed bargaining over the same issues. The Board’s conclusion that in taking the survey the Hospital bypassed the Union and violated section 8(a)(5) and (1) of the Act is supported by substantial evidence. B. The Board found that on May 24, 1974, the Hospital withdrew recognition of the Union. Under Telautograph Corp., 199 NLRB 892 (1972), once Lorraine Simons filed a decertification petition, the Hospital was required to suspend bargaining for a successor contract. The Board’s caselaw has always been clear, however, that while Telautograph required the suspension of bargaining in face of a decertifi-cation petition, such a petition, standing alone, did not permit withdrawal of recognition. Rather, the employer’s duty under the Telautograph rule, was simply to remain neutral and await resolution of the decertification dispute by the Board, before making unilateral changes in wages or working conditions. E.g., Turbodyne Corp., 226 NLRB 522 (1976). Before an employer can withdraw recognition, it must rebut the presumption of continued majority status by showing either that the Union has in fact lost majority support, or that there are objective considerations sufficient to support a reasonable and good-faith doubt that the Union still enjoys such support. NLRB v. Frick Co., 423 F.2d 1327 (3d Cir.1970); Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970); accord Iron Workers, Local 3 v. NLRB, 843 F.2d 770, 772 (3d Cir.1988). The Board concluded that the Hospital failed to carry its burden in this respect. An employer may not avoid the duty to bargain by demonstrating a loss of majority status arising from its own unfair labor practices. NLRB v. Frick Co., 423 F.2d 1327, 1333 (3d Cir.1970). The Hospital’s first unfair labor practice occurred in March of 1978, prior to the end of the Union’s economic strike. The Hospital relied, in its May 24, 1979 letter withdrawing recognition, on the fact that during that strike only 28 of 90 employees did not work. In Frick, this court declined to accept similar reasoning. We noted" } ]

[ { "docid": "14943775", "title": "", "text": "Nursing Home Corporation, 671 F.2d 657, 660 (1st Cir.1982)). Rock-Tenn’s petition is limited to the Board’s findings of 8(a)(5) violations. Rock-Tenn argues that the Board’s finding that the company violated the Act when it withdrew recognition from the Union and when it offered a contract for the remainder of the certification year is not supported by the record. Rock-Tenn also contests the Board’s finding that the May employee petition did not constitute objective evidence to support a good faith belief that the Union lacked majority support. Finally, Rock-Tenn argues that the Board erred in imposing a bargaining order. 1. Objective Evidence of Loss of Majority Status Rock-Tenn’s petition rises and falls on the question of whether the company had, at various times, a good faith doubt based on objective evidence of the Union’s continued majority status. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representative of his employees ...” 29 U.S.C. 158(a)(5). During the year following a union’s Board certified election as collective bargaining representative, the union enjoys an “irrebuttable presumption” of majority support. National Labor Relations Board v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 777-78, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801 (1990). After the first year, the presumption continues but is rebuttable. Id. at 778, 110 S.Ct. at 1544. Nonetheless, while the employer cannot rebut the union’s majority status and refuse to bargain during the certification year, it may “anticipatorily” withdraw recognition of the union for any post-certification periods by, for example, insisting on a contract coterminous with the certification year. However, the employer’s ability to exercise its “anticipatory” challenge to the union is strictly limited to situations where (1) the union does not, in fact, enjoy majority support, or (2) the employer has a good faith doubt, founded on sufficient objective evidence, of the union’s loss of majority support. N.L.R.B. v. Curtin Matheson Scientific, Inc., 494 U.S. at 778, 110 S.Ct. at 1544. The employer has the burden of proving a good faith doubt by a preponderance of the evidence and the evidence" }, { "docid": "14568709", "title": "", "text": "we find support in the record for only one unfair labor practice under the Act: the distribution of the July 28 memorandum from Sherry Johnson to the employees. We therefore reverse the Board’s findings of unfair labor practices except as to this single instance, and affirm that finding. IV. Our conclusion that the vast majority of the Board’s findings of direct dealings lack sufficient support, calls into question the Board’s decision that the employees’ decerti-fication petition was tainted. During the term of a collective bargaining agreement, an employer must bargain with its employees’ collective bargaining-representative. See 29 U.S.C.A. § 158(a)(5) (West 1998); Auciello Iron Works v. NLRB, 517 U.S. 781, 116 S.Ct. 1754, 1758, 135 L.Ed.2d 64 (1996); Pirelli, 141 F.3d at 520. Even after a collective bargaining agreement expires, a union maintains a rebuttable presumption of majority status. See Auciello Iron Works, 116 S.Ct. at 1758; Pirelli, 141 F.3d at 520. “To rebut the presumption, an employer must show ‘either (1) the union did not in fact enjoy majority support, or (2) the employer had a “good-faith” doubt, founded on a sufficient objective basis, of the union’s majority support.’ ” Pirelli, 141 F.3d at 520 (quoting NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 778, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990)). “ ‘A petition signed by at least half of the bargaining unit’s members in which they indicate that they do not wish to be represented by the union ordinarily constitutes sufficient objective evidence to rebut the union’s presumed majority status.’ ” Pirelli, 141 F.3d at 520 (quoting NLRB v. D & D Enters., 125 F.3d 200, 209 (4th Cir.1997)). But, if the Board can “show that the employees are disgruntled with union representation because the employer has committed unfair labor practices that have negatively impacted the union’s efficacy, the petition may be considered tainted,” and the petition cannot be relied upon to rebut the presumption of majority support. Pirelli, 141 F.3d at 520. The Board has developed a four-factor test to determine whether a decertifi-cation petition is tainted by unfair labor practices, which this Court has" }, { "docid": "8776913", "title": "", "text": "grievances, the strike or any other matter, until the Union’s letter of April 8, 1986, by which it offered to enter into a collective-bargaining agreement. During this period of time, the Union was totally inactive. There was no documented participation by bargaining unit members in any union-sponsored activities after January of 1986. The only grievance filed against the Company during this time period was filed by an individual without union support or participation. The business agent had resigned nearly four months pri- or to withdrawal of recognition. No new business agent for the Local had been appointed and the Local’s elected officials were removed from office. An unfair labor practice charge was filed against the Union by three of Bickerstaff’s employees on March 6, 1986, alleging a failure by the Union to fairly represent its members as the bargaining representative. The Board’s own investigation into this charge verified that some members of the Local were dissatisfied with the Union representation, which stemmed in part from the failure to pay strike benefits as promised by the Union. The evidence in the record shows that the Union had effectively abandoned its role as the representative of the unit employees by the time the Company withdrew recognition. There is no authority cited by the Board, and none exists, for the proposition that withdrawal of a prior offer is a condition precedent to an employer’s withdrawal of recognition based on a good faith doubt of the Union’s majority status. If the circumstances changed such that the Company reasonably believed that the Union no longer represented a majority of its employees on April 8,1986, Bickerstaff had no duty to withdraw its offer by notifying the Union. The Board has rejected a composite showing of objective evidence which is sufficient to establish, clearly and convincingly, that Bickerstaff had a reasonable basis to support a good faith doubt as to the representative status of the Union. Unlike many other cases in which the circuit courts have upheld the Board’s determination that the employer did not have a reasonable basis for doubting the Union’s majority status, we conclude" }, { "docid": "6034314", "title": "", "text": "am dubious about a bargaining order in this case because it eomes seven years after the crucial events and therefore seems quite stale. The delay, moreover, appears to be entirely the responsibility of the Board itself. SENTELLE, Circuit Judge, concurring in part and concurring in the judgment: I agree with much of what the court has to say, and I especially agree with the disposition of the bargaining order issue. I disagree only with the portion of the decision which upholds the Board’s rule that an employer’s refusal to bargain, even one so slight and void of malicious intent as the one the Board strains to find in the present case, is presumed to taint any subsequent loss of majority support by the union absent the highly unlikely “showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining.” Supplemental Decision at 4. I say “highly unlikely” because if the Board found a taint on the facts before it in this case, it would find one always. As Justice Scalia expressed in his dissent in NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 812, 110 S.Ct. 1542, 1562, 108 L.Ed.2d 801 (1990) (Scalia, J., dissenting), an “underlying question” cannot be “altered by characterizing factual probabilities as presumptions.” In the same case, Chief Justice Rehnquist, concurring, decried the Board’s refusal to allow an “employer to resort to ... commonsense assumptions,” in defending a good faith doubt about the continuance of majority support. Id. at 797, 110 S. Ct. at 1554 (Rehnquist, C.J., concurring). Also in that case, Justice Blackmun dissenting insisted that even in considering an agency’s use or nonuse of a presumption, a “reviewing court ... must ask whether the agency’s decision is the product of an adequate deliberative process and is consonant with other agency pronouncements in analogous areas.” Id. at 800, 110 S.Ct. at 1556 (Blackmun, J., dissenting). In the present case, the Board’s use of the presumption that employees’ otherwise free choice" }, { "docid": "10695004", "title": "", "text": "ruled that Nova had acted lawfully in refusing to bargain because it had a good faith uncertainty as to District Council No. 16’s majority status in June 1997 and throughout the two-year contract period. See Allentown Mack Sales & Serv., 522 U.S. at 367, 118 S.Ct. at 823. The Board rejected the ALJ’s reasoning. Applying standards recently announced in Staunton Fuel & Material, Inc. d/b/a Central Illinois Construction, 335 N.L.R.B. No. 59, 2001 WL 1039904 (Aug. 27, 2001), it concluded that the contract’s recognition clause demonstrated that Nova had voluntarily recognized District Council No. 16 as a section 9(a) representative. The Board also rejected the ALJ’s finding that Nova had a good faith uncertainty as to District Council No. 16’s majority status, concluding that Robbins had acted on stale reports from mid-level supervisors. Nova now petitions for review, challenging the Board’s determinations that the contract was a section 9(a) agreement and that the company lacked good faith uncertainty as to District Council No. 16’s majority status. The Board, supported by Intervenor District Council No. 16, cross-petitions for enforcement. We will affirm the Board’s order unless its factual findings are unsupported by substantial evidence in the record as a whole or the Board acted arbitrarily or otherwise erred in applying established law to the facts. Beverly Health & Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 320 (D.C.Cir.2003). II. The Board adopted its current interpretation of section 8(f) in John Deklewa & Sons, ruling that in light of prevailing practices in the construction industry as well as of the statute’s legislative history, it would presume that all collective bargaining agreements in the industry are 8(f) contracts and therefore require parties asserting the existence of a section 9(a) relationship to prove affirmatively that such a relationship exists. 282 N.L.R.B. at 1386 n. 41. Absent a Board-conducted election, the Board required proof of “a union’s express demand for, and an employer’s voluntary grant of, recognition to the union as bargaining representative based on a contemporaneous showing of union support among a majority of the employees in an appropriate unit.” J&R Tile, Inc., 291" }, { "docid": "12109624", "title": "", "text": "(1987). When the presumption is rebut-table, and recognition, therefore, may be withdrawn, an employer must show 1) that he has a reasonably grounded doubt of the union’s majority status, or 2) that the union in fact no longer represents a majority. NLRB v. Curtis Matheson Scientific, Inc., — U.S. —, -, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801, 807 (1990); NLRB v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1014 (5th Cir.1990). Although not favored by the NLRB, an employer may show loss of a union’s majority status through an employee poll. The NLRB will allow polling when a “reasonable doubt” exists about the union’s status based upon substantial objective evidence. Boaz Carpet Yarns, Inc., 280 NLRB 4 (1986). The NLRB’s position about the amount of evidence needed to poll is the same as its position on withdrawal of recognition. See Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 867 (6th Cir.1982). This circuit, however, feels that there is a lesser burden for an employer to justify holding a poll. NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th Cir.1981). An employer may, in the absence of any employer unfair labor practices and after giving notice to the union, poll the employees for their union sentiment if there is other substantial, objective evidence of a loss of union support (even if that evidence is not sufficient by itself to justify withdrawal) and if the poll meets the procedural guidelines set out in Strucksnes [165 NLRB 1062 (1967)]. Id. at 1145. (emphasis added). This court will therefore consider TPC’s decision to poll its employees under our own standard. However, the NLRB’s findings of fact are conclusive if supported by substantial evidence on the record considered in its entirety. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). Reasonable inferences drawn by the NLRB from its findings of fact may not be displaced even if the court might have reached a different view had the matter been before it de novo. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991," }, { "docid": "14634914", "title": "", "text": "at 823. And any such uncertainty must focus on “objective considerations ... supported by evidence external to the employer’s own (subjective) impressions.” Pacific Bell v. NLRB, 259 F.3d 719, 723 (D.C.Cir.2001) (quoting Allentown Mack, 522 U.S. at 367-68 n. 2, 118 S.Ct. at 823-24 n. 2 (emphasis omitted)). To mount this defense successfully, the employer must overcome the presumption that an incumbent union enjoys majority support. Scepter, Inc. v. NLRB, 280 F.3d 1053, 1056 (D.C.Cir.2002). An employer may not succeed with a “genuine, reasonable uncertainty” defense using evidence of employee disaffection arising after an unlawful refusal to bargain. The Board presumes that any employee disaffection in such circumstances is unlawfully “tainted.” See Prime Serv., Inc. v. NLRB, 266 F.3d 1233 (D.C.Cir.2001). Therefore, a withdrawal of recognition following an unlawful refusal to bargain is illegal unless the employer can show that the preceding refusal to bargain was “cured”: The presumption can be rebutted “only by an employer’s showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining.” Lee Lumber, 117 F.3d at 1458 (citation omitted). In the instant case, MHC has not rebutted this presumption. The Board’s finding that MHC unlawfully refused to bargain on September 11 is fully supported by substantial evidence in the record. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951). The employer had no credible basis on or before that date upon which to rest a reasonable, good-faith uncertainty over the Union’s majority status. Furthermore, MHC did nothing to mitigate, rescind, or otherwise remedy its refusal to bargain before subsequently withdrawing recognition. The record is thus clear that the unlawful refusal to bargain never abated before MHC withdrew recognition from the Union. Therefore, because nothing happened after September 11 to “cure” the unlawful refusal to bargain, the subsequent withdrawal of recognition was unlawful. It is true, as the Board found, that not all of the employee signatures on the antiunion petitions were" }, { "docid": "9732512", "title": "", "text": "additional signatures. Thus, in light of the simultaneous effort to obtain more signatures on the decertification petitions, there is little basis for inferring that the five employees’ signatures were coerced by Bishop’s statements. Despite these factors undercutting the AU’s finding of taint, we feel constrained to uphold his conclusion based on one portion of the March 13 conversation. The opening of the prepared statement that Bishop read on that day linked, albeit loosely, the Company’s practice of reducing post-probationary employee hours with the union security clause. The AU concluded that an employee listening to this statement could have interpreted Bishop’s message to be, “if there were no union, your hours would not be reduced.” See AU Opinion at 8. Whether or not we would draw such an inference, we do not consider it unreasonable for the AU to have done so. See NLRB v. Amber Delivery Service, Inc., 651 F.2d 57, 67 (1st Cir.1981) (“[E]ven a single oblique remark can be considered unduly coercive in appropriate circumstances.”). The employees had not questioned the Company’s practice of reducing hours, and there was no apparent connection between that practice and the fee obligation about which they did ask. We therefore must uphold the AU’s finding that this statement was improper and may have influenced the employees’ attitude toward the decertification drive, tainting their petition signatures. C. Withdrawal of recognition based on “good faith doubt” A union that is certified by the NLRB as the exclusive bargaining agent for a unit of employees enjoys an irrebuttable presumption of majority support for one year. NLRB v. Curtin Matheson Scientific, Inc., — U.S. -, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801 (1990). The presumption continues after the first year, but becomes rebuttable. Id. 110 S.Ct. at 1545. To overcome this presumption, an employer must show that, at the time of the refusal to bargain, either (1) the union in fact no longer enjoyed majority support, or (2) the employer had a reasonable “good faith” doubt, based on objective considerations, of the union’s majority support. Id.; Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 106 (1st Cir.1990)." }, { "docid": "14634902", "title": "", "text": "Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. Opinion dissenting in part filed by Senior Judge STEPHEN F. WILLIAMS. HARRY T. EDWARDS, Circuit Judge: Petitioner Marion Hospital Corporation (“MHC”) seeks review of a decision by the National Labor Relations Board (“Board” or “NLRB”), holding that petitioner committed multiple unfair labor practices (“ULPs”). The Board found that MHC violated §§ 8(a)(5) and (1) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. §§ 158(a)(5), (1), in refusing to bargain with the designated bargaining agent of its employees, Southern Illinois Laborers’ District Council Local 508 (“Local 508” or “Union”), withdrawing recognition from the Union, and unilaterally changing conditions of employment. See Marion Hosp. Corp. d/b/a Marion Memorial Hosp., S. Illinois Laborers’ Dist. Council Local 508, AFL-CIO, 335 N.L.R.B. No. 80, 2001 WL 1126579, at *7 (2001) (“Marion Hospital”). As a remedy for these violations, the Board issued an affirmative order to bargain. MHC claims that the cited conduct was not illegal, because company officials had a good-faith reasonable doubt about the Union’s majority status. MHC contends that, in finding the disputed ULPs, the Board misapplied the legal standard enunciated in Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 361, 367-68, 118 S.Ct. 818, 823-24, 139 L.Ed.2d 797 (1998) (employer may withdraw recognition from an incumbent union based on “good-faith reasonable doubt” or “genuine, reasonable uncertainty” supported by “objective considerations”), and ignored substantial record evidence supporting the employer’s defense. MHC also challenges the affirmative order to bargain, claiming that the Board engaged in only a “cursory recita tion” of the considerations required by this court in Vincent Indus. Plastics v. NLRB, 209 F.3d 727 (D.C.Cir.2000). The NLRB disputes each of petitioner’s contentions and cross-petitions for enforcement of its orders. We deny MHC’s petition for review and grant the Board’s cross-petition for enforcement. Substantial evidence supports the Board’s finding that petitioner refused to bargain with the Union. MHC was aware of nothing occurring before the refusal to bargain to give rise to a reasonable, good-faith uncertainty over the Union’s majority status. It is also undisputed that MHC" }, { "docid": "22688513", "title": "", "text": "Justice Scalia delivered the opinion of the Court. Under longstanding precedent of the National Labor Relations Board, an employer who believes that an incumbent union no longer enjoys the support of a majority of its employees has three options: to request a formal, Board-supervised election, to withdraw recognition from the union and refuse to bargain, or to conduct an internal poll of employee support for the union. The Board has held that the latter two are unfair labor practices unless the employer can show that it had a “good-faith reasonable doubt” about the union’s majority support. We must decide whether the Board’s standard for employer polling is rational and consistent with the National Labor Relations Act, and whether the Board’s factual determinations in this ease are supported by substantial evidence in the record. I Mack Trucks, Inc., had a factory branch in Allentown, Pennsylvania, whose service and parts employees were represented by Local Lodge 724 of the International Association of Machinists and Aerospace Workers, AFL-CIO (Local 724). Mack notified its Allentown managers in May 1990 that it intended to sell the branch, and several of those managers formed Allentown Mack Sales & Service, Inc., the petitioner here, which purchased the assets of the business on December 20, 1990, and began to operate it as an independent dealership. From December 21,1990, to January 1,1991, Allentown hired 32 of the original 45 Mack employees. During the period before and immediately after the sale, a number of Mack employees made statements to the prospective owners of Allentown Mack Sales suggesting that the incumbent union had lost support among employees in the bargaining unit. In job interviews,, eight employees made statements indicating, or at least arguably indicating, that they personally no longer supported the union. In addition, Ron Mohr, a member of the union’s bargaining committee and shop steward for the Mack Trucks service department, told an Allentown manager that it was his feeling that the employees did not want a union, and that “with a new company, if a vote was taken, the Union would lose.” 316 N. L. R. B. 1199, 1207" }, { "docid": "14634913", "title": "", "text": "presumption has not been rebutted, any such evidence would not be probative of a good-faith reasonable uncertainty. Id. at *5 (footnotes and citation omitted). Finally, in light of the entire record, the Board found that an affirmative bargaining order was warranted to remedy MHC’s unlawful refusals to bargain. Id. at *6-*7. After considering the facts of the case in light of the NLRA’s overall goals, the Board found that an order to bargain was more appropriate than a less restrictive alternative. This petition for review and the Board’s cross-petition for enforcement fohowed. II. Discussion An employer who is charged with “refusing] to bargain collectively with representatives of his employees,” 29 U.S.C. § 158(a)(5), may defend against the charge by proving that it possessed a good-faith reasonable doubt that the Union commanded majority support among unit employees. This exception to the duty to bargain only applies where an employer demonstrates a “genuine, reasonable uncertainty” about whether a union enjoys the continuing support of a majority of unit employees. Allentown Mack, 522 U.S. at 367, 118 S.Ct. at 823. And any such uncertainty must focus on “objective considerations ... supported by evidence external to the employer’s own (subjective) impressions.” Pacific Bell v. NLRB, 259 F.3d 719, 723 (D.C.Cir.2001) (quoting Allentown Mack, 522 U.S. at 367-68 n. 2, 118 S.Ct. at 823-24 n. 2 (emphasis omitted)). To mount this defense successfully, the employer must overcome the presumption that an incumbent union enjoys majority support. Scepter, Inc. v. NLRB, 280 F.3d 1053, 1056 (D.C.Cir.2002). An employer may not succeed with a “genuine, reasonable uncertainty” defense using evidence of employee disaffection arising after an unlawful refusal to bargain. The Board presumes that any employee disaffection in such circumstances is unlawfully “tainted.” See Prime Serv., Inc. v. NLRB, 266 F.3d 1233 (D.C.Cir.2001). Therefore, a withdrawal of recognition following an unlawful refusal to bargain is illegal unless the employer can show that the preceding refusal to bargain was “cured”: The presumption can be rebutted “only by an employer’s showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable" }, { "docid": "9732513", "title": "", "text": "of reducing hours, and there was no apparent connection between that practice and the fee obligation about which they did ask. We therefore must uphold the AU’s finding that this statement was improper and may have influenced the employees’ attitude toward the decertification drive, tainting their petition signatures. C. Withdrawal of recognition based on “good faith doubt” A union that is certified by the NLRB as the exclusive bargaining agent for a unit of employees enjoys an irrebuttable presumption of majority support for one year. NLRB v. Curtin Matheson Scientific, Inc., — U.S. -, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801 (1990). The presumption continues after the first year, but becomes rebuttable. Id. 110 S.Ct. at 1545. To overcome this presumption, an employer must show that, at the time of the refusal to bargain, either (1) the union in fact no longer enjoyed majority support, or (2) the employer had a reasonable “good faith” doubt, based on objective considerations, of the union’s majority support. Id.; Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 106 (1st Cir.1990). The parties in this case have stipulated that the relevant bargaining unit contains 70 employees, and LaVerdiere’s therefore must present support for its asserted belief that at least 35 members opposed the Union on May 27, 1985, the day the Company formally withdrew recognition. LaVerdiere’s relies on a number of factors, the most significant of which are the employees’ decertification petitions and the Anti-Union list compiled by the employees’ attorney, the former containing 40 names and the latter 37. Our decision upholding the AU’s finding of taint from the security statement, however, requires us to disregard the signatures of the five probationary employees. Similarly, we see no basis on which to disturb the Board’s finding that the Company may not rely on the signatures of the two employees to whom Michael LaVerdiere described the petition as “just for a revote.” Favoring a new representation election does not necessarily reflect union opposition, and those two employees were told that that was the only purpose of the petition drive. Making the appropriate reductions, leaves 33 names on" }, { "docid": "14634903", "title": "", "text": "majority status. MHC contends that, in finding the disputed ULPs, the Board misapplied the legal standard enunciated in Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 361, 367-68, 118 S.Ct. 818, 823-24, 139 L.Ed.2d 797 (1998) (employer may withdraw recognition from an incumbent union based on “good-faith reasonable doubt” or “genuine, reasonable uncertainty” supported by “objective considerations”), and ignored substantial record evidence supporting the employer’s defense. MHC also challenges the affirmative order to bargain, claiming that the Board engaged in only a “cursory recita tion” of the considerations required by this court in Vincent Indus. Plastics v. NLRB, 209 F.3d 727 (D.C.Cir.2000). The NLRB disputes each of petitioner’s contentions and cross-petitions for enforcement of its orders. We deny MHC’s petition for review and grant the Board’s cross-petition for enforcement. Substantial evidence supports the Board’s finding that petitioner refused to bargain with the Union. MHC was aware of nothing occurring before the refusal to bargain to give rise to a reasonable, good-faith uncertainty over the Union’s majority status. It is also undisputed that MHC did nothing to mitigate, rescind, or otherwise remedy its refusal to bargain. The employer remained firm in its unlawful refusal to bargain, which continued unabated for over a month through the time when MHC withdrew recognition from the Union. Because nothing happened to “cure” the initial unlawful refusal to bargain, the employer’s subsequent withdrawal of recognition was unjustified. Therefore, the Board was fully warranted in issuing an order to bargain in this case. I. Background The facts of this case are fully recounted in the Board’s decision, see Marion Hospital, 2001 WL 1126579, at *l-*2, *11-*13, so we merely summarize the most salient facts here. Since 1996, Marion Memorial Hospital has been owned and operated by MHC as a private health care facility in Southern Illinois. Id. at *11. Employees at Marion Memorial Hospital are organized into separate units for medical and administrative personnel. Even before petitioner acquired the hospital, all employees were represented by Local 508. Id. The record indicates that the Union and petitioner successfully negotiated a series of year-long collective bargaining agreements," }, { "docid": "14634919", "title": "", "text": "a right not to strike. Likewise, there is no merit at all to MHC’s assertion that employee resignation forms given to the Union gave rise to a good-faith uncertainty about the Union’s majority status. Rather, as the Board found, the resignation forms of approximately 60 employees stating that they wished to remain financial-core members of the Union ... [demonstrated] their willingness to pay for the Union’s representational services, even though they were not compelled to do so by a union-security clause ...[•] [T]hose employees made clear their desire for continued representation by the Union, even without the benefits of membership. Id. In sum, there is substantial evidence in the record supporting the Board’s finding that MHC unlawfully refused to bargain with the Union beginning on September 11, 1998. The record is also clear that MHC did absolutely nothing to ameliorate the effects of the unlawful refusal to bargain, which continued unabated until the employer withdrew recognition from the Union in late October 1998. MHC tries to press the argument that, whether or not the September 11 refusal to bargain was justified, the subsequent withdrawal of recognition did not constitute an ULP because it was based on a genuine, reasonable uncertainty about the Union’s majority status. In particular, MHC argues that the antiunion petitions received by the employer on October 20 were adequate under Allentown Mack to support the employer’s withdrawal of recognition from the Union. The Board credited the petition signatures that were dated before September 11, 1998, because they were executed while the parties were still bargaining. MHC thus argues that the level of employee dissatisfaction on October 20 was sufficiently high to give rise to a genuine, reasonable uncertainty about the Union’s majority status, which, MHC claims, is all that is required under Allentown Mack. The Board rejected this view, finding that “the bargaining unit consisted of 157 employees, but only 69 employee signatures on the antiunion petitions can be counted, 10 short of a majority. Such a showing is insufficient to establish a good-faith reasonable uncertainty as to the Union’s continuing majority status.” Id. at *5 (citation" }, { "docid": "14634920", "title": "", "text": "11 refusal to bargain was justified, the subsequent withdrawal of recognition did not constitute an ULP because it was based on a genuine, reasonable uncertainty about the Union’s majority status. In particular, MHC argues that the antiunion petitions received by the employer on October 20 were adequate under Allentown Mack to support the employer’s withdrawal of recognition from the Union. The Board credited the petition signatures that were dated before September 11, 1998, because they were executed while the parties were still bargaining. MHC thus argues that the level of employee dissatisfaction on October 20 was sufficiently high to give rise to a genuine, reasonable uncertainty about the Union’s majority status, which, MHC claims, is all that is required under Allentown Mack. The Board rejected this view, finding that “the bargaining unit consisted of 157 employees, but only 69 employee signatures on the antiunion petitions can be counted, 10 short of a majority. Such a showing is insufficient to establish a good-faith reasonable uncertainty as to the Union’s continuing majority status.” Id. at *5 (citation omitted). Before reaching judgment in this case, the Board issued its decision in Levitz Furniture Co. of the Pac., 333 N.L.R.B. No. 105, 2001 WL 314139 (2001), announcing that it would no longer apply the Allentown Mack “good-faith reasonable doubt” standard in future “withdrawal of recognition” cases. Instead, employers will be required to show “the Union’s actual loss of majority status” in order to justify a unilateral withdrawal of recognition from an incumbent union. Id. at *2. In this case, however, the Board purported to apply the existing standard under Allentown Mack, not the new test announced in Levitz. See Marion Hospital, 2001 WL 1126579, at *3 (the Levitz “analysis and conclusions ... [will] be applied only prospectively; ‘all pending cases involving withdrawals of recognition [will be decided] under existing law: the “good-faith uncertainty” standard as explicated by the Supreme Court’ in [Allentown MackT) (citing Levitz, 2001 WL 314139, at *18). MHC argues that, in focusing on whether the antiunion petitions fell “short of a majority,” the Board, in fact applied Lev-itz, not Allentown Mack," }, { "docid": "14279018", "title": "", "text": "Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 359, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). To determine whether an employer in fact holds such a belief, we apply a two part test in which the employer bears the burden of proof. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). First, we ask whether at the time of its refusal to recognize a union, the employer had a “reasonable uncertainty” about whether the union enjoyed the continuing support of its members. Allentown Mack, 522 U.S. at 367, 371, 118 S.Ct. 818. These doubts must be supported by objective evidence external to the employer’s subjective impressions. Id. at 368 n. 2, 118 S.Ct. 818. Second, we consider whether the employer’s uncertainty is held in good faith (i.e., is it “genuine”?). Id. at 371, 118 S.Ct. 818. To be held in good faith the doubt must arise in a context free of unfair employer labor practices that could have reasonably tended to contribute to employee dissatisfaction with its union. United Supermarkets, Inc. v. NLRB, 862 F.2d 549, 554 n.6 (5th Cir.1989). The ALJ concluded that Raven had not met the first prong of this test, concluding it had failed to point to sufficient evidence on which it could have based a good faith doubt of the Union’s majority status on October 1, 1996. The ALJ also held that the Raven had failed to demonstrate that its doubts were held in good faith, as they were reached in the context of wide ranging unfair labor practices that undermined Union support among employees. We review these determinations under the substantial evidence standard. Allentown Mack, 522 U.S. at 366, 118 S.Ct. 818. Put another way, we must consider whether a reasonable fact-finder could have found that Raven lacked a “genuine, reasonable uncertainty” about the Union’s majority status. Id. at 367, 118 S.Ct. 818. We conclude that a reasonable fact-finder could make such a determination. First, we agree with the ALJ that Raven has failed to point to sufficient evidence on which it could have based" }, { "docid": "14279017", "title": "", "text": "other foregoing factors, we conclude that an impasse no longer existed on October 1,1996. Because the bargaining impasse between Raven and the Union had ceased or been broken before October 1, Raven could not have validly made the classification eliminations pursuant to the prior unilaterally implemented management rights clause. The duty to bargain resumes on the break or cessation of impasse. See Charles D. Bonanno Linen Serv., 454 U.S. at 412 (upholding Hi-Way Billboards, Inc., 206 N.L.R.B. 22, 23 (1973), rule holding that impasse temporarily suspends, not permanently breaks, the duty to bargain). Accordingly, the NLRA’s bargaining requirement was applicable, and Raven’s failure to bargain was a violation of that act. C. Union Majority Status Raven argues in the alternative that its unilateral elimination of job classifications was proper because it acted in the good faith belief that the Union no longer enjoyed the support of the majority of its members. When an employer has such a good faith belief it may withdraw recognition from a union and refuse to bargain with it. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 359, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). To determine whether an employer in fact holds such a belief, we apply a two part test in which the employer bears the burden of proof. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). First, we ask whether at the time of its refusal to recognize a union, the employer had a “reasonable uncertainty” about whether the union enjoyed the continuing support of its members. Allentown Mack, 522 U.S. at 367, 371, 118 S.Ct. 818. These doubts must be supported by objective evidence external to the employer’s subjective impressions. Id. at 368 n. 2, 118 S.Ct. 818. Second, we consider whether the employer’s uncertainty is held in good faith (i.e., is it “genuine”?). Id. at 371, 118 S.Ct. 818. To be held in good faith the doubt must arise in a context free of unfair employer labor practices that could have reasonably tended to contribute to employee dissatisfaction with" }, { "docid": "14943776", "title": "", "text": "collective bargaining representative, the union enjoys an “irrebuttable presumption” of majority support. National Labor Relations Board v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 777-78, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801 (1990). After the first year, the presumption continues but is rebuttable. Id. at 778, 110 S.Ct. at 1544. Nonetheless, while the employer cannot rebut the union’s majority status and refuse to bargain during the certification year, it may “anticipatorily” withdraw recognition of the union for any post-certification periods by, for example, insisting on a contract coterminous with the certification year. However, the employer’s ability to exercise its “anticipatory” challenge to the union is strictly limited to situations where (1) the union does not, in fact, enjoy majority support, or (2) the employer has a good faith doubt, founded on sufficient objective evidence, of the union’s loss of majority support. N.L.R.B. v. Curtin Matheson Scientific, Inc., 494 U.S. at 778, 110 S.Ct. at 1544. The employer has the burden of proving a good faith doubt by a preponderance of the evidence and the evidence offered in support of the employer’s claim must be “clear, cogent, and convincing.” N.L.R.B. v. Hollaender Mfg. Co., 942 F.2d 321, 325 (6th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992) (citations omitted). The Board found that Rock-Tenn never had an objectively reasonable doubt as to the Union’s majority status. Therefore, the Board concluded that the company violated § 8(a)(5) of the Act when it (1) conditioned agreement on an initial contract coterminous with the certification year; (2) refused to furnish information and anticipatorily withdrew recognition during the certification year; and (3) withdrew recognition at the end of the certification year and thereafter unilaterally changed a condition of employment. The company acknowledges that the September decertification petition (not filed until December) could not form the basis of a good faith belief in the Union’s loss of majority status because that petition was tainted by the company’s unfair labor practices. Microimage Display Div. of Xidex Corp. v. N.L.R.B., 924 F.2d 245, 253 (D.C.Cir.1991). Nevertheless, the company argues that its October 1991" }, { "docid": "1692518", "title": "", "text": "letter and the attached affidavits, the Hospital immediately withdrew recognition from the Union and ceased bargaining. Several days later, the Hospital made unilateral changes in health insurance benefits available to employees in the bargaining unit. The Regional Director then withdrew approval of the agreement settling the earlier complaint and issued a second complaint alleging that the Hospital had unlawfully refused to bargain with the Union and had made further unilateral changes in the terms and conditions of employment. The cases and charges were consolidated. The Hospital contends on appeal that it was justified in withdrawing recognition from the Union. A certified union enjoys a presumption that its majority representative status continues. Terrell Machine Co., 173 N.L.R.B. 1480 (1969), enf'd, 427 F.2d 1088 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970). That presumption is irrebuttable for the first year following certification. After the first year, the presumption of majority status continues but may be rebutted. Id. at 1480-81. An employer who has refused to bargain with a certified union may rebut the presumption by showing that its refusal to bargain was predicated on a reasonable good faith doubt about the union’s continued majority status. Id. The asserted doubt must be based on objective considerations. Id. The existence of reasonable good faith doubt is determined on the totality of circumstances in the particular case. Sofco, Inc., 268 N.L.R.B. 159, 159-60 (1983). In the present case, the Hospital asserts that it had such a reasonable good faith doubt in the Union’s continued majority support based on the documented claims of the dissident employees’ group, including the 11 affidavits, and the filing of the decertification petition. We consider first the claim that the documentation provided by the dissident employees’ group was objective evidence justifying a reasonable good faith doubt. The Board concluded in its decision that the assurances of the attorney for the dissident employees’ group and the 11 affidavits did not support a reasonable good faith doubt. We agree. The affidavits reliably express only the views of the named affiants and otherwise convey only unverified claims about" }, { "docid": "8152611", "title": "", "text": "himself in subsequent affidavits), the Company nowhere challenges the substance of Langham’s testimony and, given the opportunity to do so in oral argument, again did not. . We accept that under some circumstances a unilaterally implemented final offer from an employer and later performance by the employees could create only individual contracts. See J.I. Case Co. v. NLRB, 321 U.S. 332, 337, 64 S.Ct. 576, 580, 88 L.Ed. 762 (1944). For example, if the Union had called for a strike, those workers that continued to work seemingly would then have individual contracts with the Company. But, we have concluded that the conduct of the Union in this case was sufficient to demonstrate the Union’s intent to be bound by the interim agreement. The Union for decades had been the exclusive bargaining agent with the Company for the employees; and nothing in this case shows that, before the lockout, the Union and the employees it represented had parted ways on any question. We decline to presume that the unity between the Union and Union members had been shattered (so that the Union did not speak for the workers and the workers did not act pursuant to the Union’s direction) in the absence of evidence to that effect. Cf. NLRB v. Curtin Matheson Scientific, Inc., _ U.S. _, 110 S.Ct. 1542, 1544-45, 108 L.Ed.2d 801 (1990) (holding that even in times of significant labor-management strife, union enjoys continuing “presumption of majority support” rebuttable only \"by showing that ... (1) the union did not in fact enjoy majority support, or (2) the employer had a ‘good faith’ doubt, founded on a sufficient objective basis, of the union’s majority support.”) (emphasis in original) (citations omitted); Bickerstaff Clay Products Co. v. NLRB, 871 F.2d 980, 984 (11th Cir.1989) (holding that union certified as exclusive bargaining agent \"is entitled to a continuing presumption of majority status’’); Hajoca Corp. v. NLRB, 872 F.2d 1169, 1173 (3d Cir.1989) (holding that “the presumption of majority status survives the expiration of a collective bargaining agreement\"). See generally Humble Oil & Refining Co. v. Sun Oil Co., 191 F.2d 705, 715" } ]

[ { "docid": "22408968", "title": "", "text": "defendant. Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1564 (11th Cir.1994) (citing Strawbridge v. Curtiss, 3 Cranch (7 U.S.) 267, 2 L.Ed. 435 (1806)). An action may nevertheless be removable if the joinder of non-diverse parties is fraudulent. See Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983). “Removability should be determined ‘according to the plaintiffs pleading at the time of the petition for removal.’ ” Id. (citations omitted); see also Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989). In their initial and amended complaints, particular plaintiffs have been matched with particular defendants against whom they allege individual claims. Appellants Davis and West assert claims against Lowe’s. These are the only putative class representatives for the purported “merchant” class action. It is not disputed that Davis and West (Alabama residents) are diverse from Lowe’s (a North Carolina resident). Other defendants, however, are Alabama residents. ’ The joinder of defendants in this action has been accomplished solely through Rule 20. The district court, finding no allegation of joint liability between Lowe’s and any other defendant and no allegation of conspiracy, held there was an “improper and fraudulent joinder, bordering on a sham.” The court rejected Appellants’ argument that “a mere allegation of a common business practice subjects all defendants to joinder.” Tapscott v. MS Dealer Service Corp., et al., No. CV 94-PT-2027-S, at 2 (N.D.Ala. Nov. 1, 1994) (memorandum opinion). Disregarding the citizenship of the improperly joined parties, the district court asserted jurisdiction and severed and remanded the remainder of the action to state court. It is important to note that Appellants have not contended that Lowe’s was properly joined with any other non-diverse defendants. Rather, they contend that while a court may disregard the citizenship of fraudulently joined parties, a misjoinder, no matter how egregious, is not fraudulent joinder. We disagree. Joinder of defendants under Rule 20 requires: (1) a claim for relief asserting joint, several, or alternative liability and arising from the same transaction, occurrence, or series of transactions or occurrences, and (2) a common question of law or fact. Fed." } ]

[ { "docid": "14061967", "title": "", "text": "the “non-friction” defendants in the companion case as including “non-diverse” industrial defendants, and since there clearly appear to be non-diverse “friction” defendants (that is, certain Mississippi defendants clearly appear to be automobile parts retailers) in this case, it is not clear to this court whether the severance of either the friction or non-friction defendants would serve to create a diverse class of remaining defendants, even assuming egregious misjoinder based on this distinction were present. If there are, in fact, non-diverse “friction” and also non-diverse “non-friction” defendants in a particular case, then the class distinction would appear to be immaterial for jurisdictional purposes. Accordingly, the court deems an asbestos defendant’s burden of proving the basic relevance of the misjoin-der issue on the basis of the “friction/non-friction” distinction in a particular case to include a burden of demonstrating 1) how the two classes are defined 2) which defendants belong to each class in a particular case and 3) that either the “friction” or “non-friction” class of defendants in a particular case consists solely of diverse parties. Barring such a showing, severance and remand of either class would not create diversity among the remaining parties, and the misjoinder issue would appear to simply be irrelevant. In this case, it is not entirely clear to this court exactly what constitutes a “friction” or “non-friction” defendant, nor whether there exists a purely diverse class of either in this case. As such, it is not clear to this court that the misjoinder issue is even relevant herein. At any rate, even assuming that severance and remand of either the “friction” and “non-friction” defendants would serve to create diversity in this case, the court would still not deem “egregious” misjoin-der to be present on the basis of this distinction. Indeed, if the court were to conclude that any joinders in this case were “egregious” (which, in light of Mississippi’s liberal joinder rules, it does not) it would likely be the joinder of numerous plaintiffs (each with a distinct medical history and damages) into a single action, rather than the joinder of “friction” and “non-friction” defendants in the" }, { "docid": "20175993", "title": "", "text": "liability). Texas Instruments' petition requests rescission of the ARS it purchased from each defendant. Petition at 11. A request that each defendant be held liable only for its comparative or proportionate share of the plaintiff's damages is a request that the defendants be held severally liable. See G.R.P. Mechanical Company, 2006 WL 83466, at *3 (defining \"several liability” as \" 'liability that is separate and distinct from another’s liability, so that the plaintiff may bring a separate action against one defendant without joining the other liable parties.’ \") (quoting Black's Law Dictionary 933 (8th ed.2004)). . See also Coll v. Abaco Operating LLC, 2009 WL 2857821, at *2 (E.D.Tex. Sept.l, 2009) (\"The district courts in the Fifth Circuit have used the ‘logical relationship' analysis in determining whether the factual situation constitutes a transaction, occurrence, or series of transactions or occurrences for purposes of Rule 20.”) (collecting cases). . See also Battison v. City of Electro, 2001 WL 497769, at *1 (N.D.Tex. May 08, 2001) (Buchmeyer, C.J.) (explaining that Federal Rule 20(a) should be interpreted in light of the Supreme Court’s instruction that \" 'joinder of claims, parties and remedies is strongly encouraged’ ” (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966))). . See also Wells Fargo Bank, 2009 WL 3877516, at ,“6-*7 (finding that a defendant had been fraudulently misjoined where \"none of the plaintiffs who [sought] recovery against” it sought \"recovery from any other defendant on the same claim” and the procedural history of the case indicated a deliberate effort by the plaintiff to use joinder to defeat federal jurisdiction). . For additional examples of cases in which courts have concluded that plaintiffs were fraudulently misjoined, see In re Silica, 398 F.Supp.2d at 651 (concluding that, \"for jurisdictional purposes, the joinder of the disparate Plaintiffs’ claims constitutes egregious misjoinder, while each Plaintiffs’ joinder of his or her claims against multiple Defendants does not constitute egregious misjoinder”); see also Reed v. American Medical Security Group, Inc., 324 F.Supp.2d 798, 803-05 (S.D.Miss.2004) (finding that fourteen “unrelated plaintiffs suing over unconnected" }, { "docid": "14061966", "title": "", "text": "“friction” and “non-friction” defendants. See Arrington, et al. v. AC & S, et al., No. 1:02cv425 (S.D.Miss.2002) (rejecting mis-joinder arguments in asbestos removal context.) The court would initially note that the basic relevance of the misjoinder issue is in question in this case. Defendants argue that the “friction” and “non-friction” defendants were misjoined in this action, but it is not clear to this court whether either the “friction” or “non-friction” defendants in this case are made up solely of diverse parties and, thus, whether severing these defendants from each other would serve to produce a purely diverse class of either defendants. The “friction” defendants are characterized by counsel for defendants in a similar companion case as “manufacturers and sellers of car parts sold to consumers.” Defendants seek to sever these defendants from the traditional “non-friction” defendants, which are characterized by counsel in that case as “diverse and non-diverse manufacturers and sellers of industrial insulation products used by professional tradesmen at industrial worksites around the state.” The court would further note that, since defendants refer to the “non-friction” defendants in the companion case as including “non-diverse” industrial defendants, and since there clearly appear to be non-diverse “friction” defendants (that is, certain Mississippi defendants clearly appear to be automobile parts retailers) in this case, it is not clear to this court whether the severance of either the friction or non-friction defendants would serve to create a diverse class of remaining defendants, even assuming egregious misjoinder based on this distinction were present. If there are, in fact, non-diverse “friction” and also non-diverse “non-friction” defendants in a particular case, then the class distinction would appear to be immaterial for jurisdictional purposes. Accordingly, the court deems an asbestos defendant’s burden of proving the basic relevance of the misjoin-der issue on the basis of the “friction/non-friction” distinction in a particular case to include a burden of demonstrating 1) how the two classes are defined 2) which defendants belong to each class in a particular case and 3) that either the “friction” or “non-friction” class of defendants in a particular case consists solely of diverse parties. Barring" }, { "docid": "14061963", "title": "", "text": "Fifth Circuit has recently reaffirmed that it “is insufficient that there be a mere theoretical possibility of recovery,” to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir.2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir.2000)). In contending that no reasonable possibility of recovery exists against the local retailers, defendants argue that plaintiffs’ complaint contains only vague and conelu-sory allegations against these retailers and that the complaint did not give these defendants sufficient notice of the claims against them. Defendants’ use of alleged pleading defects as a basis for a finding of fraudulent joinder is problematic. The Mississippi and Federal Rules of Civil Procedure require only that a complaint make “a short and plain statement of the claim showing that the pleader is entitled to relief,” see Miss. R. Civ. P. 8(a)(2); Fed. R.Civ.P. 8(a)(2), and any suggestion that plaintiffs were required to set forth detailed allegations against the local retailers therefore lacks merit. The Mississippi and Federal Rules of Civil Procedure do require a greater degree of particularity for fraud claims, see Fed.R.Civ.P. 9(b), but, even in this context, the Fifth Circuit has indicated that a plaintiff should ordinarily be given an opportunity to amend her complaint to allege fraud with greater particularity, before such claims are dismissed with prejudice upon a finding of fraudulent joinder. See Hart v. Bayer Corp., 199 F.3d 239, 248 n. 6 (5th Cir.2000). At any rate, the court does not agree that, under liberal notice pleading rules, the complaint is defective as it relates to the local retailers. To the contrary, the complaint clearly indicates that plaintiffs are proceeding under standard theories of strict products liability against the local retailers, alleging that they sold unreasonably dangerous and defective products and that, on this basis, they should be held liable under Mississippi law. Miss.Code Ann. § 11-1-63 clearly provides for such retailer liability in products liability cases, as did Mississippi’s common law products" }, { "docid": "12926499", "title": "", "text": "that the Plaintiff has improperly joined the defendants under Rule 20 of the Federal Rules of Civil Procedure, and that such misjoinder constitutes fraudulent joinder. In so arguing, the defendants cite a recent case in which the Eleventh Circuit held that misjoinder may be “so egregious as to constitute fraudulent joinder.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996). In Tapscott, the plaintiffs sued in state court twenty-nine defendants for common law and statutory fraud and civil conspiracy arising from the sale of service contracts. Tapscott, 77 F.3d at 1355. Some of the defendants had entered service contracts regarding automobiles, while other defendants had entered service contracts regarding “retail products.” Id. The “automobile” defendants were of non-diverse citizenship from the plaintiffs. Id. at 1360 n. 16. However, the “retail products” defendants were of diverse citizenship from the plaintiffs. Id. at 1359-60. Hence, the “retail products” defendants removed the case to federal court and filed a motion to sever the claims against them from the claims against the non-diverse defendants. Id. at 1355. The United States District Court for the Northern District of Alabama granted the defendants’ motion to sever, and the Eleventh Circuit affirmed, holding that “[mjisjoinder may be just as fraudulent as the joinder of a resident defendant against whom a plaintiff has no possibility of a cause of action.” Id. at 1355, 1360. Explaining the decision, the Eleventh Circuit stated that the “automobile” defendants had “no real connection” with the “retail products” defendants. Id. at 1360. Therefore, the plaintiffs’ “attempt to join these parties [was] so egregious as to constitute fraudulent joinder.” Id. In so holding, however, the Eleventh Circuit cautioned, “We do not hold that mere misjoinder is fraudulent joinder____” Id. Following this cautionary stance, two district courts in the Fifth Circuit recently distinguished Tapscott and refused to find fraudulent joinder in the plaintiff’s choice to join certain defendants. See Ren-Dan Farms, Inc. v. Monsanto Co., 952 F.Supp. 370, 376-77 (W.D.La.1997) (noting that Fifth Circuit Court of Appeals has not yet addressed Tapscott argument); Scott v. The American Tobacco Co., 959 F.Supp." }, { "docid": "20139466", "title": "", "text": "a citizen of Indiana, cannot remove a case from the Indiana courts on the basis of diversity jurisdiction, Conk’s claims against Leonard were not properly removed and must be remanded. II. Fraudulent Joinder by “Misjoinder” Even if Leonard was not entitled to remove the claims against him, defendants Richards & O’Neil and Wittlin argue that they are entitled to remove the claims against them because they were not properly joined with the claims against Leonard. That is, Richards & O’Neil and Witt-lin contend Conk’s complaint really pleads two separate actions — one against Leonard that is not removable and one against Richards & O’Neil and Wittlin that is removable. Defendants therefore conclude that the court should disregard Leonard’s citizenship because he was misjoined in this action. To support this argument, defendants rely on Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir.1996). In Tapscott, Alabama plaintiffs initially alleged various claims against Alabama defendants arising from service contracts on automobiles sold and financed in Alabama. Plaintiffs later added new claims against a diverse defendant arising from “extended service contracts” on a variety of retail products. The district court found an “improper and fraudulent joinder, bordering on a sham” because plaintiffs’ non-removable claims arising from automobile purchases were “wholly distinct” from their claims against the diverse defendant based on other retail products. See 77 F.3d at 1360. The Eleventh Circuit affirmed the district court’s finding that a misjoinder of parties under Rule 20 of the Federal Rules of Civil Procedure amounted to fraudulent joinder, permitting the court to disregard the citizenship of the non-diverse defendants. Id. In discussing the insufficient factual nexus between the claims against the different defendants, the Eleventh Circuit explained: Misjoinder may be just as fraudulent as the joinder of a resident defendant against who a plaintiff has no possibility of a cause of action.... We do not hold that mere misjoinder is fraudulent join-der, but we do agree with the district court that [plaintiffs] attempt to join these parties is so egregious as to constitute fraudulent joinder. Id. (emphasis added). Professors Wright and Miller have suggested" }, { "docid": "9739926", "title": "", "text": "should be applied, I respectfully decline to apply it. This conclusion is supported by the well-recognized doctrine that a removing party bears a heavy burden of persuasion and that if there is any doubt as to whether removal was proper, remand is required. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996). For all the above reasons I conclude that plaintiffs’ motion to remand should be granted. B. UNDERLYING JOINDER QUESTION Because the question of fraudulent mis-joinder is a question of first impression in this circuit, it is appropriate to note that even if I were to accept the doctrine, remand would be required. Below, I explain why. To resolve the question of fraudulent misjoinder, I must first determine which joinder rule, state or federal, governs. Notwithstanding Tapscott’s application of Federal Rule 20, most courts looking at this issue have applied the state rule. This seems the better choice since the question is whether the parties were mis-joined in state court. See, e.g., Jackson v. Truly, 307 F.Supp.2d 818, 824 (N.D.Miss.2004). Indeed, application of the federal rules seems particularly inappropriate in these days of heightened sensitivity to federalism concerns. I thus conclude that, if the fraudulent misjoinder doctrine were to be adopted, the applicable joinder standard should be derived from state law. Met Life argues that there is no difference between California Code of Procedure § 379 and the federal rule, because the state rule “virtually mirrors Rule 20.” I cannot agree. California joinder rules have been construed liberally and there are situations where the State’s joinder rules would allow for permissive joinder of defendants while the federal rules would not. As pertinent here, in federal practice, all claims joined must arise out of the same transaction or series of transactions, but under California law, a common question of liability satisfies the party-joinder rules. See Judge Robert E. Jones, et al., Cal. Prac. Guide Civ. Pro. Before Trial Ch. 2-C, 2:222-23. Here, plaintiffs have alleged a claim against defendants which they assert arises out of the same transaction or occurrence, i.e., the mold which plaintiffs claim caused their illness and" }, { "docid": "20139467", "title": "", "text": "arising from “extended service contracts” on a variety of retail products. The district court found an “improper and fraudulent joinder, bordering on a sham” because plaintiffs’ non-removable claims arising from automobile purchases were “wholly distinct” from their claims against the diverse defendant based on other retail products. See 77 F.3d at 1360. The Eleventh Circuit affirmed the district court’s finding that a misjoinder of parties under Rule 20 of the Federal Rules of Civil Procedure amounted to fraudulent joinder, permitting the court to disregard the citizenship of the non-diverse defendants. Id. In discussing the insufficient factual nexus between the claims against the different defendants, the Eleventh Circuit explained: Misjoinder may be just as fraudulent as the joinder of a resident defendant against who a plaintiff has no possibility of a cause of action.... We do not hold that mere misjoinder is fraudulent join-der, but we do agree with the district court that [plaintiffs] attempt to join these parties is so egregious as to constitute fraudulent joinder. Id. (emphasis added). Professors Wright and Miller have suggested that Tapscott identified a new type of fraudulent joinder — procedural misjoin- der. See 14B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3723 at 656 (3d ed.1998). Such “procedural misjoinder” would be a plaintiffs purposeful attempt to defeat removal by joining together claims against two or more defendants where the presence of one would defeat removal and where in reality there is no sufficient factual nexus among the claims to satisfy the permissive joinder standard. See id. at 656-57. The parties have briefed this issue of “procedural misjoinder” in terms of misjoinder under Rule 20 of the Federal Rules of Civil Procedure. Although the Eleventh Circuit in Tapscott relied on this rule to determine that there was an insufficient factual nexus between claims, the court is not persuaded that the Federal Rules of Civil Procedure provide the governing legal standard. After all, when Conk filed his complaint in the Indiana court, he was not required to comply with the Federal Rules of Civil Procedure in terms of" }, { "docid": "14061965", "title": "", "text": "liability jurispru dence. A complaint does not need a great deal of specificity to convey that plaintiffs are seeking to hold retailers liable under a strict products liability theory, and the complaint in this case is sufficient to set forth plaintiffs’ allegations in this regard. The court therefore sees no valid argument that the complaint is defective, much less so defective as to entitle the local retailers to dismissal with prejudice on a finding of fraudulent joinder. Defendants also argue that an egregious procedural misjoinder exists in this case under Tapscott v. MS Dealer Service Corporation, 77 F.3d 1353, 1360 (11th Cir.1996), but the court does not agree. The Mississippi Supreme Court recently appeared to re-affirm the liberal standards of joinder under Miss. R. Civ. P. 20 in asbestos cases, see Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (2004) (noting the proper application of liberal rules of joinder to asbestos actions, as a “mature” tort), and the court concludes that there is no egregious misjoinder in this case, including the joinder of the so-called “friction” and “non-friction” defendants. See Arrington, et al. v. AC & S, et al., No. 1:02cv425 (S.D.Miss.2002) (rejecting mis-joinder arguments in asbestos removal context.) The court would initially note that the basic relevance of the misjoinder issue is in question in this case. Defendants argue that the “friction” and “non-friction” defendants were misjoined in this action, but it is not clear to this court whether either the “friction” or “non-friction” defendants in this case are made up solely of diverse parties and, thus, whether severing these defendants from each other would serve to produce a purely diverse class of either defendants. The “friction” defendants are characterized by counsel for defendants in a similar companion case as “manufacturers and sellers of car parts sold to consumers.” Defendants seek to sever these defendants from the traditional “non-friction” defendants, which are characterized by counsel in that case as “diverse and non-diverse manufacturers and sellers of industrial insulation products used by professional tradesmen at industrial worksites around the state.” The court would further note that, since defendants refer to" }, { "docid": "14061973", "title": "", "text": "to the Circuit Court of Washington County. . Rosamond, et al. v. Garlock, et al., No. 3:03cv235, defendants’ memorandum brief at 11. . The court does not bind the defendants in this case to a definition provided by counsel in another case; the court cites this definition merely as a starting point for discussing the issue and also to note the court’s confusion regarding which defendants are \"friction” and \"non-friction” defendants in this case. At the same time, it would certainly be suspect if defendants were to provide varying definitions of \"friction” and \"non-friction” defendants in different cases, depending upon the residences of defendants in those cases. . The removal petition invokes the retailer liability provisions of § 11-1-64, which was passed by the legislature as part of the 2002 tort reform legislation. Section 11-1-64 generally provides retailers with a mechanism to seek dismissal from a products liability action for liability purposes, but, in an obvious attempt to defeat removal jurisdiction, the statute provides that any such dismissed retailers are to remain parties to the action for jurisdictional purposes. Miss.Code Ann. § 11 — 1— 64(6). It seems clear that this statute, with a January 1, 2003, effective date, does not apply to this case, and no local retailer in this case appears to have even sought dismissal under its terms. Even if the statute were somehow applicable, it is noteworthy that Missouri federal courts interpreting a nearly identical Missouri statute have found that statute sufficient to defeat federal removal jurisdiction, based partly on the fact that any dismissal thereunder is properly considered an involuntary dismissal which may not give rise to removal jurisdiction. See, e.g. Pender v. Bell Asbestos Mines, Ltd., 46 F.Supp.2d 937, 940 (E.D.Mo.1999). . See, e.g. In re Federal-Mogul Global, Inc., 300 F.3d 368, 382 (3d Cir.2002)." }, { "docid": "14061970", "title": "", "text": "to demonstrate that no possibility of recovery exists against the local retailers in this case, as a substantive matter. The “bottom line” in this and most other asbestos removals is that plaintiffs have filed suit against numerous non-diverse retailers under established products liability theories. While some efforts have been made in the Mississippi legislature to reduce the potential liability of retailers in products cases, none of these efforts would, in the court’s view, assist defendants in establishing jurisdiction in this case. Accordingly, defendants are faced with the extraordinarily difficult burden of demonstrating that no possibility of recovery exists against numerous local retailers in this case when products liability law clearly allows such retailers to be sued, even absent a showing of fault on the part of those retailers. See Miss.Code Ann. § ll-l-63(g) (providing “sellers” with a right of indemnity against manufacturers where the sellers are not at fault in causing product defects, but permitting such sellers to be sued for such defects regardless). As in most asbestos removals, defendants have failed to meet the heavy burden that confronts them, and diversity of citizenship is plainly lacking in this case. The court is also aware that asbestos removal litigation, as it has developed in this state, generally has less to do with effecting valid removals than with attempting to obtain a transfer of the case to a multi-district litigation (MDL) court, where the case generally languishes for a protracted period of time. While the desire of defendants to reach the comparative safety of an MDL court is understandable, their repeated efforts to do so, regardless of the jurisdictional merits, has resulted in an air of skepticism among the federal courts regarding the validity of most asbestos removals. This court has noted that other district courts in this state will sometimes include language admonishing asbestos defendants against filing subsequent removal petitions, under the pain of contempt or other sanctions. See, e.g. Knotts, et al. v. Minnesota Manufacturing, et al., No. 1:03cv125 (S.D.Miss.2003) (noting that the “continuous frivolous removal of these cases in addition to being burdensome to the plaintiffs has become" }, { "docid": "4374528", "title": "", "text": "venue or jurisdiction otherwise proper at the time the action was commenced.” Thus, superficially, § 11-1-64 precludes a finding of improper joinder of a seller defendant on the basis of any quasi-dismissal entered pursuant to the statute. As a matter of substance, however, it is plain that the effect of § 11-1-64, in the present case, will be to remove any real possibility of recovery against Flatland. Ford is the primary defendant in this case, and there is virtually no chance that Ford will become insolvent, so as to entitle plaintiff to seek recovery from the retailer pursuant to § 11-1-64(2). Plaintiff offers no other scenario in which he might realistically be permitted to recover from Flatland under § 11-1-64. In his complaint, plaintiff merely makes generic allegations that Flatland sold the vehicle to decedent with knowledge of its defective condition. Plaintiff cites the 2004 version of Miss. Code Ann. § 11—1—63(h) as his sole authority in support of the proposition that knowledge of a defect on the part of a retailer might give rise to liability on its part, but this provision only became effective on September 1, 2004 and is inapplicable to this case. It is thus apparent that plaintiff has failed to offer any applicable authority to rebut defendants’ persuasive arguments that no reasonable possibility of recovery exists against Flatland under Mississippi law. It is likewise clear that plaintiff seeks to hold Flatland liable based solely upon its status as a “seller in the stream of commerce” within the meaning of § 11—1— 64. Where, as here, state law provides for dismissal of a defendant without prejudice, and a plaintiff is unable to present any realistic scenario in which his dismissed claims might be reasserted against such defendant, a dismissal with prejudice upon a finding of improper joinder is in order. In arguing to the contrary, plaintiff is able to respond only with esoteric arguments which fail to rebut the fact that he has no real possibility of recovering against Flatland in this case. Missouri district courts have objected to utilizing the procedural standards set forth in" }, { "docid": "14061964", "title": "", "text": "forth detailed allegations against the local retailers therefore lacks merit. The Mississippi and Federal Rules of Civil Procedure do require a greater degree of particularity for fraud claims, see Fed.R.Civ.P. 9(b), but, even in this context, the Fifth Circuit has indicated that a plaintiff should ordinarily be given an opportunity to amend her complaint to allege fraud with greater particularity, before such claims are dismissed with prejudice upon a finding of fraudulent joinder. See Hart v. Bayer Corp., 199 F.3d 239, 248 n. 6 (5th Cir.2000). At any rate, the court does not agree that, under liberal notice pleading rules, the complaint is defective as it relates to the local retailers. To the contrary, the complaint clearly indicates that plaintiffs are proceeding under standard theories of strict products liability against the local retailers, alleging that they sold unreasonably dangerous and defective products and that, on this basis, they should be held liable under Mississippi law. Miss.Code Ann. § 11-1-63 clearly provides for such retailer liability in products liability cases, as did Mississippi’s common law products liability jurispru dence. A complaint does not need a great deal of specificity to convey that plaintiffs are seeking to hold retailers liable under a strict products liability theory, and the complaint in this case is sufficient to set forth plaintiffs’ allegations in this regard. The court therefore sees no valid argument that the complaint is defective, much less so defective as to entitle the local retailers to dismissal with prejudice on a finding of fraudulent joinder. Defendants also argue that an egregious procedural misjoinder exists in this case under Tapscott v. MS Dealer Service Corporation, 77 F.3d 1353, 1360 (11th Cir.1996), but the court does not agree. The Mississippi Supreme Court recently appeared to re-affirm the liberal standards of joinder under Miss. R. Civ. P. 20 in asbestos cases, see Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (2004) (noting the proper application of liberal rules of joinder to asbestos actions, as a “mature” tort), and the court concludes that there is no egregious misjoinder in this case, including the joinder of the so-called" }, { "docid": "7547488", "title": "", "text": "of plaintiffs,” id. 2004 WL 50869 at 7, 298 F.Supp.2d at 396, (2) “procedural misjoinder,” Johnson v. Glaxo Smith Kline, 214 F.R.D. 416, 420 (S.D.Miss.2002), or (3) “fraudulent misjoinder,” Smith v. Nationwide Mut. Ins. Co., 286 F.Supp.2d 777, 781 (S.D.Miss.2003), it is apparent “[a] new concept ... appears to be part of the doctrine of fraudulent joinder [and] has begun to emerge in the case law .... ” 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3723 (3rd ed.2003); see also Robert A. Weems, Mississippi Law of Torts § 21:3 (2003). Some commentators have noted: Procedural misjoinder may represent a third type of fraudulent joinder, the others being the lack of any possibility of the plaintiff having a claim against a joined party and outright fraud by the plaintiff in the statement of jurisdictional facts. The three hold the promise of providing strong protection for the defendant’s statutory right of removal. Wright, Miller & Cooper, supra § 3723. The emerging authorities responsible for this recent variant of the fraudulent joinder doctrine opine a court may disregard the citizenship of certain parties, on either side of the adversarial divide, whose claims lack a common transactional and legal or factual identity in default of Rule 20, Federal Rides of Civil Procedure. The undersigned joins in the adoption of the procedural misjoinder doctrine for this district, and holds it is applicable to both plaintiffs and defendants. In the Court’s estimation, Judge Chambers has also very soundly chosen not to follow that line of authority injecting an “egregiousness” element into the procedural misjoinder inquiry as a required finding. As noted by some commentators, that approach would add a very subjective and troublesome element of complexity to an already knotty calculus: Conversely, the fraudulent-joinder doctrine and its allied jurisprudence adds a further level of complexity — and additional litigation — to a federal court’s decision regarding removal jurisdiction. The complexity is increased if the Eleventh Circuit’s admonition that not all procedural misjoinder rises to the level of fraudulent joinder is accepted and because numerous additional decisions will" }, { "docid": "14061968", "title": "", "text": "such a showing, severance and remand of either class would not create diversity among the remaining parties, and the misjoinder issue would appear to simply be irrelevant. In this case, it is not entirely clear to this court exactly what constitutes a “friction” or “non-friction” defendant, nor whether there exists a purely diverse class of either in this case. As such, it is not clear to this court that the misjoinder issue is even relevant herein. At any rate, even assuming that severance and remand of either the “friction” and “non-friction” defendants would serve to create diversity in this case, the court would still not deem “egregious” misjoin-der to be present on the basis of this distinction. Indeed, if the court were to conclude that any joinders in this case were “egregious” (which, in light of Mississippi’s liberal joinder rules, it does not) it would likely be the joinder of numerous plaintiffs (each with a distinct medical history and damages) into a single action, rather than the joinder of “friction” and “non-friction” defendants in the same lawsuit. Indeed, defendants’ objections to the joinder of these defendants in this case appears motivated more by the jurisdictional necessity of excising the non-diverse retailers from this action than by any genuine anomaly in trying friction and non-friction defendants in the same case. While there may well be some advantages to trying friction and non-friction defendants separately, these advantages are not so compelling as to render their joinder “egregious” under Mississippi’s liberal joinder rules. It is also apparent that any application of the misjoinder doctrine so as to sever the friction defendants (and those filing suit against them) from this action would be, at best, awkward and wasteful of judicial resources. Indeed, in order to apply the doctrine, it would appear necessary for the court to make findings of fact regarding which defendants constitute “friction” and “non-friction” defendants and also to determine which plaintiffs were making claims against each defendant. Finally, it should be noted that defendants’ resort to procedural devices to manufacture diversity only serves to highlight the fact that they have failed" }, { "docid": "12926498", "title": "", "text": "Capitol Mutual Insurance Company at that time. I asked him to determine if any policies had ever been issued by Capitol Mutual Insurance Company to Willie M. Marble. He represented to me that after reviewing the Company’s computerized master policy list, he found no reference to policies having been issued to Willie M. Marble____ Affidavit of Kelly D. Simpkins , ¶¶ 3, 4. Referring to this affidavit, the defendants then stated that they “reasonably believed that Capitol Mutual had not issued any policies to the Plaintiff____” Response and Memorandum Brief, p. 19. Evidently, then, the defendants now concede that Capitol, a citizen of Mississippi, issued an insurance policy to the Plaintiff. Since the argument that Capitol issued no such policy was the defendants’ principal argument that the Plaintiff fraudulently joined Capitol, the defendants now fail to meet their “heavy burden” in asserting that complete diversity exists between the parties. Accordingly, this court does not have diversity jurisdiction to hear this cause, and the Plaintiffs Motion to Remand must be granted. Incidentally, the defendants also argue that the Plaintiff has improperly joined the defendants under Rule 20 of the Federal Rules of Civil Procedure, and that such misjoinder constitutes fraudulent joinder. In so arguing, the defendants cite a recent case in which the Eleventh Circuit held that misjoinder may be “so egregious as to constitute fraudulent joinder.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996). In Tapscott, the plaintiffs sued in state court twenty-nine defendants for common law and statutory fraud and civil conspiracy arising from the sale of service contracts. Tapscott, 77 F.3d at 1355. Some of the defendants had entered service contracts regarding automobiles, while other defendants had entered service contracts regarding “retail products.” Id. The “automobile” defendants were of non-diverse citizenship from the plaintiffs. Id. at 1360 n. 16. However, the “retail products” defendants were of diverse citizenship from the plaintiffs. Id. at 1359-60. Hence, the “retail products” defendants removed the case to federal court and filed a motion to sever the claims against them from the claims against the non-diverse defendants. Id." }, { "docid": "2824546", "title": "", "text": "plaintiffs “with particular defendants against whom they allege individual claims”; as relevant here, the only two class representatives for the class action were Alabama residents, and they asserted claims only against Lowe’s Home Centers. 77 F.3d at 1359-60. The district court concluded that there was no allegation of joint liability or conspiracy, and that the claims involved in the car-sales class action were “wholly distinct from the alleged transactions involved in the” retail-products class action. 77 F.3d at 1360. Rather, “[t]he only similarity between” the two classes was that they both alleged violations of Alabama statutory law; “[s]uch commonality on its face [was] insufficient for joinder.” 77 F.3d at 1360. The Eleventh Circuit agreed and explained: Although certain putative class representatives may have colorable claims against resident defendants in the putative “automobile” class, these resident defendants have no real connection with the controversy involving [the retail-products plaintiffs and] Lowe’s in the putative “merchant” class action. We hold that the district court did not err in finding an attempt to defeat diversity jurisdiction by fraudulent joinder. We do not hold that mere misjoinder is fraudulent joinder, but we do agree with the district court that Appellants’ attempt to join these parties is so egregious as to constitute fraudulent joinder. 77 F.3d at 1360. The procedural misjoinder doctrine’s reach outside the Eleventh Circuit is unclear. The Tenth Circuit recently' described the doctrine’s status as follows: “It appears that the Fifth Circuit may also accept procedural misjoinder. No circuit has rejected .the doctrine, but the district courts and the commentators are split.” Lafalier v. State Farm Fire & Cas. Co., 391 Fed.Appx. 732, 739 (10th Cir.2010) (citing, for the proposition that the Fifth Circuit accepts the doctrine, Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d at 532-33; In re Benjamin Moore & Co., 309 F.3d 296, 298 (5th Cir.2002)). While the Tenth Circuit recognized that “[t]here may be many good reasons to adopt procedural misjoinder,” it declined to adopt the doctrine, because it would not have changed the result in that case. Lafalier v. State Farm Fire & Cas. Co., 391 Fed.Appx. at" }, { "docid": "14061969", "title": "", "text": "same lawsuit. Indeed, defendants’ objections to the joinder of these defendants in this case appears motivated more by the jurisdictional necessity of excising the non-diverse retailers from this action than by any genuine anomaly in trying friction and non-friction defendants in the same case. While there may well be some advantages to trying friction and non-friction defendants separately, these advantages are not so compelling as to render their joinder “egregious” under Mississippi’s liberal joinder rules. It is also apparent that any application of the misjoinder doctrine so as to sever the friction defendants (and those filing suit against them) from this action would be, at best, awkward and wasteful of judicial resources. Indeed, in order to apply the doctrine, it would appear necessary for the court to make findings of fact regarding which defendants constitute “friction” and “non-friction” defendants and also to determine which plaintiffs were making claims against each defendant. Finally, it should be noted that defendants’ resort to procedural devices to manufacture diversity only serves to highlight the fact that they have failed to demonstrate that no possibility of recovery exists against the local retailers in this case, as a substantive matter. The “bottom line” in this and most other asbestos removals is that plaintiffs have filed suit against numerous non-diverse retailers under established products liability theories. While some efforts have been made in the Mississippi legislature to reduce the potential liability of retailers in products cases, none of these efforts would, in the court’s view, assist defendants in establishing jurisdiction in this case. Accordingly, defendants are faced with the extraordinarily difficult burden of demonstrating that no possibility of recovery exists against numerous local retailers in this case when products liability law clearly allows such retailers to be sued, even absent a showing of fault on the part of those retailers. See Miss.Code Ann. § ll-l-63(g) (providing “sellers” with a right of indemnity against manufacturers where the sellers are not at fault in causing product defects, but permitting such sellers to be sued for such defects regardless). As in most asbestos removals, defendants have failed to meet the" }, { "docid": "20175994", "title": "", "text": "light of the Supreme Court’s instruction that \" 'joinder of claims, parties and remedies is strongly encouraged’ ” (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966))). . See also Wells Fargo Bank, 2009 WL 3877516, at ,“6-*7 (finding that a defendant had been fraudulently misjoined where \"none of the plaintiffs who [sought] recovery against” it sought \"recovery from any other defendant on the same claim” and the procedural history of the case indicated a deliberate effort by the plaintiff to use joinder to defeat federal jurisdiction). . For additional examples of cases in which courts have concluded that plaintiffs were fraudulently misjoined, see In re Silica, 398 F.Supp.2d at 651 (concluding that, \"for jurisdictional purposes, the joinder of the disparate Plaintiffs’ claims constitutes egregious misjoinder, while each Plaintiffs’ joinder of his or her claims against multiple Defendants does not constitute egregious misjoinder”); see also Reed v. American Medical Security Group, Inc., 324 F.Supp.2d 798, 803-05 (S.D.Miss.2004) (finding that fourteen “unrelated plaintiffs suing over unconnected events” had fraudulently misjoined their claims); Adkins v. Ametek, 2003 WL 24011960, at *2 (S.D.Miss. Jan.28, 2003) (finding that the claims of a large group of plaintiffs asserting factually unrelated asbestos claims had been fraudulently misjoined). . It is not enough for the claims to be either legally unrelated or factually unrelated but not both. In cases in which a single plaintiff or group of plaintiffs asserts different causes of action against various defendants, courts have declined to find that the defendants are fraudulently misjoined where the plaintiff’s various claims involve common operative facts. See, e.g., Richmond v. Chubb Group of Insurance Companies, 2006 WL 2710566, at *6 (E.D.La. Sept.20, 2006) (finding that the plaintiffs’ claims of negligence and breach of fiduciary duty against the agents who sold them an insurance policy were not fraudulently misjoined with their failure-to-pay claim against the insurance company that issued the policy); Moore v. SmithKline Beecham Corporation, 219 F.Supp.2d 742, 745-46 (N.D.Miss. 2002) (finding that a products-liability claim against a drug manufacturer was not fraudulently misjoined with a medical-negligence" }, { "docid": "19048378", "title": "", "text": "resolving whether a plaintiff is fraudulently joined to defeat diversity, we will look to state joinder law. In doing so, we are simply invoking the same principles as we would invoke in the more common situation where a defendant is fraudulently joined. In the single plaintiff case, for example, if there is a reasonable basis for the state law claim against a non-diverse defendant, the case may not be removed. Likewise, if the joinder of multiple plaintiffs is not improper under state law, it cannot be deemed a fraudulent or egregious effort to avoid federal jurisdiction any more than the joinder of a defendant is fraudulent where there is asserted a valid state law claim for relief. Federal law does not govern whether a plaintiff has stated a viable claim against a non-diverse defendant for purposes of fraudulent joinder. Similarly, we do not see how federal joinder rules should apply when the issue is fraudulent misjoinder of non-diverse plaintiffs in a state court action so as to defeat our diversity jurisdiction. Bridgestone/Firestone, Inc. v. Ford Motor Co., 260 F.Supp.2d 722, 728-29 (S.D.Ind.2003); Conk v. Richards & O’Neil, LLP, 77 F.Supp.2d 956, 971 (S.D.Ind.1999). II. We turn first to the issue of fraudulent joinder of the phentermine defendant Rugby which, according to plaintiffs, is a citizen of Georgia. Plaintiffs allege that Rugby failed in its duty to promote the proper use of phentermine, and failed to warn plaintiffs and their doctors about contra-indications if phentermine was used in combination with fenfluramine and/or dexfenfluramine. This court extensively addressed the fraudulent joinder of phentermine defendants in Anderson v. American Home Products Corp., et al., 220 F.Supp.2d 414 (E.D.Pa.2002) and again in Stanger, et al. v. American Home Products Corp., et al., No. 03-20086 (May 29, 2002); Haslam v. American Home Products Corp., et al., No. 03-20088 (May 29, 2002). In those cases, we found the phentermine defendants were added as parties to the litigation purely to prevent federal jurisdiction and no real cause of action existed against them. Anderson, 220 F.Supp.2d at 422; Stanger, slip op. at 9; Haslam, slip op. at 9." } ]

[ { "docid": "22980983", "title": "", "text": "this determination by the district court is irrelevant to our disposition of this appeal, it is desirable, in the interest of complete analysis of this kind of case, to explain why the district court erred in this regard. If a motion to reconsider a denial of a new trial is subject to the same time limit as a motion for a new trial — a possible result under E.D.Pa.R. 20(g), even if somewhat doubtful in light of the balance of this opinion — then the defendants would have had to serve their motion not later than 10 days after entry of the denial of the new trial motion. Fed.R.Civ.P. 59(b). Under Fed.R.Civ.P. 6(a), which governs computation of time under the Federal Rules of Civil Procedure, the defendants would have had until the end of March 7, 1983, to serve their motion for reconsideration: the underlying order was entered on February 23; the first day for purposes of computation' was February 24, Fed.R.Civ.P. 6(a); the tenth day would have been March 5, but because March 5, 1983, was a Saturday, the tenth day for purposes of Rule 59(b) was the following Monday, March 7, 1983. Fed.R.Civ.P. 6(a). Since the defendants in fact served their motion on March 7, they filed in timely fashion. If, however, motions for reconsideration of an earlier denial of a new trial are classified, as they probably should be, as motions under Rule 60(b) for relief from an order, then defendants would have had “a reasonable time” in which to file their motion for reconsideration. Ten days, which is what the defendants took here, would certainly seem to be a reasonable time. . We need not decide today the issues of whether a district court has jurisdiction to grant a motion for reconsideration while an appeal is pending before this court and, if such jurisdiction exists, whether the district court can thereby extend the time for appeal and retroactively destroy appeals otherwise validly pending before the appellate court. Compare American Security Bank v. John Y. Hardison, Inc., 670 F.2d 317 (D.C.Cir.1982) (suggesting that district courts cannot so" } ]

[ { "docid": "15274157", "title": "", "text": "held by the Trustee for the benefit of the creditors of the bankruptcy estate. ■ Motion to Reconsider The Objectors raise a new argument in their Motion to Reconsider. The Objectors claim that the relief requested by the Debtors should not have been brought as a contested matter under Bankruptcy Rule 9014 but rather as an adversary proceeding under Bankruptcy Rule 7001 because it included a request for turnover of property under § 542 of the Bankruptcy Code. The Objectors maintain that this ascribed procedural shortcoming is a manifest error of law that requires the Court to alter or amend the Termination Order under Bankruptcy Rule 9023 of the Federal Rules of Bankruptcy Procedure. The Objectors further argue that the Termination Order is void under Bankruptcy Rule 9024, as the Debtors’ failure to commence an adversary proceeding deprived the Objectors of their due process rights. The Court declines to revisit its Termination Order, as the commencement of an adversary proceeding was unnecessary and as the Objectors have not been procedurally prejudiced. The Court has addressed previously the standards for vacating or reconsidering an order under Bankruptcy Rules 9023 and 9024. See In re Andrews, No. 14-36384, 2015 WL 4470069, at *4-5 (Bankr.E.D.Va. July 21, 2015) (denying a debtor’s motion to vacate a dismissal of his Chapter 7 case). Under Bankruptcy Rule 9023, the Objectors must demonstrate that this Court’s Termination Order constituted a manifest error of law. Bankruptcy Rule 9023 incorporates Federal Rule of Civil Procedure 59. Relief under Rule 59(e) is an extraordinary remedy. Exercise of this power must of necessity be used sparingly. When issues have been carefully considered and decisions rendered, the only reason which should commend reconsideration of that decision is a change in the factual or legal underpinning upon which the decision was based, (citations and internal quotations marks omitted). The purpose of such a motion “is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki 779 F.2d 906, 909 (3rd Cir.1985). Andrews, 2015 WL 4470069, at *4. To prevail under Rule 9024, which incorporates Rule" }, { "docid": "21511824", "title": "", "text": "the burden of proving that reconsideration of the nondis-chargeability order is appropriate. Matter of Homestead Partners, Ltd., 201 B.R. 1014, 1018 n. 4 (Bankr.N.D.Ga.1996). A motion for reconsideration may be brought pursuant to Fed.R.Civ.P. 59(e) or 60(b). Federal Rules 59(e) and 60(b) are incorporated into the Bankruptcy Rules and, with exceptions that do not apply in this case, they are identical to Bankruptcy Rules 9023(e) and 9024(b). Therefore, nonbank-ruptcy cases that interpret the rules are applicable. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689 (M.D.Fla.1994). “If the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b).” Id. at 694. Debtors filed their motion for reconsideration within ten days of the January 17, 2008 judgment; therefore, the Court will consider the motion under Rule 59(e). I. Standard for Reconsideration A motion for reconsideration “is an extraordinary remedy” that is to be used by the courts “sparingly.” Mathis v. United States of America (In re Mathis), 312 B.R. 912, 914 (Bankr.S.D.Fla.2004) (quoting Sussman, 153 F.R.D. at 694). A motion to alter or amend a judgment may be brought pursuant to the Federal Rule of Civil Procedure 59(e). Fed. R. Bankr.P. 9023. “Rule 59(e) does not set forth any grounds for relief and the district court has considerable discretion in reconsidering an issue;” Sussman, 153 F.R.D. at 694 (citing to American Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238-39 (11th Cir.1985)). The grounds for granting reconsideration of an order are limited to (1) an intervening change in the law, (2) consideration of newly discovered evidence, and/or (3) correcting clear error or preventing manifest injustice. In re Mathis, supra. The Debtors move for reconsideration based on their assertion that the debt of the Credit Union should be discharged given the facts of the case under the “prudent person” standard and section 726(a)(2)(C). It is clear from the case law that Debtors cannot move for reconsideration based on this new argument that was available at the time of" }, { "docid": "14470672", "title": "", "text": "has power to reimpose the automatic stay under § 105(a) but may do so only in adversary proceeding); American Indus. Loan Ass’n v. Voron (In re Voron), 157 B.R. 251, 252-53 (Bankr.E.D.Va.1993) (same); Nasco P.R., Inc. v. Chemical Bank (In re Nasco P.R., Inc.), 117 B.R. 35, 38 (Bankr.D.P.R.1990) (\"The bankruptcy court has power under Section 105(a) to reimpose a stay ... [but a] party wishing to invoke the Court’s injunctive power under Section 105(a) must file an adversary proceeding_”). . The dissent states that \"[t]he weight of authority supports State Bank[’s]” argument that Rule 60(b) relief in the instant case \"constitutes in-junctive relief requiring an adversary proceeding in accordance with Bankruptcy Rule 7001(7).” Dissent at 3. The dissent, however, like State Bank, fails to identify a single case in support of the proposition that a Rule 60(b) motion requesting a bankruptcy court to vacate an order lifting the automatic stay constitutes a request for an injunction under § 105 that requires an adversary proceeding. Instead, the dissent cites cases that do not even mention Rule 60(b) to support its argument that as a matter of law Rule 60(b) relief in the instant case constituted a request for injunctive relief under § 105. Indeed, the dissent fails to recognize the determinative distinction between a Rule 60(b) motion to vacate an order lifting the stay and a request to reimpose the automatic stay under 11 U.S.C. § 105(a). .See Metmor Fin., Inc. v. Bailey (In re Bailey), 111 B.R. 151, 152-53 (W.D.Tenn.1988) (affirming bankruptcy court's order granting debtor's Rule 9024 and Rule 60(b)(6) motion to vacate an order lifting the automatic stay); Ramirez v. Whelan (In re Ramirez), 188 B.R. 413, 416 (9th Cir. BAP 1995) (“Occasionally, it might suffice to revive the stay by way of motion for reconsideration under Federal Rules of Civil Procedure 59(e) or 60(b), which are applicable in bankruptcy by virtue of Federal Rules of Bankruptcy Procedure 9021 and 9023 [sic].\") (Klein, J., concurring); In re AL & LP Realty Co., 164 B.R. 231, 232-34 (Bankr.S.D.N.Y.1994) (recognizing that under Rules 9024 and 60(b)(6) debtor properly filed" }, { "docid": "18527707", "title": "", "text": "127 (Bankr.D.N.H.1999) (citing Fed. R.Bankr.P. 4004(c) Advisory Committee’s Note). Certainly, the debtor in each case before the Court could have filed a motion to defer the entry of the discharge in order to allow her time to enter into a reaffirmation agreement. Such motions are routinely granted. The failure to file such motions is inexplicable inasmuch as each debtor knew the date on or about which her discharge would be entered and clearly knew as those dates approached that the desired reaffirmation agreements had not been finalized. This Court acknowledges that relief from an order of discharge of the type sought in these cases can be granted under limited and proper circumstances. A court has the power to grant relief from its own judgments, and to open, correct, modify, or vacate judgments that it has entered. Federal Rule of Civil Procedure 59(e) — made applicable to bankruptcy proceedings by Bankruptcy Rule 9023 — permits a party to move to alter or amend a judgment within 10 days after entry of that judgment. Fed.R.Civ.P. 59(e); Fed. R.Bankr.P. 9023(e). Federal Rule of Civil Procedure 60(b) — made applicable to bankruptcy proceedings by Bankruptcy Rule 9024 — authorizes a court to relieve a party from a final judgment or order for, among other reasons, mistake, inadvertence, surprise, or excusable neglect. Fed.R.Civ.P. 60(b); Fed. R. Bankr.P. 9024(b). Final bankruptcy orders can be set aside under Rule 9024. In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988). Rule 9024 provides authority for a court to revoke a discharge. In re Cisneros, 994 F.2d 1462, 1466 (9th Cir.1993). However, a debtor seeking relief under this Rule must show “extraordinary” circumstances which prevented relief through usual channels. Ackermann v. U.S., 340 U.S. 193, 199-202, 71 S.Ct. 209, 212-13, 95 L.Ed. 207 (1950). In the cases now before this Court, there is no evidence — nor even a suggestion — that the extraordinary circumstances required for relief to be granted pursuant to Bankruptcy Rules 9023 and 9024 are present. The parties simply permitted their discharge dates to pass without entering into reaffirmation agreements or forestalling the entry" }, { "docid": "7637928", "title": "", "text": "for appeal so that the time for appeal will begin running from the entry of an order disposing of such motions. Specifically, Rule 8002(b) provides that the timely filing of one of the following motions will toll the time for appeal: (1) a motion to amend or make additional findings of fact under Rule 7052, whether or not granting the motion would alter the judgment; (2) a motion to alter or amend the judgment under Rule 9023; (3) a motion for a new trial under Rule 9023; and (4) a motion for relief from the operation of a judgment or order under Rule 9024 if the motion is filed no later than ten days after the entry of judgment. Bankruptcy Rule 7052 incorporates Rule 52 of the Federal Rules of Civil Procedure and permits the court to amend its findings of fact on motion of a party in interest made within ten days of entry of an order. Bankruptcy Rule 9023 incorporates Rule 59 of the Federal Rules of Civil Procedure which permits new trials either on motion of a party made within ten days of entry of a judgment, see Fed.R.Civ.P. 59(a), or on the court’s initiative within such ten day period, see Fed.R.Civ.P. 59(d). Additionally, and perhaps most frequently employed, Rule 59(e) permits the court to entertain motions to alter or amend a judgment if made within ten days of entry of the judgment. Bankruptcy Rule 9024, adopts Rule 60 from the Federal Rules of Civil Procedure. Rule 60(b), which is relevant to this appeal, authorizes the court to grant relief because of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation or misconduct of an adverse party; (4) entry of a void judgment; (5) release, satisfaction or discharge of the judgment; or (6) any other reason justifying relief from the judgment. A Rule 60(b) motion must be made within a reasonable time and does not affect the finality of the judgment or" }, { "docid": "5995945", "title": "", "text": "Creative’s motion, although designated as being pursuant “to Bankruptcy Rule 9024,” requested “a reconsideration and reargument of all issues previously raised in Creative’s complaint ...” (emphasis added). A motion for reconsideration is essentially a motion for a new trial under Rule 9023. Bankruptcy Rule 9024, on the other hand, allows relief under certain circumstances from final judgments or orders. See In re Rice, 42 B.R. 838, 840 n. 1 (Bankr.D.S.D.1984). Thus, while Creative may have printed “Bankruptcy Rule 9024” on its motion, the relief sought was much more akin to a Bankruptcy Rule 9023 motion and strongly indicates that this latter type of proceeding was intended. This sort of intent evidence is particularly germane here, as it is well established that bankruptcy proceedings are inherently proceedings in equity. Accordingly, I am loathe to rely on an overly fine, technical reading of the Bankruptcy Rules and Federal Rules of Civil Procedure to destroy Creative’s right to appeal. I also note that Moore, in discussing the difference between F.R.Civ.P. 59 and 60, states: “Nomenclature, however, should not be controlling. A motion labelled under Rule 60(b) may be considered under Rule 59 if timely thereunder ...” 7 Moore’s Federal Practice, para. 60-29, n. 1 at 60-327 (2d ed. 1981). Similarly, I see no reason why a motion improperly designated as being pursuant to Bankruptcy Rule 9024 may not be considered under Bankruptcy Rule 9023. This is especially so when, as in the present case, the motion appears to have been intended as a Rule 9023 motion, was timely filed, and the proceeding assumes an equity posture. For the foregoing reasons, then, I will interpret Creative’s motion for reconsideration as one filed under Bankruptcy Rule 9023. I will now proceed to examine the merits of Creative’s appeal. III. Creative raises three issues on its appeal to this Court. First, Creative contends that the bankruptcy court erred in determining that the funds on deposit in the Girard Bank account were not property of the debtor’s estate pursuant to § 541(c) of the Bankruptcy Code. Second, Creative submits that the bankruptcy court erroneously applied general escrow" }, { "docid": "12560356", "title": "", "text": "sought default nonetheless (thus warranting the imposition of sanctions against it). Bank Hapoalim contends that no relief should have been entered without proper notice as to it. For the following reasons, I conclude that the debtor is entitled to have the default set aside by virtue of Fed.R.Bankr.P. 9024 (incorporating Fed.R.Civ.P. 60), but is not entitled to sanctions. II. First, I note that the debtor does not state with particular clarity the procedural rule upon which he moves to have this court “open the judgment” of June 30, 1992. I shall therefore analyze the debt- or’s request for relief in terms of the two procedural means by which it appears the debtor could raise this request. To the extent the motion could be considered as one made for reconsideration pursuant to Fed.R.Bankr.P. 9023 (incorporating, inter alia, Fed.R.Civ.P. 59(e)), I find that the debtor’s motion is untimely. This rule requires that motions to alter or amend the judgment be served within ten days of the entry of an order. This requirement is jurisdictional, and cannot be extended in the discretion of the court. E.g., Smith v. Evans, 853 F.2d 155, 157 (3d Cir.1988). Here, the motion to open the June 30, 1992 order was filed on July 14, 1992 and served on July 21, 1992, well beyond the ten day period allowed by Rule 9023. Therefore, I have no authority to reconsider that order. Compare In re Zawisza, 73 B.R. 929, 931 n. 1 (Bankr.E.D.Pa. 1987) (Scholl, B.J.) (even if answer to motion to dismiss was late, court had discretion to vacate the order entered by default upon a timely request for reconsideration). The debtor’s motion may also be understood, however, as requesting relief pursuant to Fed.R.Bankr.P. 7055 and 9024, which incorporate Fed.R.Civ.P. 55 and 60. As such, I find the motion is presented in a timely manner. Accord, e.g., In re Mapson, 93 B.R. 161, 166 (Bankr.C.D.Ill.1988); 6 Moore’s Federal Practice § 55.10[1] at 55-53 (2d ed. 1992). Cf. In re Juil, Inc., 52 B.R. 343 (Bankr.E.D.Pa.1985). The standard for reopening a default judgment pursuant to Fed.R.Civ.P. 60(b) is generally" }, { "docid": "4787784", "title": "", "text": "must either pursue a timely appeal of that order or seek reconsideration of the bankruptcy court's ruling under the usual Rule 60 standards. In the Matter of Colley, supra, at 1010. * * * Since the only appeal taken was from the order denying the Appellant’s motion for reconsideration, and since no grounds cognizable under Rule 60(b), Federal Rules of Civil Procedure, are asserted, the order of the Bankruptcy Court denying the motion for reconsideration should be affirmed. Fed.R.Bank.P. 3008 permits a party in interest to “move for reconsideration of an order allowing or disallowing a claim against the estate.” The district court apparently read our decision in Colley to stand for the proposition that all such motions to reconsider should be treated as Bankruptcy Rule 9024 motions, which are analogous to Fed.R.Civ.P. 60 motions. We read Colley to apply where a Rule 3008 motion is filed after the ten day period during which appeals are permitted. For reasons stated below, we hold that a Rule 3008 motion filed within the ten day period is in fact analogous to a Rule 9023, or Fed.R.Civ.P. 59 motion. Under Bankruptcy Rule 8002(a), a notice of appeal to a district court from a bankruptcy court’s judgment must be filed within ten days. This requirement is jurisdictional and cannot be waived. Matter of Texas Extrusion Corp., 844 F.2d 1142, 1154 (5th Cir.1988). Bankruptcy Rule 8002(b), however, provides that certain timely motions filed with the bankruptcy court extend the ten day period for appeals. The rule provides, in pertinent part, that: (b) Effect of motion on time for appeal. If a timely motion is filed in the bankruptcy court by any party: * * * (3) under Rule 9023 to alter or amend the judgment; or (4) under Rule 9023 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. Colley involved a motion for reconsideration filed after the ten day period provided for appeals by Fed.R.Bank.P. 8002(a). Recognizing the important interest in the" }, { "docid": "5169893", "title": "", "text": "filing a motion to alter or amend, not styled as a motion to reconsider. The Seventh Circuit Court of Appeals has instructed courts to treat all substantive post-judgment motions filed within ten days of judgment under Rule 59. Charles v. Daley, 799 F.2d 343 (7th Cir.1986). Motions made thereafter are considered under the provisions of Rule 60 of the Federal Rules of Civil Procedure, as adopted by Bankruptcy Rule 9024. Because both motions at bar were filed within ten days of the judgment, the procedural standards and authorities construing Rules 59 and 9023 control rather than the inappo-site authorities pursuant to Rules 60 and 9024. Motions made under Rule 59 serve to correct manifest errors of law or fact, or to consider the import of newly discovered evidence. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557 (7th Cir.1985); Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984); F/H Industries, Inc. v. National Union Fire Ins. Co., 116 F.R.D. 224, 226 (N.D.Ill.1987). The function of a motion made pursuant to Rule 59(e) is not to serve as a vehicle to relitigate old matters or present the case under a new legal theory. Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986); Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D.Ill.1976); In re BNT Terminals, Inc., 125 B.R. 963, 976-977 (Bankr.N.D.Ill.1990). The purpose of a motion to alter or amend “is not to give the moving party another ‘bite at the apple’ by permitting the arguing of issues and procedures that could and should have been raised prior to judgment.” BNT Terminals at 977. “A motion brought under Rule 59(e) is not a procedural folly to be filed by a losing party who simply disagrees with the decision; otherwise, the Court would be inundated with motions from dissatisfied litigants.” Id. Bellwood also seeks relief under section 502(j) and Bankruptcy Rule 3008. Section 502(j) provides in relevant part that “[a] claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed" }, { "docid": "4787785", "title": "", "text": "in fact analogous to a Rule 9023, or Fed.R.Civ.P. 59 motion. Under Bankruptcy Rule 8002(a), a notice of appeal to a district court from a bankruptcy court’s judgment must be filed within ten days. This requirement is jurisdictional and cannot be waived. Matter of Texas Extrusion Corp., 844 F.2d 1142, 1154 (5th Cir.1988). Bankruptcy Rule 8002(b), however, provides that certain timely motions filed with the bankruptcy court extend the ten day period for appeals. The rule provides, in pertinent part, that: (b) Effect of motion on time for appeal. If a timely motion is filed in the bankruptcy court by any party: * * * (3) under Rule 9023 to alter or amend the judgment; or (4) under Rule 9023 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. Colley involved a motion for reconsideration filed after the ten day period provided for appeals by Fed.R.Bank.P. 8002(a). Recognizing the important interest in the finality of judgments, we treated Colley’s motion as a motion for relief from judgment pursuant to Rule 9024, which incorpo rates the restrictions of Fed.R.Civ.P. 60 with certain limited exceptions. Fed.R. Bank.P. 9024. See also In re W.F. Hurley, 612 F.2d at 396 n. 4 (“Rule 60(b) supplies the applicable standards for reconsideration of claims by a bankruptcy judge after the time for appeal from the underlying order has elapsed.’’) (emphasis added). Accordingly, we found that the grounds for relief were limited to those provided for in Rule 60 (i.e. mistake, fraud, newly discovered evidence, etc.), and that the appeal from the denial of that motion brought up for review only the order of denial itself and not the underlying judgment. See Browder v. Director, Dept. of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Matter of Ta Chi Navigation Corp., 728 F.2d 699, 703 (5th Cir. 1984). In the instant case, Abraham filed a motion for reconsideration within the ten day period provided for appeals" }, { "docid": "5169892", "title": "", "text": "matter.” Memorandum Opinion at pp. 139-40. In addition, the Trustee takes exception to the Court’s finding that he was barred from objecting to Bellwood’s proof of claim under the doctrine of res judicata. The Trustee asserts that these two findings are erroneous and conflict with the plain language of the Settlement Agreement, the intention of the parties and established principles of res judicata. Bellwood asserts that the Trustee has failed to point to any manifest error of law or fact or present any newly discovered evidence. In addition, Bellwood contends that the motion revisits arguments already addressed and decided by the Court. III. APPLICABLE STANDARDS “Motions to reconsider” are not formally designated by either the Federal Rules of Bankruptcy Procedure or Federal Rules of Civil Procedure, except as provided in Bankruptcy Rule 3008 which allows reconsideration of orders allowing or disallowing claims against the estate. Rule 59(e) of the Federal Rules of Civil Procedure, as adopted by Bankruptcy Rule 9023, permits a party to move the court to alter or amend a judgment entered by filing a motion to alter or amend, not styled as a motion to reconsider. The Seventh Circuit Court of Appeals has instructed courts to treat all substantive post-judgment motions filed within ten days of judgment under Rule 59. Charles v. Daley, 799 F.2d 343 (7th Cir.1986). Motions made thereafter are considered under the provisions of Rule 60 of the Federal Rules of Civil Procedure, as adopted by Bankruptcy Rule 9024. Because both motions at bar were filed within ten days of the judgment, the procedural standards and authorities construing Rules 59 and 9023 control rather than the inappo-site authorities pursuant to Rules 60 and 9024. Motions made under Rule 59 serve to correct manifest errors of law or fact, or to consider the import of newly discovered evidence. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557 (7th Cir.1985); Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984); F/H Industries, Inc. v. National Union Fire Ins. Co., 116 F.R.D. 224, 226 (N.D.Ill.1987). The function of a" }, { "docid": "10191171", "title": "", "text": "reason, the IRS has not chosen this avenue to attack the confirmation order. 2. Motion to Alter or Amend Order (Motion to Reconsider) A motion to alter or amend the confirmation order is available, in appropriate circumstances, under Rule 59(e) of the Federal Rules of Civil Procedure, incorporated by reference in Bankruptcy Rule 9023. Insofar as a motion to reconsider or a motion for rehearing is available under the Federal Rules of Civil Procedure or the Bankruptcy Rules (except a motion to reconsider a claim for cause under Bankruptcy Rule 3008), it must be brought under Rule 59(e). Such a motion must be served no later than 10 days after entry of the judgment or order. The IRS makes no attempt to invoke this rule as to the confirmation order in this case, because the 10 day time limit ran in 1984. 3. Motion to Dismiss Bankruptcy Code § 1307(c) authorizes a creditor to move to dismiss a Chapter 13 case or to convert it to a case under Chapter 7 of the Bankruptcy Code for “cause”. While “cause” is partially defined in section 1307(c), none of the specific provisions applies to a post-confirmation attack on a confirmation order. In two cases the court has dismissed a Chapter 13 case after confirmation for cause, pursuant to Bankruptcy Code § 1307(c), where the debtor was ineligible to be a debtor under Chapter 13, but this fact was not brought to the court’s attention at the time of confirmation. In re Koehler, 62 B.R. 70 (Bankr.D.Neb.1986) (dismissed for lack of jurisdiction); Mercantile Holdings v. Dobkin (In re Dobkin), 12 B.R. 934 (Bankr.N.D.Ill.1981). No eligibility issue is raised by the IRS in this case. 4. Correction of Clerical Error Finally, a party may move to correct a clerical mistake in a judgment or order pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, which is incorporated by reference in Bankruptcy Rule 9024(a). The IRS does not claim a clerical error by the Court in this case, and it seeks no relief under this rule. V. CONCLUSION The Court concludes that, while" }, { "docid": "12720561", "title": "", "text": "2001, $391.19 on September 17, 2001 and $408.77 on October 16, 2001. . FMCC Exhibit 8 was introduced at the February 27, 2002 hearing. This exhibit — which appears to have been prepared on June 23, 1998 — is a copy of an internal FMCC Bankruptcy Review Report on the Rayborn account. It shows, among other things, that the matter was “assigned to Bill Howell” on June 24, 1998. . FMCC’s motion to reconsider the Court's January 10, 2002 order was filed over 10 days later on January 22, 2002. There is no time limit in Bankruptcy Rule 3008 governing when a motion to reconsider an order allowing or disallowing a claim must be filed. See Fed. R. Bankr.P. 3008. Rule 9023 says that Federal Rule of Civil Procedure 59' — which continues a 10-day limit for filing motions to vacate judgments — governs in cases under the Code \"except as provided in Rule 3008.\" The Advisory Committee Notes to Rule 9023 clearly say that Rule 3008 does not contain a 10 day time limit like Federal Rule of Civil Procedure 59. Moreover, it has been held that a claim may be reconsidered for \"cause” even after confirmation. In re Zieder, 263 B.R. 114, 117 (Bankr.D.Ariz.2001) (citing In re International Yacht & Tennis Inc., 922 F.2d 659, 662 n. 5 (11th Cir.1991)) (other citation omitted). And, debtors do not argue that FMCC's motion is untimely. Furthermore, assuming Rule 9006(f) applies, FMCC had until January 23 to file the motion even if Rule 3008 did have a 10-day limit, which it does not. Thus, there is no issue concerning the timeliness of FMCC's motion. . The Fifth Circuit has “likened the 'cause’ standard found in section 502(j) with the substantive requirements of Bankruptcy Rule 9024 and Rule 60(b) of the Federal Rules of Civil Procedure.” Coffman, 271 B.R. at 498 (citing In re Colley, 814 F.2d 1008, 1010-11 (5th Cir.1987)). The Eleventh Circuit appears to endorse the approach taken by the Fifth Circuit in Colley. See International Yacht & Tennis, 922 F.2d at 662 (citing Colley). .It has been held that" }, { "docid": "13239692", "title": "", "text": "two-step process. First, a court must decide whether there is ‘cause’ for reconsideration. Then, the court must decide whether the ‘equities of the case’ dictate allowance or disallowance of the claim.” In re Durham, 329 B.R. 899, 903 (Bankr.M.D.Ga.2005) (citing In re Rayborn, 307 B.R. 710, 720 (Bankr.S.D.Ala.2002)). In determining whether cause exists under Bankruptcy Rule 3008, courts look to Fed.R.Bankr.P. 9023 and 9024 which incorporate Fed.R.Civ.P. 59 and 60. See U.S. v. Levoy (In re Levoy), 182 B.R. 827 (9th Cir. BAP 1995); In re Colley, 814 F.2d 1008, 1010 (5th Cir.1987); In re W.F. Hurley Inc., 612 F.2d 392, 396 n. 4 (8th Cir.1980). The burden of showing that there is cause for reconsideration is on the movant. See Cassell v. Shawsville Farm Supply, Inc., 208 B.R. 380, 382 (W.D.Va.1996) (courts “cannot permit reconsideration absent a showing of cause”). United Student Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204 (9th Cir. BAP 2006) sets out the generally accepted relationship between Rule 3008 and Rules 9023 and 9024. It states: When a motion is filed pursuant to Rule 3008 within the 10-day [now 14-day] period to appeal the original order allowing or disallowing the claim, the motion is analogous to a motion for a new trial or to alter or amend the judgment pursuant to FRCP 59 as incorporated by Rule 9023. See Abraham v. Aguilar (In re Aguilar), 861 F.2d 873, 874-75 (5th Cir.1988). When reconsideration under Rule 3008 is sought after the 10-day [now 14-day] appeal period has expired, the motion is subject to the constraints of FRCP 60(b) as incorporated by Rule 9024. In re Aguilar, 861 F.2d at 874-75; S.G. Wilson Co. v. Cleanmaster Indus., Inc. (In re Cleanmaster Indus., Inc.), 106 B.R. 628, 630 (9th Cir. BAP 1989). Thus, a motion under FRCP 59, which must be filed prior to the expiration of the 10-day [now 14-day] appeal period, may seek a reconsideration of the correctness and merits of the trial court’s underlying judgment. See, e.g., Osterneck v. Ernst & Whinney, 489 U.S. 169, 174-77, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989)." }, { "docid": "5450451", "title": "", "text": "chapter 7 discharge may be revoked upon the motion of a debtor filed pursuant to Federal Rule of Civil Procedure (“FRCP”) 59(e) and/or 60(b), as incorporated into Federal Rules of Bankruptcy Procedure (“FRBP”) 9023 and 9024. Id. at 680. After weighing the factors, the court denied the debtor’s request to vacate the discharge. In Tuan Tan Dinh, the debtor sought to vacate his discharge when he learned that his educational loan was not dischargeable. The debtor cited two cases where the courts va cated discharges to allow for the approval of post-discharge reaffirmation agreements. See Long, 22 B.R. at 152; In re Solomon, 15 B.R. 105, 106 (Bankr.E.D.Pa.1981). The debtor also argued that FRCP 59(e) and 60(b) allow for reconsideration of any order, including a discharge order. Tuan Tan Dinh, 90 B.R. at 744-45. The court stated that “the finality of a discharge order must be accorded special consideration. In that sense, it is like a confirmation order in a Chapter 11, 12, or 13 case, which will not be vacated for even the clearest of equitable grounds.” Id. at 745 (citations omitted). The Tuan Tan Dinh court then determined that the equitable considerations for vacating default judgments in the context of a FRCP 59(e) or 60(b) motion were applicable. Id. at 744-45. The court held that when prejudice to the parties and the debt- or’s lack of culpability in allowing the order to be entered tip sharply in favor of the debtor, the bankruptcy court has the power to vacate a discharge order. Id. at 746. Weighing these considerations, the court denied the debtor’s request. Id. at 747. In its November 17, 1995 order, the bankruptcy court considered the Jones and Tuan Tan Dinh eases and decided not to follow the minority view as expressed in these cases, because the United States Supreme Court in Ron Pair instructed the lower courts to enforce the plain language of a statute. Additionally, the bankruptcy court determined that it must exercise its equitable powers within the confines of the Code. See Order of Nov. 17, 1995 at 2 (“There are two cases" }, { "docid": "4759422", "title": "", "text": "agreements. In re Long, 22 B.R. 152 (Bankr.D.Me.1982); and In re Solomon, 15 B.R. 105 (Bankr.E.D.Pa.1981). Further, he argues that F.R.Civ.P. 59(e) and 60(b) allow reconsideration of any order, and that this should allow us to vacate the discharge order in issue here. See Long, supra, 22 B.R. at 154 (F.R.Civ.P. 60(b) allows vacation of discharge order). Cf. In re Moseley, 74 B.R. 791, 804 (Bankr.C.D.Cal.1987) (court states, in dictum, that a fnotion to alter or amend a confirmation order might be appropriate in certain circumstances). But see, Fischer, supra, 72 B.R. at 114; and Gruber, supra, 22 B.R. at 770 (discharge order is not analogous to a judgment, and is therefore not subject to relief under F.R.Civ. 59 or 60). There is a distinction between motions filed pursuant to F.R.Civ.P. 59(e), as opposed to those filed pursuant to F.R.Civ.P. 60(b). A Rule 59(e) motion must be served in timely fashion, which the Debtor here did accomplish, giving him the potential to invoke either procedural rule. See, e.g., Smith v. Evans, 853 F.2d 155, 157-62 (3d Cir.1988); and In re Campfire Shop, Inc., 71 B.R. 521, 523-24 (Bankr.E.D.Pa.1987). A Rule 59(e) motion is available to correct a broad range of alleged errors, including a “relitigatpon] [of] the original issue,” Smith, supra, at 158, or a correction of “judicial errors,” otherwise confined to appeals. Campfire Shop, 71 B.R. at 524. A Rule 60(b) motion, on the other hand, contemplates relief on the basis of a mistake, inadvertence, excusable neglect, or newly-discovered evidence by a party, or “any other reason.” However, such a motion does not, generally, empower the court to change its decision if it believes, after submission of the motion, that it has simply erred on legal grounds. See Smith, at 158-59; and 7 J. MOORE, FEDERAL PRACTICE, ¶ 60.22[2], at 60-175 to 60-185 (2d ed. 1988). We believe that the finality of a discharge order must be accorded special consideration. In that sense, it is like a confirmation order in a Chapter 11, 12, or 13 case, which will not be vacated for even the clearest of equitable grounds," }, { "docid": "4787787", "title": "", "text": "by Fed.R.Bank. P. 8002(a). The policy considerations which led us to construe Colley’s motion as a Rule 9024 motion are not present here. The Ninth Circuit has held that a motion to reconsider is a motion to amend the judgment within the meaning of Rule 8002(b)(3), which extends the ten day period for appeal where a timely Rule 9023 motion has been filed. In re Branding Iron Steak House, 536 F.2d 299, 300-01 & n. 1 (9th Cir.1976) (discussing previous Rules 307, 802 and 923, which correspond to present Rules 3008, 8002, and 9023). Accord In re Ambassador Park Hotel, 61 B.R. 792, 796 (N.D.Tex.1986). We likewise hold that a motion to reconsider, brought before the time to appeal has expired, is more properly treated as a Rule 9023 motion which tolls the ten-day period for appeals. We see no useful purpose in requiring an appeal to be filed where a motion for reconsideration, which may obviate the need for an appeal, has been brought within the time period to take an appeal. Because the district court construed Abraham’s motion to reconsider as a Rule 9024 motion for relief from judgment rather than a Rule 9023 motion to amend judgment, we REVERSE the district court’s ruling and REMAND the case to the district court to allow it to address the merits of the underlying judgment discharging all interest from Aguilar’s debt to Abraham. REVERSED AND REMANDED. . The motion for reconsideration at issue in In re Branding Iron Steak House was brought during the period in which to take an appeal. . Bankruptcy Rule 9023 incorporates Fed.R.Civ. P. 59 “except as provided in Rule 3008.” Fed.R. Bank.P. 9023. The Advisory Committee Note to Rule 9023 notes that while Rule 59 motions must be served within the ten day period provided for appeals, \"[n]o similar time limit is contained in Rule 3008 which governs reconsideration of claims.” See 11 U.S.C.A. Bankruptcy Rule 9023 (1984) (Advisory Comm. Note). Although our decision in Colley provides that Rule 3008 motions brought after the ten day period for appeal will be construed as Rule 9024" }, { "docid": "208733", "title": "", "text": "and 9023) and Rule 59(e) of the Federal Rules of Civil Procedure. Rule 9023 (new trials and amendments of judgments) states that Rule 59 of the Federal Rules applies except as provided in Rule 3008 (Reconsideration of Claims). Federal Rule 59(e) states that a motion to alter or amend a judgment shall not be made later than 10 days after its entry. The 10 day limitation which applies to appeals and would stay the time in which to appeal does not apply to reconsideration of claims. The comments to Rule 9023 state that under Federal Rule 59, the motion must be made within 10 days but that no similar time limit is contained in Rule 3008. The comments to Rule 3008 state that whereas 11 U.S.C. § 502(j) permits reconsideration of allowed claims only before a case is closed, no such limitation exists under Rule 3008. Authorities disagree as to whether reconsideration may be had after a case is reopened. The IRS motion was first made here on May 9, 1983 and amended May 25, 1983. There is no extension of time for the United States to move for reconsideration as in the time in which to appeal under Federal Rules of Appellate Procedure (4). Therefore, the motion for reconsideration may come under Rule 3008 which permits it until the closing of the case. The Bankruptcy Rules contemplated the power of the Bankruptcy Court to reconsider its orders, notwithstanding any power of appeal, beyond the 10 day limit. Rule 9024 (Relief From Judgment or Order) adopts Federal Rule 60 in permitting relief from judgment on showing of (1) mistake, excusable neglect, (2) newly discovered evidence, (3) fraud, etc. Rule 60 permits such relief only within a year. Rule 9024 states that a motion to reconsider an order allowing or disallowing a claim made without contest is not subject to the one year limitation. Another Bankruptcy Rule which contemplates reconsideration by the Bankruptcy Court notwithstanding any right of appeal is B.R. 7055 which adopts Federal Rule 55. Federal Rule 55(c) states that for good cause, the Court may set aside the" }, { "docid": "14470673", "title": "", "text": "Rule 60(b) to support its argument that as a matter of law Rule 60(b) relief in the instant case constituted a request for injunctive relief under § 105. Indeed, the dissent fails to recognize the determinative distinction between a Rule 60(b) motion to vacate an order lifting the stay and a request to reimpose the automatic stay under 11 U.S.C. § 105(a). .See Metmor Fin., Inc. v. Bailey (In re Bailey), 111 B.R. 151, 152-53 (W.D.Tenn.1988) (affirming bankruptcy court's order granting debtor's Rule 9024 and Rule 60(b)(6) motion to vacate an order lifting the automatic stay); Ramirez v. Whelan (In re Ramirez), 188 B.R. 413, 416 (9th Cir. BAP 1995) (“Occasionally, it might suffice to revive the stay by way of motion for reconsideration under Federal Rules of Civil Procedure 59(e) or 60(b), which are applicable in bankruptcy by virtue of Federal Rules of Bankruptcy Procedure 9021 and 9023 [sic].\") (Klein, J., concurring); In re AL & LP Realty Co., 164 B.R. 231, 232-34 (Bankr.S.D.N.Y.1994) (recognizing that under Rules 9024 and 60(b)(6) debtor properly filed motion seeking relief from consent order modifying the automatic stay); In re Fuller, 111 B.R. 660, 661-63 (Bankr.S.D.Ohio 1989) (holding that a \"motion to reinstate automatic stay” was properly filed under Rules 9024 and 60(b) as a motion to vacate a default order lifting the automatic stay); In re Keul, 76 B.R. 79, 82 (Bankr.E.D.Pa.1987) (\"[A]n order granting relief from stay is subject to being altered or vacated pursuant to Fed.-R.Civ.P. 60(b)(6) and Bankr. Rule 9024.”); In re Kanuika, 76 B.R. 473, 477-78 (Bankr.E.D.Pa.1987) (allowing debtor to file a motion under Rules 9024 and 60(b) for relief from an order lifting the automatic stay); Commonwealth of Pennsylvania State Employes’ Retirement Fund v. Durkalec (In re Durkalec), 21 B.R. 618, 619-20 (Bankr.E.D.Pa.1982) (granting Chapter 7 debtor’s motion under Rule 60(b)(6) to vacate an order lifting the automatic stay due to changed circumstances). . Because we conclude that the Bankruptcy Rules permit a party to seek Rule 60(b) relief from an order lifting the automatic stay — thereby “reviving” the automatic stay- — we reject State Bank's" }, { "docid": "4734844", "title": "", "text": "is now estopped from raising these argument. In addition, the Debtor invokes Federal Rule of Bankruptcy Procedure 9011. He maintains that the pleadings filed in this adversary proceeding are not well-grounded in fact, and thus violate Bankruptcy Rule 9011. The Debtor seeks undisclosed attorney’s fees and costs incurred during the course of this adversary proceeding. III. APPLICABLE STANDARDS The Seventh Circuit Court of Appeals has instructed courts to treat all sub stantive post-judgment motions, regardless of their captions, if filed within ten days of judgment, under Federal Rule of Civil Procedure 59. U.S. v. Deutsch, 981 F.2d 299, 301 (7th Cir.1992); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 957 F.2d 515, 517 (7th Cir.1992), cert. denied, 113 S.Ct. 91 (1992); Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986). Motions made thereafter are considered under the provisions of Rule 60 of the Federal Rules of Civil Procedure, as adopted by Bankruptcy Rule 9024. Because the motion to amend the judgment was served on November 8, 1993, within ten days of the entry of the judgment, the procedural standards and authorities construing Rules 59 and 9023 control rather than the authorities under Rules 60 and 9024. Motions made under Rule 59 serve to correct manifest errors of law or fact, or to consider the import of newly discovered evidence. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557 (7th Cir.1985); Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984); F/H Industries, Inc. v. National Union Fire Ins. Co., 116 F.R.D. 224, 226 (N.D.Ill.1987). The function of a motion made pursuant to Rule 59(e) is not to serve as a vehicle to relitigate old matters or present the ease under a new legal theory. Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986); Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D.Ill.1976); In re BNT Terminals, Inc., 125 B.R. 963, 976-977 (Bankr.N.D.Ill.1990). The purpose of a motion to alter or amend “is not to give the moving party another ‘bite at the apple’ by" } ]

[ { "docid": "5506490", "title": "", "text": "SKOPIL, Circuit Judge: Citicorp Mortgage, Inc. (“Citicorp”) appeals the denial of its request for attorney’s fees and costs expended in protecting its lien in a forfeiture action brought by the United States pursuant to 21 U.S.C. § 881(a)(7) (1988). In its lienholder claim, Citicorp requested interest, attorney’s fees and costs incurred in defending the forfeiture. The government offered to pay principal and interest to the date of sale but refused to pay attorney’s fees and costs. The district court granted the government’s motion for judgment on the pleadings, holding that Citicorp was not entitled to recover attorney’s fees. We conclude that an innocent lienholder has a right to recover attorney’s fees and costs provided that its right to recover is secured by the mortgage or deed of trust. We vacate and remand for further proceedings. DISCUSSION Section 881(a)(7) provides that real property used to facilitate a felony drug transaction shall be forfeited to the United States. The statute contains an innocent owner exception, which provides that “no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowl edge or consent of that owner.” 21 U.S.C. § 881(a)(7) (emphasis added). The statute does not define “the extent of an interest of an owner.” Citicorp argues that its “interest” should be defined by the terms in the note and deed of trust and that it is entitled to recover attorney’s fees because its deed of trust predated the illegal activity and the deed provides for recovery of attorney’s fees and costs. The government does not dispute that Citicorp is an innocent lienholder and as such, is an “owner” under section 881. It also does not dispute that Citicorp is entitled to post-seizure interest. Rather, the government contends that Citicorp is not entitled to attorney’s fees and costs because they were not incurred until after the government seized the property. The government reasons that because title vests in the government at the time of the illegal act," } ]

[ { "docid": "5506498", "title": "", "text": "with federal law or stands as an obstacle to achieving federal objectives. Chemical Specialties Mfrs. Ass’n, Inc. v. Allenby, 958 F.2d 941, 943 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 80, 121 L.Ed.2d 44 (1992). Here, Congress did not define an “interest” to include or exclude attorney’s fees. Thus, section 881 does not expressly conflict with state law and no such intent can be inferred from the structure of the federal forfeiture statute. Allowing an award of attorney’s fees to an innocent lienholder does not stand as an obstacle to federal objectives. Finally, the government raises issues of sovereign immunity and statutory bars to the recovery of attorney’s fees. These issues were not raised in the district court, and we decline to address them for the first time on appeal. See Bolker, 760 F.2d at 1042. CONCLUSION The district court erred in holding that subsection 881(a)(7) does not allow an innocent lienholder to recover attorney’s fees. Therefore, we reverse and remand to allow the district court to determine whether Citi-corp’s right to recover attorney’s fees and costs is secured by the deed of trust, and if so, to determine a reasonable award of fees and costs. REVERSED and REMANDED. . Paragraph 11 of Citicorp's deed of trust grants it the right to \"appear in and defend any action or proceeding purporting to affect the security” and to receive payment of “all costs and expenses, including cost of evidence of title and attorney’s fees in a reasonable sum.\" Paragraph 16 provides that if the property or any part is taken, Citicorp is entitled to receive \"all compensation, awards, and other payments or relief therefor, and shall be entitled at its option to commence, appear in and prosecute in its own name, any action or proceedings ... in connection with such taking or damage. All such ... proceeds ... are hereby assigned to Beneficiary, who may after deducting therefrom all its expenses, including reasonable attorney’s fees, apply any moneys so received by it ... .to the reduction of the indebtedness.” . The government’s reliance on In re Newport Sav. and" }, { "docid": "8014799", "title": "", "text": "tracts with drug money) rather than at the date of seizure. However, under the administrative practice followed prior to the enactment of Subsection (a)(6) and still followed with regard to forfeitures under other sections, the government has chosen to afford lienholders greater protection than they are entitled to under Stowell. In ruling on petitions for remission and mitigation, the Department of Justice has consistently taken the position that a lienholder’s interest is cut off as of the date of the seizure. Thus, a lienholder is entitled to accumulated and unpaid principal and interest up to the date of seizure and the remainder of the principal owed; however, the lienholder is not entitled to interest or other, charges that accrue after the date of seizure. See 28 C.F.R. 9.2(d). Of course, these regulations apply to property that is concededly forfeitable and concerning which relief from forfeiture is a matter of executive grace, whereas the interest protected in Section 881(a)(6) is now statutorily exempt from forfeiture. Nevertheless, this administrative practice has been in effect for many yéars, and Congress’ failure to advert to it or provide some specific guideline supporting a different interpretation when enacting Section 881(a)(6) is persuasive evidence that Congress intended that innocent owners and lienholders were to receive the same financial protection under the statute that they had received for years in the administration process. See Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965). Certainly, Congress has the power to determine how property forfeited under 21 U.S.C. § 881 is to be distributed. It could provide for the payment of post-seizure interest and attorney’s fees if it so desired. However, until Congress does so, this Court will not assume that it intended to do so. This conclusion is further bolstered by an examination of other provisions in Section 881. Subsection (a)(4) authorizes forfeiture of conveyances used to transport drugs. The purchase of many such conveyances is financed in whole or in part by lienholders who have as great a claim to innocence as lienholders given specific statutory protection in Subsection (a)(6). However," }, { "docid": "5506495", "title": "", "text": "Drive, 949 F.2d at 376-77; Federal Nat’l Mortgage Ass’n, 946 F.2d at 267; Six Parcels, 920 F.2d at 799. The government also raises several other arguments, none of which is persuasive. The government first contends that the “interest” of an innocent lienholder under subsection 881(a)(7) is the amount allowed by the government under its administrative practices for remissions. See United States v. Gulfstream West, 710 F.Supp. 792, 796 (S.D.Fla.1989). The current regulation allows recovery of post-seizure interest, but does not allow recovery of attorney’s fees or other similar charges. 28 C.F.R. § 9.2(h) (1991). We reject the government’s contention. Gulfstream West was disapproved by the Eleventh Circuit in Six Parcels, 920 F.2d at 799. Moreover, we agree with the Fourth Circuit’s analysis in rejecting a similar argument with reference to subsection 881(a)(6). In re Metmor Financial, Inc., 819 F.2d 446, 449 n. 6 (4th Cir.1987). There, the court reasoned that there was no indication Congress was aware of the administrative practices for remissions. Even assuming that Congress was aware of those practices, we agree with the Fourth Circuit that Congressional approval cannot be inferred when the legislative history makes it clear that the 1978 amendment to subsection 881(a)(6) was intended to expand the rights of innocent parties. Id.; see 124 Cong.Rec. 36,948 (1978); 124 Cong.Rec. 36,946 (1978); 124 Cong.Rec. 34,672 (1978); 124 Cong.Rec. 23,-056-057 (1978). The government next argues that attorney’s fees are merely expenses required to protect an interest and do not constitute an interest in the property. See United States v. One 1989 Harley Davidson Motorcycle, 743 F.Supp. 589, 591-92 (C.D.Ill. 1990); United States v. 708-710 West 9th Street, 715 F.Supp. 1323, 1326 (W.D.Pa. 1989). That argument might be persuasive when the right to recover attorney’s fees is not secured by the property. See One 1989 Harley Davidson, 743 F.Supp. at 591-92. We do not. reach that issue because Citi-corp’s entitlement to recover attorney’s fees under its deed of trust has not yet been litigated in district court. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985). We note, however, that the court in One 1989 Harley" }, { "docid": "6155079", "title": "", "text": "MORGAN, Senior Circuit Judge: INTRODUCTION This civil forfeiture action was brought against the defendant property on August 29, 1988, pursuant to § 511(a)(6) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a)(6). Intervenor-Appellant First Tennessee Bank National Association (hereinafter “the Bank”) moved to intervene based upon its interest in three parcels of the defendant property. The Bank sought to recover amounts owing on promissory notes secured by a deed of trust on the three parcels. The district court found the Bank to be an “innocent owner” under § 881(a)(6). The court held that the Bank should recover the unpaid principal balance on the notes, plus interest. The notes on which the Bank recovers, however, provide additionally for payment of attorneys’ fees and other costs. The district court held that the Bank could not recover attorneys’ fees and costs, despite this provision in the notes. This part of the judgment below we reverse. DISCUSSION The Bank’s status as an innocent lien-holder is not disputed by the government. The only issue before this Court is whether the “interest” of an innocent lienholder in real property that is protected by § 881(a)(6) extends to attorneys’ fees and costs of collection for which the loan documents provide. The government argues it does not. It advances several theories to this Court to suggest how we should define the lienholder’s interest. The government states correctly that the forfeiture statute does not provide attorneys’ fees for innocent owners. It notes that Congress was more concerned about seeing that the government satisfied its costs of forfeiture from the proceeds of forfeited property than about providing for the innocent owner’s cost of defense. The government argues that the lienholder’s interest should be determined by reference to an administrative remission and mitigation practice followed prior to amendments which added § 811(a)(6) and provided for the innocent owner exception here at issue. It is true that this issue has not been decided before by this Court. The district courts, lacking guidance in construing § 881(a)(6), have resolved this issue in varying ways. Compare United States" }, { "docid": "8014800", "title": "", "text": "and Congress’ failure to advert to it or provide some specific guideline supporting a different interpretation when enacting Section 881(a)(6) is persuasive evidence that Congress intended that innocent owners and lienholders were to receive the same financial protection under the statute that they had received for years in the administration process. See Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965). Certainly, Congress has the power to determine how property forfeited under 21 U.S.C. § 881 is to be distributed. It could provide for the payment of post-seizure interest and attorney’s fees if it so desired. However, until Congress does so, this Court will not assume that it intended to do so. This conclusion is further bolstered by an examination of other provisions in Section 881. Subsection (a)(4) authorizes forfeiture of conveyances used to transport drugs. The purchase of many such conveyances is financed in whole or in part by lienholders who have as great a claim to innocence as lienholders given specific statutory protection in Subsection (a)(6). However, “(a)(4)” lienholders are not protected by statute and may only seek relief through a petition for remission or mitigation. It would be unreasonable to conclude that Congress intended that innocent lienholders with an interest in real property purchased with drug proceeds are entitled to greater financial protection than other innocent lienholders with an interest in an automobile. It would appear that Congress merely intended to provide procedural protection to “(a)(6)” lienholders by permitting them to seek “pre-forfeiture” relief in court rather than “post-forfeiture” remission relief through the administrative process. Consequently, the Court awards the lien-holder-claimants in these actions no more than the remaining principal due under their notes. The Court denies the lienholder-claimants'any recovery for post-seizure charges. . In its brief, Fleet has requested leave of Court to amend its claim to seek recovery of its attorney’s fees. Such leave is granted. . In fact, Congress is presently considering legislation that would specifically allocate funds forfeited under 21 U.S.C. § 881 to various purposes. See Sections 409 and 410 of S. 829 (98th Congress, 1st" }, { "docid": "6155081", "title": "", "text": "v. Real Property Titled in Name of Shasin, Ltd., 680 F.Supp. 332, 337 (D.Haw.1987) (holding lienholder’s protected interest defined by its loan documents) and United States v. All that Tract & Parcel of Land, 602 F.Supp. 307, 313-14 (N.D.Ga.1985) (same) with United States v. Certain Real Property Known as Gulfstream West, 710 F.Supp. 792, 794-96 (S.D.Fla.1989) (following administrative practice and permitting recovery of only principal balance and pre-seizure interest) and United States v. One Piece of Real Estate, 571 F.Supp. 723, 725-26 (W.D.Tex.1983) (same). We find relevant only one court of appeals case, In re Metmor Financial, Inc., 819 F.2d 446 (4th Cir.1987). In Metmor, on facts similar to those of the instant case, the loan documents provided lien status for interest payments required until the principal balance was fully paid. The Fourth Circuit held that to deny post-seizure interest would be a deprivation of the innocent lienholder’s rights in forfeited property. Id. at 449-51. We believe the Fourth Circuit was correct in reaching this conclusion. The legislative history of the 1978 amendments, thoroughly reviewed in Metmor, id., strongly supports this result. Cf. United States v. One Single Family Residence, 894 F.2d 1511 (11th Cir.1990). Relying on Metmor and legislative history, this Court held that full protection of an innocent owner’s interest was mandated by Congress and thus the property at issue was completely nonforfeitable because it had been held by the innocent owner spouse as a tenant by the entirety. Id. at 1513-20. Therefore, in this case as well, we believe the bank is entitled to full protection of its interest. Thus, we hold that to deny the Bank its costs and attorneys’ fees, though provided in its loan documents, would be a deprivation of its rights in the forfeited property. We believe such deprivation is not permitted by § 881(a)(6) and was not intended to be allowed by Congress. CONCLUSION To the extent that the court below held that the Bank could not recover its costs and attorneys’ fees, we REVERSE and REMAND for further proceedings." }, { "docid": "8014801", "title": "", "text": "“(a)(4)” lienholders are not protected by statute and may only seek relief through a petition for remission or mitigation. It would be unreasonable to conclude that Congress intended that innocent lienholders with an interest in real property purchased with drug proceeds are entitled to greater financial protection than other innocent lienholders with an interest in an automobile. It would appear that Congress merely intended to provide procedural protection to “(a)(6)” lienholders by permitting them to seek “pre-forfeiture” relief in court rather than “post-forfeiture” remission relief through the administrative process. Consequently, the Court awards the lien-holder-claimants in these actions no more than the remaining principal due under their notes. The Court denies the lienholder-claimants'any recovery for post-seizure charges. . In its brief, Fleet has requested leave of Court to amend its claim to seek recovery of its attorney’s fees. Such leave is granted. . In fact, Congress is presently considering legislation that would specifically allocate funds forfeited under 21 U.S.C. § 881 to various purposes. See Sections 409 and 410 of S. 829 (98th Congress, 1st Session). The only specific allocation now found in 21 U.S.C. § 881 is for payment of the government’s expenses. See 21 U.S.C. § 881(e). . In this connection it is significant that Congressman Rogers stated that the Subsection (a)(6) provision “expands the rights of innocent parties ... to assert their claim in court....” See Congressional Record-House, October 13, 1978, p. H 12790. (Emphasis added.) In other words, the interest protected by Subsection (a)(6) is the same as the interest protected by the Attorney General in forfeitures under Subsection (a)(4); only the avenue by which protection is provided is different. Neither Congressman Rogers nor any other member of Congress made any reference to any right to greater financial recovery under Subsection (a)(6) than was already available through preexisting administrative procedure." }, { "docid": "5506491", "title": "", "text": "the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowl edge or consent of that owner.” 21 U.S.C. § 881(a)(7) (emphasis added). The statute does not define “the extent of an interest of an owner.” Citicorp argues that its “interest” should be defined by the terms in the note and deed of trust and that it is entitled to recover attorney’s fees because its deed of trust predated the illegal activity and the deed provides for recovery of attorney’s fees and costs. The government does not dispute that Citicorp is an innocent lienholder and as such, is an “owner” under section 881. It also does not dispute that Citicorp is entitled to post-seizure interest. Rather, the government contends that Citicorp is not entitled to attorney’s fees and costs because they were not incurred until after the government seized the property. The government reasons that because title vests in the government at the time of the illegal act, a lienholder cannot “acquire a previously non-existent interest, such as attorney’s fees, after the illegal act.” The timing of an expenditure of attorney’s fees does not preclude those fees from constituting an interest in the property under section 881(a) when the right to recover those fees is secured by the property. United States v. 2471 Venus Drive, 949 F.2d 374, 376-77 (10th Cir.1991). The Tenth Circuit rejected a similar argument by the government, holding that the lien-holder’s right to reimbursement is created when the deed of trust is formed. Id. All other circuit courts to have considered this argument have also rejected the government’s position. See United States v. Federal Nat’l Mortgage Ass’n, 946 F.2d 264, 267 (4th Cir.1991), and United States v. Six Parcels of Real Property, 920 F.2d 798, 799 (11th Cir.1991); see also General Elec. Credit Corp. v. The Oil Screw Triton, VI, 712 F.2d 991, 994 (5th Cir.1983) (allowing attorney’s fees and costs as part of ship mortgage debt when authorized in agreement). We also disagree with the government’s characterization of" }, { "docid": "5506494", "title": "", "text": "that statute to mean that the government is not an owner of property before forfeiture has been decreed. United States v. 92 Buena Vista Ave., — U.S. -, -, 113 S.Ct. 1126, 1134, 122 L.Ed.2d 469 (1993) (plurality). The Court concluded: The Government cannot profit from the common-law doctrine of relation back until it has obtained a judgment of forfeiture. And it cannot profit from the statutory version of that doctrine in § 881(h) until respondent has had the chance to invoke and offer evidence to support the innocent owner defense under § 881(a)(6). Id. at-, 113 S.Ct. at 1137. Accordingly, we reject the government’s argument that the vesting of title in the government at the time of the illegal activity precludes Citicorp from recovering attorney’s fees. We hold that if the right to recover attorney's fees and costs is secured by the property, the innocent lien-holder’s right to recover such fees and costs is created when the deed of trust is formed and constitutes an “interest” in property under subsection °881(a)(7). See 24-71 Venus Drive, 949 F.2d at 376-77; Federal Nat’l Mortgage Ass’n, 946 F.2d at 267; Six Parcels, 920 F.2d at 799. The government also raises several other arguments, none of which is persuasive. The government first contends that the “interest” of an innocent lienholder under subsection 881(a)(7) is the amount allowed by the government under its administrative practices for remissions. See United States v. Gulfstream West, 710 F.Supp. 792, 796 (S.D.Fla.1989). The current regulation allows recovery of post-seizure interest, but does not allow recovery of attorney’s fees or other similar charges. 28 C.F.R. § 9.2(h) (1991). We reject the government’s contention. Gulfstream West was disapproved by the Eleventh Circuit in Six Parcels, 920 F.2d at 799. Moreover, we agree with the Fourth Circuit’s analysis in rejecting a similar argument with reference to subsection 881(a)(6). In re Metmor Financial, Inc., 819 F.2d 446, 449 n. 6 (4th Cir.1987). There, the court reasoned that there was no indication Congress was aware of the administrative practices for remissions. Even assuming that Congress was aware of those practices, we agree with" }, { "docid": "21246161", "title": "", "text": "followed by every court of appeals considering the rights of innocent lienholders in property forfeited under the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 881. United States v. One Urban Lot Located at 1 Street A-1, 865 F.2d 427, 430 (1st Cir.1989); United States v. Six Parcels of Real Property, 920 F.2d 798 (11th Cir. 1991); United States v. Real Property Located at 2471 Venus Dr., Los Angeles, Cal., 949 F.2d 374 (10th Cir. 1991); United States v. Real Property Located at 41741 National Trails Way, Daggett, Cal, 989 F.2d 1089, 1092 (9th Cir. 1993). . A forfeiture under the Comprehensive Drug Abuse Prevention and Control Act is similar to a forfeiture under RICO for a takings analysis which applies constitutional rather than statutory principles. . Even if the government had granted the Shel-dens a quitclaim deed on an earlier date, such as the date the Sheldens foreclosed on the property, the government would still be liable for taking the Sheldens’ property interest as of the day Washington's interest transferred to the United States. . The parties raise the issue that the United States has waived its sovereign immunity and consented to be sued in a civil action to adjudicate a disputed title to real property in which the United States claims an interest in the Quiet Title Act, 28 U.S.C. § 2409a (1988). The Act provides an ineffectual remedy for the Sheldens because subsection (b) gives the United States the same power to possess the property that it otherwise enjoys under the doctrine of sovereign immunity. 28 U.S.C. § 2409a (”[I]f the final determination shall be adverse to the United States, the United States nevertheless may retain such possession or control of the real property or of any part thereof as it may elect, upon payment to the person determined to be entitled thereto....”)." }, { "docid": "8014794", "title": "", "text": "recover $36,028.32 in unpaid principal, as well as $1,200.94 in unpaid interest accruing between January 1 and May 1, 1983, $9.87 per day in interest thereafter until the date of sale, $77.63 in escrow shortage, $51.72 in uncollected late charges, and attorney’s fees. Fleet has stipulated that no unpaid interest accumulated before the date of seizure. The government contends that the lien-holders are entitled to their unpaid principal and any unpaid interest charges that might have accrued up to the date of the seizures of the respective parcels. However, the government contends that the lienholders are not entitled to any post-seizure interest, attorney’s fees, or other charges that may be permitted under the notes. The issue of the lienholders’ entitlement to post-seizure interest and other charges has been submitted to the Court. For the following reasons, the Court sustains the government’s position. Historically, the remedy of the innocent holder of a lien interest in property forfeited under Section 881 and other statutes has been to petition the Attorney General of the United States for remission or mitigation, an act of executive clemency. Thus, although innocent lienholders could not prevent forfeiture of their interests, they could request an administrative determination that certain properties be returned or a portion of the proceeds of sale be paid to them. See generally 28 C.F.R. Part 9. In 1978 Congress amended 21 U.S.C. § 881 by adding Subsection (a)(6), which provides in part that all things of value furnished in exchange for a controlled substance and all proceeds traceable to such an exchange are “subject to forfeiture to the United States and no property right shall exist in them ... except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.” This amendment altered the prior practice by making the interest of an innocent “owner” nonforfeitable. Senator Nunn, sponsor of the amendment, stated that the provision was added “to make it clear" }, { "docid": "5506497", "title": "", "text": "Davidson, 743 F.Supp. at 592, based its decision in part on the American rule that requires each party to bear its own costs in the absence of a statutory provision to the contrary. That rationale overlooks the fact that the American rule also permits an award of attorney's fees based on the parties’ contract. Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 446 (9th Cir.1992). The government also argues that attorney’s fees should be denied because section 881 preempts state law rights and remedies. It relies on United States v. 9930 Stevens Road, No. 88-1206-GT(IEG) (S.D.Cal. November 9, 1989), where the lienholder argued that California property law allows the recovery of attorney’s fees if provided for in the deed of trust. The court denied recovery of fees, holding that section 881 preempts “conflicting” state law rights. We respectfully disagree with that conclusion. Preemption may occur when Congress has expressly precluded state legislation, an expression of such intent can be inferred from the structure and purpose of the federal statute, or when state law conflicts with federal law or stands as an obstacle to achieving federal objectives. Chemical Specialties Mfrs. Ass’n, Inc. v. Allenby, 958 F.2d 941, 943 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 80, 121 L.Ed.2d 44 (1992). Here, Congress did not define an “interest” to include or exclude attorney’s fees. Thus, section 881 does not expressly conflict with state law and no such intent can be inferred from the structure of the federal forfeiture statute. Allowing an award of attorney’s fees to an innocent lienholder does not stand as an obstacle to federal objectives. Finally, the government raises issues of sovereign immunity and statutory bars to the recovery of attorney’s fees. These issues were not raised in the district court, and we decline to address them for the first time on appeal. See Bolker, 760 F.2d at 1042. CONCLUSION The district court erred in holding that subsection 881(a)(7) does not allow an innocent lienholder to recover attorney’s fees. Therefore, we reverse and remand to allow the district court to determine whether Citi-corp’s right to recover" }, { "docid": "6155080", "title": "", "text": "before this Court is whether the “interest” of an innocent lienholder in real property that is protected by § 881(a)(6) extends to attorneys’ fees and costs of collection for which the loan documents provide. The government argues it does not. It advances several theories to this Court to suggest how we should define the lienholder’s interest. The government states correctly that the forfeiture statute does not provide attorneys’ fees for innocent owners. It notes that Congress was more concerned about seeing that the government satisfied its costs of forfeiture from the proceeds of forfeited property than about providing for the innocent owner’s cost of defense. The government argues that the lienholder’s interest should be determined by reference to an administrative remission and mitigation practice followed prior to amendments which added § 811(a)(6) and provided for the innocent owner exception here at issue. It is true that this issue has not been decided before by this Court. The district courts, lacking guidance in construing § 881(a)(6), have resolved this issue in varying ways. Compare United States v. Real Property Titled in Name of Shasin, Ltd., 680 F.Supp. 332, 337 (D.Haw.1987) (holding lienholder’s protected interest defined by its loan documents) and United States v. All that Tract & Parcel of Land, 602 F.Supp. 307, 313-14 (N.D.Ga.1985) (same) with United States v. Certain Real Property Known as Gulfstream West, 710 F.Supp. 792, 794-96 (S.D.Fla.1989) (following administrative practice and permitting recovery of only principal balance and pre-seizure interest) and United States v. One Piece of Real Estate, 571 F.Supp. 723, 725-26 (W.D.Tex.1983) (same). We find relevant only one court of appeals case, In re Metmor Financial, Inc., 819 F.2d 446 (4th Cir.1987). In Metmor, on facts similar to those of the instant case, the loan documents provided lien status for interest payments required until the principal balance was fully paid. The Fourth Circuit held that to deny post-seizure interest would be a deprivation of the innocent lienholder’s rights in forfeited property. Id. at 449-51. We believe the Fourth Circuit was correct in reaching this conclusion. The legislative history of the 1978 amendments, thoroughly reviewed" }, { "docid": "5506493", "title": "", "text": "Citicorp’s right to attorney’s fees as a “previously non-existent interest.” The government’s concession that Citicorp is an innocent lienholder means that it agrees that Citicorp obtained an interest in the property before the property became implicated in any illegal activity. The government’s focus on the vesting of the government’s title misses the mark. In United States v. Stowell, 133 U.S. 1, 16-17, 10 S.Ct. 244, 247, 33 L.Ed. 555 (1890), the Supreme Court concluded that when property is subject to forfeiture, the government’s tifie vests in the government at the time the illegal act is committed. The Court noted, however, that the government’s title is not perfected until judicial condemnation. Id. at 17, 10 S.Ct. at 247. The common law relation back doctrine discussed in Stowell is codified in 21 U.S.C. § 881(h) (1988), which provides that “[a]ll right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section.” The Supreme Court has recently interpreted that statute to mean that the government is not an owner of property before forfeiture has been decreed. United States v. 92 Buena Vista Ave., — U.S. -, -, 113 S.Ct. 1126, 1134, 122 L.Ed.2d 469 (1993) (plurality). The Court concluded: The Government cannot profit from the common-law doctrine of relation back until it has obtained a judgment of forfeiture. And it cannot profit from the statutory version of that doctrine in § 881(h) until respondent has had the chance to invoke and offer evidence to support the innocent owner defense under § 881(a)(6). Id. at-, 113 S.Ct. at 1137. Accordingly, we reject the government’s argument that the vesting of title in the government at the time of the illegal activity precludes Citicorp from recovering attorney’s fees. We hold that if the right to recover attorney's fees and costs is secured by the property, the innocent lien-holder’s right to recover such fees and costs is created when the deed of trust is formed and constitutes an “interest” in property under subsection °881(a)(7). See 24-71 Venus" }, { "docid": "22422641", "title": "", "text": "it has seized can be characterized as a forbidden award of pre-judgment interest. For example, where the Government has seized property subject to a mechanic’s lien, the innocent lien holder has been allowed to recover not only the basic amount of his lien, but also the costs normally allowed under state law, including statutory interest. See United States v. 1980 Lear Jet, Model 35A, Serial Number 277, 38 F.3d 398, 402 (9th Cir.1994) (holding that Government is “only entitled to receive the sum attributable to that portion of the property that was lawfully forfeited”). Similarly, we do not view the award of interest in this case as the typical award of prejudgment interest which cannot be recovered absent an express waiver of sovereign immunity; rather, we view this award of interest as an aspect of the seized res to which the Government is not entitled as it did not succeed in its forfeiture action. See $277,000, 69 F.3d at 1493; see also United States v. 92 Buena Vista Ave., 507 U.S. 111, 124, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993) (holding that the Government is not an owner of property before forfeiture has been decreed). In short, there is no issue of sovereign immunity because the Government is not being asked to pay interest, but to disgorge property that was not forfeited. See 1980 Lear Jet, 38 F.3d at 402. Thus, while sovereign immunity prevents a simple claim for pre-judgment interest, the Government may not always profit from the seizure of property which is ultimately returned to the owner. In $277,000, the Ninth Circuit addressed the issue of the extent to which an owner of seized property, to which a court has held that the Government has no claim, may recover the Government’s profit from the use of the seized property during a time that the court determines that the Government had no right to retain it. The Ninth Circuit decided that seized funds deposited in the United States Treasury \"should be considered as constructively earning interest at the government's alternative borrowing rate at all times\" until a judgment is" }, { "docid": "74218", "title": "", "text": "the property. As to the Fifth Amendment issue, the Bank argues that, because 26 U.S.C. § 7425 and 28 U.S.C. § 2410 permit the United States to acquire property from a purchaser at a foreclosure sale for less than, its fair market value, redemptions under those sections constitute takings of private property without just compensation. The government responds by asserting that the Bank’s argument begs the question. What property the Bank acquired at the foreclosure sale is the precise issue this case presents. To find a taking requires that the issue be resolved wholly in the Bank’s favor, while a finding for the government eliminates the possibility of a taking. The Bank, in keeping with its insistence that its debt in some manner be discharged in full, contends that under California law it is not entitled to a deficiency judgment against its debtor, the owner of the foreclosed residence, and that 28 U.S.C. § 2410 accordingly requires that, disregarding interest, the government tender to the Bank the sum of its bid on the property at foreclosure ($33,136.64), plus the amount of the unrecoverable deficiency. This sum is the “amount” it paid for the property, the Bank insists, and the purpose of section 2410 is to provide reimbursement of that amount. For its part the government insists the Bank, a second lienholder who purchased at the foreclosure sale for the benefit of the first lienholder, is not precluded by California law from seeking a deficiency judgment against its debtor and that as a consequence the amount it tendered to the Bank is all that is required under 28 U.S.C. § 2410 and 26 U.S.C. § 7425. We shall address each of these arguments separately. II. SOVEREIGN IMMUNITY To sue the United States, Congress must have waived sovereign immunity with respect to the claim being asserted and provided jurisdiction to hear the claim in the court in which the suit is brought. The Bank finds the required waiver of sovereign immunity in 28 U.S.C. §§ 2409a, 2410, or 26 U.S.C. §§ 7425, 7426, and jurisdiction in the district court under 28 U.S.C." }, { "docid": "5506496", "title": "", "text": "the Fourth Circuit that Congressional approval cannot be inferred when the legislative history makes it clear that the 1978 amendment to subsection 881(a)(6) was intended to expand the rights of innocent parties. Id.; see 124 Cong.Rec. 36,948 (1978); 124 Cong.Rec. 36,946 (1978); 124 Cong.Rec. 34,672 (1978); 124 Cong.Rec. 23,-056-057 (1978). The government next argues that attorney’s fees are merely expenses required to protect an interest and do not constitute an interest in the property. See United States v. One 1989 Harley Davidson Motorcycle, 743 F.Supp. 589, 591-92 (C.D.Ill. 1990); United States v. 708-710 West 9th Street, 715 F.Supp. 1323, 1326 (W.D.Pa. 1989). That argument might be persuasive when the right to recover attorney’s fees is not secured by the property. See One 1989 Harley Davidson, 743 F.Supp. at 591-92. We do not. reach that issue because Citi-corp’s entitlement to recover attorney’s fees under its deed of trust has not yet been litigated in district court. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985). We note, however, that the court in One 1989 Harley Davidson, 743 F.Supp. at 592, based its decision in part on the American rule that requires each party to bear its own costs in the absence of a statutory provision to the contrary. That rationale overlooks the fact that the American rule also permits an award of attorney's fees based on the parties’ contract. Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 446 (9th Cir.1992). The government also argues that attorney’s fees should be denied because section 881 preempts state law rights and remedies. It relies on United States v. 9930 Stevens Road, No. 88-1206-GT(IEG) (S.D.Cal. November 9, 1989), where the lienholder argued that California property law allows the recovery of attorney’s fees if provided for in the deed of trust. The court denied recovery of fees, holding that section 881 preempts “conflicting” state law rights. We respectfully disagree with that conclusion. Preemption may occur when Congress has expressly precluded state legislation, an expression of such intent can be inferred from the structure and purpose of the federal statute, or when state law conflicts" }, { "docid": "10529363", "title": "", "text": "obligation has been met, the burden then shifts to the claimant to establish that it is an innocent owner. See id. The lienholders in the present case do not contest that the government met its initial burden. Nor does the government contest the fact that the lienholders are innocent. Rather, the core issue on this appeal is whether the lienholders are “owners” for the purposes of Section 881. This issue was resolved by our decision in In re Metmor Fin., Inc., 819 F.2d 446 (4th Cir.1987), where we stated, “[t]here is no question that Metmor [a mortgage holder of the defendant property] is an ‘owner’ within the scope of § 881(a)(6).” Id. at 448 n. 2. On the present appeal the government characterizes this statement as dicta, and contends that Metmor was wrongly decided, is unsupported by prior law, and stands alone for this proposition. The government concludes that “the entire [Metmor ] opinion is without foundation.” These contentions are plainly inaccurate. Among the courts of appeals, two have recently concluded that a lienholder qualifies as an owner under Section 881. In re Newport Sav. & Loan Ass’n, 928 F.2d 472, 476 (1st Cir.1991) (section 881(a)(6) “permits an innocent mortgagee to recover the value of its interest as a matter of right” (emphasis in original)); United States v. Six Parcels of Real Property, 920 F.2d 798, 799 (11th Cir.1991) (citing Metmor, the court affirmed the district court’s finding that an innocent lienholder was entitled to recover interest and principal). As the Fifth Circuit has pointed out, such an interpretation is supported by the legislative history behind the amendment to section 881, which added the innocent owner provision. See United States v. $321,470.00 U.S. Currency, 874 F.2d 298, 303 (5th Cir.1989) (“ ‘owner’ should be broadly interpreted to include any person with a recognizable legal or equitable interest in the property seized” (emphasis added), quoting Joint Explanatory Statement of Titles II and III, Pub.L. No. 95-633, 95th Cong.2d Sess., reprinted in 1978 U.S.Code Cong. & Admin.News 9496, 9518, 9522-23). In direct contradiction to the government’s argument in the present case, the" }, { "docid": "10529365", "title": "", "text": "Fifth Circuit stated “it is not necessary for an inter-venor or claimants to show ownership of seized property.” Id. at 303. Other courts have held that the language of the statute itself makes it clear that an “innocent lien-holder” defense is available. United States v. One Urban Lot, 865 F.2d 427, 430 (1st Cir.1989). In light of this substantial authority we reaffirm Metmor and hold that a lienholder is an “owner” for the purposes of section 881. Because the lienholders are owners, and because the government has conceded their innocence, their interests in the subject property cannot be forfeited. To the extent the district court’s order implied otherwise, it is incorrect. The next issue is the extent of the lienholders’ interests. It is clear from the case law that the lienholders are entitled to the outstanding principal as well as all unpaid pre-seizure interest. In re Metmor Fin., Inc., 819 F.2d at 448; Six Parcels of Real Property, 920 F.2d at 799. Lienhold-ers are also entitled to post-seizure interest. In re Metmor Fin., Inc., 819 F.2d at 451; Six Parcels of Real Property, 920 F.2d at 799. Thus, the district court’s order should reflect that the forfeiture to the government is subject to the lienholders’ claims for principal, and pre- and post-seizure interest. The remaining issue concerns the lienholders’ right to recover their attorney’s fees and costs incurred in obtaining their interests. In Metmor, this Court stated that costs and attorney’s fees would be available to an innocent lienholder if provided for in the mortgage documents, In re Metmor Fin., Inc., 819 F.2d at 448 n. 3, and we so hold today. See Six Parcels of Real Property, 920 F.2d at 799. However, we found that under the terms of the contract in Metmor such fees were not recoverable. It is not clear from the present record whether the lienholders in this case are entitled, under the terms of their contracts, to the recovery of fees and costs. Consequently, we remand this action to the district court so that it may determine in the first instance whether the lienholders are" }, { "docid": "10529366", "title": "", "text": "F.2d at 451; Six Parcels of Real Property, 920 F.2d at 799. Thus, the district court’s order should reflect that the forfeiture to the government is subject to the lienholders’ claims for principal, and pre- and post-seizure interest. The remaining issue concerns the lienholders’ right to recover their attorney’s fees and costs incurred in obtaining their interests. In Metmor, this Court stated that costs and attorney’s fees would be available to an innocent lienholder if provided for in the mortgage documents, In re Metmor Fin., Inc., 819 F.2d at 448 n. 3, and we so hold today. See Six Parcels of Real Property, 920 F.2d at 799. However, we found that under the terms of the contract in Metmor such fees were not recoverable. It is not clear from the present record whether the lienholders in this case are entitled, under the terms of their contracts, to the recovery of fees and costs. Consequently, we remand this action to the district court so that it may determine in the first instance whether the lienholders are entitled to fees and costs, and if so, in what amount. The lienholders have moved in this court to strike the government’s brief and for an award of attorney’s fees under Rule 38, Fed.R.App.P. Though we find meritless the government’s argument that the lien-holders are not owners, we nonetheless deny the motion for sanctions. III. In conclusion, we hold that lienholders are owners for the purposes of 21 U.S.C. § 881, and that they are entitled to recover outstanding principal, pre- and post-seizure interest, as well as attorney’s fees and costs if provided for by contract. We vacate the district court’s order of forfeiture and remand for a determination of the availability and amount of attorney’s fees and costs, and entry of an order setting forth the extent of the interests of the lienholders which the forfeiture is subject to. VACATED AND REMANDED. . Vergara consented to the forfeiture of the property. . The only distinction between the two statutory sections is that Section (a)(6) refers to “the interest of an owner,” whereas Section (a)(7)" } ]

[ { "docid": "15481179", "title": "", "text": "adversaries to raise all conceivably legitimate hurdles, and observance of the foregoing procedures, we must admit, would not necessarily avoid a Rule 23.1 challenge. (Footnote omitted.) (Emphasis added.) The lesson taught by these cases and by Rule 23.1 is clear. Except when demand obviously would be futile, dissident shareholders are required to make a sincere effort to obtain relief from the corporation prior to petitioning the court. In so doing, the shareholder must allow the corporation an adequate and reasonable amount of time in order to respond to the demand for relief. See Siegal v. Merrick, 84 F.R.D. 106 (S.D.N. Y.1979); 7A Wright and Miller, Federal Practice and Procedure: Civil § 1831 at 377; Chicago Note, supra at 172. On the other hand, countervailing concerns require this Court to establish certain limitations upon a corporation’s right to review plaintiffs’ demand. Just as the Supreme Court in Hawes counseled dissident shareholders to “make an earnest, not a simulated effort” to obtain remedial action from the corporation, the corporation must function under a reciprocal duty to make an earnest effort to consider the shareholder’s demand and to decide upon a response within a reasonable time. The Court is well aware that it has become established practice in derivative actions for corporations to refer contested matters to a committee of outside directors for resolution. See, e. g., Zapata Corp. v. Maldonado, 430 A.2d 779 (Del.Supreme Ct. 1981). Neither the demand nor the response, however, should be an exercise in idle ceremony. When, as in the instant case, the shareholder has made a demand upon the corporation, it is incumbent upon the corporation to respond without delay. If the corporation does not respond within a reasonable period of time, the Court may be justified in presuming that the demand was futile and that the shareholder need wait no longer, Zilker v. Klein, 510 F.Supp. 1070 (N.D.Ill.1981). Accordingly, defendants’ motion to dismiss is granted without prejudice and with leave for plaintiffs to reinstate and amend their complaint upon receiving defendants’ response. If defendants fail to provide a definitive and final response to plaintiffs’ demand by" } ]

[ { "docid": "15413682", "title": "", "text": "WISDOM, Circuit Judge: In 1987 Carrollton-Farmers Branch Independent School District, joined by the City of Farmers Branch, Texas as intervenor, sued several parties in state court to recover delinquent ad valorem taxes owed on a piece of property located in Farmers Branch. The plaintiffs amended their petition to include as a defendant the Federal Savings and Loan Insurance Corporation (FSLIC) as receiver for First Savings and Loan Association of Burkburnett, Texas (Burkburnett), a state-chartered institution. Burkburnett, the accounts of which were insured by the FSLIC, held a purchase money security interest in the property. On February 5, 1985, the Federal Home Loan Bank of Dallas (FHLB-Dallas) took a security interest in the purchaser’s note and in the deed of trust to secure advances made by the FHLB-Dallas to Burkburnett. On January 16,1987, the Savings and Loan Commissioner of Texas closed Burkbur-nett. Also on that date both the state commissioner and the Federal Home Loan Bank Board (FHLBB) appointed the FSLIC as liquidation receiver for Burkburnett. Without filing an answer in the state court property tax suit, the FSLIC filed a petition for removal of the case to the federal district court and a motion to dismiss the complaint for lack of subject matter jurisdiction. Carrollton-Farmers Branch filed a motion to remand the suit to the state court. Applying the principle established in North Mississippi Savings and Loan Association v. Hudspeth, that creditors’ claims against the FSLIC as receiver must be pursued administratively in the first instance, the district court dismissed the claims against the FSLIC and remanded the remainder of the case to state court. The plaintiffs appeal the dismissal and partial remand. In Hudspeth, we held that under 12 U.S. C. §§ 1464(d)(6)(C) and 1729(d) the FSLIC has exclusive jurisdiction over claims brought by creditors against it as the receiver for a failed institution. Our subse quent decisions have uniformly reaffirmed the Hudspeth principle. Although a few courts have disagreed with Hudspeth, most courts have accepted our interpretation of the statutory and regulatory framework as authorizing the FSLIC to adjudicate claims subject to review by the Federal Home Loan" }, { "docid": "6423740", "title": "", "text": "(federal question jurisdiction) and § 1337, jurisdiction relating to acts of Congress regulating commerce, but also 12 U.S.C. § 1730(k) and (7), which delineates the jurisdiction of the United States district courts over actions in which the FSLIC is a party. Defendants FSLIC, FHLBB and First Federal Savings contend that the case of Hancock Financial Corporation v. Federal Savings and Loan Insurance Corporation, 492 F.2d 1325 (9th Cir. 1974) is dispositive of the issue of this Court’s jurisdiction over the subject matter of this instant action. That case involved Gibraltar Savings and Loan Association, a state chartered institu tion, which was insured by FSLIC. In 1966, an Arizona Superior Court appointed the FSLIC as receiver of Gibraltar and directed it to liquidate Gibraltar’s assets. By the end of 1981, virtually all of the receivership assets had been sold with the exception of a portfolio having an aggregate book value of $16.5 million. Hancock Financial Corporation, the principal stockholder of Gibraltar, initiated an action in the United States District Court to enjoin the FSLIC from selling the remaining assets. The United States District Court dismissed the complaint on the basis that it lacked subject matter jurisdiction. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the plaintiff’s complaint. The Defendants FSLIC, FHLBB and First Federal’s contentions that the Hancock decision is dispositive with respect to the outcome of the instant motion is absolutely correct. The holding in Hancock compels no other conclusion than that this Court lacks jurisdiction over the subject matter of the plaintiff’s complaint. On this basis, this Court lacks jurisdiction over the subject matter of the Plaintiffs’ complaint, and, accordingly, the said Defendants are entitled to judgment on the pleadings with respect thereto. Now, as to those claims sounding in tort, Defendants are correct in their contentions that it is well settled that the United States Government may not be sued unless it has specifically waived its sovereign immunity. Thus, the exclusive jurisdiction over civil actions against the United States conferred upon the United States District Court, under § 1346 of" }, { "docid": "22828070", "title": "", "text": "May 1984, MGIC filed an amended complaint. For purposes of this appeal but only for such purposes we treat the allegations of the complaint as true. According to the complaint, Kersting, a shareholder of First Savings, and other shareholders had, in late February or early March 1980, engaged Weisman to recover their investment in First Savings. Weisman concluded that it would be to the advantage of the stockholders if they successfully sued the directors and thus obtained payment by MGIC of the insurance covering errors and omissions of the directors. On March 10, 1980, Weisman wrote the receiver, the Federal Savings and Loan Insurance Corporation (FSLIC), urging it to sue the directors. Later in the month Weisman arranged for letters to be sent to Dennis Alexander and Michael Pro-van, former directors of First Savings, notifying them that the stockholders would hold them liable and would expect their insurer to pay. On March 20, 1980, Weisman brought suit on behalf of Alexander and Provan in the federal district court. The suit was for a declaratory judgment that First Savings’ insurance with MGIC was in full force and effect. The defendant was MGIC. On June 26, 1980, as a result of further activity of Weisman and Kersting, a plaintiff named J. Ward Russell sued the directors of First Savings. He was represented by Nevels, a lawyer obtained for him by Weisman. This state suit was entitled Russell v. Takasaki. Weisman and Dunn assumed the defense of the defendant directors. The suit was dismissed on March 31, 1981. Weisman billed MGIC $7,500 for his defense of the directors and was paid. On May 4, 1981 Weisman on behalf of Kersting wrote a letter to FSLIC demanding that it bring suit against the directors of First Savings. On June 17, 1981 Weisman on behalf of First Savings sought a writ of mandamus in the federal district court to compel FSLIC to sue the directors. On August 24,1981 Weisman wrote FSLIC a letter containing information designed to stimulate such a suit. This letter contained confidential information obtained from MGIC. By January 29, 1982 Weisman had" }, { "docid": "8720626", "title": "", "text": "association after a receiver has been appointed. Damage claims against First Federal must therefore be dismissed for failure to state a claim upon which relief can be granted. All claims against the Federal Savings and Loan Insurance Corporation and First Federal Savings and Loan Association of Hawaii are HEREBY DISMISSED. It follows that plaintiff’s Motion For Partial Summary Judgment is HEREBY DENIED. . 12 U.S.C. § 1464(d)(6)(A) provides: The Board shall have exclusive power and jurisdiction to appoint a conservator or receiver .... In the event of such appointment, the association may, within thirty days thereafter, bring an action in the United States district court for the judicial district in which the home office of such association is located, or in the United States District Court for the District of Columbia, for an order requiring the Board to remove such conservator or receiver, and the court shall upon the merits dismiss such action or direct the Board to remove such conservator or receiver. This provision is part of the Home Owners’ Loan Act of 1933, 12 U.S.C. §§ 1461-1468 (1976 & Supp. III 1979). . The distinction between the FSLIC and the FHLBB is not a transparent one. The FSLIC was created as part of the National Housing Act of 1934, c. 847, Title IV, § 402, 48 Stat. 1256 (codified at 12 U.S.C. § 1725 (1976)). The FSLIC is a government-owned corporation with the power to sue and be sued. See, 12 U.S.C. § 1725(c)(4), 31 U.S.C. § 846. The FHLBB was created two years before the FSLIC by the Federal Home Loan Bank Act, ch. 522, § 17, 47 Stat. 736 (1932) (codified at 12 U.S.C. § 1437(a) (1976)). The FHLBB is an agency of the United States without the power to sue and be sued, other than as specifically provided by law. See, e.g., Fahey v. O'Meiveny & Meyers, 200 F.2d 420 (9th Cir. 1952). . When acting as the receiver of a Savings and Loan Association, the FSLIC has the power to liquidate the Association and sell its assets: “In any case where the Corporation is" }, { "docid": "11017134", "title": "", "text": "influence over the management and policies of Continental and all rights to claims against professional persons, such as those against the lawyer Defendants here. On August 9, 1989, the effective date of FIRREA, FSLIC was abolished, § 401(a)(1), and all assets were transferred to the FSLIC Resolution Fund to be managed by FDIC. FIRREA, § 215. FDIC corporate then became the successor to all actions by or for FSLIC under § 401(f)(2). . The appellate court emphasized, \"The most significant factor in the present case’s outcome is the FDIC’s decision to sue only as Western's assignee. The FDIC did not sue on its own behalf or on Western’s creditors’ behalf. Essentially, therefore, this is a client case in which a client is suing its auditor. Consequently, the effect of the auditor’s alleged negligence on third parties is legally irrelevant.” 967 F.2d at 169. . According to 12 U.S.C. § 1821(d)(2)(A), FIR-REA grants the receiver \"all rights, titles, powers, and privileges of the insured depository institution, and of any ... account holder [or] depositor ... with respect to the institution and the assets of the institution\" (emphasis added). FDIC in its corporate capacity therefore does not simply step into the shoes of the failed corporation and assert its claims, but also can pursue claims on behalf of depositors, shareholders, and creditors. . Defendants point to FDIC v. Shrader & York, 777 F.Supp. 533 (S.D.Tex.1991) (Black, J.), issued by a different judge in this district, ruling that the reverse domination doctrine does not apply to actions against third parties, here the law firm. FDIC contends that Shrader does not apply here, first, because it was decided on summary judgment after adequate time for discovery. Second, the case does not make such a broad ruling on the doctrine of adverse domination. FDIC urges that the circumstances here justify application of the rule. Citing various authorities, FDIC notes that the reason for the doctrine is that blameworthy directors and officers could not be expected to cause their corporation to bring suit against someone if doing so would bring attention to their own misconduct. In" }, { "docid": "4623938", "title": "", "text": "will flow, Deloitte argues that FDIC-Corporate cannot claim “capacity” distinctions to avoid the fact that it is the real opponent here. I do not believe that the distinction between successor-in-interest and assignee is determinative in the instant case. Although there is no dispute that FDIC is the assignee of Old Sunrise’s claims against Deloitte, it is not readily apparent that the FDIC is certain as to whether it brought this suit as the successor-in-interest to Old Sunrise. In its memoranda in support of its motion, it argues that it is merely the assignee since only a portion of Old Sunrise’s assets — the claims that are the subject of this action — were transferred to FSLIC-Corporate and Old Sunrise’s liabilities remain with the Receiver. Yet in a prior motion in this action, which dealt with the compelled production of discovery, FDIC (at that time FSLIC) argued that FSLIC-Corporate was successor-in-interest to Sunrise, “since all rights against Blank Rome ‘previously held by FSLIC-Receiver have been assigned to FSLIC-Corporate.’ ” In re Sunrise Securities Litigation, 130 F.R.D. 560, 564 (E.D.Pa.1989), quoting FSLIC’s Reply to Blank Rome’s Response to FSLIC’s Motion to Compel, at 2. In light of that statement and in light of the fact that FDIC has not produced any case law in support of its proposition, I conclude that Deloitte’s Counterclaim meets the “opposing party” requirement of Rule 13. 2. Imputation of officers’ and directors’ conduct FDIC also asserts that the Third Counterclaim should be dismissed because the conduct of Old Sunrise’s officers and directors cannot be imputed to it. In Federal Deposit Ins. Corp. v. Ernst & Young, 967 F.2d 166 (5th Cir.1992), the FDIC as receiver for the failed Western Savings and Loan Association brought suit against the accounting firm that audited the association, alleging negligence and breach of contract. The FDIC brought the suit only as the assignee of a claim by Western against the auditors. While recognizing that certain situations require courts to treat the FDIC differently from other assignees, the Court of Appeals for the Fifth Circuit held that the FDIC is not entitled to" }, { "docid": "6577635", "title": "", "text": "or through derivative suit after an unsuccessful demand upon FDIC); Womble v. Dixon, 752 F.2d 80 (4th Cir.1984) (shareholders of failed association seeking to bring derivative suit against persons not being sued by FSLIC receiver need not bring formal demand on receiver where it already had notice of alleged wrongdoing). In response to the weight of the above cases, the government has cited a lone district court case to support its argument that the appointment of a receiver precludes derivative suits by former shareholders of failed financial institutions. In First Sav. & Loan Asso. v. First Federal Sav. & Loan Asso., 547 F.Supp. 988 (D.Haw.1982), the United States District Court for the District of Hawaii held that upon being appointed the receiver of the institution involved in the case, the FSLIC, under the former 12 U.S.C. § 1464(d)(6)(A), acquired all of the powers of the members, directors, and officers of the institution. Id. at 994. The court then went on to conclude from this, however, that “no suit can be entertained and no relief affecting the powers and functions of a receiver may be sought or accorded other than under the provisions of § 1464(d)(6)(A) of Title 12” and that “only a receiver may institute, prosecute or maintain claims on behalf of any association placed in receivership.” Id. at 994-995. We agree with the First S & L court that a failed financial institution loses all rights to sue on its own behalf once it is placed in receivership. We disagree, however, that this necessarily precludes former shareholders from suing derivatively in instances where the receiver fails to enforce the right which the shareholders seek to enforce. Just as the receiver stands in the shoes of the former institution’s management and directors for all governance, the shareholders have the same derivative rights to remedy its failure to assert corporate interests as they have with respect to a negligent corporate management via the derivative action against third parties who have injured the corporation. Nothing in the statutory scheme turns the receiver into an “infallible” manager with “unfettered discretion” just because the" }, { "docid": "14321192", "title": "", "text": "“condition precedent to the insured’s right of coverage under the policy.” Centennial and its officers and directors came under the examination of the Federal Home Loan Bank Board (“FHLBB”) beginning in 1983 because of various banking regulation violations. The FHLBB gave Centennial notice of the practices that caused concern. However, in a 1984 examination, the operations of the bank were still found to be in violation. In particular, Centennial was found to be overlending in general, overlending to individual borrowers, and lending to interested borrowers. On August 30, 1984, the Federal Savings and Loan Insurance Corporation (“FSLIC”) and Centennial came to an agreement under which FSLIC would not begin formal proceedings against the bank in exchange for the cooperation of the bank in desisting such practices. As part of this agreement, the officers and directors admitted the above-mentioned violations. Centennial did not notify International of these investigations, or of this agreement. According to the record, the defendants’ first notice came in a letter from FHLBB to defendants, dated August 20, 1985. In September, 1985, FHLBB declared Centennial bankrupt. In response, a number of shareholder derivative lawsuits were filed against Centennial and its officers. In September, 1987, FSLIC filed suit against Centennial and its officers. Plaintiffs notified defendants promptly of each action, but defendants refused coverage. Plaintiffs brought this action against International and Crum and Forster seeking a declaration that defendants owed Centennial coverage under the policy. The district court, in an opinion reported at 709 F.Supp. 187 (N.D.Cal.1989), granted sum mary judgment for International. The court held that even though events and circumstances that could have led to a claim against the plaintiffs occurred during the policy period, plaintiffs had not given ■International timely notice, as required by the terms of the policy. II We review a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Where a federal court has jurisdiction by virtue of diversity of citizenship of the parties, the court must follow state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)." }, { "docid": "6423741", "title": "", "text": "the remaining assets. The United States District Court dismissed the complaint on the basis that it lacked subject matter jurisdiction. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the plaintiff’s complaint. The Defendants FSLIC, FHLBB and First Federal’s contentions that the Hancock decision is dispositive with respect to the outcome of the instant motion is absolutely correct. The holding in Hancock compels no other conclusion than that this Court lacks jurisdiction over the subject matter of the plaintiff’s complaint. On this basis, this Court lacks jurisdiction over the subject matter of the Plaintiffs’ complaint, and, accordingly, the said Defendants are entitled to judgment on the pleadings with respect thereto. Now, as to those claims sounding in tort, Defendants are correct in their contentions that it is well settled that the United States Government may not be sued unless it has specifically waived its sovereign immunity. Thus, the exclusive jurisdiction over civil actions against the United States conferred upon the United States District Court, under § 1346 of Title 28, is limited to cases in which the Government has consented to be sued. That is the undeniable law of this Circuit as stated by Morris v. United States, 521 F.2d 872 (9th Cir. 1975). It is well established that FSLIC is an instrumentality of the United States. It is a federal agency within the meaning of Title 28, Section 1346(b), and is therefore entitled to the protection of FTCA. So, what is the question? The question is whether the Plaintiffs’ claim against the FSLIC and FHLBB for money damages, based upon FSLIC’s appointment as receiver of First Savings by FHLBB, and the subsequent sale by FSLIC of the assets of First Savings to First Federal, is barred by the Federal Torts Claim Act. If there be any doubt as to the answer to this proposition, it is put to rest by the case of Newberg v. Federal Savings and Loan Insurance Corporation, 317 F.Supp. 1104 (N.D.Ill.1970). In Newberg, the plaintiff was a stockholder of a savings and loan association which had been purchased" }, { "docid": "5802893", "title": "", "text": "481. RTC/FDIC claims these distinctions are crucial because the Court must focus on the identity of the party asserting the claim, not on the nature of the cause of action. Here, the exclusion excludes coverage only for claims made against insured directors and officers that are asserted by “any other Director or Officer or by the Institution ..., except for a shareholders derivative action brought by a shareholder of the Institution.” RTC/FDIC argues that since it represents depositors, creditors, and shareholders, in addition to representing Pacific, it cannot be held to be merely asserting the claims of the institution and thus the insured v. insured exclusion should not bar coverage. To support its position, RTC/FDIC relies on Fidelity and Deposit Company of Maryland v. Zandstra, 756 F.Supp. 429 (N.D.Cal.1991). The exclusion in Zandstra was identical to the exclusion at issue here. In Zandstra, plaintiff sought a declaration that it had no duty to defend or indemnify the defendants, officers and directors of Homestate Savings and Loan Association. Defendants were initially sued by Homestate, but the suit was later maintained by the FDIC. Plaintiff moved for summary judgment. The court held that even though the insured v. insured exclusion would apply if Homestate was litigating the suit, it did not apply when the FDIC took over the litigation because the FDIC was not an insured and did not “stand in the shoes” of an insured due to its obligations to shareholders, creditors, and depositors. Id. at 431-33. RTC/FDIC also relies on other cases which have held that identical insured v. insured exclusions do not bar coverage when the RTC/FDIC/FSLIC sues the officers and directors of a failed institution. See Branning v. CNA Ins. Co., 721 F.Supp. 1180, 1184 (W.D. Wash.1989) (“the Court finds, however, that FSLIC does not merely stand in the shoes of Home Savings. By statute, FSLIC represents depositors, shareholders, creditors, and the federal insurance fund as well as the failed institution. The Court rules therefore that since endorsement 6 does not exclude claims brought on behalf of shareholders, creditors, and the insurance fund, FSLIC’s claims are covered. To" }, { "docid": "17046566", "title": "", "text": "federal securities laws and other federal and state laws. On August 30, 1985, Westside was declared insolvent and placed in receivership. In September of 1985, FSLIC was substituted as defendant for Westside. In order to defend the assets of the receivership against legal claims and to investigate the receiver’s potential causes of action, FSLIC seeks to interview members of the Firm. FSLIC also wishes to review all records and files that were compiled by the Firm in the course of its representation of Westside. Various of the officers and directors oppose FSLIC’s proposed inquiries based on their claim that an individual attorney-client privilege exists between the Firm and the officers and directors of Westside. They argue that FSLIC should not be allowed to interview the Firm regarding communications and legal advice about their individual or collective exposure to threatened claims. FSLIC, therefore, asks the court to determine that it is the exclusive holder of the attorney-client privilege between Westside and the Firm, and that the individual officers and directors of Westside do not have an individual attorney-client relationship with the Firm. II. LEGAL REASONING ' It is undisputed that, as receiver, FSLIC succeeds to all the rights, titles, powers and privileges of Westside, and to the rights, powers, and privileges of its members, officers and directors. 12 C.F.R. § 547.7. Thus, the parties agree that FSLIC succeeds to the corporate attorney-client privilege which existed between Westside and the Firm. Citibank, N.A. v. Andros, 666 F.2d 1192, 1195 (8th Cir.1981). However, several of the officers and directors claim that they established separate, individual attorney-client relationships with the Firm, which permits them to invoke an attorney-client privilege. Because the instant case is predicated on federal law, embodying federal policies, enforcement of those policies demands that the federal courts apply their own rule of privilege where substantial state interests are not infringed. Garner v. Wolfenbarger, 430 F.2d 1093, 1098 (5th Cir.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed.2d 323 (1971). See Fed.Rule Evid. 501. The scope of the privilege is determined by federal law. United States v. Hodge and Zweig," }, { "docid": "4623921", "title": "", "text": "MEMORANDUM O’NEILL, District Judge. I. Introduction In 1986, the Federal Savings and Loan Insurance Corporation (“FSLIC”) in its corporate capacity brought this action against the former attorneys and former officers and directors of the Old Sunrise Savings and Loan Corporation. In January, 1989, FSLIC amended its complaint and added Old Sunrise’s former independent auditors, Deloitte, Haskins & Sells, as a defendant. Deloitte filed an Answer, Affirmative Defenses and Counterclaims. The FSLIC, now the Federal Deposit Insurance Corporation (“FDIC”), has moved to dismiss Deloitte’s Counterclaims and to strike certain of its Affirmative Defenses. For the reasons that follow, I will grant FDIC’s motion. II. Background Old Sunrise was a Florida corporation chartered as a capital stock savings and loan association on March 10, 1980. On July 18, 1985, the Federal Home Loan Bank Board (“FHLBB”) determined that Old Sunrise was insolvent and appointed the FSLIC as receiver. That same day, FSLIC as receiver organized a new federal savings and loan association, New Sunrise, and transferred substantially all of the Old Sunrise assets and liabilities to New Sunrise. By the Assignment and Agreement of January 2, 1986, New Sunrise assigned to FSLIC-Corporate Old Sunrise’s causes of action against its officers, directors, attorneys, accountants and appraisers. On September 12, 1986, the FHLBB declared New Sunrise insolvent and appointed FSLIC as receiver. See In re Sunrise Securities Litigation, 131 F.R.D. 450, 452-53 (E.D.Pa.1990). On September 2,1986, FSLIC in its corporate capacity filed suit against Old Sunrise’s former officers and directors and its former attorneys, Blank, Rome, Comisky & McCauley. On January 19,1989, after terminating an existing standstill agreement, FSLIC served an Amended Complaint and added Deloitte as a defendant. A. FDIC’s claims against Deloitte FDIC’s claims against Deloitte are contained in Counts IX and X of its Amended Complaint. Count IX alleges that Deloitte breached its engagements to perform audits of Sunrise’s financial statements for the years ending June 30,1983 and June 30,1984 and to prepare other financial reports relate ing to these time periods. FDIC alleges that Sunrise’s financial statements were not pre pared in accordance with generally accepted accounting principles and did" }, { "docid": "4770071", "title": "", "text": "any viable claims because all claims arising from the six loans at issue were time barred. Consequently, defendants argue that FSLIC could not have transferred any viable claims to RTC when RTC replaced FSLIC as conservator. All of RTC’s claims against defendants must, they assert, be dismissed on statute of limitations grounds. In an action brought by a federal entity for claims it received by assignment, a court must conduct a two part inquiry to determine whether the claims are barred by the statute of limitations. See, e.g., FDIC v. Thayer Ins. Agency, Inc., 780 F.Supp. 745, 747 (D.Kan.1991). First, the court must determine whether the causes of action were barred by the applicable state statute of limitations before the federal agency acquired the institution’s assets. See, e.g., FDIC v. Bachman, 894 F.2d 1233, 1236 (10th Cir.1990). If the limitations period did not expire before the assignment, the court must then determine if the federal entity filed suit within the applicable federal limitations period. Thayer, 780 F.Supp. at 748. In 1984, Judge Joseph Young of this district applied this two part rule in FSLIC v. Williams, 599 F.Supp. 1184 (D.Md.1984). The dispute in that case arose after plaintiff FSLIC succeeded to all claims against the former officers and directors of a federally insured savings and loan that became insolvent. Among the defendants named in the suit was Loella Fisher, an officer of the institution who was allegedly responsible for violations of FHLBB regulations, the underreporting of problem loans to FHLBB, and a great number of other improprieties. Defendant moved for summary judgment on limitation grounds, claiming that one of FSLIC’s claims was time-barred because the plaintiff knew of the Ms. Fisher’s alleged misconduct for over three years before the suit was filed. In Williams, Judge Young employed the two step limitations analysis for claims assigned to a federal entity. 599 F.Supp. at 1192. In his discussion of the first prong of the test, the court properly focused on the three year Maryland statute of limitations set forth in Md.Cts. & Jud.Proc.Code Ann. § 5-101 (1989). The court also recognized that" }, { "docid": "15413692", "title": "", "text": "a recent case we concluded that even in cases in which removal is proper under section 1730(k)(l), 12 U.S.C. § 1464(d)(6)(C) “limits the power of a court to interfere with the FSLIC’s administrative determination of claims against a failed institution”. Bean v. Independent American Savings Ass’n. We have held consistently that “resolution of even the facial merits of claims outside the statutory reorganization process is a ‘restraint’ within the scope of section 1464...”. Federal Savings Loan Insurance Corp. v. Bonfanti. 12 U.S.C. § 1729(c)(3) & (d) firmly support our holding in Hudspeth and its progeny that claims against FSLIC as receiver are “switched to the administrative track” subject to review in the first instance by the FHLBB. At the time this suit was filed subsection 1729(d) provided: In connection with the liquidation of insured institutions in default, the Corporation shall have power ... to settle, compromise, or release claims in favor of or against the insured institutions, and to do all other things that may be necessary in connection therewith, subject only to the regulation of the court or other authority having jurisdiction over the matter. 12 U.S.C. § 1729(d) (emphasis added). Subsections 1729(c)(2) and (3) make it clear that where, as here, the FHLBB appoints the FSLIC as receiver for a state-chartered savings and loan association that has been closed by state authorities, the body referred to in section 1729(d) as having jurisdiction to regulate the FSLIC’s actions is the FHLBB. We conclude therefore that Carrollton-Farmers Branch must comply with the administrative process before seeking judicial review of the resolution of its claims. For all of the foregoing reasons we affirm the district court’s dismissal of the claims against the FSLIC and its order remanding the remainder of the ease to state court. AFFIRMED. . 756 F.2d 1096 (5th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986). . Id. at 1103. . E.g., Bean v. Independent American Sav. Ass’n, 838 F.2d 739 (5th Cir.1988); Thornes v. Equitable Sav. & Loan Ass'n, 837 F.2d 1317 (5th Cir.1988); Coit Indep. Joint Venture v. First-South, F.A., 829" }, { "docid": "794064", "title": "", "text": "the policy a good faith obligation on the part of the insurer to attempt settlement. IV MGIC next argues that indispensable parties — the remaining officers and directors — are not before the court, raising the possibility of inconsistent adjudications binding MGIC. MGIC maintains that even if it won on the merits, the nonjoined insureds, First Hawaiian, or the FSLIC, could then force relitigation of the very issues involved here. MGIC cites Ranger Ins. Co. v. United Housing of New Mexico, 488 F.2d 682, 683-84 (5th Cir.1974), in which the court dismissed an insurer’s declaratory judgment action against insureds involved in a fatal airplane crash because a judgment for the insurer would prejudice the nonjoined claimants’ interests by, for example, forcing them to contend with the effect of stare decisis. The insureds respond by pointing out that they would have no adequate remedy if their suit were dismissed for nonjoinder of indispensable parties. They suggest that the court make other officers and directors, First Hawaiian, or FSLIC parties to this action; that is, involuntary plaintiffs. So long as diversity is not affected, plaintiff insureds do not object to joinder. MGIC states in its opposition memorandum, at 18, that diversity would not be affected. Further, FSLIC has filed an amicus brief supporting a broad construction of the insurance policy. The remaining directors and officers are on notice that this suit has been brought. As this is a declaratory judgment action, this court has great flexibility in framing its relief so as to avoid prejudice to absent parties. This court need not reach the issue of whether joinder of the other insured directors, First Hawaiian, and the FSLIC would be preferable to dismissal, for these parties are not indispensable. The other insured directors were not injured because MGIC has continued to pay their defense costs while declining to pay plaintiffs’. Also, the other directors may have participated in different acts, requiring separate determination of coverage based on different factual allegations in the underlying suits. Nor are plaintiffs in the underlying FHB and FSLIC cases indispensable parties. The presence of the injured claimant" }, { "docid": "23711019", "title": "", "text": "MEMORANDUM O’NEILL, District Judge. This multidistrict litigation arises out of the insolvency of Sunrise Savings and Loan Association (“Sunrise”). Three groups of claims have been consolidated for pretrial proceedings in this district: state common law and Securities Exchange Act of 1934 claims asserted by Sunrise shareholders (the “Securities case”); fiduciary duty claims asserted by the Federal Savings and Loan Insurance Corporation (“FSLIC”) in its corporate capacity (the “Fiduciary Duty case”); and state common law and civil RICO claims asserted by former Sunrise depositors (the “Depositors case”). Among the defendants in this litigation are former officers and directors of Sunrise, as well as the law firm which served as Sunrise’s general counsel, and the accounting firm which served as Sunrise’s outside auditor. Presently before this Court are a number of motions to compel discovery relating to first phase document production. In this memorandum, I decide most of the legal issues presented by the outstanding discovery motions, and refer to the Special Master those issues which will require examination of individual documents or further factfinding. See In re Sunrise Securities Litigation, 124 F.R.D. 99 (E.D.Pa. 1989) (stating the reasons for appointment of a Special Master in this litigation). I. Blank Rome, Foxman, Treadwell and Gitomer—Work Product Documents Blank Rome, Michael D. Foxman, Kenneth A. Treadwell and M. Kalman Gitomer have claimed work product protection for a multitude of documents sought by the outside directors of Sunrise, Deloitte Has-kins & Sells (“DHS”), FSLIC, Caldwell C. Robinson, Frederic Gruher, Kenneth R. Howard, Laddie D. Howard, J. Randolph Black, and Curtis Walker. Blank Rome turned over two-thirds of these work product documents to FSLIC pursuant to an agreement that FSLIC would “not place the documents in the plaintiffs’ Sunrise document depository, or allow any third party to inspect, review or use the documents in any manner whatsoever, absent a court order.” Response of Blank Rome to Certain Defendants’ Amended Motion, Exhibit B. The moving parties argue that by giving these documents to FSLIC Blank Rome has waived any claims it may have that they are protected work product. They also contend that work product protection" }, { "docid": "6577634", "title": "", "text": "79 F.2d 146, 149, aff'd sub nom. United States Shipping Board Merchant Fleet Corp. v. Rhodes, 297 U.S. 383, 56 S.Ct. 517, 80 L.Ed. 733 (1936). The Fifth Circuit has also held that “[a] derivative action is not precluded when a bank is placed into receivership.” Gaubert v. United States, 885 F.2d 1284, 1290 n. 6 (5th Cir.1989) rev’d on other grounds 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The Gaubert court noted that the traditional demand requirement of derivative suits still applied, noting that “any demand to bring suit must be made upon the receiver or agency possessing the right to assert the corporation’s claims ... [although] it is also possible to allege demand futility.” Id. Other courts have also enforced this demand requirement, thereby recognizing the power of former shareholders to bring post-receivership derivative suits if the requirement is met. See e.g. In re Sunrise Securities Litigation, 916 F.2d 874 (3d Cir.1990) (depositors’ suit against officers and directors of association had to come through efforts of FDIC on their behalf or through derivative suit after an unsuccessful demand upon FDIC); Womble v. Dixon, 752 F.2d 80 (4th Cir.1984) (shareholders of failed association seeking to bring derivative suit against persons not being sued by FSLIC receiver need not bring formal demand on receiver where it already had notice of alleged wrongdoing). In response to the weight of the above cases, the government has cited a lone district court case to support its argument that the appointment of a receiver precludes derivative suits by former shareholders of failed financial institutions. In First Sav. & Loan Asso. v. First Federal Sav. & Loan Asso., 547 F.Supp. 988 (D.Haw.1982), the United States District Court for the District of Hawaii held that upon being appointed the receiver of the institution involved in the case, the FSLIC, under the former 12 U.S.C. § 1464(d)(6)(A), acquired all of the powers of the members, directors, and officers of the institution. Id. at 994. The court then went on to conclude from this, however, that “no suit can be entertained and no relief affecting" }, { "docid": "3598661", "title": "", "text": "the right of setoff are essential to any Court's determination of whether said agency is eligible to setoff its claims, In re Thomas is of little value to the resolution of the issue at bar. Further support for the Court’s position can be found in Federal Savings & Loan Insurance Corporation v. Williams, 599 F.Supp. 1184 (D.Md.1984), where the Court was faced with an issue very similar to the issue at bar. The Federal Savings & Loan Insurance Corporation (“FSLIC”) had instituted an action against the former officers, directors and employees of County Federal Savings and Loan Association (“County”), a federally chartered savings and loan association insured by the FSLIC. The FSLIC alleged that the defendants among other things, intentionally and/or negligently breached their fiduciary duties, were guilty of waste, committed fraud and diverted corporate opportunities. The defendants filed a number of counterclaims against the United States asserting that the losses and damages suffered by County were caused or at least significantly contributed to by the wrongful conduct of federal agents, and that those federal agents and ultimately the United States should bear the responsibility. As the Court stated, “the United States, as sovereign, is immune from suit except where it has consented to be sued.” Id. at 1197. However, absent a statutory waiver of sovereign immunity, “a counterclaim against the United States for recoupment is appropriate only in those instances where the United States brings suit. Counterclaims against the United States in the nature of recoupment do not require a statutory waiver of sovereign immunity.” Id. at 1202. The Court was then required to decide whether the FSLIC, who actually commenced the suit, had sufficient identity with the United States to warrant a finding that the United States was the plaintiff in that action. The Court stated the action was commenced by the FSLIC in two capacities: (1) as assignee of the claims of the bank which inherited said claims from Colony, and (2) as a federal regulatory agency. The Court held that because the FSLIC instituted the action at least in part as a federal regulatory agency, the" }, { "docid": "13472012", "title": "", "text": "OPINION JOSEPH H. YOUNG, Senior District Judge: I. Fidelity Savings and Loan Association (Fidelity) was a mutual savings and loan association organized under the laws of the United States, chartered by the Federal Home Loan Bank Board (FHLBB), and located in Baltimore, Maryland. Fidelity’s deposits were insured by the Federal Savings and Loan Insurance Corporation (FSLIC). Fidelity purchased a directors’ and officers’ liability insurance policy (the policy) from MGIC Indemnity Corporation (MGIC), and American Casualty Company (ACC) subsequently bought that insurance contract. Fidelity’s insurance policy provides a three million dollar aggregate limit of liability per policy year and covers “all Loss which the Directors and Officers or any of them shall become legally obligated to pay.” However, the policy also contains a regulatory exclusion provision, which states that the insurer is not liable for any claims made by or attributable to the FHLBB or FSLIC against Fidelity’s directors or officers. In 1983, the FHLBB placed Fidelity in a conservatorship. In 1984, the FHLBB appointed FSLIC to be Fidelity’s receiver. FSLIC thereby succeeded to all of Fidelity’s rights against its directors and officers. Those claims and interests are now held by the Federal Deposit Insurance Corporation (the FDIC) in its corporate capacity as Manager of the FSLIC Resolution Fund. In 1985, ACC denied coverage for those claims. This case arose from attempts by FSLIC to hold ACC liable under the policy for losses to Fidelity allegedly caused by its individual officers and directors. In 1986, FSLIC filed suit against several former directors and officers of Fidelity, seeking to recover damages for their alleged negligence and breach of fiduciary duties in approving imprudent loans. Naming ACC as a defendant, FSLIC also sought a declaratory judgment that ACC was obligated to provide insurance coverage for these claims under the directors’ and officers’ liability policy. ACC moved for Summary Judgment, arguing that the insureds failed to provide timely or adequate notice of their claims and that the regulatory exclusion provision precluded coverage for losses based upon or attributable to suits brought by FSLIC. FSLIC filed a cross-motion for Summary Judgment on the grounds that" }, { "docid": "4058080", "title": "", "text": "MEMORANDUM ORDER FISH, District Judge. This case is before the court on the motion of intervenor Federal Savings and Loan Insurance Corporation (“FSLIC”) to dismiss the plaintiffs’ claims for lack of subject matter jurisdiction. The plaintiffs have moved to remand the case. For the reasons stated below, the motion to dismiss is granted, while the motion to remand is granted in part and denied in part. Plaintiffs filed this action in state court against Skyline Savings Association (“Skyline”) seeking a declaration that their obligations to Skyline under a promissory note had been extinguished. FSLIC was subsequently appointed receiver of Skyline by the Federal Home Loan Bank Board (“FHLBB”), thereby assuming all of Skyline’s outstanding liabilities. FSLIC intervened in the state court proceeding and removed the action to this court, pursuant to 12 U.S.C. § 1730(k)(l). FSLIC now seeks to dismiss the plaintiffs’ claims. I. Motion to Dismiss The federal courts lack subject matter jurisdiction to determine actions against FSLIC as receiver to establish the validity of claims against the receivership estate or to overturn the way in which FSLIC allocated assets and liabilities. North Mississippi Savings & Loan Association v. Hudspeth, 756 F.2d 1096, 1101-03 (5th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986); Coit Independence Joint Venture v. First-South, F.A., 829 F.2d 563, 564 (5th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1105, 99 L.Ed.2d 267 (1988). The plaintiffs’ claims against Skyline were not assigned to intervenor American Federal Bank, F.S.B. (“American”). They are not secured liabilities, but at best, general unsecured claims. Therefore, they were not transferred to American under § 3 of the Acquisition Agreement, and remain with the receivership estate. II. Motion to Remand Plaintiffs have argued that this case was not properly removed because section 1730(k)(l) contains a proviso limiting the removal of cases: Provided, That any action, suit, or proceeding to which [FSLIC] is a party in its capacity as conservator, receiver, or other legal custodian of an insured State-chartered institution and which involves only the rights or obligations of investors, creditors, stockholders, and such institution under State" } ]

[ { "docid": "2822358", "title": "", "text": "value in the production of aeid phosphate. That the substitution of' other forms of phosphoric acid of equal value as the form described in the contract as bone phosphate of lime was authorized by a well-known general custom of long standing in the phosphate industry was established by the undisputed testimony. That custom was incorporated in the contract by implication, Hostetter v. Park, 137 U. S. 39, 11 S. Ct. 1, 34 L. Ed. 568; and became binding upon appellant whether it knew of the custom or not, 2 Williston on Contracts, 1276. But it is argued that the trade custom of substituting equivalents for bone phosphate of lime was not binding on appellant, because the contract was unambiguous, and that custom was not pleaded by appellee. On the principle that the intention of the parties to a contract should prevail, the language thereof is to he given effect according to its trade meaning, notwithstanding that in its ordinary meaning it is unambiguous. 2 Williston on Contracts, 1172; 5 Wigmore on Evidence, §§ 2463, 2464. Appellee did not plead the custom in its declaration, hut after setting out the contract alleged generally performance on its part. Appellant pleaded only the general issue, and in support of its defense offered evidence which tended to show that without the use of equivalents the phosphate rock shipped by appellee contained less than the stipulated minimum percentage of bone phosphate of lime. Appellant’s plea being in short by consent, appellee was entitled under the Alabama practice, as well as by the language of the plea itself, to offer evidence in reply to any defense given in evidence by appellant. In this state of the pleadings, appellee was clearly entitled to prove the usage or custom on which it relies in reply to the evidence given by appellant’s expert witnesses, and it becomes unnecessary to decide whether in the absence of appellant’s pleading in short by consent appellee would have been required to plead usage or custom in its declaration. The samples of roek which were sent to the chemists for analysis were taken from" } ]

[ { "docid": "23263215", "title": "", "text": "the customs and established practice in such industry, baked enamel finished surfaces are not •considered as a previously painted surface, where repainting is required for a previously painted surface.” The Board, however, did not consider this evidence on the ground that it did not find any ambiguity in the specifications and, consequently, did not believe it was required to resort to trade practice or custom to show the intention of the parties. Instead it held that on the face of it a baked enamel surface is a painted surface. Admittedly, as asserted by Appellant, [the Board said] baked enamel is a factory finish arrived at by heat treatment of metal surfaces. But the basic question is what is applied to the metal to obtain the finish. The answer is obvious — enamel. Enamel is a paint. Accordingly, a baked enamel surface is a surface which results from applying enamel (paint) to metal. The Board’s failure to consider the evidence of trade practice and custom on the basis of absence of ambiguity was in error. For the principle is now established in this court (and almost every other court) that in order that the intention of the parties may prevail, the language of a contract is to be given effect according to its trade meaning notwithstanding that in its ordinary meaning it is unambiguous. That is to say that trade usage or custom may show that language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning. See e.g., Buffalo Merchandise Warehouses v. United States, 115 Ct. Cl. 568, 572, 88 F. Supp. 276, 277 (1950); Ricker v. United States, 126 Ct. Cl. 460, 465-66, 115 F. Supp. 193, 196-97 (1953), cert. denied 347 U.S. 927 (1954); Alabama Chemical Co. v. International Agricultural Corp., 35 F. 2d 907, 909-10 (5th Cir. 1929); Distillers Distributing Corp. v. Sherwood Distilling Co., 180 F. 2d 800, 804 (4th Cir. 1950); Hurst v. W. J. Lake & Co., 141 Oreg. 306, 16 P. 2d 627 (1932); Ermolieff v. RKO Radio Pictures, 19 Cal. 2d" }, { "docid": "14818259", "title": "", "text": "they are incapable of denoting more than one thought. In addition to the multiplicity in meaning of words set forth in the dictionaries there are the meanings imparted to them by trade customs, local uses, dialects, telegraphic codes, etc. One meaning crowds a word full of significance, while another almost empties the utterance of any import.” Steuert, 444 A.2d at 662 (quoting) Hurst v. Lake & Co., Inc., 141 Or. 306, 310, 16 P.2d 627, 629 (1932), quoted in 4 Williston, Contracts § 609 (3d ed. 1961). The extrinsic evidence in the instant case, however, shows no such multiplicity of meanings in the language of the guarantees as to create a triable issue of fact. There are no “patent” ambiguities appearing in the agreements. “A patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language use.” Id. (quoting Black’s Law Dictionary 105 (Rev. 4th ed. 1968)). The language of each of the guarantees is unequivocal and clearly evinces an intent to personally bind Tiki-jian. Nor are there “latent” ambiguities in the meaning of the words used in the guarantees. “[A] latent ambiguity arises from extraneous or collateral facts which make the meaning of a written agreement uncertain although the language thereof, on its face, appears clear and unambiguous.” Id. (citing Easton v. Washington County Ins. Co., 391 Pa. 28, 137 A.2d 332 (1957)). See also Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y.1960) (Finding the word “chicken” in a contract ambiguous, the court looked to determine whether it had any meaning in trade usage and found none.) Tikijian has not proffered evidence that all banks do not enforce personal guarantees against corporate principals. Indeed, all Tikijian has shown is that banking institutions definitely will take action to enforce a personal guarantee in the event of fraud. This court takes note that there is extensive case law in which banks have successfully enforced personal guarantees against corporate principals. See, e.g., Citibank, N.A. v. Plapinger, 66 N.Y.2d 90, 495 N.Y. S.2d 309, 485 N.E.2d 974 (1985); and" }, { "docid": "17635781", "title": "", "text": "45. . See, e. g., 3 Corbin, Contracts (1951) 155-356; Aschenbrenner v. United States & Fidelity Guaranty Co., 292 U.S. 80, 84-85, 54 S.Ct. 590, 78 L.Ed. 1137; Texas & Pacific Ry. Co. v. Reiss, 183 U.S. 621, 626, 22 S.Ct. 253, 46 L.Ed. 358; Southern Ry. Co. v. Coca-Cola Bottling Co., 4 Cir., 145 F.2d 304, 307; New Prague Flouring Mill Co. v. Spears, 194 Iowa 437, 189 N.W. 815; Insurance Co. v. Slaughter, 12 Wall. 404, 407, 20 L.Ed. 444 ; 63 Harv.L.Rev. (1950) 494; Mellinkoff, How To Make Contracts Illegible, 5 Stamford L.Rev. (1953) 418. Cf. “contracts of adhesion,” i. e., resulting from a situation “where the energy of one party is confined to choosing whether to sign on the dotted line a contract dictated by the other.” See, e. g., Paton, Jurisprudence (1946) 297; Kessler, Contracts of Adhesion, 43 Col. L.Rev. (1943) 629; Llewellyn, Book Review, 52 Harv.L.Rev. (1939) 700; Bekken v. Equitable Life Assur. Soc., 70 N.D. 122, 293 N.W. 200. . Elastic Stop Nut Corp. v. United States, 113 F.Supp. 446, 449, 126 Ct.Cl. 100. . See, e. g., 3 Corbin, Contracts (1953) 54-56, 59, 257-259, 456-457; Wigmore, Evidence (3d Ed. 1940) Sec. 2417; Columbian National Life Ins. Co. v. Black, 10 Cir., 35 F.2d 571, 71 A.L.R. 128; Commercial Casualty Ins. Co. v. Lawhead, 4 Cir., 62 F.2d 928; Ohio Casualty Ins. Co. v. Callaway, 10 Cir., 134 F.2d 788; Murray v. Gadsden, 91 U.S.App.D.C. 38, 197 F.2d 194, 195, 201-202, 33 A.L.R.2d 554. . See, e. g., 3 Corbin, Contracts (1951) (pages cited in preceding footnote); Wigmore, Evidence (3d Ed. 1940) Sec. 2416 (pp. 53-54); Broidy v. State Mutual Life Assur. Co., 2 Cir., 186 F.2d 490; Prudential Ins. Co. of America v. Strickland, 6 Cir., 187 F.2d 67, 70; Kansas City Life Ins. Co. v. Cox, 6 Cir., 104 F.2d 321, 324; Electric Stop Nut Corp. v. United States, 113 F.Supp. 446, 449, 126 Ct.Cl. 100; Ohio Casualty Ins. Co. v. Callaway, 10 Cir., 134 F.2d 788; cf. Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 435, 12 S.Ct. 239," }, { "docid": "22839651", "title": "", "text": "but not to contradict or override an unambiguous contract provision. In R.B. Wright Construction Co. v. United States, 919 F.2d 1569 (Fed.Cir.1990), for example, the contract required the contractor to apply three coats of paint to specified surfaces. The contractor applied three coats of paint to previously unpainted surfaces and, in accordance with industry practice, applied only two coats of paint to previously painted surfaces. This court interpreted the contract to unambiguously require three coats of paint on all surfaces, regardless of industry practice: “Neither a contractor’s belief nor contrary customary practice ... can make an unambiguous contract provision ambiguous, or justify a departure from its terms.” Id. at 1572; see also WRB Corp. v. United States, 183 Ct.Cl. 409 (1968) (finding that a trade practice of using masonite doors on paint-grade cabinets does not overcome an unambiguous contract provision requiring wood doors on paint-grade cabinets); George Hyman Constr. Co. v. United States, 215 Ct.Cl. 70, 564 F.2d 939, 945 (1977) (“A trade practice cannot prevail over unambiguous provisions of a contract____”). The second line of cases holds that this court may consult evidence of trade practice and custom to show that “language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning.” Gholson, Byars, and Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987, 999 (1965). In Gholson, this court’s predecessor considered the meaning of a contract term requiring “painting of all previously painted or varnished surfaces.” The contractor contended that a baked enamel surface, although admittedly a “previously painted surface,” was not regarded as such in the industry. The Board declined to consider the evidence of trade practice because the contract language was clear on its face. On appeal, the United States Court of Claims reversed: “[T]he principle is now established in this court (and almost every other court) that in order that the intention of the parties may prevail, the language of a contract is to be given effect according to its trade meaning notwithstanding that in its ordinary meaning it is unambiguous.”" }, { "docid": "16358169", "title": "", "text": "pp. 1, 3, 314 F. 2d 501, 502 (1963), and cases cited; Guyler v. United States, ante, p. 159, 314 F. 2d 506 (1963); cf. Ekco Products Co. v. United States, 160 Ct. Cl. 75, 84, 312 F. 2d 768, 773 (1963). In interpreting this subcontract de novo, as we must, we gain little help from the evidence as to the pertinent trade practice. Proof of a trade usage in the business community within which the agreement was framed is normally a factor used to clarify the meaning of a contractual instrument, especially one which appears ambiguous. See Ricker v. United States, 126 Ct. Cl. 460, 465-66, 115 F. Supp. 193, 196-97 (1953), cert. denied 347 U.S. 927 (1954). Both sides have sought the advantage of this principle. Plaintiff attempts to prove an established trade practice of including a written provision in the contract if the contractor, during the course of a contract to rehabilitate a heating plant, is to be denied access to the plant in a fully shut-down condition; defendant tries to show that an agreement which provided for a beating plant to be totally shut down for rehabilitation, other than in the summertime, would be irreconcilable with the accepted trade usage. Unfortunately, not only was the evidence on this point directly conflicting, but also in our view neither party has proved the existence of its asserted practice or the non-existence of the other practice by a preponderance of the evidence. This useful aid in applying business agreements is therefore unavailable to us here. If the parties’ subjective intentions (at the time of the award) coincided, that guide to the meaning of the contract might be decisive (see Blackburn v. United States, 126 Ct. Cl. 874, 877, 116 F. Supp. 584, 586 (1953)), but in this case we are likewise deprived of that support; the parties held opposing views on the critical point. It appears certain, from the fact that the defendant told the other prospective bidder that it would not permit a complete shut-down of the heating plant, that this was the intention of the Government and" }, { "docid": "22839652", "title": "", "text": "of cases holds that this court may consult evidence of trade practice and custom to show that “language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning.” Gholson, Byars, and Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987, 999 (1965). In Gholson, this court’s predecessor considered the meaning of a contract term requiring “painting of all previously painted or varnished surfaces.” The contractor contended that a baked enamel surface, although admittedly a “previously painted surface,” was not regarded as such in the industry. The Board declined to consider the evidence of trade practice because the contract language was clear on its face. On appeal, the United States Court of Claims reversed: “[T]he principle is now established in this court (and almost every other court) that in order that the intention of the parties may prevail, the language of a contract is to be given effect according to its trade meaning notwithstanding that in its ordinary meaning it is unambiguous.” Id.; see also W.G. Cornell Co. v. United States, 179 Ct.Cl. 651, 376 F.2d 299, 311 (1967) (finding legal error where the Board failed to consider trade practice and custom because of its holding that the contract was unambiguous). These two lines of cases, however, only seem to diverge. In practice, they are both consistent with contract interpretation doctrines and practices. The United States Court of Federal Claims recognized those unifying principles in Western States Construction Co. v. United States, 26 Cl.Ct. 818 (1992). In that case, the' trial court considered the meaning of a contract term requiring wrapping of underground “metallic pipe” with protective tape. The contractor introduced evidence showing that, in the industry, “cast iron soil pipe,” although technically “metallic pipe,” was not wrapped with protective tape. The Court of Federal Claims, aptly reconciling the two seemingly conflicting lines of cases of this court and its predecessor, consulted trade practice and custom to determine whether wrapping of cast iron soil pipe was consistent with the contract and thus whether an ambiguity arose at" }, { "docid": "13539072", "title": "", "text": "of the four corners of the contract to aid its interpretation, the conduct of the parties prior to the onset of dispute is entitled to “great weight.” General Warehouse Two, Inc. v. United States, 181 Ct.Cl. 180, 187, 389 F.2d 1016, 1020 (1967). Trade practice can be used to interpret a contract, but only if the contract is ambiguous. George Hyman Constr. Co. v. United States, 215 Ct.Cl. 70, 81, 564 F.2d 939, 945 (1977). “Neither a contractor’s belief nor contrary customary practice, however, can make an unambiguous contract provision ambiguous, or justify a departure from its terms.” R.B. Wright Constr Co. v. United States, 919 F.2d 1569, 1572 (Fed.Cir.1990); accord Metric Constructors, Inc. v. NASA, 169 F.3d at 751. Courts allow evidence of trade meaning, usage and custom to explain or define contract language, although such evidence may not be used to vary or contradict contract language. See George Hyman Constr. Co. v. United States, 832 F.2d 574, 581 (Fed.Cir.1987); W.G. Cornell Co. v. United States, 179 Ct.Cl. 651, 669-70, 376 F.2d 299, 311 (1967); see also Astro-Space Lab., Inc. v. United States, 200 Ct.Cl. 282, 294 n. 6, 470 F.2d 1003, 1009 n. 6 (1972) (allowing evidence of technical publications and their trade nomenclature to demonstrate technical terms and established industrial meaning). A basic tenet of modern contract law is that the introduction of evidence on trade meaning, usage and custom is “an acceptable aid in interpreting contract terms.” Tibshraeny Bros. Constr., Inc. v. United States, 6 Cl.Ct. 463, 470 (1984) (citing Gholson, Byars & Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 395, 351 F.2d 987, 999 (1965)). “[T]rade usage or custom may show that language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning.” Gholson, Byars & Holmes Constr. Co. v. United States, 173 Ct.Cl. at 395, 351 F.2d at 999 (citations omitted). With these principles in mind, it is evident that the terms of PCL’s contract with USBR are not ambiguous and that the contract itself provided (1) that the drawings would" }, { "docid": "23263217", "title": "", "text": "543, 122 P. 2d 3 (1942); Restatement, Contracts, § 246 and comment on clause (a); Williston on Contracts (3d ed.) §§ 648, 650; Wigmore on Evidence (3d ed.) §2463, pp. 203-4; McBain The Rule Against Disturbing Plain Meaning of Writings, 31 Cal. L. Rev. 145 (1943); Patterson The Interpretation and Construction of Contracts, 64 Col. L. Rev. 833, 839-44 (1964). Of. e.g., Crooks Termi nal Warehouses v. United States, 92 Ct. Cl. 401, 416 (1941); Pioneer Constructors v. Symes, 77 Ariz. 107, 267 P. 2d 740 (1954). The defendant contends, however, that plaintiff has not shown that the government was actually aware of the trade usage and hence that it may not be bound by it. The short answer is that such knowledge will be presumed when (as here) the evidence shows the usage was an established, well-defined and obviously well-recognized one. Buffalo Merchandise Warehouses v. United States, 115 Ct. Cl. 568, 572, 88 F. Supp. 276, 277 (1950); United States v. Stanolind Crude Oil Purshasing Co., 113 F. 2d 194, 200 (10th Cir. 1940); Gelb v. Automobile Ins. Co. of Hartford, 168 F. 2d 774, 775 (2d Cir. 1948); Restatement, Contracts § 247; Williston op. cit. supra, § 661. Moreover, in view of the fact that there was no provision in the contract which expressly or by implication precluded resort to usage in defining the meaning of its terms, plaintiff’s reliance thereon to determine the meaning of the specification requirement in question was entirely reasonable; any ambiguity on this score must be resolved against the government as the drafter of the instrument. E.g., Peter Kiewit Sons’ Company v. United States, 109 Ct. Cl. 390, 418 (1947). On the basis of trade usage, it must be concluded that baked enamel (and hammertone) surfaces in the original 'state were not- “previously painted surfaces” within the meaning of paragraph 5-1 and thus not within the scope of the work required. It is quite true (as the Board observed) that baked enamel finished doors and counters were not specifically excluded by paragraph 5-5 of the specifications which set forth an itemized list of" }, { "docid": "8779105", "title": "", "text": "using the words in this sense; and there is no showing that plaintiff was aware that the words were being used in this sense. Plaintiff’s testimony is to the contrary. Where words in a contract have an ordinary and commonly accepted meaning, they will be given this meaning unless the party who drew the document notifies the other party that the words were intended to convey a different meaning. Moran v. Prather, 23 Wall. 492, 499, 23 L.Ed. 121; Calderon v. Atlas Steamship Co., 170 U.S. 272, 280, 18 S.Ct. 588, 42 L.Ed. 1033; Hongkong & Whampoa Dock Co., Ltd., v. United States, 50 Ct.Cl. 213, 222-223; Hotpoint, Inc., v. United States, Ct.Cl., 117 F.Supp. 572; Leroux & Co., Inc., v. Merchants Distilling Corp., 7 Cir., 165 F.2d 481, 482; Samuels v. United Seamen’s Service, Inc., supra; Stinson v. New York Life Ins. Co., supra; Girdler Corp. v. Charles Eneu Johnson & Co., supra; Restatement of Contracts, sec. 235; 3 Williston & Thompson, sec. 618 (Rev.Ed.1936). Also, when the meaning of words in a contract is doubtful, that doubt must be resolved against the party who drew the contract. Garrison v. United States, 7 Wall. 688, 690, 19 L.Ed. 277; Moulor v. American Life Ins. Co., 111 U.S. 335, 342, 4 S.Ct. 466, 28 L.Ed. 447; Hongkong & Whampoa Dock Co., Ltd. v. United States, supra, 50 Ct.Cl. at page 223; Callahan Construction Co. v. United States, 91 Ct.Cl. 538, 611-612; Merritt v. United States, 95 Ct.Cl. 421, 428; Standard Rice Co. v. United States, 53 F.Supp. 717, 101 Ct.Cl. 85, 95, affirmed 323 U.S. 106, 65 S.Ct. 145, 89 L.Ed. 104; Peter Kiewit Sons’ Co. v. United States, 109 Ct.Cl. 390, 418. The cases relied on by defendant all concern the construction of statutes, not contracts. They do hold that in the construction of statutes, Congress is supposed to have meant the phrase “duration of the war” to include the period between the cessation of hostilities and the execution of a formal treaty of peace, in the absence of circumstances showing a contrary intent. But the meaning of words" }, { "docid": "15597545", "title": "", "text": "contrast, despite the plain language, interpreted the provision as only requiring the replacement of defective, broken, or burned out lamps, and urged that the term “relamping” would have been used if the parties had intended to require the replacement of all lamps, as was the industry practice. Id. at 749-50. The court concluded that the contractor had introduced sufficient evidence of trade practice and custom, and reasonable reliance on that practice and custom, to show that the pertinent contract specifications were “susceptible to two different reasonable interpretations.” Id. at 753. The court based this determination on the absence of the term “relamping” from the contract. Id. This case is quite unlike Metric. Here there is no term in the contract that has an accepted industry meaning different from its ordinary meaning. Nor is there, as in Metric itself, a term with an accepted industry meaning that was omitted from the contract. In short, Jowett has not established that there is an ambiguity in the contract language by reference to trade practice and custom. See Gholson, Byars & Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987, 999 (1965) (“[T]rade usage or custom may show that language ... has, in fact, a meaning different from its ordinary meaning”); see also 5 Samuel Williston, Williston on Contracts § 648, at 6-7 (3d ed. 1961) (“Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by usage to bear, under the circumstances of the case, a meaning different from its normal sense.”); 3 Arthur L. Corbin, Corbin on Contracts § 555, at 233-34 (1960) (noting that trade “evidence often establishes a special and unusual meaning definitely in conflict with the more common and ordinary usages”). As we understand it, Jowett nonetheless makes three distinct trade practice arguments based on its affidavits. First, Jowett urges that there was an industry practice of not insulating air supply ducts located in ceilings. This argument relies on nearly identical paragraphs in two affidavits which affirm that it is" }, { "docid": "23263216", "title": "", "text": "the principle is now established in this court (and almost every other court) that in order that the intention of the parties may prevail, the language of a contract is to be given effect according to its trade meaning notwithstanding that in its ordinary meaning it is unambiguous. That is to say that trade usage or custom may show that language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning. See e.g., Buffalo Merchandise Warehouses v. United States, 115 Ct. Cl. 568, 572, 88 F. Supp. 276, 277 (1950); Ricker v. United States, 126 Ct. Cl. 460, 465-66, 115 F. Supp. 193, 196-97 (1953), cert. denied 347 U.S. 927 (1954); Alabama Chemical Co. v. International Agricultural Corp., 35 F. 2d 907, 909-10 (5th Cir. 1929); Distillers Distributing Corp. v. Sherwood Distilling Co., 180 F. 2d 800, 804 (4th Cir. 1950); Hurst v. W. J. Lake & Co., 141 Oreg. 306, 16 P. 2d 627 (1932); Ermolieff v. RKO Radio Pictures, 19 Cal. 2d 543, 122 P. 2d 3 (1942); Restatement, Contracts, § 246 and comment on clause (a); Williston on Contracts (3d ed.) §§ 648, 650; Wigmore on Evidence (3d ed.) §2463, pp. 203-4; McBain The Rule Against Disturbing Plain Meaning of Writings, 31 Cal. L. Rev. 145 (1943); Patterson The Interpretation and Construction of Contracts, 64 Col. L. Rev. 833, 839-44 (1964). Of. e.g., Crooks Termi nal Warehouses v. United States, 92 Ct. Cl. 401, 416 (1941); Pioneer Constructors v. Symes, 77 Ariz. 107, 267 P. 2d 740 (1954). The defendant contends, however, that plaintiff has not shown that the government was actually aware of the trade usage and hence that it may not be bound by it. The short answer is that such knowledge will be presumed when (as here) the evidence shows the usage was an established, well-defined and obviously well-recognized one. Buffalo Merchandise Warehouses v. United States, 115 Ct. Cl. 568, 572, 88 F. Supp. 276, 277 (1950); United States v. Stanolind Crude Oil Purshasing Co., 113 F. 2d 194, 200 (10th Cir. 1940);" }, { "docid": "599692", "title": "", "text": "sub ply deficiencies in the instrument” (Italics supplied). In Alabama Chemical Co. v. International Agricultural Corp., supra, Judge Bryan, speaking for the Court of Appeals •of .the Fifth Circuit, tersely states the rule and the reason therefor as follows: “On the principle that the intention of the parties to a contract should prevail, the language thereof is to be given effect according to its trade meaning, notwithstanding that in its ordinary meaning it is unambiguous. 2 Williston on Contracts, 1172; 5 Wigmore on Evidence, §§ 2463, 2464.” Defendant’s contention that the broker was ■ without authority to make the warranty is wholly lacking in substance. The fact is that the language used by the seller in describing the spirits to the broker and authorizing him to sell them was almost identical with the language used by the broker himself; and the fact that the seller so described the spirits to the broker is sufficient proof, nothing else appearing, that the broker was authorized to describe them in like manner in making the sale. There would have been no sense in the seller’s making the statement to him otherwise, as he had no interest in the spirits except to sell them. Even if there were no evidence of express authority, the general rule is that an agent to sell has implied authority to bind his principal by statements with respect to the qualities of the subject matter which are riot open to inspection and as to which the principal has reason to know the buyer will desire to be informed. See A. L. I. Restatement of Agency, sec. 63(2); 2 Am.Jur. p. 106; note Ann.Cas.1913D, pp. 478-479; Haynor Mfg. Co. v. Davis, 147 N.C. 267, 61 S.E. 54, 17 L.R.A.,N.S., 193. Equally without merit are contentions that the warranty was negatived by language printed on the broker’s stationery to the effect that he assumes no responsibility and makes no warranty unless in writing and by language in the warehouse receipts, not a part of the contract of sale but issued afterwards, exempting the seller as warehouseman from a number of risks" }, { "docid": "13539066", "title": "", "text": "922 (1976); Dana Corp. v. United States, 200 Ct.Cl. 200, 214, 470 F.2d 1032, 1040 (1972). Contract interpretation begins with the plain language of the agreement. McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed.Cir.1996); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir.1991). Courts will not read ambiguity into a contract provision as long as the contract as a whole or the interpretation of the contract language provides an unambiguous meaning. See International Transducer Corp. v. United States, 30 Fed.Cl. 522, 530 (1994), aff'd, 48 F.3d 1235 (Fed.Cir.1995) (table). Whenever possible, courts look to a “plain language” or “plain meaning” interpretation of contractual documents. Aleman Food Servs., Inc. v. United States, 994 F.2d 819, 822 (Fed.Cir.1993); Gould, Inc. v. United States, 935 F.2d at 1274; see also Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed.Cir.1992) (‘Wherever possible, words of a contract should be given their ordinary and common meaning.”) (citing Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. at 390, 351 F.2d at 972). The ordinary meaning of the language in contractual documents governs, and not a party’s subjective but unexpressed intent. Andersen Consulting v. United States, 959 F.2d at 934; International Transducer Corp. v. United States, 30 Fed. Cl. at 526-27. “Reasonableness is the standard.” Id. at 527. A contract may be said to be ambiguous if it is “susceptible to more than one reasonable interpretation____” Metric Constructors, Inc. v. NASA, 169 F.3d at 751; see Blinderman Constr. Co. v. United States, 17 Cl.Ct. 860, 863 (1989). If a contract’s “provisions are clear and unambiguous, they must be given their plain and ordinary meaning.” Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed.Cir.1993). Thus, “ ‘[w]here a contract is amenable to only one reasonable construction upon its face, it would not be appropriate to strain the language of other contractual provisions to create an ambiguity.’” Bishop Eng’g Co. v. United States, 180 Ct.Cl. 411, 416 (1967) (quoting Jansen v. United States, 170 Ct.Cl. 346, 356, 344 F.2d 363, 370 (1965)). Moreover, the mere fact that the parties disagree upon" }, { "docid": "16358168", "title": "", "text": "is sought here, pursuant to the contract clause providing for an equitable adjustment to compensate for changes in the extent or amount of the work covered by the subcontract. In 1954, the defendant accepted an assignment by the prime contractor of the subcontract, in order to process plaintiff’s claim, and in 1956 and 1958 the claim was denied by the Contracting Officer and the Corps of Engineers Claims and Appeals Board, respectively. The prime reason for rejecting the claim was that there was no change in the “order of work” required by the contract, as the instrument did not call for the shutting down of the three boilers simultaneously. Though the issue is a close one, we have concluded that the Corps of Engineers erred in ruling that plaintiff’s subcontract did not contemplate the shutting down of all three boilers at once. This is a legal question on which neither the court nor the plaintiff is precluded in any way by the administrative decisions. See 41 U.S.C. § 322; Beacon Construction Co. United States, ante, pp. 1, 3, 314 F. 2d 501, 502 (1963), and cases cited; Guyler v. United States, ante, p. 159, 314 F. 2d 506 (1963); cf. Ekco Products Co. v. United States, 160 Ct. Cl. 75, 84, 312 F. 2d 768, 773 (1963). In interpreting this subcontract de novo, as we must, we gain little help from the evidence as to the pertinent trade practice. Proof of a trade usage in the business community within which the agreement was framed is normally a factor used to clarify the meaning of a contractual instrument, especially one which appears ambiguous. See Ricker v. United States, 126 Ct. Cl. 460, 465-66, 115 F. Supp. 193, 196-97 (1953), cert. denied 347 U.S. 927 (1954). Both sides have sought the advantage of this principle. Plaintiff attempts to prove an established trade practice of including a written provision in the contract if the contractor, during the course of a contract to rehabilitate a heating plant, is to be denied access to the plant in a fully shut-down condition; defendant tries to show" }, { "docid": "21280681", "title": "", "text": "the contract. The defendant correctly states the general proposition that, if the contract requires written authorization for extra work, the writing requirement constitutes a condition precedent to recovery for any such work. General Bronze Corp. v. United States, 168 Ct.Cl. 176, 187-88, 338 F.2d 117, 123 (1964); Penner Installation Corp. v. United States, 116 Ct.Cl. 550, 565, 89 F.Supp. 545, 548 (1950), aff'd, 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950); Globe Indemnity Co. v. United States, 102 Ct.Cl. 21, 35, 1944 WL 3709 (1944), cert. denied, 324 U.S. 852, 65 S.Ct. 712, 89 L.Ed. 1412 (1945); Samford v. United States, 78 Ct.Cl. 572, 576, 1933 WL 1800 (1933). Even if a Government representative compels additional work, the Government escapes liability absent adherence to the terms of the contract (such as the written authorization of the contracting officer). Woodcraft Corp. v. United States, 146 Ct.Cl. 101, 103, 173 F.Supp. 613, 614 (1959). As with any general rule, however, this rule contains certain limitations under particular circumstances. In this case, the plaintiff proffers the exceptional circumstance of waiver and estoppel. Waiver describes the abdication of a right under a contract. 4A John C. McBride et al., Government Contracts § 31.20[1], at 31-7 (1993). Express waiver involves the exchange of the relinquishment of a contract right for a defined consideration. Teledyne Lewisburg v. United States, 699 F.2d 1336, 1352 (Fed.Cir.1983). However, waiver may also occur by implication. Roberts v. United States, 174 Ct.Cl. 940, 953, 357 F.2d 938, 946 (1966); Continental Oil Co. v. United States, 83 Ct.Cl. 344, 353, 14 F.Supp. 533, 537-38 (1936), cert. denied, 299 U.S. 510, 57 S.Ct. 30, 81 L.Ed. 378 (1936); Little Falls Knitting Mill Co. v. United States, 44 Ct.Cl. 1, 17, 1908 WL 730 (1908). The Court of Claims has long recognized the application of waiver, either express or implied, to Government contracts. Harvey Radio Laboratories, Inc. v. United States, 126 Ct.Cl. 383, 391, 115 F.Supp. 444, 449 (1953), cert. denied, 346 U.S. 937, 74 S.Ct. 377, 98 L.Ed. 425 (1954); Industrial Uranium Co. v. United States, 180 Ct.Cl. 50, 76, 376" }, { "docid": "15597546", "title": "", "text": "Byars & Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987, 999 (1965) (“[T]rade usage or custom may show that language ... has, in fact, a meaning different from its ordinary meaning”); see also 5 Samuel Williston, Williston on Contracts § 648, at 6-7 (3d ed. 1961) (“Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by usage to bear, under the circumstances of the case, a meaning different from its normal sense.”); 3 Arthur L. Corbin, Corbin on Contracts § 555, at 233-34 (1960) (noting that trade “evidence often establishes a special and unusual meaning definitely in conflict with the more common and ordinary usages”). As we understand it, Jowett nonetheless makes three distinct trade practice arguments based on its affidavits. First, Jowett urges that there was an industry practice of not insulating air supply ducts located in ceilings. This argument relies on nearly identical paragraphs in two affidavits which affirm that it is not “standard practice in the greater Baltimore/Washington area” to insulate air supply ducts in ceilings. However, affidavits describing a supposed common industry practice of not insulating air supply ducts in ceilings are simply irrelevant where the language of the contract is unambiguous on its face. It is well-established that the government can vary from the norm in the trade when contracting for goods and services. R.B. Wright Constr. Co. v. United States, 919 F.2d 1569, 1572-73 (Fed.Cir.1990). Second, again relying on the affidavits, Jowett urges, in somewhat convoluted fashion, that there was a well-established practice of not applying duct insulation to ceilings which form plenums, and that the contract exclusion in paragraph 3.3j for “duct insulation on ... ceilings which form plenums” was unnecessary as applied to the ceilings themselves. Therefore, says Jowett, paragraph 3.3j should be read to refer to the ducts within the ceding spaces. However, there is nothing unusual in writing established trade practice into the contract as a specific exception. Indeed, including such specific language is highly desirable. In any event," }, { "docid": "21166034", "title": "", "text": "usage, not a normal delivery date, and that it was entitled to deliver on Monday, October 31. Of course, the notice of termination for default was issued on October 31, but it is plaintiff’s position that it was entitled to the entire day to complete performance. In interpreting the terms of a contract, trade usage should be considered. * * * [T]he principle is now established in this court (and almost every other court) that in order that the intention of the parties may prevail, the language of a contract is to be given effect as to its trade meaning notwithstanding that in its ordinary meaning it is unambiguous. That is to say that trade usage or custom •may show that language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning. * * * [Gholson, Byars Holmes Construction Co. v. United States, 173 Ct. Cl. 374, 395, 351 F. 2d 987, 999 (1965).] Assuming that naming a date certain may still not preclude evidence of trade usage to show that another delivery date was intended, plaintiff has done nothing more than raise the spectre of error on the part of the Board. Having intro duced no evidence that trade usage would delay- a Saturday delivery date until the next Monday, we have no basis for deciding that the Board was wrong in not even considering this argument. The Gholson case, supra, spoke of trade usage because unrebutted statements by members of the trade were in evidence. Defendant here denies the existence of any trade usage, and plaintiff’s failure to adduce any evidence once again cuts the underpinnings from its argument. For all the foregoing reasons, we believe that the ASBCA’s decision is not arbitrary or capricious, is supported by substantial evidence, and is entitled to finality. Accordingly, defendant’s cross motion for summary judgment is granted, plaintiff’s motion for summary judgment is denied, and the case is dismissed." }, { "docid": "15959407", "title": "", "text": "the meaning of the term “salvage material” in the trade or business of scrapping and dismantling ships, on the grounds that the contract provision was clear and unambiguous and no extrinsic evidence was needed. In our opinion the objection of plaintiffs is not well taken. In order to introduce evidence of a custom or usage it is not necessary that an ambiguity be shown to exist. On the principle that it is the intention of the parties which is to prevail, the language of a contract is to be given effect according to its trade meaning notwithstanding that its meaning on a casual reading may be unambiguous. Alabama Chemical Co. v. International Agricultural Corp., 5 Cir., 35 F.2d 907, 909; Hurst v. W. J. Lake Co., 141 Or. 306, 16 P.2d 627, 89 A.L.R. 1222. Such a meaning is incorporated into the contract by implication. Robinson v. United States, 13 Wall. 363, 366, 20 L.Ed. 653; Murphy v. Warner Bros. Pictures, Inc., 9 Cir., 112 F.2d 746, 748. The use which the Government made of the hull after the requisitioning is, in our opinion, immaterial since the rights of the plaintiffs in respect to the Oregon were established under the contract of sale. The requirements of the Fifth Amendment are that the owner shall receive the value of what he loses and not what the taker may have gained. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 81, 33 S.Ct. 667, 57 L.Ed. 1063. We hold, therefore, that under the contract of sale of January 23, 1943, what the plaintiffs lost was not a barge or an unpropelled vessel but the opportunity to dismantle and scrap the hull of the Oregon and dispose of its various segments as either scrap or salvage items. We come next to the determination of the value to be. placed on the hull as scrap. Plaintiffs claim $148,137.52 represents the profit which they would have derived if they had been permitted to dismantle the hull and reduce it to scrap. Defendant contends that $15,000 represents the value of the hull. When determining what" }, { "docid": "15959406", "title": "", "text": "under the terms of the contract, so far as plaintiffs were concerned, the hull of the ship was to be reduced to scrap. The greater weight of the evidence shows, and we have found that in the trade of scrapping and dismantling ships, the term “salvage material” is commonly used to refer to machinery and other fixtures which can be used as separate units when removed from the ship, and that such term does not mean the entire hull of a vessel. Finding 4. In view of the facts and circumstances under which the Oregon was disposed of for scrapping, we think it is clear that under the provision of the contract relating to salvage material and scrap material, plaintiffs were given a free hand in determining which of these equipment and fixture items might be salvaged or scrapped, but it did not entitle them to classify the hull in its en tirety as a salvageable item .for sale m the market as a barge. Plaintiffs objected to the admission of this testimony as to the meaning of the term “salvage material” in the trade or business of scrapping and dismantling ships, on the grounds that the contract provision was clear and unambiguous and no extrinsic evidence was needed. In our opinion the objection of plaintiffs is not well taken. In order to introduce evidence of a custom or usage it is not necessary that an ambiguity be shown to exist. On the principle that it is the intention of the parties which is to prevail, the language of a contract is to be given effect according to its trade meaning notwithstanding that its meaning on a casual reading may be unambiguous. Alabama Chemical Co. v. International Agricultural Corp., 5 Cir., 35 F.2d 907, 909; Hurst v. W. J. Lake Co., 141 Or. 306, 16 P.2d 627, 89 A.L.R. 1222. Such a meaning is incorporated into the contract by implication. Robinson v. United States, 13 Wall. 363, 366, 20 L.Ed. 653; Murphy v. Warner Bros. Pictures, Inc., 9 Cir., 112 F.2d 746, 748. The use which the Government made of" }, { "docid": "14818258", "title": "", "text": "even if the contract was a personal guarantee, it was the custom and practice of banking institutions not to enforce personal guarantees against corporate principals. “[Sjome of the surrounding circumstances always must be known before the meaning of the words can be plain and clear; and proof of the circumstances may make a meaning plain and clear when in the absence of such proof some other meaning may also have seemed plain and clear.” 3 Corbin, Contracts § 542 (1960). Thus, this court must look at the custom and usage evidence proffered by Tikijian before it can determine whether it bears on the interpretation of the guarantees. “Indeed, whether the language of an agreement is clear and unambiguous may not be apparent without cognizance of the context in which the agreement arose. The flexibility of or multiplicity in the meaning of words is the principal source of difficulty in the interpretation of language. Words are the conduits by which thoughts are communicated, yet scarcely any of them have such a fixed and single meaning that they are incapable of denoting more than one thought. In addition to the multiplicity in meaning of words set forth in the dictionaries there are the meanings imparted to them by trade customs, local uses, dialects, telegraphic codes, etc. One meaning crowds a word full of significance, while another almost empties the utterance of any import.” Steuert, 444 A.2d at 662 (quoting) Hurst v. Lake & Co., Inc., 141 Or. 306, 310, 16 P.2d 627, 629 (1932), quoted in 4 Williston, Contracts § 609 (3d ed. 1961). The extrinsic evidence in the instant case, however, shows no such multiplicity of meanings in the language of the guarantees as to create a triable issue of fact. There are no “patent” ambiguities appearing in the agreements. “A patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language use.” Id. (quoting Black’s Law Dictionary 105 (Rev. 4th ed. 1968)). The language of each of the guarantees is unequivocal and clearly evinces an intent to personally bind Tiki-jian." } ]

[ { "docid": "23672892", "title": "", "text": "Circuit in Prairie Trunk considered the trackage rights at issue to be de minimis since they covered only 5.36 miles of track. Id. at 526. Here, we fail to comprehend why a mere 14.48 miles of trackage rights should be considered any more significant. Second, rather than not reviewing adequately the legislative history of section 11343, the Seventh Circuit followed the same analysis which we now follow, holding section 11343 inapplicable because it is concerned solely -with multi-carrier transactions. Id. Finally, regardless whether labor protective conditions otherwise were imposed in Prairie Trunk, section 10901 leaves that determination to the sole discretion of the ICC. Given that section 10901 reasonably may be interpreted to include trackage rights acquisitions over single lines by non-carriers, the only remaining issue to resolve is whether the ICC properly classified SIRY, a newly formed, wholly owned subsidiary of NYS & W, as a noncarrier for the purposes of section 10901. We have little difficulty in concluding that SIRY was classified properly. Our review of the agency’s factual finding is governed by the Administrative Procedure Act, 5 U.S.C.A. § 706 (1977), which requires approval of the agency’s decision unless such decision is found to be arbitrary, capricious, an abuse of discretion or not in accordance with law, id. § 706(2)(A), or is not supported by substantial evidence, id. § 706(2)(E). Here, the ICC, in response to RLEA’s petition to reconsider its initial ap proval of the exemption, found that SIRY was formed not to elude the otherwise applicable provisions of section 11343, but rather to distance the parent from the inherent risks involved in the continued operation of a rail line. SIRY has assumed all of the risks of the venture on its own and is not to be financially guaranteed by its parent, absent its direct obligations to SIRC pursuant to the sale. Given these indicia of independence, we find nothing improper about classifying SIRY, a completely new enterprise, as a noncarrier even though its parent, NY{3 & W, is a carrier. RLEA’s contention that the ICC erred in looking to the corporate form of SIRY" } ]

[ { "docid": "5696348", "title": "", "text": "buyer to guarantee that the employees of the purchased carrier will “not be in a worse position related to their employment” for at least four years after the sale. 42 U.S.C. § 11347. Section 11343 also imposes protective labor conditions where the buyer is a noncarrier that already controls other carriers; i.e., a holding company whose subsidiaries are rail carriers. In this case, the ICC granted SouthRail an exemption that permitted it to avoid protective labor conditions. The exemption evolved in the following manner: The ICC is required under 49 U.S.C. § 10901 to approve and regulate the acquisition of rail carriers by noncarriers. However, after Congress expanded the ICC’s power to exempt various transactions from strict regulation, the Commission designated the acquisition of carriers by noncarriers to be a special class of transactions, and exempted the class from regulation under section 10901, provided that the noncarrier had been formed for a legitimate business purpose and not merely to avoid the obligation of protective labor conditions. To use a section 10901 class exemption a noncarrier must publish a notice in the Federal Register that (1) it plans to acquire a carrier, and (2) the acquisition falls within the class of transactions exempted from section 10901. Parties opposed to the non-carrier’s proposal must petition the ICC to revoke the exemption; otherwise, it goes into effect soon after publication of the notice. On December 4, 1987, SouthRail published its notice of intent to acquire GMR under a section 10901 class exemption. The unions responded by petitioning the ICC to revoke the exemption, insisting that section 11343 applied because SouthRail was a carrier. The parties engaged in seven months of discovery and then filed supplemental petitions and responses. On August 15, 1989, the ICC issued a Decision and Order in which it denied the unions’ petitions to revoke SouthRail’s class exemption. The ICC found that: Mid-South formed SouthRail to acquire and operate GMR; MidSouth formed SouthRail for the legitimate business purpose of shielding itself and its subsidiaries from the financial risks involved in the acquisition of GMR; MidSouth did not financially guarantee SouthRail’s" }, { "docid": "5696350", "title": "", "text": "performance; and SouthRail assumed nearly all of the financial risks involved in the acquisition. The ICC noted that SouthRail planned to publish its own tariffs, hire its own employees, and acquire its own operating material. The ICC concluded that SouthRail was an independent corporate entity entitled to noncarrier status. In reaching its conclusion, the ICC rejected the unions’ argument that MidSouth created SouthRail to evade the cost of protective labor conditions. The ICC acknowledged that SouthRail’s agreement to buy GMR included provisions that allowed it to terminate the deed if it were denied a class exemption. But the ICC found that [t]he termination provisions were included in the purchase agreement because labor protection costs were a material . economic consideration to both sides. The parties were not seeking to avoid the cost; they just desired an opportunity to renegotiate the purchase price if the Commission determined that the acquisition was subject to section 11343. J.A. 18. The proceedings pertaining to the ICC’s regulation of SouthRail’s acquisition of GMR are the “acquisition proceedings,” as opposed to the “control proceedings,” which were separate, related proceedings that concerned MidSouth’s control of SouthRail. At approximately the same time that SouthRail filed its notice of exemption, MidSouth petitioned the ICC for an exemption pursuant to 49 U.S.C. § 10505 that would allow it to control SouthRail free from the ICC regulation which would otherwise have been required by section 11343. On February 1, 1908, the ICC granted MidSouth’s petition. However, section 11347 makes protective labor conditions mandatory for transactions subject to section 11343 regardless of whether they are exempted from that section’s regulatory requirements. Accordingly, the ICC imposed protective labor conditions to protect the employees of SouthRail, MSRC and MidLou. The unions contested this decision before the Commission, arguing that section 11347 required it to impose the same protective labor conditions for employees of GMR, but the ICC disagreed because the GMR was not a party to the control proceeding. We affirmed in an unpublished opinion. See MidSouth Corp.— Continuance in Control Exemption—SouthEastern Rail Corp., No. 31186 (I.C.C. February 12, 1988), aff'd sub nom. Railway" }, { "docid": "18720060", "title": "", "text": "support of the Commission’s finding. Substantial evidence exists to support the agency’s finding. The lease, tariffs, and car and interchange agreements were in place. Iowa Interstate Statement, Exhibits A and B (Oct. 18, 1984). Counsel averred that Iowa Interstate was able to operate immediately upon closing. Iowa Interstate Statement, p. 5 (Sept. 18, 1984); Iowa Interstate Statement, pp. 3-5 (Oct. 18, 1984). Finally, the new operator actually operated a car on the line on October 14, 1984. Iowa Interstate Statement, p. 4 n. 2 (October 16, 1984). This Court rejects petitioners’ invitation to reweigh the evidence. See Ralston Purina Co. v. Louisville & Nashville Railroad, 426 U.S. 476, 477-78, 96 S.Ct. 2160, 2161, 48 L.Ed.2d 781 (1976). IV. Intervenor UTU claims that because Iowa Interstate’s proposal included a provision for trackage rights over a segment of the lines at issue, specifically, the 98.5 mile segment between Bureau and Blue Island, Illinois, the transactions properly fall under 49 U.S.C. § 11343 (“section 11343”), not 49 U.S.C. § 10901 (“section 10901”). If this is the case, the imposition of labor protective conditions is mandatory. Because the proposed overhead trackage rights operations are merely part of a single new integrated operating proposal made by a noncarrier, the Commission properly determined that the discretionary labor protective provisions of section 10901 apply. Furthermore, the Commission rea sonably determined that imposition of labor conditions was unnecessary. The I.C.C. has long distinguished between non-carrier acquisitions and other purchase transactions that involve two or more existing rail carriers. Application Proc. Construe., Acq. or Opr. R. Lines, 365 I.C.C. 516, 518 (1982) (“Application Proc.”)', Okmulgee Northern Ry. Co. Abandonment, 320 I.C.C. 637, 638-39 (1964) (“Okmulgee”)', Iowa Term. R. Co. Acquisition and Operation, 312 I.C.C. .546, 548 (1961). It is well settled that the acquisition of a railroad, even an active line, by a non-carrier, including a newly-formed entity organized for the purpose of providing interstate common carrier service, is governed by the requirements of 49 U.S.C. § 10901, and not by 49 U.S.C. § 11343. See, e.g., Black v. ICC, 762 F.2d 106, 111 (D.C.Cir.1985); Durango & S.N. G.R." }, { "docid": "5696354", "title": "", "text": "17 (D.C.Cir.1985) (failure to raise section 11343(a)(5) claim before ICC removes issue from appellate review); Hix v. Director, OWCP, 824 F.2d 526, 527 (6th Cir.1987) (well-established practice of appellate courts to refuse to consider claims not first presented to the agency below); see also Pinney Dock and Transp. Co. v. Penn Cent. Corp., 888 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988); Railway Labor Executives’ Ass’n v. United States, 791 F.2d 994, 1000-01 (2d Cir.1986). B. An entity may invoke a section 10901 class exemption if it is a noncarrier and an independent corporate entity that was not created merely to avoid protective labor conditions. See Class Exemption Case. The unions argue that SouthRail fails to satisfy any of these criteria. The unions first argue that SouthRail should be deemed to be a carrier because it is not an independent corporate entity, but the alter ego of its noncarrier parent. They insist that Marshall and Alleghany compel the ICC to ignore the integrity of corporate organizations and conclude that all controlled subsidiaries are, by their nature, not independent entities but integral parts of their controlling holding companies. We cannot agree. We note that SouthRail controls no rail lines other than GMR’s, and operated none before it acquired GMR. Indeed, it did not exist before it was created to acquire and operate GMR. Thus, the unions’ ability to characterize SouthRail as a carrier lies in the persuasiveness of their argument that controlled subsidiaries are by definition the alter ego of their controlling holding companies. We find the unions’ arguments to be completely contrary to contemporary notions of business associations, in that they ignore the distinction between being controlled by a holding company and being an integral part of the holding company. For example, in Rio Grande Indus., Inc. — Purchase and Related Trackage Rights — Soo Line Railroad Co. Line, No. 31505 (I.C.C. November 15, 1989), the holding company established a new subsidiary for the purpose of acquiring carriers that other subsidiaries would then operate. The ICC ruled that the new subsidiary" }, { "docid": "5696357", "title": "", "text": "the ICC must review is that between parent and subsidiary. In finding SouthRail to be an independent corporate entity, the ICC found it significant that SouthRail had assumed nearly all of the financial risks and obligations involved in the GMR acquisition and that its performance was not guaranteed by its parent holding company. Specifically, SouthRail assumed various loans and notes from GMR that amounted to more than $13 million, and it borrowed or generated most of the capital to finance the takeover itself. SouthRail did borrow $2 million from MSRC, and MidSouth agreed to be the primary obligor on GMR promissory notes to G.E. up to $1 million. The ICC concluded, however, that in the context of the entire transaction, MidSouth played a “relatively small part” in funding the takeover. The ICC also found it significant that SouthRail would operate the GMR line itself, publishing its own tariffs, hiring its own employees and engaging in financial and contractual obligations in its own name. The unions accuse the ICC of exalting corporate form over substance and failing to look past the corporate shells in this case. This attack upon the commission’s analysis is groundless. The unions also acknowledge that MidSouth created South-Rail to insulate itself from the financial risks involved in the GMR acquisition. They argue that MidSouth would not lose the corporate protection of a subsidiary if the ICC determined that for purposes of section 11343, SouthRail was not an independent entity. This argument is irrelevant and based upon the speculation that the ICC’s decision to pierce the corporate shield would have no res judicata effect in any other proceedings. We agree with the ICC that where a holding company establishes a subsidiary to acquire and operate a carrier as an ongoing enterprise, and where the subsidiary assumes the financial risks of its operations, the subsidiary is not necessarily an alter ego of the holding company but may be, based upon the facts of the case, an independent corporate entity. We conclude that the ICC’s consideration of the facts in this case was exhaustive, and its findings are neither arbitrary" }, { "docid": "5696358", "title": "", "text": "failing to look past the corporate shells in this case. This attack upon the commission’s analysis is groundless. The unions also acknowledge that MidSouth created South-Rail to insulate itself from the financial risks involved in the GMR acquisition. They argue that MidSouth would not lose the corporate protection of a subsidiary if the ICC determined that for purposes of section 11343, SouthRail was not an independent entity. This argument is irrelevant and based upon the speculation that the ICC’s decision to pierce the corporate shield would have no res judicata effect in any other proceedings. We agree with the ICC that where a holding company establishes a subsidiary to acquire and operate a carrier as an ongoing enterprise, and where the subsidiary assumes the financial risks of its operations, the subsidiary is not necessarily an alter ego of the holding company but may be, based upon the facts of the case, an independent corporate entity. We conclude that the ICC’s consideration of the facts in this case was exhaustive, and its findings are neither arbitrary nor an abuse of discretion, and thus are supported by substantial evidence. We therefore uphold the Commission’s conclusion that SouthRail is a noncarrier and an independent corporate entity. The unions next attack the ICC’s conclusion that SouthRail was not created merely to avoid the cost of protective labor conditions under section 11343. The unions point to the provisions in the acquisition agreement that allows SouthRail to cancel the deal if it cannot obtain a section 10901 class exemption and avoid protective labor conditions. The unions assert that these escape provisions demonstrate the parties’ intent to avoid protective labor conditions. SouthRail explained to the Commission that the escape provisions were included because it could not have afforded to buy GMR if it had to pay the costs of labor protection. The ICC found this explanation was plausible and that it did not detract from the legitimate business practice of using independent subsidiaries to guard against risks and liabilities. The ICC also found it reasonable that “labor protection costs were a material economic consideration to both sides.”" }, { "docid": "23672887", "title": "", "text": "rights over ... a railroad line ... owned or operated by another rail carrier.” 49 U.S.C.A. § 11343(a)(6) (1985). By its terms, therefore, the provision is limited to acquisitions involving two or more carriers. This stems from “the fact that § 11343 is plainly concerned not with new, non-carrier entities entering the railway market through limited acquisitions ..., but with transactions'integrating two or more carriers and with the effect of multi-carrier transactions on competition.” Black v. I.C.C., 762 F.2d at 115. Moreover, section 11343 specifies two situations involving noncarriers: where a noncarrier acquires control “of a least 2 carriers,” 49 U.S.C.A. § 11343(a)(4), and where a noncar-rier that controls a number of carriers acquires control of an additional carrier, id. § 11343(a)(5). Since the statute includes only these two noncarrier transactions, it is logical to conclude that other noncarrier transactions, such as a trackage rights acquisition over a single line, are not encompassed within that statute. Judicial extension of the statute to include other noncar-rier transactions not otherwise specified within that provision, thereby imposing upon the noncarrier the mandatory protective conditions of that statute, may simply “discourage such new entry into the rail market.” Black v. I.C.C., 762 F.2d at 115. RLEA’s reliance on the legislative history to demonstrate that Congress intended all trackage rights acquisitions to be governed by section 11343 is entirely misplaced. Nowhere in the legislative history is there any indication that Congress intended to include noncarriers within section 11343 for single line trackage rights acquisitions. In fact, the passages referred to by RLEA discuss trackage rights in relation to the unification of carriers and in terms of one railroad acquiring operating rights over another, e.g., S.Rep. No. 433, 76th Cong. 1st Sess. 26, 29 (1939); this language hardly covers a situation where a noncarrier acquires such rights over a single line. We further reject RLEA’s assertion that Southern Alabama and this case mark a dramatic shift in ICC policy toward the acquisition of trackage rights over single lines by noncarriers. RLEA cites three prior ICC decisions for the proposition that, prior to 1980, the ICC interpreted" }, { "docid": "23672865", "title": "", "text": "10901 governs rail line acquisitions by entities not previously in the rail carriage business and permits such acquisitions “only if the [ICC] finds that the present or future public convenience and necessity require or permit the construction or acquisition (or both) and operation of the railroad line.” Id. § 10901(a). RLEA vehemently opposed the request on the ground that section 10901 did not apply to a trackage rights acquisition. Rather, RLEA asserted, trackage rights fell within the purview of 49 U.S.C. § 11343, the provision governing consolidations, mergers and acquisitions between rail carriers. The basis for RLEA’s position was clear: under section 10901, imposition of labor protective conditions on the parties to the transaction is discretionary with the ICC, id. § 10901(c)(l)(A)(ii), and under section 11343, imposition of such conditions is mandatory, id. § 11347. On April 4, 1985, the ICC issued a decision granting SIRY the requested exemption on the ground that the transaction was of limited scope and that regulation of the assignment was not necessary to carry out ICC policy of furthering rail service. Staten Island Railway Corporation — Exemption From 49 U.S. C. 10901; Delaware Ot-sego Corporation and Staten Island Railway Corporation — Exemption From 49 U.S.C. 11301, Finance Docket No. 30629, at 2 (April 4, 1985) (“Exemption — SIRY”). The ICC further rejected application of section 11343 to the transaction, finding that that provision dealt solely with “the unification of transportation properties of two or more carriers,” id. at 2, and that it did “not apply to transactions where a noncar-rier [SIRY] seeks to acquire or operate a line of railroad.” Id. Consequently, the ICC concluded that section 10901 applied to the transaction, since a noncarrier, SIRY, was the entity acquiring the trackage rights. In so holding, the ICC declined to impose labor protective conditions, following its policy of not imposing such conditions on newly formed acquiring carriers. Id. In the month following the decision, RLEA filed a petition with the ICC to reopen its decision, claiming a material error on the part of the ICC in its analysis. RLEA contended that SIRY, a wholly" }, { "docid": "23672864", "title": "", "text": "of the line once an agreement between the purchasing and selling parties has been reached, the ICC authorized the sale to SIRY. In so doing, it tacitly declined to impose labor protective conditions on the sale, apparently adhering to its prior view that the lack of any specific reference to such conditions within the text of section 10905 foreclosed the ICC from imposing them in such a sale. E.g., Illinois Central Gulf Railroad—Abandonment—in Alexander County, Illinois, 366 I.C.C. 911 (1983), aff'd sub nom. Simmons v. I.C.C., 760 F.2d 126 (7th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 791, 88 L.Ed.2d 769 (U.S.1986). B. Trackage Rights Acquisition Under 49 U.S.C. § 10901 On the same day that SIRC requested the ICC to withdraw the portion of its application for abandonment dealing with trackage rights, DO, NYS & W and SIRY submitted to the ICC a petition for an exemption, pursuant to 49 U.S.C. § 10505, from the requirements of 49 U.S.C. § 10901 for a proposed independent assignment of SIRC’s trackage rights to SIRY. Section 10901 governs rail line acquisitions by entities not previously in the rail carriage business and permits such acquisitions “only if the [ICC] finds that the present or future public convenience and necessity require or permit the construction or acquisition (or both) and operation of the railroad line.” Id. § 10901(a). RLEA vehemently opposed the request on the ground that section 10901 did not apply to a trackage rights acquisition. Rather, RLEA asserted, trackage rights fell within the purview of 49 U.S.C. § 11343, the provision governing consolidations, mergers and acquisitions between rail carriers. The basis for RLEA’s position was clear: under section 10901, imposition of labor protective conditions on the parties to the transaction is discretionary with the ICC, id. § 10901(c)(l)(A)(ii), and under section 11343, imposition of such conditions is mandatory, id. § 11347. On April 4, 1985, the ICC issued a decision granting SIRY the requested exemption on the ground that the transaction was of limited scope and that regulation of the assignment was not necessary to carry out ICC policy of furthering" }, { "docid": "18720061", "title": "", "text": "imposition of labor protective conditions is mandatory. Because the proposed overhead trackage rights operations are merely part of a single new integrated operating proposal made by a noncarrier, the Commission properly determined that the discretionary labor protective provisions of section 10901 apply. Furthermore, the Commission rea sonably determined that imposition of labor conditions was unnecessary. The I.C.C. has long distinguished between non-carrier acquisitions and other purchase transactions that involve two or more existing rail carriers. Application Proc. Construe., Acq. or Opr. R. Lines, 365 I.C.C. 516, 518 (1982) (“Application Proc.”)', Okmulgee Northern Ry. Co. Abandonment, 320 I.C.C. 637, 638-39 (1964) (“Okmulgee”)', Iowa Term. R. Co. Acquisition and Operation, 312 I.C.C. .546, 548 (1961). It is well settled that the acquisition of a railroad, even an active line, by a non-carrier, including a newly-formed entity organized for the purpose of providing interstate common carrier service, is governed by the requirements of 49 U.S.C. § 10901, and not by 49 U.S.C. § 11343. See, e.g., Black v. ICC, 762 F.2d 106, 111 (D.C.Cir.1985); Durango & S.N. G.R. Co. — Acquisition Operation, 365 I.C.C. 292, 295 (1979), aff'd sub. nom. RLEA v. United States, 697 F.2d 285 (10th Cir.1983). On the other hand, the acquisition of an active rail line by an existing carrier is governed by section 11343, which the ICC has found to be analytically more appropriate for dealing with the unification of existing railroad facilities. Application Proc., 365 I.C.C. at 518. Section 10901 and its predecessor are directed at the transportation-oriented activities of a single rail carrier or non-carrier applicants where there is little danger of any adverse competitive consequences. In contrast, the focus in section 11343 proceedings is on the potential anticompetitive impact of multi-carrier transactions. Id.; Matter of Chicago, M., St. P. & Pac. R. Co., 658 F.2d 1149, 1169 (7th Cir.1981) cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); Okmulgee, 320 I.C.C. at 638-40 (1964). Section “11343 is plainly concerned not with new, non-carrier entities entering the railway market through limited acquisitions such as the one at issue here, but with transactions integrating" }, { "docid": "5696359", "title": "", "text": "nor an abuse of discretion, and thus are supported by substantial evidence. We therefore uphold the Commission’s conclusion that SouthRail is a noncarrier and an independent corporate entity. The unions next attack the ICC’s conclusion that SouthRail was not created merely to avoid the cost of protective labor conditions under section 11343. The unions point to the provisions in the acquisition agreement that allows SouthRail to cancel the deal if it cannot obtain a section 10901 class exemption and avoid protective labor conditions. The unions assert that these escape provisions demonstrate the parties’ intent to avoid protective labor conditions. SouthRail explained to the Commission that the escape provisions were included because it could not have afforded to buy GMR if it had to pay the costs of labor protection. The ICC found this explanation was plausible and that it did not detract from the legitimate business practice of using independent subsidiaries to guard against risks and liabilities. The ICC also found it reasonable that “labor protection costs were a material economic consideration to both sides.” J.A. 18. This finding is neither arbitrary nor an abuse of discretion, and is supported by substantial evidence. Therefore, we uphold it. III. In attempting to bring this transaction within the purview of section 11343(a)(5), the unions insist that the ICC’s adjudication of SouthRail’s acquisition of GMR was defective because it did not include the issue of MidSouth’s acquisition of control over GMR through its subsidiary. However, the union failed to raise this issue before the ICC, and, therefore, we will not consider its section 11343(a)(5) claims raised for the first time in this appeal. We conclude that the ICC properly looked past the corporate shells to the underlying relationships between the companies involved in this transaction, and properly determined that MidSouth formed SouthRail for the legitimate business purpose of acquiring and operating GMR as an independent subsidiary. We further conclude that the ICC properly determined that SouthRail was entitled to invoke a section 10901 class exemption for its acquisition of GMR. Accordingly, for the foregoing reasons, we AFFIRM the ICC’s decision and the unions’" }, { "docid": "23672867", "title": "", "text": "owned subsidiary of NYS & W, could not be distinguished from its parent, and, therefore, could not be classified a noncar-rier for the purposes of section 10901. As a result, the transaction allegedly could not be considered to be one between a noncarrier and a carrier, but rather had to be defined as one between two carriers, requiring application of section 11343 and mandating imposition of labor protective conditions. In July of 1985, the ICC denied the petition, finding no material error in its initial decision and holding SIRY to be sufficiently independent of NYS & W to be classified as a noncarrier. The ICC noted: The control relationship between NYS & W and SIRY does not warrant a finding that SIRY and NYS & W are one and the same and that section 11343 is applicable. Replicants have demonstrated that SIRY is an entity separate and apart from NYS & W. As noted by replicants, continued operation of the involved rail line is an uncertain venture. NYS & W has not assumed all risks of that venture, but has merely guaranteed SIRY’s obligation to SIRC. The remaining risks of this venture lie with SIRY and not NYS & W. NYS & W’s creation of a new subsidiary to insulate itself from all other risks associated with this venture constitutes sound business practice with which we will not interfere. Nor does the offer by NYS & W of employment with SIRY to former SIRC employees warrant a finding that NYS & W and SIRY are actually the same entity. Staten Island Railway Corporation — Exemption From 49 U.S.C. 10901; Delaware Otsego Corporation and Staten Island Railway Corporation — Exemption From 49 U.S.C. 11301, Finance Docket No. 30629, at 2 (July 11, 1985). C. RLEA’s Position on Appeal In the summer of 1985, RLEA filed these petitions to review the ICC orders approving both the line and trackage rights acquisitions. The gravamen of the petitions is that the ICC erred in permitting the sales to be consummated under section 10905 and section 10901 rather than under the merger and consolidation provisions" }, { "docid": "23672886", "title": "", "text": "rights acquisitions of this sort by noncarriers within section 10901. RLEA does not, and could not, dispute that section 10901 governs single line acquisitions by noncarriers. E.g., Railway Labor Executives’ Association v. I.C.C., 784 F.2d 959, 963 n. 4 (9th Cir.1986); Black v. I.C.C., 762 F.2d 106, 111 (D.C.Cir.1985); In re Chicago, Milwaukee, St. Paul & Pacific Railroad Company, 658 F.2d 1149, 1169 (7th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); Illinois v. United States, 604 F.2d 519, 524 (7th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980). In light of this well-established interpretation, we find no reason to differentiate between a noncarrier acquiring a new rail line and a noncarrier acquiring trackage rights over a single line. Neither type of transaction implicates anticompetitive concerns and thus both should be governed by section 10901. The trackage rights provision of section 11343 clearly is inapplicable to the acquisition here. It provides that ICC approval is necessary for an “acquisition by a rail carrier of trackage rights over ... a railroad line ... owned or operated by another rail carrier.” 49 U.S.C.A. § 11343(a)(6) (1985). By its terms, therefore, the provision is limited to acquisitions involving two or more carriers. This stems from “the fact that § 11343 is plainly concerned not with new, non-carrier entities entering the railway market through limited acquisitions ..., but with transactions'integrating two or more carriers and with the effect of multi-carrier transactions on competition.” Black v. I.C.C., 762 F.2d at 115. Moreover, section 11343 specifies two situations involving noncarriers: where a noncarrier acquires control “of a least 2 carriers,” 49 U.S.C.A. § 11343(a)(4), and where a noncar-rier that controls a number of carriers acquires control of an additional carrier, id. § 11343(a)(5). Since the statute includes only these two noncarrier transactions, it is logical to conclude that other noncarrier transactions, such as a trackage rights acquisition over a single line, are not encompassed within that statute. Judicial extension of the statute to include other noncar-rier transactions not otherwise specified within that provision, thereby imposing upon" }, { "docid": "23672888", "title": "", "text": "the noncarrier the mandatory protective conditions of that statute, may simply “discourage such new entry into the rail market.” Black v. I.C.C., 762 F.2d at 115. RLEA’s reliance on the legislative history to demonstrate that Congress intended all trackage rights acquisitions to be governed by section 11343 is entirely misplaced. Nowhere in the legislative history is there any indication that Congress intended to include noncarriers within section 11343 for single line trackage rights acquisitions. In fact, the passages referred to by RLEA discuss trackage rights in relation to the unification of carriers and in terms of one railroad acquiring operating rights over another, e.g., S.Rep. No. 433, 76th Cong. 1st Sess. 26, 29 (1939); this language hardly covers a situation where a noncarrier acquires such rights over a single line. We further reject RLEA’s assertion that Southern Alabama and this case mark a dramatic shift in ICC policy toward the acquisition of trackage rights over single lines by noncarriers. RLEA cites three prior ICC decisions for the proposition that, prior to 1980, the ICC interpreted section 11343 as including all trackage rights acquisitions. E.g., North Western Employees Transportation Corporation — Purchase — Chicago and North Western Railway Company, 342 I.C.C. 58 (1972); Spokane, Portland & Seattle Railway — Control, 334 I.C.C. 419 (1969); Chicago, Burlington & Quincy Railroad — Control, 271 I.C.C. 63 (1948). None of these decisions supports RLEA’s position. Spokane and Chicago did not address the issue of track-age rights acquisitions by noncarriers. While North Western did hold that section 10901 and section 11343 are “complementary, not mutually exclusive” in dealing with a trackage rights acquisition by a noncarri er, North Western, 342 I.C.C. at 65, the basis for the complementary jurisdiction in that case was that the noncarrier at issue, Netco, was attempting to acquire the track-age rights and lines of more than one carrier, see id., a transaction expressly within the ambit of section 11343, see 49 U.S.C.A. § 11343(a)(4). North Western further indicated that under ordinary circumstances section 11343 “does not deal with the licensing of a noncarrier applicant, such as Netco, that has never" }, { "docid": "23672870", "title": "", "text": "are flawed. First, RLEA contends that section 10905’s silence concerning labor protective conditions should not foreclose their imposition in sales under that provision. Noting that section 10903(b)(2), which mandates imposition of such conditions for all partial line abandonments, is remedial in nature and therefore must be construed broadly to effectuate its purpose, see Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 1555, 20 L.Ed.2d 426 (1968), and also that Congress traditionally has viewed labor protection to be of paramount importance, RLEA asserts that section 10903 must be read to supplement section 10905 on the issue of employee protection. As for section 10901, RLEA contends that trackage rights acquisitions, regardless whether the acquiring party is a carrier or noncarrier, are not included within that provision, but rather come within the ambit of section 11343. RLEA further alleges that this not only was the intent of Congress in enacting section 11343, but also was the position of the ICC until an abrupt change in recent decisions. Compare North Western Employees Transportation Corporation — Purchase—Chicago and North Western Railway Company, 342 I.C.C. 58, 65 (1972) {“North Western”) with Alabama Southern Railroad Company, Inc. and the Alabama Great Southern Railroad Company — Acquisitions, Operations and Trackage Rights — Exemption, Finance Docket No. 30505 (Aug. 29, 1984) (“Alabama Southern”). Finally, even if we view trackage rights acquisitions by noncarriers as falling within the ambit of section 10901, RLEA argues that SIRY cannot be considered to be a noncar-rier. Rather than looking solely to the corporate form of SIRY, RLEA urges that the ICC should have examined the substance of the transactions to determine whether SIRY was truly independent or performing as part of the DO system. II. DISCUSSION A. Subterfuge RLEA’s argument is based upon two incidents: SIRC’s request to withdraw the portion of its application to abandon covering trackage rights immediately following the ICC’s rejection of that portion of the application and SIRY’s simultaneous request for an exemption for a separate trackage rights acquisition under section 10901. In addition, RLEA directs our attention to two letters, submitted to the ICC in January" }, { "docid": "23672869", "title": "", "text": "of section 11343, and, consequently, erred in not imposing labor protective conditions on SIRC and SIRY for either transaction. RLEA posits that SIRC’s initial application to abandon, brought under section 10903 and encompassing all 31.16 miles of the SIRC rail system, constituted nothing more than a subterfuge to enable SIRC to sell its lines under the financial assistance provisions of section 10905. Noting that the purpose of section 10905 is to provide a mechanism for the sale of lines that otherwise would be abandoned, RLEA claims that SIRC never actually intended to abandon its lines but rather had planned (and in fact had agreed prior to the filing of its application to abandon) to sell the entire system to DO. The only reason for this alleged masquerade, according to RLEA, was to avoid consummation of the snale under section 11343 and the subsequent imposition of that provision’s mandatory labor protective conditions. Alternatively, were we to examine the line and trackage rights acquisitions independently, RLEA submits that the ICC’s interpretations of section 10905 and section 10901 are flawed. First, RLEA contends that section 10905’s silence concerning labor protective conditions should not foreclose their imposition in sales under that provision. Noting that section 10903(b)(2), which mandates imposition of such conditions for all partial line abandonments, is remedial in nature and therefore must be construed broadly to effectuate its purpose, see Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 1555, 20 L.Ed.2d 426 (1968), and also that Congress traditionally has viewed labor protection to be of paramount importance, RLEA asserts that section 10903 must be read to supplement section 10905 on the issue of employee protection. As for section 10901, RLEA contends that trackage rights acquisitions, regardless whether the acquiring party is a carrier or noncarrier, are not included within that provision, but rather come within the ambit of section 11343. RLEA further alleges that this not only was the intent of Congress in enacting section 11343, but also was the position of the ICC until an abrupt change in recent decisions. Compare North Western Employees Transportation Corporation — Purchase—Chicago and" }, { "docid": "5696353", "title": "", "text": "“parent” holding company, is acquiring control over a carrier (GMR) through a subsidiary it controls (SouthRail), it must participate in SouthRail’s acquisition proceeding. This participation, in turn, would bring the transaction under section 11343(a)(5), which governs the “acquisition of control of a carrier by a person that is not a carrier but that controls any number of carriers.” The unions rely upon the decisions in Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 77 S.Ct. 763, 1 L.Ed.2d 726 (1957), and United States v. Marshall Transp. Co., 322 U.S. 31, 64 S.Ct. 899, 88 L.Ed. 1110 (1944). However, the unions have never cited these cases before in these proceedings. Moreover, because they have not previously raised a claim based upon section 11343(a)(5), the ICC has made no ruling for this court to review regarding the applicability of that section to this ease. Thus, because there are no exceptional circumstances excusing the unions’ failure to raise this issue below, it is not before us on appeal. See Black v. ICC, 762 F.2d 106, 115 n. 17 (D.C.Cir.1985) (failure to raise section 11343(a)(5) claim before ICC removes issue from appellate review); Hix v. Director, OWCP, 824 F.2d 526, 527 (6th Cir.1987) (well-established practice of appellate courts to refuse to consider claims not first presented to the agency below); see also Pinney Dock and Transp. Co. v. Penn Cent. Corp., 888 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988); Railway Labor Executives’ Ass’n v. United States, 791 F.2d 994, 1000-01 (2d Cir.1986). B. An entity may invoke a section 10901 class exemption if it is a noncarrier and an independent corporate entity that was not created merely to avoid protective labor conditions. See Class Exemption Case. The unions argue that SouthRail fails to satisfy any of these criteria. The unions first argue that SouthRail should be deemed to be a carrier because it is not an independent corporate entity, but the alter ego of its noncarrier parent. They insist that Marshall and Alleghany compel the ICC to ignore the integrity of corporate organizations" }, { "docid": "23672866", "title": "", "text": "rail service. Staten Island Railway Corporation — Exemption From 49 U.S. C. 10901; Delaware Ot-sego Corporation and Staten Island Railway Corporation — Exemption From 49 U.S.C. 11301, Finance Docket No. 30629, at 2 (April 4, 1985) (“Exemption — SIRY”). The ICC further rejected application of section 11343 to the transaction, finding that that provision dealt solely with “the unification of transportation properties of two or more carriers,” id. at 2, and that it did “not apply to transactions where a noncar-rier [SIRY] seeks to acquire or operate a line of railroad.” Id. Consequently, the ICC concluded that section 10901 applied to the transaction, since a noncarrier, SIRY, was the entity acquiring the trackage rights. In so holding, the ICC declined to impose labor protective conditions, following its policy of not imposing such conditions on newly formed acquiring carriers. Id. In the month following the decision, RLEA filed a petition with the ICC to reopen its decision, claiming a material error on the part of the ICC in its analysis. RLEA contended that SIRY, a wholly owned subsidiary of NYS & W, could not be distinguished from its parent, and, therefore, could not be classified a noncar-rier for the purposes of section 10901. As a result, the transaction allegedly could not be considered to be one between a noncarrier and a carrier, but rather had to be defined as one between two carriers, requiring application of section 11343 and mandating imposition of labor protective conditions. In July of 1985, the ICC denied the petition, finding no material error in its initial decision and holding SIRY to be sufficiently independent of NYS & W to be classified as a noncarrier. The ICC noted: The control relationship between NYS & W and SIRY does not warrant a finding that SIRY and NYS & W are one and the same and that section 11343 is applicable. Replicants have demonstrated that SIRY is an entity separate and apart from NYS & W. As noted by replicants, continued operation of the involved rail line is an uncertain venture. NYS & W has not assumed all risks" }, { "docid": "23672891", "title": "", "text": "application of section 5(2) of the Interstate Commerce Act (now section 11343) on the ground that that provision was concerned primarily with transactions between two or more carriers. Id. RLEA attempts to distinguish Prairie Trunk on the grounds that the trackage rights acquisition therein was de minimis in light of the other acquisitions at issue, that the Seventh Circuit in affirming the ICC’s decision had not considered the legislative history of section 11343, and that labor protective conditions nonetheless were imposed in that case. These arguments are without merit. All of these features were discussed by the Seventh Circuit as reasons for its affirmance of the ICC’s order. 604 F.2d at 526-27. None, however, was cited by the ICC as a reason for its approval of the acquisition. They therefore do not detract from the primary point which Prairie Trunk makes in relation to this review — that the ICC had approved trackage rights acquisitions by non-carriers under section 10901 prior to 1980. More important, these distinguishing features in themselves are not convincing. The Seventh Circuit in Prairie Trunk considered the trackage rights at issue to be de minimis since they covered only 5.36 miles of track. Id. at 526. Here, we fail to comprehend why a mere 14.48 miles of trackage rights should be considered any more significant. Second, rather than not reviewing adequately the legislative history of section 11343, the Seventh Circuit followed the same analysis which we now follow, holding section 11343 inapplicable because it is concerned solely -with multi-carrier transactions. Id. Finally, regardless whether labor protective conditions otherwise were imposed in Prairie Trunk, section 10901 leaves that determination to the sole discretion of the ICC. Given that section 10901 reasonably may be interpreted to include trackage rights acquisitions over single lines by non-carriers, the only remaining issue to resolve is whether the ICC properly classified SIRY, a newly formed, wholly owned subsidiary of NYS & W, as a noncarrier for the purposes of section 10901. We have little difficulty in concluding that SIRY was classified properly. Our review of the agency’s factual finding is governed by" }, { "docid": "23672868", "title": "", "text": "of that venture, but has merely guaranteed SIRY’s obligation to SIRC. The remaining risks of this venture lie with SIRY and not NYS & W. NYS & W’s creation of a new subsidiary to insulate itself from all other risks associated with this venture constitutes sound business practice with which we will not interfere. Nor does the offer by NYS & W of employment with SIRY to former SIRC employees warrant a finding that NYS & W and SIRY are actually the same entity. Staten Island Railway Corporation — Exemption From 49 U.S.C. 10901; Delaware Otsego Corporation and Staten Island Railway Corporation — Exemption From 49 U.S.C. 11301, Finance Docket No. 30629, at 2 (July 11, 1985). C. RLEA’s Position on Appeal In the summer of 1985, RLEA filed these petitions to review the ICC orders approving both the line and trackage rights acquisitions. The gravamen of the petitions is that the ICC erred in permitting the sales to be consummated under section 10905 and section 10901 rather than under the merger and consolidation provisions of section 11343, and, consequently, erred in not imposing labor protective conditions on SIRC and SIRY for either transaction. RLEA posits that SIRC’s initial application to abandon, brought under section 10903 and encompassing all 31.16 miles of the SIRC rail system, constituted nothing more than a subterfuge to enable SIRC to sell its lines under the financial assistance provisions of section 10905. Noting that the purpose of section 10905 is to provide a mechanism for the sale of lines that otherwise would be abandoned, RLEA claims that SIRC never actually intended to abandon its lines but rather had planned (and in fact had agreed prior to the filing of its application to abandon) to sell the entire system to DO. The only reason for this alleged masquerade, according to RLEA, was to avoid consummation of the snale under section 11343 and the subsequent imposition of that provision’s mandatory labor protective conditions. Alternatively, were we to examine the line and trackage rights acquisitions independently, RLEA submits that the ICC’s interpretations of section 10905 and section 10901" } ]

[ { "docid": "6097295", "title": "", "text": "lawyers. The district court, however, carefully considered the allegations of violations of grand jury secrecy and concluded that [Chester, Greeson, Honchell and Perez] did not establish sufficient prejudice to warrant dismissal of the indictment. The district court found that the magistrate had given [Chester, Greeson, Honchell and Perez] a fair hearing, and was within his discretion in denying defendants’ motion for production of grand jury records. We agree. “The controlling standard for our purposes is a straightforward one: Parties seeking grand jury transcripts under rule 6(e) must show that the matter they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979) (footnote omitted). A defendant’s effort to obtain grand jury materials can only succeed with a showing of “particularized need.” United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077 (1958). The decision to disclose grand jury proceedings is a matter within the district court’s discretion. United States v. Benton, 637 F.2d 1052, 1059 (5th Cir. Unit B 1981). Particularized need is not shown by a general allegation that grand jury materials are necessary for the preparation of a motion to dismiss. See Thomas v. United States, 597 F.2d 656, 658 (8th Cir.1979). See also United States v. Sells Eng’g Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 3149, 77 L.Ed.2d 743 (1983) (rational relationship to alleged claims is insufficient to constitute particularized need); United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985) (unsubstantiated allegations do not satisfy particularized need standard). “The district court found that [Chester, Greeson, Honchell and Perez] failed to show particularized need. Without this showing, [Chester, Greeson, Honchell and Perez are] not entitled to grand jury materials, nor can we require" } ]

[ { "docid": "20908131", "title": "", "text": "found that the magistrate had given Elliott a fair hearing, and was within his discretion in denying defendant’s motion for production of grand jury records. We agree. The controlling standard for our purposes is a straightforward one: Parties seeking grand jury transcripts under rule 6(e) must show that the matter they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979) (footnote omitted). A defendant’s effort to obtain grand jury materials can only succeed with a showing of “particularized need.” United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077 (1958). The decision to disclose grand jury proceedings is a matter within the district court’s discretion. United States v. Benton, 637 F.2d 1052, 1059 (5th Cir. Unit B 1981). Particularized need is not shown by a general allegation that grand jury materials are necessary for the preparation of a motion to dismiss. See Thomas v. United States, 597 F.2d 656, 658 (8th Cir.1979). See also United States v. Sells Eng’g Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 3149, 77 L.Ed.2d 743 (1983) (rational relationship to alleged claims is insufficient to constitute particularized need); United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985) (unsubstantiated allegations do not satisfy particularized need standard). The district court found that Elliott failed to show particularized need. Without this showing, Elliott is not entitled to grand jury materials, nor can we require those materials to be revealed. United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir.1984). The district court’s finding on this issue is not clearly erroneous. The magistrate and district court reviewed extensively the Rule 6(e) issues in the case, as evidenced by the magistrate’s order denying Elliott’s motion" }, { "docid": "7966280", "title": "", "text": "for disclosure is greater than the need for continued secrecy”; and (3) “that their request is structured to cover only material so needed.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674; United Kingdom v. United States, 238 F.3d 1312, 1320-21 (11th Cir.2001); United States v. Burke, 856 F.2d 1492, 1495-96 (11th Cir.1988); United States v. Elliott, 849 F.2d 554, 557 (11th Cir.1988); Appeal of Hastings, 735 F.2d at 1273. These same demanding standards apply even after the grand jury has concluded its operations. Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674 (stating that “[s]uch a showing must be made even when the grand jury whose transcripts are sought has concluded its operations, as it had in Dennis [v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966)]”); Elliott, 849 F.2d at 557 (same); Burke, 856 F.2d at 1496 (same). “[I]n considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674. Further, the burden of demonstrating that the need for disclosure outweighs the need for, and public interest in, secrecy rests üpon the private party seeking disclosure. Id. at 223, 99 S.Ct. at 1675; United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir.1984). In order to carry this burden, the party seeking disclosure of grand jury material must show a compelling and particularized need for disclosure. United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958) (stating that the “ ‘indispensable secrecy of grand jury proceedings’ must not be broken except where there is a compelling necessity,” and that instances where the need outweighs the countervailing policy must “be shown with particularity”) (internal citation omitted); United States v. Sells Eng’g, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 743 (1983) (stating that, “[w]e have consistently construed [Rule 6(e)(3)(C)(i)(I)] ... to require a strong" }, { "docid": "12409364", "title": "", "text": "Fed. R.Crim.P. 6(e), which resolves all issues in case, is appealable as final decision of district court); see United States v. Miramontez, 995 F.2d 56, 59 n. 4 (5th Cir.1993) (“Orders granting or denying disclosure of grand jury materials for use in civil actions are appeal-able.”); 15B Wright, Miller & Cooper, Federal Practice & Procedure § 3914.24, p. 181 (1992) (same). The district court’s order of disclosure was predicated on Fed.R.Crim.P. 6(e)(3)(C)(i), which provides that grand jury materials may be disclosed “when so directed by a court preliminarily to or in connection with a judicial proceeding.” In reviewing an order of disclosure, we apply an abuse of discretion standard. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 397, 79 S.Ct. 1237, 1239-40, 3 L.Ed.2d 1323 (1959); In re Lynde, 922 F.2d 1448, 1451 (10th Cir. 1991). The prerequisites for disclosure of grand jury materials are demanding. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (outlining standard for determining whether grand jury secrecy should be breached). Specifically, a party seeking grand jury materials must show (1) the materials are needed to avoid a possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only material so needed. Lynde, 922 F.2d at 1452; see also In re Eyecare Physicians of America, 100 F.3d 514, 518 (7th Cir.1996). Relevance alone is not sufficient; secrecy will not be broken absent a compelling necessity for the materials. Eyecare, 100 F.3d at 518 (citing Hernly v. United States, 832 F.2d 980, 983-84 (7th Cir.1987)). Further, the request must amount to more “ ‘than a request for authorization to engage in a fishing expedition.’ ” Id. (quoting Lucas v. Turner, 725 F.2d 1095, 1101 (7th Cir.1984)). We conclude Doe cannot satisfy either the first or the second prerequisite for access to the grand jury materials. Therefore, we need not consider the third prerequisite, i.e., narrow tailoring of the request. Does Doe need the grand jury materials" }, { "docid": "7966283", "title": "", "text": "Cox, 17 F.3d at 1421 (quoting Allis-Chalmers, 323 F.2d at 242). Even when persons requesting disclosure have carried the burden of showing that they have a compelling and particular need for the grand jury material in order to avoid an injustice and that their need for disclosure outweighs the secrecy need, access is limited and covers only those materials actually needed. Cox, 17 F.3d at 1421 (“ ‘Disclosure even in these circumstances must be closely confined to the limited portions of the testimony for zvhich there is found to be a particularized need.’ ”) (emphasis in original) (quoting Allis-Chalmers, 323 F.2d at 242); In re Subpoena to Testify Directed to Custodian of Records, 864 F.2d 1559, 1562 (11th Cir.1989) (stating that “[e]ven when the person requesting such disclosure has shown a particularized need for the materials, access is limited and covers only those materials actually needed”); Liuzzo, 739 F.2d at 545 (noting that when particularized need is shown, “access to grand jury materials must still be ‘discretee ] and limited! ],’ and must be ‘structured to cover only the material needed’ ”) (alterations in original) (quoting Procter & Gamble, 356 U.S. at 683, 78 S.Ct. at 987, and Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674). Accordingly, a “blanket request for all ... grand jury materials ... cannot be described as the kind of particularized request required for the production of otherwise secret information.” United Kingdom v. United States, 238 F.3d at 1321. Finally, the district court has “substantial discretion” in determining whether grand jury materials should be released. Douglas Oil Co., 441 U.S. at 223, 99 S.Ct. at 1675; see also Pittsburgh Plate Glass Co., 360 U.S. at 399, 79 S.Ct. at 1240 (1959); United Kingdom v. United States, 238 F.3d at 1320; Coronado v. BankAtlantic Bancorp, Inc., 222 F.3d 1315, 1322 (11th Cir.2000). We now apply these principles to this case. E. Grand Jury Transcripts in Aisen-bergs’ Case At the outset, we note that the district court did not rule on the Aisenbergs’ requests for grand jury transcripts until its attorney’s fees order of January" }, { "docid": "375095", "title": "", "text": "Secrecy, however, is not an absolute, and ours is the not uncommon judicial task of balancing. Rule 6(e) provides certain exceptions, and case law has established that a district court may properly order release of grand jury materials where a party demonstrates with particularity a “compelling necessity” for the materials. Procter & Gamble, 356 U.S. at 682, 78 S.Ct. at 986. The Supreme Court has insisted that the need for disclosure be demonstrated “with particularity.” See Procter & Gamble, 356 U.S. at 683, 78 S.Ct. at 987. In Douglas Oil, the court developed a three prong test to determine particularized need, now the touchstone of review: Parties seeking grand jury transcripts under Rule 6(e) must show (1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding, (2) that the need for disclosure is greater than the need for continued secrecy, and (3) that their request is structured to cover only material so needed. Douglas Oil, 411 U.S. at 222, 99 S.Ct. at 1674 (enumeration added). A party seeking disclosure must meet the burden of demonstrating that the need for disclosure outweighs the public interests in secrecy; however, “as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justifi cation.” Douglas Oil, 411 U.S. at 223, 99 S.Ct. at 1675. Ill East Ascension seeks the grand jury transcripts of Wyllie, Falgout, and Landry to impeach them or to refresh their recollections. Impeachment and refreshment of recollection frequently are cited as reasons for release of grand jury testimony, In re Corrugated Container, 687 F.2d at 55, and the Supreme Court and this circuit have held that the need to impeach or refresh recollection is a valid “particular need.” See Douglas Oil, 411 U.S. at 222, 99 S.Ct. at 1674; State of Texas v. United States Steel Corp., 546 F.2d 626, 631 (5th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977). However, the use of grand jury testimony to impeach or to refresh recollection must be real;" }, { "docid": "22823972", "title": "", "text": "upon the secrecy of the grand jury proceedings. Douglas Oil, 441 U.S. at 218, 99 S.Ct. at 1672. The burden is on the party seeking disclosure to show that “a particularized need” exists for the materials that outweighs the policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). In order to meet this burden, Miramontez must demonstrate that (1) the material he seeks is needed to avoid a possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) his request is structured to cover only material so needed. Douglas Oil, 441 U.S. at 221-222, 99 S.Ct. at 1674. This showing “must be made even when the grand jury whose transcripts are sought has concluded its operations.” Id. The district court found that Miramontez had made no effort to satisfy any of these conditions and denied his request. It is clear that Miramontez did not show a “particularized need” under any of the three elements set forth in Douglas Oil. Even construing his pleadings liberally, as the district court was required to do because of his pro se status, Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir.1990), he has not furnished reason sufficient to require disclosure of his grand jury proceedings. His petition is wholly general and does not request any specific portion of the proceedings for disclosure. Miramontez claims a general “right” to disclosure of the transcripts. The mere contention that the party seeking transcripts has a “right” to the transcripts, without a proper showing of need, will not suffice to justify disclosure. Pittsburgh Plate Glass Co., 360 U.S. at 399-401, 79 S.Ct. at 1241. In his pleadings before the district court, as well as in his briefs on appeal, Miramontez describes errors or defects in grand jury proceedings, such as perjury, misleading hearsay evidence, bias, prosecutorial misconduct, and racial discrimination, and cites cases in which such matters have provided grounds for disclosure of the proceedings. He does not, however, assert that any of these" }, { "docid": "7966298", "title": "", "text": "and State, the Judiciary, and Related Agencies Appropriations Act of 1998, and is ' found as a statutory note to 18 U.S.C. § 3006A.” United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999). . ’As noted in footnote 5, supra, the district court also published the magistrate judge's earlier report, dated February 14, 2001, which likewise made extensive findings ¿bout ■ the county detectives’ misconduct. Aisenberg, 247 F.Supp.2d at 1324-57. . In its stay motion, the government stressed that the Supreme Court has instructed that parties seeking grand jury materials \"must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations....” See Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979); United Kingdom v. United States, 238 F.3d 1312, 1320-21 (11th Cir.2001) (adopting Douglas Oil standard). The government argued that the Aisenbergs had not met these three requirements and that the district court's order was not based on an identified particularized need for the transcripts, but rather on an alleged public interest in scrutinizing the activities of a misdirected investigation. . In a January 4, 2002, hearing involving the intervenor media’s request for the wiretap recordings and other records under seal, the government offered to present information in camera to the district court about its continuing investigation of Sabrina's disappearance and had witnesses available to do so, but the district court refused to hear the proffer. However, in the context of the government's stay motion, the district court did offer to receive evidence in camera from the government about the viability of its ongoing investigation in order to evaluate whether disclosure would cause irreparable harm. The government submitted a May 1, 2003, affidavit of an Assistant United States Attorney, assigned to the General Crimes Section of" }, { "docid": "8369110", "title": "", "text": "sufficient showing of particularized need for the release of the sixteen pages of internal memo-randa regarding the grand jury proceedings because it ignored material evidence demonstrating “serious and repeated violations of grand jury secrecy.” We disagree that the district court ignored material evidence in this case; the taxpayers merely assume that the district court did not consider relevant factors. The district court’s focus in its order was on the internal memoranda because they were the only documents taxpayers requested be produced under Rule 6(e). Although the district court did not specifically address the other alleged instances of breach of grand jury secrecy, it did conclude that “the record in this ease indicates nothing more than ‘isolated instances of noncompliance with technical rules of procedure,’ and not the intentional and flagrant violations of grand jury secrecy by the government.” (Emphasis added.) We agree with the Government that the record does contain evidence which rationally supports the district court’s decision, and thus, there was no abuse of discretion. See United States v. Schlette, 842 F.2d 1574, 1577 (9th Cir.1988). More importantly, we agree with the district court’s determination that the taxpayers did not demonstrate particularized need for the internal memoranda. Taxpayers “must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674. “[T]he burden of demonstrating this balance rests upon the private party seeking disclosure.” Id. at 223, 99 S.Ct. at 1675. As the secrecy concerns become less relevant, the party seeking disclosure “will have a lesser burden in showing justification.” Id. Even assuming the secrecy concerns here are slight, taxpayers have not demonstrated the requisite particularized need. The bulk of the justification offered by the taxpayers for obtaining the memoranda in volves alleged misconduct on the part of the Government during and after the grand jury proceeding. However, this does not demonstrate a particularized need for disclosure of internal" }, { "docid": "6118718", "title": "", "text": "U.S. at 682, 78 S.Ct. at 986 (quoting United States v. Johnson, 319 U.S. at 513, 63 S.Ct. at 1238). When compelling necessity warrants breaking this secrecy, “the showing of need for [grand jury] transcripts [must] be made ‘with particularity’ so that ‘the secrecy of the proceedings [may] be lifted discretely and limitedly.’ ” Douglas Oil Co., 441 U.S. at 221, 99 S.Ct. at 1674 (quoting United States v. Procter & Gamble Co., 356 U.S. at 683, 78 S.Ct. at 986) (emphasis added). See also Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1090 n. 12 (7th Cir.1982). Particularity of materials sought is wholly lacking from plaintiffs’ request. V. We hold that the plaintiffs have failed to demonstrate a particularized need for disclosure of the grand jury materials and that the district court abused its discretion in ordering disclosure. The district court found a particularized need based upon a finding that: (1) “[i]t is highly probable that these materials” will disclose unknown witnesses “whose testimony will be material and relevant”; (2) certain witnesses “may be unavailable”; (3) the testimony may be useful in testing credibility at trial; and (4) the grand jury testimony will be “substantially less affected by loss of memory.” However, upon a review of the record we simply find no basis to support these findings. “[A] much more particularized, more discrete showing of need is necessary.... The court made no such particularized finding of need in [the] case of any one witness.” Procter & Gamble, 356 U.S. at 683, 78 S.Ct. at 986. Likewise we hold that plaintiffs have not made a threshold “showing of such exceptional and particularized need” necessary to warrant disclosure. Id. at 685, 78 S.Ct. at 988 (Whittaker, J., concurring). The plaintiffs have not demonstrated, as required by Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674, that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Therefore," }, { "docid": "22823971", "title": "", "text": "court supervised the grand jury’s proceedings. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 224-225, 99 S.Ct. 1667, 1676, 60 L.Ed.2d 156 (1979) (requests for disclosure of grand jury testimony must, as a general rule, be directed to the court that supervised the grand jury’s proceedings, even when required for a civil proceeding in another judicial district). II. Denial of Request for Grand Jury Transcripts In his motion for disclosure of grand jury transcripts, Miramontez sought to obtain access to the transcripts of all grand jury proceedings related to his criminal ease. The district court analyzed this motion both under the FOIA and under Fed.R.Crim.P. 6(e). Miramontez now disavows any FOIA aspect to his request for the grand jury materials. A district court’s denial of a motion for disclosure of grand jury transcripts under Rule 6(e) is reviewed for an abuse of discretion. Douglas Oil, 441 U.S. at 223-224, 99 S.Ct. at 1675; In re Grand Jury Testimony, 832 F.2d 60, 62 (5th Cir.1987). The proper functioning of the grand jury system depends upon the secrecy of the grand jury proceedings. Douglas Oil, 441 U.S. at 218, 99 S.Ct. at 1672. The burden is on the party seeking disclosure to show that “a particularized need” exists for the materials that outweighs the policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). In order to meet this burden, Miramontez must demonstrate that (1) the material he seeks is needed to avoid a possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) his request is structured to cover only material so needed. Douglas Oil, 441 U.S. at 221-222, 99 S.Ct. at 1674. This showing “must be made even when the grand jury whose transcripts are sought has concluded its operations.” Id. The district court found that Miramontez had made no effort to satisfy any of these conditions and denied his request. It is clear that Miramontez did not show a “particularized need” under any of" }, { "docid": "22056157", "title": "", "text": "government is required to keep matters occurring in grand jury proceedings secret. See Fed.R. Crim.P. 6(e)(2). Disclosure otherwise prohibited by Rule 6(e)(2) may, however, be made when so ordered by a court in a judicial proceeding, see Fed.R.Crim.P. 6(e)(3)(C)(i), and within the following framework, the court has “substantial discretion” in dealing with Rule 6(e) applications. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-23, 99 S.Ct. 1667, 1674-75, 60 L.Ed.2d 156 (1979) (“Douglas Oil’’); see In re Federal Grand Jury Proceedings, 760 F.2d 436, 439 (2d Cir.1985). A private party requesting disclosure of grand jury material pursuant to Rule 6(e)(3)(C)(i) has the burden of demonstrating particularized need, i.e., that (a) the material sought is needed to avoid a possible injustice, (b) the need for disclosure is greater than the need for secrecy, and (c) the request is structured to cover only materia] so needed. Douglas Oil, 441 U.S. at 222-23, 99 S.Ct. at 1674-75. The burden is not easily met. Requests for wholesale disclosures should generally be denied, especially in a civil case. See, e.g., United States v. Procter & Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); Baker v. United States Steel Corp., 492 F.2d 1074, 1079 (2d Cir.1974) (no authority for releasing grand jury transcripts “to permit general discovery in a civil case”) (emphasis in original). And the assertion that Rule 6(e) disclosure will save a civil litigant time and expense is insufficient to show the requisite need where the evidence can be obtained through ordinary discovery or other routine avenues of investigation. See United States v. Sells Engineering, Inc., 463 U.S. 418, 431, 103 S.Ct. 3133, 3141, 77 L.Ed.2d 743 (1983); United States v. Sobotka, 623 F.2d 764, 768 & n. 5 (2d Cir.1980); Baker v. United States Steel Corp., 492 F.2d at 1079. Factors that militate strongly against disclosure include an ongoing employment relationship between the grand jury witness and the target of the investigation, for the potential for retaliation against employee witnesses heightens the need for secrecy, see Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674," }, { "docid": "6118693", "title": "", "text": "986, 2 L.Ed.2d 1077 (1958). In Douglas Oil the Supreme Court delineated the particularized need standard: “Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” 441 U.S. at 222, 99 S.Ct. at 1674 (footnote omitted). See also United States v. Sells Engineering, Inc., 103 S.Ct. at 3148; Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Our circuit has held that “[i]n determining whether disclosure of grand jury matters is appropriate in any given case, a court must exercise substantial discretion, weighing the need for secrecy against the need for disclosure of specified documents and testimony occurring before the grand jury.” Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1088 (7th Cir.1982) (citing Douglas Oil Co., 441 U.S. at 223-24, 99 S.Ct. at 1675). “[I]n considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties.... Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.” Douglas Oil Co., 441 U.S. at 223, 99 S.Ct. at 1675 (footnote omitted, emphasis added). The burden of demonstrating that the need for disclosure is greater than the public interest in secrecy rests with the party seeking disclosure. Id. It is clear that this burden is a heavy one to overcome. Also relevant" }, { "docid": "3628138", "title": "", "text": "would also be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.” Id. (emphasis added). “Grand jury secrecy ... is as important for the protection of the innocent as for the pursuit of the guilty.” Proceedings, 942 F.2d at 1199 (emphasis added). “Parties seeking grand jury transcripts ... must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (emphasis added). “But one seeking disclosure of grand jury proceedings must demonstrate more than relevance_ [SJe-crecy is not broken ‘except where there is a compelling necessity’ for the material.” Hemly v. United States, 832 F.2d 980, 983-84 (7th Cir.1987) (emphasis added). “ ‘Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations.’ ” Id. at 984 (citation omitted). The “request for grand jury material [must be] more than a request for authorization to engage in a fishing expedition.” Lucas, 725 F.2d at 1101 (emphasis added). “In a ease where a particularized need is established ‘the secrecy of the proceedings is lifted discretely and limitedly.’ ” Id. “In determining whether the party requesting disclosure has met his burden, the district court has ‘substantial discretion.’ ” Id. (citation omitted). “District courts that contemplate ordering disclosure must consider the possible effects upon the functioning of future grand juries.” Proceedings, 942 F.2d at 1199. “As other courts have held, due to the dangers created by unwarranted disclosure to the safety and reputations of both grand jury witnesses and those under investigation, and indeed to the continued viability of the grand jury as an investigative tool, we do not believe the mere passage of time has significantly diminished the need for preserving the secrecy of the grand jury testimony.” Lucas, 725" }, { "docid": "5131976", "title": "", "text": "testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly----”). “Grand jury secrecy, then, is ‘as important for the protection of the innocent as for the pursuit of the guilty.’ ” Sells Eng’g, 463 U.S. at 424, 103 S.Ct. 3133 (quoting United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943)). Despite this long-standing tradition of maintaining the secrecy of grand jury proceedings, it has been recognized that disclosure may be warranted in certain situations. In particular, Federal Rule of Criminal Procedure 6(e)(3)(E)(i) provides that disclosure of grand jury-transcripts may be made when so directed by a court “preliminarily to or in connection with a judicial proceeding.” The Supreme Court has set forth a tripartite analysis to guide lower courts in determining when disclosure of traditionally kept secret grand jury transcripts may be appropriate: “[p]arties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. 1667 (citing Procter & Gamble Co., 356 U.S. at 682-83, 78 S.Ct. 983 and Dennis v. United States, 384 U.S. 855, 872, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966)). The burden of demonstrating that the need for disclosure is greater than the public interest in secrecy is a heavy one, and it rests with the party seeking disclosure. See id. at 223, 99 S.Ct. 1667. Thus, a party seeking the disclosure of grand jury minutes must make a strong showing of “particularized need” for those materials. See Sells Eng’g, 463 U.S. at 443, 103 S.Ct. 3133; In re Craig, 131 F.3d at 104 n. 5 (reciting Douglas Oil’s “highly flexible ‘particularized need’ test for parties seeking to compel disclosure under Rule 6(e)”). , A showing of “mere rele vanee, economy, and efficiency will not suffice.” Pizzuti v. United States, 809 F.Supp.2d 164, 194" }, { "docid": "23668200", "title": "", "text": "jury secrecy does not “foreclose from all future revelations to proper authorities the same information or documents which were presented to the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). See also, SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). Secrecy is not absolute, and Rule 6(e) has built-in exceptions, one of which, Rule 6(e)(3)(C)(i), lifts the veil of secrecy where disclosure of grand jury transcripts and evidence is “directed by a court preliminary to or in connection with a judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(C)(i); see Douglas Oil Co., supra, 441 U.S. at 220-21, 99 S.Ct. at 1673-74; see also, In re Grand Jury Proceedings, 654 F.2d 268, 271-75 (3d Cir.), cert. denied, U.S. -, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). In balancing the secrecy requirement with the need for grand jury transcripts, the Supreme Court has stated: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need to disclose is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Douglas Oil Co., supra, 441 U.S. at 222, 99 S.Ct. at 1674. The seeking party must set forth a “particularized” need for the desired disclosure. United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077 (1958). Once a párty makes the required showing of need, the district court must weigh the competing interests and order so much disclosure as needed for the ends of justice. In undertaking such a determination, the district court “necessarily is infused with substantial discretion.” Douglas Oil Co., 441 U.S. at 223, 99 S.Ct. at 1675; see Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959). The information transmitted to the District Attorney on December 7, 1981 consisted of materials obtained in the course of the FBI’s" }, { "docid": "16082334", "title": "", "text": "477, 491 (5th Cir.1999); Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.1994). At the outset, the court notes that under both federal and state law, a general rule of secrecy shrouds the proceedings of grand juries. See Fed.R.CRIm.P. 6(e); Douglas Oil Co. of Cal. v. Petrol Stops N.W., 441 U.S. 211, 218-19, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Tex.Code Crim. Proc. Ann. art. 20.02 (Vernon Supp.2004); In re 5 Byrd Enters., 980 S.W.2d 542, 543 (TexApp.—Beaumont 1998, no pet.). Even so, both federal and Texas law permit discovery of grand jury material when the party seeking discovery demonstrates a “particularized need” for the material. United States v. Procter & Gamble Co., 356 U.S. 677, 682-83, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); accord Fed.R.Crim.P. 6(e)(3)(E)(i); Tex.Code Crim. Proc. Ann. art. 20.02(d); In re 5 Byrd Enters., 980 S.W.2d at 543. A party claiming a particularized need for grand jury material under Rule 6(e) has the burden of showing “that the material [it] seek[s] is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [its] request is structured to cover only material so needed.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. 1667. This burden must be met even when the grand jury in question has concluded its operations, as is the case here. Id. While a party can in limited circumstances obtain grand jury material by showing a particularized need, the need for protection of the workings, integrity, and secrecy of grand jury proceedings is a well-established, long-standing public policy. The secrecy of the grand jury proceedings is not some thing that is intruded into except in rare circumstances. In the present case, Shields has not shown a particularized need for compelling the disclosure of grand jury information, much less for compelling the depositions of grand jury members. Shields claims that he needs to depose members of the grand jury to prove that information was withheld from them. He has not, however, put forward any evidence whatsoever showing that" }, { "docid": "375094", "title": "", "text": "the Middle District of Louisiana, where the civil suit had been filed, for a final determination of disclosure. That court ordered release of the grand jury testimony of all three witnesses, restricted the use of the transcripts to the immediate proceedings, and ordered that counsel for plaintiffs be held personally liable for any unauthorized use. Wyllie and Falgout appeal this order. II We review decisions regarding disclosure of grand jury materials pursuant to a Rule 6(e) motion under an abuse of discretion standard. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979); In re Corrugated Container Antitrust Litigation, 687 F.2d 52, 55 (5th Cir.1982). Federal courts long have recognized that secrecy is essential to maintaining the integrity of the grand jury system. See United States v. Sells Engineering, Inc., 463 U.S. 418, 428, 103 S.Ct. 3133, 3140, 77 L.Ed.2d 743 (1983); United States v. Procter & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). Rule 6(e) Fed.R.Crim.P. codifies this value. Secrecy, however, is not an absolute, and ours is the not uncommon judicial task of balancing. Rule 6(e) provides certain exceptions, and case law has established that a district court may properly order release of grand jury materials where a party demonstrates with particularity a “compelling necessity” for the materials. Procter & Gamble, 356 U.S. at 682, 78 S.Ct. at 986. The Supreme Court has insisted that the need for disclosure be demonstrated “with particularity.” See Procter & Gamble, 356 U.S. at 683, 78 S.Ct. at 987. In Douglas Oil, the court developed a three prong test to determine particularized need, now the touchstone of review: Parties seeking grand jury transcripts under Rule 6(e) must show (1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding, (2) that the need for disclosure is greater than the need for continued secrecy, and (3) that their request is structured to cover only material so needed. Douglas Oil, 411 U.S. at 222, 99 S.Ct. at 1674 (enumeration added). A party seeking" }, { "docid": "7808292", "title": "", "text": "excerpts from one interve-nor’s May 1995 deposition, showing some degree of memory loss. At a hearing on the motion for reconsideration, held February 27,1998, the court modified its previous ruling to allow witnesses to review their own transcripts. The court also stated that, later, it would work out a disclosure procedure for the grand jury testimony of trial witnesses. Rockwell and the intervenors appealed the order to this court and requested a stay pending appeal. On March 2, we issued a temporary stay. The parties provided expedited briefing on the stay motion and participated in a lengthy oral argument on April 1. At oral argument, the parties agreed that this court reviews the merits of the district court’s order under the abuse of discretion standard, see In re Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir.1997), and conceded that they had no additional legal argument to place before this court. We now resolve the merits of this dispute. DISCUSSION The Supreme Court has consistently “recognized that the proper functioning of the grand jury system depends upon the secrecy of the grand jury proceedings.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Secrecy, however, is not absolute. Rule 6(e) of the Federal Rules of Criminal Procedure provides exceptions to the general rule. Under Fed.R.Crim.P. 6(e)(3)(C)(i), grand jury materials may be disclosed “when so directed by a court preliminarily to or in connection with a judicial proceeding.” A district court may properly order release of grand jury materials after a party demonstrates the necessity for them “with particularity.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-87, 2 L.Ed.2d 1077 (1958). The determination involves balancing competing interests that differ from ease-to-case: Specifically, a party seeking grand jury materials must show (1) the materials are needed to avoid a possible injustice in' another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only material so needed. Relevance alone is not sufficient;" }, { "docid": "7808293", "title": "", "text": "depends upon the secrecy of the grand jury proceedings.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Secrecy, however, is not absolute. Rule 6(e) of the Federal Rules of Criminal Procedure provides exceptions to the general rule. Under Fed.R.Crim.P. 6(e)(3)(C)(i), grand jury materials may be disclosed “when so directed by a court preliminarily to or in connection with a judicial proceeding.” A district court may properly order release of grand jury materials after a party demonstrates the necessity for them “with particularity.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-87, 2 L.Ed.2d 1077 (1958). The determination involves balancing competing interests that differ from ease-to-case: Specifically, a party seeking grand jury materials must show (1) the materials are needed to avoid a possible injustice in' another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only material so needed. Relevance alone is not sufficient; secrecy will not be broken absent a compelling necessity for the materials. Further, the request must amount to more than a request for authorization to engage in a fishing expedition: In re Grand Jury 95-1, 118 F.3d at 1437 (citations and quotations omitted). The grand jury’s supervisory court is “in the best position to determine the continuing need for grand jury sécrecy.” Douglas Oil, 441 U.S. at 226, 99 S.Ct. at 1676. The court in which the civil case is pending, however, has the expertise to consider need for the requested materials' and to structure the disclosure. See id. at 229-30, 99 S.Ct. at 1678-79. The discussion below addresses the three elements of the disclosure burden in isolation. It should be kept in mind that, as in any balancing test, the relevant factors are interrelated. Competing interests, cannot be weighed without the identification of a recognizable need and an estimate of the interests in secrecy. “[AJs the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a" }, { "docid": "7966279", "title": "", "text": "F.2d 1261, 1268 (11th Cir.1984) (hereinafter “Appeal of Hastings”). Nonetheless, we also have indicated that courts “are not empowered to act outside of Rule 6(e) in other than exceptional circumstances consonant with the rule’s policy and spirit.” Appeal of Hastings, 735 F.2d at 1269; see id. at 1272. Thus, while district courts have inherent authority to act outside Rule 6(e)(3), any inherent disclosure authority is exceedingly narrow and exists only in exceptional circumstances. See id. at 1272 (concluding that “a petition by a judicial investigating committee presents one of the occasions when a district court may act outside the strict boundaries of Rule 6(e)”). The Aisenbergs seek to uphold the grand jury disclosure based both on the district court’s inherent authority and on the exception in Rule 6(e)(3)(C)(i)(I). The guidelines for determining when grand jury secrecy may be broken are well settled and apply in both situations. Specifically, parties seeking disclosure' must show: (1) “that the material they seek is needed to avoid a possible injustice in another judicial proceeding”; (2) “that the ■ need for disclosure is greater than the need for continued secrecy”; and (3) “that their request is structured to cover only material so needed.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674; United Kingdom v. United States, 238 F.3d 1312, 1320-21 (11th Cir.2001); United States v. Burke, 856 F.2d 1492, 1495-96 (11th Cir.1988); United States v. Elliott, 849 F.2d 554, 557 (11th Cir.1988); Appeal of Hastings, 735 F.2d at 1273. These same demanding standards apply even after the grand jury has concluded its operations. Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674 (stating that “[s]uch a showing must be made even when the grand jury whose transcripts are sought has concluded its operations, as it had in Dennis [v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966)]”); Elliott, 849 F.2d at 557 (same); Burke, 856 F.2d at 1496 (same). “[I]n considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the" } ]

[ { "docid": "22961885", "title": "", "text": "judgment.” 29 C.F.R. § 541.2(e)(2). The court found that this requirement had been met on the facts before it as well, noting that marketing representatives exercise discretion and use their own judgment in deciding which agents to contact and which products to emphasize on a given day. See id. at 423-24. Thus, having found that both prongs of the short test had been satisfied, the court concluded that the marketing representatives qualified as administrative employees and were thus exempt from the FLSA’s overtime requirements. Following the entry of judgment in favor of John Alden, the Secretary filed a timely notice of appeal to this Court. The case is now in order for decision. III. STANDARDS OF REVIEW Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for ruling on a motion for summary judgment: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The trial court must view all facts and draw all inferences in the light most favorable to the nonmoving party. See Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991). When deciding cross-motions for summary judgment, the court must consider each motion separately, drawing inferences against each movant in turn. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996). Summary judgment is appropriate when there is no dispute as to any material fact and only questions of law remain. Id. Because the summary judgment standard requires the trial court to make a legal determination rather than to engage in factfinding, appellate review is generally governed by the de novo standard. See National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). However, the particular procedural vehicle by which this case was decided by the district court requires some deviation from" } ]

[ { "docid": "3177994", "title": "", "text": "thus defies the CWA. For the reasons that follow, the court finds that it does not, and accordingly Defendants’ motion for summary judgment will be granted in this regard. III. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56, 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). A moving party is entitled to summary judgment if he demonstrates that “the nonmoving party has failed to make a sufficient showing of an essential element of [his] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party bears the burden of adducing palpable evidence “establishing that there is a genuine factual dispute for trial” and may not merely rely upon “bare assertions or conclusory allegations” to survive summary judgment. Hogan v. Tuyo. of Haddon, 278 Fed.Appx. 98, 101 (3d Cir.2008) (citing Fireman’s Ins., Co. v. Du-Fresne, 676 F.2d 965, 969 (3d Cir.1982)). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied [only] when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact.” Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 407 (E.D.Pa.2000). The court should draw inferences “in the light most favorable to the nonmoving party, and where the non-moving party’s evidence contradicts the mov-ant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992) cert. denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). Here, the parties agree that no genuine issue of material fact exists. Therefore, the court will determine on the fully developed record whether, as a matter of law, Defendants are entitled" }, { "docid": "19319392", "title": "", "text": "it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from those facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The FDCPA is a remedial, strict liability statute “and is liberally construed to protect consumers.” Zortman v. J.C. Christensen & Assocs., Inc., 870 F.Supp.2d 694, 702 (D.Minn.2012) (citing Picht v. John R. Hawks, Ltd., 236 F.3d 446, 451 (8th Cir. 2001)). “A violation of the FDCPA is reviewed utilizing the unsophisticated-consumer standard which is designed to protect consumers of below average sophistication or intelligence without having the standard tied to the very last rung on the sophistication ladder.” Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir.2004) (internal quotation marks omitted). This standard is meant to “proteet[] the uninformed or naive consumer,” while still “containing] an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection letters.” Id. at 317-18. B. Propriety of Deciding the Motions for Summary Judgment As an initial matter, the Court must determine whether it is appropriate to consider at this time the parties’ motions for summary judgment that were filed simultaneously with Hartley’s motion for class certification. See Friedman v. May Dep’t Stores Co., 990 F.Supp. 571, 573-74 (N.D.Ill.1998) (considering as a preliminary issue whether it was appropriate to rule on defendant’s motion for summary judgment prior to resolving the question of class certification). Federal Rule of Civil Procedure 23 provides that a district court must rule on the issue of class certification “[a]t an" }, { "docid": "15908333", "title": "", "text": "incorrectly based on the lack of communication [he] had with [Olsen]” and that female managers were being treated differently. (See Douglas Dep. 123:7-124:15.) Duran informed Plaintiff that he and Duran would sit down later to address Plaintiffs concerns. (See id. at 124:23-24.) As far as Plaintiff is aware, nothing happened as a result of this conversation. (See id. at 125:6-11.) III. DISCUSSION Summary judgment is appropriate “if 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). A “genuine” issue exists where the evidence is “sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.” Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). A “material” fact “has the potential to alter the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant.” Smith v. F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir.1996). The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. The burden then “shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.” Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir.2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). The court must analyze this evidence by “viewing] the facts in the light most favorable to the non-moving party, [and] drawing all reasonable inferences in that party’s favor.” Pac. Ins. Co. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir. 2004) (quotation omitted). A summary judgment motion in an employment discrimination case presents additional concerns. Courts must be “particularly cautious about granting [an] employer’s motion for summary judgment” in a discrimination case where a plaintiff “makes out a" }, { "docid": "15083845", "title": "", "text": "much, since they submitted the LPA to the agency for review and engaged in a lively debate with the NIGC over whether the LPA was itself part and parcel of the Management Agreement — an issue that was never finally resolved at the agency level. See Ex. E to the Motion for Reconsideration. At no point in this correspondence did Catskill object to NIGC review of the LPA on the ground that the agency lacked statutory authority to review agreements collateral to Class III management contracts. So I was right — albeit for the wrong reason — in Catskill I, and wrong in Catskill II. Because it had not yet received NIGC approval, the LPA, like the other three collateral agreements as well, was void and of no effect. Therefore, Park Place is entitled to summary judgment dismissing the First Cause of Action. Resolution of this issue allows me to proceed to the merits of Park Place’s motion for summary judgment on the one remaining claim for relief — which must be granted II. Defendant’s Motion for Summary Judgment Dismissing the Second Cause of Action A. Summary Judgment Standard A party is entitled to summary judgment when there is no “genuine issue of material fact” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addressing a motion for summary judgment, “the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Whether any disputed issue of fact exists is for the Court to determine. Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir.1989). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)." }, { "docid": "5812264", "title": "", "text": "Racial Profiling Prevention Act of 2004); and a state tort claim of negligence. At the conclusion of discovery, defendants filed a motion for summary judgment defending both on qualified immunity grounds and substantive grounds. Plaintiffs also filed a motion for partial summary judgment. The district court entered judgment in favor of defendants on all counts on December 30, 2008. Plain tiffs timely appealed. II. Standard of Review Summary judgment is appropriate if the record shows “that 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). On a summary judgment motion, “[a] genuine issue exists where a ‘reasonable jury could resolve the point in favor of the nonmoving party.’ ” Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir.2009) (quoting Suárez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000)). “A fact is material only if it possesses the capacity to sway the outcome of the litigation under the applicable law.” Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir.2008) (internal quotation marks omitted). Where, as here, the parties have filed cross-motions for summary judgment, the court must “determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir.2004). “It is not for the court on summary judgment to weigh the evidence ‘but to determine whether there is a genuine issue for trial.’ ” Cont’l Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Ruling on each party’s motion, the court views all facts and draws all reasonable inferences in the light most favorable to the nonmoving party. Id. III. Discussion In this appeal, Plaintiffs press four main issues. First, Plaintiffs argue that the district court erred in ruling that Officer Chabot did not violate their Fourth Amendment rights by inquiring about their immigration status and contacting ICE. Second, Plaintiffs" }, { "docid": "3750510", "title": "", "text": "controversy requires resolution of disputed factual issues.” Glaverbel, 45 F.3d at 1560 (citing Celotex, 477 U.S. at 327, 106 S.Ct. 2548). As noted above, Rule 56 provides for summary judgment in favor of either a claimant or a defendant on a claim if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a)-(c); Glaxo Group, Ltd. v. TorPharm, Inc., 153 F.3d 1366, 1370-71 (Fed.Cir.1998); Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1274 (Fed.Cir.1995); Comair Rotron, Inc. v. Nippon Densan Corp., 49 F.3d 1535, 1536 (Fed.Cir.1995). Thus, in a patent case, in order for the court to grant summary judgment, “there must ... be no genuine issue of material fact, the burden of proof of an issue must be correctly allocated, and all pertinent factors must be considered.” Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 60 F.3d 770, 772 (Fed.Cir.1995) (quoting A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1039 (Fed.Cir.1992)); Nike, Inc., 43 F.3d at 646 (“Summary judgment is appropriate in a patent case, as in' other cases, when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”). A court considering a motion for summary judgment must view all of the facts in the light most favorable to the nonmoving party, and give the non-movant the benefit of all reasonable inferences that can be drawn from the facts. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Glaxo Group, Ltd., 153 F.3d at 1370-71 (“Under this standard, all reasonable infer ences must be drawn and all factual disputes resolved in favor of the non-movant.”); Gasser Chair, 60 F.3d at 772 (the district court must “view the evidence in a light most favorable to the nonmovant and draw all reasonable inferences in its" }, { "docid": "5928414", "title": "", "text": "15, 2013) (Docket No. 430). The parties now cross-move for summary judgment. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the admissible evidence and pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute over an issue of material fact qualifies as genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, all evidence must be viewed “in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004), and a court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004). When, as here, both sides move for summary judgment, a court is “required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party.” Wachovia Bank, Nat’l Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir.2011). Thus, “neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.2002). By contrast, to defeat a motion for summary judgment," }, { "docid": "19866529", "title": "", "text": "26, 2007) (concluding that courts make take judicial notice of family court orders and determinations). 2. Rule 56 Summary judgment may be granted when it is shown 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (same). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dall. Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir.2005). “However, before a Court grants summary judgment, the non-movant ‘must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment.’ ” Fowler v. Scores Holding Co., 677 F.Supp.2d 673, 677 n. 1 (S.D.N.Y.2009) (quoting Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000)). Therefore, “[ojnly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom, 201 F.3d at 97. B. Rooker-Feldman Defendants argue that the Rook-er-Feldman doctrine prohibits Plaintiffs from seeking relief for injuries related to the proceedings in Family Court. (Mem. of Law (“Orange Mem.”) 9-11; Mem. of Law Pursuant to F.R.C.P. Rules 12 and 16 in Supp. of Defs.’ Mot. to Dismiss the Am. Verified Compl. (“Middletown Mem.”) 16.) “Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments.” Phillips ex rel. Green v. City of New York, 453 F.Supp.2d 690, 712 (S.D.N.Y.2006) (internal quotation marks omitted); see generally Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v." }, { "docid": "16294713", "title": "", "text": "Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the Court, viewing the evidence in the light most favorable to the nonmovant, determines that the movant has satisfied this burden, the burden then shifts to the nonmovant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the nonmovant fails to carry this burden, summary judgment is appropriate. See id. Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party’s entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant’s favor. Chertkova v. Conn. Gen’l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56(c)). In applying this standard, the court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (citation omitted). These determinations are within the sole province of the jury.. Id. B. Proof of Damages In JMC/Cantanucci’s reply memorandum of law, defendants vaguely asserts that plaintiffs should be precluded from offering proof of damages as they have provided no opinion as to the cost of" }, { "docid": "10874149", "title": "", "text": "assigned to Riviera by the Factoring Agreement. II. DISCUSSION A. STANDARD OF REVIEW Pursuant to Rule 56, a court may grant summary judgment if, on the record before it, there exists “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); Alabama v. North Carolina, — U.S. -, 130 S.Ct. 2295, 2306, 176 L.Ed.2d 1070 (2010). In determining whether disputed issues of material fact exist, a court must view the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in that party’s favor. See, e.g., Shapiro v. New York Univ., 640 F.Supp.2d 411, 418 (S.D.N.Y.2009) (citing 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 role of a court in ruling on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citations omitted). The moving party bears the burden of proving that no genuine issue of material fact exists, or that, because the paucity of evidence presented by the non-movant, no rational jury could find in favor of the non-moving party. See Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223-24 (2d Cir. 1994). When deciding cross-motions for summary judgment, the standard to be applied “is the same as that for individual motions for summary judgment and a court must consider each motion independent of the other.” Schultz v. Stoner, 308 F.Supp.2d 289, 298 (S.D.N.Y.2004) (quotation omitted). B. ANALYSIS Though it advances multiple legal theories, Capgemini’s fundamental position is simple: Because EC breached the Original Agreement, Capgemini owes nothing to Riviera. Riviera’s points of law are similarly branches emanating from a single trunk: After Capgemini received notice of EC’s assignment of payments under the Original Agreement to Riviera, EC’s breach — and any attendant damages — is irrelevant to Riviera’s claims for" }, { "docid": "16828175", "title": "", "text": "for summary judgment, I assume that no evidence need be considered other than that filed by the parties. James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 124 F.3d 1321, 1323 (10th Cir.1997). Nevertheless, summary judgment is inappropriate if genuine issues of material fact exist. Id. Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence present in the motion and response. 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 operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor, a reasonable jury could return a verdict for that party. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505; Mares, 971 F.2d at 494. III. ANALYSIS OF CROSS-MOTIONS FOR SUMMARY JUDGMENT a. Choice of Law In its motion for summary judgment, Allstate first argues that, as a matter of law, Colorado law governs the resolution of its dispute with Mr. Flannery. Mr. Flan-nery concedes that Colorado law applies and, therefore, I grant, as confessed, Allstate’s motion for summary judgment on that issue. b. Law of the Case Doctrine Judge Weinshienk ruled that Allstate had a duty to defend Mr. Flannery against the trespass counterclaim in the underlying litigation. “The law of the case” is a judicial doctrine designed to promote finality. Once a court decides an issue, that doctrine comes into play to prevent the relitigation of that issue in subsequent proceedings in the same case. Arizona v. California, 460 U.S. 605, 618-619, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); United States v. Monsisvais, 946 F.2d 114, 115-116 (10th Cir.1991). Unlike the doctrines of res judicata or collateral estoppel, “the law of the" }, { "docid": "5752254", "title": "", "text": "as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material if it' “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party’s favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). If, after viewing the record in the non-moving party’s favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law, then summary judgment is appropriate. B. Application Because plaintiffs did not timely respond to defendants’ motion for summary judgment or submit a statement of material facts, the Court treats defendants’ motion as unopposed and deems admitted the facts set forth in defendants’ Statement of Undisputed Material Facts. See Local Rule 56.1. Although defendants’ motion is, in effect, unopposed, the Court must still determine, on the record before it, whether defendants are entitled to summary judgment. See Cordi-Allen v. Halloran, 470 F.3d 25, 28 (1st Cir.2006) (citations omitted). Indeed, even an unopposed motion for summary judgment should not be granted unless the record discloses that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 13 (1st Cir.2007) (citations omitted). In most cases, however, “a party’s failure to oppose summary judgment is fatal to its" }, { "docid": "2377966", "title": "", "text": "all had over 30 years of service with NL Industries. All plaintiffs were fully vested under the Pension Plan. All plaintiffs, except Lamar Stewart, were under 60 years of age. When plaintiffs turned age 60, they sought unreduced “60/30 Retirement” benefits under 1976 Pension Plan § 5.2 and § 6.1. Defendants determined that plaintiffs were entitled to the deferred vested retirement benefit under 1976 Pension Plan § 8.2(b) and § 6.4(b). This benefit is an actuarially reduced normal retirement benefit. Summary Judgment Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Buller, 706 F.2d at 846. However, under Rule 56(e), a party opposing a motion for summary judgment may not rest upon the allegations of his pleadings but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also 10A Wright, Miller and Kane, Federal Practice and Procedure, § 2739 (1983). Disputes involving the interpretation of unambiguous contracts and undisputed historical facts are appropriate cases for summary judgment. If a contract is unambiguous, then its meaning is a matter of law and no genuine issues of material fact exist. Only if a contract is ambiguous is the meaning of the contract a question of fact precluding summary" }, { "docid": "21065403", "title": "", "text": "against Oy Saunatec, Ltd., Saunatec, Inc., H.B.C., Inc., and EGO seeking damages. EGO has moved for summary judgement, pursuant to Rule 56 Fed.R.Civ.P., seeking dismissal of the action against it for lack of personal jurisdiction. DISCUSSION I. Summary Judgement Summary judgment may not be granted unless the submissions of the parties taken together “show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995). It is the moving party who bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of “ ‘the pleadings, depositions, answers to inteiTogatories, and affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Federal Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). Once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must “set forth specific facts showing that there is a genuine issue for trial,” and cannot rest on “mere allegations or denials” of the facts asserted by the movant. Fed.R.Civ.P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). When deciding a motion for summary judgment, this Court must “view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor.” American Casualty Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994). Summary judgement is appropriate if, after drawing all reasonable inferences and ambiguities in the nonmovant’s favor, no genuine issues of material fact exist and the movant is entitled to judgement as a matter of law. Fed.R.Civ.P. 56(c); see also Greene v. United States, 13 F.3d 577 (2d Cir.1994); Metropolitan Life Insurance Company v. Jackson, 896 F.Supp. 318 (S.D.N.Y.1995). II. Personal Jurisdiction Subject" }, { "docid": "5439387", "title": "", "text": "material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party’s claim cannot be sustained, the opposing party must “set forth specific facts showing that there is a genuine issue for trial,” and cannot rest on “mere allegations or denials” of the facts asserted by the mov-ant. Fed.R.Civ.P. 56(e). In raising a triable issue of fact, the non-movant carries only “a limited burden of production,” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the material facts,’ and come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.2004). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id. When cross-motions for summary judgment are made, the standard is the same as that for an individual motion. See Morales v. Quintet Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.2001). Discussion I. The Fair Labor Standards Act The purpose of the FLSA is to “guarantee[ ] compensation for all work or employment engaged in by" }, { "docid": "5928413", "title": "", "text": "2013, Plaintiffs filed a motion for a preliminary injunction, seeking an order enjoining Defendants from, inter alia, communicating directly with prospective collective members about issues relating to this lawsuit because “CTG [had allegedly] engaged in a concerted effort to intimidate and threaten Plaintiffs and mislead them about tax consequences if they prevail in this case.” (Docket No. 121, at 1). Plaintiffs’ motion relied primarily on the behavior of three alleged employees of CTG. After an evidentiary hearing, however, the Court denied the motion, finding that the communications by two of the three were not sufficiently threatening or improper to justify , such a broad injunction, and that Plaintiffs had not demonstrated that the third person was acting as Defendants’ agent when he made the relevant communications. (Docket Nos. 215, 440). By Opinion and Order entered November 15, 2013, the Court denied Plaintiffs’ motion for class certification of their NYLL claims, pursuant to Rule 23 of the Federal Rules of Civil Procedure. See Saleem v. Corporate Transp. Grp., No. 12-CV-8450 (JMF), 2013 WL 6061340 (S.D.N.Y. Nov. 15, 2013) (Docket No. 430). The parties now cross-move for summary judgment. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the admissible evidence and pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute over an issue of material fact qualifies as genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, all evidence must be viewed “in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004), and a court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004). When, as here, both" }, { "docid": "19077377", "title": "", "text": "our Circuit that should be resolved before we turn to the cumbersome and costly machinery of class-wide relief. Pursuant to Rule 54(b), we shall enter judgment in the amount of $2,500 for each of the named plaintiffs and against UNITE only. We will defer our decisions on all other remedial issues, including those UNITE raises now, as well as the matter of class-wide claims procedures, until our Court of Appeals has addressed all matters concerning liability. IV. Conclusion For the reasons discussed herein, we find that UNITE violated the DPPA. We shall therefore grant plaintiffs’ motion for summary judgment as against UNITE and enter judgment in the amount of $2,500 for each named plaintiff. We also find that Bruce Raynor is entitled to judgment in his favor, as we are granting his motion. . 18 U.S.C. §§ 2721-2725 (2006). . 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. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of proving that there is no genuine issue of material fact in dispute. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party carries this burden, the nonmoving party must \"come forward with 'specific facts showing there is a genuine issue for trial.'\" Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The task for the Court is to inquire \"whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.\" Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505; Tabas v. Tabas, 47 F.3d 1280, 1287 (3d Cir.1995) (en banc). .The parties have" }, { "docid": "15908334", "title": "", "text": "law if the dispute over it is resolved favorably to the nonmovant.” Smith v. F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir.1996). The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. The burden then “shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.” Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir.2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). The court must analyze this evidence by “viewing] the facts in the light most favorable to the non-moving party, [and] drawing all reasonable inferences in that party’s favor.” Pac. Ins. Co. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir. 2004) (quotation omitted). A summary judgment motion in an employment discrimination case presents additional concerns. Courts must be “particularly cautious about granting [an] employer’s motion for summary judgment” in a discrimination case where a plaintiff “makes out a prima facie case and the issue becomes whether the employer’s stated non-discriminatory reason is a pretext for discrimination.” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir.1998) (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.1983)). Nonetheless, summary judgment may also be appropriate where an employee’s evidence regarding pretext is particularly weak. See Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir.2003). Furthermore, even “where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)) (internal quotations omitted). However, where the non-moving party has produced something more, “trial courts should use restraint in granting summary judgment where discriminatory animus is in issue.” Hodgens, 144 F.3d at 167 (internal quotations omitted). Massachusetts courts take a similarly cautious approach to summary judgment in such cases: Summary judgment is" }, { "docid": "3542448", "title": "", "text": "those portions of the R & R which recommend granting summary judgment, this Court is mindful that summary judgment is appropriate only when “there is no genuine issue as to any material fact and the movant party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, ie., whether it concerns facts that can affect the outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999) (internal quotation marks omitted; brackets added). The moving party bears the burden of showing that there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the movant meets this burden, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990); see Fed.R.Civ.P. 56(e). The non-movant cannot avoid summary judgment “through mere speculation or conjecture” or “by vaguely asserting the existence of some unspecified disputed material facts” Western World, 922 F.2d at 121 (internal quotations and citations omitted). Moreover, the disputed facts must be material to the issue in the case, in that they “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When evaluating a motion for summary judgment, “[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “No genuine issue exists if, on the basis of all the pleadings, affidavits and other papers on file," }, { "docid": "17364520", "title": "", "text": "foreclosure of personal property; (3) rental proceeds; (4) possession; and (5) judgment against Martin personally. DISCUSSION I. Motion for Summary Judgment Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the Court, viewing the evidence in the light most favorable to the nonmovant, determines that the movant has satisfied this burden, the burden then shifts to the. nonmovant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the nonmovant fails to carry this burden, summary judgment is appropriate. See id. Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party’s entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the nonmovant’s favor. Chertkova v. Conn. Gen.’l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56(c)). II. Mortgage Foreclosure “Under New York law, summary judgment in a mortgage foreclosure action is appropriate where the Note and Mortgage are produced to the Court along" } ]

[ { "docid": "23491513", "title": "", "text": "to preclude anyone except the Attorney General and in certain situations an employee or his duly authorized representative from maintaining an action under the Act against petitioners” (414 U.S. at 465 (Justice Brennan concurring)), and transportation policies not pertinent here militated in favor of such a limitation. No such history or policies are to be found here. . The holding in Blue Chip was that persons who claimed that they had been fraudulently induced not to purchase securities were not within the class of persons protected by Section 10(b) of the 1934 Act and Rule 10b-5, under which recovery is limited to funds “in connection with the purchase or sale” of securities. In reaffirming the doctrine of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2 Cir.), cert. denied, 343 U.S. 956 (1952), the Court also stated that “actual shareholders in the issuer who allege that they decided not to sell their shares because of an unduly rosy representation or a failure to disclose unfavorable material” might not be able to sue under Section 10(b) and Rule 10b-5. Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 737-38. . In interpreting the express language of Section 10(b) and Rule 10b-5 in Blue Chip, the Court expressed concern about suits by persons who neither purchased nor sold securities but who claimed that they would have purchased or sold securities but for false representations made by someone whom they might not even have known. The Court noted that the “purchase or sale” requirement protected against vexatious suits by a potentially limitless class of plaintiffs and avoided the difficult questions of determining whether a plaintiff would or would not have purchased or sold securities but for the defendant’s representations. Id. at 745-47. Far from holding that claims of persons who were neither purchasers nor sellers would be too speculative under the other securities acts, the Court interpreted the express language of Section 10(b) and Rule 10b-5. And the Court expressly noted that many of the other securities acts have no “purchase or sale” requirement. 421 U.S. at 733-34. . Even the" } ]

[ { "docid": "5259949", "title": "", "text": "L.Ed.2d 539 (1975), bars plaintiffs’ claim under § 10(b) of the 1934 Act. In Blue Chip, the Supreme Court endorsed the so-called Birnbaum rule under which a person who is neither a purchaser nor a seller of securities may not sue under § 10(b). See Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2 Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Plaintiffs in Blue Chip claimed they were fraudulently induced not to purchase certain securities. The Supreme Court, however, left little doubt that it approved the Birnbaum rule not only as regards non-purchasers, but also as regards those who allege that they were fraudulently induced not to sell securities. 421 U.S. at 737-38, 95 S.Ct. at 1926-27. Courts had previously applied Birnbaum to foreclose such “retention” claims, see, e.g., Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1174-76 (S.D.N.Y. 1974), and they have uniformly adhered to that interpretation in the wake of Blue Chip, see Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1239-41 (D.C.Cir.1978); Williams v. Sinclair, 529 F.2d 1383, 1389 (9 Cir. 1976), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); Clinton Hudson & Sons v. Lehigh Valley Cooperative Farms, 73 F.R.D. 420, 425-26 (E.D.Pa.1977), aff’d mem., 586 F.2d 834 (3 Cir. 1978). To determine the proper application of Blue Chip here, it is necessary to separate . out the various strands of plaintiffs’ § 10(b) theory. Their first claim is that they were wrongfully and fraudulently prevented from piggybacking on Documation’s public offering. Their second contention is that defendants’ deceptive and manipulative conduct prevented them from selling their shares for ninety days after the public offering. Finally, plaintiff Gurley maintains that he sold 3,900 shares prior to the public offering, and that he did so in reliance on defendants’ intentional misrepresentations. The implications of Blue Chip are clear with respect to the first and last of plaintiffs’ claims. Their allegation that they were prevented from piggybacking on the public offering involves no sale of securities. Under a straight-forward application of Blue Chip, that allegation is not actionable. See" }, { "docid": "22270485", "title": "", "text": "L.Ed.2d 130 (1994); Barrows v. Forest Labs., Inc., 742 F.2d 54, 59-60 (2d Cir.1984); Osofsky v. Zipf, 645 F.2d 107, 111-12 (2d Cir.1981). That qualification, however, has no bearing in this case. . Plaintiff alleges also that the price of Nu-Tech common later fell, ultimately to about $2 per share by the time suit was filed in May 1997. It is not entirely clear from the complaint that he seeks to recover for that decline, as his grievance seems to be that he purchased at prices artificially affected by the alleged manipulation. (Cpt & 42) In any case, however, plaintiff may not recover for the decline in the price of his holdings subsequent to his purchases. Section 10(b) and Rule 10b-5 prohibit fraud only “in connection with” the purchase and sale of securities. Accordingly, only a purchaser or seller may sue thereunder. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Plaintiff nowhere alleges that he sold any shares. To whatever extent that he seeks compensation for the decline in the price of Nu-Tech shares caused by allegedly manipulative short sales in the period following his purchases, the loss was not the product of fraud in connection with the purchase or sale of securities by Gurary and therefore is not recoverable. See Blue Chip Stamps, supra, 421 U.S. at 737-38, 95 S.Ct. 1917 (decline in value of stock allegedly held in consequence of fraudulent statement not recoverable); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952) (same); see also First Equity Corp. v. Standard & Poor’s Corp., 869 F.2d 175, 180 n. 2 (2d Cir.1989) (10b-5 plaintiffs “may recover only for losses that result from decisions to buy or sell, not from decisions to hold or refrain from trading”); Elkind, 635 F.2d at 170-71 (defrauded buyer could not recover for subsequent price decline because not \"in connection with” the purchase); Abrahamson v. Fleschner, 568 F.2d 862, 868 (2d Cir.1977), cert. denied, 436 U.S. 905, 913, 98 S.Ct. 2236, 2253," }, { "docid": "22270486", "title": "", "text": "the decline in the price of Nu-Tech shares caused by allegedly manipulative short sales in the period following his purchases, the loss was not the product of fraud in connection with the purchase or sale of securities by Gurary and therefore is not recoverable. See Blue Chip Stamps, supra, 421 U.S. at 737-38, 95 S.Ct. 1917 (decline in value of stock allegedly held in consequence of fraudulent statement not recoverable); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952) (same); see also First Equity Corp. v. Standard & Poor’s Corp., 869 F.2d 175, 180 n. 2 (2d Cir.1989) (10b-5 plaintiffs “may recover only for losses that result from decisions to buy or sell, not from decisions to hold or refrain from trading”); Elkind, 635 F.2d at 170-71 (defrauded buyer could not recover for subsequent price decline because not \"in connection with” the purchase); Abrahamson v. Fleschner, 568 F.2d 862, 868 (2d Cir.1977), cert. denied, 436 U.S. 905, 913, 98 S.Ct. 2236, 2253, 56 L.Ed.2d 403, 414 (1978) (\"requirement of fraud in connection with the purchase or sale of a security is not satisfied by an allegation that plaintiffs were induced fraudulently not to sell their securities”). . The district court’s dismissal of the state law claims for lack of jurisdiction once it correctly dismissed the federal claims was entirely appropriate. See 28 U.S.C. § 1367(c)(3)." }, { "docid": "8738644", "title": "", "text": "of those that were replaced. To the extent that Yarvis claims “economic harm” in relation to the December, 1969 maintenance payment, his recovery is limited to the difference between value given and services rendered. Yarvis also complains that free calves, received pursuant to the promised 90% calf crop, were the source of a federally cognizable economic injury. “The most important damage element in these ‘free’ cattle were [sic] their lulling effect which kept Yarvis paying from late 1969 onward.” (Reply Brief at 66—7) This amounts to an assertion that but for the receipt of the animals, Yarvis would have minimized the losses he ultimately experienced: he would have withdrawn his investment in Black Watch before it filed its bankruptcy petition. This claim is of the same stripe as the broader claim, lodged by both Bickart and Yarvis, that if they had only known the facts, they would have sold out and avoided the losses they suffered when Black Watch collapsed in September, 1970. This claim must be dismissed. Reliance on Zeller v. Bogue, 476 F.2d 795 (2d Cir. 1973), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973) is misplaced. The limited right to recover consequential damages, does not suspend the general rule that damages for the mere retention — as opposed to purchase or sale— of securities cannot be recovered in a Rule 10b-5 action. Birnbaum v. Newport Steel, 193 F.2d 461 (2d Cir. 1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952); accord, Blue Chip Stamps v. Manor Drug Store, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), rehearing denied, 423 U.S. 884, 96 S.Ct. 157, 46 L.Ed.2d 114 (1975). Restating the Birnbaum-Blue Chip rule: when fraud results merely in the retention of securities, no relief may be had under 10b-5. This proscription applies regardless of the nature of the retention-inducing fraud. It is clear that had retention of plaintiffs’ underlying investment been induced by a fraud involving nothing more than garden variety misrepresentation, damages consequent to that retention would be unavailable. This result is no different where, as" }, { "docid": "7704850", "title": "", "text": "will first consider the various transactions described in the amended complaint and determine whether any of these constitutes the purchase or sale of a security within the meaning of the federal securities laws. The Court will then determine whether a fraud is alleged in connection with any of these securities transactions, and finally, whether any such fraud caused the losses claimed by plaintiffs. Only after deciding whether any primary violation is alleged can the Court assess the sufficiency of plaintiffs’ aiding and abetting claims against the moving defendants. a. Standing Only purchasers and sellers of securities have standing to bring a private cause of action under section 10(b). Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 749, 95 S.Ct. 1917, 1931, 44 L.Ed.2d 539 (1975); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). A cause of action will not be recognized based on the mere retention of securities. See, e.g., Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 737-38, 95 S.Ct. at 1926-27 (potential plaintiffs excluded by Birnbaum rule include stockholders who decide not to sell their shares). Plaintiffs point to various transactions as satisfying the purchase or sale requirement: their initial investments; the promissory notes issued in exchange for the conflict-of-interest loans to Ossorio and Drysdale; the issuance of stock in 4 Aquarius, 100 Aquarius and Aquarius 100; the discretionary accounts opened by Osso-rio on behalf of the Aquarius companies; and the underlying securities in those accounts. Plaintiffs put forth two distinct types of transactions in the underlying securities. They argue both that the ongoing transactions in the discretionary accounts and that the transfer of the underlying securities among the Aquarius accounts satisfy the purchase and sale requirement. The term “security” is defined in section 3(a)(10) of the 1934 Act, 15 U.S.C. § 78c(a)(10), to include, inter alia, any note, stock, bond, investment contract or any instrument commonly known as security. The Supreme Court has repeatedly admonished the lower courts to look at the economic reality of a transaction rather" }, { "docid": "18841674", "title": "", "text": "stock was grossly inadequate, that there was no factual basis for concluding that the price was “fair and just,” and that Judge & Dolph, Ltd. was not going to be “liquidated and dissolved in due course.” William Wirtz knowingly concealed these facts so that the state court would approve, as it subsequently did, the sale of said stock to the Wirtz Corporation. By knowingly undervaluing the true worth of the stock and by concealing this worth from plaintiff, Mary Norris, and the state court, William Wirtz engaged in a scheme to defraud and did defraud Susan Norris, in violation of Section 10(b) of the 1934 Act and Rule 10b-5. His fraudulent actions in connection with the sale of said stock were also taken on behalf and for the benefit of the Wirtz Corporation. As with the previous transactions, Susan Norris alleges that the sale would not have been approved by the state court if the true facts had been made known to it, and that Arthur Wirtz substantially assisted William Wirtz in this scheme to defraud her. As a result of the above-described transactions Susan Norris seeks damages in the amount equal to the difference between the fair market value of the stock as of the dates such stock was sold to the three corporations and the price received by her trust as a result ’ of said sales, plus the interest thereon from the sale dates until the date of judgment. In addition, she seeks reasonable attorneys’ fees and costs. II. Motion to Dismiss A. Standing In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), the court held that a plaintiff must be a purchaser or seller of securities to bring a private action for damages under Section 10(b) or Rule 10b-5. The Supreme Court adopted the Birnbaum rule in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). It is not disputed that Susan Norris herself did not sell the stock from her father’s estate to" }, { "docid": "7193300", "title": "", "text": "misrepresentations to her were not made “in connection with the purchase or sale” of a security as required by the federal securities laws. Although we agree with the district court that plaintiff has alleged deception on the part of the defendants sufficient to satisfy Santa Fe Industries and agree with much of the court’s discussion of standing, we disagree with its interpretation of plaintiff’s ability under the will to control the stock sales at the time defendants’ misrepresentations were made and consequently its determination that plaintiff has failed to state a cause of action under Section 10(b) and Rule 10b-5. The complaint alleges that defendants misrepresented the value of the corporate assets and misrepresented that the proposed stock redemptions were in the best interest of the estate. At the present stage, involving an appeal from a decision to dismiss the complaint, the allegations in the complaint should be read liberally and the plaintiff should be entitled to the benefit of all inferences. Accordingly, we agree with the district court that plaintiff has made sufficient allegations of deception by the defendants to satisfy the requirements for a Section 10(b) or Rule 10b-5 violation announced in Santa Fe Industries. See Atchley v. Qonaar Corp., 704 F.2d 355, 359 (7th Cir.1983). In addition to alleging manipulative or deceptive practices, a potential plaintiff must fit within the contours of the Birnbaum rule, established in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), and adopted by the Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), to maintain an action under Section 10(b) or Rule 10b-5. This “standing” requirement was invoked for various prudential and policy reasons to limit the class of plaintiffs who may sue under the federal securities laws and differs from ordinary Article III uses of standing. See Eason v. General Motors Acceptance Corp., 490 F.2d 654, 657 (7th Cir.1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974) (pre-Blue Chip decision). The Birnbaum" }, { "docid": "8840637", "title": "", "text": "the plaintiffs, by virtue of the April 8, 1970 agreement, did not purchase or sell any securities. The Court stated: The undisputed facts of this case do not show any purchase or sale of any security in connection with the transaction in question. The plaintiffs complain that they were induced into signing the April 8, 1970, agreement by fraudulent statements made by defendants herein; and that pursuant to such agreement they did not sell the stock as to which the first part of the original warranty had expired. For the purposes of this jurisdictional inquiry, all that the defendants did was to extend a warranty, and all that the plaintiffs did was agree not to sell their stock. There was no purchase, and sustain a claim that one had not purchased stock due to a fraudulent misrepresentation. See: 421 U.S. at 744-749, 95 S.Ct. 1917.for the Supreme Court’s analysis here. no sale. There are only two operative sentences in the agreement. The first is that the Gaudins “promise and agree that they will refrain from selling . .” and the second is that KDI “promises and agrees that it will extend the guarantee of a market value of $22.00 per share . .” To the extent that the agreement is anything other than a guarantee extension, it is a promise not to sell. There is no aspect of the transaction in question that qualifies the plaintiffs herein as purchasers or sellers of securities. Accordingly, this Court lacks jurisdiction and this complaint must be dismissed. [A. 475-76] In reaching its decision the District Court followed the Birnbaum rule, Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), as applied by the Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), and by this Court in Marsh v. Armada Corp., 533 F.2d 978 (6th Cir. 1976). In our opinion the District Court correctly applied these decisions. II The Securities Act contains no statute of limitations. We are therefore" }, { "docid": "12561801", "title": "", "text": "17 C.F.R. § 240.10b-5, prohibits misrepresentations “in connection with the purchase or sale of any security.” A plaintiff who has neither purchased nor sold securities in reliance on a misrepresentation may not maintain a private action under Rule 10b-5 for money damages. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 755, 95 S.Ct. 1917, 1934-35, 44 L.Ed.2d 539 (1975) (following Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952)). Defendants argue that the policy considerations which supported the Supreme Court’s holding in Blue Chip Stamps are persuasive in the common law context. The Supreme Court apparently disagrees. In Blue Chip Stamps, the Supreme Court reviewed the criticism of the commentators and the Securities and Exchange Commission that a purchase or sale requirement for a private 10b-5 claim constitutes “an arbitrary restriction which prevents some deserving plaintiffs from recovering damages which have in fact been caused by violations of 10b-5.” Id. 421 U.S. at 738, 95 S.Ct. at 1926-27 (citations omitted). The Supreme Court conceded that it “had no doubt that this is indeed a disadvantage of the Birnbaum rule.... Obviously this disadvantage is attenuated to the extent that remedies are available to nonpurchasers and nonsellers under state law.” Id. 421 U.S. at 738 & n. 9, 95 S.Ct. at 1927. Thus, although the Supreme Court went on to affirm the Birnbaum rule in the 10b-5 context, it recognized that the rule was sometimes unjust and that the lack of a common law Birnbaum rule was a salutary antidote to that injustice. A close reading of Blue Chip Stamps reveals, moreover, that the type of fraud alleged in this case is within the Supreme Court’s understanding of actionable common law fraud. Blue Chip Stamps involved a class of plaintiffs who failed to purchase stock, allegedly in reliance on defendants’ representations. 421 U.S. at 727-28, 95 S.Ct. at 1921. The Supreme Court pointed out that, “in the ordinary case of deceit,” a misrepresentation which induces a failure to purchase or sell is as actionable as one which" }, { "docid": "14031718", "title": "", "text": "Court dismissed the claim on the first ground. It held that Frigitemp had no standing to sue under 10(b) and 10b-5, since Frigitemp was not a purchaser or a seller of its securities during the period from March 1969 through March 1970 when the Funds were allegedly purchasing large quantities of Frigitemp common stock on the open market. It also held inferentially that the sale by Frigitemp of its debenture did not make it a “seller of securities” despite the appellants’ argument to the contrary based upon Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971). On the question of standing, we now have to realign our sights on the meaning of the Birnbaum rule, Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2 Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), in view of the decisions of the Supreme Court in the Bankers Life case and, more recently, in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). This court has interpreted Bankers Life to mean that the Birnbaum rule remained intact, noting that Bankers Life “in no way suggested a rejection of the rule that a plaintiff under Section 10(b) must be a party to the sales transaction.” Haberman v. Murchison, 468 F.2d 1305, 1311 n. 5 (2 Cir. 1972). In Blue Chip Stamps, the Supreme Court held than an offeree who failed to buy the stock offered because of an allegedly fraudulent prospectus had no standing to sue under 10(b) and 10b-5 since he was neither a purchaser nor a seller. It did not analyze the Bankers Life opinion except to approve the gloss put upon it by the Second Circuit in Haberman v. Murchison. 421 U.S. at 732, 95 S.Ct. at 1923. We are, accordingly, left with a reaffirmation qf the Birnbaum doctrine but with the limitation that the phrase “in connection with the purchase or sale of any security” may apply to a security different from the security whose sale originated the" }, { "docid": "10776407", "title": "", "text": "currently being litigated, both here and in state court. Plaintiffs claim, however, that they have an equitable interest sufficient to give them standing to pursue their direct claims. Defendants, on the other hand, citing Blue Chip Stamps and Birnbaum v. Newport Steel Corp, 193 F.2d 461 (2d Cir.1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), argue that the plaintiffs were neither purchasers nor sellers of securities because their interest in Sweetwater stock at all times has been too contingent. These arguments can be resolved only by analyzing the “purchaser or seller” requirement as it has been explained in Blue Chip Stamps and Birnbaum. In Birnbaum, the president and chairman of the board of directors of Newport Steel Corp. rejected a proposed merger with Follansbee Steel Corp., a transaction that would have been advantageous to Newport’s stockholders. Instead, he arranged to sell his controlling block of shares to Follansbee at twice the market price. The Second Circuit, in an opinion by Judge Augustus N. Hand, concluded that the 1934 Act “was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs.” Birnbaum, 193 F.2d at 464. The court therefore held that Rule 10b-5 “extended protection only to the defrauded purchaser or seller,” Id., and affirmed the trial court’s dismissal of the action for fail ure to state a claim upon which relief could be granted. In Blue Chip Stamps, the plaintiff was offered stock in Blue Chip Corp. under an antitrust reorganization plan mandated by the federal government. Under the plan, a select group was first offered the stock. The stock that was not purchased by this group was then sold through a public offering. Plaintiff in the case was a member of the select group but failed to purchase any Blue Chip stock, allegedly because the prospectus prepared by Blue Chip was “materially misleading in its overly pessimistic appraisal of Blue Chip’s status and future prospects.” 421 U.S. at 726, 95 S.Ct. at 1921. The complaint asserted that" }, { "docid": "10977543", "title": "", "text": "To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 C.F.R. § 240.10b-5. At the threshold, defendants maintain that plaintiffs do not fall within the ambit of 10b-5 protection because the transaction complained of was not a “purchase or sale of any security.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). A careful reading of the statute and of Blue Chip does not support this view. Section 3(a)(10) of the ’34 Act, 15 U.S.C. § 78c(a)(10), includes in the definition of a “security” “any . . debenture.” Subsection (13) of the same section states: “The terms ‘buy’ and ‘purchase’ each include any contract to buy, purchase, or otherwise acquire.” Subsection (14) defines the terms “sale” and “sell” to “include any contract to sell or otherwise dispose of.” The Blue Chip Court specifically acknowledged that holders of contractual rights to purchase have standing to sue, in contradistinction to the Blue Chip plaintiffs who were merely nonpurchasing offerees. “Unlike respondent, which had no contractual right or duty to purchase Blue Chip’s securities, the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as ‘purchasers’ or ‘sellers’ of securities for purposes of Rule 10b-5, not because of a judicial conclusion that they were similarly situated to ‘purchasers’ or ‘sellers,’ but because the definitional provisions of the 1934 Act themselves grant such a status.” Blue Chip, supra, 421 U.S. at 751, 95 S.Ct. at 1932 (emphasis added). In the" }, { "docid": "15615566", "title": "", "text": "withheld information including providing false addresses to evade a California Corporations Commission investigation.). With respect to Rule 10b-5’s prohibition of manipulative devices, plaintiffs can state a claim for manipulation only by alleging that defendants artifically affected market activity in order to mislead investors. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 476-77, 97 S.Ct. 1292, 1302-03, 51 L.Ed.2d 480 (1977); see Vaughn, 628 F.2d at 1220. Plaintiffs have not alleged that defendants misled investors by artificially depressing the price of Amer-co stock. We need not reach these issues, however, because we find that the alleged violations were not sufficiently related to plaintiffs’ sale of stock to give plaintiffs standing to sue. Under Rule 10b-5, only a purchaser or seller of securities may bring a suit for damages. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.) cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). The purchaser-seller rule excludes both “shareholders . .. who allege that they decided not to sell their shares because of ... a failure to disclose unfavorable material [and] .. . shareholders ... who suffered loss in the value of their investment due to corporate or insider activities . . . which violate Rule 10b-5.” Blue Chip, 421 U.S. at 737-38, 95 S.Ct. at 1926. These plaintiffs are in the category of “shareholders who suffered loss in the value of their investment.” It is true that several of the plaintiffs sold their stock before bringing this suit. By that time, however, plaintiffs were well aware of defendants’ plan and the consequences of defendants’ actions. Indeed, the basis of plaintiffs’ grievance is that by the time they sold their stock, the informal market had been destroyed and stock prices had fallen. Plaintiffs were clearly not misled at the time the sales took place. The sales were not, therefore, “in connection with” the allegedly deceptive or manipulative practices. Plaintiffs cannot bring themselves within the statutory requirement by selling their stock at a time when they were" }, { "docid": "23337111", "title": "", "text": "Rule 10b-5 claim was frivolous because (1) DeBartolo lacked standing to assert it and (2) the elements of the 'claim were absent in any event. We consider first the issue of standing. c. DeBartolo’s Standing The question of DeBartolo’s standing to assert an insider trading claim arises because DeBartolo concededly had no transactions with the defendants. On the contrary, the basis for DeBartolo’s claim is that the defendants failed to make necessary disclosures when trading with other RPT shareholders. The harm to DeBarto-lo flowed, if at all, from the collective impact of those transactions upon the chances of success of DeBartolo’s tender offer. At first blush, that DeBartolo does not claim that it bought or sold secu-rifles as a result of the defendants’ alleged fraud seems fatal to DeBartolo’s standing. As the district court noted, see id., the general rule is that Rule 10b-5 protects only those who are defrauded in the course of purchasing or selling securities. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 731, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Iroquois Indus., Inc. v. Syracuse China Corp., 417 F.2d 963, 965, 967 (2d Cir.1969), cert. denied, 399 U.S. 909, 90 S.Ct. 2199, 26 L.Ed.2d 561 (1970); Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). The Blue Chip Stamps-Birnbaum rule is not without exceptions, however. Most important for present purposes, we have recognized that the rule does not necessarily extend to actions seeking injunctive relief. In Crane Co. v. American Standard, Inc., 603 F.2d 244 (2d Cir.1979), although we concluded that a disappointed tender offeror could not assert a claim for damages under Rule 10b-5 because it was not itself a defrauded investor, we nonetheless found that the plaintiff had standing to assert a claim for injunctive relief. See id. at 250-51 & n. 15, 254 & n. 23. The plaintiff in Crane had argued that it had been injured by its competitor’s market manipulations, which, by raising the market value of the target’s stock, tended to defeat the" }, { "docid": "5971029", "title": "", "text": "scheme or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. [Emphasis added.] In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356, the Court of Appeals for the Second Circuit held that the plaintiff class for purposes of a private damage action under Section 10(b) of the Exchange Act and Rule 10b-5 was limited to actual purchasers and sellers of securities. In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court affirmed the principle of Birnbaum : Three principal classes of potential plaintiffs are presently barred by the Birnbaum rule. First are potential purchasers of shares either in a new offering or on the Nation’s post-distribution trading markets, who allege that they decided not to purchase because of an unduly gloomy representation or the omission of favorable material which made the issuer appear to be a less favorable investment vehicle than it actually was. Second are actual shareholders in the issuer who allege that they decided not to sell their shares because of an unduly rosy representation or a failure to disclose unfavorable material. Third are shareholders, creditors, and perhaps others related to an issuer who suffered a loss in the value of their investment due to corporate or insider activities in connection with the purchase or sale of securities which violate Rule 10b-5. Blue Chip, 421 U.S. at 737-8, 95 S.Ct. at 1926. [Emphasis added.] Javelin therefore must overcome the logical conclusion that, as a member of the third class of potential plaintiffs discussed in Blue Chip, its cause of action under Rule 10b-5 cannot be" }, { "docid": "17874418", "title": "", "text": "and Marjorie Oolie (“the Oolie plaintiffs”), Berman and Saks purchased VisionTech stock, (Complt., ¶ 78); that defendants utilized the United States mails and interstate wires in connection with those purchases, (Complt., ¶ 79); that defendants knowingly or recklessly made fraudulent statements (Complt., ¶ 80); and that as a direct and proximate result of defendants’ fraudulent conduct, plaintiffs sustained damages. (Complt., H 82). Plaintiffs contend that such conduct by defendants violates Rule 10b-5 and § 10(b). (Complt., 1183). As indicated in the Court’s earlier discussion of Count Five, fraudulent conduct held violative of Rule 10b-5 must be in connection with “the purchase or sale” of a security. Accordingly, potential plaintiffs are limited to actual purchasers and sellers. Blue Chip Stamps, 421 U.S. at 731-49, 95 S.Ct. at 1923-32 (approving Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952)). Shareholders who allege that they decided not to sell their shares because of an unduly rosy representation or a failure to disclose unfavorable material are thus precluded from bringing a private action under Rule 10b-5. Blue Chip Stamps, 421 U.S. at 737-38, 95 S.Ct. at 1926; see also Walck v. American Stock Exchange, Inc., 687 F.2d 778, 790 (3d Cir.1982), cert. denied, 461 U.S. 942, 103 S.Ct. 2118, 77 L.Ed.2d 1300 (1983) (plaintiff’s allegations of mere inducement to retain stock found insufficient for liability under Rule 10b-5). The individual plaintiffs named in Count Six claim “purchaser” standing under Rule 10b-5. (Complt., 11 78). A search through the complaint, however, reveals a major flaw in the allegations: most of the stock purchases alleged as the result of the Rule 10b-5 violation were made prior to any claimed fraudulent misrepresentation. For example, Sam Oolie purchased 11,000 shares of stock on July 11, 1986 and 20,000 shares on October 31, 1986 (Complt., Ml 22, 24); Saks purchased 8,000 shares in June, 1987 (Complt., ¶ 23); Marjorie Oolie purchased 15,000 shares on September 18, 1986 and 5,000 shares on June 26, 1986 (Complt., MI 24, 31); Janis, Caroline and Tara Oolie purchased 3,000 shares" }, { "docid": "955858", "title": "", "text": "F.2d at 1139. III. In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court placed its imprimatur on the rule of Bimbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), which limits standing to sue for a violation of Rule 10b-5 to “purchasers” or “sellers” of securities. In the second branch of their motion, the defendants contend that Banco Nacional, as guarantor of the notes issued by CAS, is not a “purchaser” or “seller” of securities and consequently lacks standing to bring this action. We reject this contention because we agree with Banco Nacional that it is not within the class of those to whom the Supreme Court intended to deny standing in Blue Chip. The plaintiff in Blue Chip had declined to purchase stock offered it under an antitrust consent decree, allegedly because the issuer had presented an overly pessimistic appraisal of its prospects in the hope of discouraging purchases under the decree, so that it could offer the rejected stock to the public at a higher price. In ruling that the plaintiff lacked standing to sue under Rule lob-5, the Court endorsed the Birnbaum rule. The Court noted that three classes of potential plaintiffs are barred by the rule — potential purchasers of shares who choose not to purchase because of “unduly gloomy representations,” actual shareholders who choose not to sell their holdings because of “unduly rosy representations,” and shareholders, creditors, and others related to an issuer who suffer loss due to insider activities — and recognized that most commentators consider the rule “an arbitrary restriction which unreasonably prevents some deserving plaintiffs from recovering damages which have in fact been caused by violations of Rule 10b-5.” 421 U.S. at 738, 95 S.Ct. at 1926. Acknowledging that the rule deprives some “deserving plaintiffs” of any remedy, the Court concluded that this seemingly harsh and arbitrary result was war ranted in the light of the “countervailing advantages of the Birnbaum rule, purely as a matter of" }, { "docid": "5259948", "title": "", "text": "1976, Documation filed with the S.E.C. a registration statement that became effective on June 8, 1976. A total of 474,000 registered shares were sold to the public, consisting of 300,000 new shares by Documation, 100,000 by Halbert, and 34,000 by other piggybacking shareholders. Each share brought a price of $17.00. Immediately after the public offering, the price of Documation stock began to fall. At the time of the public offering, plaintiff Gurley owned 19,900 shares of Documation stock, and plaintiff Davis owned 46,900 shares. During the ensuing ninety days, both contacted stockbrokers in an effort to sell their shares. These attempts were unavailing, however, because defendants, purporting to abide by Rule 144, refused to transfer plaintiffs’ shares until ninety days after the public offering. After ninety days elapsed, plaintiffs began to dispose of their stock. Sold over an extended period of time, their stock brought prices ranging from $7.00 per share to $10.54 per share. II. The district court held that Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), bars plaintiffs’ claim under § 10(b) of the 1934 Act. In Blue Chip, the Supreme Court endorsed the so-called Birnbaum rule under which a person who is neither a purchaser nor a seller of securities may not sue under § 10(b). See Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2 Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Plaintiffs in Blue Chip claimed they were fraudulently induced not to purchase certain securities. The Supreme Court, however, left little doubt that it approved the Birnbaum rule not only as regards non-purchasers, but also as regards those who allege that they were fraudulently induced not to sell securities. 421 U.S. at 737-38, 95 S.Ct. at 1926-27. Courts had previously applied Birnbaum to foreclose such “retention” claims, see, e.g., Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1174-76 (S.D.N.Y. 1974), and they have uniformly adhered to that interpretation in the wake of Blue Chip, see Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1239-41 (D.C.Cir.1978); Williams v. Sinclair, 529 F.2d" }, { "docid": "10981175", "title": "", "text": "Fass, 754 F.2d 57, 62 (2d Cir. 1985). As revealed in the pleadings, while NFL may have been opportunistic, its actions cannot be considered the proximate cause of plaintiffs’ harm, such proximate cause being attributable to the acts of TOSI’s officers. Allegations of a “but for” causal relationship are simply insufficient. Id. at 63. Accordingly, the Court finds that no duty to disclose existed between plaintiffs Batchelder and defendants NFL and Putnam; thus Count I fails to state a claim of common law fraud against these defendants. The motion to dismiss of Count I is accordingly granted. Count II Defendants NFL and Putman have also moved to dismiss Count II alleging violation of § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j, and Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5. For the following reasons, the Court finds and rules that the motion to dismiss this count should be granted. In order for plaintiffs to avail themselves of the protections afforded by the above provisions, they must demonstrate that the alleged fraud occurred in connection with the purchase and sale of a security. The “purchaser-seller” standing requirement imposed by the “in connection with the purchase and sale of any security” clause of both the statute and the rule was established initially in Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir.1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), and reaffirmed over twenty years later by the United States Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 749, 95 S.Ct. 1917, 1931-32, 44 L.Ed.2d 539 (1975). This standing requirement, known as the Birnbaum rule, was articulated by the Second Circuit as follows: Section 10(b) ... was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and that Rule X-10B-5 extended protection only to the defrauded purchaser or seller. Birnbaum, supra, 193 F.2d at 464. In the case sub judice, plaintiffs Batchelder apparently" }, { "docid": "17874417", "title": "", "text": "884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984); Ketchum v. Green, 557 F.2d 1022 (3d Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 431, 54 L.Ed.2d 300 (1977); Reliance Insurance Co. v. Eisner & Lubin, 685 F.Supp. 449 (D.N.J.1988), aff'd 897 F.2d 523 (3d Cir.1990); Note, The Pendulum Swings Farther: The “In Connection With ” Requirement and Pretrial Dismissal of Rule 10b-5 Private Claims for Damages, 56 Tex.L.Rev. 62 (1977); 2 Bromberg & Lowenfels, Securities Fraud & Commodities Fraud § 4.7(574)(3), at 88.34 (1982), it has not yet been construed to encompass the situation currently before the Court, that is an exchange or sale of securities transactionally remote and tangentially related to the primary transaction affected by the misrepresentations. Thus, to allow these plaintiffs, whose purchase of securities is so attenuated from the transaction affected by the claimed misrepresentations, to bring a cause of action under Rule 10b-5 would strain the plain language of the Rule past the breaking point. 2. Count Six The sixth count of plaintiffs’ complaint alleges that Samuel, Janis, Caroline, Tara and Marjorie Oolie (“the Oolie plaintiffs”), Berman and Saks purchased VisionTech stock, (Complt., ¶ 78); that defendants utilized the United States mails and interstate wires in connection with those purchases, (Complt., ¶ 79); that defendants knowingly or recklessly made fraudulent statements (Complt., ¶ 80); and that as a direct and proximate result of defendants’ fraudulent conduct, plaintiffs sustained damages. (Complt., H 82). Plaintiffs contend that such conduct by defendants violates Rule 10b-5 and § 10(b). (Complt., 1183). As indicated in the Court’s earlier discussion of Count Five, fraudulent conduct held violative of Rule 10b-5 must be in connection with “the purchase or sale” of a security. Accordingly, potential plaintiffs are limited to actual purchasers and sellers. Blue Chip Stamps, 421 U.S. at 731-49, 95 S.Ct. at 1923-32 (approving Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952)). Shareholders who allege that they decided not to sell their shares because of an unduly rosy representation or a failure to disclose unfavorable material are" } ]

[ { "docid": "5270143", "title": "", "text": "not show that prior to the Occupation of Japan by the Allied Powers only a subject of Japan was eligible to be a public school teacher, it would seem that plaintiff did not lose her United States citizenship by teaching in the Japanese public schools 1940-1948. However, as the denial of United States citizenship by the State Department was solely on the basis of plaintiff’s voting in April 1946, there is nothing now before the Court on this subject. The plaintiff having overcome the presumption of expatriation arising from the facts stated in Exhibit K — Certificate of Loss of Nationality — a judgment for the plaintiff will be entered for the reasons stated. Findings of Fact and Conclusions of Law and a decree, all in accordance with this opinion, will be signed upon presentation. . Arikawa v. Acheson, D.C.S.D.Cal.1949, 83 F.Supp. 473; Yamamoto v. Acheson, D.C.D.Ariz.1950, 93 F.Supp. 346; Kuniyuki v. Acheson, D.C.W.D. of Wash., N. D., 94 F.Supp. 358, decision by Judge Hall Aug. 24, 1950; Bokui v. Acheson, D.C.S. D. of Cal., Central Div., 94 F.Supp. 439, decision by Judge Cavanah Nov. 22, 1950; Seki v. Acheson, D.C.S.D. of Cal., Central Div., 94 F.Supp. 438, decision by Judge Cavanah Nov. 22, 1950; Yada v. Acheson, D.C.S.D. of Cal., 94 F.Supp. 438, decision by Judge Cavanah Nov. 22, 1950. To same effect, although involving voting in Occupied Germany, see: Brehm v. Aebeson, D.C.S.D.Tex.1950, 90 F. Supp. 662; Woblmuth v. Aebeson, No. 520-50 Civil, D.C. for District of Columbia, summary judgment granted by Judge Holtzoff No. 10, 1950. No opinion for publication. . Schneiderman v. United States, 1943, 320 U.S. 118, at page 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796. . Dos Reis ex rel. Camara v. Nicolls, 1 Cir. 1947, 161 F.2d 860; Ouye v. Aebeson, D.C.D.Hawaii 1950, 91 F.Supp. 129. . Acheson v. Tee King Gee, 9 Cir. 1950, 184 F.2d 382." } ]

[ { "docid": "3395868", "title": "", "text": "and to perform their duties. IV The Participation of the Plaintiff Was Involuntary This conclusion calls for a consideration of the final ground on which the refusal of the passport is defended, namely, that the participation of the plaintiff in the election was voluntary. This is purely a question of fact. The plaintiff was before the court and testified at length about the circumstances under which he was coerced into voting. The Government, as a part of its case, presented certain declarations of his, which, it is insisted, contradict his present contention that his vote was involuntary. I believe the entire stress of the Government lies in the fact that the plaintiff, while saying in these statements made in Japan, that he was obliged to vote, he elsewhere states that he was not forced. There is no indication that, in the original Japanese, there is any greater distinction between the words than in their English equivalents. The plaintiff, in the explanation he gave, showed clearly that what he was denying was the use of physical force on him. He was not denying duress as recognized in our law. If physical force were necessary to prove the act to be involuntary, the conclusion would be unavoidable that there was none. But our Court of Appeals in Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, and other courts have held that there may be a type of public coercion which renders an act involuntary, although it does not stem from the use of force. See, Fujizawa v. Acheson, D.C.Calif., 1949, 85 F.Supp. 674. The dividing line between voluntary action and coercion is not always easy to draw. However, the Court of Appeals for the Third Circuit has indicated how it is to be done: “If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the sine qua non of expatriation is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to" }, { "docid": "311208", "title": "", "text": "told her that all members of the family had to vote. She had lived continuously with her stepmother’s father from the time of her arrival in Japan. She testified she did not want to vote in 1947 because she was not familiar with politics but in her mind there was no alternative but to vote. She requested exemption from voting in 1948 because after the 1947 elections she learned for the first time that her voting would prevent her from returning to the United States. Some of the above. testimony was elicited on cross examination. Further evidence brought out on cross examination revealed that there was no actual threat of bodily harm, or loss of job, or loss of food, if she failed to vote, nor had she ever heard of anyone losing a ration card for failure to vote at a Japanese election. On June 7, 1951, plaintiff married John Masaru Takano, an'American citi-zen, whose permanent residence is Honolulu, Hawaii. The marriage took place in Japan and a child was born to the-couple in Honolulu on August 1, 1953,' the mother having returned to Hawaii for the purpose of appearing in this action. She claims Honolulu, Hawaii, as her permanent residence. Documentary evidence introduced by plaintiff depicted the post-war situation in Japan with respect to sponsorship and control of political elections by the American Occupation Forces under the command of General MacArthur. The “climate” during this period has been fully described in Hatsuye Ouye v. Acheson, D.C. Haw., 91 F.Supp. 129; Akio Kuwahara v. Acheson, D.C.S.D.Cal., 96 F.Supp. 38; Hichino Uyeno v. Acheson, D.C.W.D.Wash., 96 F.Supp. 510; Hasumi Nakashima v. Acheson, D.C.S.D. Cal., 98 F.Supp. 11, and Kiyokuro Okimura v. Acheson, D.C.Haw., 111 F.Supp. 303. It is settled in the Ninth. Circuit that the elections held in Japan in 1947 were political elections in a foreign state within the meaning of Section 401 (e) of the Nationality Act of 1940, 8 U. S.C.A. §, 801(e). Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741, rehearing denied, 9 Cir., 190 F.2d 897, certiorari denied, 342 U.S. 942, 72 S.Ct. 554," }, { "docid": "2640853", "title": "", "text": "national of the United States. Appellant defended on the ground that appellee had lost her United States nationality by voting in Japanese elections —a defense based on § 801. A trial was had, an opinion was filed, findings of fact and conclusions of law were stated and a judgment was entered which, in effect, declared appellee to be a national of the United States. From that judgment this appeal is prosecuted. The court below held that the Japanese elections of 1946 and 1947 — the elections in which appellee voted — were not political elections in a foreign state, within the meaning of § 801. In so holding, the court below followed Arikawa v. Acheson and Tsunashima v. Acheson, D.C.S.D.Cal., 83 F.Supp. 473, and Yamamoto v. Acheson, D.C.Ariz., 93 F.Supp. 346. See, also, Furuno v. Acheson, D.C.S.D.Cal., 94 F.Supp. 381; Kai v. Acheson, D.C.S.D. Cal., 94 F.Supp. 383; Seki v. Acheson and Yada v. Acheson, D.C.S.D.Cal., 94 F.Supp. 438; Rokui v. Acheson, D.C.S.D.Cal., 94 F.Supp. 439; Furusho v. Acheson, D.C. Hawaii, 94 F.Supp. 1021. However, we do not agree with that holding. Instead, we agree with the holding in Kuwahara v. Acheson, D.C.S.D.Cal., 96 F.Supp. 38, that the Japanese elections of 1946 and 1947 were political elections in a foreign state, within the meaning of § 801, and with a similar holding in Uyeno v. Acheson, D.C.W.D.Wash., 96 F.Supp. 510. Reasons for holding that the Japanese elections of 1946 and 1947 were political elections in a foreign state, within the meaning of § 801— reasons which we deem valid and sufficient —are stated in the opinions in the Kuwa hara and Uyeno cases and need not be restated here. The court below found that appellee, in voting in the Japanese elections of 1946 and 1947, “did not act freely and voluntarily,” thus, in effect, finding that she voted involuntarily. Appellee was a witness at the trial and was the only witness. Her testimony was, in part, as follows: “Q. Why did you vote in the 1946 and ’47 elections? What were the reasons for your voting and the circumstances surrounding" }, { "docid": "5657156", "title": "", "text": "give up his United States citizenship in favor of Mexican citizenship. In support of this argument, defendant contends that in Mandoli v. Acheson, 1952, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146, the Court held that one who is born in this country cannot elect to give up his citizenship, thus overruling Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. There is no merit in this contention. Perkins v. Elg held that one who is born in the United States, lives abroad during his minority, and has dual citizenship by virtue of the place of his birth and the citizenship of his parents, may elect to remain a citizen of the United States upon reaching majority. Mandoli v. Acheson qualified this rule by holding that one with dual citizenship will not lose his American citizenship by merely failing to elect. But it is still the law that one born in the United States with dual citizenship may, by his acts, give up his American citizenship, if such acts are voluntarily done after reaching majority. 8 U.S.C.A. § 1481; Mandoli v. Acheson, supra, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146; Takehara v. Dulles, 9 Cir., 1953, 205 F.2d 560, 562; Longobardi v. Dulles, 1953, 92 U.S.App.D.C. 263, 204 F.2d 407, 408-409; cf. Kawakita v. United States, 1952, 343 U. S. 717, 722-727, 72 S.Ct. 950, 96 L.Ed. 1249; Hichino Uyeno v. Acheson, D.C. W.D.Wash.1951, 96 F.Supp. 510, 513-514. There was no error of law in the 1943 determination of defendant’s status as that of an alien. Accordingly, defendant’s motion to strike the evidence of the adjudication of his status as an alien in the 1943 proceeding is hereby denied. However, as already observed, the pri- or adjudication is conclusive of defendant’s status as an alien as of June 9, 1943, only. The next question then is whether the defendant’s nationality status continued to be that of an alien after the 1943 adjudication. To deal with this, question of the continuance of that status in the interim to date, the rule of evidence as" }, { "docid": "2640854", "title": "", "text": "we do not agree with that holding. Instead, we agree with the holding in Kuwahara v. Acheson, D.C.S.D.Cal., 96 F.Supp. 38, that the Japanese elections of 1946 and 1947 were political elections in a foreign state, within the meaning of § 801, and with a similar holding in Uyeno v. Acheson, D.C.W.D.Wash., 96 F.Supp. 510. Reasons for holding that the Japanese elections of 1946 and 1947 were political elections in a foreign state, within the meaning of § 801— reasons which we deem valid and sufficient —are stated in the opinions in the Kuwa hara and Uyeno cases and need not be restated here. The court below found that appellee, in voting in the Japanese elections of 1946 and 1947, “did not act freely and voluntarily,” thus, in effect, finding that she voted involuntarily. Appellee was a witness at the trial and was the only witness. Her testimony was, in part, as follows: “Q. Why did you vote in the 1946 and ’47 elections? What were the reasons for your voting and the circumstances surrounding your vote? A. After the war ended, General MacArthur and the occupational forces granted the women in Japan for voting, and to vote I thought it would help the cause of democracy in Japan. It was repeated and emphasized again and again by the occupation forces, and therefore I thought it was my duty to vote. “Q. Were you at any time told by the occupation forces or anyone connected with the army of occupation that, if you voted, you might lose your American citizenship? A. No. “Q. Did you discuss it with anybody? A. No. * * * “Q. As a matter of fact, there was no force used to compel you to vote, was there? Physical force? A. No, there wasn’t any. “Q. Only the force of the spirit? A. Yes. “Q. Was there any physical threat made, if [you] did not vote? A. There wasn’t any. “Q. Was there any threat of bodily harm to [you] or loss of job or loss of food or loss of pay or loss of home?" }, { "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": "311210", "title": "", "text": "96 L.Ed. 701. Nevertheless, the occupation and government of Japan by the Supreme Commander of the Allied Powers was a military possession recognized by principles of the international law of war. 56 Am.Jur., War, § 204. The evidence received on behalf of the defendant consisted of copies of newspaper articles in the “Nippon Times” published in Tokyo, Japan, and the Pacific Edition of “Stars and Stripes” dated April 2, 1947, in which the, American consulate officials in Yokohama warned American citizens of Japanese ancestry residing in Japan that voting in the April elections would cause forfeiture of their American citizenship. No showing was made that-plaintiff had ever read the articles or heard of their contents prior to April 20 and April 30, 1947. Before the penalty of expatriation under Section 401 of the Nationality Act of 1940, 8 U.S.C.A § 801, may be imposed, it must be made to appear to the Court that plaintiff’s voting in the 1947 elections was a voluntary act. Tákehara v. Dulles, 9 Cir., 205 F.2d 560. The right of American citizenship which the Constitution conferred upon plaintiff should not be extinguished except pursuant to a clear statutory mandate. Mandoli v. Acheson, 344 U.S. 133, 73 S. Ct. 135. And there is no reason for imposing a lighter burden on the Government if it seeks to prove expatriation of a native-born citizen than is required in denaturalization cases where the usual requirement of proof is “clear, unequivocal and convincing evidence”. Acheson v. Maenza, D.C.Cir., 202 F.2d 453, 456. In Bauer v. Clark, 7 Cir., 161 F.2d 397, 401, certiorari denied 332 U.S. 839, 68 S.Ct. .210, 92 L.Ed. 411, rehearing denied 332 U.S. 849, 68 S.Ct. 342, 92 L.Ed. 419, a case involving a complaint under Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, it was held: “In one case (denaturalization proceeding) the government seeks to revoke by showing that the certificate was wrongly issued; in the other (expatriation proceeding) it seeks to destroy that which has been legally conferred. Certainly the annihilation of the right is equally disastrous to the" }, { "docid": "5657157", "title": "", "text": "voluntarily done after reaching majority. 8 U.S.C.A. § 1481; Mandoli v. Acheson, supra, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146; Takehara v. Dulles, 9 Cir., 1953, 205 F.2d 560, 562; Longobardi v. Dulles, 1953, 92 U.S.App.D.C. 263, 204 F.2d 407, 408-409; cf. Kawakita v. United States, 1952, 343 U. S. 717, 722-727, 72 S.Ct. 950, 96 L.Ed. 1249; Hichino Uyeno v. Acheson, D.C. W.D.Wash.1951, 96 F.Supp. 510, 513-514. There was no error of law in the 1943 determination of defendant’s status as that of an alien. Accordingly, defendant’s motion to strike the evidence of the adjudication of his status as an alien in the 1943 proceeding is hereby denied. However, as already observed, the pri- or adjudication is conclusive of defendant’s status as an alien as of June 9, 1943, only. The next question then is whether the defendant’s nationality status continued to be that of an alien after the 1943 adjudication. To deal with this, question of the continuance of that status in the interim to date, the rule of evidence as to the continuance of a condition or status, once proved to exist, may be invoked. “Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time. * * *. It will be inferred that a given fact or set of facts, the existence of which at a particular time is once established in evidence, continues to exist so long as such facts usually do exist.” Noell v. United States, 9 Cir., 1950, 183 F.2d 334, 338, certiorari denied 1951, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665; see also 31 C.J.S. Evidence § 124 (1942) and 9 Wigmore, Evidence § 2530 (3d ed. 1940).] The application of this rule of evidence is well illustrated in Mills v. United States, 9 Cir., 1921, 273 F. 625, 627-628. There the defendant had been ordered deported as an alien who had been convicted of an offense involving moral turpitude. Proof of alienage was sought to-be supplied by a" }, { "docid": "15533742", "title": "", "text": "Perkins v. Elg was written, providing that the means therein provided shall be exclusive. See Title 8 U.S.C.A. § 808, set out in footnote 9, supra. Thus, Ka-wakita’s alleged loss of United States 'citizenship could only be claimed by virtue of some free and voluntary act on his part which, by the Congressional Act, would be ground for expatriation. In Savorgnam v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, it was held that a native born American citizen who voluntarily obtained Italian citizenship through naturalization in accordance with Italian law, had expatriated herself under the laws of the United States, but acts which would seemingly expatriate under the Nationality Act of 1940 have been held not to have such effect where the element of duress or lack of free choice existed. In Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, we upheld a judgment cancelling the renunciation of citizenship by American born persons of Japanese descent, made while they were incarcerated pursuant to civilian exclusion orders issued during World War II. See Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. The renunciations not being given as a result of free and intelligent choice, but rather because of mental fear, intimidation and coercion, they were held void and of no effect. See Attorney General of the United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193. Voting in a Japanese election, and service in the Japanese army, acts falling within paragraphs (c) and (e) of Section 401 of the Nationality Act of 1940, have been held not to expatriate where the acts were done under duress. Hatsuye Ouye v. Acheson, D.C.Hawaii, 1950, 91 F.Supp. 129; Etsuko Arikawa v. Acheson, D.C.Cal.1949, 83 F.Supp. 473; Yoshiro Shibata v. Acheson, D.C.Cal.1949, 86 F.Supp. 1; see In re Gogal, D.C.Penn.1947, 75 F.Supp. 268. Meiji Fujizawa, who testified at the appellant’s trial, was a childhood friend of the appellant. Though his case closely parallels Kawakita’s in some instances there are differences. Fujizawa was born in Imperial County, California, of parents who were bom" }, { "docid": "7750754", "title": "", "text": "BYRNE, District Judge. Plaintiff seeks a judgment declaring her to be a national of the United States in a proceeding under Section 903, Title 8, United States Code Annotated. Born in the United States on September 25, 1925, plaintiff went to Japan in February, 1941, where she attended high school. In 1947 she applied to the United States consul in Japan for registration as a national of the United States. Her application was denied on the ground that she had lost her United States nationality by voting in a Japanese election in 1946. Section 401(e) of the Nationality Act of 1940,. 8 U.S.C.A. 801(e) provides: “A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * * * (e) voting in a political election in a foreign state * * * Whether the 1946 Japanese election was a political election in a foreign state is no longer open to question in this circuit. It was decided in the affirmative on June 14, 1951 in the case of Dean Acheson v. Kuniyuki, 9 Cir., 189 F.2d 741. The plaintiff concedes that she voted in the election, but asserts she did not know that she would lose her nationality and did not so intend. Knowledge and intent are immaterial. The overt acts enumerated in Section 401(e) are stated objectively and the effect of the specified acts, when voluntarily done, is not conditioned on the undisclosed intent of the person doing them. Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. That leaves but one question for determination: whether her act was voluntary. Dos Reis ex rel. Camara v. Nicholls, 1 Cir., 161 F.2d 860. A voluntary act is an act proceeding from one’s own choice or full consent unimpelled by another’s influence. To determine whether an act is voluntary, the trier of fact must examine all relevant facts and circumstances which might cause the actor to depart from the exercise of free choice and respond to compulsion from others. In these Japanese voting cases, the conditions, as well" }, { "docid": "4125666", "title": "", "text": "unequivocal renunciation of citizenship before a United States Consul in Canada, Jolley argues that his renunciation was made under duress. The coercion, according to petitioner, was his desire to avoid breaking the Selective Service laws of the United States. Most of the cases concerning duress have involved those sections of the Immigration and Nationality Act which have declared that the loss of United States citizenship shall result from specified conduct, such as voting in a foreign election or serving in a foreign army. Prior to the decision in Afroyim v. Rusk, supra, which held that expatriation could be accomplished only by voluntarily relinquishing citizenship and not simply by engaging in proscribed conduct, the Supreme Court had ruled that the legislatively-defined conduct set forth in the Act could result in expatriation only if the actor engaged in the conduct voluntarily. Since the instant case involves an explicit renunciation, not a renunciation by inference or by legislative command, we face the precise question raised in those earlier cases: whether or not Jolley’s expatriating act was voluntary. In such an inquiry, therefore, those earlier cases remain instructive. In Nishikawa v. Dulles, supra, the Court held that conscription of a dual national into the Japanese Army during World War II did not automatically result in expatriation despite explicit statutory language, see 8 U.S.C.A. § 1481 (a) (3), for Japanese penal sanctions to which the national was subject rendered the service in the foreign army involuntary. See also Takehara v. Dulles, 9 Cir. 1953, 205 F.2d 560; Takano v. Dulles, D. Hawaii 1953, 116 F.Supp. 307 [voting in foreign election motivated by fear of loss of ration cards involuntary and not expatriating under 8 U.S.C.A. § 1481(a) (5)]; Acheson v. Murakami, 9 Cir. 1949, 176 F.2d 953; Inouye v. Clark, S.D.Cal. 1947, 73 F.Supp. 1000, rev’d on other grounds, 9 Cir. 1949, 175 F.2d 740 [decisions to renounce United States citizenship by Japanese-Americans confined at Tule Lake detention center during World War II held not the product of sober choice but rather the result of force and violence, conditions characteristic of detention center.] Petitioner, of" }, { "docid": "4125667", "title": "", "text": "such an inquiry, therefore, those earlier cases remain instructive. In Nishikawa v. Dulles, supra, the Court held that conscription of a dual national into the Japanese Army during World War II did not automatically result in expatriation despite explicit statutory language, see 8 U.S.C.A. § 1481 (a) (3), for Japanese penal sanctions to which the national was subject rendered the service in the foreign army involuntary. See also Takehara v. Dulles, 9 Cir. 1953, 205 F.2d 560; Takano v. Dulles, D. Hawaii 1953, 116 F.Supp. 307 [voting in foreign election motivated by fear of loss of ration cards involuntary and not expatriating under 8 U.S.C.A. § 1481(a) (5)]; Acheson v. Murakami, 9 Cir. 1949, 176 F.2d 953; Inouye v. Clark, S.D.Cal. 1947, 73 F.Supp. 1000, rev’d on other grounds, 9 Cir. 1949, 175 F.2d 740 [decisions to renounce United States citizenship by Japanese-Americans confined at Tule Lake detention center during World War II held not the product of sober choice but rather the result of force and violence, conditions characteristic of detention center.] Petitioner, of course, points out the surface similarity of Nishikawa to the instant case, for it is petitioner’s contention that his expatriating act was also the product of a conscription law with penal sanctions. We disagree with the force of this analogy. Nishikawa was faced with the choice of either subjecting himself to Japanese penal sanctions or relinquishing his United States citizenship. The conflicting laws of the United States and Japan created a Hobson’s choice which rendered either alternative involuntary. The same dilemma did not confront Jolley. While we accept the assertion that Jolley’s abhorrence of the Selective Service laws caused him to apostatize himself, he cannot equate that abhorrence with coercion sufficient to render his renunciation involuntary as a matter of law. Dislike for the law does not in and of itself compose coercion; subjective detestation cannot be metamorphosed into duress. Jolley’s Hobson’s choice, if it be deemed such, was self-generated. The compulsion he felt to renounce his citizenship was of his own design. But opportunity to make a decision based upon personal choice is the" }, { "docid": "5384552", "title": "", "text": "provides, in essence, the alleged coercion and duress which appellant asserts compelled his act of voting and thus rendered it an “involuntary” act. (It is not contended that acts of Japanese and American officials coerced him into voting.) He also testified that from all the “advice” then offered to Japanese people “he thought that he was personally requested to vote.” Appellant insists that he did not intend to give up his American citizenship by voting and that this undisclosed intent should prevail; also that he did not know that one loses his American citizenship by voting. There is nothing in the statute here applicable to suggest that the overt act of voting, (which spells expatriation under the wording of the statute) when voluntary, is conditioned upon the undisclosed intent of the person doing it. See Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; Boissonnas v. Acheson, D.C., 101 F.Supp. 138, 146, 147. But appellant would avoid the force of the applicable federal statute on foreign voting by asserting a mistaken conclusion as to its sanctions or effects. If such a factor has decisive weight the operation of the statute would depend not upon a voluntarily performed act, but upon the extent of the legal knowledge and the subjective intention or motivation of the person involved. That sort of test cannot be used to determine the operation of the (voting) statute here involved. See Savorgnan-and Boissonnas cases, supra, • As to the so-called “compulsion” here considered we face the fact that it reflects an aspect of oriental medievalism whioh lingers in present day Japanese family customs. The views of a majority of this Court apparently make these ancient “customs” regarding “family advice” a part of our domestic law in the teeth of the federal statute, Title 8, U.S.C.A. § 801(e). (And see its successor statute, Public Law 414, 82nd Congress, 2nd Session, Section 349(a) (5), 8 U.S.C.A. § 1481(a) (5), commonly called the McCarran Act containing the same provision about voting in a political election in a foreign country.) In effect the majority holding in this" }, { "docid": "3395854", "title": "", "text": "clearly implies voluntary action.” Dos Reis ex rel. Ca-mara v. Nicolls, 1947, 1 Cir., 161 F.2d 860, 868. “Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application to the removal from this country of a native citizen during minority. In such a case, the voluntary action which is of the essence of the right of expatriation is lacking.” Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320. And see, Attorney General of United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193, 195. We are to determine the meaning and effect of the participation of the plaintiff in the Japanese election of 1947, at which the voters of occupied Japan voted for Members of the House of Representatives, members of prefectural and village assemblies, as well as for local prefectural and village heads, in the light of the provisions of Subdivision (e) of Section 801 of Title 8 U.S.C.A., which enumerates as one of the actions from which a presumption of loss of United States nationality will arise: “(e) Voting in a political elec tion in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory”. Since the termination of hostilities with Japan, many cases of this character have arisen and a rather extensive jurisprudence has developed in the lower courts. The latest published opinion on the subject, — that by Judge McLaughlin in Fujiko Furusho v. Acheson, D. C. Hawaii, 1951, 94 F.Supp. 1021,—contains a complete list of the published opinions. They need not be reviewed here. The aim of the Congress in enacting Section 801, 8 U.S.C.A., was to enumerate certain general means of losing United States nationality. These means range from acts of treason, Section 801(h), and desertion of military forces in time of war, Section 801(g), or departure from the United States in time of war or national emergency for the purpose of evading service in the Armed Forces of the United States, Section 801 (j), to expression of allegiance by participation in elections in the foreign" }, { "docid": "2640852", "title": "", "text": "MATHEWS, Circuit Judge. Appellee, Mariko Kuniyuki, was born in the United States on July 2, 1916, was taken to Japan in 1918, remained in Japan until November, 1940, then returned to the United States, remained in the United States until August, 1941, then returned to Japan, remained in Japan until August, 1950, and then returned to the United States. In 1946 and 1947 she voted in six Japanese elections. Thereafter, prior to May 25, 1950, she applied to a United States consul in Japan for registration as a national of the United States. The application was denied on the ground that, in view of 8 U.S.C.A. § 801, she was not a national of the United States, having lost such nationality by voting in Japanese elections. Thereafter, on May 25, 1950, she instituted an action under 8 U.S.C.A. .§ 903 against appellant, Dean Acheson, Secretary of State, in the District Court for the Western District of Washington— the district in which she claimed her permanent residence — for a judgment declarmg her to be a national of the United States. Appellant defended on the ground that appellee had lost her United States nationality by voting in Japanese elections —a defense based on § 801. A trial was had, an opinion was filed, findings of fact and conclusions of law were stated and a judgment was entered which, in effect, declared appellee to be a national of the United States. From that judgment this appeal is prosecuted. The court below held that the Japanese elections of 1946 and 1947 — the elections in which appellee voted — were not political elections in a foreign state, within the meaning of § 801. In so holding, the court below followed Arikawa v. Acheson and Tsunashima v. Acheson, D.C.S.D.Cal., 83 F.Supp. 473, and Yamamoto v. Acheson, D.C.Ariz., 93 F.Supp. 346. See, also, Furuno v. Acheson, D.C.S.D.Cal., 94 F.Supp. 381; Kai v. Acheson, D.C.S.D. Cal., 94 F.Supp. 383; Seki v. Acheson and Yada v. Acheson, D.C.S.D.Cal., 94 F.Supp. 438; Rokui v. Acheson, D.C.S.D.Cal., 94 F.Supp. 439; Furusho v. Acheson, D.C. Hawaii, 94 F.Supp. 1021. However," }, { "docid": "5384547", "title": "", "text": "court repudiated, but we think the validity of the view taken in them was recognized by us in Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741. , A study of the findings and opinion below indicates unmistakably the view of the judge that the very upbringing of appellant rendered it inevitable that he would obey the orders of his elders in the matter of voting, from which it would seem to follow that the voting was not representative of a voluntary choice on appellant’s part. Compare the facts here with those in Tomoya Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, where Kawakita claimed unavailingly that by choice after majority he had expatriated himself. We think the holding below is out of line with the Kawakita decision, as well as wholly inconsistent with the philosophy of Mandoli v. Acheson, supra. The inconsistency with the latter case becomes all the more glaring upon a study of the opinion of the dissenting justices. The judgment is reversed and the cause is remanded with directions to make a finding on the question whether appellant’s voting was voluntary, such finding to be made in light of what the majority has here held to be the law. . He reached the age of twenty-one on March 13, 1947. . See the excellent statement of Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510. POPE, Circuit Judge (concurring). I agree that the case of Mandoli v. Acheson, 334 U.S. 133, 73 S.Ct. 135, decided after the decision of the trial court, necessitates a reversal. I also agree that by our decision in Acheson v. Marika Kuniyuki, 9 Cir., 189 F.2d 741, we approve the view of the law expressed by Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510. I think, however, that these conclusions lead to the result that there remains a question of fact undecided, namely, whether the appellant’s voting was voluntary. As I read the record this question has not yet been decided in the light of what we have here held to" }, { "docid": "5384548", "title": "", "text": "remanded with directions to make a finding on the question whether appellant’s voting was voluntary, such finding to be made in light of what the majority has here held to be the law. . He reached the age of twenty-one on March 13, 1947. . See the excellent statement of Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510. POPE, Circuit Judge (concurring). I agree that the case of Mandoli v. Acheson, 334 U.S. 133, 73 S.Ct. 135, decided after the decision of the trial court, necessitates a reversal. I also agree that by our decision in Acheson v. Marika Kuniyuki, 9 Cir., 189 F.2d 741, we approve the view of the law expressed by Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510. I think, however, that these conclusions lead to the result that there remains a question of fact undecided, namely, whether the appellant’s voting was voluntary. As I read the record this question has not yet been decided in the light of what we have here held to be the law. I believe that this is a question of fact which is properly for the trial court and not for us. Accordingly, I am of the opinion that the cause should be remanded with directions to the trial court to make appropriate findings upon this matter. BONE, Circuit Judge. I dissent from the views expressed by my associates and for reasons hereafter stated I would affirm the judgment on appeal. Furthermore, I see nothing in the doctrine of the Mandoli case relied on by the majority which requires a reversal. Appellant voted in a Japanese political election held in 1947 after he was 21 years of age (see Miranda v. Clark, 9 Cir., 180 F.2d 257) and from the record and the inferences which might legitimately be drawn from the testimony of appellant I am fully persuaded that the findings of the lower court are not clearly erroneous. Argument is unnecessary to emphasize that there are altogether too many imponderable factors and elements present in the process of judging the credibility of a" }, { "docid": "3395869", "title": "", "text": "force on him. He was not denying duress as recognized in our law. If physical force were necessary to prove the act to be involuntary, the conclusion would be unavoidable that there was none. But our Court of Appeals in Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, and other courts have held that there may be a type of public coercion which renders an act involuntary, although it does not stem from the use of force. See, Fujizawa v. Acheson, D.C.Calif., 1949, 85 F.Supp. 674. The dividing line between voluntary action and coercion is not always easy to draw. However, the Court of Appeals for the Third Circuit has indicated how it is to be done: “If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the sine qua non of expatriation is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to be manifesting an intention of renouncing his country. On the other hand it is just as certain that the forsaking of American citizenship, even in a difficult situation, as a matter of expediency, with attempted excuse of such conduct later when crass material con siderations suggest that course, is not duress.” Doreau v. Marshall, 3 Cir., 1948, 170 F.2d 721, 724. In the present case, the testimony of the plaintiff is that the constant reiteration through newspapers and over the radio, and by friends and advisers of the importance of voting and the need for voting was taken by him as “a command” on the part of General MacArthur and the Occupation Forces to vote, which he could not, with impunity, disobey. Indeed, he testified that, in addition to this, he was led to believe that if he did not vote, he would lose his food ration card. The essential foods on which the Japanese diet is based, — rice, soy, sugar, and the like, — ■ were on the ration list. It is inconceivable" }, { "docid": "311209", "title": "", "text": "Honolulu on August 1, 1953,' the mother having returned to Hawaii for the purpose of appearing in this action. She claims Honolulu, Hawaii, as her permanent residence. Documentary evidence introduced by plaintiff depicted the post-war situation in Japan with respect to sponsorship and control of political elections by the American Occupation Forces under the command of General MacArthur. The “climate” during this period has been fully described in Hatsuye Ouye v. Acheson, D.C. Haw., 91 F.Supp. 129; Akio Kuwahara v. Acheson, D.C.S.D.Cal., 96 F.Supp. 38; Hichino Uyeno v. Acheson, D.C.W.D.Wash., 96 F.Supp. 510; Hasumi Nakashima v. Acheson, D.C.S.D. Cal., 98 F.Supp. 11, and Kiyokuro Okimura v. Acheson, D.C.Haw., 111 F.Supp. 303. It is settled in the Ninth. Circuit that the elections held in Japan in 1947 were political elections in a foreign state within the meaning of Section 401 (e) of the Nationality Act of 1940, 8 U. S.C.A. §, 801(e). Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741, rehearing denied, 9 Cir., 190 F.2d 897, certiorari denied, 342 U.S. 942, 72 S.Ct. 554, 96 L.Ed. 701. Nevertheless, the occupation and government of Japan by the Supreme Commander of the Allied Powers was a military possession recognized by principles of the international law of war. 56 Am.Jur., War, § 204. The evidence received on behalf of the defendant consisted of copies of newspaper articles in the “Nippon Times” published in Tokyo, Japan, and the Pacific Edition of “Stars and Stripes” dated April 2, 1947, in which the, American consulate officials in Yokohama warned American citizens of Japanese ancestry residing in Japan that voting in the April elections would cause forfeiture of their American citizenship. No showing was made that-plaintiff had ever read the articles or heard of their contents prior to April 20 and April 30, 1947. Before the penalty of expatriation under Section 401 of the Nationality Act of 1940, 8 U.S.C.A § 801, may be imposed, it must be made to appear to the Court that plaintiff’s voting in the 1947 elections was a voluntary act. Tákehara v. Dulles, 9 Cir., 205 F.2d 560. The right of" }, { "docid": "311211", "title": "", "text": "American citizenship which the Constitution conferred upon plaintiff should not be extinguished except pursuant to a clear statutory mandate. Mandoli v. Acheson, 344 U.S. 133, 73 S. Ct. 135. And there is no reason for imposing a lighter burden on the Government if it seeks to prove expatriation of a native-born citizen than is required in denaturalization cases where the usual requirement of proof is “clear, unequivocal and convincing evidence”. Acheson v. Maenza, D.C.Cir., 202 F.2d 453, 456. In Bauer v. Clark, 7 Cir., 161 F.2d 397, 401, certiorari denied 332 U.S. 839, 68 S.Ct. .210, 92 L.Ed. 411, rehearing denied 332 U.S. 849, 68 S.Ct. 342, 92 L.Ed. 419, a case involving a complaint under Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, it was held: “In one case (denaturalization proceeding) the government seeks to revoke by showing that the certificate was wrongly issued; in the other (expatriation proceeding) it seeks to destroy that which has been legally conferred. Certainly the annihilation of the right is equally disastrous to the person affected in one case as in the other. We think that the government carries the same heavy burden in both situations.” (Parenthetical matter supplied.) See Lehmann v. Acheson, 3 Cir., 206 F.2d 592, 598; February 1953 Harvard Law Review, 736 et seq. The difficulties of the Court in appraising and weighing the testimony of a witness whose self-interest in the case is paramount are present in this trial. - Extended cross-examination of plaintiff did not tend to cast doubts on her testimony given on direct examination, even though minor inconsistencies were revealed. She appears to be worthy of belief. The Court finds that plaintiff voted in the 1947 elections for the reasons she feared punishment (though not physical punishment) if she did not comply with General MacArthur’s orders; that she might lose her rations at a time when, food and materials were scarce; and she feared that failure to vote might hamper the procedures for her return to the United States. It is the opinion of the Court that plaintiff’s acts of voting in" } ]

[ { "docid": "6273478", "title": "", "text": "But the substance rather than the form of the transaction governs in the case of a transfer tax. Goodyear Co. v. United States, 273 U. S. 100, 103, 47 S. Ct. 263, 71 L. Ed. 558, where the Isham Case is expressly distinguished. So also in the ease of an income tax. In Weiss v. Stearn, 265 U. S. 242, 254, 44 S. Ct. 490, 492 (68 L. Ed. 1001, 33 A. L. R. 520) it is said: “Questions of taxation must be determined by viewing what was actually done, rather than the declared purpose of the participants; and when applying the provisions of the Sixteenth Amendment and income laws enacted thereunder we must regard matters of substance and not mere form.” See, also, Eisner v. Macomber, 252 U. S. 189, 206, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570. We must look, therefore, to the substance of the transaction of May 29th. According to the defendants’ interpretation, the corporation was to sell to Nufer for $100,000 its plant, for which two weeks before he had contracted to pay $200,000, and in addition was to give him the valuable Viscose contract and certain other property, the value of which does not appear, not included in the earlier contract. This would leave the corporation — stripped of the property conveyed — not quite solvent. Nufer was to pay $100,000 for stock which was worthless and under which he never expected to exercise any rights, unless his demand that the corporation be dissolved be so considered. The very fact that the defendants guaranteed that the corporation’s assets were greater than its liabilities by $150,000 shows that this was a fictitious purchase of the stock. If the stock was really sold to Nufer, then he would be entitled on liquidation to this surplus. No one ever intended that he should get back $150,000 of the $200,000 he had paid to the corporation and its stockholders. He allowed the defendants to continue in control of the corporation just as they had before the alleged sale. He demanded no accounting" } ]

[ { "docid": "6020955", "title": "", "text": "specie of a portion of the assets of the Union Pacific, and it is “governed for all present purposes by the same rule applicable to the distribution of a like value of money.” In United States v. Phellis, 267 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180, the New Jersey Dupont Company decided to reorganize in Delaware. Its funded debt and capital stock were in excess of $60,000,000. The new corporation was to have a capital of $240,000,000. The assets and good will of the old wore transferred to the new at $120,000,000; the shareholders of the old received two shares of common stoek of the new company in exchange for one share of the old. The officers of the two corporations were the same. The dividend in stock was' held to he taxable. By this exchange, the court said, “the parties were acting in the exercise of their rights for the very purpose of placing the common stockholders individually in possession of new and substantial property rights in esse, in realization of their former contingent right to participate eventually in the accumulated surplus. * * * Its distribution transferred to the several stockholders new individual property rights, which they severally were entitled to retain and enjoy, or to sell and transfer, with precisely the same substantial benefit to each as if the old company had acquired the stoek by purchase from strangers.” In Rockefeller v. United States, 257 U. S. 176, 42 S. Ct. 68, 66 L. Ed. 186, the Prairie Oil Company of Kansas organized a pipe line company to take over its pipe line property. The new company turned over all its stock to the oil company, and the stock was distributed to the stockholders of the Prairie Company; the Ohio Oil Company did likewise. The plaintiff! brought separate suits to recover the taxes imposed upon ■ the transfer to them of the shares of the pipe line company. In affirming a judgment of the Court of Claims, upholding a tax on the income, the court held that the new stock represented assets of" }, { "docid": "10418601", "title": "", "text": "A. L. R. 1355, cited by the Board, is no authority for the position taken. * * * In substance, assets of the corporation were distributed to its shareholders and the corporation’s surplus was correspondingly reduced. In these circumstances the distribution was held taxable as a dividend. In the case at bar, however, there was a permanent revision of the capital structure pursuant to a plan of recapitalization havihg a genuine business purpose. The transaction was not a tax-dodging subterfuge. There was in fact no “distribution” out of “earnings or profits.” ******* * * * Of course, the fact that there has been no increase in the aggregate wealth of the shareholders does not in itself establish that they have not received a dividend. United States v. Phellis, 1921, 257 U. S. 156, 171, 42 S. Ct. 63, 66 L. Ed. 180. On the other hand, neither does this fact establish that the stockholders have received a dividend. On that issue the fact is colorless. What distinguishes the present transaction from a stock dividend is that here no portion of the surplus was capitalized. Under the present facts this reasoning would be inapplicable. Not only did the issuance of fixed obligations inevitably capitalize and imprison á corresponding amount of earned surplus, by reason of the proportionate increase in liabilities as compared with assets and the consequent reduction of surplus; but a specific and declared purpose of the operation was to incorporate in the bonded indebtedness the company’s investment in machinery and equipment which was recognized to have been paid for out of accumulated earnings. If the principles upon which the Bass case was reversed are followed and the test there designated is applied, the result thus remains the same. Cf. Louis Wellhouse, Jr., supra. The elimination by the process here adopted of an equivalent segment of accumulated earnings which would otherwise have been available for the declaration of subsequent dividends requires that this action itself be characterized as a distribution out of earnings and hence as the equivalent of the declaration of a taxable dividend. On the present record and" }, { "docid": "6035059", "title": "", "text": "all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred. * * * “(2) The term ‘a party to a reorganization’ includes a corporation resulting from- a reorganization, and includes both corporations in the ease of an acquisition by one corporation of at-least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation.” “What is or is not ‘income’ -within the meaning of the amendment [Const. Amend. 16] must be determined in each ease according to truth and substance, without regard to form. Income may be defined as the gain derived from capital, from labor, or from both combined,. including profit gained through sale or conversion of capital.” Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570. “Substance and not form should control in the application of the Sixteenth Amendment and the income tax laws enacted under it.” United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180. Appellant received a distinct individual gain by the declaring of the dividend in question. The fact that he did not receive the cash in hand, but permitted the cash dividend thus declared to be used in the purchase of stock in another and distinct corporation, did not alter the substantial effect of the transaction; nor is it important that he could not presently sell and dispose of his stock in the new company, without at the same time selling his stock in the.bank- Whenever such a disposition shall be made, there will he an increment of gain corresponding to the value of the new corporation stock which was purchased with the dividend declared. This dividend was segregated from the capital assets of the bank, and, when declared, was the property of the stockholder, and not of the hank. Any stockholder might, if so minded, have" }, { "docid": "3211237", "title": "", "text": "gross income).” Article 1572, Treasury Regulations 69, provides: “Art. 1572. Exchanges of property. — In. the following cases no gain or loss is recognized : “(a) If property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stock, bonds, notes, choses in action, certificates of trust or beneficial interest, or other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment. The words 'like kind’ have reference to the nature or character of the property and not its. grade or quality. Therefore, under this paragraph no gain or loss is realized by one other than a dealer from the exchange of real estate for other real estate. * “ * ” It is well settled, and we know of no authorities to the contrary, that, in matters of taxation, the substance rather than the form of the transaction will be regarded. United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180; Helvering v. Security Savings & Commercial Bank (C. C. A.) 72 F.(2d) 874; Schoenheit et al. v. Lucas (C. C. A.) 44 F.(2d) 476; Labrot et al. v. Burnet, 61 App. D. C. 47, 57 F.(2d) 413; Phelps v. Commissioner (C. C. A.) 54 F.(2d) 289. Applying this principle we find that the transactions here involved did not constitute taxable exchanges, but that in setting aside the trusts as originally created, receiving back the common stock, and exchanging therefor the preferred stock in the same company, Emerson was merely reshaping or remolding the trusts as originally created, the better to conform with his ideas. All the transfers involved were, in reality, gifts and Therefore not taxable. Just what motivated Emerson is not material, but it is not reasonable to conclude that, in the transactions necessary to make the change, any of the parties became liable to a tax under the Revenue Acts. In addition to this the properties" }, { "docid": "15818271", "title": "", "text": "effect the dissolution, and that the sale of the property made thereafter was for the benefit of the creditors and stockholders and not for the company. Various decisions of the Texas courts are relied upon to sustain this position, but we do not consider them in point. Under the law of Texas, the existence of a corporation may be extended for three years for the purpose of settling its affairs. Vernon’s Annotated Civil Statutes Texas, art. 1389. Article 547 Tr. Reg. 45, (1920), adopted to cover situations such as here presented, provides in part as follows: “When a corporation is. dissolved, its affairs are usually wound up by a receiver or trustees in dissolution. The corporate existence is continued for the purpose of liquidating the assets and-paying the debts, and such receiver or trustees stand in the stead of the corporation for such purposes. Any sales of property by them are to be treated as if made by the corporation for the purpose of ascertaining the gain or loss.” This is a reasonable regulation, and should be given effect. Universal Battery Co. v. U. S., 281 U. S. 580, 50 S. Ct. 422, 74 L. Ed. 1051. It may be doubted that the contract of sale was merely executory. Except for executing the formal deed, there was nothing to be done. The price, the thing, and the effective time of delivery, December 15, 1919, had been agreed upon. But, if it was executory, it was still the contract of the company to be executed before there could be any liquidation of its affairs. Conceding for the purpose of argument that the legal title to the property vested in the trustees by the dissolution, no part of the title passed to the stockholders thereby. The real owner was still the company until such time as its affairs were liquidated, the debts paid, and the-residue distributed to the stockholders. The profit on the transaction was earned by the corporation, and the assessment of the- taxes based thereon was valid. We concur in the disposition of the case made by the Board of" }, { "docid": "18409140", "title": "", "text": "right amounts to no more than a stock dividend and is not taxable as a gain, under the principle announced in Towne v. Eisner, 245 U. S. 418, 38 S. Ct. 158, 159, 62 L. Ed. 372, L. R. A. 1918D, 254. This view is not tenable. In that case the Supreme Court held that a stoek dividend, representing merely surplus profits transferred to the capital account of the corporation, was not taxable as income. The court said: “A stoek dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders. Its property is not diminished, and their interests are not increased.” In the present ease however the appellants received, as part consideration for the sale of their stock in one corporation, a profitable right to buy stoek in a different corporation. This right certainly added “to the interests of the stockholders.” The present case comes within the rule announced in Peabody v. Eisner, 247 U. S. 347, 38 S. Ct. 546, 62 L. Ed. 1152; United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 189; Rockefeller v. United States, 257 U. S. 176, 42 S. Ct. 68, 66 L. Ed. 186; Cullinan v. Walker, 262 U. S. 134, 43 S. Ct. 495, 67 L. Ed. 906; and Marr v. United States, 268 U. S. 536, 539, 45 S. Ct. 575, 69 L. Ed. 1079. The appellants contend that the subscription right cannot'represent any taxable income until a sale is made of the stoek purchased under its terms. It is argued that, until a sale is made, the value of the stoek thus secured cannot be definitely ascertained, nor determination made of the loss or profit resulting therefrom. We think, however, that the question is one of present value, and the price realized on actual sales made in the usual and customary manner is admissible to fix such value. See Ap^ peals of B. E. Saul et al., 4 B. T. A. 639, involving the same transaction as this, but with other stockholders as parties. The" }, { "docid": "21536773", "title": "", "text": "shares of the National City Bank, that there was no profit in fact, or that the dividend was not subject to taxes based upon a valuation of the stock that included the increment. That the market value at the time of distribution should be the basis for the income tax is evident from the decisions of the Supreme Court in United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180, Rockefeller v. United States, 257 U. S. 176, 42 S. Ct. 68, 66 L. Ed. 186, as well as under article 627 of Regulations 74, supra. It is argued on behalf of the petitioner that the value of the City Bank stock, represented by the increase over its cost, is not taxable as a dividend, but should be applied against and reduce the basis of the stock which the taxpayer held in the United Cork Companies, because of the language of section 115 (d) of the Revenue Act of 1928, 26 USCA § 2115 (d). That subdivision reads as follows: “(d) Other Distributions from Capital. If any distribution (not in partial or complete liquidation) made by a corporation to its shareholders is not out of increase in value of property accrued before March 1, 1913, and is not out of earnings or profits, then the amount of such distribution shall be applied against and reduce the basis of the stock provided in section 113 [section 2113], and if in excess of such basis, such excess shall be taxable in the same manner as a gain from the sale or exchange of property. ^ The foregoing subdivision, however, does not exempt distributions made out of earnings or profits of the United Cork Companies. There is no reason to suppose that the earnings and profits were not sufficient to cover the value of the City Bank stock at the time of distribution, and the burden to prove that they were not was upon the taxpayer. Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; Metcalf’s Estate v. Commissioner, 32 F.(2d)" }, { "docid": "23166435", "title": "", "text": "the same day it also agreed to sell one-half of its capital stock to the Standard Company for the same amount of cash. The whole transaction wa,s the means adopted -to carry out the contract between the West Texas Company and the Standard Company. In substance if was but one single transaction. In Prairie Oil & Gas Co. v. Motter (C. C. A. 10) 66 F.(2d) 309, 311, this court said: “If a taxpayer sought to avoid a tax on the profits of such a sale as this by asking the Commissioner to ignore the actualities, he would shortly and properly be reminded that taxation is an intensely practical matter and that the substance of the thing done, and not the form it took, must govern.” In Tulsa Tribune Co. v. Commissioner (C. C. A. 10) 58 F.(2d) 937, 940, this court said: “As it seems to us, the attempt to break this transaction up into two elements by saying that Jones bought the property and then transferred it to the corporation in exchange for its capital stock is not only unfair, but untrue.” The purpose of section 203, supra, was to relieve corporations from profits taxes in eases where there is only a change in corporate form without an actual realization of any gain from an exchange of properties. It is intended to apply to eases where a corporation in form transfers its property, but in substance it or its stockholders retain the same or practically the same interest after the transfer. See Cortland Specialty Co. v. Commissioner (C. C. A. 2) 60 F.(2d) 937, 940; Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U. S. 462, 53 S. Ct. 257, 77 L. Ed. 428; Id. (C. C. A. 5) 57 F.(2d) 188. Here it was contemplated that in substance the West Texas Company should dispose of its assets and receive therefor a cash consideration, and also stock. What was done amounted to a single transaction for income tax purposes, and when it was fully consummated the West Texas Company had received only a 50% stock interest in" }, { "docid": "3666158", "title": "", "text": "Stearn, 265 U. S. 242, 44 S. Ct. 490, 492, 68 L. Ed. 1001, 33 A. L. R. 520, held that a dividend in stock was non-taxable upon the ground that it constituted an issuance and exchange of certificates representing the same preexisting interest. The court again declared that to constitute gain “separated from the original capital interest,” the stockholder must receive “a thing really different from what he theretofore had.” In Marr v. United States, 268 U. S. 536, 45 S. Ct. 575, 577, 69 L. Ed. 1079, the distribution of stock was held to constitute taxable income. The court grounded its decision upon the fact that after the distribution the stockholders no longer owned “the same proportional interest of the same kind in essentially the same corporation.” It is true that there is a distinction between the instant case and those cited. Here the dividend issued to the preferred stockholders in payment of the accrued preferred dividends was unissued stock of the corporation itself, not stock in any other corporation. However, the right to share in assets upon dissolution, and in the earnings of the corporation upon the declaration of' dividends, was materially altered. Each preferred stockholder, in consideration of relinquishing his rights to the accrued preferred dividends, secured, new voting rights, and additional property rights which might well afford him a different and greater market with an increased money return. In fact the precise situation was presented, described under different circumstances, in United States v. Phellis, supra, that the preferred stockholders received assets of an exchangeable and actual value proceeding from their capital interest in the old company, drawn by them for their individual and separate use and benefit. We think that the mere circumstance that this transformation was effected within one single organization does not alter the applicability of these rules. The Commissioner erred in applying to the transaction one test only of those laid down in Eisner, Collector, v. Macomber, supra, and the other decisions above cited. Applying the other test, namely, that of alteration of proportionate interest, the preferred stockholders received taxable income, and" }, { "docid": "3666156", "title": "", "text": "proportionate interest was pointed out in the case of Gibbons v. Mahon, 136 U. S. 549, 559, 560, 10 S. Ct. 1057, 1059, 34 L. Ed. 525, in which the decision turned upon the fact that the interests of the distributees had not been increased. There stock had been distributed share for share among the stockholders of the company. The court said: “The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest thát the original shares represented before the issue of new ones.” The same distinction was made in Towne v. Eisner, Collector, 245 U. S. 418, 38 S. Ct. 158; 62 L. Ed. 372, L. R. A. 1918D, 254, in which the above quotation was reiterated. In Peabody v. Eisner, Collector, 247 U. S. 347, 38 S. Ct. 546, 62 L. Ed. 1152, which held that a dividend by one corporation of shares owned by it in another corporation was taxable as a distribution of a like value of money, the court points out that the interest of the stockholder in the accumulated earnings and surplus of the company was not the same after the declaration of the dividend as before. United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66, 66 L. Ed. 180, presented the case of a reorganization resulting in the formation of a company not substantially identical with the first. The court, holding that a dividend in stock of the old company paid in stock of the new company was taxable as individual income, stressed the fact that the individual stockholders of the old company “received assets of exchangeable and actual value severed from their capital interest in the old company, proceeding from it as the result of a division of former corporate profits, and drawn by them severally for their individual and separate use and benefit.” The court also stated that the liability of a stockholder to pay an individual income tax must be decided by the effect of the transaction upon the individual. Weiss, Collector, v." }, { "docid": "3666157", "title": "", "text": "the court points out that the interest of the stockholder in the accumulated earnings and surplus of the company was not the same after the declaration of the dividend as before. United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66, 66 L. Ed. 180, presented the case of a reorganization resulting in the formation of a company not substantially identical with the first. The court, holding that a dividend in stock of the old company paid in stock of the new company was taxable as individual income, stressed the fact that the individual stockholders of the old company “received assets of exchangeable and actual value severed from their capital interest in the old company, proceeding from it as the result of a division of former corporate profits, and drawn by them severally for their individual and separate use and benefit.” The court also stated that the liability of a stockholder to pay an individual income tax must be decided by the effect of the transaction upon the individual. Weiss, Collector, v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 492, 68 L. Ed. 1001, 33 A. L. R. 520, held that a dividend in stock was non-taxable upon the ground that it constituted an issuance and exchange of certificates representing the same preexisting interest. The court again declared that to constitute gain “separated from the original capital interest,” the stockholder must receive “a thing really different from what he theretofore had.” In Marr v. United States, 268 U. S. 536, 45 S. Ct. 575, 577, 69 L. Ed. 1079, the distribution of stock was held to constitute taxable income. The court grounded its decision upon the fact that after the distribution the stockholders no longer owned “the same proportional interest of the same kind in essentially the same corporation.” It is true that there is a distinction between the instant case and those cited. Here the dividend issued to the preferred stockholders in payment of the accrued preferred dividends was unissued stock of the corporation itself, not stock in any other corporation. However, the right" }, { "docid": "10418600", "title": "", "text": "made by a corporation to its shareholders, whether'in money or in other property, out 0† its earnings or profits. * * * ******* Whether profits are to be capitalized is not a mere matter of bookkeeping; there are important business differences according as one course or the other is pursued. If profits are capitalized by means of a stock dividend such profits are no longer available for the declaration of a dividend at the discretion of the directors but become part of the permanent capital of the corporation, thereby tending to enhance the corporation’s credit. If profits are not capitalized they may be distributed as dividends some time in the future; and it would be a con tradiction in terms to say there has been in any sense a “distribution” out of “earnings or profits” when such earnings have been expressly held intact in the surplus account for possible future distribution. * * * * * * * Gregory v. Helvering, 1935, 293 U. S. 465, 55 S. Ct. 266, 79 L. Ed. 596, 97 A. L. R. 1355, cited by the Board, is no authority for the position taken. * * * In substance, assets of the corporation were distributed to its shareholders and the corporation’s surplus was correspondingly reduced. In these circumstances the distribution was held taxable as a dividend. In the case at bar, however, there was a permanent revision of the capital structure pursuant to a plan of recapitalization havihg a genuine business purpose. The transaction was not a tax-dodging subterfuge. There was in fact no “distribution” out of “earnings or profits.” ******* * * * Of course, the fact that there has been no increase in the aggregate wealth of the shareholders does not in itself establish that they have not received a dividend. United States v. Phellis, 1921, 257 U. S. 156, 171, 42 S. Ct. 63, 66 L. Ed. 180. On the other hand, neither does this fact establish that the stockholders have received a dividend. On that issue the fact is colorless. What distinguishes the present transaction from a stock dividend is" }, { "docid": "7752731", "title": "", "text": "upon the stock of its stockholders, paid to them by a going corporation without reducing their stockholdings, leaving them in a position to enjoy future returns upon the same stock.” It is apparent that the court based its definition of the term “dividend” upon Lynch v. Hornby, 247 U. S. 339, 38 S. Ct. 543, 62 L. Ed. 1149. And in this connection reference may also be made to Lynch v. Turrish, 247 U. S. 221, 38 S. Ct. 537, 62 L. Ed. 1087, which is a companion case to Lynch v. Hornby. Article 1548 of regulation 45 of the Treasury Department, supra, is also evidently based upon the holdings of these two cases. In Lynch v. Hornby, supra, the court did draw a distinction between a distribution received as a single and final dividend in liquidation of the entire assets and business of a company, and one where the payments of dividends were'made by a going concern. Both of these cases relate to the Act of October 3, 1913 (38 Stat. 114), which contains no definition of the term “dividend,” and as pointed out in the note in Holmes, Federal Taxes (1923 Ed.) and also (1925 Ed.) pages 625 and 830, respectively, the question in both cases was whether earnings and profits accumulated prior to March 1, 1913, should be considered as dividends. There' was no discussion at all of earnings or profits accumulated subsequent to March 1, 1913; no determination as to whether they should be considered as dividends. These eases are not authority for the proposition that a distribution, in the liquidation of a corporation, of assets accumulated subsequent to February 28, 1913, cannot be considered as a dividend under the Revenue Act of 1918. Congress had the right to provide what the term “dividend” as used in the act should cover, and make it different from the usual understanding of the term, and that is what Congress did in section 201 (a). If subdivisions (a) and (c) of section 201 can be construed together it should, of course, be done. One should not be permitted to" }, { "docid": "8344961", "title": "", "text": "was provided, provided only that it was real. There were various ways in which the cash might have been provided other than the one actually adopted in the contract. As a matter of fact the contract actually provided that the cash should come from a sale of the assets of the Bank rather than from a sale of the stock. There is another and perhaps more compelling reason for not allowing the local law (with its consequent effect on the form of the contract) to dominate in the application of the income tax law. If the taxpayer’s proportionate interest in the cash sum of $400,-000 in this case had reflected a loss as compared with his cost or March 1, 1913, value for his Bank stock, it would seem clear that he would not be permitted to take deduction for the loss in his income tax return and thus disregard the effect of the contract as a whole resulting in an exchange of stock in the merger. See Howard v. Commissioner (C. C. A. 6) 56 F.(2d) 781, certiorari denied 287 U. S. 619, 53, S. Ct. 19, 77 L. Ed. 537, relating to a situation more closely parallel to the instant case than any other that I have noted. In applying the income tax law to varied and sometimes complex intercorporate stock transactions two principles have heretofore been enunciated, (1) that regard must be had for substance rather than form, Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570; Schoenheit v. Lucas (C. C. A. 4) 44 F.(2d) 476; and (2) that “what was done, rather than the design and purpose of the participants, should be the test,” United States v. Phellis, 257 U. S. 156, 172, 42 S. Ct. 63, 67, 66 L. Ed. 180; or, as the Board has expressed it, income tax liability “must be determined by what was actually done rather than the effect of what was done,” 4 B. T. A. 647. In reaching its conclusion the Board was apparently controlled by the" }, { "docid": "11962329", "title": "", "text": "the act in accord with their contention, nor does it appear that there are any such cases directly in point, we believe that the clarity of the language employed in said section limits its application to cases involving reorganization of corporations wherein the stock of one is exchanged solely for the stock of another. Since admittedly petitioners exchanged the stock of the Seattle corporation for that of the Chicago corporation and $70 in cash, the decision of the Board of Tax Appeals in this respect must be sustained. However, having already construed the contract in question as being entire rather than divisible, and thereby bringing it within the provisions of section 203 (d) (1), this point is not necessarily determinative of the issues herein presented, and need not be pursued in view of our disposition to treat the transaction as an entire one. Moreover, in view of the principle that, in applying income tax laws, the substance, and not the form, of the transaction should control, the exchange and sale of stock which was required under the whole contract herein should be treated as a single, composite transaction for income tax purposes, regardless of the formalities followed. See S. A. MacQueen Co. v. Com’r, 67 F.(2d) 857, 858 (C. C. A. 3); Tulsa Tribune Co. v. Com’r, 58 F.(2d) 937, 940 (C. C. A. 10); Western Maryland Ry. Co. v. Com’r, 33 F.(2d) 695 (C. C. A. 4); United States v. Phellis, 257 U. S. 156, 158, 42 S. Ct. 63, 66 L. Ed. 180; Weiss v. Stearn, 265 U. S. 242, 254, 44 S. Ct. 490, 68 L. Ed. 1001, 33 A. L. R. 520. In dealing with a situation not unlike the one at bar, the court, in the case of West Texas Refining Co. v. Com’r, 68 F.(2d) 77, 80 (C. C. A. 10), quoting from Prairie Oil & Gas Co. v. Motter, 66 F.(2d) 309, 311 (C. C. A. 10), said: “Tf a taxpayer sought to avoid a tax on the profits of such a sale as this by asking the Commissioner to ignore the actualities," }, { "docid": "8344962", "title": "", "text": "56 F.(2d) 781, certiorari denied 287 U. S. 619, 53, S. Ct. 19, 77 L. Ed. 537, relating to a situation more closely parallel to the instant case than any other that I have noted. In applying the income tax law to varied and sometimes complex intercorporate stock transactions two principles have heretofore been enunciated, (1) that regard must be had for substance rather than form, Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570; Schoenheit v. Lucas (C. C. A. 4) 44 F.(2d) 476; and (2) that “what was done, rather than the design and purpose of the participants, should be the test,” United States v. Phellis, 257 U. S. 156, 172, 42 S. Ct. 63, 67, 66 L. Ed. 180; or, as the Board has expressed it, income tax liability “must be determined by what was actually done rather than the effect of what was done,” 4 B. T. A. 647. In reaching its conclusion the Board was apparently controlled by the consideration that the latter principle was dominant in its application to the particular ease, and, so applied, required the treatment of the several steps taken in the corporate transaction to be each regarded as a matter of substance and not of form. But here (as in United States v. Phellis, and in Weiss v. Stearn, 265 U. S. 242, 254, 44 S. Ct. 490, 68 L. Ed. 1001, 33 A. L. R. 520) there is no collision between these two principles if we treat the contract, as we must, as an entire and indivisible contract. In result the Board divided an otherwise indivisible contract into two separate and independent agreements. In Prairie Oil & Gas Co. v. Motter (C. C. A. 10) 66 F.(2d) 309, 311, a somewhat similar effort by the Collector to divide an entire transaction into two separate steps, in order to make a sale constitute a “reorganization” under the 1926 Act (26 USCA § 934 (h) (1) was condemned, the Court, by Circuit Judge McDermott, saying: “To avoid this conclusion the" }, { "docid": "6020954", "title": "", "text": "of dividends received, and as such liable to a tax. A stock dividend of a corporation issuing it is not taxable income. Towne v. Eisner, 245 U. S. 418, 38 S. Ct. 158, 62 L. Ed. 372, L. R. A. 1918D, 254; Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570. This was held to be so because a stock dividend takes nothing from the property of the corporation, and adds nothing to the interest of the shareholder. In Peabody v. Eisner, 247 U. S. 347, 38 S. Ct. 546, 62 L. Ed. 1152, the Union Pacific Railroad Company declared a dividend partly in cash and partly in preferred and common stock of the Baltimore & Ohio Railroad Company. The tax imposed on this dividend was paid under protest. The Supreme Court approved the tax, saying the ease was not ruled by Towne v. Eisner, supra, since the dividend of the Baltimore & Ohio shares was not a stock dividend, hut a distribution in specie of a portion of the assets of the Union Pacific, and it is “governed for all present purposes by the same rule applicable to the distribution of a like value of money.” In United States v. Phellis, 267 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180, the New Jersey Dupont Company decided to reorganize in Delaware. Its funded debt and capital stock were in excess of $60,000,000. The new corporation was to have a capital of $240,000,000. The assets and good will of the old wore transferred to the new at $120,000,000; the shareholders of the old received two shares of common stoek of the new company in exchange for one share of the old. The officers of the two corporations were the same. The dividend in stock was' held to he taxable. By this exchange, the court said, “the parties were acting in the exercise of their rights for the very purpose of placing the common stockholders individually in possession of new and substantial property rights in esse, in realization" }, { "docid": "21524281", "title": "", "text": "before such transfer. For the purposes of this paragraph, a person is, or two or more persons are, ‘in control’ of a corporation when owning at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.” The Board of Tax Appeals, in considering the application of that seetion to this case said: “The' substance of the transaction is that the partnership exchanged the farms for stock of the corporation, and that after the exchange the partnership was in control of the corporation, as the word control is used in the seetion of the statute just quoted. We are of opinion that the transaction is es-. sentially one of the kind in which Congress did not intend for the purposes of taxation to recognize either gain or loss, and that we should be governed by its substance and not its form.” With that reasoning of the Board of- Tax Appeals we agree. In transactions like the one before us, substance and not form determines the applicability of the taxing act. Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 S. Ct. 540, 62 L. Ed. 1142; Gulf Oil Corporation v. Lewellyn, 248 U. S. 71, 39 S. Ct. 35, 63 L. Ed. 133; U. S. v. Phellis, 257 U. S. 168, 42 S. Ct. 63, 66 L. Ed. 180. Appellants neither gained nor lost by this transaction. The fact that they incorporated themselves into a chartered company in no way enhanced their right to deduct losses from their taxable ineome. Tsivoglou v. U. S. (C. C. A.) 31 F.(2d) 706. - Before their conveyance to the company they owned together a farm worth approximately $250,000. After their conveyance their certificates of stock in the corporation were for all practical purposes their muniments of title to the same property. If considered as a sale, it was, in effect, a sale to themselves for about half of the cost or value of the property, and we are of opinion that such a sale" }, { "docid": "11962330", "title": "", "text": "under the whole contract herein should be treated as a single, composite transaction for income tax purposes, regardless of the formalities followed. See S. A. MacQueen Co. v. Com’r, 67 F.(2d) 857, 858 (C. C. A. 3); Tulsa Tribune Co. v. Com’r, 58 F.(2d) 937, 940 (C. C. A. 10); Western Maryland Ry. Co. v. Com’r, 33 F.(2d) 695 (C. C. A. 4); United States v. Phellis, 257 U. S. 156, 158, 42 S. Ct. 63, 66 L. Ed. 180; Weiss v. Stearn, 265 U. S. 242, 254, 44 S. Ct. 490, 68 L. Ed. 1001, 33 A. L. R. 520. In dealing with a situation not unlike the one at bar, the court, in the case of West Texas Refining Co. v. Com’r, 68 F.(2d) 77, 80 (C. C. A. 10), quoting from Prairie Oil & Gas Co. v. Motter, 66 F.(2d) 309, 311 (C. C. A. 10), said: “Tf a taxpayer sought to avoid a tax on the profits of such a sale as this by asking the Commissioner to ignore the actualities, he would shortly and properly be reminded that taxation is an intensely practical matter and that the substance of the thing done, and not the form it took, must govern.” As we have already stated, as we see it what petitioners actually did was, in effect, to exchange 2,913 shares of stock in the Seattle corporation for 2,121 shares, net, of the Chicago corporation, and $50,070 in cash. Regardless of the interpretation or construction which petitioners seek to place upon their contract, in cases such as this matters of form should be disregarded for those of substance. Having determined that section 203 (d) (1) of the Revenue Act of 1926 is controlling in the situation at bar, it now becomes necessary to examine its provisions in order to ascertain to what extent the property herein involved is taxable. The section provides that, in an exchange of property for other property or money, the gain, if any, to the recipient shall be recognized in an amount not exceeding the sum of such money and the fair" }, { "docid": "23166436", "title": "", "text": "its capital stock is not only unfair, but untrue.” The purpose of section 203, supra, was to relieve corporations from profits taxes in eases where there is only a change in corporate form without an actual realization of any gain from an exchange of properties. It is intended to apply to eases where a corporation in form transfers its property, but in substance it or its stockholders retain the same or practically the same interest after the transfer. See Cortland Specialty Co. v. Commissioner (C. C. A. 2) 60 F.(2d) 937, 940; Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U. S. 462, 53 S. Ct. 257, 77 L. Ed. 428; Id. (C. C. A. 5) 57 F.(2d) 188. Here it was contemplated that in substance the West Texas Company should dispose of its assets and receive therefor a cash consideration, and also stock. What was done amounted to a single transaction for income tax purposes, and when it was fully consummated the West Texas Company had received only a 50% stock interest in the Col-Tex Company and $184,771.34 in cash. Therefore the transaction was not within the exceptions defined in section 203, supra, and must he considered as a sale. Assuming, but not deciding, that the transaction was a reorganization within the meaning of section 203 (b) (3), then the effect of section 203 (e) (2) must be considered. Where there is a corporate reorganization and a transfer of the assets of the old corporation to the new corporation and an exchange of the interests of the stockholders in the old corporation for like or substantially like interests in the new corporation, there is in substance no closed transaction and no gain. But where a consideration has been paid for such transfer of assets and not distributed to the stockholders of the old corporation and hence not reflected in their individual tax returns, but paid to the old corporation and used by it to pay debts, unless the gain realized to the extent not distributed to the stockholders'of the old corporation is made taxable, a realized gain would" } ]

[ { "docid": "15243750", "title": "", "text": "Dismiss. B. Private Cause of Action Under § 17(a) Defendants contend that plaintiffs cannot bring an action pursuant to § 17(a) of the securities laws, 15 U.S.C. § 77q(a), because there is no private right of action under section 17(a). In support they cite, inter alia, Judge Giles’ decision in Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983) in which an implied private cause of action under section 17(a) was specifically rejected. Plaintiffs counter by maintaining that while neither our Court of Appeals nor the Supreme Court has ruled on the issue, the majority of circuits do imply such a cause of action. Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, Document 20 of the Record at 31. After careful review and consideration, this court joins those courts holding that there is no private cause of action under Section 17(a). Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983). Section 17(a), an anti-fraud provision of the Securities Act of 1933, provides: (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly— (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. 15 U.S.C. § 77q (1976). In Kimmel, Judge Giles, in a well-reasoned opinion, explored the historical background and legislative history of section 17(a). While noting that the numerical weight of authority of case law was in favor of implying a private cause of action, Judge Giles noted that those opinions had done so with very little discussion or analysis. Kimmel, supra at 482-83. In contrast, those courts" } ]

[ { "docid": "689544", "title": "", "text": "and so proceeds to defendants’ motion to dismiss. MOTION TO DISMISS Defendants Merrill Lynch and Hollis Anderson move this court to dismiss plaintiffs’ complaint pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to state a claim upon which relief may be granted. The other defendants join in this motion. Merrill Lynch further moves this court to impose sanctions under Rule 11, Federal Rules of Civil Procedure, against plaintiffs and their attorney for alleging a RICO violation with allegedly no factual basis. Although the other defendants do not join in this motion, they do not oppose it. Because the pendent state claims are stayed pending the outcome of arbitration, the court will not rule upon the motion to dismiss to the extent it deals with those claims. Defendants raise four grounds for dismissing the federal claims; (1) Section 17(a) of the 1933 Act does not create a private right of action, (2) Section 15 of the 1934 Act does not create a private right of action, (3) Plaintiffs fail to state a claim under section 10(b) and Rule 10b-5, (4) Plaintiffs fail to state a claim under RICO. I. A. Whether Section 17(a) Creates a Private Right of Action. Plaintiffs’ fourth claim for. relief is grounded on section 17(a) of the 1933 Act, 15 U.S.C. § 77q(a). Defendants assert that no relief is available to plaintiffs under that section because the “overwhelming” weight of authority and better reasoning holds that no private remedy exists under section 17(a). Section 17(a) does not explicitly provide for a private remedy. Therefore, the issue is whether such a remedy can be implied. The court need not examine the “overwhelming” weight of authority, nor engage in lengthy analysis to find the answer. In Mosher v. Kane, 784 F.2d 1385 (9th Cir. 1986), the Ninth Circuit held that a private right of action does exist under section 17(a). There, the district court dismissed plaintiffs claim for relief under section 17(a) on the ground that plaintiff lacked standing to bring the claim. The circuit reversed, stating that “appellants have, at least facially, pleaded a complaint" }, { "docid": "5901820", "title": "", "text": "10(b)(5)) promulgated thereunder, §§ 2 and 18 of Article III, National Association of Securities Dealers’ Rules of Fair Practice and the RICO statute (18 U.S.C. § 1962(c) and § 1964(c)). In addition, plaintiff alleges pendent state claims for fraud, breach of contract and punitive damages. All claims except the RICO count are included in the original complaint. The RICO allegations, including a claim for treble damages and counsel fees, are asserted in Binkley’s proposed amended complaint. Considering the complaint and proposed amended complaint together, plaintiff alleges that more than one hundred fifty transactions in the thirty-one month period of February, 1979 to September, 1981, which resulted in a reduction of his account from $155,258.00 to $14,591.87, establishes that defendants engaged in excessive trading in his account. He also alleges that he and defendants had an agreement which they violated, that he relied upon defendants who controlled his account, that contrary to their understanding, defendants treated his account as discretionary and that they used it to create excessive profits and commissions for themselves to plaintiff’s detriment. Defendants argue that each count of the complaint and proposed amended complaint should be dismissed. The arguments advanced by defendants will be considered seriatim. First, defendants contend that an implied cause of action under the Securities Act of 1933, § 17(a) does not exist. Nor, they argue, does a private right of action exist pursuant to the National Association of Securities Dealers’ Rules of Fair Practice (NASDRFP). They note that the Third Circuit has not addressed these issues, but that the recent trend in the United States Supreme Court and in the Eastern District of Pennsylvania has been against implying a direct cause of action. In this defendants are correct, and this Court is persuaded by Judge Giles’ carefully reasoned conclusion in Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983) that the Congress did not intend to render superfluous §§ 11 and 12 of the Securities Act of 1933 by permitting investors to seek a remedy in the courts under § 17(a). Moreover, Kimmel appears to signal a new trend in the district courts of the" }, { "docid": "5406404", "title": "", "text": "(1976); Aaron v. SEC, 446 U.S. 680, 695-97, 100 S.Ct. 1945, 1954-56, 64 L.Ed.2d 611 (1980). Further, plaintiffs’ reliance on Herman & MacLean v. Huddleston, supra, to support their contention of an implied private cause of action under § 17(a) is completely unwarranted in light of footnote 2 of that decision, which states: “[w]e have previously reserved decision on whether Section 17(a) [of the 1933 Act] affords a private remedy-(citation omitted), and we do so once again.” Id. 103 S.Ct. at 685. It is apparent that if the Cort three pronged analysis is employed, no private right of action can be implied under § 17(a). Moreover, the courts which have applied the test have uniformly held that no private cause of action exists under § 17(a). Landry v. All American Assurance Co., 688 F.2d 381 (5th Cir.1982); Sweeney v. Keystone Provident Life Insurance Co., 578 F.Supp. 31 (D.Mass.1983); Summer v. Land and Leisure, Inc., 571 F.Supp. 380 (S.D.Fla.1983); Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983); Gilman v. Shearson/American Express, Inc., 577 F.Supp. 492 (D.N.H.1983); Basile v. Merrill Lynch, Pierce, Fenner & Smith, 551 F.Supp. 580 (S.D.Ohio 1982); Keys v. Wolfe, 540 F.Supp. 1054 (N.D.Tex.1982); Hill v. Der, 521 F.Supp. 1370 (D.Del.1981); Ingram Industries Inc. v. Nowicki, 502 F.Supp. 1060 (E.D.Ky.1980). I note that two District Courts within the Ninth Circuit have adopted this position notwithstanding the Stephenson decision. Bruns v. Ledbetter, 583 F.Supp. 1050, [Current] Fed.Sec.L.Rptr. (CCH) IT 91,978 at 98,950 (S.D.Cal.1984) and Hudson v. Capital Management International, Inc., 565 F.Supp. 615 (N.D.Cal.1983). CONCLUSION To imply a private right of action under § 17(a) would frustrate the overall statutory scheme of the securities laws. It would allow plaintiffs to circumvent the more rigorous procedural requirements in §§ 11 and 12 of the 1933 Act, which expressly provide for private actions. Moreover, if an implied private right of action existed under § 17(a), plaintiffs would be excused from proving defendant’s scienter as required under § 10(b) of the 1934 Act. Defendants’ motion to dismiss Count II is granted. Additionally, the motion to dismiss portions of Count VI is granted, as well" }, { "docid": "10475668", "title": "", "text": "between the seller and buyer, or some special relationship, such as control over the seller, plaintiff cannot maintain an action under Section 12(2). Collins, 605 F.2d at 113. Plaintiff has not alleged that defendants had any control over the seller other than those activities which a broker traditionally performs. Plaintiff cites a fifth circuit case which held that a broker not passing title to a security can, nevertheless, be a seller for Section 12(2) purposes if the injury to the purchaser flowed directly and proximately from actions of the broker. See Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680 (5th Cir.1971). The fifth circuit has, however, rejected the strict privity requirements which comprise the law of this circuit. I am not free to move from the third circuit’s strict privity requirements towards a standard of “substantial participation.” b. Section 17 The third circuit has not yet addressed the issue, but this court has previously held that a private right of action cannot be implied under Section 17(a). See In re Catanella and E.F. Hutton and Co., 583 F.Supp. 1388, 1419 (E.D.Pa.1984); Kimmel v. Peterson, 565 F.Supp. 476, 483 (E.D.Pa.1983); Mursau Corp. v. Florida Penn Oil & Gas, Inc., 638 F.Supp. 259, 261 (W.D.Pa.1986). As stated in Kimmel, Section 17(a) fails at least two prongs of the four prong test designed to devine Congressional intent under the teaching of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). An implied private right of action under Section 17(a) would be inconsistent with the other sections of the Act and its legislative history, and with other federal securities laws, such as Section 10(b) of the Securities Exchange Act of 1934. In particular, Kimmel noted that a private right of action under Section 17(a) would allow plaintiffs to pursue Section 10(b) claims under Section 17(a) and avoid the scienter requirements of Section 10(b). In addition, use of Section 17(a) would overlap Sections 11 and 12 of the 1933 Act and effectively write them out of the statute. Kimmel, 656 F.Supp. at 487. For these reasons, I hold" }, { "docid": "23230565", "title": "", "text": "to replead within 30 days from the date of filing of this memorandum decision and order. Plaintiff, in the event he files an amended complaint, should plead with particularity the reports of DMI that he relied on that were false and misleading, the particular misstatements or omissions in those documents, and the purchase transactions he effectuated by reason of the misrepresentations. Duban v. DMI Plaintiffs in this action allege violations of §§ 11, 12 and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77k, 771 and 77q(a); §§ 10(b), 18 and 20 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78r and 78t and Rule 10b-5, 17 C.F.R. 240.10b-5; Section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6; and Section 352-c of the General Business Law of the State of New York. Certain of the defendants move, pursuant to Rule 12(b)(6) and 12(b)(1) Fed.R.Civ.P., to dismiss the entire amended complaint or parts of the amended complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. In the alternative, these defendants move, pursuant to Rule 56 Fed.R.Civ.P., for summary judgment. These defendants also move for attorneys’ fees and costs, and they move pursuant to Rule 12(f) Fed.R.Civ.P. to strike the Fourth Cause of Action and Prayer B of the amended complaint for redundancy and immateriality. Defendant William E. Palmer additionally moves to dismiss on the ground that he was not a trustee at the time of the alleged wrongdoing. Anne Meyer moves, pursuant to Rule 24(b)(2) Fed.R.Civ.P., for an order permitting her to intervene as a party plaintiff in this action. This court has jurisdiction of this action pursuant to Section 27 of the' Securities Exchange Act of 1934, 15 U.S.C. § 78aa, Section 22(a) of the Securities Act of 1933, 15 U.S.C. § 77v(a), Section 214 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-14, and pendent jurisdiction. First Cause of Action Plaintiffs’ First Cause of Action alleges violations of § 17(a) of the Securities Act of 1933, and" }, { "docid": "18810972", "title": "", "text": "SPIEGEL, District Judge: This matter came on for consideration of defendant Rex Railway’s motion to dismiss (doc. 7), plaintiffs’ memorandum in opposition (doc. 11), and defendant’s reply memorandum (doc. 13). For reasons to be discussed, we hereby deny defendant’s motion. These actions for fraud were brought pursuant to section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), rule 10b-5, 17 C.F.R. § 240.10b-5, and the common law of the state of Ohio. All but one of the plaintiffs in Dickerhoff also assert a claim under section 12(2) of the Securities Act, 15 U.S.C. § 771(2). Plaintiffs allege fraud in the offer and sale of boxcar management programs devised by defendant Rex Railway and sold through defendant Merrill Lynch, Pierce, Fenner & Smith. By order of the Court (doc. 14), these actions have been consolidated for pretrial purposes only. Defendant Rex Railway moved to dismiss all but the 12(2) claims pursuant to Rule 12(b), Fed.R.Civ.P., on the grounds that there is no implied right of action under section 17(a), that there is no implied right of action under section 10(b) where the federal securities acts expressly provide a remedy, and that even if plaintiffs have any implied rights of action their claims are barred by the statute of limitations. Although we agree that there is no implied private rights of action under section 17(a), we find that there is such a right under section 10(b) and that the pleadings do not conclusively show that the plaintiffs’ claims are barred by the statute of limitations. Accordingly, we deny defendant’s motion. As a preliminary matter we note that with respect to the implied causes of action we need not determine at this stage of the litigation what law governs. Defendant maintains that the contracts between plaintiffs and defendant Rex Railway provide that the agreements are to be governed by New Jersey law. The result, however, is the same whether we apply the law of the Third or the Sixth Circuit as neither of those Circuits has decided" }, { "docid": "4716540", "title": "", "text": "be inferred from circumstantial evidence of his status in the enterprise and his knowledge of the wrongdoing. United States v. Teitler, 802 F.2d 606, 614 (2d Cir.1986). Here, plaintiff’s complaint alleges numerous facts with regard to each defendant from which a reasonable trier of fact may find that each defendant conspired to violate the RICO statute. While plaintiffs may not be able to prove these facts, on a motion to dismiss we must accept that plaintiff will prove these facts. Plaintiffs’ fourth claim alleges that defendants violated Section 17 of the Securities Act of 1933. Defendants argue that there is no private cause of action under Section 17 and hence, plaintiffs Section 17 claim must be dismissed pursuant to Federal Rule 12(b)(6) of Civil Procedure. In Kirshner v. United States, 603 F.2d 234 (2d Cir.1979), the Second Circuit held that a private cause of action exists under Section 17. However, as explained by my esteemed colleague Judge Reena Raggi in Lazzaro v. Manber, 701 F.Supp. 353, 366 (E.D.N.Y.1988), the Kirshner Court relied on an “assumed similarity between the elements of § 10(b) and a § 17(a) cause of action (which) has begun to erode.” While the Second Circuit, in recent years, has declined to take a position as to the existence of a § 17(a) cause of action the district courts in this circuit have held that no private cause of action exists under Section 17. Lazzaro, at 366. In Ackerman v. Clinical Data, Inc., 1985 Fed.Sec.L.Rep. (CCH) 91, 566, 91, 570 (S.D.N.Y.1985), Judge Charles Haight reasoned that to imply a private right of action under 17(a) exists as a kind of companion action to one brought under Section 10(b) would “allow and encourage the total circumnavigation of the new restrictions the court has placed on a Section 10(b) cause of action.” Id. (quoting Kimmel v. Peterson, 565 F.Supp. 476, 485 (E.D.Pa.1983)) and that the “carefully constructed framework of the securities laws” worked against an implied right of action under Section 17(a). This Court is persuaded by the reasoning in Lazzaro and Ackerman and therefore plaintiffs’ claim brought under Section" }, { "docid": "17662405", "title": "", "text": "plaintiff, who entered into the transaction for the purpose of actively operating the business and in fact he operated the business several weeks prior to the actual stock sale. Defendants argue that in those circumstances this court should find as a matter of law that the offering was private. Plaintiff has responded by filing the affidavit of plaintiff’s counsel in which he states that he is aware of two other parties who accepted defendants’ offer to sell Totally Tan, Inc. Plaintiff has also filed an affidavit in which he states that he did not have an opportunity to review the financial records of the company prior to the sale, and that he was aware that Totally Tan, Inc. had been listed with a business broker. Although the affidavit of plaintiff’s counsel is problematic due to a potential conflict and lack of personal knowledge, plaintiff’s affidavit does raise issues of fact with regard to whether a public offering was made. Accordingly, plaintiff should be allowed to engage in discovery on that issue. Defendants’ motion to dismiss based on Section 4(2) is denied at this time. 3. Section 17(a) Implied Right of Action Plaintiffs Third Cause of Action alleges fraud in the sale of a security under section 17(a) of the 1933 Act. 15 U.S.C. § 77q. Since the statutory language of § 17(a) is similar in many respects to § 10(b) and Rule 10b-5 of the 1934 Act, and given the judicially recognized private cause of action under 10(b) and Rule 10b-5, some courts have held that a private cause of action exists under § 17(a). See Stephenson v. Calpine & Conifers II, Ltd., 652 F.2d 808 (9th Cir.1981). The United States Supreme Court has withheld ruling on this issue. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 n. 6, 95 S.Ct. 1917, 1924 n. 6, 44 L.Ed.2d 539 (1975). Likewise the Tenth Circuit has not directly decided whether an implied right of action under § 17(a) exists. The matter was addressed in State of Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687 (10th" }, { "docid": "11558060", "title": "", "text": "15 U.S.C. § 80b-15, this is a limited right, allowing a plaintiff to seek recission and restitution or an injunction to prevent the continued operation of the contract. 444 U.S. at 19, 100 S.Ct. at 247. If section 215 were applicable to plaintiffs’ claims, it would be of little aid to them in their quest for monetary damages. Furthermore, the allegations in Shulik are directed at Catanella and Hutton. As defendants correctly point out, they are not “investment advisors” under the Act. Section 202(11) defines an investment Adviser as: any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities; but does not include ... (C) any broker or dealer whose performance of such services is solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor; 15 U.S.C. § 80b-2(ll) (1976). There is no allegation that Catanella’s advice was anything other than incidental to his brokerage functions or that he received special compensation for that advice. See generally Kaufman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 464 F.Supp. 528, 537-38 (D.Md.1978). The same is true for Hutton. Thus, plaintiffs have failed to state a cause of action for monetary damages and have failed to sue appropriate defendants under the Investment Advisers Act. The counts under the Act shall be dismissed. 4. Section 17(a) of the Securities Act of 1933 The Gaugler complaint contains a count brought pursuant to section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) (1976). Defendants have not moved to dismiss this claim. However, in light of my decision in Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983), I raise the issue sua sponte. In Kimmel, I held that there is no implied private right of action under section 17(a). See Kimmel, 565 F.Supp. at 482-88. In this, the" }, { "docid": "20342012", "title": "", "text": "Hertz then said the sale of the entire 46,284 shares could proceed. Both letters were sent through the U.S. mails. On August 1, 1981, defendant Klepinger advised plaintiff that First Financial had a buyer for a large block of plaintiff’s stock but at a price one-half of the current market share. Klepinger promised to take care of any problems relating to the sale. Even after plaintiff requested to know the identity of the purchaser(s), Klepinger refused to disclose the information on the claim that it was confidential. Based on Klepinger’s representations and other beliefs, plaintiff sold all 246,292 shares of his ECDC stock at the low price. Plaintiff charges that at least one of the buyers was defendant Hertz, and that defendant First Financial knew Hertz was a buyer. DEFENDANTS KLEPINGER AND FIRST FINANCIAL’S MOTION TO DISMISS Defendants Klepinger and First Financial move to dismiss plaintiff’s third claim for relief under Rule 12 F.R.Civ.P. on two grounds: first, because this claim is grounded on an implied right of action under Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) and there is no implied right of action under § 17(a); and, second, even if there is an implied right of action, only purchasers have standing to sue for § 17(a) violations and plaintiff was not a purchaser. Plaintiff requests that I defer ruling on the question of the existence of a private right of action as I did in Sterling Recreation Organization Co. v. Segal, et a 1., 537 F.Supp. 1024 (1982). In Sterling Recreation I found that there was a split in the circuits on the issue of an implied right of action and there was no controlling precedent. I held that “[t]he existence of a private right of action under section 17(a) of the 1933 Act is therefore only relevant if there is conduct that has damaged a plaintiff that is prohibited by Section 17(a) and not by the regulations promulgated under section 10(b) [of the 1934 Act].” (footnotes omitted). The situation in this case is little different. It is unclear in the instant case" }, { "docid": "18727680", "title": "", "text": "of a prospectus and proxy solicitation. Appellants argue that these misrepresentations violated: (1) Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 promulgated thereunder; (2) Section 14(a) of the Securities and Exchange Act of 1934 and Rule 14a-9 promulgated thereunder; and (3) Section 17(a) of the Securities Act of 1933. The appellants filed an amended complaint on December 11, 1981. Thereafter, motions to dismiss were filed by the defendants, and the district court determined on hearing the motions to dismiss, that appellants had not stated a claim upon which relief could be granted. The Court dismissed the first amended complaint, without leave to amend, pursuant to Fed.R.Civ.P. 12(b)(6), on August 16, 1984. Appellants timely appeal this dismissal. II. DISCUSSION Appellants raise several issues to be decided on review: 1. Whether the complaint alleges sufficient facts to state a claim for relief under Section 10(b) of the Securities and Exchange Act of 1934 (15 U.S.C. § 78j(b)), and Rule 10b-5 promulgated thereunder; 2. Whether the complaint alleges sufficient facts to state a claim for relief under Section 14(a) of the Securities and Exchange Act of 1934 (15 U.S.C. § 78n), and Rule 14a-9 promulgated thereunder; 3. Whether there exists an implied private right of action under Section 17(a) of the Securities Act of 1933 (15 U.S.C. § 77q(a)), and if so, whether the complaint alleges sufficient facts to state a claim for relief thereunder; 4. Whether a common law action for fraud on the court may be maintained where the only pleaded jurisdictional basis is one of federal question and violation of federal law; 5. Whether the district court abused its discretion in refusing to allow plaintiffs to file amended complaints and in dismissing the action. A. Standard of Review. On a motion to dismiss for failure to state a claim, a complaint is liberally construed in the plaintiffs favor, generally taking as true all material facts alleged in the complaint. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir.1983). Further, a complaint should not be dismissed under this rule “ ‘unless it appears beyond doubt that" }, { "docid": "11558061", "title": "", "text": "who receives no special compensation therefor; 15 U.S.C. § 80b-2(ll) (1976). There is no allegation that Catanella’s advice was anything other than incidental to his brokerage functions or that he received special compensation for that advice. See generally Kaufman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 464 F.Supp. 528, 537-38 (D.Md.1978). The same is true for Hutton. Thus, plaintiffs have failed to state a cause of action for monetary damages and have failed to sue appropriate defendants under the Investment Advisers Act. The counts under the Act shall be dismissed. 4. Section 17(a) of the Securities Act of 1933 The Gaugler complaint contains a count brought pursuant to section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) (1976). Defendants have not moved to dismiss this claim. However, in light of my decision in Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983), I raise the issue sua sponte. In Kimmel, I held that there is no implied private right of action under section 17(a). See Kimmel, 565 F.Supp. at 482-88. In this, the court does not stand alone. See e.g., Alloy v. Miller, No. 83-4780 slip op. at 14 (E.D.Pa. February 8, 1984); Hudson v. Capital Management Intern., Inc., 565 F.Supp. 615, 625-27 (N.D.Cal.1983); Massaro v. Vernitron Corp., 559 F.Supp. 1068, 1078 (D.Mass.1983); Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 551 F.Supp. 580, 585-87 (S.D.Ohio 1982); Keys v. Wolfe, 540 F.Supp. 1054, 1060 (N.D.Tex.1982), aff'd in relevant part, rev’d on other grounds, 709 F.2d 413 (5th Cir.1983); Kaufman v. Magid, 539 F.Supp. 1088, 1097-98 (D.Mass.1982). See also Kimmel, 565 F.Supp. at 482-83 and n. 6. 5. Vicarious Liability Catanella and Hutton seek to dismiss claims asserted against them under the “controlling persons” provisions — section 15 of the Securities Act of 1933, 15 U.S.C. % 11 o (1976) and section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a) (1976). Defendants contend that since plaintiffs have failed to state a cause of action under section 10(b), secondary or vicarious liability cannot attach. However, the assumption upon which this argument is premised is faulty," }, { "docid": "18452960", "title": "", "text": "MEMORANDUM AND ORDER HANNUM, District Judge. Presently before the Court is defendant’s motion for summary judgment asserting the bar of the statute of limitations with respect to plaintiff's federal securities law cause of action. Since there is no diversity of citizenship between the parties, if defendant’s motion is granted, plaintiff’s pendant state law claims must also be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The complaint alleges that during the course of handling plaintiff’s discretionary securities account with defendant, defendant’s registered representative, Robert Kane, embezzled more than $35,000. from the account and subjected the account excessive trading (“churning”) solely for the purpose of generating additional commissions. These actions are alleged to violate Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and SEC rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5, and Section 15(c)(1) of the Securities Exchange Act of 1934, 15 U.S.C. § 78o (c)(1) and SEC rules 15c1-2 and 15c1-7 thereunder, 17 C.F.R. §§ 240.-15c1-2, 15c1-7. Defendant asserts that the claim is barred by the applicable Pennsylvania Statute of Limitations, which it contends is 70 P.S. § l-504(a), the three year but not more than one year from date of discovery statute of limitations contained in the Pennsylvania Securities Act. The action was filed June 21,1974. It is averred in the complaint that the substantive facts of the cause of action occurred between 1967 and June of 1970, and that plaintiff had no knowledge of the fraud prior to November, 1971. (Thereby implying that plaintiff had knowledge of the fraud as of that date). If the Pennsylvania Blue Sky Law’s statute of limitations applies, then the claim is barred. The Court must decide, therefore what statute of limitations is applicable to plaintiff’s claims. Although Congress mandated explicit statutes of limitations for the sections of the federal securities law which in terms provide for private causes of action, the implied rights of action created by the federal courts for violations of other sections of these" }, { "docid": "4716541", "title": "", "text": "similarity between the elements of § 10(b) and a § 17(a) cause of action (which) has begun to erode.” While the Second Circuit, in recent years, has declined to take a position as to the existence of a § 17(a) cause of action the district courts in this circuit have held that no private cause of action exists under Section 17. Lazzaro, at 366. In Ackerman v. Clinical Data, Inc., 1985 Fed.Sec.L.Rep. (CCH) 91, 566, 91, 570 (S.D.N.Y.1985), Judge Charles Haight reasoned that to imply a private right of action under 17(a) exists as a kind of companion action to one brought under Section 10(b) would “allow and encourage the total circumnavigation of the new restrictions the court has placed on a Section 10(b) cause of action.” Id. (quoting Kimmel v. Peterson, 565 F.Supp. 476, 485 (E.D.Pa.1983)) and that the “carefully constructed framework of the securities laws” worked against an implied right of action under Section 17(a). This Court is persuaded by the reasoning in Lazzaro and Ackerman and therefore plaintiffs’ claim brought under Section must be and hereby is dismissed on the ground no private cause of action exists under Section 17(a). In conclusion, this Court denies defendants’ motions to dismiss plaintiffs’ RICO claims brought under Section 1962(c) and Section 1962(d) and grants defendants’ motions to dismiss plaintiffs claim brought under Section 17(a) of the Securities Act of 1934. SO ORDERED. . The complaint also alleges that defendant Black engaged in unlawful conversion and that defendants Black and Revien are liable on certain surety agreements. Defendant Black has not moved to dismiss the complaint and while defendant Revien has moved to dismiss the complaint Revien’s papers do not address the surety issue. Defendants have asserted that if the federal claims are dismissed then this Court has no claims. . Claims (v) through (x) allege that defendants engaged in fraudulent misrepresentations with respect to six transactions: (v) Fraudulent Misrepresentation: Bond Scheme, (vi) Fraudulent Misrepresentation: Parking Garage Scheme, (vii) Fraudulent Misrepresentation: D.K. Investors Scheme, (viii) Fraudulent Misrepresentation: Houston Properties Scheme, (ix) Fraudulent Misrepresentation: Alabama Cattle Scheme, (x) Fraudulent Misrepresentation: Alumni Plumbing" }, { "docid": "10475669", "title": "", "text": "E.F. Hutton and Co., 583 F.Supp. 1388, 1419 (E.D.Pa.1984); Kimmel v. Peterson, 565 F.Supp. 476, 483 (E.D.Pa.1983); Mursau Corp. v. Florida Penn Oil & Gas, Inc., 638 F.Supp. 259, 261 (W.D.Pa.1986). As stated in Kimmel, Section 17(a) fails at least two prongs of the four prong test designed to devine Congressional intent under the teaching of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). An implied private right of action under Section 17(a) would be inconsistent with the other sections of the Act and its legislative history, and with other federal securities laws, such as Section 10(b) of the Securities Exchange Act of 1934. In particular, Kimmel noted that a private right of action under Section 17(a) would allow plaintiffs to pursue Section 10(b) claims under Section 17(a) and avoid the scienter requirements of Section 10(b). In addition, use of Section 17(a) would overlap Sections 11 and 12 of the 1933 Act and effectively write them out of the statute. Kimmel, 656 F.Supp. at 487. For these reasons, I hold that Section 17(a) does not provide for a private right of action. II. COMMODITIES EXCHANGE ACT Plaintiff’s claim under the Commodities Exchange Act was dismissed because it appeared that the complaint did not allege the trading of any commodities, as required under the act. See Complaint, Ex. A. The Commodities Exchange Act covers only transactions involving commodities, such as wheat, cotton, rice, corn, oats, etc. 7 U.S.C. Section 2. However, now plaintiff asserts that the claim should not have been dismissed because the defendants may have been speculating in “stock index futures”, which may have been designated as commodities, rather than “stock index options,” which, in turn, may have been designated securities. 7 U.S.C. Section 2a. Plaintiff alleges that the “puts, calls and straddles Shearson sold Leonard and wrote for his account were contracts of sale for future delivery of broad-based stock indices constituting stock index futures.” Amended Complaint, ¶ 26. Defendants counter that plaintiff has not plead facts sufficient to bring his claim within the statutory requirements of the Commodities Exchange Act. However, plaintiff’s" }, { "docid": "5901821", "title": "", "text": "Defendants argue that each count of the complaint and proposed amended complaint should be dismissed. The arguments advanced by defendants will be considered seriatim. First, defendants contend that an implied cause of action under the Securities Act of 1933, § 17(a) does not exist. Nor, they argue, does a private right of action exist pursuant to the National Association of Securities Dealers’ Rules of Fair Practice (NASDRFP). They note that the Third Circuit has not addressed these issues, but that the recent trend in the United States Supreme Court and in the Eastern District of Pennsylvania has been against implying a direct cause of action. In this defendants are correct, and this Court is persuaded by Judge Giles’ carefully reasoned conclusion in Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983) that the Congress did not intend to render superfluous §§ 11 and 12 of the Securities Act of 1933 by permitting investors to seek a remedy in the courts under § 17(a). Moreover, Kimmel appears to signal a new trend in the district courts of the Third Circuit toward limiting implied private rights of action under § 17(a). See, e.g., Warner Communications v. Murdoch, 581 F.Supp. 1482 (D.Del.1984); In Re Catanella and E.F. Hutton and Co., 583 F.Supp. 1388 (E.D.Pa.1984), and Hill v. Equitable Trust Co., 562 F.Supp. 1324 (D.Del. 1983). Similarly, although the Third Circuit has not addressed either the § 17(a) question or the existence of a private cause of action under the National Association of Securities Dealers’ Rules of Fair Practice, (plaintiff’s fourth count in both the complaint and proposed amended complaint), the trend there likewise seems to be against implying a private right of action. While in Walck v. American Stock Exchange, Inc., 687 F.2d 778 (3d Cir.1982), cert, denied, 461 U.S; 942, 103 S.Ct. 2118, 77 L.Ed.2d 1300 (1983), the court was not construing the NASDRFP, its conclusion that “... the Exchanges and not Congress promulgated the rules; and we perceive no basis for an inference that the Exchanges in their quasi-legislative capacity intended to subject themselves to damages for non-enforcement”, id. at 788, is equally," }, { "docid": "20342013", "title": "", "text": "Act of 1933, 15 U.S.C. § 77q(a) and there is no implied right of action under § 17(a); and, second, even if there is an implied right of action, only purchasers have standing to sue for § 17(a) violations and plaintiff was not a purchaser. Plaintiff requests that I defer ruling on the question of the existence of a private right of action as I did in Sterling Recreation Organization Co. v. Segal, et a 1., 537 F.Supp. 1024 (1982). In Sterling Recreation I found that there was a split in the circuits on the issue of an implied right of action and there was no controlling precedent. I held that “[t]he existence of a private right of action under section 17(a) of the 1933 Act is therefore only relevant if there is conduct that has damaged a plaintiff that is prohibited by Section 17(a) and not by the regulations promulgated under section 10(b) [of the 1934 Act].” (footnotes omitted). The situation in this case is little different. It is unclear in the instant case whether the plaintiff is alleging that any of the defendants’ conduct violated section 17(a) and not rule 10b-5. The four-part test of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975) for determining whether a federal statute has an implied right of action has not been applied here. I make no ruling on the private right of action question until the parties have been allowed sufficient opportunity to conduct discovery. An appropriate motion for partial summary judgment may be filed at some future time. DEFENDANT McKINNEY’S MOTION TO DISMISS Defendant McKinney has filed a motion to dismiss under F.R.Civ.P. 12(b)(6) and 9(b) for failure to state a claim upon which relief can be granted and failure to plead fraud with requisite particularity. This defendant makes a similar argument that defendants First Financial and Klepinger made as to a private cause of action under § 17. My ruling on this aspect of McKinney’s motion to dismiss is the same. Movant also argues that there is no private cause of action" }, { "docid": "791111", "title": "", "text": "denied. Count II — Section 17(a) of the 1933 Act Vemitron’s motion for summary judgment on Count II challenges the legal sufficiency of the plaintiffs’ claim that Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q, provides them with an implied cause of action for damages. This issue has been considered by many other courts and no consensus exists. The First Circuit has not yet had to decide the issue. See Cleary v. Perfectune, Inc., 1 Cir.1983, 700 F.2d 774 at 779. In Kaufman v. Magid, D.Mass.1982, 539 F.Supp. 1088, 1097-98, Judge Tauro explained that most decisions in this circuit have held that no private cause of action for damages exists under § 17(a): Courts are split on whether Section 17(a) provides an implied private right of action for damages. Neither the Supreme Court nor the First Circuit has addressed ■ the issue. District courts in this Circuit, however, have adopted the view that Section 17(a) does not provide a private right of action for damages. See, e.g., Dyer v. Eastern Trust and Banking Company, 336 F.Supp. 890, 903, 910-11 (D.Me.1971); Manchester Bank v. Connecticut Bank and Trust Company, 497 F.Supp. 1304, 1313-14 (D.N.H.1980) (citing Dyer). See also Rindner v. Stockcross, Inc., Fed.Sec.L.Rep. par. 97, 885 at 90, 479, 90,481 (D.Mass.1981) (“[I]t is unlikely that Congress intended such a private cause of action to exist”) (citing Dyer). The court finds no reason to depart from the reasoning that these courts have espoused in declining to imply a private right of action under Section 17(a). We subscribe to the view expressed by our colleague in Kaufman and explained in great detail by Chief Judge Latchum for the United States District Court for Delaware in Hill v. Der, supra, 521 F.Supp. at 1373-1378. Therefore, the defendant’s motion for summary judgment on Count II is granted. Count III — Mass.G.L. c. 110A Count III is the plaintiffs’ claim under Massachusetts General Laws chapter 110A, § 101. In footnote 2 of their memorandum in opposition to the motion for summary judgment and again during the hearing on this motion the plaintiffs" }, { "docid": "3557628", "title": "", "text": "MAGILL, Circuit Judge. This is an appeal from the district court’s order imposing a Rule 11 sanction of $10,000 solely on plaintiffs’ counsel in a securities case. In spite of long-standing Eighth Circuit law, plaintiffs’ counsel seek reversal on the grounds that pleading a “private” right of action under section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), constituted a good faith argument for the reversal of existing law, and that defendants failed to mitigate their attorneys’ fees. We affirm. I. This case involves three pleadings. First, on January 15, 1988, plaintiffs through their counsel filed suit in federal district court alleging that defendants had violated sections 11 and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77k, 77q(a), as a result of the sale and purchase of securities using the mail and interstate commerce. Second, on January 20, 1988, plaintiffs’ counsel amended the complaint asserting the same claims and adding state law claims under the court’s pendent jurisdiction. On February 16, 1988, defendants moved for dismissal and Rule 11 sanctions. Plaintiffs’ counsel responded on April 5, 1988 by asserting a good faith argument for the reversal of existing law regarding section 17(a). Plaintiffs’ counsel stated that pleading a cause of action under section 11 was a good faith mistake. Plaintiffs voluntarily dismissed the section 11 claim. Third, on May 6, 1988, plaintiffs’ counsel filed an amended and substituted complaint alleging (1) section 10(b), 15 U.S.C. § 78j(b), and Rule 10b(5), 17 C.F.R. § 240.10b-5, vio lations; (2) section 17(a), 15 U.S.C. § 77q(a), violations; (3) section 5, 15 U.S.C. § 77e, and section 12, 15 U.S.C. § 111, violations; and (4) pendent state law claims. Defendants moved to dismiss the amended and substituted complaint. After a hearing, the district court dismissed plaintiffs’ section 17(a) claim, based on Eighth Circuit precedent, and plaintiffs’ section 5 and section 12 claims, as barred by the three-year statute of limitations on such actions embodied in 15 U.S.C. § 77m. Defendants then filed a supplemental motion for sanctions in light of the dismissal of plaintiffs’ section 5 and section" }, { "docid": "4985703", "title": "", "text": "required an accompanying statement of facts as well. See Segal, 467 F.2d at 608; Arpet Ltd. v. Homans, 390 F.Supp. 908, 913 (W.D.Pa.1975). The amended complaint does detail the factual allegations upon which the beliefs are grounded and much of the substance of the allegations is within defendants’ knowledge. Moreover, plaintiffs have stated that they are willing to strike the offending language and stand on their allegations. Plaintiff’s Memorandum in Opposition of the Motion to Dismiss at 10-11. In light of that concession, defendants’ objections are moot. Since I conclude that the amended complaint in no way offends Rule 9(b), defendants’ motion to dismiss on this ground shall be denied. B. Section 17(a) of the Securities Act of 1933 Plaintiffs’ complaint contains a count brought under section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q (1976). Defendants argue that there is no private cause of action under that section and, as an unspoken corollary, urge that one should not be implied. Although the numerical weight of authority is in favor of implying a private right of action, neither the Third Circuit nor the Supreme Court has spoken. See Aaron v. SEC, 446 U.S. 680, 689, 100 S.Ct. 1945, 1951, 64 L.Ed.2d 611 (1980) (declining to rule on the issue); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733-34 n. 6, 95 S.Ct. 1917, 1924-25 n. 6, 44 L.Ed.2d 539 (1975) (same). This is a difficult issue, especially in light of the implication of a private right of action under section 10(b) on the one hand, and the Supreme Court’s recent retrenchment from the implication of private remedies on the other. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979) (refusal to imply private remedy under section 206 of the Investment Advisors Act); Touche Ross & Co. v. Redington, 442 U.S. 560, 570-71, 99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979) (refusal to imply private right of action under section 17(a) of the Securities Exchange Act of 1934). See also Walck v. American Stock Exchange," } ]

[ { "docid": "19276447", "title": "", "text": "vague descriptions of what occurred during those hours). Large blocks of time associated with either many tasks or a single task with only generalized descriptions such as “research” or “conference” are not specific enough to permit the Court an adequate basis for review and are subject to reduction. See id.; see also Role Models, 353 F.3d at 971 (reducing fee award where billing records lacked adequate detail or where they included generic entries such as “research,” “writing,” and time spent in conferences or meetings). ii. Justifying Time Beyond What Is Normally Required for a Task It is not enough, however, merely to provide detailed work records. In determining reasonableness, the Court must also scrutinize whether the time expended for any given, described task is appropriate. Therefore, appellants seeking fees from the government must justify any time in excess of what would be considered the normal time needed to accomplish a particular task by providing a detailed, specific explanation of why the time exceeded that norm. Ramos, 713 F.2d at 554 (explaining that courts “will evaluate hours spent on each task for reasonableness, and any expenditure of time that appears to go beyond a normal range must be justified by a detailed explanation”); see also Role Models, 353 F.3d at 972 (noting that where a case presents “a straightforward challenge to an agency’s failure to comply with its own regulations,” time records must be sufficiently detailed for the court to evaluate why the case may have required an unusually large investment of time). Even the total number of hours billed on any given workday may become subject to this kind of scrutiny. For example, in Ramos, the Tenth Circuit discussed the effect of billing practices in the industry on determining reasonableness of hours billed on any given workday: In determining which hours reported were reasonably expended and hence are billable to the adversary, the court should examine the total number of hours reported by each lawyer. While some private firm lawyers bill more than 2000 hours per year, studies indicate that 1400 to 1600 billable hours per associate and 1200 to" } ]

[ { "docid": "15634986", "title": "", "text": "terms, to avoid duplication of effort. (See Sept. 16, 2015 Tr., at 3 (“if this case is settled or if the case is tried and the plaintiffs prevail, I am going to be called upon to determine attorneys’ fees in this case ... I am not going to permit the multiplication of counsel in a case.”).) See also Dial Corp., 2015 WL 7180667, at * 2 (reminding Counsel of “them duty to avoid duplication of effort and multiplication of attorneys’ fees.”). This Court’s rationale in appointing only two law firms as class counsel was based on a reasonable and prescient concern that having too many lawyers in one ease, no matter how large the ease, inevitably invites duplication of tasks with a concomitant escalation of fees. The lodestar in this action is inflated, and therefore serves no useful purpose as a “cross-check” to the requested fee. The lodestar of $36,433,985.50 was calculated by multiplying 69,218.95 hours billed with a “com bined blended rate [among the firms] of $526.35 per hour.” (Pl. Mot. for Fees at 18.) But there are many anomalies in the blended rate. First, it is freighted with an inordinate number of partners and overweighted with partner time. For example, five partners at Susman Godfrey billed 42.5% of the firm’s total time; four partners at Kramer Levin logged 37% of their firm’s total time; and four partners at McKool Smith expended 30% of their firm’s total time. (ECF Nos. No. 577-1, 578, 579-1.) Second, the blended rate is enhanced by inflated billing rates. Some mid-level and senior associates billed at rates as high as $855 per hour, and some paralegals billed at a lofty $280 per hour. (See ECF Nos. 578, 579-1, 579-4.) This kind of billing warrants an aggregate, “across-the-board” haircut of at least $2.5 million, resulting in a revised lodestar of $33,900,000. See Capitol Records, Inc. v. MP3tunes, LLC, No. 07-cv-9931 (WHP), 2015 WL 7271565, at *5 (S.D.N.Y. Nov. 12, 2015) (noting that aggregate reductions appropriate where “a precise hour-for-hour reduction would be unwieldy or potentially inaccurate.”); Kahlil v. Original Old Homestead Restaurant, Inc., 657 F.Supp.2d" }, { "docid": "2640602", "title": "", "text": "$120.00 and $130.00 for legal assistants); Dino v. Pennsylvania, No. 1:08-cv-1493, 2013 WL 6504749, at * 3 (M.D.Pa. Dec. 11, 2013) (approving an hourly rate of $150.00 for a legal assistant in an FLSA case); Dee, 2013 WL 685144, at *11 (approving an hourly rate of $75.00 for a legal assistant); Overly v. Global Credit & Collection Corp., Inc., 1:10-cv-2392, 2011 WL 2651807, at *5 (M.D.Pa. July 6, 2011) (noting that typical rates for legal assistants in the Middle District of Pennsylvania are between $70.00 and $120.00 an hour); see also Doc. 185-2, Ex. E (Attorney Vito declaration stating that his legal assistant bills an hourly rate of $100.00). Therefore, I find that Plaintiffs’ requested hourly rate of $100.00 for their legal assistant is reasonable. b. Number of Hours Reasonably Expended In addition to determining a reasonable hourly rate, a court must also determine whether the number of hours spent on the litigation was reasonable. Public Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (1995) (citations omitted). A court “should review the time charged, decide whether the hours claimed were reasonably expended for each of the particular purposes described, and then exclude those that are ‘excessive, redundant, or otherwise unnecessary.’ ” Id.; see also Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (a trial court will “exclude from this initial fee calculation hours that were not reasonably expended on the litigation”). Once the opposing party has made a specific objection, the burden is on the prevailing party to justify the size of its request. Interfaith Cmty. Org., 426 F.3d at 711. Here, Defendant makes several objections to the number of hours for which Plaintiffs seek compensation. Therefore, I must conduct a detailed review of Plaintiffs’ requested fees. Having carefully reviewed each of Defendant’s objections and Plaintiffs’ submitted time entries, Plaintiffs’ requested award will be reduced as follows. i. Claim Against the Association Defendant argues that several hours billed by Plaintiffs’ counsel were actually for Plaintiffs’ claim against the Association, not the County. For example, Plaintiffs seek to recover the full" }, { "docid": "1034935", "title": "", "text": "first objection to plaintiffs fee request is that the hours expended by plaintiffs’ attorneys were excessive, dupli-cative, and, in some instances, completely unnecessary. Plaintiffs respond that they have already reduced their fee request by 5% of the hours actually expended to account for any duplication of work, inefficiencies, etc. In assessing whether an attorney’s time was “reasonably expended,” the Court must ask whether the attorney exercised “billing judgment.” As the Supreme Court has explained, [c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc)). Under this principle, excessive, redundant, or unnecessary hours are to be excluded from a fee award, and a district court may apply a reasonable percentage reduction “as a practical means of trimming fat from [the] fee application.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.1998) (quoting New York Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)). In the case at bar, after reviewing the time records of plaintiffs’ counsel, I conclude that, even with the 5% reduction in the hours claimed, the time that counsel spent on this case was excessive. A further reduction is therefore warranted. In their memorandum of law in opposition to plaintiffs’ fee application, defendants point out a number of entries that suggest that plaintiffs’ attorneys spent an inordinate amount of time on certain matters. Plaintiffs take issue with some of defendants’ calculations, but even accepting plaintiffs’ figures, the hours spent on this case are unreasonably high. For example, it appears that plaintiffs’ attorneys spent about 140 hours researching and writing a brief and" }, { "docid": "14278893", "title": "", "text": "an attorney would not properly bill to his or her client are not billed to the adverse party. Id. The court must also ensure that the fee applicant has exercised billing judgment with respect to the number of hours worked and billed. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.2005). “Billing judgment consists of winnowing hours actually expended down to hours reasonably expended.” Id. A fee applicant must make a good faith effort to exclude from the fee request hours that are excessive, redundant, or otherwise unnecessary. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998). Plaintiffs fee application seeks compensation for a total of 1,220.6 hours, which includes 619.1 hours for lead attorney Arthur Benson, 442.7 hours for Jamie Kathryn Lansford, and 158.8 hours for Aften McKinney. The court has reviewed the billing records submitted by plaintiff and readily concludes that plaintiff has met his burden of establishing the reasonableness of the hours expended by submitting meticulous, contemporaneous time records showing all hours for which compensation is sought and reflecting the specific tasks associated with those hours. The court also has reviewed those billing entries in conjunction with the affidavit submitted by Mr. Benson, and the court is satisfied that counsel has exercised billing judgment by making a good faith effort to exclude from the fee request hours that are excessive, redundant, or unnecessary. The school district argues that the court should reduce the total number of hours by 14.8 hours for lead counsel’s time which was devoted to unidentified experts and/or communicating with Dr. Dragan, an expert who plaintiff did not call to testify at trial. The relevant issue in determining an attorney fee award, however, is not whether in hindsight the particular time expenditure was strictly necessary but rather whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures. See Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992); Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir.1990). In this case, both parties retained experts. Simply because those retained experts ultimately did not" }, { "docid": "7399475", "title": "", "text": "see also e.g., M., 2010 WL 2698285, at *4; Benito M. v. Board of Educ. of City of Chicago, Dist. 299, 544 F.Supp.2d 713, 720 (N.D.Ill.2008). Finally, federal district courts have considerable discretion in granting an award of attorney’s fees. See Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir.2010); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1279 (7th Cir.1983). Here, the Board concedes that the $300 per hour rate billed by Plaintiffs attorneys, as well as the $75 per hour rate charged by the paralegals, are reasonable rates for Chicago legal professionals of similar experience. (See R. 24, p. 3.) Based on the affidavits submitted by Plaintiffs’ attorneys setting forth that Pergament has been licensed for 12 years and Mulae has been licensed for over 20 years, as well as the agreed prevailing Chicago rates of $330 an hour for attorneys with 20 or more years of experience, $295-330 an hour for attorneys with 11 to 19 years of experience, and $85-115 for paralegals, the Court agrees that these hourly rates are reasonable. Multiplying the total number of hours set forth in Plaintiffs’ fee petition by these hourly rates, and subtracting the amounts that Plaintiffs themselves deducted in the October 19, 2009 corrected fee petition, results in the lodestar figure of $95,173.02. The Board outlines eight general objections to the hours billed by Plaintiffs counsel in their fee petition, arguing that the lodestar should be reduced based on these objections. Specifically, the Board asserts that Plaintiffs should not be able to recover fees relating to unsuccessful motions, mediation, or duplicate entries, and that certain charges for drafting and researching several documents, preparing witnesses, non-legal research, and travel were excessive and therefore unreasonable. The Board also contends that because the Plaintiffs did not achieve full relief, they should not be entitled to the full fee. Based on these objections, the Board asks that the Court reduce the Plaintiffs fee to $53,577.00. The Court considers each of these arguments in turn. 1. Unsuccessful Motion for Reconsideration The Board first objects to Plaintiffs’ bill of 10.0 hours preparing an" }, { "docid": "11489306", "title": "", "text": "Karl Dix (2.4 x .5 = 1.2); (2) George Pa-paioanou (34.7 x .5 = 17.35); (3) James McLemore (5.7 x .5 = 2.85). However, after careful review of the attorney statements, the court finds that all other hours requested are reasonable and compensable under the EAJA. The United States argues that the fee application should be denied because it “fails to specifically indicate how many hours were spent, on a daily basis, in performing the legal tasks related to the subject litigation. Counsel has merely provided a list of dates, tasks and total hours without indicating the number of hours expended on each daily activity.” Def.s’ Opp. to Pl.’s EAJA Appl., filed Dec. 12, 1994, at 12 n. 6. The EAJA provides that records of an attorney’s time must be submitted with an EAJA fee application. 28 U.S.C. § 2412(d)(1)(B). The United States cites Naporano Iron and Metal Co. v. United States, 825 F.2d 403 (Fed.Cir.1987), wherein the court stated that “[i]n the absence of such an itemized statement, the court is unable to determine whether the hours, fees and expenses, are reasonable for an individual item.” Id. at 404 (citation omitted). The court finds that case distinguishable from the instant one. In Naporano Iron and Metal Co., the EAJA application for attorneys’ fees included one affidavit submitted by the attorney in charge of the plaintiffs case. Therein, the court emphasized that the attorney had merely provided a conclusory assertion that the total fees sought were $117,490 and attendant disbursements of $6,545. He stated, “[b]ecause 7Q percent, more or less, of the time expended in this matter was expended by senior members of the firm, an average hourly rate of $115.00 is a close approximation of actual hourly rates.... ” (emphasis added).... Attached thereto were periodic billings to Naporano Iron and Metal Company generally indicating the total billing for the month and allocable ‘Disbursements’ for the billed period. An example is the bill fi*om petitioners’ attorney dated December 16, 1982, to wit: For Legal Services Rendered through November 80,1982. Id. The court affirmed the trial court’s denial of fees under" }, { "docid": "13416877", "title": "", "text": "expended on a case are insufficient to support an award of attorneys’ fees. Attorneys who anticipate making a fee application must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney The National Association requirement, however, should not be applied retroactively to hours expended prior to the issuance of that opinion. In addition, the recordkeeping requirement should not be imposed in a draconian manner. As this court stated recently in Jordan v. Department of Justice: Total denial of requested fees as a purely prophylactic measure, however, is a stringent sanction, to be reserved for only the most severe of situations, and appropriately invoked only in very limited circumstances. Outright denial may be justified when the party seeking fees declines to proffer any substantiation in the form of affidavits, timesheets or the like, or when the application is grossly or intolerably exaggerated, or manifestly filed in bad faith In most cases, therefore, deficiencies in documentation are cause for reduction rather than outright denial of fees. 2. Hours “Reasonably Expended” Lawyers claiming fees from the government must exercise “billing judgment.” “Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Prevailing counsel must “make a good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary.” Hours are not reasonably expended if an attorney duplicates work done earlier by another attorney, if an attorney takes extra time due to inexperience, or if an attorney performs tasks that are normally performed by paralegals, clerical personnel or other non-attorneys. If an application contains hours unreasonably expended, a court must make appropriate reductions. 3. The Lodestar “The initial task in determining an appropriate fee award ... is to establish the ‘lodestar’: the number of hours reasonably expended multiplied by a reasonable hourly rate.” Applying the principles set out above, we will derive an hourly total and rate for each of the four ASH attorneys in turn. a. Peter Georgiades Peter Georgiades was ASH General Counsel at the time this litigation began in" }, { "docid": "542406", "title": "", "text": "legal assistant, and $45 per hour for Jason Pepe, a law clerk. Defendant argues that these numbers are arbitrary and are not reasonable. While plaintiff does not provide evidence of the prevailing market rates, the Court finds that plaintiffs request is lower than the going market rate. Recently, in Hampton v. Dillard Dep’t Stores, Inc., 1998 WL 724045 (D.Kan. Sept.24, 1998), the Court awarded $55 per hour for a law clerk and $65 per hour for a paralegal. Id. at *2. Plaintiffs requested rates are not only reasonable, they reflect a reduction that is appropriate in light of the restrictions in Section 1997e(d)(3). See Roberson, 29 F.Supp.2d at 353. 2. Number of Hours Defendant challenges the total hours which plaintiff requests as “excessive, redundant, unnecessary and duplicative.” Defendant’s Response To Plaintiffs Motion For Attorneys’ Fees and Expenses (Doc. # 105) at 17. Attorneys normally do not bill all hours expended in litigation to a client, and “an applicant should exercise ‘billing judgment’ with respect to a claim of the number of hours worked.” Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir.1998) (quoting Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir.1996) (further quotations and citations omitted)). To show billing judgment, “ ‘[cjounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary’ ... [and the] district court has a corresponding obligation to exclude hours not ‘reasonably expended’ from the calculation.” Id. Defendant argues that plaintiff generally has not made a good-faith effort to exclude duplicative and excessive time. The Court disagrees. Plaintiff states that he has eliminated all duplicative requests, and a review of plaintiffs requested hours shows that he has in fact made a reasonable effort to exclude duplicative time. See Plaintiffs Memorandum In Support Of His Motion For Attorneys’ Fees and Expenses (Doc. # 97) at 7 n. 3. Plaintiff has also made a good-faith effort to exclude time that is not compensable, such as time spent deposing Steven Dechant, one of the defendants who won at trial. See id." }, { "docid": "9884588", "title": "", "text": "hac vice for the purposes of this case. Mr. Basdekis bills $215 per hour. Defendant claims that plaintiffs attorneys’ fees are both duplicative and excessive. In particular, defendant contends that it should not have to pay for plaintiffs counsel to attend internal meetings, two lawyers attending the same deposition, fees associated with plaintiffs (“meritless”) contention that ERISA did not apply to this action, for hours spent researching and briefing a “simple discovery issue,” and for fees incurred before the filing of this lawsuit. Defendant also objects to the quarter hour intervals by which plaintiffs counsel bills. We do not accept the rates reflected in the Laffey matrix because the rates for Northern Virginia lawyers are generally' lower than those in the District of Columbia. Consequently, we will reduce Mr. Regan’s time to $350 per hour, which we find more consistent with similarly experienced attorneys in this district. Mr. Halperin’s, Mr. Zambri’s and Mr. Basdekis’ rates are reasonable. Although plaintiff seeks fees for four lawyers, our examination of the affidavits submitted by plaintiffs counsel, establishes that Mr. Regan and Mr. Basdekis were the principal attorneys working on this litigation. Mr. Halperin and Mr. Zambri’s involvement appears to be incidental. Accordingly, we will not award plaintiff fees for these attorneys’ time. As for duplicative billing, we award fees for the time of one attorney when an issue does not require the attention of multiple lawyers. We will also not order defendant to compensate plaintiffs counsel for the eleven (11) hours spent working on this matter before the Complaint was filed. In addition, we agree with defendant that plaintiffs counsel should not recover fees associated with unsuccessfully opposing defendant’s motion to dismiss and disputing defendant’s contention that ERISA was applicable. We, therefore, conclude that Mr. Regan should be compensated for 67 hours at $850 per hour and Mr. Basdekis should be compensated for 124.63 hours at $215 per hour. The lodestar figure in this matter is $50,245.45. The lodestar may be adjusted upward or downward upon consideration of the factors identified in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226-28 (4th Cir.1978). We" }, { "docid": "5471160", "title": "", "text": "the attorneys, and other factors. Id. Counsel have expended 1238.75 hours during the litigation, for total billed charges, or a “lodestar”, of $537,308.50, and these figures are supported by detailed time records submitted by counsel. The lodestar represents an aggregate hourly rate of approximately $434. The rates charged at counsels’ firms fall well within the range of reasonableness. For example, the hourly rates charged by Lead Counsel range from $615 (for the named partner) to $350, for associates. See In re Gilat Satellite Networks, No. 02 Civ. 1510, 2007 WL 2743675, at *17, 2007 U.S. Dist. LEXIS 68964, at *54 (S.D.N.Y. Sept. 18, 2007) (finding that hourly rates ranging from $325 for associates to $725 for senior partners were reasonable); Williamsburg Fair Hous. Comm. v. N.Y. City Hous. Auth., No. 76 Civ. 2125, 2005 WL 736146, at *12-13, 2005 U.S. Dist. LEXIS 5200, at *35 (S.D.N.Y. Mar. 31, 2005) (observing that “a recent billing survey made by the National Law Journal shows that senior partners in New York City charge as much as $ 750 per hour and junior partners charge as much as $ 490 per hour”) (citing In Focus: Billing; A Firm-by-Firm Sampling of Billing Rates Nationwide, Nat’l Law Journal, December 6, 2004, at 22). According to counsels’ time records, the majority of the work in this Action (approximately 68%) was performed by personnel charging rates below $500 per hour, which distinguishes this case from both the Mutual Fund Cases and the Internet Cases, where the majority of the work was performed by lawyers who billed their time at more than $500 per hour. Thus, the hourly rates charged by the lawyers who worked on this case are reasonable. Counsel’s requested fee of 25% of the Settlement Fund represents a multiple of approximately 2.33 of the aggregate loadstar. Counsel cite the multipliers that resulted from the awards granted in the Mutual Fund Cases (a multiplier of 1.95), and the Internet Cases (a multiplier of 1.985), in support of their application. Although the multiplier of 2.33 is not per se exorbitant, neither is it particularly modest. As I noted" }, { "docid": "14739920", "title": "", "text": "fact that the District, not plaintiffs, had made that hearing request should have any bearing on plaintiffs’ enti tlement to fees with respect to that meeting. III. Reasonableness of Hours Expended The fee applicant has the burden to establish the reasonableness of the number of hours worked. Hensley, 461 U.S. at 433, 103 S.Ct. 1933, Alnutt v. Cleary, 27 F.Supp.2d at 399. The fee calculation should exclude hours that were not “reasonably expended” because they were “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Defendant contends that there are numerous entries in counsel’s billing records here that represent hours that were not “reasonably expended,” and that the fee award should be reduced accordingly. In particular, defendant asserts that counsel’s records indicate that there was duplicative work performed by plaintiffs’ attorneys, that some entries are too vague to determine the reasonableness of the time claimed, and that there are some double entries in the records for the same work. It is true that fees can and should be reduced for duplicative work. See, e.g., Berry v. New York State Dep’t of Correctional Services, 947 F.Supp. 647, 652 (W.D.N.Y.1996). Plaintiffs’ attorneys, however, explain that they used a “team” approach in this case, with different attorneys working on different aspects of the case and the issues, depending on each attorney’s individual area of expertise. After reviewing the time records submitted in support of the fee application, and the affidavits of plaintiffs’ attorneys explaining the nature of the work that each lawyer performed, I find that some reduction in the number of hours is appropriate. The total time claimed here is 380 hours, which includes 29.7 hours of travel time and 5.2 hours by a paralegal. Even subtracting those figures, four attorneys worked on this case for a total of 345.1 hours, which is the equivalent of over eight and a half 40-hour work weeks. While I recognize that the District’s own intransigence necessitated the expenditure of most of that time, I do believe that there was some duplication of effort here as well. I understand that counsel took" }, { "docid": "9000372", "title": "", "text": "who are undeniably serious wrongdoers, to get a jury verdict in their favor, and how nearly impossible it is for them to obtain a significant economic recovery. Plaintiffs’ lead counsel has suggested an hourly fee of $350 per hour for himself and his partner Marion Yagman, and of $235 per hour for Edward Figaredo, with whom-he was associated in the case. The court finds these rates to be reasonable in light of the peculiarly undesirable aspects of this case. Plaintiffs’ counsel submitted time sheets detailing a total of 850.75 hours spent on the case itself and on the motion for attorney’s' fees. Marion Yagman’s time sheets show 505.5 total hours, and Edward Figaredo’s time sheets show 137 total hours. The court finds, however, that plaintiffs’ counsel kept their time records with significantly less care and detail than is usually required of attorneys who bill by the hour. Thus, the court has been unable to verify the reasonableness of the number of hours expended and has concluded that the total should be reduced by 15% for each of plaintiffs’ attorneys. The adjusted hours, then, are 723, 429 and 116, respectively. Multiplying the adjusted figures for hours spent by plaintiffs’ counsel’s requested rates yields fees of $253,050, $150,-150 and $27,260, respectively, for a total fee award of $430,460. Defendants objected that plaintiffs’ counsel’s proposed rates are too high. Defendants did' not propose specific alternative rates, but to guide the court’s exercise of discretion, they presented the hourly rates they pay to private counsel with whom they contract to defend civil rights cases. Those rates are as follows: $175 per hour maximum; $125 to $135 per hour for attorneys of partner status and experience; and $90 to $125 per hour for associates. In this rate schedule, both Stephen and Marion Yagman deserve the maximum rate of $175 per hour, and Figaredo deserves $125 per hour, the top rate for associates. Multiplying these rates by the adjusted hours yields fees of $126,525, $75,075 and $14,500, re spectively, for a total fee award of $216,-100. The court finds the rates suggested by defendants to be" }, { "docid": "7307693", "title": "", "text": "19.1 hours for Rosenfeld; 23.25 hours for Smyth), totaling $17,885 at their requested rates. {See id.) In his Rule 68 Motion, Plaintiff Wise specifically identifies the hours at issue, which actually amount to 50.6, and total $17,619.50 at the requested rates (9.4 hours for Brinckerhoff; 18.7 hours for Rosenfeld; 22.5 hours for Smyth). {See Brinck. R. 68 Decl. ¶ 26.) Plaintiffs concede that they did submit billing records for this time in connection with both motions because, according to Plaintiffs, the work contributed “both to the contempt proceeding and to achieving Mr. Wise’s successful result.” {See Con. Reply, at 4-5; R. 68 Mem., at 19-20.) But Plaintiffs state that they do not seek to be compensated twice for the same work and, accordingly, ask the Court to allocate payment for these hours to either the Contempt Motion or the Rule 68 Motion. {See id.) This Court will, therefore, recommends that these hours (and the corresponding fee totals in light of the rates set forth above) be allocated to the Rule 68 Motion. 4. Reasonableness Of Hours/Propriety Of Billing Practices In their responses to both the Contempt Motion and the Rule 68 Motion, Defendants offer a litany of arguments as to the unreasonableness of certain hours Plaintiffs’ counsel expended on the case, and the impropriety of certain of Plaintiffs’ counsel’s billing practices. The Court finds the majority of Defendants’ arguments to be meritless. a. Block Billing Block-billing is the practice “of aggregating multiple tasks into one billing entry.” Molefi v. Oppenheimer Trust, No. 03 Civ. 5631(FB)(WP), 2007 WL 538547 at *7 (E.D.N.Y.2007). Although not prohibited, block-billing makes it “exceedingly difficult” for courts to assess the reasonableness of the hours billed. Id.; see also Aiello v. Town of Brookhaven, 94 Civ. 2622(FB)(WDW), 2005 WL 1397202, at *3 (E.D.N.Y. June 13, 2005) (“because block billing ‘renders it difficult to determine whether, and/or the extent to which, the work done by ... attorneys is duplicative or unnecessary,’ courts apply percentage cuts where there is a substantial amount of block billing in a fee request”) (citations omitted). Contempt Motion: Defendants argue that there are two" }, { "docid": "14278892", "title": "", "text": "at a ‘lodestar’ figure by multiplying the hours plaintiffs’ counsel reasonably spent on the litigation by a reasonable hourly rate.” Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir.1998). The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Id. Once the fee applicant has met this burden, the lodestar figure is presumed to be reasonable. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998). A. Reasonable Hours In order to prove the number of hours reasonably spent on the litigation, the party must submit “meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case, 157 F.3d at 1250. The court can reduce the number of hours when the time records provided to the court are inadequate. Id. The district court must reduce the actual number of hours expended to a reasonable number to ensure that services an attorney would not properly bill to his or her client are not billed to the adverse party. Id. The court must also ensure that the fee applicant has exercised billing judgment with respect to the number of hours worked and billed. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.2005). “Billing judgment consists of winnowing hours actually expended down to hours reasonably expended.” Id. A fee applicant must make a good faith effort to exclude from the fee request hours that are excessive, redundant, or otherwise unnecessary. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998). Plaintiffs fee application seeks compensation for a total of 1,220.6 hours, which includes 619.1 hours for lead attorney Arthur Benson, 442.7 hours for Jamie Kathryn Lansford, and 158.8 hours for Aften McKinney. The court has reviewed the billing records submitted by plaintiff and readily concludes that plaintiff has met his burden of establishing the reasonableness of the hours expended by submitting meticulous, contemporaneous time records showing all hours for which compensation is sought and reflecting" }, { "docid": "4053503", "title": "", "text": "to represent the plaintiffs in several less important matters such as motions for an extension of the temporary restraining order and plaintiffs’ opposition to defendants’ Motion for Clarification. According to the leading case, Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980), the Court should compensate counsel for time reasonably expended. Considering both the quality and the quantity of the work done by Mr. Goldberg in this case, the Court finds that a total of 220 hours is eminently reasonable. Defendants also argue that the rate of $60 assessed for Mr. Goldberg’s time is excessive. Again, the Court disagrees. Mr. Goldberg is a highly qualified and extremely able attorney who unquestionably commands a significantly higher rate when billed to the firm’s regular clientele. It is clear to the Court that Hughes, Hubbard & Reed has chosen the $60 rate despite the fact that it is below “[t]he reasonable hourly rate ... prevailing in the community for similar work,” Copeland, supra, at 892, in further effort to arrive at a reasonable figure in its fee petition. The Court does not feel that it would be just to further cut this already discounted figure. Defendants do not challenge the hourly rate of $75 charged by the partners involved in this case — Philip Lacovara and Gerald Goldman. Instead defendants argue, citing Copeland, that the hours they list are duplicative because much of this time was spent reviewing and editing pleadings or being the “extra man” at a hearing. The Court rejects this argument. The emphasis in Copeland is on arriving at a total number of hours reasonably expended. The Copeland court states that a firm should exercise “billing judgment” and only charge those hours that would be billed to a client. The figures submitted by Hughes, Hubbard & Reed fare well by this standard. This Court believes that it is entirely reasonable for partners to review and edit the work of an associate before it is submitted to the court. Undoubtedly this practice is at least partially responsible for the high quality of the pleadings submitted in this case. Moreover, these hours would in" }, { "docid": "7988072", "title": "", "text": "the billing records contain no indication of the hours the attorneys wrote off as redundant, unproductive, or excessive during this lengthy litigation. Accordingly, a downward adjustment of ten percent is warranted to account for billing judgment. [And in a footnote]: The ten percent offset will be applied after all specific, non-compensable or erroneous charges have been subtracted from the initial lodestar figure. After calculating the lodestar — tabulating the hours spent by Plaintiffs’ four attorneys and multiplying this time by their hourly rates — the court investigated the reasonableness of the hours expended. It reduced the hourly rate of one of the attorneys, removed some duplicate entries, and found that many other entries were “permeated with ambiguities.” Accordingly, it determined that it could not “judge the reasonableness of the time expended” and concluded that a “fifteen percent reduction [of the time expended] is warranted,” applying a fifteen percent offset “after all specific non-compensable or erroneous charges have been subtracted from the initial lodestar figure.” Next, the court looked to the success obtained. The court concluded, Because the hours billed must have been for time reasonably spent on work in furtherance of claims on which the plaintiffs prevailed, the plaintiffs can be awarded no fees for the time and effort expended on the motion for injunctive and declaratory relief, as such motion was denied. This results in a reduction of $3,625. Likewise, the plaintiffs cannot recover fees for time expended on the research of class action issues .... Therefore, a reduction of $714.50 is appropriate. The court also reduced the award by $1,500 for another bill that “likely involved work on class action issues.” Finally, it addressed whether the lodestar figure should be adjusted downward or upward based on the level of Plaintiffs’ success, declining to make an upward adjustment and refusing to “adjust [downward] the lodestar amount for limited success” because “[a]t the end of the day, the winner is clear: the plaintiffs successfully proved a Title VII violation.” Moving to the question of costs, the court disallowed a “number of requested costs” that were either undocumented or unsubstantiated, involved" }, { "docid": "11643688", "title": "", "text": "contrast to these amounts, Parkview expended less than 5 hours on what the court believes (after seeing both presentations) was an equally detailed and complex powerpoint presentation. The largest portion of these charges is for a legal assistant to operate the powerpoint presentation during the trial, a task that could have been performed by someone at a lower hourly rate. As a result, the court is disallowing 37.35 legal assistant hours (or 50% of the time spent) for creation and operation of the power-point presentation as unnecessary, unreasonable, and generally excessive. 5. Plaintiff’s Medical Records Parkview objects to, what it considers exorbitant fees, associated with gathering Plaintiffs medical records as unnecessary to the litigation. From this court’s review of the billing records, the total time expended was 5.7 hours and the majority of the time was spent by a legal assistant at a substantially lower billing rate than an attorney. Regardless, Park- view argues that since Plaintiffs medical records were not utilized at trial nor were they requested by Parkview during discovery, any time spent retrieving these documents is excessive. In response, Plaintiff argues that Parkview’s counsel proceeded until the final pretrial conference as though Plaintiffs medical records would be relevant at trial. The documents were listed in their exhibit list; the witness list had one of Plaintiffs doctors listed, etc. As a result, Plaintiff contends that she had to be ready to rebut whatever evidence or testimony Parkview intended to bring out at trial. Given the few hours expended and the fact that most of the hours were performed by a legal assistant, the court does not find these hours excessive, unreasonable or unnecessary. 6. Fees Charged to Assemble Fee Petitions Parkview also objects to amounts charged by Plaintiffs counsel to draft its fee petitions claiming that the amounts charged are excessive considering that the fee petition is generated mainly from counsel’s own billing records which are compiled throughout the course of litigation. Generally, the court has discretion to deny all the hours spent preparing a fee petition if the petition is “exorbitant,” thus multiplying work for the opposing" }, { "docid": "17667408", "title": "", "text": "fees. The plaintiffs complain of the District Court’s failure to award them reimbursement of paralegal expenses, while Baylor takes issue with both the methodology and the magnitude of the award entered. At the threshold, we dismiss the plaintiffs’ claims as without merit. An award of attorney’s fees rests within the sound discretion of the trial court. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.1974). It was entirely reasonable for the court below to conclude that the cost of the services of support personnel— such as paralegals — was encompassed within the relatively high hourly billing rate awarded for the time of the plaintiffs’ attorneys. We review a fee award solely for abuse of discretion and, therefore, we conclude that the District Court could properly refuse to award paralegal expenses. Baylor’s contentions, however, are of substantially greater weight. They raise three issues with regard to the fee award. First, Baylor argues that the “lodestar” calculation undertaken by the District Court was an abuse of discretion because it awarded fees for time not reasonably expended, for claims not heard in the lawsuit, and for duplicative effort on the part of the plaintiffs’ attorneys. Second, Baylor contends that the award improperly used a uniform hourly rate per attorney without regard for the type of work actually performed. Finally, the college vigorously contests the 25% “upward adjustment” of the fee fixed by the District Court on the basis of the novelty of the issues, the undesirability of the case, and the exceptional success the plaintiffs obtained in the litigation. In Johnson, we enumerated in great detail the factors to be considered by the district courts in arriving at an appropriate fee award. Among the most important of these factors is the lodestar figure; that is, the hours reasonably expended on a case multiplied by the prevailing hourly rate in the community for similar work. Graves v. Barnes, 700 F.2d 220, 222 (5th Cir.1983). The reasonableness of the time expended and its worth is governed by Johnson’s instruction that the trial judge should weigh the hours claimed against [the judge’s] own" }, { "docid": "15751350", "title": "", "text": "cannot fathom why such a large amount of time needed to be expended upon such tasks and, therefore, the number of hours attributable to the Debevoise Firm will be reduced by 10%. Finally, the defendants contend that the hours billed by the Strook Firm are duplicative of the efforts expended by the Sinzheimer Firm. Indeed, a review of the billing records demonstrates that both the Strook and Sinzheimer Firms billed for settlement negotiations. The Strook Firm was primarily involved in settlement negotiations. In order to eliminate any possible “double billing,” the Court will reduce Sinzheimer’s total hours by forty-one hours. c. Travel Time Defendants correctly note that travel time is generally reimbursed at one-half the prevailing hourly rate. Funk, 1999 WL 137855, at *21. Review of the billing records demonstrates that the plaintiffs did not adjust their fee application to reflect this. Instead, the attorneys grouped all their hours together, travel time and all, and charged the full hourly rate. The burden is on the plaintiffs to demonstrate the reasonableness of the attorneys’ fees sought. Hensley, 103 S.Ct. at 1939-41. The Court should not be obligated to scour the voluminous billing records submitted, pull out all time entries related to travel, and make the requisite calculations. Rather, this was plaintiffs duty, subject to a review by the Court for reasonableness. Id. at 1939. Because the plaintiffs failed to do this; instead billing for travel time at the full hourly rate, the Court will reduce the number of reasonable hours claimed by each firm by an additional 5%. 3. The Lodestar Calculation Applying the above-discussed hourly rates and reductions to the hours expended, the following constitutes the Court’s lodestar calculation: a.Sinzheimer Firm The Sinzheimer billed a total of 1,446.05 hours of partner time and 628.5 hours of associate time. As previously discussed, the Court is disallowing 10% of Sinzheimer’s total time due to billing records that were not sufficiently detailed, 5% for failure to correctly separate out travel time, and an additional 41 hours to avoid “double billing” of work performed by the Strook Firm. Accordingly, the Court adjusts partner time" }, { "docid": "11489307", "title": "", "text": "whether the hours, fees and expenses, are reasonable for an individual item.” Id. at 404 (citation omitted). The court finds that case distinguishable from the instant one. In Naporano Iron and Metal Co., the EAJA application for attorneys’ fees included one affidavit submitted by the attorney in charge of the plaintiffs case. Therein, the court emphasized that the attorney had merely provided a conclusory assertion that the total fees sought were $117,490 and attendant disbursements of $6,545. He stated, “[b]ecause 7Q percent, more or less, of the time expended in this matter was expended by senior members of the firm, an average hourly rate of $115.00 is a close approximation of actual hourly rates.... ” (emphasis added).... Attached thereto were periodic billings to Naporano Iron and Metal Company generally indicating the total billing for the month and allocable ‘Disbursements’ for the billed period. An example is the bill fi*om petitioners’ attorney dated December 16, 1982, to wit: For Legal Services Rendered through November 80,1982. Id. The court affirmed the trial court’s denial of fees under the EAJA and held that “such a showing is inadequate to support an award of attorneys’ fees.” Id. (citations omitted). The court further stated that “[o]nly by knowing the specific task performed can the reasonableness of the number of hours required for any individual item be judged.” Id. Here, the court finds that the attorney statements are sufficiently detailed to be acceptable under the EAJA. The statements list in detail each individual attorney’s time by date and specific task and then provide the total hours spent in those activities combined, and also identify meetings and telephone conversations. For example, in the supplemental application for fees, Karl Dix outlines his work as follows: 11/08/94 Received and reviewed letter from EPA; worked on response. 11/09/94 Reviewed correspondence from Mr. McEntagart to Mr. Taylor; reviewed letter previously telecopied to Mr. Taylor; worked with George Pa-paioanou on application. 11/10/94 Reviewed various telecopies and various telephone conversations with Mr. Taylor. TOTAL HOURS: 2.40 at $130 per hour = $312. The court does not find fatal the fact that each specific" } ]

[ { "docid": "13602162", "title": "", "text": "Texas Gulf Sulphur Co., 47 F.R.D. 60, 63 (S.D.N.Y. 1969) ; Weiss v. Tenney Corp., 47 F.R.D. 283, 290 (S.D.N.Y.1969). Obviously, the “no conflict” interpretation is in essence another form of the requirement of adequate representation. This court is of the opinion that none of these readings of the typicality requirement is sufficient. It should be apparent that treating the requirement as identical to those of common question or adequate representation renders the requirement meaningless. It is difficult to accept the conclusion, which must follow from any of these readings, that the requirement serves no independent purpose. A more reasonable reading of the requirement would seem to entail the necessity of demonstrating that there are other members of the class who have the same or similar grievances as the plaintiff. It seems apparent that a claim cannot be typical of the claims of a class if no other member of the class feels aggrieved. See Baxter v. Savannah Sugar Ref. Co., 46 F.R.D. 56, 59-60 (S.D.Ga. 1968); Hyatt v. United Aircraft Corp., 50 F.R.D. 242, 247 (D.Conn.1970). Neither Baxter nor Hyatt has articulated this proposed reading of the typicality requirement, but both demonstrate an awareness of the need for grievances throughout the class. A similar unartic-ulated feeling can be detected in most of the cases dealing with Rule 23, and in this context a limited connection between the requirements of typicality and common question is appropriate. However, rather than determining whether the typicality and common question requirements are met, courts have concluded, from a finding that a common question would exist if there were claims throughout the class, that the claims are typical. In other words, the fact that hypothetical claims would be similar is considered sufficient justification for finding the plaintiff’s claim to be typical. See, e. g., Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). Since the typicality requirement must be given an independent meaning, we are of the opinion that it requires the plaintiff to demonstrate that other members of the class he purports to represent have suffered the same grievances of which he" } ]

[ { "docid": "5104377", "title": "", "text": "issue of plaintiffs’ suitability as a representative was covered' by a single requirement that the named representative be such as will “fairly insure,the adequate representation of all.” Fed.R.Civ.P. 23(a), 28 U.S.C. App. (1964). The meaning of the separate requirement under amended Rule 23(a) (3) that plaintiffs’ claims be “typical of the claims * * * of the class,” is not explained in the accompanying notes of the advisory committee. See, Advisory Committee Notes, 39 F.R.D. 69, 99-107. It has, however, been suggested that this new provision contains a cryptic reference “to the motion, still valid under the amended rule, that the representative must not have interests which conflict with those he purports to represent.” 2 Barron & Holtzoff, Federal Prac. & Proc., 75 n. 3 (Supp. 1967); See, Mersay v. First Republic Corp. of Amer., supra, 43 F.R.D. at 468. The requirement that the representative’s interests be free of conflict with those of the absentees has in turn been held to entail, (1) the presence of interests coextensive with the interests of the class, See e. g., Dolgow v. Anderson, supra, 43 F.R.D. at 494; Minnesota v. United States Steel Corp., supra, 44 F.R.D. at 566; 3B Moore’s Fed.Prac. ¶ 23.07(1) at 23-351 (2nd ed., 1969), or (2) the absence of representative interests which are antagonistic to the interests of the absentees. See e. g., Hansberry v. Lee, 311 U.S. 32, 44-45, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Weiss v. Tenney Corp., supra, 47 F.R.D. at 293; Mersay v. First Republic Corp. of Amer., supra, 43 F.R.D. at 468; Philadelphia Elec. Co. v. Anaconda Amer. Brass Co., 43 F.R.D. 452, 463-464 (E.D.Pa.,1968); see generally, 3B Moore’s supra ¶ 23.07 (3) . Defendants’ attack on the eompatability of interests between representatives and absentees is directed- at plaintiff Rockier only. It is defendants’ position that Rockier is potentially liable at least to some of .the class claimants and that this fact raises a conflict of interest sufficient to preclude Rockler’s serving as a' representative. The theory or theories of liability upon which defendants rely is not altogether clear. Though it is" }, { "docid": "5104376", "title": "", "text": "329 F.2d 909, 914 (9th Cir. 1964), Tt cannot be disputed that the claims of both the named plaintiffs raise questions common to the class consisting of at least (1) the Tact of the alleged misrepresentations and omissions, (2) their materiality, and (3) the general liability of the named defendants for such misstatements or omissions as pre ultimately proven. None of defendants’ objections with respect to the commonality requirement of 23(a) (1) negate or disturb this “common nucleus of operative facts.” Weiss v. Tenney Corp., 47 F.R.D. 283, 293 (S.D.N.Y. 1969); Mersay v. First Republic Corp. of Amer., 43 F.R.D. 465, 468 (S.D.N.Y.1968); Dolgow v. Anderson, 43 F.R.D. 472, 489 (E.D.N.Y.1968); Siegel v. Chicken Delight, Inc., 271 F.Supp. 722, 726 (N.D.Cal.1967). What defendants have denominated objections to the applicability of 23(a) (2), are more properly addressed to the requirement under 23(b) (3)'that the common questions of law and fact predominate over questions affecting only individual members of the alleged class. (a) (3) Plaintiffs’ Claims are typical of the Class Under the former Rule 23 the issue of plaintiffs’ suitability as a representative was covered' by a single requirement that the named representative be such as will “fairly insure,the adequate representation of all.” Fed.R.Civ.P. 23(a), 28 U.S.C. App. (1964). The meaning of the separate requirement under amended Rule 23(a) (3) that plaintiffs’ claims be “typical of the claims * * * of the class,” is not explained in the accompanying notes of the advisory committee. See, Advisory Committee Notes, 39 F.R.D. 69, 99-107. It has, however, been suggested that this new provision contains a cryptic reference “to the motion, still valid under the amended rule, that the representative must not have interests which conflict with those he purports to represent.” 2 Barron & Holtzoff, Federal Prac. & Proc., 75 n. 3 (Supp. 1967); See, Mersay v. First Republic Corp. of Amer., supra, 43 F.R.D. at 468. The requirement that the representative’s interests be free of conflict with those of the absentees has in turn been held to entail, (1) the presence of interests coextensive with the interests of the class, See" }, { "docid": "14758469", "title": "", "text": "that he will “fairly and adequately protect the interests of the class.” 3. Rule 23(a) Requirements A. Numerosity. Plaintiff has not at this stage of the litigation precisely enumerated the size of the class he proposes for certification. Nevertheless, since 1,050,000 shares of stock were sold pursuant to the April 7,1981 public offering, common sense dictates the conclusion that the class is “so numerous that joinder of all class members is impracticable.” See Wolgin v. Magic Marker Corp., 82 F.R.D. 168, 171 (E.D.Pa. 1979); In re Home Stake Production Company Securities Litigation, 76 F.R.D. 351 (N.D.Okla.1977). Defendants do not contest the issue of numerosity. I conclude, therefore, that the requirement of Rule 23(a)(1) is satisfied. B. Commonality. There are clearly issues of law and fact in this action, as in most securities actions involving the public issuance of stock, which are common to all members of the described class. If any purchaser of CGA stock pursuant to the April 7, 1981 public offering is to recover under section 11 of the Securities Act of 1933, he must show that the Registration Statement filed in connection with the offering “contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein net misleading.” 15 U.S.C. § 77k(a). The issue of the accuracy and completeness of the Registration, therefore, will form the focus of this action and is common to each and every member of the class. See Weiss v. Tenney Corp., 47 F.R.D. 283, 289 (S.D.N.Y. 1969). The issue of the various named defendants’ culpability in connection with the Registration Statement and Prospectus will also be common to each member of the class. I conclude that the requirement of Rule 23(a)(2) has been met as well. C. Typicality. All parties concede that, whether or not plaintiff is an adequate representative of the class, his securities claims are typical of those of the class he purports to represent. Indeed, since plaintiff and the remaining class members purchased indistinguishable shares of stock in one offering pursuant to a" }, { "docid": "13602163", "title": "", "text": "247 (D.Conn.1970). Neither Baxter nor Hyatt has articulated this proposed reading of the typicality requirement, but both demonstrate an awareness of the need for grievances throughout the class. A similar unartic-ulated feeling can be detected in most of the cases dealing with Rule 23, and in this context a limited connection between the requirements of typicality and common question is appropriate. However, rather than determining whether the typicality and common question requirements are met, courts have concluded, from a finding that a common question would exist if there were claims throughout the class, that the claims are typical. In other words, the fact that hypothetical claims would be similar is considered sufficient justification for finding the plaintiff’s claim to be typical. See, e. g., Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). Since the typicality requirement must be given an independent meaning, we are of the opinion that it requires the plaintiff to demonstrate that other members of the class he purports to represent have suffered the same grievances of which he complains. The plaintiff is required to show that his action meets the prerequisites of a class action. Demarco v. Edens, 390 F.2d 836 (2d Cir. 1968); Tippett v. Lig-gett & Myers Tobacco Co., 316 F.Supp. 292 (M.D.N.C.1970); Male v. Crossroads Assoc., 320 F.Supp. 141 (S.D.N. Y.1970). Consequently, it will not be unduly burdensome for the plaintiff to demonstrate the presence of other complaints. How the plaintiff is to meet this burden need not be determined now. Any method of demonstrating that some members of the class to be represented share the plaintiff’s grievances would be acceptable, whether by affidavit, by enumerating charges filed with the EEOC but not followed by private suits, or by some other means. This conclusion does not challenge those cases which have held that a single plaintiff can adequately represent a class, e. g., Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-499 (5th Cir. 1968). Rather, it is an attempt to assure that there is in fact a class needing representation. The court today simply holds that the plaintiff will" }, { "docid": "702097", "title": "", "text": "to Fed.R.Civ.P. 21, on its own initiative, hereby adds him as a named plaintiff. . The Court will, of course, reconsider its ruling upon the submission of the appropriate documentation by the plaintiffs. . Accordingly, the plaintiffs' motion to add these individuals is denied, subject to the proviso set forth in supra note 6. . The Court also notes that a common question of fact exists regarding the defendants' conduct with respect to supervising local school districts, and enforcing state and federal law. . See Twyner, Federal Rule of Civil Procedure 23(a)(3) Typicality Requirement: The Superfluous Prerequisite to Maintaining a Class Action, 42 Ohio St.L.J. 797 (1981); Steininger, Class Actions: Defining the Typical and Representative Plaintiff Under Subsections (a)(3) and (4) of Federal Rule 23, 53 B.U.L.Rev. 406 (1973); Miller, at 27 (\"[W]hen all is said and done, there does not really seem to be terribly much of independent significance to subdivision (a)(3).”). . One of the principal reasons for enacting Rule 23 was to ensure that all members of the class would be bound by the court’s judgment, whether favorable or unfavorable. Advisory Committee Note, 39 F.R.D. 98, 99 (1966). . We therefore decline to adopt the reasoning that competence will be presumed if a party opposing a motion for class certification fails to challenge the adequacy of counsel. The rationale for this rejection is obvious: the focus of this reasoning is on the opponent. We believe that the focus should be on the absentee members, and therefore that such an inquiry must be made regardless of the opponent’s actions. . For example, the defendants do not claim that the plaintiffs have brought this suit as a class action in order to pressure them into set-, tling, much in the manner of a \"strike suit.” . Under the \"benefit” test, (a)(4) is satisfied if the proposed class will benefit from the action. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir.1968). The \"no-conflict\" test is met if there is no conflict between the claims of the named representative and those of the class. See Weiss v. Tenney" }, { "docid": "17393935", "title": "", "text": "requirement of commonality is satisfied here. The District Court, adopting the Report and Recommendation, correctly found that there were many questions of law or fact common to the named plaintiff and the class, including whether defendants were fiduciaries; whether defendants breached their duties to the Plan by failing to conduct an appropriate investigation into the continued investment in Schering-Plough stock; whether defendants breached their duties by continuing to invest in Schering-Plough stock and in continuing to offer the Schering-Plough Stock Fund; whether the defendants in supervisory roles failed in their monitoring of the Investment Committee Defendants; whether defendants failed to retain independent fiduciaries; and whether the Plan suffered losses as a result of defendants’ breaches. These types of common questions are sufficient to meet the commonality requirement in ERISA cases. See Williams, 231 F.R.D. at 421 (finding commonality satisfied when common questions included whether defendants were fiduciaries and whether defendant breached their fiduciary duties under ERISA); Polaroid, 240 F.R.D. at 74 (same); In re Elec. Data Sys. Corp. ERISA Litig., 224 F.R.D. 613, 622 (E.D.Tex.2004) (same). B. It is not as clear, however, that the other two Rule 23(a) prerequisites — typicality and adequacy — are satisfied. 1. Typicality Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). All four Rule 23(a) prerequisites for class certification serve as “guideposts for determining whether maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n. 20, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citations and internal quotation marks omitted). The typicality requirement furthers this aim by ensuring that the class representatives are sufficiently similar to the rest of the class — in terms of their legal claims, factual circumstances, and stake in the litigation — so that certifying those individuals to represent the class will be fair to the rest of the proposed" }, { "docid": "22854592", "title": "", "text": "questions of law and fact common to the class which predominate over questions affecting only individual members of the class. (3) The claims of the plaintiff must be typical of the claims of the class. (4) The plaintiff must show that he will fairly and adequately protect the interests of the class. (5) The class action must be found superior to other means available for the fair and efficient adjudication of the dispute. There is apparently no dispute as to (1), that portion of (2) requiring common questions of law and fact\", or (5). It is urged by defendants, however, that Mersay’s claims are not typical of the class, that he cannot fairly and adequately protect the interests of the class, and that the common questions of law and fact will not predominate over individual claims. I. Are Mersay’s Claims Typical of the Claims of the Class ? The Advisory Committee Note accompanying amended rule 23 (39 F.R.D. 69, 99-107) does not elaborate upon the meaning of the requirement that the plaintiff’s claim be “typical of the claims * * * of the class.” It has been suggested that perhaps this clause “is a somewhat cryptic reference to the notion, which is still valid under the amended rule, that the representative must not have interests which conflict with those he purports to represent.” 2 Barron & Holtzoff, Federal Practice & Procedure 75, n. 3 (Supp.1967). Mersay alleges a series of misrepresentations and a course of conduct on the part of the defendants which were violative of the federal securities laws. The class he claims to represent is composed only of other persons like himself, who bought F-R stock or exchanged units in syndicates for F-R stock either in reliance upon those misrepresentations or— in the case of the § 11 claim—under the registration statements alleged to have been defective. He alleges no facts or legal arguments peculiar to himself. Bather, he alleges a “common nucleus of operative facts” applicable to the class as a whole. Siegel v. Chicken Delight, Inc., 271 F.Supp. 722, 726 (N.D.Cal. 1967); Dolgow v. Anderson. 43" }, { "docid": "22884057", "title": "", "text": "United States Steel Corp., 44 F.R.D. 559, 566 (D.Minn.1968); see 3B J. Moore, Federal Practice 123.06-2 (2d ed. 1972). Contra, Vernon J. Rockler and Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 343 n.14 (D.Minn.1971). More often, courts have equated typicality with the adequacy of the class representative or the absence of conflict of interest between the representative and class members, the interests protected by Rule 23(a)(4). See, e. g., Windham v. American Brands, Inc., 68 F.R.D. 641, 649 (D.S.C.1975), rev’d on other grounds, 539 F.2d 1016 (4th Cir. 1976); Kinsey v. Legg, Mason & Co., 60 F.R.D. 91, 99 (D.D.C.1973); Cannon v. Texas Gulf Sulphur Co., 47 F.R.D. 60, 63 (S.D.N.Y.1969); Vernon J. Rockler and Co. v. Graphic Enterprises, Inc., supra. Because of the existence of these lines of cases, Professor Moore suggests that, “In fact, there is no need for [Rule 23(a)(3)], since all meanings attributable to it duplicate requirements prescribed by other provisions in Rule 23.” 3B J. Moore, Federal Practice 123.06-2 (2d ed. 1972). See also 7 C. Wright & A. Miller, Federal Practice and Procedure § 1764 (1972). In an effort to give Rule 23(a)(3) an independent meaning, some courts have said that the typicality provision requires a demonstration that there are other members of the class who have the same or similar grievances as the plaintiff. Taylor v. Safeway Stores, Inc., 524 F.2d 263, 268-71 (10th Cir. 1975); Green v. Cauthen, 379 F.Supp. 361, 372 (D.S.C.1974); White v. Gates Rubber Co., 53 F.R.D. 412, 415 (D.Colo.1971); see Green v. Missouri Pacific R.R. Co., 62 F.R.D. 434, 436 (E.D.Mo.1973), rev’d on other grounds, 523 F.2d 1290, 1299 (8th Cir. 1975). This requirement was adopted as the law of this Circuit in Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975). There, a black Title VII plaintiff claimed that his employer improperly excluded him from its maintenance department. This Court upheld the District Court’s denial of certification, relying in part on the plaintiff’s failure, under Rule 23(a)(3), to “identify any person who had been subjected to the same or similar treatment as he allegedly" }, { "docid": "19009895", "title": "", "text": "g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5 Cir..1969). These principles have led courts to permit the maintenance of across-the-board classes covering individuals whose race, job classification, place of employment, and claim for relief may vary substantially from those of the named plaintiffs. But they do not relieve the named plaintiffs of their burden of establishing compliance with each of the prerequisites of Rule 23(a) as well as one of the subcategories of Rule 23(b). E. g., Doninger v. Pacific Northwest Beil, Inc., supra, 564 F.2d at 1308-1309; Senter v. General Motors Corp., 532 F.2d 511, 522 (6 Cir. 1976), cert, denied, 429 U.S. 870, 97 S.Ct. 1897, 50 L.Ed.2d 150 (1977). That burden may be eased with respect to the requirements of commonality, Rule 23(a)(2), and action on grounds generally applicable to a class, Rule 23(b)(2), in that a proper preliminary showing of discrimination is sufficient to satisfy both as to the class of persons shown to have been affected! But a liberal interpretation of Rule 23 cannot mean a generalized rule that a court is to find that the named plaintiff is a member of a sufficiently numerous class, Rule 23(a)(1), that his claim is typical of the class, Rule 23(a)(3), or that he will adequately represent their interests, Rule 23(a)(4), in cases where it otherwise would not. To permit class treatment where joinder is practicable would simply make no sense as a matter of judicial administration. And it would unnecessarily endanger the interests of absent parties who could be given the opportunity to participate. Worse, a general loosening of the standards for membership in the class, typicality, and adequate representation would both endanger the interests of class members and jeopardize the very ends of eradicating class-based discrimination that a liberal interpretation is intended to further. The importance of this goal dictates that the class be limited to those employees whose interests the named plaintiff is likely to press with substantially equal vigor and ability. Any other interpretation could permit a well-intentioned plaintiff, who could ably represent a limited class, to bind a broad" }, { "docid": "5104375", "title": "", "text": "litigation to proceed by way of individual intervention would pose a substantial if not an intolerable burden on the court and its facilities. Where, as'hére, the number of absentees ascends into the hundreds: “[P]roblems of management and administration would be rendered 'extremely cumbersome and difficult by joinder of all absentee mémbers, service of (separate pleadings,, entry of separate orders as to each'joinder, etc. Joinder would tend to result in great - multiplicity, one of the major evils Rule 23 procedures seek to prevent.” Minnesota v. United States Steel Corp., 44 F.R.D. 559, 566 (D.Minn.1968). See also Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969). (a) (2) Common Questions of Law or Fact / ’ The second prerequisite to class actioii set out in Rule 23(a) is that there be common questions of law or fact. The Rule “does not require that all the members of the class be identically situated, if there are substantial questions either of law or fact common to all.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 914 (9th Cir. 1964), Tt cannot be disputed that the claims of both the named plaintiffs raise questions common to the class consisting of at least (1) the Tact of the alleged misrepresentations and omissions, (2) their materiality, and (3) the general liability of the named defendants for such misstatements or omissions as pre ultimately proven. None of defendants’ objections with respect to the commonality requirement of 23(a) (1) negate or disturb this “common nucleus of operative facts.” Weiss v. Tenney Corp., 47 F.R.D. 283, 293 (S.D.N.Y. 1969); Mersay v. First Republic Corp. of Amer., 43 F.R.D. 465, 468 (S.D.N.Y.1968); Dolgow v. Anderson, 43 F.R.D. 472, 489 (E.D.N.Y.1968); Siegel v. Chicken Delight, Inc., 271 F.Supp. 722, 726 (N.D.Cal.1967). What defendants have denominated objections to the applicability of 23(a) (2), are more properly addressed to the requirement under 23(b) (3)'that the common questions of law and fact predominate over questions affecting only individual members of the alleged class. (a) (3) Plaintiffs’ Claims are typical of the Class Under the former Rule 23 the" }, { "docid": "761720", "title": "", "text": "v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). These issues, along with others, are questions that are undoubtedly common to all the members of the putative class. As Mobil has pointed out, however, individual questions are present in this suit as well. Whether the common questions predominate over these individual questions is an issue that is considered in the discussion of subdivision (b) of Rule 23 infra. For purposes of Rule 23(a)(2), I find that common questions of law and fact have been presented. (3) Typicality of claims. Subdivision (a)(3) of Rule 23 requires that the claims of representative plaintiffs be typical of the claims of the class. Courts have found that this prerequisite is satisfied if the claims of the representatives and of the members of the putative class arise from the same transaction or legal theory, see, e. g., Cullen v. New York State Civil Service Commission, 435 F.Supp. 546, 559-60 (E.D.N.Y.), appeal dismissed, 566 F.2d 846 (2d Cir. 1977); Weiss v. Drew National Corp., 71 F.R.D. 429, 431 (S.D.N.Y.1976), or if there is an absence of antagonism or conflicting interest between the representatives and absent class members. Inmates of Attica Cor rectional Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971); Cutner v. Fried, 373 F.Supp. 4, 11 (S.D.N.Y.1974). The three named plaintiffs in this suit are presently independent Mobil distributors who claim injury from the alleged unlawful anticompetitive acts of Mobil. The damages purportedly sustained by the absent members of the proposed class are based on these same transactions — the discount reduction, the alleged conspiracy to eliminate independent distributors as competition, and the alleged monopolization and attempted monopolization. Moreover, Mobil has failed to show the existence of any antagonistic or conflicting interests between the named plaintiffs and the remaining members of the class. The Court therefore finds that the claims of the representative plaintiffs are typical of the claims of the class. (4) Fair and adequate representation. The defendant has not challenged the ability of plaintiffs’ counsel to “fairly and adequately protect the interests of the class.” Fed.R.Civ.P." }, { "docid": "12078539", "title": "", "text": "included citations to deposition testimony by Volponi, the President and owner of VIP, and his sister, Gelcineia Piccirillo, the manager of VIP, to support their claims. While the evidence is far from overwhelming, I find, on this record, that the prospective class shares common questions of law and fact sufficient to satisfy the commonality requirement of Rule 23. Typicality and Adequacy “Typicality,” as the term suggests, requires that the claims of the representative plaintiffs be typical of the claims of the class. The typicality requirement is met “when [the representative plaintiffs] injuries arise from the same events or course of conduct as do the injuries of the class and when plaintiffs’] claims and those of the class are based on the same legal theory.” In re Credit Suisse-AOL Sec. Litig, 253 F.R.D. 17, 23 (D. Mass. 2008). This does not mean that the representative plaintiffs claims must be identical to those of proposed class members, rather the “question [is] whether the putative class representatives can fairly and adequately pursue the interests of the [proposed] class members without being sidetracked by their own particular concerns.’ ” Id. (citation to quoted case omitted). The “Adequacy” requirement “demands a similar inquiry into whether the putative representative plaintiffs interests are aligned with other class members and whether the plaintiff is in a position to vigorously protect the class’ interests.... The analyses has two steps: The Court must determine, ‘first, whether any potential conflicts exist between the named plaintiffs and the prospective class members, and, second, whether the named plaintiffs and their counsel will prosecute them case vigorously. Both typicality and adequacy may be defeated where the class representatives are subject to unique defenses which threaten to become the focus of the litigation’” Id. (citation to quoted case omitted). In this case, the Defendants do not challenge Plaintiffs’ assertion that they meet the typicality requirement and the Court finds that, in fact, the Plaintiffs alleged injuries arise from the same events and course of conduct as the injuries of the proposed class members. However, Defendants vigorously challenge whether Plaintiffs satisfy the adequacy requirement. More specifically," }, { "docid": "780130", "title": "", "text": "the plaintiff. It seems apparent that a claim cannot be typical of the claims of a class if no other member of the class feels aggrieved. 53 F.R.D. at 415. The court went on to state what it felt to be the purpose of Rule 23(a)(3), “an attempt to assure that there is in fact a class needing representation.” 53 F.R.D. at 415. Perhaps because the cases are not legion which have dealt with the typicality requirement with clarity, White has hardly founded a monolith of case precedent on this question. Several decisions, however, have followed or approved its rationale. The Tenth Circuit endorsed the rule in White and applied it in lieu of the “across the board” approach in a factually similar case, Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975). In both this case and that, moreover, the employment decisions in question were being made on a fragmented basis. In Taylor, each of the individual stores did its own personnel work; here those matters are separately handled by the several departments or schools. Sweeping allegations of discriminatory treatment as a device to sidestep Rule 23(a)(3) would not wash: If the mere assertion of widespread employment discrimination were sufficient to satisfy the typicality requirement, subsection (a)(3) would again be rendered superfluous, since it would be unrealistic for a court to compare the claims and defenses of the plaintiff with the hypothetical claims of a hypothetical class. 524 F.2d at 270-71. The plaintiff in Taylor could isolate no policy of discrimination nor any similarly aggrieved employee, and his burden under Rule 23(a)(3) was adjudged to have been unmet. The Eighth Circuit arrived at that very conclusion independently where a would-be class representative failed in the same fashion. Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975). In Wright, the court prefaced its findings by acknowledging its commitment “to the proposition that Rule 23 should be liberally construed to effectuate the remedial policy of Title VII,” 524 F.2d at 1061-62, a goal to which this court is also dedicated. Nevertheless, the plaintiff’s speculative account and “vague" }, { "docid": "19679373", "title": "", "text": "The discussion relating to the typicality requirement of Rule 23(a)(3) is equally applicable to the “commonality” prerequisite of Rule 23(a)(2), i. e. “there are questions of law or fact common to the class”. The facts set forth in the Plaintiff’s claim, and the class she would represent, allege that the Defendant failed to properly train black employees in the operation of their various positions, and discharged black persons because of their race. As held in Poindexter v. Teubert, supra: “The burden is on the plaintiffs in a class action to show that their action meets the prerequisites of Rule 23(a). Demarco v. Edens, 390 F.2d 836 (2nd Cir. 1968); Phillips v. Sherman, 197 F.Supp. 866 (N.D.N.Y. 1961). The plaintiffs only allege two acts of discriminatory treatment. They allege no facts tending to show that the defendants have engaged in similar practices with respect to other black citizens of Beckley, West Virginia. Thus they did not show and have not shown that there are other members of the class they purport to represent, and it cannot be said that their claims are typical of the claims or defenses of the class. Fed.R.Civ.P., 23(a)(1) & (3); see White v. Gates Rubber Co., supra [D.C., 53 F.R.D. 412]; Page v. Curtiss-Wright Corp., 332 F.Supp. 1060, (D.N.J.1971); cf. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972).” Knowing Counsel for the Plaintiff in this ease, and the experience Counsel has had in numerous class actions, this Court can not conclude otherwise than that the fourth and final requirement of Rule 23(a) that “the representative parties will fairly and adequately protect the interests of the class”, is fully met. In the absence of any disabling antagonism or conflict, the primary criterion is that of “[the] vigor with which the representative party can be expected to assert and defend the interests of the . . . class.” Berland v. Mack, 48 F.R.D. 121 (S.D.N.Y.1969); Herbst v. Able, 47 F.R.D. 11 (S.D.N.Y. 1969); Mersay v. First Republic Corporation of America, 43 F.R.D. 465, 470 (S.D.N.Y.1968). Since the threshold requirements of Rule 23(a) have not been met, the" }, { "docid": "4239089", "title": "", "text": "Corp., 54 F.R.D. 420 (S.D.N.Y.1972); Weiss v. Tenney, 47 F.R.D. 283 (S.D.N.Y.1969). The court ac cordingly finds that at this time Gordon’s claim meets the typicality requirement. IV Adequacy of Representation In general, the adequacy of representation requirement of rule 23(a)(4) is met where the interests of the representative coincide with the other class members and where plaintiff and his attorney will vigorously prosecute the action. See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir. 1975); Sullivan v. Chase Investment Services, 79 F.R.D. 246 (N.D.Cal.1978); Lewis v. Capital Mortgage Investments, 78 F.R.D. 295 (D.Md.1977). See also Newburg § 8818b. The class representative is only qualified if his interest in proving his claim will lead him to prove the claims of the remainder of his class. Mersay v. First Republic Corp., 43 F.R.D. 465 (S.D.N.Y.1968). Both plaintiffs clearly meet these requisites. Defendants do not challenge the adequacy of the representation of plaintiffs’ counsel. Defendants argue that plaintiffs cannot adequately represent the class because they have interests antagonistic to the other members of the class. Defendants raise one claim as to Hochschuler: the fact that he was in possession of the information at the time he purchased the stock would render his representation inadequate and he will consequently attempt to minimize facts known to him. The simple response to this contention is that there is no proof at this juncture that Hochschuler was aware of any aspect of the fraud. Consequently, since the authorities have uniformly held that the representation can represent prior purchasers, Hochschuler is an adequate representative. Defendants claim Gordon will not be motivated to prove nondisclosures subsequent to his purchase. As the court noted in the section on typicality, a prior purchaser has an interest in proving subsequent acts where a “common thread” or “essential continuity of omissions” exists. Since the adequacy of plaintiffs’ counsel is not at issue, both plaintiffs meet the requisites of rule 23(a)(4). V Predominance and Superiority i Predominance Finally, in order for this matter to proceed as a class action, the plaintiffs must show “that the questions of law or" }, { "docid": "18990303", "title": "", "text": "to be encountered in the management of a class action. Before the Court can certify a class action, plaintiff must demonstrate that each of the prerequisites of Rule 23 has been satisfied. Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968), cert, denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). III. Defendants’ Memorandum in Opposition to Class Action Certification A. Numerosity At oral argument plaintiff asserted, and defendants did not contest, that the proposed class numbers approximately 5,000-6,000 shareholders. This number is sufficient to satisfy the requirement that joinder be impracticable. Green v. Wolf Corp., supra at 298. B. Typicality Although the precise meaning of the term typicality is unclear, most courts have interpreted it as requiring that the class representative’s claims present issues common to the class and that his positions concerning those issues is not antagonistic to the positions of the other class members. See Mersay v. First Republic Corp., 43 F.R.D. 465, 468-469 (S.D.N.Y.1968). Defendants argue that plaintiff’s claims are not typical because the elements of his claim differ from those of other members of the class who purchased at different times. They suggest that plaintiff need only prove that the financial report immediately preceding his purchase contained material misrepresentations and that, therefore, he need not present evidence concerning other financial reports issued during the proposed class period. In Weiss v. Tenney, 47 F.R.D. 283 (S.D.N. Y.1969), the court rejected an almost identical argument. In Weiss, defendants argued that plaintiff’s claims were not typical because he could recover full damages by proving misstatements in certain monthly communications and an annual report. They contended that, consequently, plaintiff had no inducement to prove misstatements in a registration statement that was issued during the class period and on which certain class members had to rely to recover. The court held that this circumstance did not preclude a finding of typicality because all of the misstatements were similar and were alleged to have occurred through a common course of conduct. The court concluded that therefore proof of plaintiff’s allegations would benefit all members of the class." }, { "docid": "8701018", "title": "", "text": "Procedure § 1763, at 610 & n. 7 (1972); 3B Moore’s Federal Practice ¶ 23.-06-1, at 23-301 (2d ed. 1977). e. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class * * *.” The Court recently discussed the nature of the typicality requirement in Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 488-489 (N.D.Cal.1978): “the analysis [under Rule 23(a)(3)] must focus on a comparison of the representative plaintiffs’ claims and defenses with those of the class. [Citation omitted.] Factual variations are not fatal to a proposed class when the claims arise out of the same remedial and legal theory. [Citation omitted.] Such variations do, however, raise two issues of typicality. “First, * * * the common issues must occupy ‘essentially the same degree of centrality’ to the named plaintiffs’ claim as to that of other class members. * * * And if it is predictable that ‘a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is not a proper class representative.’ He Hs # * sfc sfc “[Second,] [f]actual variations may also reveal that different groups of class members have differing interests which, though not actually in conflict, will ‘affect the nature of an effective presentation of their claims * * *.’ ” The requirement of typicality also “seems intended to reinforce the adequacy requirement by ensuring that the named plaintiffs’ interests are sufficiently aligned with those of class members to assure that they not only can but will press each such claim to a full and equal extent.” Id., at 475. There will doubtless be some differences in emphasis in the claims of each representative plaintiff and each class member who received Performance Chart No. 1. Some may, for example, find it more difficult to establish reliance, while others may be relatively vulnerable to statute of limitations defenses. However, each representative plaintiff has an interest in establishing each element of a claim under the Investment Advisers Act, and their" }, { "docid": "22148101", "title": "", "text": "a class action plaintiff to “demonstrate that other members of the class he purports to represent [actual, not hypothetical complainants] have suffered the same [or similar] grievances of which he complains.” Id. at 415. Initially, the district court held that Taylor had met this burden, but carefully noted that this was merely a “threshold determination” and not final. 333 F.Supp. 83 at 87, D.C.Colo. Later, the district court found that at most, Taylor had only established that his grievances were typical of a class of Negro employees situated at Safeway’s frozen food warehouse in Denver, thus effectively narrowing the original class claim made by Taylor. Taylor argues that regardless of the correctness of the typicality definition in White as applied in other types of class actions, it is inappropriate in Title VII cases because it prematurely limits the class making it difficult for the individual plaintiff to prove the existence of individuals with similar claims. Taylor also contends that Title VII class claims need not meet the technical requirements of Rule 23. We must reject both contentions. In order to maintain a class action, Title VII plaintiffs are not exempted from the prerequisites of Rule 23(a). Brito v. Zia Co., supra, at 1204; Washington v. Safeway Corp., 10 Cir., 467 F.2d 945, 947. Likewise, if the White definition of the typicality requirement is correct, it applies equally to all class actions, including Title VII cases. Rule 23(a)(3) has been the subject of various judicial interpretations since it first appeared in the 1966 amendments to the Federal Rules of Civil Procedure, which can be partially explained by the failure of the advisory committee to articulate the meaning of the Rule 23(a) prerequisites. The courts have not only failed to give Rule 23(a)(3) a commonly accepted meaning, but have been accused of giving it no independent meaning at all or merely making it duplicative of other Rule 23(a) prerequisites. The guiding rationale for many of the judicial interpretations of the typicality requirement has been the historical nexus between subsections (a)(3) and (a)(4); both of these subsections were derived from a common phrase" }, { "docid": "14758470", "title": "", "text": "he must show that the Registration Statement filed in connection with the offering “contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein net misleading.” 15 U.S.C. § 77k(a). The issue of the accuracy and completeness of the Registration, therefore, will form the focus of this action and is common to each and every member of the class. See Weiss v. Tenney Corp., 47 F.R.D. 283, 289 (S.D.N.Y. 1969). The issue of the various named defendants’ culpability in connection with the Registration Statement and Prospectus will also be common to each member of the class. I conclude that the requirement of Rule 23(a)(2) has been met as well. C. Typicality. All parties concede that, whether or not plaintiff is an adequate representative of the class, his securities claims are typical of those of the class he purports to represent. Indeed, since plaintiff and the remaining class members purchased indistinguishable shares of stock in one offering pursuant to a single Registration Statement and Prospectus, their claims are virtually identical. Wolgin v. Magic Marker Corp., supra, at 172; cf. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 449 (3d Cir. 1977). I conclude, therefore, that the requirement of Rule 23(a)(3) is met. D. Adequacy of Representation. Rule 23(a)(4) provides that a member of a class may sue as a “representative part[y] on behalf of all” only if he will “fairly and adequately protect the interests of the class.” The Third Circuit has held that: [ajdequate representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir. 1975); see also In re Fine Paper Antitrust Litigation, 617 F.2d 22, 27 (3d Cir. 1980). The Third Circuit has additionally held that it must appear that the named plaintiff, as well as his attorneys, “will competently, responsibly and vigorously prosecute the suit.”" }, { "docid": "14953261", "title": "", "text": "identical fact pattern, Gerstle v. Continental Airlines, Inc., 50 F.R.D. 213, 219 (D.Colo.1970), and the interests of each member of the class need not be identical. Green v. Wolf Corp., 406 F.2d 291, 299 (2d Cir. 1968), cert. denied sub nom. Troster, Singer & Co. v. Green, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). However, where the legal and factual positions of the representative are “markedly different” from those of the class, even though there are common issues of law or fact, there may be a lack of typicality under Rule 23(a)(3). C. Wright & A. Miller, Federal Practice and Procedure § 1764 (Supp.1978). Factual variations may give rise to two typicality problems. First, such variations may require consideration of legal issues other than those common to the class. . [T]he common issues must occupy “essentially the same degree of centrality” to the named plaintiffs’ claim as to that of other class members. [Citation omitted.] . . . [I]f it is predictable that “a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is not a proper class representative.” [Citation omitted.] Wofford v. Safeway Stores, Inc., supra, 78 F.R.D. at 488-89. Second, variations may disclose that there are differing interests between different groups of class members, which will affect an effective presentation of the claims. Id. at 489. The court in Wofford also noted that the typicality requirement of Rule 23(a)(3) “seems intended to reinforce the adequacy requirement [of Rule 23(a)(4)] by ensuring that the named plaintiffs’ interests are sufficiently aligned with those of class members to assure that they not only can but will press each such claim to a full and equal extent.” Id. at 475. Rule 23(a)(3) has been read to require that the representative’s claim be “squarely aligned in interest” with the purported class, Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 42 (N.D.Cal.1977), and that the representative’s interest be “sufficiently parallel to the interests of the other class members to assure a vigorous representation of" } ]

[ { "docid": "7695237", "title": "", "text": "an independent judiciary. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60, 102 S.Ct. 2858, 2866, 73 L.Ed.2d 598 (1982). In Marathon, the Supreme Court held that Congress’ broad grant of jurisdiction to the bankruptcy courts under the 1978 Act conferred too much of the Article III judicial power of the United States on non-Article III officers. Responding to this concern, the 1984 Act restricts the final adjudicatory authority of the bankruptcy judges to traditional or “core” bankruptcy matters. In “non-core” proceedings only related to a bankruptcy case, the bankruptcy judge is limited to submitting recommendations to the district court. More significantly, under the 1984 Act, the bankruptcy courts are no longer independent of the district courts but are their subordinate adjuncts. The district court retains primary jurisdiction over bankruptcy proceedings. 28 U.S.C. § 1334. Bankruptcy judges are a “unit” of the district court, and their exercise of adjudicatory authority is subject to the “rule or order of the district court.” 28 U.S.C. § 151. Bankruptcy judges are appointed by Article III courts of appeal and are removable by the judicial council of the Circuit. 28 U.S.C. 152(a)(1) and (e). The district court also retains the power to withdraw any proceeding on its own motion or on the motion of any party. 28 U.S.C. § 157(d). This withdrawal power of the district court may be exercised at any time before a final decision has been rendered by the bankruptcy judge. It is this withdrawal mechanism which assures the direct control and authority of the district court over all bankruptcy proceedings and which protects parties from potential abuse of discretion by the bankruptcy judge in the making of the initial core/non-core determination. (Furthermore, the correctness of any ruling by the bankruptcy judge may also be challenged on appeal.) Such administrative control has been held sufficiént to satisfy Article III precepts in the context of the Federal Magistrates Act. Thus, in Pacemaker Diagnostic Clinic v. Instromedix, Inc., 725 F.2d 537 (9th Cir.,1984), cert. denied, — U.S. —, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984), the Ninth Circuit (En" } ]

[ { "docid": "18904030", "title": "", "text": "any or all cases under Title 11 and any or all proceedings arising in or related to a case under Title 11 may be referred to Bankruptcy Judges for the district. Cases in this district come from the August 28, 1986 referral order entitled “In the Matter of The Referral of Matters to the Bankruptcy Judges.” 28 U.S.C. §§ 157(c)(1) and (2) provide that a Bankruptcy Judge may hear non-core proceedings that are otherwise related to a case under Title 11, but may not enter a final order or judgment without the consent of the parties. Instead, the Bankruptcy Judge must submit proposed findings of fact and conclusions of law for the District Court’s de novo review. The distinction between core and non-core is important in at least one respect, that being a Bankruptcy Court’s ability to enter a final order. In a core matter we may enter a final order, but in a non-core matter we may not unless the parties agree otherwise. The distinction, however, does not affect our ability to hear the matter. We have subject matter jurisdiction regardless of its core or non-core status. See, In re WEFCO, Inc., 97 B.R. 749 (E.D.N.Y.1989). “Core” is not defined, nor is it limited to the fifteen nonexclusive categories contained in 28 U.S.C. § 157(b)(2). Some Courts have confined themselves to a narrow approach in ascertaining the scope of what matters may be core, while others have taken a more expansive approach. See, Atlas Fire Apparatus, Inc. v. Beaver (In re Atlas Fire Apparatus, Inc.), 56 B.R. 927, 932, 13 BCD 1304, 14 CBC.2d 429 (Bkrtcy.E.D.N.C.1986) (listing of representative cases within the two camps). The mere characterization of an adversary proceeding within the core terms of 28 U.S.C. §§ 157(b)(2)(A)-(0) will not be dispositive whether the proceeding is core. Taxel v. Commercebank (In re World Financial Services Center, Inc.), supra, 64 B.R. at 986, 15 CBC.2d at 843. Moreover, just because the resolution of the Trustee’s and AM Cable’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core" }, { "docid": "22978238", "title": "", "text": "therein provided. Id. at 62, 102 S.Ct. at 2866. The appellant had made two arguments in support of the 1978 Act. First, it had argued that under Article I Congress may establish legislative courts which possess the jurisdiction to decide cases normally adjudicated by Article III judges. Id., (citing brief for United States at 9). In responding to this argument, the Court cited those rare instances in which Article III did not bar the creation of legislative courts, but nonetheless held that “Article III bars Congress from establishing legislative courts to exercise jurisdiction over all matters related to those arising under bankruptcy laws. The establishment of such courts does not fall within any of the historically recognized situations in which the general principle of independent adjudication commanded by Article III does not apply.” Id. at 76, 102 S.Ct. at 2874. The appellants had further argued that even if the constitution required a bankruptcy-related proceeding to be heard only by an Article III court, a bankruptcy court met this requirement since it was merely an adjunct of the district court. Id. at 76-77, 102 S.Ct. at 2874. In making this argument the appellants relied principally upon Crowel v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932) and U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) where the Supreme Court had approved the utilization of administrative agencies as adjuncts to Article III courts. Marathon, 458 U.S. at 77, 102 S.Ct. at 2874 (citing brief for the United States at 40-42). The Supreme Court disposed of this argument by pointing out that under the 1978 Act, the bankruptcy court has the power to hear “all civil proceedings arising under title 11 or arising in or related to cases under title 11,” 28 U.S.C. § 1471(b) (1976 Ed.Supp. IV), preside over jury trials (§ 1480), issue declaratory judgments (§ 2201), issue writs of habeas corpus (§ 2256), and issue any order, process, or judgment appropriate to the enforcement of the provisions of Title 11,11 U.S.C. § 105(a) (1976 Ed.Supp. IV). The Court stated that “the ‘adjunct’" }, { "docid": "13581207", "title": "", "text": "not specifically identified as a core proceeding under § 157(b)(2)(B) through (N). If Hughes prevailed in this proceeding, the estate would have a greater amount of assets to distribute to its creditors. In this respect, this proceeding could be characterized as one which “affects the administration of the estate” under § 157(b)(2)(A) or one “affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor ... relationship” under § 157(b)(2)(0); however, there are limits to the wide-sweeping language of subsections (A) and (0). The catch-all provisions of sections 157(b)(2)(A) and (0) must be considered in conjunction with the constitutional principles set forth in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). In Marathon, a plurality of the court held that the broad jurisdiction granted to bankruptcy courts was unconstitutional because it allowed bankruptcy courts to hear controversies which are required by the Constitution to be heard by Article III courts. Specifically, the Court stated: [T]he case before us, which centers upon appellant Northern’s claim for damages for breach of contract and misrepresentation, involves a right created by state law, a right independent of and antecedent to the reorganization petition that conferred jurisdiction upon the Bankruptcy Court. Accordingly, Congress’ authority to control the manner in which that right is adjudicated, through assignment of historically judicial functions to a non-Art. Ill “adjunct,” plainly must be deemed at a minimum. Marathon, 458 U.S. at 84, 102 S.Ct. at 2878 (emphasis added; footnote omitted). Thus, this court concludes that “state law contract claims that do not specifically fall within the categories of core proceedings enumerated in 28 U.S.C. § 157(b)(2)(B)-(N) are related proceedings under § 157(c) even if they arguably fit within the literal wording of the two catch-all provisions, sections 157(b)(2)(A) and (O).” Piombo Corp. v. Castlerock Properties (In re Castlerock Properties), 781 F.2d 159, 162 (9th Cir.1986); see also Taxel v. Electronic Sports Research (In re Cinematronics, Inc.), 916 F.2d 1444, 1450 (9th Cir.1990); Marine Iron & Shipbuilding Co. v. City of Duluth (In re Marine Iron" }, { "docid": "11047489", "title": "", "text": "characterization of the Ninth Circuit that the AOUSC “works directly for the federal judiciary,” but “is not an Article III entity.” Tashima v. AOUSC, 967 F.2d 1264, 1269 (9th Cir.1992). Despite its status as part of the judiciary, the AOUSC satisfies neither of the two fundamental attributes of Article III entities: life tenure and guaranteed salary. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The AOUSC is best understood as one of several “administrative agencies” closely associated with Article III courts that have been properly characterized as “non-Article III adjuncts.” Tashima, 967 F.2d at 1269 (internal quotations omitted). The Supreme Court consistently has held that these bodies, “which lack the attributes of life tenure and guaranteed salary, no matter how closely associated with Article III entities they may be, are not Article III entities themselves.” Id. (citing Northern Pipeline, 458 U.S. at 61, 102 S.Ct. 2858, United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), and Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)). “The [AOUSC] was created to perform, and historically has performed, a limited ministerial function. It was not intended to govern or make policy for the Judiciary.... The [AOUSC’s] role was intended to be administrative in the narrowest sense of that term.” Tashima, 967 F.2d at 1271 (internal quotations omitted). While recognizing the critical role the AOUSC performs, the courts zealously have protected their judicial functions from encroachments that threaten judicial independence, including those by non-Article III adjuncts. See Northern Pipeline, 458 U.S. at 84, 102 S.Ct. 2858. Motivated by separation of powers concerns, non-Article III adjuncts are not allowed to engage in judicial policymaking or exert influence over the performance of judicial functions. See Tashima, 967 F.2d at 1269-70. Thus, the AOUSC “was entrusted with no authority over the performance of judicial business.” Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 97, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970) (Harlan, J., concurring). 3. The Tucker Act amendments Defendant argues that" }, { "docid": "18603008", "title": "", "text": "proceeding. Although evidentiary matters outside the pleadings were submitted by Defendants, it does not convert their Rule 12(b)(1) Motion to Dismiss into a motion for summary judgment under F.R.Civ.P. 56 as made applicable to adversary proceedings by Rules of Practice and Procedure in Bankruptcy Rule 7056. A conversion to a Rule 56 motion is proper under Rule 12(b)(6) when evidence outside of the pleadings is considered and not excluded by the Court, not under Rule 12(b)(1). Kamen, supra at 1011. The United States Supreme Court’s holding in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), and later cases warn of constitutional problems caused by Article I Courts overreaching their jurisdictional limitations. 28 U.S.C. § 1334 and 28 U.S.C. § 157, respectively define the source of our sub ject matter jurisdiction and authority to enter orders. Four categories are provided by this jurisdictional scheme: a) A case under Title 11; b) A civil proceeding arising under Title 11; c) A civil proceeding arising in a case under Title 11; and d) A civil proceeding related to a case under Title 11. Taxel v. Commercebank (In re World Financial Services Center, Inc.), 64 B.R. 980, 982, 14 BCD 1306, 15 CBC.2d 836, 838 (Bkrtcy.S.D.Cal.1986). See, Allis-Chalmers Corp. v. Borg-Warner Acceptance Corp. (In re Dr. C. Huff Co., Inc.), 44 B.R. 129, 134, 11 CBC.2d 1039, 40 UCCRS 284 (Bkrtcy.W.D.Ky.1984) (three classes of legal controversies: 1. core cases; 2. non-core related cases; and 3. non-core unrelated cases). Under 28 U.S.C. § 157(a), the District Court may provide that any or all cases under Title 11 and any or all proceedings arising in or related to a case under Title 11 may be referred to Bankruptcy Judges for the District. VLBR 7012 con tains the Bankruptcy Court’s reference for the District of Vermont. The distinction between core and non-core is important in at least one respect, that being a Bankruptcy Court’s ability to enter a final order. 28 U.S.C. §§ 157(c)(1) and (2) provide that a Bankruptcy Judge may hear non-core proceedings that are" }, { "docid": "18904028", "title": "", "text": "1011 (2d Cir.1986); 2A Moore’s Federal Practice, paragraph 12.07[2.-1], at pp. 12-45-12-46 (2d Ed. 1989). Although evidentiary matters outside the pleadings were submitted by both parties in the form of affidavits, this does not convert AM Cable’s “Motion to Dismiss” into a motion for summary judgment under F.R.Civ.P. 56 as made applicable by Rules of Practice and Procedure in Bankruptcy Rule 7056. A conversion to a Rule 56 motion is properly made under Rule 12(b)(6), failure to state a claim, not under Rule 12(b)(1), Kamen, supra, at 1011, and Rule 12(b)(2) or (3). A Rule 12(b)(1) challenge to our subject matter jurisdiction does not place the burden of proof upon the movant. Rather, the burden remains upon the party asserting we have jurisdiction by a preponderance of the evidence. Additionally, a Bankruptcy Court has the independent responsibility to make a 28 U.S.C. § 157(b)(3) determination that this proceeding is or is not a “core” matter or otherwise “related to” the pending Title 11 case. AM Cable directs our attention to the United States Supreme Court’s holding in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), and later eases that warn of constitutional problems caused by Article I Courts overreaching their jurisdictional limitations. 28 U.S.C. § 1334 and 28 U.S.C. § 157, respectively define the source of our subject matter jurisdiction and authority. Four categories are provided by this jurisdictional scheme: a) A case under Title 11; b) A civil proceeding arising under Title 11; c) A civil proceeding arising in a case under Title 11; and d) A civil proceeding related to a case under Title 11. Taxel v. Commercebank (In re World Financial Services Center, Inc.), 64 B.R. 980, 982, 14 BCD 1306, 15 CBC.2d 836, 838 (Bkrtcy.S.D.Cal.1986). See, Allis-Chalmers Corip. v. Borg-Wamer Acceptance Corp. (In re Dr. C. Huff Co., Inc.), 44 B.R. 129, 134, 11 CBC.2d 1039 (Bkrtcy.W.D.Ky. 1984) (three classes of legal controversies: 1. core cases; 2. non-core related cases; and 3. non-core unrelated cases). Under 28 U.S.C. § 157(a), the District Court may provide that" }, { "docid": "18904032", "title": "", "text": "proceeding. 28 U.S.C. § 157(b)(3); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: {T}he ‘adjunct’ bankruptcy courts created'by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowell [Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one-Court interpreted Marathon: {T}he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1986). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., ‘related proceedings’)_ {I}n no way did Marathon implicate the jurisdiction of the bankruptcy courts in other matters within the ‘traditional’ bankruptcy jurisdiction. The Court’s invalidation of the jurisdictional grant was on separability grounds, not on the grounds that bankruptcy courts could not adjudicate traditional bankruptcy matters. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580 (2d Cir.1983) (citation and footnote omitted). In this proceeding, it is undisputed that Debtor, in its capacity as a Chapter" }, { "docid": "1279403", "title": "", "text": "Corp., 94 B.R. 797, 803 (Bankr.D. Mass.1988). That the potential requirement of a jury trial of this adversary proceeding does not require its present removal from the bankruptcy court is a conclusion supported by 28 U.S.C. § 157(c)(1). This jurisdictional provision, passed after the Supreme Court’s decision in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), in an effort to cure constitutional deficiencies noted in that opinion, permits “a bankruptcy judge[to] hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” 28 U.S.C. § 157(c)(1). To avoid the Article III problems examined in Marathon, Congress determined that in such an instance, the bankruptcy court may not enter a final order or judgment without the consent of the parties; as opposed to the situation in a core proceeding, the bankruptcy court’s role in a non-core matter is limited by statute to rendering proposed findings and conclusions which are subject to de novo review by the Article III court. 28 U.S.C. § 157(c)(1) and (2). See also 1 Collier on Bankruptcy § 3.01 at 3-49 — 3-54 (15th ed. 1987). This limitation, however, does not prevent the bankruptcy judge from adjudicating pre-trial interlocutory matters. 1 Collier, § 301 at 3-54. The statute “preserves only ‘final’ orders for entry by the district judge.” In re THB Corp., 94 B.R. 797, 803 (citing, among other decisions, In re Lion Capital Group, 46 B.R. 850, 854 (Bankr.S. D.N.Y.1985)). Thus, if the Terranova’s are correct in characterizing this as a non-core proceeding, the bankruptcy court, nevertheless, has the power to oversee pretrial matters arising in the proceeding, including the power to make interlocutory rulings and make proposed rulings upon any dis-positive motions. In the event of the latter, the statute and Article III are complied with so long as a district court engages in de novo review of any such proposed disposition. See 28 U.S.C. § 157(c)(1); cf. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412-13, 65 L.Ed.2d 424 (1980) (analogous" }, { "docid": "18904029", "title": "", "text": "holding in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), and later eases that warn of constitutional problems caused by Article I Courts overreaching their jurisdictional limitations. 28 U.S.C. § 1334 and 28 U.S.C. § 157, respectively define the source of our subject matter jurisdiction and authority. Four categories are provided by this jurisdictional scheme: a) A case under Title 11; b) A civil proceeding arising under Title 11; c) A civil proceeding arising in a case under Title 11; and d) A civil proceeding related to a case under Title 11. Taxel v. Commercebank (In re World Financial Services Center, Inc.), 64 B.R. 980, 982, 14 BCD 1306, 15 CBC.2d 836, 838 (Bkrtcy.S.D.Cal.1986). See, Allis-Chalmers Corip. v. Borg-Wamer Acceptance Corp. (In re Dr. C. Huff Co., Inc.), 44 B.R. 129, 134, 11 CBC.2d 1039 (Bkrtcy.W.D.Ky. 1984) (three classes of legal controversies: 1. core cases; 2. non-core related cases; and 3. non-core unrelated cases). Under 28 U.S.C. § 157(a), the District Court may provide that any or all cases under Title 11 and any or all proceedings arising in or related to a case under Title 11 may be referred to Bankruptcy Judges for the district. Cases in this district come from the August 28, 1986 referral order entitled “In the Matter of The Referral of Matters to the Bankruptcy Judges.” 28 U.S.C. §§ 157(c)(1) and (2) provide that a Bankruptcy Judge may hear non-core proceedings that are otherwise related to a case under Title 11, but may not enter a final order or judgment without the consent of the parties. Instead, the Bankruptcy Judge must submit proposed findings of fact and conclusions of law for the District Court’s de novo review. The distinction between core and non-core is important in at least one respect, that being a Bankruptcy Court’s ability to enter a final order. In a core matter we may enter a final order, but in a non-core matter we may not unless the parties agree otherwise. The distinction, however, does not affect our ability to hear the" }, { "docid": "18603012", "title": "", "text": "F.2d 90, 96 (5th Cir.1987). Moreover, just because the resolution of some of Trustee’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core proceeding. 28 U.S.C. § 157(b)(3); Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper), supra, 896 F.2d at 1400 (2d Cir.1990); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609, 12 BCD 536, 11 CBC.2d 1216 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: [T]he ‘adjunct’ bankruptcy courts created by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowel [Crowel v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one Court interpreted Marathon: [T]he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1985). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582, 11 BCD 529, 9 CBC.2d 910 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 BCD 201, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., related proceedings). ..." }, { "docid": "1674383", "title": "", "text": "for alleged breaches of contract and warranty, misrepresentation and coercion, by a chapter 11 debtor, Marathon Pipe Line Co. sought dismissal on the basis that former § 1471 unconstitutionally conferred Article III judicial power upon the nation’s bankruptcy judges. Agreeing with Marathon’s argument, a plurality of the Supreme Court concluded: [T]he “adjunct” bankruptcy courts created by the Act exercise jurisdiction behind the facade of a grant to the district courts.... We conclude that 28 U.S.C. § 1471 ... has impermissibly removed most, if not all, of “the essential attributes of the judicial power” from the Art. Ill district court, and has vested those attributes in a non-Art. Ill adjunct. Such a grant of jurisdiction cannot be sustained as an exercise of Congress’ power to create adjuncts to Art. Ill courts. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86-87, 102 S.Ct. 2858, 2879-2880, 73 L.Ed.2d 598 (1982). Dissenting, Justice White maintained that a distinction the plurality sought to make in Northern Pipeline between claims based on state law and those derived from federal law disregarded the real character of bankruptcy proceedings. [I]n the ordinary bankruptcy proceeding the great bulk of creditor claims are claims that have accrued under state law prior to bankruptcy — claims for goods sold, wages, rent, utilities, and the like.... The existence and validity of such claims recurringly depend on state law. Hence, the bankruptcy judge is constantly enmeshed in state-law issues. Northern Pipeline, 458 U.S. at 96-97, 102 S.Ct. at 2884 (White, J., dissenting). Discussing the jurisdiction exercised by bankruptcy referees and judges prior to the 1978 Reform Act, the dissenting opinion recites: Furthermore, I take it that the Court does not condemn as inconsistent with Art. Ill the assignment of these functions — i.e., those within the summary jurisdiction of the old bankruptcy courts — to a non-Art. Ill judge, since, as the plurality says, they lie at the core of the federal bankruptcy power. Ante, [458 U.S.] at 71 [102 S.Ct. at 2871]. They also happen to be functions that have been performed by referees or bankruptcy judges for" }, { "docid": "18904031", "title": "", "text": "matter. We have subject matter jurisdiction regardless of its core or non-core status. See, In re WEFCO, Inc., 97 B.R. 749 (E.D.N.Y.1989). “Core” is not defined, nor is it limited to the fifteen nonexclusive categories contained in 28 U.S.C. § 157(b)(2). Some Courts have confined themselves to a narrow approach in ascertaining the scope of what matters may be core, while others have taken a more expansive approach. See, Atlas Fire Apparatus, Inc. v. Beaver (In re Atlas Fire Apparatus, Inc.), 56 B.R. 927, 932, 13 BCD 1304, 14 CBC.2d 429 (Bkrtcy.E.D.N.C.1986) (listing of representative cases within the two camps). The mere characterization of an adversary proceeding within the core terms of 28 U.S.C. §§ 157(b)(2)(A)-(0) will not be dispositive whether the proceeding is core. Taxel v. Commercebank (In re World Financial Services Center, Inc.), supra, 64 B.R. at 986, 15 CBC.2d at 843. Moreover, just because the resolution of the Trustee’s and AM Cable’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core proceeding. 28 U.S.C. § 157(b)(3); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: {T}he ‘adjunct’ bankruptcy courts created'by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowell [Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one-Court interpreted Marathon: {T}he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a" }, { "docid": "18603010", "title": "", "text": "otherwise related to a case under Title 11, but may not enter a final order or judgment without the consent of the parties. Instead, the Bankruptcy Judge must submit proposed findings of fact and conclusions of law for the District Court’s de novo review. In a core matter we may enter a final order. In some pro- eeedings, we may determine the circumstances are appropriate for us to determine that the parties consented to the entry of a final order despite the absence of an express consent. The distinction between core and non-core should not be confused with our power to hear the matter. We have subject matter jurisdiction regardless of its core or non-core status. See, In re Wefco, Inc., 97 B.R. 749, 19 BCD 423 (E.D.N.Y.1989). The core or non-core distinction affects only our ability to enter a final order. “Core” is not defined, nor is it limited to the fifteen nonexclusive categories contained in 28 U.S.C. § 157(b)(2). Some Courts have confined themselves to a narrow approach in ascertaining the scope of what matters may be core, while others have taken a more expansive approach. See, Atlas Fire Apparatus, Inc. v. Beaver (In re Atlas Fire Apparatus, Inc.), 56 B.R. 927, 932, 14 CBC.2d 429, 13 BCD 1304 (Bkrtcy.E.D.N.C.1986) (listing of representative cases within the two camps). It is now clear in our Circuit the expansive approach applies. Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper, Inc.), 896 F.2d 1394, 1398-1399, 20 BCD 139, 22 CBC.2d 729 (2d Cir.1990) cert. granted, — U.S. -, 110 S.Ct. 3269, 111 L.Ed.2d 779 (1990). The mere characterization of an adversary proceeding within the core terms of 28 U.S.C. §§ 157(b)(2)(A)-(0) will not be dispositive on whether the proceeding is core. Taxel v. Commercebank (In re World Financial Services Center, Inc.), supra, 64 B.R. at 986, 15 CBC.2d at 843 (Bkrtcy.S.D.Cal.1986). For example, matters that are only tangentially related to the administration of the bankruptcy estate, may, in appropriate cases, be non-core related proceedings. See, e.g., Wood v. Wood (In re Wood), 825" }, { "docid": "1674382", "title": "", "text": "because the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (1984), effected unconstitutional legislative appointments of bankruptcy judges in violation of U.S. Const, art. II, § 2, cl. 2. Former section 1471 of title 28 of the United States Code, a provision of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 241(a), 92 Stat. 2668 (1978), enacted in part: Jurisdiction (a) Except as provided in subsection (b)of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11 or arising in or related to cases under title 11. (c) The bankruptcy court for the district in which a case under title 11 is commenced shall exercise all of the jurisdiction conferred by this section on the district courts. When sued in bankruptcy court for alleged breaches of contract and warranty, misrepresentation and coercion, by a chapter 11 debtor, Marathon Pipe Line Co. sought dismissal on the basis that former § 1471 unconstitutionally conferred Article III judicial power upon the nation’s bankruptcy judges. Agreeing with Marathon’s argument, a plurality of the Supreme Court concluded: [T]he “adjunct” bankruptcy courts created by the Act exercise jurisdiction behind the facade of a grant to the district courts.... We conclude that 28 U.S.C. § 1471 ... has impermissibly removed most, if not all, of “the essential attributes of the judicial power” from the Art. Ill district court, and has vested those attributes in a non-Art. Ill adjunct. Such a grant of jurisdiction cannot be sustained as an exercise of Congress’ power to create adjuncts to Art. Ill courts. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86-87, 102 S.Ct. 2858, 2879-2880, 73 L.Ed.2d 598 (1982). Dissenting, Justice White maintained that a distinction the plurality sought to make in Northern Pipeline between claims based on state law and those derived" }, { "docid": "12808211", "title": "", "text": "conclusions of law to the district court. 28 U.S.C. § 157(c)(1). There is currently much uncertainty surrounding what constitutes a core proceeding as opposed to a related proceeding. The amendments, specifically 28 U.S.C. § 157(b)(2), provide a nonexclusive list of those matters which can be characterized as core proceedings. Unfortunately, the term “core proceeding” is not explicitly defined anywhere in the amendments. Thus there are probably two general interpretations regarding the parameters of core jurisdiction as formulated by the 15 types of matters set forth in 28 U.S.C. § 157(b)(2). The “expansive” analysis can be characterized by its view that since Congress has redrawn the bankruptcy courts as adjunct courts subject to considerable control by Article III courts, the definition of core proceedings should be construed to broadly encompass all the types of proceedings which come within the literal meaning of Section 157(b)(2). This viewpoint is based on the premise that the amendments rectify the constitutional infirmities enunciated in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (hereinafter called Marathon). In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985). See also In re Lombard-Wall, Inc., 46 B.R. 365 (S.D.N.Y.1985); Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (D.Ga.1985); In re Marketing Resources Intern Corp., 43 B.R. 71 (Bankr.E.D.Pa.1984). In contrast, the “restrictive” analysis holds that the term “core proceeding” must be interpreted narrowly in light of the constitutional mandate of Marathon. These courts take the view that the amendments do not cure the constitutional defects detailed in Marathon, rather the amendments adjust the bankruptcy court’s jurisdiction so that it comports with guidelines established by the Supreme Court. Thus the list of 15 types of core proceedings must be construed narrowly in order to fit within the constitutional purview of Marathon. The restrictive analysis is the precedent in Colorado and is illustrated by the case, In re Pierce, 44 B.R. 601 (D.Colo.1984) and its progeny; In re Bokum Resources Corp., 49 B.R. 854 (Bankr.D.N.M.1985); In re Illinois-California Express, Inc., 50 B.R. 232 (Bankr.D.Colo.1985). Other cases which have utilized the" }, { "docid": "22978239", "title": "", "text": "of the district court. Id. at 76-77, 102 S.Ct. at 2874. In making this argument the appellants relied principally upon Crowel v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932) and U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) where the Supreme Court had approved the utilization of administrative agencies as adjuncts to Article III courts. Marathon, 458 U.S. at 77, 102 S.Ct. at 2874 (citing brief for the United States at 40-42). The Supreme Court disposed of this argument by pointing out that under the 1978 Act, the bankruptcy court has the power to hear “all civil proceedings arising under title 11 or arising in or related to cases under title 11,” 28 U.S.C. § 1471(b) (1976 Ed.Supp. IV), preside over jury trials (§ 1480), issue declaratory judgments (§ 2201), issue writs of habeas corpus (§ 2256), and issue any order, process, or judgment appropriate to the enforcement of the provisions of Title 11,11 U.S.C. § 105(a) (1976 Ed.Supp. IV). The Court stated that “the ‘adjunct’ bankruptcy courts created by the Act exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowel or Rad-datz.” Marathon, 458 U.S. at 85-86, 102 S.Ct. at 2878-79. Justice Brennan then concluded that the grant of jurisdiction to the bankruptcy court embodied in 28 U.S.C. § 1471 was unconstitutional. Marathon, 458 U.S. at 87, 102 S.Ct. at 2880. THE PRESENT BANKRUPTCY COURT SYSTEM In an attempt to resolve the post Marathon confusion as to structure and authority of the bankruptcy courts, Congress enacted the Bankruptcy Amendments and Federal Judgeship Act of 1984 (“BAFJA”). Under BAFJA, jurisdiction over cases involving Title 11 is conferred upon the district courts, as it had been under Section 1471 of the 1978 Act. However, there is no longer any provision analogous to former Section 1471(c) which authorized the bankruptcy court to exercise “all” such jurisdiction. Rather, BAFJA enacted 28 U.S.C. § 157 which covers the referral of cases. REFERRAL OF CASES Commentators Benjamin" }, { "docid": "18603013", "title": "", "text": "v. Marathon Pipeline Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one Court interpreted Marathon: [T]he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1985). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582, 11 BCD 529, 9 CBC.2d 910 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 BCD 201, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., related proceedings). ... [I]n no way did Marathon implicate the jurisdiction of the bankruptcy courts in other matters within the ‘traditional’ bankruptcy jurisdiction. The Court’s invalidation of the jurisdictional grant was on separability grounds, not on the grounds that bankruptcy courts could not adjudicate traditional bankruptcy matters. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580, 11 BCD 529, 9 CBC.2d 910 (2d Cir.1983) (citation and footnote omitted). As for the Bankruptcy Court’s related jurisdiction, in Turner v. Ermiger (In re Turner), 724 F.2d 338, 341, 11 BCD 728, 10 CBC.2d 782 (2d Cir.1983), our Circuit Court of Appeals applied a narrow scope of “related to” jurisdiction to require a showing of any “significant connection” to the debt- or’s bankruptcy. In Turner, a Chapter 11 debtor had claimed as exempt a contingent cause of action for conversion against her landlord. Afterwards, she filed a complaint against the landlord in Bankruptcy Court. The District Court found jurisdiction to be “related to” under the then existing Emergency Resolution, as within the definition of “ ‘those civil proceedings that, in" }, { "docid": "4688119", "title": "", "text": "on a prepetition contract or account receivable is not a matter at the core of the bankruptcy power. Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71, 102 S.Ct. 2858, 2871, 73 L.Ed.2d 598 (1982) (holding that right to recover contract damages is not “at the core of the federal bankruptcy power”); In re Colorado Energy Supply, Inc., 728 F.2d 1283, 1286 (10th Cir.1984) (“Related proceedings are those civil proceedings that, in the absence of a petition in bankruptcy, could have been brought in a district court or a state court”); In re K-Rom Construction Corp., 46 B.R. 745 (S.D.N.Y.1985) (suit on construction contract a non-core proceeding); In re George Woloch, Inc., 49 B.R. 68 (E.D.Pa.1985) (suit for prepetition accounts receivable a non-core proceeding). In non-core proceedings such as the present, Congress has carefully limited the bankruptcy court’s power. Congress’s 1984 amendments to the bankruptcy code define those limits. Section 157(c)(1) of title 28 provides: A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a proceeding under title 11. In such a proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. Section 157(c) is modeled after the magistrate system, a constitutional system of referral. 1 Collier on Bankruptcy ¶ 3.01[ii] (1986). See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (upholding constitutionality of 1978 Federal Magistrate’s Act, based on district court’s retention of ultimate control over final decisions). See also Marathon, 458 U.S. at 78, 102 S.Ct. at 2875 (distinguishing magistrate system on that basis). Under this new system, bankruptcy judges function as magistrates in non-core matters. The Marathon plurality recognized that such a system does not unconstitutionally erode article III judicial powers so long as “the ultimate decision is made by the district" }, { "docid": "3598577", "title": "", "text": "they have the statutory authority to conduct jury trials. Section 157(b) authorizes bankruptcy courts to “hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11” that are referred by the district court. 28 U.S.C. § 157(b). In addition, Section 157(b) allows the bankruptcy court to enter final orders and judgments in all core proceedings. As the Gaildeen court noted, “this broad grant of jurisdiction would seem to include those cases in which a right to a jury trial exists.” 59 B.R. at 406; See also Dailey, 76 B.R. at 967-68; McCormick, 67 B.R. at 841-42. We find that Congress has authorized bankruptcy courts to conduct jury trials in core procedings. Having determined that bankruptcy courts have statutory authority to, conduct jury trials, we must next determine if their exercise of this authority would be constitutional. The main rationale behind the decisions of those courts holding that bank ruptcy courts cannot conduct jury trials is that this exercise of power is unconstitutional under the Supreme Court’s decision in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Marathon held the Bankruptcy Reform Act of 1978, which had authorized bankruptcy courts to conduct jury trials, unconstitutional. The Court noted that “bankruptcy courts exercise all ordinary powers of district courts, including the power to preside over jury trials....” 458 U.S. at 85, 102 S.Ct. at 2879. The court then held that the Act was unconstitutional because it removed “most, if not all, of the ‘essential attributes of the judicial power’ from the Art. Ill district court,” and placed those attributes in a non-Article III adjunct. 458 U.S. at 87, 102 S.Ct. at 2880. Courts finding that bankruptcy courts cannot conduct jury trials have taken Marathon to mean that a bankruptcy court’s conducting of a jury trial would violate the Constitution. In re Proehl, 36 B.R. 86, 87 (W.D.Va.1984); In re Brown, 56 B.R. 487, 490 (Bkrtcy.D.Md.1984); In re American Energy, Inc., 50 B.R. 175, 181 (Bkrtcy.D.N.D.1985). We, however, agree with" }, { "docid": "18603011", "title": "", "text": "what matters may be core, while others have taken a more expansive approach. See, Atlas Fire Apparatus, Inc. v. Beaver (In re Atlas Fire Apparatus, Inc.), 56 B.R. 927, 932, 14 CBC.2d 429, 13 BCD 1304 (Bkrtcy.E.D.N.C.1986) (listing of representative cases within the two camps). It is now clear in our Circuit the expansive approach applies. Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper, Inc.), 896 F.2d 1394, 1398-1399, 20 BCD 139, 22 CBC.2d 729 (2d Cir.1990) cert. granted, — U.S. -, 110 S.Ct. 3269, 111 L.Ed.2d 779 (1990). The mere characterization of an adversary proceeding within the core terms of 28 U.S.C. §§ 157(b)(2)(A)-(0) will not be dispositive on whether the proceeding is core. Taxel v. Commercebank (In re World Financial Services Center, Inc.), supra, 64 B.R. at 986, 15 CBC.2d at 843 (Bkrtcy.S.D.Cal.1986). For example, matters that are only tangentially related to the administration of the bankruptcy estate, may, in appropriate cases, be non-core related proceedings. See, e.g., Wood v. Wood (In re Wood), 825 F.2d 90, 96 (5th Cir.1987). Moreover, just because the resolution of some of Trustee’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core proceeding. 28 U.S.C. § 157(b)(3); Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper), supra, 896 F.2d at 1400 (2d Cir.1990); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609, 12 BCD 536, 11 CBC.2d 1216 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: [T]he ‘adjunct’ bankruptcy courts created by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowel [Crowel v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co." } ]

[ { "docid": "13959519", "title": "", "text": "determination only if it is clearly erroneous.” Id. With respect to jury instructions properly challenged below, we review “de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party.” United States v. Grigsby, 111 F.3d 806, 814 (11th Cir.1997) (citing United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993)). Our task is “to determine whether the instructions objected to below create ‘a substantial and ineradicable doubt’ that the jury has been misled in its deliberations.” Wood v. Spring Hill College, 978 F.2d 1214, 1218 (11th Cir.1992). The phrasing of special jury interrogatories is reviewed under an abuse of discretion standard; reversal is warranted where the interrogatories have “the potential for confusing or misleading the jury.”' Petes v. Hayes, 664 F.2d 523, 525 (5th Cir.1981). III. A. We turn first to the individual plaintiffs’ argument that the district court erred by allowing defendants’ Batson challenge to white Juror # 9. The Supreme Court has established a three-part test for resolving Equal Protection challenges, under Batson and its progeny, to a party’s attempted peremptory strike. First, the party challenging the peremptory strike must establish a prima facie case of discrimination. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Second, if the court finds that a prima facie case of discrimination is proven, the party making the peremptory strike is afforded the opportunity to articulate a non-discriminatory explanation for the strike. Id. at 96-98, 106 S.Ct. 1712. Third, if a non-discriminatory reason is offered, the court must determine whether the party challenging the strike has met its burden of proving the existence of purposeful discrimination. Id.; see also Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). As this framework makes clear, the establishment of a prima facie case is an absolute precondition to further inquiry into the motivation behind the challenged strike. Indeed, we have stressed that “[n]o party challenging the opposing party’s use of a peremptory strike — whether that party be the government, a criminal defendant, or a civil litigant — is entitled to an" } ]

[ { "docid": "22815836", "title": "", "text": "in FLSA case to prevent cumulative testimony); Dole v. Snell, 875 F.2d 802 (10th Cir.1989). . We review a district court’s rulings on the admissibility of evidence for abuse of discretion and will reverse only if the moving party establishes a substantial prejudicial effect. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1276 (11th Cir.2008). . Family Dollar focuses mainly on these exhibits: (1) a district court decision (Exhibit 1955) and a magistrate judge decision (Exhibit 1954), both finding that a store manager was exempt from the FLSA’s requirements; (2) correspondence to and from DOL Wage and Hour investigators (Exhibits 2249 and 2336) and state investigators (Exhibits 2356, 2357, and 2249); and (3) a report from two psychologists. .Federal Rule of Evidence 403 authorizes district courts to exclude evidence \"if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. . \"The employer bears the burden of establishing both the subjective and objective components of that good faith defense against liquidated damages.” Alvarez Perez, 515 F.3d at 1163; Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1566-67 (11th Cir.1991). . In Alvarez Perez, we explained this conclusion, in part, this way: [Wjhen a jury finds that a defendant's violation is willful for statute of limitations purposes, it has already factored the possibility of good faith into its examination .... Not , only would a district court impermissively be making a finding contrary to the jury’s findings, but ... to find \"good faith” after a finding of \"willful” violation is illogical; the two terms are now mutually exclusive. Alvarez Perez, 515 F.3d at 1165 (quotation marks omitted). . This Court recognized in Alvarez Perez that, in light of its holding, “evidence that an employer acted without willfulness and in good faith makes a difference at this stage only if that evidence compels judgment as a matter of law for the employer.\" Id. at 1167. Based on the Plaintiffs’ evidence discussed" }, { "docid": "23359459", "title": "", "text": "recoveries should be barred because then-tax violations are “connected with the matter in litigation.” However, both of these arguments misstate the test to be applied under Bateman Eichler. Not just any causal relationship or topical connection will do. “The plaintiff must be an active, voluntary participant in the unlawful activity that is the subject of the suit.” Id. at 686, 108 S.Ct. 2063 (emphasis added). Appellants cannot satisfy that test because Feliciano and Milan did not participate in Appellants’ decision whether to pay them overtime wages in accordance with the FLSA. Therefore, the district court was correct to deny Appellants’ motion for judgment as a matter of law based on the in pari delicto doctrine. B. Jury Instructions Next, Appellants argue that two portions of the district court’s jury instructions require a new trial. First, Heidel-berger and MeCarroll contend that the district court gave erroneous instructions on the issue of their individual liability. Second, all Appellants argue that the district court erred in failing to instruct the jury on the fluctuating workweek method of calculating damages. “We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party, but the district court is given wide discretion as to the style and wording employed in the instructions.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir.2008) (internal citations omitted). “We review only for an abuse of discretion a district court’s refusal to give a requested jury instruction.” Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir.2012). “In refusing to give a requested jury instruction, ‘[a]n abuse of discretion is committed only when (1) the requested instruction correctly stated the law, (2) the instruction dealt with an issue properly before the jury, and (3) the failure to give the instruction resulted in prejudicial harm to the requesting party.’ ” Id. (quoting Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1333-34 (11th Cir.2011)). 1. Individual Liability The FLSA creates a private right of action against any “employer” who violates its minimum-wage or overtime" }, { "docid": "16923527", "title": "", "text": "for either a JNOV or a new trial pursuant to Rule 59(b).”). Moreover, even if the defendants had raised a claim about the insufficiency of the emotional distress evidence in their Rule 50(b) motion, the district court still would have been unable to entertain it because the motion had been filed too late. We also reject the defendants’ claim that the district court committed error by allowing testimony that allegedly ran counter to the court’s in limine orders. We review a district court’s rulings on the admissibility of evidence only for abuse of discretion. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir.2008). This is a particularly deferential standard requiring that we affirm a district court’s ruling unless it was manifestly erroneous or constituted a clear error of judgment. United States v. Frazier, 387 F.3d 1244, 1258-59 (11th Cir.2004). We can discern no abuse of discretion in the district court’s rulings. III. The Federal Rules of Bankruptcy Procedure govern cases arising under title 11, including those tried in district court, and Fed. R. Bankr.P. 9015(c) governed the timeliness of the defendants’ Rule 50(b) motion to vacate the jury’s award. Indisputably, the defendants failed to file their motion before the 14-day deadline set by the rule; therefore, we reverse the order finding the defendants’ Rule 50(b) motion timely, vacate the district court’s order granting the defendants relief under Rule 50(b), and remand for the district court to reinstate the jury’s award. As for the evidentiary questions, we affirm the judgment of the district court. AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED. . A full recitation of the factual background surrounding this case may be found in In re Rosenberg, 779 F.3d 1254 (11th Cir.2015). . The full text of the rule provides: “Rule 50 F.R. Civ. P. applies in cases and proceedings, except that any renewed motion for judgment or request for a new trial shall be filed no later than 14 days after the entry of judgment.” Fed. R. Bankr.P. 9015(c)." }, { "docid": "22815799", "title": "", "text": "stores will not get paid overtime at overtime rates, hasn't it? A. Our managers are salaried and have been as far as I know for a long time. . In May 2004, the court denied Family Dollar’s motions for summary judgment, which were based on the statute of limitations, the executive exemption defense, and judicial es-toppel. Family Dollar filed a number of motions for reconsideration, and in July 2004, the court granted Family Dollar summary judgment on the two-year statute of limitations as to 54 Plaintiffs and on the three-year statute of limitations as to eight Plaintiffs. This appeal does not involve those rulings. . Family Dollar repeatedly moved for judgment as a matter of law, including at the close of the evidence and after the jury’s verdict. We review a district court's denial of a motion for judgment as a matter of law de novo. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1275 (11th Cir.2008); Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1299-1300 (11th Cir.2007). “The question before the district court regarding a motion for judgment as a matter of law remains whether the evidence is 'legally suffi cient to find for the party on that issue/ Fed.R.Civ.P. 50(a)(1), regardless of whether the district court's analysis is undertaken before or after submitting the case to the jury.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir.2007). “‘In considering the sufficiency of the evidence that supports the jury's verdict, we review the evidence in the light most favorable to, and with all reasonable inferences in favor of, the nonmoving party.’ If reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions based on the evidence presented, the motion should be denied.” Millennium Partners, L.P., 494 F.3d at 1299-1300 (quoting Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir.1999)). \"We will reverse only if the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict.” Goldsmith, 513 F.3d at 1275 (internal quotation marks omitted). . As provided in the" }, { "docid": "22087791", "title": "", "text": "Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004). “The inquiry into the sufficiency of the government’s evidence produced at trial is a question of law subject to de novo review.” United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990). “The court ... views the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government’s favor.” Id. We will affirm the denial of a motion to acquit if “a reasonable factfinder could conclude that the evidence establishes the defendant’s guilt beyond a reasonable doubt.” Id. We review the denial of a motion to suppress as a mixed question of law and fact; “rulings of. law [are] reviewed de novo and findings of fact [are] reviewed for clear error, in the light most favorable to [the government,] the prevailing party in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007). Evidentiary rulings by the district court are reviewed for an abuse of discretion, United States v. Malol, 476 F.3d 1283, 1291 (11th Cir.2007), and we will “not reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous,” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc) (internal quotation marks omitted). “We review the denial of a motion for a new trial for abuse of discretion.” United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir.2005). “A challenge to a jury instruction presents a question of law subject to de novo review.” United States v. Ndiaye, 434 F.3d 1270, 1280 (11th Cir.2006). “[T]he district court has broad discretion in formulating its charge as long as the charge accurately reflects the law and the facts.” United States v. Chastain, 198 F.3d 1338, 1350 (11th Cir.1999) (internal quotation marks omitted). An issue raised for the first time on appeal is reviewed for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). “Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial and not harmless; and" }, { "docid": "13217732", "title": "", "text": "abuses its discretion where its “decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” United States v. Westry, 524 F.3d 1198, 1214 (11th. Cir. 2008) (quoting United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006)) (internal quotation marks omitted). The district court’s evidentiary rulings will be affirmed \"unless the district court has made a clear error of judgment or has applied an incorrect legal standard.” Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (internal quotation marks omitted) (citing Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1306 (11th Cir. 1999)). However, even a clearly erroneous evidentiary ruling will be affirmed if harmless. See Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984). An error is harmless unless it affects the substantial rights of the parties. Id. (citing Fed. R. Evid. 103; Fed. R. Civ. P. 61); see also Goulah, 118 F.3d at 1483 (stating “[this court] will not overturn an evidentiary ruling unless the moving party proves a substantial prejudicial effect.”). Substantial rights are affected “if one cannot say, with fair assurance ... that the jüdgment was not substantially swayed by the error.” Aetna Cas. & Sur. Co. v. Gosdin, 803 F.2d 1153, 1159-60 (11th Cir. 1986) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed.-1557 (1946)). III. DISCUSSION A. The Sexual Harassment Claim Furcron argues that the district court committed reversible error in excluding portions of Furcron’s Declaration and the entire Declaration of Tameka Johnson. She further argues the district court erred in granting MCP summary judgment on Fur-cron’s sexual harassment claim. For the reasons set forth below, we conclude the exclusion of Johnson’s Declaration was an abuse of discretion. Because resolution of this 'issue is sufficient to dispose of the claim on appeal, we limit our inquiry to addressing only the district court’s eviden-tiary ruling. Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to discriminate against any individual with" }, { "docid": "19333776", "title": "", "text": "regardless of who may have called them, and of all the exhibits received in evidence, regardless of who may have produced them. [But], even though five Plaintiffs are in trial together, when you consider the Plaintiffs’ claims, you must consider them individually. The jury returned verdicts against Hedgeman’s and Carter’s claims of a hostile work environment, and the district court denied their motions for judgments as a matter of law. The 13 employees appeal the summary judgments, and Carter and Hedgeman appeal the jury verdicts. After the parties submitted their briefs in this appeal, Aus-tal filed two motions. In the first motion, Austal asked our Court to supplement the record with the employees’ initial disclo sures. In the second motion, Austal asked us to strike the employees’ expanded record excerpts, which included portions of depositions that they did not submit to the district court. II. STANDARDS OF REVIEW “We review de novo a district court’s grant of summary judgment and draw all inferences and review all evidence in the light most favorable to the nonmoving party.” Hamilton, 680 F.3d at 1318 (internal quotation marks omitted). A court should grant summary judgment only if the movant establishes that there is no genuine dispute as to any material fact. Id. We review evidentiary rulings for an abuse of discretion. Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir.1999). “An abuse of discretion occurs where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” United States v. Jayyousi, 657 F.3d 1085, 1113 (11th Cir.2011) (internal quotation marks omitted). ‘We overturn evidentiary rulings only when the moving party has proved a substantial prejudicial effect.” Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997); see Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir.1984) (explaining that errors in evidentiary rulings are “harmless if it does not affect the substantial rights of the parties”). We review jury instructions de novo to determine whether they misstate the law or mislead the jury to" }, { "docid": "19333777", "title": "", "text": "party.” Hamilton, 680 F.3d at 1318 (internal quotation marks omitted). A court should grant summary judgment only if the movant establishes that there is no genuine dispute as to any material fact. Id. We review evidentiary rulings for an abuse of discretion. Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir.1999). “An abuse of discretion occurs where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” United States v. Jayyousi, 657 F.3d 1085, 1113 (11th Cir.2011) (internal quotation marks omitted). ‘We overturn evidentiary rulings only when the moving party has proved a substantial prejudicial effect.” Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997); see Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir.1984) (explaining that errors in evidentiary rulings are “harmless if it does not affect the substantial rights of the parties”). We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the party who objects to them.” United States v. Campa, 529 F.3d 980, 992 (11th Cir.2008). “If the trial judge’s instructions accurately reflect the law, he or she is given wide discretion as to the style and wording employed in its instruction.” McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir.2002). Under this deferential standard, we examine “whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled.” Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir.1998). We will not reverse the district court unless we are “left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. III. DISCUSSION We divide our discussion in two parts. First, we discuss whether the district court erred when it granted summary judgment against 13 employees on their claims of a racially hostile work environment. Second, we discuss whether the district court abused its discretion in its evidentiary rulings and correctly" }, { "docid": "12376777", "title": "", "text": "to the [P]laintiffs?” The jury answered, “No.” Based on this verdict, the court entered judgment for Ford. This appeal ensued. Plaintiffs challenge (i) the district court’s admission of the NHTSA documents, (ii) the exclusion of the proffered testimony of ex-Ford employee, Larry Bihlmeyer (discussed in more detail below), (iii) the trial court’s refusal to instruct the jury on comparative negligence, (iv) the court’s refusal to instruct the jury that NHTSA’s standards were minimum standards, (v) the court’s given instruction to disregard the evi denee that Ford withheld documents from NHTSA, and (vi) the court’s refusal to instruct on Ford’s “bad faith” destruction of evidence. We affirm. II. We review the district court’s rulings on the admissibility of evidence for abuse of discretion. See Joiner v. General Elec. Co., 78 F.3d 524, 529 (11th Cir.1996), cert. granted, U.S., — U.S.-, 117 S.Ct. 1243, 137 L.Ed.2d 325 (1997). We will not overturn an evidentiary ruling unless the moving party proves a substantial prejudicial effect. See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.), reh’g denied, 114 F.3d 1204 (11th Cir.1997). A. Plaintiffs first contend that the district court abused its discretion by admitting the documents written by NHTSA. According to Plaintiffs, those documents lacked sufficient indicia of trustworthiness to fall within the 803(8)(C) exception to the hearsay rule. Fed.R.Evid. 803(8)(C). Plaintiffs also believe that the admission of the NHTSA documents seriously prejudiced their case. See Fed. R.Evid. 403. We do not reach the merits of Plaintiffs’ arguments, but conclude that Plaintiffs failed to preserve these objections for appeal. Rule 103 of the Federal Rules of Evidence states that reversible error may not be predicated upon a ruling which admits evidence unless “a timely objection or motion to strike appears of record.... ” Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir.) (quoting Fed.R.Evid. 103), reh’g denied, 114 F.3d 1204 (11th Cir.1997). The objecting party must state a “specific ground of objection.” Judd, 105 F.3d at 1342 (quoting Fed.R.Evid. 103). An objection on one ground will not preserve an error for appeal on other grounds. Id. Plaintiffs challenge the admission of 7" }, { "docid": "22097314", "title": "", "text": "v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir.1996). Reversal is warranted for the failure to give a proposed instruction only if this failure prejudiced the requesting party. Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir.1998). We review the award of attorney’s fees and costs for an abuse of discretion, and we review questions of law de novo and subsidiary findings of fact for clear error. Atlanta Journal & Constitution v. City of Atlanta Dep’t of Aviation, 442 F.3d 1283, 1287 (11th Cir.2006) (citing Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir.2000)). III. DISCUSSION Bagby Elevator raises a host of arguments about the judgment entered against it after the jury trial. Some issues involve the ultimate outcome of the trial, such as whether Bagby Elevator was entitled to a judgment as a matter of law or Goldsmith was entitled to an award of punitive damages. Some issues involve the conduct of the trial, such as the admission of evidence and jury instructions. One issue involves a pretrial ruling about an amendment of the complaint to assert a claim that was later dismissed. A final issue involves the post-trial award of attorney’s fees and costs. In all, Bagby Elevator raises eleven separate issues on appeal. We first discuss the three issues about the ultimate outcome: (1) whether Bagby Elevator was entitled to a judgment as a matter of law regarding Goldsmith’s claim of retaliation; (2) whether we need to address any issue regarding the verdict of the jury that Goldsmith was terminated on the basis of race; and (3) whether the district court erred when it refused to reverse or remit the $500,000 award of punitive damages. We then turn to the six issues about the conduct of the trial: (1) whether the district court abused its discretion when it admitted evidence of discrimination and retaliation against Goldsmith’s coworkers by Bagby Elevator; (2) whether the district court erred when it failed to give the jury an instruction proposed by Bagby Elevator that would have prohibited consideration of evidence of discrimination and retaliation against" }, { "docid": "22097313", "title": "", "text": "v. Gen. Elec. Co., 78 F.3d 524, 529 (11th Cir.1996)). We will not overturn an evidentiary ruling unless the moving party establishes a substantial prejudicial effect. Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997) (citing King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir.1978)). We review a grant of leave to amend the pleadings for abuse of discretion. Walker v. S. Co. Servs., Inc., 2,12 F.3d 1289, 1291 (11th Cir.2002). We will not reverse if an error of the district court is harmless, and the standard for harmless error is whether the complaining party’s substantive rights were affected. SEC v. Diversified Corp. Consulting Group, 378 F.3d 1219, 1228 (11th Cir.2004). We also give deference to decisions about jury instructions. We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party, United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993), but the district court is given wide discretion as to the style and wording employed in the instructions, Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir.1996). Reversal is warranted for the failure to give a proposed instruction only if this failure prejudiced the requesting party. Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir.1998). We review the award of attorney’s fees and costs for an abuse of discretion, and we review questions of law de novo and subsidiary findings of fact for clear error. Atlanta Journal & Constitution v. City of Atlanta Dep’t of Aviation, 442 F.3d 1283, 1287 (11th Cir.2006) (citing Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir.2000)). III. DISCUSSION Bagby Elevator raises a host of arguments about the judgment entered against it after the jury trial. Some issues involve the ultimate outcome of the trial, such as whether Bagby Elevator was entitled to a judgment as a matter of law or Goldsmith was entitled to an award of punitive damages. Some issues involve the conduct of the trial, such as the admission of evidence and jury instructions. One issue involves a pretrial" }, { "docid": "19487708", "title": "", "text": "moved for summary judgment and objected to the paragraph of Dye's declaration that alleged retaliation. A magistrate judge issued a report and recommendation that granted the objection to this paragraph on the ground that a declaration must be based on \"a witness's personal knowledge\" and that \"no portion of the declaration establishe[d] the foundation for Dye's opinion.\" The magistrate judge then recommended granting summary judgment in favor of Sewon. The district court agreed with the magistrate judge's recommendation and granted summary judgment in favor of Sewon. With respect to Jefferson's claim that Sewon refused to transfer her for discriminatory reasons, the district court reasoned that Jefferson failed to establish a prima facie case of discrimination because she did not suffer an \"adverse employment action\" when Sewon refused to transfer her to the information technology department. In the alternative, the district court ruled that Jefferson failed to establish that the job qualifications for the information-technology position cited by Sewon were pretextual. With respect to Jefferson's claim that Sewon fired her for discriminatory reasons, the district court concluded that the termination was not discriminatory \"under a holistic view of the evidence.\" Finally, it determined that Jefferson could not establish that Sewon fired her in retaliation for her complaint: it approved the exclusion of Dye's allegation, ruled that Jefferson's complaint was not \"protected conduct,\" and ruled that Jefferson failed to establish that retaliation was the but-for cause of her termination because she \"failed to rebut Sewon's proffered reasons for her termination.\" II. STANDARDS OF REVIEW \"We review an entry of summary judgment de novo , construing all facts and drawing all reasonable inferences in favor of the nonmoving party.\" Jones , 683 F.3d at 1291-92 (italics added). We examine claims of discrimination and retaliation under the same legal framework regardless of whether the plaintiff invokes section 1981 or section 2000e. See Chapter 7 Trustee v. Gate Gourmet, Inc. , 683 F.3d 1249, 1256-57 (11th Cir. 2012) (discrimination); Goldsmith v. Bagby Elevator Co. , 513 F.3d 1261, 1277 (11th Cir. 2008) (retaliation). And we review evidentiary rulings for abuse of discretion. Furcron v. Mail" }, { "docid": "20451808", "title": "", "text": "reason for this particular raise-it-or-lose-it rule is that if the inconsistency is raised before the jury is discharged, the jury can be sent back for further deliberations to resolve the inconsistency in its verdict or interrogatory answers. Once the jury is gone, and has been free to talk to others about the case, that is not possible. Bob Tyler Toyota did not mention any inconsistency in the interrogatory answers until about a month after the jury rendered its verdict. That was way too late. D. Bob Tyler Toyota’s remaining contentions are directed at the denial of its renewed motion for judgment as a matter of law based on the sufficiency of the evidence and the denial of its motion for a new trial based on the weight of the evidence. 1. We review de novo the denial of a motion for judgment as a matter of law, which necessarily means that we apply the same standard as the district court. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1275 (11th Cir.2008). That standard is heavily weighted in favor of preserving the jury’s verdict. In applying it, “we consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party. We then determine whether, in this light, there was any legally sufficient basis for a reasonable jury to find in favor of the nonmoving party.” Advanced Bodycare Solutions, LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1360 (11th Cir.2010) (quotation marks, citation, and alterations omitted). That determination is substantially guided by the principle that “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.2004) (quotation marks omitted). It necessarily follows that we must “disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. Bob Tyler Toyota’s entitlement to judgment as a matter of law on its anticybersquatting act claim turns on whether there was enough evidence for the jury to" }, { "docid": "16923526", "title": "", "text": "was insufficient to establish emotional distress. Rather, the defendants only argued in their Rule 50(b) motion that the jury lacked a legally sufficient evidentiary basis to find bad faith and award punitive damages as well as damages for loss of wages and loss of reputation. The failure to renew the insufficiency claim as to emotional distress in a post-verdict Rule 50(b) motion, despite every opportunity to do so, is fatal to the defendants’ argument on appeal. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006) (holding that a circuit court is “powerless” to set aside a jury verdict based on insufficiency of the evidence where a party fails to raise the claim in a post-verdict Rule 50(b) motion, even where the party raised the issue in a pre-verdict Rule 50(a) motion); Hi Ltd. P’ship v. Winghouse of Fla., Inc., 451 F.3d 1300, 1302 (11th Cir.2006) (“Filing a pre-verdict, Rule 50(a) motion for judgment as a matter of law cannot excuse a party’s post-verdict failure to move for either a JNOV or a new trial pursuant to Rule 59(b).”). Moreover, even if the defendants had raised a claim about the insufficiency of the emotional distress evidence in their Rule 50(b) motion, the district court still would have been unable to entertain it because the motion had been filed too late. We also reject the defendants’ claim that the district court committed error by allowing testimony that allegedly ran counter to the court’s in limine orders. We review a district court’s rulings on the admissibility of evidence only for abuse of discretion. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir.2008). This is a particularly deferential standard requiring that we affirm a district court’s ruling unless it was manifestly erroneous or constituted a clear error of judgment. United States v. Frazier, 387 F.3d 1244, 1258-59 (11th Cir.2004). We can discern no abuse of discretion in the district court’s rulings. III. The Federal Rules of Bankruptcy Procedure govern cases arising under title 11, including those tried in district court, and Fed. R." }, { "docid": "3677516", "title": "", "text": "proceedings arbitrarily, discriminatorily and/or in bad faith; and (3) that the Union’s breach materially affected the outcome of Bianchi’s grievance hearing. Roadway then filed a motion for judgment as a matter of law, renewing its contention that Bianchi had waived his bad faith/bias argument, or, in the alternative, a motion for new trial. The district court denied the motions without explanation and entered judgment for Bianchi in accordance with the jury’s verdict. This appeal follows. III. ISSUES PRESENTED A. Whether the district court erred by denying Roadway’s motion for judgment as a matter of law because Bianchi had waived his objection of bad faith/bias by failing to raise it before his grievance panel, and therefore the evidence at trial was insufficient to support a jury finding that the Union had breached its DFR? B. Whether the district court abused its discretion by refusing to grant Roadway’s motion for a new trial on evidentiary grounds? IV. STANDARDS OF REVIEW A. Judgment as a Matter of Law A district court’s denial of a defendant’s motion for judgment as a matter of law is reviewed de novo, applying the same legal standard as the district court. See Dade County, Fla. v. Alvarez, 124 F.3d 1380, 1383 (11th Cir.1997). The sufficiency of a hybrid Section 301 plaintiffs DFR allegations is a question of law that is also reviewed de novo. See Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (11th Cir.1982). A ruling on the issue of waiver of arbitration is also reviewed de novo. See Ivax Corp. v. B. Braun of America, Inc., 286 F.3d 1309, 1316 (11th Cir.2002). B. Motion for New Trial We review the district court’s denial of a motion for new trial for abuse of discretion. See Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1463 (11th Cir.1994). V. DISCUSSION A. Judgment as a Matter of Law 1. Waiver a. Bianchi’s Contentions in General and as to Waiver Bianchi claims that Marr’s hostility towards him caused Marr to represent him at his grievance panel hearing in bad faith and in an arbitrary and discriminatory" }, { "docid": "13217731", "title": "", "text": "the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The Federal Rules of Civil Procedure require “the court ... examine any pleadings, depositions, answers to interrogatories, admissions, and affidavits in a light that is most favorable to. the non-moving party.” Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999) (citing Fed. R. Civ. P. 56(c)). Put differently, we must “view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.” Findwhat, 658 F.3d at 1307. Thus, the Court “may not weigh conflicting evidence or make - credibility determinations of its own.” Id. We review the district court’s rulings on the admission of evidence for abuse of discretion. Goulah v. Ford Motor Co., 118 F.3d 1478, 1483 (11th Cir. 1997). A district court abuses its discretion where its “decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” United States v. Westry, 524 F.3d 1198, 1214 (11th. Cir. 2008) (quoting United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006)) (internal quotation marks omitted). The district court’s evidentiary rulings will be affirmed \"unless the district court has made a clear error of judgment or has applied an incorrect legal standard.” Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (internal quotation marks omitted) (citing Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1306 (11th Cir. 1999)). However, even a clearly erroneous evidentiary ruling will be affirmed if harmless. See Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984). An error is harmless unless it affects the substantial rights of the parties. Id. (citing Fed. R. Evid. 103; Fed. R. Civ. P. 61); see also Goulah, 118 F.3d at 1483 (stating “[this court] will not overturn" }, { "docid": "19989197", "title": "", "text": "the two claims because (1) at St. Luke’s request, the district court declined to instruct the jury to adjust its damages award to avoid double recovery and (2) St. Luke’s advised the jury that it should not adjust its award to avoid double recovery. . The district court denied St. Luke's motion for reconsideration of its damages determination. . We review a district court’s denial of a motion for a new trial for an abuse of discretion. Lambert v. Fulton County, 253 F.3d 588, 595 (11th Cir.2001). \"This level of deference is particularly appropriate where a new trial is denied and the jury’s verdict is left undisturbed.” Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir.1987). \"[N]ew trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great— not merely the greater — weight of the evidence.” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.2001) (citation and internal quotation marks omitted). . We review a district court's determination regarding duplicative damages for clear error. See Meader By and Through Long v. United States, 881 F.2d 1056, 1060 (11th Cir. 1989) (reviewing district court's damages award of future medical expenses for clear error where the government argued that the award was \"excessive and duplicative” (quotation marks omitted)); see also Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 (10th Cir. 2008) (\"Whether an award is duplicative is a question of fact, which we review for clear error.\"); Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 580 (6th Cir.1994) (\"We conclude that the question whether damage awards are duplicative is one of fact, and we will therefore review the district court’s determination for clear error.”). . We review a district court’s rulings on the admissibility of expert testimony for an abuse of discretion. See United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc). . We review de novo a district court’s denial of a motion for judgment as a matter of law. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261," }, { "docid": "22165619", "title": "", "text": "the record. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir.2008); see also Orser v. United States, 362 F.2d 580, 586 (5th Cir.1966) (finding the defendant was not prejudiced by the admission of “testimony for the wrong reason ..., because the testimony was clearly admissible for a different reason”). This is so because “[w]e can uphold the decision of the district court on any grounds that appear in the record.” Goldsmith, 513 F.3d at 1286; see also Powers v. United States, 996 F.2d 1121, 1123-24 (11th Cir.1993) (affirming district court “but for reasons other than those used by the district court”). In short, the district court did not err, let alone plainly err, in admitting Detective Wharton’s statement. Its admission did not violate the Sixth Amendment’s Confrontation Clause. But, even if we were to assume that it was error to admit this evidence and the error was plain, it did not affect the defendant’s substantial rights, nor did it seriously affect the fairness, integrity, or reputation of the judicial proceeding. This is not a close case where Jisklifs statement that Jiminez participated in the crime tipped the balance of evidence in favor of conviction. Instead, as we have noted, this is a case where the defendant was found living in a house that contained massive evidence of a large-scale, sophisticated marijuana grow operation in every room, including the defendant’s bedroom, and where the defendant confessed to participating in the marijuana grow operation. IV. Finally, we reject Jiminez’s suggestion that the district court abused its discretion in admitting evidence of the marijuana grow house located at 1701 Champagne Road because the evidence was purportedly irrelevant and prejudicial. See Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir.2005) (explaining that a district court’s evidentiary rulings are reviewed for abuse of discretion). The evidence regarding the Champagne Road house was relevant to the conspiracy. Police officers had observed multiple vehicles traveling back and forth between the Lake Lowery Road and Champagne Road houses. And, just prior to searching the grow house, they observed a black truck" }, { "docid": "22815835", "title": "", "text": "the pretrial conference, but my partner was. THE COURT: Well, Plaintiffs’ Exhibit 297 as offered by the plaintiff is not received in evidence, but it will be a part of the record. Any other evidence from either party? . Although Plaintiffs’ offer of the deposition testimony was not received in evidence, the court ruled that it would “be a part of the record.’’ . Family Dollar’s cross-examination of Plaintiffs' witnesses did not count against its 40 hours unless its cross-examination time exceeded that of Plaintiffs’ direct-examination. There is no indication in the briefs that Family Dollar’s cross-examination reduced any of its 40 hours. . Congress abrogated a portion of the Mt. Clemens opinion not relevant here with the passage of the Portal-to-Portal Act, Pub.L. No. 49-52, 61 Stat. 87 (1947). See 29 U.S.C. § 251; United States v. Cook, 795 F.2d 987, 990-91 (Fed.Cir.1986). . Even in non-Mf. Clemens-lype cases, courts have authorized representative testimony in FLSA cases. See, e.g., Burger King I, 672 F.2d at 225 (authorizing district court to rely on representative testimony in FLSA case to prevent cumulative testimony); Dole v. Snell, 875 F.2d 802 (10th Cir.1989). . We review a district court’s rulings on the admissibility of evidence for abuse of discretion and will reverse only if the moving party establishes a substantial prejudicial effect. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1276 (11th Cir.2008). . Family Dollar focuses mainly on these exhibits: (1) a district court decision (Exhibit 1955) and a magistrate judge decision (Exhibit 1954), both finding that a store manager was exempt from the FLSA’s requirements; (2) correspondence to and from DOL Wage and Hour investigators (Exhibits 2249 and 2336) and state investigators (Exhibits 2356, 2357, and 2249); and (3) a report from two psychologists. .Federal Rule of Evidence 403 authorizes district courts to exclude evidence \"if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. . \"The employer bears the burden of" }, { "docid": "19989198", "title": "", "text": "damages for clear error. See Meader By and Through Long v. United States, 881 F.2d 1056, 1060 (11th Cir. 1989) (reviewing district court's damages award of future medical expenses for clear error where the government argued that the award was \"excessive and duplicative” (quotation marks omitted)); see also Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 (10th Cir. 2008) (\"Whether an award is duplicative is a question of fact, which we review for clear error.\"); Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 580 (6th Cir.1994) (\"We conclude that the question whether damage awards are duplicative is one of fact, and we will therefore review the district court’s determination for clear error.”). . We review a district court’s rulings on the admissibility of expert testimony for an abuse of discretion. See United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc). . We review de novo a district court’s denial of a motion for judgment as a matter of law. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1275 (11th Cir.2008); Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1299-1300 (11th Cir.2007). \" ‘In considering the sufficiency of the evidence that supports the jury’s verdict, we review the evidence in the light most favorable to, and with all reasonable inferences in favor of, the nonmoving party.’ If reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions based on the evidence presented, the motion should be denied.” Millennium Partners, L.P., 494 F.3d at 1299-1300 (quoting Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir. 1999)) (internal quotation marks omitted). “We will reverse only if the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict.” Goldsmith, 513 F.3d at 1275 (internal quotation marks omitted). . We review an award of attorney’s fees and costs for abuse of discretion. Gray ex rel. Alexander v. Bostic, 570 F.3d 1321, 1323-24 (11th Cir.2009); Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir.2001); ACLU" } ]

[ { "docid": "18357610", "title": "", "text": "all plan payments are made. Slusher, 359 B.R. at 304. Although that is true, there is nothing inappropriate or pernicious about such a result. Nothing in the Code limits a debtor’s ability to pre-pay plan payments, as they often do when they sell or refinance their home. In re Mangum, 343 B.R. at 189; see also In re Sunahara, 326 B.R. 768, 782 (9th Cir. BAP 2005); In re Forte, 341 B.R. 859 (Bankr.N.D.Ill.2005); In re Miller, 325 B.R. 539, 542 (Bankr.W.D.Pa.2005); In re Richardson, 283 B.R. 783, 801-02 (Bankr.D.Kan.2002). Prepayment allows creditors to be paid sooner rather than later and a debtor’s otherwise significant risk of failure in chapter 13 is eliminated. In re Mangum, 2007 WL 495300, *4 (N.D.Ill. Feb.12, 2007) Thus, the possibility of pre-payment by a debtor provides no justification for interpreting the applicable commitment period as a minimum time frame rather than a multiplier establishing a minimum amount to be paid to unsecured creditors. In fact, interpreting § 1325(B)(1)(b) to require a debtor to remain in bankruptcy when no more money is owed to creditors seems to have no point other than to punish debtors by delaying discharge and the “fresh start” to which they are entitled. Conclusion For the reasons stated above, the debtors’ proposed plan satisfies the requirements of § 1325(b)(1) and will be confirmed. . Another \"floor” for the amount unsecured creditors must receive in a chapter 13 case is provided by § 1325(a)(4), which requires a debtor to pay unsecured creditors at least as much as they would receive in a chapter 7 case. . One court has concluded that the requirements of § 1325(b)(1)(B) simply do not apply if there is no projected disposable income. In re Alexander, 344 B.R. 742, 751 (Bankr.E.D.N.C.2006), This is another way of coming to the same sensible conclusion." } ]

[ { "docid": "13568541", "title": "", "text": "that, if the trustee or the holder of an allowed unsecured claim objects to confirmation of a Chapter 13 plan that provides for a less than full recovery for unsecured claimants, the plan cannot be confirmed unless its length is equal to the applicable commitment period; according to these courts, this temporal requirement applies whether the debtor has positive, zero or negative projected disposable income. See, e.g., Whaley v. Tennyson (In re Tennyson), 611 F.3d 873, 877-78 (11th Cir.2010); In re King, No. 10-18139, 2010 WL 4363173, at *2 (Bankr.D.Colo. Oct.27, 2010); Baxter v. Turner (In re Turner), 425 B.R. 918, 920-21 (Bankr.S.D.Ga.2010); In re Moose, 419 B.R. 632, 635-36 (Bankr. E. D.Va.2009); In re Meadows, 410 B.R. 242, 245-47 (Bankr.N.D.Tex.2009); In re Brown, 396 B.R. 551, 554-55 (Bankr. D.Colo.2008); In re Lanning, Nos. 06-41037, 06-41260, 2007 WL 1451999, at *7-8 (Bankr.D.Kan. May 15, 2007), aff'd, 380 B.R. 17 (10th Cir.BAP 2007), aff'd, 545 F. 3d 1269 (10th Cir.20008), aff'd, - U.S. -, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010); In re Kidd, 374 B.R. 277, 280 (Bankr.D.Kan.2007); In re Nance, 371 B.R. 358, 369-70 (Bankr.S.D.Ill.2007); In re Beckerle, 367 B.R. 718, 719-21 (Bankr. D. Kan.2007); In re Pohl, No. 06-41236, 2007 WL 1452019, at *3 (Bankr.D.Kan. May 15, 2007); In re Strickland, No. 06-81060C-13D, 2007 WL 499623, at * l-*2 (Bankr.M.D.N.C. Feb.13, 2007); In re Casey, 356 B.R. 519, 527-28 (Bankr. E. D.Wash.2006); In re Davis, 348 B.R. 449, 456-58 (Bankr.E.D.Mich.2006). The United States Court of Appeals for the Eighth Circuit and other courts have held that, if the trustee or the holder of an allowed unsecured claim objects to the confirmation of a Chapter 13 plan of a debtor with positive projected disposable income whose plan provides for a less than full recovery for unsecured claimants, the plan cannot be confirmed unless its length is equal to the applicable commitment period; these courts, however, have declined to decide whether this temporal requirement applies when the debtor has zero or negative projected disposable income. See Coop v. Frederickson (In re Frederickson), 545 F.3d 652, 660 & n. 6 (8th" }, { "docid": "3456211", "title": "", "text": "plan term of sixty months, which, according to the trustee, is mandated by 11 U.S.C. § 1325(b)(4). That section provides that unless allowed unsecured claims are paid in full, the debtor must propose a plan with an “applicable commitment period” of not less than five years. Id. Thus, the trustee argues that the “applicable commitment period” is a temporal requirement, with which the debtor has failed to comply. The debtor rejects the trustee’s argument on two grounds. First, he contends that the “applicable commitment period” is not a temporal requirement at all, but merely a multiplier used to determine the pool of money payable to unsecured creditors. Alternatively, the debtor contends that even if the phrase “applicable commitment period” were construed to be temporal, it does not apply in cases where the debtor has no projected disposable income. This issue has been well-vetted in the courts. Three lines of authorities have developed. The first line of authorities holds that the phrase “applicable commitment period” is temporal and, thus, requires above-median-income debtors to pay their creditors in full or commit to a plan whose term is sixty months in length. In re Nance, 371 B.R. 358, 369 (Bankr. S.D.Ill.2007); In re Grant, 364 B.R. 656, 667 (Bankr.E.D.Tenn.2007); In re Slusher, 359 B.R. 290, 305 (Bankr.D.Nev.2007); In re Casey, 356 B.R. 519, 527 (Bankr. E.D.Wash.2006); In re Schanuth, 342 B.R. 601, 607 (Bankr.W.D.Mo.2006). The second line of authorities adopts the multiplier approach that the debtor urges this court to follow. The advocates of this approach say that the function of the “applicable commitment period” is to provide a factor by which the debtor’s projected disposable income must be multiplied in order to determine the amount of the unsecured creditors’ pool. In re Lopatka, 400 B.R. 433, 440 (Bankr.M.D.Pa.2009); In re Swan, 368 B.R. 12, 27 (Bankr.N.D.Cal.2007); In re Mathis, 367 B.R. 629, 634 (Bankr.N.D.Ill.2007); In re Brady, 361 B.R. 765, 776 (Bankr.D.N.J.2007); In re Fuger, 347 B.R. 94, 95 (Bankr.D.Utah 2006). Under this approach, the function of the “applicable commitment period” is fulfilled as long as the debtor proposes a plan that" }, { "docid": "18269878", "title": "", "text": "(emphasis added). Section 1325(b)(4) then specifies what the various commitment periods are. Pursuant to § 1325(b)(4)(A)(ii), the “applicable commitment period” for above-median income debtors, such as the debtors in these cases, is five years unless the plan proposes to pay all allowed unsecured claims in full in a shorter period of time. 11 U.S.C. § 1325(b)(4)(A)(ii). The debtors assert that the introduction of an “applicable commitment period” does not require them to make plan payments for a specific period of time. Rather, they maintain that the “applicable commitment period” is merely the multiplier to be used in calculating the amount of disposable income that must be paid to unsecured creditors. Proponents of this “monetary approach” suggest that the language of § 1325(b)(1)(B) regarding an applicable commitment period simply relates to the projection and calculation of a fixed sum, which is based on a debtor’s disposable income multiplied by the length of the “applicable commitment period” for that debtor. Under this interpretation, this sum may then be paid off in less than 36 months for below-median income debtors or in less than 60 months for above-median income debtors without violating § 1325(b)(4)(B). See In re Swan, 2007 WL 1146485 (Bankr.N.D.Cal., April 18, 2007); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007); In re Fuger, 347 B.R. 94 (Bankr.D.Utah 2006). This Court, like the majority of courts which have addressed this issue, declines to adopt the monetary interpretation. While the “applicable commitment period” certainly does function as a multiplicand for calculating the amount to be paid to unsecured creditors, the plain language of §§ 1325(b)(1)(B) and (b)(4) indicate that the “applicable commitment period” is also a temporal concept which mandates that above-median income debtors submit then-projected disposable income into the plan for a period of five years. In re Luton, 363 B.R. 96 (Bankr.W.D.Ark.2007); In re Schanuth, 342 B.R. 601 (Bankr.W.D.Mo.2006); In re Cushman, 350 B.R. 207 (Bankr.D.S.C.2006); In re Davis, 348 B.R. 449 (Bankr.E.D.Mich.2006). By its everyday, accepted meaning, the word “period” connotes a measurement of time. “Period” is defined as “a portion of time.” Webster’s Collegiate Dictionary 864 (10th ed.1996). Similarly," }, { "docid": "4017154", "title": "", "text": "and a “temporal” requirement. In re Brady, 361 B.R. 765, 776 (Bankr.D.N.J.2007), citing Alane A. Becket and Thomas A. Lee, III, Applicable Commitment Period: Time or Money?, 25-MAR Am. Bankr. Inst. J. 16 (2006). Creditor espouses the view that the phrase “applicable commitment period” imposes a temporal requirement that Debtor must commit to a plan for a specific amount of time — in this case, five years. Some courts have adopted this position. Slusher, 359 B.R. at 300; In re Casey, 356 B.R. 519, 527 (Bankr.E.D.Wash.2006); In re Cushman, 350 B.R. 207, 212 (Bankr.D.S.C.2006); In re Davis, 348 B.R. 449, 458 (Bankr.E.D.Mich.2006); Dew, 344 B.R. at 661; McGuire, 342 B.R. at 615. Debtor takes the position that “applicable commitment period” constitutes a monetary requirement such that, in order to be confirmed, Debtor’s three-year Plan must provide for payment of her projected disposable income multiplied by the applicable commitment period. In this case, the relevant calculation is $59.50 projected disposable income according to Form B22C multiplied by the 60 month applicable commitment period equals $3,570. Debtor argues that the Plan satisfies the requirements of the Code, and therefore may be confirmed, because it proposes to pay $18,900 over 36 months, which is over five times more than Debtor’s projected disposable income over the applicable commitment period of $3,570. Cases supporting Debtor’s position include Brady, and In re Fuger, 347 B.R. 94 (Bankr.D.Utah 2006). Bankruptcy Judge Keith M. Lun-din takes the same view in his chapter 13 treatise. See 5 Keith M. Lundin, Chapter 13 Bankruptcy §§ 500.1 at 500-2 (3d ed. 2006)(“The applicable commitment period does not require that the debtor actually make payments for any particular period of time. Rather it is the multiplier in a formula that determines the amount of disposable income that must be paid to unsecured creditors.”) The logic of Debtor’s position is straightforward. Unsecured creditors will receive more under the Plan than is required by the Code. Specifically, in this case, unsecured creditors will receive more than five times what the Code requires ($18,900 compared with $3,570), and they will receive it more quickly under" }, { "docid": "13568542", "title": "", "text": "277, 280 (Bankr.D.Kan.2007); In re Nance, 371 B.R. 358, 369-70 (Bankr.S.D.Ill.2007); In re Beckerle, 367 B.R. 718, 719-21 (Bankr. D. Kan.2007); In re Pohl, No. 06-41236, 2007 WL 1452019, at *3 (Bankr.D.Kan. May 15, 2007); In re Strickland, No. 06-81060C-13D, 2007 WL 499623, at * l-*2 (Bankr.M.D.N.C. Feb.13, 2007); In re Casey, 356 B.R. 519, 527-28 (Bankr. E. D.Wash.2006); In re Davis, 348 B.R. 449, 456-58 (Bankr.E.D.Mich.2006). The United States Court of Appeals for the Eighth Circuit and other courts have held that, if the trustee or the holder of an allowed unsecured claim objects to the confirmation of a Chapter 13 plan of a debtor with positive projected disposable income whose plan provides for a less than full recovery for unsecured claimants, the plan cannot be confirmed unless its length is equal to the applicable commitment period; these courts, however, have declined to decide whether this temporal requirement applies when the debtor has zero or negative projected disposable income. See Coop v. Frederickson (In re Frederickson), 545 F.3d 652, 660 & n. 6 (8th Cir.2008), cert., denied, - U.S.-, 129 S.Ct. 1630, 173 L.Ed.2d 997 (2009); In re Wirth, 431 B.R. 209, 213 (Bankr.W.D.Wis.2010); In re Slusher, 359 B.R. 290, 300 n. 17 (Bankr. D.Nev.2007). The United States Court of Appeals for the Ninth Circuit as well as other courts have held that § 1325(b), although not establishing a minimum plan duration, does require a debtor with positive projected disposable income facing a plan objection and whose plan provides for a less than full recovery for unsecured claimants to pay unsecured creditors for the duration of the applicable commitment period, but that this temporal requirement does not apply if the debtor has zero or negative projected disposable income. See, e.g., Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868, 875-77 (9th Cir.2008); Musselman v. eCast Settlement Corp., 394 B.R. 801, 814 (E.D.N.C.2008); In re Green, 378 B.R. 30, 38 (Bankr. N.D.N.Y.2007); In re Lawson, 361 B.R. 215, 220 (Bankr.D.Utah 2007); In re Alexander, 344 B.R. 742, 751 (Bankr.E.D.N.C. 2006). Finally, a significant minority of lower courts have followed the" }, { "docid": "4550125", "title": "", "text": "substantial question of the debtors’ eligibility to proceed under chapter 13, since the total unsecured debt would exceed by a few hundred dollars the unsecured debt limit of $336,900 for chapter 13. See § 109(e), Bankruptcy Code. . The adversary proceeding has not yet been filed, but the schedules reflect a current market value for the property of $440,000, with the balance on the first deed of trust being $546,403 and the balance on the second deed of trust being $135,099. . The Supreme Court has recently granted certiorari to decide this issue. Hamilton v. Lanning, 545 F.3d 1269 (10th Cir.2008), cert. granted, - U.S. -•, 130 S.Ct. 487, L.Ed.2d-(2009). . See, e.g., In re Luton, 363 B.R. 96 (Bankr.W.D.Ark.2007); In re Davis, 348 B.R. 449 (Bankr.E.D.Mich.2006); In re Mullen, 369 B.R. 25 (Bankr.D.Or.2007); In re Meadows, 410 B.R. 242 (Bankr.N.D.Tex.2009); In re Brown, 396 B.R. 551 (Bankr.D.Colo.2008); In re Grant, 364 B.R. 656 (Bankr.E.D.Tenn. 2007); In re Anderson, 383 B.R. 699 (Bankr. S.D.Ohio 2008); In re Schanuth, 342 B.R. 601 (Bankr.W.D.Mo.2006). . See, e.g., In re McGillis, 370 B.R. 720 (Bankr.W.D.Mich.2007); In re Williams, 394 B.R. 550 (Bankr.D.Colo.2008); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007); In re Fuger, 347 B.R. 94 (Bankr.D.Utah 2006). . Although the debtors suggest that requiring them to remain in chapter 13 for the full 60 months is inconsistent with this court's opinion in In re Murphy, 327 B.R. 760 (Bankr. E.D.Va.2005), aff'd 474 F.3d 143 (4th Cir. 2007) — which declined to treat an early payoff of a confirmed plan from the sale or refinance of the debtor's residence as a ''modification” of the plan — the trustee in the two cases decided by that opinion did not seriously object to the debtors’ early exit from chapter 13 but simply sought to capture the cash proceeds from the sale (in one case) and refinance (in the other case) for creditors. Modification of a confirmed plan may raise different issues from confirmation in the first instance. Indeed, there is even a question of whether the disposable income test applies at all to a modification, since" }, { "docid": "5087447", "title": "", "text": "courts, upon objection by the chapter 13 trustee, section 1325(b) now requires that a debtor’s plan must extend either three or five years, depending only upon whether her current monthly income is above or below the applicable median income, unless the debtor’s proposed plan pays all unsecured creditors in full. See, e.g., In re Fridley, 380 B.R. 538 (9th Cir. BAP 2007); In re Heyward, 386 B.R. 919 (Bankr.S.D.Ga.2008); In re Luton, 363 B.R. 96 (Bankr.W.D.Ark.2007); In re Slusher, 359 B.R. at 304; In re Davis, 348 B.R. 449 (Bankr.E.D.Mich.2006). This result follows even if the debt- or’s projected disposable income is zero or negative. See, e.g., In re Colclasure; In re Nance, 371 B.R. at 371; In re Musselman, 379 B.R. at 594; In re Grant, 364 B.R. at 667 (current monthly income, ie., relation to median income, determines applicable commitment period without consideration of projected disposable income); In re Casey, 356 B.R. 519, 527 (Bankr.E.D.Wash.2006) (the existence of projected disposable income is irrelevant to the utilization of the plan length definitions in section 1325(b)(4)); In re Davis, 348 B.R. at 458. In addition to the language of section 1325(b)(4), there are a variety of reasons offered in support of this interpretation that BAPCPA established a mandatory plan length based solely upon current monthly income. First, these decisions all emphasize that the term “period” as well as the term “commitment” refer to a length of time. See, e.g., In re Davis, 348 B.R. at 456. When Congress intended to use a term as a multiplier it expressly so stated, such as in 11 U.S.C. §§ 707(b)(2) and 1325(b)(3). See, e.g., In re Pohl, 2007 WL 1452019, at *3 (Bankr.D.Kan.2007); In re Davis, 348 B.R. at 456. Second, these courts observe that there was a three year minimum plan length in pre-BAPCPA section 1325(b), and they find no indicia that Congress intended to change the mandatory length construct when it amended that subsection in 2005. See, e.g., In re Nance, 371 B.R. at 370; In re Davis, 348 B.R. at 457; In re Schanuth, 342 B.R. 601, 608 (Bankr.W.D.Mo.2006). Third," }, { "docid": "3456212", "title": "", "text": "in full or commit to a plan whose term is sixty months in length. In re Nance, 371 B.R. 358, 369 (Bankr. S.D.Ill.2007); In re Grant, 364 B.R. 656, 667 (Bankr.E.D.Tenn.2007); In re Slusher, 359 B.R. 290, 305 (Bankr.D.Nev.2007); In re Casey, 356 B.R. 519, 527 (Bankr. E.D.Wash.2006); In re Schanuth, 342 B.R. 601, 607 (Bankr.W.D.Mo.2006). The second line of authorities adopts the multiplier approach that the debtor urges this court to follow. The advocates of this approach say that the function of the “applicable commitment period” is to provide a factor by which the debtor’s projected disposable income must be multiplied in order to determine the amount of the unsecured creditors’ pool. In re Lopatka, 400 B.R. 433, 440 (Bankr.M.D.Pa.2009); In re Swan, 368 B.R. 12, 27 (Bankr.N.D.Cal.2007); In re Mathis, 367 B.R. 629, 634 (Bankr.N.D.Ill.2007); In re Brady, 361 B.R. 765, 776 (Bankr.D.N.J.2007); In re Fuger, 347 B.R. 94, 95 (Bankr.D.Utah 2006). Under this approach, the function of the “applicable commitment period” is fulfilled as long as the debtor proposes a plan that pays the pool amount, even if the plan term is less than sixty months and the plan does not satisfy claims in full. The third line of cases focuses upon the language of section 1325(b)(1)(B). It notes that that section only requires that the debtor’s projected disposable income during the “applicable commitment period” be applied to payments to unsecured creditors. 11 U.S.C. § 1325(b)(1)(B). According to this line of authorities, if the debtor has no projected disposable income, the concept of an “applicable commitment period” never comes into play. See In re Kagenveama, 541 F.3d 868, 876 (9th Cir. 2008); Musselman v. eCast Settlement Corp. (In re Musselman), 394 B.R. 801, 814 (E.D.N.C.2008); In re Davis, 392 B.R. 132, 148 (Bankr.E.D.Pa.2008); In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006). Notwithstanding their disparate results, the foregoing cases have some similarities. First, they typically purport to follow the “plain” or “natural” language of section 1325(b). In re DeThample, 390 B.R. 716, 722 (Bankr.D.Kan.2008); See In re Davis, 392 B.R. 132, 138 (Bankr.E.D.Pa.2008). Second, they find support for their" }, { "docid": "8209787", "title": "", "text": "B.R. 608, 615 (Bankr.W.D.Mo.2006) (reasoning that 1325(b)(4)(B) provides the only way to shorten the applicable commitment period; this interpretation does not change pre-BAPCPA practice); In re Crittendon, No. 06-10322C-13G, 2006 WL 2547102 (Bankr.M.D.N.C. Sept.1, 2006) (stating the applicable commitment period refers to plan duration and is not a multiplier) (citations omitted). Opposing the view expressed by the majority is the case of In re Fuger, 347 B.R. 94 (Bankr.D.Utah 2006), as well as some well-respected authorities. See 5 Keith M. Lundin, Chapter 13 Bankruptcy §§ 493 & 500 (3d ed. 2000 & Supp.2006); Henry E. Hildebrand, Unintended Consequences: BAPCPA and the New Disposable Income Test, Am. Bankr.Inst. J., March 2006, at 14, 54. See also In re Brady, 361 B.R. 765, 776-77 (Bankr.D.N.J.2007)(stating that the applicable commitment period is a requirement that only applies if the debtor has projected disposable income to pay to unsecured creditors under the plan); In re Lawson, 361 B.R. 215, 219-21 (Bankr.D.Utah 2007)(finding that the applicable commitment period is fundamentally irrelevant in context of above-median debtors with negative monthly disposable income); In re Alexander, 344 B.R. 742, 750-51 (Bankr.E.D.N.C.2006) (recognizing that applicable commitment period is temporal rather than monetary, but ruling that a debtor without projected disposable income may propose a plan for a shorter period than the applicable commitment period); In re Kagenveama, No. 05-28079, 2006 Bankr.Lexis 259, at *9 (Bankr.D.Ariz. July 10, 2006) (stating that the applicable commitment period fixes the amount to be paid and the time over which the payment must be made; however, if no payments are required to be paid to unsecureds because the debtor has no projected disposable income, the plan duration will be determined by other types of payments under the plan, such as those to secured creditors). In his well-reasoned opinion, Judge Thurman observed that the applicable commitment period serves as both a method to calculate the amount of money to be paid to unsecured creditors and also denotes a period of time a plan should last. In re Fuger, 347 B.R. at 99. He further reasoned that Section 1325(b)(1)(B) focuses on the amount a debtor" }, { "docid": "13568544", "title": "", "text": "“monetary” approach, holding that § 1325(b) does not require the debtor to propose a plan that lasts for the entire length of the applicable commitment period; rather, as long as the plan provides for the payment of the monetary amount of disposable income projected to be received over that period, the court may confirm a plan that lasts for a shorter time. See, e.g., In re Burrell, No. 08-71716, 2009 WL 1851104, at *3-*5 (Bankr.C.D.III. June 29, 2009); Dehart v. Lopatka (In re Lopatka), 400 B.R. 433, 436-40 (Bankr.M.D.Pa.2009); In re Williams, 394 B.R. 550, 566-570 (Bankr. D.Colo.2008); In re McGillis, 370 B.R. 720, 734-39 (Bankr.W.D.Mich.2007); In re Mathis, 367 B.R. 629, 632-36 (Bankr. N.D.Ill.2007); In re Swan, 368 B.R. 12, 24-27 (Bankr.N.D.Cal.2007); In re Brady, 361 B.R. 765, 776-77 (Bankr.D.N.J.2007); In re Fuger, 347 B.R. 94, 97-101 (Bankr. D.Utah 2006). This question also has divided the commentators. Although it does not address the issue directly, Collier’s authoritative bankruptcy treatise appears to assume a temporal requirement. See 8 Collier on Bankruptcy ¶ 1325.08[4][d] (Alan N. Res-nick & Henry J. Sommer eds., 16th ed.2010). By contrast, in the leading treatise on Chapter 13, Judge Lundin supports the monetary approach. See 6 Lundin, supra, § 500.1 (“The applicable commitment period does not require that the debtor actually make payments for any particular period of time. Rather, it is the multiplier in a formula that determines the amount of disposable income that must be paid to unsecured creditors.”). Although tenable arguments support each approach, today we join the Eighth, Ninth and Eleventh Circuits in holding that, if the trustee or the holder of an allowed unsecured claim objects to confirmation of a Chapter 13 plan of a debtor with positive projected disposable income whose plan provides for a less than full recovery for unsecured claimants, the plan cannot be confirmed unless it provides that all of the debtor’s projected disposable income to be received in the applicable commitment period will be applied to make payments over a duration equal to the applicable commitment period set forth in § 1325(b). Our analysis of the" }, { "docid": "13568543", "title": "", "text": "Cir.2008), cert., denied, - U.S.-, 129 S.Ct. 1630, 173 L.Ed.2d 997 (2009); In re Wirth, 431 B.R. 209, 213 (Bankr.W.D.Wis.2010); In re Slusher, 359 B.R. 290, 300 n. 17 (Bankr. D.Nev.2007). The United States Court of Appeals for the Ninth Circuit as well as other courts have held that § 1325(b), although not establishing a minimum plan duration, does require a debtor with positive projected disposable income facing a plan objection and whose plan provides for a less than full recovery for unsecured claimants to pay unsecured creditors for the duration of the applicable commitment period, but that this temporal requirement does not apply if the debtor has zero or negative projected disposable income. See, e.g., Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868, 875-77 (9th Cir.2008); Musselman v. eCast Settlement Corp., 394 B.R. 801, 814 (E.D.N.C.2008); In re Green, 378 B.R. 30, 38 (Bankr. N.D.N.Y.2007); In re Lawson, 361 B.R. 215, 220 (Bankr.D.Utah 2007); In re Alexander, 344 B.R. 742, 751 (Bankr.E.D.N.C. 2006). Finally, a significant minority of lower courts have followed the “monetary” approach, holding that § 1325(b) does not require the debtor to propose a plan that lasts for the entire length of the applicable commitment period; rather, as long as the plan provides for the payment of the monetary amount of disposable income projected to be received over that period, the court may confirm a plan that lasts for a shorter time. See, e.g., In re Burrell, No. 08-71716, 2009 WL 1851104, at *3-*5 (Bankr.C.D.III. June 29, 2009); Dehart v. Lopatka (In re Lopatka), 400 B.R. 433, 436-40 (Bankr.M.D.Pa.2009); In re Williams, 394 B.R. 550, 566-570 (Bankr. D.Colo.2008); In re McGillis, 370 B.R. 720, 734-39 (Bankr.W.D.Mich.2007); In re Mathis, 367 B.R. 629, 632-36 (Bankr. N.D.Ill.2007); In re Swan, 368 B.R. 12, 24-27 (Bankr.N.D.Cal.2007); In re Brady, 361 B.R. 765, 776-77 (Bankr.D.N.J.2007); In re Fuger, 347 B.R. 94, 97-101 (Bankr. D.Utah 2006). This question also has divided the commentators. Although it does not address the issue directly, Collier’s authoritative bankruptcy treatise appears to assume a temporal requirement. See 8 Collier on Bankruptcy ¶ 1325.08[4][d] (Alan N." }, { "docid": "4017153", "title": "", "text": "states that a court may not confirm a plan unless it “provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.” 11 U.S.C. § 1325(b)(1)(B). According to the Code, the “applicable commitment period” that applies to Debtor is “not less than 5 years.” 11 U.S.C. § 1325(b)(4)(A)(ii). Creditor contends that Debtor’s Plan may only be shorter than 5 years if Debtor pays all allowed unsecured creditors in full, pursuant to § 1325(b)(4)(B). It is undisputed that the Plan does not provide for full payment of all allowed unsecured claims. Debtor argues that the statute does not require a fixed plan term, and that, because the Plan proposes to pay, over 36 months, an amount greater than Debtor’s projected disposable income multiplied by 60 months, the Plan should be confirmed as proposed. This issue has been described as a distinction between a “monetary” requirement and a “temporal” requirement. In re Brady, 361 B.R. 765, 776 (Bankr.D.N.J.2007), citing Alane A. Becket and Thomas A. Lee, III, Applicable Commitment Period: Time or Money?, 25-MAR Am. Bankr. Inst. J. 16 (2006). Creditor espouses the view that the phrase “applicable commitment period” imposes a temporal requirement that Debtor must commit to a plan for a specific amount of time — in this case, five years. Some courts have adopted this position. Slusher, 359 B.R. at 300; In re Casey, 356 B.R. 519, 527 (Bankr.E.D.Wash.2006); In re Cushman, 350 B.R. 207, 212 (Bankr.D.S.C.2006); In re Davis, 348 B.R. 449, 458 (Bankr.E.D.Mich.2006); Dew, 344 B.R. at 661; McGuire, 342 B.R. at 615. Debtor takes the position that “applicable commitment period” constitutes a monetary requirement such that, in order to be confirmed, Debtor’s three-year Plan must provide for payment of her projected disposable income multiplied by the applicable commitment period. In this case, the relevant calculation is $59.50 projected disposable income according to Form B22C multiplied by the 60 month applicable commitment period equals $3,570. Debtor" }, { "docid": "11854034", "title": "", "text": "See also In re McDonald, 361 B.R. 527 (Bankr.D.Mont.2007). . 366 B.R. 348 (Bankr.D.NJ.2007). . Id. at 353. . 370 B.R. 386 (Bankr.D.Kan.2007). . Id. at 392. . 11 U.S.C. § 1325(b)(2). . See In re Echeman, 378 B.R. 177, 182 n. 7 (Bankr.S.D.Ohio 2007). . Id. (emphasis added) (citation omitted). . Robbins v. Chronister, 402 F.3d 1047, 1050 (10th Cir.2005) (citations omitted). . See In re Kagenveama, 527 F.3d 990, 998-1000 (9th Cir.2008), amended by 541 F.3d 868 (9th Cir.2008); In re Frederickson, 375 B.R. 829, 835 (8th Cir. BAP 2007). . 11 U.S.C. § 1325(b)(4)(A)(ii). . 11 U.S.C. § 1325(b)(4)(A)(I). . 11 U.S.C. § 1325(b)(4)(B). . For a discussion of the different interpretations, see Alane A. Becket and Thomas A. Lee III, Applicable Commitment Period: Time or Money?, 25 Am. Bankr.Inst. J. 16 (Mar.2006); and Evan J. Zucker, The Applicable Commitment Period: A Debtor’s Commitment to a Fixed Plan Length, 15 Am. Bankr.Inst. L.Rev. 687 (Winter 2007). .For cases subscribing to the temporal view see, for example, In re Fridley, 380 B.R. 538, 544 (9th Cir. BAP 2007); In re Wiegand, 386 B.R. 238, 241 (9th Cir. BAP 2008); In re Slusher, 359 B.R. 290 (Bankr.D.Nev.2007); In re Nance, 371 B.R. 358 (Bankr.S.D.Ill. 2007); In re Alexander, 344 B.R. 742 (Bankr. E.D.N.C.2006); In re Beckerle, 367 B.R. 718 (Bankr.D.Kan.2007); and In re Davis, 348 B.R. 449 (Bankr.E.D.Mich.2006). For cases adopting the monetary view see, for example, In re McGillis, 370 B.R. 720 (Bankr. W.D.Mich.2007); In re Swan, 368 B.R. 12 (Bankr.N.D.Cal.2007); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007); and In re Fuger, 347 B.R. 94 (Bankr.D.Utah 2006). . See In re Kagenveama, 527 F.3d 990, 998-1000 (9th Cir.2008), amended by 541 F.3d 868 (9th Cir.2008); In re Frederickson, 375 B.R. 829, 835 (8th Cir. BAP 2007). . In re Kagenveama, 527 F.3d at 998. . Id. . 11 U.S.C. § 1322(d)(1). . 11 U.S.C. § 1322(d)(2). . In re Frederickson, 375 B.R. 829, 835 (8th Cir. BAP 2007). . See In re McGillis, 370 B.R. 720, 735 (Bankr.W.D.Mich.2007); In re Swan, 368 B.R. 12, 25 (Bankr.N.D.Cal.2007). . In" }, { "docid": "2263928", "title": "", "text": "remaining case, In re Sanchez, 2006 WL 2038616 (Bankr.W.D.Mo. Jul.13, 2006), the bankruptcy court concluded that 401(k) disbursements received by the debtor during the 6-month period before filing are included in the definition of CMI. . 2008 WL 750346 at * 3 (Bankr.S.D.Ill. Mar. 19, 2008). . Id. . 351 B.R. 808 (Bankr.S.D.Tex.2006). . 2006 WL 2038616 (Bankr.W.D.Mo. Jul.13, 2006). . Id. at *2 [citations omitted]. . Id. . Id. at *3. . See generally James W. McNeilly, Jr., and David P. Leibowitz, Withdrawals from Tax-deferred Retirement Accounts: Included in Current Monthly Income?, XXVII Am. Bankr. Inst. J. 12, 58-59 (June 2008). . http:llwww.merriam-veebster.coml dictionary/income. . See e.g., In re Greer, 388 B.R. 889 (Bankr.C.D.Ill.2008); In re Mancl, 381 B.R. 537 (W.D.Wis.2008); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007); In re Miller, 361 B.R. 224 (Bankr.N.D.Ala.2007); In re Hanks, 362 B.R. 494 (Bankr.D.Utah 2007); In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006). . See e.g., In re Briscoe, 374 B.R. 1 (Bankr.D.Dist.Col.2007); In re Edmondson, 363 B.R. 212 (Bankr.D.N.M.2007); In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006); In re Casey, 356 B.R. 519 (Bankr.E.D.Wash.2006); In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006); In re Fuller, 346 B.R. 472 (Bankr.S.D.Ill.2006); In re Louviere, 389 B.R. 502 (Bankr.E.D.Tex.2008); In re Meek, 370 B.R. 294 (Bankr.D.Idaho 2007). . 380 B.R. 17 (10th Cir. BAP 2007). . Section 1325(b)(2). . Section 1325(b)(1)(B). . See § 1325(b)(1)(B) (ThomsonAVest 2003) (requiring chapter 13 plan to provide \"that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.”); In re Richardson, 283 B.R. 783, 798 (Bankr.D.Kan.2002); In re Solomon, 67 F.3d 1128 (4th Cir.1995); In re Frederickson, 375 B.R. 829, 832-33 (8th Cir. BAP 2007) (discussing \"projected disposable income” pre-BAPCPA); In re Anderson, 21 F.3d 355 (9th Cir.1994). . Schedule I and Schedule J. . http://www.merriam-webster.com/ dictionary/projected. . No. 06-41037, 2007 WL 1451999 (Bankr.D.Kan. May 15, 2007), aff'd in part 380 B.R. 17 (10th Cir. BAP 2007), appeal docketed No. 08-3009 (10th Cir.)." }, { "docid": "11854035", "title": "", "text": "544 (9th Cir. BAP 2007); In re Wiegand, 386 B.R. 238, 241 (9th Cir. BAP 2008); In re Slusher, 359 B.R. 290 (Bankr.D.Nev.2007); In re Nance, 371 B.R. 358 (Bankr.S.D.Ill. 2007); In re Alexander, 344 B.R. 742 (Bankr. E.D.N.C.2006); In re Beckerle, 367 B.R. 718 (Bankr.D.Kan.2007); and In re Davis, 348 B.R. 449 (Bankr.E.D.Mich.2006). For cases adopting the monetary view see, for example, In re McGillis, 370 B.R. 720 (Bankr. W.D.Mich.2007); In re Swan, 368 B.R. 12 (Bankr.N.D.Cal.2007); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007); and In re Fuger, 347 B.R. 94 (Bankr.D.Utah 2006). . See In re Kagenveama, 527 F.3d 990, 998-1000 (9th Cir.2008), amended by 541 F.3d 868 (9th Cir.2008); In re Frederickson, 375 B.R. 829, 835 (8th Cir. BAP 2007). . In re Kagenveama, 527 F.3d at 998. . Id. . 11 U.S.C. § 1322(d)(1). . 11 U.S.C. § 1322(d)(2). . In re Frederickson, 375 B.R. 829, 835 (8th Cir. BAP 2007). . See In re McGillis, 370 B.R. 720, 735 (Bankr.W.D.Mich.2007); In re Swan, 368 B.R. 12, 25 (Bankr.N.D.Cal.2007). . In re McGillis, 370 B.R. at 739. .See In re Swan, 368 B.R. at 26 (and cases cited therein); In re Fuger, 347 B.R. 94, 101 (Bankr.D.Utah 2006). . In re Mathis, 367 B.R. 629, 635 (Bankr. N.D.I11.2007). . Hon. Randolph J. Haines, Chapter 11 May Resolve Some Chapter 13 Issues, 8 Norton Bankr.L. Adviser 1 (August 2007). . In re Green, 378 B.R. 30, 35 (Bankr. N.D.N.Y.2007). . See, e.g., In re Alexander, 344 B.R. 742, 751 (Bankr.E.D.N.C.2006). . See., e.g., In re Nance, 371 B.R. 358 (Bankr.S.D.Ill.2007). . In re Swan, 368 B.R. 12, 26 (Bankr. N.D.Cal.2007). . Flygare v. Boulden, 709 F.2d 1344, 1347-48 (10th Cir.1983) (listing eleven factors). The Tenth Circuit added three additional factors to the Flygare list in In re Rasmussen, 888 F.2d 703, 704 n. 3 (10th Cir.1989). The fourteen factors are: (1) the amount of the proposed payments and the amount of the debtor's surplus; (2) the debtor’s employment history, ability to earn and likelihood of future increases in income; (3) the probable or expected duration of the" }, { "docid": "17590929", "title": "", "text": "a debtor to propose a plan that lasts for the duration of the applicable commitment period, only that the plan provide for the payment of the monetary amount determined by multiplying the debtor’s monthly disposable income times the number of months (36 or 60) in the applicable commitment period. See, e.g., In re Lopatka, 400 B.R. 438 (Bankr.M.D.Pa.2009); In re Williams, 394 B.R. 550 (Bankr.D.Colo.2008); In re McGillis, 370 B.R. 720 (Bankr.W.D.Mich.2007). Neither the Supreme Court nor the Seventh Circuit Court of Appeals has yet addressed the issue. A variety of arguments are addressed in the many cases that have interpreted the phrase “applicable commitment period.” In this Court’s view, none is stronger than that the temporal interpretation is consistent with pre-BAPCPA practice and there is nothing in the new statutory language or the legislative history to indicate that Congress intended a dramatic conceptual change such as the multiplier interpretation would effect. This argument is thoroughly discussed by the Sixth Circuit in Baud. 634 F.3d at 341-44. This Court agrees with that persuasive reasoning, as well as the reasoning of Bankruptcy Judge Kenneth Meyers in In re Nance, 371 B.R. 358, 369-70 (Bankr.S.D.Ill.2007). As the Supreme Court recognizes, pre-BAPCPA bankruptcy practice can be an important factor in interpreting the meaning of the provisions of BAPCPA since the Court “will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.” Hamilton v. Lanning, — U.S. -, 130 S.Ct. 2464, 2473, 177 L.Ed.2d 23 (2010). In contrast to the 5-year maximum du-rational limit for a chapter 13 plan set forth in section 1322(d), which protects debtors, section 1325(b)(l)’s durational minimum benefits creditors by requiring a debtor’s “best efforts” at creditor repayment for at least three years as the quid pro quo for the broad discharge provided in chapter 13. Nance, 371 B.R. at 370. The BAPCPA amendment to section 1325(b)(1)(B) reflects the general policy that underlies many of BAPCPA’S provisions that more is expected from higher earning debtors. See In re Musselman, 379 B.R. 583, 590 (Bankr.E.D.N.C.2007) (means test in chapter 13" }, { "docid": "20247258", "title": "", "text": "over the appropriate application of this statutory requirement. See, e.g., Coop v. Freder-ickson (In re Frederickson), 545 F.3d 652 (8th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1630, 173 L.Ed.2d 997 (U.S. 2009); Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008); In re Meadows, 410 B.R. 242 (Bankr.N.D.Tex.2009); In re Grant, 364 B.R. 656 (Bankr.E.D.Tenn.2007); In re Slusher, 359 B.R. 290 (Bankr.D.Nev.2007); Dehart v. Lopatka (In re Lopatka), 400 B.R. 433 (Bankr.M.D.Pa.2009); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007). The observations in Turner and York appear to be dicta, rather than determinative. Nonetheless, they are illustrative of the problem the debtors face in arguing for a shorter plan period: the statute certainly seems to say on a straight-forward reading that a court may not confirm a plan proposed by above-median income debtors over the objection of the chapter 13 trustee if the proposed applicable commitment period is less than five years. This certainly sounds as if the plan must last for that period of time. It is only when considered in the context of other provisions that a number of courts have noted the actual implication of the statute is “rather murky.” Lopatka, 400 B.R. at 436; see also Frederickson, 545 F.3d at 656 (the statutory language is “not at all clear”). After all, if the purpose of the projected disposable income requirement is simply to provide unsecured creditors with a specific amount of money (i.e., 60 months’ worth of an above-median income debtor’s “disposable income”), confirming a plan that provides that amount more quickly seems consistent with this goal. Indeed, this appears to be one of the primary reasons some courts have adopted the “multiplier” approach, as they have concluded that the requirement of an “applicable commitment period” focuses on the amount of money the debtor must pay under the plan, and that a particular plan length is not required. Lopatka, 400 B.R. at 437. Still, many courts have ruled to the contrary, concluding that the “applicable commitment period” requirement is temporal in nature and mandates that a chapter 13 plan be of a specific duration" }, { "docid": "20247257", "title": "", "text": "language is plain, the sole function of the courts is to enforce the statute according to its terms.”). In both In re York, 415 B.R. 377 (Bankr.W.D.Wis.2009), and In re Turner, 574 F.3d 349 (7th Cir.2009), the courts observed that above-median income debtors must propose plans of five years in length. For example, in York the court stated that the plan “must be 5 years because the [debtors] are above-median debtors.” 415 B.R. at 379. In Turner, the court noted that a consequence of being an above-median income debtor is the requirement to make payments for “not less than” five years. 574 F.3d at 351. Neither case turned on the precise issue before this Court, nor were these observations determinative of the respective cases. It appears that this question has divided other courts in the Seventh Circuit. See In re Nance, 371 B.R. 358, 369 (Bankr.S.D.Ill.2007) (the applicable commitment period is a “temporal concept”); In re Mathis, 367 B.R. 629, 632 (Bankr.N.D.Ill.2007) (the applicable commitment period operates as a multiplier). Nationally, courts have likewise split over the appropriate application of this statutory requirement. See, e.g., Coop v. Freder-ickson (In re Frederickson), 545 F.3d 652 (8th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1630, 173 L.Ed.2d 997 (U.S. 2009); Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008); In re Meadows, 410 B.R. 242 (Bankr.N.D.Tex.2009); In re Grant, 364 B.R. 656 (Bankr.E.D.Tenn.2007); In re Slusher, 359 B.R. 290 (Bankr.D.Nev.2007); Dehart v. Lopatka (In re Lopatka), 400 B.R. 433 (Bankr.M.D.Pa.2009); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007). The observations in Turner and York appear to be dicta, rather than determinative. Nonetheless, they are illustrative of the problem the debtors face in arguing for a shorter plan period: the statute certainly seems to say on a straight-forward reading that a court may not confirm a plan proposed by above-median income debtors over the objection of the chapter 13 trustee if the proposed applicable commitment period is less than five years. This certainly sounds as if the plan must last for that period of time. It is only when considered in the" }, { "docid": "20453231", "title": "", "text": "debtor under the plan. It is used as a multiplier in calculating the total “projected disposable income” to be paid to unsecured creditors over the life of the plan. As the court in Baud explained, the monetary approach does not require the debtor to propose a plan that lasts for the entire length of the applicable commitment period; rath er, as long as the plan provides for the payment of the monetary amount of disposable income projected to be received over that period, the court may confirm a plan that lasts for a shorter time. 634 F.3d at 337 (collecting cases adopting this approach). Once calculated, the debt- or can pay that total sum over a shorter period of time. See, e.g., In re Swan, 368 B.R. 12, 26 (Bankr.N.D.Cal.2007) (“ ‘[Wjhere the debtor’s projected disposable income is consistent with the calculations on Form B22C, it makes little sense to hold the debtor hostage for 60 months where the debtor can satisfy the requirements of § 1325(b)(1)(B) in a shorter period.’ ” (quoting In re Fuger, 347 B.R. 94, 101 (Bankr.D.Utah 2006))). Other courts, including this court in Kagenveama, have adopted a hybrid variation in which the “applicable commitment period” sets the minimum temporal duration of a plan, but it is “inapplicable to a plan submitted ... by a debtor with no ‘projected disposable income.’ ” Kagenveama, 541 F.3d at 875; see, e.g., Alexander, 344 B.R. at 751 (“Because applicable commitment period is a term the statute makes relevant only with regard to the required payment of projected disposable income to unsecured creditors and not to any other plan payments or requirements, it simply does not come into play where no projected disposable income must be taken into account.”). See generally Baud, 634 F.3d at 337 (collecting additional cases). In addition to the split among the lower courts, leading commentators are divided on its answer. Id. at 338 (citing 8 Collier on Bankruptcy ¶ 1325.08[4][d]; and 6 Keith M. Lundin, Chapter 13 Bankruptcy, § 500.1 (3d ed. 2000 & Supp.2006)). The proper interpretation of the meaning and function of the" }, { "docid": "11848260", "title": "", "text": "split. Some courts have held that “applicable commitment period” does not apply to debtors who do not have any “projected disposable income,” regardless of whether the term is temporal in nature or not. See In re Kagenveama, 541 F.3d at 875-78; In re Frederickson, 375 B.R. at 835; In re Davis, 392 B.R. 132, 146 (Bankr.E.D.Pa. 2008); In re Brady, 361 B.R. at 776-77; In re Green, 378 B.R. 30, 39 (Bankr. N.D.N.Y.2007); In re Alexander, 344 B.R. at 750-51. Other courts have held that “applicable commitment period” is temporal in nature and sets a fixed plan length for all debtors whose plans are governed by § 1325(b). See In re Grant, 364 B.R. 656, 667 (Bankr. E.D.Tenn.2007); In re Slusher, 359 B.R. at 305; In re Strickland, 2007 WL 499623, *2, 2007 Bankr.LEXIS 508, *5-6 (Bankr. M.D.N.C.2007); In re Cushman, 350 B.R. 207, 212-13 (Bankr.D.S.C.2006), In re Girodes, 350 B.R. at 35; In re Casey, 356 B.R. 519, 526-27 (Bankr.E.D.Wash.2006). Still other courts have held that “applicable commitment period” is not temporal at all, but rather serves as a multiplicative term. Under this approach, “applicable commitment period” merely sets forth the number by which “projected disposable income” is multiplied to determine how much money a debtor must pay into his plan instead of the length of time that a debtor must make payments into a plan. See In re McGillis, 370 B.R. at 734; In re Fuger, 347 B.R. 94, 99-101 (Bankr.D.Utah 2006). This last interpretation of “applicable commitment period” is the one which the debtor here urges the court to adopt. The second one made mention of above was adopted by the bankruptcy court in this case. This court considers the first approach to be the correct one, however. “Applicable commitment period” appears in two relevant subsections of § 1325(b). The first is § 1325(b)(1)(B) which provides that a debtor’s plan may not be confirmed if a trustee or unsecured creditor objects unless the plan “provides that all of the debtor’s projected disposable income to be received in the applicable commitment period ... will be applied to make" } ]

[ { "docid": "2224363", "title": "", "text": "The facts in this case are undisputed. Between May 1992 and March 1996, Merchants Bank provided several loans to Frazer. Merchants Bank secured the loans by either mortgages on Frazer’s real property located in the Town of Weathers-field, Vermont (the “Property”), or assignment and pledge of the stock in his restaurant. Frazer defaulted on the loans, and in January 1998, Merchants Bank sought foreclosure. In June 1998, Frazer entered into a Stipulation and Judgment and Shortened Redemption Period, which was so ordered by the state court on July 14, 1998. The parties agreed that the equity of redemption period would expire on September 15, 1998. On September 11, 1998, a Consolidated Judgment Order and Decree of Foreclosure (“Foreclosure Judgment”) was issued by the Windsor Superior Court. See Merchants Bank v. Frazer, Windsor Super. Ct. Docket No. 24-l-98Wrcv (Sept. 11, 1998). The Foreclosure Judgment forever-barred Frazer from equity redemption unless Merchants Bank was paid the full amount due on the mortgage on or before September 18,1998. On September 14, 1998, Frazer filed a Chapter 13 bankruptcy petition. That petition was dismissed, however, for lack of jurisdiction on December 15, 1998. The next day, Frazer filed a Chapter 11 bankruptcy petition. On June 23, 1999, Merchants Bank moved for relief from the automatic stay, arguing that the equity of redemption period is not stayed by 11 U.S.C. § 362, on the ground that the timing provisions of 11 U.S.C. § 108(b) take precedence over § 362 tolling. Merchants Bank relied on decisions from the United States Courts of Appeals for the Sixth, Seventh, and Eighth Circuits. The bankruptcy court denied Merchants Bank’s motion on August 30, 1999. See In re Frazer, 238 B.R. 262 (Bankr.D.Vt.1999). The bankruptcy court considered it significant that all but one of the Circuit court cases relied on by Merchants Bank involved the statutory right of redemption following a foreclosure by sale, See id. at 264. The bankruptcy court found disposi-tive the “distinction between a mortgagor’s equity of redemption, which is a property interest that exists prior to the passing of title, and a right, available only in" } ]

[ { "docid": "5167164", "title": "", "text": "first deed of trust. The Chapter 13 statement showed an arrearage of 14 installments, each in the amount of $1,015.00. The debtors stated that the present market value of the residence was $95,000.00. The plan was confirmed by order entered on June 15, 1987 and required that the debtors pay $649.00 per month to the trustee for administrative expenses and arrearages, and that the debtors make their monthly maintenance payments to Fireman’s Fund outside the plan. Although the court file does not reveal the post-petition maintenance payments made through date of confirmation, it is standard practice to require the post-filing mortgage payments to be current at that time. The Court therefore assumes that as of June 11,1987 (date of confirmation hearing), the debtors had paid Fireman’s Fund the installments due for April, May and June, 1987. The debtor’s status report shows that the Trustee received two and a half plan payments ($649.00 on April 24, 1987, $649.00 on May 20, 1987, and $324.50 on June 16, 1987). No payments were made to the trustee after June 16, 1987. On November 9, 1987, Fireman’s Fund filed a motion for order granting relief from the automatic stay supported by a declaration that there had been no post-petition maintenance payments received and that the post-petition delinquency was in the amount of $8,994.80. An Answer was timely filed by the debtors who admitted that no payments had been made since June, 1987 and claimed to have sufficient equity in the real property to adequately protect the creditor’s interest. Hearing was held on December 9, 1987. The motion was granted, immediately relieving the moving party from the automatic stay but preventing any foreclosure sale until at least 45 days after entry of the order. The order was entered on December 16, 1987. Included in the order was language for “prospective relief.” The order provided as follows: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Respondent(s)/Debtor(s) shall be bound by this Order in any conversion of this Bankruptcy proceeding or in any subsequently filed bankruptcy proceedings of any nature whatsoever, and as to any Automatic Stays" }, { "docid": "1478512", "title": "", "text": "MEMORANDUM OPINION KATHRYN C. FERGUSON, Bankruptcy Judge. This matter comes before the Court on motion by Chapter 13 Debtor, Richard D. Hawk (“Debtor”), for sanctions against Creditor, Wyckoffs Mill Condominium Association, Inc. (“Association”), and its law firm, Stark & Stark, P.C. (“Stark”) (jointly, “Respondents”). The Debtor asserts that because the Respondents never obtained relief from the automatic stay, their efforts to collect post-petition condominium assessments and fees willfully violated the automatic stay provisions of 11 U.S.C. § 362(a), pursuant to § 362(h). Additionally, the Debtor requests that the Respondents “withdrawal [sic] and/or vacate any and all post-petition non-bankruptcy matters” between the parties. The Respondents oppose the Motion. After reviewing the parties’ written submissions, the Court heard oral argument on May 12, 2004, and reserved decision. For the reasons set forth below, the Court finds that the actions of the Respondents violated the automatic stay. Any liens or money judgments obtained in violation of the stay are determined to be void. The request for sanctions is denied. DISCUSSION Factual Background The Debtor filed a voluntary Chapter 13 petition on September 20, 1999. He listed his residence, real property located at 22 Powell Court, Hightstown, New Jersey, on Schedule A of his petition. The Debtor also listed the Association as a secured creditor. The Debtor’s Chapter 13 Plan provided for payment of the pre-petition Association debt. On December 22, 1999, the Association filed an objection to confirmation, but resolved the objection in a Consent Order entered on March 6, 2000. That Order addressed both pre and postpetition arrears and required the Debtor to pay all Association obligations as they accrued in the ordinary course. It also provided that should the Debtor default for a period of 30 days or more, the Association could obtain stay relief by submitting a certification of default to the court. The Court confirmed the Debtor’s Chapter 13 plan on May 5, 2000. The Debtor failed to maintain his post-petition obligation to pay condominium assessments. Instead of certifying that default to this court as contemplated by the Consent Order, the Respondents filed a complaint in the state court," }, { "docid": "5679786", "title": "", "text": "there equity in the property? If so, when should Debtor be required to assume or reject the executory contract? Based upon the arguments of counsel, the evidence adduced, and the memoranda and records filed herein, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. The Debtor filed a voluntary petition under Chapter 11 on July 31, 1981. 2. On August 17, 1981, Plaintiff filed a Complaint for Relief from the Automatic Stay based on the grounds that the Debtor no longer had any interest in the property which was the subject of a “Settlement and Extension Agreement” dated February 13, 1981, hereinafter referred to as the “Agreement”. More specifically, Plaintiff filed its complaint to determine that: a. Neither the Debtor nor its estate has any rights in the Agreement or the property described therein and that the automatic stay be annulled as to said Agreement; or b. If Debtor or its estate has rights in the Agreement or the property described therein, that said Agreement is an executo-ry contract, the adequate protection and assurance be provided, and that said Agreement be accepted or rejected on or before September 15, 1981. 3. At the pre-trial and preliminary hearing held on September 8, 1981, this Court granted the Motions to Intervene filed by Wataru and Violet Takiko Watanabe and Orison Oi Sun and Esther Lee Pang, the fee owners of the Waikiki property described in the Agreement. The Court also allowed Frederick D. Muir, Jr. and M & Associates, Inc. to intervene as third-party plaintiffs. These parties will hereafter be referred to as “Intervenors”. 4. Prior to the Settlement and Extension Agreement the individual parties had entered into the following agreements with the Debtor: a. Deposit Receipt, Offer and Acceptance, hereafter “DROA”, dated October 3, 1978, between Travelodge, as seller, and Debtor, as buyer relating to the Waikiki Pacific Isle Hotel. (Exhibit T-2) b. DROA dated October 3, 1978, between Travelodge as seller, and Debtor, as buyer relating to the Hilo Pacific Isle Hotel. (Exhibit T-l) c. Agreement effective June 1, 1980 between Debtor as" }, { "docid": "12724316", "title": "", "text": "that the award of periodic alimony “shall be non-modifiable either in amount or term.” The divorce decree provided that Joseph would also pay $835 per month in child support for the couple’s two children, Jessica and Nathan. In addition, the parties entered into a Parenting Agreement detailing the custody and care of their two children. Finally, as part of the Stipulation and Agreement incorporated into the divorce decree, the parties agreed to divide their personal property, to sell their real estate, including the family’s home, and separately maintain certain insurance policies and retirement benefits. On December 3,1999, Patti filed a Chapter 7 bankruptcy petition. She listed the $450 per month alimony payments she received from her ex-husband in her schedules. About six months after the petition filing, on June 15, 2000, the Trustee filed a Motion for Turnover seeking to include as property of the estate those alimony payments Debtor had received during the 180-day period after the petition filing. The bankruptcy judge denied the Trustee’s motion, reasoning that post-petition alimony payments should not be included as property of a debtor’s estate under § 541(a)(5)(B). Specifically, the bankruptcy court pointed out that the plain language of this provision reaches only property or interests in property obtained from property settlement agreements. Moreover, citing several Nebraska cases, the bankruptcy court suggested that assets received from a property settlement are distinct and separate from spousal support payments in the form of alimony, noting that alimony may be awarded in addition to a property settlement under Nebraska law. As such, the monthly payments Joseph was required to make to Patti in this case were, the bankruptcy court reasoned, clearly alimony and, therefore, not property of the estate under § 541(a)(5)(B). Subsequently, the Trustee asked the bankruptcy court to alter or amend its order or, alternatively, grant a new trial. The bankruptcy court denied the Trustee’s motion in an order dated September 27, 2000. The Trustee timely filed a notice of appeal. ISSUE The issue in this case is whether alimony payments a debtor receives during the 180-day post-petition period are property of the bankruptcy" }, { "docid": "7157416", "title": "", "text": "damages which is bewildering to us for the first time in her post-trial brief. The Broker, meanwhile, confined its post-trial arguments to futilely contesting its liability. In light of these circumstances, we will request the parties to address the proper measurement of damages in supplemental briefing. B. PROCEDURAL AND FACTUAL HISTORY BEATRICE BARKER (“the Debtor”) filed an individual Chapter 13 bankruptcy petition on September 23, 1999. Her Third Amended Chapter 13 plan, paying her mortgagee’s claim consistent with the settlement of same, was confirmed on May 3, 2000. On November 24, 1999, the Debtor filed a Complaint to Challenge the Validity/Priority/Extent of Lien against ALTEGRA CREDIT COMPANY (“Altegra”), GELT FINANCIAL CORPORATION (“Gelt”), and WILLIAM McGLAWN Va McGLAWN & McGLAWN. The trial of the Proceeding was originally Scheduled on January 11, 2000, and continued by agreement until March 9, 2000. Meanwhile, on February 29, 2000, the Debtor filed (1) a motion to approve a settlement with Altegra; (2) a motion seeking a default against Gelt; and (3) a motion to amend the Complaint, mainly to substitute McGLAWN & McGLAWN, INC. (“the Broker”) for William McGlawn as a defendant. The trial was again continued to April 27, 2000, on a must-be-heard basis. On March 24, 2000, the Debtor filed another motion to approve a settlement, this time with both Gelt and Altegra. The Broker did not object to this settlement (“the Settlement”), and this Court issued an Order approving the same on April 6, 2000. Under the terms of the Settlement, Al-tegra reduced its secured claim of $23,765 under a mortgage loan calling for interest at 17.99 percent and payments of $293.73 monthly to a claim of $8000 to be repaid with interest at nine (9%) percent over 15 years, resulting in monthly payments of $81.00 monthly. In addition Gelt and Al-tegra agreed to pay $4000 and $750, respectively, towards the Debtor’s claims for attorneys’ fees. The trial against the only remaining defendant, the Broker, was continued again on a must-be-heard basis un til May 11, 2000. At the close of trial on May 11, 2000, the parties agreed to submit opening" }, { "docid": "15923328", "title": "", "text": "the Debtors which also granted the FSA a security interest in the same Livestock and Equipment as that securing the obligation owed to Farmers Bank. The parties, together with the Chapter 7 Trustee, have agreed and stipulated that the FSA properly perfected its security interest in the Livestock and Equipment. Unlike the debt owed to Farmers Bank, the notes and security agreement evidencing the debt to the FSA were not modified after May 23, 2000. As of the Petition Date, the Debtors owed $200,952.21 to the FSA. D. Debtors’ Bankruptcy Case As stated above, the Debtors filed for bankruptcy relief under Chapter 7 of the United States Bankruptcy Code on September 11, 2000. On the Petition Date, the Debtors listed no real property. The Debtors listed on their Schedule B, the following personal property: Cattle: 121 Cows $75,625, 117 calves $49,725, 2 Bulls $1700 In addition, the Debtors listed farming equipment and implements valued at $146,932.00. On September 29, 2000, Farmers Bank filed an Emergency Motion to Approve Stipulation for Relief from Automatic Stay and for Abandonment. On October 2, 2000, this Court entered an Order Approving the Stipulation for Relief from Automatic Stay and for Abandonment. By its Order, the Court allowed Farmers Bank to obtain possession and sell some of the Livestock. That portion of the Livestock was sold by Farmers Bank on October 4, 2000. The sale generated $78,222.13 in proceeds which Farmers Bank applied to the Debtors’ loan. On November 3, 2000, the Debtors filed certain amended schedules. Debtors, by their Amended Schedule B, valued the remaining Livestock at $39,459.00. In addition, on November 3, 2000, the Debtors amended their claimed exemptions in their Amended Schedule C. In particular, the Debtors’ Amended Schedule C provides as follows: Description of Law Providing Current Market Property Each Exemption [Value] of Property Section 522 Cat- 13-54-102(l)(g) $ 39,459.00 tie 68 Cows $37,933.80 and two Bulls 1,525.20 [ ] EQUIPMENT List Schedule B[ ] [sic] [ ] 13 — 54—102(l)(g) $158,383.00 CRS 13-54-102(1)(g) Debtors each claim exemptions under 13-54-102(l)(g) of $25,000 (total $50,000) and under 13-54-102(1)® of $10,000 ($20,000) in" }, { "docid": "8316023", "title": "", "text": "OPINION EMIL F. GOLDHABER, Bankruptcy Judge: The issue at bench is whether the mortgagee is entitled to relief from the automatic stay provisions of section 362(a) of the Bankruptcy Code (“the Code”) to permit him to institute foreclosure proceedings against the debtor’s real property. We conclude that the mortgagee is not entitled to such relief because we find that the debtor has equity in the property in question and because the mortgagee’s interest is adequately protected by the existing equity cushion and by the debtor’s proffered post-petition payments to the mortgagee. The facts of the instant case are as follows: The dealings between Charles Cooper (“the debtor”) and Joseph Pagano (“the mortgagee”) span nearly two decades. Beginning on September 13, 1966, the debtor commenced payment, pursuant to a lease-purchase agreement with the mortgagee, on premises located at 5439 Baltimore Avenue, Philadelphia, Pennsylvania (“the premises”). The total monthly payment under said agreement was $130.00, $35.00 of which was to be credited toward the purchase price of $12,000.00. The debtor failed to make all the payments due under the agreement. Instead, on May 18, 1967, he signed an “extension agreement” with the mortgagee extending the date of the settlement for the purchase of the aforesaid premises until September 20, 1967. The extension agreement provided that the payments due from May 18, 1967, forward would be in full for rent due with no credit to be given toward the purchase price. Apparently, settlement did not occur on September 20, 1967. In 1968, the debtor says that he and the mortgagee entered into an “agreement of sale” to purchase the premises. On July 16, 1968, pursuant to the aforesaid agreement of sale, the debtor obtained a mortgage for the premises from the mortgagee in the amount of $10,842.43. It is undisputed that, prior to the institution of the bankruptcy proceedings, the debtor made payments, pursuant to the 1968 agreement of sale, through August of 1980, totalling at least $5,366.62 (N.T. 5). On November 12, 1980, the debtor filed a petition under chapter 13 of the Code. On December 11, 1981, the mortgagee filed the" }, { "docid": "1196173", "title": "", "text": "ORDER ON MOTION FOR RELIEF FROM STAY AND TO CONFIRM FORECLOSURE SALE AND TO AUTHORIZE FILING FORECLOSURE DEED LAMAR W. DAVIS, Jr., Bankruptcy Judge. The above-captioned Motion was scheduled and was heard by this Court on November 2, 1987, in Waycross, Georgia. Based on the stipulation entered into by the parties and the arugment of counsel I make the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1)Movant is the holder of a deed to secure debt in which Debtors conveyed certain real property which they owned to the Movant to secure an indebtedness. Debtors filed a previous Chapter 13 case in 1984 and Movant filed Motions for Relief in that prior case on April 17th and July 6, 1987. On July 14,1987, Debtors moved to dismiss the prior case and this Court entered an Order granting the Motion to Dismiss on July 21, 1987. On August 31, 1987, Debtors refiled this case under Chapter 13 and gave verbal notice to Movant's attorney of the filing of this case. Thereafter, on September 1, 1987, Movant proceeded to conduct a non-judicial foreclosure of the subject property but withheld the recording of its foreclosure deed pending a ruling on its Motion which seeks to void the automatic stay ab initio pursuant to 11 U.S.C. Section 109(g)(2). 2) The parties stipulate that this case was filed within 180 days of the dismissal of the preceding case and further stipulate that the dismissal of the previous case occurred after the time of the filing of a request for relief from the automatic stay was made by the Movant. Based on that, the Movant urges this Court to rule that the filing of the within case was void and not simply voidable and as a result that the automatic stay never came into being or if it did that it can be annulled retroactively so as to validate the foreclosure sale conducted on September 1, 1987. 3) The parties further stipulate that an agreement was reached between counsel for the Debtor and counsel for the Movant in the previous case as to" }, { "docid": "15987642", "title": "", "text": "section, if (A) the debtor does not have any equity in such property; and (B) such property is not necessary to an effective reorganization. The Movants allege that they are entitled to relief under § 362(d)(2) by virtue of the post-confirmation decision in Merchants Bank v. Frazer, 253 B.R. 513 (D.Vt.2000) and, alternatively, that they are entitled to relief under § 362(d)(1) because the debtor is in default of his obligations post-petition and Movants are not adequately protected. The Movants assert that they commenced foreclosure proceedings against the subject property in Vermont Superior Court prior to the debtor’s bankruptcy filing, that the debtor’s period of redemption expired on November 22, 1999 (also the date the debtor filed for bankruptcy relief), and that the debtor lost all interest in the subject property, by operation of law, 60 days thereafter by virtue of the debtor’s failure to timely exercise his right of redemption, under Frazer, supra. As additional grounds for relief, the Movants contend that the debtor is in arrears on his plan payment obligation, has failed to provide certain documentation required by the Mortgage Deed, and has failed to timely cure these deficiencies upon demand. On November 7, 2000, the debtor filed his Objection to Motion for Relief from Automatic Stay, opposing the requested post-confirmation lift stay relief and disputing the Movants’ right to relief under each of the grounds asserted. The debtor essentially argues that the requested relief would be extreme and inequitable, and should be denied in light of (i) the Mov-ants’ failure to seek any relief from stay prior to confirmation, (ii) the Movants’ failure to appeal the Confirmation Order, and (iii) the Movant’s acceptance of the “Note Modification Agreement” and plan treatment. While acknowledging cash flow difficulties, the debtor insists (i) that he has paid the Movants all post-confirmation payments and delivered to the Movants all documentation called for under the Mortgage Deed, including proof of insurance and copies of executed leases, (ii) that the plan provides for adequate protection of the Movants’ interest, (iii) that the subject property is necessary to the debtor’s effective reorganization, and" }, { "docid": "7258949", "title": "", "text": "OPINION STEVEN RASLAVICH, Bankruptcy Judge. INTRODUCTION Before the court is a motion filed by Mildred Belmonte requesting relief from the automatic stay so that she may regain possession of a parcel of residential real estate from her son, Kevin Belmonte, who is one of the joint debtors in the above captioned bankruptcy case. A central issue in the case is the preclusive effect of a prepetition state court decision in which Kevin was found to have no continuing legal or equitable interest in the real estate. The Court concludes it is bound by the state court decision and further concludes that without a legal or equitable interest in the property Kevin is without recourse under Chapter 13 of the Bankruptcy Code to reorganize his affairs in a manner that allows for the property to be retained. The motion for relief from stay must therefore be granted. BACKGROUND The Debtors filed for Bankruptcy under Chapter 13 on June 24, 1999. By August 26, Mildred Belmonte filed a motion for relief from the automatic stay. A hearing was held on the motion on September 22, and post-trial briefs have been received from each party. The facts developed at the hearing show that on April 1, 1992, Mildred Belmonte entered into a contract to sell a parcel of residential real estate at 321 Old Morehall Road, Malvern, Pennsylvania, to her son Kevin Belmonte. The total sale price was $ 110,000, payable in monthly installments of $600, with $2,600 due upon execution of the agreement. Payments were to continue until a mutually agreed settlement date. Following execution of the agreement, Kevin took possession of the property. Sometime later a dispute developed between the parties over the payments. Mildred claimed that certain payments had not been made, and Kevin responded with the accusation that Mildred was refusing to accept payments. In any event, by the date of a State Court hearing concerning the dispute, Kevin acknowledged he was in arrears to Mildred by about $12,000. At some point during Kevin’s tenure in possession of the property he leased it to tenants for the sum of" }, { "docid": "10236487", "title": "", "text": "MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR RELIEF FROM STAY AND TO DISMISS CASE ROBERT L. KRECHEVSKY, Bankruptcy Judge. I. The principal question presented in this proceeding is whether a chapter 13 plan providing for full payment of a matured home-mortgage debt reduced pre-petition to a judgment in state court is nonconfirmable because such plan allegedly would violate Bankruptcy Code § 1322(b)(2) which denies to a chapter 13 debtor the right to “modify” mortgages on “real property that is the debtor’s principal residence.” Equity Investment Company (Equity), the holder of the mortgage judgment, has raised this issue by way of separate motions for relief from stay and to dismiss the case. The parties have submitted the matter upon a stipulation of facts and briefs. For rea sons that follow, I conclude that the debt- or’s proposed plan is confirmable on the issues briefed and Equity’s motions will be denied. II. William G. Moreland, the debtor, on February 22, 1988 executed a promissory note for $45,000 in favor of Equity which provided for monthly interest-only payments at 18 percent per annum during the second year of the term, and for full maturity of the note on February 28, 1990. A second mortgage deed on the debtor’s residence at 88 Simpson Street, Hartford, Connecticut secured the note. By complaint dated April 16, 1990, Equity started a mortgage foreclosure action, and the state court, on August 27, 1990, entered a judgment of foreclosure by sale, setting December 1, 1990 as the sale date. The debtor filed his chapter 13 petition on October 29, 1990 and his plan on November 19, 1990. The schedules attached to the petition disclose the debtor to be solvent, and the plan provides for the full payment plus interest of all debts, secured and unsecured, over a period of 60 months. Equity filed its motions on November 15 and 16, 1990. III. A. Section 1322(b)(2) provides that the limitation on modifying home mortgages applies when the real property that is the debtor’s residence is the “only” security for the debt. The debtor initially claims that because Equity’s mortgage" }, { "docid": "14409449", "title": "", "text": "HAINES, Bankruptcy Judge. José A. Zambrana Arroyo, the chapter 7 debtor, appeals the bankruptcy court’s order granting Scotiabank de Puerto Rico (“Scotiabank”) retroactive relief from the automatic stay in order to validate a post-petition foreclosure sale. For the reasons set forth below, we conclude that the debt- or is without standing to bring this appeal and therefore DISMISS this appeal. BACKGROUND The debtor owned certain real property encumbered by a mortgage held by Scotia-bank. Over a nine-year period, the debtor filed four bankruptcy petitions, each on the eve of foreclosure, to prevent Scotiabank from foreclosing on the property. In the third case, the debtor and Scotiabank entered into a settlement agreement, in which Scotiabank was granted relief from stay, and the debtor was granted a short period of time to try to sell or refinance the property and pay Scotiabank in full. If he failed to do so, Scotiabank could then sell the property. The settlement agreement also provided that the order lifting the automatic stay would be res judicata in any future bankruptcy cases filed within two years. The bankruptcy court approved the settlement agreement, and, shortly thereafter, the debtor voluntarily dismissed the case. When the debtor failed to pay Scotia-bank in accordance with the settlement agreement, Scotiabank scheduled a foreclosure sale. The day before the scheduled sale, however, the debtor filed his fourth bankruptcy petition, seeking relief under chapter 7. Scotiabank proceeded with the sale and was the successful bidder for the property. Thereafter, in an abundance of caution, Scotiabank moved for retroactive relief from the automatic stay to validate the foreclosure sale, arguing that it was conducted in reliance on the settlement agreement, which made relief from stay binding in future bankruptcy cases, and urging the bankruptcy court to consider the debtor’s history of serial filings on the eve of foreclosure. The chapter trustee did not object, and has filed a “no asset” report. After a hearing, the bankruptcy court granted Scotiabank retroactive relief from the automatic stay. This appeal ensued. APPELLATE STANDING Before addressing the merits, we must first consider whether the debtor has standing to" }, { "docid": "1478513", "title": "", "text": "13 petition on September 20, 1999. He listed his residence, real property located at 22 Powell Court, Hightstown, New Jersey, on Schedule A of his petition. The Debtor also listed the Association as a secured creditor. The Debtor’s Chapter 13 Plan provided for payment of the pre-petition Association debt. On December 22, 1999, the Association filed an objection to confirmation, but resolved the objection in a Consent Order entered on March 6, 2000. That Order addressed both pre and postpetition arrears and required the Debtor to pay all Association obligations as they accrued in the ordinary course. It also provided that should the Debtor default for a period of 30 days or more, the Association could obtain stay relief by submitting a certification of default to the court. The Court confirmed the Debtor’s Chapter 13 plan on May 5, 2000. The Debtor failed to maintain his post-petition obligation to pay condominium assessments. Instead of certifying that default to this court as contemplated by the Consent Order, the Respondents filed a complaint in the state court, filed a lien against the Debtor’s residence, and obtained a money judgment against the Debtor for the post-petition default. Violation of the automatic stay The filing of a bankruptcy petition under Chapter 13 of the United States Bankruptcy Code (“Bankruptcy Code”) operates as an immediate stay against any of the activities enumerated in § 362(a) and not excepted under § 362(b). 11 U.S.C. § 362(a). The stay remains in effect until the court grants a motion to vacate it, or until the case is closed, dismissed, or the debtor’s discharge is granted or denied. 11 U.S.C. § 362(d); 362(c). The issue presented by this motion is whether efforts to collect condominium assessments and fees that arise post-petition, post-confirmation are barred by the automatic stay. The Respondents argue that there was no stay violation because title to the Debtor’s residence had revested in the Debtor upon confirmation of the plan, therefore, was no longer property of the estate. 11 U.S.C. § 1327(b). The Debtor maintains that the obligation to pay post-petition condominium assessments is a pre-petition" }, { "docid": "18757566", "title": "", "text": "MEMORANDUM OF DECISION RE SANCTIONS PETER M. ELLIOTT, Bankruptcy Judge. Pasadena Thrift and Loan Association seeks an order imposing sanctions upon the debtor and its attorneys Edgell & Edgell. The motion, in effect, asserts that the debt- or Bayport Equities Corp. together with its attorneys filed multiple Chapter 11 cases in bad faith causing Pasadena Thrift and Loan Association to have to employ counsel to obtain four separate orders for relief of stay in order to complete their foreclosure upon a single parcel of real property. I agree that there has been an abuse of the bankruptcy process, violations of the court rules, and bad faith filings and that sanctions should be imposed. FACTS Bayport filed its first Chapter 11 case numbered 83-00860 on February 24, 1983 and the case was assigned to Judge Phelps. Ross Edgell, Jr. signed the debtor’s petition which was accompanied by a list of creditors, but no formal schedules or statement of affairs. Pasadena filed its complaint, adversary number 83-0886 for relief of stay in order to foreclose upon the family home of James Shipley. Shipley is the President of the debtor. In the adversary proceeding a stipulation for judgment was entered into providing that the stay would be terminated unless the debtor paid $20,000. to Pasadena on or before April 15. The debtor did pay $20,000. to Pasadena by April 22. By agreement between Pasadena and the debt- or, the foreclosure was continued from time to time by reason of payments made by the debtor to Pasadena. Another $20,000. was paid on May 26, $10,000. on June 29, $5,000 on July 14, $5,000. on or about July 22 and $5,000. on or about July 29. These payments were in consideration of Pasadena extending the foreclosure from time to time up to and including August 12, 1983. Local Bankruptcy Rule 1007(d) in effect up to August 1, 1983, requires that the debtor file schedules and a statement of affairs within 15 days after the case is filed. It further provides that any extension of time for the filing *of schedules and statement of affairs may" }, { "docid": "3265755", "title": "", "text": "mortgagee or loss payee interests. The Court is of the opinion that the exception to “mortgagee or loss payee interests” refers to real property security, and that therefore the exception is not applicable to the Debtor or to Transportation Factoring, a creditor with a recorded security interest in general intangibles. Lastly, the Debtor argues that TIF-CO should not be granted relief from stay as the insurance policies underlying the premium finance agreement are necessary for the effective reorganization of the debt- or. Be that as it may, the Court may not continue the stay as against a secured creditor where that creditor’s property is not adequately protected. 11 U.S.C. § 362(d)(1). The Bankruptcy Code requires a showing of cause by the party requesting relief under section 362(d)(1) and then section 362(g) places the burden of proof on the party opposing relief for all issues other than that of “the debtor’s equity in property”. TIFCO has shown that the last payments received were on July 2, 1986, and that their collateral decreases daily as the insurance coverage remains in effect. The debtor, however, has attempted to meet its burden of proof with mere possibilities of adequate protection. In paragraph 4 of the Debtor’s Answer and Objection to TIFCO, Inc.’s Motion for Relief from Stay, the Debtor states: 4. The Debtor, thus far to no avail, has been attempting to have the insurers’ agent re-work the applicable insurance coverage to reflect its reduced requirements, and to establish an effective post-petition premium, so the Debtor can begin making weekly payments thereon. Furthermore, on page 3 of the Debtor’s Brief in Opposition to TIFCO’s Motion for Relief from Stay, the Debtor asserts that “[a]fter adjustments are made to reflect the reduced coverage, the down payment and monthly payments received will more than likely equal any amounts due ..., which would make adequate protection unnecessary ...” (emphasis added). The Court is of the opinion that the Debt- or’s evidence of adequate protection lacks the concreteness which is required in order to continue the automatic stay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion" }, { "docid": "15987641", "title": "", "text": "business, Vermont Floral, Inc., at commercial property located at 668 Pine Street, Burlington, Vermont (herein referred to as “the subject property”) and the debtor’s Schedule A reflects the fair market value for this property to be $317,000. Neither party has disputed either the amount due to Movants or the fair market value of the subject property. Based upon the record, it appears that the debtor’s equity in the subject property is approximately $33,000. On October 2, 2000, the Movants filed their Motion for Relief from the Automatic Stay under 11 U.S.C. § 362(d)(1) and (2). Section 362(d) provides in pertinent part as follows: On request of a party in interest and after notice and a hearing, the court shall grant relief from stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; (2) with respect to a stay of an act against property under subsection (a) of this section, if (A) the debtor does not have any equity in such property; and (B) such property is not necessary to an effective reorganization. The Movants allege that they are entitled to relief under § 362(d)(2) by virtue of the post-confirmation decision in Merchants Bank v. Frazer, 253 B.R. 513 (D.Vt.2000) and, alternatively, that they are entitled to relief under § 362(d)(1) because the debtor is in default of his obligations post-petition and Movants are not adequately protected. The Movants assert that they commenced foreclosure proceedings against the subject property in Vermont Superior Court prior to the debtor’s bankruptcy filing, that the debtor’s period of redemption expired on November 22, 1999 (also the date the debtor filed for bankruptcy relief), and that the debtor lost all interest in the subject property, by operation of law, 60 days thereafter by virtue of the debtor’s failure to timely exercise his right of redemption, under Frazer, supra. As additional grounds for relief, the Movants contend that the debtor is in arrears on his plan payment obligation, has failed" }, { "docid": "18588701", "title": "", "text": "DECISION AND ORDER DOROTHY EISENBERG, Bankruptcy Judge. This matter comes before this Court pursuant to an Order to Show Cause brought by the Debtor seeking an order (1) holding the Tivoli Motel (hereinafter the “Landlord”) and the Sheriff of Nassau County (hereinafter the “Sheriff”) in contempt for evicting the Debtor from his place of business in violation of the Automatic Stay, and (2) directing those entities to restore the Debtor to his place of business. The Landlord and the Sheriff opposed the order to show cause arguing that their actions did not violate the automatic stay because of the exception contained in section 362(b)(10) for actions by the lessor of the Debtor under a lease of nonresidential real property that has expired by its own terms prior to the filing of the bankruptcy petition to obtain possession of such property. This Court finds that the Debtor’s lease terminated pursuant to its own terms prior to the commencement of the case. Therefore, Section 362(b)(10) applies to the actions of the Landlord in seeking to regain possession of the premises and the leasehold is not property of the estate under Section 541(b)(2). FACTS The Debtor had operated a senior citizens residence facility under the name of Brush Hollow Arms at 3400 Brush Hollow Road, Westbury, New York and had been in possession of said premises pursuant to a lease that terminated by its own terms on April 30, 1989. In May 1989, the Landlord commenced a proceeding in the District Court of Nassau County seeking to evict the Debtor from the premises as a holdover tenant. In settlement of that litigation the Debtor and Landlord entered into a stipulation and consent agreement whereby the Debtor was to remain in possession of the premises until October 31, 1989 . In conjunction with that settlement and extension of possession, the Debtor consented to the entry of a final judgement of possession and issuance of a warrant of eviction which was to be stayed until October 31, 1989. At the same time, the parties entered into a contract for the sale of the real property" }, { "docid": "18734660", "title": "", "text": "through July, 1993. The parties also agreed, in the Fourth Cash Collateral Stipulation, that, if the 1st Plan were confirmed, Lincoln would turn over to the Debtor the balance of the funds in the Suspense Account, net of operating expenses and adequate protection payments, and that the Debtor could keep the balance of such funds after it paid the 1993 real estate taxes. Although the Fourth Cash Collateral Stipulation has expired, Lincoln has continued to deduct monthly adequate protection payments of $41,250 from the rents collected, On March 5, 1993, the Debtor filed a Motion to extend the period in which it, exclusively, could file a plan of reorganization in this case. Lincoln objected to this motion, but the matter was settled by a stipulation which extended the Debtor’s exclusive period for filing a plan of reorganization until April 26, 1993. On or about June 2, 1993, the Debtor and Lincoln entered into a second stipulation to extend the exclusive period until July 31, 1993. On April 1, 1993, we entered an order requiring the Debtor to file a plan and disclosure statement on or before April 30, 1993. The Debtor complied, and filed an initial plan of reorganization and an accompanying disclosure statement on April 27, 1993. On June 16, 1993, after a series of Objections thereto by Lincoln, and redrafts by the Debt- or, we entered an order approving the Debt- or’s Second Amended Disclosure Statement, which accompanied the 1st Plan. On June 25, 1993, Lincoln filed a motion seeking relief from the automatic stay in order that it could resume its foreclosure of the Property (“the Stay Motion”). The hearing on the Stay Motion was continued from July 21, 1993, to July 29, 1993, at which time we conducted a lengthy hearing to consider confirmation of the 1st Plan and the Stay Motion. Consistent with our Statements at the end of that hearing, we entered an Order dated July 30, 1993, denying confirmation of the 1st Plan solely because the proposed interest rate of seven (7%) percent to be paid to Lincoln on account of its secured" }, { "docid": "1996900", "title": "", "text": "MEMORANDUM OPINION AND ORDER KENT LINDQUIST, Chief Judge. I Statement of Proceedings This Chapter 7 case comes before the Court pursuant to James Dunn’s (hereinafter: “Creditor”) Objection filed October 20, 1987 to Carol Dee Dunn’s (hereinafter: “Debtor”) Motion to Avoid Lien filed September 15, 1987. The Creditor’s objection is based upon the grounds that the interest of the Creditor in the real estate is not a “judicial lien”, and consequently is not avoidable pursuant to 11 U.S.C. § 522(f)(1). The Creditor asserts that a Property Settlement Agreement between the parties incorporated into their Dissolution Decree protected a pre-existing property interest that existed in the Creditor in the marital property, and therefore the Debtor’s Motion to Avoid the Lien not be granted. By pre-hearing Order entered November 10, 1987, the parties stipulated that there was no need for submission of evidence on the issue, as the dispute involves a question of law only. The parties having briefed the issue per the scheduling order in said order, this contested matter is now ripe for resolution. On November 23, 1981, the Lake Superi- or Court entered a Dissolution Decree dissolving the marriage of the Creditor and the Debtor. The Court also ordered, and made a part of said decree, a certain “Separation Agreement for Custody, Child Support, and Property Division.” (See Exhibit “B” to Creditor’s Application to Abandon filed September 24, 1987, which per order of court on November 10, 1987, was consolidated with the Motion to Void Lien). The Property Settlement Agreement, duly executed by the parties, in its relevant part stated as follows: Paragraph 3. Marital Residence. (a) The marital residence located at 1428 Chestnut Avenue, Hammond, Indiana, shall be quit claimed by the husband to the wife and shall be held exclusively by the wife. The wife shall be responsible for all mortgage, insurance, taxes, and utility payments on said residence, and agrees to hold the husband harmless therefrom. (b) That in return for quit claiming the marital residence to the wife, the husband shall receive a Promissory Note in the amount of $12,000.00, payable without interest within five years," }, { "docid": "13803728", "title": "", "text": "three times, once at the express direction of the Court. Indeed, it was not until the Court expressly directed the debtor to file amendments that the debtor scheduled the defendants in this case, although the debtor asserted an interest in the real property. On November 17, 1993, the debtor filed the instant adversary proceeding asserting an ownership interest in the real property based upon an alleged contract with his father dated March 8, 1978. The defendants assert that Arkansas statutes, the doctrines of res judicata, collateral estoppel, and estoppel en pais preclude debt- or from asserting any interest in the subject real property. The debtor asserts that the order confirming the sale was made in violation of the automatic stay, that order is void. Accordingly, argues debtor, there is no valid final order and no valid sale such that he may assert his interest in the property. The parties indicate that the Court must determine the legal issue whether there is a valid final order to which the doctrines of either res judicata or collateral estoppel apply. If there is a valid final order, the Court must determine whether the doctrines in fact apply and whether there is any material fact for trial which would prevent the application of the preclusive doctrines. First, the debtor is in error that an automatic stay was in existence on September 27,1993, when the state court entered its final orders confirming and approving the sale of real property. The Chapter 13 bankruptcy ease, No. 93-50125S, had been dismissed by an Order entered on September 3, 1993. Thus, the automatic stay ceased on that date. 11 U.S.C. § 362(c)(2)(B). The second Chapter 13 case, No. 93-50406S was not filed until October 26, 1993, one month after the probate court confirmed the sale. Thus, there was no automatic stay in existence on September 27, 1993, when the probate court confirmed the sale of property. Accordingly, the final orders entered by Probate Court of Arkansas County are valid. Even if the automatic stay in bankruptcy existed at the time the state court orders were entered, the' uncontroverted" } ]

[ { "docid": "7028231", "title": "", "text": "ORDER Before NELSON and REINHARDT, Circuit Judges. Petitioner filed a petition for writ of mandamus on October 14, 1981 seeking review of the district court’s order of September 29, 1981. By that order, the district court denied petitioner’s motion for leave to file a late notice of appeal from its earlier order denying his motion to dismiss the indictment on the ground of double jeopardy. We may not accept mandamus jurisdiction over a matter subject to direct appeal. See Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). Thus, the initial question is whether the September 29, 1981 order is subject to direct appeal or to review by mandamus only. This Court has not previously addressed the issue whether an order denying a motion to file a late notice of appeal is itself appealable. However, we have little difficulty in concluding that such an order is appealable under 28 U.S.C. § 1291. See Matter of Orbitec Corporation, 520 F.2d 358, 360 (2d Cir. 1975). Such orders are appealable whether the motion seeks leave to file a late appeal from a final judgment or from an order which falls within the collateral order exception, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Here, the latter type of order is involved. Consequently, we hold that direct appeal, and not mandamus, is the proper means of obtaining review of the district court’s order. We could, of course, construe petitioner’s mandamus petition as a notice of appeal, and would, under the circumstances, ordinarily do so. However, a notice of appeal must be filed within ten days, United States v. Ajimura, 598 F.2d 510 (9th Cir. 1979), unless the district court extends the time for filing the notice, See Fed.R.App.P. 4(b). Petitioner did not file his mandamus petition until fifteen days after the order was entered. Since he elected to pursue mandamus, he did not seek leave from the district court to file a late appeal. Accordingly," } ]

[ { "docid": "1022608", "title": "", "text": "foreclose appellate review of that decision. Id. The remand order in this case provides little guidance as to the reason for remand. While the remand order does describe Stower’s motion as being “pursuant to 28 U.S.C. § 1447(c),” it does not purport to remand the ease on any of the grounds specified in section 1447(c). In fact, the order gives no reason for the remand. Looking beyond the language of the remand order to all the surrounding circumstances, it appears that the remand of this case was based on “a substantive decision on the merits apart from any jurisdictional decision.” Pelleport, 741 F.2d at 276. A review of the transcripts indicates the district court’s decision to remand was based on its belief that Clorox had waived the right to remove by informing employees in its employee handbook that suits to recover benefits under its plan could be filed in state or federal court. Remand for waiver of a right to remove is not within the ambit of section 1447(c) which allows remand if removal was “improvidently granted” or if the district court is “without jurisdiction.” Rather, here, as in Pelleport, remand was based on a substantive decision on the merits apart from any jurisdictional decision. As in Pelle-port, the remand order in this case is ap-pealable under 28 U.S.C. § 1291. Pelle-port, 741 F.2d at 276-78. We are mindful that denying Clorox’s petition for a writ of mandamus when Clorox could have filed a direct appeal on the authority of Pelleport, is somewhat of a harsh result since the time for filing a notice of appeal has long since expired. Nonetheless, we are disinclined to avoid this result by the simple expedient of treating the petition for a writ of mandamus as a notice of appeal. There is no authority authorizing us to construe a petition for a writ of mandamus as a notice of appeal. But see Diamond v. United States District Court, 661 F.2d 1198, 1199 (9th Cir. 1981) (dicta suggesting that considerations of fairness would allow a court to construe a mandamus petition as a notice of" }, { "docid": "3797380", "title": "", "text": "actions. Accordingly, the bar to review by appeal set forth in 1447(d) does not apply. Although FMC did not file a document labeled “notice of appeal,” its petition for mandamus contains all of the information required under Fed. R.App. P. 3. It may, therefore, be treated as a notice of appeal, see Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), provided that it was filed, as it was, within the 30-day limit set by Fed. R.App. P. 4(a)(1). Because jurisdiction lies under 28 U.S.C. § 1291, we will dismiss the petitions for mandamus filed by Medtronic as moot and will reverse the orders of remand entered by the District Court in each of the underlying actions. . This section provides in part that: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief ... or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. . The consolidated petition for writ of mandamus filed in the product liability action captioned In re: FMC Corp., 2000 WL 303139, presents a similar factual and procedural scenario. FMC was served with a complaint in a state court action on December 2, 1998. On December 21, 1998, FMC filed a notice of removal on diversity grounds. At a status conference on January 11, 1999, the District Court raised, sua sponte, the issue of whether FMC’s notice of removal had been filed in a timely manner. Following briefing on the issue, it was clear that the petition for removal was timely filed, although this could not be ascertained from the four corners of the removal petition. Nonetheless, the District Court ordered, on March 1, 1999, that the action be remanded to a state court in New Jersey. FMC’s petition for writ of mandamus was filed on" }, { "docid": "22434608", "title": "", "text": "ability to commence abusive litigation in forma pauperis. In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (per curiam); Visser v. Supreme Court, 919 F.2d 113 (9th Cir.1990). In consideration of Demos’ history, we hold that he has abused the privilege of filing petitions in forma pauperis in this court. We therefore conclude that it is appropriate at this juncture to bar the filing of any new petitions seeking extraordinary writs pursuant to 28 U.S.C. §§ 1651, 2253, or 2254 directed at the United States District Courts for the Eastern and Western Districts of Washington. See In re McDonald, 489 U.S. 180, 109 S.Ct. 993; Visser v. Supreme Court, at 113; O’Loughlin v. Doe, 920 F.2d 614 (9th Cir.1990). We further note that this court lacks jurisdiction to issue a writ of mandamus to a state court. See 28 U.S.C. § 1651. Thus, to the extent that Demos attempts to obtain a writ in this court to compel a state court to take or refrain from some action, the petitions are frivolous as a matter of law. Therefore, the clerk is directed to return to Demos any petition seeking an extraordinary writ or directed toward the United States District Courts for the Eastern and Western Districts of Washington unless, of course, the petition is accompanied by the $100.00 filing fee. The Clerk is further directed to return any petition that seeks to compel the Washington state courts to take or refrain from some action for filing unless accompanied by the $100.00 filing fee. . Most of the documents have been construed as petitions for writs of mandamus. For want of a better term, we refer to Demos' filings as petitions throughout this order. . We have no record of any action taken by the Washington courts. .We further note that mandamus may not be used as a substitute for an untimely notice of appeal. Cf. Compania Mexicana de Aviacion v. United States District Court, 859 F.2d 1354, 1357-58 (9th Cir.1988); Clorox v. United States District Court, 779 F.2d 517, 519 (9th Cir.1985)." }, { "docid": "9397680", "title": "", "text": "otherwise”, and literal application of this language would be dispositive. But the Supreme Court has not read it literally. Instead the Court deems § 1447(d) linked to § 1447(c), which authorizes remands for lack of jurisdiction and defects in removal procedure (as § 1446 defines those procedural requirements). “[Ojnly remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). See also, e.g., Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). Neither § 1447(c) nor anything else in the sections of the Judicial Code devoted to removal forbids successive removals. The rule against them- — if there is such a rule — is an extra-statutory judicial invention, and thus subject to the appellate process. Appeal rather than mandamus is the right route. Although Thermtron stated that mandamus is essential and appeal impermissible, Quackenbush reversed that conclusion. 116 S.Ct. 1712, 517 U.S. at 714-15. The Court observed that this aspect of Theiintron had been based on Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1875), a decision the Justices now deem “superannuated”. 517 U.S. at 715. A remand order terminates the litigation in federal court and therefore after Quackenbush is appealable as a “final decision” under 28 U.S.C. § 1291 — unless § 1447(d) forecloses appeal, which here it does not. Defendants did not file a document with the label “notice of appeal,” but their petition for mandamus contains all of the information required by Fed. R. App. P. 3 and therefore may be treated as a notice of appeal, see Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), if it was filed within the time for appeal. Which it was. The district court’s remand order, although dated May 20, 1999, was not entered on the docket until June 9. Our court received the petition for mandamus on July" }, { "docid": "21388378", "title": "", "text": "lack of jurisdiction under the FSIA and forum non conveniens. Plaintiffs responded to Mexicana’s answer by seeking to file a notice of voluntary dismissal of the entire action without prejudice. Because Mexicana had answered the complaint, the clerk accepted but did not file the dismissal. See Fed.R.Civ.P. 41(a)(1). Mexicana then moved to dismiss the complaint for lack of subject matter jurisdiction and forum non conveniens. At the same time, Boeing moved to correct the docket to reflect that the voluntary dismissal was effective as to all defendants except Mexicana. After hearing the motions, the District Court granted Boeing’s motion to correct the docket, dismissing the action against all defendants except Mexi-cana , and denied without written order Mexieana’s motion to dismiss. Mexicana moved for reconsideration on December 3, 1987. The court denied the motion on January 11, 1988, following which Mexicana filed its petition for writ of mandamus. DISCUSSION I Jurisdiction Mandamus is an extraordinary remedy, and is not available when full relief is possible through a contemporaneous ordinary appeal. Badham v. U.S. District Court, 721 F.2d 1170 (9th Cir.1983); Clorox v. U.S. District Court, 779 F.2d 517 (9th Cir.1985). Because we find that denial of a motion to dismiss for sovereign immunity is an appealable collateral order, mandamus is not available in this case. Although mandamus normally may not substitute for an appeal, we have sometimes construed petitions for writ of mandamus as notices of appeal. See Clorox Co. v. U.S. District Court, 779 F.2d 517 (9th Cir.1985); Diamond v. United States District Court, 661 F.2d 1198 (9th Cir.1981); In re Roberts Farms, Inc., 652 F.2d 793, 795 (9th Cir.1981). In Clorox, we found that Clorox had a direct appeal available on the matter it raised by mandamus. We construed the petition as a notice of appeal because of the harsh result which would obtain if the mandamus petition were simply denied. We noted that, when the petition was filed, it was not unreasonable for the petitioner to believe that the district court’s order was reviewable only by mandamus, not by direct appeal. Clorox, 779 F.2d at 520. Similarly," }, { "docid": "23654910", "title": "", "text": "right to remove is not within the ambit of section 1447(c) which allows remand if removal was “improvidently” granted or if the district court is “without jurisdiction.” Rather, here, as in Pelleport, remand was based on a substantive decision on the merits apart from any jurisdictional decision. As in Pelleport, the remand order in this case is ap-pealable under 28 U.S.C. § 1291. Pelleport, 741 F.2d at 276-78. Denying Clorox's petition for a writ of mandamus when Clorox could have filed a direct appeal on the authority of Pelle-port is a harsh result, however, since the time for filing a notice of appeal has long since expired. When Clorox filed its petition, it was not unreasonable for petitioner to believe that the district court’s remand order was reviewable only by mandamus, not by direct appeal. Only after Pelleport was it clear that a remand order may be reviewed by direct appeal. Since Pelleport arguably was an unforeseeable change in the law of the circuit and since the time for Clorox’s filing a direct appeal had passed by the time Pelleport was decided, it would work a manifest injustice to preclude any review of the merits of Clorox’s petition. There is no question that the petition for a writ of mandamus accomplished the same objectives as the notice of appeal, that is, to notify the court and the opposing party of further appellate proceedings. While as a general rule it is unwise to blur the distinction between mandamus and appeal procedures by allowing one to substitute for the other, on the limited facts of this ease, we believe such a course is both prudent and wise. See Diamond v. United States District Court, 661 F.2d 1198 (9th Cir.1981) (dicta suggesting that considerations of fairness would allow a court to construe a mandamus petition as a notice of appeal); In re Roberts Farms, Inc., 652 F.2d 793, 795 (9th Cir.1981) (ordering a mandamus petition to be treated as a notice of appeal). We next turn to the issue of whether the district court erred in remanding this case to state court. We" }, { "docid": "1022611", "title": "", "text": "I believe we do have the authority to construe the petition as a notice of appeal. It is well settled that this Circuit adheres to the liberal rule by which “courts of appeals have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal.” Cel-A-Pak v. California Agricultural Labor Relations Board, 680 F.2d 664, 667 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982), (quoting Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir.1978)). The rule has been stated as follows: [Documents] which are not denominated notices of appeal will be so treated when they serve the essential purpose of showing that the party intended to appeal, are served upon the other parties to the litigation, and are filed in court within the time period otherwise provided by Rule 4(a). Rabin, 570 F.2d at 866. In Diamond v. United States District Court, 661 F.2d 1198 (9th Cir.1981), the court found that an order denying a motion to file a late notice of appeal was appeala-ble under 28 U.S.C. § 1291 and that direct appeal, and not mandamus, was the proper means of obtaining review. Id. at 1198. The court stated: We could, of course, construe petitioner’s mandamus petition as a notice of appeal, and would, under the circumstances, ordinarily do so____ [W]ere we to construe the mandamus petition as a notice of appeal, the notice would not now be timely. For that reason, we decline to do so. Id. at 1198-99. Although the language in Diamond is dicta, it is strong dicta for the proposition that we can construe a mandamus petition as a notice of appeal. There is also authority for the converse: that we can treat a notice of appeal as a petition for a writ of mandamus. Unified Sewerage Agency v. Jelco, 646 F.2d 1339, 1343 (9th Cir.1981). I see no reason why the law of the circuit should be that we have authority to construe a notice of appeal as a petition for mandamus but cannot, under appropriate" }, { "docid": "1022609", "title": "", "text": "“improvidently granted” or if the district court is “without jurisdiction.” Rather, here, as in Pelleport, remand was based on a substantive decision on the merits apart from any jurisdictional decision. As in Pelle-port, the remand order in this case is ap-pealable under 28 U.S.C. § 1291. Pelle-port, 741 F.2d at 276-78. We are mindful that denying Clorox’s petition for a writ of mandamus when Clorox could have filed a direct appeal on the authority of Pelleport, is somewhat of a harsh result since the time for filing a notice of appeal has long since expired. Nonetheless, we are disinclined to avoid this result by the simple expedient of treating the petition for a writ of mandamus as a notice of appeal. There is no authority authorizing us to construe a petition for a writ of mandamus as a notice of appeal. But see Diamond v. United States District Court, 661 F.2d 1198, 1199 (9th Cir. 1981) (dicta suggesting that considerations of fairness would allow a court to construe a mandamus petition as a notice of appeal). Moreover, it would be unwise to further blur the distinction between mandamus and appeal procedures by allowing one to substitute for the other. Clorox’s petition for a writ of mandamus is DENIED. NORRIS, Circuit Judge, dissenting: I dissent because, unlike the majority, I would treat Clorox’s petition for a writ of mandamus as a notice of appeal, thus emphasizing substance over form. Clorox filed its writ while Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th Cir.1984), was still pending. When Clorox filed its petition, therefore, it was not unreasonable for petitioner to believe the district court’s remand order was reviewable only by mandamus, not by direct appeal. After Pelleport, however, it is clear that the remand order is reviewable by a direct appeal. Since Pelleport arguably changed the law of the Circuit and it was decided after it was too late for Clorox to file a direct appeal, I think denying Clorox’s petition for a writ of mandamus is an unnecessarily harsh result. Contrary to the view of the majority," }, { "docid": "9841157", "title": "", "text": "writ of mandamus is inappropriate to require a district court to issue an injunction, because such relief is left to the discretion of the district court. See id. (‘Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is clear and indisputable.” (quotations and citations omitted)). We need not reach the question of whether a writ of mandamus may issue to correct a district court’s abuse of discretion in denying injunctive relief. A denial of an injunction is an immediately appealable interlocutory order, see 28 U.S.C. § 1292(a)(1). Where the liberal standards for notice of appeal have been met in a ease, a petition for a writ of mandamus may be construed as a notice of appeal from an immediately appeal-able order by a district court. See United States v. Gundersen, 978 F.2d 580, 583-84 (10th Cir.1992) (construing petition for mandamus as notice of appeal, and citing cases); United States v. Green, 499 F.2d 538, 540 n. 5 (D.C.Cir.1974) (per curiam) (citing cases). Here, SDDS’s petition for mandamus “was the functional equivalent of a notice of appeal [because] it fulfilled [Fed.R.App.P.] 3’s requirements concerning notice,” Gundersen, 978 F.2d at 583 (analyzing Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992)). SDDS’s petition specified the party taking the appeal, designated the district court order appealed from, and named the court to which the appeal was taken. See id.; see also Fed.R.App.P. 3(c). In all of the circumstances of this case, therefore, we believe it is appropriate to construe SDDS’s petition for a writ of mandamus as a notice of appeal. III. The Eleventh Amendment generally bars suits brought against the states in federal courts. While the specific language of the Eleventh Amendment refers only to “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State,” U.S. Const. amend. XI, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition which" }, { "docid": "1022613", "title": "", "text": "circumstances, construe a writ of mandamus as a notice of appeal. Our court has construed a variety of documents as a notice of appeal. See, e.g., Noa v. Key Futures, Inc., 638 F.2d 77, 78 (9th Cir.1980) (stipulation to the entry of a new judgment an effective notice of appeal); Rabin v. Cohen, 570 F.2d 864, 867 (9th Cir.1978) (stipulation and motion requesting that record and briefs be transferred to new appeal a timely notice); Curtis Gallery and Library, Inc. v. United States, 388 F.2d 358, 360 (9th Cir.1967) (appellant’s designation of record and statement of points on appeal construed as equivalent of notice of appeal). Finally, other circuits have also construed a writ of mandamus as a notice of appeal. See, e.g., Yates v. Mobil Country Personnel Board, 658 F.2d 298, 299 (5th Cir.1981) (“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement____”); United States v. RMI Co., 599 F.2d 1183, 1187 (3d Cir.1979) (“[T]here are no finality considerations militating against treating a petition for mandamus as the equivalent of a notice of appeal.”); United States v. Green, 499 F.2d 538, 540 (D.C.Cir.1974) (“[T]he petitions for mandamus are treatable as notices of appeal.”); Strauss v. Smith, 417 F.2d 132, 133 (7th Cir.1969) (“[T]he mandamus was construed as an appeal____”). When, as here, a party has made a statement that clearly evinces its intent to appeal and such a statement accomplishes the two basic objectives of the Rule 3 requirement — to notify the court of the appeal and to notify the opposing party of the taking of the appeal — I think we can and should construe that statement as a notice of appeal. See Cel-A-Pak, 680 F.2d at 667. . The Second Circuit has interpreted Diamond as standing for the proposition that a \"court may treat mandamus petition as notice of appeal under some circumstances.” In re “Agent Orange\" Product Liability Litigation, 745 F.2d 161, 163 n. 1 (2d Cir.1984)." }, { "docid": "1022610", "title": "", "text": "appeal). Moreover, it would be unwise to further blur the distinction between mandamus and appeal procedures by allowing one to substitute for the other. Clorox’s petition for a writ of mandamus is DENIED. NORRIS, Circuit Judge, dissenting: I dissent because, unlike the majority, I would treat Clorox’s petition for a writ of mandamus as a notice of appeal, thus emphasizing substance over form. Clorox filed its writ while Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th Cir.1984), was still pending. When Clorox filed its petition, therefore, it was not unreasonable for petitioner to believe the district court’s remand order was reviewable only by mandamus, not by direct appeal. After Pelleport, however, it is clear that the remand order is reviewable by a direct appeal. Since Pelleport arguably changed the law of the Circuit and it was decided after it was too late for Clorox to file a direct appeal, I think denying Clorox’s petition for a writ of mandamus is an unnecessarily harsh result. Contrary to the view of the majority, I believe we do have the authority to construe the petition as a notice of appeal. It is well settled that this Circuit adheres to the liberal rule by which “courts of appeals have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal.” Cel-A-Pak v. California Agricultural Labor Relations Board, 680 F.2d 664, 667 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982), (quoting Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir.1978)). The rule has been stated as follows: [Documents] which are not denominated notices of appeal will be so treated when they serve the essential purpose of showing that the party intended to appeal, are served upon the other parties to the litigation, and are filed in court within the time period otherwise provided by Rule 4(a). Rabin, 570 F.2d at 866. In Diamond v. United States District Court, 661 F.2d 1198 (9th Cir.1981), the court found that an order denying a motion to" }, { "docid": "12022642", "title": "", "text": "order, we now consider whether a discretionary decision to decline supplemental jurisdiction under 28 U.S.C. § 1367(c) must be challenged in a petition for writ of mandamus (“mandamus petition”), or pursuant to an appeal under 28 U.S.C. § 1291. Although our precedents have held that a mandamus petition is the exclusive procedure, we believe that intervening Supreme Court authority is clearly irreconcilable with such a rule', and we therefore take the unusual step of departing from our earlier decisions. In both its Notice of Appeal and its brief, Powerex identifies 28 U.S.C. § 1291 as the basis for our jurisdiction. Although neither party addresses the mandamus issue, we have an obligation to satisfy ourselves that jurisdiction properly lies. Snodgrass v. Provident Life & Accident Ins. Co., 147 F.3d 1163, 1165 (9th Cir.1998) (per curiam). The distinction between mandamus and appellate review is greater than a simple difference in filing requirements. It is considerably more difficult to obtain a writ of mandamus, for a petitioner will not succeed simply by identifying a lower court’s legal error. See Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977) (five-factor balancing test to guide appellate court’s mandamus analysis, including whether “district court’s order is clearly erroneous as a matter of law”); see also In re Morgan, 506 F.3d 705, 712-13 (9th Cir.2007) (applying Bauman test). For example, if we were to hold that the district court erroneously concluded that Powerex was not a “foreign state,” we would reverse the court on an appeal, but it does not necessarily follow that we would issue a writ of mandamus if we thought the district court’s decision was not clearly erroneous, see In re Morgan, 506 F.3d at 713, or an “important issue of first impression,” San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1100 (9th Cir.1999). Generally, when a district court remands to state court after exercising its discretion to decline supplemental state law claims, an aggrieved party must seek mandamus relief. This rule was first announced in Survival Systems Division of the Whittaker Corp. v. U.S. District Court, 825" }, { "docid": "21388379", "title": "", "text": "721 F.2d 1170 (9th Cir.1983); Clorox v. U.S. District Court, 779 F.2d 517 (9th Cir.1985). Because we find that denial of a motion to dismiss for sovereign immunity is an appealable collateral order, mandamus is not available in this case. Although mandamus normally may not substitute for an appeal, we have sometimes construed petitions for writ of mandamus as notices of appeal. See Clorox Co. v. U.S. District Court, 779 F.2d 517 (9th Cir.1985); Diamond v. United States District Court, 661 F.2d 1198 (9th Cir.1981); In re Roberts Farms, Inc., 652 F.2d 793, 795 (9th Cir.1981). In Clorox, we found that Clorox had a direct appeal available on the matter it raised by mandamus. We construed the petition as a notice of appeal because of the harsh result which would obtain if the mandamus petition were simply denied. We noted that, when the petition was filed, it was not unreasonable for the petitioner to believe that the district court’s order was reviewable only by mandamus, not by direct appeal. Clorox, 779 F.2d at 520. Similarly, it was not unreasonable here for Mexicana to have assumed that the District Court’s denial of foreign sovereign immunity was reviewable only by mandamus; interlocutory appeals are exceptional and no prior authority exists in this circuit for a direct appeal from a denial of foreign sovereign immunity. Moreover, in this case as in Clorox, the time for notice of an interlocutory appeal has expired. For reasons discussed below, it would work a manifest injustice to postpone any review of the merits of the petition until after final judgment. Id. The petition for writ of mandamus has provided adequate notice to the parties and the court. We therefore treat the petition as a notice of appeal and decide accordingly. Interlocutory Appeal This court has jurisdiction over appeals from final judgments of the district court. 28 U.S.C. § 1291 (1982). Notwithstanding the absence of a final judgment, under the “collateral order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), a small class of interlocutory orders is immediately" }, { "docid": "211998", "title": "", "text": "be appropriate for, as the Supreme Court has explained, “[t]o ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek....” Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). See also Communication Workers of America v. American Tel. & Tel. Co., 932 F.2d 199, 208 (3d Cir.1991). The order of April 10, 1992, was appealable immediately upon its entry as it was a post-judgment order which conclusively determined the matter raised in the post-judgment motion. See Ohntrup v. Firearms Center, Inc., 802 F.2d 676, 678 (3d Cir.1986); Plymouth Mutual Life Ins. Co. v. Illinois Mid-Continent Life Ins. Co., 378 F.2d 389, 391 (3d Cir.1967). Thus, Fortunato had adequate means other than through a writ of mandamus to obtain the relief he seeks. We recognize that it might be urged that the distinction between appeal and mandamus is not consequential in this case. But that is not so, for it is undesirable to have the judge made a litigant, a procedure required in the mandamus proceeding but not in the appeal. See Communication Workers, 932 F.2d at 208. Thus, a petition for a writ of mandamus must never be regarded as an alternative to an appeal; rather, mandamus remains an extraordinary remedy. Furthermore, even if we treated the petition for mandamus as a notice of appeal, we could not review the order of April 10, 1992, for the petition was filed on June 16, 1992, which was beyond the allowable time for appeal under Fed.R.App.P. 4(a)(1). Of course, we will not hold that Fortunato now lacks adequate alternative means to obtain the relief he seeks simply because he allowed the time for an appeal to expire. Notwithstanding our refusal to grant a writ of mandamus and our lack of authority to exercise direct appellate jurisdiction over the order of April 10, 1992, we will enforce the “stipulated order of settlement and dismissal” through a different procedure. Under 28 U.S.C. § 2106, a court may" }, { "docid": "10864611", "title": "", "text": "is in fact an injunction. Had California filed a timely notice of appeal, we would have had jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Because California could have obtained review of the district court’s order through an ordinary appeal, mandamus is not available. Had the state filed its mandamus petition within the time allowed for filing a notice of appeal, we would have treated it as a notice of appeal and reached the merits. See Helstoski v. Meanor, 442 U.S. 500, 508 n. 4, 99 S.Ct. 2445, 2449 n. 4, 61 L.Ed.2d 30 (1979); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198-99 (9th Cir.1981). But it did not. The state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional requirements for perfecting an appeal. See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988). While we harbor serious doubts about the district court’s order, it is not reviewable by writ of mandamus. DISMISSED. . Section 1292(a) was not mentioned by the state in its briefs and the deputy attorney general who argued the case seemed unaware of its existence when asked about it. This is not unusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 (9th Cir.1998). . Because the order is not explicitly labeled an injunction, it is arguable that the requirements of Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), would have had to have been satisfied before an immediate appeal could have been taken. Carson held that, to be appealable under section 1292(a)(1), a district court ruling must (1) have the practical effect of entering an injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that an immediate appeal is the only effective way to challenge it. Id. at 84, 101 S.Ct. at 996-97. Carson involved an order denying relief; it is unclear whether Carson also" }, { "docid": "2742576", "title": "", "text": "of auxiliary lawsuits emerging from already vermiculate litigation. Because the orders Train appeals are neither final nor collateral, we do not have jurisdiction to review them. III. Writ of Mandamus Although Train has not filed a petition for a writ of mandamus, a notice of appeal from an otherwise nonappealable order can be considered as a mandamus petition, “an extraordinary remedy that may be obtained ‘only to confine an inferi- or court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” Executive Software N. Am., Inc. v. United States Dist. Court, 24 F.3d 1545, 1550 (9th Cir.1994) (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)); see 28 U.S.C. § 1651(a). In treating Train’s notice of appeal as a mandamus petition, we review the district court’s orders, not for an abuse of discretion, but for clear error. Executive Software, 24 F.3d at 1551. Under this standard, we will only issue the writ for usurpation of judicial power or a clear abuse of discretion. Id. Five “objective principles” guide the inquiry: whether (1) Train has no other adequate means, such as direct appeal, to attain the relief, (2) he will be damaged or prejudiced in a way not correctable on appeal, (3) the district court’s order is clearly erroneous as a matter of law, (4) the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules, or (5) the district court’s order raises new and important problems, or issues of law of first impression. Id. We address the third factor first, because the others are irrelevant if the district court’s conclusions were legally correct. Executive Software, 24 F.3d at 1551 (citing Survival Sys. Div. of Whittaker Corp. v. United States Dist. Court, 825 F.2d 1416, 1418 n. 1 (9th Cir.1987)). Here, nothing in the record supports issuing a writ of mandamus because Judge Patel did not abuse her discretion, much less make a clear error. We consider separately the order denying the" }, { "docid": "9397681", "title": "", "text": "Quackenbush reversed that conclusion. 116 S.Ct. 1712, 517 U.S. at 714-15. The Court observed that this aspect of Theiintron had been based on Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1875), a decision the Justices now deem “superannuated”. 517 U.S. at 715. A remand order terminates the litigation in federal court and therefore after Quackenbush is appealable as a “final decision” under 28 U.S.C. § 1291 — unless § 1447(d) forecloses appeal, which here it does not. Defendants did not file a document with the label “notice of appeal,” but their petition for mandamus contains all of the information required by Fed. R. App. P. 3 and therefore may be treated as a notice of appeal, see Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), if it was filed within the time for appeal. Which it was. The district court’s remand order, although dated May 20, 1999, was not entered on the docket until June 9. Our court received the petition for mandamus on July 8, within the 30-day limit set by Fed. R. App. P. 4(a)(1). Proceedings on an appeal entail none of the special limitations that dog the writ of mandamus; we are free to decide in a straightforward way whether the district court was correct to believe that there is a per se rule against multiple removals. Nothing in § 1446 forecloses multiple petitions for removal. Section 1446(c) expressly authorizes sequential petitions in criminal cases, and the silence on this subject in § 1446(b), which covers civil litigation, can’t reasonably be understood to reflect a prohibition. Silence leaves the matter to judges — though with a broad hint about the answer. The second paragraph of § 1446(b) reads: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become" }, { "docid": "7456141", "title": "", "text": "v. Portch, 853 F.2d 1399, 1403 (7th Cir.1988), the doctrine has never to our knowledge been used to allow the appeal, without the filing of a notice of appeal, of an order made after the appealable order. When the nonappealable order precedes the appealable one, the doctrine sensibly excuses the appellant's failure to have filed a notice of appeal from the first order; for until the later order was entered, he had no basis for appeal. But a party who wants to appeal an order because of its relation to an order already under appeal can file a notice of appeal from the second order, and should do so, to give the appellee clear and early notice of the scope of the appeal. Cf. Torres v. Oakland Scavenger Co., — U.S. -, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988); Allen Archery, Inc. v. Precision Shooting Equipment, Inc., 857 F.2d 1176 (7th Cir.1988) (per curiam). If appropriate, the appellant can ask us then to consolidate the two appeals, and can argue that the second appeal, if from an order otherwise unap-pealable, should be deemed pendent to the first. Since we have been liberal in allowing mandamus to be used to review rulings on motions to disqualify judges, see, e.g., Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 712 (7th Cir.1986); Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.1988) (dictum), we could construe the request in the appeal brief that we order Judge Marshall to recuse himself as a request that we issue a writ of mandamus. See 28 U.S.C. § 1651(a). But this would not help the appellants. They have already filed a petition for mandamus — and another panel of this court has denied it. See United States v. City of Chicago, No. 88-2617 (7th Cir. Sept. 7, 1988) (per curiam). The appeal from the refusal of Judge Marshall to recuse himself must therefore be dismissed, and we turn to the appeal from the order denying intervention. That appeal is without merit insofar as intervention is sought in United States v. City of Chicago, the" }, { "docid": "1022612", "title": "", "text": "file a late notice of appeal was appeala-ble under 28 U.S.C. § 1291 and that direct appeal, and not mandamus, was the proper means of obtaining review. Id. at 1198. The court stated: We could, of course, construe petitioner’s mandamus petition as a notice of appeal, and would, under the circumstances, ordinarily do so____ [W]ere we to construe the mandamus petition as a notice of appeal, the notice would not now be timely. For that reason, we decline to do so. Id. at 1198-99. Although the language in Diamond is dicta, it is strong dicta for the proposition that we can construe a mandamus petition as a notice of appeal. There is also authority for the converse: that we can treat a notice of appeal as a petition for a writ of mandamus. Unified Sewerage Agency v. Jelco, 646 F.2d 1339, 1343 (9th Cir.1981). I see no reason why the law of the circuit should be that we have authority to construe a notice of appeal as a petition for mandamus but cannot, under appropriate circumstances, construe a writ of mandamus as a notice of appeal. Our court has construed a variety of documents as a notice of appeal. See, e.g., Noa v. Key Futures, Inc., 638 F.2d 77, 78 (9th Cir.1980) (stipulation to the entry of a new judgment an effective notice of appeal); Rabin v. Cohen, 570 F.2d 864, 867 (9th Cir.1978) (stipulation and motion requesting that record and briefs be transferred to new appeal a timely notice); Curtis Gallery and Library, Inc. v. United States, 388 F.2d 358, 360 (9th Cir.1967) (appellant’s designation of record and statement of points on appeal construed as equivalent of notice of appeal). Finally, other circuits have also construed a writ of mandamus as a notice of appeal. See, e.g., Yates v. Mobil Country Personnel Board, 658 F.2d 298, 299 (5th Cir.1981) (“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement____”); United States v. RMI Co., 599 F.2d 1183, 1187 (3d Cir.1979) (“[T]here are no finality considerations militating against treating a petition for mandamus" }, { "docid": "23654911", "title": "", "text": "passed by the time Pelleport was decided, it would work a manifest injustice to preclude any review of the merits of Clorox’s petition. There is no question that the petition for a writ of mandamus accomplished the same objectives as the notice of appeal, that is, to notify the court and the opposing party of further appellate proceedings. While as a general rule it is unwise to blur the distinction between mandamus and appeal procedures by allowing one to substitute for the other, on the limited facts of this ease, we believe such a course is both prudent and wise. See Diamond v. United States District Court, 661 F.2d 1198 (9th Cir.1981) (dicta suggesting that considerations of fairness would allow a court to construe a mandamus petition as a notice of appeal); In re Roberts Farms, Inc., 652 F.2d 793, 795 (9th Cir.1981) (ordering a mandamus petition to be treated as a notice of appeal). We next turn to the issue of whether the district court erred in remanding this case to state court. We conclude that remand of this case was indeed an error. The district court’s decision to remand apparently was based on the belief that Clorox had waived the right to remove by informing employees in its employee handbook that suits to recover benefits under its plan could be filed in state or federal court. While it is possible to waive the right to remove from state court, see Perini Corp. v. Orion Insurance Co., 331 F.Supp. 453, 454 (E.D.Cal.1971), the language of the employee handbook relied on by the district court is insufficient to support a finding of waiver. ERISA requires employers to give employees summary descriptions of plan benefits, including “remedies available under the plan for the redress of claims which are denied in whole or in part.” 29 U.S.C. § 1022(b). 29 C.F.R. § 2520 (1984) sets forth the “General Reporting and Disclosure Requirements” and specifies the information which must be included in an employee benefit handbook like the one Clorox gave to Stower. These benefit handbooks, which must be distributed to all employees," } ]

[ { "docid": "7312902", "title": "", "text": "time as a gross disregard of the facts, if not bad faith, and as an ill-advised attempt to salvage an invalid patent.” The court concluded that in view of our decision in L. F. Strassheim Co. v. Gold Medal Folding Furniture Co., 477 F.2d 818, 824 (7th Cir. 1973), it was unnecessary to determine that there was fraud in order to award attorneys’ fees under 35 U.S.C. § 285, and that it was enough to find, as the court did, that the defendant’s conduct was “unreasonable, without legal justification and caused gross injustice to the plaintiff.” Lucerne contends that an unconscionable act in the nature of fraud or bad faith is necessary to make the case exceptional under the statute, and that since the District Court found neither of.these elements present its decision must be reversed. This argument ignores the Strassheim case, in which the court held that fraud was not necessary to support an award of attorneys’ fees. Even in the absence of Strassheim, accepting, as we do, the District Court’s findings with respect to Matthews’ testimony, that testimony amounted to an unconscionable act done with deceptive intent and was a sufficient basis for an award of attorneys’ fees. Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 579, 597 (7th Cir. 1972), cert. denied, 405 U. S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972). In reaching that conclusion we need not and do not consider the other matters referred to by the District Court as additional reasons for assessing attorneys’ fees. The judgment of the District Court is reversed insofar as it holds Claim 5 of the Frenzel patent valid and is in other respects affirmed. Affirmed in part and reversed in part. . The Lucerne switch, before Frenzel’s improvement, liad the following basic elements: . The stop member (with its round hole to engage the locking pin) and adjusting screw added by Frenzel are shown in the patent (Figure 5) as follows: . The entire Frenzel switch device is shown in the patent (Figure 4) as follows: . See the drawings in footnotes 2" } ]

[ { "docid": "12273567", "title": "", "text": "in or denominated wrongful intent, recklessness, or gross negligence. The alternative, abuse of the courts through manifestly unreasonable lawsuits based on uninvestigated allegations, would constitute a blot on the escutcheon of the law and a violation of Rule 11, Fed.R.Civ.P. The district court explicitly considered and properly rejected OxyTech’s excuse that it acted on oral advice of counsel in filing and continuing its complaint. As the court correctly stated, the oral conversations were only vaguely described by a witness who knew very little about them and who could supply no technical or legal bases for any opinion that might have been given. OxyTech’s pretense that the district court found this case exceptional only because OxyTech “failed to prove” infringement because OxyTech was guilty of “mere error” in assessing infringement, or merely because it prosecuted a “lawsuit”, is unworthy of response. Similarly meritless is OxyTech’s objection to the court’s drawing an inference, from OxyTech’s failure to offer it, that Dr. Fenn’s report was unfavorable to Oxy-Tech’s contention that it had sufficient basis for filing its amended complaint. Oxy-Tech misstates the record in saying that PPG never demanded production of the report; the record clearly shows that PPG repeatedly did so. OxyTech then says the “substance” of the report was known to PPG; but OxyTech did not place the full substance of the report in the record. Lastly, OxyTech says PPG could have further deposed Dr. Fenn, but his report was in important part technically based on tests performed by another scientist. OxyTech has not persuaded us that the court’s exceptional case finding based on all the circumstances cited by the court was clearly erroneous, nor has OxyTech shown that the court abused its discretion in awarding attorney fees. See also Locate Corp. v. Fel-Pro, Inc., 667 F.2d 577, 584, 213 USPQ 905, 911 (7th Cir.1981) (exceptional case where among other things patentee initiated suit with unconfirmed data to support infringement while refusing to produce test reports which would substantiate the charges and concealed a suspicion, later proven to be fact, that the test data were tainted and unreliable). C. Sanctions This" }, { "docid": "7790426", "title": "", "text": "justified; we affirm the judgment of the district court on both issues, but remand for a redetermination of the amount of the fee award. Loctite filed its initial complaint alleging patent infringement on June 24, 1977. On August 18, 1977, Fel-Pro served a deposition notice for Loetite’s officer having the greatest knowledge of the infringement facts. Jean Mauro, Loctite’s in-house patent counsel, was produced and deposed on September 17, 1977. During this deposition, Mauro refused to disclose the test results of defendants’ products upon which Loctite based its complaint, stating that they were irrelevant and that they were protected by the attorney-client or work-product privileges, or both. On October 25, 1977, Fel-Pro filed a motion to compel production of the data and test results upon which Loctite based its infringement charges. This motion was granted on March 20, 1978, the district court holding that the test data was not protected by the attorney-client or work-product privileges. The court also dismissed the argument of irrelevancy: “Defendants have the right to refute plaintiff’s evidence of infringement and information on these tests is clearly relevant for that purpose.” The test results were contained in two reports prepared by Loctite’s experts, Dr. Leonard and Dr. Kubik. As a result of the March 20, 1978 order, Fel-Pro had reason to believe that Leonard doubted the accuracy of the test results. This was based on a statement made on October 6, 1977, by counsel for Loctite to counsel for Fel-Pro that Loctite was then uncertain whether the required ingredient, TBHP, was present in Fel-Pro’s products. Loctite’s counsel refused to allow questioning about Leonard’s doubts as to the veracity of the tests. FelPro was again required to ask the court to compel discovery in order to obtain answers to these questions about the tests. The magistrate’s order of October 31, 1978, was affirmed by the district court on January 2, 1979. In the interim, Fel-Pro filed a Motion for Partial Summary Judgment as to the one patent that required the presence of TBHP, asserting that there was no question of fact regarding the absence of TBHP in" }, { "docid": "12273568", "title": "", "text": "complaint. Oxy-Tech misstates the record in saying that PPG never demanded production of the report; the record clearly shows that PPG repeatedly did so. OxyTech then says the “substance” of the report was known to PPG; but OxyTech did not place the full substance of the report in the record. Lastly, OxyTech says PPG could have further deposed Dr. Fenn, but his report was in important part technically based on tests performed by another scientist. OxyTech has not persuaded us that the court’s exceptional case finding based on all the circumstances cited by the court was clearly erroneous, nor has OxyTech shown that the court abused its discretion in awarding attorney fees. See also Locate Corp. v. Fel-Pro, Inc., 667 F.2d 577, 584, 213 USPQ 905, 911 (7th Cir.1981) (exceptional case where among other things patentee initiated suit with unconfirmed data to support infringement while refusing to produce test reports which would substantiate the charges and concealed a suspicion, later proven to be fact, that the test data were tainted and unreliable). C. Sanctions This is another in what appears to be a gradually increasing number of frivolous appeals to this court. The district court here rendered a proper judgment and supported it with an excellent and thorough opinion replete with clearly correct findings and a flawless application of the law to those findings. As above indicated, OxyTech has based its appeal on baseless arguments and an attempt to retry its case, employing baseless arguments and misstatements of the record. That it found those practices necessary should have told it this appeal was frivolous. Accordingly, we sanction OxyTech and require it to pay to PPG the sum of PPG’s attorney fees and double PPG’s costs on this appeal. Fed.R. App.P. 38. AFFIRMED. . Oxytech does not mention a reason for abandoning the '411 patent on appeal. As indicated by the district court and in the text here, the two patents and their prosecution histories are so intertwined as to preclude a total disregard of the '411 patent and its prosecution history. . Because claim 9 depends from claim 6, our" }, { "docid": "18061089", "title": "", "text": "it is wholly dissipated by rebutting considerations.” Groen v. General Foods Corporation, 402 F.2d 708, 711 n. 2 (9th Cir. 1968). The appellants also contend that Paper Mate’s copying of appellant’s design and the similarity of its own patents demonstrate the validity of the patent in suit. As we said in Walker, supra, 362 F.2d at p. 60: “[T]hese are only ‘secondary considerations,’ which may provide ‘indicia of obviousness or unobviousness,’ where that issue is in doubt. They do not establish invention where, as here, obviousness is clear.” (See also cases cited therein and Proler, supra 417 F.2d at 278.). (3) ATTORNEY’S FEES Section 285 of 35 U.S.C. provides that: “[T]he Court in exceptional cases may award reasonable attorney fees to the prevailing party”. In Monolith Portland Midwest Co. v. Kaiser Aluminum and C. Corp., 407 F.2d 288, 293-298 (9th Cir. 1969), this Court recently discussed the applicable standards which thé lower courts must follow in granting such fees. We stated that: “[A] court ‘may’ award or deny attorney’s fees in its discretion * * *. Congress’s intent in enacting the statute was not to permit recovery of attorney’s fees routinely in patent eases, but to permit a court to award fees in an extraordinary case to prevent gross injustice.” Monolith, supra at p. 294. Appellants contend that their conduct was not exceptional within the meaning of § 285, and that the District Court erred in granting recovery of the fees against them. We cannot reverse the District Court for the exercise of its discretion unless its findings were clearly erroneous. The trial judge made extensive findings in this area, Findings XXV-XXVIII, and found, inter alia, that the plaintiffs “knowingly and willfully concealed” Engle’s ownership interest in the patent; that this concealment misled the defendant and prolonged its efforts; that the plaintiffs misrepresented the character of exhibits (Finding XXVI), that plaintiffs and their counsel unnecessarily prolonged the taking of depositions by improper tactics (Finding XXVII), and that Engle refused to obey a subpoena to produce documents and was subsequently found to be in contempt of court (Finding XXVIII), of which" }, { "docid": "15013991", "title": "", "text": "must be established by clear and convincing evidence. The facts appearing on motion for summary judgment leave open the possibility that Claim 11 was a badly drafted attempt to patent the applicants’ vacuum cleaner, that the patent attorney’s comments in support of the claim were meant to emphasize the novelty of placing the Mikro-Pulsaire Dust Collector in an industrial vacuum cleaner, and that the applicants omitted citation of the Mikro-Pulsaire Dust Collector in a good faith belief that it was not necessary. In short, the evidence is insufficient to establish whether the applicants’ omission and misstatements were willful, negligent or innocent conduct. Plaintiff argues that the facts disclose at least an “exceptional lack of diligence” sufficient to support an award of attorneys’ fees under L. F. Strassheim Co. v. Gold Medal Folding Furniture Co., 477 F.2d 818 (7th Cir. 1973). In Strassheim, we permitted an award of attorneys’ fees on the basis of the patentee’s exceptional lack of diligence both in prosecuting its patent application and in responding to relevant pretrial discovery. We expressly noted that the right to attorneys’ fees did not mature until the patentee had failed to produce critical documents during the course of discovery. Id. at 824. The award was therefore based in essential part upon misconduct during the course of the litigation itself. Accord, Skil Corp. v. Lucerne Products, Inc., 503 F.2d 745 (7th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975). In the instant case, Paulson by his admissions reduced the dispute about the validity of Patent No. 3,541,-631 to a simple issue regarding the meaning of its terms. There is nothing to indicate that the defendant acted other than in good faith in defending its asserted construction of the patent. We therefore find the facts appearing on plaintiff’s motion for summary judgment insufficient to support a charge of willful misconduct or bad faith, either against the applicants in prosecuting their claim before the Patent Office or against the defendant in defending the patent issued, and we reverse the District Court’s order awarding attorneys’ fees. Because of this" }, { "docid": "1576474", "title": "", "text": "September 1, 1980 default so that there was no cause of action when the complaint was filed is without merit. Amendment of the Answer Defendants contend the district court erred in denying their July 24, 1981 motion for leave to amend their answer in order to assert a defense of partial failure of consideration. The decision whether to grant leave to amend is within the sound discretion of the trial court, see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971), and is not automatic. Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir.1979), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980). There was no abuse of discretion where the facts supporting the proposed defense were known at the time of the original answer and the subsequently abandoned counterclaim and where amendment would cause delay at a late stage in the proceedings. Post-Judgment Discovery Following the judgment in its favor, NSI began post-judgment discovery in aid of execution. Defendants objected to written interrogatories and requests for production as burdensome and improper once an appeal was filed. Plaintiff filed a motion to compel discovery, and defendants moved for a protective order. Denying the protective order, the district court ordered defendants to respond and awarded attorneys fees to plaintiff. Still defendants did not respond. After a hearing the district court found defendants in willful contempt. The court ordered the attorneys fees previously awarded to be paid, the interrogatories to be answered, and the documents requested to be furnished by May 3, 1982 or pay a continuing fine of $1,000 per day to the court and damages of $100 per day to plaintiff. Subsequently, the attorneys fees were paid. The response of the corporate defendant to the post-judgment discovery was incomplete, and the individual defendants failed to respond at all. All the defendants have appealed. Again, defendants’ arguments border on the frivolous in view of settled law. Defendants did not post a supersedeas bond or obtain a stay of the judgment pending appeal. Therefore, plaintiff may" }, { "docid": "7790425", "title": "", "text": "PER CURIAM. In June, 1977, Loctite Corporation (Loctite) filed a patent infringement suit against Fel-Pro Incorporated and Felt Products Manufacturing Company (Fel-Pro) alleging infringement of three patents used in the production of anaerobic sealants and adhesives. Each of these patents concludes with patent claims specifying a series of ingredients and the quantities of these ingredients which must be present. Loctite’s burden was to prove the presence in the specified quantities of the allegedly infringing ingredients in Fel-Pro’s products. Loctite’s complaint identified neither the ingredients nor the quantities. Fel-Pro’s pursuit of this information and Loctite’s steadfast refusal to divulge it is the crux of the three-year discovery process which ended in dismissal. The dispute reaches this court on an appeal from its dismissal under Rule 37(b) of the Federal Rules of Civil Procedure for Loctite’s failure to comply with district court discovery orders and from the award of attorney’s fees to Fel-Pro under 35 U.S.C. § 285, based on this conduct. A review of the record shows that the dismissal and award of fees were clearly justified; we affirm the judgment of the district court on both issues, but remand for a redetermination of the amount of the fee award. Loctite filed its initial complaint alleging patent infringement on June 24, 1977. On August 18, 1977, Fel-Pro served a deposition notice for Loetite’s officer having the greatest knowledge of the infringement facts. Jean Mauro, Loctite’s in-house patent counsel, was produced and deposed on September 17, 1977. During this deposition, Mauro refused to disclose the test results of defendants’ products upon which Loctite based its complaint, stating that they were irrelevant and that they were protected by the attorney-client or work-product privileges, or both. On October 25, 1977, Fel-Pro filed a motion to compel production of the data and test results upon which Loctite based its infringement charges. This motion was granted on March 20, 1978, the district court holding that the test data was not protected by the attorney-client or work-product privileges. The court also dismissed the argument of irrelevancy: “Defendants have the right to refute plaintiff’s evidence of infringement and" }, { "docid": "7790443", "title": "", "text": "decided the issue of attorney’s fees. Section 285 allows the court to award reasonable fees in patent cases which are “exceptional.” Thus, it is clear that fees are not to be allowed to all prevailing parties, Ferment-Acid Corp. v. Miles Laboratories, Inc., 338 F.2d 586 (7th Cir. 1964), but that the award is reserved for situations involving willful misconduct or bad faith. Super Products Corp. v. D P Way Corp., 546 F.2d 748, 758 (7th Cir. 1976). Although in many instances, the exceptional circumstances have involved a perpetration of fraud upon the patent office, the allowance of fees is not limited to those circumstances. See L. F. Strassheim Co. v. Gold Medal Folding Furniture Co., 477 F.2d 818, 824 n.9 (7th Cir. 1973) and cases cited therein. Our review of Loctite’s course of conduct during the nearly three years of discovery supports Judge McGarr’s conclusion that this case fits within the definition of exceptional. Appellant initiated suit with unconfirmed data to support infringement, refused to produce test reports which would substantiate the charges, and concealed a suspicion, later proven to be fact, that the test data was tainted and unreliable. Discovery was impeded at every juncture: Loctite’s personnel were instructed not to make written reports of test results, interrogatories were only partially answered, evidence was concealed. Material misrepresentations in briefs and affidavits were left uncorrected. Finally, court orders compelling complete discovery were not complied with. In Strassheim, this court affirmed an award of attorney’s fees to plaintiffs because of the defendant’s lack of diligence in its own investigation and in responding to discovery requests in advance of trial. Similarly, in Skil Corp. v. Lucerne Products, Inc., 503 F.2d 745 (7th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975), we allowed an award of fees where the testimony of defendant was contrary to all documentary evidence and “amounted to an unconscionable act done with deceptive intent.” Id. at 750. Fees were granted to defendants in Ashcroft v. Paper Mate Mfg. Co., 434 F.2d 910 (9th Cir. 1970), where plaintiff misrepresented the character of exhibits, unnecessarily" }, { "docid": "587535", "title": "", "text": "as fraud on the patent office or the initiation of suit with unconfirmed data to support infringement, Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 584 (7th Cir. 1981); failure to respond to discovery requests, L. F. Strassheim Co. v. Gold Metal Folding Furniture Co., 477 F.2d 818, 824 n.9 (7th Cir. 1973); testimony of a defendant “contrary to all documentary evidence, amounting to ‘an unconscionable act done with deceptive intent,’ ” Loctite Corp., 667 F.2d at 584, (quoting Skil Corp. v. Lucerne Products, Inc., 503 F.2d 745, 750 (7th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975)); or misrepresentation of the character of exhibits, together with the unnecessary prolongation of the taking of depositions, and a refusal to obey a subpoena for documents, Ashcroft v. Paper Mate Mfg. Co., 434 F.2d 910 (9th Cir. 1970). With respect to the wilfulness of the infringement, the trial judge found that Travenol had no bona fide belief or any reasonable basis for a bona fide belief that the Novo patent was invalid, unenforceable, or not infringed, either at the time it commenced its infringement of the patent in October, 1976, or later when this suit was filed, or in July, 1977, when Travenol sold its Wallerstein division to Gist and GBFI; that Travenol paid $80,000 to Gist and GBFI at the time of the sale for an agreement from them to hold Travenol harmless for infringement of the Novo patent; that in August, 1972, Travenol sought oral opinions from four patent law firms in Chicago and New York on the outcome of the interference proceeding and subsequent infringement suit by Novo; that among the questions on which Travenol sought advice was the possibility of an award of treble damages and attorney’s fees; and that Travenol adduced no evidence that it had obtained a legal opinion justifying its continued sale of Fromase in the United States, either at the conclusion of the interference proceeding or afterwards. Further, the trial judge found that once the interference proceeding had been concluded and the patent had been issued to Novo," }, { "docid": "13951256", "title": "", "text": "except where there is an abuse of discretion amounting to caprice or an erroneous conception of law Purer & Co. v. Aktiebolaget Addo, 9 Cir., 1969, 410 F.2d 871, 880. Here, the district court found that Zazzara’s and Kirk’s attempt to repudiate the settlement agreement did involve the requisite bad faith so as to make this an exceptional case. That conclusion was fully justified. See Alyeska Pipeline Service Co. v. Wilderness Society, 1975, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141. The more difficult question is whether Schmidt can be deemed to be the “prevailing party.” We believe that she can. Upon notice of Zazzara’s refusal to sign the agreement, Schmidt’s attorney filed a motion to compel compliance with the agreement. The district court granted that motion and entered the consent judgment. Even though Schmidt was by then reluctant to enforce the settlement because of the substantial costs incurred in preparing for trial, we find that by granting her motion and entering the judgment which she originally sought and which Zazzara and Kirk originally tried to repudiate, the court made Schmidt the “prevailing party within the spirit and intent of the statute.” Corcoran v. Columbia Broadcasing Syst., supra, 121 F.2d at 576. The judgment in this case gives Schmidt most of the relief that she demanded in her complaint. Thus, the award of attorney’s fees was well within the sound discretion of the district court. Ashcroft v. Paper Mate Mfg. Co., 9 Cir., 1970, 434 F.2d 910, 915. We reject as completely baseless the appellants’ argument that they should be awarded attorney’s fees against Schmidt. The order appealed from is affirmed. . The case came to this court as a petition by Zazzara and Kirk for a writ of mandamus to compel the district court to annul its order. However, because the order was made after final judgment, and is itself final and therefore appealable under 28 U.S.C. § 1291, we ordered the case treated as an appeal. See Olympic Refinery Co. v. Carter, 9 Cir., 1964, 332 F.2d 260, 263." }, { "docid": "7790429", "title": "", "text": "By July, 1979, Loctite, through answers to interrogatories posed by Fel-Pro, introduced the theory that a catalyst produced infringing ingredients in Fel-Pro products. However, Loctite again failed to specify the infringing product, the ingredient and the quantities contained in the product. Defendants had made available to plaintiff during discovery their secret formulations which allegedly revealed that their products did not contain the special catalyst which plaintiff claimed. Again, Fel-Pro requested an order from the court requiring Loctite to produce the documents which would substantiate or refute the charges of infringement. On September 4, 1979, the magistrate ordered Loctite to produce these documents; this order was affirmed by the district court on October 2,1979. At the hearing before the district court on this motion, counsel for Loctite admitted that he instructed those conducting tests to refrain from reducing them to writing. The district court judge then ordered full disclosure of all information from any tests conducted by Loctite bearing on the alleged infringement by Fel-Pro. The court also ordered that Loctite be permitted to depose the Sartomer Corporation, a third party not involved in this appeal, only after it made reports of all test results. This deposition was never conducted. Loctite subsequently responded with some information, but claimed that other documents were unavailable. On January 21, 1980, Fel-Pro filed a motion to require Loctite to comply with the orders compelling discovery or suffer dismissal. This motion was considered by the court along with Fel-Pro’s motion of September 20, 1979, for an order to show cause why the complaint should not be dismissed for failure to specify by claim the ingredient and the quantity of the infringing in- gradient. In its response to the January, 1980 motion, Loctite asserted that it was in compliance with the orders, but at the same time produced documents it had earlier claimed were unavailable because of a fire. The district court, on March 6, 1980, entered an order dismissing the case. A motion for reconsideration was denied and a final judgment was entered, dismissing the action and granting an award of attorney’s fees to Fel-Pro on" }, { "docid": "972799", "title": "", "text": "a court “in exceptional cases” may award reasonable attorney’s fees to the prevailing party. Thirty-eight volumes of testimony were taken over a period of 35 days before the long-experienced trial judge. After listening to the testimony and reviewing the voluminous documentary evidence in preparation for his findings of fact, conclusions of law and opinion, Judge Will refused to consider the case “exceptional” and therefore did not award attorney’s fees to defendants. Because of the facial breadth of the claims in issue, we cannot say that plaintiff’s suits were harassing and extortive. If Judge Will had concluded that Faulkner’s conduct was unconscionable and deceptive, he would have granted defendants’ request for attorney’s fees. Instead, he did not find that this consolidated lawsuit was prosecuted in bad faith. In fact, from his testimony, Judge Will “thought he [plaintiff] was a straightforward fellow” (April 16, 1976, Tr. 21). In H. K. Porter Co. v. Black & Decker Manufacturing Co., 518 F.2d 1177, 1178-1179 (7th Cir. 1975), we recently determined that attorney’s fees are only awarded in this Circuit in exceptional patent cases to prevent gross injustice where fraud and wrongdoing are clearly proved. The court below found no gross injustice, nor did it find that defendants had proved fraud and wrongdoing by plaintiff. Since defendants have not shown that the district judge abused his sound discretion in not allowing them attorney’s fees, his disposition of the matter will not be disturbed here. Rockwell v. Midland-Ross Corp., 438 F.2d 645, 655 (7th Cir. 1971). As defendants’ reply brief as cross-appellants has reminded us, “The District Court presided over pre-trial discovery for two years; held eviden-tiary hearings on 35 days over a period of a year; and had ample opportunity to evaluate the demeanor of Mr. Faulkner and many other witnesses. Hundreds of documentary and physical exhibits were received in evidence. Organs were played. Demonstrations were made. Experts testified. Additional hundreds of pages of briefs were submitted by counsel for the assistance of the District Court.” (Reply Br. 1-2) In such circumstances, the district court was in the best possible position to assess attorney’s fees" }, { "docid": "17661989", "title": "", "text": "owner not only failed to call such invalidating documents to the attention of the Patent Office but in addition failed to produce such documents in response to a discovery request during the first trial of the case. It was only during the second trial of the case that the documents were finally produced. The second of the cases cited, Skil, also involved misconduct during the trial of the case. There the court found certain crucial testimony of patent invalidity “amounted to an unconscionable act done with deceptive intent.” Id. at 750. This court again addressed the matter of attorneys’ fees in the later case of Super Products Corporation v. D P Way Corporation, 546 F.2d 748, 757-58 (7th Cir. 1976). The court there while recognizing that fraud was not the only inequitable conduct in dealing with the Patent Office that would support an award of attorneys’ fees also held that the misconduct must be accompanied by some element of willfulness or bad faith and that entitlement to an award of attorneys’ fees required clear and definite proof. This court also in Super Products emphasized that the Strassheim award was based in essential part upon misconduct during the course of the litigation itself and cited Skil as being in accord. Turning now to the findings of fact that this was an exceptional case, we do not find sufficient support in the findings of fact, nor in the evidence as a whole, to meet the Super Products requirement of clear and definite proof. Certainly, the mere fact that a patent is held by a trial court to be invalid as well as not being infringed should not per se establish an exceptional case. While the district court opined that this suit was one which should not have been brought, a reading of the three paragraphs of findings on this issue indicates that one of the principal premises on which the court determined that the case was exceptional was the meeting and correspondence with Mobay in 1976 and 1977. The district court’s findings refer to four specific defense exhibits on the Mobay matter." }, { "docid": "587534", "title": "", "text": "fees. In this case, the trial judge concluded that Travenol’s infringement of Novo’s patent was deliberate and wilful, and that this was an exceptional case warranting an award of increased damages and attorney’s fees. In reviewing this decision, we must determine whether the district court abused its discretion in making these awards, bearing in mind that such awards are not to be given to a prevailing party as a matter of course but only upon an “unambiguous showing of extraordinary misconduct.” Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir. 1976). An award of increased damages under § 284 is directed at acts constituting “conscious and wilful infringement of the patent.” Deere & Co. v. International Harvester Co., 658 F.2d 1137, 1146 (7th Cir. 1981); Union Carbide Corp. v. Graver Tank & Mfg. Co., 282 F.2d 653, 660 (7th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 695, 5 L.Ed.2d 691 (1961). An award of attorney’s fees focuses upon misconduct in the prosecution or defense of the patent claim, such as fraud on the patent office or the initiation of suit with unconfirmed data to support infringement, Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 584 (7th Cir. 1981); failure to respond to discovery requests, L. F. Strassheim Co. v. Gold Metal Folding Furniture Co., 477 F.2d 818, 824 n.9 (7th Cir. 1973); testimony of a defendant “contrary to all documentary evidence, amounting to ‘an unconscionable act done with deceptive intent,’ ” Loctite Corp., 667 F.2d at 584, (quoting Skil Corp. v. Lucerne Products, Inc., 503 F.2d 745, 750 (7th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975)); or misrepresentation of the character of exhibits, together with the unnecessary prolongation of the taking of depositions, and a refusal to obey a subpoena for documents, Ashcroft v. Paper Mate Mfg. Co., 434 F.2d 910 (9th Cir. 1970). With respect to the wilfulness of the infringement, the trial judge found that Travenol had no bona fide belief or any reasonable basis for a bona fide belief that the Novo patent was" }, { "docid": "17661988", "title": "", "text": "the findings of fact and the corresponding conclusions of law and hold that both patents are invalid for the reasons stated in the findings and conclusions pertaining only to the anticipation issue under 35 U.S.C. § 102 and the obviousness issue under 35 U.S.C. § 103. We need not reach, because of this holding, any of the other issues except as those issues bear on the matter of the allowance of attorneys’ fees. Turning then to the matter of attorneys’ fees, the district court’s conclusion of law was as follows: This is an exceptional case. An award of attorney fees is warranted and is ordered. 35 U.S.C. § 285. Skil Corporation v. Lucerne Products, Inc., 503 F.2d 745, 750, 183 USPQ 396, 399 (7 Cir. 1974); L. F. Strassheim Co. v. Gold Medal Folding Furniture Co., 477 F.2d 818, 824, 177 USPQ 673, 676-677 (7 Cir. 1973). The earlier of the cited cases, Strassheim, involved a situation in which the patent owner was in possession of certain documents which clearly invalidated its patent. The patent owner not only failed to call such invalidating documents to the attention of the Patent Office but in addition failed to produce such documents in response to a discovery request during the first trial of the case. It was only during the second trial of the case that the documents were finally produced. The second of the cases cited, Skil, also involved misconduct during the trial of the case. There the court found certain crucial testimony of patent invalidity “amounted to an unconscionable act done with deceptive intent.” Id. at 750. This court again addressed the matter of attorneys’ fees in the later case of Super Products Corporation v. D P Way Corporation, 546 F.2d 748, 757-58 (7th Cir. 1976). The court there while recognizing that fraud was not the only inequitable conduct in dealing with the Patent Office that would support an award of attorneys’ fees also held that the misconduct must be accompanied by some element of willfulness or bad faith and that entitlement to an award of attorneys’ fees required clear and" }, { "docid": "7790442", "title": "", "text": "Loctite argues, the district court could not on its initiative amend its March 6 order in August to include the award. In Terket v. Lund, 623 F.2d 29 (7th Cir. 1980), this court decided the question of whether the district court retained the power to award attorney’s fees after the notice of appeal was filed on the substantive issue. Noting that the general rule of divesting the district court of “jurisdiction” does not refer to any statute or mandatory rule, the court explained that it is in the interest of minimizing duplication and delay to allow the district court to award fees in such instances. District courts in this circuit were directed to proceed with attorney’s fees, “even after an appeal is filed, as expeditiously as possible.” Id. at 34. Therefore, the Terket decision contemplated and approved the situation before us where an appeal is filed after both the substantive judgment and the award of fees, and then consolidated for review. There is no question that it was proper for the district court to have decided the issue of attorney’s fees. Section 285 allows the court to award reasonable fees in patent cases which are “exceptional.” Thus, it is clear that fees are not to be allowed to all prevailing parties, Ferment-Acid Corp. v. Miles Laboratories, Inc., 338 F.2d 586 (7th Cir. 1964), but that the award is reserved for situations involving willful misconduct or bad faith. Super Products Corp. v. D P Way Corp., 546 F.2d 748, 758 (7th Cir. 1976). Although in many instances, the exceptional circumstances have involved a perpetration of fraud upon the patent office, the allowance of fees is not limited to those circumstances. See L. F. Strassheim Co. v. Gold Medal Folding Furniture Co., 477 F.2d 818, 824 n.9 (7th Cir. 1973) and cases cited therein. Our review of Loctite’s course of conduct during the nearly three years of discovery supports Judge McGarr’s conclusion that this case fits within the definition of exceptional. Appellant initiated suit with unconfirmed data to support infringement, refused to produce test reports which would substantiate the charges, and concealed" }, { "docid": "7790445", "title": "", "text": "prolonged taking of depositions, and refused to obey a subpoena for documents for which it was found in contempt of court. The district court’s award of attorney’s fees will not be disturbed absent an abuse of discretion. Crane Co. v. Aeroquip Corp., 504 F.2d 1086, 1093 (7th Cir. 1974); Rockwell v. Midland-Ross Corp., 438 F.2d 645, 655 (7th Cir. 1971). There is no abuse of discretion in this award. By its application to this case, the purpose of Section 285 — to compensate the prevailing party for the unwarranted cost of litigation caused by the misconduct of the losing party — is well served. Mueller Brass Co. v. Reading Industries, Inc., 352 F.Supp. 1357, 1381 (E.D.Pa.), aff’d, 487 F.2d 1395 (3d Cir. 1973). Responsible action on the part of Loctite and its attorneys could have greatly alleviated the cost and extent of this suit. Indeed, with more care, parts of it may never have been brought at all. Therefore, we agree with the district court that this is “an exceptional case” within the meaning of Section 285. Loctite points out that under. Rule 37, attorney’s fees are limited to those emanating from the abuse of the discovery process. Stillman v. Edmund Scientific Co., 522 F.2d 798 (4th Cir. 1975). Our affirmance of the award as appropriate under 35 U.S.C. § 285 makes it unnecessary for us to speculate as to the correct amount of fees under Rule 37. However, we note that nearly all of the proceedings in this suit result from Loctite’s initial failure to specify its charges against Fel-Pro. Thus, there can be little difference between the amount relating to the entire lawsuit and the amount flowing from the abuse of the discovery process. While We believe that attorney’s fees are merited, we are troubled by the amount of fees finally awarded by the district court. Although the amount is discretionary and should not be disturbed unless clearly excessive or insufficient, Mercantile-Commerce Bank & Trust Co. v. Southeast Arkansas Levee Dist., 106 F.2d 966 (8th Cir. 1939), the language of 35 U.S.C. § 285 imposes a requirement of" }, { "docid": "7790444", "title": "", "text": "a suspicion, later proven to be fact, that the test data was tainted and unreliable. Discovery was impeded at every juncture: Loctite’s personnel were instructed not to make written reports of test results, interrogatories were only partially answered, evidence was concealed. Material misrepresentations in briefs and affidavits were left uncorrected. Finally, court orders compelling complete discovery were not complied with. In Strassheim, this court affirmed an award of attorney’s fees to plaintiffs because of the defendant’s lack of diligence in its own investigation and in responding to discovery requests in advance of trial. Similarly, in Skil Corp. v. Lucerne Products, Inc., 503 F.2d 745 (7th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975), we allowed an award of fees where the testimony of defendant was contrary to all documentary evidence and “amounted to an unconscionable act done with deceptive intent.” Id. at 750. Fees were granted to defendants in Ashcroft v. Paper Mate Mfg. Co., 434 F.2d 910 (9th Cir. 1970), where plaintiff misrepresented the character of exhibits, unnecessarily prolonged taking of depositions, and refused to obey a subpoena for documents for which it was found in contempt of court. The district court’s award of attorney’s fees will not be disturbed absent an abuse of discretion. Crane Co. v. Aeroquip Corp., 504 F.2d 1086, 1093 (7th Cir. 1974); Rockwell v. Midland-Ross Corp., 438 F.2d 645, 655 (7th Cir. 1971). There is no abuse of discretion in this award. By its application to this case, the purpose of Section 285 — to compensate the prevailing party for the unwarranted cost of litigation caused by the misconduct of the losing party — is well served. Mueller Brass Co. v. Reading Industries, Inc., 352 F.Supp. 1357, 1381 (E.D.Pa.), aff’d, 487 F.2d 1395 (3d Cir. 1973). Responsible action on the part of Loctite and its attorneys could have greatly alleviated the cost and extent of this suit. Indeed, with more care, parts of it may never have been brought at all. Therefore, we agree with the district court that this is “an exceptional case” within the meaning of" }, { "docid": "18061090", "title": "", "text": "*. Congress’s intent in enacting the statute was not to permit recovery of attorney’s fees routinely in patent eases, but to permit a court to award fees in an extraordinary case to prevent gross injustice.” Monolith, supra at p. 294. Appellants contend that their conduct was not exceptional within the meaning of § 285, and that the District Court erred in granting recovery of the fees against them. We cannot reverse the District Court for the exercise of its discretion unless its findings were clearly erroneous. The trial judge made extensive findings in this area, Findings XXV-XXVIII, and found, inter alia, that the plaintiffs “knowingly and willfully concealed” Engle’s ownership interest in the patent; that this concealment misled the defendant and prolonged its efforts; that the plaintiffs misrepresented the character of exhibits (Finding XXVI), that plaintiffs and their counsel unnecessarily prolonged the taking of depositions by improper tactics (Finding XXVII), and that Engle refused to obey a subpoena to produce documents and was subsequently found to be in contempt of court (Finding XXVIII), of which he was later ordered purged. Our thorough review of the record discloses there exists substantial evidence to support these findings. We cannot say that they are unreasonable, or clearly wrong. The appellants cite Agrashell, Inc. v. Hammons Products Co., 248 F.Supp. 258, 260 (D.C.Mo.1965) for the proposition that the failure to join an indispensable party is not the sort of conduct which renders a patent suit exceptional. In that case, however, the trial court’s refusal to grant attorney’s fees was based upon the defendant’s delay in objecting to the lack of an indispensable party. Here, it was the plaintiffs who concealed the defect and the defendant made timely objection to Ashcroft’s failure to join Engle as a plaintiff. Although the trial court indicates and we might infer that its award may have been based solely on the costs to defendant arising out of this failure to join Engle rather than on the full range of conduct mentioned above, we still find no error. The award of $4,000.00 does not appear to be unreasonable or excessive," }, { "docid": "15013992", "title": "", "text": "that the right to attorneys’ fees did not mature until the patentee had failed to produce critical documents during the course of discovery. Id. at 824. The award was therefore based in essential part upon misconduct during the course of the litigation itself. Accord, Skil Corp. v. Lucerne Products, Inc., 503 F.2d 745 (7th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975). In the instant case, Paulson by his admissions reduced the dispute about the validity of Patent No. 3,541,-631 to a simple issue regarding the meaning of its terms. There is nothing to indicate that the defendant acted other than in good faith in defending its asserted construction of the patent. We therefore find the facts appearing on plaintiff’s motion for summary judgment insufficient to support a charge of willful misconduct or bad faith, either against the applicants in prosecuting their claim before the Patent Office or against the defendant in defending the patent issued, and we reverse the District Court’s order awarding attorneys’ fees. Because of this holding, we need not address the question of whether the plaintiff was disabled from obtaining an award of attorneys’ fees because of Moore’s alleged participation in the application for Patent No. 3,541,631 as an officer of D P Way Corporation. AFFIRMED IN PART; REVERSED IN PART. . Defendant also appeals from a permanent injunction by the District Court, restraining defendant from asserting rights under the patent, and from an order awarding plaintiff costs incurred in an effort to enforce the court’s award of attorneys’ fees. The merits of these actions were not addressed by the parties on appeal except as they were based on the court’s declaratory judgment and its award of attorneys’ fees. In accordance with our holding on the underlying issues,, we affirm the court’s issuance of the injunction and reverse its order awarding plaintiff the stated costs. . Plaintiff also named as defendants Howard E. Paulson, Duncan Johnstone, and James R. Wartinbee, Sr., who were officers, directors and shareholders of D P Way Corporation. These persons were dismissed as defendants on December" } ]

[ { "docid": "22776881", "title": "", "text": "in two respects. First, it misassigned the burden of proof. The final sentence of 35 U.S.C. § 282 mandates that “The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” Precedent adopted by this court pursuant to South Corp. v. United States, 690 F.2d 1368, 1369, 215 USPQ 657, 658 (Fed.Cir.1982), declares that burden to be permanent, emphasizing that § 282 * * * mandates not only a presumption shifting the burden of going forward in a purely procedural sense, but also places the burden of persuasion on the party who asserts that the patent is invalid. To speak of the presumption as “no longer attaching” is to risk a concomitant, and unspoken, assumption that the burden of persuasion is thereafter no longer upon him who asserts invalidity. That view is contrary to the meaning of § 282, for the burden of persuasion is and remains always upon the party asserting invalidity, whether the most pertinent prior art was or was not considered by the examiner. [Emphasis ours.] Solder Removal Co. v. U.S. International Trade Commission, 582 F.2d 628, 632-33, 199 USPQ 129, 133 (CCPA 1978) (footnotes omitted). SSIH Equipment, S.A. v. U.S. International Trade Comm., 718 F.2d 365, 375, 218 USPQ 678, 687 (1983). On this point we, like the CCPA, disagree with the Ninth Circuit position stated in Tveter, supra note 1, which was that because the examiner did not have certain prior art patents before him when examining the application for the patent in suit, which patents were closer art than he cited, the burden of proving non-obviousness was on the patentee. Our position is that this is never so because it would be contrary to the statute. The second and more general error in the above jury instruction was that it failed to explain accurately the “presumption of validity,” which is not surprising. The prevailing confusion in the cases over its meaning and effect has been engendered by assertions that under some circumstances the presumption is retained and under others it is destroyed, or that the" } ]

[ { "docid": "16747314", "title": "", "text": "burden may be more easily carried by evidence consisting of art more pertinent than that considered by the examiner. Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d 1452 at 1459 (Fed.Cir.1984); Solder Removal Co. v. United States International Trade Commission, 582 F.2d 628, 633, 199 USPQ 129, 133, 65 C.C.P.A. 120 (1978). “In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.” Stratoflex, 713 F.2d at 1534, 218 USPQ at 876. Thus, a holding that the burden has been met is synonymous with invalidity. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 699 n. 9, 218 USPQ 865, 871 n. 9 (Fed.Cir.1983), cert. denied, - U.S. -, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). Lear correctly challenges as erroneous the district court’s conclusion that the Stevenson patent should not be entitled to the statutory presumption of patent validity, because the Avrea patent application was not cited by the examiner when the Stevenson patent issued. The failure to cite specific prior art is not conclusive proof that the art was not considered. Solder Removal, 582 F.2d at 633 n. 9, 199 USPQ at 133 n. 9. Further, the introduction at trial of prior art even more pertinent than that considered by the examiner does not destroy the presumption of validity or shift to the patentee the basic burden of persuasion on invalidity. “The presumption continues its procedural burden-assigning role throughout the trial.” Stratoflex, 713 F.2d at 1534, 218 USPQ at 875-76. Thus can be deduced the futility of arguing one way or the other whether the presumption of validity applies as to specific prior art references, either on the basis of actual consideration by the examiner or otherwise. Here the parties, in an effort to effect or forestall application of the presumption to the disclosure of the Avrea patent, have contended at length over whether that disclosure was actually before the examiner allowing the Stevenson patent. The presumption of validity, however," }, { "docid": "16747312", "title": "", "text": "lockout tool which can be attached to the bearing plate to compress the spring and manually release the emergency brake. Independent claim 1 recites one end of the lockout tool as being so constructed as to “detachably interlock with [a] temporary holding means” on the bearing plate. Dependent claim 2 recites in additional detail the nature of the structure of the bearing plate and lockout tool required for effecting the bayonet-type detachable interlock between the two. Lear brought suit against Aeroquip for infringement of these claims. The district court found that the Avrea patent, while constituting the closest prior art to the Stevenson patent, had not been before the examiner who allowed it to issue. It conducted an analysis of the obviousness of the claims at issue according to the directions of Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966). Setting forth findings as to the scope and content of the prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art, the court concluded that the Stevenson patent was invalid for obviousness under 35 U.S.C. § 103. If valid, the Stevenson patent was further found to be not infringed by the accused product of Aeroquip. Lear appealed both conclusions, but as that regarding invalidity will be affirmed here, the question of infringement will not be discussed. OPINION I The presumption of patent validity found in 35 U.S.C. § 282 is but a procedural device which places on a party asserting invalidity the initial burden of going forward to establish a prima facie case on that issue. The decisionmaker is thus required to begin by accepting the proposition that the patent is valid and then look to the challenger for proof to the contrary. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Additionally, section 282 establishes that the burden of persuasion on the issue of invalidity also rests throughout the litigation with the party asserting invalidity, though this" }, { "docid": "8934601", "title": "", "text": "success, long-felt need and acquiescence are also relevant to the issue of validity. Graham, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. E. Presumption of validity and burden of proof Section 282, 35 U.S.C. creates a presumption that a patent is valid and imposes the burden on the attacker to prove invalidity by clear and convincing evidence. Hughes Tool Co. v. Dresser Indus., Inc., 816 F.2d 1549, 2 U.S.P.Q.2d 1396 (Fed.Cir.), cert. denied, — U.S. -, 108 S.Ct. 261, 98 L.Ed.2d 219 (1987); Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 U.S.P.Q. 481, 486 (Fed.Cir.1984). That burden remains upon the party asserting invalidity until final decision. Jones v. Hardy, 727 F.2d 1524, 220 U.S.P.Q. 1021 (Fed.Cir.1984) “Introduction of more pertinent art than that considered by the examiner does not ... weaken or destroy the presumption. Nor does such introduction ‘shift’ the basic burden of persuasion_ Such introduction can, of course, facilitate the challenger’s carrying of that burden.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 U.S.P.Q. 871, 875-76 (Fed.Cir.1983). “[The effect] of new prior art [not before the PTO] ... is to eliminate or at least reduce, the element of deference due the PTO, thereby partially, if not wholly, discharging the attacker’s burden....” Kimberly-Clark v. Johnson & Johnson, 745 F.2d 1437, 1443, 223 U.S.P.Q. 603, 606 (Fed.Cir.1984) (quoting American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1358-60, 220 U.S.P.Q. 763, 770-71 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984)); see also EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 905, 225 U.S.P.Q. 20, 24 (Fed.Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 181, 88 L.Ed.2d 108 (1985) (When no PTO view on obviousness is before the court, the patent challenger’s burden of proof under 35 U.S.C. § 282 is more easily carried.) The introduction of more pertinent prior art requires the party supporting validity to come forward with countervailing evidence. Stratoflex, 713 F.2d at 1534, 218 U.S.P.Q. at 875-76. “In the end, the question is whether all the evidence establishes" }, { "docid": "16747313", "title": "", "text": "at issue, and the level of ordinary skill in the pertinent art, the court concluded that the Stevenson patent was invalid for obviousness under 35 U.S.C. § 103. If valid, the Stevenson patent was further found to be not infringed by the accused product of Aeroquip. Lear appealed both conclusions, but as that regarding invalidity will be affirmed here, the question of infringement will not be discussed. OPINION I The presumption of patent validity found in 35 U.S.C. § 282 is but a procedural device which places on a party asserting invalidity the initial burden of going forward to establish a prima facie case on that issue. The decisionmaker is thus required to begin by accepting the proposition that the patent is valid and then look to the challenger for proof to the contrary. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Additionally, section 282 establishes that the burden of persuasion on the issue of invalidity also rests throughout the litigation with the party asserting invalidity, though this burden may be more easily carried by evidence consisting of art more pertinent than that considered by the examiner. Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d 1452 at 1459 (Fed.Cir.1984); Solder Removal Co. v. United States International Trade Commission, 582 F.2d 628, 633, 199 USPQ 129, 133, 65 C.C.P.A. 120 (1978). “In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.” Stratoflex, 713 F.2d at 1534, 218 USPQ at 876. Thus, a holding that the burden has been met is synonymous with invalidity. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 699 n. 9, 218 USPQ 865, 871 n. 9 (Fed.Cir.1983), cert. denied, - U.S. -, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). Lear correctly challenges as erroneous the district court’s conclusion that the Stevenson patent should not be entitled to the statutory presumption of patent validity, because the Avrea patent application was not" }, { "docid": "23312055", "title": "", "text": "to be used by other persons generally, either with or without compensation, or if it is, with his consent, put on sale for such use, then it will be in public use and on public sale, within the meaning of the law. 97 U.S. at 134-35. In the decision on appeal, the trial court looked for proof of an exception to the public use bar. However, in Elizabeth, the Supreme Court did not refer to “experimental use” as an “exception” to the bar otherwise created by a public use. More precisely, the Court reasoned that, if a use is experimental, even though not secret, “public use” is negated. This difference between “exception” and “negation” is not merely semantic. Under the precedent of this court, the statutory presumption of validity provided in 35 U.S.C. § 282 places the burden of proof upon the party attacking the validity of the patent, and that burden of persuasion does not shift at any time to the patent owner. It is constant and remains throughout the suit on the challenger. As stated in Richdel, Inc. v. Sunspool Corp, 714 F.2d 1573, 1579, 219 USPQ 8, 11-12 (Fed.Cir.1983): 35 USC 282 permanently places the burden of proving facts necessary to a conclusion of invalidity on the party asserting such invalidity. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed.Cir.1983); Solder Removal, supra, 582 F.2d [628] at 633, 199 USPQ at 133. Under this analysis, it is incorrect to impose on the patent owner, as the trial court in this case did, the burden of proving that a “public use” was “experimental.” These are not two separable issues. It is incorrect to ask: “Was it public use?” and then, “Was it experimental?” Rather, the court is faced with a single issue: Was it public use under § 102(b)? Thus, the court should have looked at all of the evidence put forth by both parties and should have decided whether the entirety of the evidence led to the conclusion that there had been “public use.” This does not mean, of course, that the challenger has" }, { "docid": "23649106", "title": "", "text": "or is not considered applicable. The need for clarity in the law and for avoidance of unnecessary disputes, however, has prompted this court to consider the question in banc. Section 282 provides that “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.’’ (Emphasis added.). As this court noted in Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 718 (Fed.Cir.1983): The presumption, like all legal presumptions, is a procedural device, not substantive law. It does require the de-cisionmaker to employ a decisional approach that starts with the acceptance of the patent claims as valid and that looks to the challenger for proof of the contrary. Thus the party asserting invalidity not only has the procedural burden of proceeding first and establishing a prima-facie case, but the burden of persuasion on the merits remains with that party until final decision____ With all evidence in, the trial court must determine whether the party on which the statute imposes the burden of persuasion has carried that burden. [Emphasis added.] 713 F.2d at 1534, 218 USPQ at 875. The foregoing description in Stratoflex coincides with the inclusion of § 282 in Chapter 29 of title 35, entitled “Remedies for Infringement of Patent, and Other Actions”. Both recognize that the presumption is operative to govern procedure in litigation involving validity of an issued patent. A statute setting rules of procedure and assigning burdens to litigants in a court trial does not automatically become applicable to proceedings before the PTO. Nor can it acquire an independent evidentiary role in any proceeding. As said in the legislative history of Chapter 30 of title 35 (“Prior Art Citations to Office and Reexamination of Patents”), reexamination “will permit any party to petition the patent office to review the efficacy of a patent, following its issuance, on the basis of new information about pre-ex-isting technology which may have escaped review at the time of the initial examination of the application.” House Report No. 66-1307, 96th Cong., 2d Sess. (1980), 3-4, reprinted in 1980 U.S.Code Cong. & Ad.News 6460," }, { "docid": "4154337", "title": "", "text": "or inconclusive.” Brunswick, 36 Fed.Cl. at 211&emdash; 12. The determination of a reasonable royalty “requires a highly case-specific and fact-specific analysis, relying upon mixed considerations of logic, common sense, justice, policy and precedent.” Boeing Co. v. United States, 86 Fed.Cl. 303, 311 (2009) (internal citations omitted) (quotation marks omitted). 3. Available defenses. Under Section 1498(a), “ ‘[i]n the absence of a statutory restriction, any defense available to a private party is equally available to the United States.’” Motorola, 729 F.2d at 769 (alterations in original) (quoting 28 U.S.C. § 1498 Revisor’s Notes). Accordingly, the government may avail itself of the invalidity defenses set forth in 35 U.S.C. § 282(b). See, e.g., Messerschmidt v. United States, 29 Fed.Cl. 1, 18-40, aff'd, 14 F.3d 613 (Fed.Cir.1993) (holding that patent was invalid for lack of novelty and for obviousness, addressing an infringement claim brought under Section 1498(a)). The government has the burden of proving invalidity by clear and convincing evidence, as opposed to merely the preponderance of the evidence. Microsoft Corp. v. i4i Ltd. P’ship, — U.S. -, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011)); Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286, 1291 (Fed.Cir.2013); Twin Disc, Inc. v. United States, 10 Cl.Ct. 713, 727 (1986) (quoting SSIH Equipment, S.A. v. International Trade Comm’n, 718 F.2d 365, 375 (Fed.Cir.1983)). This burden of persuasion remains on the party asserting invalidity throughout the pendency of the action. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983); see also In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1080 (Fed.Cir.2012) (holding that the trial court must “consider [ ] the objective evidence in its entirety before making an obviousness finding, and consider[ ] that evidence in light of the actual burden imposed on a patentee and a patent challengee”). To invalidate a patent for lack of novelty pursuant to Section 102(a) of Title 35, the asserted claim in the patent-in-suit must be anticipated. See 36 U.S.C, § 102(a) (2006) (“A person shall be entitled to a patent unless ... the invention was ... patented or described in a printed publication in this" }, { "docid": "18744228", "title": "", "text": "(Fed.Cir.1984). A patent is presumed valid, and the burden of establishing invalidity as to any claim of a patent rests upon the party asserting such invalidity. 35 U.S.C. § 282 (1982). The presumption of validity is a procedural device that mandates that the party asserting invalidity bears the initial burden of establishing a prima facie case of obviousness under 35 U.S.C. § 103. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Once a prima facie case has been established, the burden shifts to the patentee to go forward with rebuttal evidence showing facts supporting nonobviousness. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); accord, In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed.Cir.1984). The party asserting invalidity, however, always retains the burden of persuasion on the issue of obviousness until a final judgment is rendered. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1359, 219 USPQ 473, 478 (Fed.Cir.1983); Stratoflex, 713 F.2d at 1534, 218 USPQ at 875. Each fact forming the factual foundation upon which the court bases its ultimate conclusion regarding the obviousness of the claimed subject matter as a whole must be established by clear and convincing evidence. Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 USPQ 481, 486 (Fed.Cir.1984); SSIH Equipment Co. S.A. v. United States International Trade Commission, 718 F.2d 365, 375, 218 USPQ 678, 687 (Fed.Cir.1983). On appeal, however, the party subject to the adverse judgment on the issue of validity, in this case the patentee Ashland Oil, bears the burden of showing either that the district court committed reversible legal error in its ultimate conclusion as to obviousness, or that the district court’s probative factual findings underlying its ultimate conclusion on obviousness were clearly erroneous. Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1555, 225 USPQ 26, 30 (Fed.Cir.1985). A. CLAIM 10 OF THE ‘797 PATENT — PEP RESIN The district court found that the Pep resin of claim 10 contained some three ring and greater molecules, along with a substantial amount" }, { "docid": "23097792", "title": "", "text": "issue.” Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 885, 221 USPQ 1025, 1028 (Fed.Cir.1984). While “the burden of persuasion on the issue of invalidity also rests throughout the litigation with the party asserting invalidity,” id., if evidence is presented establishing a prima facie case of invalidity, the opponent of invalidity must come forward with evidence to counter the prima facie challenge to the presumption of section 282. This requirement is in no way contrary to the procedural role of the presumption of validity. Nor does it in substance shift the burden of persuasion on the issue. “In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 at 1534, 218 USPQ at 876 (Fed.Cir.1983). Likewise, on a motion for summary judgment, the burden is upon the movant in support thereof to demonstrate an absence of genuine issues of material fact and then the entitlement to judgment at law. Fed.R.Civ.P. 56(c). If a showing is made that would entitle the movant to judgment unless contradicted, then Fed.R. Civ.P. 56(e) states that the nonmovant has the burden to show that such a contradiction is possible; it cannot rest upon its allegations and pleadings. First National Bank v. First Bank Stock Co., 306 F.2d 937, 943 (9th Cir.1962). Indeed, this “shift of burden and the duty to come forward with possible contradiction of proof is the essence of Fed.R.Civ.P. 56.” DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1144, 206 USPQ 97, 104 (3d Cir.1980) (cited and quoted in part in D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d 1144, 1150, 219 USPQ 13, 17-18 (Fed. Cir.1983)). Here, once Genmark had established its prima facie case for summary judgment, which would have included a prima facie case for overcoming the presumption of validity, it fell upon Cable to submit evidence setting forth specific facts raising a genuine issue for trial. First National Bank v. Cities Service Co.," }, { "docid": "22358626", "title": "", "text": "burden of proceeding first and establishing a primafacie case, but the burden of persuasion on the merits remains with that party until final decision. The party supporting validity has no initial burden to prove validity, having been given a procedural advantage requiring that he come forward only after a prima-facie case of invalidity has been made. With all the evidence in, the trial court must determine whether the party on which the statute imposes the burden of persuasion has carried that burden. Introduction of more pertinent prior art than that considered by the examiner does not, therefore, “weaken” or “destroy” the presumption. Nor does such introduction “shift” the basic burden of persuasion. The presumption continues its procedural, burden-assigning role throughout the trial. Such introduction can, of course, facilitate the validity challenger's carrying of that burden. It would require one supporting validity to come forward with countervailing evidence, as would the introduction of any evidence tending to establish invalidity. In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid. The error here, in denying Aeroquip the “benefit” of the presumption, was more rhetorical than substantive, and did not in this ease rise to a level requiring reversal. The record does not indicate that Judge Boyle placed a burden of proving validity on Aeroquip. On the contrary, her full and exhaustive consideration of the prior art indicated a careful evaluation of the case made by the burden-bearing Stratoflex. We have, of course, reviewed the record here in light of the burden assigned Stratoflex by 35 U.S.C. § 282. (B) Obviousness The declaration that claims 1, 3, 4, 6, and 7 of the ’087 patent are invalid was based on a conclusion that the inventions set forth in those claims would have been obvious under 35 U.S.C. § 103, in the light of facts found in the course of following the guidelines set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693," }, { "docid": "23097791", "title": "", "text": "1567, 1573, 220 USPQ 584, 589 (Fed.Cir.1984). In short, such errors as may be demonstrated must have further been harmful. See 28 U.S.C. § 2111. Accord Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1580, 219 USPQ 8, 12 (Fed.Cir.1983). C. Burdens of Proof The burdens of demonstrating the absence of genuine issues of material fact and the entitlement to judgment as a matter of law is upon the summary judgment movant, Genmark. Cooper, 748 F.2d at 679, 223 USPQ at 1288. In this instance, as Genmark is also the party asserting the invalidity of a United States patent, the burden of demonstrating an entitlement to judgment as a matter of law includes the burden of overcoming the presumption of patent validity found in 35 U.S.C. § 282. Cable claims that, despite explicit mention by the district court, the presumption of validity was not observed. The presumption of section 282 is “a procedural device which places on a party asserting invalidity the initial burden of going forward to establish a prima facie case on that issue.” Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 885, 221 USPQ 1025, 1028 (Fed.Cir.1984). While “the burden of persuasion on the issue of invalidity also rests throughout the litigation with the party asserting invalidity,” id., if evidence is presented establishing a prima facie case of invalidity, the opponent of invalidity must come forward with evidence to counter the prima facie challenge to the presumption of section 282. This requirement is in no way contrary to the procedural role of the presumption of validity. Nor does it in substance shift the burden of persuasion on the issue. “In the end, the question is whether all the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 at 1534, 218 USPQ at 876 (Fed.Cir.1983). Likewise, on a motion for summary judgment, the burden is upon the movant in support thereof to demonstrate an absence of genuine issues of material fact and" }, { "docid": "4154338", "title": "", "text": "131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011)); Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286, 1291 (Fed.Cir.2013); Twin Disc, Inc. v. United States, 10 Cl.Ct. 713, 727 (1986) (quoting SSIH Equipment, S.A. v. International Trade Comm’n, 718 F.2d 365, 375 (Fed.Cir.1983)). This burden of persuasion remains on the party asserting invalidity throughout the pendency of the action. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983); see also In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1080 (Fed.Cir.2012) (holding that the trial court must “consider [ ] the objective evidence in its entirety before making an obviousness finding, and consider[ ] that evidence in light of the actual burden imposed on a patentee and a patent challengee”). To invalidate a patent for lack of novelty pursuant to Section 102(a) of Title 35, the asserted claim in the patent-in-suit must be anticipated. See 36 U.S.C, § 102(a) (2006) (“A person shall be entitled to a patent unless ... the invention was ... patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent.”). . Although validity is a legal issue, anticipation is a question of fact. Atofina v. Great Lakes Chem. Corp., 441 F.3d 991, 995 (Fed.Cir.2006). “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed.Cir.1987). If there is not strict equivalence between the prior art reference and each and every element set forth in the claim, “the proper inquiry is obviousness, not [anticipation].” Messerschmidt, 29 Fed.Cl. at 21; see Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 726 (Fed.Cir.2002) (“Indeed the obviousness inquiry weighs the differences between the claimed invention and non-anticipating prior art references to determine whether one of skill in the art would have considered the invention obvious at the time of invention.”); see also Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed.Cir.1983) (“A prior" }, { "docid": "18744227", "title": "", "text": "(2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) where relevant, objective evidence of nonobviousness, e.g., long-felt need, commercial success, failure of others, copying, unexpected results, i.e., the secondary considerations. Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894, 221 USPQ 669, 674 (Fed.Cir.1984); Jones v. Hardy, 727 F.2d 1524, 1527, 220 USPQ 1021, 1023 (Fed. Cir.1984); W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 USPQ 303, 311 (Fed.Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). These factual findings serve as the foundation upon which the court bases its ultimate conclusion regarding the obviousness of the claimed subject matter as a whole. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 890, 221 USPQ 1025, 1033 (Fed.Cir.1984). This court reviews the ultimate conclusion of obviousness as one of law on which it must exercise independent judgment. Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1573, 220 USPQ 584, 589 (Fed.Cir.1984). A patent is presumed valid, and the burden of establishing invalidity as to any claim of a patent rests upon the party asserting such invalidity. 35 U.S.C. § 282 (1982). The presumption of validity is a procedural device that mandates that the party asserting invalidity bears the initial burden of establishing a prima facie case of obviousness under 35 U.S.C. § 103. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Once a prima facie case has been established, the burden shifts to the patentee to go forward with rebuttal evidence showing facts supporting nonobviousness. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); accord, In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed.Cir.1984). The party asserting invalidity, however, always retains the burden of persuasion on the issue of obviousness until a final judgment is rendered. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1359, 219 USPQ 473, 478 (Fed.Cir.1983); Stratoflex, 713 F.2d at 1534, 218 USPQ at 875. Each fact forming" }, { "docid": "23540170", "title": "", "text": "erroneous. Burden of Proof Far-Mar-Co contends that the district court erroneously imposed upon it the burden of proving insufficient disclosure in the parent application; also, that Ralston, as the party asserting adequate disclosure, should have borne the burden of demonstrating that adequate legal support exists. Ralston, on the other hand, argues that the district court correctly placed the burden of overcoming the presumption of validity by demonstrating insufficiency of disclosure on Far-Mar-Co, and found that Far-Mar-Co had not shown by clear and convincing evidence that it had met that burden. Far-Mar-Co incorrectly treats the burden of establishing a prima facie case of insufficiency of disclosure as if it bears no relationship to the burden of overcoming the presumption of validity accorded a patent under 35 U.S.C. § 282. A patent is presumed valid, and the burden of persuasion to the contrary is and remains on the party asserting invalidity. W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 313 (Fed.Cir.1983), cert. denied, — U.S.-, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). In addition, the party asserting invalidity also bears the initial procedural burden of going forward to establish a legally sufficient prima facie case of invalidity. If this burden is met, the party relying on validity is then obligated to come forward with evidence to the contrary. Before rendering its judgment, the court must determine whether “all of the evidence establishes that the validity challenger so carried his burden as to have persuaded the decisionmaker that the patent can no longer be accepted as valid.\" Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 885, 221 USPQ 1025, 1028 (Fed.Cir.1984). A party asserting invalidity based on 35 U.S.C. § 112 bears no less a burden and no fewer responsibilities than any other patent challenger. Far-Mar-Co’s burden of proof before the district court was to show by clear and convincing evidence that Flier was invalid. See, e.g., Pennwalt Corp. v. Akzona, Inc., 740 F.2d 1573, 1578, 222 USPQ 833, 836 (Fed.Cir.1984). The district court recognized and enunciated these rules. Accordingly, we hold that it did" }, { "docid": "8934600", "title": "", "text": "in determining whether a claimed invention would have been obvious is what the combined teachings of the references would have suggested to one of ordinary skill in the art.) Factors relevant to that test are: (a) the scope and content of prior art; (b) the differences between the prior art and the patented design; and (c) the level of ordinary skill in the art at the time the invention was made. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 556, 148 U.S.P.Q. 459, 467 (1966); Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1441-43, 221 U.S.P.Q. 97, 108 (Fed.Cir.1984). Obviousness is not established by “combining the teachings of prior art to produce the claimed invention, absent some teaching or suggestion that the combination be made.” In re Stencel, 828 F.2d 751, 4 U.S.P.Q.2d 1071 (Fed.Cir.1987); Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143, 227 U.S.P.Q. 543, 551 (Fed.Cir.1985); In re Corkill, 771 F.2d 1496, 1501-02, 226 U.S.P.Q. 1005, 1009-10 (Fed.Cir.1985). Secondary considerations such as commercial success, long-felt need and acquiescence are also relevant to the issue of validity. Graham, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. E. Presumption of validity and burden of proof Section 282, 35 U.S.C. creates a presumption that a patent is valid and imposes the burden on the attacker to prove invalidity by clear and convincing evidence. Hughes Tool Co. v. Dresser Indus., Inc., 816 F.2d 1549, 2 U.S.P.Q.2d 1396 (Fed.Cir.), cert. denied, — U.S. -, 108 S.Ct. 261, 98 L.Ed.2d 219 (1987); Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 U.S.P.Q. 481, 486 (Fed.Cir.1984). That burden remains upon the party asserting invalidity until final decision. Jones v. Hardy, 727 F.2d 1524, 220 U.S.P.Q. 1021 (Fed.Cir.1984) “Introduction of more pertinent art than that considered by the examiner does not ... weaken or destroy the presumption. Nor does such introduction ‘shift’ the basic burden of persuasion_ Such introduction can, of course, facilitate the challenger’s carrying of that burden.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 U.S.P.Q." }, { "docid": "22358625", "title": "", "text": "not use that process. Issues Whether Judge Boyle erred in: (1) declaring claims 1, 3, 4, 6, and 7 invalid; (2) finding non-infringement. I. VALIDITY (A) Presumption of Validity The law, 35 U.S.C. § 282, provides: A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though defendant upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. See, also, Solder Removal Co. v. USITC, 582 F.2d 628, 65 CCPA 120, 199 USPQ 129, 133 (CCPA, 1978). The presumption, like all legal presumptions, is a procedural device, not substantive law. It does require the decisionmaker to employ a decisional approach that starts with acceptance of the patent claims as valid and that looks to the challenger for proof of the contrary. Thus the party asserting invalidity not only has the procedural burden of proceeding first and establishing a primafacie case, but the burden of persuasion on the merits remains with that party until final decision. The party supporting validity has no initial burden to prove validity, having been given a procedural advantage requiring that he come forward only after a prima-facie case of invalidity has been made. With all the evidence in, the trial court must determine whether the party on which the statute imposes the burden of persuasion has carried that burden. Introduction of more pertinent prior art than that considered by the examiner does not, therefore, “weaken” or “destroy” the presumption. Nor does such introduction “shift” the basic burden of persuasion. The presumption continues its procedural, burden-assigning role throughout the trial. Such introduction can, of course, facilitate the validity challenger's carrying of that burden. It would require one supporting validity to come forward with countervailing evidence, as would the introduction of any evidence tending to establish invalidity. In the end, the question is whether all the evidence establishes that the validity challenger so carried" }, { "docid": "22238103", "title": "", "text": "F.2d 1565, 1570 (Fed.Cir.1986). However, this requirement does not “in substance shift the burden of persuasion,” Cable Elec., 770 F.2d at 1022, because “the presumption of validity remains intact and the ultimate burden of proving invalidity remains with the challenger throughout the litigation.” Mas-Hamilton Group, 156 F.3d at 1216; see also Innovative Scuba Concepts, Inc. v. Feder Indus., Inc., 26 F.3d 1112, 1115 (Fed.Cir.1994); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 287 (Fed.Cir.1985). The trial court has the responsibility to determine whether the challenger has met its burden by clear and convincing evidence by considering the totality of the evidence, including any rebuttal evidence presented by the patentee. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983). The basis (as opposed to the mere existence) of an examiner’s initial finding of prima facie obviousness of an issued patent is therefore, at most only one factual consideration that the trial court must consider in context of the totality of the evidence “in determining whether the party asserting invalidity has met its statutory burden by clear and convincing evidence.” Fromson, 755 F.2d at 1555. It does not, however, lessen or otherwise affect the burden of proof, nor does it require that unless the patentee introduces evidence of secondary considerations to establish non-obviousness, the patent challenger will necessarily prevail. C. The underlying factual determinations made by the trial court that this court must review for clear error include (1) the scope and content of the prior art, (2) the level of ordinary skill in the art, (3) the differences between the claimed invention and the prior art, and (4) objective indicia of non-obviousness. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). We start by noting that the parties stipulated to many of the facts, but disagree as to the ultimate legal outcome of obviousness based upon those facts. The parties do not dispute that benzene sulphonate was known in the art at the time of the inventions claimed in the '909 and '303 patents. Pfizer admitted that several publications," }, { "docid": "18418972", "title": "", "text": "demonstrates that plaintiff presented sufficient evidence to carry its burden to prove infringement by a preponderance of the evidence and that defendant did not present evidence that so overwhelmingly favored its position that the jury clearly erred in finding that the LendingTree Exchange literally infringes the ’947 patent. The court concludes that the jury’s verdict is not against the great weight of the evidence and will not result in a miscarriage of justice. The court declines to grant a new trial on these grounds. 3. Validity a. Legal Standard A patent is presumed valid and the burden of proving invalidity, whether under § 112 or otherwise, rests with the challenger. See 35 U.S.C. § 282. In order to overcome this presumption, the party challenging validity bears the burden of proving, by clear and convincing evidence, that the invention fails to meet the requirements of patentability. See Hewlett-Packard Co. v. Bausch & Lomb, 909 F.2d 1464, 1467 (Fed.Cir.1990). Clear and convincing evidence is evidence that “could place in the ultimate factfinder an abiding conviction that the truth of [the] factual contentions [is] ‘highly probable.’ ” Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). Corroboration of a witness’ oral testimony is required to invalidate a patent under 35 U.S.C. § 102. See Finnigan Corp. v. International Trade Comm’n, 180 F.3d 1354, 1367 (Fed.Cir.1999). This requirement exists regardless of whether the witness is an interested party or an uninterested party. See id. at 1367-68. Corroboration has been required by the courts “because of doubt that testimonial evidence alone in the special context of proving patent invalidity can meet the clear and convincing evidentiary standard to invalidate a patent.” Id. at 1368. Under 35 U.S.C. § 102(b), “[a] person shall be entitled to a patent unless the invention was patented or described in a printed publication in this or a foreign country ... more than one year prior to the date of the application for patent in the United States.” A claim is anticipated only if each and every limitation as set forth in the claim is" }, { "docid": "8877656", "title": "", "text": "note several errors of law in the analysis contained in the Sun-spool-proposed conclusions of law which it adopted. It was error for the trial court to have implicitly required Richdel to prove that the prior art herein had been considered by the PTO; rather, the burden was on Sunspool to show that that prior art had not been considered. See Solder Removal Co. v. ITC, 65 C.C.P.A. 120, 582 F.2d 628, 633 n. 9, 199 USPQ 129, 133 n. 9 (1978). It was error for the trial court to have shifted the burden of proof and so require Richdel to prove facts necessary to a conclusion of nonobviousness. 35 U.S.C. § 282 permanently places the burden of proving facts necessary to a conclusion of invalidity on the party asserting such invalidity. Stratoflex, Inc., v. Aeroquip Corp., 713 F.2d 1530 (Fed.Cir.1983); Solder Removal, supra, 582 F.2d at 633, 199 USPQ at 133. It was error for the district court to assert that the differences between the claimed invention and the prior art had to be nonobvious; it is the claimed subject matter as a whole which § 103 says must be nonobvious, not the differences. It was error for the district court to derogate the likelihood of finding patentable invention in a combination of old elements. No species of invention is more suspect as a matter of law than any other. Attempted categorization for the purpose of determining varying “rules” detracts from what should be the sole question: whether the claimed invention would have been obvious within the meaning of § 108. Most, if not all, inventions are combinations and mostly of old elements. Stratoflex, supra, 713 F.2d at p. 1540. It was also error for the district court to assert that “innovation is not invention.” The terms are, at least since the 1952 Patent Act, legally synonymous. Innovation is always invention; it may not be patentable invention. “Invention,” since the advent of § 103, is no longer the prerequisite to patentability which it was prior to 1952. Graham v. .John Deere. The district court erred in saying: “Where a patent" }, { "docid": "22850461", "title": "", "text": "F.2d 529, 533-34, 100 USPQ 12, 15 (9th Cir.1953), cert. denied, 348 U.S. 816, 75 S.Ct. 26, 99 L.Ed. 643 (1954). M-K failed to explain or excuse the seven-year delay in “discovering” this new prior art. Moreover, this new prior art was not discovered until the appellant had its day in court and after new counsel had been substituted for its trial counsel. In addition, the newly discovered prior art did not prima facie compel a different result. See Borg-Warner Corp. v. Mall Tool Co., 220 F.2d 803, 806, 105 USPQ 147, 149 (7th Cir.1955). The district court, thus, did not abuse its discretion in denying appellant’s motion. The appellant also contends that the district court improperly relied on the presumption of validity as provided in 35 U.S.C. § 282 in its findings of validity of the ’417 and reissue patents. For instance, the “Tower” apparatus, Minty ’884 patent and Ramsden patent were not before the PTO during the prosecution of the ’417 and ’862 patents. Contrary to appellant’s contention, the party asserting invalidity bears the burden of proof even if the prior art references were not before the PTO. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 at 1534 (Fed.Cir.1983); Solder Removal Co. v. USITC, 582 F.2d 628, 632-33, 199 USPQ 129, 132-33, 65 Cust. & Pat.App. 120 (1978). Although the appellant contends that the standard of proof should change from the “clear and convincing” standard to the “preponderance of the evidence” standard once it presents prior art not before the PTO, we need not decide which standard is appropriate since the appellant had failed to meet its burden under either standard. The appellant further contends that because of the public interest in striking down invalid patents, this court should consider the Minty ’884 and Ramsden patents. Since these patents are not in the record, we cannot do so. Unless authorized by statute, appellate courts cannot consider evidence de novo. See Youngs Rubber Corp. v. C.I. Lee & Co., 45 F.2d 103, 106, 8 USPQ 6, 7 (2d Cir.1930); Chisholm-Ryder Co. v. Buck, 65 F.2d 735, 18 USPQ 31" } ]

[ { "docid": "2282165", "title": "", "text": "the street in Wichita, he stated to them that Herndon was his partner, and that he became excited when the federal officers came out. Several witnesses testified that they were in the retail liquor business in or near Wichita, and had purchased liquor in wholesale quantities from Young on various occasions during 1943, 1944 and 1945. One of the witnesses testified that he purchased liquor from Herndon at the Young farm. Neither Young, Deer nor Polk had wholesale liquor dealer stamps during the years 1943, 1944 and 1945, except that Young held one from September 28 until October 18, 1944. They did not file reports required of wholesale liquor dealers, and there were no wholesale liquor dealer signs at the Young farm, or at the Burch terminal, or at any other place operated by the appellants. It is well to remember that in the very nature of things, unlawful conspiracies are seldom provable by direct and positive evidence. Ordinarily they must be established by circumstantial evidence, and “it is sufficient if the circumstances, acts, and conduct of the parties are of such character that the minds of reasonable men can conclude therefrom that an unlawful agreement exists.” Garhart v. United States, 10 Cir., 157 F.2d 777, 781. See also Wilder v. United States, 10 Cir., 100 F.2d 177. Nor is it essential that each conspirator participate in or have knowledge of all of the operations of the conspiracy. It is enough if a conspiracy is formed, and the several persons convicted knowingly contributed their efforts in furtherance of it. Berenbeim v. United States, 10 Cir., 164 F.2d 679. The evidence is amply sufficient to show that an agreement to transport liquor from Chicago to Wichita was formed in the early part of 1943, and that pursuant to such agreement, liquor in very large quantities was transported from Chicago to the Burch terminal in Wichita, where it was immediately loaded into trucks for destinations elsewhere. The jury was justified in believing that Young’s partner, Herndon, assisted in the transportation of liquor from Burch’s terminal, and that part of it at least" } ]

[ { "docid": "23404112", "title": "", "text": "three appellants. It is alleged there has been insufficient evidence to conclude that appellants agreed to violate the federal narcotics laws; at best the government has merely shown several independent, unrelated conspiracies. Once again we must give deference to the jury’s decision if the conduct, acts and circumstances are such that minds of reasonable men might conclude therefrom the existence of an unlawful agreement. Jones v. United States, 251 F.2d 288 (10th Cir. 1958), cert. denied, 356 U.S. 919, 78 S.Ct. 703, 2 L.Ed.2d 715. It is not essential that each conspirator have knowledge of all the activities of the conspirators nor must each participate in all the activities in furtherance of the conspiracy. McManaman v. United States, 327 F.2d 21 (10th Cir. 1964), cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307. If the conspiracy is established and the convicted persons knowingly contributed their efforts in furtherance of it, then the convictions must stand. Young v. United States, 168 F.2d 242 (10th Cir. 1948), cert. denied, 334 U.S. 859, 68 S.Ct. 1534, 92 L.Ed. 1780. The evidence, viewed in the light most favorable to the government, reveals that Jackson and Series met on two occasions to discuss shipping contraband into the United States. Jackson offered Series $15,000 to participate in the smuggling venture. Price mentioned Jackson in his conversations with Series and picked up the contraband package from Jackson’s house. Gainous suggested that Trice meet the “big man” at Jackson’s tavern, just as Jackson had told Series to meet him there. Gainous offered Trice the same amount of money to pick up the heroin package that Jackson offered Series to send it. Gainous, through some channel of communication, knew of Series’ arrest two days after it occurred. Shortly before Jackson and Gainous were arrested they were seen together in Jackson’s trailer home in Goldsboro, North Carolina. Conspiracy by nature involves secrecy and thus the proof to support a conviction is necessarily indirect. The elements of the crime may be established by circumstantial evidence and the common purpose inferred from the development or combination of circumstances. Jordan v." }, { "docid": "2649876", "title": "", "text": "v. Waterfront Comm’n, 378 U.S. 52, 55 [84 S.Ct. 1594, 1596, 12 L.Ed.2d 678], which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Griffin v. State of California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106, reh. den. 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730. We would be remiss in holding, particularly where prejudice is so clearly apparent, that an error of constitutional dimensions does not affect substantial rights. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. The error is plain; and, notwithstanding the fail ure to object, the comments cannot be condoned. Appellant Gilbert, who testified in his own behalf at the trial, challenges the sufficiency of the evidence to support the jury’s verdict finding him guilty of conspiracy to violate several Internal Revenue laws of the United States. A conviction under 18 U.S.C.A. Sec. 371 requires “Proof of an agreement to commit an offense against the United States.” Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 364, 98 L.Ed. 435. In Jones v. United States, 10th Cir. 1958, 251 F.2d 288, 290, it is stated by this Court: “ ‘In determining [the question of] the sufficiency of the evidence to support a verdict, the inferences to be drawn therefrom are viewed in the light most favorable to.the prosecution.’ O’Neal v. United States (10th Cir. 1957, 240 F.2d 700, 701); Seefeldt v. United States, 10 Cir., 183 F.2d 713; Wilder v. United States, 10 Cir., 100 F.2d 177. The agreement need not be in any particular form. By its nature it is seldom susceptible of direct proof. Ordinarily conspiracies can be established only by the acts and conduct of the conspirators and the inferences to be drawn therefrom. Butler v. United States, 10 Cir., 197 F.2d 561. Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such" }, { "docid": "15030264", "title": "", "text": "its instructions what is not the law of the case nor to give instrue tions <!in the language offered by the litigants or outline all possible factual situations which would fail to show one’s connection with a conspiracy.” Butler v. United States, 10 Cir., supra, 197 F.2d at page 564. See also Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021. We have reviewed this voluminous record in detail and find that the trial court conducted a rather difficult case with extreme care to protect all of the rights of the defendants. We find no error affecting any substantial rights of the defendants except as to T. Martin Edwards, John David Hood, and Don T. Gray. The judgment is affirmed as to all defendants on the first count except the defendant Gray; judgment is reversed as to the defendant Gray and as to the defendants T. Martin Edwards and John David Hood on the second count only. . In the Young case, the court said: “It is 'well to remember that in the very nature of things, unlawful conspiracies are seldom provable by direct and positive evidence. Ordinarily they must be established by circumstantial evidence, and ‘it is sufficient if the circumstances, acts, and conduct of the parties are of such character that the minds of reasonable men can conclude therefrom that an unlawful agreement exists.’ Garhart v. United States, 10 Cir., 157 F.2d 777, 781. See also Wilder v. United States, 10 Cir., 100 F.2d 177. Nor is it essential that each conspirator participate in or have knowledge of all of the operations of the conspiracy. It is enough if a conspiracy is formed, and the several persons convicted knowingly contributed their efforts in furtherance of it. Berenbeim v. United States, 10 Cir., 164 F.2d 679.” . Bill Edwards testified that it was decided that, after expense, Jones was to receive 50% of the income and the remaining 50% was to be divided equally among the three. The expenses were to include a $500 per month payment to Livingston, Tulsa Chief of Police, and $200" }, { "docid": "16004266", "title": "", "text": "motion as a motion for a judgment of acquittal upon the grounds of insufficiency of the evidence, an examination of the record discloses that there is ample evidence to sustain the verdict on each count. 18 U.S.C.A. § 371, makes it a crime to conspire to commit an offense against the United States. The crime of conspiracy is complete when two or more persons agree or combine together to commit an offense against the United States and supplement the agreement or combination with an overt act in furtherance thereof. Madsen v. United States, 10 Cir., 165 F.2d 507. The agreement need not be in any particular form. It is frequently not susceptible of direct proof and may be inferred from statements and acts of the parties together with other circumstances. Wilder v. United States, 10 Cir., 100 F.2d 177. In determining the sufficiency of the evidence to support a verdict, the inferences to be drawn therefrom are viewed in the light most favorable to the prosecution. Evans v. United States, 10 Cir., 240 F.2d 695; Seefeldt v. United States, 10 Cir., 183 F.2d 713; Wilder v. United States, supra. The record discloses that in December of 1955, O’Neal was operating a beer tavern adjacent to the Huber Hotel in Muskogee, Oklahoma. On or about the 13th day of December, 1955, O’Neal and Carmack were in Kilgore, Texas. They talked to several women who were working as waitresses in taverns near Kilgore, attempting to get them to work as prostitutes. At about that time they left Kilgore with two girls aged 17 and 19, traveling in O’Neal’s automobile. At Ft. Worth, Texas they all registered at a hotel under assumed names, at which one of the girls worked for several days as a prostitute. The other girl did not work in Ft. Worth because of illness. They then proceeded to Muskogee, Oklahoma, where, upon arrival, they stayed at a motel under a registration by O’Neal as J. W. Wallace of Kilgore, Texas. One of the girls went to work for O’Neal at his beer tavern as a waitress. She then registered" }, { "docid": "15030248", "title": "", "text": "be given credit for these payments on any exactions which were required thereafter. Jones was elected, and took office on May 8, 1956. In the latter part of May, Bill Edwards and Hirrlinger met with the defendants Jones, Livingston, Gott, and McAfee, at Hirrlinger’s home near Tulsa for the purpose of completing the control and payoff arrangements. Livingston had been appointed Chief of Police and Gott was a long-time head of the Tulsa police vice squad. McAfee was a billiard hall operator in Tulsa. At this meeting specific arrangements were made to require payments from persons who were selling intoxicating liquor, engaging in gambling or prostitution operations. Livingston v/as the spokesman at this meeting and the division of the money to be realized was drastically changed from the original understanding. The principal difference was a division of 20% each to Livingston and officer Gott, 40% to Jones, and a reduction to 10% for Bill Edwards, Hirrlinger and McAfee together. Bill Edwards was to take charge of the liquor operations, McAfee the gambling, and Hirrlinger the prostitution activities. As to the payments to be exacted from the liquor dealers, Bill Edwards testified that he was to contact the bootleggers and let them know that he was in a position to help them in their business if they would cooperate. The cooperation included the payment of $100 per month. Those operating places known as “walk-ins” were to pay a minimum of $250 per month. They were told that those who did not make the payments would be reported to the police vice squad for raiding and arrest. The vice squad would be given the information regarding those who paid, including a complete description of their ears. They would not be molested by the vice squad, but given a free range. The liquor dealers were assured that price cutting activities were not to be tolerated. It was understood that if the required payments were not made, the vice squad should take necessary and appropriate action to put them out of business. Early in June, 1956, Bill Edwards, Hirrlinger, Jones, Livingston, Gott and McAfee" }, { "docid": "21322158", "title": "", "text": "or clear. The nature of the offense and the secrecy involved require that the elements of the crime be established by circumstantial evidence. As the Supreme Court said in Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154: “Secrecy and concealment are essential features of successful conspiracy. * * * Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others. Otherwise the difficulties, not only of discovery, but of certainty in proof and of correlating proof with pleading would become insuperable, and conspirators would go free by their very ingenuity.” The Supreme Court also stated in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, that a criminal conspiracy need not be proved by direct evidence and that a common purpose or plan may be inferred from the development or the combination of circumstances. Our court has considered this issue of proof in a number of cases, including Wilder v. United States, 100 F.2d 177 (10th Cir.); Young v. United States, 168 F.2d 242 (10th Cir.), cert. den. 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1779; Seefeldt v. United States, 183 F.2d 713 (10th Cir.); O’Neal v. United States, 240 F.2d 700 (10th Cir.) ; Jones v. United States, 251 F.2d 288 (10th Cir.); Dennis v. United States, 302 F.2d 5 (10th Cir.); McManaman v. United States, 327 F.2d 21 (10th Cir.). These cases again mention that by its nature a conspiracy is seldom susceptible of direct proof and ordinarily the crime can be established only by showing acts and conduct of the conspirators and by the inferences to be drawn therefrom. Also the convictions will be sustained if in the circumstances, the acts and conduct of the parties are of such character that the minds of reasonable men will conclude therefrom that an agreement exists. It is, of course, not essential that each conspirator participate in or have" }, { "docid": "16004265", "title": "", "text": "PICKETT, Circuit Judge. The first count of an indictment charged William Pat O’Neal and Wesley Carmack with conspiracy to transport women in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C.A. § 371. The second count charged defendants with transporting two women in interstate commerce from Ft. Worth, Texas to Muskogee, Oklahoma for the purpose of prostitution and debauchery, in violation of 18 U.S.C.A. § 2421. Defendants were convicted and sentenced on both counts. O’Neal has appealed. At the close of the government’s evidence, O’Neal moved the court “to advise the jury for a verdict of not guilty”. The motion was overruled and the defendants rested, without introducing any evidence. The motion was then renewed and overruled, which action is now assigned as error. Motions for directed verdicts are abolished and the proper procedure to raise the question as to the sufficiency of the evidence is by motion for judgment of acquittal. Rule 29(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.; United States v. Jones, 7 Cir., 174 F.2d 746. Considering the motion as a motion for a judgment of acquittal upon the grounds of insufficiency of the evidence, an examination of the record discloses that there is ample evidence to sustain the verdict on each count. 18 U.S.C.A. § 371, makes it a crime to conspire to commit an offense against the United States. The crime of conspiracy is complete when two or more persons agree or combine together to commit an offense against the United States and supplement the agreement or combination with an overt act in furtherance thereof. Madsen v. United States, 10 Cir., 165 F.2d 507. The agreement need not be in any particular form. It is frequently not susceptible of direct proof and may be inferred from statements and acts of the parties together with other circumstances. Wilder v. United States, 10 Cir., 100 F.2d 177. In determining the sufficiency of the evidence to support a verdict, the inferences to be drawn therefrom are viewed in the light most favorable to the prosecution. Evans v. United States, 10 Cir., 240 F.2d 695;" }, { "docid": "15030244", "title": "", "text": "David Hood were found guilty on the second count. Each defendant was sentenced on the first count to be imprisoned for one year and to pay a fine of $1,000. T. Martin Ed wards and Hood were sentenced to serve a term of one year on the second count, to run concurrently with the sentence received on the first count. All the defendants convicted have appealed. One of the principal grounds for reversal is that the evidence does not establish the existence of a conspiracy to violate Federal laws. The Federal Statute makes it a crime to conspire to commit an offense against the United States. The offense is complete when two or more persons combine together to commit an offense against the United States and do any act to effect the object, of the conspiracy. 18 U.S.C.A. § 371; O’Neal v. United States, 10 Cir., 240 F.2d 700, 701. “In determining [the question of] the sufficiency of the evidence to support a verdict, the inferences to be drawn therefrom are viewed in the light most favorable to ■ the prosecution.” O’Neal v. United States, supra; Seefeldt v. United States, 10 Cir., 183 F.2d 713; Wilder v. United States, 10 Cir., 100 F.2d 177. The agreement need not be in any particular form. By its nature it is seldom susceptible of direct proof. Ordinarily conspiracies can be established only by the acts and conduct of the conspirators and the inferences to be drawn therefrom. Butler v. United States, 10 Cir., 197 F.2d 561. Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists. O’Neal v. United States, supra; Heald v. United States, 10 Cir., 175 F.2d 878, certiorari denied 338 U.S. 859, 70 S.Ct. 101, 94 L.Ed. 526; Young v. United, States, 10 Cir., 168 F.2d 242, 245, certiorari denied 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1780. A summary of the evidence discloses that early in the year 1956 the defendant Jones was a candidate for" }, { "docid": "15030254", "title": "", "text": "state officers, exacted payments from the still operators for being allowed to continue their business. Referring to the conduct of the officers, the court said [100 F.2d 183]: “their mere failure to enforce such laws or to prevent a conspiracy to violate them, without more, is not enough to support a conviction upon a charge of violating * * * ” the Federal Conspiracy Statute. The court continued that it was “necessary to prove that they consented in some affirmative way to become a party to the concert of action.” Therein lies the distinction between the Wilder case and this case. Here it was not a matter of inaction on the part of the city officials Jones, Livingston and Gott. They were the original conspirators, along with Bill Edwards, Hirrlinger and McAfee, in developing and carrying out this sordid arrangement which included the taking of money from dealers in intoxieat ing liquor in Tulsa, who necessarily were to sell liquor imported into Oklahoma. The fact that Jones, Livingston and Gott were city officials, sworn to enforce city ordinances, does not prevent them from conspiring to violate the laws of the United States. The inference is inescapable that it was understood that a substantial portion of the liquor disposed of in Tulsa was to be imported by one of the conspirators, who was authorized to designate the local retail liquor dealers who were to be protected. The case is more like Briggs v. United States, 10 Cir., 176 F.2d 317, certiorari denied 338 U.S. 861, 70 S.Ct. 103, 94 L.Ed. 528, rehearing denied Payne v. United States, 338 U.S. 882, 70 S.Ct. 158, 94 L.Ed. 541, and Parnell v. United States, 10 Cir., 64 F.2d 324, than Wilder. As to the other defendants, the question remains whether they, knowing of the conspiracy, entered into it. A person does not become liable as a conspirator unless he knows of the existence of the conspiracy, agrees to become a party, and with that knowledge commits some act in furtherance thereof. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128;" }, { "docid": "2649877", "title": "", "text": "18 U.S.C.A. Sec. 371 requires “Proof of an agreement to commit an offense against the United States.” Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 364, 98 L.Ed. 435. In Jones v. United States, 10th Cir. 1958, 251 F.2d 288, 290, it is stated by this Court: “ ‘In determining [the question of] the sufficiency of the evidence to support a verdict, the inferences to be drawn therefrom are viewed in the light most favorable to.the prosecution.’ O’Neal v. United States (10th Cir. 1957, 240 F.2d 700, 701); Seefeldt v. United States, 10 Cir., 183 F.2d 713; Wilder v. United States, 10 Cir., 100 F.2d 177. The agreement need not be in any particular form. By its nature it is seldom susceptible of direct proof. Ordinarily conspiracies can be established only by the acts and conduct of the conspirators and the inferences to be drawn therefrom. Butler v. United States, 10 Cir., 197 F.2d 561. Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.” Necessarily, knowledge of the conspiracy is “an essential ingredient of the proof” required to support a verdict. Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503. The evidence, as it relates to Sam Gilbert’s involvement in a conspiracy, may be thus summarized. On March 30, 1965, Gilbert purchased 10,000 pounds of sugar from Gordon Hixson with funds obtained from his sister, appellant Epps. Hixson arranged the sale through a warehouse in Fort Smith, Arkansas. On April 8, 1965, an additional 12,000 pounds of sugar was purchased through the same grocer and warehouse, but Gilbert denies any involvement in this transaction. To prove Gilbert’s involvement in the second transaction, Alcohol and Tobacco Tax investigators testified that on April 8, 1965, they followed a red Ford truck travelling along Highway 64 away from Fort Smith, Arkansas, toward Warner, Oklahoma. Following two or three car-lengths behind the truck, the investigators, so they claimed, were able to ascertain" }, { "docid": "15030253", "title": "", "text": "would have had no liquor business to control in Tulsa. As to the second count, there is no evidence in the record from which it may be inferred that the failure to pay the statutory tax for carrying on the business of wholesale or retail liquor dealer had anything to do with the conspiracy or was even considered at any time by the conspirators. There was evidence of substantive violations, but none of conspiracy. The second count should not have been submitted to the jury as to any of the defendants. The appellants contend that, considering the evidence in the light most favorable to the prosecution, all that is shown is a conspiracy to protect bootleggers from raids and prosecution by city officials which brings the case within the rule of Wilder v. United States, supra. In the Wilder case it was charged that the conspirators agreed to engage in the business of distilling whiskey at various places without furnishing the bond required by Federal law, or paying the required tax. The defendants, who were state officers, exacted payments from the still operators for being allowed to continue their business. Referring to the conduct of the officers, the court said [100 F.2d 183]: “their mere failure to enforce such laws or to prevent a conspiracy to violate them, without more, is not enough to support a conviction upon a charge of violating * * * ” the Federal Conspiracy Statute. The court continued that it was “necessary to prove that they consented in some affirmative way to become a party to the concert of action.” Therein lies the distinction between the Wilder case and this case. Here it was not a matter of inaction on the part of the city officials Jones, Livingston and Gott. They were the original conspirators, along with Bill Edwards, Hirrlinger and McAfee, in developing and carrying out this sordid arrangement which included the taking of money from dealers in intoxieat ing liquor in Tulsa, who necessarily were to sell liquor imported into Oklahoma. The fact that Jones, Livingston and Gott were city officials, sworn to" }, { "docid": "2420241", "title": "", "text": "appeal, the evidence must be “viewed in the light most favorable to the government to ascertain if there is sufficient evidence, direct or circumstantial, together with the reasonable inferences to be drawn therefrom, from which the jury may find [a] defendant guilty beyond a reasonable doubt.” United States v. Butler, 446 F.2d 975, 978 (10th Cir. 1971). Further, the circumstantial evidence required to support a verdict need not conclusively exclude every other reasonable hypothesis and it need not negative all possibilities except guilt. United States v. Henry, 468 F.2d 892, 894 (10th Cir. 1972). An illegal conspiracy is “an agreement between two or more persons to commit one or more unlawful acts, and is complete when one or more of the conspirators knowingly commit an act in furtherance of the object of the agreement.” United States v. Thomas, 468 F.2d 422, 424 (10th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973). In reviewing a conviction for conspiracy, the question is whether the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement existed. Jones v. United States, 251 F.2d 288, 290 (10th Cir. 1958), cert. denied 356 U.S. 919, 78 S.Ct. 703, 2 L.Ed.2d 715. The evidence was clearly sufficient to establish that Dennis Edward Parnell was a willing participant in the scheme from its inception. He arranged for the rental of an apartment and a telephone in Tulsa, Oklahoma, the number of which telephone was to be used by other members of the conspiracy in the event any of the granaries wanted to contact the fictitious purchasers. Additionally, Parnell found a printer and arranged for the production of counterfeit blank cashier’s checks. He also furnished several forged selective service registration cards which were used as identification to facilitate the passing of the forged cashier’s checks. Finally, he turned the fake cashier’s checks over to the other members of the conspiracy who used them as payment for the grain purchases. As to Lacy Lee Parker, the evidence established that he," }, { "docid": "15030265", "title": "", "text": "in the very nature of things, unlawful conspiracies are seldom provable by direct and positive evidence. Ordinarily they must be established by circumstantial evidence, and ‘it is sufficient if the circumstances, acts, and conduct of the parties are of such character that the minds of reasonable men can conclude therefrom that an unlawful agreement exists.’ Garhart v. United States, 10 Cir., 157 F.2d 777, 781. See also Wilder v. United States, 10 Cir., 100 F.2d 177. Nor is it essential that each conspirator participate in or have knowledge of all of the operations of the conspiracy. It is enough if a conspiracy is formed, and the several persons convicted knowingly contributed their efforts in furtherance of it. Berenbeim v. United States, 10 Cir., 164 F.2d 679.” . Bill Edwards testified that it was decided that, after expense, Jones was to receive 50% of the income and the remaining 50% was to be divided equally among the three. The expenses were to include a $500 per month payment to Livingston, Tulsa Chief of Police, and $200 per month to each member of the police vice squad. . The trial court’s instruction on this subject correctly states the law. It is as follows: “You are instructed that the police officers of the City of Tulsa, Oklahoma, are not under any duty by virtue of their positions to enforce the Federal Liquor Importation Act or the Internal Revenue laws of the United States. The mere failure of police officers of the City of Tulsa to make arrests or raids for the purpose of aiding in the enforcement of Federal laws pertaining to the transportation and sale of liquor would not be sufficient to prove a conspiracy upon the part of such officers to violate those laws. But, if such police officers enter into an agreement to aid and assist others in carrying on the liquor business and knowingly and intentionally cooporate with others in the importation of liquor into Oklahoma in violation of Federal law, or aid and assist others in carrying on the business of either a wholesale or a retail liquor" }, { "docid": "15030247", "title": "", "text": "on April 3, 1956, Bill Edwards, Hirrlinger and Jones met se cretly. Jones stated that he intended to make some money if he won the election. The meeting was for the purpose of raising money immediately for the election expenses of Jones and to talk about an organization for the collection of money from those engaged in the liquor, gambling and prostitution business within the City of Tulsa after the election. At that time Jones was given $700. He shook hands with Bill Edwards and told him that if he were elected, Edwards would be in control of the liquor business in Tulsa. Jones suggested that he should meet in the future only with Hirrlinger and that it was not a good idea for all of them to get together too often. Prior to the election Edwards received $200 from the defendant Lee Johnson, and $900 from three Massey brothers, which was delivered to Jones. Johnson and the Massey brothers were liquor dealers, and it was understood that if Jones were elected, they were to be given credit for these payments on any exactions which were required thereafter. Jones was elected, and took office on May 8, 1956. In the latter part of May, Bill Edwards and Hirrlinger met with the defendants Jones, Livingston, Gott, and McAfee, at Hirrlinger’s home near Tulsa for the purpose of completing the control and payoff arrangements. Livingston had been appointed Chief of Police and Gott was a long-time head of the Tulsa police vice squad. McAfee was a billiard hall operator in Tulsa. At this meeting specific arrangements were made to require payments from persons who were selling intoxicating liquor, engaging in gambling or prostitution operations. Livingston v/as the spokesman at this meeting and the division of the money to be realized was drastically changed from the original understanding. The principal difference was a division of 20% each to Livingston and officer Gott, 40% to Jones, and a reduction to 10% for Bill Edwards, Hirrlinger and McAfee together. Bill Edwards was to take charge of the liquor operations, McAfee the gambling, and Hirrlinger the" }, { "docid": "21901973", "title": "", "text": "1971); Jordan v. United States, 370 F.2d 126 (10th Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595 (1967). The agreement need not be express, nor in any particular form. It is sufficient “if the minds of the parties meet and unite in an understanding way with the single design to accomplish a common purpose. . . .” Martin v. United States, 100 F.2d 490, 495 (10th Cir. 1938). “The proof necessary to support a conviction for conspiracy is necessarily not. direct. The nature of the offense and the secrecy involved require that the elements of the crime be established by circumstantial evidence, and the common purpose or plan may be inferred from the development or the combination of circumstances.” Jordan, supra, 370 F.2d at 128. See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Baker v. United States, 329 F.2d 786 (10th Cir. 1964), cert. denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56 (1964); Dennis v. United States, 302 F.2d 5 (10th Cir. 1962). “Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.” Jones v. United States, 365 F.2d 87, 89 (10th Cir. 1966), citing Jones v. United States, 251 F.2d 288, 290 (10th Cir. 1958). See also United States v. Birmingham, 454 F.2d 706 (10th Cir. 1971); United States v. Winn, 411 F.2d 415 (10th Cir. 1969), cert. denied, 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969); O’Neal v. United States, 240 F.2d 700 (10th Cir. 1957). A party may join a conspiracy during its progress and be held responsible for all acts in furtherance of the scheme. United States v. Cimini, 427 F.2d 129 (6th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970); United States v. Doran, 299 F.2d 511 (7th" }, { "docid": "21901974", "title": "", "text": "(10th Cir. 1962). “Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.” Jones v. United States, 365 F.2d 87, 89 (10th Cir. 1966), citing Jones v. United States, 251 F.2d 288, 290 (10th Cir. 1958). See also United States v. Birmingham, 454 F.2d 706 (10th Cir. 1971); United States v. Winn, 411 F.2d 415 (10th Cir. 1969), cert. denied, 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969); O’Neal v. United States, 240 F.2d 700 (10th Cir. 1957). A party may join a conspiracy during its progress and be held responsible for all acts in furtherance of the scheme. United States v. Cimini, 427 F.2d 129 (6th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970); United States v. Doran, 299 F.2d 511 (7th Cir. 1962), cert. denied, 370 U.S. 925, 82 S.Ct. 1563, 8 L.Ed.2d 504 (1962); Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956). Sturgeon, Moore, Breath and Phillips specifically urge that there is insufficient evidence to connect them with the conspiracy. The record shows that there was only one continuing scheme to sell and distribute heroin in Oklahoma City, Oklahoma, and that the appellants Sturgeon, Moore and Phillips, were active participants. Each dealt with the central conspirators on numerous occasions regarding the eventual resale of the narcotics. Whether they knew the full extent of the conspiracy and all of its activities and actors is immaterial. The evidence is adequate to sustain the convictions of Sturgeon, Moore and Phillips. We reach a contrary conclusion as to appellant Breath. Breath is a sister of Joe Ben Webb. She probably knew of Webb’s operations and on one occasion introduced Chatman and Knox to one of the coconspirators “to talk about some business.” There is no evidence concerning the nature of this business. “A single act may be" }, { "docid": "15030245", "title": "", "text": "most favorable to ■ the prosecution.” O’Neal v. United States, supra; Seefeldt v. United States, 10 Cir., 183 F.2d 713; Wilder v. United States, 10 Cir., 100 F.2d 177. The agreement need not be in any particular form. By its nature it is seldom susceptible of direct proof. Ordinarily conspiracies can be established only by the acts and conduct of the conspirators and the inferences to be drawn therefrom. Butler v. United States, 10 Cir., 197 F.2d 561. Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists. O’Neal v. United States, supra; Heald v. United States, 10 Cir., 175 F.2d 878, certiorari denied 338 U.S. 859, 70 S.Ct. 101, 94 L.Ed. 526; Young v. United, States, 10 Cir., 168 F.2d 242, 245, certiorari denied 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1780. A summary of the evidence discloses that early in the year 1956 the defendant Jones was a candidate for election to the office of Police and Fire Commissioner for the City of Tulsa, Oklahoma. Sometime during the latter part of February or early in March, Charles Hirrlinger and the defendant McAfee met, at which time McAfee stated that he believed that he could work out a vice protection deal if they could get Jones elected, but it would cost four or five thousand dollars. Shortly thereafter, Hirrlinger and McAfee met with Jones, and it was agreed that Hirrlinger would talk to Bill Edwards about raising the money. Following these meetings there were numerous conversations between the different individuals above named, and substantial sums of money were delivered to Jones. Bill Edwards was then, and had been for many years, one of the principal importers of intoxicating liquor into the City of Tulsa, substantially all of which was disposed of at wholesale. Sometime in March Bill Edwards, Hirrlinger and McAfee discussed in detail what the organization should be, including the division of the income received from the protection payoff. A few days before the election" }, { "docid": "15030246", "title": "", "text": "election to the office of Police and Fire Commissioner for the City of Tulsa, Oklahoma. Sometime during the latter part of February or early in March, Charles Hirrlinger and the defendant McAfee met, at which time McAfee stated that he believed that he could work out a vice protection deal if they could get Jones elected, but it would cost four or five thousand dollars. Shortly thereafter, Hirrlinger and McAfee met with Jones, and it was agreed that Hirrlinger would talk to Bill Edwards about raising the money. Following these meetings there were numerous conversations between the different individuals above named, and substantial sums of money were delivered to Jones. Bill Edwards was then, and had been for many years, one of the principal importers of intoxicating liquor into the City of Tulsa, substantially all of which was disposed of at wholesale. Sometime in March Bill Edwards, Hirrlinger and McAfee discussed in detail what the organization should be, including the division of the income received from the protection payoff. A few days before the election on April 3, 1956, Bill Edwards, Hirrlinger and Jones met se cretly. Jones stated that he intended to make some money if he won the election. The meeting was for the purpose of raising money immediately for the election expenses of Jones and to talk about an organization for the collection of money from those engaged in the liquor, gambling and prostitution business within the City of Tulsa after the election. At that time Jones was given $700. He shook hands with Bill Edwards and told him that if he were elected, Edwards would be in control of the liquor business in Tulsa. Jones suggested that he should meet in the future only with Hirrlinger and that it was not a good idea for all of them to get together too often. Prior to the election Edwards received $200 from the defendant Lee Johnson, and $900 from three Massey brothers, which was delivered to Jones. Johnson and the Massey brothers were liquor dealers, and it was understood that if Jones were elected, they were to" }, { "docid": "21322159", "title": "", "text": "court has considered this issue of proof in a number of cases, including Wilder v. United States, 100 F.2d 177 (10th Cir.); Young v. United States, 168 F.2d 242 (10th Cir.), cert. den. 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1779; Seefeldt v. United States, 183 F.2d 713 (10th Cir.); O’Neal v. United States, 240 F.2d 700 (10th Cir.) ; Jones v. United States, 251 F.2d 288 (10th Cir.); Dennis v. United States, 302 F.2d 5 (10th Cir.); McManaman v. United States, 327 F.2d 21 (10th Cir.). These cases again mention that by its nature a conspiracy is seldom susceptible of direct proof and ordinarily the crime can be established only by showing acts and conduct of the conspirators and by the inferences to be drawn therefrom. Also the convictions will be sustained if in the circumstances, the acts and conduct of the parties are of such character that the minds of reasonable men will conclude therefrom that an agreement exists. It is, of course, not essential that each conspirator participate in or have knowledge of all of the operations of the conspiracy. It is sufficient if the conspiracy is formed and the several persons convicted knowingly contributed their efforts to the furtherance of it. Berenbeim v. United States, 164 F.2d 679 (10th Cir.). The evidence in the case at bar is clearly sufficient under these standards to support the conviction of conspiracy. The agreement and its execution by the accused were established. The record shows that Baker recruited girls to work as prostitutes, sent them into other states to work for him, and received their earnings. His wife, in both the instances set out in the indictment, would meet these girls and would direct and control their work. The appellant also urges that the testimony of the agent of the Federal Bureau of Investigation as to the statement made to him by the wife of the appellant is not admissible. The appellant maintains that the trial court was in error in admitting such evidence by reason of the fact that it was privileged between husband and wife. The" }, { "docid": "15030249", "title": "", "text": "prostitution activities. As to the payments to be exacted from the liquor dealers, Bill Edwards testified that he was to contact the bootleggers and let them know that he was in a position to help them in their business if they would cooperate. The cooperation included the payment of $100 per month. Those operating places known as “walk-ins” were to pay a minimum of $250 per month. They were told that those who did not make the payments would be reported to the police vice squad for raiding and arrest. The vice squad would be given the information regarding those who paid, including a complete description of their ears. They would not be molested by the vice squad, but given a free range. The liquor dealers were assured that price cutting activities were not to be tolerated. It was understood that if the required payments were not made, the vice squad should take necessary and appropriate action to put them out of business. Early in June, 1956, Bill Edwards, Hirrlinger, Jones, Livingston, Gott and McAfee met again. At this meeting Livingston, who seemed to assume the leadership in the scheme, insisted that Bill Edwards’ brother Martin be allowed in on the deal. There was bitter feeling between Bill Edwards and his brother, who was also an importer of large quantities of liquor into Tulsa. Bill objected strenuously, even to the extent of saying that if his brother was in, he was out. The question was put to a vote, and Bill Edwards was the only one who voted to keep Martin out. No immediate action was taken to include Martin. There were numerous meetings of different individuals of this group thereafter, from which emerged the contemplated systematic plan for obtaining money from those in the liquor business, and other businesses, in exchange for protection to be furnished them in their illegal activities. During all this time Bill Edwards had authority to determine which liquor dealers would be permitted to buy protection and which would not. He exercised his authority city-wide. He was in position to give instructions directly to members" } ]

[ { "docid": "13819760", "title": "", "text": "the discharge to be entered on the minutes, as in Hines v. State, supra. But whatever the state law may be, in the federal courts the recognized rule is that discharging a jury before verdict is a matter within the sound discretion of the trial court. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, 154, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U. S. 263, 298, 12 S.Ct. 617, 36 L.Ed. 429. Granting that the exercise of such discretion may be reversed in a case of abuse, the burden should be on the appellant to show abuse. A defendant who pleads double jeopardy has the burden of proving his plea. Kastel v. United States, 2 Cir., 23 F.2d 156, 157, certiorari denied, 277 U.S. 604, 48 S.Ct. 600, 72 L.Ed. 1010. Here the appellants’ plea incorporated the stenographic minutes which disclosed that only eleven jurors returned to the court room. The inference is plain that one of the jurors was incapacitated to continue. Under such circumstances the court had discretion to discharge the jury, even if both parties had consented (as they did not) to proceed with the reduced number. Gardes v. United States, 5 Cir., 87 F. 172, 177, certiorari denied 171 U.S. 689, 19 S.Ct. 884, 43 L.Ed. 1179. There was no error in overruling the plea of double jeopardy. The appellants contend that there is not sufficient evidence of a common understanding to support the conviction of each of the appellants on a charge of conspiracy. As to Potash and Vafiades there can be no doubt of the sufficiency of the evidence. The witness Loukas testified to meetings and conversations with them in which they offered him a trip abroad at their expense and, failing in this, sought to persuade him to make “slips” in his testimony to be given in the anti-trust case. They also tried to get him to corrupt another witness, Soulounias. Perry also testified against them. As to Winogradsky Loukas testified to being addressed by him as “G-man” and" } ]

[ { "docid": "3522155", "title": "", "text": "not discharge a jury after the defendant had been placed in jeopardy without a showing of a manifest necessity for the discharge. Manifest necessity is equated with so great a need to discharge the jury that “the ends of public justice would otherwise be defeated.” Jorn at 482, 91 S.Ct. at 555, quoting United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). Jom was a case in which the district court had discharged the jury, sua sponte, declared a mistrial which was held to be an abuse of discretion, and dismissed the indictment because of double jeopardy. The Court stated that a trial court has a myriad of potential scheduling concerns, including case overloads; the health of jurors, witnesses, and counsel; and the speedy trial requirement, so that the rule against double jeopardy must not be too rigid, but mechanically invoking the rule against double jeopardy would mean that the defendant cannot be brought to justice at all. In Hanno’s case, the worst effect that we can suppose, the record being silent, was a minor delay in Wittek’s trial while the clerk drew -more jurors from the jury wheel, according to the jury plan, to increase the number required for that trial. We cannot agree with the government that this delay rises to the level of Jom’s requirement that such a delay defeat the ends of justice. The conclusion that there is a manifest necessity to discharge a jury must come after a “scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Jorn, 400 U.S. at 485, 91 S.Ct. at 557. “The crucial inquiry is whether less drastic alternatives were available.” United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.1993). That standard was not met in the case before us in which the district court removed selected jurors from one panel to increase those available for another trial for the purpose of avoiding the minor inconvenience that would have been caused by following available procedures. A second error is that" }, { "docid": "14358110", "title": "", "text": "witness, one Gabriel Dukas. Assuming for the purposes of this petition only that the trial Court’s ruling as to this material was incorrect, that fact still would not be a basis for relief under section 2255. It is axiomatic that 28 U.S.C. § 2255 may not be used in lieu of an appeal, to correct errors in the course of the trial. In a recent case in this circuit it was expressly held that a ruling on evidence incorrect in light of the decision in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, could not be raised by a motion under 28 U.S. C. § 2255. United States v. Angelet, 2 Cir., 1958, 255 F.2d 383, 384. There the Court stated: “Only when there has been a deprivation of rights so fundamental as to amount to a denial of a fair trial can the conviction and sentence be set aside under § 2255. * * * Nothing of that nature appears here.” Petitioner’s second ground is equally meritless. Pointing to the fact that he was retried after his first trial had been declared a mistrial due to the illness of a juror, he makes an apparent claim of double jeopardy. It appears to be the law that a claim of double jeopardy may not be raised under section 2255. See Ex parte Bigelow, 1885, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005; Kastel v. United States, 2 Cir., 1929, 30 F.2d 687; cf. Palko v. State of Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; (double jeopardy not denial of due process); But see Clawans v. Rives, 1939, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436. Moreover, it has long been established that discharging a jury before verdict is within the discretion of the trial court, and a second trial after a discharge because of the incapacity of a juror does not amount to double jeopardy. See United States v. Perez, 1824, 9 Wheat 579, 580, 22 U.S. 579, 580, 6 L.Ed. 165; United States v. Potash, 2 Cir.," }, { "docid": "19025059", "title": "", "text": "v. Harriman, D.C.S.D.N.Y. 1955, 130 F.Supp. 198, 204. It is settled that a plea of former jeopardy does not lie when a mistrial is ordered because of the jury’s inability to reach an agreement after submission, Keerl v. State of Montana, 1909, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84-87, 23 S.Ct. 28, 47 L.Ed. 79; Logan v. United States, 1892, 144 U.S. 263, 297-298, 12 S.Ct. 617, 36 L.Ed. 429; United States V. Perez, 1824, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, or when a juror is discovered to be incompetent or becomes incapacitated, Thompson v. United States, 1894, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Simmons v. United States, 1891, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; United States v. Potash, 2 Cir., 1941, 118 F.2d 54, certiorari denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540; United States v. Haskell, D.C.E.D.Pa.1823, 26 Fed.Cas. page 207, No. 15,321. There are also eases disallowing the plea of former jeopardy when the mistrial order resulted from the courtroom conduct of particular persons. Prior to this case the prosecuting attorney has not been included in this group. See United States v. Cimino, 2 Cir., 1955, 224 F.2d 274 (exclamations of a juror); Scott v. United States, 1952, 91 U.S.App.D.C. 232, 202 F.2d 354, certiorari denied 344 U.S. 879, 881, 73 S.Ct. 176, 97 L.Ed. 681 (withdrawal of associate counsel appointed by the court); United States v. Giles, D.C.W.D.Okl.1937, 19 F.Supp. 1009 (exclamations of a trial judge questioning Government’s good faith in prosecuting); but cf. United States v. Whitlow, D.C. D.C.1953,110 F.Supp. 871 (misconduct of defendant’s counsel held too minor to nullify plea of former jeopardy). For reasons to be set forth subsequently I am of the opinion that a mistrial ordered because the trial judge believed that the prosecuting attorney was guilty of misconduct presents a different problem than that presented in these cases. All the cases purporting to be exceptions to the rule that a mistrial may not be ordered" }, { "docid": "592368", "title": "", "text": "U.S. at 505, 98 S.Ct. 824; United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Wade, 336 U.S. at 689, 69 S.Ct. 834; Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir.1996); Rich, 589 F.2d at 1031-32; see also Illinois v. Somerville, 410 U.S. 458, 463, 468-71, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (holding that despite weighty interest of defendant in having his fate determined by the jury first empaneled, defendant’s double jeopardy rights were not violated by court’s declaration of mistrial which was required by “manifest necessity” or the “ends of public justice”) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)). More importantly, the Supreme Court has found no conflict between the continuing jeopardy cases which require a terminating event and the cases which affirm a defendant’s right to a particular tribunal. Although Defendant does not appear to have objected initially to the replacement of the juror after the original jury was empaneled and sworn, I agree with the majority’s footnote .that “neither the court nor counsel made [Defendant aware of the constitutional right that he was1 forgoing so that he could make an informed, conscious waiver.” Ante, at - n. 1; see Rich, 589 F.2d at 1032-33. Thus because Defendant does not appear to have consented or requested a mistrial, and because the trial court made no finding of manifest necessity for a mistrial, I believe that the replacement of the juror and the subsequent trial with a jury different from the original sworn jury violated Defendant’s right to a particular tribunal and his double jeopardy rights. See Rich, 589 F.2d at 1031-32. Had the trial court taken the simple measure of having an alternate juror sworn in the first place, we would not be confronted with this problem. Under these circumstances, however, I would reverse the judgment." }, { "docid": "11259537", "title": "", "text": "165; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But cf. People ex rel. Stabile v. Warden of City Prison, 202 N.Y. 138, 95 N.E. 729. . Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968. . Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. . United States v. Haskell, C.C.E.D.Pa., 26 Fed.Cas. p. 207, No. 15,321. . United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540. . Cf. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436, with Bassing v. Cady, 208 U.S. 386, 28 S.Ct. 392, 52 L.Ed. 540. . Cornero v. United States, 9 Cir., 48 F.2d 69, 74 A.L.R. 797. . United States v. Shoemaker, C.C.D.Ill., 27 Fed.Cas. pp. 1067, 1068, No. 16279. See Parker, Some Aspects of Double Jeopardy, 25 St. John’s L.Rev. 188 (1951). . Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 838, 93 L.Ed. 974. . See, e. g., N. Y. Code of Criminal Procedure, §§ 280, 281, 293. . People v. Johnson, 104 N.Y. 213, 10 N.E. 690; People v. Castaldo, 146 App. Div. 767, 131 N.Y.S. 545. . People v. Bromwich, 200 N.Y. 385, 93 N.E. 933. And see United States v. Aurandt, 15 N.M. 292, 304, 107 P. 1064, 27 L.R.A.,N.S., 1181. . Cf. 18 U.S.C.A. former § 556 and cases-cited in Hagner v. United States, 285 U.S. 427, 432ff, 52 S.Ct. 417, 76 L.Ed. 861. . See, e. g., United States v. Whitlow, D.C.D.C., 110 F.Supp. 871. . Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 423. . Kepner v. United States, 195 U.S. 100, 134-137, 24 S.Ct. 797, 49 L.Ed. 114. . 199 U.S. 521, 26 S.Ot. 121, 50 L.Ed. 292. . Id., 199 U.S. at page 529, 26 S.Ot. at page 122." }, { "docid": "20105481", "title": "", "text": "Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.) (failure to brief issues reasonably considered to be without merit not ineffective assistance), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). Therefore, we find that Lambrix has failed to show that he received ineffective assistance from appellate counsel. D. Double Jeopardy The jury in Lambrix’s first trial could not reach a verdict after nearly 10 hours of deliberation, and the trial judge declared a mistrial. Two months later, Lambrix was tried again and convicted on the same charges. Lambrix asserts that this second trial subjected him to double jeopardy because the declaration of a mistrial in his first trial was not a “manifest necessity.” See Abdi v. State of Georgia, 744 F.2d 1500, 1502-03 (11th Cir.1984) (“The double jeopardy provision of the Constitution .. requires] that a trial judge declare a mistrial without the consent of the defendant only after it (sic) determines that mistrial is a manifest necessity.”), cert. denied, 471 U.S. 1006, 305 S.Ct. 1871, 85 L.Ed.2d 164 (1985). The genuine inability of a jury to agree to a verdict provides “manifest necessity” for discharge and a mistrial. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); United States v. Wright, 622 F.2d 792, 794 (5th Cir.), cert. denied, 449 U.S. 961, 101 S.Ct. 376, 66 L.Ed.2d 229 (1980). Moreover, we afford great deference to the trial judge’s conclusion that the jury is genuinely deadlocked. United States v. Nelson, 599 F.2d 714, 718 (5th Cir.1979). Here, the jury returned to the courtroom several times during their long deliberation and indicated that they were having a difficult time reaching a verdict. At one point, juror 9 told the judge that “we are not going to agree, I don’t think.” On returning to the courtroom another time, juror 4 stated, “I think we are wasting our time,” and juror 12 agreed. Still later, another juror commented that he “didn’t think there was any use” to resuming deliberations. Finally, upon returning to the courtroom at 1:40 a.m., the foreperson announced that the jury could" }, { "docid": "22278558", "title": "", "text": "failed to agree, was discharged. The Court held that even under Fifth Amendment standards, as established by United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), the claim of double jeopardy was ill founded, and that therefore it could “pass this important question [of whether the Due Procéss Clause of the Fourteenth Amendment curbed the power of the states to reprosecute] without any consideration of it upon its merits.” This same question whs similarly avoided in a like fashion in another case involving a reprosecution by a state following a hung-jury, Keerl v. State of Montana, 213 U.S. 135, 138, 29 S.Ct. 469, 53 L.Ed. 734 (1909); and perhaps Mr. Justice Harlan’s opinion in Shoener v. State of Pennsylvania, 207 U.S. 188, 195-196 (1907) (trial on second indictment after first indictment dismissed on appeal as not charging a crime), could be read as employing the same technique of avoidance, although in Shoener it was necessary to determine as an original proposition that the Fifth Amendment standard was not violated, that the second prosecution did not place the complainant in double jeopardy, before it could “avoid” the question of whether any state reprosecutions would violate the Due Process Clause of the Fourteenth Amendment. The next important step occurred in 1937 in Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. The mode of analysis employed by Mr. Justice Harlan in Dreyer v. State of Illinois, which enabled that Court to avoid the question whether the Due Process Clause of the Fourteenth Amendment had any double jeopardy content, was unavailable to the Court in Palko, see 302 U.S. at 322-323, 58 S.Ct. 149, 150. The complainant in Palko challenged the power of a state to appeal from a judgment of conviction for a lesser degree of homicide than that charged in the indictment and to reprosecute him for the greater degree upon obtaining a reversal. Mr. Justice Cardozo read Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904), as holding that such reprosecution would fall within the pale" }, { "docid": "14358111", "title": "", "text": "to the fact that he was retried after his first trial had been declared a mistrial due to the illness of a juror, he makes an apparent claim of double jeopardy. It appears to be the law that a claim of double jeopardy may not be raised under section 2255. See Ex parte Bigelow, 1885, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005; Kastel v. United States, 2 Cir., 1929, 30 F.2d 687; cf. Palko v. State of Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; (double jeopardy not denial of due process); But see Clawans v. Rives, 1939, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436. Moreover, it has long been established that discharging a jury before verdict is within the discretion of the trial court, and a second trial after a discharge because of the incapacity of a juror does not amount to double jeopardy. See United States v. Perez, 1824, 9 Wheat 579, 580, 22 U.S. 579, 580, 6 L.Ed. 165; United States v. Potash, 2 Cir., 1941, 118 F.2d 54, certiorari denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540. Nor does the power given to a judge by Rule 24(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. to empanel alternate jurors lead to any different result. That power is clearly discretionary, and a failure to provide alternate jurors does not deprive a defendant of any rights. Nor is there any in dication that a request for alternate jurors was made and denied by the Court. Petitioner’s last contention is that he was convicted on the basis of allegedly perjured testimony of United States Treasury Agent Gabriel Dukas. The knowing use by the government of prejured testimony in order to obtain a conviction would, if proved, be grounds for vacation of conviction under section 2255. See, e. g. United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666, certiorari denied, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384. “But a defendant has the burden of making a showing, not only that material perjured testimony was used to" }, { "docid": "19025058", "title": "", "text": "L.Ed. 872; and see also United States v. Sabella, 2 Cir., 1959, 272 F.2d 206, 208-210. Thus, once a jury has been impaneled and sworn it is said jeopardy attaches, and if a mistrial is then ordered, subsequent prosecution is barred, Green v. United States, 1957, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199; Bassing v. Cady, 1908, 208 U.S. 386, 391, 28 S.Ct. 392, 52 L.Ed. 540; McCarthy v. Zerbst, 10 Cir., 1936, 85 F.2d 640, 642, certiorari denied 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; Cornero v. United States, 9 Cir., 1931, 48 F.2d 69; Ex parte Ulrich, D.C.W.D.Mo.1890, 42 F. 587, reversed on other grounds, C.C.W.D.Mo.1890, 43 F. 661, appeal dismissed sub nom. Ulrich v. McGowan, 1893, 149 U.S. 789, 13 S.Ct. 1053, 37 L.Ed. 967, unless the defendant has consented to the mistrial order, Blair v. White, 8 Cir., 1928, 24 F. 2d 323; Barrett v. Bigger, 1927, 57 App.D.C. 81, 17 F.2d 669, certiorari denied 274 U.S. 752, 47 S.Ct. 765, 71 L.Ed. 1333; United States v. Harriman, D.C.S.D.N.Y. 1955, 130 F.Supp. 198, 204. It is settled that a plea of former jeopardy does not lie when a mistrial is ordered because of the jury’s inability to reach an agreement after submission, Keerl v. State of Montana, 1909, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84-87, 23 S.Ct. 28, 47 L.Ed. 79; Logan v. United States, 1892, 144 U.S. 263, 297-298, 12 S.Ct. 617, 36 L.Ed. 429; United States V. Perez, 1824, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, or when a juror is discovered to be incompetent or becomes incapacitated, Thompson v. United States, 1894, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Simmons v. United States, 1891, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; United States v. Potash, 2 Cir., 1941, 118 F.2d 54, certiorari denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540; United States v. Haskell, D.C.E.D.Pa.1823, 26 Fed.Cas. page 207, No. 15,321. There are also eases disallowing" }, { "docid": "22220031", "title": "", "text": "trial by another ■jury; and that the defendant is not thereby twice put in jeopardy, within the meaning of the - Fifth Amendment. * * *.” The proposition was clearly stated by Judge Story: \"The question is simply this: A party‘is on trial before a jury, and a circumstance occurs, which will occasion a total failure of justice if the trial proceed; have the court, in such an emergency, power to withdraw a juror? * * * It is now held, that the discretion exists in all cases, but is to be exercised only in very extraordinary and striking circumstances. Were it otherwise, the most unreasonable consequences would follow.” United States v. Coolidge, 25 Fed.Cas. pages 622, 623, No.14,858, 2 Gall. 364. Thus, a court has the power to discharge a duly empaneled and sworn jury, before verdict, without abridgement of the constitutional guaranty, if there exist urgent circumstances or an emergency which by diligence and care could not have been averted and which would thwart the administration of justice. “ * * * when it appears that a free and fair trial cannot be had it ought to be stopped, even over objection of the accused, and the Constitution will not prevent another and better trial.” Sanford v. Robbins, 5 Cir., 115 F.2d 435, 439, certiorari denied 312 U.S. 697, 61 S.Ct. 737, 85 L.Ed. 1132. It has been held that the discharge of the jury, after jeopardy had attached and before verdict, would not sustain a plea of once in jeopardy where the jury could not agree, United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734, where a juror was found to have sworn falsely on voir dire examination as to acquaintance with accused, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968, where several jurors had read" }, { "docid": "3400927", "title": "", "text": "the alternatives available to the trial judge at the time, and the presence “of some important countervailing interest of proper judicial administration.” Illinois v. Somerville, supra, 410 U.S. at 468, 93 S.Ct. at 1074. And it must be emphasized that even in cases where there is no possibility of manipulation or prejudice to a defendant beyond that of undergoing another trial, the double jeopardy clause will bar re-prosecution unless there is an “important countervailing interest of proper judicial administration.” Illinois v. Somerville, supra. (Emphasis added). With these considerations in mind, we move to a review of the trial judge’s de termination that in this case there was manifest necessity present so that appellant can now be retried after having been deprived of a verdict by the jury then empaneled. The trial judge decided that the jury was too exhausted to reach an impartial verdict. This, argues the state, made a mistrial a manifest necessity. While the appellant argues that no double jeopardy case has ever been decided on the basis of jury exhaustion, we are not willing to state that this could never provide the manifest necessity necessary to declare a mistrial. Cf. United States v. Potash, 118 F.2d 54, 56 (2d Cir. 1941), cert. denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540 (mistrial declaration upheld because a juror was “incapacitated to continue.”). We do, however, find that there was no “manifest necessity” in the present ease. This is a mixed question of fact and law which we can freely review. E. g. Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 9 L.Ed.2d 770; United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 737, 738 (3d Cir. 1973). As Justice Story said in Perez: “ . . . [T]he power [to declare a mistrial] ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.” Id. 22 U.S." }, { "docid": "18737284", "title": "", "text": "the prosecution has terminated that jeopardy without result. In essence, this case falls in the gap between the two theories we are asked to choose between. Therefore, we must go back to basic principles of double jeopardy law to attempt a resolution. II One basic principle, first established in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), is that once jeopardy has attached and a mistrial declared before a verdict is delivered, a defendant may not be retried on any matter with which he was charged, or on a greater or lesser offense, unless there was a “manifest necessity” for declaring the mistrial. Thus, “manifest necessity” has justified declaring a mistrial (and consequently, a new trial was not barred by the Double Jeopardy Clause,) due to the illness of a juror, the trial judge, or the defendant; the absence of a juror; the illness or death of a member of a juror’s family; the service of a juror on the grand jury which indicted the defendant; false statements of a juror on voir dire which prevent the defendant from obtaining a fair trial; the improper separation of the jury; the assassination of a President of the United States on the first day of trial; a remark or comment by counsel or the trial judge which is so prejudicial as to prevent defendant from obtaining a fair trial; the newspaper publication of a letter which would render jury impartiality doubtful; the inability of the jury to agree upon a verdict; or the dismissal of an indictment which is so defective that it could not have supported a judgment on the verdict. I Wharton’s Criminal Law § 61 (14th Ed. 1978 & Supp.1987) (footnotes with citations omitted). Another basic principle, already noted above, is that if a defendant is acquitted of a charge, the proscription against retrial is absolute. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 127-30, 101 S.Ct. 426, 432-33, 66 L.Ed.2d 328 (1980) (citations omitted). Thus, an acquittal bars retrial even if “based upon an egregiously erroneous foundation,” Sanabria v. United States," }, { "docid": "14358112", "title": "", "text": "1941, 118 F.2d 54, certiorari denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540. Nor does the power given to a judge by Rule 24(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. to empanel alternate jurors lead to any different result. That power is clearly discretionary, and a failure to provide alternate jurors does not deprive a defendant of any rights. Nor is there any in dication that a request for alternate jurors was made and denied by the Court. Petitioner’s last contention is that he was convicted on the basis of allegedly perjured testimony of United States Treasury Agent Gabriel Dukas. The knowing use by the government of prejured testimony in order to obtain a conviction would, if proved, be grounds for vacation of conviction under section 2255. See, e. g. United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666, certiorari denied, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384. “But a defendant has the burden of making a showing, not only that material perjured testimony was used to convict him but that it was knowingly and intentionally used by the prosecuting authorities in order to do so.” United States v. Spadafora, 7 Cir., 1952, 200 F.2d 140, 142. In the instant petition there is not even a direct allegation that the allegedly perjured testimony was knowingly and intentionally used. Even if such a charge may be read by innuendo out of the petition, it remains a mere eonclusory allegation, unsupported by any facts. Indeed, the charge of perjury itself is also merely a eonclusory allegation without more. The petitioner points to an occasional difference in detail between Agent Dukas’ testimony at the first and second trials, but read in context those differences appear clearly to be trivial and insignificant. In short, taking every allegation by the petitioner to be true, there is no basis for relief under section 2255. That being so, there is no need for any hearing. See United States v. Rosenberg, supra, 200 F.2d at page 668; Clawans v. Rives, supra, 104 F.2d at page 241. As was said in" }, { "docid": "592367", "title": "", "text": "437 U.S. 28, 35-36, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (recognizing that a defendant’s right to a particular jury is integral to the guarantee against double jeopardy because it “lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn”). The cases which articulate a defendant’s right to a particular tribunal are easily harmonized with the line of eases requiring some event to terminate the original jeopardy. See Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). The harmony is simple: Once jeopardy attaches, the defendant’s right to a particular tribunal may be overcome if there is manifest necessity for a mistrial or the defendant requests or consents to a mistrial. In other words, where manifest necessity is found or a defendant requests or consents to a mistrial, the-loss of the right does not violate the Double Jeopardy Clause. See Arizona, 434 U.S. at 505, 98 S.Ct. 824; United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Wade, 336 U.S. at 689, 69 S.Ct. 834; Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir.1996); Rich, 589 F.2d at 1031-32; see also Illinois v. Somerville, 410 U.S. 458, 463, 468-71, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (holding that despite weighty interest of defendant in having his fate determined by the jury first empaneled, defendant’s double jeopardy rights were not violated by court’s declaration of mistrial which was required by “manifest necessity” or the “ends of public justice”) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)). More importantly, the Supreme Court has found no conflict between the continuing jeopardy cases which require a terminating event and the cases which affirm a defendant’s right to a particular tribunal. Although Defendant does not appear to have objected initially to the replacement of the juror after the original jury was empaneled and sworn, I agree with the majority’s" }, { "docid": "22220032", "title": "", "text": "it appears that a free and fair trial cannot be had it ought to be stopped, even over objection of the accused, and the Constitution will not prevent another and better trial.” Sanford v. Robbins, 5 Cir., 115 F.2d 435, 439, certiorari denied 312 U.S. 697, 61 S.Ct. 737, 85 L.Ed. 1132. It has been held that the discharge of the jury, after jeopardy had attached and before verdict, would not sustain a plea of once in jeopardy where the jury could not agree, United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734, where a juror was found to have sworn falsely on voir dire examination as to acquaintance with accused, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968, where several jurors had read newspaper reports, Simmons v. United States, supra, where a juror was discovered to have served on the grand jury which found the indictment, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146, supra, or on the jury of a former trial of the same cause, Martin v. State, 163 Ark. 103, 259 S.W. 6, 33 A.L.R. 133, where a juror, the court, or the accused became ill, incapacitated, or unavailable, United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540; United States v. Haskell, Fed.Cas.No.15,-321, 4 Wash.C.C. 402; United States v. Fernandez, 1 Porto Rico Fed. Rep. 453; Wharton’s Criminal Law, 12th ed., Vol. 1, § 395, where a member of a juror’s family became seriously ill or died, Hawes v. State, 88 Ala. 37, 7 So. 302; Woodward v. State, 42 Tex.Cr.R. 188, 58 S.W. 135, where it was discovered after the jury was sworn and evidence adduced that a juror was prejudiced, United States v. Morris. Fed.Cas.No.15,815, 1 Curt." }, { "docid": "12503891", "title": "", "text": "trial, conviction, and sentence, redress for which has been sought and denied elsewhere, habeas corpus will lie to correct the abuse. Hans Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118;. Frank v. Mangum, supra; Moore v. Dempsey, supra; Mooney v. Holohan, supra; Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Achtien v. Dowd, supra; Gebhart v. Amrine, supra; Carey v. Brady, supra. Since the right granted and sought to be vindicated is founded in the Federal Constitution, the question whether the appellee has by his trial and conviction been twice placed in jeopardy for the same offense, is governed by Federal law and not by the law of the State of Kansas as the appellant urges. Generally, second jeopardy does not attach unless the first indictment, information, or complaint, is valid, or unless the accused is tried and convicted or acquitted on the first indictment. If the trial fails other than on the merits, and the accused does not seasonably object to the dismissal, a second trial for the same offense does not constitute double jeopardy. 22 C.J.S., Criminal Law, § 246, p. 383, and § 253, p. 390; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, 12 S. Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; Dyer v. State of Illinois, supra; Keerl v. State of Montana, supra; Palko v. State of Connecticut, supra; Pratt v. United States, 70 App.D.C. 7, 102 F.2d 275; Clawans v. Rives, supra. Cf. Murphy v. State of Massachusetts, supra. There are notable exceptions to the rule, but they cannot assist the appellee here. See 22 C.J.S., Criminal Law, § 246, p. 383, et seq. Without objections from the appellee or the state, the trial court dismissed the cause without prejudice, and that judgment of dismissal is final and conclusive. The appellee was not discharged from custody, and the state, acting under statutory authority (see" }, { "docid": "12520285", "title": "", "text": "v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion) (“a motion by the defendant for a mistrial is ordinarily assumed to remove any barrier to reprosecution”). See also Scott, 437 U.S. at 93, 98 S.Ct. at 2194; United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); United States v. Poe, 713 F.2d 579, 583 (10th Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80 L.Ed.2d 456 (1984). Further, had the District Court declared a mistrial due to a “manifest necessity” prior to the jury returning a verdict, the Double Jeopardy Clause would not bar his retrial. See Illinois v. Somerville, 410 U.S. 458, 462-63, 93 S.Ct. 1066, 1069-70, 35 L.Ed.2d 425 (1973); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). In the latter situation, the Double Jeopardy Clause would not bar a retrial even if legal ly insufficient evidence was presented at the first trial. Richardson, 468 U.S. at 326, 104 S.Ct. at 3086. We see no reason why the result should be any different when the district court grants Defendant’s motion for a new trial after the jury returns a verdict. Indeed, in the present situation, Defendant is better off because he had the opportunity to secure an acquittal by the initial jury. See Lydon, 466 U.S. at 312, 104 S.Ct. at 1815 (“[njothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal”) (internal quotations and footnote omitted). Moreover, Defendant was not forced to forego his “right to have his fate determined by the jury that was first empaneled and sworn.” Crotwell, 896 F.2d at 439. Rather, he received a verdict from the first jury; he simply does not like the result. The rationale for barring a retrial after an acquittal has been explained as follows: the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense" }, { "docid": "11259536", "title": "", "text": "and ‘insured bank’ includes any bank, banking association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal Deposit Insurance Corporation.” . United States v. Harriman, 2 Cir., 219 F.2d 918. . 2 Cir., 218 F.2d 157. . Brock v. State of North Carolina, 344 U.S. 424, 428, 73 S.Ct. 349, 351, 97 L.Ed. 456, concurring opinion. . See Gavieres v. United States, 220 U.S. 338, 342-343, 31 S.Ct. 421, 55 L.Ed. 489; U. S. v. Bendik, 2 Cir., 220 F.2d 249. . Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. . Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422. . United States v. Harriman, C 140-65, No. 21348, memorandum by Dawson, D. J., September 3, 1954, appeal dismissed, 2 Cir., 219 F.2d 918. . United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165. . Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 838, 93 L.Ed. 974. . United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But cf. People ex rel. Stabile v. Warden of City Prison, 202 N.Y. 138, 95 N.E. 729. . Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968. . Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. . United States v. Haskell, C.C.E.D.Pa., 26 Fed.Cas. p. 207, No. 15,321. . United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540. . Cf. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436, with Bassing v. Cady, 208 U.S. 386, 28 S.Ct. 392, 52 L.Ed. 540. . Cornero v. United States, 9 Cir., 48 F.2d 69, 74 A.L.R. 797. . United States v. Shoemaker, C.C.D.Ill., 27 Fed.Cas. pp. 1067, 1068, No. 16279. See Parker, Some Aspects of Double Jeopardy, 25 St. John’s L.Rev. 188 (1951). . Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 838, 93 L.Ed. 974. . See," }, { "docid": "196778", "title": "", "text": "stated that his other suggestions, those requesting a different Allen charge and objecting to the judge’s inquiries of the jury were already on the record. Finally, on the basis of his conclusion that the jury was hopelessly deadlocked, Judge Metzner declared a mistrial and excused the jurors. After the case was assigned to Judge Broderick for retrial, defendant moved to dismiss the indictment, arguing that double jeopardy barred a retrial. Judge Broderick concluded that, on the facts of this case— six days of deliberation, a modified Allen charge, and consideration of alternatives to mistrial — Judge Metzner properly exercised his discretion in declaring a mistrial on the basis of a hung jury. He further found that neither the court nor the government in any way acted to prevent the jury from reaching a verdict. The motion to dismiss was denied. The following day defendant moved for reargument. Judge Broderick granted the reargument but adhered to his earlier decision. Defendant has appealed from both of these orders. II The general principles by which the correctness of Judge Metzner’s ruling must be judged were established long ago in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Courts have the power to declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. [T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes” and in the exercise of “a sound discretion.” Id. at 580. The parties do not question that a retrial, after a declaration of a mistrial meeting the Perez requirements, is not violative of the prohibition against double jeopardy in the Fifth Amendment. Perez wisely noted that “it is impossible to define all the circumstances, which would render it proper to interfere.” Id. Appellant Klein contends that the indictment against him should be dismissed because compelling him to stand trial after the declaration of a mistrial over his objection would place him in double jeopardy in" }, { "docid": "4486911", "title": "", "text": "to the officers — and continued to do so after his failure to respond to a single question — he cannot be said to have invoked his right to remain silent. Under the circumstances, Lorenzo’s failure to respond was not “insolubly ambiguous,” Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and it was thus not error to allow testimony as to that event. Ill Lorenzo’s next claim of error is that he was impermissibly subjected to double jeopardy. After deliberating a little over three hours, the jury foreman reported that it would be impossible to arrive at a verdict. The district judge questioned each juror, and all agreed that there was no possibility that the deadlock could be overcome by further deliberations. As a result, the jury was discharged and Lorenzo was retried. In United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), the Supreme Court held that double jeopardy principles are not violated where “manifest necessity” justifies the discharge of a jury unable to reach a verdict. Lorenzo contends, however, that here there was no manifest necessity to declare a mistrial and that therefore his double jeopardy rights have been violated. We disagree. The Supreme Court has wisely left the determination of manifest necessity to the sound discretion of the trial judge with the caveat that the power ought to be used with the greatest caution, under urgent circum stances, and for very plain and obvious causes .... Id. In United States v. See, 505 F.2d 845 (9th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975), we designated several factors to be considered when reviewing a declaration of mistrial and noted that the “crucial factor” is whether the jury itself believes that it is “hopelessly deadlocked.” Id. at 851. Here, the district court determined from questioning each member of the jury that it was their belief that their differences were irreconcilable. Although it is true that the jury had been deliberating for only a little over three hours, the district court did" } ]